Carlini v. State

Decision Date18 December 2013
Docket NumberSept. Term, 2012.,No. 1000,1000
Citation81 A.3d 560,215 Md.App. 415
PartiesJoseph A. CARLINI v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Martha Gillespie (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Ryan R. Dietrich (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: WOODWARD, HOTTEN, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

What is an illegal sentence? That all depends upon what one means by “an illegalsentence.” There are countless illegal sentences in the simple sense. They are sentences that may readily be reversed, vacated, corrected or modified on direct appeal, or even on limited post-conviction review, for a wide variety of procedural glitches and missteps in the sentencing process. Challenges to such venial illegalities, however, are vulnerable to such common pleading infirmities as non-preservation and limitations. There is a point, after all, beyond which we decline to revisit modest infractions. There are, by contrast, illegal sentences in the pluperfect sense. Such illegal sentences are subject to open-ended collateral review. Although both phenomena may casually be referred to as illegal sentences, there is a critically dispositive difference between a procedurally illegal sentencing process and an inherently illegal sentence itself.1 IT IS ONLY THE LATter that is grist for the mill of maryland rule 4–345(a):

(a) Illegal sentence. The court may correct an illegal sentence at any time.

The Present Case

On September 2, 2008, the appellant, Joseph A. Carlini, entered a guilty plea before Judge William J. Rowan, III, in the Circuit Court for Montgomery County to charges of 1) a felony theft scheme, 2) fraudulent practices in the sale of securities, and 3) acting as a broker without being registered by the State. The actual sentencing, after a series of postponements, was deferred until November 26, 2008.

The sentence that concerns us was on the first count, charging a scheme of felony theft. Judge Rowan sentenced the appellant on that count to a term of ten years imprisonment with all but four years suspended, to be followed by five years of supervised probation. The appellant was also ordered to pay restitution to 41 victims of his theft in amounts set forth in the State's “Memorandum Regarding Restitution.”

The appellant was released from jail on August 20, 2009. Over the course of the next nine months, he paid $9,106 toward his restitution obligation but was nonetheless in arrears in the amount of $5,630.82. On May 25, 2010, he appeared in circuit court on a charge of having violated his probation because of that arrearage. The court found the appellant to be in violation of probation, but acceded to defense counsel's request that the imposition of any sentence be stayed to allow him to become current with his restitution obligation. The court set an interim hearing for July 27, 2010. At the July 27 hearing, the State reported that the appellant, through a lump sum payment of $19,000 on July 16, had become current on his restitution obligation. The court agreed that an impositionof sentence for a probation violation was not warranted at that time and set another hearing for December 3, 2010. At the December 3 hearing, however, the State brought out that the appellant had made no payments toward restitution since July and showed no signs of being able to do so in the foreseeable future. Judge Rowan ordered that the six years of suspended incarceration be served. At no time during all of those hearings did the appellant suggest that the restitution obligation was in any way in violation of his plea agreement.

It was on May 21, 2012, that the appellant claimed for the first time that the restitution order was an illegal sentence because it was a sanction beyond the scope of his plea agreement. That Motion to Correct an Illegal Sentence was denied, without a hearing, by Judge Michael J. Algeo on June 13, 2012. It is from that denial that the appellant has taken this appeal.

The Contention

The appellant's single contention focuses exclusively on the hearing of September 2, 2008, at which the appellant entered his guilty pleas. He argues that, as defense counsel and the prosecutor explained to Judge Rowan the terms of their plea agreement, the only criminal sanction expressly mentioned was a term of imprisonment. The agreement, ultimately accepted by Judge Rowan, did not place any upper limit on the term of imprisonment that might be imposed but did place a “cap of not more than four years on executed incarceration.” Any distinction between the formal term of imprisonment and the unsuspended or “hard time” to be served is not a factor in this case.

The contention, rather, is that imprisonment was the only sanction expressly mentioned at the guilty plea hearing and that any other sanction, such as a fine or restitution or some other probationary condition, does not fit under that explicit sentencing cap and would render the sentence illegal. The argument is that anything other than literal imprisonment is ipso facto excessive. The appellant specifically contends that the orders of restitution exceeded the sentencing cap and are, therefore, illegal under Rule 4–345(a). What the appellant seeks is to have the restitution orders eliminated from his sentence.

Rule 4–345(a): What It Is And What It Is Not

Although its identifying tags have regularly been updated, the substance of Rule 4–345(a) has long been with us and has been unwavering. The Rules of Criminal Procedure were completely recodified by an Order of the Court of Appeals dated April 6, 1984 and effective as of July 1, 1984. What is now Rule 4–345(a) had theretofore been codified, verbatim, as Maryland Rule 774(a). That provision, prior to an earlier revision adopted on January 31, 1977 and effective as of July 1, 1977, had, in turn, been codified as Maryland Rule 764(a). Before a yet earlier rewriting of the Maryland Rules of Procedure, adopted on September 15, 1961 and effective as of January 1, 1962, the provision, in precisely the same language, had been Rule 744(a). Before 1962, that same unchanged provision had been Rule 10(a) of the Criminal Rules of Practice and Procedure. We have not looked further back.2Rule 4–345(a) and its predecessors have produced a sprawl of haphazard caselaw that needs some organization.

A. What Rule 4–345(a) Is

Although an illegal sentence may, of course, be challenged on direct appeal, some illegal sentences (as distinguished from all) may be challenged long after the time for noting an appeal has run out and notwithstanding the fact that the defendant 1) failed to object to the sentence at the trial level, 2) purportedly consented to the sentence, or 3) failed to challenge the sentence by way of direct appeal. This plenary indulgence was noted by Judge Eldridge for the Court of Appeals in Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985):

We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4–345(a), formerly Rule 774 a, provides that [t]he court may correct an illegal sentence at any time.” Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.

(Emphasis supplied).

State v. Griffiths, 338 Md. 485, 496, 659 A.2d 876 (1995), commented on Rule 4–345(a)'s ability thus to trump the normally foreclosing effect of finality:

This Rule creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.

(Emphasis supplied). See also Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012).

In Chaney v. State, 397 Md. 460, 466, 918 A.2d 506 (2007), Judge Wilner commented on the procedurally uninhibited nature of a Rule 4–345(a) challenge:

A criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons. Through its adoption of what is now Maryland Rule 4–345 and through its decisional jurisprudence, this Court has created two categories of deficiency and has treated those categories differently. Maryland Rule 4–345(a) permits a court to “correct an illegal sentence at any time.” If a sentence is “illegal” within the meaning of that section of the rule, the defendant may file a motion in the trial court to “correct” it, notwithstanding that (1) no objection was made when the sentence was imposed, (2) the defendant purported to consent to it, or (3) the sentence was not challenged in a timely-filed direct appeal.

(Emphasis supplied).

Rule 4–345(a) is virtually identical to an earlier version of Federal Rule of Criminal Procedure 35. Johnson v. State, 274 Md. 29, 39, 333 A.2d 37 (1975) (Rule 35 of the Federal Rules of Criminal Procedure ... is virtually identical to the provisions of Maryland Rule 764a.”). Rule 35(a) provided, “The court may correct an illegal sentence at any time.” 3 Although Federal Rule 35, as it then was phrased, is not constitutionally binding, the cases interpreting it are persuasive authority. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court was dealing with a situation in which a prisoner at his sentencing was denied the opportunity, by way of allocution, to make a statement on his own behalf. In distinguishing an inherently illegal sentence from a procedural illegality occurring in the course of the sentencing, the Court held, 368 U.S. at 430, 82 S.Ct. 468:

It is suggested that ... we may consider it [the motion before the Court] as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This...

To continue reading

Request your trial
126 cases
  • State v. Williams
    • United States
    • Court of Special Appeals of Maryland
    • August 31, 2022
    ...or trial error antecedent to the imposition of sentence" but rather, "inhere[s] in the sentence itself." Carlini v. State , 215 Md. App. 415, 425-26, 81 A.3d 560 (2013) ; see Maryland Rule 4-345(a).Because we have determined that Mr. Williams's sentence is illegal, his sentence must be vaca......
  • Pitts v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 29, 2021
    ...sentence" within the strictly limited coverage of Rule 4-345(a) is an appropriate place to begin our analysis. In Carlini v. State, 215 Md. App. 415, 419-20, 81 A.3d 560 (2013), this Court examined that nuanced definition:What is an illegal sentence? That all depends upon what one means by ......
  • Lindsey v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 27, 2014
    ...agreement—have applied contract principles. See, e.g., Cuffley v. State, 416 Md. 568, 579–80, 7 A.3d 557 (2010); Carlini v. State, 215 Md.App. 415, 446, 81 A.3d 560 (2013). In Rankin v. State, 174 Md.App. 404, 921 A.2d 863 (2007), we explained: “[S]everal courts have noted that the terms of......
  • Pitts v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 29, 2021
    ...sentence" within the strictly limited coverage of Rule 4-345(a) is an appropriate place to begin our analysis. In Carlini v. State, 215 Md. App. 415, 419-20, 81 A.3d 560 (2013), this Court examined that nuanced definition:What is an illegal sentence? That all depends upon what one means by ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT