What is an illegal sentence? That all depends upon what one means by “an illegal
(a) Illegal sentence. The court may correct an illegal sentence at any time.
The Present Case
On September 2, 2008, the appellant, Joseph A. Carlini, entered a guilty plea before Judge William J. Rowan, III, in the Circuit Court for Montgomery County to charges of 1) a felony theft scheme, 2) fraudulent practices in the sale of securities, and 3) acting as a broker without being registered by the State. The actual sentencing, after a series of postponements, was deferred until November 26, 2008.
The sentence that concerns us was on the first count, charging a scheme of felony theft. Judge Rowan sentenced the appellant on that count to a term of ten years imprisonment with all but four years suspended, to be followed by five years of supervised probation. The appellant was also ordered to pay restitution to 41 victims of his theft in amounts set forth in the State’s “Memorandum Regarding Restitution.”
The appellant was released from jail on August 20, 2009. Over the course of the next nine months, he paid $9,106 toward his restitution obligation but was nonetheless in arrears in the amount of $5,630.82. On May 25, 2010, he appeared in circuit court on a charge of having violated his probation because of that arrearage. The court found the appellant to be in violation of probation, but acceded to defense counsel’s request that the imposition of any sentence be stayed to allow him to become current with his restitution obligation. The court set an interim hearing for July 27, 2010. At the July 27 hearing, the State reported that the appellant, through a lump sum payment of $19,000 on July 16, had become current on his restitution obligation. The court agreed that an imposition
It was on May 21, 2012, that the appellant claimed for the first time that the restitution order was an illegal sentence because it was a sanction beyond the scope of his plea agreement. That Motion to Correct an Illegal Sentence was denied, without a hearing, by Judge Michael J. Algeo on June 13, 2012. It is from that denial that the appellant has taken this appeal.
The Contention
The appellant’s single contention focuses exclusively on the hearing of September 2, 2008, at which the appellant entered his guilty pleas. He argues that, as defense counsel and the prosecutor explained to Judge Rowan the terms of their plea agreement, the only criminal sanction expressly mentioned was a term of imprisonment. The agreement, ultimately accepted by Judge Rowan, did not place any upper limit on the term of imprisonment that might be imposed but did place a “cap of not more than four years on executed incarceration.” Any distinction between the formal term of imprisonment and the unsuspended or “hard time” to be served is not a factor in this case.
The contention, rather, is that imprisonment was the only sanction expressly mentioned at the guilty plea hearing and that any other sanction, such as a fine or restitution or some other probationary condition, does not fit under that explicit sentencing cap and would render the sentence illegal. The argument is that anything other than literal imprisonment is ipso facto excessive. The appellant specifically contends that the orders of restitution exceeded the sentencing cap and are, therefore, illegal under Rule 4-345(a). What the appellant seeks is to have the restitution orders eliminated from his sentence.
Rule 4-345(a): What It Is And What It Is Not
Although its identifying tags have regularly been updated, the substance of Rule 4-345(a) has long been with us and has been unwavering. The Rules of Criminal Procedure were completely recodified by an Order of the Court of Appeals dated April 6, 1984 and effective as of July 1, 1984. What is now Rule 4-345(a) had theretofore been codified, verbatim, as Maryland Rule 774(a). That provision, prior to an earlier revision adopted on January 31, 1977 and effective as of July 1, 1977, had, in turn, been codified as Maryland Rule 764(a). Before a yet earlier rewriting of the Maryland Rules of Procedure, adopted on September 15, 1961 and effective as of January 1, 1962, the provision, in precisely the same language, had been Rule 744(a). Before 1962, that same unchanged provision had been Rule 10(a) of the Criminal Rules of Practice and Procedure. We have not looked further back.
A. What Rule 4-345(a) Is
Although an illegal sentence may, of course, be challenged on direct appeal,
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), formerly Rule 774 a, provides that ll[t]he court may correct an illegal sentence at any time. ” Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.
(Emphasis supplied).
State v. Griffiths,
This Rule creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.
(Emphasis supplied). See also Johnson v. State,
In Chaney v. State,
A criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons. Through its adoption of what is now Maryland Rule 4-345 and through its decisional jurisprudence, this Court has created two categories of deficiency and has treated those categories differently. Maryland Rule 4 — 3J+5(a) permits a court to “correct an illegal sentence at any time. ” If a sentence is “illegal” within the meaning of that section of the rule, the defendant may file a motion in the trial court to “correct” it, notwithstanding that (1) no objection was made when the sentence was imposed, (2) the defendant purported to consent to it, or (3) the sentence was not challenged in a timely-filed direct appeal.
(Emphasis supplied).
Rule 4-345(a) is virtually identical to an earlier version of Federal Rule of Criminal Procedure 35. Johnson v. State,
It is suggested that ... we may- consider it [the motion before the Court] as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct. But, as the Rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to reexamine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.
