Hillard v. State

²⁰¹ DAVIS, Judge. On May 31,1996, appellant was convicted of robbery with a deadly weapon, use of a handgun in a crime of violence, two separate counts of assault and battery, and false imprisonment. The circuit court, on July 10,1996, sentenced appellant to the following: twenty years imprisonment, with all but ten years suspended, and five years probation for robbery with a deadly weapon; ten years concurrent for the use of a handgun, with five years mandatory; one year concurrent for the assault and battery charges; and one year concurrent for false imprisonment. Appellant filed a petition for post-conviction relief on October 10, 1996.

We affirmed appellant’s conviction on May 14,1997 and, on January 14,1998, appellant withdrew his petition for post-conviction relief. At a hearing on January 14, 1998, the circuit court (Nichols, J.) reconsidered appellant’s sentence and imposed five years imprisonment on the robbery with a deadly weapon charge, five years for the use of a handgun in a crime of violence, to be served concurrently and, according to the court, “[t]hat five years without parole.” The revised sentence was to commence retroactively to appellant’s original sentence commencement date of November 14, 1995. Appellant served less than four years of his five-year sentence and was released on March 30,1999. Subsequent to his release from prison, appellant, on May 2, 1999, was charged with the murder of his former girlfriend’s boyfriend.

On or about May 4, 1999, the Division of Parole and Probation filed an application for warrant on the basis that appellant violated probation. Agent Christina Stockton, Senior Agent, and Mary Grace Waldron, Field Supervisor I, both employed by the Maryland Department of Public Safety and Correctional Services, Division of Parole and Probation, reported to the court appellant’s “ill adjustment to supervision.” In that report they stated: [Appellant] was released on Mandatory Release from Southern Maryland Pre Release Unit on March 30, 1999. Since his release from incarceration, [appellant] has given ²⁰² this Agent several different addresses where he is residing. On two occasions this Agent attempted to verify the addresses given by this offender.

In both instances on April 22, 1999 and April 29, 1999 the home verification was unsuccessful. On the first instance, the resident of the home had no knowledge of the [appellant]. In the second instance, this Agent discovered that this was the residence of the [appellant’s] aunt. She informed this Agent that [appellant] did not reside at that address.

Therefore, [appellant’s misrepresentation regarding his residence prohibited this Agent from conducting a home verification. In addition, it has come to this Agent’s attention that on May 2, 1999 [appellant] allegedly Committed First Degree Murder. This Agent was informed by Detective Jernigan of the Prince George’s County Police Department, that [appellant] gunned down the new boyfriend (Wayne Sellers) of his ex-girlfriend (Terri Lewis). A warrant has been issues [sic] for [appellant] by the Police Department charging him with First Degree Murder (Case # CR000E00125041).

At this time [appellant] is being sought by the Prince George’s County Police Department. In light of the aforementioned facts it is respectfully requested that a Warrant be issued charging appellant with violation of Probation. On May 24,1999, the State filed a petition against appellant for violation of probation and a warrant was issued for his arrest. He was served with a copy of a bench warrant on June 5, 1999 and was assigned a public defender on June 11, 1999.

Appellant’s public defender, on July 15, 1999, filed a motion to dismiss the petition for violation of probation 1 based on the following reasons: ²⁰³ 1. That the [appellant] in the herein cause is charged with violation of probation of a Court Order of July 10, 1996. 2. That on January 14, 1998, the [appellant] was resen-tenced in this matter to a period of five years incarceration without parole. This sentence dated irom November 14,1995. 3.

That the [appellant] is not on probation in this case. The circuit court (Sothoron, J.), on September 15, 1999, denied appellant’s motion to dismiss, stating in its Order: Furthermore, this [c]ourt notes that the Reconsideration of the [appellant’s Sentence by Judge C. Philip Nichols, Jr. was illegal, in that such violated the provisions of Maryland Rule 4-345. Accordingly, the [appellant] was and is still on probation pursuant to this Court’s original sentence. On March 3, 2000, appellant was convicted by a jury in the Circuit Court for Prince George’s County (Krauser, Sherry, J.) of second degree murder and use of a handgun.

