State v. Day

State of Maryland v. James Kareen Day, No. 67, September Term, 2019 INEFFECTIVE ASSISTANCE OF COUNSEL – MOTION FOR MODIFICATION OF SENTENCE – MARYLAND RULE 4-345(e) – REMAND – MARYLAND RULE 8-604(d) – Court of Appeals concluded that case potentially presented issue of whether petitioner for postconviction relief seeking right to file belated motion for modification of sentence pursuant to Maryland Rule 4-345(e) based on ineffective assistance of counsel must establish that he or she timely requested that trial counsel file such motion. As such, Court of Appeals determined that case potentially involved issue of whether State v. Adams, 171 Md. App. 668 , 912 A.2d 16 (2006), aff’d in part and rev’d in part, 406 Md. 240 , 958 A.2d 295 (2008), stands for proposition that to establish ineffective assistance of counsel postconviction petitioner need not demonstrate that request to file motion for modification of sentence was made, and whether this is good law. Court of Appeals concluded, however, that it was unable to reach merits because bases underlying trial court’s order denying postconviction relief and Court of Special Appeals’s order reversing and remanding case for filing of belated motion for modification of sentence were unclear. Pursuant to Maryland Rule 8-604(a) and (d), Court of Appeals remanded, without affirming or reversing, to Court of Special Appeals with instruction that Court of Special Appeals clarify basis for its order of September 12, 2019, reversing judgment of Circuit Court for Montgomery County denying postconviction relief and remanding and granting permission for filing of belated motion for modification of sentence.

Circuit Court for Montgomery County Case No. 109580-C Argued: May 13, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2019 ______________________________________ STATE OF MARYLAND v. JAMES KAREEN DAY ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: July 10, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-10 12:35-04:00 Suzanne C. Johnson, Clerk After imposition of a sentence in a criminal case, a defendant may seek modification of that sentence pursuant to Maryland Rule 4-345(e). To obtain such review, Maryland Rule 4-345(e)(1) provides that the defendant must file a motion seeking modification within ninety days after imposition of the sentence. Recently, in State v. Schlick, 465 Md. 566, 577 , 214 A.3d 1139 , 1145 (2019), we reaffirmed that when a defendant directs his or her lawyer to file a motion to modify the sentence, the lawyer’s failure to file a timely motion may constitute ineffective assistance of counsel.

To remedy counsel’s ineffectiveness, the postconviction court may permit a defendant to file a belated motion for modification of sentence. (Citations omitted). Here, in the Circuit Court for Montgomery County, a jury convicted James Kareen Day, Respondent, of first-degree burglary, robbery, and conspiracy to commit robbery, and the circuit court sentenced Day to a total of fifty years of imprisonment. After unsuccessfully pursuing a direct appeal and sentence review by a three-judge panel, Day petitioned for postconviction relief, contending that trial counsel provided ineffective assistance of counsel by failing to file a motion for modification of sentence pursuant to Maryland Rule 4-345(e) when he had allegedly asked trial counsel to do so.

At a hearing on the petition, Day gave seemingly inconsistent testimony concerning whether he asked trial counsel to file a motion for modification on his behalf. Day testified that trial counsel did not advise him of options for attempting to have his sentence modified and that he learned about the possibility of filing a motion for modification of sentence through a jailhouse lawyer, but that he asked trial counsel at the sentencing proceeding to “do a reconsideration.” For his part, trial counsel testified that he had no recollection of Day asking him to do anything to try to modify the sentence or specifically asking him to file a motion for modification of sentence.1 The circuit court denied postconviction relief. The circuit court found that Day’s assertion that he asked trial counsel to file a motion for modification of sentence was “not supported by the record[,]” and that, even if Day had made such a request, the claim for ineffective assistance of counsel “would fail nonetheless.” Day filed an application for leave to appeal. In a four-paragraph order, the Court of Special Appeals summarily reversed and remanded with instruction to permit Day to file a belated motion for modification of sentence.

The State, Petitioner, filed a petition for a writ of certiorari, which this Court granted. We are asked to determine whether trial counsel’s failure to timely file a motion for modification of sentence pursuant to Maryland Rule 4-345(e) constituted ineffective of assistance of counsel. This case potentially presents the issue of whether a petitioner for postconviction relief seeking the right to file a belated motion for modification of sentence pursuant to Maryland Rule 4-345(e), based on ineffective assistance of counsel, must establish that he or she timely requested that trial counsel file such a motion. As such, the matter potentially involves the issue of whether State v. Adams, 171 Md. App. 668 , 912 A.2d 16 (2006), aff’d in part and rev’d in part, 406 Md. 240 , 958 A.2d 295 (2008), stands for the proposition that, to establish ineffective assistance of counsel based on the failure to file a motion for modification of sentence, a postconviction petitioner need not At the hearing, the parties’ counsel and witnesses referred to a motion for 1 modification of sentence as a motion for reconsideration. -2- demonstrate that he or she requested that trial counsel file such a motion, and whether that is good law.

