Lamb v. Kontgias

⁴⁶⁸ ADKINS, J. Does a registered victim of child sexual abuse, who, in error, was not notified of a hearing to reconsider her assailant’s sentence, have standing to challenge a judgment vacating the original conviction and sentence in favor of probation before judgment? Following Cianos v. State, 338 Md. 406 , 659 A.2d 291 (1995), and Lopez-Sanchez v. State, 388 Md. 214 , 879 A.2d 695 (2005), we regrettably answer “no.” FACTS AND LEGAL PROCEEDINGS In October 2000, appellee Jack Kontgias entered an Alford 1 plea of guilty to child sexual abuse of appellant Sarah Raymond. The Circuit Court for Baltimore City sentenced Kontgias to three years of incarceration, all of which was suspended in favor of three years of supervised probation. On November 13, 2000, Kontgias filed a motion to reconsider his sentence, but asked that the motion be held in abeyance “until a hearing is requested.” On September 25, 2002, Ms. Raymond and her mother, appellant Anne Lamb, filed a Crime Victim Notification Request, asking to “receive notice about all of the events related to my case and the defendant ... as required by law,” so that Raymond would “have the opportunity to exercise the rights [she is] entitled to as a crime victim.” On September 4, 2003, one month before his probation was due to expire, Kontgias requested a hearing on his previously filed motion to reconsider his sentence.

On February 18, 2004, the Circuit Court for Baltimore City held a hearing on Kontgias’ motion. Although Raymond and Lamb had registered as crime victim and victim representative, respectively, neither received notice of this hearing date. Consequently, neither was present to address the court. During the hearing, the State’s Attorney opposed any revision, and advised the court that the victims “would strongly ⁴⁶⁹ oppose any imposition of probation before judgment in this case.” On May 25, 2004, however, the circuit court granted Kontgias’ motion.

The court struck the guilty finding entered on October 4, 2000, stayed entry of judgment, granted Kontgias probation before judgment, and discharged him from probation. When Raymond and Lamb learned about this order, they retained counsel 2 and filed a Motion to Vacate Reconsideration and Request for a Hearing. They were joined by the State’s Attorney in arguing that revising the judgment against Kontgias without prior notice to Lamb and Raymond violated Maryland law, and in opposing any sentence modification. Kontgias opposed the motion, arguing inter alia that “the State was a party to the error it now complains of,” that vacating the revised judgment effectively “would shift the notice requirement to the defendant,” and that “[rjeimposing the conviction” would violate his “right not to be placed twice in jeopardy for the same offense.” He also moved to “strike the appearance” of Lamb and Raymond on the ground that they were not “parties authorized by law.” On February 17, 2005, without a hearing, the circuit court denied both Kontgias’ motion to “strike the appearances” of Lamb and Raymond and the joint motion to vacate the revised judgment.

The court ruled that the motion to vacate was untimely because it was filed seven months after the sentence modification, during which time Kontgias’ original “probation expired and was completed without violation on October 4, 2003[.]” 3 The court concluded that it no longer had jurisdiction over Kontgias, and therefore did not address the merits of the joint motion for reconsideration. ⁴⁷⁰ Lamb and Raymond noted this appeal, 4 raising two questions for our review: I. Did the circuit court err in denying appellants’ motion to vacate the revised judgment on the ground that it lacked jurisdiction?

II

Should the revised judgment imposing probation before judgment be vacated and the matter remanded for a new sentence modification hearing, with prior notice to appellants? DISCUSSION Crime Victim Notification Article 47 of the Maryland Declaration of Rights guarantees a victim of crime the right, “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 ... by law.” 5 By filing a crime victim notification request form, victims and their representatives can acquire the “right to attend any proceeding in which the right to appear has been granted to a defendant.” Md.Code (2001), § 11-102(a) of the Criminal Procedure Article (CP). It is the responsibility of the State’s Attorney to provide a victim or victim’s representative prior notice of a sentencing ⁴⁷¹ modification hearing. Section 11-104, in the Victims and Witnesses Title of the Criminal Procedure Article, provides in pertinent part: (e) (1) The prosecuting attorney shall send a victim or victim’s representative prior notice of each court proceeding in the case ... and of the right of the victim or victim’s representative to submit a victim impact statement to the court under § 11-402 of this title if: (i) prior notice is practicable; and (ii) the victim or victim’s representative has filed a notification request form under subsection (d) of this section.

