Bailey v. State

DONALD EUGENE BAILEY v. STATE OF MARYLAND

No. 77

COURT OF APPEALS OF MARYLAND

Argued: May 6, 2019

September Term, 2018

July 17, 2019

CRIMINAL LAW—SUBSEQUENT OFFENDER ENHANCEMENT—PROCEDURAL DEFICIENCY WITH NOTICE

The State's belated notice did not result in the trial court imposing an illegally enhanced sentence. Instead, the State's belated notice to the defendant was a procedural deficiency reviewed for harmless error. A defendant was not prejudiced beyond a reasonable doubt due to the belated notice when the notice was five days late.

CRIMINAL LAW—INEFFECTIVE ASSISTANCE OF COUNSEL—DIRECT APPEAL

Failure to object to a subsequent offender sentencing enhancement is not proper for review on direct appeal. In order to develop a record for review explaining counsel's actions, the defendant's claim was best heard within a post-conviction posture.

Circuit Court for Prince George's County

Case No. CJ171506

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.

Opinion by Getty, J.

Hotten, J., concurs and dissents.

Donald Eugene Bailey was convicted by a jury in the Circuit Court for Prince George's County of driving while impaired by alcohol, reckless driving, negligent driving, and failure to control speed to avoid a collision. At sentencing, the circuit court enhanced Mr. Bailey's sentence as a subsequent offender of § 21-902(b)(1) of the Transportation Article (hereinafter "TR") of the Maryland Code. Prior to trial, the State served Mr. Bailey with a notice of his subsequent offender status as required by Maryland Rule 4-245. However, this notice was sent ten days prior to trial in the circuit court which was five days less than required by Maryland Rule 4-245. At no point did Mr. Bailey object to the punishment enhancement. Now, we consider whether this belated notice resulted in an illegal sentence requiring correction, or instead, whether the late notice was a procedural deficiency subject to harmless error review.

BACKGROUND

The facts underlying Mr. Bailey's conviction are not essential to review in order for us to consider the merits of Mr. Bailey's appeal. However, in order to provide context, we note the following as to the underlying offense. Mr. Bailey was driving on the Capital Beltway, Maryland Interstate 495, in Prince George's County, when his vehicle crashed into the rear of another vehicle on March 4, 2017. A police officer was nearby and heard the crash. As the police officer was investigating the crash, he noticed Mr. Bailey showed signs of intoxication. Mr. Bailey performed field sobriety tests but refused to consent to a breathalyzer or a blood test. Mr. Bailey was arrested and charged with various traffic offenses, including driving while impaired by alcohol in violation of TR § 21-902(b)(1).

Mr. Bailey prayed a jury trial in the District Court of Maryland sitting in Prince George's County on June 16, 2017. Thus, his jury trial prayer transferred jurisdiction to the Circuit Court for Prince George's County. The trial was scheduled on the circuit court docket for October 16, 2017. Subsequently, Mr. Bailey filed a consent motion with the State to continue the trial date. The trial was reset for December 11, 2017.

The State served its notice of increased penalty as a subsequent offender to Mr. Bailey on December 1, 2017. However, the notice was sent five days later than required by Maryland Rule 4-245. The enhanced penalty was available under the subsequent offender statute because Mr. Bailey had a prior conviction for driving under the influence on January 24, 2017, in the District of Columbia.

A two-day jury trial in the circuit court commenced on December 11, 2017. The jury found Mr. Bailey guilty of driving while impaired and other related offenses. Mr. Bailey was sentenced in February 2018 to one year of incarceration with all but eight weekends suspended plus two years of probation. As a subsequent offender, Mr. Bailey's potential exposure to incarceration increased by ten months. During the trial and sentencing hearing, Mr. Bailey did not object to the imposition of the subsequent offender enhancement.

Then, Mr. Bailey timely appealed his sentence to the Court of Special Appeals. In an unreported opinion, the court split by a 2-1 vote to affirm the sentence of the circuit court. The majority opinion concluded that even though the "failure to give any notice before trial is substantive and gives rise to an illegal sentence," in this case the "failure to give timely notice is a procedural error . . . subject to harmless error analysis" and, in fact,did "not give rise to an illegal sentence." Bailey v. State, No. 2503, Sept. Term, 2017, 2019 WL 290066, at *4 (Md. Ct. Spec. App. Jan. 2, 2019) (emphasis added).

