Hoile v. State

HARRELL, J. Gallia est omnis divisa in partes tres. 1 The first part of this opinion provides underlying facts of the criminal case and its convoluted procedural path to our door. The second part explains the Court’s reasons for denying earlier the defendant’s Motion to Strike Appearance of the crime victim’s attorney in the appeal. In the third and final part of this opinion, we shall address the merits of the issues for which certiorari was granted. I. Facts and Procedural History On 10 April 1998, Sharden Busie Hoile, Petitioner/Cross-Respondent here, pled guilty in the Circuit Court for Prince George’s County to a charge of first degree assault of Ms. Tracy L. Palmer, a former romantic partner.

Hoile was sentenced to 15 years in prison, which was suspended in favor of five years of probation. On 18 May 2001, Hoile was found to have violated that probation and therefore was ordered by the trial judge to serve the original 15 year sentence concurrently with a sentence Hoile then was serving for a separate conviction in the Circuit Court for Calvert County. 2 Hoile filed a motion for reconsideration of sentence in the Prince George’s County case. On 10 December 2004, the Circuit Court for Prince George’s County held a hearing on Hoile’s motion. The motion was granted.

As a result, Hoile ostensibly was to be committed to ⁵⁹⁸ the Department of Health and Mental Hygiene for substance abuse treatment. 3 The Circuit Court for Prince George’s County forwarded a copy of the order imposing the altered sentence to the Circuit Court for Calvert County. The Circuit Court for Calvert County declined, however, to reconsider Hoile’s sentence in its case. 4 This result occasioned the Circuit Court for Prince George’s County to hold another hearing on 8 April 2005, at Hoile’s request, to consider the effect on its 10 December 2004 ruling of the refusal by the Calvert County court to alter its sentence of imprisonment. 5 The Circuit Court for Prince George’s County, upon reflection, again modified the sentence in its case, the present one, to time served and placed Hoile on five years of supervised probation. On 8 December 2005, Ms. Palmer wrote a letter to the trial judge in Hoile’s case in Prince George’s County stating that ⁵⁹⁹ she had not been notified 6 of the 10 December 2004 or 8 April 2005 hearings, although she previously requested such notification in writing in a letter dated 2 July 1998 to the Assistant State’s Attorney who prosecuted the case. 7 The court held a hearing on 10 February 2006, where Palmer was represented by counsel, and found as a fact that the victim had not been notified properly, as required by Maryland Code (2001, 2007 Cum.Supp.), Criminal Procedure Article, 8 §§ 11-104, 9 11-503, 10 ⁶⁰⁰ and Maryland Rule 4-345(e)(2) and (f).2 ******** 11 On Palmer’s motion, ⁶⁰¹ the trial court vacated the altered sentence imposed on 8 April 2005. ⁶⁰⁰ (e) Modification Upon Motion. (2) Notice to Victims.

The State’s Attorney shall give notice to each victim and victim’s representative who has filed a Crime Victim Notification Request form pursuant to Code, Criminal Procedure Article, § 11-104 or who has submitted a written request to the State's Attorney to be notified of subsequent proceedings as provided under Code, Criminal Procedure Article, § 11-503 that states (A) that a motion to modify or reduce a sentence has been filed; (B) that the motion has been denied without a hearing or the date, time, and location of the hearing; and (C) if a hearing is to be held, that each victim or victim’s representative may attend and testify. (f) Open Court Hearing. The court may modify, reduce, correct, or vacate a sentence 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. The defendant may waive the right to be present at the hearing.

No hearing shall be held on a motion to modify or reduce the sentence until the court determines that the notice requirements in subsection (e)(2) of this Rule have been satisfied. If the court grants the motion, the court ordinarily shall prepare and file or dictate into the record a statement setting forth the reasons on which the ruling is based. ⁶⁰¹ After the court vacated the reconsideration of sentence, the following exchange took place: Assistant State’s Attorney: And may I inquire of the Court procedurally, now that the sentence has been vacated, original sentence stands. Will a new order need to be issued to the Department of Corrections so that regardless of Mr. Hoile’s status in his Calvert County case, that he is— he is incarcerated under the sentence in this matter? Counsel for Palmer: A new commitment order will need to be filed Your Honor.

