State v. Chertkov

¹⁰⁷ GARRITY, Judge. In this matter, we shall examine whether, without the consent of both parties to a criminal action, a sentencing judge, who has agreed to be bound by a plea agreement, may, after a portion of the sentence has been served, reconsider and alter the sentence. As a result of an extensive criminal investigation involving over $1,000,000 in fraudulent Medicaid payments, appellee-defendant, Lynn S. Chertkov, was charged with one count of misdemeanor Medicaid fraud and one count of conspiracy to commit felony Medicaid fraud. On April 25, 1992, appellee entered pleas to the charges, was convicted on both counts by the Circuit Court for Montgomery County (Mitchell, J.) and was sentenced according to the terms of the plea agreement.

This appeal arises from subsequent revision of the plea agreement by the sentencing judge. ISSUES PRESENTED The following issues will be considered on appeal: 1. Whether the State is entitled to maintain this appeal; 2. Whether the court erred in revising the defendant’s sentence after the defendant had entered into a binding plea agreement.

FACTS Following protracted plea negotiations, the State of Maryland, appellant, and Lynn Chertkov, appellee, executed a pre-indictment plea agreement 1 that provided that appellee would plead guilty and nolo contendere to Medicaid fraud and conspiracy charges, respectively, in Montgomery Coun ¹⁰⁸ ty, and would receive the sentence specified in a written plea agreement. 2 The parties presented the written plea agreement to Judge Mitchell, who subsequently agreed to hear the plea. In open court, the State informed the sentencing judge that the plea agreement contemplated a specific disposition to be ordered by the court. The court advised appellee that the disposition set forth in the plea agreement would be imposed on her if the plea were accepted. Appellee voluntarily and knowingly tendered pleas according to the agreement; the court accepted them and imposed the agreed sentence of three years, with all but 179 days of home detention suspended, 1,500 hours of community service, and five years probation.

Appellee timely filed a Motion for Reconsideration. Upon completion of her period of home detention, she asked the court to rule on that, motion, requesting that the court vacate the convictions in favor of probation before judgment. The State asked the court to uphold the sentence contemplated by the plea agreement, arguing that the agreed sentence was binding upon the parties and the court as a matter of law. The court, agreeing with appellee that reconsideration of sentence without the consent of the State was not barred and that it could exercise revisory power over its sentence, granted appellee’s request by striking the convictions and reducing the sentence of appellee granting probation before judgment.

DISCUSSION OF LAW I. State’s Right to Appeal Dotson v. State, 321 Md. 515 , 583 A.2d 710 (1991), establishes that a binding plea agreement, coupled with Md.Rule 4-243(e)(3), has the force and effect of law. Appel ¹⁰⁹ lant alleges that in this case, by reconsidering and subsequently reducing the sentence, the trial judge failed to sentence appellee pursuant to the binding plea agreement. Thus, appellant asseverates, the sentence was illegal. Appellee asks this Court to dismiss the State’s appeal, contending that the State improperly brought the appeal since the offenses charged do not require specific mandatory sentences by the Code.

We believe that the appellee’s argument in support of dismissal is based on a narrow reading of § 12-302(c)(2) of the Md.Cts. & Jud.Proc. Article. That section holds that an appeal will lie where the trial judge fails to “impose the sentence specifically mandated by the Code.” Appellee’s interpretation of this is that a sentence is not illegal unless the court’s order falls outside the minimum or maximum punishment specified in the statute prohibiting the charged conduct. This is not the status of the law in Maryland.

A sentence does not need to violate an express statutory provision to trigger the State’s appellate rights. Under authority of State v. Cardinell, 90 Md.App. 453 , 601 A.2d 1123 , cert, granted, 327 Md. 129 , 607 A.2d 947 (1992), the State may note an appeal pursuant to Md.Cts. & Jud.Proc. Code Ann. § 12-302(c)(2) if the sentence imposed violates mandatory sentencing provisions of the Code or if the imposition of sentence is not in conformity with the Maryland Rules of Procedure. Thus, we hold that if a sentence is required to be imposed and it is not, then the State may exercise its right to appeal the illegal sentence.

Dotson v. State, supra; State v. Thurmond, 73 Md.App. 686, 536 A.2d 128 (1988).

II

Reconsideration of Sentence Appellee asserts that at common law (now codified in Md.Rule 4-345(b)), a sentencing court had the inherent power to modify its own sentence as long as it did not increase its punishment and acted during the term in which ¹¹⁰ the decision was made. See United States v. Benz, 282 U.S. 304, 306-7 , 51 S.Ct. 113 , —, 75 L.Ed. 354 (1931); Collins v. State, 69 Md.App. 173, 192-93 , 516 A.2d 1015 (1986). The State asseverates on appeal, however, that while the above assertions are generally true, because of the restrictions under which the plea was accepted in accordance with Md.Rule 4-243(a)(6), the trial court is required to impose and uphold a sentence mandated by a binding plea agreement. Although conceding that the appellee is entitled to a hearing on sentence modification, as this particular plea agreement did not expressly prohibit it, the State contends that, without the agreement of both parties, the court erred by reconsidering and reducing appellee’s sentence, which was based on a binding plea agreement.

A plea agreement is a contract between the defendant and the State. Ogonowski v. State, 87 Md.App. 173, 182-83 , 589 A.2d 513 (1991); Rojas v. State, 52 Md.App. 440, 444, 450 A.2d 490 (1982). The conditional obligations between the parties generally involve the defendant waiving his or her right to trial in return for charging and/or sentencing considerations by the State. Custer v. State, 86 Md.App. 196, 199 , 586 A.2d 51 (1991), citing Gray v. State, 38 Md.App. 343, 356 , 380 A.2d 1071 (1977), cert, denied, 282 Md. 732 (1978).

In a refinement of general plea agreement law, Md.Rule 4-243(a)(6) permits the parties to a plea agreement to process a so-called “binding” plea agreement, or one which contemplates “a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule.” Section (c) provides in pertinent part: (1) Presentation to the Court. — If a plea agreement has been reached pursuant to subsection (a)(6) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement ¹¹¹ when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the