State v. Sayre

552 A.2d 553, 314 Md. 559, 1989 Md. LEXIS 6

• Court: Court of Appeals of Maryland
• Decided: January 23, 1989
• Docket: 21, September Term, 1988
• Status: Published

Opinions

ADKINS, Judge.

Under Maryland Rule 4-345(b), a “court may modify or reduce or strike, but may not increase the length of, a sentence” once sentence has been imposed. [Emphasis supplied.] The question before us is: when is a sentence deemed to be imposed for purposes of the rule’s prohibition against increase? Under the circumstances of this case, we shall hold that an increase in the length of sentence was impermissible. '

Robert Thomas Sayre, Jr. (Sayre), an inmate at the Roxbury Correctional Institution/in Hagerstown, violated institutional rules when he used a homemade “fishing line” to transport items from cell to cell. Correctional Officer Armstrong entered Sayre’s cell to conduct a search and to recover the “fishing line.” Armstrong ordered Sayre to sit on his bunk. Sayre refused, cursed at the officer, spat at him, and struck him in the face with his fist.

A jury in the Circuit Court for Washington County (Corderman, J., presiding) found Sayre guilty of battery. Following the return of the guilty verdict, Judge Corderman sentenced Sayre:

It will be the sentence of this Court that you be committed to the care and custody of the Commissioner of Correction for a period of five (5) years, to be served concurrently with any sentence that you are currently obligated to serve. He is to be remanded to custody. Come, get him.

Alright, Mr. [State’s Attorney], the ...

[STATE’S ATTORNEY]: Your Honor, I take it you meant to say concurrently?

THE COURT: I said consecutively.

[STATE’S ATTORNEY]: No, your Honor, I believe you said concurrently.

THE COURT: Did I? I meant to say consecutively. Excuse me. Bring the Defendant back.

(Whereupon, defendant and counsel are returned to the courtroom and present at trial table.)

THE COURT: Mr. Sayre, did I say concurrently or consecutively?

DEFENDANT: Concurrently.

THE COURT: Well, I meant to say consecutively. Five (5) years consecutive to. That means you do the eight years then you do the five years.

DEFENDANT: Yes sir.

THE COURT: Alright. [Emphasis supplied.]

In an unreported decision, the Court of Special Appeals reversed the sentence. That court, relying on Smith v. State, 31 Md.App. 310, 356 A.2d 320, cert. denied, 278 Md. 735, (1976), held that a sentencing judge may not increase a sentence to accomplish his original objective. Thus, the consecutive sentence imposed by Judge Corderman was vacated and the original, concurrent sentence, was reimposed. Sayre v. State, No. 671, Sept. Term, 1987 (Md.App. filed 13 Jan. 1988) (per curiam). We granted certiorari to determine the important issue involved.¹

When a sentence is changed from concurrent to consecutive, it is increased in length. See, e.g., Collins v. State, 69 Md.App. 173, 198, 516 A.2d 1015, 1028 (1986), cert. denied, 308 Md. 572, 520 A.2d 1328 (1987). The State does not question this proposition. Instead, it cites cases such as Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam), and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), to the effect that the federal constitutional prohibition against double jeopardy does not bar a sentence increase under the circumstances of this case. The State also argues that under Maryland law the increase here would not be prohibited because under Maryland double jeopardy principles, an increase in sentence is prohibited only “[i]f a defendant has begun serving his sentence in a penal institution and is no longer in the custody of an officer of the court____” Brown v. State, 237 Md. 492, 503, 207 A.2d 103, 110 (1965). Finally, the State insists that a judge may correct a mere slip of the tongue so that the sentence will reflect his true intention.

