State v. Bustillo

State of Maryland v. Juan Pablo Bustillo, No. 56, September Term 2021. Opinion by Gould, J. SENTENCING AND PUNISHMENT---PROBATION A trial court’s failure to articulate the duration of the defendant’s probation, as required by Maryland Rule 4-346(a), is a procedural error that must be raised at the trial level. SENTENCING AND PUNISHMENT---ILLEGAL SENTENCE A trial court did not impose an illegal sentence under Rule 4-346(a) when it failed to articulate the duration of the defendant’s probation. Circuit Court for Prince George’s County Case No.: CT181511X Argued: April 8, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 56 September Term, 2021 STATE OF MARYLAND v. JUAN PABLO BUSTILLO *Getty, C.J., Watts, Hotten, Booth, Biran, Gould, McDonald, Robert N.

(Senior Judge, Specially Assigned) JJ. Opinion by Gould, J. Filed: August 24, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while an active member of this Pursuant to Maryland Uniform Electronic Legal Court. After being recalled pursuant to Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Md. Const., Art. IV, § 3A, he also 2022-08-24 participated in the decision and adoption of 14:56-04:00 this opinion.

Suzanne C. Johnson, Clerk This case requires us to determine whether an error made during the sentencing of a defendant rendered the resulting sentence illegal. Here, the sentencing court imposed a split sentence of 25 years, suspending five years. Although the court mentioned probation and referenced “conditions of probation,” it failed to advise the defendant of the duration of probation, as required by Maryland Rule 4-346(a). The court did, however, include the duration, a five-year term, and conditions of probation in the probation order that the defendant and his counsel signed prior to leaving the courtroom.

The defendant appealed, alleging the sentence was illegal. The Court of Special Appeals reversed in a reported decision, holding that the violation of Rule 4-346(a) rendered the sentence illegal, and remanded the case to the circuit court to, among other things, strike the five-year probation from the sentence. For the reasons that follow, we respectfully disagree with the Court of Special Appeals and hold that the violation of Rule 4-346(a) was a procedural defect in the sentencing proceeding that did not render the sentence illegal. BACKGROUND The Sentence On November 20, 2018, Juan Pablo Bustillo was indicted in the Circuit Court for Prince George’s County for sexually abusing his daughter from the time she was nine until she was 15, and for other related offenses.

On October 16, 2019, he was convicted of sexual abuse of a minor, third-degree sexual offense, and second-degree assault. At his sentencing, both sides sought a split sentence that included a period of probation. The State requested a sentence of 45 years, with all but 25 years suspended, plus five years of supervised probation.1 Defense counsel asked the court to sentence Mr. Bustillo “to a period of probation, suspending . . . all but three or four years.” The trial court announced Mr. Bustillo’s sentence as follows: THE COURT: . . . with respect to child abuse -- sexual child abuse, the Court will impose a sentence of 25 years’ incarceration, suspend all but 20 years, give you credit for 447 days already served. Just so the record is clear, I am going two years above guidelines due to the nature and circumstances of the offense at hand.

With respect to sex offense in the third degree, the Court will impose a sentence of ten years’ incarceration, suspend all but two years to run concurrent to the sentence imposed for – [THE STATE]: I believe it’s Count Four. THE COURT: -- for Count One. With respect to Count Four, second degree assault, the Court will impose a sentence of ten years’ incarceration, suspend all but six months to run concurrent to the sentence imposed in Count One and Count Three. As conditions of probation, we will mandate that the defendant register as a lifetime sexual offender.

We will also order that the defendant participate in the Sex Offender Program as needed by Parole and Probation. We will also order that the defendant have no contact -- excuse me, no contact with his daughter, . . . and no contact with -- what’s the mother’s name? [DEFENSE COUNSEL]: I. D. THE COURT: -- with Ms. D. We will also order that the defendant undergo drug and alcohol evaluation and treatment as deemed appropriate by Parole and Probation. [THE STATE]: And the lifetime supervision, Your Honor. THE COURT: Lifetime supervision, also. 1 The State did not specify how the 45-year recommended sentence should have been allocated across the three counts on which Mr. Bustillo was convicted. 2 The court did not state the length of Mr. Bustillo’s probation. The court explained to Mr. Bustillo his appeal rights and told him: “You do have some paperwork that you need to sign, so just have a seat.” The sentencing judge then signed and issued a written probation order.

