Montgomery v. State

JOHN C. ELDRIDGE, Judge (Retired, Specially Assigned). In this criminal case, the Circuit Court for Charles County convicted the defendant Montgomery of violating the conditions of a previously imposed period of probation. The court sentenced Montgomery to ten years imprisonment for the violation, with no new period of probation involved. The court then deferred for three years the date when the defendant was ⁶⁹ to report to the Division of Correction and begin serving his sentence.

The reason given for the deferral, by the trial judge at sentencing, was that, “if you [Montgomery] are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day.” The dispositive issues before this Court are whether the deferred reporting date, based on the reasons set forth by the Circuit Court, was authorized by Maryland Rule 4-348(d) 1 and, if not authorized, whether the sentence amounted to an illegal sentence within the meaning of Maryland Rule 4-345(a). 2 We shall hold that the deferred reporting date, under the circumstances, was not authorized by Rule 4-348(d) and that it constituted an illegal sentence. I. On April 20, 1993, in the Circuit Court for Charles County, Neil Morano Montgomery pled guilty to a single count of arson and was sentenced to twenty-five years of imprison ⁷⁰ ment. The court suspended all but five years of imprisonment and placed the defendant Montgomery on probation for five years after his release from incarceration. Montgomery served the unsuspended portion of his sentence and was released on probation.

The State on June 9, 2000, filed in the Circuit Court for Charles County a petition alleging that Montgomery had violated a condition of his probation. The alleged violation was that Montgomery had been convicted of criminal contempt for failure to pay child support. The Circuit Court held a hearing on the State’s petition on May 18, 2001, at which Montgomery admitted that he had committed the violation of probation. After questioning Montgomery about his employment with a home improvement contractor in Charles County, about his place of residence, and whether Montgomery would have transportation from his home to his place of employment, the Circuit Court at the May 18, 2001, hearing announced the sentence as follows (emphasis added): “The disposition Mr. Montgomery is 10 years of the 20 year balance of the sentence in this case is hereby ordered executed effective at 9 a.m. on May 18th of 2004.

That is three years from today. You are entitled to credit against that for 55 days time served prior to today in connection with this probation violation matter. “The interest of the Maryland Division of Parole and Probation in this ... case is closed. Any uncollected fees are determined to be uncollectible.” “[Defense Counsel] will automatically file [a] reconsideration motion. I am automatically going to table it.

Mr. Montgomery, I am attaching no particular strings to this. I am telling you if you are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day. “On the other hand [the Assistant State’s Attorney] is going to see to it that the child support section of his office has the case number, Criminal 92-468 stamped all over its ⁷¹ child support files down there. And they are going to know if you miss a payment that you get 10 years. “7 reserve the right to advance the date for execution of this 10 years ... if I hear that you [have] run afoul of the law or run afoul of any other order of court between now and that date.” The Commitment Record, issued on May 23, 2001, reflected that Montgomery was sentenced to ten years imprisonment, “concurrent with any other outstanding or unserved sentence and [to] begin on 05/18/04.” On May 29, 2001, defense counsel filed a motion to reconsider the sentence pursuant to Maryland Rule 4-345(e)(l). 3 The record does not reflect that the Circuit Court ever ruled upon this motion. A proposed order attached to defense counsel’s reconsideration motion contains a handwritten notation stating “No decision,” along with the trial judge’s signature and the date of June 13, 2001.

Montgomery neither sought leave to appeal from the Circuit Court’s judgment of May 18, 2001, nor otherwise challenged the court’s action at that time. When Montgomery did not report to the Division of Correction on May 18, 2004, he was “picked up” and incarcerated in the Maryland Correctional Institution, Hagerstown, Maryland. Montgomery thereupon sent a letter to the trial judge who had sentenced him, stating that a mistake had been made. The judge responded as follows: ⁷² “Your letter received on May 21 suggests some mistake has resulted in the Division of Correction’s considering you to be serving a 10-year sentence in this case. “Review of the file persuades me that there is no mistake.

On May 18, 2001, for violating probation, I ordered into execution 10 years of the suspended sentence effective May 18, 2004. You were told then that I would consider vacating the sentence were you to remain out of trouble during the 3 year interval. The sentence has not been reconsidered and modified and May 18, 2004 has come and gone, so it would appear that the agency’s [Division of Correction’s] assessment of your status is accurate.” 4 There were further exchanges of letters, the filing of a petition for post conviction relief, and the State’s answer, all of which concerned, inter alia, the performance of Montgomery’s trial counsel and the matter of Montgomery’s “behavior” during the three-year period. Thereafter, represented by new counsel from the Office of Public Defender, Montgomery filed in the Circuit Court for Charles County a “Motion To Correct An Illegal Sentence.” The motion asserted that the sentence imposed on May 18, 2001, was an illegal sentence which, under Rule 4-345(a), could be corrected “at any time.” Montgomery argued that the three-year deferred reporting date, based on the trial judge’s determination that Montgomery would not be imprisoned if he was “of good behavior between now and three years from now,” was unauthorized and illegal.

The State responded by arguing that the sentence was authorized by Maryland Rule 4-348(d) which, according to the State, “explicitly permits the court to stay a sentence ‘upon terms the court deems proper.’ ” Consequently, the State argued that the May 18, 2001, sentence was not “illegal.” ⁷³ The Circuit Court, without a hearing and without giving reasons, by an order filed on December 19, 2005, denied the motion. Montgomery then appealed to the Court of Special Appeals from the denial of his motion to correct an illegal sentence. Montgomery contended that the sentence was not authorized by any statute or rule and, therefore, was illegal. Montgomery alternatively argued that the Circuit Court acted illegally in ruling on the motion without a hearing to determine whether Montgomery had complied with the “good behavior” condition imposed on May 18, 2001.