Although the case raises issues of importance, we are unable to reach the merits because we are unable to determine the basis underlying the Court of Special Appeals’s order reversing and remanding the matter for the filing of a belated motion for modification of sentence. We are unable to tell from the Court of Special Appeals’s order whether that Court concluded that the circuit court did not find Day’s testimony credible and that the circuit court’s determination was clearly erroneous, or whether the Court of Special Appeals concluded that a request that trial counsel file a motion for modification of sentence was not necessary to establish ineffective assistance of counsel. Accordingly, pursuant to Maryland Rule 8-604(a) and (d), we remand the case, without affirming or reversing, to the Court of Special Appeals with instruction to explain the basis of its order of September 12, 2019, reversing the judgment of the circuit court denying postconviction relief and remanding and granting permission for the filing of a belated motion for modification of sentence. Specifically, the Court of Special Appeals should: (1) clarify whether Adams stands for the proposition that a defendant is not required to request that trial counsel file a motion for modification of sentence in order for trial counsel to be required to file such a motion, i.e., that it is per se deficient performance for trial counsel to fail to timely file a motion for modification of sentence absent express instructions to not do so; (2) explain whether, in reversing the circuit court’s judgment, it relied on Adams; and (3) provide any other explanation that clarifies its September 12, 2019 order, e.g., that the circuit court’s finding that Day’s assertion was not supported by the record was clearly erroneous.

The Court of Special Appeals should file its explanation on or before Friday, -3- July 31, 2020. BACKGROUND Criminal Case On December 10, 2008, in the circuit court, a jury found Day guilty of first-degree burglary, robbery, and conspiracy to commit robbery. On May 12, 2009, the circuit court sentenced Day to twenty years of imprisonment for first-degree burglary, fifteen years for robbery consecutively, and fifteen years for conspiracy to commit robbery consecutively, for a total of fifty years of imprisonment. At that time, trial counsel provided Day with the following on-the-record advisement: [] Day, you have 90 days in which to file a motion for reconsideration, that would be filed with [the circuit court j]udge[.] He could not increase his sentence, but he could decrease his sentence or change it any number of ways.

You have -- that’s 90 days you have to file that. It must be done in writing. You may do it yourself or you may contact me at the Public Defender’s office and I’ll do it on your behalf. You have 30 days in which to ask a three[-]judge panel to review or revise the sentence here today. [The circuit court j]udge [] would not be a part of that three[-]judge panel, but the three judges would consult with [the circuit court j]udge [] with regard to his reasons for imposing the sentence.

Or they could consult with him, even though he would not be a part of that three[-]judge panel. That three-judge panel could also change the sentence here imposed today. You have 30 days in which to file an appeal with the Court of Special Appeals. This Court of Special Appeals, I would note an appeal for you.

The Court of Special Appeals will review the case for errors, possible errors in the trying or the sentencing of the case. Trial counsel gave Day a written notice of the rights that were explained to him, asked Day to sign it, and stated that Day would be provided with a copy of it. -4- On May 13, 2009, trial counsel filed a notice of appeal. On June 10, 2009, while the appeal was pending, trial counsel filed an application for a three-judge sentence review panel. On March 15, 2011, in an unreported opinion, the Court of Special Appeals affirmed Day’s convictions.

On May 27, 2011, without a hearing, the three-judge panel affirmed Day’s sentence. Postconviction Proceeding Seven years after sentencing, on August 30, 2016, Day filed a petition for postconviction relief, alleging, among other things, that trial counsel rendered ineffective assistance of counsel by failing to file a motion for reconsideration of sentence even though he requested that trial counsel do so. The State filed an answer opposing the petition. On April 18, 2018, the circuit court conducted a hearing on the petition.

