Roderick Colvin v. State, No. 8, September Term, 2016

CRIMINAL LAW — SENTENCING — CORRECTING ILLEGAL SENTENCE —
Maryland Rule 4-345(a) permits the courts to correct an illegal sentence at any time. The
scope of this privilege, allowing collateral and belated attacks on the sentence and
excluding waiver as a bar to relief, is narrow. While substantive claims of an illegal
sentence meet the high bar of Rule 4-345(a), procedural claims are not cognizable under
this provision.
Circuit Court for Baltimore City
Case Nos. 18906104
          18906105
          18906106
Argued: September 7, 2016

                                          IN THE COURT OF APPEALS

                                                OF MARYLAND

                                                      No. 8

                                             September Term, 2016
                                   ______________________________________

                                              RODERICK COLVIN

                                                        v.

                                           STATE OF MARYLAND
                                   ______________________________________

                                               Barbera, C.J.
                                               Greene
                                               Adkins
                                               McDonald
                                               Watts
                                               Getty, JJ.
                                               Harrell, Glenn T., Jr.,
                                               (Senior Judge, Specially
                                               Assigned)

                                   ______________________________________

                                            Opinion by Barbera, C.J.
                                   ______________________________________

                                   Filed: December 15, 2016
        We examine in this case whether an alleged procedural error in the finalization of a

verdict is a cognizable claim under Maryland Rule 4-345(a), which permits the courts of

this State to correct an illegal sentence at any time. The scope of this rule, allowing

collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is

narrow. We hold that the procedural error alleged in the present case does not come within

the narrow meaning of Rule 4-345(a) and therefore is not a cognizable claim under that

rule.

                                             I.

The trial, verdict, sentence, and direct appeal.

        Roderick Colvin was tried in 1989 before a jury in the Circuit Court for Baltimore

City on numerous charges in connection with the murder of Charles Reese and the

attempted murder of Jeanette Coleman. We have no need to summarize all of what

occurred at trial. Relevant to this appeal is what took place in the courtroom after the jury

completed its deliberations. At that time, the following occurred:

        THE CLERK: Members of the Jury, have you agreed upon a verdict?

        THE JURY: Yes, we have.

        THE CLERK: Who shall speak for you? Madam Forelady, please stand.

        THE COURT: I think that the Forewoman has asked that Juror Number 3
        speak for the Jury. Any objection Counsel?

        [DEFENSE]: No, Your Honor.

        [STATE]: No, Your Honor.

        THE COURT: All right.
       THE CLERK: Juror Number 3, please stand.

       THE COURT: You selected your own foreperson I see.

       THE CLERK: How say you as to Charles Reese under first degree murder,
       not guilty or guilty?

       THE FOREPERSON: Not guilty.

       THE CLERK: Felony murder, not guilty or guilty?

       THE FOREPERSON: Guilty.

       THE CLERK: As to Jeannette Coleman, assault with intent to murder, not
       guilty or guilty?

       THE FOREPERSON: Guilty.

       THE CLERK: As to Charles Reese, robbery with a deadly weapon, not guilty
       or guilty?

       THE FOREPERSON: Guilty.

       THE CLERK: As to the handgun charge, use of a handgun in the commission
       of a crime of violence, not guilty or guilty?

       THE FOREPERSON: Guilty.

       THE CLERK: Possession of a handgun, not guilty or guilty?

       THE FOREPERSON: Guilty.

Defense counsel then asked the clerk to poll the jury.

       THE CLERK: Juror Number 1, please stand. You heard the verdict. Is your
       verdict the same?

       JUROR NO. 1: Yes.

The clerk repeated this question with each of the other jurors who had not yet spoken. All

those polled responded, “Yes” or “Same.” The clerk did not ask the foreperson, Juror


                                             2
Number 3, who had just announced the verdict for the jury, if her verdict was the same.

The clerk then hearkened the verdicts:

       THE CLERK: As to first degree murder not guilty, as to felony murder
       guilty, assault with intent to murder guilty, robbery deadly weapon guilty,
       use of a handgun in the commission of a crime of violence guilty, possession
       of a handgun guilty and so say you all?

