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Ray v. State

Court of Special Appeals of Maryland

September 29, 2016

BASHAWN MONTGOMERY RAY
v.
STATE OF MARYLAND

          Krauser, C.J., Nazarian, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Moylan, J.

         The subject is Maryland Rule of Procedure 4-345(a)'s provision that: "The court may correct an illegal sentence at any time." The appellant, Bashawn Montgomery Ray, filed in the Circuit Court for Montgomery County on March 23, 2015, just such a motion to correct what he deemed to be an illegal sentence. On July 24, 2015, the court denied the motion without hearing or written opinion. This appeal followed. It presents an appropriate occasion for a macroscopic overview of Rule 4-345(a): its origin; its purpose; its resultant freedom from a filing deadline; its critical distinction between inherent sentence illegality and antecedent procedural illegality; the great leap forward from looking simply at statutory sentencing caps to more ambiguous caps imposed by plea negotiations; and the criteria for deciding precisely what a negotiated agreement means.

         Antecedent Trial and Appeals

         At the trial of the case based on the agreed statement of facts on April 18, 2011, the appellant was found 1) guilty of conspiracy to commit theft of property with a value of at least $1, 000 and 2) guilty of making a false statement when under arrest. On August 11, 2011, he was sentenced to a term of ten years' incarceration with all but four years suspended followed by four years of probation.

         The appellant appealed his convictions to this Court. In a 44-page opinion in Ray v. State, 206 Md.App. 309, 47 A.3d 1113 (2012), this Court affirmed the convictions. That opinion is not pertinent to the issue now before us. The Court of Appeals granted certiorari to consider the single issue of whether there was probable cause for the arrest. The majority opinion for the Court, however, held that the Fourth Amendment issue had not been properly preserved for appellate review. Ray v. State, 435 Md. 1, 76 A.3d 1143 (2013). The Court of Appeals opinion is not pertinent to the issue now before us.

         The Belated Contention

         Despite having slept quietly on this complaint for three and one-half years, the appellant now raises the contention that his sentence of ten years' incarceration with all but four years suspended was an inherently illegal sentence under Rule 4-345(a) because it exceeded the legal cap imposed upon it that had been bargained for as a condition of his plea of not guilty on an agreed statement of facts. The contention, however tardy, is cognizable.

         For Auld Lang Syne

         Whence, then, Rule 4-345(a)'s unique and open-ended filing calendar? Rule 4-345(a), without the loss or gain of a comma, has been with us a long time (since 1951). The Rules of Criminal Procedure were completely recodified by 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 had, in turn, been codified as Maryland Rule 764(a) prior to July 1, 1977. 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 its present language, had been Rule 744(a). Before 1962, the same unchanged provision had been Rule 10(a) of the Criminal Rules of Practice and Procedure. As Rule 10(a), it may be found, in the verbatim language of Rule 4-345(a) today, in Vol. 3, Horace Flack, Annotated Code of Maryland, Appendix B, General Rules of Practice and Procedure (1951). In Drain v. Warden, 207 Md. 620, 621, 113 A.2d 422 (1955), the Court referred to this venerable progenitor of today's rule: "If a sentence is illegal, the trial court may correct it at any time. General Rules of Practice and Procedure, part 4, rule 10."

         The General Rules of Practice and Procedure were first adopted by the Court of Appeals in 1941. The minutes of the meeting of the Standing Committee on Rules of Practice and Procedure of March 28, 1950, reflect that the reporter "presented for the consideration of the Committee a letter from Chief Judge Ogle Marbury, " reading in part:

"At the Conference (Judiciary) the question was raised whether judges have power after the expiration of the term, or after 30 days, to reduce or suspend sentences imposed by them in criminal cases. The county judges were practically unanimous in their view that it could not be done, but the city judges seem to be doing it without any definite authority."

         Chief Judge Marbury's request to the Rules Committee had been prompted by a discussion among judges at the Fifth Annual Meeting of the Judicial Council of Maryland in 1950 in which there was spirited disagreement over whether a trial judge possessed any authority to correct an illegal sentence or otherwise amend a sentence after the formal term of court in which the sentencing took place had terminated. The minutes of the meeting in Annapolis of May 29, 1951, reflect that the Rules Committee recommended to the Court of Appeals what the Court subsequently adopted as Rule 10(a): "The Court may correct an illegal sentence at any time."

