State of Maryland v. Crystal Brookman and State of Maryland v. Marvin Randy Carnes
No. 29, September Term 2017



Criminal Procedure – Probation – Appellate Jurisdiction. The Montgomery County
Adult Drug Court program is a “problem-solving court” program in the Circuit Court for
Montgomery County administered pursuant to Maryland Rule 16-207. Participants are
selected from non-violent criminal defendants following conviction. If a defendant is
accepted into the program, the Circuit Court orders the defendant to successfully complete
the drug court program as a special condition of probation. Violations of the program’s
conditions subject the participant to a graduated menu of sanctions, ranging up to
incarceration and termination from the program. When the Circuit Court imposes a
sanction of incarceration against a participant for a program violation, the participant may
seek appellate review of that decision by filing an application for leave to appeal.


Criminal Procedure – Probation Conditions – Due Process – Sanctions Imposed
under Drug Court Program. When a Circuit Court administering a drug court program
under Maryland Rule 16-207 considers the imposition of a sanction involving the loss of
liberty or termination from the program, it must provide certain minimum due process
protections as set forth in Rule 16-207(f), including notice, an opportunity to be heard, and
the right to representation by counsel. The constitutional guarantee of procedural due
process also requires that a defendant have the opportunity to confront and contest adverse
evidence and the opportunity to have the court consider mitigating circumstances before
the court imposes a sanction of incarceration.
Circuit Court for Montgomery County
Case Nos. 121215C / 124172C
Argument: January 5, 2018
                                             IN THE COURT OF APPEALS
                                                  OF MARYLAND

                                                       No. 29
                                                 September Term, 2017



                                                  STATE OF MARYLAND

                                                            V.

                                                  CRYSTAL BROOKMAN
                                                     __________

                                                  STATE OF MARYLAND

                                                            V.

                                                MARVIN RANDY CARNES

                                      _____________________________________

                                                         Barbera, C.J.,
                                                         Greene
                                                         Adkins
                                                         McDonald
                                                         Watts
                                                         Hotten
                                                         Getty,

                                                            JJ.
                                      ______________________________________

                                                  Opinion by McDonald, J.
                                                Hotten and Getty, JJ. concur.
                                            Greene, Adkins, and Watts, JJ., dissent.
          2018-07-31
                                      ______________________________________
          10:25-04:00
                                                         Filed: July 31, 2018
       The past three decades have seen the growth, in Maryland and elsewhere, of

treatment programs operated under the auspices of the judiciary. In those programs,

sometimes identified by the generic phrase “problem-solving courts,” judges, counsel,

probation officers, and treatment professionals work together to address an underlying

issue that brings an individual into the criminal justice system. Problem-solving courts

focus on therapy for the individual defendant, in the hope that both the individual and

society will be better off in the long run. Preeminent among such programs are those

known as “drug courts.”

       Drug court programs are conceived of as collaborative rather than adversarial.

However, the coercive powers of the court under the criminal law are used as an important

instrument to achieve the program’s goals. This creates a tension: For a drug court’s goals

to be achieved, there must be swiftness and certainty of sanction for violation of its

protocols. For the criminal justice system to work, there must be due process and respect

for appellate rights.

       These consolidated cases concern whether a circuit court’s exercise of its coercive

powers to incarcerate a drug court program participant in aid of the swiftness and certainty

of program sanctions (1) is subject to appellate review and (2) can violate the participant’s

right to due process.
       Respondents Crystal Brookman and Marvin Carnes were defendants in separate

criminal prosecutions in the Circuit Court for Montgomery County. The Circuit Court

determined that each was eligible to participate in the court’s drug court program as a

special condition of probation after each pled guilty in their respective cases. Each did so

and fared well in the program for many months.

       In early 2016, Ms. Brookman was alleged to have had a negative urinalysis – based

not on a positive finding of illicit drugs, but on a test result that suggested she may have

attempted to dilute her urine. At approximately the same time, Mr. Carnes appeared late

for a randomly-scheduled drug test. At subsequent hearings concerning their respective

alleged violations of the program conditions, each was represented by counsel. Ms.

Brookman’s counsel asked for a postponement to gather and present evidence contesting

her test result; Mr. Carnes’ counsel asked the court to consider mitigating evidence before

imposing the program sanctions. However, in both cases, the Circuit Court declined to

exercise discretion and imposed immediate sanctions from the program’s sanctions menu.

In both cases, those sanctions included overnight incarceration.

       Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which were

accepted by the Court of Special Appeals and consolidated for appellate review. The

intermediate appellate court held that Ms. Brookman and Mr. Carnes had the right to seek

appellate review of the incarceration sanction. Upon that review, it held that the procedure

followed in the Circuit Court did not comply with the requirements of due process.

       We agree with the holdings of the Court of Special Appeals.




                                             2
                                                  I

                                         Background

A.     Drug Court Programs

       1. Problem-Solving Courts and Emerging Issues

       Although one would hope that most courts contribute to the solution of society’s

problems, the phrase “problem-solving court” is generally used to denote a special docket

in a trial court that targets defendants whose presence in the criminal justice system appears

to be traceable, at least in part, to an underlying issue such as substance abuse.1 To address

that underlying issue, participants in the program are subject to a highly structured

probation that includes treatment and monitoring. A typical drug court program is divided

into several phases of diminishing intensity as the participant progresses in accordance with

the program’s goals.2     To encourage a participant’s compliance with treatment and

monitoring, most programs require frequent status review hearings involving a judge

assigned to the program and other court personnel. As a further incentive for participants

to comply with the program’s conditions, violations of program requirements are generally




       1
        The first such court-sponsored program was a drug court program created
approximately 30 years ago in Florida. C. McCoy, The Politics of Problem-Solving: An
Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev.
1513, 1517 (2003). Encouraged in part by federal grants through the United States
Department of Justice, such programs have spread throughout the country. Id.
       2
       T. Oram & K. Gleckler, An Analysis of the Constitutional Issues Implicated in
Drug Courts, 42 Idaho L .Rev. 471, 478 (2006).



                                              3
punished with a series of graduated sanctions, some of which derive from the court’s

coercive powers.3

      As some courts and commentators have noted, the use of coercive powers, coupled

with the informal, collaborative nature of the program, can raise issues as to whether a

participant has received the procedural due process guaranteed to criminal defendants and

probationers.4 Moreover, because of the intensive monitoring of the participant without

counsel, or with counsel who is regarded as a member of a treatment team rather than an

advocate, there can be ethical issues, such as the potential for ex parte communications

between the judge and a defendant.5




      3
        C. Fisher, Treating the Disease or Punishing the Criminal?: Effectively Using
Drug Court Sanctions to Treat Substance Abuse Disorder, and Decrease Criminal
Conduct, 99 Minn. L. Rev. 747, 758 (2014) (noting that “certainty, swiftness, and
progressiveness” are key principles of graduated sanctions in a drug court program).
      4
        R.C. Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement,
76 Wash. U. L. Q. 1205, 1250-52 (1998) (“[W]hen treatment is built into a system that has
retained at least some of the features of traditional criminal law…, such as the power to
use coercive measures, procedural informality and a lack of detachment on the part of the
decision maker can result in severe negative consequences for the defendant.”); see also T.
Oram & K. Gleckler, supra, at 485-532.
      5
        R. Shymansky, Blurred Lines: The Potential for Partial Judges and Impartial
Lawyers in Drug Courts, 55 Am. Crim. L. Rev. Online 7, 8 (2018); B. Shannon, Specialty
Courts, Ex Parte Communications, and the Need to Revise the Texas Code of Judicial
Conduct, 66 Baylor L. Rev. 127 (2014).



                                            4
       2. Problem-Solving Courts in Maryland

       Problem-solving court programs were first established in Maryland in the early

1990s.6 According to the most recent annual report of the Office of Problem Solving

Courts, there are 53 such programs associated with circuit courts and the District Court,

focused on various underlying issues that bring individuals within the jurisdiction of the

judicial system – substance abuse, mental health issues, truancy, and veterans’ issues. See

https://www.courts.state.md.us/sites/default/files/import/opsc/pdfs/annualreports/fy2017o

pscannualreport.pdf (last visited June 4, 2018).

       Nature of a Problem-Solving Court

       In 2009, this Court was presented with the issue of whether a “problem-solving

court” had fundamental jurisdiction, such that it could sanction a criminal defendant who

violated a program condition. The Court held that, because the “drug court” in question

was essentially a division of the circuit court – a court of original general jurisdiction – it

had the fundamental powers of the circuit court. Brown v. State, 409 Md. 1 (2009). The

Court held that the question whether the procedures of the drug court violated due process

could be addressed through “well-developed mechanisms for correcting any violations” –

i.e., appellate review and extraordinary writs. 409 Md. at 8-9 & n. 1. Whether the

particular drug court program actually violated due process and the code of judicial conduct

because of ex parte communications that a judge might have under the program was




       See Comment, Baltimore City’s Drug Treatment Court: Theory and Practice in
       6

an Emerging Field, 55 Md. L. Rev. 467 (1996).



                                              5
apparently raised at oral argument of the case,7 but not resolved by the decision. The

following year, this Court adopted a rule that governs the operation of existing problem-

solving courts and the creation of new programs and that addressed at least some of the

issues raised, but not decided, in Brown.

       Maryland Rule 16-207

       In 2010, this Court first adopted a rule governing “problem-solving court

programs.” That rule is currently codified as Maryland Rule 16-207.8 That rule describes

“problem-solving court program” as “a specialized court docket or program that addresses

matters under a court’s jurisdiction through a multi-disciplinary and integrated approach

incorporating collaboration by the court with other governmental entities, community

organizations, and parties.” Maryland Rule 16-207(a)(1).

       In order to be accepted into such a program, a prospective participant – presumably

a defendant in a criminal case in most instances – must execute a written agreement.

Maryland Rule 16-207(e)(1). The written agreement is to set forth the requirements and




       7
        See H.E. Cauvin, Public Defender Calls Venues Unconstitutional, Washington
Post (April 3, 2009).
       8
         The rule was originally codified as Maryland Rule 16-206 and governed the
operation of existing problem-solving court programs, as well as the creation of new
programs. The rule set also forth a process for establishment of a new program.

        In 2016, the rule was recodified, with minor changes, as Maryland Rule 16-207.
Although Respondents’ participation in the Montgomery County drug court program began
– and all the events pertinent to this appeal occurred – under the prior codification of the
rule, the changes made in 2016 are immaterial to the issues in this case. We shall refer to
the current codification and language of the rule in the text.



                                             6
protocols of the program, the range of sanctions that may be imposed against a participant,

and any waiver of rights by the participant (e.g., waiver of a right to counsel). 9 As a further

condition of acceptance into the program, the trial court is to examine the prospective

participant on the record concerning the agreement and make an explicit finding that he or

she is acting knowingly and voluntarily. Maryland Rule 16-207(e)(2).

       A program may allow for the imposition of immediate sanctions. Maryland Rule

16-207(f). However, if such a sanction would involve a loss of liberty or termination from

the program, the participant is entitled to notice, an opportunity to be heard, and the

assistance of counsel before the court makes its decision. Id.10 The rule also provides that

a participant who is terminated from a program is to receive credit for time spent

incarcerated while in the program against a sentence that is to be served as a result of

termination from the program. Maryland Rule 16-207(g).




       9
         The written agreement is to summarize the protocols of the program to which the
participant is agreeing, including the authority of the judge to initiate, permit, and consider
ex parte communications in connection with the individual’s participation in the program.
A corresponding amendment was made to Rule 2.9 of the Code of Judicial Conduct –
subsequently recodified as Maryland Rule 18-102.9 – to allow a judge in a problem-solving
court program to do so if the parties have consented to those protocols. See 163rd Report
of Standing Committee on Rules of Practice and Procedure (January 13, 2010); Rules
Order (March 9, 2010).
       10
         If the participant is not represented by counsel at that juncture, the rule
contemplates that the trial court will comply with the appropriate rule or statute concerning
appointment or waiver of counsel. Maryland Rule 16-207(f).



                                               7
       3.     Montgomery County Adult Drug Court Program

       The setting for the issues in this case is a problem-solving court program in the

Circuit Court for Montgomery County known as the Montgomery County Adult Drug

Court Program. It was first established in December 2004. According to the Policies and

Procedures Manual for the program, it is a “collaborative effort … to break the cycle of

substance abuse” by providing the structure required for a participant to become alcohol

and drug free.    The program is limited to non-violent addicted offenders following

conviction.11 A defendant may be directed to the program as a condition of probation

following a guilty plea or as a consequence of being charged with a violation of probation.

An eligible defendant must consent to participation in the program. Upon successful

completion of the program, the participant is released from probation.

