Hughes v. State

Anthony Thomas Hughes v. State of Maryland, Nos. 325 and 331, September Term, 2017. Argued: February 1, 2018. Opinion by Sharer, J. CRIMINAL PROCEDURE – APPEALS – ILLEGAL SENTENCE – SCOPE OF REVIEW Appellant’s application for leave to appeal challenging the post-conviction court’s choice of remedies to correct an illegal sentence does not prevent an appellate court from reviewing the post-conviction court’s underlying factual determination that the sentence was illegal and its decision to grant appellant partial relief. Pursuant to Maryland Rule 8-131(a), appellate courts may review any issues raised in or decided by lower courts.

As such, the post-conviction court’s finding that the sentence imposed for one count in a five-count plea agreement did not conform to the agreement was subject to review when appellant challenged whether the remedy afforded by the post- conviction court to correct the illegality was appropriate. When there is a challenge to the choice of remedies afforded to correct an illegal sentence, an appellate court may review both the remedy and the underlying determination of the illegality of the sentence. CRIMINAL PROCEDURE – POST-CONVICTION – ILLEGAL SENTENCE – REMEDY – BENEFIT OF THE BARGAIN A post-conviction challenge to the legality of only a single sentence for one count of a multi-count plea agreement does not require a court to strike the entire plea agreement in order to correct the illegality. Pursuant to Maryland Rule 4-345(a), a court “may correct an illegal sentence at any time.” The post-conviction court determined that the sentence challenged by appellant exceeded the sentencing cap imposed by the plea agreement and struck only the sentence and conviction of the non-conforming count, rather than striking the entire plea agreement, as appellant sought.

On appeal this Court held that the post-conviction court’s decision to strike the sentence and conviction for only the non-conforming count of the plea agreement corrected the illegality and restored appellant to the benefit of his bargain of the plea agreement, while preserving the finality of the unchallenged and legal sentences on the four remaining counts of the plea. The resolution of the illegality in appellants favor was legally correct and was an equitable and reasonable remedy. Circuit Court for Carroll County Case No. 06-K-03-029949 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 325 & 331 September Term, 2017 ______________________________________ ANTHONY THOMAS HUGHES v. STATE OF MARYLAND ______________________________________ Berger, Friedman, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Sharer, J. ______________________________________ Filed: November 7, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-07 15:15-05:00 Suzanne C. Johnson, Clerk PREFACE In 2003, Anthony Thomas Hughes, appellant, was charged in the Circuit Court for Carroll County, in a 25-count indictment relating to violent offenses involving four victims.1 He entered a plea of not guilty and proceeded to trial on an agreed statement of facts, resulting in conviction on all counts. On direct appeal, this Court reversed and ordered a new trial.2 On November 14, 2005, prior to the ordered new trial, Hughes entered into a plea agreement, the details of which we shall recount, infra.

It is that agreement, and the trial court’s implementation of it, that has given rise to this appeal. In 2012, Hughes filed, pro se, a Motion to Correct Illegal Sentence, contending that he did not agree to what he characterized as a 75-year sentence. The motion was summarily denied, and Hughes noted an appeal, which, consequently, mirrored his motion and was not treated or acted on as an appeal. On February 10, 2016, Hughes, through counsel, filed a petition for post-conviction relief, again challenging the legality of the sentence based on an alleged breach of the plea agreement by the State and the trial court.

