Smallwood v. State

Panel: Wright, Beachley, Fader, JJ. Fader, J. ³⁹³ The appellant, Robert P. Smallwood, presents us with the question of whether an incarcerated individual whom a circuit court has determined is imprisoned on an illegal sentence, and thus must be resentenced, has a right to counsel for the resentencing. We hold that he or she does. BACKGROUND In 1982, a jury sitting in the Circuit Court for Baltimore City found Mr. Smallwood guilty of first-degree murder and use of a handgun in the commission of a crime of violence.

After a dialogue in which the court made clear its intent to provide Mr. Smallwood with credit for 72 days he had served while awaiting trial, the court pronounced Mr. Smallwood's sentence on the murder count as "for the term of his natural life less 72 days," concurrent with a sentence of 15 years for the handgun conviction. On direct appeal, we affirmed. Thirty years later, Mr. Smallwood filed a pro se motion to correct an illegal sentence pursuant to Rule 4-345(a) in which he contended that his sentence was "ambiguous, indefinite, and therefore illegal." In a February 2013 hearing, Mr. Smallwood made the somewhat contradictory arguments: (1) that his original sentence of "life less 72 days" was ambiguous and vague; and (2) that the sentence required the State to calculate his remaining life expectancy so that it could set a release date 72 days before his expected death. Although the motions ³⁹⁴ court judge was initially skeptical, she ended up granting his motion. 1 She then, in the same hearing, imposed a new sentence: "Your sentence for the murder, sir, will be life suspend all but 80 years.

And, for the concurrent sentence, it's 15 years and you get credit for the 72 days." The court also added five years' probation to the split sentence. Two other aspects of the relatively brief hearing are noteworthy for our purposes. ¹⁴⁴ First, on two occasions Mr. Smallwood raised his lack of counsel. Early in the hearing, Mr. Smallwood stated: "I'm sorry. I want to apologize, too.

I don't have counsel. I tried to get counsel for years; I couldn't do it. So, I tried to speak as best I could." And just before the court ruled, Mr. Smallwood again addressed his lack of counsel: See, that's why I knew I shouldn't have came back without an attorney. I tried for years to get an attorney.

I already knew this was-this sentence was ambiguous. I knew it was vague. I tried for years to get an attorney; I couldn't put myself in a position to get one, so I decided to come down here anyway because I'm getting-you know, I got 31 years in, so I can't wait any longer. The court did not follow up on either occasion.

Second, after imposing the new sentence, the court requested the assistance of an Assistant State's Attorney not involved in Mr. Smallwood's case to advise Mr. Smallwood of his appeal rights. The prosecutor advised Mr. Smallwood that he had 90 days to file a motion to modify his new sentence and 30 days to ask a three-judge panel to review his new sentence, but that he had no direct appeal right. Neither Mr. Smallwood nor the State took an appeal at that time. ³⁹⁵ More than a year later, in July 2014, Mr. Smallwood filed a pro se postconviction petition challenging the motions court's failure to provide him with counsel or advise him of his right to counsel at resentencing. Mr. Smallwood conceded that he did not have a right to counsel for the presentation of his motion, but argued that once the court found his "sentence illegal, then the only thing to do is impose a new sentence.

And at that new sentencing procedure, I'm saying I should have been advised of my right to an attorney." After the postconviction court raised sua sponte whether Mr. Smallwood's postconviction claim should have been raised on direct appeal, the court learned that Mr. Smallwood had been advised that he had no right to appeal. In supplemental briefing, the State conceded that Mr. Smallwood had a right to direct appeal of his new sentence and suggested that "the appropriate remedy is to allow [Mr. Smallwood] to file a belated appeal." In a written opinion, the postconviction court rejected Mr. Smallwood's right-to-counsel claim. The court held that the right to counsel applies only through direct appeal, and does not extend to collateral proceedings like a motion to correct an illegal sentence. But, noting the State's concession as to Mr. Smallwood's appeal rights, the postconviction court awarded Mr. Smallwood the right to file a belated appeal from the order imposing his new sentence.

