ROBERT P. SMALLWOOD
STATE OF MARYLAND
Circuit Court for Baltimore City Case No. 18204820
Wright, Beachley, Fader, JJ.
appellant, Robert P. Smallwood, presents us with the question
of whether an incarcerated individual whom a circuit court
has determined is imprisoned on an illegal sentence, and thus
must be resentenced, has a right to counsel for the
resentencing. We hold that he or she does.
1982, a jury sitting in the Circuit Court for Baltimore City
found Mr. Smallwood guilty of first-degree murder and use of
a handgun in the commission of a crime of violence. After a
dialogue in which the court made clear its intent to provide
Mr. Smallwood with credit for 72 days he had served while
awaiting trial, the court pronounced Mr. Smallwood's
sentence on the murder count as "for the term of his
natural life less 72 days, " concurrent with a sentence
of 15 years for the handgun conviction. On direct appeal, we
years later, Mr. Smallwood filed a pro se motion to correct
an illegal sentence pursuant to Rule 4-345(a) in which he
contended that his sentence was "ambiguous, indefinite,
and therefore illegal." In a February 2013 hearing, Mr.
Smallwood made the somewhat contradictory arguments: (1) that
his original sentence of "life less 72 days" was
ambiguous and vague; and (2) that the sentence required the
State to calculate his remaining life expectancy so that it
could set a release date 72 days before his expected death.
Although the motions court judge was initially skeptical, she
ended up granting his motion. She then, in the same hearing,
imposed a new sentence: "Your sentence for the murder,
sir, will be life suspend all but 80 years. And, for the
concurrent sentence, it's 15 years and you get credit for
the 72 days." The court also added five years'
probation to the split sentence.
other aspects of the relatively brief hearing are noteworthy
for our purposes. First, on two occasions Mr. Smallwood
raised his lack of counsel. Early in the hearing, Mr.
Smallwood stated: "I'm sorry. I want to apologize,
too. I don't have counsel. I tried to get counsel for
years; I couldn't do it. So, I tried to speak as best I
could." And just before the court ruled, Mr. Smallwood
again addressed his lack of counsel:
See, that's why I knew I shouldn't have came back
without an attorney. I tried for years to get an attorney. I
already knew this was - this sentence was ambiguous. I knew
it was vague. I tried for years to get an attorney; I
couldn't put myself in a position to get one, so I
decided to come down here anyway because I'm getting -
you know, I got 31 years in, so I can't wait any longer.
court did not follow up on either occasion.
after imposing the new sentence, the court requested the
assistance of an Assistant State's Attorney not involved
in Mr. Smallwood's case to advise Mr. Smallwood of his
appeal rights. The prosecutor advised Mr. Smallwood that he
had 90 days to file a motion to modify his new sentence and
30 days to ask a three-judge panel to review his new
sentence, but that he had no direct appeal right. Neither Mr.
Smallwood nor the State took an appeal at that time.
than a year later, in July 2014, Mr. Smallwood filed a pro se
postconviction petition challenging the motions court's
failure to provide him with counsel or advise him of his
right to counsel at resentencing. Mr. Smallwood conceded that
he did not have a right to counsel for the presentation of
his motion, but argued that once the court found his
"sentence illegal, then the only thing to do is impose a
new sentence. And at that new sentencing procedure, I'm
saying I should have been advised of my right to an
attorney." After the postconviction court raised sua
sponte whether Mr. Smallwood's postconviction claim
should have been raised on direct appeal, the court learned
that Mr. Smallwood had been advised that he had no right to
appeal. In supplemental briefing, the State conceded that Mr.
Smallwood had a right to direct appeal of his new sentence
and suggested that "the appropriate remedy is to allow
[Mr. Smallwood] to file a belated appeal."
written opinion, the postconviction court rejected Mr.
Smallwood's right-to-counsel claim. The court held that
the right to counsel applies only through direct appeal, and
does not extend to collateral proceedings like a motion to
correct an illegal sentence. But, noting the State's
concession as to Mr. Smallwood's appeal rights, the
postconviction court awarded Mr. Smallwood the right to file
a belated appeal from the order imposing his new sentence.
Mr. Smallwood's belated appeal is the matter now before
this matter arises out of a rather complicated procedural
history, most of that is irrelevant to the straightforward
issue before us: Once a court has granted a motion to correct
an illegal sentence, and so is going to impose a new
sentence, does the convicted person have a right to counsel?
