Butler v. State

255 Md.App. 152

278 A.3d 252

Calvin Rodney BUTLER

v.STATE of Maryland

No. 1343, Sept. Term, 2021

Court of Special Appeals of Maryland.

June 30, 2022

Submitted by: Amy E. Brennan (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant

Submitted by: Andrew Costinett (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee

Panel: Graeff Arthur, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

Zarnoch, J.

This is an appeal from the Circuit Court for Baltimore County's denial of a petition for post-conviction relief. In his petition, Calvin Rodney Butler, appellant, contended that he had been denied his right to effective assistance of counsel in connection with a motion for modification of sentence, filed pursuant to Maryland Rule 4-345, when his trial counsel filed such a motion outside the 90-day time limit provided for by the Rule.

For the reasons explained herein, we affirm the judgment of the post-conviction court.

LEGAL BACKGROUND

Standard of Review

Whether a petitioner has been denied their right to effective assistance of counsel is "a mixed question of fact and law." State v. Purvey , 129 Md. App. 1, 10, 740 A.2d 54 (1999). "[W]e will defer to the post[-]conviction court's findings of historical fact, absent clear error." Cirincione v. State , 119 Md. App. 471, 485, 705 A.2d 96 (1998). But we exercise our "own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any." State v. Jones , 138 Md. App. 178, 209, 771 A.2d 407 (2001) ; accord Coleman v. State , 434 Md. 320, 331, 75 A.3d 916 (2013).

Right to Effective Assistance of Counsel - Generally

In Duncan v. State , 236 Md. App. 510, 182 A.3d 268 (2018), this Court succinctly set forth the legal standards generally applicable to ineffective assistance of counsel claims, as follows:

Both the Sixth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights guarantee the right to effective assistance of trial counsel. See Coleman v. State , 434 Md. 320, 334, 75 A.3d 916 (2013) ; see also U.S. Const. amend. VI, XIV ; Md. Const. Decl. of Rts. art. 21. Under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ineffective assistance of counsel claims involve a two-prong analysis. SeeHarris v. State , 303 Md. 685, 496 A.2d 1074 (1985). To establish ineffective assistance of counsel, a petitioner must demonstrate (1) that, under the "performance prong," counsel's performance was deficient, i.e. , counsel committed serious attorney error, and (2) that, under the "prejudice prong," counsel's deficient performance prejudiced the defense. SeeStrickland , 466 U.S. at 687, 104 S.Ct. 2052.

To meet the requirements under the "performance prong" and demonstrate "serious attorney error," a petitioner must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel's performance fell below an objective standard of reasonableness considering prevailing professional norms. Cirincione v. State , 119 Md. App. 471, 484, 705 A.2d 96 (1998). In other words, the "performance component" requires a "show[ing] that counsel's performance was deficient," and "counsel made errors so serious that ‘counsel’ was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Under the "performance prong," if counsel's acts were reasonable trial strategy or tactic, counsel's performance will not be deemed ineffective. Strickland , 466 U.S. at 687-89, 104 S.Ct. 2052 ; see alsoOken v. State , 343 Md. 256, 283, 681 A.2d 30 (1996). To demonstrate prejudice a petitioner must show a "substantial or significant possibility" that, but for the serious attorney error, the result would have been different.

Bowers v. State , 320 Md. 416, 426, 578 A.2d 734 (1990).

Id. at 527-28, 182 A.3d 268.

Maryland Rule 4-345 Motion for Modification of Sentence

Maryland Rule 4-345(e)(1) provides, in pertinent part: "Upon a motion filed within 90 days after imposition of a sentence ... the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence."

Right to Effective Assistance of Counsel on a Motion for Modification of Sentence

In Maryland, there are a number of cases dealing with ineffective assistance of counsel in connection with a motion for modification or reduction of sentence beginning with State v. Flansburg , 345 Md. 694, 694 A.2d 462 (1997). In Flansburg , the Court of Appeals, after recognizing that a criminal defendant has a right to counsel on a motion for modification of sentence, and therefore a right to the effective assistance of counsel on such a motion, found that Flansburg had been denied that right when his counsel had failed to file such a motion after having been instructed to do so. The court found that failing to file the motion upon request amounted to a serious attorney error and reasoned that "[c]ounsel's failure to abide by his client's wishes resulted in [the defendant]’s loss of any opportunity to have a reconsideration of sentence hearing." Id. at 705, 694 A.2d 462. As a remedy, the Court held that Flansburg was entitled to post-conviction relief in the form of the right to file a belated motion for modification of sentence. Id.

