State v. Karmand

DEBORAH S. EYLER, J. In the Circuit Court for Montgomery County, pursuant to an agreement with the State, Omied Karmand pleaded guilty to a single count of distribution of cocaine in violation of Md.Code (2002), section 5-602(1) of the Criminal Law Article (“CL”). 1 The underlying offense was the sale of cocaine by Karmand, through an intermediary, to an undercover narcotics officer, in a parking lot in Rockville. Later that same day, Karmand was arrested for selling cocaine in the District of Columbia. That incident involved the same undercover officer but a separate sale of cocaine. The plea agreement called for a binding 18-month cap on the executed portion of the sentence. 2 By the time the plea was taken, Karmand had been convicted for the same-day drug offense in the District of Columbia and had served 30 days in jail.

Pursuant to the plea agreement, the court sentenced Karmand to three years’ imprisonment, all but nine ⁴⁸³ months suspended (with credit for 179 days served), followed by 18 months’ probation. Within 90 days, Karmand filed a motion for reconsideration of sentence under Rule 4-345(e), with a request for a hearing (“the First Motion”). 3 Four months later, he filed a line withdrawing his hearing request and asking the court to hold the First Motion sub curia until he filed a new request for a hearing. He filed a new hearing request about a year later. Two months after the new hearing request was filed, the court held a hearing on the First Motion.

The original sentencing judge had retired, so another judge presided. By then, Karmand had finished serving his prison time and his probationary period, and was attending community college and doing well. Karmand’s lawyer asked the court to strike the conviction and enter probation before judgment (“PBJ”), under Md.Code (2001, 2007 Supp.) section 6-220 of the Criminal Procedure Article (“CP”), 4 so Karmand could pursue his plans to become a healthcare professional, which would not be possible with a felony conviction on his record. The prosecutor argued in opposition that this was Karmand’s second drug distribution conviction and that he already had received a PBJ in a prior juvenile offense for possession of alcohol, without learning from that benefit.

The prosecutor did not argue that it was outside the court’s authority, under Rule 4-345, to strike a conviction and grant a PBJ. ⁴⁸⁴ In the following colloquy, the court denied the motion for reconsideration of sentence: THE COURT: ... I guess where I come down is that, you know, with the whole notion of licensing and the high degree of responsibility involved in the public trust, I just don’t think with the, you know, the conviction that you have here and the one that you already had in the District [of Columbia], even though that’s been obviated, I just don’t feel like it would be in the public interest to grant the probation before judgment. And for that reason, I regret that I am going to deny the request and I’m going to let the conviction stand. [DEFENSE COUNSEL]: Judge, if I could just say, I understand the Court’s ruling. I don’t know if the Court was made to understand that the incidents that led to his arrest and his charges here chronologically predated the conduct in the District of Columbia.

I don’t know if that matters or changes things but— THE COURT: I’m not, I take it that they were related in some way and involved the same officer or whatever but yet that they were separate convictions. I mean, that’s what I understood. And I gather convictions that involved separate amounts of cocaine. [DEFENSE COUNSEL]: Yes. THE COURT: And, you know, I just feel like at some point there is a threshold that you can just, you can swallow and try and pass and you get to a point where you swallow and I just [don’t] pass.

And I compliment you on your advocacy, Mr. [counsel]. I think you’ve done as much as could be done on [Karmand’s] behalf. But I just, in good conscience, I just don’t feel that I can grant that. Respectfully denied. [DEFENSE COUNSEL]: Very well. [STATE’S ATTORNEY]: Thank you, Your Honor. ⁴⁸⁵ THE COURT: Would you like your materials back? [DEFENSE COUNSEL]: Sure.

(Emphasis added.) The hearing concluded at 9:23:52 a.m. At that point in the hearing transcript, the word “(Recess)” appears. Then, at 9:31:06, the hearing transcript continues, picking up as defense counsel was speaking: [DEFENSE COUNSEL]: — consideration and leave it as an open matter, or is this, I don’t want to give my client false hope and I don’t want to read the Court wrong, so maybe just ask that you— THE COURT: Well, you can certainly ... file a motion. I’m not sure what else you can put forward that hasn’t been put forward.

