State v. Griswold

¹⁸⁷ RODOWSKY, J. Here, the State appeals from the revision of judgments of conviction in two sexual offense cases, contending that sentences mandated by statute were not imposed. More than five years after the original judgments had been entered, the Circuit Court for Carroll County, purportedly acting pursuant to timely filed Maryland Rule 4-345(b) motions, altered the charges in the indictment counts to which the defendant had pled guilty, and for which he had been legally sentenced, to other crimes which the State had initially charged in other counts, but which the State had nolle prossed at the time of sentencing. The court then modified the sentences to probation before judgment, a statutorily prohibited disposition of the charges to which the defendant had pled guilty. We shall reverse for the reasons set forth below.

In 1996 a Carroll County grand jury returned multi-count indictments against the respondent, David Crary Griswold (Griswold), charging that he had committed sexual offenses more than ten years before with children under the age of fourteen. At the time of the earliest of the offenses Griswold was in his thirties. 1 Specifically, in case K-1996-23295, Gris-wold was charged with four counts involving a male victim who was then approximately six years old. Count I alleged a violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 464B, providing in relevant part as follows: “ § 464B. Third degree sexual offense. “(a) Elements of offense. — A person is guilty of a sexual offense in the third degree if the person engages in: “(3) Sexual contact with another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim[.]” ¹⁸⁸ Count II in indictment 23295 charged a violation of Article 27, § 464C, which in relevant part read: “ § 464C.

Fourth degree sexual offense. “(a) Elements of the offense. — A person is guilty of a sexual offense in the fourth degree if the person engages: “(1) In sexual contact with another person against the will and without the consent of the other person[.]” The remaining counts in No. 23295 charged common law battery and child abuse in violation of Article 27, § 35C. The second case with which we are concerned on this appeal is K-1996-23296. The victim was Griswold’s niece, who was born in 1980. The criminal acts were alleged to have occurred between 1987 and 1994.

Counts I and II in that indictment charged third degree sexual offense in violation § 464B(a)(3), and Counts III and IV charged fourth degree sexual offense in violation of § 464C. The remaining counts in No. 23296 charged sexual child abuse of a family member, common law battery, and indecent exposure. 2 On January 17, 1997, Griswold pled guilty to the first counts, charging third degree sexual offense, in the two indictments involved in this appeal, and the State nolle prossed all of the other counts of both indictments. That day, the court sentenced Griswold on each of the two counts of third degree sexual offense to five years, to be served concurrently. The circuit court suspended the execution of the sentence and released Griswold on probation, under a number of conditions.

These included home confinement between the hours of 6:00 p.m. and 10:00 a.m. for a period of 180 days, that he continue counseling with his physician, that he have no contact with the male victim, and that there be no unsupervised contact with any children under eighteen years of age. These sentences were not illegal. ¹⁸⁹ Within ninety days of the imposition of these sentences Griswold filed identical motions in each case, headed, “Motion for Modification or Reduction of Sentence.” He moved “pursuant to Maryland Rule 4-345(b) for a modification and/or reduction of sentence imposed in the above case.” The motions simply described the sentences imposed and asked the court to “consider revising its judgment and sentence in the above-captioned case.” Maryland Rule 4-345, “Sentencing-Revisory power of court,” provides in relevant part: “(b) Modification or reduction — Time for. The court has revisory power and control over a sentence upon á motion filed within 90 days after its imposition ... in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake or irregularity!.] “(d) Open court hearing.

The court may modify, reduce, correct, or vacate a sentence only on the record in open court, after hearing from the defendant, the State, and from each victim or victim’s representative who requests an opportunity to be heard.” The State responded to the motions, asserting that the sentence was “fair, reasonable and within the statute,” that there was no “unconscionable burden” on Griswold, and that “nothing has occurred since the time of sentencing to warrant a reduction in the sentence.” By longhand notations on the margins of the motions, the court directed that they be held sub curia, awaiting the decision of counsel as to when a hearing would be requested. A hearing was requested in late December 1998, but canceled the following month. In September 2001 Griswold again requested a hearing on the pending motions. At that hearing, held January 10, 2002, Griswold asked for probation before judgment (P.B.J.). ¹⁹⁰ When Griswold was originally sentenced, Maryland Code (1957, 1996 Repl.Vol), Article 27, § 641, dealing with P.B.J., contained a limitation on that type of disposition that is relevant here. 3 That limitation, found in § 641(a)(4), read: “Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a violation of any of the provisions of §§ 462 through 464B of this article for an offense involving a person under the age of 16 years.” At the time of the revision of the judgments to P.B.J. in the instant matter, the limitation was found in Maryland Code (2001), § 6-220(d)(3) of the Criminal Procedure Article (CP), reading: “Notwithstanding subsections (b) and (c) of this section, a court may not stay the entering of judgment and place a defendant on probation for: “(3) a violation of any of the provisions of Article 27, §§ 462 through 464B of the Code for a crime involving a person under the age of 16 years.” At the January 10, 2002 hearing on the motion Griswold’s counsel, in part, argued as follows: “I would ask you to consider modifying this to a P.B.J. I think we had two Third Degree Sex Offenses, which typically cannot be modified.... “I would ask you to consider modifying the Third Degree Convictions to Fourth so they could then be P.B.J....