The jury, including the foreperson, responded, “Yes.” The court then dismissed the jury.

At no time during or immediately following the taking of the verdict did defense counsel

object to the process. Nor did defense counsel object after the jury was dismissed, seek a

new trial, or complain at sentencing about the process.

       The jury convicted Colvin of felony murder, assault with intent to commit murder,

robbery with a deadly weapon, and the two handgun offenses. For those crimes the court

sentenced him to imprisonment for life plus an additional 20 years. Colvin noted a timely

appeal to the Court of Special Appeals. Colvin did not challenge the method of jury polling

employed by the circuit court nor did he argue that it rendered his sentence illegal. The

Court of Special Appeals affirmed Colvin’s convictions in an unreported opinion, and this

Court denied Colvin’s petition for writ of certiorari. Colvin-El v. State, 321 Md. 501

(1991). Colvin was denied postconviction relief in December 2000, and his application for

leave to appeal was denied in 2002.

The motion to strike illegal sentence.

       In September 2013, Colvin filed in the Circuit Court for Baltimore City a motion to

correct an illegal sentence pursuant to Maryland Rule 4-345(a). He argued, evidently for

the first time, that the verdicts supporting his convictions were not unanimous, as required


                                             3
by Maryland Rule 4-327(a), because the jury foreperson was not polled individually after

she announced the jury’s verdicts. Based on the premise that the verdicts did not reflect

juror unanimity, Colvin argued that the sentence in its entirety was a nullity entitling him

to have it vacated as substantively illegal.

       The circuit court denied the motion. The court ruled as a preliminary matter that

the alleged defect in the polling process was not a cognizable claim under Rule 4-345(a).

Even so, the court considered and denied the motion on its merits. The court reasoned that

the foreperson of a jury, when delivering the jury’s verdict, is also announcing the

foreperson’s own verdict; consequently, polling of the foreperson individually is not

necessary to ensure jury unanimity. The court therefore concluded that, because Colvin’s

claim of conviction on less than a unanimous jury had no merit, his challenge to the legality

of the sentence failed at its premise.

       Colvin noted a direct appeal to the Court of Special Appeals, which affirmed.

Colvin v. State, 226 Md. App. 131 (2015). Over the dissent of one judge who would have

held that Colvin’s claim was not cognizable in a Rule 4-345(a) proceeding, the Court of

Special Appeals determined that the claim was cognizable but failed on its merits. The

Court of Special Appeals recognized that the sentence would be illegal “if the polling

procedure was, in fact, defective in a manner that rendered the verdict non-final.” Id. at

139. The court concluded, however, that Colvin’s sentence was legal because it was not

based on a less-than-unanimous verdict. Id. at 147. The Court of Special Appeals reasoned

that each verdict was announced in open court by the foreperson, the jury panel was then



                                               4
polled (excepting the foreperson, who had just announced the verdict), and the jury was

hearkened to the verdict. Id.

       Colvin filed a petition for writ of certiorari, asking, “Did the Court of Special

Appeals err in upholding the circuit court’s conclusion that, upon a request for a jury poll,

polling the jury foreperson is unnecessary to ensure a unanimous verdict?” The State filed

a conditional cross-petition asking, “Is the claimed defect in the polling procedure not

cognizable on a motion to correct an illegal sentence?” We granted both petitions, Colvin

v. State, 446 Md. 704 (2016), and hold that the claim presented by Colvin is not cognizable

under Rule 4-345(a). Consequently, we do not address the merits of Colvin’s claim.

                                             II.

The scope of Maryland Rule 4-345(a).

       Maryland Rule 4-345(a) provides: “The court may correct an illegal sentence at any

time.” The rule “creates a limited exception to the general rule of finality, and sanctions a

method of opening a judgment otherwise final and beyond the reach of the court.” State v.

