Mateen v. Saar

BATTAGLIA, J This case comes to us from a judgment of the Court of Special Appeals affirming the Circuit Court for Baltimore City’s denial of Muhsin R. Mateen’s Petition for Writ of Habeas Corpus. We must consider whether the Circuit Court’s pronouncement of Mateen’s 1973 sentence for first degree murder was for 50 years, or for life with all but 50 years suspended, whether subsequent off-the-record communications between the sentencing judge and the chairman of the Maryland Parole Commission, in the absence of notice to Mateen or an opportunity to be heard, could have constituted a valid correction of Mateen’s 1973 sentence, and finally, whether the State 1 has the right on appeal to challenge the legality of a flat 50-year sentence, if that was what the trial judge pronounced, for first degree murder. For the reasons discussed herein, we shall conclude that Mateen’s sentence was for 50 years, that, although illegal, his sentence was not corrected in accordance with the Maryland Rules, and that the State did not have the right to challenge the legality of the sentence on appeal. Consequently, we shall reverse the judgment of the Court of Special Appeals and remand the case with directions that the intermediate appellate court remand ³⁸⁹ the case to the Circuit Court for further proceedings consistent with this opinion.

I. BACKGROUND On November 30, 1972, Mateen (a/k/a Jerome Allen Williams) 2 was convicted in the Criminal Court of Baltimore of first degree murder. At the time of the murder, Maryland law provided that “[e]very person convicted of murder in the first degree ... shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the court before whom such person may be tried.” Maryland Code, Art. 27, § 413 (1957, 1971 Repl.Vol.). Because discretionary death sentences like that provided for in Section 413 had been struck down by this Court as unconstitutional by the time of Mateen’s sentencing, 3 Judge Marshall A. Levin declared that, “the law [left him with] no alternative” other than to impose a life sentence. Consequently, on January 5, 1973, Judge Levin sentenced Mateen “to the jurisdiction of the Commissioner of Correction” commencing September 9, 1972, and continuing for the “balance of his natural life.” Thereafter, however, in State v. Wooten, 277 Md. 114, 116-18 , 352 A.2d 829, 831 (1976), this Court determined that Article 27, Section 413 was subject to Maryland Code, Art. 27, § 641A (1957, 1971 Repl.Vol.), which empowered courts to “impose a sentence for a specified period and provide that a ³⁹⁰ lesser period be served in confinement [and to] suspend the remainder of the sentence.” Subsequently, in Williamson v. State, 284 Md. 212, 215 , 395 A.2d 496, 497 (1979), we concluded that a trial judge erred when he “did not exercise the discretion that he possessed under Wooten despite [an] appellant’s request that he consider suspending part of the life sentence imposed upon her.” In light of these decisions, Mateen filed a petition for post conviction relief with the Criminal Court of Baltimore, in which he asserted that his life sentence was illegal because Judge Levin, in 1973, “failed to consider a suspension of the sentence as a possible alternative to incarceration.” The post conviction judge agreed and ordered that the case be “remanded to the trial court for resentencing.” 4 On March 19, 1982, a new sentencing hearing was held before Judge Levin.

The parties represent that there is no transcript available of that hearing. A docket entry for the date of the hearing, however, states: “Change of sentence hearing. Judgment. Fifty (50) years c/o DOC dating from 9-9-72.” In addition, a Criminal Court of Baltimore Commitment Record, dated March 19, 1982, states: “Prisoner is committed to the jurisdiction of the Commissioner of Correction commencing on 9-9-72 for a period of Fifty (50) years.” A Division of Correction Sentence and Detainer Status Change Report also states that Mateen’s sentence was “reduced on 3-19-82 to 50 years from life,” and that “[h]is total sentence now reads: 50 [years] from 9-9-72.” Seven months after the resentencing hearing, in a letter dated October 28, 1982, the Chairman of the Maryland Parole Commission sought clarification of Mateen’s sentence from Judge Levin.

