State v. Montgomery

ROSALYN B. BELL, Judge. Carl Vance Montgomery was indicted in the Circuit Court for Howard County — Case Number 23152 — for distribution of a controlled dangerous substance (cocaine) and simple possession of a controlled dangerous substance. He pled guilty to the distribution of cocaine count. The remaining charge was nolle prossed.

In accordance with the terms of the plea agreement, the charges in another case pending against Montgomery — Case Number 22402 — were to be nolle prossed at the time of sentencing. Montgomery was sentenced to the Maryland Division of Corrections for a 10-year period of incarceration, a sentence that allowed for the possibility of parole. The State filed a motion to correct the sentence imposed. That motion was denied by the sentencing court.

The State appealed, pursuant to Md.Cts. & Jud.Proc.Code Ann. § 12-302(c)(2) (1974, 1989 Repl.Vol.), 1 contending that the trial court erred in refusing to grant the prosecutor’s requested postponement in accordance with the dictates of Rule 4-245(c) 2 and thereafter imposed an illegal sentence. We affirm. We will first explain the basis for the requested postponement. ¹⁰¹ Both cases pending against Montgomery in the trial court were scheduled for trial on September 11, 1991. On that date, before Montgomery entered a guilty plea to the charge of distribution of cocaine in Case Number 23152, the State announced that it was prepared to serve Montgomery with notice that it intended to seek the legislatively prescribed mandatory penalty of 10 years, without the possibility of parole, under Md.Code Ann. Art. 27, § 286(c)(1) and (2) (1957, 1992 Repl.Vol.). 3 It was agreed that, in exchange for Montgomery’s plea in Case Number 23152, the State would enter nolle prosses to the charges in Case Number 22402 at the time of sentencing.

The State reiterated that it would seek a “mandatory ten year without parole sentence” and that notice of such would be served upon Montgomery that day. The factual predicate for the plea in Case Number 23152 was set forth by the prosecutor and the plea to the charge of distribution of cocaine was accepted by the court. The prosecutor then stated that he was serving Montgomery’s attorney with a copy of the notice of mandatory penalty. The notice included a certified copy of the prior conviction upon which the prosecutor intended to rely.

An ¹⁰² “original” of the notice 4 was served upon the court and opposing counsel in open court, and after some further discussion, the guilty plea proceeding was concluded. The sentencing was to occur on a later date. At the request of the State, the sentencing was postponed several times. On April 2, 1992, Montgomery appeared for sentencing.

The prosecutor recapitulated the terms of the plea agreement. He then called the court’s attention to the fact that a notice of mandatory penalty had been provided to Montgomery and filed with the court, along with a certified copy of the docket entry reflecting the prior conviction. The trial judge indicated that the notice had not been filed in Case Number 23152, although his notes reflected that the prosecutor had made it clear that he intended to do such. Ultimately, it was discovered that the notice had indeed been filed, but that it bore the number 22402 rather than Case Number 23152.

Defense counsel noted at these proceedings that, although he and the prosecution had spoken about the State’s intent to seek enhanced penalties, these discussions did not “cancel their requirement that they do it properly. We’ve fought them and talked to them on many occasions about not filing the enhancement, they’ve known my position that we’re certainly displeased with their intent to try to file for enhancement but still we didn’t waive our right, and [Montgomery] doesn’t waive his right to have them do it properly if they seek it.” Defense counsel stated that Montgomery was prepared to be sentenced that day and that Montgomery was not on notice that the State had formally registered its intention to seek enhanced punishment by filing the requisite notice in Case Number 23152. Montgomery, through counsel, maintained that he was “well within his rights to assert the State be prepared to go forward with sentencing [that day].” The prosecutor sought a continuance of 15 days in ¹⁰³ order to file a notice with the proper case number. The prosecutor then sought the court’s permission to amend the notice so that it would reflect, not Case Number 22402, but Case Number 23152.

The court denied the prosecutor’s requested continuance and motion to amend the notice. The court then entertained argument