(Emphasis supplied). See Hoile v. State,
If a motion is made pursuant to Rule 4-345(a) to correct an illegal sentence, a denial of the motion may be immediately appealed. Chaney v. State, supra, was very clear:
The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly [per Rule 4-345(a) ], and, if the trial court denies relief in response to such a, challenge, the defendant may appeal from that denial and obtain relief in an appellate court.
B. What Rule 4-345(a) Is Not
The flip-side of Rule 4-345(a) is that its exemption from the normal procedural qualifiers is a narrow one, available only for a limited species of sentence illegalities. The illegality must actually inhere in the sentence itself and must not be a procedural illegality or trial error antecedent to the imposition of sentence. Chaney v. State,
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; 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.
(Emphasis supplied).
Johnson v. State,
To constitute an illegal sentence under Rule 4-345(a), “the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.” Accordingly, “we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.”
(Emphasis supplied).
The same narrow scope of Rule 4-345(a) was stressed by Tshiwala v. State,
[W]here 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 Jp-3Jp5(a). A sentence does not become “an illegal sentence because of some arguable procedural flaw in the sentencing procedure.” ...
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 ____“... We have consistently defined this category of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the sentence itself[.]”
(Emphasis supplied).
In Matthews v. State,
Emerging from [a] survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and cloture still abide. Rule 4-345 (a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. R is not, on the other hand, some unlimited “Reopen, Sesame, ” licensing the court to revisit and to relitigate issues that have long since become faits accompli.
(Emphasis supplied).
The Plea Bargain Cases And Sentencing Caps
The classic illegal sentence for purposes of Rule 4-345(a) was one that exceeded the legislatively imposed statutory maximum. The Legislature set the sentencing cap and that was it. In the 15-month period between October of 2010 and January of 2012, however, the Court of Appeals issued a series of three opinions in which it significantly expanded the category of illegal sentences by expanding the notion of who or what might impose the sentencing cap: Cuffley v. State,
In Cuffley, 416 Md. at 586, 7 A.3d 557 Judge (now Chief Judge) Barbera wrote for the Court in holding that when the trial judge accepts a plea agreement entered into by a defendant and the State and agrees to be bound by its terms, any sentence then imposed in excess of the sentencing cap thus agreed upon is an
We therefore hold that, regardless of whether the sentencing term is clear or ambiguous, the court breached the agreement by imposing a sentence that exceeded a total of eight years’ incarceration. The sentence is illegal and, upon Petitioner’s motion, the Circuit Court should have corrected it to conform to a sentence for which Petitioner bargained and upon which he relied in pleading guilty.
(Emphasis supplied).
The sentencing cap, which the sentence may not exceed lest it be rendered illegal, is that set by the plea agreement by which the judge has agreed to be bound. For purposes of Rule 4-345(a), this new variety of sentencing cap is the functional equivalent of the traditional statutory sentencing cap set by the Legislature. In Dotson v. State,
Generally, the maximum sentence allowable by law is that designated by the Legislature .... The convictions here, however, were obtained by guilty pleas tendered under a plea agreement. The aspect of the agreement which motivated the pleas was that ... the judge would impose a sentence not to exceed a total of 15 years.... [T]he judge found the pleas to be acceptable, convicted Dotson thereunder, and honored the agreement as to the punishment. When the judge accepted the pleas, the agreement as to punishment came into full bloom; it stood approved by the judge. Thereafter, the agreement was inviolate, and the judge was required under the dictate of Rule J-2j3(c)(3) to embody in the judgment the agreed sentence .... It follows, that, inasmuch as 15 years was the harshest sentence that could be imposed under ths circumstances, 15 years stood as the maximum allowable by law.
(Emphasis supplied). Dotson’s clear holding was: “[T]he plea agreement fixed the maximum sentence allowable by law.”
In Cuffley,
In Baines the circumstances were virtually indistinguishable from those in Cuffley. On two charges of armed robbery, the defendant entered guilty pleas under an agreement to be sentenced “within the
We believe it plain from the record of the plea proceeding that Petitioner reasonably understood the plea agreement to call for a total sentence of no more than thirteen years.
[W]e hold that the sentence was in breach of the plea agreement, because the record of the plea proceeding reflects that Petitioner reasonably understood that the court would not impose a total sentence exceeding thirteen years, including both non-suspended and suspended time.
In Matthews, the defendant again did not understand that the sentencing cap agreed upon in the plea bargain applied only to unsuspended time. The trial court applied the cap only to the unsuspended part of the sentence and not to the entire sentence. In determining precisely what sentencing cap had been agreed upon, the Court of Appeals gave the benefit of the doubt to the defendant’s interpretation.