The State maintained that the sentence was authorized by Maryland Rule 4-348(d), and that, even if it was not authorized, the Circuit Court’s error would be merely “procedural” and would not constitute an illegal sentence. The State also argued that the Circuit Court was not required to hold a hearing on the motion. The Court of Special Appeals affirmed, Montgomery v. State, 175 Md.App. 639, 643 , 931 A.2d 534, 536 (2007), holding “that by granting appellant (1) a deferred reporting date, and (2) the opportunity to avoid serving ‘another day,’ the circuit court did not impose an ‘illegal’ sentence.” Montgomery then filed in this Court a petition for a writ of certiorari, raising essentially two issues: (1) whether the sentence imposed on May 18, 2001, in light of the three-year deferred reporting date and the provision that the sentence would not be served if Montgomery was “of good behavior” for the three years, was unauthorized and constituted an illegal sentence; (2) whether Montgomery was entitled to a hearing on the question of whether he had complied with the condition set forth at the sentencing on May 18, 2001. 5 The State answered by arguing that the May 18, 2001, sentence was authorized by Maryland Rule 4-348(d), that even if the sentence was not authorized by Rule 4-348(d), it did not constitute an “illegal sentence” within the meaning of Rule 4-345(a), and that Montgomery was not entitled to a hearing on the ⁷⁴ issue of whether he had complied with the “good behavior” condition delineated by the trial court on May 18, 2001. This Court granted the petition for a writ of certiorari, Montgomery v. State, 402 Md. 352 , 936 A.2d 850 (2007).

As previously mentioned, we shall hold that the May 18, 2001, sentence was not authorized by Maryland Rule 4-348(d) and that it constituted an illegal sentence. Consequently, the Circuit Court’s judgment of May 18, 2001, will be reversed. The effect of this reversal renders moot the issue of whether Montgomery was entitled to a hearing to determine if he had complied with the condition set forth by the trial court on May 18, 2001. Therefore, the hearing issue need not and will not be reached.

II

We shall first address the State’s argument that, even if the deferred reporting date, based upon the ground sent forth by the trial judge, was unauthorized, it would not amount to an “illegal sentence” within the meaning of Rule 4-345(a). This Court in Evans v. State, 382 Md. 248, 278-279 , 855 A.2d 291, 309 (2004), cert. denied, 543 U.S. 1150 , 125 S.Ct. 1325 , 161 L.Ed.2d 113 (2005), explained the scope of a motion to correct an illegal sentence as follows: “[A]s a general rule, a Rule 4-345(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. [170,] at 185, 742 A.2d [508,] at 517 [1999]. 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. See, e.g., Ridgeway v. State, 369 Md. 165, 171 , 797 A.2d 1287, 1290 (2002); Holmes v. State, 362 Md. 190 , 763 A.2d 737 (2000); Moosavi v. State, 355 Md. 651, 662-663 , 736 A.2d 285, 291 (1999).

On the other hand, a trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sen ⁷⁵ tence or sanction is itself lawful. Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715, 719 (1989)....” Furthermore, failure to object to an allegedly illegal sentence at the time it was imposed does not preclude a defendant from later raising the issue or later filing a motion to correct an illegal sentence. As held in Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949, 951 (1985), “when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed ... 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 correct 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.” See, e.g., State v. Wilkins, 393 Md. 269, 273 , 900 A.2d 765, 767 (2006) (“The court correct an illegal sentence is appealable”); Evans v. State, 389 Md. 456, 463 , 886 A.2d 562, 565 (2005), cert. denied, 546 U.S. 1219 , 126 S.Ct. 1442 , 164 L.Ed.2d 141 (2006) (“ ‘[A] motion to correct an illegal sentence historically was entertained only where the alleged illegality was in the sentence itself or the sentence never should have been imposed,’ ” quoting Baker v. State, 389 Md. 127, 133 , 883 A.2d 916, 919 (2005)); Jones v. State, 384 Md. 669, 678-679 , 866 A.2d 151, 157-161 (2005); Coles v. State, 290 Md. 296, 303 , 429 A.2d 1029, 1032 (1981) (“A trial court clearly has the authority and responsibility to correct an illegal sentence at any time, ... and the refusal to do so, no matter when the correction request is made, is appealable”).

In the case at bar, the State argues that the deferred reporting date, based on and contingent upon Montgomery’s future “good behavior,” was at most “only a procedural error,” that “there is no inherent illegality in the sentence imposed,” and that, therefore, “this is not an illegal sentence” for purposes of Rule 4-345(a). (Respondent’s brief at 7-8). We disagree. ⁷⁶ The trial judge at sentencing set forth the sentence as follows: “[t]he disposition Mr. Montgomery is 10 years of the 20 year balance of the sentence in this case is hereby ordered executed effective at 9 a.m. on May 18th of 2004. That is three years from today.” After terminating the “interest of the Maryland Division of Parole and Probation” and stating that he would “table” defense counsel’s motion to revise the sentence, the trial judge continued: “if you are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day.” The judge also “reserve[d] the right to advance the date for execution” if he heard that Montgomery had run “afoul of the law.” The record contains no indication that the trial judge committed a “procedural” error leading up to or during the course of the sentencing.

Instead, the three-year deferred reporting date, and the contingencies, were an integral part of the sentence itself. This is confirmed by the docket entries for May 18, 2001,