JOSEPH A. CARLINI
STATE OF MARYLAND
Woodward, Hotten, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
What is an illegal sentence? That all depends upon what one means by "an illegal sentence." There are countless illegal sentences in the simple sense. They are sentences that may readily be reversed, vacated, corrected or modified on direct appeal, or even on limited post-conviction review, for a wide variety of procedural glitches and missteps in the sentencing process. Challenges to such venial illegalities, however, are vulnerable to such common pleading infirmities as non-preservation and limitations. There is a point, after all, beyond which we decline to revisit modest infractions. There are, by contrast, illegal sentences in the pluperfect sense. Such illegal sentences are subject to open-ended collateral review. Although both phenomena may casually be referred to as illegal sentences, there is a critically dispositive difference between a procedurally illegal sentencing process and an inherently illegal sentence itself. It is only the latter that is grist for the mill of Maryland Rule 4-345(a):
(a) Illegal sentence.
The court may correct an illegal sentence at any time.
The Present Case
On September 2, 2008, the appellant, Joseph A. Carlini, entered a guilty plea before Judge William J. Rowan, III, in the Circuit Court for Montgomery County to charges of 1) a felony theft scheme, 2) fraudulent practices in the sale of securities, and 3) acting as a broker without being registered by the State. The actual sentencing, after a series of postponements, was deferred until November 26, 2008.
The sentence that concerns us was on the first count, charging a scheme of felony theft. Judge Rowan sentenced the appellant on that count to a term of ten years imprisonment with all but four years suspended, to be followed by five years of supervised probation. The appellant was also ordered to pay restitution to 41 victims of his theft in amounts set forth in the State's "Memorandum Regarding Restitution."
The appellant was released from jail on August 20, 2009. Over the course of the next nine months, he paid $9, 106 toward his restitution obligation but was nonetheless in arrears in the amount of $5, 630.82. On May 25, 2010, he appeared in circuit court on a charge of having violated his probation because of that arrearage. The court found the appellant to be in violation of probation, but acceded to defense counsel's request that the imposition of any sentence be stayed to allow him to become current with his restitution obligation. The court set an interim hearing for July 27, 2010. At the July 27 hearing, the State reported that the appellant, through a lump sum payment of $19, 000 on July 16, had become current on his restitution obligation. The court agreed that an imposition of sentence for a probation violation was not warranted at that time and set another hearing for December 3, 2010. At the December 3 hearing, however, the State brought out that the appellant had made no payments toward restitution since July and showed no signs of being able to do so in the foreseeable future. Judge Rowan ordered that the six years of suspended incarceration be served. At no time during all of those hearings did the appellant suggest that the restitution obligation was in any way in violation of his plea agreement.
It was on May 21, 2012, that the appellant claimed for the first time that the restitution order was an illegal sentence because it was a sanction beyond the scope of his plea agreement. That Motion to Correct an Illegal Sentence was denied, without a hearing, by Judge Michael J. Algeo on June 13, 2012. It is from that denial that the appellant has taken this appeal.
The appellant's single contention focuses exclusively on the hearing of September 2, 2008, at which the appellant entered his guilty pleas. He argues that, as defense counsel and the prosecutor explained to Judge Rowan the terms of their plea agreement, the only criminal sanction expressly mentioned was a term of imprisonment. The agreement, ultimately accepted by Judge Rowan, did not place any upper limit on the term of imprisonment that might be imposed but did place a "cap of not more than four years on executed incarceration." Any distinction between the formal term of imprisonment and the unsuspended or "hard time" to be served is not a factor in this case.
The contention, rather, is that imprisonment was the only sanction expressly mentioned at the guilty plea hearing and that any other sanction, such as a fine or restitution or some other probationary condition, does not fit under that explicit sentencing cap and would render the sentence illegal. The argument is that anything other than literal imprisonment is ipso facto excessive. The appellant specifically contends that the orders of restitution exceeded the sentencing cap and are, therefore, illegal under Rule 4-345(a). What the appellant seeks is to have the restitution orders eliminated from his sentence.
Rule 4-345(a): What It Is And What It Is Not
Although its identifying tags have regularly been updated, the substance of Rule 4-345(a) has long been with us and has been unwavering. The Rules of Criminal Procedure were completely recodified by an Order of the Court of Appeals dated April 6, 1984 and effective as of July 1, 1984. What is now Rule 4-345(a) had theretofore been codified, verbatim, as Maryland Rule 774(a). That provision, prior to an earlier revision adopted on January 31, 1977 and effective as of July 1, 1977, had, in turn, been codified as Maryland Rule 764(a). Before a yet earlier rewriting of the Maryland Rules of Procedure, adopted on September 15, 1961 and effective as of January 1, 1962, the provision, in precisely the same language, had been Rule 744(a). Before 1962, that same unchanged provision had been Rule 10(a) of the Criminal Rules of Practice and Procedure. We have not looked further back.Rule 4-345(a) and its predecessors have produced a sprawl of haphazard caselaw that needs some organization.
