Franklin v. State

Shawn Albert Franklin v. State of Maryland, No. 57, September Term, 2019. Opinion by Biran, J. WRIT OF ERROR CORAM NOBIS – INEFFECTIVE ASSISTANCE OF COUNSEL – PERFORMANCE OF COUNSEL – MOTION FOR MODIFICATION OF SENTENCE UNDER MD. RULE 4-345(e) – REQUEST FOR HEARING DURING FIVE-YEAR PERIOD FOR REVIEW OF RULE 4-345(e) MOTION – “NO ACTION” NOTATION BY SENTENCING COURT – The Court of Appeals held that it was clear error to find that a sentencing court’s notation of “no action” on a defendant’s motion for modification of sentence and proposed order, approximately three weeks after the filing of the motion, constituted a denial of the defendant’s request for a hearing on the motion and of the motion itself. Rather, under the specific facts of the case, by taking “no action” at that time, the sentencing court deferred consideration of the motion.

Defense counsel knew or should have known that the sentencing court took the motion under advisement, and that the sentencing court could still rule on the motion for modification of sentence within five years of the imposition of sentence. WRIT OF ERROR CORAM NOBIS – INEFFECTIVE ASSISTANCE OF COUNSEL – PERFORMANCE OF COUNSEL – MOTION FOR MODIFICATION OF SENTENCE UNDER MD. RULE 4-345(e) – REQUEST FOR HEARING DURING FIVE-YEAR PERIOD FOR REVIEW OF MOTION – The Court of Appeals held that, when assessing whether defense counsel performed deficiently for purposes of an ineffective assistance claim, a court may not find per se unreasonable performance where counsel, who had filed a motion for modification of sentence that was then taken under advisement by the sentencing court, failed to request (or to renew a request for) a hearing on the motion on the attorney’s own initiative within the five-year period for the court to consider the motion. WRIT OF ERROR CORAM NOBIS – INEFFECTIVE ASSISTANCE OF COUNSEL – PREJUDICE – MOTION FOR MODIFICATION OF SENTENCE – FAILURE TO RENEW REQUEST FOR HEARING DURING FIVE-YEAR PERIOD FOR REVIEW OF MOTION – The Court of Appeals stated that, in a case where a court finds deficient performance in the failure of an attorney to request a hearing on a Rule 4-345(e) motion that has been held in abeyance, a post-conviction or coram nobis court generally should find the requisite prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and provide the defendant with a reasonable opportunity to notify the court that the defendant wishes the court set the motion in for a hearing, and should also allow the court a reasonable opportunity to hold a hearing, should the court decide to grant the request for a hearing.

Circuit Court for Charles County Case No. 08-K-09-000811 Argued: March 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2019 Case No. 419686V Argued 1/7/19 SHAWN ALBERT FRANKLIN v. STATE OF MARYLAND Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Biran, J. Watts, Hotten and Booth, JJ., concur. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-08-13 14:34-04:00 Filed: August 13, 2020 Suzanne C. Johnson, Clerk Under Maryland law, after a criminal defendant is sentenced, the sentencing court in most cases has the authority to reconsider its decision and impose a more lenient sentence. If a defendant wants the court to consider exercising that authority, the defendant must file a motion within 90 days of sentencing in which the defendant asks the court to modify the sentence.

Once a defendant has filed a motion to modify the sentence, the sentencing court has five years to consider it. The court may deny a motion for sentence modification without a hearing. However, before granting such a motion and reducing the sentence, the court must hold a hearing at which the defendant, the State, and any victim or victim's representative may address the court concerning the defendant’s requested modification. Not uncommonly, when a defendant files a motion to modify a sentence, the defendant asks the court not to act on it right away.

Often, the reason for such a request is that the defendant recognizes that not much has changed in 90 or fewer days since the sentencing hearing, and that the court may well decline to impose a more lenient sentence at that point. Thus, the defendant may prefer to have the court consider the motion later in the applicable five-year period. Perhaps, with the passage of up to five years, the defendant will be able to produce evidence of post-sentencing repentance, self-improvement, cooperation with State officials, and/or successful completion of probation or other conditions imposed by the sentencing court. Such a future showing, the defendant may hope, will persuade the court to impose a more lenient sentence.

This case concerns such a defendant, Shawn Albert Franklin, who was convicted in the Circuit Court for Charles County of reckless endangerment and illegally transporting a handgun in a vehicle in March 2010. The court sentenced Franklin to 14 days of active jail time and three years of probation. Immediately after pronouncing that sentence, the court said it would not rule out modifying Franklin’s sentence to probation before judgment after Franklin completed his period of probation, but that Franklin would have to “work for” such a modification. In April 2010, Franklin’s attorney filed a timely motion for modification of sentence, and asked that the court consider changing the sentence to probation before judgment.

