Dutton v. State

• Decision Date: 08 December 2004
• Docket Number: No. 1607,1607
• Citation: 862 A.2d 1075,160 Md. App. 180
• Parties: Howard Dean DUTTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

862 A.2d 1075

160 Md. App. 180

Howard Dean DUTTON v. STATE of Maryland.

No. 1607, September Term, 2003.

Court of Special Appeals of Maryland.

December 8, 2004

Bradford C. Peabody (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Celia Anderson Davis (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Panel: DAVIS, ADKINS, MEREDITH, JJ.

MEREDITH, J.

Howard Dean Dutton appeals from the denial of his motion to correct an allegedly illegal sentence. In that motion, Dutton asserted that, on September 9, 1999, he was already serving two sentences of differing lengths — one for 18 months, and one for 4 years — when he was sentenced to an additional 15 year term that was "to run consecutive to the sentence [singular] that you are currently serving." Dutton argued in his motion to correct an "illegal sentence" that the 15 years should begin to run after he completed the 18 month sentence rather than after he completed the 4 year sentence. The sentencing judge denied Dutton's motion. We shall affirm the decision of the circuit court.

The Proceedings Prior to the Sentence

On September 9, 1999, Dutton appeared in the Circuit Court for Baltimore County on charges of robbery, assault, and theft. Pursuant to an agreement with the State's Attorney's office, Dutton entered an Alford plea to the charge of robbery, and the State entered the remaining two counts "nolle prosse." The prosecutor described the terms of the plea agreement as follows:

[PROSECUTOR]: With respect to Case 99-CR-0787, pursuant to plea negotiations, the Defendant will be tendering [an] Alford guilty plea to the count of robbery. I believe that's going to be Count Number One.

The State, should the facts be sufficient, would nol pros the balance of counts, including the assault and the theft. Should the facts be sufficient, further, the State would nol pros the companion case, which involves a series of related credit card offenses. The facts of this case will become evident when I read the robbery facts. That case number is 99-CR-2766.

Again, should the facts be sufficient to support that robbery guilty plea, at the conclusion of the guilty plea, the State will submit the guidelines. The guidelines in the case call for a period of incarceration from eight to 15 years. The State will advise Your Honor of the Defendant's criminal record and is seeking a sentence of 15 years consecutive to the four years the Defendant is currently serving now at the Division of Correction.

The Defendant, of course, is free to argue for any sentence he feels is appropriate, including, well, whatever sentence it is, concurrent, whatever sentence he feels is appropriate.

Does that accurately reflect our plea agreement?

[DEFENSE COUNSEL]: Yes.

(Emphasis added.)

Before accepting Dutton's plea, the trial judge asked Dutton whether he was currently serving any sentence. The following exchange occurred:

THE COURT [addressing the Defendant]: Are you now on probation or parole?

THE WITNESS [DUTTON]: I am on parole, but I have been already taken care of through the Division of Corrections [sic], quashed or whatever by the Division of Correction.

THE COURT: Are you currently serving a sentence?

THE WITNESS: Yes, sir, four years sentence for violation of probation, sir.

THE COURT: When did that begin?

THE WITNESS: March fourth, sir.

THE COURT: How did you violate your probation?

THE WITNESS: I didn't go to Stout Street Foundation, a drug program in Denver, Colorado.

THE COURT: Where are you incarcerated?

THE WITNESS: Maryland Division of Corrections [sic] in Hagerstown, the old jail, sir.

...

THE COURT [addressing the prosecutor]: What is the maximum for robbery, Mr. Stocksdale?

MR. STOCKSDALE: Fifteen years, Your Honor.

THE COURT: Fifteen?

MR. STOCKSDALE: Yes.

THE COURT [addressing the Defendant]: You understand the maximum sentence for robbery, should I accept your guilty plea, is 15 years?

THE WITNESS [DUTTON]: Yes, sir.

THE COURT: I can sentence you to anything from probation up to 15 years in prison.

THE WITNESS: Yes, sir.

THE COURT: You understand that my sentence could be concurrent or consecutive to the sentence you are currently serving?

THE WITNESS: Yes, sir.

THE COURT: All right, you can step down.

(Emphasis added.)

After Dutton entered his plea, the prosecutor related the details of the incident, and the court found the facts sufficient to find Dutton guilty of robbery. Prior to imposing a sentence, the court heard from Dutton's counsel. Among the remarks made by defense counsel at that point were the following comments:

[DEFENSE COUNSEL:] Your Honor, what his current status is now, he's serving 18 months sentence for violation of probation from Judge Kahl in the Division of Corrections [sic] that began March 4, 1999. He's also serving four years sentence for violation of probation in the Division of Correction from Judge Gordy in the City. That also began March 4, 1999.

