Circuit Court for Prince George's County Case No.
CJ171506 Argued: May 6, 2019
Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth,
Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned)
Eugene Bailey was convicted by a jury in the Circuit Court
for Prince George's County of driving while impaired by
alcohol, reckless driving, negligent driving, and failure to
control speed to avoid a collision. At sentencing, the
circuit court enhanced Mr. Bailey's sentence as a
subsequent offender of § 21-902(b)(1) of the
Transportation Article (hereinafter "TR") of the
Maryland Code. Prior to trial, the State served Mr. Bailey
with a notice of his subsequent offender status as required
by Maryland Rule 4-245. However, this notice was sent ten
days prior to trial in the circuit court which was five days
less than required by Maryland Rule 4-245. At no point did
Mr. Bailey object to the punishment enhancement. Now, we
consider whether this belated notice resulted in an illegal
sentence requiring correction, or instead, whether the late
notice was a procedural deficiency subject to harmless error
facts underlying Mr. Bailey's conviction are not
essential to review in order for us to consider the merits of
Mr. Bailey's appeal. However, in order to provide
context, we note the following as to the underlying offense.
Mr. Bailey was driving on the Capital Beltway, Maryland
Interstate 495, in Prince George's County, when his
vehicle crashed into the rear of another vehicle on March 4,
2017. A police officer was nearby and heard the crash. As the
police officer was investigating the crash, he noticed Mr.
Bailey showed signs of intoxication. Mr. Bailey performed
field sobriety tests but refused to consent to a breathalyzer
or a blood test. Mr. Bailey was arrested and charged with
various traffic offenses, including driving while impaired by
alcohol in violation of TR § 21-902(b)(1).
Bailey prayed a jury trial in the District Court of Maryland
sitting in Prince George's County on June 16, 2017. Thus,
his jury trial prayer transferred jurisdiction to the Circuit
Court for Prince George's County. The trial was scheduled
on the circuit court docket for October 16, 2017.
Subsequently, Mr. Bailey filed a consent motion with the
State to continue the trial date. The trial was reset for
December 11, 2017.
State served its notice of increased penalty as a subsequent
offender to Mr. Bailey on December 1, 2017. However, the
notice was sent five days later than required by Maryland
Rule 4-245. The enhanced penalty was available under the
subsequent offender statute because Mr. Bailey had a prior
conviction for driving under the influence on January 24,
2017, in the District of Columbia.
two-day jury trial in the circuit court commenced on December
11, 2017. The jury found Mr. Bailey guilty of driving while
impaired and other related offenses. Mr. Bailey was sentenced
in February 2018 to one year of incarceration with all but
eight weekends suspended plus two years of probation. As a
subsequent offender, Mr. Bailey's potential exposure to
incarceration increased by ten months. During the trial and
sentencing hearing, Mr. Bailey did not object to the
imposition of the subsequent offender enhancement.
Mr. Bailey timely appealed his sentence to the Court of
Special Appeals. In an unreported opinion, the court split by
a 2-1 vote to affirm the sentence of the circuit court. The
majority opinion concluded that even though the "failure
to give any notice before trial is substantive and gives rise
to an illegal sentence," in this case the "failure
to give timely notice is a procedural error . . .
subject to harmless error analysis" and, in fact, did
"not give rise to an illegal sentence." Bailey
v. State, No. 2503, Sept. Term, 2017, 2019 WL 290066, at
*4 (Md. Ct. Spec. App. Jan. 2, 2019) (emphasis added).
reaching their conclusion, the majority applied King v.
State, 300 Md. 218 (1984). In King, this Court
determined that harmless error analysis applied when the
State filed a timely but insufficiently specific subsequent
offender notice. Id. at 232. The majority held that,
in this case, the error was harmless because Mr. Bailey had
"actual notice." Bailey, No. 2503 at *4.
Further, he did not sustain any prejudice as a result of the
belated notice and no due process concerns existed.
dissenting opinion in the Court of Special Appeals concluded
that this case should be controlled by Carter v.
