Mendes v. State

WILNER, Chief Judge. This appeal hinges on a construction of Md. Rule 4-344, which implements the Review of Criminal Sentences Act (Md.Code art. 27, § 645JA-645JG) and sets forth the procedure for obtaining panel review in the circuit court of a criminal sentence exceeding two years of imprisonment. Rule 4-344(a) provides, in relevant part, that an application for review of a sentence under the Act “shall be filed in the sentencing court within 30 days after the imposition of sentence or at a later time permitted by the Act.” We are concerned here with the meaning of “imposition of sentence,” as neither party contends that there is any “later time permitted by the Act.” The issue is: When a defendant is convicted of two or more offenses but sentences are imposed on those offenses on different days, does the 30-day period with respect to the earlier sentence commence when that sentence is imposed or when the last sentence is imposed? Underlying Facts As the result of a fatal traffic accident, appellant was charged in the Circuit Court for Carroll County with six offenses, ranging from manslaughter by automobile to failure to keep to the right of center.

On January 11, 1993, pursuant to a plea agreement, appellant pled guilty to Counts I and III of the indictment—manslaughter by automobile and driving while intoxicated, respectively—and the State not grossed the remaining charges. Sentencing was set for April 19, 1993. The plea agreement allowed the State to recommend a prison sentence on Count I not to exceed five years. The court was not bound by that recommendation, however, and, indeed, rejected it, sentencing appellant instead to ten years in ²⁴⁸ prison, to be followed by a five-year period of probation.

The 10-year sentence was the maximum allowed by the Code and far exceeded the range established in the sentencing guidelines. 1 The court expressly deferred imposing sentence on Count III, “[i]n light of the Court’s sentence on the First Count.” Appellant did not object to that deferral. On April 29, 1993, appellant filed a motion for reconsideration of the sentence, which the State answered. For whatever reason, no action was taken on the motion; no hearing was even scheduled. In July, 1993, defense counsel wrote to the judge, asking that he either set the motion for hearing or impose a sentence on Count III.

Counsel complained that “I am unable to file any other post conviction proceedings, i.e., Motion to Modify Sentence by a three judge panel without a final sentence as to the remaining charge,” although he expressed the hope that such a motion would prove unnecessary ²⁴⁹ if the court granted his motion for reconsideration. Still, nothing transpired, and, on September 23, 1993, counsel wrote again to the judge, calling attention to the July letter and requesting some action. In October, 1993, the court finally acted to schedule a hearing, which took place on December 6, 1993. At that hearing, the court, citing what it regarded as a number of aggravating factors with respect to the accident, denied the motion for reconsideration, whereupon counsel asked the court to impose sentence on Count III so that he could request a panel review of the sentence on Count I. The court obliged, imposing a sentence of one year, concurrent with the 10-year sentence on Count I and “backdated” to April 19, 1993. 2 On December 22, 1993, appellant filed an application under Md. Rule 4-344 for review of the 10-year sentence by a three-judge panel.

That application, filed by defense counsel, was not signed by appellant, however, and did not include the statements required by Rule 4-344(b), 3 omissions that were corrected on January 4, 1994, when another “Application for Review of Sentence,” signed by appellant and containing the language required by the Rule, was filed. This second application sought review of both sentences. ²⁵⁰ On February 4,. 1994, the circuit administrative judge denied the application(s) on the grounds that (1) as the sentence for the conviction of automobile manslaughter was imposed on April 19, 1993, the application for review of that sentence was not timely, and (2) the one-year sentence for driving while intoxicated is not subject to panel review under the Rule. On March 4, 1994, appellant filed, in order, a motion for reconsideration of the denial of his application for sentence review and an appeal from that denial. In his motion for reconsideration, appellant made the same claim now made before us—that the time for filing an application for panel review does not commence until the final sentence is imposed.

In April, the court denied the motion for reconsideration; hence, the pressing of this appeal. Discussion Appellant maintains that, when a defendant is convicted of multiple offenses and is sentenced for those offenses at different times, he is not entitled to seek panel review under Rule 4-344 until the final sentence is imposed. He likens sentence review under the rule to an appeal and insists that, as an appeal can be taken only from a final judgment, as a judgment ²⁵¹ is not final until all claims are resolved, and as a criminal claim resulting in a conviction is not finally resolved until sentence is imposed on the conviction, the judgment on Count I was incomplete and not final until judgment, i.e., sentence, was entered on Count III. We observe, initially, that, although we know of no rule or statute requiring that the court impose sentences on all convictions obtained at a single trial at the same time, it is certainly the better practice to do so.

