State v. Schlick

State of Maryland v. John Schlick, No. 63, September Term, 2018. Opinion by Greene, J. CRIMINAL PROCEDURE – MARYLAND RULE 4-345 – REVISORY POWER The Court of Appeals held that the circuit court erred in dismissing Respondent John Schlick’s motion to modify his sentence on the ground that it lacked revisory power over his sentence. The Court determined that Mr. Schlick’s sentence was originally imposed on September 15, 2008, so under Maryland Rule 4-345(e), the court retained revisory power over his sentence for five years therefrom. His counsel, however, was ineffective because she failed to file a motion for modification, despite Mr. Schlick’s requests to do so.

As a result, Mr. Schlick was granted postconviction relief to file a belated motion for modification. Implicit in the postconviction relief granted to Mr. Schlick is the circuit court’s authority to exercise its revisory power over Mr. Schlick’s sentence for five years following the postconviction court’s final order, consistent with Rule 4-345(e). Given that postconviction relief was granted on March 20, 2013, the court retained revisory power over Mr. Schlick’s sentence until March 20, 2018. As such, the circuit court erred in dismissing Mr. Schlick’s motion prematurely.

Circuit Court for Baltimore City IN THE COURT OF APPEALS Case No. 204299006 Argued: April 5, 2019 OF MARYLAND No. 63 September Term, 2018 ______________________________________ STATE OF MARYLAND v. JOHN SCHLICK Barbera, C.J. *Greene, McDonald, Watts, Hotten, Getty, Battaglia, Lynne A., (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: August 23, 2019 *Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Maryland Constitution, Article IV, Section 3A, he also participated in the Pursuant to Maryland Uniform Electronic Legal Materials Act decision and adoption of this opinion. (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-08-23 15:05-04:00 Suzanne C. Johnson, Clerk After the imposition of sentence, a criminal defendant has the right to seek modification of that sentence under Maryland Rule 4-345(e). In order to obtain review of his or her sentence, a defendant may file a motion seeking modification “within 90 days after imposition of a sentence.” Md. Rule 4-345(e)(1). After a timely motion is filed, generally the trial court has revisory power over a defendant’s sentence for five years “from the date the sentence originally was imposed[.]” Md. Rule 4-345(e)(1)(B).

Postconviction proceedings introduce an added complexity to the tenets of Maryland Rule 4-345(e). This Court has previously decided that when a defendant receives ineffective assistance of counsel and, consequently, loses his or her right to file a motion for modification of sentence, the defendant may be afforded the right to file a belated motion. State v. Flansburg, 345 Md. 694, 705 , 694 A.2d 462, 468 (1997). This Court has not had occasion to decide how or whether such postconviction relief impacts a circuit court’s revisory power over a defendant’s sentence.

The matter now before this Court concerns precisely that question. As such, we undertake to review the extent of a circuit court’s revisory power over a sentence, where a defendant has been granted postconviction relief to file a belated motion for modification of sentence. FACTUAL & PROCEDURAL BACKGROUND In 2005, Respondent John Schlick (“Mr. Schlick”) pleaded guilty in the Circuit Court for Baltimore City to a narcotics offense.1 On September 20, 2005, he was sentenced 1 The sole matter before this Court concerns Mr. Schlick’s sentence and specifically the trial court’s revisory power over that sentence. Accordingly, the details underlying Mr. Schlick’s conviction are not pertinent to our review.

Therefore, we set forth only the chronology of events related to Mr. Schlick’s sentencing. to 16 years in prison, 14 years and six months of which were suspended, and he was to be placed on five years of probation upon his release. Mr. Schlick did not request that his sentence be modified or otherwise reviewed. After his release on probation, Mr. Schlick was convicted of another crime. As a result, he was charged with violating the terms of his probation.

