Strickland v. State

ELDRIDGE, J. The dispositive issue in this criminal case is whether the circuit judge, who presided over the trial and sentenced the defendant, erred, by ruling on a motion for modification of sentence pursuant to Maryland Rule 4-345(e)(l), after the Administrative Judge had assigned the matter to a different circuit judge. 1 ³⁴⁷ I. The petitioner, Donovan Strickland, was charged with first degree murder, robbery with a deadly weapon, and use of a handgun in the commission of a felony. Strickland was tried before a jury in the Circuit Court for Prince George’s County, with Judge Richard H. Sothoron, Jr., presiding, from January 5 through January 8, 1998. The jury returned a verdict of guilty on the charges of robbery with a deadly weapon and use of a handgun in commission of a felony, but it failed to reach a verdict on the murder charge. After discussions among defense counsel, the prosecuting attorney and the trial judge, including discussions in the trial judge’s chambers on March 2, 1998, which were not recorded, Strickland, pursuant to a plea agreement, entered a plea of guilty to first degree felony murder on March 3, 1998.

Although the terms of the plea agreement have been and are currently disputed, the record reflects the following colloquy between the trial judge and Strickland prior to acceptance of the guilty plea on March 3rd: “The Court: What I indicated to Mr. Blumenthal [defense counsel] is that if you conduct yourself in a well-mannered posture, that is to say, you refrain from getting into any disciplinary problems to speak of while you are incarcerated, the Court would be inclined to favorably consider [a] motion [for modification of sentence] at some point in time in the future. “And let’s suppose, hypothetically, that I imposed a sentence today of life in prison, under felony murder, if that were to happen, then the prior convictions the jury has rendered as to robbery with a deadly weapon would merge into the felony murder. The law does not allow a judge to ³⁴⁸ impose a sentence for the robbery with a deadly weapon in addition to the life sentence. “Do you understand that, Mr. Strickland? “The Defendant: I do. “The Court: Okay. So that means that if the Court, one, did not impose life without parole, and I indicated to Mr. Manico [the prosecutor] and Mr. Blumenthal that in all likelihood I’m not going to do that today, I would be inclined to impose a life sentence, and I would be inclined to favorably consider a motion for reconsideration of sentence if you do what I just indicated that you should do, and that is to conduct yourself as a model inmate, then the Court would be inclined to grant at a point in time in the future, which is yet to be determined, relief by granting your motion for reconsideration of sentence to the extent that I would reconsider your sentence by suspending a portion of your life sentence down to 50 years.” The trial judge accepted Strickland’s guilty plea, sentenced him to life imprisonment for felony murder, imposed no sentence on the robbery conviction because of merger, and sentenced Strickland to a concurrent 20-year term of imprisonment for the handgun offense. Strickland’s motion for modification of the sentence, pursuant to Rule 4-345(e)(1), was filed two days later, on March 5, 1998.

The trial judge held that motion under advisement for several years. A hearing on the modification motion was held on October 14, 2005, and November 17, 2005. At the beginning of the recorded portion of the October hearing, the trial judge referred to the judge and the attorneys “hav[ing] just listened at the bench to the court reporter’s reciting,” based upon the transcript of the March 3, 1998, sentencing, “what the plea agreement was.” The trial judge also pointed out that the court reporter’s reading of the March 3, 1998, transcript “referenced that I had alluded to a conference in chambers the day before,” i.e., on March 2, 1998. In addition, the trial judge indicated that his understanding, when he accepted the ³⁴⁹ guilty plea, was that he “would be inclined to reconsider, down the road, if Mr. Strickland was a model inmate” but that “I didn’t give any promises as to what I would do nor, did I absolutely bind myself.” Defense counsel, who was the same attorney who had represented Strickland at the trial and sentencing, stated that his understanding of the plea bargain, including the position of the trial judge on March 2 and 3, 1998, was different.

The defense attorney represented that his “understanding of the nature of the agreement was that, if I may use the word, it was written in stone. We would return here at a later point and, if he was a model prisoner, he would get life, suspend all but 50. By model prisoner, I understood that to mean he was to remain significantly infraction-free, no real infraction, Your Honor.” Defense counsel then requested a continuance to search for any record of the proceeding in the trial judge’s chambers on March 2, 1998, and to contact the original prosecutor in the case. 2 The trial judge, however, had the court reporter put under oath and testify as a witness. The reporter testified that there existed no recording and no notes of what transpired at the proceeding in chambers on March 2, 1998, although the transcript of the March 3rd sentencing clearly referred to the proceeding in the judge’s chambers on March 2nd.