Following a hearing, the court granted relief in part by vacating the conviction and sentence only as to Count 7 – the count that did not appear to conform to the terms of the plea agreement. 1 The indictment charged Hughes with: one count of attempted first-degree murder, attempted second-degree murder, eight counts of first-degree assault, first-degree burglary, seven counts of second-degree assault, third-degree burglary, four counts of wear and carry a deadly weapon with intent to injure, malicious destruction of property, and fourth-degree burglary. 2 Anthony Thomas Hughes, No. 2771, Sept. Term, 2003 (filed May 6, 2005). Dissatisfied with the post-conviction court’s grant of only partial relief, Hughes invoked the jurisdiction of this Court in two respects: he filed a notice of appeal3 based on the court’s denial of his initial Motion to Correct Illegal Sentence, and an application for leave to appeal4 based on the court’s consideration of his petition for post-conviction relief. We granted the application for leave to appeal and consolidated it with the direct appeal. On appeal, Hughes asks this Court to determine whether the post-conviction court erred by not allowing him to elect his remedy in response to the breach of the plea agreement, and by vacating the conviction and sentence as to Count 7 only, rather than vacating the entire plea agreement.5 Finding that the sentence imposed on Count 7 was illegal and agreeing with the post-conviction court’s choice of remedy, we shall affirm.

FACTUAL BACKGROUND Because Hughes presents only procedural questions, we need not set forth an extensive factual recitation in support of the underlying convictions. Therefore, we provide 3 Hughes v. State, No. 325, September Term, 2017. 4 Hughes v. State, No. 331, September Term, 2017. 5 Appellant’s questions, as presented in his brief: After the lower court correctly found that Mr. Hughes’ sentence failed to conform to his binding plea agreement, did the lower court err: (1) by failing to permit Mr. Hughes to elect his choice of remedies, and withdraw his guilty plea; and/or (2) by affording Mr. Hughes a remedy neither requested, nor previously sanctioned in Maryland, by vacating solely that portion of the plea and sentence which failed to conform to the parties’ binding plea agreement? 2 only a brief narration of the relevant background. See Teixeira v. State, 213 Md. App. 664, 666 (2013); Washington v. State, 190 Md. App. 168, 171 (2010). For context, we refer to the State’s brief for a summary of the events of December 31, 2002.

On that evening, Hughes broke into the home of his ex-wife, Ellen Redifer, in Westminster, Carroll County. Redifer, her daughter, Arianna Hughes and Arianna’s boyfriend, Sean Malay, fled from the house, and were pursued by Hughes. Hughes caught Redifer and struck her multiple times in the head, neck and upper chest with a large framing hammer. Malay attempted to intervene but was threatened with the hammer.

Redifer’s neighbor, John Glover, responded and pulled Hughes away from Redifer, and he too was struck with the hammer. Hughes and Glover grappled, and Hughes cut Glover in the back of the head with a box cutter knife. At that point Hughes ran from the scene but returned and attempted to run down all of them with his car. Hughes then fled to a relative’s house in West Virginia, where he was later arrested.

Redifer survived the critical injuries sustained in the attack. PROCEEDINGS BELOW On July 21, 2003, Hughes pleaded not guilty on an agreed statement of facts proffered by the State, after which the court found him guilty on all counts. The court imposed a sentence of life plus 45 years’ imprisonment. Hughes appealed, arguing that he had not knowingly and voluntarily waived his right to a jury trial.

This Court agreed, reversed his convictions, and ordered a new trial. See Hughes v. State, No. 2771, Sept. Term, 2003 (filed May 6, 2005). 3 On the day that Hughes appeared for a motions hearing preliminary to his new trial, a binding plea agreement was negotiated.6 Hughes agreed to plead guilty to five counts: Count 1 – attempted first-degree murder of Redifer; Count 7 – first-degree assault of the neighbor, John Glover; Count 11 – first-degree burglary; and to Counts 14 and 15 – second- degree assault of Arianna Hughes and Sean Malay, respectively. In exchange for the guilty plea the State agreed to ask for a sentence of 75 years’ incarceration with all but 45 years suspended for the attempted murder count (Count 1). The remaining four counts (Counts 7, 11, 14 and 15) were to carry either suspended or concurrent sentences.

Following recitation of the agreement, the court advised Hughes of his rights pursuant to Md. Rule 4-242, including an extensive voir dire to establish his competency to enter into the plea agreement. Thereafter, the court accepted the plea agreement, binding to its terms, and the State gave a factual proffer to support the charges. The court found Hughes guilty of the five counts and ordered a pre-sentence investigation. As agreed, the State then entered a nol pros of the remaining counts of the indictment.

