State v. Ward

Orth, C. J., delivered the opinion of the Court. A decade ago the General Assembly, recognizing the considerable discrepancy in imposing punishment upon conviction of criminal offenses, appreciating the need for reasonable uniformity in sentencing practices, and aware of the problems arising from sentence disparity, 1 enacted legislation to alleviate the situation. Chapter 288, Acts 1966, by legislative direction to be implemented by appropriate rules of procedure promulgated by the Court of Appeals, established a procedure for review of criminal sentences. As subsequently amended the statute is now codified as Art. 27, §§ 645JA-645JG 2 and is implemented by Maryland Rule 762.

The appeal before us presents a question basic to this procedure — when can it be invoked? Although the question was raised and decided below, and briefed and argued on appeal, we may not answer it. We are obliged to leave the bench, prosecutors, defense counsel and those persons most directly affected — convicts under sentence, in a quandary. We have no authority to entertain the appeal.

We must ⁷⁰ dismiss it without consideration of the merits of the substantial question posed. The appeal travelled this path to us. On 9 May 1974, in the Circuit Court for Montgomery County, David Edward Ward made a judicial confession by way of a plea of guilty to the first count of the indictment returned against him, which presented that on 3 October 1973, in the daytime, he unlawfully broke a dwelling house with intent to steal the personal goods of another. The plea was accepted by McAuliffe, J., who then found Ward guilty of the offense.

On 6 September 1974, upon receipt of a pre-sentence investigation report, sentence was imposed. Ward was committed to the jurisdiction of the Division of Corrections for three years. The execution of the sentence was suspended, and he was placed on probation for three years under the usual general conditions with special conditions specified. 3 On 17 March 1975 the State filed a petition alleging that Ward had violated the terms of his probation contract by leaving his residence and employment without the consent of the probation agent, which was prohibited by general condition 6, and by failing to make restitution as required by special condition 2. On 22 April 1975, upon motion by the State and order of the court, another allegation was added to the petition, namely, that on 4 April 1975 in the Circuit Court for Montgomery County, Ward had been convicted of attempting to break a storehouse on 30 January 1975 and sentenced to one year.

On 22 April 1975 the petition was heard in the Circuit Court for Montgomery County, McAuliffe, J. presiding. Ward was found to have violated the conditions of the probation. Probation was revoked, and the suspension of the execution of the sentence was stricken. Ward was remanded to the custody of the Division of Corrections to serve the three year sentence imposed on 6 September 1974.

On 24 April 1975 he filed a petition for a review of the sentence, and a three judge review panel was appointed. Code, Art. 27, § 645JA. The ⁷¹ petition was heard by the panel on 3 July 1975. On 8 July the members of the panel issued an order declaring that it was their unanimous opinion, concurred in by McAuliffe, J., 4 that the sentence imposed on 6 September 1974 for a term of three years remain unchanged.

The order continued: “After serving eighteen (18) months accounting from April 22, 1975, which shall be served in the Montgomery County Detention Center, execution of the balance of the sentence is suspended and the defendant may be released on supervised probation, which shall include all of the special conditions imposed by Judge McAuliffe on said September 6, 1974.” On 28 July 1975 the State noted an appeal in these terms: “The Clerk of the Court will please note an appeal of the review of sentence in the above-captioned case on behalf of the State of Maryland to the Court of Special Appeals.” Ward’s brief includes a motion to dismiss the appeal. Maryland Rule 1036, § d. The motion asserts that the appeal “is not permitted or allowed by law. ...” Rule 1035, § b 1. Ward claims that there is no right of appeal from an order of a sentence review panel.

We so concluded in Glass v. State, 24 Md. App. 76, 79 (1974): “The appellate jurisdiction of the Court of Special Appeals of Maryland is bestowed by legislative enactment. The statutes provide no right of appeal to that Court by a person from an order of a sentence review panel nor is an appeal from such an order designated to be within its appellate jurisdiction. Under Courts Art. § 12-301 ‘.. . a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, ⁷² statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.’ A sentence review panel is not a court. ‘ “Circuit court” means the circuit court for a county . . .’ and the courts of the Supreme Bench of Baltimore City.

Courts Art. § 12-101 (d). The right of appeal from the order of a sentence review panel is clearly not within the contemplation of Courts Art. § 12-301. Courts Art. § 12-308 specifically designates those actions, cases, causes, suits or proceedings with respect to which the Court of Special Appeals of Maryland has exclusive initial appellate jurisdiction. Proceedings before a sentence review panel is not among them.” (footnotes omitted) See Johnson v. State, 274 Md. 29, 42, n. 7 (1975).

Thus, no person has the right to appeal from the action taken by a sentence review panel with respect to the sentence reviewed. 5 As we have indicated, the appeal here was noted by the State. The general statutory provision of Courts Art. § 12-301 that a party may appeal from a final judgment entered in a civil or criminal case by a circuit court is limited. Former Code, Art. 5, § 14, provided: “The State may appeal to the Court of Special Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action. . . .” The section was repealed by Acts 1973, 1st Sp. Sess. ch. 2, § 2, effective 1 January 1974, upon revision of the Code, but according to the Revisor’s Note, Courts Art. § 12-302 (c), which replaced it, is essentially the language of Art. 5, § 14.

Section 12-302 (c) reads: “In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.” Whether the revised statute ⁷³ makes any substantive change or not, but see Welch v. Humphrey, 200 Md. 410, 417 (1952), it is manifest that the right of the State to appeal in the case sub judice is not authorized by either the former statute or the present statute. But see Ch. 49, Acts 1976, effective 1 July 1976 and to be construed “only prospectively”, codified as Courts Art. § 12-302 (c) (2), authorizing the State to appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the code. Although the statutory limitation of the right of the State to appeal in a criminal case has been further limited by judicial interpretation, see Lohss and Sprenkle v. State, 272 Md. 113 (1974), there is a recognized exception to the limitation. Two recent cases of the Court of Appeals, State ex rel.

Sonner v. Shearin, 272 Md. 502 (1974) and State v. Wooten, 277 Md. 114 (1976), make clear that the State may appeal to the Court of Special Appeals 6 from the denial by a trial court of a motion by the State to correct a sentence alleged to be illegal and imposed upon conviction of a crime committed prior to 1 January 1974. 7 Shearin decided, and Wooten confirmed, that the holding in State v. Fisher, 204 Md. 307 (1954), considered in the light of the language used in Liquor Board v. Handelman, 212 Md. 152 (1957) and the subsequent holding in State v. Jacob, 234 Md. 452 (1964) was authority for an appeal by the State from the imposition of ⁷⁴ an illegal sentence since “the issue of the trial court’s jurisdiction is involved in the sense of whether it exceeded the powers vested in it by prescribing a penalty contrary to law. A lower court which thus exceeds its power must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error.” 272 Md. at 526. The question at this point in our consideration is whether the appeal by the State here is with respect to a sentence claimed to be illegal.

We first observe that although the panel did not change the term of 3 years imposed by the trial court it did change the sentence as reinstated upon the finding by the trial court that Ward had violated his probation contract. The sentence imposed upon conviction and reinstated by the revocation of probation and the striking of the suspension of execution was that Ward be committed to the jurisdiction of the Division of Corrections for 3 years. The panel modified this by specifying that after serving 18 months in the Montgomery County Detention Center, the balance of the 3 year sentence was to be suspended and Ward was to be released on supervised probation, including all the special conditions specified by the trial court when granting probation when sentence was originally imposed. The sentence as changed