Next, the Assistant State’s Attorney representing the State at the October 2005 hearing said that he had spoken with the original prosecutor “this week” and that the original prosecutor had no “strong recollection” of the plea agreement and that his recollection “was unclear.” The trial judge also ³⁵⁰ disclosed that he had talked to the original prosecuting attorney and that “I suggested to him that his input was important from the State’s perspective. That’s all I recall talking to him about it. I didn’t go into specifics at all.” Defense counsel responded that the testimony or an affidavit from the original prosecuting attorney should be obtained, and that it would be “wise to have alternate counsel who will represent Mr. Strickland, and they may see fit to call me and elicit testimony.” Defense counsel then alluded to the trial judge’s having previously disclosed to counsel for both sides that the judge had on some prior occasions spoken with the father of the homicide victim in the case, and that the father had, in the judge’s words, “taken an active role on various victims’ rights issues since this case.” In light of the factual dispute over the terms of the plea agreement, the trial judge’s ex parte conversation with the original prosecuting attorney, and the trial judge’s contacts with the decedent’s father, defense counsel made a motion that the trial judge recuse himself and have another judge rule on the motion to modify Strickland’s sentence. The Assistant State’s attorney replied that, in his view, there was no reason to elicit the testimony of the original prosecuting attorney because the nature of the plea agreement was set forth in the transcript of the sentencing on March 3,1998.

Regarding the trial judge’s conversations with the decedent’s father, the Assistant State’s Attorney said that “I don’t know if you’re going to find a judge in the courthouse who does not know [the decedent’s father]. He’s been quite active in many cases in this courthouse.” The prosecuting attorney continued: “[A]s to the recusal, that’s pretty much up to the Court. I don’t know if the State really has an opinion on that....” The trial judge denied the motion for recusal, denied the motion to continue the hearing, stated that he was going to consider “[h]ow has Mr. Strickland fared since he’s been ³⁵¹ detained,” and directed that Strickland take the witness stand and be sworn. Strickland testified that during his incarceration he had been written up by a prison official in a matter involving “[d]isrespect, [and] a verbal disagreement.” He also testified that the violation was given a category 4 classification, the least serious class of infractions, and that, after five years, the violation should have been removed from his record.

Following Strickland’s testimony, the trial judge asked the Assistant State’s Attorney about Strickland’s eligibility for parole under his current sentence and how the requested sentence modification might affect his parole eligibility. After some discussion among the judge and the attorneys concerning this matter, the trial judge decided that he would continue the hearing until a later date in order for the prosecuting attorney and the defense attorney to check into Strickland’s parole status and his disciplinary record. The hearing was resumed on November 17, 2005. At the beginning of the resumed hearing, the trial judge stated that he had contacted Strickland’s classification officer who informed the judge that Strickland had one disciplinary matter on his record, in March 1998, “for failure to obey a direct order and he had to serve 15 days in lockup.

The essence of it was that he used vulgar language. He had been a barber since May of '99, and he had been determined by [the classification officer] and staff members to be trustworthy.” The trial judge said that the classification officer told the judge that Strickland “is under protective custody” because “his welfare was in jeopardy because of cooperation in this case.” The trial judge also said that he had discussed with the classification officer Strickland’s parole eligibility. In addition, the trial judge disclosed that, “about three weeks ago,” the judge spoke with the “Chief Attorney” in the Governor’s office about the Governor’s policy regarding the parole of inmates serving life sentences. The trial judge indicated that, in the judge’s view, Strickland would likely serve more time if ³⁵² the motion for modification of sentence were granted.

The trial judge also reiterated his understanding of the plea agreement, namely that “this matter is in my discretion and I’m not locked into anything.” Defense counsel indicated disagreement with the judge’s view that Strickland would be better off if the motion for modification of sentence were denied. Counsel represented that Strickland desired “a hard number on his sentence.” Defense counsel went on to emphasize his different understanding of the plea arrangement, stating: “I do want to clarify something that I said at the last hearing. I indicated at the last hearing that it was my understanding that Your Honor had indicated that if he remained infraction free, Your Honor would suspend the last part of the life sentence. In fact, Your Honor, I misstated that.

