Limberry v. State
| Court | Court of Special Appeals of Maryland |
| Parties | Antwon Limberry v. State of Maryland |
| Docket Number | 1792-2021 |
| Decision Date | 16 December 2022 |
Antwon Limberry
v.
State of Maryland
No. 1792-2021
Court of Special Appeals of Maryland
December 16, 2022
Circuit Court for Baltimore County Case No. 03-K-95-003092
Berger, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.
OPINION [*]
Arthur, J.
Antwon Limberry appeals from the denial of his motion to correct an illegal sentence. Because Limberry's sentence is not illegal, we affirm.
BACKGROUND
In 1996, a jury in the Circuit Court for Baltimore County found Limberry guilty of rape in the first degree, rape in the second degree, sexual offense in the first degree, sexual offense in the second degree, and kidnapping.
On November 14, 1996, the circuit court imposed a term of life imprisonment for first-degree rape, a concurrent term of life imprisonment for the first-degree sexual offense, and a consecutive term of ten years' imprisonment for kidnapping. The court merged the remaining convictions for sentencing purposes. On the same day, the clerk issued a commitment record indicating the correct sentence and giving Limberry 191 days' credit for time served between his arrest and the imposition of the sentence.
Pursuant to Maryland Rule 4-344, Limberry filed a timely motion for sentence review by a three-judge panel within 30 days of the imposition of the sentence.
On May 12, 1997, a three-judge panel, acting under the misconception that all of Limberry's sentences were consecutive to one another,[1] purported to modify Limberry's sentence. Under the panel's ruling, the sentence for the first-degree sexual offense would run concurrently with the sentence for first-degree rape, and the sentence for kidnapping
would run consecutively to the others. Although the three-judge panel did not realize it, the ruling left Limberry's sentence unchanged.
In 2019, Limberry filed a motion to correct an illegal sentence and a request for a hearing. In his motion, he argued that the 1997 panel had decided his motion for modification without conducting a hearing, that he had been denied credit for time served, and that his kidnapping conviction should have merged with the conviction for first-degree rape.
The administrative judge referred the motion to a three-judge panel consisting of the successors to the judges on the 1997 panel. On December 17, 2021, after briefing but without a hearing, the new panel ordered that "Limberry's credit for time served should be amended" to reflect 281 days of credit, rather than the 191 days that he had received under the original commitment record.[2] The panel denied his motion in all other respects.
Limberry noted this timely appeal. He raises the following issues, which we quote:
1. Did the 1997 three-judge panel err by denying a hearing when it modified the term and substance of Mr. Limberry's sentence
2. Did the 1997 three-judge panel and 2021 three-judge panel err by failing to award Mr. Limberry credit for all time spent in custody and state such credit on the record
3. Did the 2021 three-judge panel violate procedural due process rights or otherwise err by granting the motion to correct illegal sentence without holding an open court hearing?
4. Did the 1996 sentencing court err by failing to merge the kidnapping conviction into the convictions for the underlying offenses?
DISCUSSION
Governing Law
Under Md. Rule 4-345(a), a "court may correct an illegal sentence at any time." "[T]he scope of the court's authority under this Rule," however, "is 'narrow.'" State v. Bustillo, 480 Md. 650, 664 (2022) (quoting Bailey v. State, 464 Md. 685, 697 (2019)).
"The Rule is designed to correct 'inherently illegal' sentences, not sentences resulting from 'procedural error[s].'" State v. Bustillo, 480 Md. at 665 (quoting Bailey v. State, 464 Md. at 696). Thus, "'a sentence, proper on its face,'" does not "'become[] an "illegal sentence" because of some arguable procedural flaw in the sentencing procedure.'" Bratt v. State, 468 Md. 481, 497 (2020) (quoting Corcoran v. State, 67 Md.App. 252, 255 (1986)). Instead, for a sentence to be "illegal," within the meaning of Rule 4-345(a), "the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding." Matthews v. State, 424 Md. 503, 512 (2012); accord State v. Bustillo, 480 Md. at 665.
