Maryland v. Kanaras

ELDRIDGE, Judge. We issued a writ of certiorari in this case to decide two important issues. First, we must resolve a conflict among this Court’s prior opinions as to whether Maryland Code (1957, 1996 ReplVol.), Art. 27, § 645A(e), precludes an appeal from a final circuit court order ruling upon a motion to correct an allegedly illegal sentence. Second, we must decide whether the Court of Special Appeals correctly held that the petitioner’s sentence of life imprisonment subsequently became “illegal” under the ex post facto prohibition because “actions by the Parole Commission, Commissioner of Correction, and the Governor have, in effect, changed the life sentence (with an expectation by the sentencing judge of parole in eleven years) to a life sentence without the possibility of parole.” ¹⁷³ I. In April 1982, in the Circuit Court for Kent County, Deno C. Kanaras was found guilty of murder and was sentenced to life imprisonment. 1 His conviction was affirmed by the Court of Special Appeals, Kanaras v. State, 54 Md.App. 568 , 460 A.2d 61 (1983), and this Court denied his petition for a writ of certiorari, Kanaras v. State, 297 Md. 109 (1983).

In light of Kanaras’s cooperation in the State’s investigation of the crime, and his testimony on behalf of the State in the trial of an accomplice, the State’s Attorney for Harford County agreed to send, and did send, a letter to the Maryland Parole Commission on behalf of Kanaras. In addition, in denying a motion to reduce Kanaras’s sentence in 1984, Judge Rasin of the Circuit Court for Kent County stated: “A life sentence in the State of Maryland ... may be only a matter of eleven-plus years. * * * [I]t’s possible that Mr. Kanaras can be released in ... another eight years or so.” What happened next is set forth as follows in the Court of Special Appeals’ opinion in the present case: “Appellant’s [Kanaras’s] first parole hearing took place in February 1993. Apparently, favorably impressed by appellant’s institutional adjustment and record of cooperation in the Huffington prosecution, the commissioners recommended that appellant be assigned to a minimum security institution and that he be placed in work release and family visitation programs. The next parole hearing was scheduled for February 1996.

Shortly thereafter, however, an inmate serving a life sentence, while on work release, murdered his girlfriend and committed suicide. As a result, the Commissioner of Correction immediately removed all inmates serving life sentences from work release and family leave programs. The Commissioner also amended Division of Correction Directive 100-1 to the effect that ‘an inmate with a life sentence ... shall not be reduced below medium ¹⁷⁴ security.’ Because inmates serving life sentences could not be assigned to minimum security and work release and only prisoners with a satisfactory record in minimum security situations and a satisfactory experience on work release could be recommended for parole, parole became an impossibility for inmates in Kanaras’s situation. “A group of inmates challenged this administrative change, in their sentences as amounting to a violation of the Ex Post Facto Clause of the United States Constitution. In the case of Knox v. Lanham, 895 F.Supp. 750 (D.Md.1995), Judge Motz found that the continued effect of the amended DCD 100-1 and the Parole Commission’s policy was indeed a violation of the Ex Post Facto Clause of the United States Constitution.

Judge Motz’s opinion was affirmed by the Fourth Circuit in Lanham v. Knox [Worsham v. Lanham], 76 F.3d 377 (4th Cir.1996). “On September 29, 1995, at a press conference, Governor Glendening announced that there will be no parole granted to inmates serving life sentences for murder or rape, and he directed the Parole Commission not to recommend for his approval any requests for parole for inmates serving life sentences for murder or rape. “On February 15, 1996, appellant appeared for his second parole hearing. He was informed that, in view of existing DOC and Parole Commission Policy and Regulations, and the Governor’s announced policy, the Commission would not consider his application for parole or forward any recommendation to the Governor.” For a discussion of the Parole Commission’s and the Governor’s policies with regard to the parole of inmates serving life sentences, see our recent opinion in Lomax v. Warden, 356 Md. 569 , 741 A.2d 476 (1999). In May 1996, Kanaras filed in the Circuit Court for Kent County a petition under the Maryland Post Conviction Procedure Act, Code (1957, 1996 Repl.Vol.), Art. 27, § 645A, challenging the actions of the Parole Commission, the Commissioner of Correction, and the Governor, and asserting that his ¹⁷⁵ sentence had become “unlawful, illegal and unconstitutional.” At the same time, Kanaras filed a separate petition under Maryland Rule 4-845 challenging his sentence because of the actions of the Parole Commission, the Commissioner of Correction, and the Governor. This petition was based on both subsection (a) and subsection (b) of Rule 4-B45. 2 Kanaras argued that, because of the actions of the state agencies and officials, his sentence had actually become a sentence of “life imprisonment without the possibility of parole,” and that this was an illegal sentence which was subject to correction under Rule 4-345(a).