The Chairman wrote in a letter to Judge Levin that “the Annotated Code of Maryland mandates if a person is found guilty of First Degree Murder the sentence must be fife imprisonment.” The Chairman then asked Judge Levin whether it was his “intention to sentence [Mateen] to life imprisonment and suspend all but 50 years or was [Mateen] ³⁹¹ found guilty of a lesser count and sentenced to 50 years incarceration?” “Clarification of the correct sentence structure,” the Chairman reasoned, “is necessary in determining whether [Mateen] receives parole consideration after serving one-fourth of his sentence or whether he has to serve 15 years less good conduct time and industrial time if he was sentenced to life imprisonment, with a portion suspended.” Judge Levin responded by letter dated November 3, 1982, in which he wrote: “Please forgive my inartistic sentencing. It was my intention to sentence [Mateen] to life and suspend all but fifty years.” After receiving Judge Levin’s letter, the Division of Correction issued a second Sentence and Detainer Status Change Report on November 16, 1982, stating that Mateen’s “total sentence now reads: Life suspend 50 yrs.” By letter dated April 1, 1984, Mateen sought clarification from Judge Levin of his sentence. Three days later, the Circuit Court for Baltimore City 5 issued another Commitment Record stating, “Sentence changed to read: Balance of Natural Life and all but Fifty (50) years suspended,” and two days after that, Judge Levin wrote to Mateen that, “The sentence I gave you at your resentencing on March 19, 1982 was life with all but fifty years suspended.” Judge Levin also wrote: Under Maryland law when a person is found guilty of first degree murder the judge must sentence him to life imprisonment. However, the judge can suspend part of that sentence, which I did in your case.

Your commitment order has been rewritten by the clerk’s office in order to reflect what I stated above and to remove any confusion that exists about your sentence. Mateen wrote another letter to Judge Levin in November of 1984 again seeking clarification of his sentence and an expla ³⁹² nation as to his eligibility for parole. Judge Levin responded by letter dated December 13,1984, in which he wrote: I imposed a life sentence. However, I suspended all but 50 years.

That means that your actual sentence is 50 years. If you are released on parole and any part of your sentence is thus “suspended” (meaning that you have not served the entire 50 years) then the suspended amount can be reimposed if you violate parole.... Parole is predicated on 50 years. In 1986, Mateen became eligible for, but was denied, parole.

In 1987, he was transferred to a Pre-Release unit, eventually began to participate in family leave and work release programs, and was again considered for, but denied, parole. Parole was also denied in 1988 and in 1989. In 1990, Mateen wrote another letter to Judge Levin, again seeking clarification of his sentence and an explanation as to his eligibility for parole. Judge Levin responded to Mateen in a May 15, 1990 letter, reiterating that his “actual sentence was amended in 1982 from ‘life,’ to ‘life, with all but 50 years suspended.’ ” The judge also explained that according to the Parole Commission, Mateen became eligible for parole in 1986, but that parole was denied that year, as well as in 1987,1988, and 1989, and that Mateen was scheduled to appear before the Parole Commission again in June of 1990.

The Judge then noted that the Parole Commission was treating Mateen’s “eligibility for parole properly” and explained that “eligibility does not mean you are automatically released ... you must satisfy the Parole Commission that you are a suitable candidate for parole.” In 1993, the Commissioner of Correction cancelled family leave and work release programs for inmates serving life sentences and ordered that all such inmates be classified to no less than medium security, except under certain conditions. As a result, Mateen was removed from family leave and work release programs and returned to a medium security facility. Division of Correction Directives 100-005, 100-508 and 100-543, which reflected these policies, were issued later. ³⁹³ On September 14, 1993, Mateen appeared before the Maryland Parole Commission, parole was denied, and Mateen’s case was to be reheard in one year. One year later, Mateen again appeared before the Parole Commission, and the Commission recommended that Mateen be paroled.