On April 25, 2000, he was found guilty of violation of probation in the circuit court (Sothoron, J.). The court imposed a sentence of twenty years imprisonment with all but ten years suspended. The following is the sequence of the proceedings before the circuit court: 11/14/95-Beginning date of revised sentence/date appellant incarcerated 5/31/96-Appellant convicted of armed robbery and related offenses 7/10/96-Appellant sentenced for robbery with deadly weapon to twenty years, all but ten years suspended, five years probation; ten years concurrent with five years mandatory for use of a handgun in the commission of a crime of violence; one year for false imprisonment and one year for assault and battery, to be served concurrently. 10/10/96-Petition for Post Conviction relief filed ²⁰⁴ 1/14/98-Appellant’s 7/10/96 sentence reconsidered pursuant to agreement between State and appellant that, in consideration for withdrawal of Post Conviction Petition, appellant is sentenced to five years for robbery with a deadly weapon and five years concurrent without parole for use of handgun in commission of crime of violence 3/30/99-Appellant’s mandatory release after serving four years of 1/14/98 five year sentence; appellant received “Mandatory Supervision Release Certificate” that reads “the date on which the inmate’s maximum term will expire is November 14, 2000.” 5/2/99-Appellant charged with murder of ex-girlfriend’s boyfriend (Basis of Violation) 5/4/99-State filed petition for violation of probation and appellant arrested on bench warrant on 6/5/99 7/15/99-Appellant filed motion to dismiss Petition for Violation of Probation based on contention that, pursuant to 1/14/98 reconsideration of his original sentence, he was no longer on probation (No probationary period was imposed at 1/14/98 hearing) 9/15/99-Appellant’s Motion to Dismiss Violation of Probation Petition denied; circuit court concluded that reconsideration of sentence was illegal in that it violated Maryland Rule 4-345 because reconsideration hearing was not heard by sentencing judge, notwithstanding agreement between appellant and State and, because the reconsideration proceeding was illegal, appellant was on original probation 3/3/00-Appellant convicted by jury in Prince George’s County Circuit Court of second degree murder of ex-girlfriend’s boyfriend 4/25/00-Appellant found guilty of violation of probation and sentenced to twenty years, with all but 10 years suspended; appeal subsequently filed to Court of Special Appeals As noted in the time line, above, appellant filed this timely appeal presenting one question for our review: ²⁰⁵ Did the trial court err in finding appellant in violation of probation? DISCUSSION Appellant contends that he was not on probation and, a fortiori, could not be found to be in violation of probation.

According to appellant — and conceded by the State — the parties reached a binding agreement at appellant’s hearing for post-conviction relief. That agreement was summarized by the Assistant State’s Attorney: Your Honor, in consideration for the [appellant] withdrawing his post-conviction motion the State is agreeing to have the sentence in this case reconsidered to five years mandatory for the handgun violation and a concurrent five years on the RDW [robbery with a deadly weapon] count. No back-up time at all. The court reiterated their agreement, stating: As I understand it[,] part of the agreement is I resentence you today as to count one robbery with a deadly weapon the sentence would be five years.

As to count two the use of a handgun in the commission of a crime of violence or a felony the sentence is five years. That five years without parole. And it accounts from, was it November 14th, 1995? [PROSECUTOR]: Yes. Appellant contends and the State concurs, that the agreement entered into by appellant and the State at the January 14, 1998 hearing was binding upon all parties.

Appellant argues that the circuit court improperly contravened the agreement by re-sentencing appellant to the original sentence. The State “agrees that it requested that that bargain be adopted by Judge Nichols____” and will “not take a contrary position on appeal.” Judge Sothoron sua sponte determined that Judge Nichols’s modification of appellant’s sentence at his post-conviction hearing was improper. [Appellant’s counsel] on behalf of appellant filed on July 15, 1999 a motion to dismiss. The basis in part was that the [appellant] was no longer on probation. This [c]ourt denied ²⁰⁶ that motion on September the 15th, 1999 by way of written word and in doing so this [c]ourt pointed out that Judge Nichols had illegally reconsidered appellant’s case.

That in the [cjourt’s mind, and I am talking about myself, Judge Nichols’s reconsideration was a violation of Maryland Rule 4-345 which speaks to reconsideration of sentence. So therefore I determined that appellant was still on probation and therefore denied the motion to dismiss. Maryland Rule 4-345 states, in pertinent part: (a) Illegal sentence. The court may correct an illegal sentence at any time.

(b) Modification or reduction — Time for. The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition____Thereaf-ter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity,.... The court may not increase a sentence after the sentence has been imposed, except that it may correct an evidence mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding. (c) Open court hearing.

The court may modify, reduce, correct, or vacate a sentence only on the record after notice to the parties and an opportunity to be heard. During the following colloquy, the State objected to a review of appellant’s sentence during the post-conviction proceedings: Your Honor, first I would say post-Brooks v[.] State[Warden, Md. Penitentiary], 1 Md.App. 1 [, 226 A.2d 354 (1967) ], clearly says that post-conviction is not a place for review of sentence or reconsideration of sentence. Many times sentences are changed at post-conviction. But the proper way to do them is the post-conviction goes before another judge but the reconsideration or review has to go back to the sentencing judge.

Just as [Maryland] Rule 4-345 says that a motion for reconsideration or reduction of sentence should be brought back before the sentencing court. And that, I believe it is Duffin v[.] Warden, of Maryland Penitentiary, ²⁰⁷ 235 Md. 685 [, 202 A.2d 597 (1964)], hold that. Also in Wimbush v[.] Warden, 229 Md. 616 [, 182 A.2d 357 (1962)], the reconsideration must go back to the trial court. Therefore I, my position is that when Judge Nichols did this it may be done all the time but it was wrong.

And since it was wrong it could be considered an illegal sentence. And in order for an illegal sentence to be corrected it goes back to the sentencing court once again, which would be yourself. So I would argue that this sentence was not done properly to reduce it to five years and it should go back to you. And you at any time can correct what we believe to be an illegal sentence.

On this appeal, as we have noted, the State concedes that the agreement by appellant to withdraw his post-conviction petition in exchange for a reconsideration of his sentence was a binding agreement. Although the typical agreement between the State and an accused contemplates a reduced charge or lesser sentence in consideration of a defendant’s voluntary relinquishment of his right to a trial and the guarantees attendant thereto, the law is well settled that, in the absence of any jurisdictional defect, such agreements are based on contract principles and must be enforced. As the Supreme Court said in Santobello v. New York, 404 U.S. 257, 262-63 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971): Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of