             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND



               No. 0508

        September Term, 2012




    TOMMY GARCIA BONILLA

                   v.

      STATE OF MARYLAND




   Krauser, C.J.,
   Woodward,
   Salmon, James P.
    (Retired, Specially Assigned),

                  JJ.


         Opinion by Salmon, J.



        Filed: May 27, 2014
       This case has an unusual procedural background that presents us with the following

issue: If a judge imposes a sentence that is less than the sentence agreed upon by the judge,

the prosecutor and the defendant in an ABA plea agreement,1 may another judge, pursuant

to Md. Rule 4-345(a), later increase that sentence? We shall answer “yes” to that question.

                                              I.

                                   UNDISPUTED FACTS

       In 1989, Tommy Garcia Bonilla (“Bonilla”) was indicted by a Prince George’s County

grand jury on two counts of first-degree murder and numerous other serious crimes. Count

I of the indictment charged Bonilla with the first-degree murder, on April 14, 1989, of Jose

Lozano. In count III, Bonilla was charged with the first-degree murder of Ruth Vasquez.

After the indictment was filed, the State notified Bonilla that it intended to seek a sentence

of life without possibility of parole.

       On August 28, 1990, Bonilla changed his plea to guilty in regards to the first-degree

murder charges set forth in counts I and III of the indictment. Prior to entering the guilty

plea, Bonilla admitted, on the record, that the following facts, among many others, were true:

1) about one month before the murders of Mr. Lozano and Ms. Vasquez, he and one Freddy


       1
      In Gross v. State, 186 Md. App. 320, 322, n.1 (2009), we said that an ABA plea
agreement:

       Is an agreement by the sentencing judge, the defendant and the prosecutor
       as to what the maximum sentence will be if the plea is accepted. In the
       subject case, the ABA plea agreement specified the exact sentence that
       would be imposed. In some ABA plea agreements, however, the judge,
       prosecutor and the defendant simply agree that if the plea is accepted the
       sentence imposed will not exceed a specified number of days or years.
R. DeLeon [“DeLeon”] formed a plan; 2) the plan was to enter apartment No. 508, located

at 1802 Metzerott Road, in Prince George’s County, to kill whomever they found there and

to steal cocaine that they believed to be in the apartment; 3) on April 14, 1989, Bonilla and

DeLeon entered apartment 508, ransacked it, and stole the cocaine and jewelry they found

in the apartment; 4) while in the apartment, DeLeon, using a 9 mm handgun, shot Jose

Lozano once in the back of the head, killing him instantly; and 5) after Mr. Lozano was

killed, Bonilla, using a 38 caliber handgun, killed Ruth Vasquez by shooting her once in the

chest.2

          Prior to pleading guilty, the State, the presiding judge, and Bonilla entered into an

unambiguous ABA plea agreement. The terms of that agreement were that Bonilla would,

if called by the State, testify truthfully at the trial of DeLeon and would enter guilty pleas

as to counts I and III of the indictment. In exchange, as to count III, which charged appellant

with the premeditated first-degree murder of Ruth Vasquez, the judge would sentence

Bonilla to life imprisonment; 2) as to count I, which charged Bonilla with the first-degree

murder of Jose Lozano, the court would impose a consecutive sentence of life imprisonment,

with all but 20 years suspended; and, 3) on the date of sentencing, the State would withdraw

its notice of intent to seek a life without possibility of parole sentence and, except as to

counts I and III, nol pros all counts against Bonilla. Sentencing of Bonilla was delayed for

approximately six months, until February 22, 1991, so that Bonilla could testify against


          2
              The victims were house sitting in apartment No. 508 when they were murdered.

                                                -2-
DeLeon.

       At the sentencing hearing, it was agreed that Bonilla had fulfilled his part of the plea

agreement by cooperating in the prosecution of DeLeon. Bonilla’s trial counsel then placed

on the record his recollection of the terms of the ABA plea agreement, but in doing so he got

the counts mixed up. Defense counsel said that the agreement was that as to count I, Bonilla

would receive a life sentence, and as to count III, he would receive a consecutive sentence

of life, suspend all but 20 years. This, of course, was incorrect, but the prosecutor, when his

turn to speak arose, confirmed that what the defense attorney had said in regard to the plea

agreement was accurate. The sentencing judge then proceeded to give the following

sentence: As to count I - life imprisonment; as to count III, life imprisonment suspend all but

20 years, sentence to run consecutive to the sentence imposed in count I.

