Chertkov v. State

• Decision Date: 01 September 1993
• Docket Number: No. 29,29
• Citation: 642 A.2d 232,335 Md. 161
• Parties: Lynn S. CHERTKOV v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 161

335 Md. 161

642 A.2d 232

Lynn S. CHERTKOV v. STATE of Maryland.

No. 29, Sept. Term, 1993.

Court of Appeals of Maryland.

June 9, 1994.

Michael D. Citren, Kenneth R. West, Eric J. Posner, Abrams, West & Storm, P.C., all on brief, Bethesda, for petitioner.

Carolyn J. McElroy, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., all on brief, Baltimore, for respondent.

Argued Before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, ^* CHASANOW, KARWACKI and BELL, JJ.

BELL, Judge.

One of the questions presented by this case is whether the sentencing court may modify a sentence that it imposed pursuant to a binding plea agreement, without the consent of both parties. Before we may reach that question, however, we must first address the State's right to appeal the court's modification of sentence. Although we shall hold that the State has no such right to appeal, we shall nevertheless address the limits on a sentencing court's right to modify a sentence imposed pursuant to a binding plea agreement.

I.

The petitioner, Lynn Chertkov, and the respondent, the State of Maryland, entered into a written pre-indictment plea agreement contemplating a specific sentence. Pursuant to the agreement the petitioner agreed to plead guilty ¹ to one count each of misdemeanor medicaid fraud and conspiracy to commit felony medicaid fraud. In exchange for those pleas, the State agreed to request the court, jointly with the petitioner, to impose concurrent three-year terms of incarceration, suspend all but 179 days, "[to] waive fines and restitution and order the defendant to perform 1500 hours of community service," and to place the petitioner on five years probation. The non-suspended sentence was to be served "on home detention with work release." The 1500 hours of community service were to be performed within four years and, until completed, the petitioner's probation would be supervised. Thereafter, the probation could be unsupervised. The State also agreed that it would not "further prosecute the defendant for any offenses related to the submission of false and fraudulent claims to the Maryland Medical Assistance Program by the Montgomery County Family Life Center, Inc., ² or for any alleged violations of the Maryland Tax Laws, insofar as the offense occurred prior to the execution of this plea agreement." Anticipating the possibility that a court might not "accept this agreement and be bound by its terms," the agreement provided, in that event, that the petitioner could invoke the rights set forth in Maryland Rule 4-243(c)(4) ³ and that the State could withdraw from the agreement.

As it contemplated, the written plea agreement was submitted to a judge of the Circuit Court for Montgomery County, who subsequently approved it. Upon being satisfied that the petitioner's guilty pleas were entered knowingly and voluntarily, the court embodied as its judgment, the specific dispositions set out in the plea agreement.

The petitioner timely filed a motion for reconsideration of sentence. ⁴ Although the motion was filed, and a hearing was requested within 90 days, the petitioner did not seek an immediate hearing, preferring its deferral until a later date. That later date occurred after the petitioner had completed the service of the unsuspended portion of her sentence. At that time, she filed another pleading, captioned "Defendant's Motion for Reconsideration Pursuant to Article 27 § 641," in which she requested the court to strike the previously entered guilty findings and impose probation before verdict pursuant to Maryland Code (1957, 1992 Repl.Vol.) Article 27 § 641. ⁵ Determining, and so holding, that, under the circumstances, reconsideration of sentence was not barred, the court granted the relief requested, over the State's objection.

The State filed a timely appeal to the Court of Special Appeals. That court reversed the judgment of the circuit court. State v. Chertkov, 95 Md.App. 104, 619 A.2d 556 (1992). It rejected the petitioner's argument that the State had no authority to appeal. Id. at 109, 619 A.2d at 558. The court also determined that the trial court had no authority to modify a sentence pursuant to a binding plea agreement. Id. at 113, 619 A.2d at 560. We granted the petitioner's petition for writ of certiorari.

II.

The parties agree that the State's right to appeal is controlled by Maryland Code (1973, 1989 Repl.Vol.) § 12-302 of the Courts and Judicial Proceedings Article. See § 12-301, which provides:

Except as provided in section 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.

Section 12-302(c)(2) provides:

(c) In a criminal case, the State may appeal as provided in this subsection.

* * * * * *

(2) The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.

