State v. Day

STATE OF MARYLAND v. JAMES KAREEN DAY

No. 67

COURT OF APPEALS OF MARYLAND

Argued: May 13, 2020

September Term, 2019

July 10, 2020

INEFFECTIVE ASSISTANCE OF COUNSEL - MOTION FOR MODIFICATION OF SENTENCE - MARYLAND RULE 4-345(e) - REMAND - MARYLAND RULE 8-604(d) - Court of Appeals concluded that case potentially presented issue of whether petitioner for postconviction relief seeking right to file belated motion for modification of sentence pursuant to Maryland Rule 4-345(e) based on ineffective assistance of counsel must establish that he or she timely requested that trial counsel file such motion. As such, Court of Appeals determined that case potentially involved issue of whether State v. Adams, 171 Md. App. 668, 912 A.2d 16 (2006), aff'd in part and rev'd in part, 406 Md. 240, 958 A.2d 295 (2008), stands for proposition that to establish ineffective assistance of counsel postconviction petitioner need not demonstrate that request to file motion for modification of sentence was made, and whether this is good law. Court of Appeals concluded, however, that it was unable to reach merits because bases underlying trial court's order denying postconviction relief and Court of Special Appeals's order reversing and remanding case for filing of belated motion for modification of sentence were unclear. Pursuant to Maryland Rule 8-604(a) and (d), Court of Appeals remanded, without affirming or reversing, to Court of Special Appeals with instruction that Court of Special Appeals clarify basis for its order of September 12, 2019, reversing judgment of Circuit Court for Montgomery County denying postconviction relief and remanding and granting permission for filing of belated motion for modification of sentence.

Circuit Court for Montgomery County

Case No. 109580-C

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

Opinion by Watts, J.

After imposition of a sentence in a criminal case, a defendant may seek modification of that sentence pursuant to Maryland Rule 4-345(e). To obtain such review, Maryland Rule 4-345(e)(1) provides that the defendant must file a motion seeking modification within ninety days after imposition of the sentence. Recently, in State v. Schlick, 465 Md. 566, 577, 214 A.3d 1139, 1145 (2019), we reaffirmed

that when a defendant directs his or her lawyer to file a motion to modify the sentence, the lawyer's failure to file a timely motion may constitute ineffective assistance of counsel. To remedy counsel's ineffectiveness, the postconviction court may permit a defendant to file a belated motion for modification of sentence.

(Citations omitted).

Here, in the Circuit Court for Montgomery County, a jury convicted James Kareen Day, Respondent, of first-degree burglary, robbery, and conspiracy to commit robbery, and the circuit court sentenced Day to a total of fifty years of imprisonment. After unsuccessfully pursuing a direct appeal and sentence review by a three-judge panel, Day petitioned for postconviction relief, contending that trial counsel provided ineffective assistance of counsel by failing to file a motion for modification of sentence pursuant to Maryland Rule 4-345(e) when he had allegedly asked trial counsel to do so. At a hearing on the petition, Day gave seemingly inconsistent testimony concerning whether he asked trial counsel to file a motion for modification on his behalf. Day testified that trial counsel did not advise him of options for attempting to have his sentence modified and that he learned about the possibility of filing a motion for modification of sentence through a jailhouse lawyer, but that he asked trial counsel at the sentencing proceeding to "do a reconsideration." For his part, trial counsel testified that he had no recollection of Dayasking him to do anything to try to modify the sentence or specifically asking him to file a motion for modification of sentence.¹

The circuit court denied postconviction relief. The circuit court found that Day's assertion that he asked trial counsel to file a motion for modification of sentence was "not supported by the record[,]" and that, even if Day had made such a request, the claim for ineffective assistance of counsel "would fail nonetheless." Day filed an application for leave to appeal. In a four-paragraph order, the Court of Special Appeals summarily reversed and remanded with instruction to permit Day to file a belated motion for modification of sentence. The State, Petitioner, filed a petition for a writ of certiorari, which this Court granted.

