Circuit Court for Baltimore City Case Nos. 107085018,
107085020, 107085022, and 107085023.
Nazarian, Arthur, Eyler, James R. (Senior Judge, Specially
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'
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?
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.
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.
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
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.
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.
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,
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