At the hearing, Day testified that trial counsel never advised him of the options available to try to have his sentence modified, that he learned about the possibility of filing a motion for reconsideration of sentence through a jailhouse lawyer, and that he asked trial counsel at the sentencing proceeding to file such a motion. Specifically, the following exchange occurred: [DAY’S COUNSEL:] After you were sentenced, did [trial counsel] explain to you the rights that you had to try to change the sentence? [DAY:] No, sir. It just -- he filled out an application, direct appeal, and I asked to do a reconsideration. [DAY’S COUNSEL:] So, you knew that there was such a thing as a reconsideration motion? [DAY:] Yes, sir. -5- [DAY’S COUNSEL:] And, do you know where you learned that such a thing existed? [DAY:] I learned it through a jail[]house lawyer. [DAY’S COUNSEL:] Okay. . . . And what did you ask [trial counsel] to do with regard to the motion for reconsideration? [DAY:] To fill one out for me. [DAY’S COUNSEL:] Where were you when you asked [trial counsel] to file a motion for reconsideration? [DAY:] In the court[]room. . . .

The day of my sentence. [DAY’S COUNSEL:] Did you see [trial counsel] after the day of your sentence? [DAY:] No, sir. On the State’s behalf, trial counsel testified that, at the time of Day’s trial and sentencing, he was an assistant public defender with nearly thirty years of legal experience and he was appointed to represent Day. The State asked trial counsel about the filing of any post-sentencing motions on Day’s behalf and the following exchange occurred: [THE STATE:] And with respect to the issue of the motion for reconsideration, do you recall whether you filed any post-sentencing motions on behalf of [] Day? [TRIAL COUNSEL:] Do I recall, no. If you know, if there is a record we filed an appeal then I filed an appeal.

If there’s no record of me filing those things, it didn’t get filed. [THE STATE:] Well, if I told you that there was an application for a three- Judge panel in this case -- [TRIAL COUNSEL:] Let me be, let me be very clear. This is 10 years ago, a lot of cases before and after that. And in this situation, there was two cases, two trials. So, it’s, when you’re trying to remember back 10 years ago you get things intertwined.

I have no particular recollection of filing any post[- -6- ]trial motions. On cross-examination, trial counsel testified that he had “no recollection” of Day being advised or not advised of his postconviction rights or whether Day had asked him to do anything to try to have his sentence modified. On redirect examination, the following exchange occurred: [THE STATE:] So, is it fair to say that you don’t recall [] Day specifically asking you to file either a motion for reconsideration or an application for a three-Judge panel? [TRIAL COUNSEL:] I have no recollection of the conversations with him. [THE STATE:] If a client specifically asked you to file one or both, would it be your practice to do that? [TRIAL COUNSEL:] It would be. But to say I’ve never made an error and failed to file would be wrong. [THE STATE:] But in a situation where the defendant is given the maximum sentence, is it your testimony that there is a strategic decision to be made about which motion to pursue? [DAY’S TRIAL COUNSEL:] As [was] said, they’re [not] mutually exclusive.

The only, and as far as a motion for reconsideration, there’s really not a downside. Afterward, the parties made closing arguments. With respect to the motion for reconsideration or modification of sentence, Day’s counsel argued that it was “uncontroverted that [] Day asked [his trial counsel] to” file such a motion, stating: Day testified that he asked [trial counsel] to do so, [trial counsel] testified that he had no recollection one way or the other. So, where one person is saying I asked for this thing to happen and the other person says I have no memory one way or the other[,] I would say that’s uncontroverted.

Moreover, this was one of hundreds of cases that [trial counsel] tried. It’s one of only, it may have been the only two trials that [] Day ever had in his life so, there’s every reason to think that he had a better recollection of how -7- things went than [trial counsel] did. Nearly five months after the postconviction hearing, on September 17, 2018, the circuit court issued an eight-page statement of reasons and order denying postconviction relief.2 As to the allegation that trial counsel rendered ineffective assistance of counsel by failing to file a motion for modification of sentence, the circuit court stated: [Day] contends that he requested trial counsel file a motion for reconsideration of sentence, which was never filed, and that such a failure constituted ineffective assistance of counsel. . . . [Day]’s sole basis for this allegation is that he allegedly requested trial counsel to file a motion for reconsideration of his sentence. As the State correctly points out, this assertion is not supported by the record.

Even if, assuming arguendo, that [Day] had requested trial counsel file the motion and trial counsel failed to comply, the argument would fail nonetheless. As iterated above, the Strickland [v. Washington, 466 U.S. 668, 687 (1984)] test requires a showing of counsel’s deficient performance and prejudice. Unless [Day] overcomes the strong presumption that trial counsel has acted within the wide range of reasonable professional assistance, this Court cannot hold in favor of [Day]. The ineffective assistance prong of Strickland is satisfied only where, given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.