On September 15, 2008, Mr. Schlick appeared before the Circuit Court for Baltimore City for a violation of probation hearing. At the violation of probation hearing, the court revoked Mr. Schlick’s probation and sentenced him to 14 years and six months incarceration, thereby reimposing the suspended portion of Mr. Schlick’s 2005 sentence for the narcotics offense. No motion was filed on Mr. Schlick’s behalf to modify or otherwise review his sentence. On August 31, 2012, with the assistance of counsel, Mr. Schlick filed a petition for postconviction relief, and on November 30, 2012 he supplemented the petition.

Mr. Schlick argued that he received ineffective assistance of counsel because he had directed his lawyer from the 2008 violation of probation hearing to file a motion for reduction of sentence, but his lawyer failed to do so. Mr. Schlick’s counsel from the 2008 hearing swore under oath in an affidavit that she failed to file the motion for modification as requested by Mr. Schlick. The postconviction court held a hearing on Mr. Schlick’s petition on February 20, 2013. On March 20, 2013, the court ruled on the petition in Mr. Schlick’s favor.

The court concluded that Mr. Schlick received ineffective assistance of counsel and permitted Mr. Schlick to “file a belated [m]otion for [m]odification of [s]entence within ninety (90) days of the date of [its] order.” 2 Mr. Schlick, with the assistance of counsel, filed a motion for modification in the Circuit Court for Baltimore City on May 24, 2013, which was within 90 days of the postconviction court’s order. Six days later, on May 30, 2013, Mr. Schlick, acting without the assistance of counsel, filed a motion asking the court to hold his motion “in abeyance until a later date.” In July 2013, Mr. Schlick sent a letter to the circuit court pro se, articulating some of the reasons he believed the court should reduce his sentence. On January 6, 2014, the court scheduled Mr. Schlick’s motion for a hearing to be held on February 12, 2014. On January 30, 2014, Mr. Schlick filed a motion to postpone the hearing.

The court granted Mr. Schlick’s motion on January 31, 2014 and ordered that “[Mr. Schlick]’s [m]otion for [m]odification of [s]entence . . . continue to be held sub curia by the [c]ourt, until such time as [Mr. Schlick] requests a hearing.” On July 24, 2014, Mr. Schlick’s counsel requested a hearing on his motion for modification. On January 15, 2015, the trial court granted Mr. Schlick’s request and again set the matter for a hearing, which was to be held on March 6, 2015. The March 6, 2015 hearing was not held.2 On October 15, 2015, Mr. Schlick’s counsel again requested a hearing. On July 16, 2016, the court ordered that the matter be set for a hearing on October 17, 2016.

On October 11, 2016, Mr. Schlick’s counsel filed a motion requesting a continuance, with the State’s consent, because Mr. Schlick was incarcerated outside of Maryland, and the Department of Corrections could not transport him in time for the 2 It is not clear from the record why the March 6, 2015 hearing did not take place as scheduled. 3 hearing. The circuit court granted the postponement and reset the hearing for January 10, 2017. In December 2016, the circuit court issued an order to show cause. Therein, the court explained that Mr. Schlick had been originally sentenced for purposes of Rule 4- 345(e) when his probation was revoked on September 15, 2008.

Thus, on September 15, 2013, five years had passed from the date of his sentence. The court directed the parties to address whether Mr. Schlick’s motion should be dismissed on the grounds that, under Maryland Rule 4-345(e), the “five[-]year expiration date for w[hen] the [c]ourt can revise [Mr. Schlick]’s sentence” had expired. At the hearing on January 10, 2017, the court heard arguments from the State’s attorney and Mr. Schlick’s counsel with regard to its revisory authority over Mr. Schlick’s sentence and on the merits of his motion for modification. On August 8, 2017, the circuit court dismissed Mr. Schlick’s motion without ruling on the merits.