The State’s averments that ... “that cap is a cap as to actual and immediate incarceration” may well have been clear to the State, defense counsel and the court. But the record of the plea hearing does not persuade us that Petitioner “reasonably understood” (as that phrase is explicated in Cuffley) the maximum agreed-upon sentence to be. No one mentioned, much less explained to Petitioner on the record, that a sentence greater than the forty-three year “cap” could be imposed, with a suspended portion of the sentence in excess of those forty-three years. Neither did the State, defense counsel, or the court explain for the record that the words “guidelines range” referred solely to executed time.
The Court of Appeals, moreover, also made explicit what had theretofore been only implicit, to wit, that a sentence in excess of the sentencing cap agreed upon in a binding plea agreement is ipso facto an illegal sentence cognizable under Rule 4-345(a).
We have said that the State, as well as the Court of Special Appeals, see Matthews,
Inherent Versus Procedural Illegalities
A distinction that is sometimes difficult for the zealous advocate to appreciate is that it is not the degree or virulence of the illegality that makes one allegedly flawed sentence cognizable under Rule 4-345(a) while another (perhaps even more flagrantly flawed) is completely immune from review. Rule 4-345(a)’s threshold concern is not with the severity of the alleged infirmity but only with its situs. Matthews v. State, supra,
The semantic problem arising out of those very different contexts is that the phrase “illegal sentence” has variable connotations and shifting meanings. Of all the illegal sentences that might deserve immediate appellate vacating in the broad context of direct review, only a small fraction are even cognizable in the austerely limited context of Rule Jp3Ip5(a) review. For the very reason that its meaning may shift, the phrase “illegal sentence” should never be lifted out of that first context and casually inserted into the second. The words may be the same, but they no longer mean the same thing. We cannot agree with Gertrude Stein that an illegal sentence is an illegal sentence is an illegal sentence, because sometimes it is not.
(Emphasis supplied).
A Rule 4-345(a) hearing does not ordinarily require any factfinding. Even in terms of argument, it is seldom necessary to look upstream to some earlier point along the adjudicative continuum. The boundary markers that are relied upon to measure the inherent or facial legality of the sentence are generally well settled and essentially unchangeable. The only exception is the sentencing cap established by a plea agreement, which must, of course, be determined on an ad hoc basis by looking to the record of the hearing at which the plea was taken. Other illegalities, to be sure, may contribute to, or even produce, the challenged sentence, but they do not inhere in the sentence itself. A Rule 4-345(a) hearing is not a belated appeal. To distinguish these two very different types of illegality, the best teaching tool may be to look at representative examples.
A. Inherent Illegality Type A: A Sentence That Exceeds the Sentencing Cap
Dotson v. State,
The three recent guilty plea cases reaffirm that sentencing limitation in a four-square Rule 4-345(a) context. In Cuffley v. State, supra, the State and the sentencing judge understood “a sentence within the guidelines” to refer to unsuspended “hard time” and not to the total sentence, which statutorily could have been up to 15 years. The Court of Appeals, relying on Dotson, Tweedy, and Solorzano, held that the defendant reasonably understood the Guidelines’ upper limit of eight years to be a cap on the total sentence and that the defendant’s reasonable understanding was controlling. The ultimate sentence of 15 years with all but six years suspended was, therefore, held to be inherently illegal because the total sentence was in excess of the agreed sentencing cap.
In Matthews v. State, supra, another “split sentence” was held to be excessive because, although the “hard time” was within the terms of the agreement, the total time was not. The plea agreement was held to be in conformity with the defendant’s understanding of it and the sentencing cap it established was illegally exceeded.
B. Inherent Illegality Type B: A Sentence That Should Never Have Been Imposed
More common than the illegal sentences that exceed the sentencing cap are the sentences that are illegal because they should never have been imposed in the first place. Alston v. State,
There is one type of illegal sentence which this Court has consistently held should be corrected under Rule 4-345(a). Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief under Rule h-3Jp5(a).
(Emphasis supplied). See also Taylor v. State,
In Ridgeway v. State,
As an interesting variation on that theme, in Johnson v. State,
In State v. Garnett,
In Moosavi v. State,
In Jones v. State,
In Alston v. State,
Two of the Rule 4-345(a) illegal sentences involved the imposition of sanctions, as a part of the sentence, where the sanctions had never been legally authorized. In Holmes v. State,
A recurring problem, in Maryland and elsewhere, is the situation where there was a single conviction but where that conviction is representative of a larger criminal scheme that has victimized other similarly situated persons. If the investigation reveals the other victimizations, may the sentencing judge order restitution beyond the case on which the verdict has been rendered? Maryland first addressed this issue in this Court’s opinion in Mason v. State,
The single issue before us on this appeal is the permitted breadth of an order of restitution. May a convicted thief (we use that term in its broadest and most informal sense) be required, as a condition of probation, to make restitution to the world for his multitudinous peculations or must the restitution be limited by the losses established in the actual case, the conviction as to which serves as the predicate for the sentence? We hold that the latter is the appropriate and legally required limitation upon court-ordered restitution.
