Matthews v. State

CHARLES E. MOYLAN, JR., J. The appellant, Elroy Matthews, Jr., appeals from his resen-tencing on March 24, 2008, by Judge John Grason Turnbull, II in the Circuit Court for Baltimore County. The appellant’s cause on this appeal is twice bereft, primarily on a foreclosing procedural ground but also, if we should reach them, on the substantive merits. These, however, are distinct issues and we will address each of them separately. Although the sentencing of the appellant has had a long and torturous history, only a small and recent fragment of his six-year travail is at all pertinent to our consideration of the procedural foreclosure.

We will accordingly reserve our recounting of much of the factual background until we turn our attention to the factual merits of the case. Prologue to Procedural Foreclosure What seems at first to be a legal problem frequently turns out to be a linguistic or a semantic problem. On this appeal, we come face to face with the enigma that an illegal sentence is not always an illegal sentence. We do not mean this as doubletalk.

In the context of direct appellate review, there are a wide variety of reasons why a sentence, or a sentencing procedure, may be so seriously flawed as to give rise to the appellate reversal or vacating of the sentence. In this context, such flaws are, and are regularly referred to as, illegal sentences. There are, however, procedural rules regulating the form that challenges to such sentences may take and imposing strict limitations on when such challenges may be made. There is also, by dramatic contrast, a very different context in which a sentence may be challenged at any time, subject to no filing deadline of any sort.

Maryland Rule 4-345(a) provides: THE COURT MAY CORRECT AN ILLEGAL SENTENCE AT ANY TIME. The semantic problem arising out of those very different contexts is that the phrase “illegal sentence” has variable connotations and shifting meanings. Of all the illegal sentences that might deserve immediate appellate vacating in the broad context of direct review, only a small fraction are even ³⁶⁸ cognizable in the austerely limited context of Rule 4-345(a) review. For the very reason that its meaning may shift, the phrase “illegal sentence” should never be lifted out of that first context and casually inserted into the second.

The words may be the same, but they no longer mean the same thing. We cannot agree with Gertrude Stein that an illegal sentence is an illegal sentence is an illegal sentence, because sometimes it is not. Procedural History The appellant was found guilty upon his pleas of guilty by Judge Turnbull on December 3, 2003, for attempted first-degree murder, for two counts of first-degree assault, and for the use of a handgun in the commission of a crime of violence. He was sentenced by Judge Turnbull on April 4, 2004.

On October 23, 2007, the appellant was granted partial post-conviction relief because of a failure of the prosecution to fulfill its part of a plea bargain at the original sentencing hearing of April 21, 2004. The case was remanded to Judge Turnbull for resentencing. At a new sentencing hearing on March 24, 2008, Judge Turnbull reimposed the original sentence. The only part of the sentence about which the appellant now complains is the sentence for the attempted first-degree murder.

That sentence was one of life imprisonment with all but 30 years suspended. The appellant attempted to appeal that sentence. This Court properly treated that effort as an application for leave to appeal, which application we denied on May 18, 2009. Much of the merit that might have inhered in the appellant’s complaint about the resentencing effectively died with that denial of leave to appeal on May 18, 2009.

We are not suggesting that there was any such merit. We are simply asserting that whether there was or was not any merit, in the broad sense of merit cognizable on direct review, no longer makes any difference. The only complaint about the sentence that may have survived is a far more limited one. On January 8, 2010, the appellant filed a Motion to Correct an Illegal Sentence pursuant to Maryland Rule 4-345(a). ³⁶⁹ Judge Turnbull denied that motion on January 26, 2010, and this appeal timely followed from that denial.

Our initial focus will be exclusively on that denial of January 26, 2010. If we were to state that the issue before us is whether the sentence of March 24, 2008 for attempted first-degree murder was a legal sentence, we might be posing the question far too broadly. The pertinent issue is not whether that sentence might in some circumstances and in some contexts be deemed questionable or improper or even “illegal.” The issue is the far more narrow one of whether that sentence was literally “illegal” within the stern contemplation of Rule 4-845(a)’s extraordinary exemption from the normal filing deadlines. Much that might have been cognizable had direct review of the resentencing been granted is not cognizable under Rule 4-345(a) review.

