State v. Schlick

State of Maryland v. John Schlick, No. 63, September Term, 2018. Opinion by Greene, J.
CRIMINAL PROCEDURE – MARYLAND RULE 4-345 – REVISORY POWER
The Court of Appeals held that the circuit court erred in dismissing Respondent John Schlick’s
motion to modify his sentence on the ground that it lacked revisory power over his sentence.
The Court determined that Mr. Schlick’s sentence was originally imposed on September 15,
2008, so under Maryland Rule 4-345(e), the court retained revisory power over his sentence for
five years therefrom. His counsel, however, was ineffective because she failed to file a motion
for modification, despite Mr. Schlick’s requests to do so. As a result, Mr. Schlick was granted
postconviction relief to file a belated motion for modification. Implicit in the postconviction
relief granted to Mr. Schlick is the circuit court’s authority to exercise its revisory power over
Mr. Schlick’s sentence for five years following the postconviction court’s final order, consistent
with Rule 4-345(e). Given that postconviction relief was granted on March 20, 2013, the court
retained revisory power over Mr. Schlick’s sentence until March 20, 2018. As such, the circuit
court erred in dismissing Mr. Schlick’s motion prematurely.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 204299006
Argued: April 5, 2019 OF MARYLAND
No. 63
September Term, 2018
______________________________________
STATE OF MARYLAND
v.
JOHN SCHLICK
Barbera, C.J.
*Greene,
McDonald,
Watts,
Hotten,
Getty,
Battaglia, Lynne A.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: August 23, 2019
*Greene, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Maryland Constitution, Article
IV, Section 3A, he also participated in the
Pursuant to Maryland Uniform Electronic Legal
Materials Act
decision and adoption of this opinion.
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-08-23
15:05-04:00
Suzanne C. Johnson, Clerk
After the imposition of sentence, a criminal defendant has the right to seek
modification of that sentence under Maryland Rule 4-345(e). In order to obtain review of
his or her sentence, a defendant may file a motion seeking modification “within 90 days
after imposition of a sentence.” Md. Rule 4-345(e)(1). After a timely motion is filed,
generally the trial court has revisory power over a defendant’s sentence for five years “from
the date the sentence originally was imposed[.]” Md. Rule 4-345(e)(1)(B).
Postconviction proceedings introduce an added complexity to the tenets of
Maryland Rule 4-345(e). This Court has previously decided that when a defendant receives
ineffective assistance of counsel and, consequently, loses his or her right to file a motion
for modification of sentence, the defendant may be afforded the right to file a belated
motion. State v. Flansburg, 345 Md. 694, 705, 694 A.2d 462, 468 (1997). This Court has
not had occasion to decide how or whether such postconviction relief impacts a circuit
court’s revisory power over a defendant’s sentence. The matter now before this Court
concerns precisely that question. As such, we undertake to review the extent of a circuit
court’s revisory power over a sentence, where a defendant has been granted postconviction
relief to file a belated motion for modification of sentence.
FACTUAL & PROCEDURAL BACKGROUND
In 2005, Respondent John Schlick (“Mr. Schlick”) pleaded guilty in the Circuit
Court for Baltimore City to a narcotics offense.1 On September 20, 2005, he was sentenced
1
The sole matter before this Court concerns Mr. Schlick’s sentence and specifically the
trial court’s revisory power over that sentence. Accordingly, the details underlying Mr.
Schlick’s conviction are not pertinent to our review. Therefore, we set forth only the
chronology of events related to Mr. Schlick’s sentencing.
to 16 years in prison, 14 years and six months of which were suspended, and he was to be
placed on five years of probation upon his release. Mr. Schlick did not request that his
sentence be modified or otherwise reviewed.
After his release on probation, Mr. Schlick was convicted of another crime. As a
result, he was charged with violating the terms of his probation. On September 15, 2008,
Mr. Schlick appeared before the Circuit Court for Baltimore City for a violation of
probation hearing. At the violation of probation hearing, the court revoked Mr. Schlick’s
probation and sentenced him to 14 years and six months incarceration, thereby reimposing
the suspended portion of Mr. Schlick’s 2005 sentence for the narcotics offense. No motion
was filed on Mr. Schlick’s behalf to modify or otherwise review his sentence.