Griffiths, 338 Md. 485, 496 (1995). “If a sentence is ‘illegal’ within the meaning of that

section of the rule, the defendant may file a motion in the trial court to ‘correct’ it,” even

if the defendant did not object when the sentence was imposed, purported to consent to it,

or failed to challenge the sentence on direct appeal. Chaney v. State, 397 Md. 460, 466

(2007). Nevertheless, “[t]he scope of this privilege, allowing collateral and belated attacks

on the sentence and excluding waiver as a bar to relief, is narrow.” Id. (italics omitted).

The narrowness of the Rule’s scope is reflected in our cases on the subject.



                                              5
       An illegal sentence, for purposes of Rule 4-345(a), is one 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 imposed and, for either reason, is intrinsically and substantively

unlawful.” Id. at 466; see also, e.g., Taylor v. State, 407 Md. 137, 141 n.4 (2009); Baker

v. State, 389 Md. 127, 133 (2005). “A sentence does not become ‘an illegal sentence

because of some arguable procedural flaw in the sentencing procedure.’” Tshiwala v. State,

424 Md. 612, 619 (2012) (quoting State v. Wilkins, 393 Md. 269, 273 (2006)). “[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 of judgment and sentence in a criminal

case.” Wilkins, 393 Md. at 273.

       Baker provides one example of a claim held not to be cognizable in a motion brought

under Rule 4-345(a). In a capital sentencing proceeding, Baker was sentenced to death.

389 Md. at 130. Invoking Rule 4-345(a), he alleged that the sentence was imposed in a

racially- and geographically-biased manner. Id. at 131-32. The claim relied on an

empirical, government-sponsored study of Maryland’s implementation of its then-extant

death penalty statute. Id. We concluded that the claim failed to offer grounds cognizable

under the general principles that attend Rule 4-345(a) review.1 See id. at 137.




1
 We also considered in Baker, 389 Md. at 134-37, a narrow exception that permits review,
by way of a Rule 4-345(a) motion, of certain constitutionally based claims of sentencing
error in capital cases. We held that this narrow exception did not apply to Baker’s claim
of an illegal sentence. Id. at 137.
                                             6
       Other cases are to like effect, holding the claimed illegality in the sentence was not

cognizable under Rule 4-345(a). See Tshiwala, 424 Md. at 618 (holding that the complaint

that Tshiwala’s sentencing review panel did not have jurisdiction to review a motion to

reconsider the sentence that panel imposed “clearly does not involve an ‘illegal sentence’

within the meaning of Rule 4-345(a)”); Hoile v. State, 404 Md. 591, 622-23 (2008)

(rejecting Hoile’s claim that the trial court’s not affording the victim an opportunity to

speak at Hoile’s sentencing rendered his sentence illegal, for purposes of Rule 4-345(a),

because the sentence was not “illegal on its face”), cert. denied sub nom. Palmer v.

Maryland, 555 U.S. 884 (2008); Wilkins, 393 Md. at 284 (holding that Wilkins was not

entitled to correction of the sentence by way of a Rule 4-345(a) motion, because the life

sentence he received was not an “illegal sentence,” notwithstanding the judge’s failure to

recognize his discretion to suspend a portion of a life sentence).

The present case.

       Colvin argues that the sentence he received in this case is the product of a verdict2

that was not rendered constitutionally and, as a consequence of that constitutional violation,

his sentence is “illegal” for purposes of Rule 4-345(a). This argument flows from Colvin’s

initial premise, which is that the procedure by which the verdict was returned does not

reflect juror unanimity because the courtroom clerk did not include the foreperson in the

clerk’s polling of the jury. Colvin argues that, without individual polling of the foreperson,



2
  Colvin’s argument implicates the validity of each of the jury’s guilty verdicts and
therefore the legality of all sentences imposed. For the sake of simplicity, hereafter we
shall use the singular to refer collectively to the separate verdicts and associated sentences.
                                              7
the record does not ensure a unanimous jury. The State disagrees with those contentions

and argues in turn that Colvin’s claim does not fall within the narrow definition of an illegal

sentence because he does not allege any substantive error such that no sentence should

have been imposed.

