*1
Glen,
In Crown Oil v.
(1990),
Md.
Nor exercise of discretion on part this Court’s negated by the determination of the Court Special Ap- peals that it “issue,” would not consider the even though expressly to do urged so. This may Court exercise discre- tion independently under those circumstances. We need not first conclude that there was an abuse of discretion the Court of Special Appeals.
Id. at
561-62,
Steven Gen. F. (Douglas *3 Gen.), brief, Atty. Respondent. on for C.J.,* BELL, RAKER, BATTAGLIA, before Argued GREENE, MURPHY, ELDRIDGE, (Retired, JOHN C. CATHELL, (Retired, Specially DALE Assigned), R. Specially Assigned), JJ.
ELDRIDGE, J. dispositive The issue this criminal case is whether the judge, circuit presided who over trial and sentenced the defendant, erred, by ruling a on motion modification of Maryland 4-345(e)(l), sentence to pursuant Rule after the Judge had assigned matter to a different judge.1 circuit
* J., Raker, retired, participated now in the and this conference of Court; being pursu- case while an active member of this after recalled Constitution, IV, 3A, ant participated to Article Section she also adoption opinion. the decision of this 4-345(e)(l) provides 1. Maryland as Rule follows: "(e) (1) Upon Generally. Upon Modification a Motion. filed motion Court, (A) days imposition within after of a sentence in the if District dismissed, (B) appeal perfected has been has a not or been court, filed, appeal circuit whether or not an has been has court
I. Strickland, with first charged Donovan petitioner, The of a and use deadly weapon, a murder, robbery with degree was tried a felony. of Strickland in the commission handgun County, George’s Prince Court for in the Circuit jury before Jr., January Sothoron, from presiding, H. Richard with verdict of returned a 8, jury January 1998. through and use deadly weapon with a robbery charges guilty reach a it failed to felony, of a but in commission handgun of a among de- After discussions charge. murder on the verdict judge, the trial attorney and counsel, prosecuting fense 2, March chambers on judge’s in the trial including discussions Strickland, to a recorded, plea pursuant not which were degree felony to first plea guilty entered agreement, the plea Although the terms on March murder record currently disputed, are have been agreement judge and the trial between following colloquy reflects on March 3rd: plea guilty of the acceptance to prior Strickland [defense Blumenthal I indicated Mr. What “The Court: in a well-mannered yourself conduct you is that counsel] into getting from say, you refrain that is to posture, incarcerat- of while are speak problems disciplinary consider favorably [a] ed, be inclined the Court would in time point at some sentence] modification of motion [for in the future. a sen- imposed that I suppose, hypothetically,
“And let’s murder, if that felony under prison, life in today tence jury has convictions prior then the happen, were merge would deadly weapon with a robbery as to rendered *4 not allow a The law does murder. felony into may except not revise the power that it revisory over the sentence years the sentence from the date expiration of five after the sentence may increase the and it not originally imposed on the defendant sentence.” authority a sentence upon to revise five-year a court’s limitation 4-345(e)(l) sentences in this case in effect when the was not under Rule At those the Rule was filed. imposed the motion under were times, and when authority Rule upon under a court’s was no time limitation there 4-345(e)(l) to revise sentences. impose a sentence for the robbery with a deadly in weapon addition to the life sentence. that, you
“Do understand Mr. Strickland?
“The I Defendant: do. Okay. “The Court: Court, So that that if one, means did not life impose parole, without indicated to Mr. Manico prosecutor] [the and Mr. Blumenthal in all I’m going likelihood not to do today, I would be inclined sentence, to impose a life and I would be inclined to favorably consider a motion for reconsideration of sentence just do what I do, indicated that you should and that yourself is to conduct inmate, as a model then the Court would be inclined to grant point at a future, time yet determined, which is to be relief granting your motion for reconsideration of sentence to the extent that I would your reconsider sentence by suspending portion your life years.” sentence down to 50 The trial judge accepted Strickland’s guilty plea, sen- tenced him imprisonment to life murder, for felony imposed no sentence on the robbery conviction because of merger, and sentenced Strickland to a 20-year concurrent term of imprisonment for handgun offense. Strickland’s motion sentence, modification of pursuant to Rule 4- 345(e)(1), later, 5, was filed two days on March 1998. The trial judge held that motion under advisement for several years.