So, frankly, I don’t want to encourage you in that regard. [DEFENSE COUNSEL]: Okay. THE COURT: But you have every right to file a motion. [DEFENSE COUNSEL]: Thank you, Your Honor. [STATE’S ATTORNEY]: Thank you, Your Honor. [APPELLEE]: Thank you, Your Honor. The record does not contain a written order denying the First Motion. The docket entries state clearly, however, that the First Motion was denied.

Less than 30 days after the hearing on the First Motion, Karmand filed a second motion for reconsideration of sentence (“the Second Motion”), and a hearing request. 5 In the Second Motion, he acknowledged that the court had denied the First Motion. He asked the court to “revisit [his] request to reconsider this sentence a felony record at a time in the future when requested by [Karmand].” On October 15, 2007, the court entered an order scheduling a hearing on the Second Motion for January 10, 2008. ⁴⁸⁶ At the January 10, 2008 hearing, the presiding judge listened to the arguments of counsel and said that he was going to hold the matter sub curia. Later that same day, he issued an order granting the Second Motion by striking Karmand’s conviction and entering PBJ. Less than 30 days later, the State noted this appeal pursuant to Md.Code (1974, 2006 Repl.Vol.), section 12-302 of the Courts & Judicial Proceedings Article (“CJ”).

It poses two questions, 6 which we have divided and reworded because they in fact raise three issues: I. Did the circuit court err in granting the Second Motion because it had denied the First Motion and the Second Motion was not timely filed?

II

Did the circuit court err in granting the Second Motion by striking the distribution conviction and sentence and entering a probation before judgment because Rule 4-345 does not authorize a court to reconsider a sentence by striking the conviction for which the sentence was imposed?

III

Did the circuit court err in granting the Second Motion by striking the distribution conviction and sentence and entering probation before judgment when the original conviction and sentence were the result of a plea bargain and the State did not consent, under Rule 4-243, to a disposition more favorable than the plea bargain? ⁴⁸⁷ We find merit in the State’s first issue, and therefore we shall vacate the order granting the Second Motion. Our disposition of the first issue means we shall not reach the second or third issues. DISCUSSION I. CJ section 12-302(e) allows in particular circumstances an appeal by the State from a final judgment in a criminal case. For our purposes, the relevant language is as follows: (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: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Imposed or modified a sentence in 'violation of the Maryland Rules. (Emphasis added.) Rule 4-345 is entitled “Sentencing — Revisory power of court.” In subsection (a), it allows the court to correct an illegal sentence at any time; and in subsection (b), it grants the court revisory power over a sentence “in the case of fraud, mistake, or irregularity.” The court may correct an evident mistake in the announcement of a sentence under subsection (c) and, in desertion and non-support cases, at any time before the expiration of the sentence, the court may “modify, reduce, or vacate the sentence or place the defendant on probation.” Subsection (e) of the rule is most pertinent to the case at bar, as it is the subsection on which the First and Second Motions were based. It reads, in relevant part: (e) Modification Upon Motion. (1) Generally, upon a motion filed within 90 days after imposition of a sentence ... in a circuit court, whether or not an appeal has been filed, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of ⁴⁸⁸ five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence---- Finally, subsection (f) gives the defendant, the State, and victims a fight to be heard before “[t]he court may modify, reduce, correct, or vacate a sentence.” The State contends the circuit court’s only authority to modify Karmand’s sentence arose under Rule 4-345(e), but that the court’s sentence modification violated that rule.

Specifically, it argues that the Second Motion, which the court granted, was filed more than 90 days after the imposition of sentence, and therefore was not timely, and the court’s revisory power under subsection (e) only exists upon the filing of such a timely motion. The only timely motion that was filed (the First Motion) was denied; thereafter, the court did not have authority to revise its ruling. Karmand counters first that this appeal must be dismissed as not allowed by law. He maintains that, because CJ section 12 — 302(c)(2)(ii) only permits the State to appeal a final judgment “imposing or modifying a sentence,” the State may not appeal a final judgment reducing a sentence.