       More than two decades later, on November 7, 2011, Bonilla filed a motion to correct

an illegal sentence and a motion for credit against time spent in custody. More specifically,

he asked the court to change the sentence imposed in count I to conform with the plea

agreement, i.e., a sentence of life imprisonment, suspend all but 20 years, to run

consecutively with the sentence imposed in count III. If the court had granted the motion,

without also changing the sentence imposed as to count III, Bonilla’s total sentence would

be life, suspend all but 40 years,3 which would have been far less than the total sentence


       3
          If Bonilla’s sentence was changed as requested, the sentence would have been:
life, all suspended but 20 years (count I) and a consecutive sentence (as to count III) of
life, suspend all but 20 years.

                                              -3-
contemplated by the ABA plea agreement, i.e., life plus 20 years.

       On January 17, 2012, the State filed a cross-motion to correct the sentence entered as

to count III. The State took the position that the court was required to correct both sentences

in order to conform with the plea agreement. After conducting two hearings on the pending

motions, the Circuit Court for Prince George’s County, on March 30, 2012, re-sentenced

Bonilla as to count III to life imprisonment; as to count I, the sentence was reduced from the

one originally imposed in 1991, to life suspend all but 20 years, sentence to run consecutively

to the sentence imposed as to count III, sentence to commence as of April 21, 1989. Put

another way, the sentencing judge, in March 2012, gave Bonilla the sentence agreed upon

when the ABA plea agreement was placed on the record in 1990.4

                                              II.

                                QUESTION PRESENTED

       (1) Did the circuit court err by increasing appellant’s sentence on count III from life,

suspend all but Twenty (20) years, to life?

                                              III.

       Md. Rule 4-345(a) provides:

       (a) Illegal sentence. The court may correct an illegal sentence at any time.




       4
      The circuit court judge said that he was re-sentencing Bonilla “to correct the
commitment record and to correct the illegality of the sentence on each count.”

                                              -4-
       At the time Bonilla pled guilty; Md. Rule 4-243 provided, in material part:5

        (a) Conditions for Agreement. – The defendant may enter into an agreement
       with the State’s Attorney for a plea of guilty or nolo contendre on any proper
       condition, including one or more of the following:

                                       .      .      .

         (6) That the parties will submit a plea agreement proposing a particular
       sentence, disposition, or other judicial action to a judge for consideration
       pursuant to section (c) of this Rule.

                                       .      .      .

          (c) Agreements of sentence, disposition, or other judicial action. (1)
       Presentation of the Court. – If a plea agreement has been reached pursuant to
       subsection (a)(6) of this Rule for a plea of guilty or nolle contendre which
       contemplates a particular sentence, disposition, or other judicial action, the
       defendant’s counsel and the State’s Attorney shall advise the judge of the
       terms of the agreement when the defendant pleads. The judge may then accept
       or reject the plea and, if accepted, may approve the agreement or defer
       decision as to its approval or rejection until after such pre-sentence
       proceedings and investigation as the judge directs.

                                       .      .      .

           (3) Approval of Plea Agreement. – If the plea agreement is approved, the
       judge shall embody in the judgment the agreed sentence, disposition, or other
       judicial action encompassed in the agreement or, with the consent of the
       parties, a disposition more favorable to the defendant than that provided for in
       the agreement.

(Emphasis added).

       Bonilla first argues:


       5
         Presently, Md. Rule 4-243 is, in so far as here material, substantively identical to
the version in effect in 1990. Although, since 1990, there have been some changes in the
rule in regard to numbering and spelling.

                                             -5-
               An illegal sentence is a sentence that is not permitted by law. Hoile v.
       State, 404 Md. 591, 621 (2008). Appellant’s life sentence on count one
       constituted an illegal sentence because it exceeded the terms of the binding
       plea agreement with regard to that count. A sentence that exceeds the sentence
       to which the parties agreed as part of a plea agreement constitutes an illegal
       sentence within the meaning of the Rule 4-345(a). Cuffley v. State, 416 Md.
       568, 575 (2010) (citing Dotson v. State, 321 Md. 515, 521-22 (1991)). See
       also, Matthews v. State, 424 Md. 503 (2012). Appellant’s sentence on count
       one was illegal because it exceeded the agreed upon sentence on that count of
       life with all but twenty years suspended. Thus the [c]ourt below acted properly
       by reducing the sentence on that count from life to life suspend all but twenty
       years.