A hearing on the modification motion was held on October 14, 2005, 17, and November 2005. At the beginning of the portion recorded of the October hearing, the trial re- ferred to the and the attorneys “hav[ing] just listened at the bench to the court reporter’s reciting,” based upon the 3, transcript the March sentencing, “what the plea agreement was.” The trial judge also pointed out that court reporter’s reading 3, 1998, of the March transcript “referenced that I had alluded to a conference chambers the before,” i.e., day addition, March In the trial judge indicated that his understanding, when he accepted the *5 reconsider, down be inclined to that he “would plea, was guilty “I inmate” but that road, was a model if Mr. Strickland nor, did I I would do as to what any promises give didn’t myself.” absolutely bind who had counsel, attorney who was the same
Defense stated that sentencing, at the trial Strickland represented position including understanding plea bargain, of the his 3, 1998, The was different. 2 and judge on March the trial that his attorney represented defense that, if I agreement of the was of the nature “understanding would word, in stone. We it was written may use the and, if a model prisoner, he was point return here at a later life, By prisoner, model all but get suspend he would significantly he was to remain to mean understood infraction, infraction-free, Your Honor.” no real to search for requested a continuance Defense counsel then judge’s trial chambers of the proceeding record original prosecutor to contact the March however, reporter put the court had judge, case.2 The trial testified reporter as a witness. The testify under oath and notes of what tran- recording no and no that there existed 2, 1998, March in chambers on spired proceeding at clearly sentencing of the March 3rd although transcript on March judge’s in the chambers proceeding referred to the 2nd.
Next, representing the State Attorney the Assistant State’s spoken that he had with the hearing at the said October original prosecu- week” and that the original prosecutor “this plea agreement of the “strong tor had no recollection” The trial also that his “was unclear.” recollection prosecuted Attorney the case original who had 2. The Assistant State’s Manico, negotiated plea agreement, Mr. had since moved and had Attorney at the on the State's to Arkansas. Assistant Later, Attorney Maloney. State’s Mr. motion for modification was representing County, Ivey, George's became involved for Prince Mr. the State. disclosed that he had the original prosecuting talked to attor- ney and that
“I him suggested that his input important from the *6 State’s I perspective. That’s all recall him talking to about it. I go didn’t into at all.” specifics Defense responded counsel that the testimony or an affida- vit original obtained, from the prosecuting attorney should be and that it would be “wise to have alternate counsel who will Strickland, represent Mr. and they may see fit to call me and testimony.” elicit Defense counsel then alluded to the trial judge’s having previously disclosed to counsel for both sides that the judge prior had some occasions spoken with the case, father of the homicide victim in the and that the father had, words, in judge’s the “taken an active role on various rights victims’ issues since In light this case.” of the factual dispute over the terms of the plea agreement, the judge’s trial ex parte conversation with original prosecuting attorney, and the trial judge’s father, contacts with the decedent’s defense counsel made a motion that the trial judge recuse himself and have another judge rule on the motion to modify Strickland’s sentence. that,
The Assistant attorney view, State’s in replied his there was no reason to testimony elicit the original prosecuting attorney because the nature of plea agree- ment in was set forth the transcript of the sentencing on 3,1998. March Regarding judge’s the trial conversations with father, the decedent’s the Assistant Attorney State’s said that “I you’re don’t know if going to find a in judge the courthouse who does not know [the decedent’s quite father]. He’s been many active in cases this courthouse.” The prosecuting recusal, attorney continued: to the pretty “[A]s that’s much up to the Court. don’t know the really State has an opinion on that....”
