Tshiwala v. State
Decision Date | 15 March 2012 |
Docket Number | Sept. Term,No. 108,2009.,108 |
Citation | 37 A.3d 308,424 Md. 612 |
Parties | Benoit TSHIWALA v. STATE of Maryland. |
Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Gary E. Bair, (Rachel Marblestone Kamins of Bennett & Bair, LLC, Greenbelt, MD), on brief, for Appellant.
Jessica V. Carter, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, * MURPHY, ADKINS and JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.ELDRIDGE, J.
This is another case concerning the scope of Maryland Rule 4–345(a) which states: “The court may correct an illegal sentence at any time.” As in numerous other cases, we shall reject the appellant's effort to expand the scope of Rule 4–345(a).
The appellant, Benoit Tshiwala, was charged in the Circuit Court for Montgomery County with a multitude of criminal offenses, which were apparently divided into three groups for purposes of jury trials. On August 3, 1999, a jury found Tshiwala guilty of attempted armed robbery, use of a handgun in a felony or crime of violence, first degree assault, and conspiracy to commit armed robbery. On December 2, 1999, another jury found Tshiwala guilty of two counts of armed robbery and two counts of using a handgun in the commission of a felony or crime of violence. Finally, on February 24, 2000, a third jury found Tshiwala guilty of three counts of armed robbery, three counts of using a handgun in the commission of a felony or crime of violence, and one count of first degree assault. The same circuit judge, Vincent E. Ferretti, presided over all three trials. Judge Ferretti, on April, 28, 2000, sentenced Tshiwala to an aggregate of 70 years in prison.
Tshiwala appealed to the Court of Special Appeals which affirmed the Circuit Court's judgments in an unreported opinion. Tshiwala's petition for a writ of certiorari was denied by this Court, Tshiwala v. State, 367 Md. 88, 785 A.2d 1291 (2001). Subsequently, his certiorari petition filed in the United States Supreme Court was denied by that Court, Tshiwala v. Maryland, 535 U.S. 1065, 122 S.Ct. 1934, 152 L.Ed.2d 839 (2002).
Tshiwala then filed in the Circuit Court for Montgomery County an application for relief under the Maryland Uniform Postconviction Procedure Act, Maryland Code (2001, 2008 Repl.Vol.), § 7–101 et seq. of the Criminal Procedure Article. After a hearing, the Circuit Court granted to Tshiwala the right to file a belated “Application for Review of Sentence” pursuant to §§ 8–101 through 8–109 of the Criminal Procedure Article and Maryland Rule 4–344.1
Tshiwala filed an application for review of his sentences, and a three-judge panel of the Sixth Judicial Circuit (which includes Montgomery County) was convened to review the sentences. The panel consisted of Circuit Administrative Judge Harrington as panel chairperson, Circuit Judge Mason and Circuit Judge Debelius. On February 21, 2007, an order by the review panel was filed which reduced the particular sentences for several of Tshiwala's convictions, so that the total period of imprisonment was reduced from 70 years to 39 years. Thus, the re-imposed sentences totaling 39 years became the only sentences for Tshiwala's 1999 and 2000 convictions. See Gardner v. State, 420 Md. 1, 14, 20 A.3d 801, 809 (2011) () ; Hoile v. State, 404 Md. 591, 614, 948 A.2d 30, 43–44, cert. denied, 555 U.S. 884, 129 S.Ct. 257, 172 L.Ed.2d 146 (2008), and cases there cited.