Court: The Clerk agrees with you, and I’m sure she will look into that. In effect, the vacation of Hoile’s reconsidered sentence reinstated the immediate prior sentence (the one imposed upon finding a violation of probation), at least until the trial judge were to act anew on the now resurrected motion to reconsider sentence. Before the judge could move on to revisit the merits of Hoile’s Motion to Reconsider Sentence at the 10 February 2005 hearing, Hoile asked for a continuance. One was granted.

On 13 February 2006, a new commitment order was filed by the Clerk of the Circuit Court, committing Hoile to the Division of Correction for the remainder of the 15 year sentence. 12 Hoile filed an immediate appeal to the Court of Special Appeals. In addition, Hoile filed a motion to exclude Palmer’s participation, individually or through counsel, as a party to the proceedings in the Court of Special Appeals. The intermediate appellate court originally denied the motion, without preju ⁶⁰² dice, permitting Hoile to seek the same relief in his reply brief or at oral argument. Counsel for Palmer filed a brief (accepted by the intermediate appellate court) and participated in oral argument in the Court of Special Appeals as if a party.

Although Hoile, in his reply brief, renewed his request to strike the appearance of Palmer’s counsel, the Court of Special Appeals dismissed the appeal without acting on the motion. The intermediate appellate court, in an unreported opinion, dismissed the appeal as premature because the trial judge in the Circuit Court for Prince George’s County had not acted yet on the revived motion to reconsider sentence. 13 On 5 December 2007, we granted Hoile’s Petition for Writ of Certiorari and the State’s Cross-petition. The Petition and Cross-petition collectively raise four questions: 1. Did the Court of Special Appeals err by dismissing Petitioner’s appeal from an order of the trial court reimposing Petitioner’s sentence of incarceration where the trial court previously had granted [Hoile’s] motion for reconsideration and modified his sentence to probation but then vacated that sentence at the request of the victim who alleged she had not been notified of the reconsideration hearing? 2.

Did the trial court illegally increase [Hoile’s] sentence when it vacated his sentence of probation and reimposed a sentence of incarceration? 3. Did the trial court err in granting a motion to vacate judgment where that motion was filed by the victim, a non-party to the case? 4. Is Hoile precluded from arguing that the trial court illegally increased his sentence? On 3 January 2008, Hoile filed a Motion to Strike the Appearance of Counsel for Palmer in the proceedings before this Court.

Palmer opposed the motion. The State filed a ⁶⁰³ memorandum of law, the content of which we interpret as urging the Court to “do the right thing” regarding the motion. On 11 March 2008, after hearing oral arguments on the motion only from Hoile and Palmer (the State declined to argue), we issued an Order denying Hoile’s motion. In section II of this opinion we explain our reasons for denying the motion.

Although an interlocutory ruling, the denial of the motion deserves an explanation because of the relative “sea change” in our jurisprudence it represents regarding the status of a victim’s participation in a criminal appeal.

II

Mfotion to Strike Appearance of Counsel In his Motion and supporting Memorandum of Law, Hoile contended that Palmer is not a party and should not be able to participate in the case as a matter of right. 14 Palmer countered that she has a right to brief and argue the issues in the case as if a party, citing, among other supporting reasons, recent changes to Maryland Rule 8-111. 15 Maryland Rule 8-111 currently states: DESIGNATION OF PARTIES; REFERENCES (a) Formal Designation. (1) No Prior Appellate Decision. When no prior appellate decision has been rendered, the party first appealing the decision of the trial court shall be designated the appellant and the adverse party shall be designated the appellee. Unless the Court orders otherwise, the parties to a subsequently filed appeal shall be designated the cross-appellant and cross-appellee. ⁶⁰⁴ (2) Prior Appellate Decision.

In an appeal to the Court of Appeals from a decision by the Court of Special Appeals or by a circuit court exercising appellate jurisdiction, the party seeking review of the most recent decision shall be designated the petitioner and the adverse party shall be designated the respondent. Except as otherwise specifically provided or necessarily implied, the term “appellant” as used in the rules in this Title shall include a petitioner and the term “appellee” shall include a respondent. (b) Alternative References. In the interest of clarity, the parties are encouraged to use the designations used in the trial court, the actual names of the parties, or descriptive terms such as “employer,” “insured,” “seller,” “husband,” and “wife” in papers filed with the Court and in oral argument.