A. What Rule 4-345(a) Is
Although an illegal sentence may, of course, be challenged on direct appeal, some illegal sentences (as distinguished from all) may be challenged long after the time for noting an appeal has run out and notwithstanding the fact that the defendant 1) failed to object to the sentence at the trial level, 2) purportedly consented to the sentence, or 3) failed to challenge the sentence by way of direct appeal. This plenary indulgence was noted by Judge Eldridge for the Court of Appeals in Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985):
We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a), formerly Rule 774 a, provides that "[t]he court may correct an illegal sentence at any time." Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.
State v. Griffiths, 338 Md. 485, 496, 659 A.2d 876 (1995), commented on Rule 4-345(a)'s ability thus to trump the normally foreclosing effect of finality:
This Rule creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.
(Emphasis supplied). See also Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012).
In Chaney v. State, 397 Md. 460, 466, 918 A.2d 506 (2007), Judge Wilner commented on the procedurally uninhibited nature of a Rule 4-345(a) challenge:
A criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons. Through its adoption of what is now Maryland Rule 4-345 and through its decisional jurisprudence, this Court has created two categories of deficiency and has treated those categories differently. Maryland Rule 4-345(a) permits a court to "correct an illegal sentence at any time." If a sentence is "illegal" within the meaning of that section of the rule, the defendant may file a motion in the trial court to "correct" it, notwithstanding that (1) no objection was made when the sentence was imposed, (2) the defendant purported to consent to it, or (3) the sentence was not challenged in a timely-filed direct appeal.
Rule 4-345(a) is virtually identical to an earlier version of Federal Rule of Criminal Procedure 35. Johnson v. State, 274 Md. 29, 39, 333 A.2d 37 (1975) ("Rule 35 of the Federal Rules of Criminal Procedure ... is virtually identical to the provisions of Maryland Rule 764a."). Rule 35(a) provided, "The court may correct an illegal sentence at any time." Although Federal Rule 35, as it then was phrased, is not constitutionally binding, the cases interpreting it are persuasive authority. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court was dealing with a situation in which a prisoner at his sentencing was denied the opportunity, by way of allocution, to make a statement on his own behalf. In distinguishing an inherently illegal sentence from a procedural illegality occurring in the course of the sentencing, the Court held, 368 U.S. at 430:
It is suggested that ... we may consider it [the motion before the Court] as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct. But, as the Rule's language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.
(Emphasis supplied). See Hoile v. State, 404 Md. 591, 623, 948 A.2d 30 (2008) ("Hill has been discussed with approval in several reported Maryland appellate decisions."); State v. Wilkins, 393 Md. 269, 275, 900 A.2d 765 (2006); Randall Book Corp. v. State, 316 Md. 315, 321-22, 558 A.2d 715 (1989).
If a motion is made pursuant to Rule 4-345(a) to correct an illegal sentence, a denial of the motion may be immediately appealed. Chaney v. State, supra, was very clear:
The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly [per Rule 4-345(a)], and, if the trial court denies relief in response to such a challenge, the defendant may appeal from that denial and obtain relief in an appellate court.
397 Md. at 466 (emphasis supplied). Rule 4-345(a), moreover, does not preclude action by the trial court on its own initiative. State v. Griffiths, 338 Md. 485, 496, 659 A.2d 876 (1995).
B. What Rule 4-345(a) Is Not
The flip-side of Rule 4-345(a) is that its exemption from the normal procedural qualifiers is a narrow one, available only for a limited species of sentence illegalities. The illegality must actually inhere in the sentence itself and must not be a procedural illegality or trial error antecedent to the imposition of sentence. Chaney v. State, 397 Md. at 466, made this point most emphatically:
The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow, however. We have consistently defined this category of "illegal sentence" as limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.
Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012), also spoke to Rule 4-345(a)'s narrow window of availability:
To constitute an illegal sentence under Rule 4-345(a), "the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding." Accordingly, "we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice."
The same narrow scope of Rule 4-345(a) was stressed by Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012):
[W]here the sentence imposed is not inherently illegal, and where the matter complained of is a procedural error, the complaint does not concern an illegal sentence for purposes of Rule 4-345(a). A sentence does not become "an illegal sentence because of some arguable procedural flaw in the sentencing procedure." ...
