Bonilla v. State

JAMES P. SALMON (Retired, Specially Assigned), J. This case has an unusual procedural background that presents us with the following issue: If a judge imposes a sentence that is less than the sentence agreed upon by the judge, the prosecutor and the defendant in an ABA plea agreement, 1 may another judge, pursuant to Md. Rule 4-345(a), later increase that sentence? We shall answer “yes” to that question. ³⁰¹ I. UNDISPUTED FACTS In 1989, Tommy Garcia Bonilla (“Bonilla”) was indicted by a Prince George’s County grand jury on two counts of first-degree murder and numerous other serious crimes. Count I of the indictment charged Bonilla with the first-degree murder, on April 14, 1989, of Jose Lozano. In count III, Bonilla was charged with the first-degree murder of Ruth Vasquez.

After the indictment was filed, the State notified Bonilla that it intended to seek a sentence of life without possibility of parole. On August 28, 1990, Bonilla changed his plea to guilty in regards to the first-degree murder charges set forth in counts I and III of the indictment. Prior to entering the guilty plea, Bonilla admitted, on the record, that the following facts, among many others, were true: 1) about one month before the murders of Mr. Lozano and Ms. Vasquez, he and one Freddy R. DeLeon [“DeLeon”] formed a plan; 2) the plan was to enter apartment No. 508, located at 1802 Metzerott Road, in Prince George’s County, to kill whomever they found there and to steal cocaine that they believed to be in the apartment; 3) on April 14, 1989, Bonilla and DeLeon entered apartment 508, ransacked it, and stole the cocaine and jewelry they found in the apartment; 4) while in the apartment, DeLeon, using a 9 mm handgun, shot Jose Lozano once in the back of the head, killing him instantly; and 5) after Mr. Lozano was killed, Bonilla, using a 38 caliber handgun, killed Ruth Vasquez by shooting her once in the chest. 2 Prior to pleading guilty, the State, the presiding judge, and Bonilla entered into an unambiguous ABA plea agreement. The terms of that agreement were that Bonilla would, if called by the State, testify truthfully at the trial of DeLeon and would enter guilty pleas as to counts I and III of the indict ³⁰² ment.

In exchange, as to count III, which charged appellant with the premeditated first-degree murder of Ruth Vasquez, the judge would sentence Bonilla to life imprisonment; 2) as to count I, which charged Bonilla with the first-degree murder of Jose Lozano, the court would impose a consecutive sentence of life imprisonment, with all but 20 years suspended; and, 3) on the date of sentencing, the State would withdraw its notice of intent to seek a life without possibility of parole sentence and, except as to counts I and III, nol pros all counts against Bonilla. Sentencing of Bonilla was delayed for approximately six months, until February 22, 1991, so that Bonilla could testify against DeLeon. At the sentencing hearing, it was agreed that Bonilla had fulfilled his part of the plea agreement by cooperating in the prosecution of DeLeon. Bonilla’s trial counsel then placed on the record his recollection of the terms of the ABA plea agreement, but in doing so he got the counts mixed up.

Defense counsel said that the agreement was that as to count I, Bonilla would receive a life sentence, and as to count III, he would receive a consecutive sentence of life, suspend all but 20 years. This, of course, was incorrect, but the prosecutor, when his turn to speak arose, confirmed that what the defense attorney had said in regard to the plea agreement was accurate. The sentencing judge then proceeded to give the following sentence: As to count I—life imprisonment; as to count III, life imprisonment suspend all but 20 years, sentence to run consecutive to the sentence imposed in count I. More than two decades later, on November 7, 2011, Bonilla filed a motion to correct an illegal sentence and a motion for credit against time spent in custody. More specifically, he asked the court to change the sentence imposed in count I to conform with the plea agreement, i.e., a sentence of life imprisonment, suspend all but 20 years, to run consecutively with the sentence imposed in count III.

