Moultrie v. State

• Decision Date: 29 March 2019
• Docket Number: No. 213, Sept. Term, 2017,213, Sept. Term, 2017
• Parties: Tevin MOULTRIE v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

240 Md.App. 408

205 A.3d 65

Tevin MOULTRIE

v.STATE of Maryland

No. 213, Sept. Term, 2017

Court of Special Appeals of Maryland.

March 29, 2019

Submitted by: Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Zoe Gillen White (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Nazarian, Arthur, James R. Eyler, (Senior Judge, Specially Assigned), JJ.

Arthur, J.

In 2008 Tevin Moultrie, age 16, pleaded guilty to second-degree murder and other related charges in the Circuit Court for Baltimore City. The court imposed the maximum sentence allowed under a binding plea agreement – 30 years' imprisonment.

In 2016 the court denied Moultrie's petition for post-conviction relief, and he appealed. He presents the following questions for appellate review:

1. Where defense counsel filed a timely motion for reduction of sentence pursuant to Rule 4-345 but never followed up to request a hearing or a ruling before the five-year period for reducing a sentence expired, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel?

2. Where defense counsel incorrectly advised appellant that a three-judge sentence review panel could increase his sentence and appellant did not file an application for sentence review, did the postconviction court err in denying appellant's claim for relief based on ineffective assistance of counsel?

3. Did the postconviction court err in denying appellant's claims for relief based on ineffective assistance of counsel where defense counsel failed to correct or object to the circuit court's legal errors during the juvenile transfer hearing, and failed subsequently to request a transfer to the juvenile court for disposition?

For the reasons discussed below, we conclude that the post-conviction court erred in denying relief because of counsel's failure to pursue a hearing or a ruling on the motion to reduce the sentence. We also conclude that the post-conviction court erred in denying relief because of counsel's erroneous advice about a three-judge panel's ability to increase the maximum sentence allowed under a binding plea agreement. We decline to reach the merits of the third question.

BACKGROUND

Tevin Moultrie was born on November 19, 1991. On March 13, 2007, when he was not quite four months past his fifteenth birthday, Moultrie shot and killed another young man. As he ran from the police, Moultrie threw away a pistol. The gun went off when it hit the ground, and the police officers thought that Moultrie was firing at them.

The State charged Moultrie, as an adult, with the offenses of first-degree murder; conspiracy to commit first-degree murder; two counts of attempted first-degree murder, first-degree assault, and second-degree assault (apparently of the police officers who were pursuing him when he discarded the gun); and three counts of the illegal use of a handgun and of wearing or carrying a handgun. On June 12, 2007, when Moultrie was not quite 15 years and seven months old, the Circuit Court for Baltimore City denied his motion for a reverse waiver to transfer the case to the juvenile court.

On March 6, 2008, when Moultrie was 16 years and three months old, he pleaded guilty to second-degree murder, using a handgun in the commission of a crime of violence, and two counts of reckless endangerment. The plea agreement, to which the court bound itself, contemplated a 30-year cap on the total sentence, but permitted Moultrie to argue for less.

On October 7, 2008, about six weeks before Moultrie's seventeenth birthday, the court sentenced him to 30 years' imprisonment for second-degree murder, a concurrent 20 years (the first five years without the possibility of parole) on the handgun count, and concurrent one-year sentences on the reckless endangerment counts.

After the court imposed those sentences, Moultrie's counsel advised him about his post-sentencing rights:

[DEFENSE COUNSEL]: You also have thirty days to file to ask a three-judge panel to review this sentence. They could raise it . They could lower it. They could leave it the same. Do you understand that, sir?

THE DEFENDANT: Yes sir.

DEFENSE COUNSEL: You have 90 days from today to file a motion for modification. All of that must be in writing. I will file it for you, and-possibly, maybe the Court could allow it to hold it [sic] sub curia . Then maybe in a little while, in a few years, maybe we can hopefully come back and show the Court all the positive things you've done. Okay, sir?

THE DEFENDANT: Yes sir.

DEFENSE COUNSEL: Mr. Moultrie, whatever you do, recognize you still are only 17 years old. You've already been in almost two years. Okay sir? Recognize that if you continue to do the positive things that you do, and show the Court the positive, that you are going to be an asset to society, that maybe at that point in time, down the road, we can hopefully have this matter brought back in. Do you understand that sir?

