SENTENCING   AND   PUNISHMENT     –  RECONSIDERATION    AND
MODIFICATION OF SENTENCE – TIME FOR MOTION OR APPLICATION

When a petitioner is granted the opportunity to file a belated Motion for Modification of
Sentence following a successful post-conviction proceeding pursuant to the Uniform
Postconviction Procedure Act, Md. Code, Criminal Procedure Article, Title 7, the circuit
court has the power to exercise its fundamental jurisdiction beyond the five years set out
in Rule 4-345. The court and moving party have an obligation to ensure that the Motion
for Modification of Sentence is entertained by the court within the spirit of Rule 4-345.
Circuit Court for Baltimore City
Case No. 204299006

                                                 REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND

                                                   No. 1376

                                             September Term, 2017


                                               JOHN SCHLICK

                                                       v.

                                           STATE OF MARYLAND


                                         Wright,
                                         Leahy,
                                         Raker, Irma S.
                                          (Senior Judge, Specially Assigned),

                                                      JJ.


                                              Opinion by Raker, J.


                                   Filed: September 20, 2018




        2018-09-20
        09:53-04:00
       John Schlick appeals from dismissal of his Motion for Modification of Sentence by

the Circuit Court for Baltimore City. He presents the following question for our review,

which we have re-phrased slightly:

              Did the trial court determine correctly that it did not have
              authority under Maryland Rule 4-345 to modify appellant’s
              sentence once five years had passed from the date the original
              sentence was imposed?

       We shall hold that the trial court erred in dismissing the motion and, hence, we shall

reverse.



                                              I.

       Because the sole issue in this appeal relates to the trial court’s action in dismissing

a Motion for Modification of Sentence, we shall not recite the facts of the underlying

criminal charges, and focus only on the facts related to the Motion for Modification of

Sentence.

       On September 20, 2005, the Circuit Court for Baltimore City sentenced appellant to

a term of incarceration of sixteen years, all but eighteen months suspended, five years’

probation for one count of possession with intent to distribute cocaine. On September 15,

2008, appellant appeared for a violation of probation of the 2005 conviction after a

subsequent conviction in which the court imposed a term of incarceration of ten years.

Following this probation violation hearing, the court revoked appellant’s probation and

executed the suspended fourteen years and six months from the 2005 sentence, to run

concurrent with the 2008 ten-year sentence.
       On August 31, 2012, appellant filed a Petition for Postconviction Relief followed

by a November 30, 2012, Supplemental Petition for Postconviction Relief stemming from

the 2008 sentencing proceeding for the probation violation. Recognizing that these

petitions were untimely filed, and claiming ineffective assistance of counsel, appellant

requested leave to file a Motion for Modification of Sentence beyond the ninety-day

deadline set out in Maryland Rule 4-345(e)(1). The Rule, in pertinent part, reads as

follows:

                 “RULE 4-345. SENTENCING—REVISORY POWER OF
                 COURT
                 (e) Modification Upon Motion.
                         (1) Generally. Upon a motion filed within 90 days after
                 imposition of a sentence (A) in the District Court, if an appeal
                 has not been perfected or has been dismissed, and (B) in a
                 circuit court, whether or not an appeal has been filed, the court
                 has revisory power over the sentence except that it may not
                 revise the sentence after the expiration of five years from the
                 date the sentence originally was imposed on the defendant and
                 it may not increase the sentence.”

       Appellant established that in 2008, he had requested that his trial counsel from the

resentencing hearing file a Motion for Modification of Sentence within the ninety-day

deadline. His counsel failed to file that would-have-been-timely Motion for Modification

of Sentence and, at the postconviction proceeding, counsel provided an affidavit admitting

to that error.




                                                2
       On February 20, 2013, the circuit court held a hearing on the petitions. On March

20, 2013, the court granted appellant the right to file a belated Motion for Modification of

Sentence within ninety days of the order.1 The court stated as follows:

                “Petitioner alleges that trial counsel was ineffective for failing
                to file a motion for modification of sentence. An attorney
                appointed to represent a client from the Office of the Public
                Defender is obliged to provide representation for a motion for
                modification of sentence. See Md. Rule 4-214(b). Counsel’s
                failure to adhere to a client’s request to file a motion for
                modification of sentence, when statutory provisions and rules
                expressly extend representation to such a motion, is grounds
                for the post conviction remedy of permission to file a belated
                motion for modification of sentence. State v. Flansburg, 345
                Md. 694, 705 (1997).”

