Schlick v. State

Panel: Wright, Leahy, Irma S. Raker (Senior Judge, Specially Assigned), JJ. Raker, J. ⁶⁸³ John Schlick appeals from dismissal of his Motion for Modification of Sentence by the Circuit Court for Baltimore City. He presents the following question for our review, which we have re-phrased slightly: Did the trial court determine correctly that it did not have authority under Maryland Rule 4-345 to modify appellant's ⁶⁸⁴ sentence once five years had passed from the date the original sentence was imposed? We shall hold that the trial court erred in dismissing the motion and, hence, we shall reverse.

I. Because the sole issue in this appeal relates to the trial court's action in dismissing a Motion for Modification of Sentence, we shall not recite the facts of the underlying criminal charges, and focus only on the facts related to the Motion for Modification of Sentence. On September 20, 2005, the Circuit Court for Baltimore City sentenced appellant to a term of incarceration of sixteen years, all but eighteen months suspended, five years' probation for one count of possession with intent to distribute cocaine. On September 15, 2008, appellant appeared for a violation of probation of the 2005 conviction after a subsequent conviction in which the court imposed a term of incarceration of ten years. Following this probation violation hearing, the court revoked appellant's probation and executed the suspended fourteen years and six months from the 2005 sentence, to run concurrent with the 2008 ten-year sentence. ⁵¹ On August 31, 2012, appellant filed a Petition for Postconviction Relief followed by a November 30, 2012, Supplemental Petition for Postconviction Relief stemming from the 2008 sentencing proceeding for the probation violation.

Recognizing that these petitions were untimely filed, and claiming ineffective assistance of counsel, appellant requested leave to file a Motion for Modification of Sentence beyond the ninety-day deadline set out in Maryland Rule 4-345(e)(1). The Rule, in pertinent part, reads as follows: " RULE 4-345. SENTENCING-REVISORY POWER OF COURT (e) Modification Upon Motion. (1) Generally.

Upon a motion filed within 90 days after imposition of a sentence (A) in the District Court, if an ⁶⁸⁵ appeal has not been perfected or has been dismissed, and (B) in a circuit court, whether or not an appeal has been filed, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence." Appellant established that in 2008, he had requested that his trial counsel from the resentencing hearing file a Motion for Modification of Sentence within the ninety-day deadline. His counsel failed to file that would-have-been-timely Motion for Modification of Sentence and, at the postconviction proceeding, counsel provided an affidavit admitting to that error. On February 20, 2013, the circuit court held a hearing on the petitions. On March 20, 2013, the court granted appellant the right to file a belated Motion for Modification of Sentence within ninety days of the order. 1 The court stated as follows: "Petitioner alleges that trial counsel was ineffective for failing to file a motion for modification of sentence.

An attorney appointed to represent a client from the Office of the Public Defender is obliged to provide representation for a motion for modification of sentence. See Md. Rule 4-214(b). Counsel's failure to adhere to a client's request to file a motion for modification of sentence, when statutory provisions and rules expressly extend representation to such a motion, is grounds for the post conviction remedy of permission to file a belated motion for modification of sentence. State v. Flansburg , 345 Md. 694 , 705, 694 A.2d 462 (1997)." On May 24, 2013, appellant, with the assistance of counsel, filed a belated Motion for Modification or Reduction of Sentence.

On May 30, 2013, appellant, without the assistance of counsel, filed a belated Motion for Modification or Reduction of Sentence requesting that the court hold the motion sub ⁶⁸⁶ curia . On January 6, 2014, the court set February 12, 2014, as the date for the Motion for Modification of Sentence hearing. On January 30, 2014, appellant filed a Motion to Postpone Hearing on the sentence modification motion. On January 31, 2014, the court granted appellant's Motion to Postpone Hearing and ordered the Motion for Modification of Sentence to be held sub curia .

