Tyrone Bryant v. State of Maryland, No. 37, September Term 2013, Opinion by Greene, J.

SENTENCING – ILLEGAL SENTENCE

Challenges to sentencing determinations are generally waived if not raised during the
sentencing proceeding, but under Md. Rule 4-345(a), the court may correct an illegal
sentence at any time. Rule 4-345(a) only applies when a sentence is inherently illegal, which
has been described as a substantive error in the sentence itself, rather than as a procedural
error in the sentencing proceedings.
Circuit Court for Baltimore City
Case No.: 108296012
Argued: December 5, 2013




                                      IN THE COURT OF APPEALS
                                           OF MARYLAND

                                                No. 37
                                          September Term, 2013


                                            TYRONE BRYANT

                                                    v.

                                         STATE OF MARYLAND




                                   Barbera, C.J.
                                   Harrell
                                   Greene
                                   Adkins
                                   McDonald
                                   Watts
                                   Rodowsky, Lawrence F. (Retired, Specially
                                          Assigned),


                                                    JJ.


                                        Opinion by Greene, J.
                                   McDonald and Watts, JJ., dissent


                                   Filed: February 3, 2014
       This case involves the review of a sentencing judge’s imposition of a 25 year

mandatory, enhanced sentence for a series of drug convictions pursuant to Maryland’s

subsequent offender statute, Md. Code (2002), § 5-608(c) of the Criminal Law Article

(hereinafter § 5-608(c)). Petitioner alleges that the sentence imposed is an illegal sentence

under Maryland Rule 4-345(a). We shall hold that Petitioner’s challenge to the enhanced

sentence is not properly before this Court, and therefore, we affirm the judgment of the

intermediate appellate court. Further, even if we were to determine that the issue was

preserved, we would not invalidate the sentence imposed on the grounds alleged.

                        FACTS AND PROCEDURAL HISTORY

       After a three day jury trial, Petitioner Tyrone Bryant (“Bryant” or “Petitioner”) was

convicted of distribution of cocaine and conspiracy to distribute cocaine. Pursuant to § 5-

608(c), the State filed a notice of intent to seek a mandatory, enhanced sentence of 25 years

without the possibility of parole based on Petitioner’s alleged prior drug convictions. In

general, the statute requires the defendant to have served at least one term of confinement

of at least 180 days and to have two separate qualifying prior convictions. At sentencing, in

order to prove the qualifying prior convictions, the State submitted certified copies of docket

entries involving two separate cases. The first docket entry, submitted as exhibit one,

contained the information that on October 20, 1995, Tyrone L. Bryant, date of birth April 23,

1971, was sentenced in Baltimore City Case No. 295243003, to three years for possession

with intent to distribute heroin with credit for time served accounting from June 29, 1995.
The State Identification number (“SID number”)1 for this defendant was 000992305. The

second docket entry, submitted as exhibit two, indicated that on July 13, 2001, Tyrone

Bryant, date of birth April 23, 1971, was sentenced to ten years in Baltimore City Case No.

200271002, for possession with intent to distribute heroin with credit for time served

accounting from October 9, 2000. The SID number for this defendant was also 000992305.

Correctional Case Management Specialist Bibika Cash from Patuxent Institution, after

review of the file for an inmate with DOC ID number 301-637, testified that the file

contained a photograph of a man named Tyrone Bryant with the date of birth of November

22, 1969, described as a black male with brown eyes. The file further indicated that Tyrone

Bryant was incarcerated in Case No. 200271002 from October 9, 2000 to September 12,

2007.

        Next, Agnes Campbell, a fingerprint technician with the Baltimore City Police

Department, testified in regards to two fingerprint cards, which were also offered into




        1
         “The SID number is a unique identifier issued by the Maryland Criminal Justice
Information System (CJIS) Central Repository. A SID number is assigned to every individual
who is arrested or otherwise acquires a criminal history record in Maryland, and is also used
as an identifier in the Department of Public Safety and Correctional Services (DPSCS)
management information systems. The SID number can be easily located on each page of the
Maryland Rap Sheet above the offender’s name.” Md. State Comm’n on Criminal
Sentencing Policy, Maryland Sentencing Guidelines Manual 10 (April 15, 2013), available
at http://msccsp.org/Files/Guidelines/guidelinesmanual.pdf. This Court has previously
explained that “[a] SID . . . number is a unique number directly linked to an individual's
fingerprints. Because of that link, no two persons should have the same SID number; nor,
if the proper procedures are followed, should a person ever have more than one SID
number.” State v. Dett, 391 Md. 81, 85, 891 A.2d 1113, 1115 (2006).

                                             2
evidence. Campbell testified that the two fingerprint cards contained prints from Tyrone

Bryant who was “locked up” on June 29, 1995 and again on November 30, 2000. The State

then asked the witness to take Petitioner’s fingerprints and compare them to the fingerprint

cards connected to the two prior convictions. The sentencing judge stated that these steps

were unnecessary to prove the prior offenses, and when the judge asked defense counsel if

he was arguing that the convictions were not Petitioner’s, counsel stated that he “can’t say

that [the offenses are not Mr. Bryant’s] right now.” The court then denied defense counsel’s

motion to strike Ms. Campbell’s testimony on the grounds that she was not an expert. The

court pointed out, however, that Ms. Campbell’s testimony would not “play a role” in the

sentencing determination. Following this colloquy, the sentencing judge stated: “All right[,]

so having review[ed] the State’s exhibits in this case I am satisfied that the qualifications

under Criminal Law [§ 568(c)] have been met. That Mr. Bryant has been convicted twice

previously under the requisite statute and he was incarcerated at least one term of

confinement was [sic] longer than 180 days in a correctional institution.” The sentencing

judge then imposed a mandatory, enhanced sentence of 25 years without the possibility of

parole for each offense, to be served concurrently.

       Petitioner noted a timely appeal. The Court of Special Appeals, in an unreported

opinion, affirmed the judgment in part, holding that the trial court erred in imposing

two–albeit concurrent–subsequent offender sentences, but affirmed the imposition of one of

the subsequent offender sentences. This Court granted certiorari, Bryant v. State, 431 Md.