       On May 24, 2013, appellant, with the assistance of counsel, filed a belated Motion

for Modification or Reduction of Sentence. On May 30, 2013, appellant, without the

assistance of counsel, filed a belated Motion for Modification or Reduction of Sentence

requesting that the court hold the motion sub curia. On January 6, 2014, the court set

February 12, 2014, as the date for the Motion for Modification of Sentence hearing. On

January 30, 2014, appellant filed a Motion to Postpone Hearing on the sentence

modification motion. On January 31, 2014, the court granted appellant’s Motion to

Postpone Hearing and ordered the Motion for Modification of Sentence to be held sub

curia. On July 24, 2014, appellant filed a Line requesting a hearing on the Motion for

Modification.




1
 The only timeline stipulated was that “Petitioner may file a belated Motion for
Modification of Sentence within ninety (90) days of the date of this order.”
                                                3
       On December 16, 2015, the court issued an “order to show cause” why the court

should not dismiss the Motion for Modification of Sentence because “the expiration of the

five years from the date the sentence was originally imposed” had passed. Rule 4-345(e)(1)

states that “the court has revisory power over the sentence except that it may not revise the

sentence after the expiration of five years from the date the sentence originally was imposed

on the defendant.” The five-year revisory window in the instant matter would have expired

Monday, September 16, 2013, which was five years from the September 15, 2008,

execution of the sentence imposition following appellant’s probation violation.

       On January 10, 2017, the court held a hearing on the Show Cause Order. On August

8, 2017, the court dismissed the Motion for Modification, stating as follows:

              “FOUND that the date the sentence originally was imposed on
              the defendant is September 15, 2008. Five years from the date
              the sentence originally was imposed on the defendant is
              September 15, 2013; and it is further
              FOUND Defendant filed for post-conviction relief within five
              years from the date the sentence originally was imposed on the
              defendant. Defendant was granted relief and authorized to file
              a belated motion for modification within five years from the
              date the sentence originally was imposed on the defendant.
              Defendant filed a [belated] Motion for Modification or
              Reduction of Sentence within five years from the date the
              sentence originally was imposed on the defendant. Defendant
              failed to request that the Court rule on the [belated] Motion for
              Modification until almost a year after five years from the date
              the sentence originally was imposed on the defendant; and it is
              further
              FOUND that neither counsel nor the Court could find any
              authority on point for the issue presented when post-conviction
              relief grants the petitioner the right to file a belated motion for
              modification of sentence outside of the five-year statutory limit
              for sentence modifications. It would seem that in cases where
              post-conviction relief is requested after five years from the date
              the sentence originally was imposed on the defendant, the

                                              4
              relief requested being authorization to file a belated motion for
              modification of sentence, and such relief appropriate, to deny
              such relief based upon the Rule 4-345(a)(e)(1) limitation,
              would render the Post Conviction Procedure Act, MD. CODE
              ANN CRIM. PRO. § 7-101, et. seq. futile. It is well settled that
              ‘an otherwise unresolvable ambiguity in a criminal statute that
              allows for two possible interpretations of the statute . . . [the
              court] will opt for the construction that favors the defendant.’
              Oglesby v. State, 441 Md. 673, 681 (2015). However, that is
              not the case in the instant matter. Here, Defendant filed for
              post-conviction relief within the five years from the imposition
              of a sentence and was granted relief by being authorized to file
              a belated motion for modification. Defendant filed a belated
              motion for modification within the five years but did not ask
              for a hearing before the five year deadline expired.
              Defendant requested a hearing via a Line, filed July 24, 2014,
              which was well after the September 15, 2013, expiration date.
              Defendant’s inability to receive a sentence modification is
              through no fault or error of the Court, nor ineffective assistance
              of counsel; it is a result of Defendant failing to avail himself of
              the opportunity to request such relief within the statutory time
              limit;”

       The Uniform Postconviction Procedure Act, Md. Code, Criminal Procedure Article,

Title 7,2 reads in pertinent part as follows:

              “§ 7-101. Application of title. This title applies to a person
              convicted in any court in the State who is: (1) confined under
              sentence of imprisonment; or (2) on parole or probation.

              § 7-102. Right of convicted person to begin proceeding.
              Claims required in order to begin proceeding
              (a) Subject to subsection (b) of this section, §§ 7-103 and 7-
              104 of this subtitle and Subtitle 2 of this title, a convicted
              person may begin a proceeding under this title in the circuit
              court for the county in which the conviction took place at any
              time if the person claims that:



2
 All subsequent statutory references herein shall refer to Md. Code, Criminal Procedure
Article.
                                                5
                    (1) the sentence or judgment was imposed in violation
             of the Constitution of the United States or the Constitution or
             laws of the State;
                    (2) the court lacked jurisdiction to impose the sentence;
                    (3) the sentence exceeds the maximum allowed by law;
             or
                    (4) the sentence is otherwise subject to collateral attack
             on a ground of alleged error that would otherwise be available
             under a writ of habeas corpus, writ of coram nobis, or other
             common law or statutory remedy.