The trial judge recusal, denied the motion for denied the motion to hearing, continue the stated that he was going consider has Mr. “[h]ow Strickland fared since he’s been detained,” and directed that Strickland take the witness stand and be sworn. incarceration he had during testified that his
Strickland prison involving a official a matter up been written disagreement.” a verbal He also testified “[d]isrespect, [and] classification, given category the violation that, infractions, five years, least serious class of after violation have been removed from his record. Follow- should ing testimony, Strickland’s the trial asked Assistant parole about Strickland’s under Attorney eligibility State’s how requested his current sentence and sentence modifica- tion affect his After some might parole eligibility. discussion matter, and the this among attorneys concerning trial decided that he continue the until would for the prosecuting attorney later date order and the attorney parole defense to check into Strickland’s status and *7 disciplinary his record. 17, hearing
The was resumed on November 2005. At the beginning hearing, judge of the resumed the trial stated that he had contacted Strickland’s officer in- classification who judge disciplinary formed the that Strickland had one matter record, on his in March
“for failure obey direct order and he had to serve 15 days lockup. vulgar The essence of it was that he used '99, language. He had been a ofMay barber since and he had been determined classification and staff [the officer] trustworthy.” members to be judge
The trial said that the classification officer told the judge protective custody” that Strickland “is under because “his was in jeopardy cooperation welfare because of this judge case.” The trial also said that he had discussed with the In parole eligibility. classification officer Strickland’s addi- tion, that, ago,” the trial disclosed “about three weeks Attorney” with the in the judge spoke “Chief Governor’s office about the Governor’s policy regarding parole that, inmates life The indicated serving sentences. trial view, in the more if judge’s likely Strickland would serve time granted. the motion for modification of sentence were his of the understanding plea agree- trial also reiterated ment, namely my that “this matter is discretion and I’m not anything.” locked into disagreement
Defense counsel indicated with the judge’s be better view that Strickland would off the motion for represented modification of sentence were denied. Counsel that Strickland desired “a hard number on his sentence.” emphasize Defense counsel went on to his different under- arrangement, stating: of the standing plea “I that I clarify something do want said at the last I at it was hearing. my indicated last that Your Honor had indicated that if he understanding free, remained infraction Your Honor would suspend fact, Honor, In last of the life sentence. Your I part Mr. I misstated that. When Manico and and Your Honor plea had a before the what conversation held about sentence, Your might happen a reconsideration Honor suspend indicated that would reconsider life [and] all but 50 on a reconsideration. It was at the [March time, 1998,] hearing, for the first when a reference was remaining made to infraction free.... plea, part
“But that wasn’t of what we discussed. before think, Honor, respect, Your with all due reconsideration, very, very Sothoron was clear that on a there would be a life all but 50.” suspend that, Defense counsel also out of the pointed because dis- terms of agreement concerning plea arrangement, he *8 longer attorney. could no serve as defendant’s The follow- counsel, defense the trial and the ing colloquy among judge, Attorney, Assistant then took place: State’s My “MR. BLUMENTHAL [DEFENSE COUNSEL]: hope private was Mr. Strickland would be able to obtain I regard. I know there were efforts made in that counsel. know he to Mr. Bennett. he’s unable Unfortunately, talked attorney. to So we of this Court private request secure a him, assign public represent now to defender they play— role see fit to have me whatever denied, request “THE COURT: The Mr. Blumenthal. “MR. I’m sure the State even BLUMENTHAL: not opposes.
“MR. MALONEY STATE’S [ASSISTANT ATTORNEY]: that, think, this, I agrees The State since he is a witness to testify he ... cannot and also for Mr. attorney be the Strickland.
“THE I think anything testify COURT: don’t there is to, Mr. Maloney. Well,
“MR. MALONEY: I think if agree both sides it, Honor, I justice— to Your think it’s the interest of
“THE COURT: There is no secret deal here. Every- thing has been on the record. placed Well,
“MR. MALONEY: that’s for a determination matter, fact. We have not had to call witnesses to that Your I think Honor. So we have to have that hearing. so,
“THE Maloney. COURT: don’t think Mr. transcript speaks for itself. It is clear that if I was going sentence, consider abundantly reconsideration it was clear that Mr. Strickland had to himself keep disciplinary simple free. It’s as as that. Well,
“MR. MALONEY: Mr. Strickland’s attorney said him you promised in chambers to him life give suspend all qualifications, but 50 with no Your If Honor. he does not reconsideration, get the he has a very right appeal, valid it, right hearing. and he has a to have that If grant objections, State has a reason to assert its because you’ve made an agreement outside the record to the defendant that getting he should be something. right So we have a to have hearing. Whether it’s from the defense side or from side, held, the State’s that hearing got has to be Your Honor.