If the court had granted the motion, without also changing the sentence imposed as to count III, Bonilla’s total sentence would be life, ³⁰³ suspend all but 40 years, 3 which would have been far less than the total sentence contemplated by the ABA plea agreement, i.e., life plus 20 years. On January 17, 2012, the State filed a cross-motion to correct the sentence entered as to count III. The State took the position that the court was required to correct both sentences in order to conform with the plea agreement. After conducting two hearings on the pending motions, the Circuit Court for Prince George’s County, on March 30, 2012, re-sentenced Bonilla as to count III to life imprisonment; as to count I, the sentence was reduced from the one originally imposed in 1991, to life suspend all but 20 years, sentence to run consecutively to the sentence imposed as to count III, sentence to commence as of April 21, 1989.

Put another way, the sentencing judge, in March 2012, gave Bonilla the sentence agreed upon when the ABA plea agreement was placed on the record in 1990. 4 II. QUESTION PRESENTED (1) Did the circuit court err by increasing appellant’s sentence on count III from life, suspend all but Twenty (20) years, to life?

III

Md. Rule 4-345(a) provides: (a) Illegal sentence. The court may correct an illegal sentence at any time. ³⁰⁴ At the time Bonilla pled guilty; Md. Rule 4-243 provided, in material part: 5 (а) Conditions for Agreement.—The defendant may enter into an agreement with the State’s Attorney for a plea of guilty or nolo contendré on any proper condition, including one or more of the following: (б) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule. (c) Agreements of sentence, disposition, or other judicial action. (1) Presentation of the Court.—If a plea agreement has been reached pursuant to subsection (a)(6) of this Rule for a plea of guilty or nolle contendré which contemplates a particular sentence, disposition, or other judicial action, the defendant’s counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads.

The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. (3) Approval of Plea Agreement.—If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement. (Emphasis added). Bonilla first argues: ³⁰⁵ An illegal sentence is a sentence that is not permitted by law.

Hoile v. State, 404 Md. 591, 621 [ 948 A.2d 30 ] (2008). Appellant’s life sentence on count one constituted an illegal sentence because it exceeded the terms of the binding plea agreement with regard to that count. A sentence that exceeds the sentence to which the parties agreed as part of a plea agreement constitutes an illegal sentence within the meaning of the Rule 4-345(a). Cuffley v. State, 416 Md. 568, 575 [ 7 A.3d 557 ] (2010) (citing Dotson v. State, 321 Md. 515, 521-22 [ 583 A.2d 710 ] (1991)).

See also, Matthews v. State, 424 Md. 503 [ 36 A.3d 499 ] (2012). Appellant’s sentence on count one was illegal because it exceeded the agreed upon sentence on that count of life with all but twenty years suspended. Thus the [c]ourt below acted properly by reducing the sentence on that count from life to life suspend all but twenty years. The State agrees with the argument just quoted, as do we.

Bonilla, however, further contends that the original sentence imposed as to count III was not illegal, even though the sentence was less than the sentence to which the judge, the prosecutor and he (Bonilla) agreed. He phrases his argument as follows: A sentence increase may also result from the correction of an illegal sentence. Hoile, 404 Md. at 620 [ 948 A.2d 30 ]. However, the sentence on Count 3, though inconsistent with the plea agreement, did not constitute an illegal sentence.

Neither this Court nor the Court of Appeals has ever held that a sentence below a binding plea agreement constitutes an illegal sentence. In Hoile , the Court of Appeals noted that under Maryland Rule 4-345(a), a court may increase a sentence, but may not do so under other subsections of the rule. Id. at 626 [ 948 A.2d 30 ]. Because [a]ppellant’s sentence was not illegal, the [circuit [c]ourt was without jurisdiction to increase the sentence on count three pursuant to Maryland Rule 4-345(a).

(Emphasis added). This argument is not persuasive. The trial court relied on Md. Rule 4-345(a)—not any other subsection of Rule 4-345— ³⁰⁶ when it increased the sentence as to count III. And,