Matthews v. State

ZARNOCH, J. Appellant, George Matthews, pleaded guilty in the Circuit Court for Baltimore City on December 5, 2000, to murder in the second degree and using a handgun in the. commission of a crime of violence. Approximately seven years later, appellant filed a Motion for Appropriate Relief/New Trial (“Motion for New Trial”), pursuant to Maryland Rule 4-331(c), alleging, inter alia, newly discovered evidence, and requesting a hearing. On January 31, 2008, that motion was denied without a hearing. Appellant timely appealed that denial, asking this Court one question, which we have rephrased as follows: Did the circuit court err in denying appellant’s motion for new trial without a holding a hearing as requested? 1 Because appellant alleged newly discovered evidence and substantially complied with the procedural requirements of Maryland Rule 4-331(d) in filing his motion for new trial, appellant was entitled to a hearing on his motion.

We therefore vacate the circuit court’s denial of appellant’s motion and remand for a hearing. BACKGROUND On July 20, 2000, appellant was charged in two indictments with the willful, deliberate and premeditated murder of Kenneth Marlow Cunningham, robbery with a dangerous and deadly weapon, unlawful use of a handgun in the commission of a felony or crime of violence, and related charges. On ⁴⁹⁹ December 5, 2000, appellant pleaded guilty to second degree murder and use of a handgun in commission of a crime of violence. According to the record before this Court, appellant was sentenced on January 11, 2001, as follows: Sentence of the Court, as per the agreement, as to Count 1 is a sentence of 30 years to the Division of Corrections, that being murder in the second degree.

Count 2, use of a handgun in the commission of a felony or crime of violence, sentence is ten years consecutive, first five of which to be served without the possibility of parole. The sentences to commence July the 11, 2000 and would run concurrently with any federal sentence that Mr. Matthews is presently serving. Matthews v. State, No. 1951, Sept. Term, 2006, 175 Md.App. 774 , slip op. at 1, (filed Sept. 11, 2007). Following his sentence, appellant filed three separate petitions for post-conviction relief, two of which he withdrew without prejudice.

On October 15, 2004, appellant filed a third petition for post-conviction relief, the substance of which is not included in the record on appeal. Following a hearing, appellant’s petition was denied by order of the circuit court on April 5, 2005. This Court denied appellant’s application for leave to appeal in a per curiam decision on February 8, 2006. Matthews v. State, No. 1385, Sept. Term 2005, 167 Md.App. 779 (filed February 8, 2006).

On September 13, 2006, appellant filed another motion in the circuit court, entitled Motion for Exercise of Revisory Power Over an Enrolled Judgment Citing Mistake, Irregularity in the Proceedings in the Circuit Court, asserting that the court’s acceptance of his guilty plea, and its pronouncement of sentence, were the result of mistake or irregularity. (“Motion to Revise”). Matthews v. State, No. 1951, Sept. Term, 2006, 175 Md.App. 774 , slip op. at 2 (filed Sept. 11, 2007). The circuit court denied that motion on October 2, 2006.

Id. Appellant appealed that denial to this Court, and we dismissed appellant’s appeal in an unreported opinion. See Matthews v. State, No. 1951, Sept. Term, 2006, 175 Md.App. 774 , slip op. at ⁵⁰⁰ 5 (filed Sept. 11, 2007). This Court’s mandate issued on October 11, 2007.

Appellant’s petition for writ of certiorari to the Court of Appeals was also denied by the Court of Appeals on December 17, 2007. Matthews v. State, 402 Md. 353 , 936 A.2d 851 (2007). On or around December 19, 2007, appellant filed a Motion for Appropriate Relief/New Trial in the circuit court, the motion that is the subject of this appeal, alleging: (1) “that the factual basis on which the State’s Attorney’s Officer pro-offered [sic] in the case subjudice does not support the plea at least, insofar as what the State pro-offered [sic] as to Brian Sollers and Kaprice Marshall testimony would be if called to testify”; (2) that “the notarized affidavit written by Brian Sollers constitutes newly discovered or after discovered evidence”; and, (3) “that trial counsel rendered ineffective assistance by failure to file a demand for Bill of Particulars pursuant to Maryland Rule 4-241.” Appellant’s motion was accompanied by a handwritten affidavit by Brian Sollers, who stated that he gave false and misleading information to police investigators in connection with this case, and influenced Kaprice Marshall to do the same. 2 Appellant also requested a hearing on the motion. On January 31, 2008, the Circuit Court for Baltimore City denied appellant’s Motion for Appropriate Reliei/New Trial without conducting a hearing.

This appeal followed. DISCUSSION On appeal, after setting forth the previously mentioned three grounds for his motion, appellant asserts: ⁵⁰¹ Appellant argues that at the very least, he was entitled to a hearing on the Motion for Appropriate Relief/New Trial because he presented a notorized [sic] copy of Brian Sollers’ written recantation statement, a copy of which was mailed to the State’s Attorney’s Office for Baltimore City, where that officer failed to challenge or refute the notorized [sic] statement. The State responds by first moving to dismiss appellant’s appeal on the grounds that appellant failed to comply with Maryland Rules 8-411 and 8^13. The State suggests that we may therefore dismiss this appeal pursuant to Maryland Rule 8—602(a)(6).

That rule provides: (а) Grounds. On motion or on its own initiative, the Court may dismiss an appeal for any of the following reasons: (б) the contents of the record do not comply with Rule 8-413. The Rule is clearly discretionary, and because our holding is limited to appellant’s right to have a hearing on his motion, we will deny the State’s motion to dismiss. Turning to the substance of appellant’s contentions, we note that he first alleges that there was an inadequate factual basis for his guilty plea, because the plea relied on the proffered testimony of Brian Sollers and Kaprice Marshall.

See Md. Rule 4-242(c) (stating that court may not accept a guilty plea until it determines that “(1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea”); see also Metheny v. State, 359 Md. 576, 602 , 755 A.2d 1088 (2000) (“The factual basis determination serves several purposes, but mainly as a safeguard that the accused not be convicted of a crime that he or she did not commit”); accord Rivera v. State, 409 Md. 176, 194 , 973 A.2d 218 (2009). ⁵⁰² The State responds that, to the extent that appellant is seeking to withdraw his plea, that request was untimely under Maryland Rule 4-242(g). That rule provides: At any time before sentencing, the court may permit a defendant to withdraw a plea of guilty or nolo contendere when the withdrawal serves the interest of justice. After the imposition of sentence, on motion of a defendant filed within ten days, the court may set aside the judgment and permit the defendant to withdraw a plea of guilty or nolo contendere if the defendant establishes that the provisions of section (c) or (d) of this Rule were not complied with or there was a violation of a plea agreement entered into pursuant to Rule 4-243. The court shall hold a hearing on any timely motion to withdraw a plea of guilty or nolo contendere.

We agree with the State that appellant’s motion was untimely because it was not filed within 10 days after he was sentenced as required by Maryland Rule 4-242(g). But, the primary basis for appellant’s motion was the newly discovered evidence provided in the sworn affidavit of Brian Sollers. 3 In support of his motion, appellant relied on Maryland Rule 4-331(c), and also requested a hearing in the circuit court. That rule permits a court to grant “a new trial or other appropriate relief,” which could include permitting appellant to withdraw his guilty plea. Md. Rule 4-331(c) (emphasis added).

We thus turn to Maryland Rule 4-331, which states: (a) Within Ten Days of Verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (b) Revisory Poioer. The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial: ⁵⁰³ (1) in the District Court, on motion filed within 90 days after its imposition of sentence if an appeal has not been perfected; (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence.

Thereafter, the court has revisory power and control over the judgment in case of fraud, mistake, or irregularity. (c) Newly Discovered Evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later; (2) on motion filed at any time if a sentence of death was imposed and the newly discovered evidence, if proven, would show that the defendant is innocent of the capital crime of which the defendant was convicted or of an aggravating circumstance or other condition of eligibility for the death penalty actually found by the court or jury in imposing the death sentence; (3) on motion filed at any time if the motion is based on DNA identification testing or other generally accepted scientific techniques the results of which, if proven, would show that the defendant is innocent of the crime of which the defendant was convicted. (d) Form of Motion.

A motion filed under this Rule shall (1) be in writing, (2) state in detail the grounds upon which it is based, (3) if filed under section (c) of this Rule, describe the newly discovered evidence, and (4) contain or be accompanied by a request for hearing if a hearing is sought. (e) Disposition. The court may hold a hearing on any motion filed under this Rule and shall hold a hearing on a motion filed under section (c) if the motion satisfies the requirements of section (d) and a hearing was requested. ⁵⁰⁴ The court may revise a judgment or set aside a verdict prior to entry of judgment only on the record in open court. The court shall state its reasons for setting aside a judgment or verdict and granting a new trial.

(Emphasis added). 4 Appellant’s claim was not filed within ten days of the verdict, as required by Maryland Rule 4-331(a). It was not filed within 90 days as required by Maryland Rule 4-331(b). Nor under Maryland Rule 4-331(c)(l) was it filed within one year of the sentence. However, appellant’s motion was arguably filed within one year of “a mandate issued by the Court of Appeals or the Court of Special Appeals ...” Md. Rule 4-331(c)(l) (emphasis added).

