Antoine v. State

Gary Antoine v. State of Maryland, et al., No. 2880, September Term, 2018. Opinion by Fader, C.J. CRIMINAL LAW — APPEALS — VICTIMS’ RIGHTS A crime victim may appeal to the Court of Special Appeals from a final order that denies or fails to consider a right secured to the victim by §§ 4-202, 11-102, 11-103(e)(4), 11-104, 11-302, 11-402, 11-403, or 11-603 of the Criminal Procedure Article; § 3-8A-06, § 3-8A-13, or § 3-8A-19 of the Courts and Judicial Proceedings Article; or § 6-112 of the Correctional Services Article. CRIMINAL PROCEDURE — SENTENCING — VICTIM IMPACT EVIDENCE Before a trial court commits itself to a particular disposition of a criminal case by approving finally a binding plea agreement under Maryland Rule 4-243, the court must provide any identifiable victim whose desire to present victim impact evidence has been made known to the court with a reasonable opportunity to present victim impact evidence in accordance with §§ 11-402 and 11-403 of the Criminal Procedure Article. CRIMINAL PROCEDURE — VICTIMS’ RIGHTS — REMEDIES A court that finds a crime victim’s rights have been violated may grant relief necessary to rectify the violation, provided that the victim requests relief within 30 days of the violation and that the remedy does not violate a defendant’s constitutional right to be free from double jeopardy.

CONSTITUTIONAL LAW — FIFTH AMENDMENT — VICTIMS’ RIGHTS When a court errs by not affording a crime victim the ability to present victim impact evidence before giving final approval to a binding plea agreement, the defendants’ Fifth Amendment right to be free from double jeopardy is not violated if the trial court or an appellate court vacates the trial court’s approval of the binding plea agreement to permit the court to receive appropriate victim impact evidence. Circuit Court for Baltimore City Case No. 818250021 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2880 September Term, 2018 ______________________________________ GARY ANTOINE v. STATE OF MARYLAND, ET AL. ______________________________________ Fader, C.J., Beachley, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: April 14, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-20 14:55-04:00 Suzanne C. Johnson, Clerk Over the past several decades, the General Assembly has tried repeatedly to provide meaningful rights to crime victims that can be enforced without violating the constitutional rights of criminal defendants. Over that same period, the Court of Appeals similarly “has continuously balanced the legislature’s public policy mandate of affording victims broad rights against the need for appropriate limitations.” Lopez v. State, 458 Md. 164, 179 (2018).

Here, we are called upon to determine whether the rights of a crime victim were violated in the course of criminal proceedings that resulted in a guilty plea agreement and, if so, whether a remedy exists that can be enforced without violating the constitutional rights of the criminal defendant. Gary Antoine, the appellant, was assaulted by Dorian Bostic, the appellee. During a hearing that a prosecutor advised Mr. Antoine not to attend, the Circuit Court for Baltimore City became involved in negotiating a plea agreement with Mr. Bostic and, without first hearing from Mr. Antoine, bound itself to a disposition of probation before judgment. When Mr. Antoine subsequently asked the court to reconsider its decision and hear from him before reaching a final determination regarding Mr. Bostic’s sentence, the court responded that it lacked authority to reopen Mr. Bostic’s disposition.

Mr. Antoine now argues that the circuit court’s actions denied him his constitutional and statutory right to present victim impact evidence before sentencing. We agree. When a victim has invoked sufficiently his or her right to present victim impact evidence before sentencing, a court errs as a matter of law if it approves a plea agreement that binds the court to a particular sentence without first giving the victim a reasonable opportunity to present appropriate victim impact evidence. We also hold that when such an error occurs, § 11-103(e)(2) of the Criminal Procedure Article (Repl. 2018; Supp. 2019) authorizes a remedy that is both effective and respectful of the constitutional rights of defendants.