On August 31, 2012, with the assistance of counsel, Mr. Schlick filed a petition for
postconviction relief, and on November 30, 2012 he supplemented the petition. Mr.
Schlick argued that he received ineffective assistance of counsel because he had directed
his lawyer from the 2008 violation of probation hearing to file a motion for reduction of
sentence, but his lawyer failed to do so. Mr. Schlick’s counsel from the 2008 hearing swore
under oath in an affidavit that she failed to file the motion for modification as requested by
Mr. Schlick. The postconviction court held a hearing on Mr. Schlick’s petition on February
20, 2013. On March 20, 2013, the court ruled on the petition in Mr. Schlick’s favor. The
court concluded that Mr. Schlick received ineffective assistance of counsel and permitted
Mr. Schlick to “file a belated [m]otion for [m]odification of [s]entence within ninety (90)
days of the date of [its] order.”
2
Mr. Schlick, with the assistance of counsel, filed a motion for modification in the
Circuit Court for Baltimore City on May 24, 2013, which was within 90 days of the
postconviction court’s order. Six days later, on May 30, 2013, Mr. Schlick, acting without
the assistance of counsel, filed a motion asking the court to hold his motion “in abeyance
until a later date.” In July 2013, Mr. Schlick sent a letter to the circuit court pro se,
articulating some of the reasons he believed the court should reduce his sentence. On
January 6, 2014, the court scheduled Mr. Schlick’s motion for a hearing to be held on
February 12, 2014. On January 30, 2014, Mr. Schlick filed a motion to postpone the
hearing. The court granted Mr. Schlick’s motion on January 31, 2014 and ordered that
“[Mr. Schlick]’s [m]otion for [m]odification of [s]entence . . . continue to be held sub curia
by the [c]ourt, until such time as [Mr. Schlick] requests a hearing.”
On July 24, 2014, Mr. Schlick’s counsel requested a hearing on his motion for
modification. On January 15, 2015, the trial court granted Mr. Schlick’s request and again
set the matter for a hearing, which was to be held on March 6, 2015. The March 6, 2015
hearing was not held.2 On October 15, 2015, Mr. Schlick’s counsel again requested a
hearing. On July 16, 2016, the court ordered that the matter be set for a hearing on October
17, 2016. On October 11, 2016, Mr. Schlick’s counsel filed a motion requesting a
continuance, with the State’s consent, because Mr. Schlick was incarcerated outside of
Maryland, and the Department of Corrections could not transport him in time for the
2
It is not clear from the record why the March 6, 2015 hearing did not take place as
scheduled.
3
hearing. The circuit court granted the postponement and reset the hearing for January 10,
2017.
In December 2016, the circuit court issued an order to show cause. Therein, the
court explained that Mr. Schlick had been originally sentenced for purposes of Rule 4-
345(e) when his probation was revoked on September 15, 2008. Thus, on September 15,
2013, five years had passed from the date of his sentence. The court directed the parties to
address whether Mr. Schlick’s motion should be dismissed on the grounds that, under
Maryland Rule 4-345(e), the “five[-]year expiration date for w[hen] the [c]ourt can revise
[Mr. Schlick]’s sentence” had expired. At the hearing on January 10, 2017, the court heard
arguments from the State’s attorney and Mr. Schlick’s counsel with regard to its revisory
authority over Mr. Schlick’s sentence and on the merits of his motion for modification.
On August 8, 2017, the circuit court dismissed Mr. Schlick’s motion without ruling
on the merits. The court reasoned that Mr. Schlick’s sentence was originally imposed on
September 15, 2008, and its revisory power lapsed on September 15, 2013. Accordingly,
the court concluded that it “no longer ha[d] revisory power over [Mr. Schlick]’s sentence.”
In addition, the court pointed out that Mr. Schlick was granted postconviction relief and
filed his belated motion in compliance with the postconviction court’s order, but he did not
obtain a hearing or ruling on the motion before September 15, 2013. Therefore, the court
concluded that Mr. Schlick’s “inability to receive a sentence modification” was attributable
to his own actions, not any “fault or error of the [c]ourt, nor ineffective assistance of
counsel[.]”