In that filing, the attorney requested a hearing on the motion, but also asked the court to defer consideration of the motion until after the conclusion of Franklin’s probation. After receiving the motion, in keeping with the attorney’s request, the sentencing court noted that it was taking “no action” on the motion. Franklin successfully completed his period of probation, but neither he nor his attorney subsequently asked the sentencing court to set the motion in for a hearing during the remainder of the five-year consideration period. That period expired in March 2015.

Franklin subsequently sought to expunge the records of his criminal charges, but because he had not received probation before judgment, he was not entitled to expungement. After losing his job in 2017 due to his convictions having come to light, Franklin sought a writ of error coram nobis that would allow the sentencing court belatedly to hold a hearing and decide his motion for modification of sentence. Franklin claimed that he was entitled to this relief because his attorney provided ineffective assistance of counsel, in violation of the Maryland and United States Constitutions. Specifically, Franklin claimed that his attorney performed deficiently by failing to notify the sentencing court within the 2 applicable five-year period that Franklin was ready to have the court consider the motion for sentence modification.

The coram nobis court and the Court of Special Appeals denied relief to Franklin. We then agreed to hear Franklin’s appeal. To resolve Franklin’s ineffective assistance claim, we must consider the respective responsibilities of a defendant and defense counsel after a court holds a motion for modification of sentence in abeyance. We conclude that it is the attorney’s responsibility to ensure that a defendant knows the sentencing court has five years from the imposition of the sentence to consider the motion.

However, it is the defendant’s decision whether and when to request that the sentencing judge set the motion in for a hearing. We decline to adopt a per se rule that an attorney provides constitutionally deficient assistance, where the attorney fails to request (or to renew a request for) a hearing on the motion on the attorney’s own initiative within the five-year period for the court to consider the motion. Rather, each such case must be analyzed based on its particular facts. We further hold that Franklin failed to meet his burden to show that his attorney performed deficiently.

The coram nobis court did not make a finding that Franklin’s attorney failed to advise Franklin about the five-year period to consider a motion for modification of sentence. In addition, the coram nobis court found that Franklin never contacted his attorney during the five-year period because he did not suffer any adverse collateral consequences from his convictions until after that period had expired. As a result, Franklin did not instruct his attorney to renew the request for a hearing on the motion for modification of sentence during the five-year period. We therefore conclude that Franklin’s attorney did not provide ineffective assistance of counsel. 3 I Background A. Franklin’s Crimes, Guilty Plea, and Sentencing Hearing On September 24, 2009, Jeremy Elkins was riding his bicycle in Waldorf, Maryland, when Franklin ran him off the road in his SUV.

Franklin’s wife had told him that her bicycle had been stolen, and Franklin thought that Elkins was riding the stolen bike. After Elkins came to a stop, so did Franklin. Franklin then exited his vehicle, approached Elkins, and accused him of stealing the bicycle. After Elkins denied this accusation, Franklin returned to his car and retrieved a pistol.

He then threatened Elkins with the gun and demanded that Elkins accompany him back to where Franklin’s wife was at the time. Elkins complied with Franklin’s demand. When Franklin’s wife saw Elkins and the bicycle, she told Franklin that Elkins was not the man who had stolen her bicycle, and that the bicycle in Elkins’s possession was not hers. Elkins then left with his bicycle.

On November 6, 2009, Franklin was charged in an indictment in the Circuit Court for Charles County as a result of his confrontation with Elkins. The indictment charged Franklin with seven offenses, including first-degree assault, second-degree assault, reckless endangerment, and various weapons charges, including illegally transporting a handgun in a vehicle. On March 5, 2010, Franklin appeared before the Honorable Helen I. Harrington in the Circuit Court for Charles County and, under a plea agreement, entered Alford pleas1 to 1 In an Alford plea – derived from North Carolina v. Alford, 400 U.S. 25 (1970) – the defendant, while maintaining innocence, agrees to a proffer of stipulated evidence or 4 the reckless endangerment and transporting-a-handgun charges.2 The parties informed Judge Harrington that, under the terms of their agreement, they proposed to bind the court to impose a sentence that included a cap of 60 days of active jail time. The written plea agreement signed by Franklin and the State set forth the agreement regarding the 60-day active time cap, and then recited: “There is no other sentencing limitation except that provided by law.” Judge Harrington approved the binding plea, telling Franklin that “[t]he Court is agreeing to sentence you to no more than 60 days of active jail time.”3 On March 22, 2010, Franklin and his retained attorney, Kenneth W. Prien, appeared before Judge Harrington for sentencing.