“THE I disagree you. COURT: with Honor, “MR. Your promise MALONEY: has been chambers, made in and we have a member of bar saying *9 made, hearing we have to have that has been promise that says it did or it didn’t judge happen If another to find out. But at this proceed. But then we can so be it. happen, Honor, we have to decide that occurred.” Your point, discussion, denied the judge again the trial After further the plea determine the nature of hearing for a request to the view that the tran- judge The adhered arrangement. 3,1998, clearly disclosed sentencing on March script of arrangement. of the plea nature out that Attorney pointed then The Assistant State’s Consequent- in this case.” had “become a witness judge trial attorneys that the Attorney requested ly, the Assistant State’s Judge, Administrative to have the given opportunity Missouri, the matter.3 The D. decide Judge who was William must Attorney emphasized “hearing that a Assistant State’s March happened [on “what chambers be held” to determine 1998], whether or point, the critical issue at this and that’s in chambers between agreement not an was made Attorney “[y]ou stated that defendant.” The Assistant State’s judge, the witness.” The trial judge cannot be both the however, with the of defense counsel disagreed position again Attorney. and the Assistant State’s thereafter, Attorney for Ivey, Mr. the State’s Immediately he judge to the trial that George’s County, represented Prince Judge as well as had with the Administrative spoken victim, everyone that that family agreed of the postponed for modification should be hearing on the motion judge. be heard another and that the matter should the trial that the Administra- Attorney State’s informed Judge Michael P. Whalen to Judge assigned tive had Circuit modify the motion to the sentence. over the preside attorneys again should judge suggested The trial currently, Judge Throughout Missouri was 2005 and as well as Circuit, Judge for the Seventh Judicial both the Circuit Administrative County, County George’s and the which includes Prince County. George's for Prince and the trial Judge, with the Administrative speak proceeding. recessed the 17, 2005, resumed, proceeding
Later on November acknowledged trial the Administrative and the *10 a continuance and that the entire matter Judge granted had no the trial It also out longer judge. pointed before was the Judge that the Administrative would determine whether A represent Public Defender’s Office should Strickland. hear- the was sched- ing on motion modification the sentence 1, 2006, uled for before Michael P. Whalen. February Judge 30, 2005, however, prior On December to the scheduled (Sotho- Whalen, trial hearing Judge original judge before the J.) ron, following and filed the order: signed “NOW, THEREFORE, is, day it this 30th of December 2005, by George’s County, the Circuit Court for Prince “ORDERED, that Defendant’s Motion for Reconsideration DENIED, hereby of Sentence be and the same is without any hearing; the need for further and it is further “DETERMINED, Judge the Administrative for the George’s County Circuit Court for Prince was without au- thority hearing continue the reconsideration of sentence 17, 2005, on November being solely said matter within the discretion of the trial in this judge intervention case by Judge George’s County the Administrative for Prince was inappropriate.”
A motion for reconsideration of the above-quoted order was by Judge filed was denied Sothoron. appealed
Strickland
to the
of Special Appeals, raising
Court
court, however,
several issues. The
appellate
intermediate
unreported opinion.
argu-
affirmed
to the
regard
With
judge
denying
ment that
the trial
erred
the motion for
modification of sentence after the matter had been assigned judge,
another
the Court of Special Appeals stated:
“Judge Sothoron was correct
his conclusion that
motion for reconsideration of sentence
his
was within
sole
discretion.
v.
Penitentiary,
See
Warden Md.
Duffin
(1964) (‘¿A]
685, 686,
Md.
II. in assignment Maryland judges provided The of IV, 18, in Maryland Mary § Article of the Constitution and 16-103, 16-201, through 16-101 and 16-202. Arti land Rules alia, inter IV, 18, Constitution, § of that the provides, cle is the administrative head Judge Appeals Chief of the Court of system Judge may Judicial and that the Chief of State’s sit any judge Orphans’ of the Court to “assign except any except Orphans’ in court Court.” Article temporarily IV, Appeals adopt § that the Court of “shall requires also in regulations concerning practice procedure rules and of ... the other courts of this and the administration State____” addition, provision In the constitutional states that practice, proce- of all courts of the over authority State dure, subject to the rules and and administration “shall adopted by Appeals----” the Court of regulations 16-101, 16-103, 16-201, and 16-202 were Maryland Rules to the mandate adopted by Appeals pursuant the Court of IV, § of the contained Article Constitution. administrative au reiterates the broad Rule 16-101 and, with Appeals, of Judge of the Court thority of Chief courts, Circuit upon the Rule confers to the circuit regard ex Judges Administrative Judges County Administrative 16-101(a) authority. provides Rule supervisory tensive follows: part relevant as responsibility.
