Tucker v. State

WILNER, Chief Judge. On January 2, 1990, appellant pled guilty in the Circuit Court for Montgomery County to attempted murder. The plea arrangement provided that appellant could receive a maximum of twenty years in prison. On March 6, 1990, the court sentenced him to fourteen years imprisonment.

On April 3, 1990, appellant filed an Application for a Review of Sentence by a three-judge panel pursuant to Md.Ann.Code art. 27, § 645JA and Maryland Rule 4-344. On June 5, 1990, the circuit court appointed a panel and set the hearing for August 17, 1990. By an order dated August 31, 1990, the circuit court substituted certain members of the panel and rescheduled the hearing for December 21, 1990. There is no evidence in the record indicating why the hearing was postponed or whether appellant objected to the postponement. 1 Following the hearing, the panel increased appellant’s sentence from fourteen to twenty years.

Appellant complains that the panel’s decision is invalid because the panel lost jurisdiction of his case when it failed to act within thirty days of the filing of the application for review, as specified in Md.Ann. Code art. 27, § 645JC. We disagree. Ordinarily, we would first determine whether the objection raised by the appellant on appeal was preserved below in accordance with Maryland Rule 8-131. Issues of subject matter jurisdiction are exempt from the preservation requirement, however.

Rule 8-131(a); Thompson v. State, 38 Md.App. 499, 501 , 381 A.2d 704 (1978). Therefore, to decide ²⁹⁷ if failure to object below is fatal would require addressing whether the thirty-day requirement is jurisdictional or procedural, which, in essence, is the substantive issue on appeal. Section 645JC is part of the subtitle of article 27 providing for the review of criminal sentences. Section 645JA permits a defendant who has received a sentence of more than two years’ imprisonment to have the sentence reviewed by a panel of three or more circuit court judges.

Md.Rule 4-344, which implements the statutory right, requires the circuit administrative judge to appoint a review panel promptly after notification by the clerk that an application for review has been filed. Section 645JC, coupled with Rule 4-344, sets forth the procedure to be followed by the panel. It first permits the panel to require the Division of Parole and Probation “to investigate, report, and make recommendations with regard to any such application for review” but imposes no deadline for the completion of such investigation or the filing of the report. Nor does Md.Ann.Code art. 41, § 4-609, the statute directing the Division to make pre-sentence investigations when requested by the court.

Presumably, the panel need not consider the application until any requested report is received. Section 645JC and Rule 4-344(e) permit, but do not require, the panel to hold a hearing on the application. Section 645JC nonetheless provides that “[t]he decision of the panel in each review shall be rendered by a majority of the members of the panel and shall be rendered within thirty days from the filing date of the application for review.” (Emphasis added.) Rule 4-344(f) provides that the panel “shall file a written decision with the clerk within 30 days after the application is filed.” It is these provisions that appellant contends are jurisdictional in nature, divesting the panel of jurisdiction to act on an application after the passage of 30 days. In dealing with statutory commands, including time provisions such as these, courts often speak in terms of ²⁹⁸ whéther they are “mandatory” or merely “directory.” See, for example, Resetar v. State Bd. of Education, 284 Md. 537, 547 , 399 A.2d 225 , cert. denied, 444 U.S. 838 , 100 S.Ct. 74 , 62 L.Ed.2d 49 (1979).

The suggestion implicit from such an analysis is that, if the command is “mandatory,” some fairly drastic sanction must be imposed upon a finding of noncompliance, whereas if the command is “directory,” noncompliance will result in some lesser penalty, or perhaps no penalty at all. That, indeed, is really the issue. When a legislative body commands that something be done, using words such as “shall” or “must,” rather than “may” or “should,” we must assume, absent some evidence to the contrary, that it was serious and that it meant for the thing to be done in the manner it directed. In that sense, the obligation to comply with the statute (or rule) is both mandatory and directory.

The relevant question in such a case is whether the sanction sought for noncompliance is an appropriate one. We suggested that this was the proper focus in Peoples Counsel v. Pub. Serv. Comm’n, 52 Md.App. 715, 451 A.2d 945 (1982).

With the adoption of Md.Rule 1-201