State v. Wadlow

• Decision Date: 01 September 1991
• Docket Number: No. 1535,1535
• Citation: 93 Md.App. 260,611 A.2d 1091
• Parties: STATE of Maryland v. Lauren Marie WADLOW. ,
• Court: Court of Special Appeals of Maryland

Page 260

93 Md.App. 260

611 A.2d 1091

STATE of Maryland v. Lauren Marie WADLOW.

No. 1535, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Sept. 4, 1992.

Certiorari Granted Jan. 14, 1993.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty., for Montgomery County, Rockville, on the brief), for appellant.

Reginald W. Bours, III and Donna M. Shea, of Rockville, for appellee.

Argued before WILNER, C.J., and BISHOP and BLOOM, JJ.

BLOOM, Judge.

Lauren Marie Wadlow was indicted (First Count) for possession of cocaine "in sufficient quantity to reasonably indicate under all circumstances an intent to distribute" the same, "to wit: over 448 grams of cocaine, in violation of Article 27, section 286(a)(1) of the Annotated Code of Maryland" (possession with intent to distribute); (Second Count) for possession of cocaine, in violation of Article 27, section 287(a) of the Annotated Code of Maryland; (Third Count) conspiracy to distribute "a controlled dangerous substance, to wit: cocaine, in excess of 448 grams, in violation of the Common Law"; and (Fourth and Fifth Counts) for distribution of cocaine. A jury in the Circuit Court for Montgomery County convicted Ms. Wadlow on the first three counts; the Fourth and Fifth Counts were nolle prossed. On 9 October 1991, the court, merging the conviction on the Second Count into the conviction on the First Count, imposed consecutive prison sentences of four years on the First Count and one year on the Third Count but suspended the one year sentence in favor of a period of supervised probation to begin upon her release from prison.

The State, contending that the court had imposed an illegal sentence in that a minimum sentence of five years without parole was statutorily mandated, noted an appeal on 10 October 1991. After noting its appeal, the State filed a motion, on 15 October 1991, to correct the "illegal sentence." Ms. Wadlow noted a cross-appeal on 8 November 1991. On 18 November 1991, the court, accepting the State's assertion, or concession, that the imposition of a separate sentence on the Third Count (conspiracy charge) was illegal because the conviction on the Third Count necessarily merged into the conviction on the First Count, "corrected" the sentence(s) by striking out the one year sentence but imposing a five year sentence on the First Count. When the prosecuting attorney asked whether that sentence was imposed "pursuant to 286(f)" [Art. 27, § 286(f) of the Maryland Code (1957, 1992 Repl.Vol.) (which mandates a minimum sentence of five years imprisonment without parole for distribution or possession with intent to distribute cocaine if the amount of cocaine involved is 448 grams or more), the trial judge responded, prophetically:

No, that is it. That is all I am saying. The Court of Special Appeals will wrestle with this one. Not too hard, but they will wrestle with it.

The issue raised by the State on its appeal, taken pursuant to § 12-302(c)(2) of the Courts and Judicial Proceedings Article of the Maryland Code (1989 Repl.Vol.), is whether the trial judge erred in failing to impose a penalty mandated by statute. In her cross-appeal, Ms. Wadlow contends:

1. That the trial court erred in denying her motion to suppress "because the search warrant was based upon stale and remote 'information' and upon an illegal search."

2. That she was denied a fair trial by the State's failure to provide adequate discovery and its suppression of fingerprint evidence, and by the admission of prejudicial testimony of Detective Mancuso.

3. That there was insufficient evidence either to connect her and the drugs seized from her co-defendant or to prove an agreement between the two of them to distribute CDS.

4. That the trial court erred in refusing her requested jury instruction.

I

We shall dispose of Ms. Wadlow's contentions prior to addressing the issue raised by the State. Before we reach any of those contentions, however, we must first deal with a challenge to this Court's jurisdiction.

Ms. Wadlow moved to dismiss the State's appeal as untimely, since it was from the sentence originally imposed and no appeal was taken by the State from the allegedly illegal sentence ultimately imposed. Ms. Wadlow's appeal was also filed before the court "corrected" the sentence it had initially imposed and she took no appeal after the court resentenced her. The State moved to dismiss her appeal as untimely filed, while defending her motion to dismiss its appeal by relying on Telak v. State, 315 Md. 568, 556 A.2d 225 (1989). Ms. Wadlow, on the other hand, maintains that the State's appeal was premature because it was from a sentence that is no longer effective rather than from the sentence eventually imposed, whereas her appeal was from the convictions, which were not affected by the resentencing. They are both wrong. Telak is inapposite, and Ms. Wadlow's argument is based upon her misconception that an appeal in a criminal case is from a conviction.