In reaching their conclusion, the majority applied King v. State, 300 Md. 218 (1984). In King, this Court determined that harmless error analysis applied when the State filed a timely but insufficiently specific subsequent offender notice. Id. at 232. The majority held that, in this case, the error was harmless because Mr. Bailey had "actual notice." Bailey, No. 2503 at *4. Further, he did not sustain any prejudice as a result of the belated notice and no due process concerns existed. Id.

The dissenting opinion in the Court of Special Appeals concluded that this case should be controlled by Carter v. State, 319 Md. 618 (1990). In Carter, the sentencing court was not permitted to enhance the defendant's sentence when the State did not provide the defendant with any notice of the enhanced punishment prior to trial. Id. at 623. Thus, if applying Carter in this case, the sentencing judge should have been precluded from enhancing Mr. Bailey's sentence. Bailey, No. 2503 at *5 (dissenting opinion). The dissent provided three reasons for its opinion: (1) "Carter was written later than King and . . . did not employ the harmless error analysis," therefore it modified the holding in King; (2) "to the extent that Carter and King are inconsistent," Mr. Bailey's case is "closer to the facts in Carter . . . than . . . in King"; and (3) Carter is the "better-reasoned" opinion. Id.

We granted Mr. Bailey's petition for writ of certiorari on March 5, 2019. Bailey v. State, 463 Md. 144 (2019). Mr. Bailey presented two questions for this Court to consider:

(1) Did the Court of Special Appeals err in holding that the trial court did not illegally impose an enhanced sentence after the State failed to serve timely notice under Maryland Rule 4-245(b)?

(2) If Mr. Bailey's sentence was not illegal, did the Court of Special Appeals misapply the test for determining whether Mr. Bailey received ineffective assistance of counsel?¹

With regard to the first question, we hold that the State's belated notice did not result in the trial court imposing an illegally enhanced sentence. Instead, the State's belated notice to Mr. Bailey was a procedural deficiency subject to preservation requirements and not an illegal sentence that may be challenged pursuant to Maryland Rule 4-345(a). As a result, we review for harmless error Mr. Bailey's claim and hold that Mr. Bailey was not prejudiced by the belated notice. As for the ineffective assistance of counsel claim, we decline to review that issue on direct appeal. Instead, Mr. Bailey's ineffective assistance of counsel claim should be considered within a post-conviction proceeding. Therefore, we affirm the judgment of the Court of Special Appeals.

DISCUSSION

I. Sentence enhancement pursuant to Maryland Rule 4-245(b)

The primary question in this case is whether enhancement of a subsequent offender's sentence is legal when the State files a belated notice of the enhancement that did not comply with Maryland Rule 4-245(b). Mr. Bailey was convicted of driving while impaired by alcohol in violation of TR § 21-902(b)(1). As a first-time offender, Mr. Baileywould have been subjected to "imprisonment not exceeding 2 months or a fine not exceeding $500 or both." TR § 21-902(b)(1)(ii)(1). However, as a subsequent offender, Mr. Bailey's potential exposure under the enhanced sentence increased to "imprisonment not exceeding 1 year or a fine not exceeding $500 or both." TR § 21-902(b)(1)(ii)(2).

Maryland Rule 4-245 articulates procedures the State is required to follow in order to potentially subject a defendant to an enhanced penalty as a subsequent offender. In relevant part, this rule provides:

(a) Definition. A subsequent offender is a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.

(b) Required Notice of Additional Penalties. When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State's Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in the District Court, whichever is earlier.

(c) Required Notice of Mandatory Penalties. When the law prescribes a mandatory sentence because of a specified previous conviction, the State's Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in the circuit court or five days before sentencing in the District Court. If the State's Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement.

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(e) Determination. Before sentencing and after giving the defendant an opportunity to be heard, the court shall determine whether the defendant is a subsequent offender as specified in the notice of the State's Attorney.

Mr. Bailey acknowledges that he would qualify as a subsequent offender under the statute. As TR § 21-902(b)(1)(i) did not require the court to impose an enhancedsentence—i.e.,...