Brown, Bottini & Wilson v. State

Randy Morquell Brown, Gianpaolo Bottini & Kitrell B. Wilson v. State of Maryland Misc. No. 30, September Term 2018 Criminal Law – Mandatory Minimum Sentences – Criminal Procedure – Plea Agreements – Binding Plea Agreement. Under Maryland Code, Criminal Law Article (“CR”), §5-609.1, a circuit court has discretion to decide whether or not to modify a mandatory minimum sentence previously imposed under a statute that required such a sentence for repeat drug offenders. A circuit court has such discretion even if the mandatory minimum sentence was imposed as a result of a guilty plea pursuant to a binding plea agreement under Maryland Rule 4-243(c) that was approved by the court and the State does not consent to the proposed modification.

Criminal Law – Mandatory Minimum Sentences – Criminal Procedure – Plea Agreements – Waiver of Right to Seek Modification of Sentence. Under CR §5-609.1, a circuit court has discretion to decide whether or not to modify a mandatory minimum sentence previously imposed under a statute that required such a sentence for repeat drug offenders. A circuit court has such discretion even if the mandatory minimum sentence was imposed as a result of guilty plea pursuant to a binding plea agreement under Maryland Rule 4-243(c) that was approved by the court and the defendant waived the right to seek modification of the sentence as part of that plea agreement. Criminal Law – Mandatory Minimum Sentences – Criminal Procedure – Motion to Modify Sentence.

In exercising its discretion to decide a motion under CR §5-609.1, a circuit court should ordinarily hold a hearing in order to hear argument and to resolve any disputed material facts related to the factors under that statute. Under Maryland Rule 4- 345, the court must hold a hearing before it grants a motion to modify a mandatory minimum sentence. However, there is no requirement in the statute or rule that a circuit court hold a hearing when it denies a motion to modify a sentence. Criminal Law – Mandatory Minimum Sentences – Criminal Procedure – Motion to Modify Sentence – Appeals.

An appellate court has jurisdiction of an appeal of an order denying a motion under CR §5-609.1 because that statute shifts the burden of persuasion to the State with the result that a decision on that motion is similar to a re-sentencing that results in a final judgment. The decision on such a motion is committed to the discretion of the circuit court and the standard of review is abuse of discretion, which may include a legal error, such as the circuit court failing to recognize or exercise its discretion. IN THE COURT OF APPEALS Circuit Court for Charles County OF MARYLAND Case No. 08-K-12-000739 Circuit Court for Montgomery County Misc. No. 30 Case No. 120636C 120416C September Term, 2018 Argument: September 10, 2019 _____________________________________ RANDY MORQUELL BROWN GIANPAOLO BOTTINI KITRELL B. WILSON V. STATE OF MARYLAND _____________________________________ Barbera, C.J., McDonald Watts Hotten Getty Booth Adkins, Sally D.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: August 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-24 10:57-04:00 Suzanne C. Johnson, Clerk The Court of Special Appeals has certified to us, and we have agreed to answer, four questions of law concerning the application of the Justice Reinvestment Act (“JRA”).1 Among other things, the JRA eliminated mandatory minimum sentences of imprisonment without the possibility of parole required by existing law for defendants who were convicted of certain drug offenses and who were repeat offenders. The JRA further provided that a defendant who had received a mandatory minimum sentence prior to the elimination of such sentences could ask the court to reduce that sentence and provided some criteria for a court to decide whether to do so – a provision that has been codified in Maryland Code, Criminal Law Article (“CR”), §5-609.1. A number of inmates currently serving mandatory minimum sentences have invoked CR §5-609.1 and filed motions to modify or reduce their sentences.

Questions have arisen, however, as to the application of this provision when the mandatory minimum sentence relates to a conviction based on a court-approved plea agreement under which the prosecution, the defendant, and the court agreed that the mandatory minimum sentence would be imposed and, in particular, when the defendant waived the right to seek modification of that sentence as part of the plea agreement. In addition, procedural questions have arisen as to whether the defendant has a right to a hearing on such a motion and whether a denial of the motion is appealable. 1 Chapter 515, Laws of Maryland 2016. Pursuant to Maryland Rule 8-304, the Court of Special Appeals has certified four questions of law to us concerning CR §5-609.1 that pertain to pending appeals in that court. We granted a writ of certiorari related to these three cases to respond to those questions.

For the reasons set forth below, we answer the certified questions as follows: (1) Under CR §5-609.1, a court may modify a mandatory minimum sentence that was imposed prior to the effective date of the JRA following a guilty plea pursuant to a binding plea agreement, even if the State does not consent to the modification. The decision whether to modify a mandatory minimum sentence is a matter within the sentencing court’s discretion, upon consideration of the factors in CR §5-609.1(b). (2) Under CR §5-609.1, a court may modify a mandatory minimum sentence, even if that sentence was imposed prior to the effective date of the JRA following a guilty plea pursuant to binding a plea agreement in which the defendant waived the right to seek modification of the sentence. The decision whether to modify a mandatory minimum sentence is a matter within the sentencing court’s discretion, upon consideration of the factors in CR §5-609.1(b).

