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.
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. 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. 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
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.
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 based on the court's
denial of his initial Motion to Correct Illegal Sentence, and
an application for leave to appeal 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.
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.
that the sentence imposed on Count 7 was illegal and agreeing
with the post-conviction court's choice of remedy, we
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.
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
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).
day that Hughes appeared for a motions hearing preliminary to
his new trial, a binding plea agreement was
negotiated. 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
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.
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. 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.
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.
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.
February 10, 2016, Hughes, now represented by counsel, filed
a petition for post-conviction relief, again challenging the
legality of the sentence. 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
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. 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,
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.
State's Nol Pros of Count Seven
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.
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."
the parties acknowledge the issue of the timeliness of the
nol pros, neither question the legal effect of its
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.
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.
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).
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
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.
State did not note a cross-appeal
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.
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