Moultrie v. State

Panel: Nazarian, Arthur, James R. Eyler, (Senior Judge, Specially Assigned), JJ. Arthur, J. ⁴¹² In 2008 Tevin Moultrie, age 16, pleaded guilty to second-degree murder and other related charges in the Circuit Court for Baltimore City. The court imposed the maximum sentence allowed under a binding plea agreement - 30 years' imprisonment. In 2016 the court denied Moultrie's petition for post-conviction relief, and he appealed.

He presents the following questions for appellate review: 1. Where defense counsel filed a timely motion for reduction of sentence pursuant to Rule 4-345 but never followed up to request a hearing or a ruling before the five-year period for reducing a sentence expired, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel? 2. Where defense counsel incorrectly advised appellant that a three-judge sentence review panel could increase his sentence and appellant did not file an application for ⁴¹³ sentence review, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel? 3. Did the postconviction court err in denying appellant's claims for relief based on ineffective assistance of counsel where defense counsel failed to correct or object to the circuit court's legal errors during the juvenile transfer hearing, and failed subsequently to request a transfer to the juvenile court for disposition? ⁶⁸ For the reasons discussed below, we conclude that the post-conviction court erred in denying relief because of counsel's failure to pursue a hearing or a ruling on the motion to reduce the sentence.

We also conclude that the post-conviction court erred in denying relief because of counsel's erroneous advice about a three-judge panel's ability to increase the maximum sentence allowed under a binding plea agreement. We decline to reach the merits of the third question. BACKGROUND Tevin Moultrie was born on November 19, 1991. On March 13, 2007, when he was not quite four months past his fifteenth birthday, Moultrie shot and killed another young man.

As he ran from the police, Moultrie threw away a pistol. The gun went off when it hit the ground, and the police officers thought that Moultrie was firing at them. The State charged Moultrie, as an adult, with the offenses of first-degree murder; conspiracy to commit first-degree murder; two counts of attempted first-degree murder, first-degree assault, and second-degree assault (apparently of the police officers who were pursuing him when he discarded the gun); and three counts of the illegal use of a handgun and of wearing or carrying a handgun. On June 12, 2007, when Moultrie was not quite 15 years and seven months old, the Circuit Court for Baltimore City denied his motion for a reverse waiver to transfer the case to the juvenile court.

On March 6, 2008, when Moultrie was 16 years and three months old, he pleaded guilty to second-degree murder, using ⁴¹⁴ a handgun in the commission of a crime of violence, and two counts of reckless endangerment. The plea agreement, to which the court bound itself, contemplated a 30-year cap on the total sentence, but permitted Moultrie to argue for less. On October 7, 2008, about six weeks before Moultrie's seventeenth birthday, the court sentenced him to 30 years' imprisonment for second-degree murder, a concurrent 20 years (the first five years without the possibility of parole) on the handgun count, and concurrent one-year sentences on the reckless endangerment counts. After the court imposed those sentences, Moultrie's counsel advised him about his post-sentencing rights: [DEFENSE COUNSEL]: You also have thirty days to file to ask a three-judge panel to review this sentence.

They could raise it . They could lower it. They could leave it the same. Do you understand that, sir?

THE DEFENDANT: Yes sir. DEFENSE COUNSEL: You have 90 days from today to file a motion for modification. All of that must be in writing. I will file it for you, and-possibly, maybe the Court could allow it to hold it [sic] sub curia .

Then maybe in a little while, in a few years, maybe we can hopefully come back and show the Court all the positive things you've done. Okay, sir? THE DEFENDANT: Yes sir. DEFENSE COUNSEL: Mr. Moultrie, whatever you do, recognize you still are only 17 years old.

You've already been in almost two years. Okay sir? Recognize that if you continue to do the positive things that you do, and show the Court the positive, that you are going to be an asset to society, that maybe at that point in time, down the road, we can hopefully have this matter brought back in. Do you understand that sir?

THE DEFENDANT: Yes sir. ⁶⁹ DEFENSE COUNSEL: You recognize life is not over. Do you understand that, sir? ⁴¹⁵ THE DEFENDANT: Yes sir. (Emphasis added.) Under Md. Rule 4-344, Moultrie had 30 days after the imposition of the sentence to file an application for review of his sentence by a three-judge panel. No application for review was filed.