In Telak the District Court struck out the guilty verdicts for driving while intoxicated and negligent driving and in lieu thereof imposed probation before judgment. No appeal was taken within 30 days of that disposition, instead, the State filed a "Motion to Correct an Illegal Sentence," asserting that the Court could not impose probation before judgment because Telak had previously been given probation for driving under the influence and Md.Code Ann., Art. 27, § 641(a)(2), prohibited placing a person on probation before judgment for a second or subsequent violation of driving while intoxicated or under the influence of alcohol. Md.Code Ann., Art. 27, § 641(a)(2) (1957, 1992 Repl.Vol.). The motion was denied, and the State appealed to the Circuit Court for Baltimore County--12 days after the District Court denied its motion but 68 days after the original imposition of probation before judgment. Telak's motion to dismiss the appeal was denied and the circuit court issued a "mandate" that the "State's Motion to Correct an Illegal Sentence be granted" and remanded the case to the District Court. The Court of Appeals granted Telak's petition for a writ of certiorari and reversed on the ground that the State's appeal to the circuit court was untimely. Under § 12-401(a) of the Courts and Judicial Proceedings Article of the Maryland Code, the State may appeal if it contends that the trial court "failed to impose the sentence specifically mandated by the Code." An appeal must be taken within 30 days after the date of the final judgment appealed. The appeal was from the order granting probation, not the denial of the motion to correct the sentence; and the appeal from the allegedly illegal sentence was not taken within the time allowed for appeal.

Telak does support the State's position that its appeal was timely when taken; it does not answer the question as to the effect of the appeal on the subsequent motion to correct the allegedly illegal sentence or the question as to the effect of the court's resentencing, pursuant to that motion, on the prior timely appeal. And Ms. Wadlow's attempt to distinguish the State's appeal of the sentence from her appeal of the convictions overlooks the fact that the right of appeal is from a final judgment and that in a criminal case the final judgment "consists of the verdict and, except where there is an acquittal, the sanction imposed, which is normally a fine or sentence of imprisonment or both." Telak, 315 Md. at 575, 556 A.2d 225. Ms. Wadlow's appeal, therefore, was from the convictions and sentences, not merely the convictions.

As a general rule, the perfecting of an appeal from a final judgment (as distinguished from an interlocutory order)

brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the trial court over it during the pendency of the appeal; ... the trial court lacks jurisdiction to take any further action in the case with respect to the subject matter of, or affecting, the proceeding until the receipt of the mandate of the appellate court after the appeal has been heard and decided.

Stewart v. State, 282 Md. 557, 573, 386 A.2d 1206 (1978).

This general rule does not, however, affect the right of a circuit court to modify, reduce, or strike out a sentence, upon a motion timely filed, even while the case is on appeal, Md. Rule 4-345(b), or to correct an illegal sentence at any time (which necessarily includes the time during which the case is on appeal). Md. Rule 4-345(a). If the appeal is from an allegedly illegal sentence--as is the State's appeal in this case--correction of the sentence by the circuit court will render the appeal moot. If the appeal raises issues totally unrelated to any alleged illegality in the sentence--as does Ms. Wadlow's appeal in this case--correction of an illegal sentence will not affect the appeal. In this case, therefore, the change or modification of Ms. Wadlow's sentence did not nullify her appeal. And because the State contends that the change in Ms. Wadlow's sentence did not completely correct the alleged illegality, the modification of the sentence did not render the State's appeal moot.

II

Wadlow contends that the trial court erred in denying her motion to suppress because the search warrant was based upon stale and remote "information," and upon an illegal search.

On 5 September 1990, the Montgomery County Police responded to a hotel employee's call that an unusual number of telephone calls were being made from and received by room number 831. That information led the police to set up a surveillance of the room and the parking lot of the Holiday Inn in Gaithersburg, Maryland. The room was registered to Bruce Todd, and there was never a change in the registration to reflect an additional guest for that room.

In the parking lot, Officer Robert Utter observed a white male leave the hotel room and...