Opinion
1267-21
08-04-2022
CORNELIUS H. HARCUM v. STATE OF MARYLAND
Circuit Court for Howard County Case No. C-13-CR-19-000155
Wells, C.J., Friedman, [*] Wright, Alexander, Jr. (Senior Judge, Specially Assigned) JJ.
OPINION [**]
Wells, C.J.
Because of certain previous convictions, the Circuit Court for Howard County gave Cornelius Harcum consecutive mandatory sentences after he pled guilty to possession of a firearm by a convicted felon and first-degree assault. Later, under Maryland Rule 4-345(a) Harcum moved the circuit court to correct what he perceived was an illegal sentence. The circuit court denied that request and Harcum timely appealed. He presents three questions for our review, which we have slightly rephrased:
1. Is Harcum's sentence for Count Five, possession of a firearm after having been convicted of a crime of violence, illegal because
a. the State failed to provide advanced written notice of its intent to seek a mandatory minimum sentence pursuant to Md. Code, Pub. Safety Art. § 5-133(c)(3)(ii); and
b. the court was not statutorily authorized to impose a "no parole" condition under Md. Code, Pub. Safety Art. § 5-133(c)(3)?
2. Is Harcum's sentence for Count Two, first-degree assault, illegal because the State's subsequent offender notice erroneously stated Harcum's past conviction for accessory after the fact to robbery as a predicate crime of violence under Md. Code, Crim. Law § 14-101(a), and therefore overstated his mandatory sentencing exposure?
Regarding Harcum's challenges to his sentence for Count Five, possession of a firearm after having been convicted of a crime of violence, we do not reach the merits of the first question's first sub-issue, because, as we will explain, a claim of defective notice is not cognizable on a motion to correct illegal sentence. We answer the first question's second sub-issue in the negative, holding that the court was indeed statutorily authorized to impose the "no parole" condition.
As for Harcum's challenges to his sentence for Count Two, first-degree assault, we hold any error made by the State in citing Harcum's accessory conviction as a predicate crime of violence did not render his sentence illegal. Therefore, we affirm.
Factual &Procedural Background
The State charged Harcum with multiple counts including first-degree assault in violation of the Criminal Law Article ("CR") § 3-202 (Count Two), and felon in possession of a firearm in violation of the Public Safety Article ("PS") § 5-133(c) (Count Five), after he was identified in video surveillance as having fired multiple shots into another person's vehicle in a parking lot.
On March 29, 2019, the State filed a Subsequent Offender Notice informing Harcum that because he had two prior convictions for crimes of violence (citing a 2001 conviction for robbery and a 2008 conviction for being an accessory after the fact to robbery), a conviction in the instant case on Count Two, first-degree assault, would be his third for a violent crime, and thus would result in a mandatory minimum sentence of 25 years without parole under CR § 14-101(c). This notice did not mention a recommended sentence for Count Five. On April 5, 2019, the State issued a written plea offer to Harcum recommending a sentence of 40 years suspending all but 25 years, for a guilty plea to Counts Two and Five. The offer stated: "Pursuant to enhanced penalties served on [Harcum] March 29, 2019, and statutory mandatory minimums, the active incarceration period of twenty-five (25) years is to be served without the possibility of parole." Six days later, on April 11, the State issued a written binding plea offer again recommending the same 40-year sentence with all but 25 years suspended for Counts Two and Five, but this time, stated "Pursuant to enhanced penalties served on [Harcum] March 29, 2019, and statutory mandatory minimums, the first fifteen (15) years of active incarceration are to be served without the possibility of parole." (Emphasis added).
Trial was set for August 19, 2019. However, on April 26, the court granted the State and Harcum's joint request for a status conference to be held on May 15, 2019. By that day, the parties had reached a plea agreement and Harcum pleaded guilty to Counts Two and Five. On Count Two, the first-degree assault charge, Harcum received an enhanced sentence of 25 years, with all but 15 years suspended and with the first 10 years to be served without parole. On Count Five, the felon in possession of a firearm charge, Harcum was sentenced to a consecutive term of 15 years with all but 10 years suspended, and no parole for the first five years. In sum, Harcum was sentenced to 40 years with all but 25 suspended, and the first fifteen years without parole, as recommended in the State's April 11 binding plea offer.