Mr. Bustillo and defense counsel both signed the order, the latter as a witness to the former’s signature.2 The order stated that Mr. Bustillo was sentenced to supervised probation for five years, beginning upon his release, and contained various terms and conditions, including that he was required to attend alcohol and drug treatment, have no contact with the victim or her mother, and complete a sexual assault treatment program through the parole and probation department. Court of Special Appeals Mr. Bustillo noted a timely appeal to the Court of Special Appeals and raised two issues, only the second of which is relevant here. Mr. Bustillo argued that because the sentencing judge never articulated that he “would have to serve a specific period of probation when he finished his period of incarceration[,]” the inclusion of five years of probation on the docket entries, commitment record, and probation order were illegal. Mr. Bustillo contended that those documents required correction to reflect that the sentencing court did not order probation. 2 Though illegible, we compared the signature of the “witness” on the probation order to a signature by defense counsel on one of his court filings in this case, and it appears that they were both signed by the same person. [See Appendix] 3 Mr. Bustillo asserted that because the sentence articulated at the hearing controls, and the sentencing court did not impose a term of probation, he was not sentenced to probation.

Citing to Robinson v. Lee, 317 Md. 371, 379-80 (1989), and Maryland Rule 4- 346(a),3 Mr. Bustillo further argued that because he had the right to be accurately apprised of his sentence at the sentencing hearing, the subsequent addition of probation violated his right to fundamental fairness. The State argued that Mr. Bustillo was not entitled to raise this issue on appeal because he failed to preserve it in the circuit court. According to the State, there are limited exceptions to the preservation requirement, and this was not one of them because the court’s failure to specify the duration of probation was a mere procedural error that did not render Mr. Bustillo’s sentence “inherently illegal.” The Court of Special Appeals reversed, holding that the trial court “illegally increased [Mr. Bustillo’s] sentence by adding a five-year period of probation.” Juan Pablo B. v. State, 252 Md. App. 624 , 628 (2021). The Court first determined that the transcript from the sentencing hearing, which did not indicate that Mr. Bustillo’s sentence included a five-year term of probation, conflicted with the probation order, which clearly reflected this term.

Id. at 639 . The Court noted that the trial court violated Rule 4-346(a), for failing 3 Rule 4-346(a) provides: When placing a defendant on probation, the court shall advise the defendant of the conditions and duration of probation and the possible consequences of a violation of any of the conditions. The court also shall file and furnish to the defendant a written order stating the conditions and duration of probation. 4 to advise the defendant of the conditions and duration of probation in open court, and that the court compounded its error by failing to comply with the procedure for correcting mistakes in the sentencing, as outlined in Rule 4-345(c).4 Id. at 641-42 . The Court next addressed whether the two Rule violations resulted in an inherently illegal sentence, as argued by Mr. Bustillo, or constituted a procedural error, as argued by the State.

The Court observed that inherently illegal sentences generally come in three varieties: (1) a sentence that exceeds the statutory maximum, id. at 642 (citing Carlini v. State, 215 Md. App. 415, 427 (2013)), or is less than the required minimum, id. at 642 (citing Hoile v. State, 404 Md. 591, 620 (2008)); (2) a sentence that “never should have been imposed,” id. at 642 (quoting Johnson v. State, 427 Md. 356, 368-69 (2012)); or (3) a sentence that exceeds the cap imposed by a binding plea agreement, id. at 642 (citing Matthews v. State, 424 Md. 503, 518-19 (2012)). The Court noted, however, that it is “less clear whether a sentence imposed in violation of a mandatory Maryland Rule likewise is inherently illegal.” Id. at 642-43 . In analyzing this issue, the Court reviewed three cases involving the failure to comply with Rule 4-245(b) in the imposition of enhanced sentences: Armstrong v. State, 69 Md. App. 23 (1986); Carter v. State, 319 Md. 618 (1990); and Bailey v. State, 464 Md. 685 (2019). Juan Pablo B., 252 Md. App. at 643-44.

The Court also discussed cases involving sentences in violation of binding plea agreements—Dotson v. State, 321 Md. 515 4 Rule 4-345(c) provides: “The court may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding.” 5 (1991); Cuffley v. State, 416 Md. 568 (2010); Baines v. State, 416 Md. 604 (2010); and Matthews v. State, 424 Md. 503 (2012). Juan Pablo B., 252 Md. App. at 645-46. From its analysis of these two lines of cases, the Court concluded that “generally, but not always, sentences that are imposed in violation of a mandatory Maryland rule are inherently illegal.” Id. at 646. In determining whether that general rule should apply to Mr. Bustillo’s sentencing, the Court focused its analysis on Jones v. State, 384 Md. 669 (2005) and Montgomery v. State, 405 Md. 67 (2008).