We hold that he or she does.
Mr. Smallwood's Appeal Is Properly Before This
State raises three arguments as to why we cannot, or should
not, address the merits of Mr. Smallwood's
right-to-counsel claim in this appeal.
the State argues that Mr. Smallwood has no right to appeal
from the circuit court's grant of his motion to correct
an illegal sentence. But Mr. Smallwood appeals from the
sentence imposed by the circuit court, not from the grant of
his motion. To accept the State's argument would require
us to hold that no sentence imposed by a court after granting
a motion to correct an illegal sentence could be subject to
direct challenge by the convicted person. The State has not
pointed us to any authority for that
proposition. We rejected a similar argument in
Sanders v. State, 105 Md.App. 247 (1995). As with
Mr. Sanders in that case, Mr. Smallwood here "is not
appealing the grant of the motion to correct an illegal
sentence . . . ." Id. at 253. To the contrary,
Mr. Smallwood "is appealing the sentence that resulted
from resentencing." Id.; cf. Hoile v.
State, 404 Md. 591, 619 (2008) ("The new sentence
[imposed after a motion for reconsideration was granted]
represents a sentence imposed on [the defendant], and as
such, is appealable."); Webster v. State, 359
Md. 465, 477 (2000) ("Assessment of a new sentence
resurrects the penalty portion of a judgement; it replaces
the prior sentence. . . . Thus, the sentence imposed as a
result of the granting of the motion for reconsideration is
the appealable order . . . .").
the State contends that because Mr. Smallwood did not argue
below that he had a right to counsel at his resentencing,
"there is, technically speaking, no circuit-court ruling
denying Smallwood's counsel-related claims."
Although Mr. Smallwood did not expressly argue that he had a
right to have counsel present, he did twice call to the
motions court's attention his desire to have counsel
present. On neither occasion did the court ask a question.
if Mr. Smallwood did not preserve the issue, it is likely
because he lacked the assistance of counsel to help him
recognize the need to do so. Indeed, the right to counsel is
important precisely because it "seeks to protect a
defendant from the complexities of the legal system and his
or her lack of understanding of the law." Brye v.
State, 410 Md. 623, 634 (2009). For that reason, courts
are required to ensure that any waiver of the right is
knowing and voluntary: the right to counsel is "absolute
and can only be foregone by the defendant's affirmative
'intelligent and knowing' waiver." Robinson
v. State, 410 Md. 91, 107 (2009). "A
defendant's actual incarceration in a jail, as a result
of a proceeding at which he was unrepresented by counsel and
did not knowingly and intelligently waive the right to
counsel, is fundamentally unfair." DeWolfe v.
Richmond, 434 Md. 444, 460 (2013) ("DeWolfe
II") (quoting Rutherford v. Rutherford,
296 Md. 347, 360-61 (1983)) (emphasis removed). Additionally,
"if the right upon which the allegation is premised is a
fundamental right, the allegation will not be deemed waived
simply because it was not raised at a prior proceeding."
Wyche v. State, 53 Md.App. 403, 407 (1983). Because
the right to counsel is fundamental, it "may be waived
only where the petitioner intelligently and knowingly effects
the waiver." Id. Mr. Smallwood certainly made
no such waiver here. For these reasons, even if not
preserved, we would choose to exercise our discretion under
Rule 8-131(a) to consider Mr. Smallwood's claim.
the State argues that Mr. Smallwood's right-to-counsel
claim would more appropriately be considered in an appeal
from the denial of Mr. Smallwood's postconviction
petition, consideration of which this Court has stayed
pending the resolution of this direct appeal. We see no
reason to further postpone resolution of the important issue
raised here to await that collateral challenge. Cf. Greco
v. State, 427 Md. 477, 503-04 (2012) (stating that the
fact that the same issue was raised in a separate proceeding
in the Court of Special Appeals was not a reason to decline
review, but instead "lends support for this Court to
review the challenge to the sentence without further delay,
for the purpose of efficiency and complete resolution").
The issue has been fully briefed, presented, and argued here.
We also have the benefit of the record before the
postconviction court and of that court's analysis.
no impediment to our consideration of Mr. Smallwood's
challenge, we proceed to the merits.
II.The Proceeding in Question Was a ...