                                              3
444, 66 A.3d 47 (2013), to answer the following questions:

       (1) Is a claim that the State failed to present sufficient evidence for the
       imposition of a subsequent offender sentence reviewable on appeal as a
       challenge to an illegal sentence, or, in the alternative, the judgment of the trial
       court under Rule 8-131(c)?

       (2) Did the trial court err in imposing an enhanced sentence of 25 years
       without parole where the State failed to prove that the predicate convictions
       belonged to Petitioner?

                                        DISCUSSION

       The State’s principal contention is that Petitioner has waived any challenge to the

imposition of his sentence because he failed to object during the sentencing proceeding.

Petitioner urges this Court to review his enhanced sentence, despite no objection below, as

an illegal sentence pursuant to Md. Rule 4-345(a), or, in the alternative, pursuant to the

Court’s scope of review under Md. Rule 8-131(c). Before turning to each of Petitioner’s

arguments and proffered grounds for this Court’s review, we address the procedural rules

regarding preservation of issues generally.

       Md. Rule 8-131(a)2 provides that appellate courts ordinarily will not decide an issue

not raised in or decided by the trial court. In other words, the appellate courts will only

address issues that are properly preserved for review, and issues that are not preserved are

deemed to be waived. The purpose behind preservation and waiver principles is well



       2
         Md. Rule 8-131(a) provides in pertinent part that “[o]rdinarily, the appellate court
will not decide any other issue unless it plainly appears by the record to have been raised in
or decided by the trial court, but the Court may decide such an issue if necessary or desirable
to guide the trial court or to avoid the expense and delay of another appeal.”

                                               4
established:

       The purpose of Md. Rule 8-131(a) is to ensure fairness for all parties in a case
       and to promote the orderly administration of law. Fairness and the orderly
       administration of justice is advanced by requiring counsel to bring the position
       of their client to the attention of the lower court at the trial so that the trial
       court can pass upon, and possibly correct any errors in the proceedings. For
       those reasons, Md. Rule 8-131(a) requires an appellant who desires to contest
       a court’s ruling or other error on appeal to have made a timely objection at
       trial. The failure to do so bars the appellant from obtaining review of the
       claimed error, as a matter of right.

Robinson v. State, 410 Md. 91, 103, 976 A.2d 1072, 1079 (2009) (citations and quotations

omitted). Despite these provisions, appellate courts may in limited circumstances, “if

necessary or desirable to guide the trial court or to avoid the expense and delay of another

appeal[,]” decide an issue that was not preserved. Md. Rule 8-131(a).3 Such circumstances,

however, are not present in this case.

       Additionally, Rule 4-323(c), applicable to rulings and orders other than evidentiary

rulings, provides that an objection must be made “at the time the ruling or order is made or

sought” in order to be preserved for appellate review. See Md. Rule 4-323(c). “If a party has

no opportunity to object to a ruling or order when it is made, the absence of an objection at



       3
           See also Conyers v. State, 354 Md. 132, 150-51, 729 A.2d 910, 919-20 (1999)
(“While an appellate court has some discretion to address and decide unpreserved issues,
ordinarily this discretion will not be exercised. The rules for preservation of issues have a
salutary purpose of preventing unfairness and requiring that all issues be raised in and
decided by the trial court, and these rules must be followed in all cases including capital
cases. . . . We usually elect to review an unpreserved issue only after it has been thoroughly
briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide
guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent
collateral attack on the conviction.”).

                                               5
that time does not constitute a waiver. . . . [but] if there is an opportunity to object to an order

or ruling when made, the failure to do so (and to inform the court of the relief requested) may

constitute a waiver.” Hill v. State, 355 Md. 206, 219, 734 A.2d 199, 206 (1999) (emphasis

in original).

       Rule 4-323 applies to both trial and sentencing proceedings. Conyers v. State, 354

Md. 132, 149, 729 A.2d 910, 919 (1999). It is well settled that challenges to sentencing

determinations are generally waived if not raised during the sentencing proceeding. See

Brecker v. State, 304 Md. 36, 40, 497 A.2d 479, 481 (1985); Towers v. Director, Patuxent

Inst., 16 Md. App. 678, 682-83, 299 A.2d 461, 465 (1973). In Brecker v. State, for example,

the defendant objected to the amount of restitution ordered by the trial court during his

sentencing proceeding, but argued for the first time on appeal that the trial judge erred by not

considering the defendant’s ability to pay before ordering restitution. Brecker, 304 Md. at

39-41, 497 A.2d at 480-81. This Court held that the defendant waived his claim by failing

to object at sentencing on the grounds that the trial court failed to consider defendant’s ability

to pay. Brecker, 304 Md. at 42, 497 A.2d at 481-82 (“[T]he failure to make a timely

objection constitutes a waiver of that particular issue and, as a result, we may not consider

it.”). See also Reiger v. State, 170 Md. App. 693, 908 A.2d 124 (2006) (involving a

challenge to a sentence based upon a claim of impermissible sentencing considerations,

where no objection had been made during the sentencing proceedings). In Reiger v. State,

the Court of Special Appeals noted that:



                                                 6
       When, as in this case, a judge’s statement from the bench about the reasons for
       the sentence gives rise to the claim of impermissible sentencing considerations,
       defense counsel has good reason to speak up. A timely objection serves an
       important purpose in this context. Specifically, it gives the court opportunity
       to reconsider the sentence in light of the defendant’s complaint that it is
       premised upon improper factors, or otherwise to clarify the reasons for the
       sentence in order to alleviate such concerns. . . . Simply stated, when there is
       time to object, there is opportunity to correct.