The court reasoned that Mr. Schlick’s sentence was originally imposed on September 15, 2008, and its revisory power lapsed on September 15, 2013. Accordingly, the court concluded that it “no longer ha[d] revisory power over [Mr. Schlick]’s sentence.” In addition, the court pointed out that Mr. Schlick was granted postconviction relief and filed his belated motion in compliance with the postconviction court’s order, but he did not obtain a hearing or ruling on the motion before September 15, 2013. Therefore, the court concluded that Mr. Schlick’s “inability to receive a sentence modification” was attributable to his own actions, not any “fault or error of the [c]ourt, nor ineffective assistance of counsel[.]” 4 Mr. Schlick noted a timely appeal to the Court of Special Appeals. Schlick v. State, 238 Md. App. 681 , 194 A.3d 49 (2018).

Our intermediate appellate court concluded that, despite the five-year limitation set forth in Rule 4-345(e), “the trial court retained fundamental jurisdiction to rule on the belated [m]otion for [m]odification of [s]entence.” Id. at 690 , 194 A.3d at 54 . The court explained that “[t]here are any number of reasons it may be impossible or impractical for a judge to act promptly upon a motion for reduction of sentence filed with the court before the expiration of the five-year period[.]” Id. at 692 , 194 A.3d at 55 . For instance, a defendant may be granted permission to file a belated motion “toward the end of the original period of review.” Id. The court emphasized that, in Mr. Schlick’s case, the trial court did not set Mr. Schlick’s motion for a hearing “until after the expiration of five years from the imposition of the original sentence.” Id. at 693 , 194 A.3d at 55-56 .

The Court of Special Appeals explained that “[i]n a perfect world, a court should set the hearing within the five-year period,” but it also recognized that “courts are busy.” Id. at 693 , 194 A.3d at 56 . If a circuit court fails to set a hearing to consider the merits of a motion for modification within the five-year window, according to our intermediate appellate court, “the consequence should not be held against the defendant.” Id. The Court of Special Appeals pointed out that after a defendant files a motion there is also an onus on the defendant and counsel “to make the best efforts” to have a hearing in a timely manner. Id.

In summation, the court explained that “the court has [fundamental] jurisdiction over the motion, but it is within the discretion of the trial court to consider the totality of the circumstances and determine whether to hear the motion on its merits.” Id. Therefore, the Court of Special Appeals vacated the 5 judgment of the circuit court and remanded the case to the circuit “court to consider whether to entertain the [motion] and to consider the merits of the motion.” Id. at 693 , 194 A.3d at 56 . On January 7, 2019, this Court granted the State’s Petition for a Writ of Certiorari. We granted certiorari to answer the following question: Does a court lose revisory power over a criminal sentence “after the expiration of five years from the date the sentence originally was imposed,” as Maryland Rule 4-345(e) states, or does the court instead indefinitely retain “fundamental jurisdiction” to revise a sentence, which it is an abuse of discretion not to consider exercising, as the Court of Special Appeals held below?

State v. Schlick, 462 Md. 261 , 199 A.3d 693 (2019). STANDARD OF REVIEW In the present case, we are tasked with interpreting Maryland Rule 4-345(e). It is well settled that an interpretation of Maryland Rule 4-345 is a question of law that is subject to de novo review. See State v. Crawley, 455 Md. 52, 66 , 166 A.3d 132, 140 (2017).

MARYLAND RULE 4-345(e) Maryland Rule 4-345(e) governs a trial court’s revisory power over sentences that it has imposed. Specifically, it sets forth the authority of and procedural requirements for a sentence to be revised by the trial court upon a defendant’s motion. Relevant to the matter sub judice, Maryland Rule 4-345(e)(1) provides: 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 five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence. 6 The language of Maryland Rule 4-345(e) sets forth two critical time frames: (1) the defendant has 90 days after imposition of a sentence to file a motion for modification; and (2) the trial court has revisory power over the defendant’s sentence for five years from the date the sentence originally was imposed. Md. Rule 4-345(e)(1).

Of particular importance to the case before us is the five-year limitation on a trial court’s revisory power, which is a relatively new addition to Rule 4-345(e). Prior to 1951, a court could revise a sentence only until the end of the term of court. Bereska v. State, 194 Md. App. 664, 680-81 , 5 A.3d 750, 760 (2010). In 1951, this Court adopted Part 4, Rule 10(c) of the General Rules of Practice and Procedure, which allowed modification of sentences, either sua sponte or pursuant to a defendant’s motion, within 90 days of the imposition of sentence.