(c) Victims and Victims’ Representatives. Although not a party to a criminal or juvenile proceeding, a victim of a crime or a delinquent act or a victim’s representative may: (1) file an application for leave to appeal to the Court of Special Appeals from an interlocutory or a final order under Code, Criminal Procedure Article, § 11-103 and Rule 8-204; or (2) participate in the same manner as a party regarding the rights of the victim or victim’s representative. [Emphasis added.] Section (c) was added by a Rules Order of this Court signed on 4 December 2007. The change became effective on 1 January 2008. 16 Thus, this motion presents our first opportunity to construe the new portions of the rule. Palmer contends that Maryland Rule 8-lll(c)(2) permits her to participate in this appeal “in the same manner as a party.” Under the circumstances of this case, we must agree that Palmer has the right to brief and argue in this appeal. ⁶⁰⁵ Because this is our first application of Maryland Rule 8-111(c) since its adoption, some relevant retrospection is required.

Article 47 of the Maryland Declaration of Rights, the Victims’ Rights Amendment, 17 states: (a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. (b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are implemented and the terms “crime”, “criminal justice proceeding”, and “victim” are specified by law. (c) Nothing in this Article permits any civil cause of action for monetary damages for violation of any of its provisions or authorizes a victim of crime to take any action to stay a criminal justice proceeding. Article 47 represents “the strong public policy that victims should have more rights and should be informed of the proceedings, that they should be treated fairly, and in certain cases, that they should be heard.” Lopez-Sanchez v. State, 388 Md. 214, 229 , 879 A.2d 695, 704 (2005), superceded by statute on other grounds by Chapter 260 of the Acts of 2006.

Article 47 and related legislation have created a class of specific, but narrow, rights for victims with regard to certain aspects of the criminal proceedings against the perpetrators of the crimes committed against victims or their property. For example, § 11-104 provides the statutory scheme by which a victim may elect to be notified of the proceedings in the relevant criminal case. Section 11-102 grants victims the right to attend any proceeding in which the right to attend is granted to the defendant. Section 11-302 defines victims’ rights to be present at trial.

Sections 11-402 and 11-403 ⁶⁰⁶ elaborate victims’ rights to be heard regarding pre-sentence investigative reports and at sentencing hearings, respectively. Section 11-404 defines victims’ rights to address juries in death penalty proceedings. Section 11-503 grants victims the right to be notified of post-conviction appeals and other proceedings. Section 11-103 provides that a victim may file an action for leave to appeal an interlocutory or final order that “denies or fails to consider” a right granted to him or her by certain statutory provisions.

The application for leave to appeal, however, does not stay other proceedings in a criminal case, unless all parties consent. 18 § 11—103(c); Article 47 of the Maryland Declaration of Rights. These rights, however, are limited in application and context. In the present case, for example, Palmer is not a party to the litigation. § 11—103(b); Maryland Rule 8-lll(c). There are only two parties, the State of Maryland and Hoile.

See Lopez-Sanchez, 388 Md. at 226 879 A.2d at 702 (“The victim is not a party to the proceeding ... although vested with statutory and constitutional rights.... ”); Surland v. State, 392 Md. 17 , 23 n. 1, 895 A.2d 1034 , 1037 n. 1 (2006). As such, there are some important differences between the rights of parties and those of non-parties enjoying limited rights regarding participation in criminal litigation. Although a victim may “file an application for leave to appeal,” he or she does not have a right to appeal as a party does. Maryland Code (1974, 2006 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-301.

A non-party’s right to participate in the litigation is limited to “decisions affecting the party’s direct ⁶⁰⁷ and substantial interests.” Lopez-Sanchez, 388 Md. at 227 , 879 A.2d at 702 . The limits of victims’ rights have been defined further in Maryland easelaw. In Cianos v. State, 338 Md. 406 , 659 A.2d 291 (1995), we held that victims who erroneously were denied a right to speak at the defendant’s sentencing were not entitled to maintain an appeal. In so holding, we noted that the statute enabling victims to speak at sentencing had “no teeth” because victims could not seek invalidation of the sentence.

