State v. Lyles

• Decision Date: 25 November 1986
• Docket Number: No. 108,108
• Citation: 517 A.2d 761,308 Md. 129
• Parties: STATE of Maryland v. Keith Joseph LYLES, Lovette Halsey, Emmanuel King and Michael J. Ulrich. Sept. Term 1985.
• Court: Maryland Court of Appeals

Page 129

308 Md. 129

517 A.2d 761

STATE of Maryland v. Keith Joseph LYLES, Lovette Halsey, Emmanuel King and Michael J. Ulrich.

No. 108 Sept. Term 1985.

Court of Appeals of Maryland.

Nov. 25, 1986.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellant.

Joseph S. Friedman, Washington, D.C., for appellee (Lyles).

Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellees (King & Ulrich).

Gregory A. Jenifer, Baltimore, for appellee (Halsey).

Argued Before SMITH, ^* ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

COUCH, Judge.

Following the convictions and sentencing of Keith Lyles, Lovette Halsey, Emanuel King and a finding of violation of probation by Michael Ulrich, in different circuit courts, each defendant filed an appeal to the Court of Special Appeals raising, inter alia, a common issue. In each case it was contended that error was committed when the defendant was sentenced without being advised of the right to allocution in mitigation of punishment pursuant to Md. Rule 4-342(d). ¹ Lyles also alleged that the evidence was insufficient to sustain his conviction of battery.

The Court of Special Appeals affirmed each of the convictions; the sentences, however, were vacated and the cases remanded for further proceedings. In Ulrich's case it vacated the finding of probation revocation. ² Thereafter, the State petitioned this Court for a writ of certiorari on a single issue concerning a defendant's right to allocution. In due time Lyles answered the State's petition and filed a conditional cross-petition. In briefing the cross-appeal, he discussed the following three issues, although the third issue was not raised in the cross-petition:

1. Whether the cross-appellant waived his right to appellate review of the sufficiency of the evidence.

2. Whether there is sufficient evidence to support a conviction for battery.

3. Whether the imposition of a ten year sentence for simple battery is a cruel and unusual punishment.

We granted certiorari on both the petition and conditional cross-petition to consider questions of public importance. The question, common to all the cases, is whether a sentence must be vacated for the court's failure to advise a defendant that he has the right, personally and through counsel, to speak in mitigation of punishment where the defendant made no request to make a statement and no objection to the sentencing procedure. The issues raised by Lyles in his cross-petition will be addressed later in this opinion.

(1)

Allocution

The various parties to this controversy agree to the following:

"At each sentencing defense counsel availed themselves of the opportunity to present argument in mitigation of punishment to the court. In each instance, the court did not advise the defendant that he had a right to make a statement. However, in none of the four sentencings at issue did either the defendant or his attorney object to the procedure or request the opportunity for the defendant to address the court personally."

The Court of Special Appeals, by four different panels, held that Md.Rule 4-342(d) was violated; that court therefore vacated each of the sentences and remanded the matters for new sentencing proceedings.

Rule 4-342(d), under which this appeal arises, is not the first such provision in the Maryland Rules. Former Rule 761(a), from which Rule 4-342(d) evolved, provided:

"Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment."

In 1977, this rule was revised and changed to Md.Rule 772(c) which read:

"Before imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right."

See 4 Md.R. 253 (Feb. 16, 1977). Finally, in 1984, the present version, as set forth at note 1, was adopted. It is readily apparent that from the very inception of the rule providing for the right of allocution the use of the word shall makes the rule mandatory. Indeed, Judge Eldridge, writing for the Court in Kent v. State, 287 Md. 389, 393, 412 A.2d 1236, 1238 (1980) (decided under Rule 772(c) redesignated as Rule 772(d)), observed, "Considering the language of the rule, its requirements are clearly mandatory." (citations omitted). Furthermore, in Kent we held that "where there is a violation of the rule, the remedy is resentencing." Id. at 393-94, 412 A.2d at 1238. In so doing we referred to Rome and Modo v. State, 236 Md. 583, 589, 204 A.2d 674 (1964) (decided under former Rule 761(a)).

In our view there is simply no requirement that the court inform the accused of his right to allocute under the present rule. Rule 4-342 is somewhat different than former Rule 772(c). The former rule, by its terms, required the court to inform an accused that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment before sentence was imposed. The rule also required the court to afford the defendant an opportunity to exercise this right. The requirement that the court inform the accused of this right was eliminated in the present version of the rule leaving only the requirement that an opportunity to make a statement be afforded.

Since the wording of the former rule required affirmative action by the trial court, there would have been no necessity to change the rule had there been an intention to maintain the requirement to inform the accused of his right to allocute. The rule was changed, however, and is unambiguous; the requirement of informing the accused was eliminated while the requirement of affording an opportunity was retained. The rule says what it says; the Court of Special Appeals erred in concluding that the rule required the court to inform the accused of his right to make a statement in mitigation of punishment.

The procedural right to allocute is not one of constitutional proportion. Robinson v. Warden, 242 Md 171, 218 A.2d 217 (1966); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Rather, it is grounded in the common law. Dutton v. State, 123 Md. 373, 91 A. 417 (1914); see also Harris v. State, 306 Md. 344, 509 A.2d 120 (1986). Hence, the right to allocute, because it is not a fundamental right, may be waived if not asserted at trial. Harris v. State, 306 Md. at 357, 509 A.2d at 126, cited with approval in State v. Calhoun, 306 Md. 692, 511 A.2d 461 (1986) (applying waiver principles to common law right of allocution); cf. Covington v. State, 282 Md. 540, 386 A.2d 336 (1978) (objection to lack of closing argument held waived); Banks v. State, 203 Md. 488, 102 A.2d 267 (1954) (right to have stenographic record of trial held waived). Consequently, by failing to request an opportunity to address the court personally, each of the defendants waived any Rule 4-342(d) right to allocute.

Furthermore, a court's failure to ask a defendant, who is represented by an attorney, whether he has anything to say before sentence is imposed is not a jurisdictional error. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Md.Rule 885 provides that, aside from questions concerning the jurisdiction of the circuit court, "[t]his Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the circuit court." Since the defendants made no objection to the alleged error at trial and made no proffer as to the contents of any desired allocution, the issue was not presented to the trial court. Consequently, it was not properly before the intermediate appellate court and is not now before this Court. Logan v. State, 289 Md. 460, 487, 425 A.2d 632 (1981).

(2)

Cross-Appeal

Turning next to the issues raised by Keith Lyles on cross-petition, we need only address the first. Our conclusion that it is without merit makes it unnecessary to address the second. His third issue was not raised in the petition or conditional cross-petition for certiorari and thus is not subject to review here. Md.Rule 813a.

With respect to Lyles' first issue, whether the Court of Special Appeals erred in refusing to review the sufficiency of the evidence, we agree with that court in its conclusion that the issue has not been preserved for review. Lyles' trial occurred after the effective date of Md.Rule 4-324 and consequently was governed thereby. See Ennis v. State, 306 Md. 579, 510 A.2d 573 (1986), for a discussion of the history and application of Md.Rule 4-324, upholding its validity against an equal protection attack. Section (a) of Rule 4-324 provides:

"(a) Generally.--A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary. A defendant does not waive the right to make the motion by introducing evidence during the presentation of the State's case." (emphasis supplied).

The language of the rule is mandatory. Hence Lyles was required to state with particularity all reasons why his motion for judgment of acquittal should be granted. The record is clear; he did not do so on either occasion he made such motion. In fact, his counsel expressly waived making an argument.

We agree with the intermediate appellate court's analysis of why,...