       The program, which requires a minimum of 20 months to complete, is divided into

four phases. Participants advance through those phases by satisfying certain requirements

and accomplishing certain goals. For example, to advance from Phase I to Phase II, the

participant must, among other things, attend a minimum of three support group meetings

each week and have at least 30 consecutive days of clean urinalysis. (Each phase of the

program includes a requirement of submitting to random urinalysis.)


       11
          As indicated in the text, this program is available only as a condition of probation
after a defendant has been adjudicated guilty of an offense and sentenced. Some drug court
programs may be implemented prior to trial as part of a defendant’s conditions of release.
See Comment, Baltimore City’s Drug Treatment Court: Theory and Practice in an
Emerging Field, 55 Md. L. Rev. 467, 479-83 (1996) (describing a pretrial program in
Baltimore City during the 1990s). The analysis in this opinion may not necessarily apply
to a pretrial program.



                                              8
       The program manual lists the “key team members” of the program: the judge

(referred to as the team leader), the program coordinator, the prosecutor, defense counsel,

case managers, and treatment providers. The program manual describes the program as a

“non-adversarial, collaborative approach to treatment.”         It also states that, when a

participant violates the program’s terms and conditions, the drug court program team will

discuss the mandatory sanction to be imposed for non-compliance at a status review

hearing, “emphasizing a team, rather than an adversarial process.”

       Participants receive a Participant Handbook. In addition to providing contact

information for team members of the drug court program and important information

concerning treatment services, testing, and housing, it also details the “menu” of sanctions

for violations of the program’s rules. The menu consists of nine-page matrix that lists a

range of sanctions. Most sanctions are listed according to three axes: (1) the phase of the

program (I through IV); (2) the type of violation (e.g., positive urinalysis, failure to appear

for treatment, failure to appear for community service); and (3) the number of prior

violations (i.e., first violation, second violation, or more). Some sanctions, referred to as

“overall sanctions,” do not depend on the phase of the program. The menu also lists some

standard sanctions regardless of phase or the number of prior violations. The sanctions

range in severity from a verbal warning to “jail” and termination from the program. The




                                              9
menu is not precise on the length of incarceration and refers only to “jail” or “increased

length of time in jail” for some violations.12

       Pertinent to this appeal, the sanction for a missed urinalysis, which is treated as a

positive test result (i.e., indicating illicit drug use), is jail, more frequent testing for two

weeks, demotion to a prior phase of the program, and additional sanctions if the participant

has had a prior missed or positive urinalysis. Also pertinent to this case, a participant is

sanctioned if a urinalysis reveals a low creatinine level, which could be evidence of an

attempt to dilute the participant’s urine for purposes of evading the test.13 The sanction for

the first low creatinine result is a written warning; any subsequent low creatinine result is

are treated as a positive urinalysis.

       The handbook advises the participant that the sanctions could be “revised at any

time” and that, if so, the participant will receive an updated handbook. It also advises that

the drug court program team may consider alternative sanctions if the participant commits

multiple violations within a short period of time.

       If a defendant wishes to participate in the program, the defendant must execute a

written agreement, as required by Maryland Rule 16-207. The “Drug Court Agreement”


       12
           The program manual is somewhat more specific, specifying ”overnight
incarceration” and “Thursday-Sunday” incarceration for certain violations, but also refers
more vaguely to “escalating periods of jail confinement.”
       13
         Creatinine is a waste product in human blood derived from protein and the normal
breakdown of muscle tissue. It is removed from the blood by the kidneys and eliminated
from the body in urine. A low creatinine level may be an indication that a participant in
the program has attempted to defeat a urinalysis test for illicit drugs by consuming an
excessive amount of water to dilute the participant’s urine.



                                                 10
used in the Circuit Court’s program is not so much a contract – the only parties executing

the agreement are the defendant and the defendant’s attorney – as a series of

acknowledgments and promises by the participant.            Many of the acknowledgments

summarize aspects of the program; some incorporate elements of Maryland Rule 16-207.

       The written agreement recites a number of the elements of the program – for

example, that the program will last at least 20 months, that the participant may be required

to take medications and attend at least three recovery meetings every week, that the

participant is subject to random alcohol and drug testing, that a failure to report for testing

will result in a sanction, and that any attempt to falsify a test, including urine dilution, may

result in the participant’s termination from the program. In executing the agreement, the

participant promises, among other things, to be on time for group meetings, appointments,

and court appearances; to refrain from the use or possession of alcohol and illegal drugs

and to not associate with persons who use or possess controlled substances. With respect

to the imposition of sanctions, the written agreement provides:

       I understand that Drug Court imposes graduated sanctions for lack of
       compliance with program requirements, including incarceration. I have the
       right to request and have a formal adversarial hearing before the imposition
       of a sanction of incarceration or before being terminated from Drug Court.

This appears to be the only reference in the program materials concerning a right to a

“formal adversarial hearing.” As noted earlier, the program manual indicates the sanctions

are ordinarily considered at a status review hearing, which is described as “non-

adversarial.” Neither the “Drug Court Agreement” nor the other materials elaborate on the




                                              11
nature of the “formal adversarial hearing” that is to precede a sanction of incarceration or

whether (and how) it would differ from a normal status review hearing under the program.

B.     Facts and Proceedings

       1.     State v. Brookman

       Charges and Guilty Plea in the District Court

       According to the record in this case, on May 26, 2012, Ms. Brookman was initially

charged in the District Court of Maryland, sitting in Montgomery County, with four counts

related to the theft of jewelry and pawning of stolen jewelry: one count of theft of property

valued between $10,000 and $100,000, two counts of theft of property valued between

$1,000 and $10,000, and one count of conspiracy to commit theft of property valued

between $1,000 and $10,000. She was arrested on those charges on June 7, 2012.

       On August 14, 2012, Ms. Brookman pled guilty to one of the theft charges

concerning property valued between $1,000 and $10,000; the remaining charges were

stetted by the District Court. The District Court sentenced her to 12 months incarceration,

a $2,000 fine, and restitution to the victim of the theft and the pawn shop. The court

suspended the fine and ten months of the period of incarceration and placed her on

probation for two years, with special conditions that she pay the restitution, refrain from

any contact with the victim of the theft (her boyfriend’s mother), and submit to alcohol and

drug evaluation, testing, and treatment. The two months of incarceration was to begin that

day with a recommendation of work release. That same day, however, Ms. Brookman

appealed her conviction to the Circuit Court for Montgomery County for a de novo trial.




                                             12
       Appeal to Circuit Court, Guilty Plea, and Sentencing

       On September 14, 2012, in the Circuit Court, she again pled guilty to one count of

theft involving property valued between $1,000 and $10,000. On October 22, 2012, the

Circuit Court conducted a sentencing hearing focused primarily on assessing the amount

of restitution. Ms. Brookman admitted that she had been addicted to oxycodone for seven

years, but claimed to have overcome her addiction during the previous summer. The

Circuit Court sentenced Ms. Brookman to 12 months incarceration, which it suspended in

favor of two years’ probation, and ordered that she pay restitution of $4,500 to the victim.

As a special condition of probation, the court directed her to stay away from the victim, to

abstain from alcohol and illicit drugs, and to successfully complete a drug and alcohol

evaluation and testing program. The court did not refer her to the drug court program at

that time.

       Probation Violation and Referral to Drug Court Program

       On December 13, 2013, Ms. Brookman returned to the Circuit Court and admitted

that she had violated her probation by virtue of a second-degree assault conviction that

year. The Circuit Court sentenced her to one-year imprisonment, again suspended, and

placed her on three years’ probation with various conditions. One of those conditions was

that she successfully complete the Circuit Court’s drug court program.

       Progress in Program; Low Creatinine Test Result

       Various status review hearings took place in the Circuit Court over the next two

years in connection with Ms. Brookman’s participation in the drug court program.

Although a urinalysis in July 2014 yielded a low creatinine result, she had successfully


                                            13
advanced to Phase III of the program by early 2016. During the week of February 22,

2016, Ms. Brookman was notified that she had received a second low creatinine result from

a urinalysis test. As indicated above, under the policies and procedures governing the drug

court program, a second low creatinine test is treated as evidence of an effort to defeat

testing for illicit drugs and as a “positive” test result. Moreover, drug court policies also

treat any attempt to falsify a test, including by dilution, as grounds for termination from

the drug court program. The Circuit Court promptly scheduled a status hearing for

February 26, 2016.

       Hearing Concerning Program Violation and Sanction

       Prior to the hearing, Ms. Brookman’s counsel filed a request for discovery related

to the test and for the analyst who conducted the test to appear at the hearing. At the

hearing, Ms. Brookman’s counsel requested a postponement in order “to review this

information,” to obtain input from a chemist as to the reliability of the test, and to go over

the results with Ms. Brookman. Counsel noted that Ms. Brookman’s test result was close

to an acceptable level for creatinine, that it thus might be within the margin of error for an

acceptable test, and that there was no other reason to believe that Ms. Brookman was

abusing drugs at that time. The prosecutor opposed the defense requests, observed that the

laboratory that conducted the test was certified, noted that the issue was not arising in the

context of an alleged violation of probation (i.e., that Ms. Brookman was not entitled to a

probation violation hearing), and urged the court to impose the immediate sanction

contemplated by the drug court program for a positive test result.




                                             14
       The Circuit Court did not explicitly rule on Ms. Brookman’s request for a

postponement to present evidence to contest the test result. Rather, the court permitted Ms.

Brookman to make a statement in which she stated she did not know what caused the test

result and that she desired to stay in the program. The Circuit Court then summarized

briefly the drug court program policies concerning positive urinalysis test results and low

creatinine test results, and imposed immediate sanctions for a positive test result. In

particular, it changed Ms. Brookman’s “sober date,” demoted her from Phase III to Phase

II of the program (which would subject her to more frequent testing and increased

monitoring in the near future), and directed her to be incarcerated overnight.

       On March 25, 2016, Ms. Brookman filed an application for leave to appeal.

       2.     State v. Carnes

       Guilty Plea, Sentencing, and Referral to Drug Court Program

       On December 30, 2013, Mr. Carnes was charged in the Circuit Court for

Montgomery County with 46 counts of theft, identity fraud, credit card fraud, conspiracy,

and related offenses.14 On April 15, 2014, he pled guilty to one count of felony theft

scheme involving property valued between $1,000 and $10,000, and one count of credit




       14
         Mr. Carnes had been initially charged in three different cases in the District Court
of Maryland, sitting in Montgomery County, while he was incarcerated with respect to a
different case in Howard County. The Montgomery County charges were eventually
consolidated in the Circuit Court for Montgomery County and Mr. Carnes was transported
by writ from Howard County to the Circuit Court for Montgomery County to resolve the
Montgomery County case.



                                             15
card identity fraud. At the guilty plea hearing, the Circuit Court was informed that Mr.

Carnes had been accepted into the drug court program.

       On June 11, 2014, Mr. Carnes was sentenced to 10 years incarceration for the felony

theft scheme and a concurrent 18 month sentence for identity fraud, with credit for time he

had already spent in custody. The terms of incarceration were suspended in favor of three

years supervised probation with the condition that Mr. Carnes complete the drug court

program. Mr. Carnes did not seek leave to appeal at that time.

       Missed Urinalysis

       Approximately a year and a half later, Mr. Carnes had advanced to Phase III of the

program and was working as a truck driver. Before going to work on February 17, 2016,

he called the program’s urinalysis phone line at 7:30 a.m. to find out whether he was

required to report for a random urinalysis test that day. The list of participants to be tested

that day had apparently not yet been updated and at 8 a.m. Mr. Carnes went to work,

without having resolved whether he had to report for testing that day. During the day, his

truck broke down and after taking four hours to return from Cumberland to Montgomery

County, he arrived home at about 1 a.m. the next morning. He called the urinalysis line at

1:30 a.m. and learned that he had in fact been selected for a random urinalysis test the

previous day. He immediately called one of the drug court program staff members and

reported to a testing facility at 3:00 a.m. The test result was negative for forbidden

substances. Later that day, he underwent full blood and urine tests, which were also

negative.




                                              16
Hearing Concerning Program Violation and Sanction

       On February 26, 2016, the Circuit Court conducted a drug court status hearing

concerning Mr. Carnes’ failure to appear for the urinalysis test that had been randomly

scheduled for February 17. At the outset, Mr. Carnes’ counsel stated an intent to present

evidence that Mr. Carnes did not actually miss a urinalysis after hearing “the State’s

evidence.” The Circuit Court responded that there was “no evidentiary requirement for

there to be any demonstration” by the State. What followed was essentially a proffer of

the underlying facts by defense counsel, which appeared to be accepted by the prosecutor

and the court.

       Based on that proffer, Mr. Carnes’ counsel urged the court to regard the situation as

a “late urinalysis” – for which the sanctions menu did not state any particular sanction –

rather than a “missed urinalysis” and to refrain from imposing a sanction, in light of the

fact that the tests on February 18 were all “clean.” Counsel argued that strict application

of the sanctions menu without regard to Mr. Carnes’ individual circumstances would

violate his right to due process.

