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Moultrie v. State

Court of Special Appeals of Maryland

March 29, 2019

TEVIN MOULTRIE
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case Nos. 107085018, 107085020, 107085022, and 107085023.

          Nazarian, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Arthur, J.

         In 2008 Tevin Moultrie, age 16, pleaded guilty to second-degree murder and other related charges in the Circuit Court for Baltimore City. The court imposed the maximum sentence allowed under a binding plea agreement - 30 years' imprisonment.

         In 2016 the court denied Moultrie's petition for post-conviction relief, and he appealed. He presents the following questions for appellate review:

1. Where defense counsel filed a timely motion for reduction of sentence pursuant to Rule 4-345 but never followed up to request a hearing or a ruling before the five-year period for reducing a sentence expired, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel?
2. Where defense counsel incorrectly advised appellant that a three-judge sentence review panel could increase his sentence and appellant did not file an application for sentence review, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel?
3. Did the postconviction court err in denying appellant's claims for relief based on ineffective assistance of counsel where defense counsel failed to correct or object to the circuit court's legal errors during the juvenile transfer hearing, and failed subsequently to request a transfer to the juvenile court for disposition?

         For the reasons discussed below, we conclude that the post-conviction court erred in denying relief because of counsel's failure to pursue a hearing or a ruling on the motion to reduce the sentence. We also conclude that the post-conviction court erred in denying relief because of counsel's erroneous advice about a three-judge panel's ability to increase the maximum sentence allowed under a binding plea agreement. We decline to reach the merits of the third question.

         BACKGROUND

         Tevin Moultrie was born on November 19, 1991. On March 13, 2007, when he was not quite four months past his fifteenth birthday, Moultrie shot and killed another young man. As he ran from the police, Moultrie threw away a pistol. The gun went off when it hit the ground, and the police officers thought that Moultrie was firing at them.

         The State charged Moultrie, as an adult, with the offenses of first-degree murder; conspiracy to commit first-degree murder; two counts of attempted first-degree murder, first-degree assault, and second-degree assault (apparently of the police officers who were pursuing him when he discarded the gun); and three counts of the illegal use of a handgun and of wearing or carrying a handgun. On June 12, 2007, when Moultrie was not quite 15 years and seven months old, the Circuit Court for Baltimore City denied his motion for a reverse waiver to transfer the case to the juvenile court.

         On March 6, 2008, when Moultrie was 16 years and three months old, he pleaded guilty to second-degree murder, using a handgun in the commission of a crime of violence, and two counts of reckless endangerment. The plea agreement, to which the court bound itself, contemplated a 30-year cap on the total sentence, but permitted Moultrie to argue for less.

         On October 7, 2008, about six weeks before Moultrie's seventeenth birthday, the court sentenced him to 30 years' imprisonment for second-degree murder, a concurrent 20 years (the first five years without the possibility of parole) on the handgun count, and concurrent one-year sentences on the reckless endangerment counts.

         After the court imposed those sentences, Moultrie's counsel advised him about his post-sentencing rights:

[DEFENSE COUNSEL]: You also have thirty days to file to ask a three-judge panel to review this sentence. They could raise it. They could lower it. They could leave it the same. Do you understand that, sir?
THE DEFENDANT: Yes sir.
DEFENSE COUNSEL: You have 90 days from today to file a motion for modification. All of that must be in writing. I will file it for you, and-possibly, maybe the Court could allow it to hold it [sic] sub curia. Then maybe in a little while, in a few years, maybe we can hopefully come back and show the Court all the positive things you've done. Okay, sir?
THE DEFENDANT: Yes sir.
DEFENSE COUNSEL: Mr. Moultrie, whatever you do, recognize you still are only 17 years old. You've already been in almost two years. Okay sir? Recognize that if you continue to do the positive things that you do, and show the Court the positive, that you are going to be an asset to society, that maybe at that point in time, down the road, we can hopefully have this matter brought back in. Do you understand that sir?
THE DEFENDANT: Yes sir.
DEFENSE COUNSEL: You recognize life is not over. Do you ...

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