             Seeking to set aside or correct judgment or sentence and error
             not finally litigated or waived
             (b) A person may begin a proceeding under this title if:
                     (1) the person seeks to set aside or correct the judgment
             or sentence; and
                     (2) the alleged error has not been previously and finally
             litigated or waived in the proceeding resulting in the conviction
             or in any other proceeding that the person has taken to secure
             relief from the person’s conviction.

             § 7-103. Filing of petitions
             One petition for each trial or sentence
             (a) For each trial or sentence, a person may file only one
             petition for relief under this title.

             Time of filing petition
             (b) Unless extraordinary cause is shown, a petition under this
             subtitle may not be filed more than 10 years after the sentence
             was imposed.”

      The Court denied the Motion for Modification or Reduction of Sentence. This

timely appeal followed.



                                            II.

      Before this Court, appellant argues that when a belated Motion for Modification of

Sentence is timely filed, Rule 4-345 cannot divest the court of its authority to modify the


                                            6
sentence even if a modification hearing is not held within five years of the original

sentencing date. Specifically, appellant contends that a proper belatedly-filed motion for

modification of sentence renews the five-year limitation for ruling on the motion.

Appellant points out that a conflict exists between the five-year limitation for

reconsideration in Rule 4-345 and § 7-103(b), which allows certain postconviction

proceedings to be filed within ten years after the sentence was imposed or longer if

“extraordinary cause is shown.”

       The State argues that the trial court determined correctly that it did not have

authority under Rule 4-345(e) to modify appellant’s sentence more than five years after the

original sentence. Specifically, the State argues that appellant was made whole by the

postconviction court’s grant of relief; that he was granted the right to file a belated motion

for postconviction relief and he did so, with four months remaining under Rule 4-345(e)

for the court’s consideration of the motion.



                                               III.

       We address the State’s argument that the trial court did not have jurisdictional

authority to modify appellant’s sentence more than five years after imposition of the

original sentence. It appears that the trial court dismissed the motion because, although the

court granted appellant the right to file a belated motion to reconsider sentence and he filed

the motion within the Rule’s five-year period, the court determined that it lacked the power,

or jurisdiction, to entertain the motion outside of the five years.



                                                7
       We hold that the trial court retained fundamental jurisdiction to rule on the belated

Motion for Modification of Sentence. At common law, Maryland trial courts possessed

the inherent authority to modify judgments in both criminal and civil cases. Chertkov v.

State, 335 Md. 161, 170 (1994). The inherent power of the court can be described as

follows:

              “In order to accomplish the purposes for which they are
              created, courts must also possess powers. From time
              immemorial, certain powers have been conceded to courts
              because they are courts. Such powers have been conceded
              because without them they could neither maintain their dignity,
              transact their business, nor accomplish the purposes of their
              existence. These powers are called inherent powers . . . ‘The
              inherent power of the court is the power to protect itself; the
              power to administer justice . . .; the power to promulgate rules
              for its practice; and the power to provide process where none
              exists. It is true that the judicial power of this court was created
              by the Constitution, but upon coming into being under the
              Constitution, this court came into being with inherent
              powers.’”

State v. Jones, 451 Md. 680, 691–92 (2017) (quoting State v. Cannon, 221 N.W. 603, 603–

04 (Wis. 1928)). The common law authority to modify a judgment existed only during the

term of court at which the judgment was entered. State v. Butler, 72 Md. 98, 100–01

(1890). This common law principle was changed by Rule 744c, which empowered a trial

court to modify a sentence within ninety days of either the imposition of that sentence, or

the receipt of a mandate issued by the Court of Appeals or the Court of Special Appeals.

Edwardsen v. State, 220 Md. 82, 88 (1959). As amended, the successor to that original

rule is current Rule 4-345(b). Greco v. State, 347 Md. 423, 427–28 (1997).




                                               8
         Exercising the court’s inherent authority is not a path to circumnavigate procedural

rules regarding sentence modification. Rather, it is a means to orderly administer those

rules.    In the present case, appellant’s right to have effective assistance of counsel

“extended beyond the revocation hearing and encompassed, at the least, that period after

the hearing during which the court maintained revisory power over the case and could have

entertained a motion for modification” under Rule 4-345. State v. Flansburg, 345 Md. 694,

697 (1997).

         The Uniform Postconviction Procedure Act, § 7-103(b), allows a convicted person

to begin a proceeding claiming ineffective assistance of counsel. If the claim is based upon

counsel’s failure to file a timely requested motion to reconsider sentence, the petition may

effect the modification of the sentence. Section 7-103(b) provides for a 10-year filing

period. Rule 4-345 allows only five years after sentencing for sentence modification. The

current situation presents a potential conflict between enactments of the judicial and

legislative branches. Thus, it appears, at least facially, that the statute adopted by the

Legislature and the rule promulgated by the Court of Appeals are inconsistent. If they were

actually inconsistent, we would apply the later adopted. Md. Const., Art. IV, §18(a); 66

Op. Md. A.G. 80 (1981). If possible, however, we prefer to harmonize rather than find

inconsistency. See Savage Manufacturing Co. v. Magne, 154 Md. 46, 54 (1927). Here, by

properly interpreting the law and the rule, the facial inconsistency disappears and we find

that, in the circumstances of this case, we can apply both together.