Juan Pablo B., 252 Md. App. at 646. Based on its review of these cases, the Court concluded that the duration of a term of probation is an integral part of a sentence, that a defendant has the right to rely upon the sentence announced orally by the trial court, and that, therefore, the trial court’s failure to specify the term of Mr. Bustillo’s probation, in violation of Rule 4-346(a), resulted in an illegal sentence. Id. at 650-51. The Court concluded that, under Cathcart v. State, 397 Md. 320, 330 (2007), the unsuspended part of the sentence—the 20 years—was the effective sentence.

Juan Pablo B., 252 Md. App. at 651-52. Observing that the “resulting sentence is a 20-year flat sentence on the flagship charge, and concurrent terms of two years’ imprisonment for third- degree sexual offense and six months of imprisonment for second-degree assault,” the Court remanded the case for resentencing. Id. at 652 n.24. Petition for Certiorari The State filed a petition for certiorari, which we granted.

State v. Bustillo, 477 Md. 150 (2022). 6 The State presents us with one question: Did the Court of Special Appeals err in holding that a sentencing court’s failure to comply with Maryland Rule 4-346(a) when imposing a period of probation results in an “illegal sentence” within the meaning of Maryland Rule 4-345(a)? Notwithstanding the compelling analysis of the intermediate appellate court to the contrary, we agree with the State that the errors committed by the trial court did not result in the imposition of an illegal sentence. Accordingly, we reverse. DISCUSSION The Parties’ Contentions The State reiterates its argument that Mr. Bustillo was barred from arguing that probation was improper.

In support of its argument, the State cites Maryland Rule 8- 131(a), which provides that appellate courts do not address issues that were neither raised nor decided in the trial court, and Rule 4-323(c), which requires parties to inform the court of “the action that the party desires the court to take or the objection to the action of the court[.]” The State also cites Rule 4-345(a), which grants the court authority to “correct an illegal sentence at any time” and argues that the Rule is a rare and narrow exception to the preservation requirements. The State maintains that Rule 4-345(a) is limited to correcting sentences that are “inherently illegal,” not procedural errors in the sentencing process. And because the error here was of the latter variety, it provides Mr. Bustillo no basis for relief. Mr. Bustillo argues that the court’s failure to inform him of the duration of his probation at sentencing resulted in “fundamental unfairness” and failed to “put[] the 7 correctional authorities on notice as to their role in overseeing the sentence.” As a result, he argues, the court lacked the authority to impose a period of probation because it failed to provide both the duration and the terms of probation, as required by Rule 4-346(a).

He maintains that his sentence was therefore inherently illegal, and, to the extent the court attempted to fix its violation of Rule 4-346(a) by providing such information in the probation order, that action was inadequate because the court failed to comply with the requirements imposed by Rule 4-345(c) for fixing “evident mistake[s] in the announcement of a sentence[.]” Mr. Bustillo further contends that because conflicts between the transcript of the sentencing hearing and docket entries and/or commitment records are resolved in favor of the transcript unless the transcript is shown to be in error, “there is no reason why transcripts should not also take precedence over probation orders.” Therefore, he contends, “issuing a probation order (and other documents) that went beyond the sentence imposed on the record conflicted with the general rule that statements made on the record in the transcript control the nature of the imposed sentence.” Further, Mr. Bustillo maintains that Rule 4-346(a) cannot be read in isolation from sections 6-221 and 6-222 of the Criminal Procedure Article (“CP”) of the Maryland Code (2001, 2018 Repl. Vol.), which establish the court’s authority to impose probation and split sentences. Construed in this light, Mr. Bustillo contends that the court lacked authority to: (1) impose a probation period that exceeded five years, see Kupfer v. State, 287 Md. 540, 543 (1980); (2) impose probation in the absence of a split sentence, see Laurie v. State, 29 Md. App. 609 (1976); and (3) impose an indeterminate sentence, see id. Because under 8 Cathcart v. State, 397 Md. 320 (2007), the remedy for failing to impose an actual term of probation when purporting to suspend a part of the sentence is to vacate the probation term and treat the unsuspended part of the sentence as the effective sentence, Mr. Bustillo argues that his sentence should not include any probation.