On July 24, 2014, appellant filed a Line requesting a hearing on the Motion for Modification. On December 16, 2015, the court issued an "order to show cause" why the court should not dismiss the Motion for Modification of Sentence because "the expiration of the five years from the date the sentence was originally imposed" had passed. ⁵² Rule 4-345(e)(1) states that "the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant." The five-year revisory window in the instant matter would have expired Monday, September 16, 2013, which was five years from the September 15, 2008, execution of the sentence imposition following appellant's probation violation. On January 10, 2017, the court held a hearing on the Show Cause Order. On August 8, 2017, the court dismissed the Motion for Modification, stating as follows: " FOUND that the date the sentence originally was imposed on the defendant is September 15, 2008.

Five years from the date the sentence originally was imposed on the defendant is September 15, 2013; and it is further FOUND Defendant filed for post-conviction relief within five years from the date the sentence originally was imposed on the defendant . Defendant was granted relief and authorized to file a belated motion for modification within five years from the date the sentence originally was imposed on the defendant . Defendant filed a [belated] Motion for Modification or Reduction of Sentence within five years from the date the sentence originally was imposed on the defendant . Defendant failed to request that the Court rule on the [belated] Motion for Modification until almost a year ⁶⁸⁷ after five years from the date the sentence originally was imposed on the defendant ; and it is further FOUND that neither counsel nor the Court could find any authority on point for the issue presented when post-conviction relief grants the petitioner the right to file a belated motion for modification of sentence outside of the five-year statutory limit for sentence modifications.

It would seem that in cases where post-conviction relief is requested after five years from the date the sentence originally was imposed on the defendant , the relief requested being authorization to file a belated motion for modification of sentence, and such relief appropriate, to deny such relief based upon the Rule 4-345(a)(e)(1) limitation, would render the Post Conviction Procedure Act, MD. CODE ANN CRIM. PRO. § 7-101, et . seq . futile. It is well settled that 'an otherwise unresolvable ambiguity in a criminal statute that allows for two possible interpretations of the statute ... [the court] will opt for the construction that favors the defendant.' Oglesby v. State , 441 Md. 673 , 681, 109 A.3d 1147 (2015).

However, that is not the case in the instant matter. Here, Defendant filed for post-conviction relief within the five years from the imposition of a sentence and was granted relief by being authorized to file a belated motion for modification. Defendant filed a belated motion for modification within the five years but did not ask for a hearing before the five year deadline expired . Defendant requested a hearing via a Line, filed July 24, 2014, which was well after the September 15, 2013, expiration date.

Defendant's inability to receive a sentence modification is through no fault or error of the Court, nor ineffective assistance of counsel; it is a result of Defendant failing to avail himself of the opportunity to request such relief within the statutory time limit;" The Uniform Postconviction Procedure Act, Md. Code, Criminal Procedure Article, Title 7, 2 reads in pertinent part as follows: ^{688 53} " § 7-101. Application of title. This title applies to a person convicted in any court in the State who is: (1) confined under sentence of imprisonment; or (2) on parole or probation. § 7-102. Right of convicted person to begin proceeding.

Claims required in order to begin proceeding (a) Subject to subsection (b) of this section, §§ 7-103 and 7-104 of this subtitle and Subtitle 2 of this title, a convicted person may begin a proceeding under this title in the circuit court for the county in which the conviction took place at any time if the person claims that: (1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. Seeking to set aside or correct judgment or sentence and error not finally litigated or waived (b) A person may begin a proceeding under this title if: (1) the person seeks to set aside or correct the judgment or sentence; and (2) the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person's conviction. § 7-103. Filing of petitions One petition for each trial or sentence (a) For each trial or sentence, a person may file only one petition for relief under this title. Time of filing petition ⁶⁸⁹ (b) Unless extraordinary cause is shown, a petition under this subtitle may not be filed more than 10 years after the sentence was imposed." The Court denied the Motion for Modification or Reduction of Sentence.

This timely appeal followed.

II

Before this Court, appellant argues that when a belated Motion for Modification of Sentence is timely filed, Rule 4-345 cannot divest the court of its authority to modify the sentence even if a modification hearing is not held within five years of the original sentencing date. Specifically, appellant contends that a proper