Next, on April 26, 2007, Tshiwala filed in the Circuit Court for Montgomery County, pursuant to Maryland Rule 4–345(e), a “Motion For Reconsideration of Sentence.” 2 He sought a modification of the sentences imposed by the review panel.3 This motion was denied in a brief order signed by Circuit Administrative Judge Harrington and Circuit Judges Mason and Debelius. The order did not expressly state that the three judges were acting pursuant to the sentence review statutory provisions, §§ 8–101 through 8–109 of the Criminal Procedure Article, and the order made no reference to those provisions.4
In November 2008, Tshiwala instituted the present action by filing in the Circuit Court for Montgomery County a “Motion To Correct Illegal Sentence” pursuant to Maryland Rule 4–345(a). The purported legal basis for this motion was that the three judges who denied reconsideration were acting in their capacity as a sentence review panel under § 8–101 et seq. of the Criminal Law Article, and that “the sentence review panel lacked jurisdiction to rule on the Motion for Reconsideration of Sentence.” According to Tshiwala, a three-judge sentence review panel, under the statutory provisions and Rule 4–344, is limited to reviewing and acting upon the application for modification of the sentence, but, where the review panel modifies the sentence, the panel has no authority over a motion to reconsider the modified sentence. Tshiwala requested that the motion for reconsideration of the sentences imposed by the review panel “be considered by his original sentencing judge or another judge of the Circuit Court who was not part of the sentence review panel.” 5
Administrative Judge Harrington denied Tshiwala's “Motion To Correct Illegal Sentence,” stating that reconsideration of the sentences totaling 39 years was denied by the same judges who imposed the sentences, that the original sentencing judge had retired, and that “[t]here is no requirement that this Court assign this case to another judge.” Tshiwala appealed to the Court of Special Appeals from the order denying his Rule 4–345(a) motion to correct an illegal sentence, and this Court issued a writ of certiorari prior to any further proceedings in the Court of Special Appeals.
The parties' arguments before us present essentially two issues: (1) whether Tshiwala's claim is cognizable under a Rule 4–345(a) motion to correct an illegal sentence; (2) if the claim is cognizable on a motion of the defendant to correct an illegal sentence, whether Judges Harrington, Mason and Debelius were authorized to decide Tshiwala's Rule 4–345(e) motion for reconsideration of his sentences. We shall hold that Tshiwala's claim is not about alleged illegal sentences and, therefore, cannot be considered under a Rule 4–345(a) motion to correct an illegal sentence. Consequently, we shall not reach the second issue.
Tshiwala's complaint clearly does not involve an “illegal sentence” within the meaning of Rule 4–345(a). The only sentences in this case are those, totaling 39 years, imposed by the review panel, and Tshiwala does not contend that they are illegal. As set forth in Montgomery v. State, 405 Md. 67, 74, 950 A.2d 77, 81–82 (2008), quoting Evans v. State, 382 Md. 248, 278–279, 855 A.2d 291, 309 (2004), cert. denied, 543 U.S. 1150, 125 S.Ct. 1325, 161 L.Ed.2d 113 (2005) (some internal quotation marks deleted),
Moreover, where 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). Montgomery v. State, supra, 405 Md. at 75–77, 950 A.2d at 82–83. A sentence does not become “an illegal sentence because of some arguable procedural flaw in the sentencing procedure.” State v. Wilkins, 393 Md. 269, 273, 900 A.2d 765, 768 (2006), quoting Corcoran v. State, 67 Md.App. 252, 255, 507 A.2d 200, 202, cert. denied, 307 Md. 83, 512 A.2d 377, cert. denied, 479 U.S. 932, 107 S.Ct. 404, 93 L.Ed.2d 357 (1986) (internal quotation marks omitted.) See also Hoile v. State, supra, 404 Md. at 622–623, 948 A.2d at 48.
These principles, delineating the narrow scope of a Rule 4–345(a) motion to correct an illegal sentence, have been recognized and applied in a multitude of this Court's opinions. See, e.g., Taylor v. State, 407 Md. 137, 141 n. 4, 963 A.2d 197, 199 n. 4 (2009) ( ); Chaney v. State, 397 Md. 460, 466, 918 A.2d 506, 509–510 (2007) () ; Pollard v. State, 394 Md. 40, 42, 904 A.2d 500, 501 (2006) ) ; State v. Wilkins, supra, 393 Md. at 275, 900 A.2d at 769 ( ); Evans v. State, 389 Md....
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