170 Md. App. at 701, 908 A.2d at 128 (footnote and citation omitted).

       In the instant case, the parties do not dispute that defense counsel made no objection

at the time of Petitioner’s sentencing. Indeed, during the sentencing proceeding, when the

trial judge asked the prosecutor why he was having the witness take Petitioner’s fingerprints

for an in-court comparison, the prosecutor commented that “[i]t is my understand [sic] that

[defense counsel] is going to be challenging the authenticity[,]” to which defense counsel

replied “[t]hat’s not correct. I simply indicated briefly to the State that Mr. Bryant wanted

every potential road blocked because he’s looking at twenty-five without parole.” Defense

counsel also failed to object even when prompted by the trial judge. Specifically, the judge

asked defense counsel “are you telling me that these two convictions are not his?” to which

defense counsel responded “I can’t speak, I can’t say that right now.” Now on appeal, the

State contends that “Bryant’s counsel had good reason to speak up and argue that the

proffered convictions did not belong to Bryant and/or that the State’s evidence did not

properly prove a nexus between Bryant and those convictions.” The State further points out

that “had defense counsel argued that the State had not establish[ed] the nexus between

Bryant and the two introduced convictions, the court would have had the opportunity to

                                              7
reconsider the evidence . . . or an opportunity to otherwise specify the reasons why the court

believed the nexus had been established.”

       There are limited grounds on which a sentence may be properly reviewed by this

Court despite the failure to object at the time of the proceedings. One such avenue for

review, relevant to this case, is Md. Rule 4-345(a),which provides that a “court may correct

an illegal sentence at any time.” See Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951

(1985) (holding that “when the trial court has allegedly imposed a sentence not permitted by

law, the issue should ordinarily be reviewed on direct appeal even if no objection was made

in the trial court”). This exception is a limited one, and only applies to sentences that are

“inherently” illegal. See Chaney v. State, 397 Md. 460, 466, 918 A.2d 506, 509-10 (2007)

(“The scope of this privilege, allowing collateral and belated attacks on the sentence and

excluding waiver as a bar to relief, is narrow, however.”) (emphasis in original); State v.

Griffiths, 338 Md. 485, 496, 659 A.2d 876, 882 (1995) (“Rule [4-345(a)] creates a limited

exception to the general rule of finality[.]”).4 “We have consistently defined this category

of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the

sentence itself; i.e., there either has been no conviction warranting any sentence for the

particular offense or the sentence is not a permitted one for the conviction upon which it was




       4
         Additionally, we have reiterated the narrowness of this limited exception to the rule
of finality, specifically declining to extend the exception to circumstances of alleged
impermissible sentencing considerations. See Abdul-Maleek v. State, 426 Md. 59, 69, 43
A.3d 383, 389 (2012).

                                              8
imposed and, for either reason, is intrinsically and substantively unlawful.” Chaney, 397 Md.

at 466, 918 A.2d at 510. See also Pollard v. State, 394 Md. 40, 42, 904 A.2d 500, 501 (2006)

(holding that “[t]he sentence imposed was neither illegal, in excess of that prescribed for the

offense for which Petitioner was convicted, nor were the terms of the sentence itself

statutorily or constitutionally invalid”).

       The distinction between those sentences that are “illegal” in the commonly understood

sense, subject to ordinary review and procedural limitations, and those that are “inherently”

illegal, subject to correction “at any time” under Rule 4-345(a), has been described as the

difference between a substantive error in the sentence itself, and a procedural error in the

sentencing proceedings. See Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 308, 312 (2012)

(“[W]here the sentence imposed is not inherently illegal, and where the matter complained

of is a procedural error, the complaint does not concern an illegal sentence for purposes of

Rule 4-345(a).”); State v. Wilkins, 393 Md. 269, 284, 900 A.2d 765, 774 (2006) (“[A]ny

illegality must inhere in the sentence, not in the judge’s actions. In defining an illegal

sentence the focus is not on whether the judge’s ‘actions’ are per se illegal but whether the

sentence itself is illegal.”). As aptly stated by Judge Charles E. Moylan, Jr., speaking for the

Court of Special Appeals in the recent case, Carlini v. State, 2013 WL 6669237, at *1 (Dec.

18, 2013), “[t]here are countless illegal sentences in the simple sense . . . [and] [t]here are,

by contrast, illegal sentences in the pluperfect sense . . . there is a critically dispositive

difference between a procedurally illegal sentencing process and an inherently illegal



                                               9
sentence itself,” and “only the latter [ ] is grist for the mill of Maryland Rule 4-345(a)[.]”

Accordingly, our inquiry in this case is whether Petitioner’s sentence itself is inherently

illegal.

           To support his contention that his sentence is illegal, Petitioner relies on Bowman v.

State, 314 Md. 725, 552 A.2d 1303 (1989). In that case, the defendant was sentenced to 25

years without the possibility of parole under an enhanced sentencing statute for a third

conviction of a crime of violence. The trial judge sentenced the defendant pursuant to the

relevant statute on the belief that defendant had been twice convicted of armed robbery,

which qualifies as a “crime of violence” for the purposes of the subsequent offender

sentencing statute. Bowman, 314 Md. at 731, 552 A.2d at 1305. Both predicate convictions

occurred in the District of Columbia. In fact, although one of the two convictions was for

armed robbery, the other conviction was for robbery. Id. On appeal, the robbery conviction

was determined to be for “simple robbery,”5 which under District of Columbia law did not

necessarily meet the definition of a violent crime for the purposes of the Maryland enhanced

sentencing statute. Therefore, the predicate conviction could not support an imposition of

an enhanced sentence, and this Court vacated the sentence as illegal. Bowman, 314 Md. at

738, 552 A.2d at 1309.



           5
         We stated that the definition of robbery under District of Columbia law “ha[d] been
interpreted to include acts, such as pickpocketing for example, which involve stealth but not
violence or putting in fear” and that “in Maryland, on the other hand, mere pickpocketing
would be larceny[,] not a crime of violence[.]” Bowman, 314 Md. at 730-31, 552 A.2d at
1305 (citing Temoney v. State, 290 Md. 251, 429 A.2d 1018 (1981)) (emphasis in original).

                                                 10
       The conclusion in Bowman, however, is distinguishable from the present case. In that

case, one of the two predicate convictions did not qualify under the statute for subsequent

offender status and enhanced sentencing. Where only one of the two prior convictions was

proven to satisfy the requirements of the statute, the enhanced sentence was not “permitted

by law.” Bowman, 314 Md. at 738, 552 A.2d at 1309; Walczak, 302 Md. at 427, 488 A.2d

at 951. That is, there existed an “inherent illegality” in the sentence.6 By contrast, in the

instant matter, the two underlying convictions did satisfy the requirements of the enhanced

sentencing statute. At issue here is not whether there existed the necessary predicate

convictions to meet the statutory requirements for an enhanced sentence. The issue is

whether there was sufficient evidence of Petitioner’s identity to prove beyond a reasonable

doubt that the predicate convictions are connected to Petitioner, where there was some

discrepancy in the record as to Petitioner’s birth date and incarceration dates.