(3) In considering the factors set forth in CR §5-609.1(b) and exercising its discretion to decide whether to modify a mandatory minimum sentence pursuant to that statute, a court should, in most circumstances, conduct a hearing to receive evidence when such evidence will aid the exercise of the court’s discretion and to hear argument from the parties concerning the application of the factors in CR §5-609.1(b). Under Maryland Rule 4-345, the court must hold a hearing before it grants a motion. There is no absolute requirement in the statute or rule to hold a hearing when the court denies a motion. 2 (4) An appellate court has jurisdiction of an appeal of an order denying a motion under CR §5-609.1 because that statute shifts the burden of persuasion to the State with the result that a decision on that motion is similar to a re-sentencing that results in a final judgment. The decision on such a motion is committed to the discretion of the circuit court and the standard of review is abuse of discretion, which may include a legal error, such as the circuit court failing to recognize or exercise its discretion.

I Background The certified questions concern who is eligible under CR §5-609.1 to seek reduction of a mandatory minimum sentence, whether one has a right to a hearing on such a motion, and whether one may appeal an adverse decision in the circuit court. To provide context to our answers, we briefly outline the legal landscape under which the defendants in these cases were originally sentenced, describe the relevant provision of the JRA, and summarize the pertinent procedural events in each of these cases. A. Legal Landscape When the Defendants Were Convicted and Sentenced 1. Imposition and Modification of Sentence As a general rule, a “sentencing judge is vested with virtually boundless discretion” in devising an appropriate sentence.2 Cruz-Quintanilla v. State, 455 Md. 35, 40 (2017). 2 The Maryland Sentencing Guidelines, developed by the Maryland State Commission on Criminal Sentencing Policy, suggest upper and lower bounds for sentences, but those guidelines are only advisory, and a judge need not follow them.

See Maryland Code, Criminal Procedure Article, §§6-211, 6-216; COMAR 14.22.01.01 et seq.; 3 Such broad latitude allows for consideration of both the facts of the particular offense and of the defendant’s “reputation, prior offenses, health, habits, mental and moral propensities, and social background.” Id. This “permits the sentencing judge to individualize the sentence to fit the offender and not merely the crime.” Id. at 40-41 (internal quotations omitted). Sentencing in this manner is perceived as the best way to achieve the goals of the criminal justice system – “punishment, deterrence, and rehabilitation.” Johnson v. State, 274 Md. 536, 540-42 (1975). After imposing a sentence, the judge has discretion to modify that sentence subject to certain conditions.

In particular, Maryland Rule 4-345(e) generally allows the court to modify a sentence upon a timely motion by the defendant.3 The defendant must file the motion within 90 days of sentencing. Maryland Rule 4-345(e)(1). Once the motion has been filed, the sentencing judge may act on it immediately or may defer action on the motion for up to five years after the imposition of the original sentence. Id.

In acting on the motion, the judge may not increase the sentence. Id. While the court may deny a motion under Rule 4-345(e) without holding a hearing, it may not grant a motion to modify see also Eric S. Fish, Sentencing and Interbranch Dialogue, 105 J. Crim. L. & Criminology 549 , 552 (2015). 3 Other sections of that rule concern the correction of an illegal sentence, revision of a sentence in the case of fraud, mistake or irregularity, correction of a mistake in the announcement of the sentence, and modification of a sentence in a case concerning non- support or desertion.

Maryland Rule 4-345(a)-(d). Those provisions are not subject to the same 90-day deadline as a motion under section (e) of the rule. However, a correction of a mistake in announcement of the sentence must be done before the defendant leaves the courtroom after sentencing. For a history of Rule 4-345(e), see State v. Schlick, 465 Md. 566, 574-75 (2019). 4 a sentence without first providing notice and an opportunity to be heard to any victims of the offense and holding a hearing on the motion.

Maryland Rule 4-345(e)(2)-(3), (f). 2. Plea Agreements that Specify a Sentence and Limit its Modification Most criminal cases are resolved as a result of a plea agreement between the State and the defendant. Indeed, more than nine out of every 10 criminal convictions results from a guilty plea. Lafler v. Cooper, 566 U.S. 156, 170 (2012) (noting that 97% of federal convictions and 94% of state convictions are the result of guilty pleas).

And the vast majority of guilty pleas are the product of a plea agreement between the prosecution and the defendant. See Maryland State Commission on Criminal Sentencing Policy, 2019 Annual Report (2020) at 44 (during fiscal year 2019, 95.1% of criminal convictions were the result of guilty pleas, with plea agreements involved in 83.9% of those convictions). Under a typical plea agreement, the defendant agrees to plead guilty to one or more charges and the State agrees to dismiss, or to refrain from bringing, other charges against the defendant. A plea agreement may also contain other terms.

For example, the State may agree to limit the recommendation that it makes to the court concerning the sentence to be imposed. The defendant may agree to cooperate with the State in an ongoing investigation or make other concessions – such as forgoing the right to seek modification of the sentence. Although plea bargaining is not specifically authorized by the State or federal constitution or by any statute, its central role in the criminal justice system has been recognized in case law and in the Maryland Rules. See Cuffley v. State, 416 Md. 568, 577 (2010); Maryland Rule 4-243. 5 Generally, a plea agreement is negotiated between the prosecution and the defendant without involvement of the court,4 and is treated as a sort of contract between those parties.

