Tshiwala v. State

Decision Date15 March 2012
Docket NumberSept. Term,No. 108,2009.,108
Citation37 A.3d 308,424 Md. 612
PartiesBenoit TSHIWALA v. STATE of Maryland.
CourtMaryland 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).

I.

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) ([W]hen a sentence review panel alters the original sentence ..., the panel's sentence becomes the ‘sentence of the court.’ * * * The original sentence is erased, having been superseded”); 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.

II.

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),

“a Rule 4–345(a) motion to correct an illegal sentence is not appropriate where the alleged illegality ‘did not inhere in [the defendant's] sentence.’ State v. Kanaras, supra, 357 Md. [170,] at 185, 742 A.2d [508,] at 517 [1999]. A motion to correct an illegal sentence ordinarily can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed.... On the other hand, a trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4–345(a) where the resulting sentence or sanction is itself lawful. Randall Book Corp. v. State, 316 Md. 315, 323, 558 A.2d 715, 719 (1989)....”

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) (“Historically, ... a motion to correct an illegal sentence ... ‘was entertained only where the alleged illegality was in the sentence itself or the sentence never should have been imposed,’ quoting Baker v. State, 389 Md. 127, 133, 883 A.2d 916, 919 (2005)); Chaney v. State, 397 Md. 460, 466, 918 A.2d 506, 509–510 (2007) (“The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow, however. We have consistently defined this category of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the sentence itself”); Pollard v. State, 394 Md. 40, 42, 904 A.2d 500, 501 (2006) (The sentencing judge erroneously “did not recognize his discretion to suspend a portion of the sentence imposed. Because the alleged illegality did not inhere in the sentence itself, the motion to correct an illegal sentence is not appropriate”); State v. Wilkins, supra, 393 Md. at 275, 900 A.2d at 769 (Similar error as that in Pollard, and the Court reiterated that [a]n error committed by the trial court during the sentencing proceeding is not ordinarily cognizable under Rule 4–345(a) where the resulting sentence or sanction is itself lawful”); Evans v. State, 389 Md....

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67 cases
  • Pitts v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 29, 2021
    ...cases where the illegality is inherent in the sentence itself, which are cognizable. The Court of Appeals, in Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012), was emphatic that some illegal sentences are not covered by Rule 4-345(a):Where the sentence imposed is not inherently illeg......
  • Pitts v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 29, 2021
    ...cases where the illegality is inherent in the sentence itself, which are cognizable. The Court of Appeals, in Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012), was emphatic that some illegal sentences are not covered by Rule 4-345(a) :Where the sentence imposed is not inherently ille......
  • Carlini v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 18, 2013
    ...some form of error or alleged injustice.”(Emphasis supplied). The same narrow scope of Rule 4–345(a) was stressed by Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012): [W]here the sentence imposed is not inherently illegal, and where the matter complained of is a procedural error, the......
  • Ray v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 29, 2016
    ...resulting in the conviction for which the sentence is imposed or even a flaw in the sentencing procedure itself. Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308 (2012), made this preclusive limitation on what constitutes an “illegal sentence” crystal clear:“[W]here the sentence imposed is ......
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1 books & journal articles
  • Sentencing Motions
    • United States
    • Maryland State Bar Association Warnken's Maryland Criminal Procedure (MSBA) Chapter 30 Sentencing
    • Invalid date
    ...has completed his or her sentence." Id. at 86. Cannot challenge procedural errors during and/or after sentencing In Tshiwala v. State, 424 Md. 612 (2012), the defendant was sentenced to 60 years, which was subsequently reduced to 39 years by a three judge panel. The defendant filed a motion......

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