Valentine v. State

• Decision Date: 24 December 1985
• Citation: 501 A.2d 847,305 Md. 108
• Parties: Glenn Paul VALENTINE v. STATE of Maryland. 20 Sept. Term 1985.
• Court: Maryland Court of Appeals

Page 108

305 Md. 108

501 A.2d 847

Glenn Paul VALENTINE v. STATE of Maryland.

20 Sept. Term 1985.

Court of Appeals of Maryland.

Dec. 24, 1985.

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Stephanie J. Lane, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

SMITH, Judge.

We have here a motion made to correct an alleged illegal sentence and its denial after the time for direct appeal had expired. The question presented is whether this is such a collateral attack that no direct appeal is available. We hold that it is and thus we shall affirm the judgment of the Court of Special Appeals which dismissed the appeal.

I

On October 24, 1983, appellant Glenn Paul Valentine entered a plea of guilty in the Circuit Court for Baltimore County to a charge of child abuse. He was sentenced to twelve years in prison to run from April 27, 1983. On November 4, 1983, an Assistant State's Attorney addressed a letter to the trial judge:

"On October 24, 1983, this defendant entered a guilty plea to child abuse in your court under an agreement for a 12 year sentence with credit for time served. The defendant was on parole at the time of the offense to which he pled guilty and the plea agreement did not deal with whether his new sentence shall be served concurrently or consecutively with his remaining parole time.

"It has been brought to my attention that Article 41, § 123, mandates that new sentences given a parolee are consecutive to remaining parole time, unless the judge expressly orders to the contrary. Since your commitment in this case specified the 12 year sentence dates from April 27, 1983, you have, in effect, imposed a sentence concurrent with the defendant's remaining parole time.

"Since there was no mention of this issue either in the plea agreement or during the sentencing hearing, it occurs to me that you may have imposed a concurrent sentence without intending to.

"It was the intention of the agreement to allow the defendant credit for time served awaiting trial. It was not the intention of the agreement to recommend a sentence concurrent or consecutive to the remaining parole time.

"Please treat this letter as a request for modification of sentence under Maryland Rule 774. I believe that Maryland Rule 777 concerning commitment records, and Article 27, § 638C, control this matter." (Emphasis in original).

The matter came on for hearing on December 6, 1983. Counsel for Valentine took the position that the action requested by the State would be an impermissible increase in the sentence. The trial judge agreed that it was not his intention to make the sentences concurrent. He ordered that Valentine serve the twelve-year term consecutively to the time to be served in his other case and gave credit for time served from April 27 to October 24, 1983.

On December 12, 1983, Valentine entered an appeal to the Court of Special Appeals. The appeal was withdrawn on December 19, 1983, and on the same day he filed a motion to correct an illegal sentence. ¹ This came on for hearing on January 20, 1984, where he argued, as he had done previously, that the modification from concurrent to consecutive was an illegal increase in sentence. The trial court denied his motion. An appeal to the Court of Special Appeals followed.

The intermediate appellate court, in an unreported opinion (No. 108, September Term, 1984), dismissed the appeal, stating:

"The State maintains, and we agree, that an alleged illegal sentence is not a proper matter for review on direct appeal. The procedure the appellant should follow is that for relief under the Maryland Post Conviction Act. See Preston v. State, 57 Md.App. 403[, 470 A.2d 395, cert. denied, 300 Md. 89, 475 A.2d 1201] (1984)."

We granted Valentine's petition for a writ of certiorari which set forth the questions:

"1. Is the denial of a defense motion to correct an illegal sentence directly appealable?

"2. When the court grants a State motion to modify a sentence, so that a concurrent sentence is made to run consecutively to a sentence from which the defendant was on parole, is the modified sentence illegal because it amounts to an increase in violation of former Maryland Rule 774b?"

In light of our determination of the first question we shall not be obliged to answer the second question.

II

It is asserted that we have two distinct lines of cases on the subject, Brady v. State, 222 Md. 442, 160 A.2d 912 (1960), and its progeny on the one hand and State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974), and Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981), on the other. We believe our cases are reconcilable, although there may be some unfortunate dictum in Coles.

Maryland's version of the Uniform Post Conviction Procedure Act came into the picture with the enactment of Ch. 44 of the Acts of 1958. In State v. D'Onofrio, 221 Md. 20, 28-29, 155 A.2d 643, 647 (1959), the Court quoted from then Code (1957, 1959 Cum.Supp.) Art. 27, § 645A(b) (now Code (1957, 1982 Cum.Supp.) Art. 27, § 645A(e)) to the effect that the remedy it provides "is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court ... or any remedy of direct review of the sentence or conviction." Judge Henderson then went on to say for the Court:

"These provisions are virtually identical with those of the Uniform Acts, Post-Conviction Procedure Act, 9B U.L.A., sec. 1. In a comment by the Commissioners who prepared the Uniform Acts, it was noted: 'The aim of this section is to bring together and consolidate into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence of imprisonment. * * * [It] is aimed to incorporate and protect all rights presently available under habeas corpus, coram nobis, or other remedies. The change is a procedural one.' " 221 Md. at 29, 155 A.2d at 647. ² Brady, 222 Md. 442, 160 A.2d 912, is the first case in which we were obliged to consider the impact of the Post Conviction Procedure Act in a context similar to that in the case at bar. After Brady had been convicted of murder and sentenced to death and the conviction affirmed on appeal by this Court, he filed a pleading in the trial court which, as Judge Horney put it for this Court, "combined a motion for new trial with a motion to set aside the judgment and sentence." The Court said, "[I]f the motion is treated as one to strike out a judgment and sentence, it is ... clear that the provisions of the Post Conviction Procedure Act ... bar a direct appeal to this Court from an order refusing the motion," adding that the only way in which he might "effectively obtain a review by this Court of his claim that he was deprived of his constitutional right to due process ... [was] by instituting a proceeding for relief under the provisions of ... Code (1959 Cum.Supp.) Art. 27, §§ 645A-645J." The Court said:

"The pertinent parts of § 645A, supra, read as follows:

'(a). Any person convicted of a crime and incarcerated under sentence of death or imprisonment, * * * who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court * * * was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding * * * to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction.

(b). The remedy * * * is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court * * *, or any remedy of direct review of the sentence or conviction. A petition for relief * * * may be filed at any time. Hereafter no appeals to the Court of Appeals of Maryland in habeas corpus or coram nobis cases, or from other common law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment shall be permitted or entertained * * *.' " 222 Md. at 446-47, 160 A.2d at 915. (Former emphasis deleted; new emphasis added.)

After referring to that which we have previously quoted from D'Onofrio, the Court said:

"While the P.C.P.A. did not abrogate the remedies formerly available under writs of habeas corpus and coram nobis and other common law and statutory remedies, it clearly took away the right of appeal from an order denying any of them. The act further provides, however, that 'any person, including * * * [the State], aggrieved by the order * * * passed in accordance with * * * [the act],' may apply to this Court within a 30-day period for leave to prosecute an appeal. See § 645I, supra." 222 Md. at 447, 160 A.2d at 916. ³

The appeal was dismissed without prejudice to Brady's right to seek post conviction relief.

Wilson v. State, 227 Md. 99, 175 A.2d 775 (1961), involved the precise issue here before the Court. Wilson was sentenced on July 6, 1960. On February 17, 1961, he filed a motion under then Rule 744 a to strike out and correct an illegal sentence. The rule provided, "The court may correct an illegal sentence at any time," just as Rule 4-345 a now provides. Judge Hammond said for the Court:

"The case came here and was briefed and argued by appellant and the State on the premise or assumption that there...