Pollard v. State

• Decision Date: 02 August 2006
• Docket Number: No. 22, September Term, 2005.,22, September Term, 2005.
• Parties: Jonathan F. POLLARD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

904 A.2d 500

394 Md. 40

Jonathan F. POLLARD v. STATE of Maryland.

No. 22, September Term, 2005.

Court of Appeals of Maryland.

August 2, 2006.

Stacy W. McCormack, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, GREENE and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.

GREENE, J.

Recently, in State v. Wilkins, 393 Md. 269, 272, 900 A.2d 765, 767 (2006), we held that "a sentencing judge's failure to recognize his or her right to exercise discretion in the imposition of a sentence does not render the sentence illegal within the meaning of Md. Rule 4-345(a)." In the present case, the Court of Special Appeals affirmed the judgment of the Circuit Court for Harford County which denied the motion of Jonathan F. Pollard ("Petitioner") to correct an illegal sentence. The rationale presented by Petitioner in support of his motion to correct an illegal sentence is essentially the same as that presented by Ralph Edward Wilkins in support of his motion in Wilkins, i.e., that the sentencing judge did not recognize his discretion to suspend a portion of the sentence imposed. Because the alleged illegality did not inhere in the sentence itself, the motion to correct an illegal sentence is not appropriate. The sentence imposed was neither illegal, in excess of that prescribed for the offense for which Petitioner was convicted, nor were the terms of the sentence itself statutorily or constitutionally invalid. Therefore, we affirm the judgments of the Court of Special Appeals and the Circuit Court for Harford County.

Background

Petitioner was indicted October 2, 1973, on charges of first-degree rape and assault with intent to rape and other related charges. He appeared in the Circuit Court for Harford County on May 28, 1974, and entered a guilty plea to first-degree rape. Three cases were called for trial, criminal case numbers 4777, 4778 and 4779. In exchange for his plea of guilty to first-degree rape in case number 4779, the State agreed to stet the other outstanding charges of robbery and sodomy as alleged in the other two cases pending before the court. Upon accepting the plea of guilty, the court ordered a presentence investigation and held a sentencing hearing on July 26, 1974. The court sentenced Petitioner to a term of life imprisonment for first-degree rape and ordered an examination at Patuxent Institution.¹ Between 1975 and 1985, Petitioner filed three separate petitions for post conviction relief, which the court considered and denied. In December 1974, the court considered Petitioner's motion for modification of sentence and denied that motion. In 1990, Petitioner filed a request with the court entitled, "Motion For Change of Sentence." The court in effect denied that motion, as there is no record in the file that it was ever granted. Thereafter, on December 17, 2002, approximately twenty-eight years after imposition of sentence, Petitioner filed pro se in the Circuit Court for Harford County a Motion to Correct An Illegal Or Irregular Sentence. The court set the matter for a hearing in open court where the Petitioner appeared with counsel. After consideration of the exhibits and the arguments of counsel for the State and the defendant, the court denied the motion. Through counsel, Petitioner filed a timely appeal to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the judgment of the Circuit Court. Through counsel, Petitioner filed a petition for writ of certiorari and we granted the petition. Pollard v. State, 387 Md. 462, 875 A.2d 767 (2005).

Discussion

Petitioner contends that the sentencing judge abused his discretion by imposing a life sentence and failing to expressly recognize that all or a portion of the sentence could have been suspended. Specifically, Petitioner asserts that it was unclear from the record that "Judge Close knew that he could suspend a portion of the life sentence. Rather, that it was obvious from [the] sentencing court's language that it believed that it had two, and only two alternative sentences: a sentence of between 18 months and 21 years or a life sentence." In response to this contention, the Court of Special Appeals stated that because "judges are presumed to know the law . . . we will not infer an error by the [sentencing judge], absent an affirmative indication that he believed he lacked the discretionary authority to suspend [petitioner's] sentence." Adopting the rationale of the Court of Special Appeals, the State contends that the intermediate appellate court's judgment should be affirmed because the Circuit Court correctly denied Petitioner's motion to correct his life sentence and that there is no indication that the trial judge was unaware of his authority.