These principles, delineating the narrow scope of a Rule 4-345(a) motion to correct an illegal sentence, have been recognized and applied in a multitude of this Court's opinions. ... "... We have consistently defined this category of 'illegal sentence' as limited to those situations in which the illegality inheres in the sentence itself[.]"
In Matthews v. State, 197 Md.App. 365, 375, 13 A.3d 834 (2011), rev'd on other grounds, 424 Md. 503, 36 A.3d 499 (2012), this Court as well took note of the Rule's austerely limited coverage:
Emerging from [a] survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and cloture still abide. Rule 4-345(a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. It is not, on the other hand, some unlimited "Reopen, Sesame, " licensing the court to revisit and to relitigate issues that have long since become faits accompli.
The Plea Bargain Cases And Sentencing Caps
The classic illegal sentence for purposes of Rule 4-345(a) was one that exceeded the legislatively imposed statutory maximum. The Legislature set the sentencing cap and that was it. In the 15-month period between October of 2010 and January of 2012, however, the Court of Appeals issued a series of three opinions in which it significantly expanded the category of illegal sentences by expanding the notion of who or what might impose the sentencing cap: Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010); Baines v. State, 416 Md. 604, 7 A.3d 578 (2010); and Matthews v. State, 424 Md. 503, 36 A.3d 499 (2012).
In Cuffley, 416 Md. at 586, Judge (now Chief Judge) Barbera wrote for the Court in holding that when the trial judge accepts a plea agreement entered into by a defendant and the State and agrees to be bound by its terms, any sentence then imposed in excess of the sentencing cap thus agreed upon is an illegal sentence within the contemplation of Rule 4-345(a).
We therefore hold that, regardless of whether the sentencing term is clear or ambiguous, the court breached the agreement by imposing a sentence that exceeded a total of eight years' incarceration. The sentence is illegal and, upon Petitioner's motion, the Circuit Court should have corrected it to conform to a sentence for which Petitioner bargained and upon which he relied in pleading guilty.
The sentencing cap, which the sentence may not exceed lest it be rendered illegal, is that set by the plea agreement by which the judge has agreed to be bound. For purposes of Rule 4-345(a), this new variety of sentencing cap is the functional equivalent of the traditional statutory sentencing cap set by the Legislature. In Dotson v. State, 321 Md. 515, 522-23, 583 A.2d 710 (1991), Judge Orth had explained that a statutory sentencing cap and a sentencing cap set by a plea agreement are, indeed, functional equivalents:
Generally, the maximum sentence allowable by law is that designated by the Legislature. ... The convictions here, however, were obtained by guilty pleas tendered under a plea agreement. The aspect of the agreement which motivated the pleas was that ... the judge would impose a sentence not to exceed a total of 15 years. ... [T]he judge found the pleas to be acceptable, convicted Dotson thereunder, and honored the agreement as to the punishment. When the judge accepted the pleas, the agreement as to punishment came into full bloom; it stood approved by the judge. Thereafter, the agreement was inviolate, and the judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment the agreed sentence. ... It follows, that, inasmuch as 15 years was the harshest sentence that could be imposed under the circumstances, 15 years stood as the maximum allowable by law.
(Emphasis supplied). Dotson's clear holding was: "[T]he plea agreement fixed the maximum sentence allowable by law." 321 Md. at 524. A sentence in excess of either cap is fatally illegal. Dotson is now a part of Rule 4-345(a) law.
In Cuffley, 416 Md. at 573-74, the plea bargain was for "a sentence within the guidelines, " which counsel had agreed was between "four to eight years." The trial judge agreed to be bound by those terms: "The plea agreement, as I understand it, is that I will impose a sentence somewhere within the guidelines. The guidelines in this case are four to eight years." The court subsequently sentenced the defendant to "15 years at the Department of Correction, all but six years suspended." The trial judge, the prosecutor, and even defense counsel reasonably believed that the guidelines referred only to unsuspended "hard time" and that the unsuspended term of six years, therefore, fell within the agreed-upon range of four to eight years. The Court of Appeals, however, agreed with the defendant that the sentencing cap of eight years referred to the total sentence of suspended and unsuspended time alike because that was a reasonable assumption for the defendant to have made. The actual sentence imposed in Cuffley was in excess of the sentencing cap agreed to by the defendant; was a breach of the agreement; and was, therefore, an illegal sentence under Rule 4-345(a).