That remedy is to vacate the sentence and the trial court’s final approval of the plea agreement, and require the court to receive and consider victim impact evidence before deciding whether to give final approval of the plea agreement. We will apply that remedy here. BACKGROUND Maryland’s Statutes Protecting the Rights of Crime Victims Protections for the rights of crime victims in Maryland are contained in both Article 47 of the Declaration of Rights, and in Title 11 of the Criminal Procedure Article.1 Of particular relevance here, § 11-402 establishes a crime victim’s right to present, and the sentencing court’s obligation to consider, a victim impact statement; and § 11-403 establishes the victim’s right to address the court before the court imposes a sentence or other disposition. As set forth in § 11-402(e), a “victim impact statement” must identify the victim; itemize the victim’s economic loss; identify and describe the seriousness of any physical injuries; “describe any change in the victim’s personal welfare or familial relationships”; “identify any request for psychological services”; identify any request to prohibit contact with the victim; and “contain any other information related to the impact on the victim or the victim’s family that the court requires.” Section 11-402(b) provides that “[i]f the court does not order a presentence investigation or predisposition investigation, the prosecuting 1 Unless otherwise indicated, all statutory citations in this opinion are to the Criminal Procedure Article of the Annotated Code of Maryland (Repl. 2018; Supp. 2019). 2 attorney or the victim may prepare a victim impact statement to be submitted to the court and the defendant . . . in accordance with the Maryland Rules.” Section 11-402(d) requires the court to “consider the victim impact statement in determining the appropriate sentence or disposition and in entering a judgment of restitution for the victim . . . .” Section 11-403(b) provides that “the court, if practicable, shall allow the victim or the victim’s representative to address the court under oath before the imposition of sentence or other disposition.” A victim who chooses to address the court is subject to cross- examination “limited to the factual statements made [by the victim] to the court,” id. § 11-403(c), but a victim also has a right not to address the court, id. § 11-403(d).2 The rights of victims are further specified in § 11-103(b) and (e).

Section 11-103(b) provides appellate rights to crime victims. That section provides, in pertinent part: Although not a party to a criminal or juvenile proceeding, a victim of a crime for which the defendant . . . is charged may file an . . . appeal to the Court of Special Appeals from a final order that denies or fails to consider a right secured to the victim by subsection (e)(4) of this section, . . . § 11-402, [or] § 11-403, . . . of this title . . . .[3] 2 Victims also have a right to appear at hearings on motions to revise, modify, or reduce a sentence or other disposition. Crim. Proc. § 11-403(a), (b).

If a victim fails to appear at any such hearing, the proceeding may continue only if the prosecuting attorney states on the record that (i) “the victim or victim’s representative was contacted by the prosecuting attorney and waived the right to attend the hearing”; (ii) the victim or victim’s representative could not be located despite efforts made to do so, or (iii) “the victim or victim’s representative ha[d] not filed a notification request form.” Id. § 11-403(e)(1). “If the court is not satisfied by the [prosecutor’s] statement . . . the court may postpone the hearing.” Id. § 11-403(e)(2). 3 Both the LexisNexis and West versions of the Maryland Code contain misleading captions both for § 11-103, in general, and § 11-103(b), in particular. Both captions in both versions refer only to victims’ right to seek leave to appeal, presumably because until recently, that was all the statute provided. In 2013, however, the General Assembly 3 Section 11-103(e) makes courts responsible for ensuring that victims’ rights are honored, and authorizes them to fashion appropriate remedies if not: (1) In any court proceeding involving a crime against a victim, the court shall ensure that the victim is in fact afforded the rights provided to victims by law. (2) If a court finds that a victim’s right was not considered or was denied, the court may grant the victim relief provided the remedy does not violate the constitutional right of a defendant . . . to be free from double jeopardy.