See also Md. Rule 4-345(e)(2)(“the State’s Attorney shall give notice to each victim ... that a motion to modify or reduce a sentence has been filed [and of the] ... the date, time, and location of the hearing”). The sentencing court also bears responsibility for ensuring that the requisite notice has been given: (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____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. ... Md. Rule 4-345(f)(emphasis added).

These procedural rights are designed to protect the substantive right of victims and their representatives to address the sentencing court. See CP § ll-403(b). “A victim or victim’s representative who has been denied a right provided under this section may file an application for leave to appeal in the manner provided under § 11-103” of the Victims and Witnesses Title. See CP § 11-403(e). CP section 11-103, governing “application for leave to appeal denial of victim’s rights,” creates an appellate remedy ⁴⁷² only for victims of violent crime 6 when a sentence has been rendered in violation of their statutory rights: (b) Right to file for leave to appeal.—Although not a party to a criminal proceeding, a victim of a violent crime for which the defendant is charged may file an application for leave to appeal to the Court of Special Appeals from an interlocutory or final order that denies or fails to consider a right secured to the victim by ... § 11-403____ (c) Stay of other proceedings.—The filing of an application for leave to appeal under this section does not stay other proceedings in a criminal case unless all parties consent.

(Emphasis added.) Appellants Sarah Raymond and Anne Lamb registered as crime victims. But, they allege, neither the State’s Attorney nor the circuit court complied with their respective obligations to ensure that appellants received notice of the hearing to reconsider Kontgias’ sentence. I. Jurisdiction There is no appellate precedent answering the question now before us—whether, when neither the State’s Attorney nor the circuit court fulfills the notification duties prescribed by law, a crime victim may challenge a judgment reducing her assailant’s sentence on the ground that it was improperly granted. The circuit court concluded that it lost jurisdiction to consider this issue on a motion for reconsideration, because Kontgias’ probation expired on October 4, 2003, seven months before the revised judgment vacating Kontgias’ conviction, staying entry of judgment, and granting probation before judgment.

We hold that the circuit court had jurisdiction to decide whether appellants had standing to challenge the revised judgment. The revised judgment of May 25 vacated the ⁴⁷³ original conviction and sentence in favor of probation before judgment. Both appellants and the State challenged the revised judgment in their joint motion for reconsideration. As long as the revised judgment remains in effect, appellants have a cognizable complaint that it was entered in violation of their right to prior notice of the sentence modification hearing. “Standing is concerned with whether the parties have the right to bring suit.

Subject matter jurisdiction is concerned with whether the court has the power to hear a case.” Md. Waste Coalition, Inc. v. Md. Dep’t of Environment, 84 Md.App. 544, 548 , 581 A.2d 60 (1990), rev’d on other grounds, 327 Md. 596 , 612 A.2d 241 (1992). Whether appellants had standing to challenge the revised judgment on a motion for reconsideration is a separate issue from whether the circuit court had jurisdiction to hear that challenge. See, e.g., Collins v. Cambridge Md. Hospital, Inc., 158 Md. 112 , 148 A. 114 (1930) (orphan’s court has jurisdiction to determine whether persons challenging a will had standing to caveat). The circuit court erred in ruling that it lacked authority to determine whether appellants and the State could challenge the revised judgment via a motion for reconsideration.

II

Standing To Appeal Md. Rule 4-345 governs a sentencing court’s power to revise an enrolled sentence in a criminal case. It provides: (a) Illegal Sentence. The court may correct an illegal sentence at any time. (b) Fraud, Mistake, or Irregularity.

The court has revisory power over a sentence in case of fraud, mistake, or irregularity.... Lamb and Raymond renew their argument that the circuit court’s failure to inquire whether notice of the sentence modification hearing had been given makes the revised sentence illegal, and therefore correctable “at any time.” See Md. Rule 4-345(a). In their view, the rule “creates mandatory, nondiscretionary, conditions precedent to a reconsideration hearing.” ⁴⁷⁴ Alternatively, they posit, the failure of the State’s Attorney and the sentencing court to follow the mandate of Rule 4-845(e) and (f) constitutes an irregularity within the meaning of Rule 4-345(b), affording the court grounds to vacate the revised judgment. Appellants cite two cases for the proposition that the failure to notify them of the sentence modification hearing makes Kontgias’ sentence illegal.