The State does not argue that the State could appeal even in its absence. The petitioner argues that the State had no authority whatsoever to appeal the trial court's modification of her sentence. She reasons that section 12-302(c)(2) restricts the State's right of appeal to direct appeals from the court's imposition of a sentence in conflict with that mandated by the Code, i.e., a sentence that does not fall within the minimum or maximum sentence prescribed by law. Inasmuch as the State's appeal is not "from the trial court's order, after the verdict, which imposes a sanction in a criminal case," Telak v. State, 315 Md. 568, 575, 556 A.2d 225, 228 (1989), and, in any event, neither of the counts to which she pled guilty requires a mandatory sentence, the petitioner asserts that "in granting probation before judgment dispositions, the court did not violate the Code, and § 12-302(c)(2) did not give the State the right to appeal the trial court's decision."

In reaching the opposite conclusion, the Court of Special Appeals proceeded from a different premise: "Dotson v. State, 321 Md. 515 (1991), establishes that a binding plea agreement, coupled with Maryland Rule 4-243(c)(3), has the force and effect of law." Chertkov, 95 Md.App. at 108, 619 A.2d at 558. Thus, the court reasoned that:

A sentence does not need to violate an express statutory provision to trigger the State's appellate rights. Under authority of State v. Cardinell, 90 Md.App. 453, [460,] 601 A.2d 1123, [1126,] cert. granted, 327 Md. 129, 607 A.2d 947 (1992) the State may note an appeal pursuant to Md.Cts. & Jud.Proc.Code Ann. § 12-302(c)(2) if the sentence imposed violates mandatory sentencing provisions of the Code or if the imposition of sentence is not in conformity with the Maryland Rules of Procedure.

Id. at 109, 619 A.2d at 538. ⁶ It held, therefore, that where "a sentence is required to be imposed and it is not, then the State may exercise its right to appeal the illegal sentence." Id. Given the tack taken by the Court of Special Appeals, with which the State totally agrees, it is of no consequence that the appeal the State took was not a direct appeal, but an appeal from an order granting collateral relief from the sentence.

The petitioner gets the better of the argument. The trial court sentenced the petitioner in accordance with the parties' plea agreement. That sentence was not illegal and, hence, the State, could not allege at that time, "that the trial judge failed to impose the sentence specifically mandated by the Code, or in conformity with the Maryland Rules of Procedure." That allegation could only have been made after the trial court modified the sentence. That occurred long after the appeal time for challenging the original sentence had expired. But, by enacting

Ch. 49 of the Acts of 1976, the General Assembly legislated with respect to direct appeals from judgments in criminal cases. The new language was placed in those sections of the Code dealing with direct appeals from final judgments disposing of cases. The General Assembly did not legislate with reference to collateral challenges or motions to correct illegal sentences or what is now Maryland Rule 4-345(a). ⁷ The Legislature did not authorize an appeal from the denial of a motion to correct an illegal sentence; it authorized an appeal from the final judgment in the criminal case.

Telak, 315 Md. at 576, 556 A.2d at 229. ⁸

Prior to the enactment, in 1973, of section 12-302(c), as part of Code revision, ⁹ see Ch. 2 of the Acts of the First Extraordinary Session of 1973, the predecessor to § 12-302(c)(2), see State v. Hannah, 307 Md. 390, 398-99, 514 A.2d 16, 20 (1986); Schilling v. State, 320 Md. 288, 293-94, 577 A.2d 83, 85-86 (1990), the State was authorized "to appeal where there was an 'illegal' sentence." Hannah, 307 Md. at 398-99, 514 A.2d at 20, (discussing State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974) and the legislative history of section 12-302(c) as they relate to the State's right to appeal an illegal sentence). When, however, section 12-302(c) became effective, this Court observed that it "placed in serious question, if it did not completely eliminate, the State's right to appeal an illegal sentence as recognized in the earlier cases and reiterated in Sonner. " Id. at 399, 514 Md. at 20. Moreover, with its enactment, present section 12-302(c)(2) "specifie[d] the type of illegality which must be alleged for the State to be entitled to appeal." Telak, 315 Md. at 574, 556 A.2d at 228. And it did so clearly and unambiguously; when it referred to a failure to impose the sentence specifically mandated by the Code, it was not referring to the Maryland Rules or anything else other than the statutory...