It is critical not to ignore that difference in the scope of the respective reviews. The Narrow Window of Rule 4-345(a) Review In exempting a challenge to an actually “illegal” sentence from the ordinary preservation requirements, it was Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985), that first focused on the extraordinary relief sometimes provided by Rule 4-345(a): We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a), formerly Rule 774 a, provides that “[t]he court may comet an illegal sentence at any time.” Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence. (Emphasis supplied).

What Walczak decided was that a trial judge may correct an illegal sentence at any time even if the issue has not been properly preserved by timely objection. The illegality in the Walczak case itself was that the trial judge had ordered restitution to be made for a crime of which the defendant had ³⁷⁰ not been convicted. Since no statute authorized such restitution, it was held to be an illegal sentence. “[R]estitution is punishment for the crime of which the defendant has been convicted. Restitution depends on the existence of that crime and the statute authorizing the court to order restitution only where the court is otherwise authorized to impose punishment.” 302 Md. at 429 , 488 A.2d 949 .

That part of the sentence that ordered restitution was not authorized by law. Within the year, this Court addressed the limited applicability of Walczak v. State to substantive and facial illegality as opposed to mere procedural flaws in the sentencing process. In Corcoran v. State, 67 Md.App. 252, 254-56 , 507 A.2d 200 , cert. denied, 307 Md. 83 , 512 A.2d 377 (1986), we held that an “illegal sentence” within the contemplation of Rule 4-345(a) “has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose.” The appellant claims that he is exempted from the otherwise foreclosing effect of Maryland Rule 1085 by Walczak v. State, 302 Md. 422 , 488 A.2d 949 (1985). He reads Walczak far too broadly.

In holding that an illegal sentence may be reviewed on appeal even if not objected to below, the Court of Appeals was very careful to limit the exemption to a situation where the sentence was illegal in itself, a sentence “not permitted by law.” 302 Md. at 427 , 488 A.2d 949 . The Walczak opinion was not dealing with alleged procedural flaws in the sentencing hearing itself.... The appellant’s contention in this regard is not only bereft of support in the case law, it is bereft of logic as well. The notion of an “illegal sentence ” within the contemplation of the Walczak decision deals with substantive law, not procedural law.

It has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose. It does not remotely suggest that a sentence, proper on its face, becomes an “illegal sentence” because of some arguable procedural flaw in the sentencing procedure. For the appellant to prevail on his line of reasoning would create an absurdity. A sentencing procedure (and, by analogy, a ³⁷¹ probation revocation hearing) is more informal in nature than a trial upon the merits.

It is before a judge and not a jury. The more rigid rules of evidence are generally not applicable. It would create a ridiculous anomaly to hold that challenges to errors in the more tightly scrutinized trial itself may be forfeited through failure to object, whereas challenges to errors in the looser and more informal proceeding are always preserved even absent objection. Walc-zak did not remotely suggest such a bizarre and incongruous result.

(Emphasis supplied). In State v. Kanaras, 357 Md. 170, 185 , 742 A.2d 508 (1999), Judge Eldridge stressed the distinction that illegal or improper acts by various parties to the total sentencing phenomenon do not, ipso facto, make the sentence itself illegal and, therefore, reviewable under Rule 4-345(a). In the Kanaras case, the Court of Special Appeals had earlier agreed with the petitioner that his “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.’ ” 357 Md. at 172 , 742 A.2d 508 . On the appeal by the State, the Court of Appeals reversed the decision of this Court that the limitation on parole had rendered the sentence “illegal.” The prior acts of the Parole Commission and the Commissioner of Correction, which had the effect of denying inmates in Kanaras’s position the parole consideration to which they were entitled under the statutory scheme, did not render illegal Kanaras’s sentence.

The illegality was in the conduct of the Parole Commission and the Commissioner of Correction; it did not inhere in Kanaras’s sentence. 357 Md. at 185 , 742 A.2d 508 (emphasis supplied). While observing that “[sjuch illegality was subject to correction through a proper proceeding,” pointing out several reme ³⁷² dial possibilities, the Court of Appeals steadfastly held that the sentence itself did not constitute an “illegal sentence” within the contemplation of Rule 4-345(a). “A motion under Rule 4-345(a) to correct an illegal sentence ... was not an appropriate action.” Id. In Evans v. State, 382 Md. 248, 278-79 , 855 A.2d 291 (2004), the Court of Appeals pointed out that a trial court error during the sentencing proceeding does not necessarily make the resulting sentence itself illegal. The State correctly argues that, as a general rule, a Rule U-3h5(a) motion to correct an illegal sentence is not appropriate where the alleged illegality “did not inhere in [the defendant’s] sentence. ” State v. Kanaras, supra, 357 Md. at 185 , 742 A.2d at 517 .

