Sesay v. State
| Decision Date | 09 February 2017 |
| Docket Number | No. 2391,2391 |
| Parties | PASHEKA SESAY, v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Opinion by Leahy, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
On September 2, 2015, Pasheka Sesay ("Appellant") was tried by a jury in the Circuit Court for Prince George's County and convicted of theft scheme over $100,000, conspiracy to commit theft scheme over $100,000, theft scheme over $500, conspiracy to commit theft scheme over $500, and three counts of filing a false tax return. Afterward he was sentenced to a total of 20 years of incarceration, with all but 8 years of suspended, to be followed by 5 years of supervised probation. Appellant was also ordered to pay restitution in the amount of $100,000.00.
In his timely appeal, Appellant maintains that his jury trial, convictions and sentences are void for lack of jurisdiction because on May 1, 2015, the circuit court erred in granting his belated request to withdraw his guilty plea, thereby allowing the case to proceed to trial. He also contends that the sentence imposed following his guilty plea was illegal, so that, should we determine his convictions are void and restore his case to the posture that it was in on May 1, 2015, we should also vacate his illegal sentence.1
We hold that the circuit court had jurisdiction to correct Appellant's illegalsentence on May 1, 2015, and did so by accepting Appellant's request to withdraw his guilty plea. Maryland law does not provide Appellant the right to have his illegal sentence corrected more than once. We affirm.
Appellant was indicted in the Circuit Court for Prince George's County, Maryland, and charged with multiple counts of theft scheme over $100,000, and related offenses, including conspiracy to commit theft scheme. On November 1, 2013, Appellant agreed to plead guilty to one count of conspiracy to commit theft scheme over $100,000 and to be sentenced to "a cap of six months." The parties agreed that the maximum sentence was 25 years, the sentencing guidelines for Appellant called for a sentence between two to five years, and that there was a matter of restitution exceeding $100,000. Pertinent to our discussion, the court engaged in the following colloquy with Appellant:
After ascertaining that the Appellant understood his rights, the State provided thefollowing statement of facts in support of the guilty plea:
The court found the facts sufficient to sustain the plea. After numerous postponements, Appellant eventually was sentenced on April 17, 2015. At that time, he was sentenced to 25 years of incarceration, with all but six months suspended, to befollowed by five years of supervised probation. He was also ordered to pay $760,000.00 restitution to Sonco Worldwide, Incorporated. As part of the sentence, the court authorized home detention and stayed execution of home detention so that Appellant did not have to report until May 5, 2015.
Eleven days after sentencing, on April 28, 2015, Appellant filed a "Motion for Reconsideration of Sentence and/or Stay Pending Appeal" (Rule 4-345(e)). In that written motion, he averred that he had not contacted, nor been qualified to serve, home detention, and that his interview for that form of detention was scheduled for May 26, 2015, or twenty-one days after he was ordered to report for imposition of sentence. Appellant also indicated that he intended to file an application for leave to appeal his conviction in order to challenge the effectiveness of defense counsel, alleged coercion by counsel, and "other things." Because Appellant would serve the entirety of his sentence pending said application, he requested to remain free on bond.
On May 1, 2015—a total of fourteen days after sentencing—Appellant and the State appeared at a hearing before the sentencing court on the aforementioned written motion for reconsideration of sentence. There, and for the first time, his counsel informed the court that Appellant actually wanted "to request to withdraw his plea in the case." Over the State's objection, the court stated: "I am going to grant him a new trial because his wish is my command here." The court then directed the clerk to "[s]et it down for a trial, please." Appellant exclaimed, "God bless you, Your Honor." Thedocket entries indicate that Appellant's motion to withdraw plea was granted.2
Appellant elected a jury trial. The underlying facts are consistent with the statement of facts elicited at Appellant's initial plea hearing. In brief,3 Appellant used company gas cards without permission to steal over $100,000.00, apparently in the purchase of products, in a conspiracy involving the comptroller of that same company.
More specifically, from August 1, 2008 until May 25, 2012, Stephen Donoian was employed as the Chief Financial Officer ("CFO") for Sonco Worldwide, Incorporated, a Prince George's County business. Donoian testified that he previously pleaded guilty to a theft scheme involving Sonco gas cards, as well as a theft scheme involving taking pay checks from the company in excess of $200,000.00. Donoian had already served time and paid restitution in connection with those convictions at the time of appellant's trial.
As part of his job as CFO, Donoian provided gas cards to drivers for the company. Sometime in 2008, Donoian gave Appellant—whom he also employed as a caregiver for his elderly father—one of these company gas cards. Donoian also gave Appellant asecond gas card about a year later. Although Appellant was temporarily employed by Sonco, he was not authorized to have a company gas card. Donoian was able to conceal Appellant's transactions because Donoian was the only person in the company assigned to account for them. The jury received documentation detailing Appellant's use of the gas cards over the relevant time periods, demonstrating that was able to use the gas cards to charge thousands in illicit purchases until February 2012.
After the jury considered the aforementioned evidence, they found Appellant guilty of: theft and conspiracy to commit theft of property valued over $100,000.00 from October 1, 2009 to May 25, 2012; theft and conspiracy to commit theft of property valued over $500.00 between August 1, 2008 and September 30, 2009; and, three counts of filing a false tax return for the years 2009, 2010, and 2011.
Appellant contends that his conviction and sentence following the September 2, 2015 jury trial must be vacated because the circuit court did not have jurisdiction to honor his request to withdraw his guilty plea on May 1, 2015. Specifically, Appellant asserts that Maryland Rule 4-242(h) and this Court's prior opinion in Bereska v. State, 194 Md. App. 664 (2010), impose a limit on the circuit court's subject matter jurisdiction, requiring a motion to withdraw a guilty plea to be filed no later than ten days after sentencing. Thus, according to Appellant, his subsequent trial, convictions, and sentences are void for lack of jurisdiction. Moreover, Appellant continues that reinstatement of the sentence imposed following his guilty plea is not appropriate, underthe circumstances of this case, because "by sentencing Mr. Sesay to 25 years of incarceration, with all but 6 months suspended, and 5 years of supervised probation, the lower court imposed an illegal sentence."
The State responds initially by citing to the general principle that "one cannot appeal...
To continue reading
Request your trial