Mr. Smallwood's belated appeal is the matter now before us. DISCUSSION Although this matter arises out of a rather complicated procedural history, most of that is irrelevant to the straightforward issue before us: Once a court has granted a motion to correct an illegal sentence, and so is going to impose a new sentence, does the convicted person have a right to counsel? We hold that he or she does. 2 ^{145 396} I. MR. SMALLWOOD'S APPEAL IS PROPERLY BEFORE THIS COURT .

The State raises three arguments as to why we cannot, or should not, address the merits of Mr. Smallwood's right-to-counsel claim in this appeal. 3 First, the State argues that Mr. Smallwood has no right to appeal from the circuit court's grant of his motion to correct an illegal sentence. But Mr. Smallwood appeals from the sentence imposed by the circuit court, not from the grant of his motion. To accept the State's argument would require us to hold that no sentence imposed by a court after granting a motion to correct an illegal sentence could be subject to direct challenge by the convicted person. The State has not pointed us to any authority for that proposition. 4 We rejected a similar ³⁹⁷ argument in Sanders v. State , 105 Md. App. 247 , 659 A.2d 356 (1995).

As with Mr. Sanders in that case, Mr. Smallwood here "is not appealing the grant of the motion to correct an illegal sentence ...." Id. at 253 , 659 A.2d 356 . To the contrary, Mr. Smallwood "is appealing the sentence that resulted from resentencing." Id. ; cf. Hoile v. State , 404 Md. 591 , 619, 948 A.2d 30 (2008) ("The new sentence [imposed after a motion for reconsideration was granted] represents a sentence imposed on [the defendant], and as such, is appealable."); Webster v. State , 359 Md. 465 , 477, 754 A.2d 1004 (2000) ("Assessment of a new sentence resurrects the penalty portion of a judgement; it replaces the prior sentence.... Thus, the sentence imposed as a result of the granting of the motion for reconsideration is the appealable order ...."). Second, the State contends that because Mr. Smallwood did not argue below that he had a right to counsel at his resentencing, "there is, technically speaking, no circuit-court ruling denying Smallwood's counsel-related claims." Although Mr. Smallwood did not expressly argue that he had a right to have counsel present, he did twice call to the motions court's attention his desire to have counsel present.

On neither occasion did the court ask a question. Moreover, if Mr. Smallwood did not preserve the issue, it is likely because he lacked the assistance of counsel to help him recognize the need to do so. Indeed, ¹⁴⁶ the right to counsel is important precisely because it "seeks to protect a defendant from the complexities of the legal system and his or her lack of understanding of the law." Brye v. State , 410 Md. 623 , 634, 980 A.2d 435 (2009). For that reason, courts are required to ensure that any waiver of the right is knowing and voluntary: the right to counsel is "absolute and can only be foregone by the defendant's affirmative 'intelligent and knowing' waiver." Robinson v. State , 410 Md. 91 , 107, 976 A.2d 1072 (2009). 5 "A defendant's actual incarceration in a jail, as a result ³⁹⁸ of a proceeding at which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel, is fundamentally unfair." DeWolfe v. Richmond , 434 Md. 444 , 460, 76 A.3d 1019 (2013) (" DeWolfe II ") (quoting Rutherford v. Rutherford , 296 Md. 347 , 360-61, 464 A.2d 228 (1983) ) (emphasis removed).

Additionally, "if the right upon which the allegation is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding." Wyche v. State , 53 Md. App. 403 , 407, 454 A.2d 378 (1983). Because the right to counsel is fundamental, it "may be waived only where the petitioner intelligently and knowingly effects the waiver." Id. Mr. Smallwood certainly made no such waiver here. For these reasons, even if not preserved, we would choose to exercise our discretion under Rule 8-131(a) to consider Mr. Smallwood's claim.

Third, the State argues that Mr. Smallwood's right-to-counsel claim would more appropriately be considered in an appeal from the denial of Mr. Smallwood's postconviction petition, consideration of which this Court has stayed pending the resolution of this direct appeal. We see no reason to further postpone resolution of the important issue raised here to await that collateral challenge. Cf. Greco v. State , 427 Md. 477 , 503-04, 48 A.3d 816 (2012) (stating that the fact that the same issue was raised in a separate proceeding in the Court of ³⁹⁹ Special Appeals was not a reason to decline review, but instead "lends support for this Court to review the challenge to the sentence without further delay, for the purpose of efficiency and complete resolution").