In 1995, Governor Glendening denied parole. Two years later Mateen filed, pro se, a Petition for Writ of Habeas Corpus in the Circuit Court for Baltimore City seeking, “Declaratory Judgement for Suspended Life sentence, Release on Parole and/or to Participate in Pre-Release, Work Release, and Family Leave Programs.” On October 31, 2000, without a hearing and prior to the deadline for Mateen’s reply to the State’s response to his Petition for Writ of Habeas Corpus, the Circuit Court issued an Order denying Mateen’s Petition on the basis that “the individual confined or restrained is not entitled to any relief.” Mateen was never served with a copy of that order. Mateen eventually retained counsel who, after learning of the Court’s order denying Mateen’s Petition, wrote a July 31, 2001, letter to the post conviction judge. In that letter, Mateen’s counsel explained that “since neither [Mateen] nor his attorney were informed of the Court’s final judgment in this case, [Mateen] has lost his right of appeal.” Therefore, Mateen’s counsel requested that the Court reissue and refile nunc pro tunc its October 31, 2000, Order so that Mateen could exercise his right of appeal.

Two months later, the Circuit Court issued an Order for nunc pro tunc relief, and thereafter, Mateen filed a timely appeal. The Court of Special Appeals affirmed the dismissal of Mateen’s petition for habeas corpus relief in Mateen v. Galley, 146 Md.App. 623 , 807 A.2d 708 (2002). The intermediate appellate court determined that on March 19, 1982, Mateen was resentenced to an illegal term of 50 years imprisonment. The Court also concluded, however, that the illegal sentence was corrected by extrajudicial communications between the sentencing judge and the Chairman of the Maryland Parole Commission, which prompted amendments to a Division of Correction Sentence and Detainer Status Change Report and a Circuit Court Commitment Record, so that those records ³⁹⁴ indicated that Mateen’s sentence was life with all but 50 years suspended.

We granted certiorari, 372 Md. 763 , 816 A.2d 111 (2003), to consider the following questions presented in Ma-teen’s petition, which he filed pro se. I. Was Judge Levin’s sentence ambiguous and under the rule of lenity should [it] be construed as fifty years from September 9,1972?

II

Was petitioner deprived of due process rights and a hearing on his writ of habeas corpus based on court errors? Mateen also raised a third question: “Can petitioner raise a claim in a habeas corpus proceeding?” After filing his petition for certiorari, however, Mateen retained counsel who withdrew this question. Mateen’s counsel then raised the following question in Mateen’s brief: “Do the Division of Correction’s classification rules making parole more difficult to obtain violate the Ex Post Facto provisions of the federal and Maryland constitutions?” Counsel asserts that the question, although not specifically named as a question presented in Mateen’s petition for certiorari, was nonetheless raised in other parts of the petition, and that, in any event, we should exercise our discretion to address the issue. We need not reach the preservation, habeas corpus, or due process issues because, for the reasons discussed herein, we shall conclude that Mateen’s properly entered sentence was for 50 years, commencing on September 9, 1972, not life with all but 50 years suspended, and that the State is unable to challenge the legality of this sentence in this proceeding or otherwise at this juncture.

Consequently, we shall vacate the judgment of the Court of Special Appeals and remand the case to the intermediate appellate court with directions that it remand to the Circuit Court for further proceedings consistent with this opinion.

II

DISCUSSION Mateen contends that his sentence should be construed as a flat 50 years, rather than life with all but 50 years ³⁹⁵ suspended, because the pronouncement of his sentence by Judge Levin on March 19, 1982 was ambiguous, and under the rule of lenity he is entitled to the less severe sentence. Mateen also claims that, contrary to the decision of the Court of Special Appeals, it was not mere “harmless error” when the Circuit Court violated Maryland Rule 4-345(d) by failing to correct the sentence on the record, in open court, and after hearing from the parties. Mateen further contends that if his sentence is in fact life with all but 50 years suspended, then two Division of Correction Directives violate the ex post facto provisions of the federal and Maryland Constitutions. Those directives, DCD 100-005 and DCD 100-508, provide, respectively, that inmates serving life sentences with all but a specific term of years suspended cannot be classified below medium security except under certain conditions, and that such inmates are ineligible for work release.