When the State presented the court its plea offer on May 15 and emphasized that "an essential element" was that the first ten years of the sentence for count two would be without parole, the court asked "As a second conviction for a crime of violence?" The State responded, "That's correct." But later, in presenting its Statement of Facts, the State said:
As Your Honor's aware, we did submit the enhanced penalties in this case. This is [Harcum's] third crime of violence. Which on any conviction following a trial, would have made him eligible for 25 years without the eligibility of parole. He has two prior robberies, and accessory to robbery, and three prior assault convictions. As we discussed in Chambers, and I believe in Court just now, [Harcum] does have the benefit of decay.The State then spoke about Harcum's age and that at least ten years had passed since his most recent crime of violence. It is unclear when the parties and the court ascertained whether Harcum was a second- or third-time offender, or if the State recommended a lesser mandatory minimum sentence simply because of Harcum's age and the time decay since his latest crime of violence. We do not see any objections by Harcum to either categorization of his offender status (second- or third-time offender) before the circuit court. Regardless, his ultimate sentence for Count Two was consistent with the mandatory sentence for a second-time offender under CR § 14-101(d)-not a third-time offender.
Harcum filed a motion to correct illegal sentence on May 3, 2021, alleging both sentences were illegal as it related to their enhancements. The court held a hearing September 15, 2021 and ultimately denied Harcum's request. Harcum timely appealed.
Standard of Review
"Maryland Rule 4-345(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." Chaney v. State, 397 Md. 460, 466 (2007) (internal quotation marks omitted). Here, Harcum never objected to the imposition of either sentence enhancement, and so in order to secure review of his challenges to those sentences, he must establish that each sentence was illegal. Bailey v. State, 464 Md. 685, 696 (2019).
"The legality of a sentence under Maryland Rule 4-345(a) is a question of law reviewed de novo." Id. (citing State v. Crawley, 455 Md. 52, 66 (2017)). "In construing the Maryland Rules, 'we apply the same principles of construction employed in interpreting statutes.'" Id. (quoting Lee v. State, 332 Md. 654, 658 (1993)).
Analysis
I. Challenges to Harcum's Sentence for Count Five
Lack of Advanced Written Notice
A. Parties' Contentions
Harcum argues that since the circuit court found the State failed to provide the advanced written notice of its intent to seek a mandatory minimum sentence for Count Five pursuant to PS § 5-133(c)(3)(ii), the court lacked the authority to impose a mandatory minimum sentence. The State responds that because Harcum's notice claim is a procedural one, it is not cognizable as a claim of sentence illegality.
B. Analysis
As discussed, Harcum was charged with felony possession of a firearm under PS § 5-133(c). Pursuant to § 5-133(c)(3), applicable in this case, "if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction," the court may impose the mandatory minimum sentence only if the State "notifies the [defendant] in writing at least 30 days before trial of the State's intention to seek the mandatory minimum sentence." § 5-133(c)(3)(ii). While Harcum is correct that the circuit court found "the State did not in fact produce a written notice," the court ultimately concluded that either Harcum waived the written notice requirement because he "clearly understood the nature of the mandatory minimum of § 5-133," or that the state's failure to provide written notice was a procedural defect at worst.
We do not reach the merits of this question. The Court of Appeals has held, in no uncertain terms, that errors in the State's notice of sentence enhancements are procedural and, therefore, not cognizable on a motion to correct illegal sentence. Bailey, 464 Md. at 696-97 ("The State's imperfect compliance [with the requirement to provide notice of sentence enhancement] created a procedural deficiency in the sentence but not a sentence in which the circuit court did not have the statutory power to impose."); see also Mack v. State, 244 Md.App. 549, 580-85 (2020) ("The lack of timely notice, or of any notice at all, therefore, is a procedural flaw in the sentencing process."). Harcum's only response to this argument is that the notice of sentence enhancement considered in Bailey was imposed by rule (specifically, Rule 4-245(b)), whereas the enhancement in his case regarding Count Five was imposed by statute (specifically, PS § 5-133(c)(3)). We hold that this is a distinction without a difference.
The Maryland Constitution gives concurrent authority to the Court of Appeals and the General Assembly to adopt rules of practice and procedure that govern Maryland courts:
The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.MD. CONST., ART. IV, § 18(A) (EMPHASIS ADDED); see generally Murphy v. Liberty Mut. Ins. Co., 478 Md. 333, 375-83 (2022) (holding that statutes of limitation are procedural and thus fall within the Court's power to regulate "practice and procedure" and "the administration of _ courts"). The clear import of this provision is that rules of practice and procedure in courts and statutes governing practice and procedure in courts are entitled to precisely the same weight and effect. Given this, we hold that the State's imperfect compliance with the requirement to provide notice of sentence enhancements created by rule is procedural only and, therefore, not cognizable on a motion to correct illegal sentence.
