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Hughes v. State

Court of Special Appeals of Maryland

November 7, 2019


          Argued: February 1, 2018

          Circuit Court for Carroll County Case No. 06-K-03-029949

          Berger, Friedman, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.


          SHARER, J.


         In 2003, Anthony Thomas Hughes, appellant, was charged in the Circuit Court for Carroll County, in a 25-count indictment relating to violent offenses involving four victims.[1] He entered a plea of not guilty and proceeded to trial on an agreed statement of facts, resulting in conviction on all counts. On direct appeal, this Court reversed and ordered a new trial.[2] On November 14, 2005, prior to the ordered new trial, Hughes entered into a plea agreement, the details of which we shall recount, infra. It is that agreement, and the trial court's implementation of it, that has given rise to this appeal.

         In 2012, Hughes filed, pro se, a Motion to Correct Illegal Sentence, contending that he did not agree to what he characterized as a 75-year sentence. The motion was summarily denied, and Hughes noted an appeal, which, consequently, mirrored his motion and was not treated or acted on as an appeal. On February 10, 2016, Hughes, through counsel, filed a petition for post-conviction relief, again challenging the legality of the sentence based on an alleged breach of the plea agreement by the State and the trial court. Following a hearing, the court granted relief in part by vacating the conviction and sentence only as to Count 7 - the count that did not appear to conform to the terms of the plea agreement.

         Dissatisfied with the post-conviction court's grant of only partial relief, Hughes invoked the jurisdiction of this Court in two respects: he filed a notice of appeal[3] based on the court's denial of his initial Motion to Correct Illegal Sentence, and an application for leave to appeal[4] based on the court's consideration of his petition for post-conviction relief. We granted the application for leave to appeal and consolidated it with the direct appeal.

         On appeal, Hughes asks this Court to determine whether the post-conviction court erred by not allowing him to elect his remedy in response to the breach of the plea agreement, and by vacating the conviction and sentence as to Count 7 only, rather than vacating the entire plea agreement.[5]

         Finding that the sentence imposed on Count 7 was illegal and agreeing with the post-conviction court's choice of remedy, we shall affirm.


         Because Hughes presents only procedural questions, we need not set forth an extensive factual recitation in support of the underlying convictions. Therefore, we provide only a brief narration of the relevant background. See Teixeira v. State, 213 Md.App. 664, 666 (2013); Washington v. State, 190 Md.App. 168, 171 (2010). For context, we refer to the State's brief for a summary of the events of December 31, 2002.

         On that evening, Hughes broke into the home of his ex-wife, Ellen Redifer, in Westminster, Carroll County. Redifer, her daughter, Arianna Hughes and Arianna's boyfriend, Sean Malay, fled from the house, and were pursued by Hughes. Hughes caught Redifer and struck her multiple times in the head, neck and upper chest with a large framing hammer. Malay attempted to intervene but was threatened with the hammer. Redifer's neighbor, John Glover, responded and pulled Hughes away from Redifer, and he too was struck with the hammer. Hughes and Glover grappled, and Hughes cut Glover in the back of the head with a box cutter knife. At that point Hughes ran from the scene but returned and attempted to run down all of them with his car. Hughes then fled to a relative's house in West Virginia, where he was later arrested. Redifer survived the critical injuries sustained in the attack.


         On July 21, 2003, Hughes pleaded not guilty on an agreed statement of facts proffered by the State, after which the court found him guilty on all counts. The court imposed a sentence of life plus 45 years' imprisonment. Hughes appealed, arguing that he had not knowingly and voluntarily waived his right to a jury trial. This Court agreed, reversed his convictions, and ordered a new trial. See Hughes v. State, No. 2771, Sept. Term, 2003 (filed May 6, 2005).

         On the day that Hughes appeared for a motions hearing preliminary to his new trial, a binding plea agreement was negotiated.[6] Hughes agreed to plead guilty to five counts: Count 1 - attempted first-degree murder of Redifer; Count 7 - first-degree assault of the neighbor, John Glover; Count 11 - first-degree burglary; and to Counts 14 and 15 - second-degree assault of Arianna Hughes and Sean Malay, respectively. In exchange for the guilty plea the State agreed to ask for a sentence of 75 years' incarceration with all but 45 years suspended for the attempted murder count (Count 1). The remaining four counts (Counts 7, 11, 14 and 15) were to carry either suspended or concurrent sentences.

         Following recitation of the agreement, the court advised Hughes of his rights pursuant to Md. Rule 4-242, including an extensive voir dire to establish his competency to enter into the plea agreement. Thereafter, the court accepted the plea agreement, binding to its terms, and the State gave a factual proffer to support the charges. The court found Hughes guilty of the five counts and ordered a pre-sentence investigation. As agreed, the State then entered a nol pros of the remaining counts of the indictment.

         At sentencing, the State requested, pursuant to the binding plea agreement: as to Count 1 (attempted murder) 75 years' incarceration with all but 45 years suspended; as to Count 7 (first-degree assault), 25 years consecutive to Count 1, but suspended; and concurrent term-of-years sentences for the three remaining charges, all of which the court imposed.[7] As agreed at the plea hearing, the State had nol prossed the remaining counts that were not included in the plea agreement. Appellant did not object to the sentences as requested or imposed and confirmed on the record that he understood the sentences imposed and that he had no questions about them.