       The State agrees with the argument just quoted, as do we. Bonilla, however, further

contends that the original sentence imposed as to count III was not illegal, even though the

sentence was less than the sentence to which the judge, the prosecutor and he (Bonilla)

agreed. He phrases his argument as follows:

              A sentence increase may also result from the correction of an illegal
       sentence. Hoile, 404 Md. at 620. However, the sentence on Count 3, though
       inconsistent with the plea agreement, did not constitute an illegal sentence.
       Neither this Court nor the Court of Appeals has ever held that a sentence
       below a binding plea agreement constitutes an illegal sentence. In Hoile, the
       Court of Appeals noted that under Maryland Rule 4-345(a), a court may
       increase a sentence, but may not do so under other subsections of the rule. Id.
       at 626. Because [a]ppellant’s sentence was not illegal, the [c]ircuit [c]ourt was
       without jurisdiction to increase the sentence on count three pursuant to
       Maryland Rule 4-345(a).

(Emphasis added).

       This argument is not persuasive. The trial court relied on Md. Rule 4-345(a) — not

any other subsection of Rule 4-345 – when it increased the sentence as to count III. And,

Bonilla advances no logical reason — and we can think of none — why we should hold that



                                              -6-
a sentence that exceeds the one agreed to by the parties to an ABA plea agreement is illegal

while a sentence that is less than the one agreed to in an ABA agreement is not.

       In Hoile v. State, 404 Md. 591 (2008), the Court said:

       Maryland Rule 4-345(a) states that a “court may correct an illegal sentence at
       any time.” The correction of an illegal sentence may result in an increase over
       the erroneous sentence previously imposed on the defendant. State v.
       Griswold, 374 Md. 184, 821 A.2d 430 (2003) (holding that the trial court
       illegally reduced convictions on motion for reconsideration and reinstating
       convictions which effectively increased sentence); State v. Hannah, 307 Md.
       390, 403, 514 A.2d 16, 22 (1986) (vacating, on the State’s appeal, the sentence
       of probation before judgment and ordering trial court to impose mandatory
       minimum of five years in prison); State ex rel. Sonner v. Shearin, 272 Md.
       502, 526, 325 A.2d 573, 586 (1974) (“Upon the remand the trial judge shall
       delete the improper suspension of sentence so that the handgun violation will
       be for the mandatory term of five years.”); Mateen v. Galley, 146 Md. App.
       623, 649, 807 A.2d 708, 723 (2002) (holding that an illegal sentence “may be
       corrected by the imposition of a legal sentence, even though the corrected
       sentence is longer than the original illegal sentence”), reversed on other
       grounds, Mateen v. Saar, 376 Md. 385, 829 A.2d 1007 (2003).

              An illegal sentence is a sentence “not permitted by law.” Walczak v.
       State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985). An illegal sentence is
       properly corrected only “where there is some illegality in the sentence itself or
       where no sentence should have been imposed.” Evans v. State, 382 Md. 248,
       278, 855 A.2d 291, 309 (2004). . . .

Id. at 620-21.

       It is true, as Bonilla asserts, that no reported Maryland appellate case “has ever held

that a sentence” that is below the sentence agreed to in a binding plea agreement constitutes

an illegal sentence. But the Court of Appeals, in Chertkov v. State, 335 Md. 161 (1994),

strongly suggested, albeit in dicta, that such a sentence is illegal. Id. at 174-75.

       In Chertkov, the trial court imposed a sentence in accordance with a binding ABA plea

                                              -7-
agreement, id. at 164, but later reduced the sentence by granting the defendant “probation

before verdict.” Id. at 165. The State filed an appeal, contending that the new sentence was

illegal. Id. at 165-66. The Court of Appeals held that the State had no right to appeal. Id.

at 169-70.

       The Chertkov Court, nevertheless, decided to address the issue of whether the State,

at the circuit court level, had a right to enforce the plea agreement. The reason for addressing

the issue was because that issue was one of “substantial importance.” Id. at 170-71. In that

regard, the Chertkov Court first discussed its decision in Dotson v. State, 321 Md. 515

(1991), a case in which the trial judge imposed a sentence in conformity with the ABA plea

agreement but a sentence review panel later increased that sentence. Id. at 519. The Dotson

Court set aside the more harsh sentence because it constituted an illegal sentence. Id. at 524.