“Rule 16-101. Administrative Appeals. Judge Generally. of 1. a. Chief of Court respon- has overall Judge Appeals of the Court of Chief In for the administration of the courts of this State. sibility Judge: the Chief responsibility, the execution of that (D) other than an may assign any of court other court.” temporarily any Court to sit Orphans’ [*] [*] [*] 16-101(c), Judges, Administrative relating Rule to Circuit part: states in pertinent Judge. In Designation. 1.
“c. Circuit Administrative judicial each circuit there shall be a Circuit who shall be order and serve at the Judge, appointed In the pleasure Judge Appeals. of the Chief of the Court of the appointment, Judge absence such the Chief Judge. judicial circuit shall be the Circuit Administrative shall be Judge Duties. Each Circuit Administrative several generally responsible for the administration circuit, judicial within the to these Rules pursuant courts subject Judge of the of the Court direction Chief Each shall also Appeals. Circuit Administrative *12 County be for the of the Adminis- responsible supervision Judges judicial may perform trative within the circuit and the any County Judge.” of duties of a Administrative 16-101(d) authority upon County Rule confers supervisory part in relevant as follows Judges, providing Administrative added): (emphasis County Judge. Administrative Af- Designation.
“d. ter of the Circuit Adminis- considering recommendation may of the Court of Judge, Judge Appeals trative Chief any county for appoint judge of the Circuit Court County Judge Administrative of the Circuit Court for that county. County Judge A Administrative shall serve in that at the of the Chief of the of capacity pleasure Judge Court Appeals. Subject supervision
2. Duties. to the of the Circuit Ad- Judge, County Judge ministrative Administrative shall be responsible justice for the administration of and for the county. administration of the court for that The duties shall include:
(i) officers, all supervision judges, employees of of court, authority assign within including judges pursuant (Assignment the court to Rule 16-103 of Judges); (ii) supervision expeditious disposition of cases filed in the court and the control of the trial calendar and other calendars, including authority assign cases trial to Rule ... hearing pursuant 16-102 and Rule 16-202 ” Trial).... (Assignment of Actions for
[*] [*] [*] above-quoted provisions The of Rule 16-101 make it clear that assignment Judges hearings of Circuit for trials or entirely province County within the of Circuit and Administra- Judges, subject only supervisory authority tive to the of the Judge Appeals Chief of the Court of and the administrative adopted by Appeals. rules the Court of 16-103, Rule with specifically assignment deals of and it of judges, authority underscores Judges judicial assignments. (emphasis over The Rule states added): Assignment judges.
“Rule 16-103. Judge Appeals. a. Chief Court Chief of the order Appeals may by assign any Court court other than the one to temporarily sit assign- which he was or elected. The order of appointed
359 in and judge the court which the is to sit ment shall specify period the of the assignment. During the duration of the judge all assigned possess power shall assignment, is judge of court to which the authority judge of a assigned. Judge. Except assign- for
b. Circuit Administrative Rule, made to a of this the Circuit pursuant ments section judicial may of each circuits Judge Administrative of as judge to sit any judicial that circuit assign of of circuit, county judicial any in the in the Circuit Court of assign- for time. The any specified case cases or specific or or may orally writing. in ments be made Judge. Except County assign- for c. Administrative Rule, assignment this judges made ments pursuant more county for a which there is within the Circuit Court by County made than one shall be resident may orally The Judge. assignment made Administrative writing.” inor judicial assignments again matter court is
The of circuit 16-202(a). 16-201(c) 16-201(c), Rule with in dealt Rules motions, Admin- relating County states that hearings Judge assignment of provide istrative “shall dates,” 16-202(a), “Assignment and Rule entitled actions for trial,” Judge Administrative provides County “[t]he county supervise assignment each actions for shall trial....” above-quoted provisions unambiguously vest Circuit Judge Appeals,
the Chief of the Court Administra full Judges, County Judges, authority tive Administrative judges or in the courts of assign hearings for trials circuit no rule or of this Court which opinion this State. There is particular county authority in a of a vests circuit ignore assignment Judge or by override County of the by Judge of that or the Circuit Administrative county. circuit which includes
360
Instead of
the decisions
Circuit
supporting
Sotho-
ron
law in
Special Appeals,
and the Court of
the case
this
v.