(3) A court may not provide a remedy that modifies a sentence of incarceration of a defendant . . . unless the victim requests relief from a violation of the victim’s right within 30 days of the alleged violation. (4)(i) A victim who alleges that the victim’s right to restitution under § 11-603 of this title was not considered or was improperly denied may file a motion requesting relief within 30 days of the denial or alleged failure to consider. (ii) If the court finds that the victim’s right to restitution under § 11-603 of this title was not considered or was improperly denied, the court may enter a judgment of restitution. Section 11-103(e)(1) thus requires a court to ensure that a victim’s statutory rights are protected; § 11-103(e)(2) authorizes a court to provide a remedy if it finds that those rights have not been protected; and § 11-103(e)(3) expressly contemplates that such a remedy might include the modification or alteration of a sentence.

With this statutory background in mind, we turn to the case before us. expanded the statute to permit direct appeals from final judgments. 2013 Md. Laws, ch. 363. By delivering copies of this opinion to LexisNexis and West, we hereby suggest that they change the captions of these sections to reflect that change. See Carter v. State, 236 Md. App. 456 , 481-82 & n.15 (2018). 4 Factual Background The State presented the following recitation to provide the factual basis in support of Mr. Bostic’s guilty plea: [V]ictim Antoine[,] Gary, is a teacher at Patterson High School. [Mr. Antoine] was leaving the school building when [Mr. Bostic] pepper sprayed [him]. [Mr. Bostic] . . . then pulled out an aluminum bat, was swinging at [Mr. Antoine]. [Mr. Bostic] hit [Mr. Antoine] with the bat on [Mr. Antoine]’s right forearm and left wrist. [Mr. Bostic] then ran to his car and shouted, “I’m going to run you over” to [Mr. Antoine]. [Mr. Bostic] sped out of the parking lot. [Mr. Antoine] was transported to Hopkins Bayview for his injuries. [Mr. Antoine]’s right ulna was found to be broken during the assault. [Mr. Antoine] received medication for pain management and was referred to an orthopedic surgeon for surgery needed . . . to correct his injury. [Mr. Antoine] was able to identify [Mr. Bostic] because they taught together at Patterson High School in 2015. Incident was also captured on school security video.

Other witnesses also saw the assault and were able to identify [Mr. Bostic], during which . . . [Mr. Antoine]’s laptop, remote control drone, smart watch, and camera were damaged to the amount of approximately $3,000. If called to testify, all witnesses would identify [Mr. Bostic]. All of this did occur in Baltimore City, Maryland. Mr. Bostic accepted the State’s factual recitation, with the exception of “the swinging of the bat and the attempt to run over in the vehicle.” The October 15, 2018 Guilty Plea and Sentencing Hearing On October 15, 2018, Mr. Bostic appeared in the Circuit Court for Baltimore City for his scheduled trial date.

Because the prosecutor assigned to the case was on paternity leave, a stand-in prosecutor represented the State. Mr. Antoine was not present, but was instead “on call,” because the assigned prosecutor—anticipating that the trial would be postponed in his absence—had told Mr. Antoine that “nothing substantive would occur” and “not to appear” in court. 5 When Mr. Bostic’s case was called, the circuit court asked whether there was “any possibility of a plea.” The stand-in prosecutor informed the court that the State had offered “18 in 18”—i.e., a suspended sentence of 18 months followed by 18 months of supervised probation—and that the State was willing to reduce the period of supervised probation to 12 months. After further discussions away from the bench, the parties returned for another conference, at which time defense counsel conveyed that the parties were “very close,” but needed the court’s “wisdom to assist us with this case if you can offer it.” The court initially responded that it would “not go[] under [the State’s] offer,” and, when informed that there was “potentially significant restitution,” expressed an unwillingness to resolve the case without “an agreement as to restitution,” when the victim had “ask[ed] for it.” In response, Mr. Bostic’s counsel complained that Mr. Antoine “was supposed to be here today like everybody else.” After the stand-in prosecutor informed the court of Mr. Antoine’s “on call” status based on the assigned prosecutor’s unavailability, defense counsel again asked the judge to intervene in the plea negotiations “to get this thing over with and put it behind us.” The following exchange then occurred: THE COURT: All right. This is what I’ll do.