At sentencing, the State requested, pursuant to the binding plea agreement: as to Count 1 (attempted murder) 75 years’ incarceration with all but 45 years suspended; as to Count 7 (first-degree assault), 25 years consecutive to Count 1, but suspended; and concurrent term-of-years sentences for the three remaining charges, all of which the court 6 The record does not contain a transcript of negotiation discussions. 4 imposed.7 As agreed at the plea hearing, the State had nol prossed the remaining counts that were not included in the plea agreement. Appellant did not object to the sentences as requested or imposed and confirmed on the record that he understood the sentences imposed and that he had no questions about them. Soon thereafter, Hughes moved to modify his sentence, and requested that the motion be held sub curia. The motion was denied without a hearing.

On September 5, 2012, Hughes filed a pro se Motion to Correct Illegal Sentence, contending that he never consented to a 75-year sentence. That motion was also summarily denied. Hughes next filed an “Application for Leave to Appeal Denied [sic] the Motion to Correct Illegal Sentence.” Other than the caption, the document was essentially a handwritten copy of his original typed motion. The Clerk’s office noted on a “Case Frequency Report” that, “This motion has already been denied See order dated 9.24.12.” Because of that, the filing was not treated as Hughes’ appeal of the court’s denial of his Motion to Correct Illegal Sentence, and no further action was taken by the court.

The State had also filed a formulaic response to appellant’s handwritten filing, incorporating its response to the original motion. 7 Initially at sentencing, the court failed to include a term of probation, as required when a portion of a sentence is suspended; however, the court recalled the case later that same day and imposed a five-year term of probation to follow Hughes’ release from incarceration. 5 On February 10, 2016, Hughes, now represented by counsel, filed a petition for post- conviction relief, again challenging the legality of the sentence.8 He argued that the State and court violated the plea agreement when a 25-year consecutive sentence for Count 7 was requested and imposed, which exceeded the terms of the plea agreement, thereby rendering the sentence illegal. As to relief, he proclaimed his entitlement to either vacate the entire plea agreement, or to have it specifically enforced by making the Count 7 sentence a concurrent suspended sentence of 25 years, rather than consecutive. Following a hearing, the post-conviction court issued an order granting relief in part by vacating the conviction and the sentence for Count 7, leaving all other convictions and sentences unchanged.9 The post-conviction court ordered a new trial on Count 7. At the 8 The initial petition for post-conviction relief raised five questions for the court’s review.

The first two questions related to appellant’s plea being knowingly, intelligently, and voluntarily made without full compliance with Rule 4-242. Two questions related to the illegality of the sentence and whether Hughes was entitled to elect his remedy. The final question was an ineffective assistance of counsel claim. The petition was later amended to add a claim challenging the legality of the sentence that was originally imposed without a term of probation.

However, the case was recalled, on the day of sentencing, to allow the trial court to add a five-year probation term to the sentence. This claim is not being pursued on appeal. At the hearing, Hughes withdrew all claims from the original request, except for those relating to the illegality of his sentence. 9 We question the court’s authority to vacate the conviction under Count 7. Rule 4-345(a) affords the court the authority to “correct an illegal sentence at any time [,]” but it does not give the court the authority to vacate an otherwise valid and lawful conviction.