Cuffley, 416 Md. at 577-79 . In some cases, however, the agreement between the State and defendant is explicitly made contingent on the court’s agreement to bind itself to the terms of the plea bargain. Such an agreement, which we shall refer to as a “binding plea agreement,”5 is governed by Maryland Rule 4-243(c). In Maryland, nearly half of all convictions are the result of a binding plea agreement.

Maryland State Commission on Criminal Sentencing Policy, supra, at 44. In a binding plea agreement, the prosecution and defendant first come to an agreement that includes a particular sentence, disposition, or other judicial action that they will jointly present to the court. Maryland Rule 4-243(a)(1)(F). They present the agreement to the court at the time of the defendant’s guilty plea.

The court is to either approve the agreement, including the sentence, or reject it in its entirety. Rule 4-243(c). 4 Court involvement in plea bargaining can raise a myriad of issues and is discouraged or explicitly prohibited in many jurisdictions. See Sharp v. State, 446 Md. 669, 694-701 (2016) (“it is the role of the State, not the trial court, to make a plea offer”); Federal Rule of Criminal Procedure 11(c)(1). The procedure set forth in Maryland Rule 4- 243(c) provides a limited and transparent way for the court to endorse – or not endorse – a proposed plea agreement. 5 We use the term “binding” here with specific reference to the court, in addition to the prosecution and defendant.

Such a plea agreement is also sometimes referred to as a “C plea” or an “ABA plea,” in what might seem a confusing reference to the first three letters of the alphabet. “C” in this context refers to Maryland Rule 4-243(c) or the similar Federal Rule of Criminal Procedure 11(c)(1)(C). “ABA” alludes to the endorsement of binding plea agreements in a publication of the American Bar Association relating to guilty pleas in criminal cases. See Sharp, 446 Md. at 697-99 ; Antoine v. State, 245 Md. App. 521 , 551 n.9 (2020). 6 If the court rejects the agreement, the defendant may withdraw the guilty plea and the judge who rejected the agreement may be recused from a future trial of the charges. Maryland Rule 4-243(c)(4)-(5). If the court approves the agreement, the court “shall embody in the judgment the agreed sentence” and may deviate from that agreed-upon sentence only to the benefit of the defendant and only with the consent of both parties.

Maryland Rule 4-243(c)(1)-(3). Given that the defendant presumably would consent to a deviation in the defendant’s favor, this provision essentially gives the State a veto over such a departure from the agreed-upon sentence. Although it is not explicitly stated in the rule, this Court has held that, as a corollary, the court may not modify that sentence on a motion to modify or reduce the sentence under Maryland Rule 4-345(e) without the consent of the State. Chertkov v. State, 335 Md. 161, 174-75 (1994).

In the event that the court approves the agreement but fails to impose the agreed-upon sentence or later modifies it, the State or defendant can appeal to have the agreement enforced. Smith v. State, 453 Md. 561, 573-75 (2017); Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §12-302(c)(3). 3. Mandatory Minimum Sentences for Repeat Drug Offenders Maryland law classifies controlled dangerous substances (“CDS”) in five schedules denominated by Roman numerals, similar to the classifications in federal law, based on their association with serious addiction or abuse – Schedule I being the most serious and 7 Schedule V the least serious.6 CR §5-401 et seq. The State criminal law defines offenses related to the manufacturing, possession, and distribution of CDS.

CR §5-601 et seq. Prior to the 2016 enactment of the JRA, the State criminal law relating to drug offenses provided mandatory minimum sentences for repeat offenders convicted of offenses primarily related to the manufacturing, distribution, and possession of a quantity sufficient for a reasonable inference of an intent to distribute CDS. See CR §5-608 (2012 Repl. Vol.).7 A second conviction involving either a Schedule I or II narcotic drug or certain hallucinogenic substances triggered a 10-year mandatory minimum sentence; a third conviction resulted in a 25-year mandatory minimum sentence; and a fourth conviction carried a 40-year mandatory minimum sentence.

CR §§5-608, 5-609 (2012 Repl. Vol.); see Gargliano v. State, 334 Md. 428, 440-41 (1994) (characterizing these penalties as the “two-time loser,” “three-time loser,” and “four-time loser” provisions). For offenses involving other forms of CDS, a first-time conviction entailed a maximum five- 6 See CR §5-101(g)(1). Recent amendments that altered some of these schedules were enacted after the offenses were committed in the cases that comprise this appeal and are not relevant to our discussion.

See Chapter 298, Laws of Maryland 2020. 7 The General Assembly enacted these mandatory minimum sentences during the 1980s. See Chapter 470, Laws of Maryland 1982 (10-year minimum sentence for repeat drug offenses); Chapter 439, Laws of Maryland 1988 (increasing mandatory minimum sentences for third and fourth drug convictions). That was the second iteration of the General Assembly’s adoption of mandatory minimum sentences for repeat drug offenders. In 1951, the General Assembly had established mandatory minimum five-year sentences for second-time offenders and mandatory minimum 10-year sentences for third-time or subsequent offenders.