State, 319 Md. 618 (1990). In Carter, the
sentencing court was not permitted to enhance the
defendant's sentence when the State did not provide the
defendant with any notice of the enhanced punishment prior to
trial. Id. at 623. Thus, if applying Carter
in this case, the sentencing judge should have been precluded
from enhancing Mr. Bailey's sentence. Bailey,
No. 2503 at *5 (dissenting opinion). The dissent provided
three reasons for its opinion: (1) "Carter was
written later than King and . . . did not employ the
harmless error analysis," therefore it modified the
holding in King; (2) "to the extent that
Carter and King are inconsistent," Mr.
Bailey's case is "closer to the facts in Carter
. . . than . . . in King"; and (3)
Carter is the "better-reasoned" opinion.
granted Mr. Bailey's petition for writ of certiorari on
March 5, 2019. Bailey v. State, 463 Md. 144
(2019). Mr. Bailey presented two questions for this Court to
(1) Did the Court of Special Appeals err in holding that the
trial court did not illegally impose an enhanced sentence
after the State failed to serve timely notice under Maryland
(2) If Mr. Bailey's sentence was not illegal, did the
Court of Special Appeals misapply the test for determining
whether Mr. Bailey received ineffective assistance of
regard to the first question, we hold that the State's
belated notice did not result in the trial court imposing an
illegally enhanced sentence. Instead, the State's belated
notice to Mr. Bailey was a procedural deficiency subject to
preservation requirements and not an illegal sentence that
may be challenged pursuant to Maryland Rule 4-345(a). As a
result, we review for harmless error Mr. Bailey's claim
and hold that Mr. Bailey was not prejudiced by the belated
notice. As for the ineffective assistance of counsel claim,
we decline to review that issue on direct appeal. Instead,
Mr. Bailey's ineffective assistance of counsel claim
should be considered within a post-conviction proceeding.
Therefore, we affirm the judgment of the Court of Special
Sentence enhancement pursuant to Maryland Rule
primary question in this case is whether enhancement of a
subsequent offender's sentence is legal when the State
files a belated notice of the enhancement that did not comply
with Maryland Rule 4-245(b). Mr. Bailey was convicted of
driving while impaired by alcohol in violation of TR §
21-902(b)(1). As a first-time offender, Mr. Bailey would have
been subjected to "imprisonment not exceeding 2 months
or a fine not exceeding $500 or both." TR §
21-902(b)(1)(ii)(1). However, as a subsequent offender, Mr.
Bailey's potential exposure under the enhanced sentence
increased to "imprisonment not exceeding 1 year or a
fine not exceeding $500 or both." TR §
Rule 4-245 articulates procedures the State is required to
follow in order to potentially subject a defendant to an
enhanced penalty as a subsequent offender. In relevant part,
this rule provides:
(a) Definition. A subsequent offender is a
defendant who, because of a prior conviction, is subject to
additional or mandatory statutory punishment for the offense
(b) Required Notice of Additional Penalties.
When the law permits but does not mandate additional
penalties because of a specified previous conviction, the
court shall not sentence the defendant as a subsequent
offender unless the State's Attorney serves notice of the
alleged prior conviction on the defendant or counsel before
the acceptance of a plea of guilty or nolo contendere or at
least 15 days before trial in circuit court or five days
before trial in the District Court, whichever is earlier.
(c) Required Notice of Mandatory Penalties.
When the law prescribes a mandatory sentence because of a
specified previous conviction, the State's Attorney shall
serve a notice of the alleged prior conviction on the
defendant or counsel at least 15 days before sentencing in
the circuit court or five days before sentencing in the
District Court. If the State's Attorney fails to give
timely notice, the court shall postpone sentencing at least
15 days unless the defendant waives the notice requirement.
(e) Determination. Before sentencing and
after giving the defendant an opportunity to be heard, the
court shall determine whether the defendant is a subsequent
offender as specified in the notice of the State's
Bailey acknowledges that he would qualify as a subsequent
offender under the statute. As TR § 21-902(b)(1)(i) did
not require the court to impose an enhanced
sentence-i.e., the enhancement was not mandatory, the State
was required to send notice to Mr. Bailey pursuant to
Maryland Rule 4-245(b). However, the State's notice was
five days late. In this appeal, the State concedes that the
notice was not timely pursuant to the Rule.
