Franklin v. State

470 Md. 154

235 A.3d 1

Shawn Albert FRANKLIN

v.STATE of Maryland

No. 57 Sept. Term, 2019

Court of Appeals of Maryland.

August 13, 2020

Argued by Claudia A. Cortese, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, of Baltimore, MD) on brief, for Petitioner.

Argued by Cathleen C. Brockmeyer, Asst. Atty. Gen. (Brian E. Frosh, Attorney General of Maryland, of Baltimore, MD) on brief, for Respondent.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Biran, J.

Under Maryland law, after a criminal defendant is sentenced, the sentencing court in most cases has the authority to reconsider its decision and impose a more lenient sentence. If a defendant wants the court to consider exercising that authority, the defendant must file a motion within 90 days of sentencing in which the defendant asks the court to modify the sentence. Once a defendant has filed a motion to modify the sentence, the sentencing court has five years to consider it. The court may deny a motion for sentence modification without a hearing. However, before granting such a motion and reducing the sentence, the court must hold a hearing at which the defendant, the State, and any victim or victim's representative may address the court concerning the defendant's requested modification.

Not uncommonly, when a defendant files a motion to modify a sentence, the defendant asks the court not to act on it right away. Often, the reason for such a request is that the defendant recognizes that not much has changed in 90 or fewer days since the sentencing hearing, and that the court may well decline to impose a more lenient sentence at that point. Thus, the defendant may prefer to have the court consider the motion later in the applicable five-year period. Perhaps, with the passage of up to five years, the defendant will be able to produce evidence of post-sentencing repentance, self-improvement, cooperation with State officials, and/or successful completion of probation or other conditions imposed by the sentencing court. Such a future showing, the defendant may hope, will persuade the court to impose a more lenient sentence.

This case concerns such a defendant, Shawn Albert Franklin, who was convicted in the Circuit Court for Charles County of reckless endangerment and illegally transporting a handgun in a vehicle in March 2010. The court sentenced Franklin to 14 days of active jail time and three years of probation. Immediately after pronouncing that sentence, the court said it would not rule out modifying Franklin's sentence to probation before judgment after Franklin completed his period of probation, but that Franklin would have to "work for" such a modification.

In April 2010, Franklin's attorney filed a timely motion for modification of sentence, and asked that the court consider changing the sentence to probation before judgment. In that filing, the attorney requested a hearing on the motion, but also asked the court to defer consideration of the motion until after the conclusion of Franklin's probation. After receiving the motion, in keeping with the attorney's request, the sentencing court noted that it was taking "no action" on the motion. Franklin successfully completed his period of probation, but neither he nor his attorney subsequently asked the sentencing court to set the motion in for a hearing during the remainder of the five-year consideration period. That period expired in March 2015. Franklin subsequently sought to expunge the records of his criminal charges, but because he had not received probation before judgment, he was not entitled to expungement.

After losing his job in 2017 due to his convictions having come to light, Franklin sought a writ of error coram nobis that would allow the sentencing court belatedly to hold a hearing and decide his motion for modification of sentence. Franklin claimed that he was entitled to this relief because his attorney provided ineffective assistance of counsel, in violation of the Maryland and United States Constitutions. Specifically, Franklin claimed that his attorney performed deficiently by failing to notify the sentencing court within the applicable five-year period that Franklin was ready to have the court consider the motion for sentence modification. The coram nobis court and the Court of Special Appeals denied relief to Franklin. We then agreed to hear Franklin's appeal.

To resolve Franklin's ineffective assistance claim, we must consider the respective responsibilities of a defendant and defense counsel after a court holds a motion for modification of sentence in abeyance. We conclude that it is the attorney's responsibility to ensure that a defendant knows the sentencing court has five years from the imposition of the sentence to consider the motion. However, it is the defendant's decision whether and when to request that the sentencing judge set the motion in for a hearing. We decline to adopt a per se rule that an attorney provides constitutionally deficient assistance, where the attorney fails to request (or to renew a request for) a hearing on the motion on the attorney's own initiative within the five-year period for the court to consider the motion. Rather, each such case must be analyzed based on its particular facts.