When Mr. Manico and I and Your Honor had a conversation before the plea was held about what might happen on a reconsideration of sentence, Your Honor indicated that you would reconsider the life [and] suspend all but 50 on a reconsideration. It was at the [March 3, 1998,] hearing, for the first time, when a reference was made to remaining infraction free.... “But before the plea, that wasn’t part of what we discussed. I think, Your Honor, with all due respect, that Judge Sothoron was very, very clear that on a reconsideration, there would be a life suspend all but 50.” Defense counsel also pointed out that, because of the disagreement concerning the terms of the plea arrangement, he could no longer serve as the defendant’s attorney. The following colloquy among defense counsel, the trial judge, and the Assistant State’s Attorney, then took place: “MR.

BLUMENTHAL [DEFENSE COUNSEL]: My hope was Mr. Strickland would be able to obtain private counsel. I know there were efforts made in that regard. I know he talked to Mr. Bennett. Unfortunately, he’s unable to secure a private attorney.

So we request of this Court ³⁵³ now to assign a public defender to represent him, and whatever role they see fit to have me play— “THE COURT: The request is denied, Mr. Blumenthal. “MR. BLUMENTHAL: I’m not sure the State even opposes. “MR. MALONEY [ASSISTANT STATE’S ATTORNEY]: The State agrees that, I think, since he is a witness to this, he ... cannot testify and also be the attorney for Mr. Strickland. “THE COURT: I don’t think there is anything to testify to, Mr. Maloney. “MR. MALONEY: Well, I think that if both sides agree to it, Your Honor, I think it’s in the interest of justice— “THE COURT: There is no secret deal here.

Everything has been placed on the record. “MR. MALONEY: Well, that’s for a determination by fact. We have not had to call any witnesses to that matter, Your Honor. So I think we have to have that hearing. “THE COURT: I don’t think so, Mr. Maloney.

The transcript speaks for itself. It is clear that if I was going to consider reconsideration of sentence, it was abundantly clear that Mr. Strickland had to keep himself disciplinary free. It’s as simple as that. “MR. MALONEY: Well, Mr. Strickland’s attorney said you promised him in chambers to give him life suspend all but 50 with no qualifications, Your Honor.

If he does not get the reconsideration, he has a very valid right to appeal, and he has a right to have that hearing. If you grant it, the State has a reason to assert its objections, because you’ve made an agreement outside the record to the defendant that he should be getting something. So we have a right to have that hearing. Whether it’s from the defense side or from the State’s side, that hearing has got to be held, Your Honor. “THE COURT: I disagree with you. “MR.

MALONEY: Your Honor, if a promise has been made in chambers, and we have a member of the bar saying ³⁵⁴ that promise has been made, we have to have that hearing to find out. If another judge says it did happen or it didn’t happen, so be it. But then we can proceed. But at this point, Your Honor, we have to decide if that occurred.” After further discussion, the trial judge again denied the request for a hearing to determine the nature of the plea arrangement.

The judge adhered to the view that the transcript of the sentencing on March 3,1998, clearly disclosed the nature of the plea arrangement. The Assistant State’s Attorney then pointed out that the trial judge had “become a witness in this case.” Consequently, the Assistant State’s Attorney requested that the attorneys be given an opportunity to have the Administrative Judge, who was Judge William D. Missouri, decide the matter. 3 The Assistant State’s Attorney emphasized that a “hearing must be held” to determine “what happened in chambers [on March 2, 1998], and that’s the critical issue at this point, whether or not an agreement was made in chambers between you and the defendant.” The Assistant State’s Attorney stated that “[y]ou cannot be both the judge and the witness.” The trial judge, however, again disagreed with the position of defense counsel and the Assistant State’s Attorney. Immediately thereafter, Mr. Ivey, the State’s Attorney for Prince George’s County, represented to the trial judge that he had spoken with the Administrative Judge as well as the family of the victim, and that everyone agreed that the hearing on the motion for modification should be postponed and that the matter should be heard by another judge. The State’s Attorney informed the trial judge that the Administrative Judge had assigned Circuit Judge Michael P. Whalen to preside over the hearing on the motion to modify the sentence.

The trial judge suggested that the attorneys should again ³⁵⁵ speak with the Administrative Judge, and the trial judge recessed the proceeding. Later on November 17, 2005, the proceeding was resumed, and the trial judge acknowledged that the Administrative Judge had granted a continuance and that the entire matter was no longer before the trial judge. It was also pointed out that the Administrative Judge would determine whether the Public Defender’s Office should represent Strickland. A hearing on the motion for modification of the sentence was scheduled for February 1, 2006, before Judge Michael P. Whalen.