Under Md. Rule 4-345(e), Moultrie had 90 days after the imposition of the sentence to file a motion asking the court to exercise its revisory power over the sentence. Consistent with his comments at the sentencing proceeding, Moultrie's counsel filed a timely motion to modify or reduce the sentence on December 24, 2008. The motion asked that it be held sub curia and that the court "[g]rant a hearing upon petition of counsel[.]" The court evidently agreed to hold the motion sub curia, because no further action was taken on it. Rule 4-345(e) prohibits a court from revising a sentence "after the expiration of five years from the date the sentence originally was imposed[.]" In Moultrie's case, the five-year deadline ran on October 7, 2013.

Moultrie's counsel did not request a hearing on his motion before the deadline ran. On April 15, 2016, Moultrie filed a petition for post-conviction relief under the Maryland Uniform Postconviction Procedure Act, Maryland Code (2001, 2008 Repl. Vol.), §§ 7-101 to -109 of the Criminal Procedure Article. As amended, Moultrie's petition included assertions that he received ineffective assistance of counsel because his trial counsel (1) did not request a hearing on the motion to modify before the five-year deadline ran; (2) erroneously informed him that a three-judge panel could increase his sentence if he filed an application for review under Rule 4-344 ; (3) failed to object to the trial court's alleged errors at the reverse-waiver hearing; and (4) failed to request that the case be transferred to the juvenile court for sentencing under § 4-202.2(a)(1) of the Criminal Procedure Article.

In a written opinion and order, the post-conviction court denied post-conviction relief. Moultrie filed an application for leave to appeal in this Court. In his application, Moultrie argued that the post-conviction ⁴¹⁶ court erred only as to his claims that counsel was ineffective in failing to request a hearing and a ruling on the motion for modification of sentence under Rule 4-345(e) and in misinforming him that a three-judge panel could increase his sentence on an application for review under Rule 4-344. The application did not mention counsel's failure to object at the reverse-waiver hearing or counsel's failure to request that the case be transferred to the juvenile court for sentencing.

This Court granted the application for leave to appeal and transferred the case to the regular appellate docket. The order effectuating that transfer said, in pertinent part: It is this 13th day of December, 2017, by the Court of Special Appeals, ORDERED , that the above-captioned Application for Leave to Appeal be, and is hereby, GRANTED, and the case is hereby transferred to the regular appeal docket of this Court to address the two questions presented in Applicant's application for leave to appeal. In his brief, Moultrie contends that the post-conviction court erred both for the reasons presented in his application for leave to appeal and for the additional reasons that the post-conviction court rejected - the failure to object to alleged errors at the reverse-waiver hearing and the failure to request a juvenile disposition at sentencing. Moultrie argues that those additional ⁷⁰ issues are properly before us even though he did not raise them in his application for leave to appeal, and even though the order does not encompass them.

DISCUSSION I. We must first decide what is, and what is not, properly before us. For the reasons explained below, we decline to consider the contentions that Moultrie did not include in his application for leave to appeal. This Court granted the application for leave to appeal pursuant to Md. Rule 8-204(f)(5), which enables us to order ⁴¹⁷ further proceedings in accordance with Rule 8-204(g). Under Rule 8-204(g), those "[f]urther proceedings ... shall be conducted ... as if the order granting leave to appeal were a notice of appeal filed pursuant to Rule 8-202." Md. Rule 8-204(g)(1).

In Harding v. State , 235 Md. App. 287 , 294, 175 A.3d 924 (2017), this Court recognized that if a notice of appeal sets forth the points that an appellant expects to argue, "we treat that language as surplusage[.]" Id. Consequently, in Harding we held that appellants may argue points that they did not raise in an application for leave to appeal, at least when the order granting leave to appeal contained no language limiting what the appellants could argue. Id. at 295 , 175 A.3d 924 . At the same time, however, we cautioned that " Rule 8-204(f)(5) does not prohibit this Court from placing conditions or substantive limitations on our grant of an application for leave to appeal[.]" Id.

That cautionary language strongly implies that if this Court places a condition or limitation on the grant of an application for leave to appeal, as it did in the order granting the application in this case, the condition or limitation ordinarily should be treated as binding. 1 Moultrie asserts that Harding 's cautionary language should not dictate the resolution of this case because, he says, it is "clearly dictum." He is correct that the language is technically dicta, because Harding did not involve an order that limited or conditioned the arguments that the appellant could raise on appeal. Nonetheless, it is persuasive dicta in that it is not only insightful and well reasoned, but is also closely connected to the question that was actually before the Court. "Well considered dicta , of course, is sometimes very good and, therefore, ⁴¹⁸ of significant persuasive weight." State v. Wilson , 106 Md. App. 24 , 37, 664 A.2d 1 , cert. denied , 340 Md. 502 , 667 A.2d 342 (1995), rev'd on other grounds, Maryland v. Wilson , 519 U.S. 408 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997) ; accord Kulikov v. Baffoe-Harding , 215 Md. App. 193 , 205, 79 A.3d 995 (2013). In our view, even though an appellant does not limit the scope of an appeal by filing a notice of appeal as to specific issues, this Court still has the ability to limit the scope of an appeal when it grants an application for leave to appeal.