4
Mr. Schlick noted a timely appeal to the Court of Special Appeals. Schlick v. State,
238 Md. App. 681, 194 A.3d 49 (2018). Our intermediate appellate court concluded that,
despite the five-year limitation set forth in Rule 4-345(e), “the trial court retained
fundamental jurisdiction to rule on the belated [m]otion for [m]odification of [s]entence.”
Id. at 690, 194 A.3d at 54. The court explained that “[t]here are any number of reasons it
may be impossible or impractical for a judge to act promptly upon a motion for reduction
of sentence filed with the court before the expiration of the five-year period[.]” Id. at 692,
194 A.3d at 55. For instance, a defendant may be granted permission to file a belated
motion “toward the end of the original period of review.” Id.
The court emphasized that, in Mr. Schlick’s case, the trial court did not set Mr.
Schlick’s motion for a hearing “until after the expiration of five years from the imposition
of the original sentence.” Id. at 693, 194 A.3d at 55-56. The Court of Special Appeals
explained that “[i]n a perfect world, a court should set the hearing within the five-year
period,” but it also recognized that “courts are busy.” Id. at 693, 194 A.3d at 56. If a circuit
court fails to set a hearing to consider the merits of a motion for modification within the
five-year window, according to our intermediate appellate court, “the consequence should
not be held against the defendant.” Id. The Court of Special Appeals pointed out that after
a defendant files a motion there is also an onus on the defendant and counsel “to make the
best efforts” to have a hearing in a timely manner. Id. In summation, the court explained
that “the court has [fundamental] 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.” Id. Therefore, the Court of Special Appeals vacated the
5
judgment of the circuit court and remanded the case to the circuit “court to consider
whether to entertain the [motion] and to consider the merits of the motion.” Id. at 693, 194
A.3d at 56.
On January 7, 2019, this Court granted the State’s Petition for a Writ of Certiorari.
We granted certiorari to answer the following question:
Does a court lose revisory power over a criminal sentence “after the
expiration of five years from the date the sentence originally was imposed,”
as Maryland Rule 4-345(e) states, or does the court instead indefinitely retain
“fundamental jurisdiction” to revise a sentence, which it is an abuse of
discretion not to consider exercising, as the Court of Special Appeals held
below?
State v. Schlick, 462 Md. 261, 199 A.3d 693 (2019).
STANDARD OF REVIEW
In the present case, we are tasked with interpreting Maryland Rule 4-345(e). It is
well settled that an interpretation of Maryland Rule 4-345 is a question of law that is subject
to de novo review. See State v. Crawley, 455 Md. 52, 66, 166 A.3d 132, 140 (2017).
MARYLAND RULE 4-345(e)
Maryland Rule 4-345(e) governs a trial court’s revisory power over sentences that
it has imposed. Specifically, it sets forth the authority of and procedural requirements for
a sentence to be revised by the trial court upon a defendant’s motion. Relevant to the matter
sub judice, Maryland Rule 4-345(e)(1) provides:
Upon a motion filed within 90 days after imposition of a sentence . . . 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.
6
The language of Maryland Rule 4-345(e) sets forth two critical time frames: (1) the
defendant has 90 days after imposition of a sentence to file a motion for modification; and
(2) the trial court has revisory power over the defendant’s sentence for five years from the
date the sentence originally was imposed. Md. Rule 4-345(e)(1).
Of particular importance to the case before us is the five-year limitation on a trial
court’s revisory power, which is a relatively new addition to Rule 4-345(e). Prior to 1951,
a court could revise a sentence only until the end of the term of court. Bereska v. State,
194 Md. App. 664, 680-81, 5 A.3d 750, 760 (2010). In 1951, this Court adopted Part 4,
Rule 10(c) of the General Rules of Practice and Procedure, which allowed modification of
sentences, either sua sponte or pursuant to a defendant’s motion, within 90 days of the
imposition of sentence. State v. Robinson, 106 Md. App. 720, 722-23, 666 A.2d 909, 910-
11 (1995). In 1961, Part 4, Rule 10(c) was amended and renumbered as Maryland Rule
764(b). Id. The Rule continued to allow a trial court to reduce a sentence during the 90-
day period after the imposition of sentence, even absent a motion. Id. at 723, 666 A.2d at
911. In addition, Maryland Rule 764(b) allowed a party to file a motion to revise a sentence
within 90 days of the imposition of sentence, after which the court could modify the
sentence “any time ‘thereafter.’” Id.
