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CARYN TAMBER Daily Record Legal Affairs Writer When Tracy L. Palmer saw the man crossing the street, she started shaking so much that she had to pull over.
He looked just like her ex-boyfriend, the man she says stalked, threatened and assaulted her, who had tried to kidnap their son and burn down Palmer’s house. But Sharden Busie Hoile was supposed to be in jail.
“I thought, oh my God, he’s out and he’s here,” Palmer remembered.
She immediately checked to find out whether Hoile had been released, but he had not; the man on the street was not Hoile.
But she found out that Hoile was in a prerelease unit, close to getting out because a judge had modified his sentence.
Palmer was terrified, then angry. Under the laws and even the constitution of Maryland, she was supposed to be notified and given a chance to speak to the court if Hoile was resentenced, she said. Had she known about Hoile’s modification hearing, she would have shown up and begged the judge not to let him out, she said.
What happened next will be the focus of oral arguments in the Court of Appeals Thursday in a case victims’ rights advocate Russell Butler called the most important for crime victims in Maryland history.
Hoile’s lawyer, Assistant Public Defender Brian L. Zavin, declined to talk about the case before the arguments but wrote in his briefs that it involves a concept with the potential to “wreak havoc on the criminal justice system.”
To prison and back
Tracy Palmer and Sharden Hoile met in 1992 and had a son together in 1993. Hoile then began battering Palmer, she said, and between 1994 and 1998 she called the police on him regularly. It was not until 1998 that he got significant jail time, though.
Facing multiple charges of assault, sex offense and attempted rape, he struck a deal with the prosecutor — which Palmer signed off on — and pleaded guilty to the assault. Prince George’s County Circuit Court Judge Thomas P. Smith sentenced Hoile to 15 years in prison with all but 281 days suspended and five years’ probation, with an order not to contact Palmer or her children.
Palmer gave the prosecutor her mother’s address and asked that she be notified if anything else happened in the case. She said she did not give her own address because she feared Hoile would discover it.
When Hoile’s days behind bars were over and he got out of jail, he began stalking Palmer, she said. She tried to stay one step ahead of him by moving frequently, going back and forth between Virginia and Prince George’s County, but he always found her.
He hounded her friends and family constantly to get her address and phone number, and waited outside her house at night, she said. Her children — the son she had with Hoile and an older boy by her former husband — were traumatized because they never knew for sure, when they went to bed at night, whether their mother would be alive when they woke up, she said.
Palmer said she tried to get Hoile declared in violation of his probation, with no success.
Finally, in 2000, when Palmer had moved to Calvert County, Hoile broke into her house and tried to set it on fire, she said. He was charged in that case, leading the Prince George’s County court to declare him in violation of probation. Smith sent him back to prison to serve out his 15 years.
‘He’s not going to make me run’
In 2005, Hoile asked Smith to reconsider his sentence. Though the record reflects that notice of the motion was sent to Palmer, Palmer said she never received it and that it was sent to the address at which she lived at the time of the original charges — not at her mother’s house, as she had requested.
Without Palmer present, Smith held a hearing and suspended the balance of Hoile’s sentence. Eventually, Hoile was transferred to prerelease.
When Palmer found out in October 2005, she contacted several lawyers, most of whom told her there was nothing they could do to get Hoile’s original sentence reinstated.
“One even said, ‘Our best suggestion to you is to prepare for his coming and maybe you need to consider leaving again,’” Palmer said. “And I said no. I’m not doing this to my children anymore. He’s not going to make me run. He’s not going to tear my children’s lives apart anymore.”
Butler’s Maryland Crime Victims’ Resource Center Inc. agreed to represent Palmer, filing a motion asking Smith to vacate Hoile’s sentence modification because Palmer had not been notified. Palmer argued that it was a violation of Maryland Rule 4-345, which states that when a defendant asks for sentence modification, the victim must be told and given a chance to speak at the modification hearing.
It was also a violation of her rights under Article 47 of the Declaration of Rights in the Maryland Constitution, which gives victims the right to be notified of proceedings “if practicable” and to attend, Palmer argued. She also claimed a violation of Criminal Procedure Article §11-102, a statute addressing notice.
Smith held a hearing, at which Palmer told him that Hoile was still a threat and that he had placed two calls to her home from his prerelease unit. Smith vacated the modification, saying that he failed to ask at the modification hearing whether Palmer had gotten notice.