Whitaker
Prince
directly
contrary.
Court
to the
In
(1986),
George’s County,
Md.
A.2d
the Circuit
*14
Judge
Administrative
for the Seventh
assigned
Judicial Circuit
certain
in the
Court
Prince
pending
George’s
cases
Circuit
for
judge
of
County
County.
the Circuit Court for Calvert
were,
George’s County
County
Both Prince
and Calvert
today,
are
in the Seventh
Circuit.4
cases
Judicial
The
involved
injunction against
bawdyhouses
using particular places as
at
alleged contempt of court.
defendants
trial chal-
Calvert
lenged
assignment
County
the
of a
Circuit Court
Judge
cases,
to hear Prince George’s County Circuit Court
Court,
the
appeal
and on
this
reiter-
defendants-appellants
challenge
ated their
to the
of
propriety
judicial assign-
ment.
In
rejecting
argument by the defendants-appel-
lants,
1202(b),
Court
upon
this
relied
Rule
which was the
similarly
predecessor
worded
to current Rule 16-103. The
(307
Whitaker
explained
Court’s
opinion
as follows
Md. at
8):
375-376,
“Md. Rule promulgated by this Court of the implementation power constitutional vested in it 18(a) § under to make governing rules the administration of of grants trial courts the State and unto a expressly circuit judge power assignment administrative of with circuit. judicial his Circuit Judge of ‘[T]he ... judicial may any each of the circuits assign judge of his judicial circuit judge sit as a of the Circuit Court of any circuit, in county judicial any in the case or specified cases any specified (emphasis or for supplied). time.’ Md. Rule 1202(b)(1). unambiguous As language suggests, 1202(b)(1) effect of Rule to provide is each circuit adminis- ..., trative under the overall of the Chief aegis of the of Appeals, powers assignment. Court broad of it by Whether or the Appeals directly Court circuit as its alter circuit, ego administrative this IV, 19, § Maryland See of the Article Constitution.
361 internal of the authority encompasses all facets power of our courts.” management State, 316-317, 300, v. Baltimore Radio Show 193 Md.
See also (1949). 497, A.2d 685, Penitentiary, Md. Md. v. Warden of Duffin (1964), relied on both the State by 597-598 202 A.2d not the Court support does Special Appeals, and the Court which language from decision. The Special Appeals’ Duffin i.e., of sentence that “a motion reduction upon, relied which the court disposed heard or otherwise should be added), sentencing refers to the (emphasis sentence” imposed sentencing judge. importantly, More court and not the Duffin order the matter assigning not involve an administrative did not judge. also did sentencing other than Duffin to the Maryland relating issue under the Rules involve assignment of cases. *15 376, 514 the Whitaker Md. at opinion,
As stated 307 8, “encom authority Judge A.2d at the of the Administrative management of our courts.” passes all facets the internal Judge clearly overruling the Consequently, Sothoron erred by Judge. the Administrative assignment OF THE OF APPEALS JUDGMENT COURT SPECIAL AND REMANDED THE COURT REVERSED CASE TO RE- OF TO SPECIAL APPEALS WITH DIRECTIONS DE- THE BY ON VERSE ORDERS JUDGE SOTHORON 30, 2005, THEREAFTER, RE- AND AND TO CEMBER MAND CASE TO THE COURT FOR PRINCE CIRCUIT COUNTY FOR PROCEEDINGS GEORGE’S FURTHER IN THIS WITH THIS OPINION. COSTS CONSISTENT IN THE APPEALS TO AND OF SPECIAL COURT COURT BY BE PAID PRINCE COUNTY. GEORGE’S MURPHY, J., Concurs. MURPHY, J.
Concurring Opinion by that, under the case at agree unique I the circumstances of bar, hearing is a motion for petitioner entitled to on his the by
modification of sentence that the must be held a than judge judge other who originally imposed the I agree compel contrary sentence. also that does not a Duffin however, conclusion. I do not agree, that Whitaker v. Prince County George’s supports proposition that current Rule Judge discretionary 16-103 vests Administrative with 4-345(e) that authority to direct a Rule motion be reassigned to a judge judge other than the who imposed original persuaded sentence.1 I am the reassignment that of a Rule 4- 345(e) (1) requires motion of the sentencing either consent (2) or judge,2 finding sentencing factual judge has become disabled or must be recused.
