Rendelman v. State

WILNER, Judge. A jury in the Circuit Court for Montgomery County convicted appellant Scott Rendelman of 15 counts of theft over $300, for which the court sentenced him to 10 years in prison. All but 18 months of that sentence was immediately suspended in favor of three years probation upon his release from confinement. Within 30 days after the entry of judgment, Rendelman filed both a notice of appeal to this Court and an application pursuant to Md.Code Ann. art. 27, §§ 645JA-645JG and Md.Rule 4-344 for review of sentence.

Although Rendelman was represented by the Public Defender’s Office in the appeal, the application for review of sentence was filed pro se and all proceedings pursuant to it were conducted by Rendelman without benefit of counsel. In an unreported opinion filed June 1, 1987, this Court affirmed the judgment from which the appeal had been taken. Rendelman v. State, S.T.1986, No. 1449. Meanwhile, on March 11, 1987, the sentence review panel, based ³³¹ principally on certain opprobrious conduct of Rendelman since his initial sentence, struck the suspended part of that sentence, thereby effectively increasing his potential period of incarceration by some eight and a half years.

The order stated in relevant part: “This matter having come before the Court on February 20, 1987, for a hearing on the Defendant’s Petition for Modification of Sentence, and the Court having considered the arguments of counsel for the State and the defendant acting in proper person as well as written submissions from both sides, it is thereupon, this 11th day of March, 1987, ORDERED, that the sentence originally imposed in this case be modified as follows: a. That the defendant is sentenced to the Division of Correction for a period of ten (10) years, no portion of said sentence to be suspended. c. That the Court strongly recommends placement of the defendant at the Patuxent Institute.” From that order, Rendelman has brought this appeal, complaining that: “I. The appellant was improperly denied his right to assistance of counsel.

II

The three judge panel erroneously increased appellant’s sentence.

III

The statutory provisions of Art. 27, § 645JA permitting the increase of a sentence, upon application for review, are violative of the due process and double jeopardy set forth in the Constitution.

IV

The three judge panel was without jurisdiction to render a decision following the termination of the thirty day period established by statute. V. Appellant is entitled to withdraw his application for review of sentence in light of the failure of the State to send him notice of such hearing.” ³³² The State naturally contests the merit of all of these complaints; it has, in addition, moved to dismiss the appeal on the ground that no appeal lies from an order of a sentence review panel. That, of course, is a threshold issue that'we must resolve first. (a) Appealability Md.Code Ann. art. 27, § 645JA(a) provides: “Unless no different sentence could have been imposed or unless the sentence was imposed by more than one trial judge, every person convicted of a crime by any trial court of this State and sentenced to serve, with or without suspension, a total of more than two years imprisonment in any penal or correctional institution in this State shall be entitled to have the sentence reviewed by a panel of three or more trial judges of the judicial circuit in which the sentencing court is located.

However, a person has no right to have any sentence reviewed more than once pursuant to this section. Notwithstanding any rule of the Court of Appeals to the contrary, the judge who sentenced the convicted person shall not be one of the members of the panel, but if he so desires he may sit with the panel in an advisory capacity only.” Section 645JC authorizes the panel to “order a different sentence to be imposed or served, including ... an increased or decreased sentence.” If the panel orders any different sentence, it “shall resentence and notify the convicted person in accordance with the order of the panel.” Section 645JG directs the Court of Appeals to promulgate Rules to implement the statute, which the .Court has done through Md.Rule 4-344. In Glass v. State, 24 Md.App. 76 , 329 A.2d 109 (1974), the appellant had been convicted of an attempted sex offense and of assault, for which he received concurrent sentences of five and two years. As did Mr. Rendelman, Glass filed both an appeal and an application under § 645JA-JG for review of sentence.

During the pendency of the appeal, the sentence review panel confirmed the existing sentence. ³³³ Glass moved to supplement the record on appeal to add the proceeding before the sentence review panel in order to provide a basis for his challenge to certain aspects of that proceeding. We denied that motion on the ground that no appeal would lie from an order of a sentence review panel. The Court stated, at 79, 329 A.2d 109 : “The appellate jurisdiction of the Court of Special Appeals of Maryland is bestowed by legislative enactment. The statutes provide no right of appeal to that Court by a person from an order of a sentence review panel nor is an appeal from such an order designated to be within its appellate jurisdiction.

Under Courts Art. § 12-301 ‘... a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.’ A sentence review panel is not a court. ‘ “Circuit court” means the circuit court for a county ... ’ and the courts of the Supreme Bench of Baltimore City. Courts Art. § 12-101(d). The right of appeal from the order of a sentence review panel is clearly not within the contemplation of Courts Art. § 12-301.

Courts Art. § 12-308 specifically designates those actions, cases, causes, suits or proceedings with respect to which the Court of Special Appeals of Maryland has exclusive initial appellate jurisdiction. Proceedings before a sentence review panel is not among them.” (Footnote omitted.) We reaffirmed that conclusion in State v. Ward, 31 Md.App. 68 , 354 A.2d 834 (1976). The defendant there had initially been sentenced to three years imprisonment, all of which was suspended in favor of three years probation. Subsequently, upon a finding that conditions of the probation had been violated, the court struck the probation and directed execution of the three-year sentence.

Upon an application for review filed pursuant to § 645JA, a review panel modified that order by suspending all but 18 months ³³⁴ of the three-year sentence. The State appealed, contending that the panel had no jurisdiction to consider the application because it was filed more than 30 days after the initial imposition of the sentence. See State’s Brief in No. 759, S.T.1975. On Ward’s motion, we dismissed the appeal.

We began by quoting and confirming what we had said in Glass—that “[a] sentence review panel is not a court” (State v. Ward, supra, at 72, 354 A.2d 834 ) and that no appeal would lie from its order. We acknowledged that, under State ex rel. Sonner v. Shearin, 272 Md. 502 , 325 A.2d 573 (1974), and State v. Wooten, 277 Md. 114 , 352 A.2d 829 (1976), the State could appeal from the denial of a motion to correct an illegal sentence, but found, in that case, that (1) the sentence at issue was not facially illegal and (2) the State had never asked the trial court to correct the action of the review panel and so its appeal did not fall within the narrow exception allowed by Shearin and Wooten . The State’s motion to dismiss this appeal is based principally upon Glass and Ward .

We do not believe those cases are controlling here. In Teasley v. State, 298 Md. 364, 370 , 470 A.2d 337 (1984), the Court of Appeals observed that: “[ajppellate review of sentences is extremely limited in Maryland; only three grounds of review are recognized: (1) the sentence may not constitute cruel and unusual punishment or otherwise violate constitutional requirements; (2) the sentencing judge may not be motivated by ill will, prejudice or other impermissible considerations; and (3) the sentence must be within statutory limitations.” In light of this limited scope of appellate review, we think that there is a significant difference between a confirmance or reduction in sentence by a review panel, as occurred in Glass and Ward , and an increase ordered by it, as occurred here. ³³⁵ Putting aside the special issues pertaining to the ability of the State to appeal from a reduction in sentence, the fact is that, where the panel merely confirms the existing sentence, the relevant inquiry ordinarily is into that sentence and the procedure leading to its initial imposition. The sentence either violates Constitutional or statutory requirements or it does not; the trial judge who imposed the sentence acted properly and complied with mandatory procedure or did not. Challenging what occurred before the review panel usually adds nothing of real substance.

Where the panel increases the sentence, however, the focus • is necessarily and quite properly on what occurred before the panel. Its sentence, not that initially imposed by the trial judge, is what must pass muster, because that is the effective sentence in the case. That is the sentence that must be within Constitutional and statutory limits; it is that