I will actually go—I will give [Mr. Bostic] probation before judgment. Okay. [DEFENSE COUNSEL]: Oh, okay. THE COURT: All right. I’ll give him probation before judgment.

But I’m not—you know, and if he wants and I’ll postpone it for a hearing on restitution. That’s the best you’re going to get. [DEFENSE COUNSEL]: Six. You’ll post—we’ll do it. We’re going to take that probation before judgment. 6 THE COURT: Sure.

I don’t— [DEFENSE COUNSEL]: We will take that any day. The stand-in prosecutor then summarized the status of the “offers”: “The State’s offer was 18 months suspended, one year of supervised probation. The Court’s offer is [ ] probation before judgment, one year supervised, no contact with the victim.” Mr. Bostic accepted the court’s offer and pleaded guilty to a charge of second- degree assault. After the prosecutor read the factual statement recited above, and the court concluded that there was a factual basis for the plea, the court promised “to strike the guilty finding, post probation before judgment,” with “one year supervised probation.” Mr. Bostic also agreed to pay restitution in an amount to be determined by the court at a later hearing, in exchange for which the court would “make [the probation] unsupervised.” The November 1, 2018 Motions Hearing and November 14, 2018 Restitution Hearing On November 1, 2018, Mr. Bostic, his attorney, and the assigned prosecutor appeared before the circuit court for the scheduled restitution hearing.

This time, Mr. Antoine and his attorney were also present. Immediately before the hearing, Mr. Antoine had filed two motions. In the first, he asked that the court “[s]et aside the plea and disposition of October 15, 2018 on account of the violations of victim’s rights.” In the second, Mr. Antoine sought restitution. The court focused the hearing on the first motion and postponed consideration of restitution until November 14.

At the November 1 hearing, Mr. Antoine argued that the court had violated his rights as a victim by failing to allow him “to be heard at a meaningful time” as required by 7 §§ 11-402 and 11-403. He also argued that the court had imposed an illegal sentence upon Mr. Bostic by “negotiat[ing] [a] binding disposition to which the State d[id] not agree.” Mr. Antoine sought relief under § 11-103(e)(2) and (3). Specifically, he requested that the court repudiate the bargain negotiated with Mr. Bostic and permit Mr. Bostic to withdraw his guilty plea so that Mr. Bostic, the State, and Mr. Antoine could “start over.” The court “assume[d], for the sake of argument, that the notifications and various rights for Mr. Antoine, as the victim, were not complied with.” Nevertheless, the court expressed disbelief that it “c[ould] do a new sentencing,” saying, “I don’t believe I have the authority to vacate this and then impose a stronger, a more stringent sentence.” The court offered to allow Mr. Antoine to speak before it proceeded to the issue of restitution, but Mr. Antoine’s counsel argued that presenting victim impact evidence at that stage would “ha[ve] no meaning because the Court can’t do what the statute requires which is to consider it.” In light of the court’s decision, Mr. Antoine “agree[d] that the Court should go forward with restitution.” The court reconvened on November 14 to consider restitution. A few hours before the hearing, Mr. Antoine filed a notice of appeal to this Court.

At the hearing, Mr. Antoine testified at length regarding the losses he suffered as a result of Mr. Bostic’s conduct. The court heard Mr. Antoine’s testimony as well as argument from counsel and then awarded Mr. Antoine the full amount of restitution sought. The court “f[ound] [Mr. Bostic] ha[d] the ability to pay” and ordered him to “pay restitution during the period of probation.” 8 DISCUSSION Mr. Antoine contends that the trial court violated his rights: (1) under § 11-402(b), by denying him an opportunity to submit a victim impact statement to the court; (2) under § 11-402(d), by failing to “consider the victim impact statement in determining the appropriate sentence”; and (3) under § 11-403(b), by declining to “allow [him] . . . to address the court under oath before the imposition of sentence.” Mr. Antoine also argues that the trial court violated the separation of powers and imposed an illegal sentence upon Mr. Bostic by “negotiat[ing] the plea directly with the [d]efendant . . . , which undercut the prosecution’s plea offer.” The State “largely agrees with [Mr.] Antoine’s position.”4 4 The State, which is nominally an appellee in this case, filed a brief that “asks th[is] Court to vacate the sentencing judgment of the Circuit Court for Baltimore City.” “[O]ne who seeks to attack, modify, reverse, or amend a judgment . . . is required to appeal or cross appeal from that judgment,” Paolino v. McCormick & Co., 314 Md. 575, 579 (1989), which the State did not do here. As this Court has recognized, parties “cannot properly cast themselves as appellees if they are supporting the position of [the] appellant.” Matta v. Bd. of Educ., 78 Md. App. 264 , 267 n.1 (1989).