For the sake of clarity, we add that had Harcum objected to the lack of notice before the sentencing court, that issue would be directly appealable. On a similar note, we also briefly explain why we do not perform harmless error review, in contrast to the Court of Appeals in Bailey where that defendant also did not preserve such an objection. As the Court explained, a procedural deficiency, such as one regarding notice, does not give rise to an illegal sentence, and thus is subject to preservation requirements. 464 Md. at 693. Where the defendant in Bailey did not object to the sentence enhancement below, the Court of Appeals held that "[r]eview pursuant to Maryland Rule 4-345(a) is not appropriate." Id. at 697. However, because the Court felt it would be helpful to trial courts in future cases dealing with (presumably, preserved) notice defects, it nonetheless chose to exercise its discretion to review the issue on its merits, and then for harmless error. Because Bailey has now provided that example and the case law on procedural defects is established, we need not reach the merits here.
Sentencing Court's Authority to Impose a No-parole condition under PS § 5-133(c)(3)
A. Parties' Contentions
Harcum contends that PS § 5-133(c)(3), the provision under which he was sentenced for Count Five, does not expressly authorize the court to impose a no-parole condition, unlike PS § 5-133(c)(2). At most, he says, (c)(3) authorizes the court to impose a mandatory minimum five-year sentence if the notice requirement is met-but not a no-parole condition. And, Harcum adds, because it is at best ambiguous whether (c)(3) authorizes a no-parole condition, the Rule of Lenity requires that such ambiguity be resolved in Harcum's favor.
The State counters that § 5-133(c)(3) gives the sentencing court the discretion to sentence an offender to the same sentence-"the mandatory minimum sentence"-that must be imposed under paragraph (c)(2). The State continues, arguing that paragraph (c)(3) necessarily refers to the mandatory minimum sentence as described in (c)(2)-five years without parole, as made clear by (c)(2)(iii): a defendant "is not eligible for parole during the mandatory minimum sentence"-because there is no specific definition of "mandatory minimum sentence" in the statute. Finally, the State avers, if the requisite notice under (c)(3) was not given, the court would still be able to impose a sentence of less than five years, up to a max of 15 years, under (c)(2), and it would still have the discretion not to suspend any portion of that sentence. Thus, the only sentencing authority a court lacks when it is not imposing "the mandatory minimum sentence" (either by exercise of its discretion or because the state failed to give the requisite notice), and gains when it is imposing "the mandatory minimum sentence," is the authority to require that the five-year mandatory minimum sentence be served without parole. Any other interpretation would render subsection (c)(3)'s grant of discretion whether to impose "the mandatory minimum sentence" nugatory.
B. Analysis
Public Safety § 5-133(c), in relevant part, provides:
(1) A person may not possess a regulated firearm if the person was previously convicted of: (i) a crime of violence; [...]
(2)(i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.
(iii) [...] the person is not eligible for parole during the mandatory minimum sentence.
(3) At the time of the commission of the offense, if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction under paragraph (1)(i) [...] of this subsection, including all imprisonment, mandatory supervision, probation, and parole:
(i) the imposition of the mandatory minimum sentence is within the discretion of the court; and
(ii) the mandatory minimum sentence may not be imposed unless the State's Attorney notifies the person in writing at least 30 days before trial of the State's intention to seek the mandatory minimum sentence.PS § 5-133(c)(1)-(3).
As the Court of Appeals has long recognized:
The cardinal rule of statutory construction is to ascertain and effectuate the intent of the General Assembly.
As this Court has explained, to determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning. We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant. When the statutory language is clear, we need not look beyond the statutory language to determine the General Assembly's intent. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute's meaning. If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends.Rogers v State, 468 Md. 1, 13-14 (2020), cert. denied, 141 S.Ct. 1052, 208 L.Ed.2d 521 (2021) (quoting Sabisch v. Moyer, 466 Md. 327, 350 (2019)). Accordingly, our analysis begins with the plain language of § 5-133(c).
Based on our reading of the statute, we agree with the State's interpretation and conclude that (c)(3) need not contain authorization for a no-parole condition separate from that already contained in (c)(2). The different paragraphs of subsection (c) are to be read together. While paragraph (c)(2) establishes the standard penalty for a violation of paragraph (c)(1), the penalty is restricted by paragraph (c)(3). PS § 5-133(c)(2)(i) ("Subject to paragraph (3) of this subsection"); see also Oglesby v. State, 441 Md. 673, 684 (2015) ("The sentencing provision [PS § 5-133(c)(2)] is qualified in paragraph (3) of the subsection."). Specifically, if more than five years have passed since the defendant served his sentence for the predicate violent crime, the State must also provide requisite notice of its intent to seek the mandatory minimum sentence in order for the court to impose it. In short, the penalty under (c)(2) is restricted, but not replaced, by the conditions enumerated in (c)(3). We can conceive of no point in stating, "subject to paragraph (3)[,]" in (c)(2), if none of (c)(2)'s conditions-such as the court's authority to impose a no-suspension and no-parole condition-applied in cases where (c)(3) is also in play.
