Donald Eugene Bailey v. State of Maryland
No. 77
IN THE COURT OF APPEALS OF MARYLAND
July 17, 2019
Opinion by Getty, J.
September Term, 2018; Circuit Court for Prince George‘s County, Case No. CJ171506; Argued: May 6, 2019
Donald Eugene Bailey v. State of Maryland, No. 77, September Term, 2018. Opinion by Getty, J.
CRIMINAL LAW—SUBSEQUENT OFFENDER ENHANCEMENT―PROCEDURAL DEFICIENCY WITH NOTICE
The State‘s belated notice did not result in the trial court imposing an illegally enhanced sentence. Instead, the State‘s belated notice to the defendant was a procedural deficiency reviewed for harmless error. A defendant was not prejudiced beyond a reasonable doubt due to the belated notice when the notice was five days late.
CRIMINAL LAW―INEFFECTIVE ASSISTANCE OF COUNSEL―DIRECT APPEAL
Failure to object to a subsequent offender sentencing enhancement is not proper for review on direct appeal. In order to develop a record for review explaining counsel‘s actions, the defendant‘s claim was best heard within a post-conviction posture.
Barbera, C.J.,
McDonald,
Watts,
Hotten,
Getty,
Booth,
Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned)
JJ.
Opinion by Getty, J.
Hotten, J., concurs and dissents.
Filed: July 17, 2019
BACKGROUND
The facts underlying Mr. Bailey‘s conviction are not essential to review in order for us to consider the merits of Mr. Bailey‘s appeal. However, in order to provide context, we note the following as to the underlying offense. Mr. Bailey was driving on the Capital Beltway, Maryland Interstate 495, in Prince George‘s County, when his vehicle crashed into the rear of another vehicle on March 4, 2017. A police officer was nearby and heard the crash. As the police officer was investigating the crash, he noticed Mr. Bailey showed signs of intoxication. Mr. Bailey performed field sobriety tests but refused to consent to a breathalyzer or a blood test. Mr. Bailey was arrested and charged with various traffic offenses, including driving while impaired by alcohol in violation of
Mr. Bailey prayed a jury trial in the District Court of Maryland sitting in Prince George‘s County on June 16, 2017. Thus, his jury trial prayer transferred jurisdiction to the Circuit Court for Prince George‘s County. The trial was scheduled on the circuit court docket for October 16, 2017. Subsequently, Mr. Bailey filed a consent motion with the State to continue the trial date. The trial was reset for December 11, 2017.
The State served its notice of increased penalty as a subsequent offender to Mr. Bailey on December 1, 2017. However, the notice was sent five days later than required by
A two-day jury trial in the circuit court commenced on December 11, 2017. The jury found Mr. Bailey guilty of driving while impaired and other related offenses. Mr. Bailey was sentenced in February 2018 to one year of incarceration with all but eight weekends suspended plus two
Then, Mr. Bailey timely appealed his sentence to the Court of Special Appeals. In an unreported opinion, the court split by a 2-1 vote to affirm the sentence of the circuit court. The majority opinion concluded that even though the “failure to give any notice before trial is substantive and gives rise to an illegal sentence,” in this case the “failure to give timely notice is a procedural error . . . subject to harmless error analysis” and, in fact, did “not give rise to an illegal sentence.” Bailey v. State, No. 2503, Sept. Term, 2017, 2019 WL 290066, at *4 (Md. Ct. Spec. App. Jan. 2, 2019) (emphasis added).
In reaching their conclusion, the majority applied King v. State, 300 Md. 218 (1984). In King, this Court determined that harmless error analysis applied when the State filed a timely but insufficiently specific subsequent offender notice. Id. at 232. The majority held that, in this case, the error was harmless because Mr. Bailey had “actual notice.” Bailey, No. 2503 at *4. Further, he did not sustain any prejudice as a result of the belated notice and no due process concerns existed. Id.
