Lamb v. Kontgias

• Decision Date: 03 July 2006
• Docket Number: No. 0583, September Term, 2005.,0583, September Term, 2005.
• Parties: Anne LAMB, et al. v. Jack KONTGIAS and State of Maryland.
• Court: Court of Special Appeals of Maryland

Page 860

901 A.2d 860

169 Md. App. 466

Anne LAMB, et al. v. Jack KONTGIAS and State of Maryland.

No. 0583, September Term, 2005.

Court of Special Appeals of Maryland.

July 3, 2006.

Russell P. Butler (Tracy M. Delaney, on the brief,) Upper Marlboro, MD, for Appellant.

David Martella, Rockville, MD, for Appellee.

Panel: DAVIS, SALMON and ADKINS, JJ.

ADKINS, J.

Does a registered victim of child sexual abuse, who, in error, was not notified of a hearing to reconsider her assailant's sentence, have standing to challenge a judgment vacating the original conviction and sentence in favor of probation before judgment? Following Cianos v. State, 338 Md. 406, 659 A.2d 291 (1995), and Lopez-Sanchez v. State, 388 Md. 214, 879 A.2d 695 (2005), we regrettably answer "no."

FACTS AND LEGAL PROCEEDINGS

In October 2000, appellee Jack Kontgias entered an Alford¹ plea of guilty to child sexual abuse of appellant Sarah Raymond. The Circuit Court for Baltimore City sentenced Kontgias to three years of incarceration, all of which was suspended in favor of three years of supervised probation. On November 13, 2000, Kontgias filed a motion to reconsider his sentence, but asked that the motion be held in abeyance "until a hearing is requested."

On September 25, 2002, Ms. Raymond and her mother, appellant Anne Lamb, filed a Crime Victim Notification Request, asking to "receive notice about all of the events related to my case and the defendant. . . as required by law," so that Raymond would "have the opportunity to exercise the rights [she is] entitled to as a crime victim." On September 4, 2003, one month before his probation was due to expire, Kontgias requested a hearing on his previously filed motion to reconsider his sentence.

On February 18, 2004, the Circuit Court for Baltimore City held a hearing on Kontgias' motion. Although Raymond and Lamb had registered as crime victim and victim representative, respectively, neither received notice of this hearing date. Consequently, neither was present to address the court.

During the hearing, the State's Attorney opposed any revision, and advised the court that the victims "would strongly oppose any imposition of probation before judgment in this case." On May 25, 2004, however, the circuit court granted Kontgias' motion. The court struck the guilty finding entered on October 4, 2000, stayed entry of judgment, granted Kontgias probation before judgment, and discharged him from probation.

When Raymond and Lamb learned about this order, they retained counsel² and filed a Motion to Vacate Reconsideration and Request for a Hearing. They were joined by the State's Attorney in arguing that revising the judgment against Kontgias without prior notice to Lamb and Raymond violated Maryland law, and in opposing any sentence modification.

Kontgias opposed the motion, arguing inter alia that "the State was a party to the error it now complains of," that vacating the revised judgment effectively "would shift the notice requirement to the defendant," and that "[r]eimposing the conviction" would violate his "right not to be placed twice in jeopardy for the same offense." He also moved to "strike the appearance" of Lamb and Raymond on the ground that they were not "parties authorized by law."

On February 17, 2005, without a hearing, the circuit court denied both Kontgias' motion to "strike the appearances" of Lamb and Raymond and the joint motion to vacate the revised judgment. The court ruled that the motion to vacate was untimely because it was filed seven months after the sentence modification, during which time Kontgias' original "probation expired and was completed without violation on October 4, 2003[.]"³ The court concluded that it no longer had jurisdiction over Kontgias, and therefore did not address the merits of the joint motion for reconsideration.

Lamb and Raymond noted this appeal,⁴ raising two questions for our review:

I. Did the circuit court err in denying appellants' motion to vacate the revised judgment on the ground that it lacked jurisdiction?

II. Should the revised judgment imposing probation before judgment be vacated and the matter remanded for a new sentence modification hearing, with prior notice to appellants?

DISCUSSION

Crime Victim Notification

Article 47 of the Maryland Declaration of Rights guarantees a victim of crime the right, "upon request, and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are implemented . . . by law."⁵ By filing a crime victim notification request form, victims and their representatives can acquire the "right to attend any proceeding in which the right to appear has been granted to a defendant." Md.Code (2001), § 11-102(a) of the Criminal Procedure Article (CP).