Here, the record shows that trial counsel pursued a motion for sentence review by a three-judge panel under Maryland Rule 4-344, and that he did not pursue a motion to reconsider sentence under Maryland Rule 4- 345. Unlike a motion to reconsider sentence, a three-judge panel generally has the authority to increase a sentence. Pursuing review by the three-judge panel, which would not include . . . the sentencing judge, carried no risk in this instance, as he had already imposed the maximum sentence allowed under Maryland law. On the contrary, counsel could have reasonably believed that filing a motion to reconsider sentence would have been futile based on [the sentencing judge]’s stern comments at sentencing regarding the nature of the offense.

This Court does not find that trial counsel was patently unreasonable in not filing a motion for reconsideration of sentence, 2 Maryland Rule 4-407(a) requires a circuit court judge to “prepare and file or dictate into the record a statement setting forth separately each ground upon which the petition is based, . . . the court’s ruling with respect to each ground, and the reasons for the action taken thereon.” -8- and instead filing an application for a three-judge panel review. (Cleaned up) (emphasis added). Appellate Proceedings On November 1, 2018, in the Court of Special Appeals, Day filed an application for leave to appeal the denial of postconviction relief. In the application, as to the circuit court’s statement that Day’s claim that he asked trial counsel to file a motion for reconsideration of sentence was “not supported by the record[,]” Day contended that the circuit court’s order failed to acknowledge “the uncontroverted testimony at the hearing [] that [] Day” requested trial counsel file a motion for reconsideration of sentence.

On March 7, 2019, the Court of Special Appeals issued an order, granting the application for leave to appeal in part and reversing the circuit court’s order “with respect to [the] allegation of error that [Day] was denied the right to effective assistance of counsel in connection with the filing of a motion for modification or reduction of sentence pursuant to M[aryland] Rule 4-435[.]” The Court of Special Appeals remanded the case to the circuit court with instruction to grant Day the right to file a belated motion for modification of sentence pursuant to Maryland Rule 4-345(e), within ninety days of the issuance of the order. The Court of Special Appeals affirmed the circuit court’s order denying postconviction relief in all other respects.3 3 In the application for leave to appeal, Day raised issues concerning ineffective assistance of counsel based on trial counsel’s failure to file a motion for modification of sentence and failure to introduce exculpatory evidence at trial. The circuit court had denied postconviction relief on both issues. The Court of Special Appeals affirmed the denial of postconviction relief as to the allegation concerning trial counsel’s failure to introduce exculpatory evidence. -9- On March 19, 2019, the State filed a motion for reconsideration, requesting that the Court of Special Appeals reconsider its March 7, 2019 order.

The State contended that, because Day had failed to include the transcript of the postconviction hearing with the application, it was not possible for the Court of Special Appeals to conclude whether the circuit court clearly erred in determining that Day’s allegation that he asked trial counsel to file a motion for modification pursuant to Maryland Rule 4-345(e) was “not supported by the record.” On March 28, 2019, the Court of Special Appeals granted the State’s motion for reconsideration, recalled its March 7, 2019 order, and instructed Day to produce the transcript of the postconviction hearing. A few months later, on June 19, 2019, the Court of Special Appeals issued an order, stating that further consideration of the application for leave to appeal would be stayed pending a decision from this Court in Schlick, 465 Md. 566 , 214 A.3d 1139 . On August 23, 2019, this Court issued the opinion in Schlick, 465 Md. 566 , 214 A.3d 1139 . On September 12, 2019, the Court of Special Appeals lifted the stay and issued an order reversing the circuit court’s judgment with respect to the claim of ineffective assistance of counsel as to the filing of a motion for modification of sentence, affirming the circuit court’s judgment otherwise, and remanding the case to the circuit court with instruction to grant Day the right to file a belated motion for modification of sentence.4 In its entirety, the order stated: Having read and considered the above-captioned application for leave to appeal, it is this 12th day of September 2019, by the Court of Special 4 The order was substantially the same as the order that the Court of Special Appeals issued on March 7, 2019. - 10 - Appeals, ORDERED, that the judgment of the Circuit Court for Montgomery County is REVERSED with respect to [Day]’s allegation of error that he was denied the right to effective assistance of counsel in connection with the filing of a motion for modification or reduction of sentence pursuant to M[aryland] Rule 4-345; and it is further, ORDERED, that the judgment of the Circuit Court for Montgomery County is otherwise AFFIRMED, and it is further, ORDERED, that the case is REMANDED to the Circuit Court for Montgomery County with instructions to grant [Day] the right to file a belated motion for modification or reduction of sentence, pursuant to M[aryland] Rule 4-345, within 90 days of the issuance of that order.

The State filed another motion for reconsideration, asking the Court of Special Appeals to deny the application for leave to appeal or to set the case in for full briefing and argument. The Court of Special Appeals denied the State’s motion for reconsideration. On November 13, 2019, the State petitioned for