In 1984, the modern Maryland Rules were adopted, and Maryland Rule 764(b)
became Maryland Rule 4-345(b). Steven Grossman & Stephen Shapiro, Judicial
Modification of Sentences in Maryland, 33 U. BALT. L. REV. 1, 6 n. 33 (2004). Rule 4-
345(b) placed no time limit on the trial court’s authority to revise a sentence upon a motion
timely filed within 90 days of the imposition of sentence. See Greco v. State, 347 Md. 423,
7
435, 701 A.2d 419, 424-25 (1997) (“[T]he history of . . . Maryland [R]ule [4-345] supports
the proposition that once a defendant files a motion for modification of a sentence within
the mandatory 90 day period, the trial court does not lose the power to act on that motion
when the court holds the motion sub curia for months, or even years.”). It was not until
2004 that the provision was renumbered as Rule 4-345(e), and the five-year limit on a
court’s revisory power was adopted by this Court. See Tshiwala v. State, 424 Md. 612,
616 n. 2, 37 A.3d 308, 310 n. 2 (2012).
Maryland Rule 4-345(e) and Postconviction Relief
Under the Uniform Postconviction Procedure Act, a defendant may file one petition
for postconviction relief “[f]or each trial or sentence[.]” Md. Code, Crim. Proc., § 7-103(a).
The petition “may not be filed more than 10 years after the sentence was imposed.” Md.
Code, Crim. Proc., § 7-103(b). When a defendant receives ineffective assistance of
counsel, he or she may be entitled to relief under the Act. See generally Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). As a post-trial remedy,
a defendant is entitled to the relief that is needed to put the defendant in the position that
he or she would have enjoyed but for counsel’s ineffectiveness. See Williams v. State, 326
Md. 367, 382-83, 605 A.2d 103, 110 (1992) (holding that the appropriate relief was that
which would “place [the defendant] in the same position he [or she] would have been in
but for the incompetence of his [or her] counsel.”).
In State v. Flansburg, we held that defense counsel’s failure to file a timely motion
for modification, in contravention of a client’s directive to do so, constituted “a ground for
the postconviction remedy of permission to file a belated motion for reconsideration of
8
sentence.” 345 Md. 694, 705, 694 A.2d 462, 468. The facts in Flansburg were not
complex. On December 5, 1985, John Flansburg (“Mr. Flansburg”) pleaded guilty to a
second-degree sex offense and was sentenced to seven years’ imprisonment with four years
suspended and five years’ probation upon release. Id. at 696, 694 A.2d at 463. While on
probation in 1990, Mr. Flansburg was convicted of battery and second-degree murder. Id.A hearing was held on May 21, 1991 to review whether his probation should be revoked.
Id. The court revoked Mr. Flansburg’s probation and reimposed the three years of his
sentence that had previously been suspended. Id. Subsequently, Mr. Flansburg made two
timely written requests for his attorney to file a motion for modification. 3 Id.Notwithstanding his requests, Mr. Flansburg’s counsel failed to file the motion. Id.On February 5, 1994, Mr. Flansburg filed a petition for postconviction relief. Id. at
697, 694 A.2d at 463. He argued that his counsel’s failure to file a motion for modification
deprived him of his right to effective assistance of counsel. Id. The circuit court dismissed
Mr. Flansburg’s petition, concluding that the Maryland Post Conviction Procedure Act did
not apply to his revocation of probation hearing. Id. at 697, 694 A.2d at 463-64. The Court
of Special Appeals reversed the circuit court’s ruling and concluded that Mr. Flansburg
had the right to effective assistance of counsel at his revocation of probation hearing. Id.3
Mr. Flansburg requested that the motion be filed pursuant to Maryland Rule 4-345(b),
which provided, in relevant part, that “[t]he court has revisory power and control over a
sentence upon a motion filed within 90 days after its imposition[.]” State v. Flansburg,
345 Md. 694, 697 n. 1, 694 A.2d 462, 463 n. 1 (1997). At the time Flansburg was decided,
the five-year limit on a court’s revisory power was not codified. See id. The court retained
revisory power over a sentence indefinitely, so long as a timely motion for modification
was filed. See Greco v. State, 347 Md. 423, 435, 701 A.2d 419, 424-25 (1997).