State v. Robinson, 106 Md. App. 720, 722-23 , 666 A.2d 909 , 910- 11 (1995). In 1961, Part 4, Rule 10(c) was amended and renumbered as Maryland Rule 764(b). Id. The Rule continued to allow a trial court to reduce a sentence during the 90- day period after the imposition of sentence, even absent a motion.

Id. at 723 , 666 A.2d at 911 . In addition, Maryland Rule 764(b) allowed a party to file a motion to revise a sentence within 90 days of the imposition of sentence, after which the court could modify the sentence “any time ‘thereafter.’” Id. In 1984, the modern Maryland Rules were adopted, and Maryland Rule 764(b) became Maryland Rule 4-345(b). Steven Grossman & Stephen Shapiro, Judicial Modification of Sentences in Maryland, 33 U. BALT.

L. REV. 1, 6 n. 33 (2004). Rule 4- 345(b) placed no time limit on the trial court’s authority to revise a sentence upon a motion timely filed within 90 days of the imposition of sentence. See Greco v. State, 347 Md. 423 , 7 435, 701 A.2d 419, 424-25 (1997) (“[T]he history of . . . Maryland [R]ule [4-345] supports the proposition that once a defendant files a motion for modification of a sentence within the mandatory 90 day period, the trial court does not lose the power to act on that motion when the court holds the motion sub curia for months, or even years.”).

It was not until 2004 that the provision was renumbered as Rule 4-345(e), and the five-year limit on a court’s revisory power was adopted by this Court. See Tshiwala v. State, 424 Md. 612 , 616 n. 2, 37 A.3d 308 , 310 n. 2 (2012). Maryland Rule 4-345(e) and Postconviction Relief Under the Uniform Postconviction Procedure Act, a defendant may file one petition for postconviction relief “[f]or each trial or sentence[.]” Md. Code, Crim. Proc., § 7-103(a).

The petition “may not be filed more than 10 years after the sentence was imposed.” Md. Code, Crim. Proc., § 7-103(b). When a defendant receives ineffective assistance of counsel, he or she may be entitled to relief under the Act. See generally Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.Ed.2d 674 (1984).

As a post-trial remedy, a defendant is entitled to the relief that is needed to put the defendant in the position that he or she would have enjoyed but for counsel’s ineffectiveness. See Williams v. State, 326 Md. 367, 382-83 , 605 A.2d 103, 110 (1992) (holding that the appropriate relief was that which would “place [the defendant] in the same position he [or she] would have been in but for the incompetence of his [or her] counsel.”). In State v. Flansburg, we held that defense counsel’s failure to file a timely motion for modification, in contravention of a client’s directive to do so, constituted “a ground for the postconviction remedy of permission to file a belated motion for reconsideration of 8 sentence.” 345 Md. 694, 705 , 694 A.2d 462 , 468. The facts in Flansburg were not complex.

On December 5, 1985, John Flansburg (“Mr. Flansburg”) pleaded guilty to a second-degree sex offense and was sentenced to seven years’ imprisonment with four years suspended and five years’ probation upon release. Id. at 696, 694 A.2d at 463 . While on probation in 1990, Mr. Flansburg was convicted of battery and second-degree murder. Id.

A hearing was held on May 21, 1991 to review whether his probation should be revoked. Id. The court revoked Mr. Flansburg’s probation and reimposed the three years of his sentence that had previously been suspended. Id.

Subsequently, Mr. Flansburg made two timely written requests for his attorney to file a motion for modification. 3 Id. Notwithstanding his requests, Mr. Flansburg’s counsel failed to file the motion. Id. On February 5, 1994, Mr. Flansburg filed a petition for postconviction relief.