Cianos, 338 Md. at 412 , 659 A.2d at 294 (quoting Lodowski v. State, 302 Md. 691, 747 , 490 A.2d 1228, 1256-57 (1985)). We re-affirmed that proposition in Lopez-Sanchez, 388 Md. 214 , 879 A.2d 695 . In Lopez-Sanchez , a victim of a violent crime committed by a juvenile sought to appeal an inadequate restitution amount awarded in the disposition of the juvenile court proceeding. We held that if “the prosecutor or the trial court does not follow the law with respect to a victim’s rights in a juvenile proceeding, the Legislature has not given to the victim the general right to appeal that decision.” Lopez-Sanchez, 388 Md. at 230 , 879 A.2d at 704 .

In response to our holding in Lopez-Sanchez , the General Assembly enacted Chapter 260 of the Acts of 2006, which amended § 11-103 to extend victims’ rights to file an application for leave to appeal to orders arising from a juvenile proceeding, including disposition hearings under Maryland Code (1974, 2006 Repl.Vol.), Courts & Judicial Proceedings Article, § 3-8A-19. After the Legislature amended § 11-103, our Standing Committee on Rules of Practice and Procedure (“Rules Committee”) proposed changes ostensibly to conform the relevant rules to the new legislation. The Rules Committee proposed amending Maryland Rule 8-111 to “extend[ ] the right to file an application for leave to appeal to a victim of a [juvenile] delinquent.” 19 158th Report of the Standing Committee on ⁶⁰⁸ Practice and Procedure, 26 September 2007, available at http: //www.eourts.state.md.us/rules/reports/158thReport.pdf. We adopted the proposed rule changes by a Rules Order dated 4 December 2007.

The new subsection (c) of Maryland Rule 8-111 became effective on 1 January 2008. “To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes.” State ex rel. Lennon v. Strazzella, 331 Md. 270, 274 , 627 A.2d 1055, 1057 (1993). “We thus look to the plain meaning of the language employed in these rules and construe that language without forced or subtle interpretations designed to limit or extend its scope.” Lee v. State, 332 Md. 654, 658-59 , 632 A.2d 1183, 1185 (1993). Subsection (c) of the Rule goes beyond merely ensuring that victims of crimes committed by juveniles are granted the same rights as other crime victims. Subsection (c)(1) alone conforms and carries out the provisions of § 11-103. 20 Section ll-103(b) refers to twelve specific statutory rights granted to victims.

If any of those specific statutory rights are violated, the victim may seek leave to appeal. In the present case, however, subsection (c)(1) of Rule 8-111 is not what concerns us. Instead, subsection (c)(2) is implicated. Subsection (c)(2) of Maryland Rule 8-111 permits a victim to “participate in the same manner as a party regarding the rights of the victim.... ” This subsection stands as the analog to subsection (c)(1).

The two subsections address different contexts: if a victim is aggrieved by an adverse trial court action affecting one or more of the twelve statutory rights ⁶⁰⁹ referred to in § ll-103(b), subsection (c)(1) applies, and the victim may seek leave to appeal under § 11—103(b); if a victim is content with the implicated trial court action, but a party appeals, the victim may “participate in the same manner as a party” in that appeal, but only with regard to the victim’s rights. Victims’ rights under subsection (c)(2) extend only as far as, and are subject to, the same limitations as victims’ rights under subsection (c)(1) and § ll-103(b). Our interpretation of subsection (c) of the Rule is supported by the employment in it of the disjunctive connector “or” between (c)(1) and (c)(2). “The word ‘or’ is a disjunctive conjunction which serves to establish a relationship of contrast or opposition.” Walker v. Lindsey, 65 Md.App. 402, 407 , 500 A.2d 1061, 1064 (1985). Accordingly, subsections (c)(1) and (c)(2) must have been intended to be independent and mutually exclusive provisions applying in the different contexts explicated here.