We further hold that Franklin failed to meet his burden to show that his attorney performed deficiently. The coram nobis court did not make a finding that Franklin's attorney failed to advise Franklin about the five-year period to consider a motion for modification of sentence. In addition, the coram nobis court found that Franklin never contacted his attorney during the five-year period because he did not suffer any adverse collateral consequences from his convictions until after that period had expired. As a result, Franklin did not instruct his attorney to renew the request for a hearing on the motion for modification of sentence during the five-year period. We therefore conclude that Franklin's attorney did not provide ineffective assistance of counsel.

IBackground

A. Franklin's Crimes, Guilty Plea, and Sentencing Hearing

On September 24, 2009, Jeremy Elkins was riding his bicycle in Waldorf, Maryland, when Franklin ran him off the road in his SUV. Franklin's wife had told him that her bicycle had been stolen, and Franklin thought that Elkins was riding the stolen bike. After Elkins came to a stop, so did Franklin. Franklin then exited his vehicle, approached Elkins, and accused him of stealing the bicycle. After Elkins denied this accusation, Franklin returned to his car and retrieved a pistol. He then threatened Elkins with the gun and demanded that Elkins accompany him back to where Franklin's wife was at the time. Elkins complied with Franklin's demand. When Franklin's wife saw Elkins and the bicycle, she told Franklin that Elkins was not the man who had stolen her bicycle, and that the bicycle in Elkins's possession was not hers. Elkins then left with his bicycle.

On November 6, 2009, Franklin was charged in an indictment in the Circuit Court for Charles County as a result of his confrontation with Elkins. The indictment charged Franklin with seven offenses, including first-degree assault, second-degree assault, reckless endangerment, and various weapons charges, including illegally transporting a handgun in a vehicle.

On March 5, 2010, Franklin appeared before the Honorable Helen I. Harrington in the Circuit Court for Charles County and, under a plea agreement, entered Alford pleas¹ to the reckless endangerment and transporting-a-handgun charges.² The parties informed Judge Harrington that, under the terms of their agreement, they proposed to bind the court to impose a sentence that included a cap of 60 days of active jail time. The written plea agreement signed by Franklin and the State set forth the agreement regarding the 60-day active time cap, and then recited: "There is no other sentencing limitation except that provided by law." Judge Harrington approved the binding plea, telling Franklin that "[t]he Court is agreeing to sentence you to no more than 60 days of active jail time."³

On March 22, 2010, Franklin and his retained attorney, Kenneth W. Prien, appeared before Judge Harrington for sentencing. Mr. Prien requested that Judge Harrington impose a sentence of probation before judgment. The State did not object that the binding plea agreement prohibited Judge Harrington from imposing probation before judgment. Nevertheless, Judge Harrington declined Mr. Prien's request, and instead imposed concurrent sentences of three years of incarceration with all but 14 days suspended, three years of unsupervised probation, a $500 fine, and 24 hours of community service. The other five charges were disposed of by entries of nolle prosequi.

After announcing the sentence, Judge Harrington advised Franklin of his post-sentencing rights, during which Judge Harrington and Franklin had the following exchange:

THE COURT: [Y]ou can file a motion to revise this sentence, that has to be filed within 90 days. If you successfully complete the terms of probation I am not ruling out probation before judgment. That would keep your record clean. But you're going to have to work for that.

FRANKLIN: Yes Ma'am.

THE COURT: Any questions, sir?

FRANKLIN: No Ma'am.

....

THE COURT: All right. And here's the probation form. Okay, I usually ask the Clerks to write on their docket sheet that I'll reconsider for probation before judgment and that way when I look at the file again I'm going okay, I said I would do that.

The docket entry for Franklin's sentencing hearing stated, among other things, "[Defendant] advised of post sentencing rights.... Court will reconsider for probation before judgment."

B. The Motion for Modification of Sentence

On April 1, 2010, Mr. Prien filed a motion under Maryland Rule 4-345(e),⁴ requesting that Judge Harrington reconsider the sentence.⁵ After five paragraphs detailing the charges against Franklin, his guilty pleas, and the sentences that...