Waker v. State

• Decision Date: 26 March 2013
• Docket Number: Sept. Term, 2011.,No. 28,28
• Citation: 431 Md. 1,63 A.3d 575
• Parties: Calvin Montgomery WAKER v. STATE of Maryland.
• Court: Maryland Court of Appeals

431 Md. 1

63 A.3d 575

Calvin Montgomery WAKER

v.STATE of Maryland.

No. 28, Sept. Term, 2011.

Court of Appeals of Maryland.

March 26, 2013.

Brian M. Saccenti, Assistant Public Defender, (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner/Cross–Respondent.

Mary Ann Ince, Asst. Atty. Gen., (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent/Cross–Petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

ELDRIDGE, J.

The General Assembly, at its 2009 session, amended the Maryland theft statute to provide, inter alia, that the theft of property with a value of less than $1,000 is a misdemeanor punishable by imprisonment not exceeding 18 months. The statutewas also amended to provide that the theft of property with a value of at least $1,000 but less than $10,000 is a felony punishable by imprisonment not exceeding ten years. See Ch. 655 of the Acts of 2009; Maryland Code (2002, 2012 Repl.Vol.), § 7–104(g)(1)(i) and (2)(i) of the Criminal Law Article. Prior to these 2009 amendments, the theft statute's dividing line between a misdemeanor punishable by 18 months imprisonment and a felony punishable by a greater period of imprisonment was $500. The bill, which became Ch. 655 and which contained the 2009 amendments to the theft statute, was signed by the Governor on May 19, 2009, and had an effective date of October 1, 2009.

The petitioner, Calvin Waker, on March 30, 2009, committed a theft of property valued at $615. After one postponement, his trial was held on December 11, 2009. Waker was found guilty of the theft of property having a value of $615, and he was sentenced to ten years in prison. This Court granted a petition for a writ of certiorari to decide whether the penalty provisions of the 2009 theft statute amendments were applicable to Waker's sentencing.

I.

The facts in this case are not disputed by the parties. Calvin Waker was charged in the District Court of Maryland, Baltimore County, with four counts of theft and one count of making a false statement to a police officer. Pursuant to Waker's request for a jury trial, the case was transferred to the Circuit Court for Baltimore County. Waker thereafter waived his right to a jury trial, and, on December 11, 2009, he was tried on a “agreed not guilty statement of facts.” The Court found Waker guilty of theft of property having a value of $615, and the remaining charges were nolle prossed. As previously mentioned, Waker was sentenced to ten years incarceration.

According to the agreed statement of facts, Waker made a purchase at the Wal–Mart store at Putty Hill Avenue in Baltimore County on March 30, 2009, using a fraudulent credit card. Included in his purchase were four CDs, a pair of jeans, and a television set. The total cost of the items was $615.60. He was apprehended later the same day when he attempted to use the same fraudulent credit card at another Wal–Mart store in Cockeysville. Waker was charged, inter alia, with “steal[ing] property of [a] Wal-mart Store ... having a value of $615.60 ... in violation of” § 7–104 of the Criminal Law Article.

At the time of Waker's offense on March 30, 2009, the penalty provisions of § 7–104(g) of the Criminal Law Article read as follows:

“§ 7–104. General theft provisions.

* * *

(g) Penalty.—(1) A person convicted of theft of property or services with a value of $500 or more is guilty of a felony and:

(i) is subject to imprisonment not exceeding 15 years or a fine not exceeding $25,000 or both; and

(ii) shall restore the property taken to the owner or pay the owner the value of the property or services.”

Ch. 655 of the Acts of 2009, which became effective more than two months before Waker's trial and sentencing, modified the penalty provisions of § 7–104(g). The amended provisions of § 7–104(g) provided, in relevant part, as follows:

“(g) Penalty.—(1) A person convicted of theft of property or services with a value of:

(i) at least $1,000 but less than $10,000 is guilty of a felony and:

1. is subject to imprisonment not exceeding 10 years or a fine not exceeding $10,000 or both; and

2. shall restore the property taken to the owner or pay the owner the value of the property or services;

* * *

“(2) Except as provided in paragraphs (3) and (4) of this subsection, a person convicted of theft of property or services with a value of less than $1,000, is guilty of a misdemeanor and:

(i) is subject to imprisonment not exceeding 18 months or a fine not exceeding $500 or both; and

(ii) shall restore the property taken to the owner or pay the owner the value of the property or services.”

