Smallwood v. State

237 Md.App. 389

186 A.3d 141

Robert P. SMALLWOOD

v.STATE of Maryland

No. 2169, Sept. Term, 2016

Court of Special Appeals of Maryland.

June 4, 2018

Argued by: Thomas M. Donnelly & Kristin C. Tracy (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.

Argued by: Daniel J. Jawor (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Wright, Beachley, Fader, JJ.

Fader, J.

The appellant, Robert P. Smallwood, presents us with the question of whether an incarcerated individual whom a circuit court has determined is imprisoned on an illegal sentence, and thus must be resentenced, has a right to counsel for the resentencing. We hold that he or she does.

BACKGROUND

In 1982, a jury sitting in the Circuit Court for Baltimore City found Mr. Smallwood guilty of first-degree murder and use of a handgun in the commission of a crime of violence. After a dialogue in which the court made clear its intent to provide Mr. Smallwood with credit for 72 days he had served while awaiting trial, the court pronounced Mr. Smallwood's sentence on the murder count as "for the term of his natural life less 72 days," concurrent with a sentence of 15 years for the handgun conviction. On direct appeal, we affirmed.

Thirty years later, Mr. Smallwood filed a pro se motion to correct an illegal sentence pursuant to Rule 4–345(a) in which he contended that his sentence was "ambiguous, indefinite, and therefore illegal." In a February 2013 hearing, Mr. Smallwood made the somewhat contradictory arguments: (1) that his original sentence of "life less 72 days" was ambiguous and vague; and (2) that the sentence required the State to calculate his remaining life expectancy so that it could set a release date 72 days before his expected death. Although the motions court judge was initially skeptical, she ended up granting his motion.¹ She then, in the same hearing, imposed a new sentence: "Your sentence for the murder, sir, will be life suspend all but 80 years. And, for the concurrent sentence, it's 15 years and you get credit for the 72 days." The court also added five years' probation to the split sentence.

Two other aspects of the relatively brief hearing are noteworthy for our purposes.

First, on two occasions Mr. Smallwood raised his lack of counsel. Early in the hearing, Mr. Smallwood stated: "I'm sorry. I want to apologize, too. I don't have counsel. I tried to get counsel for years; I couldn't do it. So, I tried to speak as best I could." And just before the court ruled, Mr. Smallwood again addressed his lack of counsel:

See, that's why I knew I shouldn't have came back without an attorney. I tried for years to get an attorney. I already knew this was—this sentence was ambiguous. I knew it was vague. I tried for years to get an attorney; I couldn't put myself in a position to get one, so I decided to come down here anyway because I'm getting—you know, I got 31 years in, so I can't wait any longer.

The court did not follow up on either occasion.

Second, after imposing the new sentence, the court requested the assistance of an Assistant State's Attorney not involved in Mr. Smallwood's case to advise Mr. Smallwood of his appeal rights. The prosecutor advised Mr. Smallwood that he had 90 days to file a motion to modify his new sentence and 30 days to ask a three-judge panel to review his new sentence, but that he had no direct appeal right. Neither Mr. Smallwood nor the State took an appeal at that time.

More than a year later, in July 2014, Mr. Smallwood filed a pro se postconviction petition challenging the motions court's failure to provide him with counsel or advise him of his right to counsel at resentencing. Mr. Smallwood conceded that he did not have a right to counsel for the presentation of his motion, but argued that once the court found his "sentence illegal, then the only thing to do is impose a new sentence. And at that new sentencing procedure, I'm saying I should have been advised of my right to an attorney." After the postconviction court raised sua sponte whether Mr. Smallwood's postconviction claim should have been raised on direct appeal, the court learned that Mr. Smallwood had been advised that he had no right to appeal. In supplemental briefing, the State conceded that Mr. Smallwood had a right to direct appeal of his new sentence and suggested that "the appropriate remedy is to allow [Mr. Smallwood] to file a belated appeal."

In a written opinion, the postconviction court rejected Mr. Smallwood's right-to-counsel claim. The court held that the right to counsel applies only through direct appeal, and does not extend to collateral proceedings like a motion to correct an illegal sentence. But, noting the State's concession as to Mr. Smallwood's appeal rights, the postconviction court awarded Mr. Smallwood the right to file a belated appeal from the order imposing his new sentence. Mr. Smallwood's belated appeal is the matter now before us.