The issue has been fully briefed, presented, and argued here. We also have the benefit of the record before the postconviction court and of that court's analysis. Finding no impediment to our consideration of Mr. Smallwood's challenge, we proceed to the merits.

II

THE PROCEEDING IN QUESTION WAS A SENTENCING . A central point of dispute between the State and Mr. Smallwood is over how we should view the part of the proceeding ¹⁴⁷ below in which the motions court imposed a new sentence on Mr. Smallwood. According to the State, the imposition of a new sentence was simply a non-severable part of the proceedings on Mr. Smallwood's motion to correct an illegal sentence. Thus, the State contends, it was not really a sentencing at all.

Case law stating that convicted persons have no right to counsel in collateral proceedings generally, and no right to counsel to bring motions to correct illegal sentences in particular, is therefore dispositive. Mr. Smallwood, on the other hand, views the imposition of his new sentence as analytically distinct from the decision to grant his motion. He concedes that he had no right to counsel in preparing or arguing his motion to correct an illegal sentence. He argues, however, that once the court granted that motion, and thus was required to impose a new sentence, what followed was a sentencing.

We agree with Mr. Smallwood. As a practical matter, it cannot seriously be disputed that the court imposed a new sentence. After granting his motion, the court declared that Mr. Smallwood's "sentence for the murder ... will be life suspend all but 80 years." The court thus imposed on Mr. Smallwood a new sentence for the crimes of which he had been convicted 30 years earlier. It is also clear that the judge understood that she had just imposed a new sentence, as she ⁴⁰⁰ requested the assistance of an Assistant State's Attorney to advise Mr. Smallwood of certain rights that follow imposition of a sentence.

See Rule 4-345(e) (stating that court has revisory power over a sentence upon "a motion filed within 90 days after imposition of a sentence"); Rule 4-344(a) (allowing defendant to seek review of sentence by three-judge panel when an application is filed "within 30 days after the imposition of sentence"). Although not the first sentence imposed, a resentencing is a sentencing. Jones v. State , 414 Md. 686 , 694, 997 A.2d 131 (2010). Additionally, in imposing the new sentence, the court did not merely correct a technical error in the prior sentence or comply with an appellate mandate to enter a particular sentence; the new sentence was both materially different and an exercise of the court's discretion.

Whether the old sentence was life, with no part of it suspended (but with credit for 72 days' time served)-as the State had claimed-or life, with 72 days suspended-as Mr. Smallwood claims to have understood it-both are different from a sentence of life suspend all but 80 years, with five years' probation. 6 We again find Sanders instructive. There, the circuit court had granted Mr. Sanders's Rule 4-345(a) motion, concluding that his original 20-year sentence for a handgun violation was illegal because the maximum possible sentence was 15 years. 105 Md. App. at 249 -50 , 659 A.2d 356 . At a resentencing proceeding that occurred nine years after the original sentencing, a different judge imposed the maximum 15-year sentence, ⁴⁰¹ believing himself bound by the determinations of the original judge ¹⁴⁸ and thus unable to consider subsequent developments. Id. at 251 , 659 A.2d 356 .

We vacated and remanded. We observed that "whether a sentence is found to be illegal on appeal or by the trial court directly, the result is that a new sentence must be imposed," and the rules for such resentencings are not different. Id. at 253 , 659 A.2d 356 . The trial court thus erred by restricting its review to only the information available at the initial sentencing because "[t]he law requires the [resentencing] judge to conduct his own inquiry and to reach his own sentence based upon the evidence before him." Id. at 257 , 659 A.2d 356 ; see Jones , 414 Md. at 703 , 997 A.2d 131 (stating that the Court "agree[s] with the reasoning of Sanders "). 7 Under Sanders , the portion of the proceeding that followed the court's decision to grant Mr. Smallwood's motion became a sentencing.