However, because the State effectively abandoned its intent to pursue Count 7 by entering a nol pros before the scheduled retrial, and by failing to pursue a cross-appeal challenging the court’s authority, the State has waived the matter. 6 time of Hughes’ initial appearance pursuant to that Order, the State entered a nol pros to Count 7. Those events occurred on the day following Hughes’ filing of a notice of appeal and an application for leave to appeal, to which we have referred, supra.10 DISCUSSION The procedural posture of this appeal requires that we preliminarily address two underlying issues: (1) the effect of the State’s entry of nol pros as to Count 7 after an appeal had been noted; and (2) whether, when determining the appropriateness of the remedy afforded, we can review the post-conviction court’s determination that the sentence imposed by the trial court was illegal. While these two issues were not directly argued by the parties in their respective briefs, they were considered below, and discussion is necessary in order for our discussion of the merits of the consolidated appeals. The State’s Nol Pros of Count Seven Hughes does not directly challenge the State’s ability to enter a nol pros of a count after the defendant has noted an appeal.

Nonetheless, because it is a predicate to our review of the post-conviction court’s decision, we shall briefly address the question. On April 25, 2017, Hughes filed his notice of appeal and an application for leave to appeal together with a motion to stay proceedings pending resolution of the appeals and, on the following day, the State entered a nol pros of Count 7. The State contends, generally, that “Hughes received more than [that] to which he was entitled under the plea 10 At the same time, Hughes moved for a stay pending the outcome of his appeal. That matter is not before the Court. 7 agreement when the court vacated his felony conviction and sentence in count seven and the State elected not to reprosecute [sic] him on that charge.” While the parties acknowledge the issue of the timeliness of the nol pros, neither question the legal effect of its post-judgment entry.

An entry of nol pros on a count or charge reflects the “prosecutor’s desire not to proceed against the accused on the basis of that particular charging document.” State v. Ferguson, 218 Md. App. 670, 680 (2014) (quoting Huebner v. District Court of Maryland, 62 Md. App. 462, 470 (1985)). We have said, the “[e]ntry of a nol pros ‘is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.’” Ferguson, 218 Md. App. at 680 (quoting Ward v. State, 290 Md. 76, 83 (1981)). However, that authority is not without limits. As we recently held in Simms v. State, 232 Md. App. 62 (2017), a “post-conviction nol pros is ineffective ….” 232 Md. App. at 70 .

Simms went to trial on an agreed statement of facts and was found guilty. Id. at 64, 67 . He was sentenced according to an agreed- upon sentence on one charge and the State nol prossed the remaining charges. Id.

Simms then appealed, asserting, inter alia, insufficiency of the evidence. Id. at 64 . While the appeal was pending before this Court, the State entered a nol pros of the count on which Simms had been convicted. Id. at 64, 67 .

The Court of Appeals granted certiorari and affirmed, sub nom, clarifying that after a defendant has received a final judgment in the form of a conviction and sentencing, the State may not enter a nolle prosequi to alter the final judgment. Upon conviction and sentencing based upon an underlying charge, the underlying charge is no longer pending and the State’s authority to enter 8 a nol pros has ended. Final judgment terminates the case in the trial court…. Therefore, the State lacked the authority to nol pros in order to alter the final judgment or to eliminate the appellate process initiated by [appellant].

State v. Simms, 456 Md. 551, 578 (2017). The Court of Appeals reasoned, that “[b]ecause [appellant] appealed his conviction and sentence, the trial court had no jurisdiction to alter the conviction or sentence by relying on the State’s nol pros authority.” Id. at 576 . We need not apply Simms to the matter before us, because we ultimately shall hold that the post-conviction court was correct in ruling that Hughes’ sentence on Count 7 was illegal, and because we conclude that the remedy granted by the post-conviction court restores Hughes to the terms of the plea agreement, we assume, arguendo, the legal effect of the State’s nol pros. The State did not note a cross-appeal A second preliminary inquiry is our authority to review the post-conviction court’s underlying determination that the sentence exceeded the terms of the plea agreement.

Attempting to limit the scope of our review, Hughes asserts that “[t]he lower court’s finding that [his] sentence failed to conform to the parties’ binding plea agreement is beyond the scope of this appeal ….” because the State has failed to file a cross-appeal from the ruling of the post-conviction court. The scope of appellate review is governed by Maryland Rule 8-131, providing, in relevant part, that: Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but 9 the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. Rule 8-131(a). But, the Rule affords this Court discretion to consider issues that were “raised in or decided by the trial court[.]” Id.