       In response, the prosecutor stated that other participants who had appeared late at

the testing center had been treated as having a missed urinalysis, that all participants were

on notice of the sanctions menu, and that the situation could have been avoided if Mr.

Carnes had called his case manager during the day before he returned to Montgomery

County. In any event, the prosecutor argued, program sanctions should not be imposed on

a “case-by-case” basis.




                                             17
       The Circuit Court stated that a “bedrock and core component” of the drug court

program was random urinalysis. The court opined that it was incumbent on Mr. Carnes,

after his unsuccessful effort at 7:30 a.m., to call again during the day to determine whether

he had been randomly selected for testing that day. The court observed that there was no

exception in the menu of sanctions for a “late urinalysis” and that Mr. Carnes was asking

to be treated differently from other participants in the program. Accordingly, the court

imposed the sanctions specified in the drug court program for a missed urinalysis which,

as indicated above, is treated as a positive test result for illegal substance use. That sanction

includes, among other things, overnight incarceration, delay of graduation date from the

program, and change of sober date. However, the court postponed the requirement of

overnight incarceration so that Mr. Carnes could participate in his daughter’s birthday

celebration that night.

       On March 25, 2016, Mr. Carnes filed an application for leave to appeal.

       3.     Court of Special Appeals Decision

       On June 6, 2016, the Court of Special Appeals granted leave to appeal for both Ms.

Brookman and Mr. Carnes and consolidated the two appeals. In a published decision, the

intermediate appellate court held that the hearings at which the Circuit Court imposed

sanctions against Ms. Brookman and Mr. Carnes violated their rights to due process.

Accordingly, it vacated the Circuit Court’s decisions and remanded both cases for further

proceedings. 232 Md. App. 489 (2017).




                                               18
       4.     Epilogue

       After the decision of the Court of Special Appeals, the participation of both

Respondents in the drug court program was terminated, although with different results. On

May 17, 2017, the Circuit Court closed Mr. Carnes’ probation satisfactorily and recognized

him as a “successful graduate” of the drug court program. On May 25, 2017, the Circuit

Court closed Ms. Brookman’s probation unsatisfactorily and terminated her participation

in the drug court program as “unsuccessful.”

       We granted the State’s petition for a writ of certiorari and the joint cross-petition of

Ms. Brookman and Mr. Carnes.15




       15
          In their opposition to the State’s petition for certiorari, the Respondents argued
that these cases became moot as a result of their respective terminations from the drug court
program shortly after the Court of Special Appeals issued its opinion. Respondents have
not pressed that contention in their briefs or at oral argument. In any event, while it is true
that there is no relief that we can afford to Ms. Brookman or Mr. Carnes with respect to
their participation in the drug court program, the issues raised in this appeal are “matters
of important public concern, which may frequently recur, and which, because of inherent
time constraints, may not be able to be afforded complete appellate review.” Attorney
General v. Anne Arundel County School Bus Contractors Ass’n, 286 Md. 324, 328 (1979).
Accordingly, this is a circumstance in which we choose to exercise our discretion to decide
what would otherwise be a moot case. See Powell v. Department of Health, 455 Md. 520,
539-41 (2017).



                                              19
                                              II

                                         Discussion

      There are two questions before us, one procedural and one substantive:

      (1) Is there appellate jurisdiction?

      (2) If so, did the process followed by the Circuit Court in imposing sanctions in

these cases violate the due process guarantees of the Maryland and federal constitutions?

A.    Whether There is Appellate Jurisdiction

      The threshold question is whether there is appellate jurisdiction of this case.

      Both Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which

were granted by the Court of Special Appeals. Before us, they now take the position that

at least some sanctions imposed by a circuit court pursuant to a drug court program –

including those imposed in these two cases – constitute a final judgment from which a

defendant has a right of appeal that does not depend on the exercise of discretion by the

Court of Special Appeals. The State has argued consistently that a participant in a drug

court program has no right of appeal, even by application for leave to appeal, from the

imposition of sanctions by the Circuit Court.

      It is often said that appellate jurisdiction is entirely statutory. E.g., Seward v. State,

446 Md. 171, 176 (2016). The General Assembly has provided that, in a criminal case, a

defendant has a right of appeal from a “final judgment” entered by a circuit court.

Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §12-301. The defendant

has such a right even though imposition or execution of sentence has been suspended. Id.




                                             20
       A “final judgment” is defined in statute, somewhat circularly, as one “from which

an appeal, application for leave to appeal, or petition for certiorari may be taken.” CJ §12-

101(f). As a result, the Legislature has generally left it to this Court to define the contours

of a “final judgment.” Metro Maintenance Systems South, Inc. v. Milburn, 442 Md. 289,

297 (2015). This Court has described a “final judgment” as:

          one that either determines and concludes the rights of the parties
          involved or denies a party the means to prosecute or defend his or her
          rights and interests in the subject matter of the proceeding. Important
          is whether any further order is to be issued or whether any further action
          is to be taken in the case.

Douglas v. State, 423 Md. 156, 171 (2011 (citations, quotation marks, and related editing

marks omitted). The Court has sometimes reduced this formula to a shorthand phrase: a

final judgment is one that “puts a party out of court.” Metro Maintenance, 442 Md. at 299.

       For many years, this Court consistently held that an order revoking probation and

reinstating a previously suspended sentence of incarceration was an appealable final

judgment. See Kupfer v. State, 287 Md. 540, 542-43 (1980) (collecting cases). In 1980,

this Court extended that holding to an order modifying and extending the period of

probation based on a finding that the defendant had violated the conditions of probation.

Id.; see also Maus v. State, 311 Md. 85 (1987) (probation revocation as a result of

defendant’s admission of violation appealable as final judgment). In 1991, the Legislature

limited appeals as of right from orders revoking probation. Chapter 240, Laws of Maryland




                                              21
1991, codified at CJ §12-302(g).16 As a result, appellate review of a probation revocation

order may be sought only by filing an application for leave to appeal. Id.

       Respondents concede that ordinarily sanctions imposed in connection with a drug

court program are not final judgments as no court action is involved. However, they argue

that the sanctions imposed in their cases fit the definition of final judgment because the

imposition of immediate incarceration “left no doubt” that the court had finally resolved

their alleged violations of the program’s rules.

       In response, the State analogizes these cases to the situation in Fuller v. State, 397

Md. 372 (2007). In Fuller, an inmate petitioned a circuit court for commitment to a

substance abuse program as permitted by statute. When the circuit court denied the

petition, the inmate sought to appeal that decision. This Court held that the circuit court’s

decision was not appealable, either as a final judgment or under the collateral order

doctrine, largely on the basis that such a petition could be repeatedly filed under the statute



       16
          The bill was introduced at the request of the Maryland Judiciary to reduce the
number of frivolous appeals in the Court of Special Appeals. See Memorandum of George
B. Riggin, Jr., State Court Administrator and Executive Secretary, Maryland Judicial
Conference, to Delegate John Arnick, Chair of House Judiciary Committee (January 25,
1991) (requesting assistance in introducing certain bills on behalf of the Judicial
Conference, including a proposal to prohibit appeals as of right from probation revocation
orders and stating that the purpose of the bill is to reduce the number of frivolous appeals,
while permitting meritorious appeals to be heard). The stated purpose of the bill was
reiterated in the Senate Floor Report. See Senate Floor Report for House Bill 988 (1991).
The bill was enacted without amendment. In a bill review letter to the Governor, the
Attorney General concluded that this restriction on the existing right of appeal was
constitutional because there is no “fundamental right” to an appeal under Maryland law
and that a limitation of a probationer’s right to appeal did not offend due process rights.
Letter of Attorney General J. Joseph Curran, Jr. to Governor William Donald Schaefer re
House Bills 929 and 988 (April 18, 1991).


                                              22
– thereby rendering a denial non-final – and that the Legislature had not provided for an

appeal from a denial in that statute. The State attempts to draw an analogy of the statute in

Fuller to Rule 16-207, which also contains no reference to an appeal. Of course, there is a

critical difference between a statute – which may confer or restrict a right of appeal – and

a court rule which, although it can create an appellate process, cannot enlarge or reduce a

court’s appellate jurisdiction.

       We find neither position persuasive. As the Court of Special Appeals indicated, the

right to file an application or leave to appeal under CJ §12-302(g) seems a “better fit” for

these cases. 232 Md. App. at 501-2. In our view, the sanction of immediate incarceration

equates to a partial revocation of probation.17 Defendants such as Ms. Brookman and Mr.

Carnes participate in the drug court program as a condition of probation following an

adjudication of guilt – in their cases, as a result of a guilty plea. Apart from setting

conditions of release, imposing sentence, or exercising its contempt power (which is not

implicated in these cases), the Circuit Court has no free-floating power to incarcerate – or

to require an individual to participate in a drug program. The imposition of the sanction of

incarceration is rooted in the court’s authority to revoke probation and require a defendant

to serve a suspended sentence of imprisonment. See DiMeglio v. State, 201 Md. App. 287,

305 (2011) (equating sanction imposed under drug court program with sanction for

violation of probation in the context of considering alleged double jeopardy issue). Rule


       17
          Although Ms. Brookman and Mr. Carnes both received sanctions of overnight
incarceration, as indicated earlier, the program materials indicate that sanctions may
include longer periods of incarceration of unspecified length.



                                             23
16-207 recognizes the relationship between a suspended sentence of imprisonment and a

program sanction of incarceration by providing for credit against any period of

imprisonment to be served by a participant who is terminated from a program. Maryland

Rule 16-207(g).

       Finally, we note that, when this Court upheld the fundamental jurisdiction of a

circuit court implementing a drug court program in Brown, supra, it relied on the fact that

the “drug court” was in essence a division of the circuit court and that any alleged violations

of constitutional guarantees in that court could be resolved through the usual mechanisms

of appellate review and prerogative writs. While the Brown court did not delve into the

precise scope of appellate jurisdiction, its rejection of a constitutional challenge to a drug

court program was premised on the availability of the “usual mechanisms” of appellate

review.18

       Thus, we agree with the Court of Special Appeals that, to the extent that appellate

review of a sanction under a drug court program is available, it must be pursued by

application for leave to appeal pursuant to CJ §12-302(g). We hold that such an application




       18
          The Dissenting Opinion suggests that the reference in Brown to appellate review
as a mechanism for correcting violations of a defendant’s rights by a problem-solving court
was dicta. Dissenting slip op. at 17-18 n.12. However, the statement that “well-developed
mechanisms” such as appellate review would be available to correct errors of a problem-
solving court was part of the Brown Court’s reasoning that a circuit court administering a
drug court program has fundamental jurisdiction. It was therefore integral to its holding,
as the final paragraph of that section of the Brown opinion demonstrates. See Brown, 409
Md. at 9.


                                              24
may be filed when a Circuit Court imposes a sanction of immediate incarceration pursuant

to a drug court program that a defendant participates in as a condition of probation.19

B.     Whether Hearings Conducted by the Circuit Court Complied with the
       Requirements of Due Process

       Respondents assert that the hearings at which they were sanctioned in the Circuit

Court violated their due process rights in two ways: (1) the court concluded that they had

committed a violation without permitting them to contest the fact of a violation and (2) the

court imposed a pre-fixed sanction from the sanctions menu without considering their

individual circumstances.

       As this Court recognized in Brown, supra, a drug court program like the

Montgomery County Adult Drug Court is essentially a division of the circuit court. Its

coercive powers, such as its power to incarcerate, derive from powers a circuit court has

under the criminal law. Those powers must be exercised in accordance with due process.

The drug court program of the Circuit Court is rooted in that court’s authority to set

conditions of probation. Both Ms. Brookman and Mr. Carnes were adjudicated guilty of

criminal charges as a result of guilty pleas. In both cases the Circuit Court imposed a

sentence that included a period of probation. A special condition of that probation – set



       19
          The Court of Special Appeals also held that a defendant whose participation in
the program is extended also has a right to file an application for leave to appeal. We
decline to adopt that holding, at least in regards to these cases. As best we can tell from
the program materials, there is no pre-ordained length of time for participation in the
Montgomery County Adult Drug Court Program. Participation would not extend beyond
the period of probation, unless probation was modified or revoked, which may itself trigger
appellate rights.



                                            25
only after the court had determined that they were eligible for the drug court program –

was that they successfully complete the drug court program. 20 It was similar to other

conditions of probation in requiring the defendant to participate in a program designed to

alleviate a root cause of their criminal activity. It was different from other programs in that

the drug court program operates under the auspices and authority of the Circuit Court in

accordance with Maryland Rule 16-207. That difference means that the program has the

advantage of employing judicial powers to accomplish its ends; it also means that those

powers must be employed in accordance with the constraints set by rule, statute, and

constitution.