The dissenting opinion in the Court of Special Appeals concluded that this case should be controlled by Carter v. State, 319 Md. 618 (1990). In Carter, the sentencing court was not permitted to enhance the defendant‘s sentence when the State did not provide the defendant with any notice of the enhanced punishment prior to trial. Id. at 623. Thus, if applying Carter in this case, the sentencing judge should have been precluded from enhancing Mr. Bailey‘s sentence. Bailey, No. 2503 at *5 (dissenting opinion). The dissent provided three reasons for its opinion: (1) ”Carter was written later than King and . . . did not employ the harmless error analysis,” therefore it modified the holding in King; (2) “to the extent that Carter and King are inconsistent,” Mr. Bailey‘s case is “closer to the facts in Carter . . . than . . . in King“; and (3) Carter is the “better-reasoned” opinion. Id.
We granted Mr. Bailey‘s petition for writ of certiorari on March 5, 2019. Bailey v. State, 463 Md. 144 (2019). Mr. Bailey presented two questions for this Court to consider:
(1) Did the Court of Special Appeals err in holding that the trial court did not illegally impose an enhanced sentence after the State failed to serve timely notice under
Maryland Rule 4-245(b) ?(2) If Mr. Bailey‘s sentence was not illegal, did the Court of Special Appeals misapply the test for determining whether Mr. Bailey received ineffective assistance of counsel?1
With regard to the first question, we hold that the State‘s belated notice did not result in the trial court imposing an illegally enhanced sentence. Instead, the State‘s belated notice to Mr. Bailey was a procedural deficiency subject to preservation requirements and not an illegal sentence that may be challenged pursuant to
DISCUSSION
I. Sentence enhancement pursuant to Maryland Rule 4-245(b)
The primary question in this case is whether enhancement of a subsequent offender‘s sentence is legal when the State files a belated notice of the enhancement that did not comply with
(a) Definition. A subsequent offender is a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.
(b) Required Notice of Additional Penalties. When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State‘s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in the District Court, whichever is earlier.
(c) Required Notice of Mandatory Penalties. When the law prescribes a mandatory sentence because of a specified previous conviction, the State‘s Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in the circuit court or five days before sentencing in the District Court. If the State‘s Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement.
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(e) Determination. Before sentencing and after giving the defendant an opportunity to be heard, the court shall determine whether the defendant is a subsequent offender as specified in the notice of the State‘s Attorney.
Mr. Bailey acknowledges that he would qualify as a subsequent offender under the statute. As
Mr. Bailey contends before this Court that under
The State contends that the Court of Special Appeals correctly concluded that Mr. Bailey‘s enhanced sentence for driving while impaired was not an illegal sentence for purposes of
i. Review of Mr. Bailey‘s sentence pursuant to Maryland Rule 4-345(a)
As a threshold question, we must determine whether the circuit court‘s application of the enhancement after the State‘s belated notice was an imposition of an “illegal” sentence under
The legality of a sentence under
Based on the review of our precedent, the imposition of a sentence enhancement despite the State‘s failure to timely serve the notice for the enhanced sentence does not qualify as an illegal sentence pursuant to
ii. Review of State‘s failure to provide timely notice
Mr. Bailey is precluded from challenging his sentence pursuant to
In rare instances, pursuant to
We usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.
In this matter, we choose to exercise our discretion to review the unpreserved issue. The issue has been thoroughly briefed and argued. Further, we believe this decision will help trial courts to apply King v. State, 300 Md. 218 (1984) and Carter v. State, 319 Md. 618 (1990) in the future. Finally, based on the second issue before this Court, we suspect Mr. Bailey will seek a subsequent collateral attack on his conviction and a decision of this issue will provide guidance for that proceeding. Therefore, we will review this matter on its merits.