Chapter 466, Laws of Maryland 1951; see Note, Narcotics Regulation, 62 Yale L.J. 751 , 769-70 & n.117 (1953). The Legislature had repealed those provisions in 1970. Chapter 403, Laws of Maryland 1970. 8 year term of incarceration without a statutory minimum; any subsequent conviction carried a two-year mandatory minimum sentence. See CR §5-607 (2012 Rep.

Vol.). Once the elements of the offense and the defendant’s repeat offender status were established,8 the court was required to include the mandatory minimum provision in the sentence. State v. Green, 367 Md. 61, 80 (2001). A mandatory minimum sentence imposed under any of these provisions could not be suspended, nor would the defendant be eligible for parole during the mandatory minimum term.

CR §§5-607 through 5-609 (2012 Repl. Vol.). B. The JRA and Mandatory Minimum Sentences for Repeat Drug Offenders The enactment of the JRA in 2016 significantly affected mandatory minimum sentences for repeat drug offenders. Among other things, the JRA prospectively eliminated those mandatory minimum sentences9 and removed the prohibitions against the suspension of a sentence and release on parole for such defendants.

Chapter 515, §2, Laws of Maryland 2016.10 Those provisions became effective on October 1, 2017. Id., §18. The JRA also provided potential retrospective relief for defendants sentenced to mandatory 8 When seeking a mandatory sentence based on the defendant’s repeat offender status, the prosecution must serve notice of the alleged prior conviction on the defendant before sentencing. Maryland Rule 4-245(c). 9 The JRA did not eliminate mandatory minimum sentences for other drug offenses.

See CR §5-612 (volume dealer); CR §5-613 (“drug kingpin”); CR §5-621 (use of weapon in drug trafficking crime); CR §5-627 (drug offense near school). 10 The JRA also expanded and increased early-release credits for good behavior and participation in special programs for certain repeat drug offenders. Chapter 515, §§2, 14, Laws of Maryland, codified at Maryland Code, Correctional Services Article, §§3-704 through 3-708. 9 minimum terms before October 1, 2017. That provision, which is the subject of this opinion, stated in its entirety: (a) Notwithstanding any other provision of law and subject to subsection (c) of this section, a person who is serving a term of confinement that includes a mandatory minimum sentence imposed on or before September 30, 2017, for a violation of §§ 5-602 through 5-606 of this subtitle may apply to the court to modify or reduce the mandatory minimum sentence as provided in Maryland Rule 4-345, regardless of whether the defendant filed a timely motion for reconsideration or a motion for reconsideration was denied by the court. (b) The court may modify the sentence and depart from the mandatory minimum sentence unless the State shows that, giving due regard to the nature of the crime, the history and character of the defendant, and the defendant’s chances of successful rehabilitation: (1) retention of the mandatory minimum sentence would not result in substantial injustice to the defendant; and (2) the mandatory minimum sentence is necessary for the protection of the public.

(c)(1) Except as provided in paragraph (2) of this subsection, an application for a hearing under subsection (a) of this section shall be submitted to the court or review panel on or before September 30, 2018. (2) The court may consider an application after September 30, 2018, only for good cause shown. (3) The court shall notify the State’s Attorney of a request for a hearing. (4) A person may not file more than one application for a hearing under subsection (a) of this section for a mandatory minimum sentence for violation of §§ 5-602 through 5-606 of this subtitle.

Chapter 515, §2, Laws of Maryland 2016, codified at CR §5-609.1. Like the part of the JRA that prospectively eliminated mandatory minimum sentences for repeat drug offenders, this provision also became effective on October 1, 2017. Id., §18. 10 As is evident, CR §5-609.1 provided a one-year window within which a defendant currently serving a mandatory minimum sentence had a right to seek modification or reduction of that sentence pursuant to Maryland Rule 4-345. The JRA did not specifically address the application of this provision if the defendant had pled guilty pursuant to a binding plea agreement.

Nor did it explicitly indicate whether a defendant would be entitled to a hearing or be able to appeal an adverse decision on a motion made under the authority of this provision. C. The Predicate Appeals Raising Legal Issues under CR §5-609.1 The application of CR §5-609.1 has raised a number of legal issues in recent appeals to the Court of Special Appeals – in particular, whether the statute applies in cases involving binding plea agreements and plea agreements in which a defendant agreed to waive the right to seek modification of sentence, whether a defendant who seeks modification under this statute is entitled to a hearing, and whether a denial of a motion under the statute is appealable. The Court of Special Appeals has certified questions of law concerning those issues drawn from three pending appeals. We summarize the facts and procedural history of those appeals to provide context for the certified questions. 1.