As to the double jeopardy contentions, we need not consider them. The case before us is governed by Rule 4-345(b) and our task is to construe it. We will not reach out to consider constitutional questions not necessary to our decision. E.g., Allgood v. State, 309 Md. 58, 82-83, 522 A.2d 917, 929 (1987); Rutherford v. Rutherford, 296 Md. 347, 363-364 n. 6, 464 A.2d 228, 237 n. 6 (1983). As to the “slip-of-the-tongue” argument, we shall consider it as we examine the rule for it is in the context of the rule and its purposes that we must examine the “slip-of-the-tongue” notion. We note at the outset, however, that Rule 4-845(b) restricts, to a greater extent than Brown, the authority of a court to increase a legally imposed sentence. Under a Brown analysis, this power ends when the defendant commences to serve his or her sentence. Under the rule, the power to increase terminates when sentence is imposed.

In Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974), the trial judge found Pugh guilty of possession of cocaine under indictment number 2110, but not guilty of distribution under indictment number 2111. Pugh, 271 Md. at 704, 319 A.2d at 548. The assistant State’s Attorney then argued contrary to the latter result. The judge, persuaded to see matters in a different light, found Pugh guilty under number 2111 as well. Id. at 704, 319 A.2d at 544. Judge Eldridge, writing for this Court, held that change of mind was impermissible. “It is therefore settled that once the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of ‘not guilty,’ the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.” Id. at 706, 319 A.2d at 545 [emphasis supplied]. See also Brooks v. State, 299 Md. 146, 472 A.2d 981 (1984).

But in Pugh Judge Eldridge went on to explain that “where a judge ‘obviously inadvertently’ says one thing when he means something else, and immediately thereafter corrects himself, a ‘verdict’ would not be rendered for purposes of Rule 742 [present Rule 4-328] or the prohibition against double jeopardy.” Pugh, 271 Md. at 707, 319 A.2d at 545 [emphasis supplied]. Grasping at that dictum the State avers that Judge Corderman’s “concurrent” disposition in this case was inadvertent and corrected as soon as the prosecutor called the matter to the judge’s attention.

That may be so. The problem is that while to permit correction of a slip of the tongue is not necessarily undesirable, to allow a judge who has intentionally made a sentencing decision to change his mind in a manner adverse to the defendant is. Double jeopardy considerations aside, the latter situation carries with it too many possibilities of vindictiveness. Furthermore, it is not always easy to distinguish between an inadvertent slip of the tongue and a true change of mind. In State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981), for example, a judge imposed a concurrent sentence and six minutes later called the parties back to the courtroom and changed the sentence to consecutive. Cousins, 208 Neb. at 246, 302 N.W.2d at 732. The Supreme Court of Nebraska held that a sentence validly imposed takes effect from the time it is pronounced and cannot thereafter be increased. Id. at 247, 302 N.W.2d at 732. It declined to accept a “slip-of-the-tongue” argument because

to begin questioning whether a valid sentence has been pronounced inadvertently would involve this court in a morass. We would be called upon to read the mind of the sentencing judge in any circumstance in which a valid sentence had been pronounced and later amended due to the judge’s proclaimed inadvertence.

Id. at 247, 302 N.W.2d at 733. See also State v. Vernon, 218 Neb. 539, 542, 356 N.W.2d 887, 890 (1984).

The same concern is expressed in Scott v. State, 64 Wis.2d 54, 59, 218 N.W.2d 350, 353 (1974) (quoting Chandler v. United States, 468 F.2d 834, 836 (5th Cir.1972)):

“... [T]he Government argues that an exception should be recognized in cases such as this where the alteration of the sentence was undertaken solely to conform to the original intention of the trial judge and the error in the original sentence was due solely to an inadvertent transposition of the numbers. Were we clairvoyant and able to say for certain in every case what the trial judge really ‘intended,’ this argument might be persuasive. Being mere mortals however, we must refrain from such delicate undertakings, and we refuse to sanction a procedure that encourages such an inquiry.” [Brackets in original.]