In reviewing the effect of the State‘s deficient notice in this matter, we note two cases in which we have previously discussed the notice requirement of
In King, the State sought to increase the defendant‘s punishment for unlawful possession and transportation of a handgun. Id. at 220. At the time, the notice requirement for an enhancement was governed by
In reviewing the imposition of the enhancement, the Court of Appeals examined the history behind the notice requirement. Id. at 224. The Court determined that “[t]he purpose underlying the notice provision of the enhanced punishment statute is, and always has been, to inform a defendant fully of the nature of the State‘s case against him in order that he may intelligently conduct his defense.” Id. at 231. This requirement exists in order that a defendant can receive the pertinent information to determine whether to accept a plea agreement or proceed to trial. Id. at 232.
Even though the notice was undoubtedly deficient, under the facts before the Court in King, we determined the error was harmless beyond a reasonable doubt. Id. We concluded:
Given that there was full knowledge of the nature and circumstances of the prior conviction despite the inadequate notice, the appellant was not in any way hampered in his ability either to decide whether to plead guilty or proceed to trial, or having elected a jury trial, in presenting and preparing his defense.
Id. Therefore, despite the State‘s failure to comply with the Rule, we reached the ultimate conclusion that the error was harmless beyond a reasonable doubt. Id.
Within King, we cited to and adopted the reasoning of Arnold v. United States, 443 A.2d 1318 (D.C.App. 1982), a case from the District of Columbia reviewing a comparable notice requirement.3 In Arnold, the defendant objected to the submission of enhanced penalty notice after the jury had been selected, but before they were sworn. Id. at 1319. The government was required pursuant to the rule to submit the papers prior to trial. Id. at 1324. The Court evaluated whether submission after the jury had been selected qualified as “prior to trial.” Id. In answering this question, the Court also looked to the purpose of the statute and determined it was “(1) to give notice to the defendant so that he may reasonably assess whether to plead guilty or proceed to trial, and (2) to avoid the ‘unfairness’ of increasing the potential punishment after the trial has begun.” Id. at 1326. Ultimately, the Court concluded that “informations seeking enhanced penalties must be filed before the process of selecting a jury has started in order to comply with the requirement of filing such informations ‘prior to trial.‘” Id. However, the Court found that while the government must file the enhanced punishment prior to the impaneling of the jury, the error was harmless. Id. at 1328. “The overriding statutory purpose of providing a defendant ‘notice’ of the possibility of enhanced punishment was clearly satisfied in this case.” Id.
We conclude King governs this matter. We also note that King and Carter can be reconciled. In fact, contrary to the assertions of the dissent in the Court of Special Appeals’ opinion, Carter reaffirms King. Carter, 319 Md. at 621 (“Although King dealt with the specificity requirements of the notice, we believe that the analysis articulated there is equally applicable to the time requirements.“). In King, as in this case, the notice was defective. In Carter, there was no notice. The failure to provide notice impacts substantive rights and undermines completely the purpose of the notice requirement. However, when there is a procedural defect with the notice, such as untimely notice or other defects, the enhancement is subject to harmless error analysis. This result achieves the purpose of
In reviewing the circumstances of this case, we conclude the error was harmless beyond a reasonable doubt. When reviewing for harmless error, we follow the standard set forth in Dorsey v. State:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated.
Dorsey, 276 Md. 638, 659 (1976). Despite the fact that in cases such as this one, the error does not influence the jury‘s verdict, we have previously stated that the harmless error analysis set forth in Dorsey
II. Ineffective Assistance of Counsel Claim
We disagree with the Court of Special Appeals’ assertion that Mr. Bailey‘s ineffective assistance of counsel claim is moot. Mr. Bailey was given two years of probation after the completion of his eight weekends of incarceration that started on February 2, 2018, and a portion of his sentence was suspended. Therefore, he is currently on probation. However, even though this matter is not moot, we agree with the Court of Special Appeals that any claim Mr. Bailey has of ineffective assistance of counsel is best heard within the post-conviction setting.