Mateen claims that because the Maryland Parole Commission “has a long standing policy requiring inmates to successfully complete work release and other forms of leave prior to recommending parole to the Governor,” the combination of that policy along with the DOC Directives prevents him from obtaining release on parole. The result of this, according to Mateen, is an “impermissible] increase [in] the quantum of punishment imposed on [him] at the time of his original sentencing in violation of ex post facto principles.” Finally, Mateen argues that the trial court violated his due process rights “by denying his petition for writ of habeas corpus without a hearing.” The State urges us to reject Mateen’s assertion that his sentence should be construed as 50 years because “[s]uch a sentence is illegal” and “is not what the circuit court imposed when it resentenced [Mateen] in 1982.” The State also claims that Mateen’s ex post facto argument has not been preserved for review because “neither his brief in the Court of Special Appeals, nor the Petition for a Writ of Certiorari he filed with this Court, contains such an argument.” Even if we choose to review Mateen’s ex post facto argument, the State asserts, we should reject it because Division of Correction Directives are not “laws” within the meaning of the ex post facto clauses of ³⁹⁶ the federal and Maryland Constitutions, because such directives do not “lengthen” Mateen’s period of incarceration, and “the Parole Commission does not condition a parole recommendation on an inmate’s work release or leave status.” Finally, the State asserts that Mateen’s due process challenge to the Circuit Court’s dismissal of his habeas petition should be rejected because Mateen produced no evidence that the Circuit Court did not consider his “reply and other papers filed in support of his habeas petition,” and also because Mateen “did not ask for a hearing” when he requested the Court to reissue its October 31, 2000, order dismissing his petition. Our analysis begins with Mateen’s resentencing, which occurred over twenty years ago, on March 19,1982, and for which no transcript of the proceeding is available. We agree with the Court of Special Appeals that Mateen’s sentence was a flat 50 years, rather than life with all but 50 years suspended.

See Mateen, 146 Md.App. at 646 , 807 A.2d at 721 . As was pointed out by the intermediate appellate court, a Criminal Court of Baltimore Commitment Record, dated March 19, 1982, the day of the resentencing hearing, states: “Prisoner is committed to the jurisdiction of the Commissioner of Correction commencing on 9-9-72 for a period of Fifty (50) years.” Also, a Division of Correction Sentence and Detainer Status Change Report states that Mateen’s sentence was “reduced on 3-19-82 to 50 years from life,” and that “[h]is total sentence now reads: 50 [years] from 9-9-72.” In addition, subsequent to the proceedings in the Court of Special Appeals, the State discovered a docket entry for March 19, 1982 that states: “Change of sentence hearing. Judgment. Fifty (50) years c/o DOC dating from 9-9-72.” Although admittedly terse, “[t]he value of a simple docket entry which ... makes clear to everyone the disposition of each and every claim in a case cannot be overemphasized.” Jones v. Hubbard, 356 Md. 513, 523 , 740 A.2d 1004, 1010 (1999).

Docket entries are “ ‘made under the eye of the court, and by its authority,’ ” Jackson v. State, 68 Md.App. 679, 688 , 515 A.2d 768, 773 (1986)(quoting Weighorst v. State, 7 Md. 442, 450 ³⁹⁷ (1855)), and are presumed to be “true until corrected.” Coleman v. State, 231 Md. 220, 222-223 , 189 A.2d 616, 618 (1963) citing Roberts v. State, 219 Md. 485, 488 , 150 A.2d 448 (1959). Furthermore, we also note that “[f]undamental fairness dictates that the defendant understand clearly what debt he must pay to society for his transgressions. If there is doubt as to the penalty, then the law directs that his punishment must be construed to favor a milder penalty over a harsher one.” Robinson v. Lee, 317 Md. 371, 379-80 , 564 A.2d 395, 399 (1989). Thus, we agree with the conclusion of the Court of Special Appeals that the sentence imposed upon Mateen during his resentencing on March 19, 1982 was for 50 years.

