Arias-Rivera v. State
| Decision Date | 02 July 2020 |
| Docket Number | No. 3223, Sept. Term, 2018,3223, Sept. Term, 2018 |
| Citation | 230 A.3d 178,246 Md.App. 500 |
| Parties | Roberto Carlos ARIAS-RIVERA v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Submitted by: Pro Se Litigant for Appellant
Submitted by: Cathleen C. Brockmeyer (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.
In April 2010, a jury sitting in the Circuit Court for Montgomery County convicted Roberto Carlos Arias-Rivera of sexual abuse of a minor, rape, and other offenses for, among other things, having vaginal intercourse with his eleven-year-old step-daughter. The circuit court sentenced Mr. Arias-Rivera to fifty years' imprisonment. We affirmed his convictions on direct appeal. Roberto Carlos Arias-Rivera v. State , No. 930, Sept. Term 2010, slip op. (Md. App. Mar. 14, 2012).
On November 27, 2018, Mr. Arias-Rivera filed a motion to correct an illegal sentence, arguing that the circuit court failed to include in his sentence a term of extended parole supervision under Maryland Code, § 11-723 of the Criminal Procedure Article ("CP").1 The circuit court summarily denied the motion without a hearing. We vacate and remand to the circuit court with instructions to include in Mr. Arias-Rivera's sentence a term of extended parole supervision, as the plain language of CP § 11-723 required at the time of his sentencing.
The events underlying Mr. Arias-Rivera's convictions took place over the course of two days, on September 28 and 29, 2009.2 After a two-day trial in April 2010, the jury convicted him of sexual abuse of a minor, second-degree rape, second-degree sexual offense (two counts), and third-degree sexual offense. On June 22, 2010, the circuit court sentenced him to a total of fifty years: fifteen years for child sex abuse, ten consecutive years for second-degree rape, ten consecutive years for each of the two second-degree sexual offense convictions, and five consecutive years for third-degree sexual offense. The court did not refer to extended sexual offender parole supervision at the sentencing hearing.
Mr. Arias-Rivera filed a motion to correct an illegal sentence under Maryland Rule 4-345. He argued before the circuit court, as he does on appeal, that his sentence must be amended to include a specific term of extended parole supervision under the version of CP § 11-723 in effect at the time of his sentencing. The circuit court denied Mr. Arias-Rivera's motion without a hearing or explanation.
Mr. Arias-Rivera raises two questions on appeal,3 although we address the merits of only the first, which we rephrase:
did the circuit court impose an illegal sentence by not including in Mr. Arias-Rivera's sentence a term of extended sexual offender parole supervision?4 We decline to address the second question—whether retroactive application of the later versions of CP § 11-723 would violate ex post facto prohibitions—because it is not ripe.
Maryland Rule 4-345(a) permits a court to "correct an illegal sentence at any time." An "illegal sentence" is "limited to those situations in which the illegality inheres in the sentence itself." Chaney v. State , 397 Md. 460, 466, 918 A.2d 506 (2007). "A sentence that is not permitted by statute is an illegal sentence." Holmes v. State , 362 Md. 190, 195–96, 763 A.2d 737 (2000) ; State v. Crawley , 455 Md. 52, 66, 166 A.3d 132 (2017) (). Whether a sentence is an illegal sentence is a question of law that is subject to de novo review. Crawley , 455 Md. at 66, 166 A.3d 132.
At the time Mr. Arias-Rivera was sentenced, CP § 11-723 required a sentence of an "extended parole supervision offender" to include a term of extended parole supervision. The term "[e]xtended parole supervision offender" is defined in the statute, and neither Mr. Arias-Rivera nor the State disputes that he meets that definition. From our review of the record, we agree.5 The question is whether the circuit court was required specifically to include a term of extended sexual offender supervision when it sentenced him. As we read the plain language of the statute, it was, and a sentence that didn't include supervision specifically is an illegal sentence.
At the time Mr. Arias-Rivera was sentenced, CP § 11-723 provided that "a sentence for an extended parole supervision offender shall include a term" of supervision, that the term would start after the end of the later of the offender's term of imprisonment, probation, parole, or other mandatory supervision, and that the term must last a minimum of three years up to a maximum of life:
The parties did not cite, and we did not find, any reported Maryland cases addressing the legality of a sentence that omits a term of extended parole supervision under this version of CP § 11-723. But as a general matter, "[c]ourts do not possess the authority to impose a sentence that does not comport with a legislatively-mandated sentence ...." Crawley , 455 Md. at 66, 166 A.3d 132. And in this case, Mr. Arias-Rivera's sentence is illegal because it failed to include, as CP § 11-723 required, a "term of extended sexual offender parole supervision." See Holmes , 362 Md. at 195–96, 763 A.2d 737 (); see also Greco v. State , 427 Md. 477, 513, 48 A.3d 816 (2012) (). For that reason, we vacate Mr. Arias-Rivera's sentence and remand the case to the circuit court with instructions to impose a term of extended parole supervision as required by the applicable version of CP § 11-723.
The State does not address directly the outright omission of extended parole supervision from Mr. Arias-Rivera's original sentence, nor does it dispute that Mr. Arias-Rivera's sentence failed to include a term of extended parole supervision or that CP § 11-723 required Mr. Arias-Rivera's sentence to include a term of supervision. The State argues instead, and the dissent agrees, that the requirement to serve a term of supervision inheres by operation of law, whether the court declared it or not. To us, though, the plain language of CP § 11-723 —that "a sentence for an extended parole supervision offender shall include a term of extended sexual offender parole supervision"—the statute required the court to do so.
Reading CP § 11-723 in context, as enacted in 2006, supports this conclusion. First , the phrase "a sentence ... shall include" contrasts with the phrasing for the sex offender registration requirement, which was not (and still is not, as we discuss below) stated in terms of being included in the sentence. 2006 Md. Laws 1st Sp. Sess., Ch. 4. Instead, the statutes (often referred to as the Maryland Sex Offender Registration Act ("MSORA"), CP §§ 11-701 – 11-727 ) simply required certain individuals to register with the "supervising authority" and with local law enforcement authorities:
2006 Md. Laws 1st Sp. Sess., Ch. 4. "Child sexual offender," "offender," "sexually violent offender," and "sexually violent predator" were defined terms, and all were defined as individuals convicted of certain crimes. CP § 11-701(b), (d), (f), (h). "Offender" was a catch-all provision that included the additional requirement that a court order registration. CP § 11-701(d). But the requirement that a court order registration is not the same as the requirement that a court include registration in a sentence. See generally Cain v. State , 386 Md. 320, 329–334, 872 A.2d 681 (2005) (). Although, in practice, sentencing courts often do include registration in the sentence and on the commitment record, we are aware of no case in which a sentence was found to be illegal because it omitted the registration requirement. Cf. Cain , 386 Md. at 338, 340, 872 A.2d 681 ().6
Second , although the 2006 version of MSORA included a role for the Maryland Parole Commission in administering extended parole supervision, see, e.g. , § 7-206(6) of the Correctional Services Article (2006...
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