We examined the Maryland statutes regulating restitution and concluded that restitution was limited to the case on
The issue now before us is one of first impression. Although the Maryland statutes do not, in terms, preclude the granting of restitution for other crimes not charged or proved, the clear sense of § 640(b) and § 145 seems unmistakably to contemplate restitution for the crimes as to which incarceration might otherwise be imposed.
We then surveyed the national law and concluded that “the experience and wisdom of our sister common-law jurisdictions helps to persuade us that this is clearly the correct result.”
We hold that in this case the restitution ordered in the amount of $3,949.61 to Mr. and Mrs. Bennett was legal but that the open-ended order to make additional restitution to a wide variety of “victims” to be determined by the probation department and in amounts to be determined by the probation department exceeded the sentencing authority of the court.
The Court of Appeals confirmed our result five years later. In Walczak v. State,
In Chertkov v. State,
[I]t is clear that a court that binds itself to fulfill the plea agreement thereby relinquishes his or her right to modify the sentence, thereby imposed, absent the consent of the parties, and, in particular, in the case of reducing the sentence, absent the consent of the State.
The common denominator in all of these instances of Rule 4-345(a) sentence illegality is that once the objective outer boundary markers for the sentence have been established, the illegality that inheres in the sentence itself is obvious. Even if all of the antecedent proceedings had been procedurally impeccable, the illegality of the sentence is facial and self-evident.
C. Illegalities That Do Not Inhere In The Sentence
In noting the difference between an illegality in the sentencing process that may be noticed on direct appeal and the far more limited illegality that may be noticed under Rule 4-345(a), Judge Greene spoke for the Court of Appeals in State v. Wilkins,
[W]e note that any illegality must inhere in the sentence, not in the judge’s actions. In defining an illegal sentence the focus is not on whether the judge’s “actions” are per se illegal but whether the sentence itself is illegal.
(Emphasis supplied).
In State v. Kanaras,
The Court of Special Appeals, in an unreported opinion, held that the actions of the Parole Commission, the Commissioner of Correction, and the Governor had the effect of changing Kanaras’s sentence from one of life imprisonment to life imprisonment without the possibility of parole. The intermediate appellate court went on to hold that this change violated the ex post facto clauses of the federal and state constitutions and, therefore, rendered Kanaras’s sentence illegal.
On the appeal, however, the Court of Appeals overruled this Court and held that even improper actions by the various officials would not, for Rule 4-345(a) purposes, constitute an illegality that inhered in the sentence itself.
The prior acts of the Parole Commission and the Commissioner of Correction, which had the effect of denying inmates in Kanaras’s position the parole consideration to which they were entitled under the statutory scheme, did not render illegal Kanaras’s sentence. The illegality was in the conduct of the Parole Commission and the Commissioner of Correction; it did not inhere in Kanaras’s sentence.
In Randall Book Corporation v. State,
It is true ... that whether the trial judge was motivated by ill-will, prejudice, or other impermissible considerations in imposing sentence will be considered on direct appeal. However, while improper motivation may justify vacation of the sentence, it does not render the sentence illegal within the meaning of Rule k-Sjñ.
In Chaney v. State,
In Baker v. State,
In Hoile v. State,
Palmer and the State do not allege that the sentence of probation imposed at the April 2005 hearing exceeded any statutorily prescribed limits or violated any substantive criminal law. The sentence is not illegal on its face, and accordingly, the sentence is not illegal.
(Emphasis supplied).
In Pollard v. State,
Because the alleged illegality did not inhere in the sentence itself, the motion to correct an illegal sentence is not appropriate. The sentence imposed was neither illegal, in excess of that prescribed for the offense for which Petitioner was convicted, nor were the terms of the sentence itself statutorily or constitutionally invalid.
The intermediate appellate court held that the sentencing court’s “failure to recognize its right to consider suspending a portion of ... [a life] sentence renders the sentence illegal.” Wilkins v. State,
We hold that a sentencing fudge’s failure to recognize his or her right to exercise discretion in the imposition of a sentence does not render the sentence illegal within the meaning of Md. Rule 4-345(a).
Id. (emphasis supplied).