         What is now 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 27 (1975) ("Rule 35 of the Federal Rules of Criminal Procedure ... is virtually identical to the provisions of Maryland Rule 764a."). Federal Rule 35(a) at that time provided, "The court may correct an illegal sentence at any time." In Berkoff v. Humphrey, 159 F.2d 5, 7 (1947), the Eighth Circuit pointed out that Federal Rule 35 "became effective March 21, 1946, but made no change in existing law." Thus, with respect to what is now Rule 4-345(a), the limit of legal memory is the 1951 adoption by the Court of Appeals of what then became Rule 10(a) of the Maryland Rules of Practice and Procedure. Beyond 1951, appellate memory runneth not to the contrary.

         Reason For the Filing Exemption

         Rule 4-345(a)'s exemption from a filing deadline is, indeed, a very narrow one. Despite the generality of the Rule's wording, it does not permit the correction "at any time" of any illegality that may have lead to or contributed to the sentence being challenged. The illegality referred to by Rule 4-345(a) must be an illegality inherent in the sentence itself as opposed to being some procedural (even constitutional) flaw in the trial resulting in the conviction for which the sentence is imposed or even a flaw in the sentencing procedure itself. Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012), made this preclusive limitation on what constitutes an "illegal sentence" crystal clear:

"[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.'"

(Emphasis supplied; citations omitted). Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012), spoke to the same effect:

"The 'scope of this privilege ... is narrow.' 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.'"

(Emphasis supplied; citations omitted).

         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 also addressed Rule 4-345(a)'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 closure 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."

(Emphasis supplied). See also Alston v. State, 425 Md. 326, 339, 40 A.3d 1028 (2012) ("[T]he most important principle is 'that, as a general rule, a Rule 4-345(a) motion to correct an illegal sentence is not appropriate when the alleged illegality "did not inhere in the defendant's sentence."'"); Montgomery v. State, 405 Md. 67, 74-75, 950 A.2d 77 (2008) ("A motion to correct an illegal sentence ordinarily can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed."); Hoile v. State, 404 Md. 591, 622, 948 A.2d 30 (2008) ("A sentence is not illegal where the 'illegality did not inhere in the defendant's sentence.'"); State v. Wilkins, 393 Md. 269, 273, 900 A.2d 765 (2006) ("A sentence that is not permitted by statute is an illegal sentence." (Citation omitted)); Randall Book Corp. v. State, 316 Md. 315, 323, 558 A.2d 715 (1989) ("[I]mproper motivation ... does not render the sentence illegal within the meaning of Rule 4-345.").

         As this Court explained in Corcoran v. State, 67 Md.App. 252, 255, 507 A.2d 200 (1986):

"The notion of an 'illegal sentence' within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose."

(Emphasis supplied).

         Chaney v. State, 397 Md. 460, 466-67, 918 A.2d 506 (2007), spoke of the distinction between "two categories of deficiency."

"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.
***
"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. As we made clear in Randall Book Corp., any other deficiency in the sentence that may be ground for an appellate court to vacate it - impermissible considerations in imposing it, for example - must ordinarily be raised in or decided by the trial court and presented for appellate review in a timely-filed direct appeal."

(Some emphasis supplied; references omitted).

         In Carlini v. State, 215 Md.App. at 419-420, this Court was very clear with respect to the critical distinction.

"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. There 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 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 later that is grist for the mill of Maryland Rule 4-345(a)[.]"

(Emphasis supplied; footnote omitted).

         Rule 4-345(a)'s ears are thus closed to "but for" tales of woe. "But for the erroneous hearsay ruling, there would have been no sentence to be imposed." Such a plaint would come too late and would not enjoy an exemption from the ordinary filing deadline.

         Illegalities Inhering in the Sentence Itself

         To recite that for Rule 4-345(a) applicability, the illegality must inhere in the sentence itself is one thing. Instinctively to be able to identify such a phenomenon is something else again. In pursuit thereof, the use of contrasting examples remains a tried and true learning technique. The most obvious example of an excessive sentence would be one that, because it is so obvious, is never actually found in the caselaw. The better to understand the category, however, it should nonetheless always be kept in mind. The paradigmatic excessive sentence would be one of eleven years in jail for a crime with a statutory maximum penalty of ten years. The penalty is excessive because it exceeds the penalty authorized by law. All other inherent illegalities are but more arcane variations on this simple theme.