Additionally, the Rule permits the exercise of discretion over matters that were neither raised in nor decided by the trial court, when “such an issue [is] necessary or desirable to guide the trial court ….” Id. Hughes refers us to Walston v. Sun Cab Co., Inc., 267 Md. 559 (1973), for the proposition that an appellee cannot urge this Court to consider matters outside the scope of an appeal absent a cross-appeal. Walston, however, expressly limits any restriction to “matters not within or related to the issues raised by an appellant.” 267 Md. at 564 . Clearly, the issues presented to the post-conviction court regarding the legality, or illegality, of Hughes’ sentence and the extent to which the parties received the benefit of the plea bargain, are sufficiently intertwined to be considered as issues related to those raised in Hughes’ direct appeal and his application for leave to appeal.

Hughes asks us to review the court’s choice of remedies. Therefore, we review the court’s factual findings that resulted in the remedy afforded when determining whether that remedy was appropriate. Indeed, in determining whether the post-conviction court erred in its choice of remedies, as Hughes argues, we review what the plea agreement contemplated and whether the State and the trial court complied with its terms. Such review presents matters “within or related to” the issues raised by Hughes, and within this Court’s discretion to consider. 10 Binding Plea Agreements Plea agreements are a vital and efficient mechanism for both the State and the defendant, as well as for the public.

See Cuffley v. State, 416 Md. 568, 577 (2010). The Maryland Rules governing plea agreements provide strict safeguards and procedures to ensure that the defendant’s procedural due process rights are protected. Judge Moylan has explained for this Court: A plea agreement is, of course, a contract between a criminal defendant and the State in which each seeks to gain a benefit and, in return for such benefit, each agrees to pay a price. It is a very special contract, moreover, in that even after the basic quid pro quo is agreed upon by the primary contracting parties, the entire package may be submitted to a criminal court for its approval and its subsequent enforcement.

If it should then be the enforcing authority (to wit, the court) that commits a breach of the contract, what even-handed justice requires is that each of the primary contracting parties, if suffering from the breach, is equally entitled to seek a remedy under equally conducive procedural conditions. State v. Smith, 230 Md. App. 214, 218 (2016), aff’d, 453 Md. 561 (2017). Maryland Rule 4-242 imposes various conditions that must be satisfied before a court can accept a guilty plea. In this case, there is no challenge to the adequacy of the trial court’s qualification of Hughes’ plea.

While Rule 4-242(h)11 limits when a defendant can move to withdraw a plea when a violation of the agreement is asserted, Rule 4-345, which governs revision of sentences, 11 Rule 4-242(h) provides that a defendant may withdraw a plea “[a]t any time before sentencing,” and thereafter if made by motion within ten days, at which point “the court may set aside the judgment and permit the defendant to withdraw a plea of guilty[ ]… if the defendant establishes that the provisions … of this Rule were not complied with or there was a violation of a plea agreement entered into pursuant to Rule 4-243….” 11 expressly provides that “[t]he court may correct an illegal sentence at any time.” Rule 4- 345(a) (emphasis added). Maryland courts have consistently held that “a sentence imposed in violation of the maximum sentence identified in a binding plea agreement and thereby ‘fixed’ by that agreement as ‘the maximum sentence allowable by law,’ is … an inherently illegal sentence[,]” and is cognizable under Maryland Rule 4-345(a). Ray v. State, 454 Md. 563, 572 (2017) (quoting Matthews v. State, 424 Md. 503, 519 (2012)). When reviewing the illegality of a sentence, we must resolve the terms of the plea agreement, which, unless in writing, must be ascertained through only the record of the plea agreement hearing.

See Cuffley, 416 Md. at 582 (establishing “that any question that later arises concerning the meaning of the sentencing term of a binding plea