On December 30, 2005, however, prior to the scheduled hearing before Judge Whalen, the original trial judge (Sothoron, J.) signed and filed the following order: “NOW, THEREFORE, it is, this 30th day of December 2005, by the Circuit Court for Prince George’s County, “ORDERED, that Defendant’s Motion for Reconsideration of Sentence be and the same is hereby DENIED, without the need for any further hearing; and it is further “DETERMINED, that the Administrative Judge for the Circuit Court for Prince George’s County was without authority to continue the reconsideration of sentence hearing on November 17, 2005, said matter being solely within the discretion of the trial judge and any intervention in this case by the Administrative Judge for Prince George’s County was inappropriate.” A motion for reconsideration of the above-quoted order was filed and was denied by Judge Sothoron. Strickland appealed to the Court of Special Appeals, raising several issues. The intermediate appellate court, however, affirmed in an unreported opinion. With regard to the argument that the trial judge erred in denying the motion for modification of sentence after the matter had been assigned to another judge, the Court of Special Appeals stated: “Judge Sothoron was correct in his conclusion that the motion for reconsideration of sentence was within his sole discretion.

See Duffin v. Warden of Md. Penitentiary, 235 Md. 685, 686 , 202 A.2d 597 (1964) (‘¿A] motion for reduction ³⁵⁶ of sentence should be heard or otherwise disposed of by the court which imposed the sentence.’).” Strickland filed in this Court a petition for a writ of certiorari, raising the issues of (1) whether the trial judge erroneously “circumvented the ruling of the Administrative Judge granting” Strickland a hearing before a different circuit judge, (2) whether the trial judge should have recused himself under the circumstances, and (3) whether the trial judge abused his discretion by refusing to grant the motion for modification of the sentence. This Court granted the petition, Strickland v. State, 402 Md. 352 , 936 A.2d 850 (2007), and we shall reverse on the first issue presented, namely that the trial judge erred by ruling on the motion for modification of sentence after the Administrative Judge had assigned the matter to another judge. Consequently, we shall not reach the second and third issues raised by the petitioner.

II

The assignment of Maryland judges is provided for in Article IV, § 18, of the Maryland Constitution and in Maryland Rules 16-101 through 16-103, 16-201, and 16-202. Article IV, § 18, of the Constitution, provides, inter alia, that the Chief Judge of the Court of Appeals is the administrative head of the State’s Judicial system and that the Chief Judge may “assign any judge except a judge of the Orphans’ Court to sit temporarily in any court except an Orphans’ Court.” Article IV, § 18, also requires that the Court of Appeals “shall adopt rules and regulations concerning the practice and procedure in and the administration of ... the other courts of this State____” In addition, the constitutional provision states that the authority of all courts of the State over practice, procedure, and administration “shall be subject to the rules and regulations adopted by the Court of Appeals----” Maryland Rules 16-101, 16-103, 16-201, and 16-202 were adopted by the Court of Appeals pursuant to the mandate contained in Article IV, § 18, of the Constitution. ³⁵⁷ Rule 16-101 reiterates the broad administrative authority of the Chief Judge of the Court of Appeals, and, with regard to the circuit courts, the Rule confers upon Circuit Administrative Judges and County Administrative Judges extensive supervisory authority. Rule 16-101(a) provides in relevant part as follows: “Rule 16-101. Administrative responsibility. a.

Chief Judge of the Court of Appeals. 1. Generally. The Chief Judge of the Court of Appeals has overall responsibility for the administration of the courts of this State. In the execution of that responsibility, the Chief Judge: (D) may assign a judge of any court other than an Orphans’ Court to sit temporarily in any other court.” * * * Rule 16-101(c), relating to Circuit Administrative Judges, states in pertinent part: “c.

Circuit Administrative Judge. 1. Designation. In each judicial circuit there shall be a Circuit Administrative Judge, who shall be appointed by order and serve at the pleasure of the Chief Judge of the Court of Appeals. In the absence of any such appointment, the Chief Judge of the judicial circuit shall be the Circuit Administrative Judge. 2.

Duties. Each Circuit Administrative Judge shall be generally responsible for the administration of the several courts within the judicial circuit, pursuant to these Rules and subject to the direction of the Chief Judge of the Court of Appeals. Each Circuit Administrative Judge shall also be responsible for the supervision of the County Administrative Judges within the judicial circuit and may perform any of the duties of a County Administrative Judge.” Rule 16-101(d) confers supervisory authority upon County Administrative Judges, providing in relevant part as follows (emphasis added): ³⁵⁸ “d. County Administrative Judge. 1.

Designation. After considering the recommendation of the Circuit Administrative