         A common example of an inherently illegal sentence is the very pronouncement of a sentence itself in circumstances where no sentence should have been imposed. In Alston v. State, 425 Md. 326, 339, 40 A.3d 1028 (2012), a re-sentencing of the defendant should never have occurred after a post-conviction hearing had vacated the original sentence and the subsequent reconsideration of that vacating was legally unauthorized.

"There is one type of illegal sentence which this Court has consistently held should be corrected under Rule 4-345(a). Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief under Rule 4-345(a)."

(Emphasis supplied).

         Taylor v. State, 407 Md. 137, 141 n. 4, 963 A.2d 197 (2009) simply mentioned in footnote dicta that historically, "a motion to correct an illegal sentence ... was 'entertained only where the alleged illegality was in the sentence itself or the sentence never should have been imposed.'" (citation omitted). In State v. Wilkins, 393 Md. 269, 273-74, 900 A.2d 765 (2006), the Court of Appeals noted in passing that "a motion to correct an illegal sentence can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed." (Emphasis supplied). In Ridgeway v. State, 369 Md. 165, 191, 797 A.2d 1287 (2002), a confusion of counts lead to a situation in which the defendant was sentenced on three charges of assault on which he had been found not guilty. In holding such sentences to have been inherently illegal, the Court of Appeals observed, "[a] court cannot punish a defendant for a crime for which he or she has been acquitted."

         An interesting variation on this theme is found in Johnson v. State, 427 Md. 356, 47 A.3d 1002 (2012), a case in which the defendant should never have been sentenced to 30 years for assault with intent to murder for the simple reason that he had neither been charged with nor convicted of assault with intent to murder.[1] The sentence without an underlying conviction was inherently illegal.

         In State v. Garnett, 172 Md.App. 558, 559, 916 A.2d 393 (2007), this Court held that a sentence ordering restitution should never have been pronounced against a defendant who was found to have been "not criminally responsible." Under the circumstances, the imposition of restitution, which has been deemed to be a criminal sentence, was inherently illegal. In Moosavi v. State, 355 Md. 651, 662, 736 A.2d 285 (1999), the Court of Appeals held that a sentence was inherently illegal where the defendant had been charged and convicted "under the wrong statute." And see, Campbell v. State, 325 Md. 488, 508-09, 601 A.2d 667 (1992). In Jones v. State, 384 Md. 669, 866 A.2d 151 (2005), on one of the four counts on which the defendant was apparently convicted, the guilty verdict, notwithstanding being reflected on the verdict sheet, got overlooked with respect to being orally announced in open court. The sentence on that count was held to have been inherently illegal.

         Another common category of inherently illegal sentences is that in which the sentence imposes some collateral sanction that has not been authorized by the sentencing statute. It was actually this Court that blazed the trail for recognizing this variety of sentencing illegality. Frequently, when multiple charges were brought against a single defendant for multiple crimes inflicting property damage on multiple victims, it was a common practice, simply as a matter of judicial economy, to convict the defendant of one of the crimes but then to order him to pay restitution to all of the victims. Maryland first addressed this practice in the opinion of this Court in Mason v. State, 46 Md.App. 1, 9, 415 A.2d 315 (1980). We held that "the open-ended order to make additional restitution to a wide variety of 'victims' to be determined by the probation department ... exceeded the sentencing authority of the court." (Emphasis supplied). A sentence in excess of what the legislature has authorized is, ipso facto, inherently illegal.

         Five years later, the Court of Appeals confirmed Mason's result in Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985). The Court of Appeals held, 302 Md. at 429: "[R]estitution is punishment for the crime of which the defendant has been convicted. Restitution depends on the existence of that crime, and the statute authorizes the court to order restitution only where the court is otherwise authorized to impose punishment." Notwithstanding Mason, Walczak became the marquee case.

         Other collateral sanctions have been held to render a sentence inherently illegal where the type of sanction imposed by the sentence has not been authorized by statute. In Holmes v. State, 362 Md. 190, 763 A.2d 737 (2000), the imposition of home detention as a condition of probation was held to have been an inherently illegal sentence. "A sentence that is not permitted by statute is an illegal sentence. A defendant cannot consent to an illegal sentence." 362 Md. at 195-96. (Citations omitted). See also, Bailey v. State, 355 Md. 287, 300, 734 A.2d 684 (1999) (the same).

         In Montgomery v. State, 405 Md. 67, 81, 950 A.2d 77 (2008), the trial judge, after finding a violation of probation, imposed a sentence to be served of ten years, but deferred the reporting date of that sentence for three years with announced contingencies and dependent on the defendant's behavior. The convoluted arrangement was not authorized by statute and was, therefore, held to be an illegal sentence within the contemplation of Rule 4-345(a).