In Baines the circumstances were virtually indistinguishable from those in Cuffley. On two charges of armed robbery, the defendant entered guilty pleas under an agreement to be sentenced "within the guidelines." The overall guidelines range for the two offenses was "seven to thirteen years." The court "accepted the plea and agreed just to commit myself within the Guidelines." 416 Md. at 607. The court sentenced the defendant "on the first count of armed robbery to 20 years, all but 7 years suspended, and on the second count of armed robbery to a consecutive 20 years, all but 6 years suspended." Id. The combined sentences of six years plus seven years of unsuspended "hard time" did not exceed the guidelines sentencing cap of 13 years. The Court of Appeals concluded, however, that the defendant's reasonable understanding of the plea bargain was that his total sentence, and not simply the actual time to be served, would not exceed thirteen years.
We believe it plain from the record of the plea proceeding that Petitioner reasonably understood the plea agreement to call for a total sentence of no more than thirteen years.
416 Md. at 620. Accordingly, the Court held that the combined sentence was a breach of the plea agreement and was, therefore, an illegal sentence.
[W]e hold that the sentence was in breach of the plea agreement, because the record of the plea proceeding reflects that Petitioner reasonably understood that the court would not impose a total sentence exceeding thirteen years, including both non-suspended and suspended time.
416 Md. at 607 (emphasis supplied).
In Matthews, the defendant again did not understand that the sentencing cap agreed upon in the plea bargain applied only to unsuspended time. The trial court applied the cap only to the unsuspended part of the sentence and not to the entire sentence. In determining precisely what sentencing cap had been agreed upon, the Court of Appeals gave the benefit of the doubt to the defendant's interpretation.
The State's averments that ... "that cap is a cap as to actual and immediate incarceration" may well have been clear to the State, defense counsel and the court. But the record of the plea hearing does not persuade us that Petitioner "reasonably understood" (as that phrase is explicated in Cuffley) the maximum agreed-upon sentence to be. No one mentioned, much less explained to Petitioner on the record, that a sentence greater than the forty-three year "cap" could be imposed, with a suspended portion of the sentence in excess of those forty-three years. Neither did the State, defense counsel, or the court explain for the record that the words "guidelines range" referred solely to executed time.
424 Md. at 524 (emphasis supplied).
The Court of Appeals, moreover, also made explicit what had theretofore been only implicit, to wit, that a sentence in excess of the sentencing cap agreed upon in a binding plea agreement is ipso facto an illegal sentence cognizable under Rule 4-345(a).
We have said that the State, as well as the Court of Special Appeals, see Matthews, 197 Md.App. at 375, 13 A.3d at 840, are of the view that a sentence that exceeds the sentence agreed upon as part of a binding plea agreement is not cognizable under Rule 4-345(a). To our knowledge, we have not had the occasion before now to respond directly to a fully briefed argument to that effect. So, we make clear with this opinion what we believe to be strongly suggested by our opinion in Solorzano, and stated more plainly in Cuffley, that such an illegal sentence is cognizable under Rule 4-345(a).
424 Md. at 514 (emphasis supplied). A sentence's exceeding a limit set in a plea agreement is tantamount to its exceeding a legislatively imposed statutory upper limit.
Inherent Versus Procedural Illegalities
A distinction that is sometimes difficult for the zealous advocate to appreciate is that it is not the degree or virulence of the illegality that makes one allegedly flawed sentence cognizable under Rule 4-345(a) while another (perhaps even more flagrantly flawed) is completely immune from review. Rule 4-345(a)'s threshold concern is not with the severity of the alleged infirmity but only with its situs. Matthews v. State, supra, 197 Md.App. at 367-68, stressed the distinction:
The semantic problem arising out of those very different contexts is that the phrase "illegal sentence" has variable connotations and shifting meanings. Of all the illegal sentences that might deserve immediate appellate vacating in the broad context of direct review, only a small fraction are even cognizable in the austerely limited context of Rule 4-345(a) review. For the very reason that its meaning may shift, the phrase "illegal sentence" should never be lifted out of that first context and casually inserted into the second. The words may be the same, but they no longer mean the same thing. We cannot agree with Gertrude Stein that an illegal sentence is an illegal sentence is an illegal sentence, because sometimes it is not.
A Rule 4-345(a) hearing does not ordinarily require any factfinding. Even in terms of argument, it is seldom necessary to look upstream to some earlier point along the adjudicative continuum. The boundary markers that are relied upon to measure the inherent or facial legality of the sentence are generally well settled and essentially unchangeable. The only exception is the sentencing cap established by a plea agreement, which must, of course, be determined on an ad hoc basis by looking to the record of the hearing at which the plea was taken. Other illegalities, to be sure, may contribute to, or even produce, the challenged sentence, but they do not inhere in the sentence itself. ...