In a recent case a defendant asked the Maryland Court of Appeals to review of a judge’s imposition of a 25 year mandatory, enhanced sentence. The defendant had been convicted of cocaine distribution and conspiracy. The State notified the defendant it would seek a mandatory 25-year sentence without possibility of parole.
The defendant was sentenced according to a subsequent offender statute for multiple drug convictions. Under section 5-608, a defendant can qualify for an enhanced sentence if he has served a prior term of confinement of at least 180 days and possesses two separate prior convictions that qualify.
At sentencing, the State submitted certified copies of docket entries regarding his two prior convictions. Various officers were asked to testify regarding the identity of the person who had been convicted and the fact that the fingerprint cards for each contained the same fingerprint. The defense attorney moved to strike one witness’s testimony because she wasn’t an expert. The sentencing judge, however, stated that it was not necessary to prove the prior offenses that way.
The judge stated it was sufficient that the defendant had ben twice previously under the statute and was incarcerated for more than 180 days. He imposed 25 years for each offense to be served concurrently.
The defendant appealed. The Court of Special Appeals held that it was an error to impose 2 concurrent subsequent offender sentences. It affirmed one of the sentences. The defendant asked the Court of Appeals to review whether the State had presented enough evidence to prove the two prior convictions were his.
The State argued that the defendant had waived his challenge because he didn’t object during sentencing. The defendant asked the court to review his sentence as illegal under Rule 4-345(a) or Rule 8-131(c).
The court explained that usually appellate courts don’t consider issues not properly preserved for review. A timely objection is necessary to get an issue reviewed. However, an appellate court will, if necessary or desirable, decide an issue not preserved.
The court explained a judge’s statement from the bench about sentencing that raises concerns about sentencing considerations gives a defense attorney grounds to speak up. The defense counsel made no objection in this case even when prompted by the trial judge to speak up if the convictions were not the defendant’s.
Under Rule 4-345(a), however, an inherently illegal sentence (where there is a substantive, rather than a procedural, flaw in the sentence) is subject to correction at any time. The appellate court explained that the defendant’s challenge related to the evidence. It had to do with a procedural flaw and therefore was not inherently illegal.
The defendant had alternately asked the court to dismiss his sentence under Md. Rule 8-131(c). This rule provided that an appellate court would set aside a clearly erroneous judgment by the trial court where there was no jury. He argued that the rule was an exception to the general rule that a defense attorney needs to preserve an issue by making an objection at trial.
The appellate court explained that a Rule 4-345(a) allegation can be raised any time, but if the sentence isn’t illegal and the objection isn’t waived, the allegation is waived, too. It noted that even if the matter had been properly preserved, it would have found the evidence was sufficient for the judge to conclude the defendant had received the prior two convictions and committed the associated offenses. Although there were some discrepancies regarding the birth and incarceration dates in the record, the defendant had the same SID number in this case as the two earlier cases. An SID number is a unique number attached to an individual’s fingerprints. Moreover, the defendant didn’t challenge the State’s assertion that he committed the qualifying offenses even when asked.
If you are arrested or charged with a crime, you should consult with an experienced Maryland criminal defense attorney. We will develop the best strategy we can to defend your case. Contact us at 301-519-2801 or via our online form.
What Constitutes “Contempt of Court” in Maryland Criminal Court, Maryland Criminal Lawyer Blog, December 12, 2013
Is Self-Defense an Available Defense in a Charge of Affray? Maryland Criminal Lawyer Blog, November 18, 2013