       Because a revocation of probation may result in a loss of liberty, due process

requires that an individual on probation have an opportunity for a hearing having certain

components before the probation is revoked. Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973); cf. Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation hearing must

satisfy certain standards of due process). In particular, the minimum requirements for a

hearing concerning revocation of probation must include at least the following elements:

(1) written notice of the alleged violation; (2) disclosure of the evidence on which the

alleged violation is based; (3) an opportunity to be heard and to present witnesses and

documentary evidence; (4) an opportunity to confront and cross-examine adverse


       20
           The record before us does not contain an executed copy of a “Drug Court
Agreement” for either Ms. Brookman or Mr. Carnes. Moreover, there is no indication – at
least in the transcripts of hearings in this record – that either of them was examined by the
Circuit Court concerning their understanding of the agreement as a condition of acceptance
into the program, as contemplated by Maryland Rule 16-207(e).



                                              26
witnesses. Gagnon, 411 U.S. at 786; see also Maryland Rule 4-347(e) (incorporating due

process requirements in rule governing hearings on revocation of probation).

       These protections are necessary because, as the Supreme Court explained: “Both

the probationer … and the State have interests in the accurate finding of fact and the

informed use of discretion – the probationer … to insure that his liberty is not unjustifiably

taken away and the State to make certain that it is neither unnecessarily interrupting a

successful effort at rehabilitation nor imprudently prejudicing the safety of the

community.” Gagnon, 411 U.S. at 785. As Respondents concede, due process does not

require that such a hearing be conducted under the formal rules of evidence.

       Rule 16-207 recognizes the need to provide such due process protections when a

sanction imposed as part of a drug court program threatens a loss of liberty. The rule

provides, in pertinent part:

       …if the participant is considered for the imposition of a sanction involving
       the loss of liberty or termination from the program, the participant shall be
       afforded notice, an opportunity to be heard, and the right to be represented
       by an attorney before the court makes its decision.

Maryland Rule 16-207(f).21 The rule goes on to provide that, in the case of a criminal

defendant who appears without counsel at such a hearing, the court is to follow the

procedures set forth in Maryland Rule 4-215 for appointing, or finding a waiver of, counsel.




       21
          As noted earlier, this language is identical to what appeared in former Rule 16-
206(e), at the time of the hearings in Respondents’ cases, except that the former rule used
the term “counsel” instead of “attorney.”



                                             27
This provision is thus clearly applicable when a court considers the imposition of a sanction

of incarceration in a drug court program.

       As noted earlier, the “Drug Court Agreement” used in the Circuit Court’s program

implicitly promises a participant the right to a “formal adversarial hearing” before the

imposition of a sanction of incarceration or termination from the program. The “formal

adversarial hearing” is not described elsewhere in the program materials and it is not clear

how such a hearing differs from a typical status review hearing under the program.

Presumably it encompasses at least the advance notice, the opportunity to be heard, and the

assistance of counsel required by Maryland Rule 16-407(f).

       Our review of the transcripts of the sanction hearings in these cases reveals that they

were adversarial in some sense. Although the prosecutors and defense counsel may have

been considered members of the same drug court “team,” they certainly expressed

opposing views concerning the process to be followed at the hearings and the sanctions to

be imposed.     In addition, in both cases there was notice of the alleged violation,

representation by counsel, and an opportunity for the participant or counsel to present his

or her position to the Circuit Court concerning the alleged violation and proposed sanction.

       In our view, however, the hearings fell short of the requirements of due process. An

“opportunity to be heard” is meaningless if the result is pre-ordained regardless of what the

decision maker hears. As the Supreme Court explained, due process advances the interests

in accurate factfinding and “the informed use of [judicial] discretion.” In these cases, the

Circuit Court, undoubtedly motivated by a desire to uphold the protocols of the program,

in one case did not consider a request to contest the accuracy of the fact of a violation and,


                                             28
in the other, disclaimed “the informed use of [judicial] discretion” in determining the

sanction.

       In Ms. Brookman’s case, the Circuit Court essentially assumed that the factual

predicate of a program violation was met and allowed no opportunity for Ms. Brookman’s

counsel to review the urinalysis test result with an expert and possibly present evidence

negating the finding of a program violation before it imposed a sanction of incarceration.

It might well be that the court, after giving Ms. Brookman’s counsel such an opportunity

and considering whatever evidence or argument Ms. Brookman ultimately provided, would

still have concluded that the test result was sufficiently indicative of an effort to evade the

urinalysis test. But counsel was entitled to an opportunity to change the judicial mind and

persuade it that scientific evidence would bear on the court’s decision. This is not to say

that someone in Ms. Brookman’s position would always be entitled to a postponement or

to present any evidence that participant desired. But, in Ms. Brookman’s case, the court

never addressed her request at all, but proceeded directly to imposing sanctions.

       Mr. Carnes’ case is less problematic in that respect, as the process by which the

factual predicate was established was as favorable to him as he could expect. 22 While the

Circuit Court did not require the State to formally present evidence that Mr. Carnes had

failed to appear for a random urinalysis on February 17, his absence from the testing facility

on that date was uncontested and could likely have been proven through documentary


       22
          We note, however, that the court began the hearing by announcing that the
purpose of the proceeding was “imposition of a sanction,” and also declared that there was
no need for the State to present any evidence, thus leaping over the need to find a predicate
violation. In another case, with contested facts, this would be problematic.


                                              29
evidence from the testing facility. The court permitted Mr. Carnes’ counsel to proffer his

mitigating evidence without subjecting Mr. Carnes to cross-examination. He could hardly

have hoped for more favorable presentation of the factual predicate at a full-blown mini-

trial.

         The problem in Mr. Carnes’ case was that the Circuit Court appeared to believe that

the program had relieved the court of its discretion to take into account those mitigating

circumstances and to refrain from incarcerating Mr. Carnes. A judge who presides over a

drug court program may be a “team member,” but the judge does not relinquish the

discretion conferred on judges by statute and rule to the program’s sanctions menu. This

is not to say that the court should have imposed a different sanction or no sanction – just

that it failed to recognize that it had those options.

C.       Whether the Therapeutic Benefits of a Drug Court Program Justify a Limit on
         Due Process Protections and Appellate Rights

         The Dissenting Opinion discounts the requirements of due process and appellate

rights in light of the potential therapeutic aspects of the drug court program.23 The


         23
         The Dissenting Opinion includes a number of quotations from the minutes of
January 8, 2010 meeting of the Rules Committee. Most of those quotations – actually
paraphrases of what was said – are not statements of the Rules Committee itself, or even
members of the Committee, but of others in attendance at that meeting. Most of the
discussion at that meeting concerned whether a prospective participant in a drug court
program would receive adequate notice of the right to counsel and of the program’s
requirements and sanctions. The proponents stated that those concerns would be alleviated
by having a participant execute a written agreement and by a detailed on-the-record litany
between the court and the participant – neither of which appears in the record of the cases
before us.

       None of the discussion at the January 8, 2010 Rules Committee meeting concerned
the appealability of intermediate sanctions – unsurprising as a court rule cannot expand or


                                               30
Dissenting Opinion does not indicate what, if any, limits it would place on the authority of

a trial court to use incarceration as an intermediate sanction in a drug court program without

the possibility of appellate review. Although the Petitioners in these cases suffered only

overnight incarceration, the sanctions menu provides for longer periods of incarceration

(“Thursday-Sunday” and “increased length of time in jail”). The Dissenting Opinion

suggests no standard for any limits on the use of jail as an intermediate sanction – three

days? one week? What if the judge presiding over the drug court program decides that it

is in the participant’s therapeutic interest to be jailed for a month to avoid bad influences

on the street? The Dissenting Opinion would not preclude such a sanction. And if the

court neglects to hold the hearing required by Rule 16-207 or otherwise violates the due

process rights of the participant in the course of ordering incarceration, that error would




reduce appellate jurisdiction. Interestingly, however, there was some discussion of when
a participant would be entitled to a due process hearing. The version of the rule that was
under consideration for most of the meeting provided for a hearing prior to termination
from a program, but not when an intermediate sanction was proposed. Rules Committee
Minutes (January 8, 2010) at pp. 39-42 (draft of proposed rule). Toward the end of the
discussion, the Public Defender urged the Committee to also provide for a due process
hearing when a sanction of incarceration was proposed so that, when a participant disputes
the violation, “they can challenge the factual nature of the allegation that a violation has
occurred.” The Committee did so in its final version of the proposed rule. Id. at pp. 104-
7 (amended proposed rule). This Court later adopted that proposal, including the hearing
requirement that now appears in Maryland Rule 16-207(f).

       Of course, none of the Committee minutes were before this Court when it adopted
the rule, so they are not conclusive as to the Court’s intent. However, it appears that, when
it proposed a due process hearing for an intermediate sanction of incarceration, the Rules
Committee did so with the understanding that “the factual nature of the allegation” could
be challenged at that hearing.



                                             31
escape review because, under the Dissenting Opinion’s approach, the imposition of such a

sanction is not appealable, unless the court later revoked probation.24

       A recent federal appellate court decision demonstrates that these concerns are not

theoretical. See Hoffman v. Knoebel, ___ F.3d ___ (7th Cir. July 3, 2018), 2018 WL

3233546. That case concerned a drug court program administered by an Indiana state trial

court. As recounted in that decision, the basic parameters of the drug court program were

similar to those of the Montgomery County Adult Drug Court. 2018 WL 3233546 at *1-

2. The program allowed for the “drug court” to impose various types of intermediate

sanctions to encourage compliance with the program requirements. Id. Indiana law

provided specific due process protections if incarceration were contemplated as an

intermediate sanction – protections that were spelled out in greater detail than in our Rule

16-207.25 Id. at *3.

       Beginning in 2012, however, the program, in the words of the Seventh Circuit,

“went seriously awry.” Id. at *2. Participants were jailed as an intermediate sanction for

as long as 220 days, and sanctions were imposed without the due process protections


       24
           The Dissenting Opinion states in a couple instances that its position is that an
intermediate sanction of incarceration is not “immediately” appealable. See Dissenting slip
op. at 9, 13. However, as the Dissenting Opinion ultimately appears to concede, what it is
really saying is that such a sanction is not appealable at all, unless the court later happens
to revoke probation. Id. at 13-14 & n.8. Of course, that is an event that may never happen
or that may happen for reasons completely unrelated to the incarceration of the participant.
       25
          The pertinent Indiana statute required that, before sanctions were imposed, a
participant had to be given written notice, disclosure of the evidence against him or her,
the opportunity to confront and cross-examine witnesses, and assistance of counsel. 2018
WL 3233546 at *3.



                                             32
specified by state law. When the abuses came to light and a number of the participants

filed a federal civil rights class action, the Indiana Supreme Court shut down the drug court

program. Id. at *1. Had an appeal process been in place to review alleged violations of

the due process rights of participants as they occurred, it seems unlikely that the drug court

program would have proceeded that far off the rails.

       The plaintiffs in Hoffman had been jailed for lengthy periods for a variety of

violations of the drug court program – failed or diluted drug tests, missed status hearings,

and instances of drug or alcohol use – without the benefit of due process. Id. at *3. The

federal district court characterized it as a “wholly indefensible system.” Id. The Seventh

Circuit concluded that “[w]e have no doubt that the plaintiffs’ constitutional rights were

violated during their time as participants in the [drug court program].” Id. at *7. However,

it held that the particular defendants in the case – a case manager, a probation officer, a

court bailiff, and the sheriff’s department – had no supervisory authority over the judge in

charge of the drug court program and, in part for that reason, were not responsible for the

plaintiffs’ constitutional injuries. Id. at *3-6.

       We may be heartened that, so far as we know, nothing like the Indiana experience

recounted in Hoffman has happened in problem-solving courts in Maryland. But the lesson

from the Indiana experience is that the promise of due process protections in a rule or

statute may be of little comfort without the availability of an appellate process to review




                                               33
whether that promise is kept. As this Court noted in Brown, Maryland law provides such

a process.26

                                            III

                                       Conclusion

       For the reasons set forth above, we hold:

       (1)     When a Circuit Court administering a drug court program under Maryland

Rule 16-207 imposes an immediate sanction of incarceration for a program violation by a

participant, the participant may seek appellate review of that decision by filing an

application for leave to appeal.

       (2)     When a Circuit Court administering a drug court program under Maryland

Rule 16-207 considers the imposition of a sanction involving the loss of liberty or

termination from the program, it must provide certain minimum due process protections as

set forth in Rule 16-207(f), including notice, an opportunity to be heard, and the right to

representation by counsel. The constitutional guarantee of procedural due process also

requires that a defendant have the opportunity to confront and contest adverse evidence



       26
          The Dissenting Opinion suggests that the right to file an application for leave to
appeal from an intermediate sanction of incarceration is not “practical” because, in many
of these cases, the issue may be moot by the time an appellate court issues a decision.
Dissenting slip op. at 10-12. There are at least two answers to that objection. First, we
believe that the judges who administer these programs wish to do so for the benefit of the
participants in compliance with State and constitutional law. We are not so cynical to
assume that they will ignore guidance from the appellate courts on the requirements of due
process, even if it is too late to apply in a particular case. Second, to the extent that a
situation arises similar to that in the Indiana case, it can be limited before serious
constitutional injuries occur.