9
at 697, 694 A.2d at 464. We granted certiorari and, ultimately, affirmed the judgment of
the Court of Special Appeals. Id. We held that “[t]he failure to follow a client’s directions
to file a motion [for modification of sentence] . . . is a ground for the postconviction remedy
of permission to file a belated motion[.]” Id. at 705, 694 A.2d at 468.
Flansburg made clear that when a defendant directs his or her lawyer to file a motion
to modify the sentence, the lawyer’s failure to file a timely motion may constitute
ineffective assistance of counsel. Id. To remedy counsel’s ineffectiveness, the
postconviction court may permit a defendant to file a belated motion for modification of
sentence. Id. At the time that Flansburg was decided, the five-year limitation on a court’s
revisory power over a sentence did not exist. Thus, Flansburg leaves open the question of
whether, or to what extent, a trial court’s revisory power extends over a motion for
modification that is filed pursuant to an order for postconviction relief.
PARTIES’ ARGUMENTS
The parties’ contentions amount to a dispute over the interpretation of Maryland
Rule 4-345(e), and the circuit court’s power to modify Mr. Schlick’s sentence. The State
asserts that the circuit court lacked revisory power over Mr. Schlick’s sentence and, thus,
properly dismissed his motion. Mr. Schlick contends that the circuit court’s power to rule
on his motion for modification was implicit in the postconviction relief granted to him.
The State argues that the Court of Special Appeals erred in concluding that the
circuit court retained fundamental jurisdiction over Mr. Schlick’s motion because the five-
year period in Rule 4-345(e) is mandatory. To support its position, the State cites to the
plain text of Maryland Rule 4-345(e), which limits a circuit court’s revisory power to “five
10
years from the date the sentence originally was imposed.” Md. Rule 4-345(e)(1)(B). In
addition, the State posits that the Rule’s history demonstrates that the five-year period was
deliberately enacted to limit the trial court’s revisory power over sentences it has imposed.4
4
The State also argues that this Court’s caselaw, specifically Cardinell v. State, dictates
that the time limits imposed by Rule 4-345(e) are mandatory. 335 Md. 381, 644 A.2d 11(1994), overruled on other grounds by State v. Green, 367 Md. 61, 785 A.2d 1275 (2001).
After oral arguments, on April 19, 2019, the State filed a Notice of Subsequent Authority
with this Court. Therein, the State contends that in Cardinell, this Court held that the time
limits specified in Rule 4-345(e) are “jurisdictional.” Id. at 392-93, 644 A.2d at 16.
Therefore, according to the State, a circuit court cannot exercise revisory power over a
sentence, except as authorized by Maryland Rule 4-345(e).
The State’s Notice also brought to this Court’s attention our recent decision in
Rosales v. State, 463 Md. 552, 206 A.3d 916 (2019). In Rosales, we differentiated between
a “jurisdictional” rule and a “claim processing” rule. Id. at 567-68, 206 A.3d at 924-25. A
“jurisdictional” rule is set forth by our State’s legislature through the passage of a statute.
See id. at 567, 206 A.3d at 924. A “claim processing” rule does not involve a time limit
prescribed by the legislature. See id. For example, a court-made rule is a claim processing
rule, and its purpose is “to promote the orderly progress of litigation by requiring that the
parties take certain procedural steps at certain specified times.” Id.
According to the State, Rosales may have called Cardinell into question by
suggesting that the time limits in the Rule are not jurisdictional requirements, but instead
are claim-processing steps, because they are established by court rule and not by statute.