Mr. Prien requested that Judge Harrington impose a sentence of probation before judgment. The State did not object that the binding plea agreement prohibited Judge Harrington from imposing probation before judgment. Nevertheless, Judge Harrington declined Mr. Prien’s request, and instead imposed concurrent sentences of three years of incarceration with all but 14 days suspended, three to an agreed statement of facts that provides a factual basis for a finding of guilt. See Jackson v. State, 448 Md. 387 , 391 n.3 (2016). 2 See Md. Code Ann., Crim.

Law (“CR”) § 3-204(a)(1) (2002) (reckless endangerment); id. § 4-203(a)(1)(ii) (2002) (transporting a handgun in a vehicle). 3 Under Maryland Rule 4-243(a)(1)(F), the State and the defendant may enter into a plea agreement proposing a particular sentence, disposition, or other judicial action. Under Rule 4-243(c), if the parties have reached this sort of plea agreement, they must advise the judge of the proposed terms of the agreement when the defendant pleads guilty. The judge may accept or reject the plea at that time. If the judge accepts the guilty plea, the judge may approve the agreement or defer decision as to its approval or rejection to a later date.

If the judge approves the plea agreement, “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.” Id. § 4-243(c)(3). 5 years of unsupervised probation, a $500 fine, and 24 hours of community service. The other five charges were disposed of by entries of nolle prosequi. After announcing the sentence, Judge Harrington advised Franklin of his post- sentencing rights, during which Judge Harrington and Franklin had the following exchange: THE COURT: [Y]ou can file a motion to revise this sentence, that has to be filed within 90 days. If you successfully complete the terms of probation I am not ruling out probation before judgment.

That would keep your record clean. But you’re going to have to work for that. FRANKLIN: Yes Ma’am. THE COURT: Any questions, sir?

FRANKLIN: No Ma’am. .... THE COURT: All right. And here’s the probation form. Okay, I usually ask the Clerks to write on their docket sheet that I’ll reconsider for probation before judgment and that way when I look at the file again I’m going okay, I said I would do that.

The docket entry for Franklin’s sentencing hearing stated, among other things, “[Defendant] advised of post sentencing rights…. Court will reconsider for probation before judgment.” 6 B. The Motion for Modification of Sentence On April 1, 2010, Mr. Prien filed a motion under Maryland Rule 4-345(e),4 requesting that Judge Harrington reconsider the sentence.5 After five paragraphs detailing the charges against Franklin, his guilty pleas, and the sentences that Judge Harrington had imposed, the motion further recited: 6. That Judge Harrington stated that she would consider Probation Before Judgment in the future. 7. That Defendant requests that this Motion for Reconsideration not be denied outright, but asks for reconsideration for a possible Probation Before Judgment at the conclusion of his probationary period.

The motion for reconsideration appended a proposed order that included the following text: Upon consideration of the foregoing Motion for Reconsideration it is on this _______ day of ______________, 2010, in the Circuit Court for Charles County, Maryland, ORDERED, that this motion be set in for hearing on the ____ day of __________, 2010; or in the alternative that, ___________________________________________________________ ___________________________________________________________. ORDERED, that the Motion in the above captioned matter be kept under advisement. 4 Rule 4-345(e) provides in pertinent part: “Upon a motion filed within 90 days after imposition of a sentence …, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence.” Md. Rule 4-345(e)(1). A court considering a motion under Rule 4-345(e) may deny the motion without a hearing. See id. § 4-345(e)(2).

However, the court may grant such a motion “only on the record in open court, after hearing from the defendant, the State, and from each victim or victim’s representative who requests an opportunity to be heard.” Id. § 4-345(f). 5 In this opinion, we refer to a motion filed under Rule 4-345(e) interchangeably as a motion for “modification” of sentence, a motion for “reconsideration” of sentence, or as a “Rule 4-345(e) motion.” 7 The proposed order included a blank line for the judge to sign if she decided to do so. Under Rule 4-345(e)(1), Judge Harrington had five years from March 22, 2010 (the date of imposition of sentence), to modify Franklin’s sentence if she saw fit to do so. On April 20, 2010, without filling in any of the blank spaces on the proposed order, Judge Harrington handwrote “no action” on both the motion for sentence modification and the proposed order. Franklin successfully completed his period of probation, paid all court costs, and completed his court-ordered community service.