Mr. Bustillo further contends that the mention of “conditions of probation” during his sentencing hearing did not unambiguously impose a term of probation as required under CP § 6-221 because, as the Court of Special Appeals observed, “the sentencing court did not clearly differentiate between probation and lifetime supervision” and each of the conditions of supervision mentioned by the court on the record were likewise permissible conditions under CP § 11-723. Accordingly, Mr. Bustillo argues that the Court correctly held that the “transcript was ambiguous as to whether [Mr. Bustillo] was fully aware that he was being sentenced to probation in addition to the conditions imposed under CP § 11- 723.”5 5 CP § 11-723 provides: Persons subject to lifetime sexual offender supervision (a) Except where a term of natural life without the possibility of parole is imposed, a sentence for the following persons shall include a term of lifetime sexual offender supervision: (1) a person who is a sexually violent predator; (2) a person who has been convicted of a violation of: (i) § 3-303 or § 3-304 of the Criminal Law Article; or (ii) § 3-305 or § 3-306(a)(1) or (2) of the Criminal Law Article as the sections existed before October 1, 2017; (3) a person who has been convicted of a violation of § 3-309 or § 3-310 of the Criminal Law Article, § 3-311 of the Criminal Law Article as the section existed before October 1, 2017, or an attempt to commit a 9 violation of § 3-306(a)(1) or (2) of the Criminal Law Article as the section existed before October 1, 2017; (4) a person who has been convicted of a violation of § 3-602 of the Criminal Law Article involving a child under the age of 12 years; (5) a person who is required to register under § 11-704(c) of this subtitle; and (6) a person who has been convicted more than once arising out of separate incidents of a crime that requires registration under this subtitle. Sentences including lifetime sexual offender supervision (b) Except where a term of natural life without the possibility of parole is imposed, a sentence for a violation of § 3-307(a)(1) or (2) of the Criminal Law Article may include a term of lifetime sexual offender supervision. Term and commencement of lifetime sexual offender supervision (c)(1) Except as provided in paragraph (2) of this subsection, the term of lifetime sexual offender supervision imposed on a person for a crime committed on or after October 1, 2010, shall: (i) be a term of life; and (ii) commence on the expiration of the later of any term of imprisonment, probation, parole, or mandatory supervision.

(2) For a person who is required to register under § 11-704(c) of this subtitle, the term of lifetime sexual offender supervision imposed for an act committed on or after October 1, 2010, shall: (i) commence when the person’s obligation to register commences; and (ii) expire when the person’s obligation to register expires, unless the juvenile court: 1. finds after a hearing that there is a compelling reason for the supervision to continue; and 2. orders the supervision to continue for a specified period of time. Presentence investigations and risk assessments done prior to imposing special conditions to supervision (d)(1) For a sentence that includes a term of lifetime sexual offender supervision, the sentencing court, or juvenile court in the case of a person who is required to register under § 11-704(c) of this subtitle, shall impose 10 By failing to clearly place him on probation, and by then purporting to do so through the probation order, commitment record, and docket entries, Mr. Bustillo maintains, the sentencing court violated Rule 4-346(a). Additionally, by waiting until after the sentencing hearing to impose probation in the probation order, Mr. Bustillo argues, the court exceeded special conditions of lifetime sexual offender supervision on the person at the time of sentencing, or imposition of the registration requirement in juvenile court, and advise the person of the length, conditions, and consecutive nature of that supervision. (2) Before imposing special conditions, the sentencing court or juvenile court shall order: (i) a presentence investigation in accordance with § 6-112 of the Correctional Services Article; and (ii) for a sentence for a violation of § 3-307(a)(1) or (2) of the Criminal Law Article, a risk assessment of the person conducted by a sexual offender treatment provider.