Nonetheless, the State argues that the outcome of the present case does not hinge on the
classification of Rule 4-345(e). If the rule is jurisdictional, in the State’s view, this Court
cannot expand the five-year limit therein. If the Rule is a claim-processing rule, according
to the State, it is still mandatory, meaning that courts cannot disregard it or commit
reversible error when they abide by it. Either way, the Rule’s time prescriptions are
mandatory.
In addition, the State contends in its Notice that whether Maryland Rule 4-345(e) is
a “jurisdictional” or “claim processing” rule is immaterial because the Rule is
unconstitutional. The Maryland Crime Victims’ Resource Center, before this Court as
amicus curiae, also argues that the Rule is unconstitutional. The State and amicus
resurrect an argument that was first presented to this Court by the Honorable Dale R.
Cathell in 2004 when the Rule was amended to include the five-year limitation. Judge
Cathell argued that it is unconstitutional for the trial court to exercise revisory power over
(continued . . .)
11
The State also contends that, even if the circuit court retained fundamental jurisdiction over
Mr. Schlick’s sentence, the court did not abuse its discretion by choosing to, instead,
comply with Rule 4-345(e)’s unambiguous command that it not exercise its jurisdiction.
Moreover, the State argues that, as a matter of postconviction relief, Mr. Schlick
was not entitled to a ruling on his motion more than five years after his sentence was
originally imposed. The State acknowledges, however, that defendants may be granted
postconviction relief to file a belated motion for modification. Under certain
circumstances, the State agrees that a defendant may be granted the postconviction relief
of belated consideration of a motion for modification, outside of the five-year window set
forth in Maryland Rule 4-345(e).5 In the present case, however, the State argues that Mr.
(. . . continued)
a sentence outside of the term of court. Furthermore, he asserted that judicial modifications
of sentences violate the Separation of Powers doctrine, enumerated in Article 8 of the
Declaration of Rights, and encroaches upon the Governor’s pardoning power, enumerated
in Article II, Section 20 of the Maryland Constitution.
In the case at bar, we do not expand or disregard the time frames set forth in Rule
4-345(e). Rather, we apply them to the present scenario, which arises in the postconviction
context. Therefore, whether the Rule is properly classified as “jurisdictional” or “claim
processing” is immaterial to our disposition of Mr. Schlick’s case. Moreover, in 2004,
when this Court adopted the five-year time limit set forth in Rule 4-345(e), we were not
persuaded that the Rule was unconstitutional. We are, likewise, not persuaded to alter our
discourse today. Furthermore, the United States Supreme Court has concluded that “[t]o
reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act
as much as the imposition of the sentence in the first instance.” United States v. Benz, 282
U.S. 304, 311, 51 S. Ct. 113, 115, 75 L. Ed. 354 (1931). As such, we conclude that Rule
4-345(e) is constitutional because modifying a sentence is a judicial act that does not
violate the separation of powers doctrine nor usurp the Governor’s power to pardon.
5
The State admits that postconviction relief “would entitle a movant to a belated ruling on
a motion for sentence reduction only where the postconviction court actually granted
(continued . . .)
12
Schlick was not expressly or impliedly granted such a right. According to the State, Mr.
Schlick’s sentence was imposed on September 15, 2008, and he obtained postconviction
relief to file a belated motion in March 2013. Therefore, he had six months to obtain a
ruling on his motion before the circuit court’s revisory power expired. During that time,
the State contends that there was no impediment to Mr. Schlick seeking a hearing on his
motion, and Mr. Schlick asked the court to hold his motion in abeyance. Thus, Mr.
Schlick’s entitlement to file a belated motion, the State asserts, did not automatically entitle
him to a belated ruling on that motion. Finally, the State emphasizes that if Mr. Schlick is
entitled to relief, it should be because he was granted postconviction relief to file a belated
motion, not because the circuit court retains fundamental jurisdiction to reduce a sentence.
On the other hand, Mr. Schlick argues that Rule 4-345(e) does not divest a circuit
court of its revisory power over a motion for modification that is filed pursuant to a
postconviction court’s ruling. Mr. Schlick contends that there is a tension between the
five-year period during which a circuit court retains revisory power over a sentence and
the ten-year period during which a defendant may obtain postconviction relief. This
tension not only hamstrings defendants’ postconviction rights, but, according to Mr.
