Matthews v. State

• Decision Date: 01 September 1985
• Docket Number: No. 42,42
• Citation: 304 Md. 281,498 A.2d 655
• Parties: Robert William MATTHEWS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 281

304 Md. 281

498 A.2d 655

Robert William MATTHEWS v. STATE of Maryland.

No. 42, Sept. Term, 1985.

Court of Appeals of Maryland.

Oct. 10, 1985.

William H. Murphy, Jr., Baltimore, for appellant.

Deborah K. Chasanow, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., and Mark D. McCurdy, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

McAULIFFE, Judge.

We here decide that a trial judge lacked authority to commence a period of probation while the Appellant was serving a jail sentence for the same offense, but that Appellant's probation was properly revoked upon proof of criminal activity occurring between the grant of probation and its formal commencement.

On January 29, 1982 Judge Martin Wolff sentenced Robert William Matthews to five years imprisonment, suspended the execution of all except nine months, and directed that the nine months be served at the Anne Arundel County Detention Center in a live-in work-out status. Judge Wolff also ordered probation under intensive supervision for a period of three years, effective the day of sentencing. Included in the conditions of probation was the requirement that Appellant obey all laws. No appeal was taken from the conviction and sentence.

On June 25, 1982 while on work-release status Matthews was arrested and charged with maintaining a common nuisance, and with various violations of the controlled dangerous substance laws. He was convicted of three counts in the Circuit Court for Queen Anne's County and sentenced to five years in prison. The convictions were affirmed in Matthews v. State, 59 Md.App. 15, 474 A.2d 530 (1984).

On December 3, 1984 Matthews was brought before Judge Wolff for a hearing on his alleged violation of probation. Matthews did not deny the convictions but pointed out that the criminal conduct occurred while he was still serving his prison sentence, and argued that he could not lawfully be on probation while serving a prison sentence. Judge Wolff rejected the argument, found Matthews in violation and struck the suspension of the remaining portion of the sentence. Appellant appealed and we granted certiorari prior to consideration by the Court of Special Appeals.

I

We agree with Appellant's contention that a trial judge does not have authority to order a period of probation to begin during the time a defendant is actually serving a prison sentence ¹ for the same offense. A judge has no inherent power to suspend the execution of all or a portion of the sentence and place a defendant on probation, but that power may be granted by the General Assembly. Kupfer v. State, 287 Md. 540, 543, 414 A.2d 907 (1980); State ex rel. Sonner v. Shearin, 272 Md. 502, 512-13, 325 A.2d 573 (1974). The grant of power relied on by the State in this case is codified at Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Art. 27, § 641A, as follows:

(a) Suspension of sentence; probation.--Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of 5 years. However, if the defendant consents in writing, the court may grant probation in excess of 5 years, but only for purposes of making restitution.

(b) Probation when offense punishable by fine and imprisonment; limitation, revocation or modification.--Probation may be granted whether the offense is punishable by fine or imprisonment or both. If the offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to the imprisonment. Probation may be limited to one or more counts or indictments, but in the absence of express limitation, shall extend to the entire sentence and judgment. The court may revoke or modify any condition of probation or may reduce the period of probation.

(c) Commencement of probation on date of release as condition.--If a sentence of imprisonment is imposed, a portion of it is suspended, and the defendant is placed on probation, the court may impose as a condition of probation that the probation commence on the date the defendant is actually released from imprisonment.

Although § 641A may be read as each party suggests, we find from a review of the recent legislative history of the section that the General Assembly did not intend to grant authority for the commencement of a probationary period prior to the actual release of a defendant from imprisonment. That recent legislative history involves the enactment of Chapter 689 of the Laws of 1982 which added subsection (c) to the section, and was recently traced by Judge Karwacki for the Court of Special Appeals in Elias v. State, 62 Md.App. 569, 490 A.2d 745 (1985). The addition of subsection (c) was initially requested by the Conference of Circuit Judges, which expressed to the Senate Judicial Proceedings Committee its view that the amendment was needed to give a judge the power to begin the period of probation while a defendant was still on parole. That view was shared by the staff of the Senate Judicial Proceedings Committee, and reflected in a staff report to the Committee:

This bill closes a loophole in current law and provides that court-imposed conditions of probation become effective on the date the defendant is actually released from imprisonment.

Currently, when a court imposes a "split sentence", for example: 10 years with 5 years to be served, and the following 5 years "on probation" or "street time", the court imposed terms of probation do not apply until after 5 years, even if the defendant is released on parole after only 2 years as now generally happens.

This bill would subject the defendant to the court-imposed terms of probation, such as restitution, immediately upon his release, while he is at the same time subject to the conditions imposed by the Parole Board.

Enactment of the bill suggests that the Legislature concurred in this interpretation of the statute.

Because § 641A as it existed prior to 1982 did not confer the power to begin a term of probation prior to completion of the unsuspended portion of the sentence, including any period of parole, it is clear it did not confer authority to do so while the defendant remained in prison. The addition of subsection (c) now authorizes the commencement of a probationary term on the date the defendant is actually released from imprisonment, but it does not grant the power to begin probation when the defendant is still in jail on the same sentence.

II

The State next contends that even if the imposition of probation concurrent with the jail term was not proper under the statutory scheme, the defendant waived his right to object by failing to take a direct appeal from the final judgment embodying that sentence. Relying on our decisions in Coles v. State, 290 Md. 296, 303, 429 A.2d 1029 (1981) and Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985), the State urges for purposes of judicial economy that the defendant not be permitted to raise the issue now when he did not object on direct appeal from the original sentence.

We find the State's reliance on Coles and Walczak misplaced. In Coles this Court first addressed the issue of whether a defendant may attack the legality of a sentencing order when he did not directly appeal from the final judgment. We said:

In addressing appellant's attack on the propriety of the original sentencing order, we note that he took no appeal from the final judgment embodying that sentence. In fact, at sentencing, both appellant and his counsel urged the court to order restitution in lieu of incarceration, and it was not until the probation revocation hearing that appellant questioned the validity of his original sentence. The correctness of conditions of probation must be determined on an appeal from the final judgment of conviction and sentence, e.g., Bird v. State, 231 Md. 432, 437-38, 190 A.2d 804, 807 (1963), and not on the subsequent revocation of probation, "because to do so, would, in effect, permit a circumvention of [Md.Rule 1012] which requires an appeal to be taken within thirty days" following the entry of final judgment. Coleman v. State, 231 Md. 220, 223, 189 A.2d 616, 618 (1963); see Stone v. State, 43 Md.App. 329, 405 A.2d 345 (1979). To this, however, there is at least one exception. A trial court clearly has the authority and responsibility to correct an illegal sentence at any time, Md. Rule 774 a; Carter v. Warden, 210 Md. 657, 124 A.2d 574 (1956), cert. denied, 352 U.S. 900 [77 S.Ct. 136, 1 L.Ed.2d 89] (1956), and the refusal to do so, no matter when the correction request is made, is appealable. State ex rel. Sonner v. Shearin, 272 Md. 502, 520, 325 A.2d 573, 583 (1974); Roberts v. Warden, 206 Md. 246, 255, 111 A.2d 597, 601 (1955).

290 Md. at 303, 429 A.2d 1029.

More recently, the Court in Walczak sought to resolve the conflict among the appellate decisions as to the propriety of such a challenge. Judge Eldridge, speaking for the Court, stated:

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 774a, 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. See Coles v. State, 290 Md. 296, 303, 429 A.2d 1029 (1981). Moreover,...