Our construction of Maryland Rule 8-111(c) in this fashion avoids potentially anomalous results. If the level of appellate participation afforded victims under subsection (c)(2) were less than the level of participation potentially afforded under subsection (c)(1), crime victims would be unable in the former to protect their potentially more meritorious claims. A victim seeking to “participate in the same manner as a party” under subsection (c)(2) in a party’s appeal at least has benefited from a ruling or judgment of the trial court. That ruling, favorable to the victim, could be the subject of an appeal as of right by a party.

By contrast, subsection (c)(1) applies where the victim’s rights are affected by an unfavorable ruling below and seeks leave to appeal. As noted above, the amendments to Maryland Rule 8-111 go beyond merely carrying out the changes indicated in Chapter 260 of the Acts of 2006. The addition of subsection (c)(2) has the effect of changing further the landscape of a victim’s role in appellate criminal proceedings. In other words, the recent amendments to Maryland Rule 8-111 serve as a distinguishing feature between the present case and Maryland ⁶¹⁰ precedent where Maryland’s appellate courts have restricted more narrowly victims’ roles in criminal appeals.

See Surland, 392 Md. at 23 n. 1, 895 A.2d at 1037 n. 1 (holding that a homicide victim’s parents did not have standing as victims’ representatives to file a brief or participate in oral argument in the Court of Appeals); Cianos, 338 Md. at 412 , 659 A.2d at 294 (holding that crime victim’s relatives lacked standing to appeal sentence); Lamb v. Kontgias, 169 Md.App. 466, 479 , 901 A.2d 860, 867 (2006) (holding that the victim had no standing to appeal the lack of notice of, and opportunity to speak at, a hearing to reconsider sentence). This Court previously, by Rule change, altered the landscape of prior caselaw in other areas of the law as well. See, e.g., Committee Note to Maryland Rule 5-607 (noting that the adoption of Maryland Rule 5-607 in 1994 “eliminate[d]” the common-law voucher rule); Wilson v. Holliday, 364 Md. 589, 598-601 , 774 A.2d 1123, 1128-30 (2001) (describing why, following Lynch v. Lynch, 342 Md. 509 , 677 A.2d 584 (1996), the Court of Appeals enacted Maryland Rule 15-207(e) governing spousal and child support enforcement through contempt proceedings, abrogating the holding in Lynch); Greco v. State, 347 Md. 423 , 433 n. 4, 701 A.2d 419 , 423 n. 4 (1997) (noting how Maryland Rule 4-345 had been modified to abrogate the holding in State v. Sayre, 314 Md. 559 , 552 A.2d 553 (1989), regarding mistakes in announcing sentence); Kang v. State, 163 Md.App. 22, 44-45 , 877 A.2d 173, 185-86 (2005), aff'd, 393 Md. 97 , 899 A.2d 843 (2006) (noting that the addition of Maryland Rule 4-323(b) limited the effect of “[njumerous cases of the Court of Appeals” by permitting, for the first time, a continuing objection); Hoang v. Hewitt Ave. Assocs., LLC, 177 Md.App. 562, 581 , 936 A.2d 915, 926-27 (“Such was the state of Maryland law of pleading and damages when the Court of Appeals decided Falcinelli v. Cardascia, 339 Md. 414 , 663 A.2d 1256 (1995), and Scott v. Jenkins, 345 Md. 21 , 690 A.2d 1000 (1997).

Those cases prompted amendments to the Maryland Rules that are important to the issue before us.”); Williams v. State, 110 Md.App. 1 , 23 n. 6, 675 A.2d 1037 , 1048 n. 6 (1996) (noting how Maryland Rule 1-502 [since replaced ⁶¹¹ by Maryland Rule 5-609] altered the admission into evidence convictions of infamous crimes); Mooney v. State, 28 Md.App. 408, 415 , 346 A.2d 466, 471 (1975) (“The abrogation of the common law right to indictment is clearly shown by the amendments to Rule 709.”). In the present case, Palmer was authorized to participate in briefing and oral argument before this Court on 3 April 2008 on the issues that directly and substantially affected her specific statutory rights enumerated in § ll-103(b), as implicated by the parties’ certiorari questions. Lopez-Sanchez, 388 Md. at 227 , 879 A.2d at 702 . In the trial court, Palmer successfully filed and argued a motion to vacate reconsideration of Hoile’s sentence based on asserted denial of her rights.