A motion to correct an illegal sentence ordinarily can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed. On the other hand, a trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful. (Emphasis supplied). An illegal sentencing procedure does not, ipso facto, produce an illegal sentence.

That may be a nuance, but it is an important one. See also Randall Book Corp. v. State, 316 Md. 315, 322-23 , 558 A.2d 715 (1989) (“Appellant’s remaining contention, that the sentencing judge was motivated by impermissible considerations, does not fall into the same category. It is true ... that whether the trial judge was motivated by ill-will, prejudice, or other impermissible considerations in imposing sentence shall be considered on direct appeal. However, while improper motivation may justify vacation of the sentence, it does not render the sentence illegal within the meaning of Rule 4-345.”) (emphasis supplied).

In State v. Wilkins, 393 Md. 269, 273 , 900 A.2d 765 (2006), Judge Greene spoke for the Court of Appeals. An illegal sentence is a sentence “not permitted by law.” In Holmes v. State, 362 Md. 190, 195-96 , 763 A.2d 737, 740 ³⁷³ (2000) this Court stated that “[a] sentence that is not permitted, by statute is an illegal sentence.” ... See also Burch v. State, 346 Md. 253, 289 , 696 A.2d 443 (1997) (“Not every procedural irregularity, even in a capital sentencing proceeding, results in ‘a sentence not permitted by law.’ ”). In other words, a motion to correct an illegal sentence is not an alternative method of obtaining belated, appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.

(Emphasis supplied). The defendant, who was attacking as “illegal” a sentence that had been imposed 32 years earlier, argued in Wilkins that the trial judge had failed even to recognize that he had the discretion to suspend a part of the life sentence and that that failure even to exercise discretion was good cause to vacate the sentence and to remand for resentencing. This Court agreed that the sentence was “illegal” and vacated it. The Court of Appeals reversed us, stating that, even conceding that sentencing flaw, such a failure did not render the sentence “illegal” within the stern contemplation of Rule 4-345(a).

Even assuming, without deciding, that the sentencing judge, in this case, did not acknowledge his discretion to suspend all or a part of the life sentence imposed, the sentence actually imposed was not illegal. Therefore, an alleged defect resulting from failure to acknowledge the discretion to suspend any portion of the life sentence does not render the sentence illegal. 393 Md. at 278 , 900 A.2d 765 (emphasis supplied). State v. Wilkins recognized the critical distinction that although a sentencing judge’s failure to recognize that he has the discretion to suspend a part of a sentence would constitute good cause to vacate the sentence on direct appeal, it is not good cause to vacate a sentence under Rule 4-345(a). As Judge Greene pointed out: [I]n the present case, if the sentencing judge abused his discretion, the error was a proper subject for appellate ³⁷⁴ review on direct appeal.

It is clear that Wilkins did not raise any issue concerning the propriety of his sentence on direct appeal to the Court of Special Appeals in 1972. Having failed to raise the issue on direct appeal, he may not raise it here, under the guise of a motion to correct an illegal sentence. 393 Md. at 280 , 900 A.2d 765 (emphasis supplied). In Hoile v. State, 404 Md. 591, 621 , 948 A.2d 30 (2008), Judge Harrell similarly observed for the Court of Appeals: An illegal sentence properly is corrected only “where there is some illegality in the sentence itself or where no sentence should have been imposed.” Evans v. State, 382 Md. 248, 278 [ 855 A.2d 291 .] ... [TJhe language in Evans does not make a sentence illegal merely because a required procedure was not followed prior to the court imposing the sentence. (Emphasis supplied).

Federal Rule of Criminal Procedure 35 is verbatim with Maryland Rule 4-345(a), as it provides, “The court may correct an illegal sentence at any time.” In Hill v. United States, 368 U.S. 424 , 82 S.Ct. 468 , 7 L.Ed.2d 417 (1962), the Supreme Court dealt with a situation in which a prisoner at his sentencing was erroneously denied the opportunity, by way of allocution, to make a statement on his own behalf. No direct appeal, however, was ever taken. The Supreme Court held, 368 U.S. at 430 , 82 S.Ct. 468 , that relief pursuant to Federal Rule 35 was not available. [A]s the Rule’s language and history make clear, the narrow function of rale 35 is to permit correction at any time of an illegal sentence, not to reexamine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal.