* * *

Subsection (3) covers the theft of property or services with a value of less than $100, and subsection (4) addresses penalties for individuals with two or more prior theft convictions.

To reiterate, at the time when Waker's theft was committed, the theft of goods with a value of $615.60 was a felony punishable by up to 15 years in prison, a $25,000 fine or both. By the time Waker was tried, found guilty, and sentenced, a theft of $615.60 was a misdemeanor punishable by no more than 18 months in prison, a $500 fine, or both.

Waker noted an appeal to the Court of Special Appeals, which affirmed the judgment in an unreported opinion. He then petitioned this Court for a writ of certiorari, which was granted. Waker v. State, 420 Md. 81, 21 A.3d 1063 (2011). In his petition, Waker posed the following question:

“Where the General Assembly reduces the penalty for an offense after a defendant committed the offense but before he is tried and sentenced, and where the Act is silent as to its application in such a situation, is the defendant subject to the harsher penalty in effect at the time of the offense or the reduced penalty in effect at the time of the trial and sentencing?”

The State filed a cross-petition for a writ of certiorari which was also granted. Ibid. The cross-petition presented the following question:

“Did Waker fail to preserve his appellate claim regarding his conviction and sentence for felony theft, where Waker did not state a claim of sentence illegality?”

We shall hold that the issue concerning the legality of Waker's sentence was not waived by the failure to raise the issue in the trial court and that, therefore, it was preserved for appellate review. Furthermore, we shall hold that the sentence imposed by the Circuit Court was illegal.

II.

As an initial matter, we address the State's argument that Waker failed to preserve for appellate review the issue regarding the legality of his sentence because he did not raise the issue in the Circuit Court. The State contends that, because Waker's illegal sentence argument was made for the first time on appeal, it was waived, and that the Court of Special Appeals abused its discretion by deciding the case on its merits.¹ Waker's argument,however, does not involve the discretion of the Court of Special Appeals or the discretion of this Court to excuse the waiver of an issue. Instead, the sentencing issue was not waived by Waker's failure to raise it in the trial court.

Waker contends that his trial and sentencing, which took place after the effective date of Ch. 655 of the Acts of 2009, was governed by Ch. 655. Because the sentence imposed by the trial court exceeded the maximum allowed by Ch. 655 for his offense, Waker claims that his sentence was not authorized by the controlling statutory provisions. Consequently, Waker argues, his sentence was illegal and, under Maryland Rule 4–345(a), may be challenged on appeal even if the issue was not raised in the trial court.

It is axiomatic that, when a court imposes a sentence, and the sentence itself is not authorized by law, the sentence is illegal. See, e.g., Greco v. State, 427 Md. 477, 508, 48 A.3d 816, 834 (2012) (“[A]n illegal sentence [is] a sentence not permitted by law”) (quoting prior cases, and with internal quotation marks omitted); Alston v. State, 425 Md. 326, 339–340, 40 A.3d 1028, 1036 (2012); Matthews v. State, 424 Md. 503, 514, 36 A.3d 499, 505 (2012) (“We have deemed sentences inherently ‘illegal’ ... when the sentences exceeded the limits imposed by law, be it statute or rule”); Montgomery v. State, 405 Md. 67, 74, 950 A.2d 77, 81–82 (2008) (Because the sentence was not authorized by statutes or rules, “it constituted an illegal sentence”); Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 950–951 (1985).

Maryland Rule 4–345(a) states as follows:

“(a) Illegal sentence. The court may correct an illegal sentence at any time.”

It has been settled since the 1985 opinion in Walczak v. State, supra, 302 Md. 422, 488 A.2d 949, that an illegal sentence claim “under Rule 4–345(a) ... is not subject to waiver.” Johnson v. State, 427 Md. 356, 371, 47 A.3d 1002, 1011 (2012).

In Walczak, the defendant was accused, inter alia, of robbery and stealing property worth several thousand dollars. Pursuant to a plea agreement with the State, the defendant Walczak “pleaded not guilty, elected a nonjury trial, and was tried on an agreed statement of facts,” 302 Md. at 424, 488 A.2d at 950. Walczak was found guilty on one count, and the State nol prossed the remaining charges against him. Walczak signed a probation order which required that he pay restitution “to the victim of a crime of which he was not convicted.” 302 Md. at 433, 488 A.2d at 954. Although he did not object to this order in the trial court, he later raised an objection to the probation order in the Court of Special Appeals and in this Court. This Court held as follows (302 Md. at 427, 488 A.2d at 951):

“We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4–345(a) ......