To succeed on an ineffective assistance of counsel claim, the defendant must show: (1) that his or her counsel‘s performance was deficient, and (2) that he or she suffered prejudice because of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the deficient performance, the defendant must show that the attorney‘s performance was objectively unreasonable under “prevailing professional norms.” Strickland, 466 U.S. at 688. “Judicial scrutiny of counsel‘s performance is highly deferential, and there is a strong (but rebuttable) presumption that counsel rendered reasonable assistance and made all significant decisions in the exercise of reasonable professional judgment.” In re Parris W., 363 Md. 717, 725 (2001) (citations omitted). In order to rise to the level of ineffective assistance, counsel‘s actions must not be the result of trial strategy. Coleman v. State, 434 Md. 320, 338 (2013). To establish prejudice, a defendant “must show either: (1) ‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different‘; or (2) that ‘the result of the proceeding was fundamentally unfair or unreliable.‘” Newton v. State, 455 Md. 341, 355 (2017) (quoting Coleman, 434 Md. at 340–341).
We have previously stated that we rarely consider ineffective assistance of counsel claims on direct appeal. However this rule is “not absolute and, where the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of the claim, there is no need for a collateral fact-finding proceeding, and review on direct appeal may be appropriate and desirable.” In re Parris W., 363 Md. at 726 (citations omitted). Mr. Bailey argues his attorney was objectively deficient and that the critical facts are not in dispute. Under prevailing professional norms, Mr. Bailey‘s attorney should have been aware of applicable sentencing laws and rules. Therefore, Mr. Bailey contends that if counsel was aware of the notice requirement, there was no conceivable tactical reason not to object during the sentencing, as a successful objection would have limited Mr. Bailey‘s exposure under
This Court addressed whether to consider a direct appeal of an ineffective assistance of counsel claim in Mosley v. State, 378 Md. 548 (2003). In Mosley, 378 Md. at 553, the defendant was convicted of various crimes involving an armed robbery in Baltimore City. Id. On direct appeal, the defendant argued that he was denied effective assistance of counsel because his counsel did not state with particularity the grounds for the motion for judgment of acquittal made at the close of the evidence. Id. at 554. Specifically, counsel failed to argue that the air gun used in the course of the robbery could not support convictions for robbery with a dangerous or deadly weapon or carrying a dangerous weapon. Id. As a result, the issue was not preserved for appeal.
This Court reviewed in part whether an ineffective assistance of counsel claim could be addressed on direct appeal. We acknowledged that it is possible, however, “[p]ost-conviction proceedings are preferred with respect to ineffective assistance of counsel claims because the trial record rarely reveals why counsel acted or omitted to act, and such proceedings allow for fact-finding and the introduction of testimony and evidence directly related to allegations of the counsel‘s ineffectiveness.” Id. at 560. This Court determined that “the adversarial process found in a post-conviction proceeding generally is the preferable method” when evaluating an ineffective assistance of counsel claim. Id. at 562. This Court also acknowledged there are limited circumstances in which this Court will review a claim on direct review. Id. at 564–67 (“We have been willing, thus, to consider these claims on direct review only when the facts found in the trial record are sufficiently developed to clearly reveal ineffective assistance of counsel and that counsel‘s performance adversely prejudiced the defendant.“).
In Mosley, we could not conclude that the evidence was insufficient to sustain the defendant‘s conviction, and thus, could not determine whether his counsel was ineffective. Id. As a result, we determined that the post-conviction proceeding was the appropriate venue to evaluate the ineffective assistance of counsel claim. Id.
Likewise, in this case, the trial record does not “clearly illuminate” why counsel‘s actions were ineffective. See id. We will not second-guess counsel‘s actions on direct appeal when there is an opportunity to introduce testimony and evidence directly related to this issue. We decline to make counsel‘s actions in this matter a per se instance of an ineffective assistance of counsel claim. Therefore, a post-conviction proceeding is the appropriate venue for Mr. Bailey‘s claim.