Finding no ambiguity on this point, our analysis ends here. We hold that the sentencing court did have statutory authority as expressly stated in PS § 5-133(c)(2) to sentence Harcum-even with the applicability of PS § 5-133(c)(3) to his remote conviction-to a no-parole sentence.
II. Challenges to Harcum's Sentence for Count Two
Alleged Misstatement of Predicate Conviction and Resulting Overstatement of Sentencing Exposure
A. Parties' Contentions
Harcum argues that the State's Subsequent Offender Notice for Count Two improperly notified him that upon conviction of Count Two, the first-degree assault charge, he would be a third-time offender, when in fact he would only be a second-time violent crime offender, and therefore overstated his mandatory sentencing exposure. The State counters this alleged error is like the previous one-a procedural defect and therefore not cognizable on a motion to correct illegal sentence. The State further asserts that to the extent Harcum is alleging that deficient notice improperly induced his guilty plea, that is a claim he may raise on postconviction and not on a motion to correct an illegal sentence. Finally, the State points out that because Harcum was sentenced as a second-time offender and not a third-time offender, and he does not contest the other conviction cited by the State as a predicate violent crime-a 2001 robbery conviction-his sentence for Count Two is legal and the issue of whether his accessory conviction is a predicate offense is of no matter.
B. Analysis
Criminal Law § 14-101 regards "Mandatory sentences for crimes of violence." Subsection (c) provides a mandatory minimum sentence of 25 years without parole upon a person's third conviction of a crime of violence. § 14-101(c). Subsection (d) provides a mandatory minimum sentence of ten years without parole upon a person's second conviction of a crime of violence. § 14-101(d). Subsection (e) states that "[i]f the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender." § 14-101(e). Maryland Rule 4-245(c) provides, in relevant part:
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.
The parties do not dispute that Harcum's previous conviction for robbery, and his charge in this case for first-degree assault, are considered "crimes of violence" under CR § 14-101(a). They also do not dispute that the sentence Harcum ultimately received was consistent with the mandatory minimum for a second-time offender under CR § 14-101(d), rather than a third-time offender under CR § 14-101(c) (i.e., only ten years of his 25-year sentence are to be served without parole, versus the 25 years without parole that would accompany the mandatory minimum sentence for a third-time offender), and that he could be properly sentenced as a second-time offender. Where the parties disagree is as to (1) whether Harcum's previous conviction for accessory after the fact to robbery constitutes a predicate violent crime, and (2), if it does not, whether its inclusion as a predicate conviction in the State's notice is a defect that renders Harcum's sentence illegal, when his sentence as a second-time offender ultimately did not require the accessory conviction.
We find it unnecessary to resolve the first issue in this case, as we answer the second in the negative: We conclude that the potential misstatement of a predicate offense and resulting overstatement of sentencing exposure in the State's notice does not render Harcum's sentence illegal. First, the content the State is required to provide by the plain language of the applicable notice provision-Rule 4-245(c)-is the "alleged prior conviction" on which the State is basing its pursuit of a mandatory penalty. (Emphasis added). Here, the State indisputably met this bar by citing Harcum's prior robbery and accessory convictions as the convictions it alleged were prior violent crimes and on which it was basing its pursuit of a sentence enhancement. Viewed another way, the State met this bar by providing Harcum with the prior conviction that would ultimately be the basis of the sentence enhancement he received (robbery).
The use of "alleged" indicates the drafters of the rule contemplated the possibility that the State would include in its notice prior convictions that the court ultimately would not find to be requisite crimes of violence. Rule 4-245(e) also supports this implication: "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." Noticeably absent from Rule 4-245, however, is any provision calling for the issuing of new or revised notice from the State, or reference to the inability of the court to impose a lesser mandatory penalty, in the event the court determines an alleged prior conviction was erroneously named in the initial notice.
We note that the only 'recourse' the provision contemplates due to an error of the State in providing notice is if the State "fails to give timely notice"-then, "the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement." Md. Rule 4-245(c) (emphasis added). This is not equivalent to saying the court must postpone sentencing (so the State can correct its notice) if the State fails in its notice to avoid citing past convictions that the court does not deem crimes of violence.