Neither Franklin nor Mr. Prien renewed the request for a hearing on the pending Rule 4-345(e) motion following the completion of Franklin’s probation. Judge Harrington took no further action on that motion. C. Franklin’s Petition for Expungement On October 7, 2015, Franklin filed a petition for expungement in the Circuit Court for Charles County relating to his arrest and charges for the incident involving Elkins. In his petition for expungement, which he filed pro se, Franklin inaccurately stated that all the charges had resulted in entries of nolle prosequi.

As discussed above, Franklin was convicted and sentenced on two of the charges. This rendered him ineligible for expungement.6 The State filed an objection to the petition for expungement on this basis. On June 28, 2016, Judge Harrington held a hearing on Franklin’s petition for expungement. By the time of the hearing, Franklin was again represented by counsel, but not by Mr. Prien.

Rather, an attorney from the Office of the Public Defender represented 6 See Md. Code Ann., Crim. Proc. (“CP”) § 10-105 (2008). 8 Franklin at this hearing. Franklin’s new counsel requested that Judge Harrington take no action at that time on the petition for expungement so that his office first could file a petition for a writ of error coram nobis on behalf of Franklin, based on the failure of Mr. Prien to file a motion for reconsideration of sentence.

Judge Harrington replied that the motion for reconsideration “was filed. They just didn’t request a hearing.” Judge Harrington stated that the motion was “still, theoretically pending.” Judge Harrington agreed to the request to take no action at that time on the petition for expungement. D. The Coram Nobis Proceeding and Appeal On April 26, 2017, on behalf of Franklin, the Office of the Public Defender filed a petition for a writ of error coram nobis in the Circuit Court for Charles County. In the petition, Franklin alleged that Mr. Prien provided ineffective assistance of counsel by “failing to request a hearing in a timely manner on the motion for reconsideration of sentence.” Franklin alleged that Mr. Prien’s failure to request a hearing had resulted in the loss of an opportunity to have his sentence modified to probation before judgment and to have his charges expunged.

Franklin further alleged that his reckless endangerment and transporting-a-handgun convictions had caused him to suffer collateral consequences sufficient to support the grant of coram nobis relief. Specifically, Franklin alleged that, although he had been an exemplary employee at Essence Dental Care (“Essence”), Essence terminated him due to his convictions. The State opposed Franklin’s petition for coram nobis relief, arguing that Mr. Prien had not provided ineffective assistance of counsel. The State also contended that Franklin 9 had made an insufficient showing of a significant collateral consequence as a result of Mr. Prien’s alleged error.

On November 2, 2017, the parties appeared for a hearing in the Circuit Court for Charles County before the Honorable William R. Greer, Jr., sitting as the coram nobis court. Franklin was represented at that hearing by another attorney from the Office of the Public Defender. Franklin was the only witness at the coram nobis hearing. He testified that Mr. Prien did not tell him that there was a five-year time limit for modification of his sentence, and that he did not know about the five-year time limit as late as October 2015, when he filed his petition for expungement.

Regarding his employment at Essence, Franklin testified that he was already employed by Essence as a dental assistant when he pled guilty and was sentenced in 2010. Franklin further testified that he received several promotions at Essence. In 2011, he was promoted to Lead Dental Assistant. After attending management seminars and receiving additional training, Franklin became Essence’s Clinical Manager in 2012.

He subsequently was promoted to the position of Clinical and Inventory Manager, in which he managed the overall operations of the dental clinic. Franklin testified that, sometime in 2016, Essence “hired a new HR company” that conducted background checks on all employees. In the course of this process, his convictions came to light, eventually leading Essence to terminate his employment in 2017. After hearing closing arguments, the coram nobis court denied Franklin’s petition.

The court held that Franklin had not established that Mr. Prien provided ineffective assistance of counsel. The court found that Mr. Prien requested a hearing on the motion for 10 reconsideration of Franklin’s sentence, and that Judge Harrington considered that request and took no action. Regarding Franklin’s claim that he had not known about the five-year time limit for the court to modify his sentence, the court stated: “Whether Mr. Prien told you about the five years or not, I have no reason to doubt you. I don’t know.

Um…he may not have.” Regardless, the court found (addressing Franklin), “[y]ou weren’t affected for five years. You never contacted the attorney until after that.” The court also stated that, given the evidence presented at the hearing, the court could not say that Judge Harrington would have modified Franklin’s sentence to probation before judgment, had Judge Harrington held a hearing within the five-year period. Alternatively, the court ruled that Franklin failed to show that he suffered significant collateral consequences as a result of Mr. Prien’s alleged ineffectiveness. Franklin appealed the denial of his coram nobis petition to the Court of Special Appeals.