DISCUSSION

Although this matter arises out of a rather complicated procedural history, most of that is irrelevant to the straightforward issue before us: Once a court has granted a motion to correct an illegal sentence, and so is going to impose a new sentence, does the convicted person have a right to counsel? We hold that he or she does.²

I. MR. SMALLWOOD'S APPEAL IS PROPERLY BEFORE THIS COURT .

The State raises three arguments as to why we cannot, or should not, address the merits of Mr. Smallwood's right-to-counsel claim in this appeal.³

First, the State argues that Mr. Smallwood has no right to appeal from the circuit court's grant of his motion to correct an illegal sentence. But Mr. Smallwood appeals from the sentence imposed by the circuit court, not from the grant of his motion. To accept the State's argument would require us to hold that no sentence imposed by a court after granting a motion to correct an illegal sentence could be subject to direct challenge by the convicted person. The State has not pointed us to any authority for that proposition.⁴ We rejected a similar argument in Sanders v. State , 105 Md. App. 247, 659 A.2d 356 (1995). As with Mr. Sanders in that case, Mr. Smallwood here "is not appealing the grant of the motion to correct an illegal sentence ...." Id. at 253, 659 A.2d 356. To the contrary, Mr. Smallwood "is appealing the sentence that resulted from resentencing." Id. ; cf. Hoile v. State , 404 Md. 591, 619, 948 A.2d 30 (2008) ("The new sentence [imposed after a motion for reconsideration was granted] represents a sentence imposed on [the defendant], and as such, is appealable."); Webster v. State , 359 Md. 465, 477, 754 A.2d 1004 (2000) ("Assessment of a new sentence resurrects the penalty portion of a judgement; it replaces the prior sentence.... Thus, the sentence imposed as a result of the granting of the motion for reconsideration is the appealable order ....").

Second, the State contends that because Mr. Smallwood did not argue below that he had a right to counsel at his resentencing, "there is, technically speaking, no circuit-court ruling denying Smallwood's counsel-related claims." Although Mr. Smallwood did not expressly argue that he had a right to have counsel present, he did twice call to the motions court's attention his desire to have counsel present. On neither occasion did the court ask a question.

Moreover, if Mr. Smallwood did not preserve the issue, it is likely because he lacked the assistance of counsel to help him recognize the need to do so. Indeed, the right to counsel is important precisely because it "seeks to protect a defendant from the complexities of the legal system and his or her lack of understanding of the law." Brye v. State , 410 Md. 623, 634, 980 A.2d 435 (2009). For that reason, courts are required to ensure that any waiver of the right is knowing and voluntary: the right to counsel is "absolute and can only be foregone by the defendant's affirmative ‘intelligent and knowing’ waiver." Robinson v. State , 410 Md. 91, 107, 976 A.2d 1072 (2009).⁵ "A defendant's actual incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel, is fundamentally unfair." DeWolfe v. Richmond , 434 Md. 444, 460, 76 A.3d 1019 (2013) (" DeWolfe II ") (quoting Rutherford v. Rutherford , 296 Md. 347, 360–61, 464 A.2d 228 (1983) ) (emphasis removed). Additionally, "if the right upon which the allegation is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding." Wyche v. State , 53 Md. App. 403, 407, 454 A.2d 378 (1983). Because the right to counsel is fundamental, it "may be waived only where the petitioner intelligently and knowingly effects the waiver." Id. Mr. Smallwood certainly made no such waiver here. For these reasons, even if not preserved, we would choose to exercise our discretion under Rule 8–131(a) to consider Mr. Smallwood's claim.

Third, the State argues that Mr. Smallwood's right-to-counsel claim would more appropriately be considered in an appeal from the denial of Mr. Smallwood's postconviction petition, consideration of which this Court has stayed pending the resolution of this direct appeal. We see no reason to further postpone resolution of the important issue raised here to await that collateral challenge. Cf. Greco v. State , 427 Md. 477, 503–04, 48 A.3d 816 (2012) (stating that the fact that the same issue was raised in a separate proceeding in the Court of Special Appeals was not a reason to decline review, but instead "lends support for this Court to review the challenge to the sentence without further delay, for the purpose of efficiency and complete resolution"). The issue has been fully briefed, presented, and argued here. We also have the benefit of the record before the postconviction court and of that court's analysis.

Finding no impediment to our consideration of Mr. Smallwood's challenge, we...