Although the State is not a proper appellee, we nonetheless elect to consider the arguments in the State’s brief as though it were participating in this case as an amicus in support of Mr. Antoine. In a motion for reconsideration filed after this opinion was initially issued, the State requested that we delete the foregoing paragraph because the issue of whether the State was a proper appellee “was not raised or briefed by any of the parties.” That is correct, although the State did respond to questions by the Court on that issue during oral argument. Cf. Att’y Grievance Comm’n v. Johnson, 409 Md. 470, 505 (2009) (addressing an issue that, “although not briefed by the parties, . . . was raised during oral argument before this Court”).

Regardless, although we ordinarily would not decide an issue that was not raised and briefed by the parties, we cannot bypass a determination regarding what parties and arguments are properly before us. The State also suggests that our determination that it is not a proper appellee may have implications for its ability to confess error in other cases. For the avoidance of doubt, we clarify that it does not. The Rules contemplate that appellants and appellees will be adverse parties with respect to the issues on appeal.

Rule 8-111(a)(1) thus designates the 9 We agree with Mr. Antoine that the trial court improperly “denie[d] or fail[ed] to consider” Mr. Antoine’s rights as a crime victim, § 11-103(b), and that the court’s error was not beyond its (or our) power to repair. Accordingly, we will vacate Mr. Bostic’s sentence and the trial court’s approval of the plea agreement and remand for the circuit court to consider approving the plea agreement after it allows Mr. Antoine the opportunity to present victim impact evidence. If the court ultimately decides not to approve the plea agreement, then it will, of course, be required to give Mr. Bostic the opportunity to withdraw his guilty plea. Md. Rule 4-243(c)(4). first party to appeal as the appellant, and the “adverse party” as the appellee.

(emphasis added). The Rule similarly designates “the opposing parties to a subsequently filed appeal” as cross-appellant and cross-appellee. Id. (emphasis added).

Nonetheless, an appellee is always permitted to concede that it cannot defend all or part of a court’s ruling, and to identify what it believes to be the implications of such a concession. For a party who seeks to attack a judgment, however, “the only method of securing review by the Court of Special Appeals is by the filing of a notice of appeal within the time prescribed by Rule 8-202.” Md. Rule 8-201(a). Moreover, permitting an appellee to advocate for reversal when, as here, there is another appellee who seeks affirmance implicates principles of fairness. Unless the schedule and parties are re-aligned in advance of briefing—which the State did not request here—the true appellee would be placed at a disadvantage.

For one thing, the true appellee’s brief would be due on the same date as that of the nominal appellee, an adverse party, with no provision in the Rules for a response. (Here, the State’s “Brief of Appellee” was actually filed more than a month after Mr. Bostic’s appellee’s brief.) By contrast, when an amicus curiae files a brief supporting the position of an appellant, Rule 8-511(f) permits the appellee to file a brief in response. Furthermore, all appellees are ordinarily expected to share time at oral argument. Here, Mr. Antoine was afforded all of the appellant’s argument time, while the State used some of the appellees’ time to argue in support of Mr. Antoine.