Kanaras also argued that the sentence which he was actually serving was the “product of such constructive fraud (perpetrated by the State upon both the Court and the defendant) and/or mistake of fact, and/or irregularity as to vest within this Court revisory power” over the sentence under Rule 4-345(b). The Circuit Court for Kent County, although stating that Kanaras “may be eligible for some other form of relief,” held that he was not entitled to relief under either the Post Conviction Procedure Act or Rule 4-345. The court, therefore, denied both of Kanaras’s petitions. In the action under the Post Conviction Procedure Act, Kanaras filed an application for leave to appeal to the Court of Special Appeals. 3 In ¹⁷⁶ the action under Rule 4-345, Kanaras filed a notice of appeal to the Court of Special Appeals.

The State, arguing that no appeal may be taken from a circuit court’s ruling under either subsection (a) or subsection (b) of Rule 4-345, filed a motion in the Court of Special Appeals to dismiss Kanaras’s appeal from the order denying relief under Rule 4-345. The State relied on Valentine v. State, 305 Md. 108 , 501 A.2d 847 (1985). The Court of Special Appeals denied Kanaras’s application for leave to appeal in the Post Conviction Procedure Act case. With regard to the action under Rule 4-345, however, the Court of Special Appeals denied the State’s motion to dismiss, holding that the Circuit Court’s ruling under subsection (a) of Rule 4-345 was' appealable under the authority of State v. Griffiths, 338 Md. 485 , 659 A.2d 876 (1995).

The Court of Special Appeals, in an unreported opinion, held that the actions of the Parole Commission, the Commissioner of Correction, and the Governor had the effect of changing Kanaras’s sentence from one of life imprisonment to life imprisonment without the possibility of parole. The intermediate appellate court went on to hold that this change violated the ex post facto clauses of the federal and state constitutions 4 and, therefore, rendered Kanaras’s sentence illegal. The Court of Special Appeals held that the Circuit Court erred by failing to exercise its authority under Rule 4-345(a) “to correct” the sentence which had become “illegal,” and it vacated the judgment of the Circuit Court. The State then filed in this Court a petition for a writ of certiorari, presenting the following two questions: “1.

Did the Court of Special Appeals err in failing to dismiss a direct appeal from [the ruling on] a motion to correct an illegal sentence under Md. Rule 4-345(a)? ¹⁷⁷ “2. May a challenge to policies and procedures relating to parole be asserted against the Governor and the Maryland Parole Commission in a Motion to Correct an Illegal Sentence under Maryland Rule 4-345(a)?” We granted the State’s petition, State v. Kanaras, 350 Md. 280 , 711 A.2d 871 (1998). We shall hold that the Circuit Court’s order was appealable and that the Court of Special Appeals should have affirmed the decision of the Circuit Court.

II

The Maryland Post Conviction Procedure Act, Art. 27, § 645A(e), first enacted in 1958, provides in pertinent part as follows: “No appeals to the Court of Appeals or the Court of Special Appeals in habeas corpus or coram nobis cases, or from other common-law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment shall be permitted or entertained, except appeals in such cases pending in the Court of Appeals on June 1, 1958, shall be processed in due course.” (Emphasis added). The issue of whether the above-quoted language precludes direct appellate jurisdiction over a circuit court’s decision under Rule 4-345(a) has, unfortunately, spawned a plethora of inconsistent opinions by this Court. Prior to the enactment of the Post Conviction Procedure Act, this Court consistently held that a circuit court’s denial of a motion to correct an allegedly illegal sentence was appeal-able. See, e.g., Roberts v. Warden, 206 Md. 246, 255 , 111 A.2d 597, 601 (1955); Duker v. State, 162 Md. 546, 549 , 160 A. 279, 280 (1932); Miller v. State, 135 Md. 379, 382 , 109 A. 104, 105 (1919); Dutton v. State, 123 Md. 373 , 378 91 A. 417, 419 (1914).

