Daquan Tyler appeals from the denial, by the Circuit Court for Montgomery County, of his motion to correct an illegal sentence. For the reasons to be discussed, we shall remand the case with instructions to amend the commitment record.

BACKGROUND

In 2013, a jury found Mr. Tyler guilty of three counts of armed robbery, three counts of first-degree assault, and three counts of use of a handgun in the commission of a crime of violence (Case No. 122557C), as well as solicitation to intimidate a witness (Case No. 123131C). The sentencing judge pronounced sentence as follows:

[O]n count one, armed robbery, in criminal 122557, I sentence you to 16 years in jail. And I'll suspend eight years of that sentence. Count two, first degree assault, with the same victim, generally suspended sentence. I suppose that would merge anyway, for sentencing purposes, into the armed robbery. Count three, use of handgun in a crime of violence, five years mandatory sentence on count three in that case.

On count four, which brings us back to the second victim in 122557, armed robbery, 16 years, suspend eight years. That is consecutive to count one Count five [first-degree assault], generally suspended Count six [use of a handgun in the commission of a crime of violence], five years, concurrent to count three Count seven, the third armed robbery victim, 16 years, suspend eight, consecutive to counts one and four Count eight [first-degree assault], generally suspended Count nine [use of a handgun in the commission of a crime of violence], five years, concur rent with Counts three and six. So I am running the five-year mandatory handgun violations concurrent.

In 123131, criminal solicitation for witness intimidation, three years, consecutive to the prior sentence in 122557. That's for soliciting somebody to intimidate a witness. That requires extra time on top of the sentence in the other case.

I'm going to place you on five years' probation upon your release. You'll have the suspended time hanging over your head during the five years of probation and the standard conditions of probation.

Prior to the hearing's conclusion, the prosecutor asked the judge for clarification regarding the mandatory five-year sentence on Count 3, asking "would that be concurrent to the other executed time or consecutive?" The judge replied: "Count three is consecutive to the other executed time, but counts six and nine are concurrent to count three." Defense counsel then inquired about the start date of the sentence and, after confirming that Mr. Tyler had been in custody since February 15, 2013, the court announced that the sentence would run beginning February 15, 2013.

The docket entry reflects that, in Case No. 122557C, the sentences for both Count 3 (use of a handgun) and Count 4 (armed robbery of victim two) were run consecutively to the sentence for Count 1 (armed robbery of victim one), and that Count 7 (armed robbery of victim three) was run consecutively to Counts 1 and 4. The commitment record that was issued in that case, dated September 6, 2013, reflected the same. Although the commitment record reflected that Mr. Tyler received a split sentence, it did not state the total term imposed. It simply noted that "[a]ll but 29 years is/are suspended" and the "total time to be served is 29 years[.]" The commitment record in Case No. 123131C, also issued on September 6, 2013, reflects a sentence of three years for solicitation to intimidate and that it runs consecutive "to the sentence imposed in Case No. 122557."

Several months later, on January 30, 2014, the court convened a hearing after the Division of Correction apparently notified the court of an error in the commitment record. The record before us does not include a transcript from that hearing. Mr. Tyler's appellate brief, however, includes a letter from the sentencing judge responding to an inquiry from a Commitment Records Specialist with the Hagerstown Regional Commitment Office regarding the sentence in Case No. 122557C. The letter, dated February 11, 2014, states:

The docket entry from January 30, 2014, reflects that the court directed the State "to file memorandum concerning sentence by February 24, 2014 and defense counsel to respond by March 10, 2014." Assuming that the parties complied with that order, which is not indicated by the docket entries, neither a memo by the State nor a response by defense counsel are in the record before us.

This letter is in response to the September 19, 2013 and November 4, 2013 letters you sent regarding Daquan Tyler's sentence. At the sentencing on August 29, 2013 my intention was to sentence Mr. Tyler to a total term of 29 years, however, I misspoke and made two counts consecutive to count one.^[ After speaking with the attorneys in this case, there is an agreement that the commitment order, as it stands currently giving Mr. Tyler 24 years, is accurate and cannot be changed. Therefore, there is no need for an amended commitment order. Please note, however, that in Case No. 123131C, Mr. Tyler received a 3 year sentence consecutive to the sentence in this case.

(Emphasis added.)

It appears that the sentencing judge had intended to run the first handgun sentence (Count 3) consecutive to the armed robbery of victim one (Count 1), and the remaining armed robbery convictions consecutive thereto, that is, 16 + 5 + 16 + 16 (with eight years suspended from each armed robbery sentence). Instead, the court ran Count 4 (armed robbery of victim two) consecutive to Count 1 (instead of consecutive to Count 3), thereby effectively running Count 4 concurrent with Count 3.

This letter comports with our view of the sentences that were pronounced by the sentencing judge with respect to Case No. 122557C:

16count 1 + 5count 3 + 16count 7 = 48 years total count4

+16count4

8count 1 + 5count 3

8count 4 + 8count 7 = 24 years executed

5count 6 24 years suspended

5count 9

Given that the commitment record in Case No. 122557C, however, indicated the "total time to be served" in that case was 29 years (which did not include the three years for the solicitation in Case No. 123131C), we disagree with the judge's statement that the commitment record did not require an amendment.

But in any event, on April 3, 2014, the court entered an order directing that an amended commitment record be issued. The order set forth the sentences imposed in both cases, which generally comports with the sentences announced at the 2013 sentencing hearing. The order also stated that Mr. Tyler's "total sentence be 56 years, 24 years executed time and 32 years suspended time with 5 years['] supervised probation." This calculation of the total term in both cases and the division of executed and suspended time appears to be an error as in our view it should have been 51 (48 + 3) years total for both cases, with 27 (24 + 3) years to serve, and 24 years suspended. We fail to discern how the court determined that 32 years were suspended from the total sentence when the only suspended time was eight years from each of the three 16-year armed robbery sentences: 8 + 8 + 8 = 24 years of suspended time.