Schlick, it condones ineffective assistance of counsel in violation of the Sixth Amendment
to the United States Constitution. Mr. Schlick asserts that this tension may be assuaged by
(. . . continued)
permission to obtain a belated ruling, either expressly or by necessary implication.” For
example, the State concedes that if a postconviction court granted a defendant the right to
file a belated motion after the five-year period expired, the grant of relief would imply
authorization to obtain a ruling on the motion.
13
permitting circuit courts to entertain a properly filed, belated motion for modification of
sentence for a period of five years from the date on which the motion is filed.
In addition, Mr. Schlick contends that he was granted postconviction relief after the
Rule’s five-year deadline had elapsed. To that end, Mr. Schlick argues that his sentence
was originally imposed, for purposes of Rule 4-345(e), on September 20, 2005 – not on
September 15, 2008 – so the court’s revisory power lapsed on September 20, 2010.
Therefore, in Mr. Schlick’s view, because he was not granted postconviction relief until
March 20, 2013, the circuit court’s ability to rule on his motion was implicit in the
postconviction court’s ruling granting him the right to file a belated motion. Moreover,
Mr. Schlick points out that the State conceded that if a defendant was granted permission
to file a belated motion after the five-year period had expired, then permission to rule on
the motion outside of the five-year period would be implicit in the court’s ruling. Finally,
Mr. Schlick argues that to allow him to file a belated motion for modification, but not allow
the circuit court to rule on that motion, would be an “empty remedy.”
DISCUSSION
The Imposition of Mr. Schlick’s Sentence
Before determining when the circuit court’s revisory power ended, we analyze the
prefatory issue of when the circuit court’s revisory power began. The language of Rule 4-
345(e) provides that the event triggering the start of the circuit court’s revisory power is
“the date the sentence originally was imposed on the defendant[.]” Md. Rule 4-
345(e)(1)(B). For guidance on when Mr. Schlick’s sentence was originally imposed and,
14
thus, when the five-year limit on the circuit court’s revisory power began to run, we look
to this Court’s decision in McDonald v. State, 314 Md. 271, 550 A.2d 696 (1988).
In McDonald, Kathleen McDonald (“Ms. McDonald”) was convicted of solicitation
in the District Court of Maryland located in Baltimore County. Id. at 273, 550 A.2d at 696.
Ms. McDonald, consequently, received a six-month suspended sentence and was placed on
supervised probation for one year. Id. Subsequently, on a de novo appeal, the Circuit Court
for Baltimore County found that Ms. McDonald had violated her probation, revoked her
probation, and reimposed the sentence handed down by the district court. Id. at 273, 284,
550 A.2d at 697, 702. Ms. McDonald filed a motion for modification, which the circuit
court denied because it believed it did not have the authority to revise the original sentence.
Id. On appeal, this Court reversed the circuit court and concluded that the revocation of
Ms. McDonald’s probation returned Ms. McDonald to her original sentencing status. Id.
at 284-85, 550 A.2d at 702. We held:
Whether the hearing judge reimposes the original sentence or imposes a new
sentence, the effect under Rule 4-345(b) remains the same; the 90-day period
runs from the time any sentence is imposed or reimposed upon revocation of
probation, and the court retains the authority to modify that sentence as the
rule provides.
Id. at 285, 550 A.2d at 702.
To reach our conclusion in McDonald, we looked to the Court of Special Appeals’
decision in Coley v. State, 74 Md. App. 151, 536 A.2d 1166 (1988). In Coley, the Court
of Special Appeals held that “where a probation is revoked and resentencing occurs, the 90
15
day modification period should run from the date the new sentence is reimposed.” Id. at
156, 536 A.2d at 1169. Our intermediate appellate court in Coley reasoned:
[I]f an order revoking a defendant’s probation returns the hearing judge to
the original sentencing status, then any sentence so imposed must have the
effect of an original sentence. Because Rule 4-345(b) applies to any
sentence, it must apply to a sentence which is imposed following a revocation
of probation.