Brown v. State: binding plea agreement; denial of motion under CR §5-609.1 following hearing In 2012, Appellant Randy Morquell Brown,11 who had a prior 2003 federal conviction for possession with intent to distribute cocaine, led police in a high speed chase. 11 As these cases remain pending in the Court of Special Appeals and are in this Court solely as part of a certification from that court, the parties retain the designation they 11 Upon apprehension, he was found in possession of phencyclidine (“PCP”)12 and marijuana, and admitted to dealing in PCP. On June 22, 2012, Mr. Brown was charged in a 13-count indictment in the Circuit Court of Charles County with possession with intent to distribute PCP and marijuana, possession of drug paraphernalia, and various driving offenses. The State and Mr. Brown reached a binding plea agreement under Maryland Rule 4-243(c). Pursuant to that agreement, Mr. Brown would plead guilty to a single charge of possession with intent to distribute PCP and forfeit $528 that police had seized upon his arrest.

Mr. Brown also agreed that his sentence would include the then in-effect mandatory minimum sentence of 10 years imprisonment without the possibility of parole, as this would be his second conviction of a drug-related offense. In return, the State agreed to dismiss the remaining charges of the indictment and not to bring additional criminal charges in connection with an unrelated drug distribution investigation. On January 22, 2013, the plea agreement was submitted to the Circuit Court, which approved it, and Mr. Brown pled guilty as agreed. On April 4, 2013, the court imposed the sentence contemplated by the agreement – 10 years incarceration without the possibility of parole.

At the sentencing, defense counsel advised the court that he would be filing a have in the intermediate appellate court. See Thomas v. State, 454 Md. 495 , 497 n.1 (2017); Montgomery County v. Phillips, 445 Md. 55 , 59 n.1 (2015). 12 PCP is a Schedule I hallucinogen. CR §5-402(d)(32)-(34). 12 motion for reconsideration of the sentence, but would ask that the motion be held in abeyance for some time.13 More than three years later, following passage of the JRA (but before the effective date of the new CR §5-609.1), on October 11, 2016, Mr. Brown filed a motion to modify his sentence pursuant to CR §5-609.1 and asserted that the motion was filed with the consent of the State.14 The State disputed the assertion that it had consented to modification and opposed the motion on the ground that the sentence had been imposed pursuant to a binding plea agreement and that the sentence could not be modified without the State’s consent. The court deferred action on the motion.15 At a hearing on April 23, 2018, after the new CR §5-609.1 had gone into effect, Mr. Brown renewed his motion to modify his sentence.

The Circuit Court concluded that it lacked authority to modify a sentence imposed under a binding plea agreement without the State’s consent and denied the motion. 13 Mr. Brown’s plea agreement did not contain a waiver of the right to seek a modification of sentence and the judge at the sentencing hearing apprised Mr. Brown of his right to file a motion for reconsideration within 90 days of the sentencing hearing. 14 In support of his application, Mr. Brown submitted a recommendation letter from the Department of Public Safety and Correctional Services and numerous certificates for completion of classes and workshops that he had attended while incarcerated. 15 The Circuit Court held an initial hearing regarding the motion on February 28, 2017 but determined not to take action at that time. 13 Mr. Brown filed a timely appeal, arguing that CR §5-609.1 authorizes a court to modify a mandatory minimum sentence without the State’s consent, even when the sentence was imposed pursuant to a binding plea agreement.16 2. Bottini v. State: binding plea agreement including waiver of right to seek modification; denial of motion under CR §5-609.1 without hearing; dispute as to appealability On April 13, 2012, Appellant Gianpaolo Bottini was arrested after police observed him make a sale of crack cocaine and recovered cocaine and drug paraphernalia while executing a search warrant of his residence. On May 17, 2012, Mr. Bottini, who had previously been convicted of drug offenses,17 was indicted on two felony drug counts – distribution of cocaine and possession of cocaine with intent to distribute – in the Circuit Court for Montgomery County. The State and Mr. Bottini later entered into a binding plea agreement pursuant to Maryland Rule 4-243(c).

In that agreement, with respect to the pending indictment, Mr. Bottini agreed (1) to plead guilty to the count of possession with intent to distribute; (2) to the imposition of a 20-year sentence, with a mandatory minimum of 10 years incarceration without the possibility of parole (as a result of a prior felony drug 16 The certification of the Court of Special Appeals appears to indicate that the State agrees that the denial of Mr. Brown’s motion is appealable. Certification of Court of Special Appeals at 5 n.5. However, we did not find such a concession in the materials available to us. In any event, the question of appealability is clearly presented in the other two appeals on which the certified questions are based and our answer to that question would be equally applicable to Mr. Brown’s case. 17 From the transcript of the sentencing hearing, it appears that this was Mr. Bottini’s third felony drug conviction and, had he proceeded to trial, he could have faced a maximum 40-year sentence, including a mandatory minimum term of 25 years. 14 conviction); and (3) to waive his right, among other things,18 to seek a modification of the sentence.

Mr. Bottini also agreed to admit to a probation violation in an unrelated case with the understanding that he would be able to ask the court to impose less than the maximum penalty with respect to that violation. In return, the State agreed to dismiss the remaining charge in the indictment. On May 10, 2013, the Circuit Court approved the plea agreement, accepted Mr. Bottini’s guilty plea, and imposed the 20-year sentence, including the mandatory minimum sentence of 10 years incarceration without possibility of parole.19 In January 2018, following the enactment of the JRA, Mr. Bottini filed a motion pursuant to CR §5-609.1 to reduce his mandatory minimum sentence and requested a hearing.20 On January 29, 2018, the Circuit Court denied the motion, including the request for a hearing. The Circuit Court included in its order a brief explanation that Mr. Bottini had waived his right to seek a sentence modification as part of the plea agreement.