Palmer now argues that the motion was necessary in order to protect her rights to be notified, attend, and be heard under § § 11-102, 11-104, 11-403 and 11-503. The resolution of the present appeal on the merits will affect Palmer’s “direct and substantial interests.” Lopez-Sanchez, 388 Md. at 227 , 879 A.2d at 702 . Therefore, she was permitted to participate in a manner similar to a party, including participating in oral argument and filing a brief. 21 III. Merits of the Present Appeal A. The Granting of the Motion to Vacate Reconsideration of Sentence is an Appealable Judgment The Court of Special Appeals dismissed Hoile’s appeal as premature, holding that the vacation of Hoile’s altered sentence of time served and five years probation was not an appealable final judgment.

It is a long-standing principle of our appellate jurisprudence that generally, “an appeal in a criminal ease is premature until after final judgment.” Dail v. Price, 184 Md. 140, 143 , 40 A.2d 334, 336 (1944); Maryland Code (1977, 2006 Repl.Vol.), Courts & Judicial Proceedings ⁶¹² Article § 12-301. “Because of the difficulty in determining whether an issue before an appellate court arises from a final judgment, this Court has formulated a definition: The judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding____” Sigma Reproductive Health Ctr. v. State, 297 Md. 660, 665 , 467 A.2d 483, 485 (1983) (internal quotation omitted). In a basic sense, “a final judgment consists of a verdict [in a criminal case] and either the pronouncement of sentence or the suspension of its imposition or execution.” Lewis v. State, 289 Md. 1, 4 , 421 A.2d 974 (1980). “Usually, a criminal case is complete and disposed of when sentence has been pronounced and, generally, sentence is the punishment to be inflicted on the convicted person in the form of imprisonment or fine or both.” Langworthy v. State, 284 Md. 588, 596-97 , 399 A.2d 578, 583 (1979) (footnote and citation omitted), superseded by statute on other grounds as stated in Treece v. State, 313 Md. 665 , 547 A.2d 1054 (1988). “When sentence is pronounced or imposed, there is a final judgment for purposes of appeal.” State v. Sayre, 314 Md. 559, 565 , 552 A.2d 553, 556 (1989), superceded by Rule change on other grounds as stated in Greco v. State, 347 Md. 423 , 433 n. 4, 701 A.2d 419 , 423 n. 4 (1997). The State contends that because “a new sentence has not yet been imposed, there is no final judgment and no appealable order.” The State, in this argument, takes a narrow view of what constitutes a sentence “imposed” by a court. The State urges that the original sentence of 15 years incarceration was not reimposed on Hoile, rather, it simply was “resurrected,” “revived,” “sprung back,” or “reverted” by virtue of the court’s vacation of the altered sentence of time served and five years’ probation.

The State’s argument ignores the procedure required to “revive” Hoile’s original sentence and our caselaw which takes a broader view of what constitutes the imposition of sentence. ⁶¹³ In McDonald v. State, 314 Md. 271 , 550 A.2d 696 (1988), we rejected the argument that an original sentence was “revived” when reimposed on a defendant. McDonald was convicted of solicitation and was sentenced to a six-month suspended sentence with supervised probation for one year. Later, the trial court found that McDonald violated her probation and reimposed the six-month sentence. The trial court denied McDonald’s Rule 4-345 motion for reconsideration of sentence because more than 90 days elapsed since the original imposition of sentence.

We held that the reinstating of a suspended sentence following the parole violation constituted an imposition of sentence. We noted that “[wjhether the hearing judge reimposes the original sentence or imposes a new sentence, the effect under Rule 4-345[ ] remains the same.... ” McDonald, 314 Md. at 285 , 550 A.2d at 702 . We expressly adopted the reasoning of the Court of Special Appeals in Coley v. State, 74 Md.App. 151, 156 , 536 A.2d 1166, 1169 (1988), where the intermediate appellate court stated that “if an order revoking a defendant’s probation returns the hearing judge to the original sentencing status, then any sentence so imposed must have the effect of an original sentence.” The Court of Appeals concluded that “[t]he 90-day period runs from the time any sentence is imposed or reimposed upon revocation of probation----” McDonald, 314 Md. at 285 , 550 A.2d at 702 . In Greco, 347 Md. 423 , 701 A.2d 419 , we addressed whether a reduction in sentence as a result of a defendant’s motion for reconsideration was an “imposition of sentence.” Greco was convicted in 1984 of first degree murder and first degree rape.