         Soon thereafter, Hughes moved to modify his sentence, and requested that the motion be held sub curia. The motion was denied without a hearing. On September 5, 2012, Hughes filed a pro se Motion to Correct Illegal Sentence, contending that he never consented to a 75-year sentence. That motion was also summarily denied.

         Hughes next filed an "Application for Leave to Appeal Denied [sic] the Motion to Correct Illegal Sentence." Other than the caption, the document was essentially a handwritten copy of his original typed motion. The Clerk's office noted on a "Case Frequency Report" that, "This motion has already been denied See order dated 9.24.12." Because of that, the filing was not treated as Hughes' appeal of the court's denial of his Motion to Correct Illegal Sentence, and no further action was taken by the court. The State had also filed a formulaic response to appellant's handwritten filing, incorporating its response to the original motion.

         On February 10, 2016, Hughes, now represented by counsel, filed a petition for post-conviction relief, again challenging the legality of the sentence.[8] He argued that the State and court violated the plea agreement when a 25-year consecutive sentence for Count 7 was requested and imposed, which exceeded the terms of the plea agreement, thereby rendering the sentence illegal. As to relief, he proclaimed his entitlement to either vacate the entire plea agreement, or to have it specifically enforced by making the Count 7 sentence a concurrent suspended sentence of 25 years, rather than consecutive.

         Following a hearing, the post-conviction court issued an order granting relief in part by vacating the conviction and the sentence for Count 7, leaving all other convictions and sentences unchanged.[9] The post-conviction court ordered a new trial on Count 7. At the time of Hughes' initial appearance pursuant to that Order, the State entered a nol pros to Count 7. Those events occurred on the day following Hughes' filing of a notice of appeal and an application for leave to appeal, to which we have referred, supra.[10]


         The procedural posture of this appeal requires that we preliminarily address two underlying issues: (1) the effect of the State's entry of nol pros as to Count 7 after an appeal had been noted; and (2) whether, when determining the appropriateness of the remedy afforded, we can review the post-conviction court's determination that the sentence imposed by the trial court was illegal. While these two issues were not directly argued by the parties in their respective briefs, they were considered below, and discussion is necessary in order for our discussion of the merits of the consolidated appeals.

         The State's Nol Pros of Count Seven

         Hughes does not directly challenge the State's ability to enter a nol pros of a count after the defendant has noted an appeal. Nonetheless, because it is a predicate to our review of the post-conviction court's decision, we shall briefly address the question.

         On April 25, 2017, Hughes filed his notice of appeal and an application for leave to appeal together with a motion to stay proceedings pending resolution of the appeals and, on the following day, the State entered a nol pros of Count 7. The State contends, generally, that "Hughes received more than [that] to which he was entitled under the plea agreement when the court vacated his felony conviction and sentence in count seven and the State elected not to reprosecute [sic] him on that charge."

         While the parties acknowledge the issue of the timeliness of the nol pros, neither question the legal effect of its post-judgment entry.

         An entry of nol pros on a count or charge reflects the "prosecutor's desire not to proceed against the accused on the basis of that particular charging document." State v. Ferguson, 218 Md.App. 670, 680 (2014) (quoting Huebner v. District Court of Maryland, 62 Md.App. 462, 470 (1985)). We have said, the "[e]ntry of a nol pros 'is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant's consent.'" Ferguson, 218 Md.App. at 680 (quoting Ward v. State, 290 Md. 76, 83 (1981)). However, that authority is not without limits.

         As we recently held in Simms v. State, 232 Md.App. 62 (2017), a "post-conviction nol pros is ineffective …." 232 Md.App. at 70. Simms went to trial on an agreed statement of facts and was found guilty. Id. at 64, 67. He was sentenced according to an agreed-upon sentence on one charge and the State nol prossed the remaining charges. Id. Simms then appealed, asserting, inter alia, insufficiency of the evidence. Id. at 64. While the appeal was pending before this Court, the State entered a nol pros of the count on which Simms had been convicted. Id. at 64, 67.

         The Court of Appeals granted certiorari and affirmed, sub nom, clarifying that

after a defendant has received a final judgment in the form of a conviction and sentencing, the State may not enter a nolle prosequi to alter the final judgment. Upon conviction and sentencing based upon an underlying charge, the underlying charge is no longer pending and the State's authority to enter a nol pros has ended. Final judgment terminates the case in the trial court…. Therefore, the State lacked the authority to nol pros in order to alter the final judgment or to eliminate the appellate process initiated by [appellant].

State v. Simms, 456 Md. 551, 578 (2017).

         The Court of Appeals reasoned, that "[b]ecause [appellant] appealed his conviction and sentence, the trial court had no jurisdiction to alter the conviction or sentence by relying on the State's nol pros authority." Id. at 576.

         We need not apply Simms to the matter before us, because we ultimately shall hold that the post-conviction court was correct in ruling that Hughes' sentence on Count 7 was illegal, and because we conclude that the remedy granted by the post-conviction court restores Hughes to the terms of the plea agreement, we assume, arguendo, the legal effect of the State's nol pros.

         The State did not note a cross-appeal

         A second preliminary inquiry is our authority to review the post-conviction court's underlying determination that the sentence exceeded the terms of the plea agreement. Attempting to limit the scope of our review, Hughes asserts that "[t]he lower court's finding that [his] sentence failed to conform to the parties' binding plea agreement is beyond the scope of this appeal …." because the State has failed to file a cross-appeal from the ruling of the post-conviction court.

         The scope of appellate review is governed by Maryland Rule 8-131, providing, in relevant part, that:

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial ...

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