Mr. Bottini filed a timely appeal, contending that he could not have waived a remedy that did not exist at the time of the plea agreement and, alternatively, that CR §5-609.1 18 The agreement also included a waiver of his right to seek a review of his sentence by a three-judge panel pursuant to CP §8-101 et seq., or to seek to participate in a drug treatment program, pursuant to Maryland Code, Health General Article, §8-507. 19 Subsequently, Mr. Bottini was sentenced to a consecutive 20-year sentence for the probation violation. 20 In his application, Mr. Bottini, paraphrasing CR §5-609.1, contended that “given the nature of the crime, [his] history and character, and chances for successful rehabilitation” the mandatory minimum would result in injustice to him and was unnecessary for public safety. He sent a letter to the sentencing judge, which does not appear as part of the record in this appeal. 15 superseded any prior agreement with the State. The State asserted that the denial was not appealable because, even if the Circuit Court’s legal determination regarding the binding nature of the waiver factored into the ultimate decision, the denial was an exercise of the Circuit Court’s discretion. In response to the State’s position, Mr. Bottini argued in his reply brief that the legal grounds for the denial should be an appealable issue. 3.

Wilson v. State: denial of motion under CR §5-609.1 without hearing; dispute as to appealability On April 12, 2012, Appellant Kitrell Wilson, who had previously been convicted of a drug offense,21 was indicted in the Circuit Court for Montgomery County on charges of, among other things, possession of PCP with intent to distribute.22 On October 2, 2012, following a jury trial, Mr. Wilson was found guilty of that offense. Prior to sentencing, the State notified the Circuit Court of Mr. Wilson’s status as a repeat offender and advised that it would seek a mandatory minimum term of 25 years incarceration without the possibility of parole, pursuant to the then in-effect sentencing regime. On December 10, 2012, the Circuit Court imposed that sentence.23 21 The materials available to us do not indicate the nature of Mr. Wilson’s prior conviction. In any event, the precise nature of that conviction does not affect our answers to the certified questions of law. 22 He was also charged with two counts of driving while impaired by CDS, but the State nolle prossed the charges before trial. 23 Mr. Wilson also pled guilty to another charge of possession with intent to distribute PCP in another case and was sentenced to a 20-year sentence to run concurrently with his sentence in this case. 16 In March 2013, Mr. Wilson filed a timely motion to modify his sentence pursuant to Rule 4-345(e).

The Circuit Court denied that motion. Shortly after the JRA provisions concerning mandatory minimum sentences became effective, on October 5, 2017, Mr. Wilson filed another motion to modify or reduce his sentence, this time pursuant to CR §5- 609.1.24 The Circuit Court summarily denied Mr. Wilson’s motion without a hearing. Mr. Wilson filed a timely appeal. He argued that the Circuit Court was required to hold a hearing and determine whether the State had met its burden under CR §5-609.1(b) before it denied his motion.

The State contested this legal position on the merits, and both parties submitted arguments on the appealability of the Circuit Court’s exercise of discretion in denying the petition. 4. Certification of Questions of Law Related to these Appeals As noted, each of these defendants filed a timely notice of appeal to the Court of Special Appeals. However, the State contests the appealability of the rulings in at least two of these cases. Pursuant to Maryland Rule 8-304, the Court of Special Appeals certified four questions of law to this Court related to these appeals.

The intermediate appellate court indicated that the disposition of these, as well as other appeals pending and expected to be filed, would likely turn on the answers to these questions and that guidance 24 As part of his motion, Mr. Wilson described circumstances relating to his family and medical history that he said had contributed to his drug abuse problem. He also submitted numerous progress and achievement certificates that he had accumulated during his incarceration. 17 from this Court was necessary to ensure uniformity of decision in the application of CR §5-609.1. Pursuant to Maryland Rule 8-304(a) we issued a writ of certiorari on our own motion to address the questions certified by the Court of Special Appeals. II Discussion The questions of law certified by the Court of Special Appeals, as slightly re- worded, are: (1) Does CR §5-609.1 authorize a court to modify a mandatory minimum sentence imposed pursuant to a binding plea agreement when the State does not consent to a modification?

(2) Does CR §5-609.1 authorize a court to modify a mandatory minimum sentence imposed pursuant to a binding plea agreement in which the defendant agreed to waive the defendant’s right to seek a sentence modification? (3) Does CR §5-609.1 require a circuit court to conduct a hearing before denying a defendant’s request to modify a sentence pursuant to that statute? (4) Does the Court of Special Appeals have jurisdiction of an appeal from an order denying a defendant’s motion to modify a sentence pursuant to CR §5-609.1? 18 A. Whether CR §5-609.1 permits a court to modify a sentence if the defendant was convicted and sentenced pursuant to a binding plea agreement As recounted above, both Mr. Brown and Mr. Bottini pled guilty, and were originally sentenced, pursuant to binding plea agreements.25 They sought reconsideration of their sentences under CR §5-609.1. In both cases, the circuit courts declined to consider the merits of their motions, based on the terms of those plea agreements.