A sentence is inherently illegal when "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." Chaney v. State, 397 Md. 460, 466 (2007); accord State v. Bustillo, 480 Md. at 665. Because the legality of a sentence is a question of law, our
review is de novo. State v. Crawley, 455 Md. 52, 66 (2017); accord State v. Bustillo, 480 Md. at 665.
ANALYSIS
I.
Limberry contends that the three-judge panel violated Rule 4-345(f) in 1997 because it modified his original sentence without holding a hearing. He further contends that this alleged violation resulted in an illegal sentence. Limberry's argument fails because, under the applicable law in 1997, the three-judge panel was not required to hold a hearing in order to reduce Limberry's sentence, as it purported to do, or to keep the sentence in place, as it actually did.
In 1997, the Review of Criminal Sentences Act, the statute governing sentence review, provided in relevant part:
The panel shall consider each application for review and shall have the power, with or without holding a hearing, to order a different sentence to be imposed or served, including, by way of illustration and not by way of limitation, an increased or decreased sentence, or a suspended sentence to be served in whole or in part, or a sentence to be suspended with or without probation, upon such terms and conditions as the panel may deem just and which could lawfully have been imposed by the sentencing court at the time of the imposition of the sentence under review, or the panel may decide that the sentence under review should stand unchanged; except that the panel, without holding a hearing, shall not increase any sentence, or order any suspended sentence or any suspended part of a sentence to be served; and except further that no sentence for life or term of years may be increased to death by the panel with or without holding a hearing. The decision of the panel in each review shall be rendered by a majority of the members of the panel and shall be rendered within thirty days from the filing date of the application for review. If the panel orders any different sentence, the panel shall resentence and notify the convicted person in accordance with the order of the panel. Time served on any sentence under review shall be deemed to have been served on the sentence substituted.
Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 645JC (emphasis added).
In other words, under the statute in effect in 1997, a panel could order that "a different sentence" be imposed or served "with or without holding a hearing," as long as the panel did not "increase any sentence, or order any suspended sentence or any suspended part of a sentence to be served."
The implementing rule, Rule 4-344(e), provided then (and still provides) in pertinent part:
Unless a hearing is required by the Review of Criminal Sentences Act, the Review Panel may render its decision without a hearing if it affords the parties an opportunity to present relevant information in writing. If a hearing is to be held, the Review Panel shall serve the defendant, defendant's counsel, and the State's Attorney with reasonable notice of the time and place of the hearing. At the hearing the Review Panel may take testimony and receive other information.
(Emphasis added.)
The 1997 panel neither increased Limberry's sentence nor ordered that any suspended sentence or any suspended part of a sentence be served. Instead, the panel purported to reduce the sentence, but actually left the original sentence in place. Limberry does not allege that the 1997 panel failed to "afford[] the parties an opportunity to present relevant information in writing," as required by Rule 4-344(e). Therefore, under the 1997 version of the Review of Criminal Sentences Act and Rule 4-344(e), the
1997 panel was not required to hold a hearing. The panel did not impose an illegal sentence when it failed to hold a hearing that it had no obligation to hold.[3]
Limberry relies, incorrectly, on Md. Rule 4-345(f), which states that a "court may modify, reduce, correct, or vacate a sentence only on the record in open court, after hearing from the defendant."[4] Rule 4-345 generally applies to revisory motions that can be filed at any time, such as motions to correct an illegal sentence and motions to revise a sentence because of fraud, mistake, or irregularity, or because of a mistake in the announcement of a sentence. Rule 4-345 does not apply to motions to modify a sentence, which is what the 1997 panel had before it. Those motions are, and in 1997 were, governed by Rule 4-344. As stated above, Rule 4-344 did not require the 1997 panel to conduct a hearing, because the 1997 version of the Review of Criminal Sentences Act permitted the panel to dispense with a hearing so long as it afforded the parties an opportunity to present relevant information in writing and neither increased the sentence nor ordered that any suspended sentence or any suspended part of a sentence be served.
Limberry relies prominently on Mateen v. Saar, 376 Md. 385 (2003), in which a court was held to have erred when it attempted to correct an illegal sentence without conducting the hearing that was required under Rule 4-345. In 1997, however, the three-judge panel did not decide a motion to correct an illegal sentence under Rule...
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