CONCLUSION
The State‘s belated notice did not result in the trial court imposing an illegally enhanced sentence. Instead, the State‘s belated notice to Mr. Bailey was a procedural deficiency subject to preservation requirements. As a result, we review Mr. Bailey‘s claims for harmless error. We conclude that Mr. Bailey was not prejudiced beyond a reasonable doubt due to the belated notice. As for the ineffective assistance of counsel claim, Mr. Bailey‘s claim is best heard within a post-conviction posture. Therefore, we affirm the judgment of the Court of Special Appeals.
DONALD EUGENE BAILEY v. STATE OF MARYLAND
No. 77
IN THE COURT OF APPEALS OF MARYLAND
July 17, 2019
Concurring and Dissenting Opinion by Hotten, J.
September Term, 2018; Circuit Court for Prince George‘s County, Case No. CJ171506; Argued: May 6, 2019
Respectfully, I dissent with the Majority on the first issue, but concur regarding the Majority‘s conclusion as to the second question. As such, my focus will be limited accordingly.
The Majority affirmed the decision of the Court of Special Appeals, holding that “[t]he State‘s imperfect compliance [with the timely notice provision specified in
“INHERENTLY ILLEGAL” SENTENCES VERSUS “PROCEDURALLY ILLEGAL” SENTENCES1
Pursuant to
The illegality inheres in Petitioner‘s sentence because the trial court lacked the requisite authority to impose the enhanced sentence.
An illegal sentence, for purposes of
Rule 4–345(a) , is one in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.
Colvin v. State, 450 Md. 718, 725, 150 A.3d 850, 854 (2016) (emphasis added) (internal quotations and citations omitted). We are called upon to consider whether the trial court imposed an inherently illegal sentence. Based on the State‘s failure to adhere to the prerequisites mandated by
When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State‘s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or [nolo contendere] or at least 15 days before trial in circuit court or five days before trial in District Court, whichever is earlier.2
(emphasis added). In the instant case, the State sought to sentence Petitioner as a subsequent offender, relying on an earlier January 24, 2017 conviction for driving under the influence. The State was obligated to serve notice “at least 15 days before trial in circuit court[,]” but provided notice only ten days before Petitioner‘s trial. Given the express language of
In the concurrence/dissent authored by Judge Harrell in State v. Wilkins, he offered the following explanation of an inherently illegal sentence:
A sentencing judge commits error if he or she refuses to acknowledge his or her power. . . . [I]f made manifest on the record, the judge‘s refusal to recognize his or her power . . . results in an illegal sentence because the deficiency inheres in the sentence [itself].
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The notion of an ‘illegal sentence’ . . . deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond the statutorily3 granted power of the judge to impose.
State v. Wilkins, 393 Md. 269, 285, 288, 900 A.2d 765, 775-76 (2006) (Harrell, J., concurring/dissenting). The trial court failed to acknowledge the limitation in its authority due to the State‘s failure to abide by the express 15-day notice provision in
CASE PRECEDENT SUPPORTS THE PROPOSITION THAT VIOLATION OF THE EXPRESS NOTICE REQUIREMENTS IN RULE 4-245(b) REQUIRES VACATING PETITIONER‘S SENTENCE
Carter v. State, 319 Md. 618, 574 A.2d 305 (1990), governs this matter. In Carter, this Court held that the State‘s notice was untimely, which precluded imposition of an enhanced sentence. The Carter Court considered the following issue on appeal: “[W]hether a District Court sentence for driving under the influence of alcohol may be increased in the circuit court under the enhanced punishment statute when the subsequent offender notice is filed after the District Court trial but before the de novo appeal to the circuit court.” 319 Md. at 619, 574 A.2d at 305 (emphasis added). The Court found that the express language of
If an enhanced penalty statute is of the “permissive-but-not-mandatory” type, then, unless and until the State complies with
Rule 4-245(b) , a “court shall not sentence” a defendant as a subsequent offender. In other words, until the State complies withRule 4-245(b) , a defendant is ineligible to receive such an enhanced sentence.