The State argues that a court lacks authority to modify a sentence imposed as a result of a binding plea agreement under Rule 4-243(c) without the consent of the State and that the General Assembly did not take away the State’s veto in the JRA. 1. Statutory Text A defendant serving a sentence that includes a mandatory minimum term must satisfy three criteria to be eligible for consideration for sentence modification under CR §5-609.1: (1) the mandatory minimum sentence was imposed on or before September 30, 2017; (2) the sentence resulted from a conviction of a drug offense defined in CR §§5-602 through 5-606; and (3) the application must be submitted to the court by September 30, 2018, unless good cause is shown for a later submission. CR §5-609.1(a), (c). Just because a defendant is eligible does not mean that the court must exercise its discretion under Rule 4-345(e) to grant a modification.

The statute simply directs the court to consider the factors that normally inform the exercise of the court’s discretion in sentencing – the nature of the crime, the defendant’s background, and the defendant’s prospects for rehabilitation. CR 25 This issue does not pertain to Mr. Wilson, who was convicted as a result of a trial. 19 §5-609.1(b). Significantly, the statute sets forth specific grounds on which the State bears the burden of persuasion in opposing a modification in a particular case – that is, maintaining the mandatory minimum sentence would not be unjust to the defendant and is necessary for the protection of the public. Id.

Most incarcerated defendants who satisfy the criteria in CR §5-609.1 were convicted as a result of guilty pleas pursuant to plea agreements, many of which were binding plea agreements. See Maryland State Commission on Criminal Sentencing Policy, supra, at 44 (nearly half of all convictions in fiscal year 2019 resulted from binding plea agreements). No statute or rule precludes a court, as a general matter, from reducing a sentence pursuant to Maryland Rule 4-345 without the State’s consent because that sentence was imposed as a result of a guilty plea pursuant to a binding plea agreement. Rather, such a prohibition has been inferred from the requirement in Maryland Rule 4- 243(c)(3) that, if a court approves a binding plea agreement, it “shall embody in the judgment the agreed sentence … or with the consent of the parties, a disposition more favorable to the defendant than that provided in the agreement.” It would appear to defeat the purpose of the binding plea agreement if a court were to agree to be bound by the disposition reached by the State and defendant and then renege on that agreement based on a motion filed within three months of the sentencing.

In construing Rule 4-243(c)(3) to embody this prohibition, this Court observed that “[o]ur rules have the force of law.” Chertkov v. State, 335 Md. 161, 173 (1994) (quoting Dotson v. State, 321 Md. 515, 523 (1991)). 20 It is indeed true that rules adopted by this Court, such as Maryland Rule 4-243(c)(3), have the “force of law” at least until “changed or modified . . . otherwise by law.” Maryland Constitution, Article IV, §18(a). In other words, a rule may be superseded or qualified by subsequently enacted legislation, as well as by later enacted rules.26 See James v. Butler, 378 Md. 683, 692-93 (2003); D. Friedman, The Maryland State Constitution: A Reference Guide (2006) at 168-69. The JRA provision concerning mandatory minimum sentences imposed in the past clearly displaces any contrary law, including a court rule – or a prohibition inferred from a court rule. The first sentence of CR §5-609.1 makes that clear: “[n]otwithstanding any other provision of law . . . a person who is serving a term of confinement that includes a mandatory minimum sentence imposed on or before September 30, 2017, for a violation of §§5-602 through 5-606 of this subtitle may apply to the court to modify or reduce the mandatory minimum sentence . . . .” (emphasis added).

The introductory clause plainly states the General Assembly’s intention that this provision of the JRA supersedes pre- existing law that would bar consideration of a sentence modification, such as the State consent requirement derived from Maryland Rule 4-243(c)(3). See Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 130-32 (2000) (use of the phrase “notwithstanding any other provision of law” clearly and unambiguously indicates that a statute “takes precedence over and prevails” against restrictions imposed by other laws). 26 As a general rule, when there is a conflict between two provisions of law, the later-enacted provision controls. State v. Ghajari, 346 Md. 101, 115 (1997); cf. Maryland Code, General Provisions Article, §1-207. 21 The State argues that the “notwithstanding” clause should be read as limited to subsection (a) of CR §5-609.1 and thus to supersede only restrictions on a defendant’s ability to “apply” for a modification of a sentence – i.e., file a motion – but not restrictions on a court’s authority to take the action authorized under subsection (c) of CR §5-609.1 – i.e., grant the motion. Under this reading, a defendant convicted as a result of a binding plea agreement may file an otherwise untimely motion and then try to persuade the State to consent to the modification.