This Court issued a mandate after dismissing appellant’s appeal from the denial of his motion to revise on October 11, 2007. The instant motion for new trial was filed on or around December 19, 2007. 5 If the provision in Maryland Rule 4-331(c)(l) applies to any mandate, then, arguably, appellant’s motion for new trial was timely filed. But, we need not decide whether Rule 4-331(c)(l) applies to any mandate, including one not issued in connection with a direct appeal, because we conclude that even an untimely motion for a new trial based on newly discovered evidence may afford the movant a hearing under subsection (e) of Maryland Rule 4-331. The Court of Appeals has provided that the rules of construction that guide the interpretation of statutes apply equally when interpreting the Maryland rules of procedure.

State v. Montgomery, 334 Md. 20, 24 , 637 A.2d 1193 (1994); see also Johnson v. State, 360 Md. 250, 265 , 757 A.2d 796 (2000) (“We ⁵⁰⁵ have often noted that looking to relevant case law and appropriate secondary authority enables us to place the rule in question in the proper context”) (citations omitted). We begin by noting that the present language of Maryland Rule 4-331(e) differs markedly from that contained in the pre-2002 version. At that time, the Rule made express reference to the disposition of an untimely motion for a new trial. Specifically, Section (e) provided: The court shall afford the defendant or counsel and the State’s Attorney an opportunity for a hearing on a motion filed under this Rule, except that if the motion is filed more than one year after the circuit court receives the mandate issued by the Court of Appeals, a hearing need not be held unless the motion satisfies the requirements of section (d) of this Rule.

The court may revise a judgment or set aside a verdict prior to entry of a judgment only on the record in open court. The court shall state its reasons for setting aside a judgment or verdict and granting a new trial. (Emphasis added.). In Jackson v. State, 358 Md. 612 , 751 A.2d 473 (2000), a case where a motion for a new trial on the basis of newly discovered evidence was denied without a hearing, the Court of Appeals, in reliance on Rule 4-331(e), said: The only basis for the court to deny a hearing is expressly provided for in the rule—a determination that the motion was late and did not comply with the requirements of § (d) of the Rule.

Jackson, 358 Md. at 622-23 , 751 A.2d 473 (Emphasis added). On October 20, 2000, the Standing Committee on Rules of Practice and Procedure considered the following proposal to amend the first sentence of Rule 4-331 (e): If there is no waiver by the parties, The the court shall opportunity for hold a hearing on a motion filed under this Rule, except that if the motion is filed more than one year after the circuit court receives the mandate issued by the Court of Appeals, a hearing need not be held unless the ⁵⁰⁶ motion satisfies the requirements of section (d) of this Rule..... According to Committee minutes, Judge Hovey Johnson explained the rationale for the change: Turning to section (e), Judge Johnson explained that the Subcommittee is proposing to clarify that a hearing is required pursuant to the decision of Jackson v. State, 358 Md. 612 , 751 A.2d 473 (2000), which had pointed out some ambiguity as to whether section (e) of Rule 4-331 provides an automatic hearing when a motion for a new trial is filed. The Vice Chair questioned as to how the hearing is waived, and Judge Johnson replied that it is waived if no one asks for a hearing.

Judge Heller noted that waiver in criminal proceedings can be different. Counsel or the defendant can expressly so state, or it may be necessary to come to the courtroom to waive the hearing. Another way to accomplish the concept of a waiver is to delete the introductory language of section (e) which reads: “[i]f there is no waiver by the parties” and substitute in its place the language “[i]f a hearing is requested by a party.” The Vice Chair pointed out that one of the ambiguities in the existing language of the Rule is the meaning of the phrase “[t]he court shall afford the defendant or counsel and the State’s Attorney an opportunity for a hearing” when there is no other place in the Rule providing how the hearing happens. Mr. Bowen commented that if the introductory language of section (e) is changed as Judge Heller suggested, the second part of section (e) will have to be changed to be consistent.

Sections (d) and (e) will have to be worked on together. The Vice Chair stated that the Style Subcommittee can take care of this. The Chair stated that Rule 4-331 was approved as amended. Contrary to this statement in the minutes, the rule change was not finally approved, and the issue resurfaced at a February 9, 2001 meeting of the Rules Committee.

At that time, the following amendment to Rule 4-331(e) was considered: ⁵⁰⁷ If a hearing is requested by a party The the court shall afford the defendant or counsel and the State’s Attorney an opportunity for hold a hearing on a motion filed under this Rule, except that if the motion is filed more than one year Court of Appeals.- Alternative 1 waiver or exhaustion of direct appeals, Alternative 2 [6] court’s imposition of sentence or the