Regarding the prejudice suffered by a criminal defendant when trial counsel performs deficiently by failing to file a motion for modification upon request, as was the situation in Flansburg , this Court, in Matthews v. State , 161 Md. App. 248, 252, 868 A.2d 895 (2005) clarified that, under such circumstances, a criminal defendant need not show a significant or substantial possibility that the motion for modification would have been granted in order to succeed on such a claim. Rather, this Court made explicit:

what was merely, but clearly, implicit in Flansburg : The failure to follow a client's directions to file a motion for modification of sentence is a deficient act, and such a failure is prejudicial because it results in a loss of any opportunity to have a reconsideration of sentence hearing. Accordingly, when a defendant in a criminal case asks his attorney to file a motion for modification of sentence, and the attorney fails to do so, the defendant is entitled to the post[-]conviction remedy of being allowed to file a belated motion for modification of sentence, without the necessity of presenting any other evidence of prejudice.

Id. See also Stovall v. State , 144 Md. App. 711, 729, 800 A.2d 31 (2002) (holding that, to obtain right to file a belated motion for modification of sentence, post-conviction petitioner did not need "to assert facts demonstrating a substantial possibility that the motion would be granted").

To summarize, in the context of a claim of ineffective assistance of counsel under Maryland law, when counsel fails to file a motion for modification of sentence upon request, such inaction amounts to deficient performance. Moreover, when pursuing such a claim, a criminal defendant need not show prejudice in the form of a significant or substantial possibility that the court would have granted the motion had it been filed. Rather, the prejudice suffered by a defendant in such a situation is presumed in the lost opportunity to the proceeding.

THE PRESENT CASE

On August 6, 2010, appellant pleaded guilty to first-degree rape in the Circuit Court for Baltimore County. On October 14, 2010, the court sentenced him to life imprisonment with all but forty years suspended in favor of five years’ probation.¹

On January 18, 2011, appellant, through counsel, filed an untimely motion for modification of sentence pursuant to Maryland Rule 4-345.^{2 ,3} On February 4, 2011, the State filed an Answer to appellant's motion.⁴ On February 7, 2011, the circuit court filed an order denying appellant's motion for modification on its merits and without regard to the timeliness of the motion. That order stated:

The Court has received [appellant]’s Motion For Modification/Reduction Of Sentence and reviewed the Court file and the Court's trial notes. The sentence of the Court was fair and reasonable.

Accordingly, it is this 3^rd day of February, 2011

ORDERED, by the Circuit Court for Baltimore County, that the Motion for Modification be, and the same is hereby DENIED.

Thereafter, appellant filed a petition for post-conviction relief under the Maryland Uniform Postconviction Procedure Act. In his petition, appellant alleged, inter alia , that he was denied his right to effective assistance of counsel when his counsel did not timely file a motion for modification or reduction of sentence. Appellant claimed that the late-filed motion for modification of sentence was a legal nullity and the fact that the trial court denied it on its merits was therefore irrelevant. He claimed that his trial counsel made a serious attorney error in failing to timely file the motion, that such a failure was per se prejudicial because he lost his opportunity to have his motion for modification considered as the circuit court lacked the authority to grant an untimely filed motion. Therefore, according to appellant, trial counsel's failure to file a timely motion for modification of sentence entitled him to post-conviction relief in the form of the right to file such a motion belatedly regardless of the fact that the circuit court had denied the motion on its merits.

On March 29, 2021, the post-conviction court, after holding a hearing, filed a memorandum opinion and order denying appellant's petition. The post-conviction court denied relief on the basis that, although trial counsel made a serious attorney error⁵ in not timely filing the motion, appellant did not establish prejudice from that error because the circuit court had...