In an unreported opinion, the intermediate appellate court affirmed the coram nobis court’s denial of Franklin’s petition. 2019 WL 4131948 (Aug. 30, 2019). The Court of Special Appeals read the coram nobis court’s ruling as making a factual finding that Judge Harrington’s notation of “no action” constituted a denial of the hearing request. The Court of Special Appeals found no clear error in this finding. As a result, the Court of Special Appeals concluded that Mr. Prien was under no obligation to renew the request for a hearing during the remainder of the five-year period, and therefore, did not provide Franklin with ineffective assistance of counsel.

Franklin petitioned this Court for a writ of certiorari, asking us to review the following question (which we paraphrase slightly here): 11 Is it ineffective assistance of counsel where defense counsel includes in a timely filed motion for sentence modification a request for a hearing accompanied by a request that the matter be kept under advisement, but after the motion is kept under advisement, never renews the request for a hearing prior to the expiration of the five-year period for consideration of the motion?[7] On December 10, 2019, we granted Franklin’s petition for certiorari. 466 Md. 512 (2019). II Standard of Review A petition for coram nobis relief is “available to raise fundamental errors in attempting to show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” State v. Smith, 443 Md. 572, 597 (2015) (cleaned up). A writ of error coram nobis is an “extraordinary remedy justified only under circumstances compelling such action to achieve justice.” Id. (cleaned up).

A petitioner is entitled to coram nobis relief if and only if: (1) the petitioner challenges a conviction based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal; (2) the petitioner rebuts the presumption of regularity that attaches to the criminal case; (3) the petitioner faces significant collateral consequences from the conviction; (4) the issue as to the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and (5) the petitioner is not entitled to another statutory or common law remedy (for example, the petitioner cannot be incarcerated in a State prison or on parole or probation, as the petitioner likely could then petition for post-conviction relief). 7 In his question presented, Franklin also specifically requested that we review this case in comparison to a published Court of Special Appeals decision, Moultrie v. State, 240 Md. App. 408 (2019). We discuss Moultrie at length below. 12 Jones v. State, 445 Md. 324, 338 (2015) (cleaned up). This Court reviews the denial of coram nobis relief for abuse of discretion. State v. Rich, 454 Md. 448, 470-71 (2017).

In applying that standard, we do not disturb the coram nobis court’s factual findings unless they are clearly erroneous, but we review the court’s legal determinations without deference. Id. The only point in dispute before us is whether Franklin received ineffective assistance of counsel.8 That inquiry presents a mixed question of fact and law. See State v. Sanmartin Prado, 448 Md. 664, 679-80 (2016).

The reasonableness of counsel’s conduct and whether a defendant suffered any prejudice as a result of alleged deficient performance are questions of law. Thus, we exercise our “own independent judgment” and “evaluate anew the findings of the [coram nobis] court” as to these questions. Id. (citation omitted).

III Discussion The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights entitle criminal defendants to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Sanmartin Prado, 448 Md. at 681-82 . To prevail in an ineffective assistance claim, a defendant must establish two things: “First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as 8 The Court of Special Appeals did not consider the coram nobis court’s alternative basis for denial of the petition, that is, Franklin’s failure to demonstrate that he suffered significant collateral consequences.

That question is not before us. 13 the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 . With respect to the performance prong of this test, the defendant must show that counsel’s actions or omissions fell “outside the wide range of professionally competent assistance.” Id. at 690 . We “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id.

In this regard, a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689-90 . As to the prejudice component, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 ; see also Sanmartin Prado, 448 Md. at 682 . Franklin contends that Mr. Prien provided constitutionally deficient assistance by failing to inform the sentencing court after Franklin successfully completed his probation that Franklin was ready to have the court consider his motion for sentence modification.

Franklin also claims that he suffered prejudice as a result of Mr. Prien’s alleged error, specifically, the loss of the opportunity for Judge Harrington to consider whether to hold a hearing on Franklin’s motion within the five-year consideration period and to grant the 14 requested modification of sentence at such a hearing. We conclude that Franklin failed to meet his burden to establish ineffective assistance of counsel. A. Franklin’s Claim of Ineffective Assistance Fails on the Performance Prong of the Strickland Test. 1. Mr. Prien Concluded, or Should Have Concluded, That Judge Harrington Deferred Consideration of the Motion for Modification of Franklin’s Sentence.