238 Md. App. at 274, 189 A.3d at 878-79. Fielding supports the proposition that the trial court in the instant matter imposed a sentence that it simply did not have the authority to impose—resulting in an inherently illegal sentence. Because the State failed to abide by the express 15-day notice requirement specified in
To the extent that the State argues that it provided “reasonable” notice for enhanced sentencing, I point to a tenet of statutory construction: “no word, clause, sentence or phrase [should be] rendered surplusage, superfluous, meaningless or nugatory.” Phillips v. State, 451 Md. 180, 196-97, 152 A.3d 712, 722 (2017) (internal citation omitted).
In contrast, we held that the State provided sufficient notice for enhanced sentencing in King v. State, 300 Md. 218, 477 A.2d 768 (1984). When this Court heard King, the precursor rule to
[N]o defendant shall be sentenced as a subsequent offender unless prior to acceptance of a plea of guilty or [nolo contendere] or at least 15 days prior to trial, whichever is earlier, the State‘s Attorney serves a notice on the defendant or his counsel that the State will seek increased punishment as authorized by law. The notice shall set forth each prior conviction to be relied upon.
Id. at 228, 477 A.2d at 774 (emphasis added). The State served King with timely notice of its intent to seek enhanced penalties, but the notice was substantively defective because it did not contain King‘s prior conviction. The King Court observed that, though the notice was defective, “[t]he record establishes that the State served notice of its intent to seek the maximum ten year sentence for second offenders at least fifteen days before trial, as required by
Furthermore, the construction of
King does not govern the instant case. Any contention that King should guide our analysis neglects the previous iteration of
CONCLUSION
The trial court lacked the authority to impose the sentence Petitioner received and executed an inherently illegal sentence, which is subject to correction. See
Our case law supports the proposition that violation of the express notice requirements in
For these reasons, I respectfully dissent with the Majority‘s opinion on the first issue, but concur as to the second issue.
Notes
2. Assuming, arguendo, that Petitioner‘s sentence was not illegal, did the Court of Special Appeals misapply the test for determining whether he received ineffective assistance of counsel? Our case law uses the terms “inherently illegal” and “substantively illegal” interchangeably. For consistency, I use the term “inherently illegal” throughout this dissent.
In contrast, Md. Rule 4-245(c) applies to mandated additional penalties for subsequent convictions and states:
When the law prescribes a mandatory sentence because of a specified previous conviction, the State‘s Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in circuit court or five days before sentencing in District Court. If the State‘s Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement.
(emphasis added). In contrast to the plain language of 4-245(b), subsection (c) provides that even if the State fails to provide timely notice, the enhanced sentencing provisions remain. The remedy for the defendant under Rule 4-245(c) is the postponement of sentencing.
Further, in order to preserve this issue for review in the future, defendants should object to the untimeliness or incompleteness of the State‘s notice at sentencing. This will permit the Court to weigh any prejudice from the State‘s insufficient compliance and preserve the issue for future review. When no notice is provided, the defendant‘s prejudice is obvious and the sentence may not be enhanced. The facts of Carter are distinct from those of Swinson v. State, 71 Md. App. 661, 527 A.2d 56 (1987), where the Court of Special Appeals held that notice was sufficient. In Swinson, the District Court scheduled the case for hearing, but Swinson prayed for a jury trial on the date that the District Court proceeding was to begin. Id. at 664, 527 A.2d at 57. Though the State failed to file notice for an enhanced sentence prior to the District Court proceeding, the Swinson Court held that the State‘s notice 15 days prior to the circuit court proceeding was acceptable. In contrast to Carter, Swinson‘s case was never heard at the District Court level. Therefore, Swinson did not forego any pre-trial or trial strategy when the State provided notice 15 days prior to the circuit court proceeding.