After analyzing the Dotson case, the Chertkov Court (335 Md. at 174-75) said:

              The facts in Dotson do not limit the applicability to the case sub judice
       of the considerations underlying that decision. That it was critical in Dotson
       that the violation of the plea agreement prejudiced the defendant does not
       mean that a violation of a plea agreement that prejudices the State is beyond
       the reach of principles of fairness and equity or that the institution of plea
       bargaining cannot be adversely affected. Just as a defendant would be loathe
       to participate in plea bargaining if he or she could not be certain that the
       bargain that he or she made would be fulfilled, so too would the State. There
       would be no incentive for the State to engage in plea bargaining if it were
       possible for a defendant to enter into a binding plea agreement only to have the
       sentence contemplated by that agreement modified a short time later. Nor
       would it be fair to the State, which is, after all, one of the parties to the
       agreement. See Rule 4-243(a).

              This case presents a stronger case than Dotson for holding a binding
       plea agreement to be inviolate. In this case, unlike in Dotson, the same judge

                                              -8-
       who accepted the petitioner’s pleas and approved the plea agreement calling
       for “a particular sentence” modified that sentence at the behest of the
       petitioner. From Dotson and Rule 4-243(c)(3), it is clear that a court that binds
       itself to fulfill the plea agreement thereby relinquishes his or her right to
       modify the sentence, thereby imposed, absent the consent of the parties, and,
       in particular, in the case of reducing the sentence, absent the consent of the
       State. If a three judge panel, acting pursuant to a different authority, cannot
       violate the binding aspect of a plea agreement, certainly the judge who
       approved the agreement and imposed the sentence cannot.

(Emphasis added) (footnote omitted).

       More recently, in Carlini v. State, 215 Md. App. 415, 437 (2013), we characterized

the language from Chertkov, that we have emphasized, as “considered dicta.” We then

enunciated the principle to be drawn from the ABA plea agreement cases, viz:

              The common denominator in all of these instances of Rule 4-345(a)
       sentence illegality is that once the objective outer boundary markers for the
       sentence have been established, the illegality that inheres in the sentence itself
       is obvious. Even if all of the antecedent proceedings had been procedurally
       impeccable, the illegality of the sentence is facial and self-evident.

215 Md. App. at 438.

       “Here, the outer boundary markers” for the sentence to be imposed as to count III

were set back in 1990 and any sentence imposed outside those boundaries that was lower

than that agreed upon was illegal. Therefore, the circuit court had a right to correct that

sentence so that it would conform to the agreement.6 Chertkov, 335 Md. at 174-75; Carlini,


      6
          Bonilla, relying on subsection (b) of Md. Rule 4-345, argues:

              The sentence imposed on count three is properly characterized as a
       mistake in pronouncement that the court cannot now correct. In State v.
       Sayre, the sentencing court inadvertently sentenced a defendant to a

                                              -9-
215 Md. at 437-38.




                                                  JUDGMENT AFFIRMED; COSTS TO
                                                  BE PAID BY APPELLANT.




      concurrent sentence when the court apparently intended to make the
      sentence consecutive. 314 Md. 559 (1989). After the State brought the
      court’s mistake to its attention, the court called back the defendant and
      changed the sentence from concurrent to consecutive. The Court of
      Appeals held that, under then Maryland Rule 4-345(b), once sentence is
      imposed, the sentencing court cannot change the defendant’s sentence,
      regardless if the sentence imposed may have been in error. Id. at 565.
      Given that appellant’s sentence on count three was neither the result of a
      mistake in the commitment record nor an illegal sentence, but rather a
      mistake in pronouncement, the [c]ourt was without authority to increase the
      sentence once imposed and erred in so doing.

      Subsection (b) of Md. Rule 4-345 deals with judgments that may be revised
      at any time if the judgment was entered due to “fraud, mistake, or
      irregularity.” Id. The fact that the original sentence as to count III was not
      infected with “fraud, mistake or irregularity” as those words are used in
      subsection (b), of Md. Rule 4-345, has nothing to do with situations where
      an illegal sentence is imposed. Illegally imposed sentences are governed by
      subsection (a) of Md. Rule 4-345.

                                           -10-