       This Court’s holding in Chaney, on the other hand, is instructive. In that case, Chaney

challenged the imposition of restitution and employment conditions of his probation.

Specifically, Chaney argued that his sentence was illegal “in large part because no

evidentiary foundation was laid to support” those conditions of probation. 397 Md. at 467,

918 A.2d at 510. We determined that even if that were so, “that does not make the conditions




       6
         It is important to note that the Court in Bowman did not characterize the sentence as
“inherently illegal,” because review under Rule 4-345(a) was not directly at issue.
Nevertheless, we so characterize it here to distinguish the intrinsic and substantive illegality
of the sentence in Bowman from the sentence in the present case.

                                              11
intrinsically illegal.” Id. Rather, the lack of evidentiary support was a procedural flaw,

which does not fall within the category of sentences reviewable under Rule 4-345(a).7

Similarly, in the present case, Petitioner’s complaint relates to the sufficiency of the

evidence. Like the imposition of restitution in Chaney, the challenge here is to an alleged

procedural flaw, subject to the normal preservation rules. Thus, we conclude that there is no

“inherent illegality” within the meaning of Rule 4-345(a).

       The Court of Special Appeals held that Bryant’s claim with regard to his enhanced

punishment was not properly preserved for review, stating that “[u]pon Bryant’s conviction,

he became eligible for enhanced sentencing; thus the sentence imposed was not intrinsically

and substantively unlawful. What is challenged is not the sentence itself, but the sufficiency

of the evidence to support the sentence, which, if not raised at the trial court, cannot be raised

for the first time on direct appeal.” We agree. Where the predicate convictions both

qualified under the enhanced sentencing statute and the trial court was “satisfied that the




       7
          In Chaney, we held that “[w]hat we have before us in this appeal, therefore, is a
complaint never presented to the trial court about a sentence, or part of a sentence, that is not
‘illegal’ within the meaning of Maryland Rule 4-345(a)[, and that] [o]rdinarily, and routinely,
we would hold the complaint waived and refuse to address it.” Chaney, 397 Md. at 468, 918
A.2d at 511. Nevertheless, in that case, we decided to consider the restitution issue pursuant
to our discretion under Rule 8-131(a), and concluded that because the procedure for seeking
restitution as part of sentence was not complied with, that portion of sentence had to be
vacated. Chaney, 397 Md. at 473, 918 A.2d at 513. As noted supra, circumstances
warranting our review under rule 8-131(a) are not present here and therefore we will not
exercise our discretion to consider the merits in this case.

                                               12
qualifications . . . have been met,” Petitioner’s sentence was not “inherently illegal.” 8

Therefore, Petitioner’s complaint is not properly before this Court. See Chaney, 397 Md. at

466-67, 918 A.2d at 510 (holding that the challenged sentence was not illegal and that “any

other deficiency in the sentence that may be grounds for an appellate court to vacate it–

impermissible considerations in imposing it, for example–must ordinarily be raised in or

decided by the trial court and presented for appellate review in a timely-filed direct appeal”).

Moreover, as we stated in State v. Wilkins, “a motion to correct an illegal sentence is not an

alternative method of obtaining belated appellate review of the proceedings that led to the

imposition or judgment and sentence in a criminal case.” 393 Md. at 273, 900 A.2d at 768.

       Next, Petitioner argues that, in the alternative, this Court must review the challenge

to Petitioner’s sentencing under Md. Rule 8-131(c), which provides that:

       When an action has been tried without a jury, the appellate court will review
       the case on both the law and the evidence. It will not set aside the judgment of
       the trial court on the evidence unless clearly erroneous, and will give due
       regard to the opportunity of the trial court to judge the credibility of the
       witnesses.

Rule 8-131(c) embodies the “clearly erroneous” standard to be applied by the appellate courts

in review of bench trials. See Davis v. Davis, 280 Md. 119, 122, 372 A.2d 231, 232 (1977)




       8
         As this Court noted in Evans v. State, 396 Md. 256, 271, 914 A.2d 25, 34 (2006),
“[i]f the sentence is not ‘illegal,’ the court’s revisory power over it, with exceptions not
pertinent here, is limited to a showing of fraud, mistake, or irregularity in the sentence.” See
Md. Rule 4-345(b) (providing that “[t]he court has revisory power over a sentence in case
of fraud, mistake, or irregularity”). In this case, as the State notes, “Bryant does not contend
his sentence was the product of fraud, mistake, or irregularity.”

                                               13
(“Maryland Rule [8-131(c), previously Rules 886 and 1086,] provide[s] the standard of

review of actions tried without a jury . . . . The ‘clearly erroneous’ concept is no newcomer

to Maryland procedure[.]”). See also Lambert v. State, 196 Md. 57, 68, 75 A.2d 327, 332

(1950) (“That rule was adopted for the purpose of preventing a possible miscarriage of

justice by permitting the determination of one judge to take away the life or liberty of an

accused without a review by any other tribunal.”); Williams v. State, 5 Md. App. 450, 456-60,

247 A.2d 731, 735-38 (1968) (providing a thorough discussion of the history of what is now

Rule 8-131(c)).

       In arguing that review is proper under Rule 8-131(c), Petitioner relies on Ford v.

State, 73 Md. App. 391, 534 A.2d 992 (1988), which also involved the sentencing of a

subsequent offender. On appeal in that case, the defendant argued that the State failed to

prove the predicate conviction for his enhanced sentence beyond a reasonable doubt. Ford,

73 Md. App. at 402, 534 A.2d at 997. The State countered that the issue was not properly

before the appellate court because the defendant did not object at the time the sentence was

imposed. The Court of Special Appeals noted that “[i]n fact, appellant failed to object twice”

but then apparently concluded that there was no reasonable opportunity for the defendant to

object, stating that:

       At the time the prosecutor was making his proffer of the appellant’s record,
       appellant was under no obligation to say anything. Until the prosecutor placed
       the certified copy of the conviction into evidence or produced other competent
       evidence, there was nothing to controvert. A proffer is not evidence unless the
       parties stipulate that a proffer will suffice. Appellant continued his silence;
       hence, there was no agreement that the facts were as proffered when the

                                             14
       sentence was imposed.