We also acknowledge, as did the Court of Special Appeals, that a straight 50-year sentence for first degree murder was “illegal.” Mateen, 146 Md.App. at 646 , 807 A.2d at 722 . The statute in effect at the time of Mateen’s conviction in the present case, prescribing the penalties for first degree murder, stated: “Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life----” Maryland Code, Art. 27, § 413 (1957, 1971 ReplVol.). Similarly, the statute in effect at the time of Mateen’s resentencing that prescribed punishment for first degree murder directed: “A person found guilty of murder in the first degree shall be sentenced to either death or to imprisonment for life.... ” Maryland Code, Art. 27, § 412(b) (1957, 1976 Repl-Vol., 1980 Supp.). Thus, a judge had only two options when rendering a sentence for first degree murder: death, or imprisonment for life.

A sentence of 50 years is “illegal” in the sense that it does not comport with either of those two sentencing options. An illegal sentence, as was properly recognized by the Court of Special Appeals, may be corrected by a court at any time, even on its own initiative. Mateen, 146 Md.App. at 647-49 , 807 A.2d at 722-23 . See also State v. Griffiths, 338 Md. 485, 496 , 659 A.2d 876, 882 (1995)(recognizing that Maryland Rule 4-345(a) allows a court to correct an illegal sentence at ³⁹⁸ any time and stating that the Rule “does not preclude action by the trial court on its own initiative.”) We differ, however, with the intermediate appellate court’s assessment that the “cumulative effect” of “Judge Levin’s November 1982 and April 1984 letter[s]” along with the “DOC[’s] revision of] its sentence change report and the courtfs] revision] of its commitment record” constituted a “de facto correction” of Mateen’s 50 year sentence to life with all but 50 years suspended.

Mateen, 146 Md.App. at 649 , 807 A.2d at 722-28 . When Mateen was resentenced on March 19, 1982, Maryland Rule 774 governed the revisory power of the court with respect to sentencing. That Rule provided the court with broad powers to correct an illegal sentence, stating in part that “[t]he court may correct an illegal sentence at any time.” Md. Rule 774(a). The court’s power to correct an illegal sentence, however, was not unlimited, for the Rule also stated: A modification or reduction or striking of sentence shall be made on the record in open court after notice to the defendant and the State’s Attorney.

A new sentence specifying the modification or reduction made shall be entered of record. Md. Rule 774(c). In the instant case, no hearing was held on the record in open court, and no notice was given to Mateen or to the State. Rather, seven months after Mateen was resen-tenced to 50 years, the Chairman of the Maryland Parole Commission sent a letter to Judge Levin pointing out that the Maryland Code required a sentence of life imprisonment for first degree murder, and seeking clarification as to whether the judge meant to sentence Mateen to life in prison with all but 50 years suspended.

Judge Levin responded in a letter to the Chairman that it was his “intention” to impose a sentence of life with all but 50 years suspended. 6 Based upon these off-the-record communications, the Division of Correction’s Sentence Change Report and eventually, the Circuit Court’s Com ³⁹⁹ mitment Record, were revised to reflect a sentence of life with all but 50 years suspended. For the next two decades, Mateen was treated as a “lifer,” the consequences of which included restrictions on work release and family leave programs, and parole. Mateen’s sentence, however, was never corrected properly because there was never a hearing on the record or notice provided to the parties, as was required by Maryland Rule 744(c). See Dotson v. State, 321 Md. 515, 523, 583 A.2d 710, 714 (1991)(stating that the Maryland Rules “have the force of law”).