Greco, 347 Md. at 426 , 701 A.2d at 420 . He was sentenced to consecutive terms of life imprisonment. Id. The defendant filed a motion for reconsideration of sentence, which was held sub curia by the trial court until 1992.

Id. In 1992, the trial court modified Greco’s sentence to concurrent life terms of imprisonment. Id. Shortly thereafter, Greco filed another motion for reconsideration of sentence under Maryland Rule 4-345.

Id. The trial court ruled that it was divested of jurisdiction to hear Greco’s new motion for reconsideration of sentence because more than 90 days had passed since the ⁶¹⁴ original imposition of sentence in 1984. Id. The Court of Appeals held that, by reducing Greco’s sentence in 1992, the trial court had imposed a new sentence, thus resetting the 90-day clock.

Greco, 347 Md. at 432 701 A.2d at 423 . Therefore, we also held that Greco was entitled to be heard on his new motion for reconsideration of sentence. Id. Greco stands for the proposition that the granting of a motion for modification of sentence constitutes the imposition of a new sentence.

Accord State v. Green, 367 Md. 61, 83-84 , 785 A.2d 1275, 1288 (2001) (“[0]ur cases make clear that when a trial court grants a motion to revise a criminal sentence, it resurrects the penalty portion of a judgment, thus, the new sentence represents the actual disposition of the case and the modified sentence becomes the appealable order.”). The State offers no persuasive argument as to why the vacation of the grant of an identical motion does not also constitute an imposition of a new sentence. See Green, 367 Md. at 83-84 , 785 A.2d at 1288 (rejecting an argument described as “exceedingly technical” and holding that when a trial court revises sentence “the new sentence represents the actual disposition of the case and the modified sentence becomes the appealable order”); Webster, 359 Md. at 477, 754 A.2d at 1010 (finding an appealable judgment where “the collateral motion ... was granted, and resulted in the imposition of a new sentence”). The State’s reasoning, were it to be adopted, could lead to potentially anomalous results.

If the State had opposed Hoile’s initially successful motion for reconsideration of sentence on the grounds that it was a violation of either the Maryland Code or the Maryland Rules, the State clearly would have the right to appeal. Maryland Code (1974, 2006 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-302(c)(2); Green, 367 Md. at 84 , 785 A.2d at 1288 (2001); Webster, 359 Md. at 477, 754 A.2d at 1010. The State, instead, offered no opposition to Hoile’s motion and allowed its time for appeal from the grant thereof to expire. The State then supported Palmer’s motion to vacate reconsideration of sentence after the time expired for the State’s appeal from the decision on the motion.

See State v. Wilkins, 393 Md. 269 , ⁶¹⁵ 273, 900 A.2d 765, 768 (2006) (“In other words, a motion to correct an illegal sentence is not an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.”). In essence, the State joined in a motion seeking to reverse a decision of the Circuit Court for which the State’s time to appeal had expired. Hoile also points out that if the Circuit Court were to deny his resurrected pending motion for modification of sentence, he would have no opportunity to appeal. The State’s brief is conspicuously silent in response to this argument.