We view the matter differently, primarily, because our focus is on the nature of the sentence actually imposed, rather than on what the sentencing judge said or did not say about his discretionary authority, during the course of that sentencing proceeding. Further, we emphasize that the sentencing court is not required to specify, either before, during or after the imposition of a sentence, that it does or does not have the discretion to suspend any portion of a sentence. Therefore, it is not material, to the question of legality of a sentence, that the sentencing judge did not acknowledge his discretion under § 641A to suspend a portion of the life sentence. See Wilkins, 393 Md. at 277-78, 900 A.2d at 770; see also State v. Chaney, 375 Md. 168, 179, 825 A.2d 452, 458 (2003) (holding that merely because "a sentencing judge's failure expressly and consecutively to acknowledge the existence of a second statute permitting [the] suspension of . . . [a life sentence, is not a] sufficient [basis] to infer that [the sentencing judge] was unaware of its potential application to the sentence he impos[es] . . .").

Petitioner was convicted of first-degree rape. The statute in effect in 1974 specifically provided that

[e]very person convicted of a crime of rape . . . shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more than twenty one years. . . .

Md.Code (1957, 1971 Repl.Vol.), Article 27 § 461. Pursuant to statutory authority, the sentencing judge could have imposed a life sentence, or a sentence for a definite term of years. The sentence imposed was life and was a sentence permitted by law. Wilkins, 393 Md. at 276-77, 900 A.2d at 769-70.

Pursuant to another statutory provision, the sentencing judge was authorized, in the exercise of judicial discretion, to suspend a portion of the sentence imposed. Md.Code (1957, 1971 Repl.Vol.), Art. 27 § 641A provides, in relevant part:²

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 courts 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 five years.

The judge did not suspend any portion of the life sentence imposed. Immediately, prior to imposing the sentence, Judge Close asked:

THE COURT: Mr. Pollard, is there anything that you wish to say in your own behalf, any reason that you wish to give to the Court why it should be lenient in imposing a sentence upon you?

PETITIONER: I would like to say that I am sorry for what I done [sic].

Judge Close then imposed sentence:

THE COURT: Let me just say this to you, the presentence investigation, the report that I have, doesn't show anything bad with regard to your background. You apparently have never committed any offense against the law previously. I suppose you had a very short time in employment as a cook before you entered the Marine Corps, [where he was stationed at Aberdeen Proving Grounds,] and then came all this.

Now, Jonathan, the Court has some reason to believe—at least there have been certain allegations made that you may have had similar involvement such as this with the victim in this case in . . . the area, and that is really one of the reasons that the sentence that will be imposed upon you is of the nature that you will hear.

* * * *

THE COURT: Now, the sentence of the Court is that you be committed to the custody of the Commission of Correction for the period of your natural life. . . .

In State v. Wooten, 277 Md. 114, 115, 352 A.2d 829, 831 (1976), interpreting § 641A, this Court held that it was within the discretion of the trial court to suspend all or a portion of a life sentence because the statute grants that authority to the judge. In Williamson v. State, 284 Md. 212, 215 395 A.2d 496, 497 (1979), we held that the sentencing judge abused his discretion in failing to consider that he had the authority to suspend any part of a life sentence. In Wilkins, we explained that the issue in Wooten was substantive (whether the trial judge had authority to suspend a portion of a life sentence) and in Williamson the issue was procedural (whether a trial judge's failure to exercise discretion was an abuse of discretion). Op. at 281-82, 900 A.2d at 772-73. Moreover, if the error alleged in the sentencing proceeding involves an abuse of discretion, that error may be appropriately raised on direct appeal or as a matter of post conviction relief. Id.; see also Beverly v. State, 349 Md. 106, 127, 707 A.2d 91, 101 (1998) (finding reversible error, resulting in a remand for a new sentencing where the sentencing judge abused her...