Timeliness Is Irrelevant
The sentence that is the focus of this appeal was imposed on November 26, 2008. The appellant first challenged its legality on May 21, 2012, three years and six months after its imposition. That delay, however, does not in any way compromise the appellant’s entitlement to raise a challenge to the legality of a sentence under
The Remedy Sought
In Rule 4-345(a), the key verb is “correct.” The only thing subject to correction, moreover, is “an illegal sentence.” No matter what antecedent procedural improprieties a Rule 4-345(a) hearing might show, the underlying conviction itself is not in jeopardy. There are other avenues available for challenging allegedly erroneous convictions and those remedial avenues have, of course, their attendant constraints and limitations. As Judge Greene explained for the Court of Appeals in State v. Wilkins,
[A] motion to correct an illegal sentence is not an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.
In the context of Rule 4-345(a), the only purpose a court might ever have for looking upstream to trial or pretrial proceedings would be to establish the boundary markers by which to measure the ultimate sentence itself, such as the precise terms of a plea agreement. The focus is not on those earlier proceedings per se. We examine those proceedings for the limited purpose of establishing the specifications by which to measure the ultimate sentence. What were the actual convictions for which sentences might be imposed? What was the plea agreement that set a cap on the sentence? Should the review reveal that the sentence was, indeed, inherently illegal, the remedy would be to vacate the sentence and to remand the case to the lower court for the imposition of a legal sentence. In this case, for example, the appellant sought a sentence without any order of restitution.
Rule 4-345(a) Review Is De Novo
Rule 4-345(a) appellate review deals only with legal questions, not factual or procedural questions. Deference as to factfinding or to discretionary decisions is not involved. Once the outer boundary markers for a sentence are objectively established, the only question is whether the ultimate sentence itself is or is not inherently illegal. That is quintessentially a question of law calling for de novo appellate review.
The Appellant Agreed to Restitution
The core message of the entire Cuffley-Baines-Matthews line of cases is that when a defendant foregoes a trial and enters a guilty plea pursuant to an agreement with the State which is then accepted by the court, the defendant is entitled to have the State and the court honor the
Prior to the guilty plea hearing, the appellant, along with his counsel, had executed with the State a tightly-packed thirteen-page Proffer of Proof in Support of Defendant’s Plea of Guilty. The Proffer of Proof set forth, inter alia, a statement of facts describing how the appellant had engaged in an unlawful scheme that had defrauded numerous investors of substantial sums of money. The Proffer of Proof not only described the fraudulent scheme generally but set forth in elaborate detail the specific losses incurred by three of the victims. With respect to the financial losses incurred by the other victims, the Proffer of Proof contained the following acknowledgment:
These three victims are simply examples. By entering this plea of guilty, defendant Carlini acknowledges that all victims listed in the Indictment and any additional victims noted in the discovery would testify to similar narratives and all of these individuals are entitled to judgments of restitution in this case.
(Emphasis supplied).
The last page of the Proffer of Proof contained the following acknowledgment signed by the appellant:
Defendant’s Acceptance
I have read each of the thirteen pages and exhibits constituting this Proffer of Proof and have discussed it with my attorney, Louis Fireison, Esquire. I fully understand this Proffer of Proof and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound. No threats have been made to me nor am I under the influence of anything that could impede my ability to understand this document fully.
Date: 09/2/08 [handwritten]
M
Joseph A. Carlini Defendant
(Emphasis supplied).
The appellant’s acknowledgment was followed by an acknowledgment by his attorney.
Attorney’s Acknowledgment
I have read each of the thirteen pages and exhibits constituting this Proffer of Proof, reviewed them with my client, and fully discussed each of the elements of this crime with my client. These pages accurately set forth the facts of this case. I concur in my client’s desire to plead guilty and admit these facts.
Date: 09/2/08 [handwritten]
M
Louis Fireison, Esquire (Emphasis supplied).
After Judge Rowan explained to the appellant the rights that he would be waiving if he pled guilty and after he confirmed that the appellant was knowingly and voluntarily waiving those rights, he prepared to receive the Proffer of Proof. Because the document was thirteen pages in length and because it had already been received and read by the judge and because it had been prepared and signed by both the State and the appellant, Judge Rowan agreed to receive the document in the record but did not require the State to read it aloud.
[THE COURT]: Now at this point, the State is going to make a suggestion either in writing or oral of
[CARLINI]: Thank you.
[PROSECUTOR]: Your Honor, we have submitted to the Court the proffer of proof in support of the defendant’s plea of guilty, which is signed by the defendant on the last page and signed by his counsel, as well, on that page. That factual proffer sets out a summary of what the State’s evidence would be to satisfy each element of the three charges. I’m happy to read that if the Court desires, but I’m also happy to simply have the Court accept that proffer as a filing in the court jacket, as well.
[THE COURT]: All right. There’s no necessity for you to read it out loud. The Court has read it and was presented a copy of it prior to the actual signing of the proffer of proof. Would you accordingly file it—
[PROSECUTOR]: Yes, Your Honor. I think the original is with the clerk signed by—
[THE COURT]: Have you received them, Madam Clerk?
