State v. Schlick, 082319 MDCA, 63-2018

Docket Nº:63-2018
Opinion Judge:Greene, J.
Judge Panel:Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Battaglia, Lynne A., (Senior Judge, Specially Assigned), JJ.
Case Date:August 23, 2019
Court:Court of Appeals of Maryland




No. 63-2018

Court of Appeals of Maryland

August 23, 2019

Argued: April 5, 2019

Circuit Court for Baltimore City Case No. 204299006

Barbera, C.J. [*] Greene, McDonald, Watts, Hotten, Getty, Battaglia, Lynne A., (Senior Judge, Specially Assigned), JJ.


Greene, J.

After the imposition of sentence, a criminal defendant has the right to seek modification of that sentence under Maryland Rule 4-345(e). In order to obtain review of his or her sentence, a defendant may file a motion seeking modification "within 90 days after imposition of a sentence." Md. Rule 4-345(e)(1). After a timely motion is filed, generally the trial court has revisory power over a defendant's sentence for five years "from the date the sentence originally was imposed[.]" Md. Rule 4-345(e)(1)(B).

Postconviction proceedings introduce an added complexity to the tenets of Maryland Rule 4-345(e). This Court has previously decided that when a defendant receives ineffective assistance of counsel and, consequently, loses his or her right to file a motion for modification of sentence, the defendant may be afforded the right to file a belated motion. State v. Flansburg, 345 Md. 694, 705, 694 A.2d 462, 468 (1997). This Court has not had occasion to decide how or whether such postconviction relief impacts a circuit court's revisory power over a defendant's sentence. The matter now before this Court concerns precisely that question. As such, we undertake to review the extent of a circuit court's revisory power over a sentence, where a defendant has been granted postconviction relief to file a belated motion for modification of sentence.


In 2005, Respondent John Schlick ("Mr. Schlick") pleaded guilty in the Circuit Court for Baltimore City to a narcotics offense.1 On September 20, 2005, he was sentenced to 16 years in prison, 14 years and six months of which were suspended, and he was to be placed on five years of probation upon his release. Mr. Schlick did not request that his sentence be modified or otherwise reviewed.

After his release on probation, Mr. Schlick was convicted of another crime. As a result, he was charged with violating the terms of his probation. On September 15, 2008, Mr. Schlick appeared before the Circuit Court for Baltimore City for a violation of probation hearing. At the violation of probation hearing, the court revoked Mr. Schlick's probation and sentenced him to 14 years and six months incarceration, thereby reimposing the suspended portion of Mr. Schlick's 2005 sentence for the narcotics offense. No motion was filed on Mr. Schlick's behalf to modify or otherwise review his sentence.

On August 31, 2012, with the assistance of counsel, Mr. Schlick filed a petition for postconviction relief, and on November 30, 2012 he supplemented the petition. Mr. Schlick argued that he received ineffective assistance of counsel because he had directed his lawyer from the 2008 violation of probation hearing to file a motion for reduction of sentence, but his lawyer failed to do so. Mr. Schlick's counsel from the 2008 hearing swore under oath in an affidavit that she failed to file the motion for modification as requested by Mr. Schlick. The postconviction court held a hearing on Mr. Schlick's petition on February 20, 2013. On March 20, 2013, the court ruled on the petition in Mr. Schlick's favor. The court concluded that Mr. Schlick received ineffective assistance of counsel and permitted Mr. Schlick to "file a belated [m]otion for [m]odification of [s]entence within ninety (90) days of the date of [its] order."

Mr. Schlick, with the assistance of counsel, filed a motion for modification in the Circuit Court for Baltimore City on May 24, 2013, which was within 90 days of the postconviction court's order. Six days later, on May 30, 2013, Mr. Schlick, acting without the assistance of counsel, filed a motion asking the court to hold his motion "in abeyance until a later date." In July 2013, Mr. Schlick sent a letter to the circuit court pro se, articulating some of the reasons he believed the court should reduce his sentence. On January 6, 2014, the court scheduled Mr. Schlick's motion for a hearing to be held on February 12, 2014. On January 30, 2014, Mr. Schlick filed a motion to postpone the hearing. The court granted Mr. Schlick's motion on January 31, 2014 and ordered that "[Mr. Schlick]'s [m]otion for [m]odification of [s]entence . . . continue to be held sub curia by the [c]ourt, until such time as [Mr. Schlick] requests a hearing."