Indeed, it would seem that only an extraordinary circumstance would justify piecemeal sentencing—declaring a mistrial or granting a new trial on one or more counts, for example, which effectively nullifies any convictions on those counts, or where the flagship conviction is subject to the death penalty and, for whatever reason, that sentencing proceeding is delayed. If for no other reason, contemporaneous sentencing avoids the problem created here. At least one Federal court has adopted a view similar to that argued by appellant. In In re U.S., 898 F.2d 1485 (11th Cir.1990), a defendant was convicted of five counts of bank robbery but sentenced on only one.

A year later, the court dismissed the remaining counts. Within 120 days after those dismissals, the defendant moved, pursuant to Fed.R.Crim.P. 35(b), for a reduction of his one sentence. Rule 35(b) allows such a motion to be made within 120 days “after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal.” The court granted the motion, and when it also denied the Government’s motion for reconsideration based on a lack of jurisdiction in the court to consider the defendant’s motion, the Government petitioned the appellate court for a writ of mandamus. The Eleventh Circuit Court, in a per curiam opinion, denied the petition, holding that, under the rule, “sentence is imposed when the sentencing order is an appealable final judgment.” The Court continued, at 1487: “To reach a different conclusion, we would have to hold that there may be times when a sentence is imposed, a defendant ²⁵² is incarcerated, and the defendant must file his Rule 35(b) motion before he may appeal his sentence.

This we cannot do: the rule allows a defendant to file his motion after the district court’s judgment has been affirmed on appeal. Thus, sentence is imposed for the purposes of Rule 35(b) when the sentencing order constitutes a final, appealable order. In the context of sentencing orders, our predecessor circuit [the Fifth Circuit] has held that, when a defendant is sentenced on fewer than all of the counts on which the defendant is convicted, the order is not final for purposes of appeal____ Only when the defendant is sentenced on all counts on which he is convicted (or when the convictions on the other counts are otherwise disposed of) does the order become final and appealable.” In a footnote to that statement, the Court observed that it had previously adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,1981. In another footnote, it asserted that “[i]f we were writing on a clean slate, we might come to a different conclusion.

An appealable order is one that finally and irreparably affects the rights of the parties, and, in our view, each count on which a defendant is convicted should constitute a separate case, which is brought to a conclusion by sentencing. We are not at liberty, however, to so hold.” Although he does not say so directly, the clear, necessary implication of appellant’s argument, which appears to be the premise underlying the Eleventh Circuit case as well, is that a constructive counterpart to Md. Rule 2-602 exists with respect to criminal cases; i.e., a multi-count indictment or information is regarded as one complaint and no judgment entered on any count is final until judgments are entered on all counts. At oral argument, appellant modified that argument somewhat, urging that the principle would apply only with respect to verdicts obtained at a single trial. Under this modified approach, the rule would not apply to counts upon which the jury ²⁵³ was unable to agree or as to which a mistrial or new trial was declared.

Either approach constitutes a pregnant proposition, the offspring of which could be quite troublesome. At the very least, it would either subject a defendant to incarceration on the imposed sentence without any immediate ability to challenge the conviction or sentence, by appeal or otherwise, or require that the sentence not be executed until it has become “final,” thereby leaving the defendant effectively in a pre-trial status, notwithstanding that a verdict has been returned and a sentence imposed. Fortunately, we need not reach that question. Review under Rule 4-344 is not like an appeal, and, whatever may be the law governing appeals in such situations, the Rule does not require a defendant to wait until imposition of the last sentence to seek review of an intervening sentence. 4 Except as allowed by some special statute or rule, or by the collateral order doctrine, an appeal will lie only from a final judgment; ²⁵⁴ the initial focus in an appeal, therefore, is on whether such a judgment exists.

The 30-day period allowed under Rule 4-344 commences with the “imposition of sentence,” not from when a “final judgment” is entered. We are not concerned, therefore, with whether a final judgment has been entered but only whether there has been an imposition of sentence. That is our sole focus. In addressing this question, we shall first distinguish the situation under Rule 4-344 from that implicit under Fed. R.Crim.P. 35(b), and thus with the holding in In re U.S., supra, 898 F.2d 1485 .

The Federal rule, as