[THE CLERK]: [no audible response]
[THE COURT]: Very well. The Court will receive it as the proffer by proof by the State pursuant to the plea of guilty. The Court finds that based upon the proffer that there is a factual basis to support the proof of the crimes to which the defendant is pleading guilty. Are there any changes or additions to the proffer by the Defense ?
[DEFENSE COUNSEL]: None, Your Honor.
(Emphasis supplied). The appellant fully agreed to the receipt of the Proffer of Proof into the record without changes or additions.
The Best Evidence of a Contract Is the Contract
As we analyze this case, the contents of that thirteen-page Proffer of Proof are as indisputably before us for our consideration as are any words spoken orally at that hearing of September 2, 2008. The appellant seeks to wriggle out from under the foreclosing effect of the contractual plea agreement he entered into, read, and signed by arguing that the thirteen-page written and signed plea agreement was itself somehow “extrinsic evidence” that may not be considered. The appellant, however, is simply grabbing phrases, like “extrinsic evidence,” out of context. This minutely detailed written and signed plea agreement, formally offered and received in the record at the guilty plea hearing as evidence of the voluntariness and knowing nature of the appellant’s plea, is quintessentially intrinsic evidence. This recognition is at the very core of the Best Evidence Rule. A plea agreement is contractual in nature. Cuffley v. State,
Judge Rowan, prior to accepting the plea, had fully read the plea agreement. With the approval of all parties, he formally received the written agreement in evidence and had it filed with the clerk as part of the record — not simply the record of the case generally, but the specific record of the plea hearing itself.
A Merely Procedural Hypothesis
How the judge conducts the plea hearing is, moreover, quintessentially procedural. Even if we were to accept, purely arguendo, that the failure of the trial judge to take the documentary exhibit and then to read every line of it aloud in open court was somehow a procedural error pursuant to Rule 4-243(d), such a hypothetical error would self-evidently be more of a procedural glitch in the sentencing process than substantive evidence that the ultimate sentence was illegally in excess of what the appellant had actually agreed to. What the appellant here challenges is not the agreement itself but only the judge’s alleged procedural lapse of not reading it aloud. In appellate brief, the appellant argues:
Because the State failed to read its proffer into the record and make it clear during the colloquy that payment of restitution was one of the conditions of the plea, that language cannot be viewed as one of the terms of the plea agreement.
In terms of what is cognizable under Rule 4-345(a) and what is not, this Court, in Corcoran v. State,
The notion of an “illegal sentence” within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose. It does not remotely suggest that a sentence, proper on its face, becomes an “illegal sentence” because of some arguable procedural flaw in the sentencing procedure.
(Emphasis supplied). See also State v. Wilkins,
Subsequent Confirmation of Appellant’s Understanding
If, hypothetically, there should appear a difference between what a defendant thought he was agreeing to at the time he entered a guilty plea and what he later learned the agreement had apparently been, that might influence our analysis. It is unnecessary for us to consider such a possibility, however, in the case now before us. In this case the appellant’s subsequent words and actions fully confirmed his understanding on September 2, 2008, that he would be required to make financial restitution to his victims.
At the sentencing hearing, the appellant made a lengthy plea to the court to be released from incarceration precisely so that he could earn the money with which to make restitution, including the following passages:
I realize it will take a long time to correct this, but if I were to spend time in jail I would be wasting that time when / could possibly [be] productive, and earning a living, and earning money towards restitution.
I want to, at some point in time, get these people paid back, but I, there is no possible way of me going away for an extended, I know I have to be punished, that’s not what I’m saying, but for me to go away for an extended period of time, there would be no way of me ever being able to recoup anybody’s money.
(Emphasis supplied).
As a part of announcing his sentence, Judge Rowan explained a key condition of the probation:
Now you’re going to then be on probation for a period, supervised probation for a period of five years, and here’s the condition of your probation. The condition of your probation is you are to make, within three months after your release from jail and/or the Pre-Release Center and begin working, restitution is the amount of $2,000 each and every month for the period of five years, which is to be paid to the Department of Parole and Probation.
(Emphasis supplied).
In the probation order itself, reference was made to the fact that the appellant would be subject to “All Standard Conditions” of probation, which included Standard Condition # 10:
10. Pay all fines, costs, restitution, and fees as ordered by the court or as directed by your supervising agent through a payment schedule ... Restitution of $2000/mo. [handwritten] to victims of restitution order [handwritten] ...
The appellant signed the order, confirmed that he understood those conditions and agreed to abide by them.
Probation Implies the Possibility of Restitution
At the guilty plea hearing itself, the trial judge and the appellant had discussed the terms of the plea agreement. Judge Rowan, on the record, made it very clear that although he would not sentence the appellant to more than four years of actual time to be served, he could give a longer sentence and then suspend all but four years.