(3) The conditions of lifetime sexual offender supervision may include: (i) monitoring through global positioning satellite tracking or equivalent technology; (ii) where appropriate and feasible, restricting a person from living in proximity to or loitering near schools, family child care homes, child care centers, and other places used primarily by minors; (iii) restricting a person from obtaining employment or from participating in an activity that would bring the person into contact with minors; (iv) requiring a person to participate in a sexual offender treatment program; (v) prohibiting a person from using illicit drugs or alcohol; (vi) authorizing a parole and probation agent to access the person’s personal computer to check for material relating to sexual relations with minors; (vii) requiring a person to take regular polygraph examinations; (viii) prohibiting a person from contacting specific individuals or categories of individuals; and (ix) any other conditions deemed appropriate by the sentencing court or juvenile court. (4) The sentencing court or juvenile court may adjust the special conditions of lifetime sexual offender supervision, in consultation with the person's sexual offender management team. 11 its authority under CP § 6-221. Thus, Mr. Bustillo maintains, the Court of Special Appeals correctly vacated the five-year probation period, resulting in a “flat, term-of-years sentence[].” Analysis A Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any time.” The phrase “at any time” means that the preservation requirements do not apply to challenges to illegal sentences; that is, the court’s authority to correct an illegal sentence exists even if the defendant failed to object in the trial court at the sentencing hearing or raise the issue in a direct appeal. Bailey v. State, 464 Md. 685, 696 (2019).

Indeed, the only temporal limitation on “at any time” is that the correction must occur before the sentence is fully served. Barnes v. State, 423 Md. 75, 86 (2011).6 Lest Rule 4-345(a) swallow up the preservation requirement, the scope of the court’s authority under this Rule is “narrow.” Bailey v. State, 464 Md. 685, 697 (2019) (citation omitted). The Rule is designed to correct “inherently illegal” sentences, not sentences resulting from “procedural error[s].” Id. at 696 (citing Colvin v. State, 450 Md. 718, 728 (2016)). Thus, “only claims sounding in substantive law, not procedural law, may be raised through a [Maryland] Rule 4-345(a) motion.” Id.

(quoting Colvin, 450 Md. at 728 ). “[T]he 6 A defendant may invoke Rule 4-345(a) in a motion to correct sentence in the trial court, on direct appeal, or “collaterally and belatedly[.]” Chaney v. State, 397 Md. 460, 466 (2007). The denial of a motion in the trial court is appealable. Id. 12 illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.” Matthews v. State, 424 Md. 503, 512 (2012). Accordingly, “a trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful.” Montgomery v. State, 405 Md. 67, 74-75 (2008) (citation omitted).

Additionally, whether a sentence is illegal for purposes of Rule 4-345(a) is a question of law that we review without deference to either the trial or intermediate appellate courts. Bailey, 464 Md. at 696 . As this Court has stated: We have consistently defined this category of “illegal sentence” as limited to those situations in which the illegality [of the sentence] inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful. Chaney, 397 Md. at 466 (emphasis added).

B Mr. Bustillo does not dispute that the inquiry under Rule 4-345(a) is whether the court had the inherent authority to impose the sentence. And he does not contend that a 25-year sentence with 5 years suspended, coupled with a 5-year probation, was not within the court’s authority. Rather, he contends that the court lacked authority “to place someone on probation without actually informing them that they are being placed on probation or without indicating the duration on the record.” 13 When a sentencing court sentences a defendant “for a crime that carries a prison sentence[,]” the court has the discretion to choose among four options.7 Cathcart, 397 Md. at 326 . The option relevant here derives from CP § 6-222(a), which provides the authority for a sentencing court to impose what is known as a “split sentence.”8 7 There are four options available to a court sentencing a defendant for a crime that carries a prison sentence: (1) the court may impose up to the maximum allowable sentence, and if the court does not indicate anything to the contrary, the defendant serves the entire sentence, subject to any earlier release only through parole, a pardon, or credit against the sentence; (2) the court may suspend the imposition or execution of a sentence and place the defendant on probation; (3) the court may impose a split sentence, where the defendant is sentenced to the full sentence the court intends to impose, and the court orders that (a) the defendant be incarcerated for only a portion of the sentence, (b) the remainder of the sentence is suspended, and (c) the defendant is placed on probation for a specific term; and (4) the court may impose a period of imprisonment as a condition of probation.

Cathcart v. State, 397 Md. 320, 326-27 (2007). 8 Section 6-222(a) provides: A circuit court or the District Court may: (1) impose a sentence for a specified time and provide that a lesser time be served in confinement; (2) suspend the remainder of the sentence; and (3) (i) order probation for a time longer than the sentence but, subject to subsections (b) and (c) of this section, not longer than: 1. 5 years if the probation is ordered by a circuit court; or 2. 3 years if the probation is ordered by the District Court; or (ii) if a defendant convicted of sexual abuse of a minor under § 3- 602 of