Although oral argument times can be adjusted, the default rules reflect the expectations for the alignment of the parties that are established by the Rules. 10 I. MR. ANTOINE HAS STANDING TO APPEAL THE VIOLATIONS OF HIS RIGHTS. “The State of Maryland has expressed a clear public policy throughout the last thirty-five years to provide broad rights to crime victims,” Lopez v. State, 458 Md. 164, 175 (2018), in both Maryland’s trial and appellate courts. The first statute “enacted . . . in pursuit of that public policy goal” was Maryland’s victim impact evidence statute, which became law in 1982. Id.

(citing 1982 Md. Laws, ch. 494). The statute “required a presentence investigation report to include a victim impact statement if the defendant committed certain crimes that caused injuries to a victim.” Lopez, 458 Md. at 175 . In 1986, the General Assembly “expand[ed] the ways in which victims could present evidence at sentencing proceedings” by allowing victims, their family members, or their representatives “to address the sentencing court, as long as permitted by the sentencing judge.” Id. at 175-76 (citing 1986 Md. Laws, ch. 127). Victims’ rights gained constitutional recognition in 1994 when the electorate ratified Article 47 of the Declaration of Rights.

Article 47 provides, in pertinent part: (a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. (b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are implemented and the terms “crime”, “criminal justice proceeding”, and “victim” are specified by law. To enforce Article 47, the General Assembly passed the Victims’ Rights Act of 1997. Lopez, 458 Md. at 176 (citing 1997 Md. Laws, ch. 311).

Among other things, that Act 11 provided that, at the victim’s or the State’s Attorney’s request, the trial court “shall, if practicable, permit the victim or the victim’s representative under oath or affirmation to address the judge before the imposition of sentence or other disposition.” 1997 Md. Laws, ch. 311, at 2225. But “notwithstanding th[e] supposed beneficence to victims” embodied in Article 47 and Maryland’s victims’ rights statutes, until recently the General Assembly “made those hard-won rights largely illusory” by declining to “afford[] victims the right to appeal if those basic rights [were] denied.” Lopez-Sanchez v. State, 388 Md. 214, 230-31 (2005) (Wilner, J., concurring). In a series of decisions, the Court of Appeals highlighted the absence of effective appellate rights in the State’s statutory scheme. As early as 1985, the Court of Appeals observed that the victim impact testimony statute had “no teeth” because it did not allow courts to invalidate a defendant’s sentence if a victim’s rights were denied.

Lodowski v. State, 302 Md. 691, 747 (1985) (quoting Md. House Judiciary Comm., Mem. re H.B. 68 & 70 (1983)), vacated on other grounds, 475 U.S. 1078 (1986). In 1995, the Court of Appeals relied on the legislative history discussed in Lodowski to hold that victims were not permitted to appeal a defendant’s sentence when they “were denied their right to address the sentencing court.” Cianos v. State, 338 Md. 406, 410 (1995). The Court reasoned that legislators had deliberately rejected previous “attempts . . . to provide victims of violent crime with an avenue of redress” because they were “worried . . . [about] the possibility of placing the defendant in jeopardy a second 12 time during the sentencing hearing.”5 Id. at 411-12 (quoting Lodowski, 302 Md. at 747 ) (quoting Md. House Judiciary Comm., supra). Therefore, the Court concluded, “[a]n appeal by a victim . . . cannot result in a reversal of the judgment and a reopening of the case.” Cianos, 338 Md. at 411 .

Similarly, in Hoile v. State, the Court of Appeals held that, under the then-current version of § 11-103, a victim whose rights had been violated when a trial court reduced a defendant’s sentence without the victim’s input was “powerless to have that judgment reopened or vacated.” 404 Md. 591, 627 (2008). In Chapter 363 of the Acts of 2013, the General Assembly made several important changes to § 11-103, including changes aimed at superseding aspects of Hoile and Cianos. See Md. Gen. Assembly, Dep’t of Legis.