THE DEFENDANT: Yes sir.

DEFENSE COUNSEL: You recognize life is not over. Do you understand that, sir?

THE DEFENDANT: Yes sir.

(Emphasis added.)

Under Md. Rule 4-344, Moultrie had 30 days after the imposition of the sentence to file an application for review of his sentence by a three-judge panel. No application for review was filed.

Under Md. Rule 4-345(e), Moultrie had 90 days after the imposition of the sentence to file a motion asking the court to exercise its revisory power over the sentence. Consistent with his comments at the sentencing proceeding, Moultrie's counsel filed a timely motion to modify or reduce the sentence on December 24, 2008. The motion asked that it be held sub curia and that the court "[g]rant a hearing upon petition of counsel[.]" The court evidently agreed to hold the motion sub curia, because no further action was taken on it.

Rule 4-345(e) prohibits a court from revising a sentence "after the expiration of five years from the date the sentence originally was imposed[.]" In Moultrie's case, the five-year deadline ran on October 7, 2013. Moultrie's counsel did not request a hearing on his motion before the deadline ran.

On April 15, 2016, Moultrie filed a petition for post-conviction relief under the Maryland Uniform Postconviction Procedure Act, Maryland Code (2001, 2008 Repl. Vol.), §§ 7-101 to -109 of the Criminal Procedure Article. As amended, Moultrie's petition included assertions that he received ineffective assistance of counsel because his trial counsel (1) did not request a hearing on the motion to modify before the five-year deadline ran; (2) erroneously informed him that a three-judge panel could increase his sentence if he filed an application for review under Rule 4-344 ; (3) failed to object to the trial court's alleged errors at the reverse-waiver hearing; and (4) failed to request that the case be transferred to the juvenile court for sentencing under § 4-202.2(a)(1) of the Criminal Procedure Article. In a written opinion and order, the post-conviction court denied post-conviction relief.

Moultrie filed an application for leave to appeal in this Court. In his application, Moultrie argued that the post-conviction court erred only as to his claims that counsel was ineffective in failing to request a hearing and a ruling on the motion for modification of sentence under Rule 4-345(e) and in misinforming him that a three-judge panel could increase his sentence on an application for review under Rule 4-344. The application did not mention counsel's failure to object at the reverse-waiver hearing or counsel's failure to request that the case be transferred to the juvenile court for sentencing.

This Court granted the application for leave to appeal and transferred the case to the regular appellate docket. The order effectuating that transfer said, in pertinent part:

It is this 13th day of December, 2017, by the Court of Special Appeals,

ORDERED , that the above-captioned Application for Leave to Appeal be, and is hereby, GRANTED, and the case is hereby transferred to the regular appeal docket of this Court to address the two questions presented in Applicant's application for leave to appeal.

In his brief, Moultrie contends that the post-conviction court erred both for the reasons presented in his application for leave to appeal and for the additional reasons that the post-conviction court rejected – the failure to object to alleged errors at the reverse-waiver hearing and the failure to request a juvenile disposition at sentencing. Moultrie argues that those additional issues are properly before us even though he did not raise them in his application for leave to appeal, and even though the order does not encompass them.

DISCUSSION

I.

We must first decide what is, and what is not, properly before us. For the reasons explained below, we decline to consider the contentions that Moultrie did not include in his application for leave to appeal.

This Court granted the application for leave to appeal pursuant to Md. Rule 8-204(f)(5), which enables us to order further proceedings in accordance with Rule 8-204(g). Under Rule 8-204(g), those "[f]urther proceedings ... shall be conducted ... as if the order granting leave to appeal were a notice of appeal filed pursuant to Rule 8-202." Md. Rule 8-204(g)(1).

In Harding v. State , 235 Md. App. 287, 294, 175 A.3d 924 (2017), this Court recognized that if a notice of appeal sets forth the points that an appellant expects to argue, "we treat that language as surplusage[.]" Id. Consequently, in Harding we held that appellants may argue points that they did not raise in an application for leave to appeal, at least when the order granting leave to appeal contained no language limiting what the appellants could argue. Id. at 295, 175 A.3d 924. At the same time, however, we cautioned that " Rule 8-204(f)(5) does not prohibit this Court from placing conditions or substantive limitations on our grant of an application for leave to appeal[.]" Id. That...