Maryland State Official May Benefit From Sentencing Error

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Anne Arundel Circuit Court Judge Ronald A. Silkworth and specially assigned Talbot County prosecutor, Henry Dove, created quite the controversy recently. The director of Maryland's attorney general's civil rights office, Carl O. Snowden, recently plead guilty to drunk driving. In return, the state prosecutor agreed to not recommend sentencing and to drop the other charges. Sounds about right, if the conviction was Snowden's first, but it was not. Maybe the probation before judgment was appropriate because five years had passed since his last conviction. After all, Snowden's previous probation before judgement for drunk driving was eight years ago. Not so fast, a recent change in Maryland law requires that only one PBJ be given every ten years for drunk driving. If you didn't know that the law changed, don't be embarrassed because the "specially assigned" prosecutor didn't know either.

Probation before judgement (PBJ) is a benefit often given to first-time offenders, allowing a defendant to escape a conviction if he or she complies with all of the conditions of probation (this is where we could put a link to my previous article). Eventually, the defendant can ask a judge to expunge the record.

When the prosecutor learned of Snowden's previous probation before judgment, he filed a request that Judge Silkworth correct an illegal sentence. Snowden's attorneys believe, despite the recent change in law, that other laws prevent the judge from increasing the sentence. On November 29th, they filed a Motion in Opposition. The first argument focuses on the actual terms of the plea agreement. If a defendant agrees to plead guilty to a charge in exchange for the prosecutor's promise not to recommend a sentence, a subsequent effort by the prosecutor to participate in sentencing compromises the integrity of the judicial system. The second argument is more technical. Shane Nikolao, an attorney for Snowden, wrote in his motion that it would be "unfair to prevent Mr. Snowden from receiving probation before judgement when at the time he accepted his first probation before judgement he did so with the understanding that he would be eligible for another one after five years." I think that this argument is bolstered by the fact that when a defendant agrees to a PBJ he waives his right to appeal. Maybe a defendant would think twice about waiving the right to appeal when faced with ten years of ineligibility as opposed to five. The third argument is founded on the well known rule that a sentence can not be increased. I feel that all of these arguments have merit, but are weakened by the fact that a judge is not required to give a PBJ. PBJ is more of a privilege than it is a right. I wonder what the Court will rule. Judge Silkworth scheduled a hearing for January 13th to consider the arguments.

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