Servs., Fiscal & Policy Note on HB 250, at 3 (Mar. 25, 2013), http://mgaleg.maryland.gov/2013RS/fnotes/bil_0000/hb0250.pdf (last visited December 13, 2019) (noting Hoile’s holding “that a trial court could not vacate an altered sentence” for violation of a victim’s rights). First, whereas the statute previously had afforded appellate rights only to victims of violent crime, Chapter 363 extended those rights to all crime victims. 2013 Md. Laws, ch. 363, § 1, codified at Crim. Proc. § 11-103(a)(1). Second, although the statute previously limited a victim to filing an application for leave to appeal, Chapter 363 gave victims the right to file a direct “appeal to the Court of Special Appeals from a final order that denies or fails to consider a right secured to the victim” by, among other statutes, §§ 11-402 and 11-403. 2013 Md. Laws, 5 The original House bill allowing for victim impact testimony had “provided for a sentence to be invalidated absent [such] testimony.” See Lodowski v. State, 302 Md. 691, 747 (1985).

Due to the legislators’ concerns that the Court discussed in Lodowski, however, the provision was dropped before the bill passed. See id. at 747-48 . 13 ch. 363, § 1, codified at Crim. Proc. § 11-103(b). Third, Chapter 363 authorized a court that “finds that a victim’s right was not considered or was denied” to “grant the victim relief provided the remedy does not violate the constitutional right of a defendant . . . to be free from double jeopardy.” 2013 Md. Laws, ch. 363, § 1, codified at Crim.

Proc. § 11-103(e)(2). Fourth, Chapter 363 provided that “[a] court may not provide a remedy that modifies a sentence of incarceration of a defendant . . . unless the victim requests relief from a violation of the victim’s right within 30 days of the alleged violation.”6 2013 Md. Laws, ch. 363, § 1, codified at Crim. Proc. § 11-103(e)(3). As a result of the 2013 amendments to § 11-103, Mr. Antoine has standing to challenge the circuit court’s alleged violations of his rights, and to seek an appropriate remedy.

II

THE CIRCUIT COURT VIOLATED MR. ANTOINE’S RIGHTS UNDER MARYLAND’S VICTIMS’ RIGHTS STATUTES. Ordinarily, we review the trial court’s “decision to admit [or exclude] certain victim impact evidence during a sentencing hearing . . . for abuse of discretion.” Lopez, 458 Md. at 180 . “When the evidentiary determination also involves a question of law,” however, “that legal issue is reviewed de novo.” Id. Thus, “a sentencing judge will err as a matter 6 The General Assembly’s most recent amendment to § 11-103 also came in response to an appellate decision.

In Griffin v. Lindsey, the trial court had denied the victim restitution and the victim had moved for reconsideration under § 11-103(e)(4). 444 Md. 278, 283 (2015). The court denied the motion for reconsideration and the victim applied for leave to appeal that denial. Id. at 284 . The Court of Appeals held that § 11-103(b) “did not permit a crime victim to file an application for leave to appeal the denial of a [ ] § 11-103(e) motion,” because § 11-103(e) was not among the statutes specifically listed in § 11-103(b).

Griffin, 444 Md. at 292 . In Chapter 541 of the Acts of 2016, the General Assembly amended § 11-103(b) to add § 11-103(e)(4) to the list. 14 of law when he or she admits”—or, as here, excludes—“victim impact evidence [in] violat[ion] [of] any of the victim impact statutes.” See id. at 181. In this case, we determine that the circuit court erred as a matter of law and violated §§ 11-402(b) and (d) and 11-403(b), when it failed to afford Mr. Antoine the opportunity to submit—and therefore failed to consider—either a victim impact statement or victim impact testimony before it bound itself to give Mr. Bostic probation before judgment. A. The Circuit Court Had Notice that Mr. Antoine Had Invoked His Statutory Rights.