Our survey of the case law supports this conclusion. In Creighton v. State, the State initially notified Creighton it would seek a 25-year sentence with a limited possibility of parole based on his conviction as a third-time offender, but then filed and served an amended notice on the day of sentencing informing Creighton that it would instead be seeking a mandatory life sentence without the possibility of parole based on his conviction as a fourth-time offender. 70 Md.App. 124, 132-34 (1987). The court ultimately found that Creighton had only two predicate convictions and sentenced him to the lesser penalty of 25 years. Id. at 134. Creighton appealed, alleging the State had waived its right to seek the lesser penalty when it amended its notice to say it was seeking a life sentence. Id. at 127. This Court rejected that challenge and affirmed the sentence. Id. at 146-47. In reaching this result, we heeded our previous observation in Davis v. State, 56 Md.App. 695, 701 (1983), cert. denied, 299 Md. 425 (1984), that "[t]he undergirding purpose of the notice requirement is not to erect an obstacle course for the State but to give the defendant a fair chance to prepare a defense against the enhanced punishment danger." Creighton, 70 Md.App. at 146. In Davis, the defendant did not demonstrate how the State's amended notice had caused him to prepare a defense that would be different (i.e., less adequate) than that for the 25-year sentence. 56 Md.App. at 702. Seeing that "the animating purpose of the notice requirement ha[d] been well served," this Court said it was "not going to permit ourselves to be distracted or 'hung up' by strained formalities." Id.
Notably, we find no cases where the State's notice was found to erroneously rely upon certain previous convictions and the State was then required to serve new notice with its revised sentencing intent not relying on those convictions.
Taking the Creighton and Davis holdings together with the absence of any other 'recourse' under Rule 4-245(e) (or elsewhere in the rule) if the court determines the defendant is in fact not "a subsequent offender as specified in the notice of the State's Attorney," we conclude that even if the State errs in labeling a past conviction a predicate crime of violence in its notice and thereby overstates sentencing exposure, as long as the court ultimately imposes a sentence that is valid on the convictions accepted as predicates, and the defendant does not demonstrate how the preparation of his defense has been prejudiced, that sentence will not be inherently illegal by virtue of the misstatement. Because there is no dispute that Harcum's sentence as a second-time offender was supported by his previous robbery conviction alone, and because he did not demonstrate how he might have prepared or pled differently based on notice that only listed his robbery conviction as a predicate crime, we hold that even if the State was incorrect in classifying his accessory conviction as a predicate crime (which we need not decide today), that error did not render his sentence on Count Two illegal.
Finally, we briefly address Harcum's claim that the State's misstatement of predicate convictions and overstatement of sentencing exposure "runs the risk of improperly inducing a plea." Harcum's only authority for this argument is his reference to the court's statement in Bailey that "a procedural defect could implicate due process." 464 Md. at 702 n.4. There, the Court elaborated:
By way of example, if a defendant receives the notice the day before trial, the defendant may not have sufficient time to determine how to proceed. However, in this instance, Mr. Bailey had sufficient notice to determine how to proceed with his case and we do not find a due process violation in this matter.
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.Id. Especially in light of Bailey's explanation, we do not find due process was implicated here. The facts presented in Harcum's case do not indicate he learned of the State's intent with insufficient time to determine how to proceed or to investigate the predicate convictions alleged. As Harcum was sentenced only as a second-time offender on the basis of the robbery conviction-which he does not challenge-we cannot surmise, and he does not tell us, how he might have prepared or pled differently if the notice had only referenced that conviction and the corresponding lesser sentence enhancement. See Davis, 56 Md.App. at 702. We can find no other authority in our case law for this position as it relates to the notice requirement of Rule 4-245(c).
As discussed earlier, the State informed Harcum it was pursuing the mandatory minimum penalty for a third-time offender, listing Harcum's prior convictions for robbery and accessory after the fact to robbery, on March 29, 2019. At that time, trial was set for almost five months later, August 19, 2019. However, on April 24, 2019 Harcum joined the State in requesting a status conference, which was held on May 15, 2019 and during which he pled guilty. Critically, this was a month and a half after Harcum was informed of the State's intent to seek the mandatory minimum penalty and of his prior convictions on which the State's notice was based.
Having found none of Harcum's challenges availing, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. APPELLANT TO PAY THE COSTS.
[*]After this case was submitted, Friedman, J. discovered a conflict that disqualified him from consideration of this appeal. Consequently, the issues presented were decided by the remaining members of the panel. MD. RULE 18-102.11.
[**]This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. MD. RULE 1-104.