On July 24, 2014, Mr. Schlick's counsel requested a hearing on his motion for modification. On January 15, 2015, the trial court granted Mr. Schlick's request and again set the matter for a hearing, which was to be held on March 6, 2015. The March 6, 2015 hearing was not held.[2] On October 15, 2015, Mr. Schlick's counsel again requested a hearing. On July 16, 2016, the court ordered that the matter be set for a hearing on October 17, 2016. On October 11, 2016, Mr. Schlick's counsel filed a motion requesting a continuance, with the State's consent, because Mr. Schlick was incarcerated outside of Maryland, and the Department of Corrections could not transport him in time for the hearing. The circuit court granted the postponement and reset the hearing for January 10, 2017.

In December 2016, the circuit court issued an order to show cause. Therein, the court explained that Mr. Schlick had been originally sentenced for purposes of Rule 4-345(e) when his probation was revoked on September 15, 2008. Thus, on September 15, 2013, five years had passed from the date of his sentence. The court directed the parties to address whether Mr. Schlick's motion should be dismissed on the grounds that, under Maryland Rule 4-345(e), the "five[-]year expiration date for w[hen] the [c]ourt can revise [Mr. Schlick]'s sentence" had expired. At the hearing on January 10, 2017, the court heard arguments from the State's attorney and Mr. Schlick's counsel with regard to its revisory authority over Mr. Schlick's sentence and on the merits of his motion for modification.

On August 8, 2017, the circuit court dismissed Mr. Schlick's motion without ruling on the merits. The court reasoned that Mr. Schlick's sentence was originally imposed on September 15, 2008, and its revisory power lapsed on September 15, 2013. Accordingly, the court concluded that it "no longer ha[d] revisory power over [Mr. Schlick]'s sentence." In addition, the court pointed out that Mr. Schlick was granted postconviction relief and filed his belated motion in compliance with the postconviction court's order, but he did not obtain a hearing or ruling on the motion before September 15, 2013. Therefore, the court concluded that Mr. Schlick's "inability to receive a sentence modification" was attributable to his own actions, not any "fault or error of the [c]ourt, nor ineffective assistance of counsel[.]"

Mr. Schlick noted a timely appeal to the Court of Special Appeals. Schlick v. State, 238 Md.App. 681, 194 A.3d 49 (2018). Our intermediate appellate court concluded that, despite the five-year limitation set forth in Rule 4-345(e), "the trial court retained fundamental jurisdiction to rule on the belated [m]otion for [m]odification of [s]entence." Id. at 690, 194 A.3d at 54. The court explained that "[t]here are any number of reasons it may be impossible or impractical for a judge to act promptly upon a motion for reduction of sentence filed with the court before the expiration of the five-year period[.]" Id. at 692, 194 A.3d at 55. For instance, a defendant may be granted permission to file a belated motion "toward the end of the original period of review." Id.

The court emphasized that, in Mr. Schlick's case, the trial court did not set Mr. Schlick's motion for a hearing "until after the expiration of five years from the imposition of the original sentence." Id. at 693, 194 A.3d at 55-56. The Court of Special Appeals explained that "[i]n a perfect world, a court should set the hearing within the five-year period," but it also recognized that "courts are busy." Id. at 693, 194 A.3d at 56. If a circuit court fails to set a hearing to consider the merits of a motion for modification within the five-year window, according to our intermediate appellate court, "the consequence should not be held against the defendant." Id. The Court of Special Appeals pointed out that after a defendant files a motion there is also an onus on the defendant and counsel "to make the best efforts" to have a hearing in a timely manner. Id. In summation, the court explained that "the court has [fundamental] jurisdiction over the motion, but it is within the discretion of the trial court to consider the totality of the circumstances and determine whether to hear the motion...

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