There is much caselaw holding that the denial of a motion to modify a sentence, unless tainted by illegality, fraud, or duress, is not appealable. See, e.g., Costello v. State, 237 Md. 464, 469-70 , 206 A.2d 812, 815 (1965) (holding that where the defendant alleged a violation of the “constitutional right to due process of law,” the defendant would be permitted to appeal a denial of a motion to modify sentence as an “exception to the general principle”); State v. Rodriguez, 125 Md.App. 428, 442 , 725 A.2d 635, 642 (1999) (“As a general rule, ‘[a] motion to modify or reduce a sentence is directed to the sound discretion of the trial court and is not appealable.’ ” (quoting State v. Strickland, 42 Md.App. 357, 359 , 400 A.2d 451, 452 (1979))). This clear principle, however, might be seen as called into question recently by dicta 22 in Fuller v. State, 397 Md. 372 , ⁶¹⁶ 918 A.2d 453 (2007) (Fuller II). For the purpose of clarity, we explain that a denial of Hoile’s pending motion for modification of sentence would have been unappealable. 23 The proper perspective from which to analyze Fuller II begins with the Court of Special Appeals’s opinion in that case, Fuller v. State, 169 Md.App. 303 , 900 A.2d 311 (2006) (Fuller I).

The Court of Special Appeals in Fuller I surveyed prior reported cases and noted its synthesized “conclusion that this Court does not have jurisdiction to review the ruling at issue is entirely consistent with the well settled rule (never modified by the General Assembly) that, unless the circuit court erroneously concludes that it does not have jurisdiction to consider the defendant’s motion for modification, no direct appeal lies from the circuit court’s denial of a motion for modification or reduction of a sentence that the defendant concedes to be a legal sentence.” Fuller I, 169 Md.App. at 309-310, 900 A.2d at 315 (footnotes omitted). We affirmed the judgment of the Court of Special Appeals, but our reasoning on this issue appeared to differ. In support of its assertion that no appeal lies from the refusal to modify a legal sentence, except where it declines to exercise jurisdiction, the Court of Special Appeals relied on Costello. Fuller I, 169 Md.App. at 310 n. 6, 900 A.2d at 315 n. 6.

We, however, disagreed with that reliance, noting that “[w]e disagree with the State’s rationale relying upon Costello ... that a decision left to the discretion of the trial court judge is not reviewable on appeal, because that justification was obviated in Merritt [v. State], 367 Md. ⁶¹⁷ 17, 785 A.2d 756 , in which we examined the appealability of the denial of a motion for a new trial.” Fuller II, 397 Md. at 388 , 918 A.2d at 462 . Then, quoting contrasting dicta in Greco, 347 Md. at 423 , 701 A.2d at 419 , the Court in Fuller II stated that “ ‘[i]f the motion is denied, the defendant is fin ished-he or she may not file another motion for reconsideration.’ ” Fuller II, 397 Md. at 389 , 918 A.2d at 463 (quoting Greco, 347 Md. at 423 , 701 A.2d at 419 ). This undeveloped dicta could be read to call into question the clearly articulated earlier rule prohibiting appeal of a discretionary denial of a timely motion for modification of sentence under Maryland Rule 4-345(e) and its predecessors. The language in Fuller II, as construed here, should not be read as retreating from the Court’s earlier expressed views on this point.

In discussing the appealability of the denial of a motion to correct an illegal sentence under Maryland Rule 4-345(a), Judge Eldridge fairly described earlier Maryland jurisprudence on the issue as a “plethora of inconsistent opinions,” a “saga,” and “zigzagging.” State v. Kanaras, 357 Md. 170, 180 , 742 A.2d 508, 514 (1999). Kanaras , in overruling at least five prior reported cases and affirming several others, brought needed clarity by holding that the denial of a motion to correct an illegal sentence is appealable. Kanaras is just as notable for what it did not overrule as what it did. Kanaras , expressly overruled Valentine v. State, 305 Md. 108 , 501 A.2d 847 (1985); Harris v. State, 241 Md. 596 , 217 A.2d 307 (1966); Burley v. State, 239 Md. 342 , 211 A.2d 714 (1965); Wilson v. State, 227 Md. 99 , 175 A.2d 775 (1961); and Brady v. State, 222 Md. 442 , 160 A.2d 912 (1960).

Kanaras , however, did not overrule Costello , though discussing it extensively. The Court’s opinion in Fuller II correctly recognized Kanaras as “reconciling” Costello while overruling Wilson, the case upon which Costello relies largely. Fuller II, 397 Md. at 384 , 918 A.2d at 460 . The holding of Costello has not been challenged, either by Fuller, Kanaras, or any other case.

Thus, the distinction between