                                            34
and the opportunity to have the court consider factors that mitigate against a sanction of

incarceration in the particular case.



                                         JUDGMENT OF THE COURT OF SPECIAL
                                         APPEALS AFFIRMED. COSTS TO BE PAID BY
                                         MONTGOMERY COUNTY.




                                           35
Circuit Court for Montgomery County
Case No. 121215C / 124172C
Argued: January 5, 2018


                                             IN THE COURT OF APPEALS
                                                  OF MARYLAND

                                                            No. 29

                                                 September Term, 2017


                                                STATE OF MARYLAND

                                                              v.

                                                CRYSTAL BROOKMAN


                                                STATE OF MARYLAND

                                                              v.

                                              MARVIN RANDY CARNES


                                            Barbera, C.J.
                                            Greene,
                                            Adkins,
                                            McDonald,
                                            Watts,
                                            Hotten,
                                            Getty,

                                                             JJ.


                                      Concurring Opinion by Getty, J., which Hotten,
                                                        J. joins.


                                            Filed: July 31, 2018
       Respectfully, I concur with the judgment of the Majority, but write separately to set

forth my view of the required procedural due process in drug court proceedings. The

majority opinion concludes that the proceedings in these two cases fell short of the required

due process protections, comparing drug court to a revocation of parole or probation. In

contrast, the dissent opines that the proceedings below complied with due process because

the drug court participants were afforded the limited protections outlined in Maryland Rule

16-207(f). However, in my view, this Court should rely on the significant and long-

standing jurisprudence that due process protections are based on the specific circumstances

of the proceeding.

       In Morrissey v. Brewer, the Supreme Court analyzed whether due process

protections apply in parole revocations. 408 U.S. 471 (1972). Pertinent to the issue before

this Court, the Supreme Court stated that the “question is not merely the ‘weight’ of the

individual’s interest, but whether the nature of the interest is one within the contemplation

of the ‘liberty or property’ language of the Fourteenth Amendment.” Id. at 481. The

Supreme Court further explained that “[o]nce it is determined that due process applies, the

question remains what process is due. It has been said so often by this Court and others as

not to require citation of authority that due process is flexible and calls for such procedural

protections as the particular situation demands.” Id. (Emphasis added). Pursuant to that

principle, the Supreme Court considered the interests of the State in revocation of parole,

the stages of the parole revocation, and the nature of revocation of parole proceedings.

Ultimately, the Supreme Court held that the minimum requirements for due process in the

context of revocation of probation include: (1) written notice of the claimed violations of
parole; (2) disclosure to the parolee of evidence against him; (3) opportunity to be heard in

person and present witnesses and evidence; (4) a neutral and detached hearing body; and

(5) a written statement of evidence and reasoning by the factfinders. Id. at 488–489.

       I agree with the majority that certain drug court sanctions, including incarceration

and termination from the program, deprives drug court participants of liberty and property

interests protected by the Fourteenth Amendment. However, I disagree that this Court

should require the same due process protections for Maryland drug court as the Supreme

Court found applicable to revocation of parole or probation.

       Maryland has similarly held that “[n]o particular procedure is required in all cases.

‘On the contrary, due process is flexible and calls only for such procedural protections as

the particular situation demands. Procedures adequate under one set of facts may not be

sufficient in a different situation.’” Miserandino v. Resort Properties, Inc., 345 Md. 43, 52

(1997) (emphasis added) (quoting Department of Transportation v. Armacost, 299 Md.

392, 416 (1984)). This Court has further indicated that the “minimum requirements of

procedural due process are ‘notice and opportunity for hearing appropriate to the nature of

the case.’” State v. Cates, 417 Md. 678, 698 (2011) (quoting Canaj, Inc. v. Baker & Div.

Phase III, 391 Md. 374, 424 (2006)).

       Just as this Court has determined notice and an opportunity to be heard constitute

the minimum due process protections in a majority of circumstances, the Rules Committee

similarly concluded that the minimum due process protections for drug court sanctions

involving loss of liberty or termination include “notice, an opportunity to be heard, and the

right to be represented by an attorney before the court makes its decision.” Md. Rule 16-

                                             2
207(f). However, this does not necessarily end the due process analysis. Instead, a drug

court judge should also consider the unique characteristics of these problem-solving courts

as well as the specific circumstances of the individual proceeding to determine whether

additional due process protections should be afforded to the participant.

       First and foremost, a drug court judge cannot ignore that participation in drug court

is voluntary. Specifically, Maryland Rule 16-207(e) requires a defendant to sign a written

agreement under which he or she commits to the drug court program requirements,

protocols, possible sanctions, and any waived rights. A defendant is also able to obtain

advice of counsel before entering into the drug court agreement. See Md. Rule 16-

207(e)(1). Furthermore, a drug court is also required to examine the prospective participant

on the record in order to confirm that the defendant understands the agreement and is

knowingly and voluntarily entering into the drug court participation agreement. Md. Rule

16-207(e)(2). A drug court participant is also free to voluntarily leave the drug court

treatment program, resulting in an automatic violation of probation. Therefore, it is

ultimately the defendant’s choice whether or not to participate in a Maryland drug court

treatment program and to accept all of the possible sanctions of that program. The

voluntary nature of drug court should most certainly be a factor in the procedural due

process analysis.

       When a defendant chooses to sign the drug court written agreement, the participant

must specifically acknowledge and agree to two pertinent characteristics of drug court: (1)

the program is a non-adversarial and collaborative treatment approach; and (2) the program



                                             3
permits immediate sanctions for lack of compliance with the program. These features will

also be an important factor in the drug court judge’s due process protections analysis.

       These problem-solving courts employ a “team” approach in which the judge,

prosecuting attorney, defense counsel, drug court case manager, probation officer, and

counselors work together as a team rather than in their traditional roles of the adversary

system. See Andrew Fulkerson, How Much Process is Due in the Drug Court?, 48 CRIM.

LAW BULLETIN 655, 658 (2012). This collaborative nature often involves meetings

between drug court judges, the prosecuting attorney, defense counsel, and other team

members prior to status review hearings in order to determine what sanction will be

appropriate for certain participants and certain violations.     Both of the drug court

participants in the cases before this Court participated in the Montgomery County Drug

Court. The drug court handbook for the Circuit Court for Montgomery County, which both

Ms. Brookman and Mr. Carnes agreed to review under the terms of their participation

agreement, outlines that the “Drug Court Team will discuss the mandatory sanction to be

imposed for non-compliance, emphasizing a team, rather than an adversarial process.”

       On the one hand, a drug court judge may very well find that this collaborative

approach weighs in favor of less procedural due process protections because the drug court

participant knew and accepted this characteristic of the program. On the other hand, when

a drug court judge learns of evidence that the team did not know or discuss prior to the

status review hearing, the judge may conclude that more procedural due process protections

are appropriate.



                                             4
       The Circuit Court for Montgomery County drug court handbook also specifically

emphasizes the need for sanctions to be imposed in a rapid and swift fashion in order to

provide an incentive for drug court participants to modify negative behaviors. Indeed, as

the dissent properly highlights, these problem-solving courts are successful in large part

due to the potential for immediate consequences as a result of noncompliance. See Md.

Rule 16-207(f). The need for an immediate sanction to preserve the effectiveness of the

drug court as well as the fact that the participant knew and agreed to swift sanctions will

likely weigh against additional procedural due process protections.

       In addition to the overall characteristics of these problem-solving courts, a drug

court judge should also consider the specific circumstances of the proceeding to determine

if more procedural due process than the minimum under Maryland Rule 16-207(f) is

required. For example, if the drug court team becomes aware that a certain participant

violated the program for the first time and the prosecuting attorney requests a sanction of

three nights of incarceration or termination from the program, a drug court judge may very

well find it necessary to afford the drug court participant: notice; an opportunity to

postpone the hearing; an opportunity to create a strategy of defense with counsel; an

opportunity to obtain more evidence; an opportunity to present documents as evidence;

and, an opportunity to call witnesses. In the alternative, if the proposed drug court sanction

is simply overnight incarceration for a third-time violator, a drug court judge may find it

prudent simply to provide the participant with notice, an opportunity to explain himself or

herself, as well as an opportunity to be represented by counsel during the short hearing.

Just as in all procedural due process analyses, the drug court should be given the chance to

                                              5
consider the specific circumstances of the case and determine the appropriate due process

protections.

       Ultimately, I agree with the majority that the proceedings in the two cases below

fell short of the minimum due process protections outlined in Maryland Rule 16-207(f).

However, I emphasize that the required procedural due process for drug courts should not

be viewed under the lens of a different type of proceeding. It would be illogical to require

drug court judges and drug court teams on the front line of the battle against the opioid

crisis in this State to meet the same procedural due process requirements for revocation of

parole, which results from a violation of mandatory parole conditions.

       Instead, the voluntary, collaborative, and swift nature of the drug court treatment

program will be an inherent consideration for a drug court judge faced with the question of

what procedural due process is required. Drug court judges should also be granted

deference to determine what if any additional due process protections beyond the minimum

afforded under Maryland Rule 16-207(f) are appropriate given the circumstances of the

specific proceeding, including the alleged violation, the proposed sanction, and the drug

court participant’s history in the program.

       The majority is also correct in holding that drug court participants have the right to

file an application for leave to appeal after a drug court judge imposes a sanction of

immediate incarceration. A drug court judge’s analysis of the required procedural due

process prior to the imposition of certain sanctions would be rendered unreviewable if there

was no right to file an application for leave to appeal. Indeed, the Court of Special Appeals

can deny a drug court participant’s appeal application if that court believes the drug court

                                              6
judge properly applied the minimum procedural due process requirements under Maryland

Rule 16-207(f) and correctly determined whether additional due process protections were

necessary.

      Judge Hotten has authorized me to state that she joins this concurring opinion.




                                           7
Circuit Court for Montgomery County
Case No. 121215C                             IN THE COURT OF APPEALS
Case No. 124172C
Argued: January 5, 2018                             OF MARYLAND

                                                             No. 29

                                                September Term, 2017
                                      ______________________________________

                                                STATE OF MARYLAND

                                                               v.
                                                CRYSTAL BROOKMAN
                                                   _____________

                                                STATE OF MARYLAND

                                                               v.

                                              MARVIN RANDY CARNES


                                            Barbera, C.J.,
                                            Greene,
                                            Adkins,
                                            McDonald,
                                            Watts,
                                            Hotten,
                                            Getty,

                                                        JJ.
                                      ______________________________________

                                         Dissenting Opinion by Greene, J., which
                                               Adkins and Watts, JJ., join.
                                      ______________________________________

                                            Filed: July 31, 2018
       Respectfully, I dissent. Although this case presents to the Court the issue of due

process, the question at the heart of this case is how much process is due to participants in

diversionary proceedings related to substance abuse rehabilitation. Crystal Brookman and

Marvin Randy Carnes (collectively “Respondents”) pleaded guilty to criminal charges

brought against them in the Circuit Court for Montgomery County. As a part of their

probation, Respondents qualified for the Montgomery County Adult Drug Court program

(“Drug Court”), and Respondents agreed to successfully complete that program as a

condition of their probation. In 2016, Respondents failed to comply with the requirements

of Drug Court, and, following hearings on the alleged infractions, the judges who presided

over their respective cases, pursuant to the internal administrative sanctions of the program,

imposed negative sanctions in each case which resulted in a brief period of incarceration.

Neither participant of the program was discharged from the program nor charged with a

violation of probation at that time. After Respondents filed applications for leave to appeal,

the Court of Special Appeals consolidated their cases. The intermediate appellate court

held that Respondents were entitled to appeal the sanction of incarceration and that

Respondents were denied due process during their hearings in Drug Court. The State

sought review of the decision of the Court of Special Appeals, and we granted certiorari.

       The Majority Opinion in this case affirms the judgment of the Court of Special

Appeals and treats the sanction of immediate incarceration as “a partial revocation of

probation.” See slip op. at 22. According to the Majority Opinion, a defendant in the Drug

Court program may file an application for leave to appeal because the imposition of a

partial revocation of probation should be treated the same as complete revocation of
probation. See id. In the Majority’s view, because partial and complete revocation of

probation are equivalent, the circumstances demand the application of due process

protections, including written notice, disclosure of the evidence, an opportunity to be heard,

and an opportunity to confront and cross-examine adverse witnesses, to proceedings in

which the sanction of incarceration is a possible outcome. See id. at 25.

       I disagree for two reasons. First, the therapeutic nature and purpose of Drug Court

proceedings are dependent on the ability of the Drug Court to issue immediate sanctions to

the participants for infractions of the program’s protocols. Second, in the case before us,

Respondents were afforded due process protections, as required under the Maryland Rules.