The punishment meted out was not in excess of that prescribed by the relevant statutes. (Emphasis supplied). The appellant relies heavily on Solorzano v. State, 397 Md. 661 , 919 A.2d 652 (2007). Solorzano , however, is not a Rule 4-345(a) case.

It was a direct appeal taken immediately from ³⁷⁵ the sentence itself. It cited none of the Rule 4-345(a) cases and had no occasion even to address the limited scope of Rule 4-345(a) review. On this issue, it is totally inapposite. Rule 4-345(a) Is Not A “Reopen, Sesame” Emerging from this survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and cloture still abide.

Rule 4-345(a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. It is not, on the other hand, some unlimited “Reopen, Sesame,” licensing the court to revisit and to relitigate issues that have long since become faits accompli The present case is a textbook example of why we do not lightly disturb the law’s repose. In this appeal of a Rule 4-345(a) ruling on January 26, 2010, we are not being asked to measure a sentence against an authorizing statute. We are being asked, instead, to pore over transcripts and to interpret facts de novo from a plea negotiation on December 3, 2003 and a sentencing on April 4, 2004.

We are being asked to relitigate and to amend in the appellant’s favor the post-conviction hearing rulings of Judge Levitz of October 23, 2007. We are being asked to make our own de novo assessment of what was said and what was done at a resentencing on March 24, 2008. Not one of those events, however, is still eligible for direct review. We are here being asked to do something that has never been the function of Rule 4-345(a).

As Judge Greene stated clearly for the Court of Appeals in State v. Wilkins, 393 Md. at 273 , 900 A.2d 765 , in 2006: [A] motion to correct an illegal sentence is not an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of ... sentence in a criminal case. (Emphasis supplied) Has There Been a Silent Revolution? We are not unmindful of Cuffley v. State, 416 Md. 568 , 7 ³⁷⁶ A.3d 557 (2010), 1 in which footnote 1, 7 A.3d at 561 , states: We have held that a sentence that exceeds the sentence to which the parties agreed as part of a plea agreement is an illegal sentence within the meaning of Rule 4-345(a). Dotson v. State, 321 Md. 515, 521-22 , 583 A.2d 710 (1991).

We deem it highly unlikely, however, that the Court of Appeals would, in a single passing sentence in a footnote, effectively and deliberately overrule the rationale that permeates State v. Kanaras (1999); Evans v. State (2004); State v. Wilkins (2006); and Hoile v. State (2008), not to mention Corcoran v. State (1986), without so much as mentioning a single one of those cases. The footnote itself, moreover, relies exclusively on Dotson v. State (1991), a case that was decided before any of the opinions mentioned above, except for Corcor-an, had ever been written. Dotson , moreover, albeit involving a breached plea agreement, was not a Rule 4-345(a) case and had no occasion to deal with that rule’s stringently limited exemption from the ordinary timeliness requirements. It was, rather, a case in which the Court of Appeals entertained Dotson’s direct appeal from a sentence increase by a sentence review panel.

As we have labored to point out, what may have been deemed an “illegal sentence” in the context of direct appellate review (to wit, in the Dotson case) may not be, and frequently ³⁷⁷ is not, an “illegal sentence” in the very different context of Rule 4-345(a) review. As applied to Cuffley , the phrase from Dotson was out of context. We cannot imagine that 25 years of Rule 4-345(a) caselaw is being overruled on the basis of an opinion in Dotson that never dealt with or even mentioned Rule 4-345(a). Stare decisis is not so blithely evanescent.

Neither the majority opinion in Cuffley nor any of three very thorough dissenting opinions so much as mentioned the critical threshold subject of Rule 4-345(a)’s very limited availability. It is inconceivable that all four opinions deliberately ignored 25 years of well-established caselaw. The only reasonable inference is that this subject of Rule 4-345(a)’s limited scope never came up and was never considered. It is, of course, quite possible that the Court of Appeals might, when and if expressly required to do so, deem a sentence in contravention of a plea agreement just as “illegal” as a sentence not authorized by the Legislature.

On the other hand, the equating of the two does not automatically follow and would call for some analysis. In the meantime, we decline to treat as authoritative precedent what is, at most, a sub-silentio implication. Appellate courts do not erode or