It is the responsibility of the State's Attorney to provide a victim or victim's representative prior notice of a sentencing modification hearing. Section 11-104, in the Victims and Witnesses Title of the Criminal Procedure Article, provides in pertinent part:

(e)(1) The prosecuting attorney shall send a victim or victim's representative prior notice of each court proceeding in the case . . . and of the right of the victim or victim's representative to submit a victim impact statement to the court under § 11-402 of this title if:

(i) prior notice is practicable; and

(ii) the victim or victim's representative has filed a notification request form under subsection (d) of this section.

See also Md. Rule 4-345(e)(2)("the State's Attorney shall give notice to each victim. . . that a motion to modify or reduce a sentence has been filed [and of the] the date, time, and location of the hearing").

The sentencing court also bears responsibility for ensuring that the requisite notice has been given:

(f) Open Court Hearing. The court may modify, reduce, correct, or vacate a sentence only on the record in open court, after hearing from the defendant, the State, and from each victim or victim's representative who requests an opportunity to be heard. . . . No hearing shall be held on a motion to modify or reduce the sentence until the court determines that the notice requirements in subsection (e)(2) of this Rule have been satisfied. . . .

Md. Rule 4-345(f)(emphasis added).

These procedural rights are designed to protect the substantive right of victims and their representatives to address the sentencing court. See CP § 11-403(b). "A victim or victim's representative who has been denied a right provided under this section may file an application for leave to appeal in the manner provided under § 11-103" of the Victims and Witnesses Title. See CP § 11-403(e).

CP section 11-103, governing "application for leave to appeal denial of victim's rights," creates an appellate remedy only for victims of violent crime⁶ when a sentence has been rendered in violation of their statutory rights:

(b) Right to file for leave to appeal. — Although not a party to a criminal proceeding, a victim of a violent crime for which the defendant is charged may file an application for leave to appeal to the Court of Special Appeals from an interlocutory or final order that denies or fails to consider a right secured to the victim by . . . § 11-403. . . .

(c) Stay of other proceedings. — The filing of an application for leave to appeal under this section does not stay other proceedings in a criminal case unless all parties consent. (Emphasis added.)

Appellants Sarah Raymond and Anne Lamb registered as crime victims. But, they allege, neither the State's Attorney nor the circuit court complied with their respective obligations to ensure that appellants received notice of the hearing to reconsider Kontgias' sentence.

I. Jurisdiction

There is no appellate precedent answering the question now before us — whether, when neither the State's Attorney nor the circuit court fulfills the notification duties prescribed by law, a crime victim may challenge a judgment reducing her assailant's sentence on the ground that it was improperly granted. The circuit court concluded that it lost jurisdiction to consider this issue on a motion for reconsideration, because Kontgias' probation expired on October 4, 2003, seven months before the revised judgment vacating Kontgias' conviction, staying entry of judgment, and granting probation before judgment.

We hold that the circuit court had jurisdiction to decide whether appellants had standing to challenge the revised judgment. The revised judgment of May 25 vacated the original conviction and sentence in favor of probation before judgment. Both appellants and the State challenged the revised judgment in their joint motion for reconsideration. As long as the revised judgment remains in effect, appellants have a cognizable complaint that it was entered in violation of their right to prior notice of the sentence modification hearing. "Standing is concerned with whether the parties have the right to bring suit. Subject matter jurisdiction is concerned with whether the court has the power to hear a case." Md. Waste Coalition, Inc. v. Md. Dep't of Environment, 84 Md.App. 544, 548, 581 A.2d 60 (1990), rev'd on other grounds, 327 Md. 596, 612 A.2d 241 (1992). Whether appellants had standing to challenge the revised judgment on a motion for reconsideration is a separate issue from whether the circuit court had jurisdiction to hear that challenge. See, e.g., Collins v. Cambridge Md. Hospital, Inc., 158 Md. 112, 148 A. 114 (1930) (orphan's court has jurisdiction to determine whether persons challenging a will had standing to caveat). The circuit court erred in ruling that it lacked authority to determine whether appellants and the State could challenge the revised judgment via a motion for reconsideration.

II. Standing To Appeal

Md. Rule 4-345 governs a sentencing court's power to revise an enrolled sentence in a criminal case. It provides:

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