Ford, 73 Md. App. at 404, 534 A.2d at 998. Then, the Court of Special Appeals stated that

“[o]ur review of this silence implicates our review under Rule 1086 [now Rule 8-131(c)]”and

held that Rule 8-131(c) “applies equally to proceedings where an enhanced sentence may be

imposed. Appellant’s failure to raise the issue of whether the State produced sufficient

evidence of a prior conviction does not preclude his seeking review by this tribunal.” Ford,

73 Md. App. at 404-05, 534 A.2d at 998.

       We interpret the above language in Ford to mean that there was no reasonable

opportunity to object to the evidence; thus preservation was not at issue on appeal. See Hill,

355 Md. at 219, 734 A.2d at 206 (“If a party has no opportunity to object to a ruling or order

when it is made, the absence of an objection at that time does not constitute a waiver.”).

Accordingly, because the substantive issue regarding the defendant’s sentence was properly

before the intermediate appellate court, the Court of Special Appeals went on to state the

applicable standard of review, which appears in Rule 8-131(c).9 While we certainly agree




       9
        Like Bowman, the intermediate appellate court in Ford reviewed the evidence of the
underlying convictions to determine whether they met the statutory requirements for the
enhanced sentencing statute. Ford is also factually distinguishable from the instant case,
because there, the State failed to present competent evidence to prove a qualifying
conviction, which led the Court of Special Appeals to hold, without stating that the sentence
was illegal, that the State failed to prove the prior conviction beyond a reasonable doubt and
therefore the sentence must be vacated. Ford, 73 Md. App. at 405, 534 A.2d at 998. As we
have noted and will note infra, if we were to reach the merits, the State in the instant case
presented competent evidence for a reasonable trier of fact to find a nexus between the
qualifying convictions and Petitioner beyond a reasonable doubt.

                                             15
that Rule 8-131(c) would “apply equally” to sentencing proceedings to provide the standard

of review (clearly erroneous) where the trial judge made the findings of fact necessary to

support a particular sentence, we do not agree with Petitioner that Rule 8-131(c) provides an

avenue for this Court to exercise its authority to review an otherwise unpreserved or waived

issue. Rule 8-131(c) neither expressly nor implicitly provides an exception to our general

preservation rules or the contemporaneous objection rule. Rather, subsection (c) merely

defines the standard of review to be applied by the appellate court sitting in review of non-

jury trials. See Davis, 280 Md. at 122, 372 A.2d at 232.

       Footnote 9 at the end of the Ford decision further clarifies this point. The footnote

states that “[w]e recognize that this might seem to put a premium on a defendant’s silence

to the detriment of the State. This need not be so; the State need only follow the ruling of

Butler [v. State, 46 Md. App. 317, 416 A.2d 773 (1980)], Teeter [v. State, 65 Md. App. 105,

499 A.2d 503 (1985),] and Sullivan [v. State, 29 Md. App. 622, 349 A.2d 663 (1976).]”

Ford, 73 Md. App. at 406 n.9, 534 A.2d at 999 n.9. A review of Butler, Teeter, and Sullivan

reveals that in each of those cases, the preservation issue was not addressed by review under

Rule 8-131(c). Specifically, in Butler, the Court of Special Appeals reached the merits of the

enhanced sentencing issue because “manifest injustice would possibly result if [the court]

d[id] not review the issue.” Butler, 46 Md. App. at 322, 416 A.2d at 776. The Court of

Special Appeals in Teeter reviewed the merits of the defendant’s challenge as an illegal

sentence under this Court’s holding in Walczak. See Teeter, 65 Md. App. at 115, 499 A.2d



                                             16
at 508 (“[Defendant] concedes that he failed to preserve this issue for our review, but

reminds us that an assertion of an unauthorized sentence may be considered for the first time

on appeal.”). Similarly, the Court of Special Appeals in Sullivan only addressed the legality

of the sentence, without discussing preservation. Sullivan, 29 Md. App. at 625, 349 A.2d at

666 (“The questions [the defendant] presents go only to the legality of the sentence.”). Thus,

it is clear that none of these cases relied on Rule 8-131(c) to provide a pathway to reach an

unpreserved issue.

       No other case appears to apply Rule 8-131(c) as providing for an enhanced appellate

scope of review. In Sutton v. State, 128 Md. App. 308, 328, 738 A.2d 286, 297 (1999), the

intermediate appellate court cited Ford, 73 Md. App. at 405, 534 A.2d at 998, for the

proposition that “[the defendant’s] failure to raise the issue of whether the State produced

sufficient evidence of a prior conviction does not preclude his seeking review by this

tribunal.” From this language in Ford, the Sutton court concluded that it would address the

merits of the defendant’s claim that there was insufficient evidence to prove the predicate

convictions for sentencing as a subsequent offender, despite the defendant’s failure to object

during sentencing. 128 Md. App. at 328, 738 A.2d at 297. The Sutton court, however, did

not rely on Rule 8-131(c) to demonstrate the scope of its review of the matter, but reviewed

the issue as an illegal sentence, citing Walczak, 302 Md. at 427, 488 A.2d at 951. Therefore,

we reject the Petitioner’s argument that Rule 8-131(c) provides an alternate basis for this

Court’s review of Petitioner’s sentencing.



                                             17
       In summary, the allegation that the court imposed an illegal sentence within the

meaning of Rule 4-345(a) may be raised at any time. If the sentence is not illegal under Rule

4-345(a) and the allegation was not preserved, the allegation is waived and not properly

before the court. The appellate court, however, in the exercise of its discretion under Rule

8-131(a) may review an unpreserved issue. We decline to do so here. Accordingly, we hold

that, where there was no objection below despite the opportunity to do so, Petitioner’s

challenge to his enhanced sentence is not preserved for the appellate court’s review.