We first consider the Court of Special Appeals’ reasoning in affirming the denial of Franklin’s petition for coram nobis relief. In his petition, Franklin claimed that Mr. Prien was constitutionally ineffective by failing to request a hearing on the Rule 4-345(e) motion in a timely manner. The coram nobis court found that the motion and proposed order, in combination, requested a hearing on the Rule 4-345(e) motion. Franklin does not challenge this finding on appeal.

However, to the extent the coram nobis court found that Judge Harrington’s notation of “no action” constituted a denial of the request for a hearing, Franklin contends this finding is clearly erroneous. The Court of Special Appeals held otherwise, and therefore concluded that Mr. Prien did not perform deficiently by failing to renew the request for a hearing at a later date. We agree with the premise of the Court of Special Appeals’ holding that, if Judge Harrington denied the request for a hearing when she wrote “no action” on the motion and proposed order, Mr. Prien reasonably could have concluded that Judge Harrington had effectively denied the motion. As noted above, a court can only modify a sentence under Rule 4-345(e) after conducting a hearing in open court at which the defendant, the State, and any victims or victim representatives may be heard.

Thus, the denial of a hearing on a Rule 4-345(e) motion is tantamount to the denial of the motion itself. 15 However, we do not believe that the “no action” notation constituted a denial of the request for a hearing. Nor could Mr. Prien reasonably have concluded from the “no action” notation that Judge Harrington had denied the request for a hearing. At the sentencing hearing on March 22, 2010, immediately after advising Franklin of his right to file a motion for modification of sentence within 90 days, Judge Harrington told Franklin: “If you successfully complete the terms of probation I am not ruling out probation before judgment. That would keep your record clean.

But you’re going to have to work for that.” A moment later, Judge Harrington explained: “I usually ask the Clerks to write on their docket sheet that I’ll reconsider for probation before judgment and that way when I look at the file again I’m going okay, I said I would do that.” Indeed, the docket entry for the sentencing hearing included a notation that Franklin was “advised of post sentencing rights…. Court will reconsider for probation before judgment.” In the motion that Mr. Prien filed on behalf of Franklin on April 1, 2010, Mr. Prien noted that Judge Harrington had “stated that she would consider Probation Before Judgment in the future.” Mr. Prien therefore requested that the motion “not be denied outright,” but instead requested “reconsideration for a possible Probation Before Judgment at the conclusion of [Franklin’s] probationary period.” At the end of the proposed order that Mr. Prien appended to the motion, he included the proposed relief that “the Motion in the above captioned matter be kept under advisement.” In these circumstances, we believe the only reasonable interpretation of Judge Harrington’s April 20, 2010 “no action” notations on the motion and proposed order is that Judge Harrington deferred consideration of the request for a hearing and of the motion 16 itself. There is no basis to conclude that Judge Harrington had changed her mind by April 20, 2010, about being willing to reconsider Franklin’s sentence after the conclusion of his period of probation. Indeed, when she presided over the hearing on Franklin’s expungement petition in 2016, Judge Harrington stated that “[t]hey … didn’t request a hearing” on the motion for modification of sentence, and that the motion was “still, theoretically pending.” Had Judge Harrington meant to forever deny Franklin a hearing on the motion on April 22, 2010, we believe she would have rejected Mr. Prien’s request to hold the motion under advisement simply by denying the motion.

Judge Harrington did not do so. Compare Montgomery v. State, 405 Md. 67, 71 (2008) (where the circuit court handwrote “No decision” on Rule 4-345(e) motion approximately three weeks after it was filed and took no further action on it, observing that the record did not reflect that the circuit court “ever ruled” on the motion). Thus, to the extent the coram nobis court found that Judge Harrington denied the request for a hearing by entering her “no action” notations, we conclude that finding is clearly erroneous. Moreover, we do not believe that Mr. Prien reasonably could have interpreted the “no action” entries as a denial of a hearing and, therefore, a denial of Franklin’s motion for modification of sentence.

To the contrary, given Judge Harrington’s comments at the sentencing hearing and Mr. Prien’s request to keep the motion under advisement, the only reasonable conclusion Mr. Prien could have drawn from the “no action” entries was that Judge Harrington did precisely what Mr. Prien had asked her to do: keep Franklin’s motion under advisement. 17 It follows that Judge Harrington’s “no action” entries do not resolve this appeal. Mr. Prien either concluded, or should have concluded, that Judge Harrington was keeping the motion for modification under advisement pending Franklin’s completion of his probation. Thus, we must consider whether Mr. Prien’s failure to renew the request for a hearing between the time Franklin completed his period of probation, and the expiration of the five- year period for consideration of a Rule 4-345(e) motion, constituted deficient performance under the Sixth Amendment and Article 21. 2. Franklin Did Not Meet His Burden to Show Deficient Performance.