...

I guess the other thing I want to tell the Court and ask the Court to consider is the fact that he is serving a four years sentence right now. That's the long and short of it. It's a four years sentence and that's going to be, that's a lot of time in jail as it is right now for him to serve for him to think about all of his transgressions I think and think about the things he's done wrong.

(Emphasis added.)

After defense counsel concluded his remarks, the trial judge heard from Dutton, and then asked the prosecutor for any additional comments. The prosecutor emphasized Dutton's multiple prior offenses, as well as the heinous nature of the present offense (which involved beating and robbing a 75 year old man), and asserted again that the State was "seeking 15 years consecutive." The Sentence

The judge pronounced the sentence as follows:

Taking into consideration your past criminal record and the nature of this offense, it's the judgment and sentence of this Court that you be committed to the Division of Correction for a period of 15 years to run consecutive to the sentence you are currently serving.

The court's docket entry for September 9, 1999, reflected that Dutton's sentence was for "15Y," and that it was "consecutive to present sentence." The commitment record dated September 9, 1999, was more explicit. That form stated: "The total time to be served is Fifteen (15) years, to run: ... consecutive to the last sentence to expire of all outstanding and unserved Maryland sentences."

Legal Proceedings Since Imposition of the Sentence

Since September 1999, Dutton has made numerous requests for relief. On October 9, 1999, he filed both an appeal to this Court and an application for review of his sentence by a three judge circuit court panel. By order dated December 3, 1999, the appeal was treated by this Court as an application for leave to appeal. On July 12, 2001, Dutton, acting pro se, filed a petition for post conviction relief, and on August 28, 2001, Dutton filed a petition for modification or reduction of sentence. On September 14, 2001, the petition for modification or reduction was denied. On January 10, 2002, Dutton, through counsel, filed an amended petition for post conviction relief. The three judge panel denied relief on May 29, 2002. On December 31, 2002, the circuit court denied Dutton's petition for post conviction relief. Dutton's application for leave to appeal to this Court was denied on May 16, 2003.

On June 20, 2003, Dutton filed the motion to correct illegal sentence that is the subject of the current appeal. In his motion, Dutton pointed out that, at the time of his sentencing in this case, he was serving one sentence of 18 months as well as another sentence of 4 years. Dutton asserted: "Judge Cadigan's sentence failed to specifically state to which of these his [sic] sentence is to run consecutive." Citing Robinson v. Lee, 317 Md. 371, 380, 564 A.2d 395 (1989), Dutton argued in his motion that "there exists an ambiguity as to which of those two (2) sentences that Judge Cadigan's sentence must follow. If there is doubt as to a defendant's penalty, then the law directs that his punishment must be construed to favor a milder penalty over a harsher one." Accordingly, Dutton asked that his sentence be amended to specify that the 15 year sentence would run consecutive to the 18 month sentence, and that the commitment order be similarly amended.

Dutton's motion to correct illegal sentence was denied by the sentencing judge on August 12, 2003. In a memorandum opinion and order rejecting Dutton's claim, Judge Cadigan explained:

On June 20, 2003, the Defendant filed a Motion to Correct Illegal Sentence to which the State filed an answer by letter dated July 25, 2003. In his Motion, the Defendant states that this Court did not specify whether the sentence imposed on September 9, 1999 was consecutive to Judge Gordy's sentence of June 23, 1999 [the 4 year sentence] or Judge Kahl's sentence of March 4, 1999 [the 18 month sentence]. The Defendant further contends that the September 1999 sentence was to be served consecutive only to the sentence imposed by Judge Kahl on March 4, 1999 "rather than the aggregate of all preexisting unserved sentences" citing Robinson v. Lee, 317 Md. 371, 379, 564 A.2d 395 (1989). Finally, the Defendant claims that he was serving two sentences at the time this Court imposed the September 1999 consecutive sentence and "there exists an ambiguity as to which of those two (2) sentences that Judge Cadigan's sentence must follow" and that any ambiguity "must be construed in favor of a milder penalty over a harsher one."

This Court finds that the Robinson v. Lee, supra,

case is distinguishable.... The issue before the Court of Appeals was to determine whether the 15 year robbery sentence was to run consecutively to the initial five year sentence imposed or consecutively to the aggregate of sentences unserved at the time the 15 year sentence was imposed. Since [Lee] was only serving the five year...