       Assuming, arguendo, that the matter were properly before this Court, we would

nevertheless hold that the evidence presented was sufficient for the sentencing judge to

conclude that Petitioner committed the qualifying predicate offenses under § 5-608(c) beyond

a reasonable doubt.10 “When the State seeks an enhanced penalty, the State must prove each

       10
            Md. Code (2002), § 5-608(c) of the Criminal Law Article states:

(1) A person who is convicted under subsection (a) of this section or of conspiracy to commit
a crime included in subsection (a) of this section shall be sentenced to imprisonment for not
less than 25 years and is subject to a fine not exceeding $100,000 if the person previously:
        (i) has served at least one term of confinement of at least 180 days in a correctional
        institution as a result of a conviction:
                1. under subsection (a) of this section or § 5-609 or § 5-614 of this subtitle;
                2. of conspiracy to commit a crime included in subsection (a) of this section
                or § 5-609 of this subtitle; or
                3. of a crime under the laws of another state or the United States that would be
                a crime included in subsection (a) of this section or § 5-609 of this subtitle if
                committed in this State; and
        (ii) has been convicted twice, if the convictions arise from separate occasions:
                1. under subsection (a) of this section or § 5-609 of this subtitle;
                2. of conspiracy to commit a crime included in subsection (a) of this section
                or § 5-609 of this subtitle;
                                                                                     (continued...)

                                                18
element of the enhanced penalty statute beyond a reasonable doubt, including the defendant’s

identity in the previous qualifying convictions.” Dove v. State, 415 Md. 727, 746, 4 A.3d

976, 987 (2010). This is proven by competent evidence of all the statutory elements. Jones

v. State, 324 Md. 32, 37, 595 A.2d 463, 465 (1991). It should be noted that “[t]he strict rules

of evidence do not apply at a sentencing proceeding[.]” Smith v. State, 308 Md. 162, 166,

517 A.2d 1081, 1083 (1986).         A sentencing judge’s “task within fixed statutory or

constitutional limits is to determine the type and extent of punishment after the issue of guilt

has been determined. Highly relevant–if not essential–to his selection of an appropriate

sentence is the possession of the fullest information possible concerning the defendant’s life

and characteristics.” Smith, 308 Md. at 167, 517 A.2d at 1084 (quoting Williams v. New

York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed. 1337, 1342 (1949)).

       Petitioner challenges the sufficiency of the evidence to establish his identity in the

prior qualifying convictions, namely a conviction for possession of heroin with intent to

distribute in 1995 and possession of heroin with intent to distribute in 2001. In order to



(...continued)
               3. of a crime under the laws of another state or the United States that would be
               a crime included in subsection (a) of this section or § 5-609 of this subtitle if
               committed in this State; or
               4. of any combination of these crimes.
(2) The court may not suspend any part of the mandatory minimum sentence of 25 years.
(3) Except as provided in § 4-305 of the Correctional Services Article, the person is not
eligible for parole during the mandatory minimum sentence.
(4) A separate occasion is one in which the second or succeeding crime is committed after
there has been a charging document filed for the preceding crime.


                                              19
prove the existence of the predicate qualifying convictions at Petitioner’s sentencing, the

State first submitted certified copies of docket entries involving two separate cases. The

docket entry submitted as exhibit one contained the information that on October 20, 1995,

Tyrone L. Bryant, date of birth April 23, 1971, was sentenced in Baltimore City Case No.

295243003, to three years for possession with intent to distribute heroin with credit for time

served accounting from June 29, 1995. The State Identification number (“SID number”) for

this defendant was 000992305. The second docket entry, submitted as exhibit two, indicated

that on July 13, 2001, Tyrone Bryant, date of birth April 23, 1971, was sentenced to ten years

in Baltimore City Case No. 200271002, for possession with intent to distribute heroin with

credit for time served accounting from October 9, 2000.11         The SID number for this

defendant was also 000992305.

       Correctional Case Management Specialist Bibika Cash from Patuxent Institution, after

review of the case file for an inmate with DOC ID number 301-637, testified that the file

contained a photograph of a man named Tyrone Bryant with a date of birth of November 22,

1969, described as a black male with brown eyes. This photograph was submitted as exhibit

five. The file further indicated that Tyrone Bryant was incarcerated in Case No. 200271002

from October 9, 2000 to September 12, 2007.



       11
         It is confirmed by additional documents in the court file–namely the PSI report and
the underlying statement of probable cause for the 2001 conviction–that Petitioner was
arrested on June 20, 2000, was incarcerated on October 9, 2000, and was convicted on July
13, 2001 for the predicate offense listed as Case No. 200271002. All of this information was
readily available to the sentencing judge.

                                             20
       The pre-sentence investigation report (“PSI report”), which was “prepared in

conjunction with [Petitioner’s] sentencing,”12 was part of the case file before the sentencing

judge. The PSI report contained extensive information about Tyrone Bryant, with a date of

birth of November 22, 1969 and SID number 992305. The PSI report also contained a

catalogue of Tyrone Bryant’s criminal history that included the convictions for Case Nos.

295243003 and 200271002. Besides the listed birth date, all of the information in the PSI

report concerning these convictions was consistent with the information contained in the

docket entries introduced as exhibits one and two.

       While there are a few discrepancies clearly present in the record, namely disparate

birth dates and incarceration dates for Tyrone Bryant, a review of the PSI report 13 in



       12
          Petitioner concedes that the PSI report was prepared for the purposes of the
sentencing proceeding. The dissenting opinion asserts that the sentencing judge did not
consider the PSI report when imposing the enhanced sentence because the PSI report was not
identified as an “exhibit” that the Circuit Court reviewed. Here, the sentencing judge clearly
exercised her discretion to order a PSI report under Md. Code (1999, 2008 Repl. Vol.), § 6-
112 of the Correctional Services Article. The PSI report contains the record of Petitioner’s
prior convictions and his prior institutional history. It would seem highly unlikely that, in a
case involving the imposition of a mandatory enhanced sentence, the sentencing judge would
have ignored the PSI report. Moreover, we are not aware of any rule that requires a judge
to announce on the record every piece of evidence or the source of evidence considered by
the court in imposing a sentence.
       13
          There have been several instances in which the intermediate appellate court has
upheld an enhanced sentence that was based on evidence found in a defendant’s PSI report.
See Sutton v. State, 128 Md. App. 308, 738 A.2d 286 (1999) (holding that the PSI report was
sufficient evidence of prior convictions so long as counsel does not object to its accuracy);
Collins v. State, 89 Md. App. 273, 598 A.2d 8 (1991) (same); Hall v. State, 69 Md. App. 37,
516 A.2d 204 (1986) (holding that review and acceptance of the PSI report was “tantamount
to a judicial admission” and sufficient to prove prior convictions).