                                              9
       In construing a statute, our primary goal is to ascertain and effectuate the intent of

the Legislature. Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md.

172, 182 (2006). We have often stated that “our primary goal is always to discern the

legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular

provision, be it statutory, constitutional or part of the Rules.” Evans v. State, 420 Md. 391,

400 (2011). We look first to the plain language of the statute, Phillips v. State, 451 Md.

180, 196 (2017), viewed in the “context of the statutory scheme to which it belongs.”

Brown v. State, 454 Md. 546, 551 (2017). We presume, moreover, that the General

Assembly “intends its enactments to operate together as a consistent and harmonious body

of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent

possible consistent with the statute’s object and scope.” State v. Bey, 452 Md. 255, 266

(2017). We do that “by first looking to the normal, plain meaning of the language of the

statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is

rendered surplusage, superfluous, meaningless or nugatory.” Evans, 420 Md. at 400.

When a statute’s language is “clear and unambiguous, we need not look beyond the

statute’s provisions and our analysis ends.” Phillips, 451 Md. at 197. Yet, it is also “settled

that the purpose of the plain meaning rule is to ascertain and carry out the real legislative

intent.” Allen v. State, 402 Md. 59, 73 (2007).

       To assist us in interpreting Rule 4-345, we look to its federal counterpart, Federal

Rules of Criminal Procedure, Rule 35, which permits a trial court a reasonable time beyond

the prescribed period in which to consider a timely filed motion to modify sentence. There

are any number of reasons it may be impossible or impractical for a judge to act promptly

                                              10
upon a motion for reduction of sentence filed with the court before expiration of the five-

year period, including a belated motion for modification being granted toward the end of

the original period of review. In United States v. Stollings, 516 F.2d 1287 (4th Cir. 1975),

the United States Court of Appeals for the Fourth Circuit explained appellant’s dilemma

as follows:

              “In such instances, the time required for the court’s
              consideration and action upon the motion is wholly beyond the
              control of the convicted defendant. He has no means of
              predicting with any assurance whether the court’s need of time
              to reconsider and act upon his motion will be for one week, two
              weeks, four weeks, or two months, and if delay flows from the
              incapacity, the absence or the preoccupation of the judge, its
              consequences should not be visited upon the prisoner.”

Id. at 1288–89.

       In the case before us, a strong factor is that appellant timely filed a belated motion

for modification, but the lower court did not set an initial hearing date on the motion until

after the expiration of five years from the imposition of the original sentence. In a perfect

world, a court should set the hearing within the five-year period, but we know courts are

busy, and if a court fails to do so, the consequence should not be held against the defendant.

On the other hand, the defendant and counsel have an obligation once the motion is filed

within the five-year period, to make best efforts to ensure the hearing is heard in a timely

manner. All we are saying is that the court has jurisdiction over the motion, but it is within

the discretion of the trial court to consider the totality of the circumstances and determine

whether to hear the motion on its merits.



                                             11
       The conflict in the five-year rule for hearing the matter in regard to Rule 4-345 does

not remove the court’s power to entertain the motion. The fundamental jurisdiction of a

court is “the power residing in such court to determine judicially a given action,

controversy, or question presented to it for decision.” Fooks’ Executors v. Ghingher, 172

Md. 612, 621 (1937). “‘Fundamental jurisdiction,’ as we now use that term, is the power

to act with regard to a subject matter which ‘is conferred by the sovereign authority which

organizes the court, and is to be sought for in the general nature of its powers, or in authority

specially conferred.’” Pulley v. State, 287 Md. 406, 416 (1980) (quoting Cooper v.

Reynolds, 77 U.S. 308, 316 (1870)).

       The circuit court concluded that the five-year limitation in Rule 4-345 was a

jurisdictional limitation that removed the matter from the court’s power to hear the motion

and to consider the reasons for the delay outside of the five years of review. Because the

court had fundamental jurisdiction and discretion, which it did not exercise, we remand

this case to that court to consider whether to entertain the Motion for Modification of

Sentence and to consider the merits of the motion.



                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR BALTIMORE CITY VACATED.
                                            CASE REMANDED TO THAT COURT
                                            FOR     FURTHER       PROCEEDINGS
                                            CONSISTENT WITH THIS OPINION.
                                            COSTS TO BE PAID BY THE MAYOR AND
                                            CITY COUNCIL OF BALTIMORE.




                                               12