Maryland Rule 4-361
procedure
details
be followed
when it
necessary
for another
to substitute
office,
absence
whose
is due
“termination
... or
bar,
disability.”
other
In the
at
prosecutor
case
both the
(1)
petitioner’s
agreed
counsel
who imposed
necessary
be a
sentence would
witness at
the motion for
(2)
hearing,
modification
received the sentencing judge’s
permission
present
their concerns to the Administrative
Judge.
with
While
the benefit
it is clear that the
hindsight,
should have held an on-the-record hear-
State,
29,
1. As noted
this Court
v.
in Johnson
333 A.2d
Md.
(1975),
provisions
Maryland
the "Reduction of Sentence"
Rules
"virtually
provisions
are
identical” to the
then
in Rule
contained
35 of
the Federal
Rules
Criminal Procedure.
Id. at
The record also shows that Un- Judge. in the Administrative acquiesced the decision of circumstances, judge did not have the sentencing der these the case to himself order enter authority “reassign” 30, the December 2005 Order.
II Court, As the Circuit proceedings to the further that, in petitioner’s record shows MOTION FOR RULING SENTENCE, OF ON MOTION FOR RECONSIDERATION guilty plea it is was “based expressly petitioner’s asserted previous contemplated specific a sentence discussions that reconsideration[,]” upon “specifically, sentencing [the and that judge] sentence would be modified to agreed [petitioner’s] years, but suspend fifty pursuant sentence life all [petitioner], and the discussions between the State Court.” following The record also on March shows that at a transpired bench conference: [petitioner’s
THE COURT: As no doubt has told counsel] Strickland, you, guilty felony whenever one pleads Mr. indicated, murder, just degree charge, it is a first as sentence, therefore, it such judges carries life as number in terms of a myself cannot a numerical give requires that a himself or from a 3. This Canon "recuse herself knowledge proceeding extra-judicial ... has ... of a which proceeding[J” disputed evidentiary concerning fact *17 I sentence. What mean that is can a suspend portion we time, of but the life sentence in still remains effect. Now, THE COURT: I tell [petitioner’s yester- did counsel] day, prosecutor’s] presence, [petition- [the that assuming going filing, counsel] er’s is to be as he indicated to me yesterday, sentencing after today, assuming your plea is accepted, assuming we go sentencing today, forward with intent, if my procedure follows, which is that [petitioner’s will be on filing your counsel] behalf what we call a motion sentence, for reconsideration of which has to filed within be days of sentence. It mean that -will doesn’t act that motion within window, 90-day that to safeguard your but rights, that motion must filed within 90 days. be you understand, Do Mr. Strickland? Yes, sir.
[THE PETITIONER]: THE COURT: What I indicated to [petitioner’s is counsel] if you yourself that conduct a posture, well-mannered that say, you is to refrain getting from into disciplinary problems you to of speak incarcerated, while are the Court favorably would be inclined to consider that motion at some point time in the future.
And, let’s I suppose, hypothetically, imposed that a sentence today prison, murder, life in if felony under were prior then the convictions happen, jury has rendered as robbery with a deadly weapon would into the merge murder____ felony one, Court,
So that means if the impose did not life without I parole, prosecutor] and indicated to and [petitioner’s [the that in all I’m counsel] likelihood not to do that going today, I sentence, would be inclined to a life impose and I would be inclined favorably consider a for motion reconsideration I you just sentence do what indicated should do, inmate, that is conduct yourself as model then the Court to grant would inclined at in time in anoint future, determined, which yet to be by granting relief to the extent reconsideration sentence your motion by suspending your reconsider sentence that would years---- down to 50 life sentence your portion *18 will to yourself up at sentencing point this [T]he that, Mr. Strick- you case. Do understand myself this land? Yes, sir. PETITIONER]:
[THE you clearly to message ... have sent a [I] THE COURT: to a impose I’m not inclined at all bench that up here at the here, My theory in this sentence case. parole life without yester- [petitioner’s counsel] I told and prosecutor] as [the count, in to lead somebody pleads guilty day, is that to murder, they be entitled felony case then should this you that. Do understand doing some consideration that? Yes, sir. PETITIONER]:
[THE token, obviously I am But at the same what THE COURT: onus, your shoul- responsibility, is doing putting sentencing after through your to actions ders demonstrate of sentence. deserving of reconsideration you that are counsel transpired petitioner after the and following to trial tables: returned understanding ... my
THE it’s [M]r. COURT: Strickland between really any plea bargaining [the ... that isn’t there State, coun- representing [petitioner’s prosecutor], sel], agreed to set you, they wherein have representing being that’s not drop charges certain because sentence or to done here. a understanding going is to make my
It’s that State may gam- run the That recommendation recommendation. whatever, life parole [the ut of or but life without he the Court what thinks is free tell prosecutor] to be. going sentence appropriate tell what he thinks is free to me counsel] [Petitioner’s would be. appropriate sentence I you
As told at the bench a few moments ago, whenever one pleads guilty degree felony to first murder ... it carries that, life sentence. You understand Mr. Strickland? Yes, I do. [THE PETITIONER]: extent, THE COURT: And the Court is bound to impose a life sentence.