The order stated that the 5-year sentence for Count 3 (use of a handgun) "be consecutive to the sentence in Count 1 (armed robbery), and concurrent to Counts 4 and 7." That appears to be a misstatement because Count 3 could not be concurrent to both Count 4 and Count 7 because in both the original pronouncement of sentence and in the April 3, 2014 order Count 7 was run consecutive to Counts 1 and 4.

The next day, April 4, 2014, an amended commitment record was issued in Case No. 122557C which reflected that, "[a]ll but 29 years is/are suspended" and the "total time to be served is 29 years." Again, this appears to be an error as our calculation of the executed time in Case No. 122557C is 24 years. Moreover, the original commitment record indicated that Mr. Tyler was awarded 195 days credit and that the sentence "commences on 02/15/2013 which includes all of the days credit for time served." In contrast, the amended commitment record indicates that Mr. Tyler has not been awarded any credit for time served pre-trial and that the "sentence commences on 08/29/2013." No one, however, appears to have challenged the April 3^rd Order or the amended commitment record.

Then in January 2020, Mr. Tyler, representing himself, filed a motion to correct an illegal sentence in both cases. He asserted that the court's pronouncement of sentence at the August 2013 sentencing hearing was ambiguous in regard to how the sentences were to be run in Case No. 122557C. He also maintained that the court's running of the 3-year sentence for solicitation consecutive to the sentence in Case No. 122557C was also ambiguous because the court announced that it would run "consecutive to the prior sentence in 122557[, ]" and the last sentence announced in that case was for Count 9, which runs concurrently with the other handgun sentences. In other words, it appears that Mr. Tyler maintained that the 3-year solicitation sentence should not run consecutively to the total sentence imposed in Case No. 122557C, but instead consecutively to the handgun sentence for Count 9. He also argued that the first-degree assault convictions should have merged with the armed robbery offenses and, therefore, the court erred in "generally suspending" sentences for those convictions, claiming that a "suspended sentence is still a sentence." And he maintained that he was entitled to the 195 days credit for time served pre-trial. Finally, he argued that he was "resentenced" pursuant to the April 3, 2014 order, but deprived of his right to allocute or present mitigating evidence.

The State filed an opposition, noting that on August 29, 2013, the court sentenced Mr. Tyler "to an aggregate sentence of 29 years' incarceration" in Case No. 122557C.The State asserted that "the transcript and docket entries reflect the Court's clear intent as to what sentences run consecutive and concurrent with one another" and the "Court could not have conveyed its intent with any more clarity."

We presume the State meant that the court sentenced Mr. Tyler to an aggregate term of 29 years of executed incarceration.

By order dated March 23, 2021 (entered on the docket on April 2, 2021), the court summarily denied Mr. Tyler's motion to correct his sentences. Mr. Tyler appeals that decision.

DISCUSSION

"When there is a conflict between the transcript and the commitment record, unless it is shown that the transcript is in error, the transcript prevails." Lawson v. State, 187 Md.App. 101, 108 (2009) (quotation marks and citation omitted). Accordingly, we focus on the transcript of the sentencing hearing held on August 29, 2013. Although Mr. Tyler characterizes the April 3, 2014 order as a "resentencing," in our view it was merely an attempt to clarify or correct the commitment record.

We hold that the court's pronouncement of sentence at the August 29, 2013 sentencing hearing was not ambiguous. Mr. Tyler was sentenced to a total term of 48 years in Case No. 122557C (16 years for each of the armed robbery convictions) and a consecutively run term of three years in Case No. 123131C, for a grand total in both cases of 51 years, with all but 27 years suspended. As noted, in Case No. 122557C, by announcing that Count 4 (armed robbery of victim 2) runs consecutive to Count 1 (instead of consecutive to Count 3), the court effectively ran Count 4 concurrently with Count 3. See footnote 2 and our illustration on page 4. The court seemed to acknowledge that fact in its February 2014 letter to the Commitment Records Specialist.

We see no ambiguity with respect to the 3-year sentence for the solicitation offense. The court announced that it was to run "consecutive to the prior sentence in 122557." When pronouncing that sentence, the court explained that the solicitation offense "requires extra time on top of the sentence in the other case." (Emphasis added.) When referring to the "sentence in the other case[, ]" the court clearly meant the total term for all the counts imposed in Case No. 122557C.

We agree with Mr. Tyler that his first-degree assault convictions may have merged for sentencing purposes with the armed robbery convictions. But the court recognized that fact and announced, for each first-degree assault count, that it was "generally suspended." In other words, no sentences were imposed for the first-degree assault convictions. Although the "generally suspended" language may have been unnecessary verbiage, it did not create any illegality in the sentence.

We do agree with Mr. Tyler, as does the State, that he is entitled to the 195 days of credit for pretrial detention. There is no explanation in the record before us as to why the credit was removed when the commitment record was amended in April 2014.

Accordingly, we remand the case to the circuit court with instructions to amend the commitment record in Case No. 122557C to reflect a total sentence in that case of 48 years imprisonment, with all but 24 (not 29) years suspended. The commitment record should also reflect that the "total time to be served" is 24 (not 29) years in that case. Finally, the commitment record should reflect that the sentence began on February 15, 2013 to account for the 195 days of credit for pre-trial detention.

CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR CORRECTIONS TO THE COMMITMENT RECORD IN CASE NO. 122557C CONSISTENT WITH THIS OPINION . COSTS TO BE PAID BY MONTGOMERY COUNTY.

^[*]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.

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