[THE COURT]: The further element of the plea agreement is that the Court may not sentence you to any more than four years of actual time to be served in jail. I could sentence you as much as 15 years and suspend all but four. But what I can’t do is give you any more than four years of actual time you have to serve in jail.
(Emphasis supplied).
In accepting the risk of a suspended sentence, the appellant was necessarily accepting the imposition of probation. Maryland Code, Criminal Procedure Article, § 6-222(a) provides:
(a) Limits on probation after judgment. — A circuit court or the District Court may:
(1) impose a sentence for a specified time and provide that a lesser time be served in confinement;
(2) suspend the remainder of the sentence; and
(3) (i) order probation for a time longer than the sentence but, subject to subsections (b) and (c) of this section, not longer than:
1. 5 years if the probation is ordered by a circuit court.
(Emphasis supplied).
In pointing out that a suspended sentence includes a period of supervised probation
Thus the language of the statute indicates that, when a trial court suspends a sentence, it will impose probation as a matter of course. The connection between a suspended sentence and probation is also illustrated, albeit in a different context, in Moats v. Scott,358 Md. 593 ,751 A.2d 462 (2000). There, the Court of Appeals explained the options available to a sentencing judge, including imposing a “split sentence”:
A third option — one that is frequently used — is the “split sentence” provided for in § 641A(a)(3). That subsection allows a court to “impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of 5 years.” Id. at 595,751 A.2d 462 ; see also Cathcart v. State,397 Md. 320 , 327,916 A.2d 1008 (2007) (stating that if a court imposes a split sentence, “there must be a period of probation attached to the suspended part of the sentence ”).
(Emphasis supplied).
Rankin,
In the case sub judice, it is clear that a probationary period was implicit in the terms of the plea agreement. Although the prosecutor did not specifically discuss probation, he told the trial court that the only sentencing limitation in the agreement was that the “active cap,” i.e., the executed portion of the sentence, was three years. The written agreement recited that there could be additional suspended time and that there was “no other sentencing limitation except that provided by law.” Thus the agreement gave the trial court the authority to suspend part of the sentence and impose probation, which it did.
(Emphasis supplied). Judge Woodward’s analysis concluded:
Finally, because a period of probation must be attached to a suspended sentence, we hold that the right to impose a period of probation is included in any plea agreement that provides for a suspended sentence. If we were to hold otherwise, the imposition of a suspended sentence would be meaningless.
In Lafontant v. State,
The State did not expressly require that appellant pay restitution as part of the plea agreement. Neither did the State expressly waive the right to request restitution, either by it or by the victim directly. The question thus becomes whether the State, by failing to expressly include the issu& of restitution in the agreement, effectively waived the victim’s right to request restitution.
Appellant essentially argues that the State did just that, because absent an affirmative inclusion of restitution in the agreement, it was reasonable for appellant to conclude that restitution was waived. We
Lafontant’s single contention is almost precisely the contention raised by the appellant in the present case.
Appellant argues that “[n]either party nor the court ever implied [by] their actions or terms of the agreement that the appellant’s sentence might include an order of restitution.” Therefore, he concludes, a reasonable person in his position would not have understood the plea agreement as leaving open the possibility of restitution in the criminal proceeding.
The plea agreement in Lafontant is indistinguishable from the plea agreement in this case — a sentence that would include no more than four years of active incarceration:
The plea agreement was not for a specific sentence and was not even for a recommendation of a specific sentence. The agreement was that the State would recommend a sentence that would include no more than four years active incarceration. At the time of the bargain, appellant should have understood that four years of active, unsuspended incarceration would implicate a period of probation.
[RJestitution is known to be a standard condition of probation. See, e.g., Wayne R. Lafave et al., Criminal Procedure § 26.9(b) (3d ed. 2007) (“One common condition of probation is that the defendant make payments .... Sometimes the defendant must reimburse the county or state for certain expenses connected with the prosecution, ... [but] [m]ore frequently the defendant is obligated to make restitution to the victim for his criminal conduct”).
As Chaney v. State,
In Chaney v. State, the appellant contended that two of the conditions of his probation — 1) that he make restitution and 2) that “he become either employed full-time or enrolled as a full-time student,”
There is nothing intrinsically illegal about either condition here. Restitution in the amount of $5,000 is permitted as a condition of probation upon a conviction for second degree assault, as is maintaining full-time employment or student status, and appellant does not seem to contend otherwise. His complaint is that those conditions were inappropriate in this case, in large part because no evidentiary foundation was laid to support them, but, even if so, that does not make the conditions intrinsically illegal.
