Sentencing Motions

• Jurisdiction: Maryland

XX. Sentencing Motions

A. Application for review of sentence by a three-judge panel

1. Applicability

The defendant may file an application for review of sentence by a three-judge panel if the sentence exceeds two years' incarceration. Md. Code Ann., Crim. Proc. § 8-102(a); Md. Rule 4-344(a). Review of a sentence by three-judge panel is permitted following imposition of an original sentence or re-imposition of a previously suspended sentence. See Collins v. State, 321 Md. 103, 110 (1990). The application must be signed by the defendant in substantially the form provided in Md. Rule 4-344(b). Md. Code Ann., Crim. Proc. § 8-102; Md. Rule 4-344(b).

The defendant must sign the pleading and agree to this proceeding, because, unlike a motion for modification or reduction of sentence, for which there is no potential "downside," an application for review of sentence may result in the panel increasing the sentence. See Rendelman v. State, 73 Md. App. 329, 331 (1987). An indigent defendant is entitled to counsel for a three-judge panel at the State's expense. See Md. Code Ann., Crim. Proc. § 8-103(a). A valid waiver of counsel at trial does not "carry over" to a sentence review proceeding. Rendelman, 73 Md. App. at 339.

2. Filing an application

The defendant must file an application for review of sentence by a three-judge panel no later than 30 days after imposition of sentence or re-imposition of a previously suspended sentence. Md. Rule 4-344(a); Collins, 321 Md. at 110. In Mendes v. State, 102 Md. App. 246, 253-54 (1994), the Court of Special Appeals held that the application for review of sentence must be filed within 30 days of imposition of sentence (and not final judgment, if those dates are different).

In Green v. State, 96 Md. App. 601, 607 (1993), the Court of Special Appeals held that the 30-day filing requirement is jurisdictional and, as such, the trial court lacks the authority to extend the time for filing. In Tucker v. State, 89 Md. App. 295, 299-300 (1991), the Court of Special Appeals held that, although there is a statutory deadline for filing an application, if the application is filed timely, there is no deadline for the three-judge panel to act on the application for review of sentence.

Filing an application for review of sentence (a) does not stay the sentence; (b) does not affect the time allowed to file an appeal or a motion for new trial; and (c) does not affect the power of the sentencing judge to modify or reduce the sentence. Md. Code Ann., Crim. Proc. § 8-104(a); Md. Rule 4-344(a). Although there is no right to have the sentence stayed, pending the resolution of a review by a three-judge panel, the sentencing judge may, within his or her discretion, grant a stay of execution of sentence pending the decision. Md. Code Ann., Crim. Proc. § 8-104(b); Md. Rule 4-344(a).

3. Withdrawing the application

The defendant may withdraw the application for review of sentence at any time before receipt of the notice of a hearing and, thereafter, with permission of the three-judge panel. The application for review of sentence may not be withdrawn after the three-judge panel renders its decision. Md. Rule 4-344(c).

4. Three-judge panel

The three-judge panel consists of three judges of the judicial circuit in which the sentencing court is located. The three-judge panel may not include the sentencing judge. Md. Code Ann., Crim. Proc. § 8-105(a)-(b). However, the three-judge panel may consult with the sentencing judge, and the sentencing judge may sit with the three-judge panel as an advisor. Id. at § 8-105(b); Md. Rule 4-344(d). In Jackson & Glascoe v. State, 408 Md. 231, 239-40 (2009), the Court of Appeals held that, if a three-judge panel hears the sentencing matter, and then one member of the panel dies before the decision is rendered, the remaining two judges may issue the decision if they are in agreement.

5. Procedure and decision

If the three-judge panel decides to grant a hearing, the panel may increase the sentence, decrease the sentence, keep the sentence the same, or impose conditions which could have been lawfully imposed by the sentencing judge. Md. Code Ann., Crim. Proc. § 8-105(c)(3); Md. Rule 4-344(f); see Robinson v. Warden, Maryland House of Correction, 455 F.2d 1172, 1176 (4th Cir. 1972) (increase in sentence does not violate the Double Jeopardy Clause).