In Mateen v. Saar, 376 Md. 385, 398-99 , 829 A.2d 1007 (2003), the Court of Appeals held that Mateen’s sentence was illegally modified without notice or a hearing on the record in open court. The improper procedure used to revise Mateen’s sentence resulted in a commitment order and a sentence change report that were “of no legal force or effect.” Id. at 399 , 829 A.2d 1007 ; see Scott v. State, 379 Md. 170, 190 , 840 A.2d 715 (2004). Appellants also rely on our decision in Wilkins v. State, 162 Md.App. 512 , 875 A.2d 231 (2005), rev’d, 393 Md. 269 , 900 A.2d 765 No. 65, Sept. Term 2005, 2006 WL 1563927 (filed June 9, 2006), arguing that a sentence that should never have been entered qualifies as an illegal sentence, and therefore is correctable under Rule 4-345(a). In support of a resentencing remedy for violations of Rule 4-345, appellants rely on Kent v. State, 287 Md. 389, 395-96 , 412 A.2d 1236 (1980), in which the Court of Appeals held resentencing was the appropriate remedy for a sentencing court’s violation of the allocution rule permitting a defendant to present evidence in mitigation of punishment.

In addition, they point to a Rules Committee note regarding a proposed change in Rule 4-345, as proof that the Court of Appeals intends its notice procedure to be strictly followed. 7 ⁴⁷⁵ Kontgias counters that the legality of his sentence is not the dispositive issue in this appeal. Instead, he argues, even if we assume arguendo that the revised sentence is illegal or irregular due to lack of notice to appellants, nevertheless these aggrieved crime victims do not have standing to appeal because they are not parties to his criminal case and cannot obtain relief from his enrolled sentence. Kontgias contends that the General Assembly and the Court of Appeals have resolved this standing issue against crime victims. We cannot disagree.

The dispositive distinction between this case, Mateen, Wilkins, and Kent is that this appeal was not taken by a defendant challenging his sentence based on alleged violations of his rights. Like Kontgias, defendants Mateen, Scott, and Kent indisputably had standing to challenge their own sentences on the ground that their rights as defendants were violated. None of these three cases, however, addresses whether a crime victim has standing to appeal a sentence allegedly entered in violation of her constitutional and statutory rights, but not the defendant’s. The Court of Appeals has considered that question.

In Cianos v. State, 338 Md. 406 , 659 A.2d 291 (1995), family members of victims killed in an automobile accident caused by the defendant’s criminal negligence were denied the opportunity to testify at the original sentencing hearing, allegedly in violation of their rights under former Md.Code (1973, 1989 Repl.Vol., 1994 Cum.Supp.), section 12-303.1(c) of the Courts and Judicial Proceedings Article (CJP), which is the predecessor to current CP section 11-104(b). 8 This Court denied the crime victims leave to appeal. ⁴⁷⁶ The Court of Appeals affirmed our decision. See id. at 412 , 659 A.2d 291 . It held that, although the crime victims may have been “denied their right to address the sentencing court,” they had no standing to appeal the resulting sentence, because they were not parties to the criminal case. See id. at 410, 659 A.2d 291 .

Writing for the Court, Judge Karwacki explained: The only order in this criminal case was the final judgment of conviction and sentence of [the defendant]. Under Md.Code (1973, 1989 Repl.Vol.1994 Cum.Supp.), §§ 12-301 and 12-302 of the Courts and Judicial Proceedings Article, only a party may appeal from a final judgment ____ § 12-303.1 of the Courts and Judicial Proceedings Article expressly acknowledges that a victim is not a party in a criminal proceeding. The petitioner-victims, therefore, cannot appeal the only judgment in this case. Furthermore, even if the [crime victims] had applied for leave to appeal prior to the final judgment in this case, such action would not have stayed the criminal proceedings against [the defendant].

An appeal by a victim is collateral to and may not interrupt a criminal case, and such an appeal cannot result in a reversal of the judgment and a reopening of the case. The petitioners do not argue that the language of § 12-303.1 is ambiguous; however, they assert that the absence of a provision expressly precluding a victim from challenging a final criminal judgment implies the right to do so. This reasoning ignores the plain language of §§ 12-301, 12-302, and 12-303.1. Id. at 410-11, 659 A.2d 291 (citations and footnotes omitted; emphasis added).

In construing CJP section 12-303.1, the Court of Appeals emphasized “the legislative history of earlier, unsuccessful attempts by certain members of the Legislature to provide ⁴⁷⁷ victims of violent crime with an avenue of redress[.]” Id. at 411, 659 A.2d 291 . “Provisions invalidating the sentence clearly worried the legislators. A memorandum, evidently prepared by staff of the House Judiciary