A plea agreement that necessarily includes the possibility or probability of probation need not expressly spell out each and every standard condition of probation. The plea agreement need not spell out that the defendant could be in violation of probation if, for instance, he failed to report regularly to his probation officer or failed to get permission before changing his home address or used narcotic drugs or refused to allow his probation officer to visit his home. Of the ten Standard Conditions of Probation, Standard Condition # 10 deals with the obligation to make restitution.
10. Pay all fines, costs, restitution, and fees as ordered by the court or as directed by your supervising agent through a payment schedule.
That condition is no more subject to a requirement of express annunciation than are the other nine standard conditions. There is no prioritizing, as a matter of law, among the conditions of probation, the breach of any one of which could lead to a violation of probation. The appellant could easily have raised his present contention about any of the conditions of probation, had he been found to have been in violation of probation because of his failure to have satisfied such a condition. He would no more have succeeded with such a contention, however, than he will succeed with the contention he now makes.
The holding of Lafontant,
[AJppellant should reasonably have known that the court could impose a period of probation, and that one of the conditions might be restitution ... Unlike the plea agreement in Cujfley, where the court violated an express term of the agreement, appellant understood that the one and only term in his plea agreement was that the State would not recommend more than four years active incarceration. The circuit court did not breach the terms of the agreement when it ordered appellant to pay restitution to the victim’s representative.
(Footnote omitted) (emphasis supplied). See also Coles v. State,
Theft and Restitution
On the first count, the appellant was convicted of a felony theft scheme. Under Maryland Code, Criminal Law Article, § 7-104, dealing with “General theft provisions,” the subsection setting out the penalty provisions applicable to the appellant, subsection (g)(1)(h), expressly directs that
(g) Penalty. — (1) A person convicted of theft of property or services with a value of:
(ii) at least $10,000 but less than $100,000 is guilty of a felony and:
1. is subject to imprisonment not exceeding 15 years or a fine not exceeding $15,000 or both; and
2. shall restore the property taken to the owner or pay the owner the value of the property or services;
(Emphasis supplied).
In this case, the restitution was required as a matter of law.
The Elephant In The Room
Although the matter of this comment had nothing to do with our disposition of this appeal, it is nonetheless a matter we feel compelled to note. The appellant’s crime was no crime of violence with the possibility of property damage as an incidental collateral consequence. This crime was all about money. It was a highly sophisticated financial scam, referred to in the signed Proffer of Proof as “a classic Ponzi scheme.” It ensnared 41 victims, with losses per victim in amounts of hundreds of thousands of dollars. In a period of slightly less than two years, approximately $7.2 million passed back and forth through various bank accounts.
The only way this appellant could have hoped to catch any sort of a break would have been by a commitment to make at least partial restitution to his victims. From the first word to the last word of plea negotiations, restitution was the elephant standing in the middle of the room. It was the raison d’etre for even talking. For the appellant to pretend that he was blind to the elephant standing in front of him is surrealistic and his feigned surprise three and one-half years later is disingenuous in the extreme.
Conclusion
In the last analysis, we need not decide whether this was a procedurally illegal sentence in the simple sense, not cognizable under Rule 4-345(a), or an inherently illegal sentence in the pluperfect sense, which is cognizable. We are pleasantly looking at a sentence not illegal in any sense. Judge Algeo was right in concluding that this was not a Rule 4-345(a) case.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
Notes
. The two illegalities must not be conflated. It was of this linguistic problem that this Court spoke in Matthews v. State,
What seems at first to be a legal problem frequently turns out to be a linguistic or a semantic problem. On this appeal, we come face to face with the enigma that an illegal sentence is not always an illegal sentence. We do not mean this as doubletalk. In the context of direct appellate review, there are a wide variety of reasons why a sentence, or a sentencing procedure, may be so seriously flawed as to give rise to the appellate reversal or vacating of the sentence. In this context, such flaws are, and are regularly referred to as, illegal sentences. There are, however, procedural rules regulating the form that challenges to such sentences may take and imposing strict limitations on when such challenges may be made. There is also, by dramatic contrast, a very different context in which a sentence may be challenged at any time, subject to no filing deadline of any sort.
(Emphasis supplied).
. The provision is presumptively post-Magna Charta.
. Rule 35(a) was amended as a result of Public Law 98-473, 98 Stat. 1837 (1984), effective November 1, 1987, which vested most authority to correct illegal federal sentences in the federal appellate courts. See 18 U.S.C. §§ 3551, 3557, 3742. Section 3742(a) provides, in part:
(a) Appeal by a defendant. — A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(1) was imposed in violation of law[J
The federal appellate court then must determine "whether the sentence ... was imposed in violation of law,” § 3742(e)(1), and,
[i]f the court of appeals determines that ... the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.
§ 3742(f)(1).
. Although they were not Rule 4-345(a) cases, there were strong intimations in Dotson v. State,