That the court imposed the new sentence after granting a motion to correct an illegal sentence-as opposed to initially, on remand, on reconsideration, on a motion for modification, after postconviction relief, or otherwise-does ⁴⁰² not make it less of an imposition of a sentence. Our courts have similarly recognized that sentences imposed after granting other collateral motions "constitute[ ] the imposition of a new sentence." Hoile , 404 Md. at 614 , 948 A.2d 30 (concluding that sentence imposed after granting motion for modification was an appealable final judgment); see also Webster , 359 Md. at 477 , 754 A.2d 1004 ("Here, the collateral motion, the motion for reconsideration, was granted, and resulted in the imposition of a new sentence."). For the same reason, we find inapposite Grandison v. State , 425 Md. 34 , 38 A.3d 352 (2012), and other cases cited by the State that address the bringing of collateral petitions.

III

MR. SMALLWOOD HAD A RIGHT TO COUNSEL FOR RESENTENCING. We now turn to whether a convicted person has the right to counsel at the imposition of a sentence after a determination that the prior sentence was illegal. Our courts have identified two different sets of constitutional sources for the right to counsel.

First, "[t]he Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration." Rutherford , 296 Md. at 357 , 464 A.2d 228 . Under these provisions, "[a]s a general proposition, courts have deemed ¹⁴⁹ the assistance of counsel an indispensable and basic right whenever a particular stage or proceeding in the criminal justice process qualifies as 'critical.' " Utt v. State , 293 Md. 271 , 274, 443 A.2d 582 (1982). "The underlying policy, in a nutshell, is that 'essential fairness is lacking if an accused cannot put his case effectively in court,' and that the accused most likely will be unable to present an effective defense without the aid of counsel." Id. at 275 , 443 A.2d 582 (quoting State v. Renshaw , 276 Md. 259 , 265, 347 A.2d 219 (1975) ). Second, "[u]nder certain circumstances, the requirements of due process include a right to counsel, with appointed counsel for indigents, in civil cases or other proceedings not constituting critical stages of criminal trials." ⁴⁰³ Rutherford , 296 Md. at 358 , 464 A.2d 228 .

Under Article 24 of the Maryland Declaration of Rights, 8 "indigent defendants ha[ve] a due process right to state-furnished counsel in any proceeding involving incarceration." DeWolfe II , 434 Md. at 459 , 76 A.3d 1019 ; id. at 461-62 , 76 A.3d 1019 (citing cases in which the Court has "reaffirmed that the right attaches in any proceeding that may result in the defendant's incarceration"). "As repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents." Rutherford , 296 Md. at 361 , 464 A.2d 228 . The due process protections of Article 24 "are broader than those found in the United States Constitution" and broader than those contained in Article 21. DeWolfe II , 434 Md. at 457 n.9, 460-61, 76 A.3d 1019 .

A. Sentencing Is a Critical Stage. The Supreme Court's jurisprudence regarding the right to counsel at sentencing has evolved in stages. In Townsend v. Burke , a decision that predates the Supreme Court's application of the Sixth Amendment as against the States, the Court found a due process violation when the absence of counsel led to a sentencing decision that was premised on false assumptions. 334 U.S. 736 , 740, 68 S.Ct. 1252 , 92 L.Ed. 1690 (1948). There, the petitioner had been arrested one day, pleaded guilty the next, and was sentenced the day after that.

Id. at 737 , 68 S.Ct. 1252 . During that time, he was denied contact with anyone other than a ten-minute conversation with his wife. Id. at 737-38 , 68 S.Ct. 1252 . At sentencing, the judge listed, and appeared to base his decision on, a number of assumptions about the petitioner's criminal history that turned out to be false.

Id. at 739-40 , 68 S.Ct. 1252 . The Supreme Court observed that, had counsel been present, he "would have been under a duty to prevent the court from ⁴⁰⁴ proceeding on such false assumptions and perhaps under a duty to seek remedy elsewhere if they persisted." Id. at 740 , 68 S.Ct. 1252 . The Court found that the combination of the "extensively and materially false" evidentiary foundation and the absence of counsel "render[ed] the proceedings lacking in due process." Id. at 741 , 68 S.Ct. 1252 . In Gideon v. Wainwright , 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), the Court extended the right to counsel to "every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." ¹⁵⁰ Mempa v. Rhay , 389 U.S. 128 , 134, 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967). 9 In Mempa , the Court considered its pre- Gideon case law regarding the right to counsel at sentencing in light of this new Gideon framework.