Consequently, the Circuit Court’s commitment order and the DOC’s sentence change report indicating that Mateen’s sentence is life with all but 50 years suspended, are of no legal force or effect. The State, however, urges us not to conclude that the appropriate sentence was 50 years because such a sentence for first degree murder was “illegal.” Even if the 50-year sentence was illegal, however, that does not necessarily mean that the State has the right to challenge it here. We explain. In State v. Green, 367 Md. 61, 79 , 785 A.2d 1275, 1283 (2001), we established “once and for all that there is now no common law right of appeal under Maryland law.” Indeed, the right to appeal “in either a civil or criminal case, must find its source in an act of the legislature.” State v. Bailey, 289 Md. 143, 147 , 422 A.2d 1021, 1024 (1980).

See also Jones v. State, 298 Md. 634, 637 , 471 A.2d 1055, 1057 (1984) (“Under Maryland law the State’s right to appeal in a criminal case is limited; it may do so only when authorized by statute.”). Thus, we must determine if any statute provided the State with the right to challenge on appeal the legality of Mateen’s 50 year sentence for first degree murder. Maryland Code, § 12-302(c)(2) of the Courts and Judicial Proceedings Article (1973, 2002 RepLVol.), is the only statute that could empower the State to appeal here. It provides that the State may appeal from a final judgment “if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.” The question, then, is whether a sentence of life for first degree murder ⁴⁰⁰ under the relevant statutory provisions is “specifically mandated by the code.” For the following reasons, we conclude that it is not.

When a sentencing judge has the discretion to suspend a sentence, or similarly, to grant probation before judgment, the sentence is not specifically mandated by the Maryland Code. In Green, swpra, we concluded that the State had the right to appeal because the sentencing provisions of Maryland Code, Art. 27, § 643B(c) (1957,1992 Repl.VoL), were mandatory. Id. at 82, 785 A.2d at 1287 . In so concluding, we reasoned that the statute specifically directed “that courts may not suspend ‘all or part’ of such sentences.” Id.

We also noted that the statute was entitled “Mandatory sentences for crimes of violence,” and that it employed the term “shall.” In State v. Hannah, 307 Md. 390, 392 , 514 A.2d 16, 17 (1986), Hannah pled guilty to common law robbery and to the use of a handgun in the commission of a felony in violation of Maryland Code, Art. 27, § 36B (1957, 1982 Repl.Vol., 1985 Cum.Supp.). For the robbery charge, the circuit court sentenced him to 10 years imprisonment, of which, he was to serve two. Id. The rest of his confinement was suspended, with Hannah being placed on probation upon his release from custody.

Id. Thereafter, the circuit court struck its previous finding of guilt on the handgun charge and gave Hannah probation before judgment, pursuant to Art. 27, § 641, which provided in part that “when ever a person pleads guilty” to an offense, the court may stay the entering of judgment and “place the person on probation subject to reasonable terms and conditions as appropriate.” Id. at 393-94, 514 A.2d at 17 . The State appealed, arguing that it had the right to do so pursuant to § 12-302 of the Courts and Judicial Proceedings Article. Id. at 394, 514 A.2d at 18 .

We granted certiorari before any proceedings in the Court of Special Appeals, and concluded that the State had a right to appeal. In so concluding, we stated that “the State’s right to appeal rises or falls on CJ § 12-302(c)(2),” which conferred a “special right of appeal” for the State when “it contends that a trial judge had failed to ⁴⁰¹ impose the sentence specifically mandated by the General Assembly.” Id. at 397, 514 A.2d at 19 . We then observed that the statute governing the penalties for the use of a handgun in the commission of a felony specifically prohibited a court from suspending a sentence or entering judgment of probation before a verdict. See Maryland Code, Art. 27, § 36B(e)(2) and (3) (1957, 1982 Repl.Vol.)(declaring that “no court shall suspend a mandatory minimum sentence prescribed in this subheading” and that “no court shall enter a judgment of probation before or without verdict with respect to any case arising under this subheading”).

Thus, because the judge’s probation disposition violated a “mandatory sentencing law,” we concluded that