       Drug Court is a diversionary program, a distinct track from the normal flow of

criminal cases in the trial courts and is separate from probation. Upon entering the

Montgomery County Adult Drug Court program as a condition of probation, a defendant

receives an explanation of, and agrees to, the requirements of Drug Court as well as the

possible sanctions for non-compliant conduct. Although the completion of probation may

require graduation from Drug Court, that program and its requirements are distinct from

supervised probation. Non-compliance with Drug Court protocols may result in sanctions,

but the imposition of sanctions does not automatically result in any, partial or complete,

violation of probation. The distinct nature of Drug Court, i.e., the expectation that

participants will violate the protocols, militates in favor of treating Drug Court procedures

differently than a violation or revocation of probation. Therefore, in my view, defendants

are not entitled to immediately file for leave to appeal the negative sanctions imposed for

non-compliance with the program’s protocols. The Court of Special Appeals, as a result,

                                              2
did not have jurisdiction to hear Respondents’ cases. Respondents suffered neither a

termination from the Drug Court program, nor a violation of probation resulting from the

imposition of a negative sanction. These cases lacked the finality necessary for a proper

appeal. Lastly, the Maryland Rules outline the appropriate amount of process due to

participants in Drug Court, and Respondents received that process as required by our Rules.

Today, the Majority Opinion risks diluting the effectiveness of drug court programs in

Maryland by removing the threat of the immediate sanction of incarceration, a sanction this

Court contemplated as a necessary incentive in the rehabilitative process.

                                      Ms. Brookman

       Crystal Brookman pleaded guilty to theft in the District Court of Maryland for

Montgomery County in August 2012. After she was sentenced in that court, she appealed

to the Circuit Court for Montgomery County, where she, again, pleaded guilty to theft. The

Circuit Court placed her on probation. In December 2013, Ms. Brookman violated the

terms of her probation. As a result, the Circuit Court required Ms. Brookman to complete

the Montgomery County Drug Court program as a condition of continuing her probation.

In February 2016, Ms. Brookman tested positive for low creatinine,1 and she received two

days’ advanced notice of a status conference concerning her test results. At the hearing,

the judge recognized that this test was the second time that Ms. Brookman had tested for

low creatinine levels. By that time in February 2016, Ms. Brookman had advanced to the

third phase of Drug Court, and in this phase, a second such violation was treated as a


1
 Low creatinine is an indication that a person subjected to a drug test may be diluting their
urine by consuming excess water to skew the result away from a positive drug test.
                                             3
positive test result for drugs. The hearing judge sanctioned Ms. Brookman by regressing

her to the second phase of Drug Court, a penalty which would delay her graduation from

the program. Additionally, the hearing judge sanctioned her by imposing a requirement of

sixty support group meetings in sixty days and a single night of incarceration. In closing

remarks, Ms. Brookman’s attorney noted her belief that the hearing judge’s failure to

continue proceedings pending an opportunity for Ms. Brookman to hire an expert to

determine if her results fell within a margin of error for the permissible creatinine level

violated Ms. Brookman’s due process rights. Following the hearing, Ms. Brookman filed

an application for leave to appeal.

                                         Mr. Carnes

       Marvin Randall Carnes pleaded guilty in the Circuit Court for Montgomery County

to theft under $10,000 and credit card identity fraud in exchange for completion of Drug

Court in April 2014. Mr. Carnes complied with the program until February 2016. Mr.

Carnes was required to submit for urinalysis on February 17, 2016 but failed to do so until

February 18. Mr. Carnes received a hearing regarding his alleged failure to appear for a

urinalysis on the date specified, February 17. At the compliance hearing, Mr. Carnes

asserted that the failure of the hearing judge to consider his circumstances, specifically that

his test was late and not missed, would result in a violation of his due process rights. Lastly,

Mr. Carnes requested to postpone his overnight incarceration, which the hearing judge

granted. Thereafter, the hearing judge ordered Mr. Carnes to overnight incarceration and

extended his time in the Drug Court program. Following the hearing, Mr. Carnes filed an

application for leave to appeal.

                                               4
                               The Court of Special Appeals

       The Court of Special Appeals consolidated Ms. Brookman’s and Mr. Carnes’s

appeals and vacated the sanctions imposed in their cases. Brookman v. State, 232 Md. App.

489, 158 A.3d 1099 (2017). Relying on DiMeglio v. State, 201 Md. App. 287, 305, 29

A.3d 663, 673 (2011), the Court of Special Appeals equated a violation of probation with

the imposition of a sanction in Drug Court. Id. at 502, 158 A.3d at 1107. As a result, the

Court of Special Appeals reasoned that because a defendant has a right to appeal the

revocation of probation, a Drug Court participant likewise has a right to appeal a sanction

that results in a loss of liberty or extends the period of time in which the defendant must

participate in the program. Brookman, 232 Md. App. at 502, 158 A.3d at 1107. Therefore,

the intermediate appellate court held that Ms. Brookman and Mr. Carnes had the immediate

right to appeal their sanctions of incarceration. The Court of Special Appeals also held that

the proceedings in which Ms. Brookman and Mr. Carnes received their sanctions failed to

comply with Maryland Rule 16-206(e),2 and as a result both were denied due process. Id.

at 509, 510, 159 A.3d at 1111, 1112.


2
 Maryland Rule 16-207(f) superseded, without substantive alterations, Rule 16-206(e) in
2016. The portion of the Maryland Rules that address problem-solving courts moved from
16-206 to 16-207 after the resolution of Ms. Brookman’s and Mr. Carnes’ matters in the
Circuit Court. Rule 16-206(e) stated the following:
       In accordance with the protocols of the program, the court may, for good
       cause, impose an immediate sanction on a participant, except that if the
       participant is considered for the imposition of a sanction involving the loss
       of liberty or termination from the program, the participant shall be afforded
       notice, an opportunity to be heard, and the right to be represented by counsel
       before the court makes its decision. If a hearing is required by this section
                                                                      (continued . . .)

                                             5
                                   Problem-Solving Courts

       Problem-solving courts have been validated pursuant to the Maryland Rules. See

Maryland Rule 16-207. Rule 16-207(a)(1) explains that problem-solving courts “are

“specialized court docket[s] or program[s] that address[] matters under a court’s

jurisdiction through a multi-disciplinary and integrated approach incorporating

collaboration by the court with other governmental entities, community organizations, and

parties.” A prospective participant may only enter a problem-solving court program if the

record reflects that he or she “understands the agreement and knowingly and voluntarily

enters into the agreement.” Rule 16-207(e)(2). Additionally, the prospective participant

must execute a written agreement, which indicates “the requirements of the program,” the

particular “protocols of the program” with regard to permissible judicial conduct, the

possible “range of sanctions that may be imposed while the participant is in the program,”

as well as “any rights waived by the participant.” Maryland Rule 16-207(e)(1)(A)–(C).


(. . . continued)
         and the participant is unrepresented by counsel, the court shall comply with
         Rule 4-215 in a criminal action or Code, Courts Article, § 3-8A-20 in a
         delinquency action before holding the hearing.
Additionally, the successor Rule, Rule 16-207(f), states:
         If permitted by the program and in accordance with the protocols of the
         program, the court, for good cause, may impose an immediate sanction on a
         participant, except that if the participant is considered for the imposition of a
         sanction involving the loss of liberty or termination from the program, the
         participant shall be afforded notice, an opportunity to be heard, and the right
         to be represented by an attorney before the court makes its decision. If a
         hearing is required by section (f) of this Rule and the participant is not
         represented by an attorney, the court shall comply with Rule 4-215 in a
         criminal action or Code, Courts Article, § 3-8A-20 in a delinquency action
         before holding the hearing.

                                                6
These Rules seek to guarantee that a problem-solving court program is “transparent and

fully disclose[s] to all participants in a precise, detailed manner [the requirements of the

program],” thereby making “a written agreement [] necessary.”           Minutes, Standing

Committee on Rules of Practice and Procedure, January 9, 2010 at 46 (hereinafter “Rules

Committee Minutes”). Specifically, “as to whether it is clear that one of the outcomes

could be incarceration,” the Rules Committee considered the necessity that “it is absolutely

clear, and it has to be clearly spelled out.” Rules Committee Minutes at 48. The Rules

contemplate that “the concept of due process [] addresses knowledge and voluntariness of

actions,” and “if it has not been shown conclusively that [the agreement] meets all of the

requirements [of knowledge and voluntariness], then it is subject to attack[.]” Rules

Committee Minutes at 51-52. Therefore, the written agreement signed by participants prior

to entering a problem-solving court program must include the waiver of any rights,

consistent with the law, “including any rights under Rule 4-215 or Code, Courts Article, §

3-8A-20.”3 The Rules Committee recommended Rule 16-206 in January 2010, and we

adopted the Rule thereafter.

       Rule 16-207(f) calibrates the proper amount of due process balanced against the

need for immediate sanctions. As a condition of continued participation in Drug Court, a

defendant may receive an immediate sanction as a result of failure to adhere to protocols

of the Drug Court program. The Rule contemplates that a loss of liberty, or a period of




3
  Both Rule 4-215 and Code, Courts Article, § 3-8A-20 refer to the appropriate procedure
to waive the assistance of counsel.
                                             7
incarceration, may result from a sanction imposed in Drug Court. When drafting this rule,

the Rules Committee reflected upon the nature of problem-solving courts:

       The hallmark of problem-solving courts is immediate, swift, appropriate
       consequences for behavior. This can be positive incentives or negative
       sanctions. If the report indicates that the participant is using drugs and not
       attending treatment, the judge will take immediate action. Evidence shows
       that the immediacy is critical to positive change of behavior. It is no good
       for the judge to sanction someone weeks later. The literature suggests that
       immediacy compels the change of behavior.

Rules Committee Minutes at 66. With the possibility of immediate loss of liberty from the

negative sanction of incarceration in mind, this Court adopted Rule 16-206(e) and later

amended it to become, without substantive differences, Rule 16-207(f), which enumerates

the exact amount of process due to participants in problem-solving courts:

       If permitted by the program and in accordance with the protocols of the
       program, the court, for good cause, may impose an immediate sanction on a
       participant, except that if the participant is considered for the imposition of a
       sanction involving the loss of liberty or termination from the program, the
       participant shall be afforded notice, an opportunity to be heard, and the right
       to be represented by an attorney before the court makes its decision. If a
       hearing is required by section (f) of this Rule and the participant is not
       represented by an attorney, the court shall comply with Rule 4-215 in a
       criminal action or Code, Courts Article, § 3-8A-20 in a delinquency action
       before holding the hearing.

Maryland Rule 16-207(f). In other words, if a sanction involves the loss of liberty or

termination from the program, Rule 16-207(f) affords participants notice, an opportunity

to be heard, and the right to counsel prior to a decision by the problem-solving court.

                No Immediate Appellate Review of a Drug Court Sanction

       The Majority Opinion equates the immediate sanction of incarceration to a “partial

revocation of probation.” See slip op. at 22. By doing so, the Majority Opinion holds that


                                              8
because complete revocations of probation are appealable, partial revocations are also

appealable, and therefore when the Drug Court imposes a sanction of incarceration, a Drug

Court participant may immediately appeal that sanction by filing an application for leave

to appeal. See id.

       I would hold that a participant in a Drug Court program does not have the immediate

right to file an application for leave to appeal any sanction, whether or not there is a liberty

interest in question. The various provisions of the Maryland Rules do not provide for such

an immediate appeal, nor is an immediate appeal guaranteed by statute. Granting such a

right undermines the purpose and effectiveness of the immediate imposition of sanctions

contemplated by Rule 16-207(f).

       Drug Courts4 enter non-appealable interlocutory orders, not appealable final

judgments. Although Ms. Brookman and Mr. Carnes received immediate sanctions of

imprisonment, both continued in the Drug Court program uninterrupted. Their sanctions

did not result in a discharge from the program, and, therefore, did not lead to a violation of



4
  A Drug Court is not a court in the ordinary sense; it is a treatment program with judicial
oversight and collaborative involvement of all the parties. See Rules Commentary 45
(“The programs started out by being labeled ‘drug courts;’ however there are no such
‘courts’ in Maryland. These are programs that operate in the circuit courts and District
Court, both in the adult and the juvenile divisions. It is a mistake to call them ‘courts.’”);
see Dunson v. Commonwealth, 57 S.W.3d 847, 850 (Ky. 2001) (“[T]he ‘Drug Court’ is not
a ‘court’ in the jurisprudence sense; it is a drug treatment program administered by the
court system.”); State v. Jakubowski, 822 A.2d 1193, 1194 (Me. 2003) (“Drug court is not
a separate court, but a program within the Superior and District Courts in which heightened
judicial attention is given to defendants with substance abuse problems.”). When a
criminal defendant pleads guilty and accepts probation, and a condition of that probation
includes completion of a Drug Court program, defendants are diverted altogether from the
judicial system and instead enter into a rehabilitation program.
                                               9
probation or a change to the conditions of probation. See Russell v. State, 221 Md. App.

