Ray v. State

• Decision Date: 29 September 2016
• Docket Number: Sept. Term, 2015,No. 1469,1469
• Citation: 230 Md.App. 157,146 A.3d 1157
• Parties: Bashawn Montgomery Ray v. State of Maryland
• Court: Court of Special Appeals of Maryland

230 Md.App. 157

146 A.3d 1157

Bashawn Montgomery Ray

v.State of Maryland

No. 1469

Sept. Term, 2015

Court of Special Appeals of Maryland.

September 29, 2016

Submitted by: Claire Caplan (Paul DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant

Submitted by: Mary Ann Ince (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee

Panel: Krauser, C.J., Nazarian, Charles E. Moylan, Jr., Senior Judge, Specially Assigned, JJ.

Moylan, J.

The subject is Maryland Rule of Procedure 4–345(a)'s provision that: “The court may correct an illegal sentence at any time.” The appellant, Bashawn Montgomery Ray, filed in the Circuit Court for Montgomery County on March 23, 2015, just such a motion to correct what he deemed to be an illegal sentence. On July 24, 2015, the court denied the motion without hearing or written opinion. This appeal followed. It presents an appropriate occasion for a macroscopic overview of Rule 4–345(a) : its origin; its purpose; its resultant freedom from a filing deadline; its critical distinction between inherent sentence illegality and antecedent procedural illegality; the great leap forward from looking simply at statutory sentencing caps to more ambiguous caps imposed by plea negotiations; and the criteria for deciding precisely what a negotiated agreement means.

Antecedent Trial and Appeals

At the trial of the case based on the agreed statement of facts on April 18, 2011, the appellant was found 1) guilty of conspiracy to commit theft of property with a value of at least $1,000 and 2) guilty of making a false statement when under arrest. On August 11, 2011, he was sentenced to a term of ten years' incarceration with all but four years suspended followed by four years of probation.

The appellant appealed his convictions to this Court. In a 44-page opinion in Ray v. State, 206 Md.App. 309, 47 A.3d 1113 (2012), this Court affirmed the convictions. That opinion is not pertinent to the issue now before us. The Court of Appeals granted certiorari to consider the single issue of whether there was probable cause for the arrest. The majority opinion for the Court, however, held that the Fourth Amendment issue had not been properly preserved for appellate review. Ray v. State, 435 Md. 1, 76 A.3d 1143 (2013). The Court of Appeals opinion is not pertinent to the issue now before us.

The Belated Contention

Despite having slept quietly on this complaint for three and one-half years, the appellant now raises the contention that his sentence of ten years' incarceration with all but four years suspended was an inherently illegal sentence under Rule 4–345(a) because it exceeded the legal cap imposed upon it that had been bargained for as a condition of his plea of not guilty on an agreed statement of facts. The contention, however tardy, is cognizable.

For Auld Lang Syne

Whence, then, Rule 4–345(a)'s unique and open-ended filing calendar? Rule 4–345(a), without the loss or gain of a comma, has been with us a long time (since 1951). The Rules of Criminal Procedure were completely recodified by Order of the Court of Appeals dated April 6, 1984, and effective as of July 1, 1984. What is now Rule 4–345(a) had theretofore been codified, verbatim, as Maryland Rule 774(a). That provision had, in turn, been codified as Maryland Rule 764(a) prior to July 1, 1977. Before a yet earlier rewriting of the Maryland Rules of Procedure, adopted on September 15, 1961 and effective as of January 1, 1962, the provision, in precisely its present language, had been Rule 744(a). Before 1962, the same unchanged provision had been Rule 10(a) of the Criminal Rules of Practice and Procedure. As Rule 10(a), it may be found, in the verbatim language of Rule 4–345(a) today, in Vol. 3, Horace Flack, Annotated Code of Maryland, Appendix B, General Rules of Practice and Procedure (1951). In Drain v. Warden, 207 Md. 620, 621, 113 A.2d 422 (1955), the Court referred to this venerable progenitor of today's rule: “If a sentence is illegal, the trial court may correct it at any time. General Rules of Practice and Procedure, part 4, rule 10.”

The General Rules of Practice and Procedure were first adopted by the Court of Appeals in 1941. The minutes of the meeting of the Standing Committee on Rules of Practice and Procedure of March 28, 1950, reflect that the reporter “presented for the consideration of the Committee a letter from Chief Judge Ogle Marbury,” reading in part:

“At the Conference (Judiciary) the question was raised whether judges have power after the expiration of the term, or after 30 days, to reduce or suspend sentences imposed by them in criminal cases. The county judges were practically unanimous in their view that it could not be done, but the city judges seem to be doing it without any definite authority.”