On the merits, Karmand argues that his Second Motion was not untimely under Rule 4-345(e), because the court did not rule on the First Motion, but held it sub curia, and the Second Motion merely was an extension of the first. He also suggests that the court had revisory power over its ruling on the First Motion and, therefore, even if it ruled on the First Motion, it could change its mind and revise its ruling, which it did. (a) Does the State Have the Right to Appeal the Circuit Court’s January 10, 2008 Sentencing Order? Until 2003, the right of appeal granted the State in CJ section 12-302(c) was limited to an appeal from a final judgment that, allegedly, failed to impose a sentence as mandated by a Maryland statute.

To the extent the State ever had a common law right to appeal a final judgment imposing or modifying a sentence, that right was replaced by the statutory ⁴⁸⁹ scheme in CJ section 12-302(c). State v. Green, 367 Md. 61, 76 , 785 A.2d 1275 (2001). The State’s right of appeal initially established in CJ section 12-302(c) did not apply to sentences imposed in violation of the Maryland Rules, however. Chertkov v. State, 335 Md. 161, 169 , 642 A.2d 232 (1994); State v. Warfield, 148 Md.App. 178, 187 , 811 A.2d 382 (2002).

The General Assembly closed that gap in 2003 by amending CJ section 12-302(c) to add what is now subsection (c)(2)(ii), permitting the State to appeal from a final judgment “[i]mpos[ing] or modifying] a sentence in violation of the Maryland Rules.” 2003 Md. Laws, ch. 141, § l. 7 Karmand argues that the State’s statutory right to appeal from a final judgment imposing or modifying a sentence in violation of the Maryland Rules does not include the right to appeal from a final judgment reducing a sentence in violation of the Maryland Rules. Referring generally to Rule 4-345, without identifying the subsections he is referring to— (c) and (f), not (e) — he emphasizes that the rule authorizes the court to “modify, reduce, correct or vacate” a sentence. He then argues that, because CJ section 12-302(c)(2)(ii) only authorizes an appeal by the State from a final judgment “imposing] or m,odify[ingJ” a sentence in violation of the Maryland Rules, it cannot be read to permit the State to appeal a judgment reducing a sentence in violation of the Maryland Rules. In other words, because in subsections (c) and (f) of Rule 4-345 changes in sentences are spelled out in specific terms, as modifications, reductions, corrections, or vacations, a modification of a sentence does not mean a reduction of a sentence; therefore, the word “modify” in CJ ⁴⁹⁰ section 12 — 302(c)(2)(ii) cannot be read to include “reduce.” We see no merit in this argument.

The “cardinal rule” of statutory construction is to ascertain and effectuate the legislative intent, Tribbitt v. State, 403 Md. 638, 645 , 943 A.2d 1260 (2008), and, in the case of a Maryland Rule, to ascertain and effectuate “the purpose and objectives of the rule.” Johnson v. State, 360 Md. 250, 264 , 757 A.2d 796 (2000). We begin our analysis with the plain meaning of the text. If that plain meaning is unambiguous, our analysis ordinarily is complete. Ishola v. State, 404 Md. 155, 160 , 945 A.2d 1273 (2008).

Otherwise, if the text of the statute (or rule) admits of more than one reasonable meaning, we turn to secondary indicia of meaning such as legislative history, caselaw, and statutory purpose. Opert v. Criminal Injuries Comp. Bd., 403 Md. 587, 593 , 943 A.2d 1229 (2008). “To the extent relevant, we look as well to ‘the statute’s structure, including the title, and how the statute relates to other laws.’ ” Id. (quoting Stouffer v. Pearson, 390 Md. 36, 46 , 887 A.2d 623 (2005)).

We take special care to avoid strained or absurd interpretations. In re: Colby H., 362 Md. 702, 722 , 766 A.2d 639 (2001). We do not add or delete language “so as to reflect an intent not evidenced in the plain and unambiguous language of the statute,” nor do we “construe the statute with forced or subtle interpretations that limit or extend its application.” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003). The plain