Matthews v. State , 2801

• Decision Date: 07 February 2011
• Docket Number: 2009.,Sept. Term,No. 2801,2801
• Citation: 13 A.3d 834,197 Md.App. 365
• Parties: Elroy MATTHEWS, Jr.v.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

197 Md.App. 365

13 A.3d 834

Elroy MATTHEWS, Jr.

v.STATE of Maryland.

No. 2801

Sept. Term

2009.

Court of Special Appeals of Maryland.

Feb. 7, 2011.

Byron L. Warnken (Elroy Matthews in Proper Person, on the brief, Hagerstown, MD), for appellant.Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, MD, for appellee.Panel: MATRICCIANI, KEHOE, and CHARLES E. MOYLAN, JR., (Retired, Specially Assigned), JJ.CHARLES E. MOYLAN, JR., J.

The appellant, Elroy Matthews, Jr., appeals from his resentencing on March 24, 2008, by Judge John Grason Turnbull, II in the Circuit Court for Baltimore County. The appellant's cause on this appeal is twice bereft, primarily on a foreclosing procedural ground but also, if we should reach them, on the substantive merits. These, however, are distinct issues and we will address each of them separately. Although the sentencing of the appellant has had a long and torturous history, only a small and recent fragment of his six-year travail is at all pertinent to our consideration of the procedural foreclosure. We will accordingly reserve our recounting of much of the factual background until we turn our attention to the factual merits of the case.

Prologue to Procedural Foreclosure

What seems at first to be a legal problem frequently turns out to be a linguistic or a semantic problem. On this appeal, we come face to face with the enigma that an illegal sentence is not always an illegal sentence. We do not mean this as doubletalk. In the context of direct appellate review, there are a wide variety of reasons why a sentence, or a sentencing procedure, may be so seriously flawed as to give rise to the appellate reversal or vacating of the sentence. In this context, such flaws are, and are regularly referred to as, illegal sentences. There are, however, procedural rules regulating the form that challenges to such sentences may take and imposing strict limitations on when such challenges may be made. There is also, by dramatic contrast, a very different context in which a sentence may be challenged at any time, subject to no filing deadline of any sort. Maryland Rule 4–345(a) provides:

THE COURT MAY CORRECT AN ILLEGAL SENTENCE AT ANY TIME.

The semantic problem arising out of those very different contexts is that the phrase “illegal sentence” has variable connotations and shifting meanings. Of all the illegal sentences that might deserve immediate appellate vacating in the broad context of direct review, only a small fraction are even cognizable in the austerely limited context of Rule 4–345(a) review. For the very reason that its meaning may shift, the phrase “illegal sentence” should never be lifted out of that first context and casually inserted into the second. The words may be the same, but they no longer mean the same thing. We cannot agree with Gertrude Stein that an illegal sentence is an illegal sentence is an illegal sentence, because sometimes it is not.

Procedural History

The appellant was found guilty upon his pleas of guilty by Judge Turnbull on December 3, 2003, for attempted first-degree murder, for two counts of first-degree assault, and for the use of a handgun in the commission of a crime of violence. He was sentenced by Judge Turnbull on April 4, 2004.

On October 23, 2007, the appellant was granted partial post-conviction relief because of a failure of the prosecution to fulfill its part of a plea bargain at the original sentencing hearing of April 21, 2004. The case was remanded to Judge Turnbull for resentencing. At a new sentencing hearing on March 24, 2008, Judge Turnbull reimposed the original sentence. The only part of the sentence about which the appellant now complains is the sentence for the attempted first-degree murder. That sentence was one of life imprisonment with all but 30 years suspended. The appellant attempted to appeal that sentence. This Court properly treated that effort as an application for leave to appeal, which application we denied on May 18, 2009. Much of the merit that might have inhered in the appellant's complaint about the resentencing effectively died with that denial of leave to appeal on May 18, 2009. We are not suggesting that there was any such merit. We are simply asserting that whether there was or was not any merit, in the broad sense of merit cognizable on direct review, no longer makes any difference. The only complaint about the sentence that may have survived is a far more limited one.