                                              21
conjunction with the docket entries reveals that the defendant has the same SID number in

all three cases. As this Court has previously explained, “[a] SID . . . number is a unique

number directly linked to an individual’s fingerprints. Because of that link, no two persons

should have the same SID number; nor, if the proper procedures are followed, should a

person ever have more than one SID number.” See State v. Dett, 391 Md. 81, 85, 891 A.2d

1113, 1115 (2006) (recognizing that where the arrestee’s designated SID number did not

match the SID number on the arrest warrant and commitment order, the arrestee was

unjustifiably detained). Petitioner has made no challenge as to the accuracy of the SID

number in this case. Also included in the record was a photograph of Tyrone Bryant that was

part of the case file for one of his predicate convictions. The image’s likeness to the

Petitioner was not contested. Moreover, Petitioner never challenged the State’s assertion that

he was the person to commit the qualifying predicate offenses even when directly asked by

the sentencing judge. Therefore, the sentencing judge properly exercised her discretion when

she determined that sufficient evidence was before her to conclude that Petitioner committed

the predicate offenses beyond a reasonable doubt.




                                                  JUDGMENT OF THE COURT OF
                                                  SPECIAL APPEALS AFFIRMED.
                                                  PETITIONER TO PAY COSTS.




                                             22
Circuit Court for Baltimore City
Case No. 108296012

Argued: December 5, 2013
                                         IN THE COURT OF APPEALS

                                               OF MARYLAND

                                                    No. 37

                                             September Term, 2013
                                   ______________________________________

                                              TYRONE BRYANT

                                                       v.

                                           STATE OF MARYLAND
                                   ______________________________________

                                              Barbera, C.J.,
                                              Harrell
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts
                                              Rodowsky, Lawrence F. (Retired,
                                              Specially Assigned),

                                                   JJ.
                                   ______________________________________

                                      Dissenting Opinion by Watts, J., which
                                               McDonald, J., joins
                                   ______________________________________

                                              Filed: February 3, 2014
       Respectfully, I dissent.

       Under the circumstances of this case, I would find that the Court should exercise

its discretion, pursuant to Maryland Rule 8-131(a), to review the legality of the sentence,

and I would hold that the State failed to prove the two predicate offenses beyond a

reasonable doubt.

       In Dove v. State, 415 Md. 727, 746, 4 A.3d 976, 987 (2010), we held: “When the

State seeks an enhanced penalty, the State must prove each element of the enhanced

penalty statute beyond a reasonable doubt, including the defendant’s identity in the

previous qualifying convictions.” (Citations omitted). Dove was issued on September

21, 2010, approximately two weeks before the sentencing in the instant case occurred on

October 4, 2010. Thus, at the time of Petitioner’s sentencing, proof of identity–that

Petitioner was the defendant in the predicate offenses–was required.

       Here, the State failed to prove beyond a reasonable doubt that Petitioner was the

defendant in the two predicate offenses. At sentencing, the State introduced into evidence

certified copies of docket entries for two convictions: a 1995 conviction and a 2001

conviction. The certified copy of the docket entries for the 1995 conviction indicated that

on October 20, 1995, a Tyrone Bryant, born April 23, 1971, was sentenced to three years’

imprisonment for possession of a controlled dangerous substance with intent to distribute,

with credit for time served beginning June 29, 1995. The certified copy of the docket

entries for the 2001 conviction reflected that on July 13, 2001, a Tyrone Bryant, born

April 23, 1971, was sentenced to ten years’ imprisonment for possession of a controlled
dangerous substance with intent to distribute, with credit for time served beginning

October 9, 2000.

       Oddly, the State’s fingerprint examinations expert admitted on cross-examination

at sentencing that she had no “scientific training” in making fingerprint comparisons and

agreed that she was “a layperson in that regard[.]” Defense counsel moved to strike the

expert’s testimony, and, although denying the motion, the circuit court stated that the

expert’s testimony would not “play a role” in the circuit court’s sentencing decision.

       The State produced a witness, Bibika Cash, who testified that she reviewed a file

for inmate number 301637,1 and according to the file, the inmate, Tyrone Bryant, was

born November 22, 1969, and had been incarcerated, under case number 200271002,

from October 9, 2000, to September 12, 2007. When asked how she was able to identify

inmate number 301637 as Tyrone Bryant, Cash responded that the file contained a “photo

ID picture” with the name Tyrone Bryant and the identification number on it.2 Cash thus

identified Petitioner as Tyrone Bryant, with a date of birth of November 22, 1969, and

inmate number 301637, as the subject of the 2000 incarceration; Cash made no attempt to

identify Petitioner as the subject of the 1995 conviction.

       “Tyrone Bryant” is a common name. And, as evidenced, there was a discrepancy

in the dates of birth of the individual listed as the subject of the 1995 and 2001

convictions and the date of birth of Petitioner as identified by Cash. Other than Cash

       1
         The Majority refers to this number as “DOC ID number 301-637.” See Majority Slip
Op. at 2, 20.
       2
         The inmate identification number–301637–is distinct from the state identification
(“SID”) number–000992305–allegedly assigned to Tyrone Bryant. Cash was not questioned
about any SID number allegedly assigned to Petitioner.