Now, suspend the Court can of that life portion sentence. Do understand that? do, I sir.
[THE PETITIONER]: I you, THE as did COURT: And indicate to and this is off upon based conversations had the record with [petition- prosecutor] er’s he yesterday counsel] [the when en- chambers, my [petitioner’s tered it made clear counsel] to me that if the court accepts your plea guilty today proceeds sentencing, imposed, and the life sentence is *19 mandatory, life, whether it’s it’s straight whether a whatev- be, it may er is to [petitioner’s going request counsel] Court reconsider sentence in the your future.
Myself being sentencing ... I one would be the to grant decide whether or not to for that motion reconsidera- tion of sentence. you Do understand that? Yes, I do.
[THE PETITIONER]: THE I your COURT: cannot increase sentence. I could your your decrease sentence or is. In keep sentence as words, unchanged. you other Do understand that? Yes. [THE PETITIONER]: clear, if, THE is I you COURT: So the record told that indeed, sentence, your I your reconsider case or Mr. Strick- land, doing your the reason for so would be depending upon you you conduct while are incarcerated. Do understand that? Yes, I do.
[THE PETITIONER]: THE your COURT: And the Court could reconsider sen- any extent, say, to that if I hypothetically, tence is to do years, I could suspend all but to ahead and go wanted that? youDo understand that. Yes, I do.
[THE PETITIONER]: immediately prosecutor before the transpired following that constituted basis of facts recited the statement plea: said, understanding that the full With that is
THE COURT: recom- going the State is to had between what you of what recommend mend, may counsel] trial [petitioner’s what may do in the future? behalf, the Court your and what Yes, it is. [PETITIONER]: any has additional Nobody promised you
THE COURT: reward, any kind of or inducements offers promises, for the other than what stated you, of statements to type guilty? to get plead record No, they haven’t. [PETITIONER]: it is difficult quoted colloquy, of the above the basis On agreed that he would sentencing judge that hypothesize at- petitioner even ultimately modify petitioner’s sentence attempted officer murder corrections’ tempted and/or (1) however, did clear, sentencing It escape. prosecutor with the “off record” conversation have an (2) counsel, not that either the request did petitioner’s make “on the record” or counsel prosecutor petitioner’s result “disciplinary problems” to what would statement as entitlement to modification. petitioner’s the forfeiture of circumstances, require I would expressly these Under *20 be made on remand. following determinations per- it must first determine whether is The Circuit Court that petitioner’s of the evidence preponderance suaded that the sentence would plea upon agreement was based stages, being with modification two actually imposed If record. regardless petitioner’s institutional imposed the burden petitioner successfully persuasion can shoulder issue, is entitled enforcement of petitioner on that agreement. actual
If it persuaded parties is not agreed to a down- stream regardless modification of petitioner’s institutional rec- ord, the Circuit Court must it determine whether is persuaded by a preponderance of the petitioner evidence that sub- has stantially complied with the on-the-record statement of condi- imposed by tions the sentencing judge on March If 1998. petitioner successfully can shoulder the burden of persuasion issue, on that the petitioner is entitled to the requested modification.
If it not persuaded that petitioner substantially has complied with the imposed by conditions the sentencing judge, the Circuit Court shall exercise its in deciding discretion issue of whether extent to which petitioner’s motion and/or granted. modification should be
965A.2d 900 Dion G. TUCKER v. Maryland. STATE Sept.Term, 35No. 2008. Appeals Maryland. Court of Feb.