The State suggests that, if the “notwithstanding” clause were intended to apply to the court’s decision whether to modify a sentence, it should have been repeated in each of the other subsections of the statute, or the statute should have been tabulated differently. However, this reading of the statutory language would render the introductory “notwithstanding” clause superfluous as other language in subsection (a) specifically states that “a person . . . may apply to the court to modify or reduce the mandatory minimum sentence as provided in Maryland Rule 4-345, regardless of whether the defendant filed a timely motion for reconsideration or a motion for reconsideration was denied by the court” (emphasis added). Moreover, nothing prevented a defendant who received a mandatory minimum sentence in the past from applying for a modification of the mandatory minimum sentence and seeking the State’s acquiescence – it was just doomed to failure without the State’s consent. The essence of CR §5-609.1 is that it authorizes a court to deviate from the mandatory minimum sentence by granting the motion. 22 2.

Legislative History of CR §5-609.1 The legislative history of CR §5-609.1 reveals that it was one part of sea change in policy related to sentencing of drug offenders and was intended to ensure that a key element of the new approach to sentencing was equally available to offenders already serving sentences. The statute was the product of two legislative sessions and a study of the effect of mandatory minimum sentences by a special commission created by the General Assembly. 2015 – The Original CR §5-609.1 – a “Safety Valve” for Future Sentencings During its 2015 session, the General Assembly passed legislation aimed at reforming mandatory minimum sentencing for drug-related offenses. As originally proposed, the bill would have repealed mandatory minimum sentences for repeat drug offenders. House Bill 121 (2015), first reader.

In addition, it would have entitled a defendant currently serving such a sentence to a hearing before a court, and review by a sentence review panel, to modify or reduce the sentence, and would have authorized the court to reduce the length of the sentence. Id.27 The bill was significantly amended as it made its way through the Legislature. The repeal of the mandatory minimum sentence provisions and the provision mandating hearings for defendants currently serving such sentences were deleted from the bill. In their place, the amended bill created a more modest provision that related only to future 27 The original version of this legislation was essentially identical to a bill that had been introduced in the General Assembly nearly a decade earlier, but had not become law.

See House Bill 992 (2007), first reader. 23 sentencing proceedings and that was referred to as a “safety valve” provision. That “safety valve,” codified as the original version of CR §5-609.1, authorized a court, when imposing a sentence on a repeat drug offender in the future, to depart from mandatory minimum sentences under specified circumstances. In particular, the statute provided the court with the option of imposing a different lesser sentence if the mandatory minimum sentence would result in “substantial injustice” to the defendant and was not necessary for the protection of the public. Chapter 490, Laws of Maryland 2015.28 Thus, while the 2015 law retained mandatory minimum sentences for repeat drug offenders, it provided a sentencing judge with the option to depart from the mandatory minimum sentence, in light of the circumstances of the particular defendant and other factors.

This “safety valve” applied only prospectively, as it was specifically limited to offenses committed after the bill’s effective date of October 1, 2015 and thus did not apply to defendants who were already serving mandatory minimum sentences. Chapter 490, §§2, 28 The statute provided: A court may depart from a mandatory minimum sentence prescribed in §5-607, §5-608, or §5-609 of this subtitle if the court finds and states on the record that, giving due regard to the nature of the crime, the history and character of the defendant, and the defendant’s chances of successful rehabilitation: (1) imposition of the mandatory minimum sentence would result in substantial injustice to the defendant; and (2) the mandatory minimum sentence is not necessary for the protection of the public. CR §5-609.1 (2012 Repl. Vol., 2015 Supp.). 24 4, Laws of Maryland 2015.

This law further required that any savings as a result of the expected shorter terms of incarceration would be devoted to funding drug treatment programs. Id., §3; see generally Revised Fiscal and Policy Bill for House Bill 121 (May 18, 2015). Creation of the Justice Reinvestment Coordinating Council During the same legislative session, the General Assembly established the Justice Reinvestment Coordinating Council (“JRCC”) as part of the Governor’s Office of Crime Control and Prevention. Chapter 42, Laws of Maryland 2015, codified at Maryland Code, Public Safety Article, §1-601 et. seq.

The JRCC was to develop data-driven policies for reducing the State’s incarcerated population, reducing recidivism, reducing spending on corrections, and reinvesting the resulting savings in public safety. The JRCC was required to report its findings and recommendations before the end of 2015.29 The JRCC Recommends a Retroactive Safety Valve The JRCC issued its final report in December 2015. JRCC Final Report available at https://perma.cc/8T42-NES3 (“JRCC Report”). Among other things, the JRCC found that “for many offenders, including drug offenders . . . incarceration can increase recidivism when compared with noncustodial sanctions.” JRCC Report, Executive Summary.

It found that “adding months and years onto prison stays has little or no impact 29 The JRCC was originally scheduled to sunset in 2018. Chapter 42, §2, Laws of Maryland 2015. However, after the JRCC issued its report at the end of 2015, the law creating it was repealed during the 2016 session as part of the JRA, which created other coordinating and oversight bodies and assigned research tasks to other agencies. Chapter 515, §§1, 5, 7-12, 15-17, Laws of Maryland 2016. 25 on recidivism.” Id.

The report included a package of 19 recommendations, on which the entire JRCC had achieved consensus, that pertained to sentencing, corrections, parole, and