                                            -2-
identifying a photograph of Tyrone Bryant as the subject of the 2000 incarceration, there

was no evidence identifying Petitioner as the subject of either the 1995 or 2001

conviction. And the dates of birth for Petitioner varied in the Department of Corrections

records and the certified copies of docket entries for the 2001 conviction. Thus, in my

view, the evidence was insufficient to establish beyond a reasonable doubt that Petitioner

was the subject of either the 1995 or the 2001 conviction. In sum, I would hold that: (1)

the State failed to prove the predicate offenses beyond a reasonable doubt, in that there

was no testimony or evidence establishing beyond a reasonable doubt, or even at all, that

Petitioner was the subject of the 1995 conviction; (2) the State failed to prove Petitioner

was the subject of the 2001 conviction; and (3) the State failed to prove the 1995 and

2001 convictions pertained to the same person, given the common name and discrepancy

in dates of birth.

       Although the Majority states that the record before the circuit court included,

among other things, the pre-sentence investigation report (“the Report”) and docket

entries with the same state identification (“SID”) number, a review of the transcript of the

sentencing hearing reveals that the circuit court did not rely on the Report or the SID

number in finding that the predicate convictions had been established beyond a

reasonable doubt, and neither the Report nor the SID number establishes beyond a

reasonable doubt that Petitioner was the subject of either conviction. The circuit court

simply announced, based on its review of the “State’s exhibits,” that the two predicate

convictions were established beyond a reasonable doubt.        As to the SID numbers, in

State v. Dett, 391 Md. 81, 85, 891 A.2d 1113, 1115 (2006), we stated, “[a] SID . . .


                                           -3-
number is a unique number directly linked to an individual’s fingerprints. Because of that

link, no two persons should have the same SID number; nor, if the proper procedures

are followed, should a person ever have more than one SID number.” (Emphasis added)

(footnote omitted). The critical language is “if the proper procedures are followed.” In

circumstances, such as here, where there are discrepancies in the identifying information

related to the prior convictions, it is critical that the matching SID numbers were the

result of “proper procedures” if they are the sole or primary basis for a finding beyond a

reasonable doubt.    There is no information in the record regarding how the SID

number–000992305–was obtained or entered for Petitioner for either the 1995 conviction

or the 2001 conviction. For example, had the circuit court chosen to rely on the SID

number–which the record reflects it did not–the circuit court would have had no way of

knowing whether two defendants with the same name but different dates of birth were

assigned the same SID number. This Court is confronted with the circumstances that the

SID number 000992305 is assigned to a defendant in two court files where the defendant

has a common name; a different date of birth is attached to Department of Corrections

records pertaining to one of the cases (the 2001 case) and to the Report; and Petitioner has

not been identified in any manner as being the subject of the conviction in the second case

(the 1995 case). It is impossible to conclude beyond a reasonable doubt that “proper

procedures were followed” and the instant SID number applies solely to Petitioner.

       As to the Report, the State did not introduce a copy of the Report into evidence

during sentencing–i.e., there is no indication that the Report was one of the State’s

exhibits that the circuit court reviewed–and the circuit court neither mentioned the Report


                                           -4-
in its determination nor otherwise indicated that the Report contained information

concerning the predicate convictions. Thus, there is no basis to conclude that the Report

is a part of the evidence available for consideration by this Court in reviewing the

reasonable doubt determination.      Adding to the confusion, and undermining proof of

Petitioner’s identity beyond a reasonable doubt, the Report identifies Petitioner’s date of

birth as November 22, 1969.

       I am aware that the circuit court had the Report, and that the parties referred to the

report after the circuit court announced its determination as to the predicate convictions.

This falls far short, however, of establishing that the Report was an “exhibit,” or that the

circuit court reviewed or relied on the Report in making the determination. And, defense

counsel did not concede the accuracy of the Report prior to the circuit court’s

determination.3 If the standard for proving predicate convictions was a “more likely than

not” or preponderance standard, then perhaps discussing the Report after the fact would

be sufficient to permit a holding now that the Report was an exhibit, and the circuit court

likely considered it prior to making its determination. The standard for proving predicate

convictions, however, is proof beyond a reasonable doubt; and from the record in this

case, it cannot be discerned that the Report was part of the evidence or that the circuit

court relied on or even saw the Report before making its determination that the State

established the predicate convictions beyond a reasonable doubt.


       3
        Although the Majority accurately observes that when asked whether his position was
that these were not Petitioner’s convictions, defense counsel responded, “I can’t speak, I
can’t say that right now[,]” the response did not alleviate the State of the burden to prove the
predicate offenses beyond a reasonable doubt.


                                             -5-
      Here, we address the imposition of a mandatory minimum sentence of twenty-five

years’ imprisonment without the possibility of parole under the standard of proof beyond

a reasonable doubt. We should not infer evidence as to Petitioner’s identity for the 1995

and 2001 convictions where such evidence does not exist and was not proven beyond a

reasonable doubt. I would remand for resentencing, including a determination by the

circuit court as to the establishment of the two predicate offenses beyond a reasonable

doubt.4

      Judge McDonald has authorized me to state that he joins in this opinion.




      4
         “Historically, [the Supreme Court] has found double jeopardy protections
inapplicable to sentencing proceedings, because the determinations at issue do not place a
defendant in jeopardy for an ‘offense[.]’” Monge v. California, 524 U.S. 721, 728, 118 S.
Ct. 2246, 2250 (1998) (internal citations omitted). In Monge, 524 U.S. at 724, 729, 118 S.
Ct. at 2248, 2251, the Supreme Court held that the exception established in Bullington v.
Missouri, 451 U.S. 430, 101 S. Ct. 1852 (1981)—that the Double Jeopardy Clause applies
to sentencing proceedings in capital cases—does not extended to non-capital sentencing
proceedings because:

      [s]entencing decisions favorable to the defendant[] cannot generally be
      analogized to an acquittal. We have held that where an appeals court overturns
      a conviction on the ground that the prosecution proffered insufficient evidence
      of guilt, that finding is comparable to an acquittal, and the Double Jeopardy
      Clause precludes a second trial. Where a similar failure of proof occurs in a
      sentencing proceeding, however, the analogy is inapt. The pronouncement of
      sentence simply does not “have the qualities of constitutional finality that
      attend an acquittal.”

      (Internal citations omitted).


                                           -6-