Franklin contends that an attorney provides constitutionally deficient representation per se where: (1) the attorney files a timely motion for modification of sentence; (2) the sentencing court takes the motion under advisement; and (3) the attorney fails to request (or renew a request for) a hearing on the motion within the five-year period under Rule 4- 345(e) for the sentencing court to consider the motion. We decline to adopt Franklin’s suggested per se rule. Rather, we hold that a court must assess a claim of deficient attorney performance in this context based on the specific facts and circumstances of the case before it. Applying that analysis to this case, we conclude that Franklin failed to show that Mr. Prien acted unreasonably by not renewing the request for a hearing within the five-year period. 18 a.

Franklin’s Suggested Bright Line Rule Is Unwarranted. Franklin argues that State v. Flansburg, 345 Md. 694 (1997), compels the conclusion that an attorney who fails to renew a request for a hearing on a Rule 4-345(e) motion, before the expiration of the five-year period for consideration of the motion, per se provides constitutionally deficient representation. We disagree. In Flansburg, this Court held that a defendant has a right under Maryland law “to the effective assistance of counsel in connection with his [or her] request to file a motion for modification of the [] sentence.” 345 Md. at 703 .

In that case, after Flansburg was sentenced, he sent his attorney two timely written requests that the attorney file a motion for sentence modification. The attorney failed to file the requested motion. Id. at 696 . Flansburg sought postconviction relief, contending that, by failing to timely file the requested motion and thereby forfeiting the opportunity to have the court reconsider Flansburg’s sentence, his attorney provided ineffective assistance of counsel.

Id. at 697 . This Court agreed that the attorney’s failure to comply with Flansburg’s express request constituted deficient performance. Id. at 705 . In this case, after Franklin completed his period of probation, he did not ask or instruct Mr. Prien to renew the prior request for a hearing on the motion for modification of sentence.

Indeed, Franklin never contacted Mr. Prien during the five-year period after the sentencing hearing. Thus, we are not faced with a situation that is analogous to Flansburg. Rather, Franklin argues for a bright line rule that an attorney, on his or her own initiative, must make or renew a request for a hearing on a motion for modification of sentence being held under advisement, prior to the expiration of the five-year period. In 19 support of his position, Franklin relies primarily on the Court of Special Appeals’ opinion in Moultrie v. State, 240 Md. App. 408 , cert. denied, 466 Md. 208 (2019).

In Moultrie, a 16-year-old defendant, Tevin Moultrie, pled guilty to second-degree murder. The court sentenced Moultrie to 30 years in prison. 240 Md. App. at 413-14 . Moultrie’s attorney then advised Moultrie on the record of several post-sentencing rights, including the right to move the sentencing court to modify the sentence that the court had just imposed. The attorney told Moultrie: “You have 90 days from today to file a motion for modification.

All of that must be in writing. I will file it for you, and … maybe the Court could … hold it sub curia.[9] Then maybe in a little while, in a few years, maybe we can hopefully come back and show the Court all the positive things you've done. Okay, sir?” Id. at 414 . After Moultrie said he understood, his attorney continued: “Mr. Moultrie, whatever you do, recognize you still are only 17 years old.[10] You've already been in almost two years.

Okay sir? Recognize that if you continue to do the positive things that you do, and show the Court the positive, that you are going to be an asset to society, that maybe at that point in time, down the road, we can hopefully have this matter brought back in.” Id. 9 “Sub curia” is a Latin phrase that means “under law.” In Maryland, when a court says that it will hold a matter sub curia, the court means that it is ordering the “matter to be held pending resolution due to a legal requirement (a procedure, rule or statutory requirement that prevented the finality of the matter).” Glossary of Court Terms, https://mdcourts.gov/reference/glossary#S (accessed on July 27, 2020), archived at https://perma.cc/TQ3W-Y89X. In this opinion, we use the phrases “under advisement,” “in abeyance,” and “sub curia” interchangeably. 10 Moultrie was actually six weeks short of his seventeenth birthday on the day he was sentenced. Id. at 414 . 20 Moultrie’s attorney filed a timely motion for modification of sentence under Rule 4-345(e).

In the motion, counsel asked that the court hold it sub curia, and that the court “[g]rant a hearing upon petition of counsel[.]” Id. at 415 . As the Court of Special Appeals observed, the sentencing court “evidently agreed to hold the motion sub curia, because no further action was taken on it.” Id. Moultrie’s attorney did not file a “petition” for a hearing on the motion before the five-year deadline ran. Id.