As a preliminary matter, Mr. Bostic contends that Mr. Antoine lacks standing to bring this challenge because he failed to establish that he “file[d] a completed notification request form with the prosecuting attorney” under § 11-104(e)(1)(i). Without filing such a form, Mr. Bostic intimates, the court was not required to allow Mr. Antoine to file a victim impact statement or to testify before sentencing, and Mr. Antoine may not invoke the rights provided by Maryland’s victims’ rights statutes. In explaining why we disagree, we begin with a brief discussion of the role of the victim notification request form. Following the adoption of Article 47, the General Assembly charged the State Board of Victim Services with “develop[ing] a notification request form through which a victim may request to be notified under [§ 11-104 of this title].”7 1996 Md. Laws, ch. 641, 7 Subsequent amendments placed this statute in another section of the Code and instructed the State Board to “develop . . . an MDEC system protocol” to the same effect “in consultation with the Administrative Office of the Courts.” See § 11-914(10).

Because Baltimore City remains a non-MDEC jurisdiction, the MDEC system protocol is not relevant to this case. The remainder of our discussion will therefore focus only on the victim notification request form. 15 currently codified at Crim. Proc. § 11-914(10). Under § 11-104(e), (f), and (g), submitting a victim notification request form to the prosecutor provides formal notice of a victim’s interest in a criminal case and desire to receive certain notices, and it imposes certain obligations on a prosecutor and the court.

By submitting such a form, “a victim or victim’s representative complies with Article 47 of the Maryland Declaration of Rights and each provision of the Code that requires a victim or victim’s representative to request notice.” Crim Proc. § 11-104(e)(3). A victim who files a notification request form is thus entitled to receive “prior notice of each court proceeding in the case, of the terms of any plea agreement, and of the right of the victim or victim’s representative to submit a victim impact statement to the court under § 11-402 of this title.” Id. § 11-104(f)(1). Similarly, such a victim is entitled to be informed “[a]s soon after a proceeding as practicable” of “the terms of any plea agreement, judicial action, and proceeding that affects the interests of the victim or victim’s representative.” Id. § 11-104(f)(3). The statute requires the clerk of court to (1) include a copy of the victim notification request form “with any commitment order or probation order” that is entered and (2) if there is an appeal, provide “a copy of the form . . . to the Attorney General and the court to which the case has been appealed.” Id. § 11-104(g).

Those provisions make filing a victim notification request form sufficient, but not necessary, to invoke many of the crime victim’s statutory rights. Although filing such a form satisfies a victim’s statutory obligation to inform the prosecutor and the court of his or her interest in the proceedings, and automatically entitles the victim to receive notice as specified in the statute, doing so is not mandatory. Indeed, § 11-104(f)(4) expressly 16 authorizes a prosecutor to share information about the status of a case with the victim or victim’s representative regardless of whether a victim notification request form is filed. Here, the record on appeal does not indicate whether Mr. Antoine completed or filed an official notification request form.

Assuming that he did not, the record nevertheless reveals both that Mr. Antoine provided sufficient notice of his intent to invoke the statutory rights at issue here and that the court was aware of that intent. Importantly, none of the rights Mr. Antoine invokes on appeal are made contingent on completing an official victim notification request form: The rights in § 11-402(b) and (d) are not conditioned on the victim giving formal notice at all, and § 11-402(c)(2) provides that a “victim who has not filed a notification request form” is not precluded “from submitting a victim impact statement to the court.” And § 11-403(b) is explicitly triggered by any of (1) the prosecutor’s request, (2) the victim’s request, or (3) the filing of the victim notification request form. Thus, Mr. Antoine’s failure to submit the formal victim notification request form does not preclude him from asserting any of those rights. Moreover, in light of the General Assembly’s “public policy mandate of affording victims broad rights,” Lopez, 458 Md. at 179 , we do not think it would further the legislative purpose to treat the failure to file a notification request form as a forfeiture of a crime victim’s rights.

The purpose of the notification request form is to “implement . . . the rights possessed by victims” by ensuring that victims are aware of their rights and that both the State and the court are alerted when they wish to invoke them. See Chaney v. State, 397 Md. 460, 469 (2007). 17 The October 15, 2018 hearing transcript shows that the court, the stand-in