We are asked to determine whether trial counsel's failure to timely file a motion for modification of sentence pursuant to Maryland Rule 4-345(e) constituted ineffective of assistance of counsel. This case potentially presents the issue of whether a petitioner for postconviction relief seeking the right to file a belated motion for modification of sentence pursuant to Maryland Rule 4-345(e), based on ineffective assistance of counsel, must establish that he or she timely requested that trial counsel file such a motion. As such, the matter potentially involves the issue of whether State v. Adams, 171 Md. App. 668, 912 A.2d 16 (2006), aff'd in part and rev'd in part, 406 Md. 240, 958 A.2d 295 (2008), stands for the proposition that, to establish ineffective assistance of counsel based on the failure to file a motion for modification of sentence, a postconviction petitioner need notdemonstrate that he or she requested that trial counsel file such a motion, and whether that is good law. Although the case raises issues of importance, we are unable to reach the merits because we are unable to determine the basis underlying the Court of Special Appeals's order reversing and remanding the matter for the filing of a belated motion for modification of sentence. We are unable to tell from the Court of Special Appeals's order whether that Court concluded that the circuit court did not find Day's testimony credible and that the circuit court's determination was clearly erroneous, or whether the Court of Special Appeals concluded that a request that trial counsel file a motion for modification of sentence was not necessary to establish ineffective assistance of counsel. Accordingly, pursuant to Maryland Rule 8-604(a) and (d), we remand the case, without affirming or reversing, to the Court of Special Appeals with instruction to explain the basis of its order of September 12, 2019, reversing the judgment of the circuit court denying postconviction relief and remanding and granting permission for the filing of a belated motion for modification of sentence. Specifically, the Court of Special Appeals should: (1) clarify whether Adams stands for the proposition that a defendant is not required to request that trial counsel file a motion for modification of sentence in order for trial counsel to be required to file such a motion, i.e., that it is per se deficient performance for trial counsel to fail to timely file a motion for modification of sentence absent express instructions to not do so; (2) explain whether, in reversing the circuit court's judgment, it relied on Adams; and (3) provide any other explanation that clarifies its September 12, 2019 order, e.g., that the circuit court's finding that Day's assertion was not supported by the record was clearly erroneous. The Court of Special Appeals should file its explanation on or before Friday,July 31, 2020.

BACKGROUND

Criminal Case

On December 10, 2008, in the circuit court, a jury found Day guilty of first-degree burglary, robbery, and conspiracy to commit robbery. On May 12, 2009, the circuit court sentenced Day to twenty years of imprisonment for first-degree burglary, fifteen years for robbery consecutively, and fifteen years for conspiracy to commit robbery consecutively, for a total of fifty years of imprisonment. At that time, trial counsel provided Day with the following on-the-record advisement:

[] Day, you have 90 days in which to file a motion for reconsideration, that would be filed with [the circuit court j]udge[.] He could not increase his sentence, but he could decrease his sentence or change it any number of ways.

You have -- that's 90 days you have to file that. It must be done in writing. You may do it yourself or you may contact me at the Public Defender's office and I'll do it on your behalf.

You have 30 days in which to ask a three[-]judge panel to review or revise the sentence here today. [The circuit court j]udge [] would not be a part of that three[-]judge panel, but the three judges would consult with [the circuit court j]udge [] with regard to his reasons for imposing the sentence. Or they could consult with him, even though he would not be a part of that three[-]judge panel. That three-judge panel could also change the sentence here imposed today.

You have 30 days in which to file an appeal with the Court of Special Appeals. This Court of Special Appeals, I would note an appeal for you. The Court of Special Appeals will review the case for errors, possible errors in the trying or the sentencing of the case.

Trial counsel gave Day a written notice of the rights that were explained to him, asked Day to sign it, and stated that Day would be provided with a copy of it.

On May 13, 2009, trial counsel filed a notice of appeal. On June 10, 2009, while the appeal was pending, trial counsel filed an application for a three-judge sentence review panel. On March 15, 2011, in an unreported opinion, the Court of Special Appeals affirmed Day's convictions. On May 27, 2011, without a hearing, the three-judge panel affirmed Day's sentence.

Postconviction Proceeding

Seven years after sentencing, on August 30, 2016, Day filed a petition for postconviction relief, alleging, among other things, that trial counsel rendered ineffective assistance of counsel by failing to file a motion for reconsideration of sentence even though he requested that trial counsel do so. The State filed an answer opposing the petition.

On April 18, 2018, the circuit court...