Chief Judge Marbury's request to the Rules Committee had been prompted by a discussion among judges at the Fifth Annual Meeting of the Judicial Council of Maryland in 1950 in which there was spirited disagreement over whether a trial judge possessed any authority to correct an illegal sentence or otherwise amend a sentence after the formal term of court in which the sentencing took place had terminated. The minutes of the meeting in Annapolis of May 29, 1951, reflect that the Rules Committee recommended to the Court of Appeals what the Court subsequently adopted as Rule 10(a): “The Court may correct an illegal sentence at any time.”

What is now Rule 4–345(a) is virtually identical to an earlier version of Federal Rule of Criminal Procedure 35. Johnson v. State, 274 Md. 29, 39, 333 A.2d 37 (1975) (“Rule 35 of the Federal Rules of Criminal Procedure ... is virtually identical to the provisions of Maryland Rule 764a.”). Federal Rule 35(a) at that time provided, “The court may correct an illegal sentence at any time.” In Berkoff v. Humphrey, 159 F.2d 5, 7 (1947), the Eighth Circuit pointed out that Federal Rule 35 “became effective March 21, 1946, but made no change in existing law.” Thus, with respect to what is now Rule 4–345(a), the limit of legal memory is the 1951 adoption by the Court of Appeals of what then became Rule 10(a) of the Maryland Rules of Practice and Procedure. Beyond 1951, appellate memory runneth not to the contrary.

Reason For the Filing Exemption

Rule 4–345(a)'s exemption from a filing deadline is, indeed, a very narrow one. Despite the generality of the Rule's wording, it does not permit the correction “at any time” of any illegality that may have lead to or contributed to the sentence being challenged. The illegality referred to by Rule 4–345(a) must be an illegality inherent in the sentence itself as opposed to being some procedural (even constitutional) flaw in the trial resulting in the conviction for which the sentence is imposed or even a flaw in the sentencing procedure itself. Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012), made this preclusive limitation on what constitutes an “illegal sentence” crystal clear:

“[W]here the sentence imposed is not inherently illegal, and where the matter complained of is a procedural error, the complaint does not concern an illegal sentence for purposes of Rule 4–345(a). A sentence does not become ‘an illegal sentence because of some arguable procedural flaw in the sentencing procedure.’ ”

(Emphasis supplied; citations omitted). Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012), spoke to the same effect:

“The ‘scope of this privilege ... is narrow.’ To constitute an illegal sentence under Rule 4–345(a), ‘the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.’ Accordingly, ‘we have denied relief pursuant to Rule 4–345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.’ ”

(Emphasis supplied; citations omitted).

In Matthews v. State, 197 Md.App. 365, 375, 13 A.3d 834 (2011), rev'd on other grounds, 424 Md. 503, 36 A.3d 499 (2012), this Court also addressed Rule 4–345(a)'s austerely limited coverage.

“Emerging from [a] survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and closure still abide, Rule 4–345(a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. It is not, on the other hand, some unlimited ‘Reopen, Sesame,’ licensing the court to revisit and to relitigate issues that have long since become faits accompli.”

(Emphasis supplied). See also Alston v. State, 425 Md. 326, 339, 40 A.3d 1028 (2012) (“[T]he most important principle is ‘that, as a general rule, a Rule 4–345(a) motion to correct an illegal sentence is not appropriate when the alleged illegality “did not inhere in the defendant's sentence.” ’ ”); Montgomery v. State, 405 Md. 67, 74–75, 950 A.2d 77 (2008) (“A motion to correct an illegal sentence ordinarily can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed.”); Hoile v. State, 404 Md. 591, 622, 948 A.2d 30 (2008) (“A sentence is not illegal where the ‘illegality did not inhere in the defendant's sentence.’ ”); State v. Wilkins, 393 Md. 269, 273, 900 A.2d 765 (2006) (“A sentence that is not permitted by statute is an illegal sentence.” (Citation omitted)); Randall Book Corp. v. State, 316 Md. 315, 323, 558 A.2d 715 (1989) (“[I]mproper motivation ... does not render the sentence illegal within the meaning of Rule 4–345.”).

As this Court explained in Corcoran v. State, 67 Md.App. 252, 255, 507 A.2d 200 (1986) :

“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.”

(Emphasis supplied).

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