In that context, the Court found Townsend particularly instructive, observing that it "illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing." Mempa , 389 U.S. at 134 , 88 S.Ct. 254 . The Court then applied the lessons of Townsend and other precedents to the challenge before it. The State of Washington sentencing scheme at issue in Mempa allowed sentencing to be deferred pending completion of periods of probation. Id. at 130 , 88 S.Ct. 254 .

If a defendant violated probation, however, the court was required to impose the maximum sentence allowed by law for whatever crime was at issue. Id. at 135 , 88 S.Ct. 254 . The only discretion the court had was that it could recommend that the parole board approve release after a certain period of time. Id.

Mr. Mempa, convicted of joyriding, originally received a sentence of 30 days' incarceration, deferred to follow two years' probation. ⁴⁰⁵ Id. at 130 , 88 S.Ct. 254 . When the court revoked his probation several months later, without counsel present, the court immediately sentenced Mr. Mempa to ten years' imprisonment, with a recommendation that the parole board release him after a year. Id. at 131 , 88 S.Ct. 254 . The State argued that Mr. Mempa was not entitled to counsel at his sentencing upon revocation of probation because, with the trial court bound to sentence Mr. Mempa to the maximum possible sentence, that resentencing was "a mere formality constituting part of the probation revocation proceeding." Id. at 135 , 88 S.Ct. 254 .

The Supreme Court disagreed. Although the trial court had to impose the maximum possible sentence, it did still have discretion to make a release recommendation on which the parole board placed "considerable weight." Id. Thus, "the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent." Id. However, "[e]ven more important" to the Court was "the fact that certain legal rights," including the right to take an appeal, "may be lost if not exercised at this stage." Id. at 135-36 , 88 S.Ct. 254 .

Thus, the Court held, "a lawyer must be afforded at this proceeding." Id. at 137 , 88 S.Ct. 254 . Subsequently, in Gardner v. Florida , a plurality of the Court observed that although a "defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel." 430 U.S. 349 , 358, 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977) ; see Catala v. State , 168 Md. App. 438 , 468-69, 897 A.2d 257 (2006) (holding that a defendant who appears without counsel at sentencing must be given opportunity to explain why). That is because "[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of ¹⁵¹ the sentencing process." Gardner , 430 U.S. at 358 , 97 S.Ct. 1197 . ⁴⁰⁶ From these cases we glean the following: (1) sentencing is a critical stage of a criminal proceeding at which the right to counsel attaches; (2) the right attaches because (a) the results of a sentencing can affect the fact and duration of a defendant's incarceration, and (b) counsel can both assist a defendant in presenting his or her case and ensure that the defendant receives due process; and (3) the right applies even when the sentencing court has minimal discretion. The State points out, accurately, that these cases have generally addressed the right to counsel at an initial sentencing, not a resentencing after the grant of collateral relief.

We now address whether that difference should cause us to reach a different conclusion. B. Resentencing Is a Critical Stage. 10 We see no ground for distinguishing a resentencing such as that here from a sentencing when it comes to the application of the right to counsel. A resentencing, like a sentencing, involves the imposition of a sentence, and can alter both the fact and duration of a defendant's incarceration. See Sanders , 105 Md. App. at 253 -54 , 659 A.2d 356 .

Counsel at resentencing, as at sentencing, can provide assistance to the defendant and ensure that the defendant receives due process. Townsend , 334 U.S. at 740 -41 , 68 S.Ct. 1252 . And trial courts generally have wide discretion in imposing a new sentence, as ⁴⁰⁷ they have when imposing an initial sentence. Jones , 414 Md. at 693 , 997 A.2d 131 .

Although no Maryland appellate court has yet addressed this issue directly, our preliminary conclusion that the right to counsel applies on resentencing finds strong support in Bartholomey v. State , 267 Md. 175 , 297 A.2d 696 (1972). There, the Court of Appeals considered the fate of death penalty cases in light of Furman v. Georgia , 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), in which the Supreme Court concluded that certain discretionary death penalty statutes violated the Eighth Amendment to the United States Constitution. The Court of Appeals first determined that the Supreme Court's decision necessarily invalidated all of the death sentences before it and, as a result, that each convicted individual would need to be resentenced. Id. at 184, 297 A.2d 696 .

Because different cases were (or, as we shall see, were not) before it in different procedural contexts, the Court addressed them separately. Two of those cases are