Before the court could hold a new modification hearing, Hoile appealed. The Court of Special Appeals held that because the hearing was still to come, the case was not ripe for appeal.
This week, the Court of Appeals will hear arguments on whether Hoile’s appeal was premature, whether Palmer had standing to file her motion to vacate, and whether the judge made a mistake in granting that motion.
Not a party
In court filings, Zavin argued that the “if practicable” clause in Article 47 means that victim notification is not always required. Even when it is “practicable” to notify the victim, “there is no compelling reason that the statute and rule cannot be satisfied by the mailing of notice to the victim’s last known address,” he wrote.
Zavin also argued that even if Palmer was not notified, that does not render Hoile’s modified sentence illegal and subject to being vacated. He wrote that the judge, in vacating the modification and reinstating the original sentence, effectively increased Hoile’s sentence, which violated his protection against double jeopardy.
Zavin also disagreed with Palmer and the state’s contention that Hoile’s case is not ripe for appeal because no new sentence has yet been imposed.
Finally, he argued that Palmer had no standing to file a motion to vacate the sentence modification because she is not a party in the case.
“What [Hoile] objects to is the granting of party status to a victim in a criminal case, something that is unprecedented in this state,” Zavin told the top court at a hearing earlier this month. At the time, the top court was considering his motion to strike Butler’s appearance as Palmer’s counsel since, he argued, Palmer is not a party.
The motion was denied.
Zavin’s brief argued that no victims’ rights statutes or rules in Maryland allow for the victim to be considered a party, a concept affirmed by the appellate courts in recent cases.
Butler, though, argued that this case is different from those in which the courts have ruled against victims’ rights to intervene in cases for at least one reason: here, the victim is defending the lower court’s decision, not petitioning to overturn it.
It has been difficult to get courts to agree to victims’ rights to appeal, but that’s not at issue here, he said.
Kathryn Grill Graeff, chief of criminal appeals in the Office of the Attorney General, declined to speak about the case. However, in the state’s brief, Assistant Attorney General Sarah Page Pritzlaff argues, among other things, that Smith’s ruling was correct even though Palmer was not a party because the state joined in her efforts to get a new hearing.
Rights vs. remedies
The Hoile case plays into a broader debate about crime victims’ rights to participate in court proceedings.
Prosecutors and victims’ advocates say victims must be taken into account in criminal cases. Butler said it is not enough to have victims’ rights laws if the victims do not have the power to enforce them.
“Rights without remedies is rhetoric,” he said. “Rights with remedies is justice.”
Defense lawyers say the courts need to be cautious about allowing victims too much power over defendants.
Elisabeth A. Semel, a professor at UC Berkeley School of Law, said she is mainly concerned with victim participation at the pre-trial phase of a case, since labeling someone a victim and giving them special rights implies that the defendant is the perpetrator. But, she said, there may be problems with having victims too involved at other points as well.
“I think the role of the victim in a determination of the sentence is at least more legally, or I would even say constitutionally, justifiable, but I think we have to take very, very great care to distinguish between the victim’s interest, which … may be in conflict with the range of considerations that a just sentencing requires,” Semel said.
Neil I. Jacobs, president-elect of the Maryland Criminal Defense Attorneys’ Association, said the interest of the state and that of the victim come into conflict in cases where a battered spouse does not want the state to pursue charges against her abuser. Just as the victim does not get to force the state to drop the case, she should not get to file motions if she does not like the abuser’s sentence, Jacobs said.
He said it is established law in Maryland that victims are not parties and, therefore, they should not be filing motions.
“By letting victims and other nonparties file motions in asking the court to do certain things, it can really open the floodgates for a lot of different situations,” he said.
For example, Jacobs said, giving victims party status could mean that they would be required to attend all court proceedings, just as are prosecutors and the defense.
Sense of control
The latest Hoile could be released is July 4, 2014, according to a spokesman at the Department of Public Safety and Correctional Services. The department does not make public a more precise release date that takes into account good-behavior credits, but Palmer said she believes Hoile could be eligible for release next year, even if he loses his appeal.
Palmer hopes the court decides to help her and other victims in her place. She said getting Hoile’s sentence modification vacated has given her a sense of control she never had when she was running from Hoile.
“Not only have I done this for all the reasons that Russell has clearly stated but also to regain control of my own life [to show] that I’m not that scared, cowering person anymore, that this is my life and he’s not going to have control over it anymore,” Palmer said. Source: http://www.mddailyrecord.com/article.cfm?id=4872&type=UTTM
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