Id. at 697 , 694 A.2d at 463 . He argued that his counsel’s failure to file a motion for modification deprived him of his right to effective assistance of counsel. Id. The circuit court dismissed Mr. Flansburg’s petition, concluding that the Maryland Post Conviction Procedure Act did not apply to his revocation of probation hearing.

Id. at 697 , 694 A.2d at 463-64 . The Court of Special Appeals reversed the circuit court’s ruling and concluded that Mr. Flansburg had the right to effective assistance of counsel at his revocation of probation hearing. Id. 3 Mr. Flansburg requested that the motion be filed pursuant to Maryland Rule 4-345(b), which provided, in relevant part, that “[t]he court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition[.]” State v. Flansburg, 345 Md. 694 , 697 n. 1, 694 A.2d 462 , 463 n. 1 (1997). At the time Flansburg was decided, the five-year limit on a court’s revisory power was not codified.

See id. The court retained revisory power over a sentence indefinitely, so long as a timely motion for modification was filed. See Greco v. State, 347 Md. 423, 435 , 701 A.2d 419, 424-25 (1997). 9 at 697, 694 A.2d at 464 . We granted certiorari and, ultimately, affirmed the judgment of the Court of Special Appeals.

Id. We held that “[t]he failure to follow a client’s directions to file a motion [for modification of sentence] . . . is a ground for the postconviction remedy of permission to file a belated motion[.]” Id. at 705 , 694 A.2d at 468 . Flansburg made clear 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. Id.

To remedy counsel’s ineffectiveness, the postconviction court may permit a defendant to file a belated motion for modification of sentence. Id. At the time that Flansburg was decided, the five-year limitation on a court’s revisory power over a sentence did not exist. Thus, Flansburg leaves open the question of whether, or to what extent, a trial court’s revisory power extends over a motion for modification that is filed pursuant to an order for postconviction relief.

PARTIES’ ARGUMENTS The parties’ contentions amount to a dispute over the interpretation of Maryland Rule 4-345(e), and the circuit court’s power to modify Mr. Schlick’s sentence. The State asserts that the circuit court lacked revisory power over Mr. Schlick’s sentence and, thus, properly dismissed his motion. Mr. Schlick contends that the circuit court’s power to rule on his motion for modification was implicit in the postconviction relief granted to him. The State argues that the Court of Special Appeals erred in concluding that the circuit court retained fundamental jurisdiction over Mr. Schlick’s motion because the five- year period in Rule 4-345(e) is mandatory.

To support its position, the State cites to the plain text of Maryland Rule 4-345(e), which limits a circuit court’s revisory power to “five 10 years from the date the sentence originally was imposed.” Md. Rule 4-345(e)(1)(B). In addition, the State posits that the Rule’s history demonstrates that the five-year period was deliberately enacted to limit the trial court’s revisory power over sentences it has imposed.4 4 The State also argues that this Court’s caselaw, specifically Cardinell v. State, dictates that the time limits imposed by Rule 4-345(e) are mandatory. 335 Md. 381 , 644 A.2d 11 (1994), overruled on other grounds by State v. Green, 367 Md. 61 , 785 A.2d 1275 (2001). After oral arguments, on April 19, 2019, the State filed a Notice of Subsequent Authority with this Court. Therein, the State contends that in Cardinell, this Court held that the time limits specified in Rule 4-345(e) are “jurisdictional.” Id. at 392-93, 644 A.2d at 16 .

Therefore, according to the State, a circuit court cannot exercise revisory power over a sentence, except as authorized by Maryland Rule 4-345(e). The State’s Notice also brought to this Court’s attention our recent decision in Rosales v. State, 463 Md. 552 , 206 A.3d 916 (2019). In Rosales, we differentiated between a “jurisdictional” rule and a “claim processing” rule. Id. at 567-68 , 206 A.3d at 924-25 .

A “jurisdictional” rule is set forth by our State’s legislature through the passage of a statute. See id. at 567 , 206 A.3d at 924 . A “claim processing” rule does not involve a time limit prescribed by the legislature. See id.

For example, a court-made rule is a claim processing rule, and its purpose is “to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain