Chaney v. State

• Decision Date: 14 March 2007
• Docket Number: No. 91, Sept. Term, 2006.,91, Sept. Term, 2006.
• Citation: 397 Md. 460,918 A.2d 506
• Parties: Jeffrey CHANEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

918 A.2d 506

397 Md. 460

Jeffrey CHANEY v. STATE of Maryland.

No. 91, Sept. Term, 2006.

Court of Appeals of Maryland.

March 14, 2007.

Katherine P. Rasin, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for appellant.

Celia Anderson Davis, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., on brief), for appellee.

Argued before RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned), LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

WILNER, J.

Following his conviction by a jury in the Circuit Court for Baltimore City of second degree assault, appellant was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditions attached to the probation were that appellant pay restitution to the victim in the amount of $5,000 within thirty months after his release from prison and that, upon his release, he become either employed full-time or enrolled as a full-time student. In this appeal, appellant contends that those two conditions attached to his probation are illegal.

We shall conclude that neither condition constitutes an illegal sentence for purposes of Maryland Rule 4-345(a), allowing a court to correct an "illegal sentence" at any time and without regard to waiver. Because of procedural lapses on appellant's part, we shall not address his complaint about the employment condition. We shall, however, exercise our discretion under Maryland Rule 8-131(a), address the restitution condition, and order that condition to be stricken on the ground that there was no request for restitution, no evidence to support the order, and, as a result, imposition of that condition constitutes plain error.

The facts underlying the offenses, which occurred on November 2, 2004, may be quickly summarized, as they have but tangential relevance to the issues now before us. The 78-year-old victim, Ernest Shiflett, was standing just outside his garage watching some workmen repair a sewer line adjacent to his home when appellant drove up, spoke briefly with the backhoe operator, then approached Shiflett, identified himself as a State construction inspector, handed Shiflett a business card, and told Shiflett that there were a lot of violations on the job and that he could shut the job down.¹ Shiflett knew appellant, having been friends with his father. They engaged in a brief conversation, during which appellant turned and accused two of the nearby workmen of not doing their job properly. At that point, Shiflett, believing that appellant was drunk and looking for trouble, asked him several times to leave. According to Shiflett, appellant threatened to "tear [Shiflett] apart with [his] bare hands," whereupon Shiflett procured a baseball bat from his garage, because he was afraid that the younger and heavier appellant would hurt him.

There was some dispute as to what occurred next. Shiflett said that appellant initially retreated down the driveway but then turned and came back. Shiflett again demanded that he leave, and when appellant threatened to "rip me to pieces," Shiflett drew the bat back but claimed that he did not swing it. Appellant grabbed the bat, threw Shiflett to the ground, hit him in the back of the head with the bat, and was preparing to hit him again when two of the workmen intervened. Appellant was able to escape their grasp, get into his car, and flee. A bystander confirmed some of Shiflett's account but said that Shiflett had swung the bat at appellant after instructing him to leave, that he lost his balance, and that appellant then grabbed the bat and hit Shiflett in the head twice with it. The next day, appellant appeared at a police station and claimed that he had been assaulted by Shiflett, and he testified to that effect at trial. By finding appellant guilty of assault, the jury obviously credited Shiflett's version.

Because there was no request for any pre-sentence investigation, none was made; the trial ended on a Friday, and sentencing took place the following Monday, June 13, 2005. Although Mr. Shiflett was in court and orally presented a victim impact statement, there was no request for, and no discussion of, restitution. The State informed the court at sentencing that appellant had a criminal history that included convictions for resisting arrest, battery, malicious destruction of property, kidnapping, and a sexual offense. After hearing from Mr. Shiflett and from appellant, the court imposed the sentence noted. Appellant was presented with, and signed, the probation order and a separate judgment of restitution. He filed this appeal on June 27, 2005.

Three days later — within the time allowed under Maryland Rule 4-345(e) but after the appeal was filed — appellant filed a motion for modification and reduction of sentence in which he complained specifically about the restitution order.² He pointed out that there had been no request for restitution and no evidentiary basis for the $5,000 award. Appellant made no specific complaint about the employment/student condition, although he did allege that he had built a substantial construction business, had several jobs pending, and was prepared to present evidence of his business. He asked that the sentence be reduced or suspended and that the court vacate the order of restitution. On July 14, 2005, the court denied the motion without a hearing. No appeal was taken from that ruling. We granted certiorari with respect to the June 27 appeal from the judgment, prior to any proceedings in the Court of Special Appeals, to consider whether the two conditions constitute an "illegal sentence" that may be corrected notwithstanding appellant's failure to object to them in a timely manner in the Circuit Court.

Waiver

The State's principal response to appellant's complaints is that, because appellant made no complaint about the two conditions when they were imposed and, by signing the order of probation, consented to them, he waived his right to complain about the conditions on appeal. See Maryland Rule 8-131(a). Appellant regards the two conditions as "illegal," however, and, quoting from Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985), he urges 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." See also Goff v. State, 387 Md. 327, 875 A.2d 132 (2005).

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. That is the thrust of Walczak, Goff, and a dozen other cases. The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly, and, if the trial court denies relief in response to such a challenge, the defendant may appeal from that denial and obtain relief in an appellate court.

The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow, however. We have consistently defined this category of "illegal sentence" as limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful. See Evans v. State, 389 Md. 456, 463, 886 A.2d 562, 565 (2005); Baker v. State, 389 Md. 127, 133, 883 A.2d 916, 919 (2005); Randall Book Corp. v. State, 316 Md. 315, 321-23, 558 A.2d 715, 718-19 (1989). As we made clear in Randall Book Corp., any other deficiency in the sentence that may be grounds for an appellate court to vacate it — impermissible considerations in imposing it, for example — must ordinarily be raised in or decided by the trial court and presented for appellate review in a timely-filed direct appeal. The sentence may not be attacked belatedly and collaterally through a motion under Rule 4-345(a), and, subject to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court.³

There is nothing intrinsically illegal about either condition here. Restitution in the amount of $5,000 is permitted as a condition of probation upon a conviction for second degree assault, as is maintaining full-time employment or student status, and appellant does not seem to contend otherwise. His complaint is that those conditions were inappropriate in this case, in large part because no evidentiary foundation was laid to support them, but, even if so, that does not make the conditions intrinsically illegal. At best, it would require that this Court, in a timely-filed direct appeal, vacate them, if (1) the complaint about them was preserved for appellate review, or (2) we choose to exercise the discretion we have under Maryland Rule 8-131(a) to consider an issue not raised in or decided by the trial court.

Not only did appellant make no objection when the trial court announced the two conditions as part of the probation, but, as noted, when presented with the written order of probation and the judgment of restitution, he signed them and thereby facially consented to their terms. It is...