518, 526, 109 A.3d 1249, cert. granted, 443 Md. 234, 116 A.3d 474, appeal dismissed, 443

Md. 734, 118 A.3d 861 (2015) (holding that a modification to the conditions of probation

constitute final judgments and, therefore, are appealable). The Court of Special Appeals

determined as much in the case at bar. Brookman v. State, 232 Md. App. 489, 501, 503,

158 A.3d 1099, 1107 (“[W]e agree with the State that decisions to impose sanctions for

violations of the terms of the Drug Court program are not final judgments in the § 12-203

sense. . . . The Drug Court sanctions imposed in Ms. Brookman’s and Mr. Carnes’s cases

do not modify their individual conditions of probation—the sanctions are elements of the

overall program itself[.]”). There was no final judgment in these cases from which an

application for leave to appeal would have been proper, because there remained “further

action [] to be taken in the case.” See Seward v. State, 446 Md. 171, 179, 130 A.3d 478,

483 (2016) (explaining that the critical factor in defining a final judgment is “whether ‘any

further order is to be issued or whether any further action is to be taken in the case.’”).

Respondents remained in the Drug Court program, and their probations remained

unmodified. In my view, a final judgment would require the probation court to have found

Respondents in violation of their probation. That did not happen here. To permit the appeal

of each sanction that may arise during the Drug Court program would inundate the Court

of Special Appeals with piecemeal appeals from Drug Court programs. Such a policy

stands in stark contrast to our general disavowal of piecemeal appeals. See Smith v. Lead,

386 Md. 12, 25–26, 871 A.2d 545, 553 (2005) (identifying that the risks involved in



                                             10
piecemeal appeals includes “appellate court[s] do[ing] more to confuse than clarify

unresolved issues”).

       The Majority Opinion ignores the practical problems that piecemeal appeals create.

For example, if a participant in Drug Court appeals a sanction of incarceration and, pending

the appeal, is terminated from the treatment program, what relief can the Court of Special

Appeals grant to the participant? At that point, the issue has become moot. To take this

example one step further, what happens if, pending appeal of a sanction of incarceration, a

participant is terminated from the program because of multiple infractions, but then the

Court of Special Appeals determines that the participant did not commit any one of those

infractions? The defendant is no longer participating in the Drug Court program. Does the

Court of Special Appeals grant the participant readmission into Drug Court? Or, is the

imposition of sanctions for additional infractions stayed pending the appeal?

       To determine what happens to the participant while an appeal is pending, we need

look no further than the case sub judice. Both Ms. Brookman and Mr. Carnes served their

sentence of overnight incarceration prior to receiving a decision from the Court of Special

Appeals.5 This timeline illustrates the hollow nature of the solution suggested by the

Majority Opinion—the pace with which the Court of Special Appeals rules on applications




5
  Because Ms. Brookman and Mr. Carnes had already served their incarceration, the
decision of the Court of Special Appeals did nothing to afford any relief to Respondents.
Additionally, prior to our review of this case but after the decision of the Court of Special
Appeals, Ms. Brookman was terminated from Drug Court and Mr. Carnes completed Drug
Court. Therefore, there is no relief that either the Court of Special Appeals or this Court
could provide in this case.
                                             11
for leave to appeal offers nothing but a possible pyrrhic victory for participants. See slip

op. at 18.

       An alternate possibility is for the Drug Court to defer enforcement of the sanction

until after the Court of Special Appeals has ruled. Of course, this alternative would require

the Majority Opinion to institute a uniform policy of immediate appellate review of Drug

Court sanctions and require Drug Courts or the Court of Special Appeals to uniformly issue

stays of sanctions pending the outcome of appeals. Then, if the Court of Special Appeals

affirms the imposition of sanctions, the incarceration occurs months after the infraction,

and the sanctions lose any sense of immediacy and, thus, effectiveness. This process

functionally deprives Drug Courts of their ability to effectively sanction participants.6

Moreover, this delayed procedure abandons the wealth of research indicating the

importance of the immediacy of sanctions to the overall rehabilitative process of Drug

Courts.7

       An interpretation of Rule 16-207(f) that does not include immediate appellate

review is the correct interpretation because it conforms to the purpose underlying Rule 16-



6
  The Supreme Court of South Carolina feared the possibility of such judicial intervention
into their Drug Court programs. See State v. Perkins, 661 S.E.2d 366, 368 (S.C. 2008)
(explaining that permitting such review “would transform the Drug Court [p]rograms into
a judicially-supervised institution” which would ultimately undermine their rehabilitative
potential).
7
  Ms. Brookman’s and Mr. Carnes’ cases are not Eighth Amendment challenges to the
Drug Court sanction of immediate incarceration. Should a majority of this Court object to
the menu of sanctions available as part of the Drug Court, there is available a proper
procedural vehicle to amend Rule 16-207—through the Rules Committee.

                                             12
207(f).8 Drug courts arose in response to the spike in non-violent drug offenders in the

criminal justice system, and drug courts have been a resounding success in reducing drug

abuse as well as other crimes. Rossman et al., Urban Institute, The Multi-Site Adult Drug

Court Evaluation: Executive Summary 5 (2011), https://perma.cc/A7MZ-VKC6. Those in

attendance at the Standing Committee on Rules of Practice and Procedure meeting in

January of 2010 discussed the vast literature regarding the utility of drug courts and sought

to capture the therapeutic potential of these problem-solving courts. The Rules Committee

determined and recommended to this Court that problem-solving courts needed the

capacity to impose immediate sanctions, including the immediate sanction of incarceration

as well as termination from the program, to achieve their therapeutic purpose. The Rules

Committee based its recommendation, in part, upon commentary from the Honorable

Jamey H. Hueston9 of the District Court of Maryland for Baltimore City regarding the

literature, that the threat of immediate sanction is the “hallmark of problem-solving courts”

and that an immediate sanction is “critical to positive change of behavior.”           Rules




8
  It is not unusual in our system of justice for there to be no immediate right to appeal
sanctions imposed by a court. See Goodwich v. Nolan, 343 Md. 130, 141, 680 A.2d 1040,
1045 n.8 (1996) (holding sanctions for discovery violations are, typically, interlocutory);
Yamaner v. Orkin, 310 Md. 321, 322, 529 A.2d 361, 362 (1987) (recognizing that
sanctions for attorney’s fees imposed on a party’s counsel are interlocutory); Hurley v.
State, 59 Md. App. 323, 328, 475 A.2d 518, 520 (1984) (holding there is no right to appeal
a denial of bail).
9
 The Honorable Jamey H. Hueston served as a member of the Office of Problem-Solving
Courts Drug Court Oversight Committee at the time of the 2010 Standing Committee on
Rules of Practice and Procedure meeting.
                                             13
Committee Minutes at 66. “The literature suggests that immediacy compels the change of

behavior,” and, therefore, delay would dilute a drug court’s effectiveness. Id.

       I disagree that a Drug Court participant is entitled to the immediate right of appellate

review of sanctions. I do believe that participants may have the right to appellate review

after a probation court adjudicates a violation of probation based upon a defendant’s

participation in the Drug Court program. The appellate review is delayed in the sense that

any complaint with the Drug Court, procedural or otherwise, may be addressed at a

violation of probation hearing. The violation of probation hearing already, by its nature,

would provide Drug Court participants an opportunity for review. Only an adjudication of

a violation of probation or revocation of probation is final and is, thus, an appealable final

judgment. I would hold that only after such an adjudication or revocation of probation can

a Drug Court participant seek appellate review of the Drug Court proceedings. If a Drug

Court participant ultimately has his or her probation revoked, the participant will receive

credit for time served while under the authority of the Drug Court. Maryland Rule 16-

207(g). Of course, it may be the case that a Drug Court participant with an objection to a

decision by the Drug Court may not receive appellate review of decisions made by the

Drug Court if, ultimately, the probation court does not revoke his or her probation. Yet, it

is not unusual in our system of justice that a defendant is denied redress for a period of

incarceration.10


10
  Our system of bail exemplifies times when a defendant may face incarceration without
redress, immediately or otherwise. If a defendant does not obtain bail and spends time
incarcerated pre-trial, only to be found not guilty at a later date, the defendant receives
nothing in return for the time he or she spent incarcerated.
                                              14
               Sanctions in Drug Court as Compared to Revocations of Probation

       The Majority Opinion relies on a comparison between revocation of probation,

which requires due process protections, and the Drug Court-mandated sanction of

incarceration to show that the proceedings at which Ms. Brookman and Mr. Carnes

received their sanctions of incarceration violated procedural due process.11 See slip op. at

25. Accordingly, the Majority Opinion contends that because the immediate sanction of

incarceration is a partial revocation of probation, the sanction is reviewable under Section

12-302(g) of the Courts and Judicial Proceedings Article of the Maryland Code (1974,

2013 Repl. Vol.) (“Cts. & Jud. Proc. § 12-302(g)”). See id. at 22.

       I reiterate that the matter before us does not involve termination from Drug Court,

or revocation of the participants’ probation. Significantly, the Majority Opinion fails to

offer any direct support under Maryland law or elsewhere that we should treat an

immediate sanction of incarceration as a partial revocation of probation. In contrast,

several courts have determined that termination, not a sanction, from a Drug Court program

is no different than complete revocation of probation. Those courts premise their reasoning

on the fact that termination from Drug Court results in automatic revocation of probation.




11
   However, the paramount concern of both Ms. Brookman and Mr. Carnes during their
Drug Court hearings had nothing to do with the incarceration portion of their sanction. The
concern articulated in Drug Court was that the sanction would push back their graduation
date from Drug Court. If we held Drug Court hearings to the same standards as trials, we
likely would not find that an “objection” was made or preserved regarding incarceration.
Interestingly, the immediate sanction of incarceration is the crux of the Majority Opinion’s
concern. In the Majority’s view, it is the only sanction, aside from termination from Drug
Court, that would warrant an appeal or formal due process protections.
                                            15
See Hagar v. State, 990 P.2d 894, 898 (Okla. 1999) (comparing imposition of a deferred

sentence and revocation of probation and stating “[t]he consequence of the judicial

revocation or termination from Drug Court is to impose the sentence previously negotiated

in the plea agreement”); State v. Rogers, 170 P.3d 881, 885 (Idaho 2007) (holding that

“Rogers pleaded guilty in order to participate in [the Ada County Drug Court Program

(“ACDCP”)] and his termination from ACDCP resulted in his being criminally sentenced

and having a felony conviction appear on his record”); Hopper v. State, 546 N.E.2d 106,

108–09 (Ind. 1989) (“Because a defendant may suffer the loss of his [or her] liberty by

having judgment entered and by being subsequently sentenced upon termination of

treatment . . . . we hold that an individual placed under drug treatment supervision has a

protected liberty interest.”).

       The records in both cases demonstrate the false equivalence between revocation of

probation, complete or partial, and a Drug Court sanction of incarceration. The Drug Court

hearings at which Ms. Brookman and Mr. Carnes were sanctioned were not violation of

probation hearings. Moreover, Drug Courts anticipate that participants will fail, or relapse,

in their recovery. For that reason, the therapeutic setting of Drug Court abandons particular

aspects of the criminal justice system in an effort to provide long-term recovery prospects.

See Gail Sasnett-Stauffer & E. John Gregory, A Drug by Any Other Name Is Still a Drug:

Why the Florida Judiciary Should Start Treating DUI as Any Other Drug Offense, 13 U.

Fla. J. L. & Pub. Pol’y 299, 325 (2002) (“Relapse is treated as part of the normal process

of recovery [in Drug Court programs].”).



                                             16
       The Majority Opinion cites to Brown v. State, 409 Md. 1, 971 A.2d 932 (2009), to

demonstrate that this Court has already agreed with the proposition that a Drug Court

participant may appeal a sanction of immediate incarceration. See slip op. at 23. The

Majority Opinion correctly observes that the Brown Court stated, “If the procedures

established by the Baltimore City Adult Felony Drug Treatment Court erroneously violate

the rights of a defendant, there are well-developed mechanisms for correcting any

violation.” 409 Md. at 9, 971 A.2d at 936. One should not infer from this sentence in

Brown, however, that application for leave to appeal is one of the well-developed

mechanisms referenced.12     I would conclude that the Court of Special Appeals has



12
       The discussion in Brown of well-developed mechanisms includes a citation to
Parker v. State, 337 Md. 271, 653 A.2d 436 (1995). In Brown, 409 Md. at 5, 971 A.2d at
934, this Court held that the Baltimore City Adult Felony Drug Treatment Court had
fundamental jurisdiction to try individuals charged with violations of the Maryland
Controlled Dangerous Substances Act. In Brown, id. at 9, 971 A.2d at 936, in dicta, this
Court stated: “If the procedures established by the Baltimore City Adult Felony Drug
Treatment Court erroneously violate the rights of a defendant, there are well-developed
mechanisms for correcting any violations.” (Footnote omitted). In a footnote immediately
following that statement, the Court referenced two cases—Scott v. State, 289 Md. 647, 426
A.2d 923 (1981), and Caldwell v. State, 51 Md. App. 703, 445 A.2d 1069, cert. denied,
294 Md. 141 (1982)—that did not concern the Drug Court and, indeed, predated the
establishment of drug courts in Maryland. Brown, 409 Md. at 9, 971 A.2d 936 n.1. The
statement in Brown with respect to “well-developed mechanisms” for correcting violations
was not this Court’s holding, rather, it was an expression of dicta that referenced two cases
that did not involve Drug Court at all. It cannot be said that Brown stands for the
proposition that this Court has already determined appellate review is available where
sentences of incarceration are imposed by Drug Court.
       It is accurate that, in Brown, id. at 8, 971 A.2d at 936, we quoted Parker, 337 Md.
at 287, 653 A.2d at 443–44, as follows:
       Moreover, well-developed, institutionalized mechanisms exist within the
       judicial system for correcting erroneous decisions made by judges. Most
       alleged errors can be challenged through the established appellate process.
       In addition, extraordinary writs may be available in unusual circumstances.
                                             17
jurisdiction to entertain an application for leave to appeal only after there has been a

determination of violation of probation. See Ct. & Jud. Proc. § 12-302(g) (conferring the

right to file an application for leave to appeal from an order of a Circuit Court revoking

probation); Kupfer v. State, 287 Md. 540, 543, 414 A.2d 907, 908 (1980) (holding that

appellate courts have jurisdiction to review a modification of probation stemming from a

finding of a violation of probation conditions); see also State v. Perkins, 661 S.E.2d 366,

368 (S.C. 2008) (“In our view, it would be improper for the judiciary to interject itself into

such matters which are wholly internal and specific to each Program and to each

participant.”). Additionally, Brown is factually distinct from the case at bar because Brown

involved a violation of probation hearing. Finally, we adopted Maryland Rule 16-206 a

year after we decided Brown. Therefore, Brown provides to us no guidance in interpreting

the Rule.

     The Drug Court Complied with the Mandates of Due Process in Rule 16-207(f)

       The Majority Opinion contends that due process constraints are necessary for Drug

Courts to observe the rights of participants. See slip op. at 25. The basis for this

observation is that the liberty interest at stake requires formal, adversarial proceedings. See

id. The Majority Opinion cites to Gagnon v. Scarpelli, 411 U.S. 778 (1973), and Morrisey

v. Brewer, 408 U.S. 471 (1972). See id. Neither of these opinions addressed procedural

due process in the context of drug courts; the cases related to probation and parole


This quote supports the Court’s discussion in distinguishing between acts taken in excess
of jurisdiction and those for which there was an absence of jurisdiction. The quote does
not reference an ability to appeal a decision of the Drug Court.

                                              18
revocation proceedings. We have already calibrated such due process protections into the

Rules. See Rule 16-207(f). Rule 16-207(f) indicates the following is necessary for

procedural due process: “the participant shall be afforded notice, an opportunity to be

heard, and the right to be represented by counsel before the court makes its decision.”

       Part II.B of the Majority Opinion constitutes an attack on Rule 16-207(f) as

inadequate in its provision of procedural due process protections. See slip op. at 24–29.

Due process, per Rule 16-207(f), was afforded to Ms. Brookman and Mr. Carnes. The

essence of the violation of due process owed to Ms. Brookman, according to the Majority,

is that Ms. Brookman did not receive a continuance so that she could produce an expert to

attack the laboratory test results. Ms. Brookman was represented by counsel at a hearing

for which she received notice. Ms. Brookman’s counsel did not proffer that the expert had

tested the results or that the expert could report testing inaccuracies if a continuance was

granted. Ms. Brookman failed to produce, in court on the day of her hearing, an expert

witness.   Ms. Brookman’s alleged violation of due process amounts to a claim of

insufficient notice, yet at no point did Ms. Brookman demonstrate that she was denied

notice. The hearing judge listened to the arguments and was unpersuaded.13 The authority




13
   According to page 33 of the National Association of Drug Court Professionals 2013
volume entitled Adult Drug Court Best Practice Standards (“Best Practice Standards”),
“Given that many controversies in Drug Courts involve uncomplicated questions of fact,
such as whether a drug test was positive or whether the participant missed a treatment
session, truncated hearings can often be held on the same day and provide adequate
procedural due process protections.” The Drug Court in the Respondents’ cases did not
deviate from what is considered the best practice for Drug Courts.
                                            19
to grant a continuance is within the discretion of the presiding judge, and based on the

record, I cannot conclude that he abused his discretion.

       Mr. Carnes alleges that his mitigating circumstances, involving a broken-down

vehicle that prevented him from getting a urinalysis test on February 17, were not

considered, and the Majority Opinion deems this omission a violation of procedural due

process. The menu of sanctions proposed in the Drug Court Policies and Procedures

Manual are not discretionary but rather are “mandatory sanction[s] to be imposed for non-

compliance” with the protocols of the program. The program participants know well in

advance what to expect if they violate the protocols of the program. In other words, the

Drug Court Handbook, which participants have agreed they have read, indicates that

“[f]ailure to comply with the program rules will lead to ‘sanctions’ or punishments.”

(Emphasis added). Mr. Carnes received his opportunity to be heard and, again, the Drug

Court judge did not accept Mr. Carnes’ reasons as justification for violating the protocols

of the treatment program.

                        The Majority Opinion’s Use of the Hoffman Case

       The Majority Opinion offers its worst-case scenario in discussing the case Hoffman

v. Knoebel, No. 17-2750, 2018 WL 3233546 (7th Cir. July 3, 2018). See slip op. at 29–32.

The preface to the Hoffman discussion accuses the Dissenting Opinion of “discount[ing]

the requirements of due process and appellate rights” for drug court programs. See id. at

29. At no point do I do this, and, in fact, I emphasize that Rule 16-207(f) provides due

process for Drug Court participants and that the Drug Court, in the case at bar, complied

with the mandates of the Rule. The Majority Opinion speculates that a Maryland Drug

                                            20
Court judge may interpret the menu of sanctions to mean that the judge has authority to

impose a jail sanction for an indefinite period. See id. at 29–30. According to the Majority

Opinion, the Dissenting Opinion would not preclude such a sanction. The Majority

Opinion fails, however, to explain why granting an application for leave to appeal would

preclude the imposition of an indefinite period of incarceration. See id. at 30 Moreover,

the Majority Opinion lacks any empirical data to show the frequency at which Drug Court

participants receive an overnight jail sanction, a weekend jail sanction, or any sanction of

incarceration greater than the length of time specified in the menu of sanctions. 14 Without

further study of the issue, which would necessarily require an evaluation of data

unavailable to us now, this Court has no way to gauge the validity of the Majority Opinion’s

assertion.

       The Majority Opinion next points to the Hoffman case to describe the fruition of its

worst-case scenario. See id. Although the case is troubling, it is unhelpful at resolving the

issue before us. In the instant case, the Maryland Rules provide procedural due process for

participants in Drug Court programs and those Rules were followed by the Drug Court. In

the Hoffman case “[t]he problem was that the hearing itself was constitutionally deficient.”

See Hoffman, 2018 WL 3233546 at 3. The Drug Court participants in Hoffman never were


14
   The Drug Court literature suggests that “[t]he certainty and immediacy of sanctions are
far more influential to outcomes than the magnitude or severity,” and “[r]esearch in Drug
Courts indicates that jail sanctions produce diminishing returns after approximately three
to five days.” Best Practice Standards at 32–33. It would appear that no Drug Court judge,
in reality, should ever consider imposing the sanctions the Majority Opinion fears if the
judge is acting in compliance with constitutional expectations and the Code of Judicial
Conduct.

                                             21
told that they had the right to an attorney, never received notice before their hearings, never

received the evidence against them demonstrating a violation of Drug Court protocols, and

they were held in jail indefinitely.15 See id. There is no suggestion that such egregious

behavior occurred in this case or is occurring in any Drug Courts in Maryland. The

Majority sidesteps what occurred in the present case and, instead, speculates at what will

arise in the worst case without providing a basis to believe it is likely to happen.

       The Majority Opinion draws “the lesson from the Indiana experience [] that the

promise of due process protections in a rule or statute may be of little comfort without the

availability of an appellate[16] process to review whether that promise is kept.” See slip op.

at 32. In Hoffman, former participants in a drug court program filed a 42 U.S.C. § 1983

action against a county sheriff, probation officer, case manager, and courtroom bailiff.

Hoffman, 2018 WL 3233546 at 4. The former participants alleged that they received

extended periods of incarceration in violation of due process. Id. Notably, the Hoffman



15
  The “wholly indefensible system” articulated by the United States District Court for the
Southern District of Indiana was how “the duration of detention of Program participants
were random inconsistent, happenstance, arbitrary, capricious, negligent and unjust.”
Hoffman v. Knoebel, No. 4:14-CV-00012-SEB-TAB, 2017 WL 3191198 at 4 (S.D. Ind.
July 27, 2017) (order granting summary judgment).
16
   The Majority Opinion believes, consistent with the beliefs of this member of the Court,
that the Drug Court “will [not] ignore guidance from the appellate courts on the
requirements of due process, even if it is too late to apply in a particular case.” See slip op.
at 32 n.25. The rationale raises the question: how often does the Court of Special Appeals
grant appeals in cases where no relief can be granted? If a Drug Court participant has
already been released from jail, or has graduated or been terminated from the program, the
Majority Opinion has no explanation of what meaningful guidance the intermediate
appellate court would, or could, provide to the Drug Court, or why the Court of Special
Appeals would hear the case at all.
                                              22
Court never suggested that appellate review would have prevented the abuses that occurred

in the Indiana Drug Court. What Hoffman teaches us is that the team-based approach in

Drug Court provides a layer of accountability on Drug Court judges. See Hoffman v.

Knoebel, No. 4:14-CV-00012-SEB-TAB, 2017 WL 3191198 at 4 (S.D. Ind. July 27, 2017)

(order granting summary judgment) (explaining that various stakeholders in the Drug Court

addressed concerns with the Circuit Court which prompted an investigation into the Clark

County Drug Treatment Court Program that resulted in removing the head of the Drug

Court and the eventual termination of the entire program).

      In Maryland, our Drug Court programs provide internal procedures and safeguards

which have been approved by the Chief Judge of the Court of Appeals, this Court, the

Judicial Council, the County Administrative Judge of a circuit court, the District

Administrative Judge of the District Court or any official whose participation in the drug

court will be required. See Rule 16-207(c)–(d). Frankly, nothing prevents a Drug Court

participant from lodging a complaint about a sanction with the Drug Court judge, the

treatment providers, the attorneys involved, the probation judge, as well as the District

Administrative Judge of the District Court or County Administrative Judge of a circuit

court. Anyone else affiliated with the Drug Court program may raise these concerns as

well. Such complaints may result in an investigation of the Drug Court, possibly by an

administrative judge or the probation judge, leading to the possible replacement of a Drug

Court judge or other result. It is important to note that the probation judge has a major

stake in the success or failure of the Drug Court participant and therefore would be most

interested in being made aware of any alleged injustices with the handling of participants

                                           23
within the program. This is so because the probation judge is partly responsible for the

Drug Court participant’s placement in the program.

       I take no issue with the notion that Drug Courts must be accountable, but I fail to

see how creating a right to file an application for leave to appeal creates any accountability

whatsoever. Multiple levels of accountability and review already exist in the Drug Court

context without the addition of immediate appellate review. If the Majority of this Court

takes issue with the sanction of incarceration and the way that sanction is deployed in a

Drug Court program menu of sanctions which we have previously approved, then there is

a better approach than re-writing our Rules of Procedure in the vacuum of this case.

Accordingly, I would implore the Rules Committee to study the issue of the necessity and

timing of appellate review in the area of Drug Court programs. In that process, the Rules

Committee can review the vast literature regarding, particularly, Drug Courts and with the

benefit of a robust debate, recommend to us how, and if, we should revise the Rules.

                                         Conclusion

       I would hold that no procedural due process violations occurred in either Ms.

Brookman’s or Mr. Carnes’ cases. Further, due process does not necessitate immediate

appellate review of decisions made by Drug Court judges for imposing negative sanctions

for violations of Drug Court protocols that do not result in violations or revocations of

probation. Accordingly, I would reverse the judgment of the Court of Special Appeals and

dismiss the appeal. Judges Adkins and Watts have authorized me to state that they join in

this Dissenting Opinion.



                                             24