Two years after the enactment of the Post Conviction Procedure Act, however, this Court in Brady v. State, 222 Md. 442 , 160 A.2d 912 (1960), with very little reasoning, held that the language of that statute prohibited an appeal from a ¹⁷⁸ circuit court’s decision on a motion to correct an illegal sentence under then Maryland Rule 744a, which was later renumbered Rule 764a, and which is now Rule 4-345(a). The Court in Brady dismissed the appeal. The following year, in Wilson v. State, 227 Md. 99, 101 , 175 A.2d 775, 776 (1961), the Court reaffirmed its holding in Brady v. State, supra, reasoning that a motion to correct an illegal sentence under then Rule 744 “is ... to be considered a ‘statutory remedy’ within the meaning of the Post Conviction Procedure Act,” which prohibits appeals “in habeas corpus or coram nobis cases, or from other common-law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of ... imprisonment. ...” Art. 27, § 645A(e). Although the Wilson opinion went on briefly to discuss in dicta the merits of the appeal, the Court’s judgment was “appeal dismissed.” A shift occurred in Costello v. State, 237 Md. 464 , 206 A.2d 812 (1965).

After the defendant Costello was sentenced, he filed a motion to correct the sentence, asserting that the trial judge used improper information in imposing sentence and, furthermore, failed to allow the defendant to rebut other information. According to the defendant, the trial judge’s actions in sentencing deprived him of procedural due process, resulting in an illegal sentence. The trial court denied the motion, and the defendant appealed. The State moved to dismiss the appeal, and this Court in its opinion responded as follows (Costello v. State, supra, 237 Md. at 469-470 , 206 A.2d at 815 ): “The State contends further that, in any event, the Uniform Post Conviction Procedure Act, Code (1957) Article 27, Section 645A(b) (1963 Supplement), provides that no direct appeal lies from the denial of a motion by the trial court for modification or reduction of the sentence.

We agree. Wilson v. State, 227 Md. 99, 100-101 , 175 A.2d 775 (1961) and cases therein cited. However, because in this case the proceedings on the motion were closely related to those in the imposition of the sentence, and, as in Wilson , to avoid the delay and expense of a remand to permit the bringing ¹⁷⁹ up of the question on a petition for post-conviction relief, we shall indicate our views on the merits.” The Court in Costello , however, did more than “indicate” its views on the merits. It discussed in detail the merits, held that the trial judge had not erred in imposing sentence, and concluded: “We have considered all of the appellant’s contentions, and find no violation of any of his constitutional or legal rights.” 237 Md. at 474 , 206 A.2d at 818 .

More significantly, instead of dismissing the appeal as was done in Brady and Wilson , the Court in Costello “affirmed” the trial court’s judgment. Ibid. Interestingly, the judge who had authored the Brady opinion for the Court dissented in Costello , not on the ground that the appeal should have been dismissed, but on the ground that the appellant had been illegally sentenced and that, therefore, the judgment below should be reversed. Another shift, back to the holdings in Wilson and Brady , took place in Burley v. State, 239 Md. 342, 344 , 211 A.2d 714, 715 (1965), and Harris v. State, 241 Md. 596 , 217 A.2d 307 (1966).

In Burley , the Court dismissed the appeal from the denial of a motion to set aside the judgment on the ground of “fraud, mistake or irregularity,” stating that the Post Conviction Procedure Act precluded the appeal and citing the Brady case. The Costello case was not cited. In Harris , the defendant Harris appealed from the trial court’s denial of his motion to correct three allegedly illegal sentences. This Court granted the State’s motion to dismiss the appeal, stating that the dismissal was without prejudice to filing an action under the Post Conviction Procedure Act.

The next change in direction, in favor of allowing an appeal, occurred in State ex rel. Sonner v. Shearin, 272 Md. 502 , 325 A.2d 573 (1974). In that case, the trial judge suspended a portion of a five year sentence for using a handgun in the commission of a felony, despite a statutory prohibition that “no court shall suspend [the] mandatory minimum [five year] sentence prescribed” for such offense. Long after the final judgment in the case, the State filed a motion in the trial court to correct an illegal sentence.

The trial court denied the motion; the State appealed, and this Court granted the State’s ¹⁸⁰ petition for a writ of certiorari. Relying, inter alia, upon opinions prior