Bailey contends before this Court that under Maryland Rule
4-245(b), the sentencing judge had no discretion to enhance
Mr. Bailey's sentence as a subsequent offender because of
the State's failure to serve timely notice of the
enhanced penalty. Further, under Maryland Rule 4-345(a), if a
trial court has no discretion to impose the sentence, then
the imposed sentence is illegal. Therefore, Mr. Bailey
asserts that his sentence was illegal because the trial court
did not have discretion to impose the enhanced penalty and
thus must be vacated under Maryland Rule 4-345(a).
State contends that the Court of Special Appeals correctly
concluded that Mr. Bailey's enhanced sentence for driving
while impaired was not an illegal sentence for purposes of
Maryland Rule 4-345(a). The State posits that non-compliance
with the notice requirement was a procedural error that was
subject to preservation and waiver. Moreover, Mr. Bailey did
not adequately preserve his objection and this matter is
subject to harmless error review. The State argues the
belated notice amounted to harmless error because Mr. Bailey
has not alleged any prejudice from the belated notice.
Review of Mr. Bailey's sentence pursuant to Maryland Rule
threshold question, we must determine whether the circuit
court's application of the enhancement after the
State's belated notice was an imposition of an
"illegal" sentence under Maryland Rule 4-345(a).
Pursuant to Maryland Rule 4-345(a), "[t]he court may
correct an illegal sentence at any time." If the
sentence is illegal, it is not subject to preservation
requirements and may be corrected even if: "(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."
Chaney v. State, 397 Md. 460, 466 (2007). In this
case, Mr. Bailey never objected to the imposition of the
enhancement in the circuit court. Therefore, in order for Mr.
Bailey to secure review of his unpreserved objection, this
Court must determine the sentence was illegal.
legality of a sentence under Maryland Rule 4-345(a) is a
question of law reviewed de novo. State v. Crawley,
455 Md. 52, 66 (2017). In construing the Maryland Rules,
"we apply the same principles of construction employed
in interpreting statutes." Lee v. State, 332
Md. 654, 658 (1993). Maryland Rule 4-345(a) is intended to
correct sentences that are "inherently illegal",
not just "merely the product of procedural error."
See, e.g., Colvin v. State, 450 Md. 718,
728 (2016) ("With this case, we reaffirm the rule that
only claims sounding in substantive law, not procedural law,
may be raised through a [Maryland] Rule 4-345(a)
motion."); Matthews v. State, 424 Md. 503, 512
(2012) ("[T]he illegality must inhere in the sentence
itself, rather than stem from trial court error during the
sentencing proceeding."); Tshiwala v. State,
424 Md. 612, 619 (2012) ("A sentence does not become
'an illegal sentence because of some arguable procedural
flaw in the sentencing procedure.'" (citations
omitted)); Montgomery v. State, 405 Md. 67, 74-75
(2008) ("[A] trial court error during the sentencing
proceeding is not ordinarily cognizable under Rule 4-345(a)
where the resulting sentence or sanction is itself
on the review of our precedent, the imposition of a sentence
enhancement despite the State's failure to timely serve
the notice for the enhanced sentence does not qualify as an
illegal sentence pursuant to Maryland Rule 4-345(a). We
decline to expand our prior interpretation of an
"illegal" sentence to include cases such as this
one. We have previously stated that "[t]he scope of this
privilege, allowing collateral and belated attacks on the
sentence and excluding waiver as a bar to relief, is
narrow." Chaney v. State, 397 Md. 460, 466,
(2007) (emphasis omitted). "In other words, a motion to
correct an illegal sentence is not an alternative method of
obtaining belated appellate review of the proceedings that
led to the imposition of judgment and sentence in a criminal
case." State v. Wilkins, 393 Md. 269, 273
(2006). The State's imperfect compliance created a
procedural deficiency in the sentence but not a sentence in
which the circuit court ...