       We agree with the State that Colvin’s claim is not cognizable under Rule 4-345(a).

Colvin correctly foregoes any claim that the sentence is illegal, as that term is defined for

purposes of the Rule. That is to say, Colvin does not argue that “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 imposed and, for either reason, is

intrinsically and substantively unlawful.” Chaney, 397 Md. at 466. He argues, in essence,

that an alleged flaw in the procedure by which the guilty verdict was received and finalized

renders the sentence illegal. Not so.

       Colvin does not complain that the foreperson misstated the verdict of the jury. Nor

could he, given that all twelve jurors were hearkened to the verdict and agreed to it as

announced by the foreperson. See State v. Santiago, 412 Md. 28, 38-39 (2009) (“A verdict

is not final ‘until after the jury has expressed their assent in one of [two] ways,’ by

hearkening or by a poll.” (alteration in original) (citation omitted)). Colvin likewise does

not argue that hearkening of the jurors is not an adequate substitute for a poll of the jury.

Indeed he could not successfully make that argument because we have made clear that

hearkening the verdict “serves the same purpose” as a poll of the jury. See id. at 37 (quoting

Smith v. State, 299 Md. 158, 166 (1984)); see also id. at 38 (explaining that hearkening

allows “all the jurors [to] assent[ ] to the verdict in the manner in which it had been stated

                                              8
by the foreman and accepted by the [c]ourt.” (quoting Smith, 299 Md. at 165 n. 5)); Jones

v. State, 384 Md. 669, 684 (2005) (“Hearkening of the jury to the verdict, like polling the

jury, is conducted to ‘secure certainty and accuracy, and to enable the jury to correct a

verdict, which they have mistaken, or which their foreman has improperly delivered.’”)

(quoting Smith, 299 Md. at 165)); Jones v. State, 173 Md. App. 430, 452 (2007) (holding

that hearkening the verdict is required in the absence of a request for polling, noting further

that “polling is a fully commensurable substitute for hearkening” (citation omitted)).

Colvin likewise does not argue, and our jurisprudence does not require, that both polling

and hearkening are required to ensure unanimity. Santiago, 412 Md. at 32.

       The most that can be said of Colvin’s alleged claim is that the record does not reflect,

at least as Colvin would argue, a properly conducted polling process. Yet, that allegation,

even if true, does not make a substantive allegation of a lack of juror unanimity without

more: the additional lack of a proper hearkening of the jury to the verdict. The alleged

lack of unanimity of the verdict is the lynchpin of Colvin’s argument that the verdict, as

rendered, is unconstitutional and therefore a “nullity” upon which no legal sentence can be

imposed. Without that lynchpin, the fragile structure of Colvin’s allegation of an illegal

sentence collapses of its own weight.

       Under Maryland law, procedural challenges to a verdict ought be done by

contemporaneous objection and, if not corrected, presented through the direct appeal

process. Such claims do not come within the purview of Rule 4-345(a). Because Colvin’s

claim does not implicate the legality of the sentence, it is not cognizable under the Rule.

                                             III.

                                              9
       With this case, we reaffirm the rule that only claims sounding in substantive law,

not procedural law, may be raised through a Rule 4-345(a) motion. This result avoids

suborning the important purpose of Rule 4-345(a) and heeds our extensive precedent on

this matter, the important concepts of finality and judicial economy. An alleged procedural

error in the taking of the verdict must be preserved by contemporaneous objection and, if

not cured at the time, be raised on direct appeal, not through Rule 4-345(a).

                                                 JUDGMENT OF THE COURT OF
                                                 SPECIAL APPEALS VACATED;
                                                 CASE REMANDED TO THAT
                                                 COURT TO DISMISS THE APPEAL;
                                                 COSTS   TO   BE    PAID  BY
                                                 PETITIONER.




                                            10