We, unlike an appellant, have the inherent authority to control our docket. See Wynn v. State , 388 Md. 423 , 437, 879 A.2d 1097 (2005). Furthermore, we have the discretion to deny an application for leave to appeal in its entirety without explaining why. See Md. Rule 8-204(f)(1) ; ⁷¹ Hernandez v. State , 108 Md. App. 354 , 365-66, 672 A.2d 103 (1996).

On the principle that the greater includes the lesser, we see no reason why we cannot limit the grant of an application to the issues raised therein, or even a subset of those issues. Ordinarily, when this Court limits the grant of an application for leave to appeal to certain specific issues, the limitation is binding both on the litigants themselves and on the appellate panel that reviews the briefs and decides the case. In exceptional circumstances, however, the appellate panel, in its discretion, may permit an appellant to raise an issue that was not encompassed in the order granting leave to appeal. Without endeavoring to identify all of the circumstances that might accurately be described as "exceptional," we can say that they would certainly include the circumstances under which a panel of this Court could depart from a prior decision under the doctrine of the law of the case.

Those circumstances include a change in the controlling authority or a conclusion that the earlier decision "was clearly erroneous and would work a manifest injustice." Turner v. Housing Auth. of Baltimore City , 364 Md. 24 , 34, 770 A.2d 671 (2001). The prior decision should not be reconsidered simply because the appellate panel "has a different opinion or has changed its ⁴¹⁹ position." Hawes v. Liberty Homes, Inc. , 100 Md. App. 222 , 231, 640 A.2d 743 (1994). We see no exceptional circumstances in this case. In our discretion, therefore, we choose not to entertain the questions that Moultrie did not raise in his application for leave to appeal.

II

A. Ineffective assistance of counsel generally The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights, guarantee a defendant the right to counsel in a criminal proceeding. To ensure that the right to counsel provides meaningful protection, the right has been construed to require the "effective assistance of counsel." Strickland v. Washington , 466 U.S. 668 , 686, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson , 397 U.S. 759 , 771 n.14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970) ). To establish a claim of ineffective assistance of counsel in violation of his constitutional rights, Moultrie must satisfy the two-prong test articulated in Strickland . The first prong requires Moultrie to show that his counsel's performance was deficient because he "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to Moultrie] by the Sixth Amendment." Strickland v. Washington , 466 U.S. at 687 , 104 S.Ct. 2052 .

The second prong requires Moultrie to show that counsel's performance was so deficient that he was prejudiced by it. Id. To satisfy the first prong, Moultrie must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel's performance fell below an objective standard of reasonableness considering prevailing professional norms. Cirincione v. State , 119 Md. App. 471 , 484, 705 A.2d 96 (1998) (citing Oken v. State , 343 Md. 256 , 283, 681 A.2d 30 (1996) ); see also ⁴²⁰ Coleman v. State , 434 Md. 320 , 331, 75 A.3d 916 (2013).

To satisfy the second prong, Moultrie must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. at 694 , 104 S.Ct. 2052 ; ⁷² Harris v. State , 303 Md. 685 , 700, 496 A.2d 1074 (1985). Whether Moultrie received ineffective assistance of counsel is "a mixed question of fact and law." State v. Purvey , 129 Md. App. 1 , 10, 740 A.2d 54 (1999). "[W]e will defer to the post conviction court's findings of historical fact, absent clear error." Cirincione v. State , 119 Md. App. at 485 , 705 A.2d 96 (citation omitted). But we exercise our "own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any." State v. Jones , 138 Md. App. 178 , 209, 771 A.2d 407 (2001) ; accord Coleman v. State , 434 Md. at 331 , 75 A.3d 916 .

B. Ineffective assistance of counsel in connection with the motion for modification or reduction of sentence As previously stated, Md. Rule 4-345(e) permits a criminal defendant to file a motion for modification or reduction of sentence within 90 days after the imposition of the sentence. A criminal defendant has a right to counsel on such a motion. See State v. Flansburg , 345 Md. 694 , 699-702, 694 A.2d 462 (1997). 2 In Flansburg a defendant instructed his lawyer to file a motion for modification or reduction of sentence. Id. at 696 , 694 A.2d 462 .

Notwithstanding the requests, however, the ⁴²¹ lawyer did not file the motion. Id. Hence,