         Carlini v. State, 215 Md.App. at 438, summed up the common characteristics of all of these examples of Rule 4-345(a) inherent sentence illegality:

"The common denominator in all of these instances of Rule 4-345(a) sentence illegality is that once the objective outer boundary markers for the sentence have been established, the illegality that inheres in the sentence itself is obvious. Even if all of the antecedent proceedings had been procedurally impeccable, the illegality of the sentence is facial and self-evident."

(Emphasis supplied).

         Illegalities Not Inhering in The Sentence

         Conversely, numerous opinions hold that although hearings on Rule 4-345(a) motions may reveal numerous procedural errors that might have called for reversals if timely raised on direct appeal, many of those errors would not be cognizable under Rule 4-345(a) because they were errors that did not inhere in the sentence itself.

         In Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989), a bookstore convicted of selling pornographic magazines received a fine of $500 for each of 116 convictions, a penalty amounting to $58, 000. The Court of Appeals held that a claim of double jeopardy, consisting of multiple punishments for a single offense, would be cognizable as an inherently illegal sentence, but further found that factually not to be the case. It noted in its discussion, however, that the "Appellant's remaining contention, that the sentencing judge was motivated by impermissible considerations, would not fall into the same category." 316 Md. at 322. Such an illegality, if arguendo assumed to be true, would be in the sentencing judge's head and not inherent in the sentence itself.

         State v. Kanaras, 357 Md. 170, 742 A.2d 508 (1999) was an unusual case. The prisoner had originally been sentenced to a term of life imprisonment, which included the possibility of parole. Subsequent activities by the Parole Commission, the Commissioner of Correction, and the Governor had the effect of changing the prisoner's sentence to one of life imprisonment without the possibility of parole. The Court of Special Appeals agreed with the prisoner's claim that this governmental action had the effect of increasing the prisoner's sentence, ex post facto, and creating thereby an inherently illegal sentence pursuant to Rule 4-345(a). In reversing this Court, the Court of Appeals held that the admitted impropriety was, although illegal, was not inherent in the sentence itself.

"The prior acts of the Parole Commission and the Commissioner of Correction, which had the effect of denying inmates in Kanaras's position the parole consideration to which they were entitled under the statutory scheme, did not render illegal Kanaras's sentence. The illegality was in the conduct of the Parole Commission and the Commissioner of Correction; it did not inhere in Kanaras's sentence. ... A motion under Rule 4-345(a) to correct an illegal sentence, [ ] was not an appropriate action."

(Emphasis supplied).

         In Tshiwala v. State, 424 Md. at 620, the Court of Appeals held that the alleged procedural improprieties of a sentence review panel were not cognizable under Rule 4-345(a). In Chaney v.State, 397 Md. at 467, a complaint that there was no evidentiary foundation for an award of restitution was not an illegality inherent in the sentence itself. Baker v. State, 389 Md. 127, 883 A.2d 916 (2005), was a death penalty case. Empirical studies tending to show that there was both racial and geographic bias in the imposition of the death penalty did not show any inherent illegality in the sentence itself. Evans v. State, 389 Md. 456, 462-65, 886 A.2d 562 (2005) (the same). See also, Taylor v. State, 407 Md. 137, 141 n. 4, 963 A.2d 197 (2009).

         The Court of Appeals held in Hoile v. State, 404 Md. 591, 620-23, 948 A.2d 30 (2008), that a sentence imposed on the basis of a reconsideration granted in violation of the victim's statutory rights was not an illegal sentence within the contemplation of Rule 4-345(a). Pollard v. State, 394 Md. 40, 904 A.2d 500 (2006), dealt with a claim by a prisoner that his sentence of life imprisonment was illegal because the sentencing judge was unaware that he possessed the discretion to suspend all or part of the sentence. Such error or illegality, however, did not inhere in the sentence itself. "The sentence imposed was neither illegal, in excess of that prescribed for the offense ..., nor were the terms of the sentence itself statutorily or constitutionally invalid." 394 Md. at 42. State v. Wilkins, 393 Md. 269, 900 A.2d 765 (2006) involved the same failure of a sentencing judge to realize that he possessed discretion in the imposition of a sentence. The Court of Appeals held:

"We hold that a sentencing judge's failure to recognize his or her right to exercise discretion in the imposition of a sentence does not render the sentence illegal ...

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