I’m asking this on behalf of his mother. I ask that she not have to live with the conviction that’s on his record. I don’t think there’s a need for him to be reporting as a sex offender on an annual basis or to be on any list.” ¹⁹¹ The State expressly opposed the requested modifications with respect to cases 23295 and 23296 on the ground that “[a] P.B.J. cannot be given as they are Third Degree Sex Offenses.” After taking the matter under advisement, the circuit court, on March 6, 2002, caused the docket to reflect the following: “ORDERED, that Defendant’s convictions in K-96-23295 and K-96-23296 of Art. 27, § 464B, Third Degree Sexual Offense be, and they hereby are, modified to Art. 27, § 464C, Fourth Degree Sexual Offense; and it is further “ORDERED, that Defendant’s convictions in ... K-96-23295 and K-96-23296, Art. 27, § 464C, Fourth Degree Sexual Offense be, and they hereby are, modified to Probation Before Judgment, pursuant to Md. Criminal Procedure Code Ann. § 6-220 (2001).” The State timely noted an appeal to the Court of Special Appeals.

This Court issued the writ of certiorari on its own motion prior to consideration of the matter by that court. A single question is presented by the State, namely: “Where Griswold was convicted and sentenced on two third degree sexual offense convictions, did the circuit court err when it later changed the convictions to fourth degree sexual offenses in order to modify Griswold’s sentence to probation before judgment?” In answer to that question the State submits that the circuit court violated CP § 6 — 220(d)(3) when it modified the sentences for third degree sexual offense to P.B.J. In opposition, Gris-wold’s principal submission is that P.B.J. was imposed for convictions of fourth degree sexual offenses, dispositions which were not prohibited by statute. The result, he contends, is that the State has no right of appeal and that the appropriate mandate is to dismiss the appeal. I A limited right of appeal by the State is conferred by Maryland Code (1974, 2002 Repl.Vol.), § 12-302(c) of the ¹⁹² Courts and Judicial Proceedings Article (CJ).

Pertinent here is subsection (2) which reads: “(c) In a criminal case, the State may appeal as provided in this subsection. “(2) The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.” Resolution of the principal issue between the parties ultimately turns on the appropriate analysis for applying CJ § 12-302(c)(2). Under the State’s analysis, we are to compare the original charging document to the modified sentence. At the initial sentencing Griswold pled guilty to third degree sexual offenses and the sentences imposed were not prohibited by the predecessor of CP § 6-220(d)(3). In the State’s view, the circuit court changed those judgments of conviction by modifying the sentence element thereof to a statutorily prohibited sentence while, throughout, the determination of guilt remained, in legal effect, the commission of third degree sexual offenses.

On the other hand, Griswold’s position looks at the proceedings below as consisting of distinct steps. First, per the timely filed Rule 4-345 motions, there was a modification from third degree to fourth degree sexual offenses of the guilt determination element of the judgments. Then there was a modification of the sentences to sentences that are lawful for fourth degree sexual offenses. Consequently, argues Gris-wold, there being no sentence specifically mandated by the Code for fourth degree sexual offenses, there is no right of appeal by the State.

The State presents the proper analysis, as demonstrated by our decision in State v. Hannah, 307 Md. 390 , 514 A.2d 16 (1986). There the defendant pled guilty to common law robbery and to the use of a handgun in the commission of a felony. Maryland Code (1957, 1982 Repl.Vol, 1985 Cum. Supp.), Article 27, § 36B, mandated a minimum five year sentence for the handgun violation.

At sentencing, the circuit ¹⁹³ court struck the plea of guilty to the handgun offense and entered P.B.J. On the robbery count Hanna was sentenced to ten years, all but two suspended, followed by five years probation. On the State’s appeal of the disposition of the handgun charge, this Court reversed and remanded for imposition of the statutorily mandated minimum sentence. In this Court, Hanna challenged the State’s right to appeal under CJ § 12-302(c)(2). He contended that, by first striking the plea of guilty to the handgun charge and then imposing P.B.J., the circuit court had not entered a final judgment on the handgun count, thereby rendering CJ § 12-302(c)(2) inapplicable.

As part of that argument Hanna sought to distinguish State ex rel. Sonner v. Shearin, 272 Md. 502 , 325 A.2d 573 (1974), and State v. Wooten, 277 Md. 114 , 352 A.2d 829 (1976), as cases in which sentences had been imposed and then execution of the sentences suspended. Rejecting that argument we said: “This Court recognized the State’s appeals in Sonnet and in Wooten to have been taken from appealable orders not because those orders suspended sentences which had earlier been imposed, if only by an instant, but because, by virtue of some other provision of law, the