Moultrie subsequently filed a petition for post-conviction relief, alleging that his attorney provided ineffective assistance of counsel by failing to secure a ruling during the five-year period. At the post-conviction hearing, Moultrie introduced no evidence that he had asked his attorney to request a hearing or a ruling on the motion prior to the expiration of the five-year period. See id. at 422 . After the post-conviction court denied Moultrie’s petition, the Court of Special Appeals reversed.

The court found significant that Moultrie was a teenager at the time counsel filed the motion for modification of sentence: In our view, it is completely unrealistic to expect a teenaged defendant to understand that he cannot count on his attorney to advise him about when it would be best to request a hearing on a motion to modify or reduce a sentence. It is equally unrealistic to expect such a defendant to understand that a hearing will occur only if he himself initiates the process. It is just as unrealistic to expect such a defendant to have an innate understanding that he will lose the right to a hearing unless he does something to ensure that it occurs within five years from his sentencing. It is far more reasonable to expect that a defendant will rely on counsel both to advise him about when a hearing should be requested and to request the hearing before the running of any deadlines.

Id. at 423 . Analogizing Moultrie’s case to State v. Shoemaker, 225 Md. 639, 641-42 (1961), in which this Court ordered a belated appeal after the criminal defendant’s original appeal 21 had been dismissed because of his attorney’s failure to transmit the record, the Court of Special Appeals reasoned: “Just as it is insufficient for an attorney simply to note an appeal, so too is it insufficient for an attorney simply to file a motion for the modification or reduction of a sentence. Just as an attorney must take steps to ensure that an appeal is heard (by transmitting the record and filing a brief), so too must an attorney take steps to ensure that motion for modification or reduction of a sentence is heard, by requesting a hearing before the five-year deadline runs.” Moultrie, 240 Md. App. at 424 . To the extent Moultrie creates a bright line rule that an attorney must, on his or her own initiative, make or renew a request for a hearing on a motion for modification of sentence being held under advisement, we disagree with the reasoning of the Court of Special Appeals.

In general, bright lines concerning what constitutes constitutionally deficient performance are disfavored. See Strickland, 466 U.S. at 688 (holding that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances”); Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (rejecting a per se rule that an attorney is ineffective if the attorney fails to file a notice of appeal in a criminal case, because such a rule is inconsistent with “the circumstance-specific reasonableness inquiry required by Strickland”); State v. Borchardt, 396 Md. 586, 603, 604 (2007) (observing that “[t]he deficient performance inquiry includes a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time,” and that the requisite “standard of reasonableness spawns few hard-edged rules”) (internal quotation marks and citation omitted). 22 The bright line rule this Court established in Flansburg is appropriate because a defendant who requests that counsel file a Rule 4-345(e) motion reasonably relies upon counsel to do so. An attorney’s failure to file such a motion after being asked to do so cannot be considered a strategic decision; rather, such a failure “reflects inattention to the defendant’s wishes,” Flores-Ortega, 528 U.S. at 477 , and is per se unreasonable. The bright line that Moultrie draws, however, goes too far.

We do not believe it is reasonable in all cases to require a criminal defense attorney, on his or her own initiative, to request a hearing on a motion for modification of sentence that has been held under advisement. As discussed further below, in many cases, absent an instruction by the defendant to request that the court take up such a motion during the five-year period, an attorney will not perform deficiently if the attorney fails to make that request on the attorney’s own initiative. However, we do see the need for a different bright line rule regarding the five-year period. An attorney must ensure that his or her client knows there is a five-year period for consideration of a motion for modification of a sentence.

If a defendant is not advised of the five-year period, the defendant may incorrectly believe that he or she has an unlimited amount of time to engage in rehabilitative efforts, and will neglect to notify the court (either through counsel or pro se) during the five-year period that the defendant wishes the court to consider a pending motion for modification. We recommend that sentencing courts add the five-year consideration period regarding a motion for sentence modification to the post-sentencing rights that they (and/or defense counsel) advise defendants about on the record following the imposition of a 23 sentence. However, if the defendant does not receive such an advisement during the sentencing hearing, defense counsel must advise the defendant, either before or after the sentencing hearing, that the sentencing court will have five years from the imposition of sentence to consider a motion to modify the sentence. If a defendant, whose timely motion was taken under advisement, proves that he or she failed to request a hearing within the five-year period because defense counsel neglected to ensure that the defendant was advised of the five-year consideration period, that factual finding by a post-conviction or coram nobis court will suffice to show that defense counsel performed deficiently under the Sixth Amendment and Article 21.11 Assuming a defendant is properly advised of the existence of the five-year period, it is not