If the three-judge panel decides to increase the sentence, the defendant must be brought before the panel and be re-sentenced by the panel pursuant to Md. Rule 4-342. See Md. Rule 4-344(f). If the three-judge panel decides not to grant a hearing, it becomes a denial, in that the three-judge panel must keep the sentence the same. Thus, the defendant should always request a hearing because, without a hearing, the defendant cannot succeed. Before the three-judge panel increases or decreases the sentence, both the defendant and the State have an opportunity to be heard at the hearing. The three-judge panel renders its decision by majority vote. Md. Code Ann., Crim. Proc. § 8-107(a).

A three-judge panel may decrease a mandatory minimum sentence, but only if its decision is unanimous. Id. at § 8-107(c). Although a three-judge panel is supposed to file a written decision within 30 days after the application is filed, that requirement is directory only. Id. at § 8-107(b). In Tucker, 89 Md. App. at 299-300, the Court of Special Appeals held that, once the three-judge panel acquires jurisdiction based on a timely filed application, the panel does not lose jurisdiction by failing to act within 30 days.

If the defendant has filed an appeal and/or a motion for modification or reduction of sentence, the defendant may request, and the three-judge panel may agree to, a stay of the three-judge panel proceeding until after the appeal or after a ruling on the motion for reduction of sentence. The three-judge panel may require the DPP (a) to conduct an investigation; (b) to prepare a post-sentencing investigation report; and (c) to make a sentencing recommendation to the three-judge panel. Md. Code Ann., Crim. Proc. § 8-105(c)(2). If the three-judge panel orders a new sentence for the defendant, the three-judge panel becomes the "re-sentencing judge." Md. Code Ann. Crim. Proc. §§ 8-105(c)-(d), 8-106(a)-(b), 8-107, 8-108; Md. Rule 4-344(e)-(f).

If the administrative judge enters an order denying an application for review by a three-judge panel, that order is appealable. Collins, 321 Md. at 106-07. The sentence of a three-judge panel is appealable in the same manner that any other sentence is appealable, e.g., illegality because it is unconstitutional, is beyond the statutory limits, or is motivated by impermissible considerations. Rendelman, 73 Md. App. at 335.

6. The victim's right to be heard

If the victim requested notification for any sentencing proceeding, the three-judge panel may not rule on the application for review of sentence unless the victim is notified and is present, or the victim waives the right to be present. The victim may address the three-judge panel. Md. Code Ann., Crim. Proc. § 8-106(b).

7. Three-judge panel following a guilty plea

A three-party agreement with an agreed upon sentence

In Dotson v. State, 321 Md. 515, 522-23 (1991), the Court of Appeals held that if the sentence at trial was an agreed upon sentence, reached through three-party agreement (State, defense, and trial court), the three-judge panel may not increase or decrease the sentence unless all three parties agree, i.e., State, defendant, and the three-judge panel.

A three-party agreement with an agreed upon sentence range

If the sentence at trial was a sentence within an agreed upon sentence range, pursuant to a three-party agreement, the three-judge panel is bound by the agreed upon sentence range, and any change in sentence must be within that range.

A two-party agreement

If the sentence at trial was pursuant to a two-party agreement, in which State bound itself to argue to a "cap," the State is bound by that same "cap" before the three-judge panel.

B. Motion for modification or reduction of sentence

1. Applicability

Pursuant to Md. Rule 4-345(e), the defendant may file a motion for modification or reduction of sentence, with the sentencing judge, within 90 days of the sentence. This is sometimes referred to as a motion to reduce sentence. A motion for modification or reduction of sentence may be filed even if the sentence did not result in incarceration. In Greco v. State, 347 Md. 423, 437 (1997), the Court of Appeals held that any modification of sentence is a new sentence, which entitles the defendant to file a new motion for modification or reduction of sentence.

The judge's options are to (a) deny a hearing (which precludes a modification or reduction of sentence); or (b) grant a hearing and (i) deny the motion for modification or reduction of sentence, or (ii) grant the motion for modification or reduction of sentence. The judge may leave the sentence unchanged or may make the sentence less onerous, but the judge may not make the sentence more onerous.

In Coley v. State, 74 Md. App. 151, 156 (1988), the Court of Special Appeals held that, if a new sentence is imposed, the 90-day time limit begins to run from the date that the new sentence is imposed. If the sentence is vacated, and the case is remanded for a new sentence, even if the court re-imposes the same sentence, that is a new sentencing, which entitles the defendant to file a new motion for modification or reduction of sentence. See McDonald v. State, 314 Md. 271, 285 (1988); Pitts v. State, 155 Md. App. 346, 352-53 (2004). The...