See also State v. Perry, 136 Wis.2d 92, 111-115, 401 N.W.2d 748, 757-758 (1987). Cf. Merry v. State, 752 P.2d 472, 473-475 (Alaska Ct.App.1988) (sentencing judge said both concurrent and consecutive in handing down sentence; proper for him to clarify the inconsistency ten minutes later and to impose consecutive sentence); Commonwealth v. Fleming, 332 Pa.Super. 118, 134-137, 480 A.2d 1214, 1223-1224 (1984) (increase of sentence permitted when sentencing judge corrects sentence, changing it from concurrent to consecutive “almost in the same breath”).

After careful weighing of the policy considerations implicated, we, too, are unwilling to allow a procedure that will permit an inquiry of the sentencing judge’s subjective intent under circumstances like those here present. We hold that under Rule 4-345(b), once sentence has been imposed, there can be no inquiry into intention or inadvertence. The sentence, for Rule 4-345(b) purposes, stands as pronounced. Like any bright line rule, this holding may produce occasional hardship for the State, but it will avoid difficult questions of subjective intent and should encourage trial judges to use great care in pronouncing sentence— an obviously desirable practice. See Memorandum from Chief Judge Robert C. Murphy to All Maryland Trial Judges (13 Oct. 1988) (discussing clarity in sentencing proceedings).

It remains only to determine when a sentence has been imposed for purposes of Rule 4-345(b). The rule is silent in this respect, and there seems to be no relevant “legislative” history. We do not believe, however, that the answer turns on questions of when the defendant begins serving his or her sentence or when he or she leaves the custody of a court officer and enters the custody of the executive branch.

Ordinarily, sentencing may be considered as the last phase of a criminal trial. When sentence is pronounced or imposed, there is a final judgment for purposes of appeal. See, e.g., Jones v. State, 298 Md. 634, 637, 471 A.2d 1055, 1057 (1984). The sentencing phase, for purposes of Rule 4-345(b), is at least at an end when the court indicates that the particular case before it is terminated, as by calling, or directing the clerk to call, the next case. Here, Judge Corderman, after imposing the concurrent sentence on Sayre, said

He is to be remanded to custody. Come, get him. Obviously, Sayre’s case was over. There was nothing more to be done. The court was ready to proceed to the next case.² We hold that under these circumstances sentence was imposed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE COUNTY COMMISSIONERS OF WASHINGTON COUNTY.

MURPHY, C.J., and RODOWSKY and McAULIFFE, JJ., dissent.

1 . Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 11E calls for a consecutive sentence upon an inmate’s conviction for assault on a correctional officer. Citing this provision, Part II of the dissent argues that this case should turn on Md. Rule 4-345(a)’s grant of authority to correct an illegal sentence. The dissent further contends that this issue is within the question framed by the State in its petition for certiorari, and that even if this were not so, we should take the extraordinary step of addressing the illegal sentence issue. We disagree. The question framed by the State clearly concerns correction of an allegedly inadvertent misstatement at sentencing, not correction of an illegal sentence. This is not the kind of case in which we have taken the unusual step of disregarding the ordinary limitations on scope of review imposed by Rule 8 — 131(b)(1); see, e.g., Yarema v. Exxon Corp., 305 Md. 219, 231 n. 9, 503 A.2d 239, 245 n. 9 (1986) (jurisdictional issues are exceptions to what is now Rule 8 — 131(b)(1)). Moreover, in the case before us, not only did the State not raise the illegal sentence issue in its certiorari petition, it never argued it in its brief or orally. Compare Yarema, in which the jurisdictional issue was argued by both sides. Under these circumstances, the “correction of an illegal sentence” issue is simply not before us.

2 . The briefs contain some debate about whether the transcript shows that Sayre had been removed from the courtroom before Judge Corderman attempted to change the sentence to consecutive. The record permits, although it does not compel, such a reading. But in our view, a factual determination of that question is not crucial. Removal of the defendant from the courtroom may or may not bear on when a sentencing proceeding has been concluded. Here, however, it is apparent that Sayre’s case was over, whether he remained in the courtroom or not.