On January 8, 2010, the appellant filed a Motion to Correct an Illegal Sentence pursuant to Maryland Rule 4–345(a). Judge Turnbull denied that motion on January 26, 2010, and this appeal timely followed from that denial. Our initial focus will be exclusively on that denial of January 26, 2010. If we were to state that the issue before us is whether the sentence of March 24, 2008 for attempted first-degree murder was a legal sentence, we might be posing the question far too broadly. The pertinent issue is not whether that sentence might in some circumstances and in some contexts be deemed questionable or improper or even “illegal.” The issue is the far more narrow one of whether that sentence was literally “illegal” within the stern contemplation of Rule 4–345(a)'s extraordinary exemption from the normal filing deadlines. Much that might have been cognizable had direct review of the resentencing been granted is not cognizable under Rule 4–345(a) review. It is critical not to ignore that difference in the scope of the respective reviews.

The Narrow Window of Rule 4–345(a) Review

In exempting a challenge to an actually “illegal” sentence from the ordinary preservation requirements, it was Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985), that first focused on the extraordinary relief sometimes provided by Rule 4–345(a):

We hold 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. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4–345(a), formerly Rule 774 a, provides that “ [t]he court may correct an illegal sentence at any time.” Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.

(Emphasis supplied).

What Walczak decided was that a trial judge may correct an illegal sentence at any time even if the issue has not been properly preserved by timely objection. The illegality in the Walczak case itself was that the trial judge had ordered restitution to be made for a crime of which the defendant had not been convicted. Since no statute authorized such restitution, it was held to be an illegal sentence. “[R]estitution is punishment for the crime of which the defendant has been convicted. Restitution depends on the existence of that crime and the statute authorizing the court to order restitution only where the court is otherwise authorized to impose punishment.” 302 Md. at 429, 488 A.2d 949. That part of the sentence that ordered restitution was not authorized by law.

Within the year, this Court addressed the limited applicability of Walczak v. State to substantive and facial illegality as opposed to mere procedural flaws in the sentencing process. In Corcoran v. State, 67 Md.App. 252, 254–56, 507 A.2d 200, cert. denied, 307 Md. 83, 512 A.2d 377 (1986), we held that an “illegal sentence” within the contemplation of Rule 4–345(a) “has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose.”

The appellant claims that he is exempted from the otherwise foreclosing effect of Maryland Rule 1085 by Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985). He reads Walczak far too broadly.

In holding that an illegal sentence may be reviewed on appeal even if not objected to below, the Court of Appeals was very careful to limit the exemption to a situation where the sentence was illegal in itself, a sentence “ not permitted by law.” 302 Md. at 427, 488 A.2d 949. The Walczak opinion was not dealing with alleged procedural flaws in the sentencing hearing itself....

The appellant's contention in this regard is not only bereft of support in the case law, it is bereft of logic as well. The notion of an “ illegal sentence ” within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose. It does not remotely suggest that a sentence, proper on its face, becomes an “illegal sentence” because of some arguable procedural flaw in the sentencing procedure. For the appellant to prevail on his line of reasoning would create an absurdity. A sentencing procedure (and, by analogy, a probation revocation hearing) is more informal in nature than a trial upon the merits. It is before a judge and not a jury. The more rigid rules of evidence are generally not applicable. It would create a ridiculous anomaly to hold that challenges to errors in the more tightly scrutinized trial itself may be forfeited through failure to object, whereas challenges to errors in the looser and more informal proceeding are always preserved even absent objection. Walczak did not remotely suggest such a bizarre and incongruous result.

(Emphasis supplied).

In State v. Kanaras, 357 Md. 170, 185, 742 A.2d 508 (1999), Judge Eldridge stressed the distinction that illegal or improper acts by various parties to the total sentencing phenomenon do not, ipso facto, make the sentence itself illegal and, therefore, reviewable under Rule 4–345(a). In the Kanaras case, the Court of Special Appeals had earlier agreed with the petitioner that his “sentence of life imprisonment subsequently became ‘illegal’ under the ex post facto prohibition because ‘actions by the Parole Commission, Commissioner of Correction, and...