Id.From McDonald and Coley, we discern that when a defendant is resentenced after
his or her probation is revoked, whether the court proceeds to reimpose the defendant’s
initial sentence or impose a new sentence, the resulting sentence is treated as an “original
sentence” for purposes of Maryland Rule 4-345(e). To treat the subsequent pronouncement
of a sentence as an “original sentence” yields the conclusion that the portion of Rule 4-
345(e) that affords the circuit court revisory power for “five years from the date the
sentence originally was imposed” must be interpreted to afford the trial court revisory
power for five years from the date on which the defendant’s probation is revoked and the
subsequent sentence is reinstated or reimposed. As a result, a defendant has 90 days from
the date on which his or her probation is revoked and subsequent pronouncement of a
sentence, whichever is later, to file a motion for modification. Likewise, the trial court has
five years from the date on which a defendant’s probation is revoked and a sentence is
imposed to exercise its revisory power over the sentence.
Applying the principles stated above to the facts of the present case, the circuit court
imposed Mr. Schlick’s sentence on September 20, 2005. Mr. Schlick correctly notes that
for purposes of Rule 4-345(e) he was sentenced on September 20, 2005. Thereafter, he
16
had until December 19, 2005 to file a motion for modification, and the circuit court retained
revisory power over his sentence until September 20, 2010.
Mr. Schlick’s position, however, does not go far enough. After he was sentenced
in 2005, Mr. Schlick was released on probation but, ultimately, violated the terms of his
probation. Consequently, the court revoked his probation and reimposed his sentence on
September 15, 2008. Pursuant to McDonald, the “order revoking [Mr. Schlick’s] probation
return[ed] the hearing judge to the original sentencing status” and for purposes of Rule 4-
345(e) the new sentence “h[ad] the effect of an original sentence.” See McDonald, 314
Md. at 284, 550 A.2d at 702. As such, Mr. Schlick had 90 days, or until December 14,
2008, to file a motion for modification. If a timely motion had been filed on Mr. Schlick’s
behalf, as he had requested of counsel, the circuit court would have had revisory power
over his sentence for five years from the date that his sentence was then imposed.6
6
Mr. Schlick relies on Jones v. State, 138 Md. App. 12, 769 A.2d 1015 (2001), to contend
that his sentence was not imposed on September 15, 2008. To support his argument, Mr.
Schlick relies on language from Jones, in which the Court of Special Appeals stated that
when a court, “suspends execution of all or part of [a] sentence in favor of probation, and
later strikes the probation and directs execution of all or part of the previously suspended
part of the sentence, the court does not, at that time[,] reimpose all or any part of the
sentence.” Jones, 138 Md. App. at 22, 769 A.2d at 1021 (quoting Moats v. Scott, 358 Md.
593, 596-97, 751 A.2d 462, 464 (2000)). The Court of Special Appeals went on to say that
the “original sentence is the only true punishment; the probation revocation is merely the
withdrawal of favorable treatment previously accorded the defendant.” Id. at 21-22, 769
A.2d at 1020-21.
By applying the selected language to the present case Mr. Schlick takes Jones out of
context. Jones did not decide what constitutes an imposition of sentence for purposes of
ruling on a defendant’s motion for modification of sentence or otherwise purport to
interpret Rule 4-345. Rather, Jones concerned whether a sentence was imposed in the
context of imposing an enhanced penalty. Id. at 19, 769 A.2d at 1019. To reach its
(continued . . .)
17
To the extent that the State argues that Mr. Schlick’s sentence was originally
imposed for purposes of determining the typical limitation on a trial court’s revisory power,
the State is correct. Our inquiry, however, does not end there because a timely motion for
modification was not filed on Mr. Schlick’s behalf. The postconviction court ruled on
March 20, 2013 that Mr. Schlick received ineffective assistance of counsel and that he was
therefore permitted to file a belated motion for modification. We must decide what, if any,
impact the postconviction court’s order had on the time constraints of the circuit court’s
revisory power under Maryland Rule 4-345(e).
Mr. Schlick’s Postconviction Relief and the Circuit Court’s Revisory Power
The postconviction court ruled on March 20, 2013 that Mr. Schlick received
ineffective assistance of counsel because his attorney failed to file a timely motion for
modification. Accordingly, the postconviction court granted Mr. Schlick permission to file
a belated motion for modification within 90 days of the postconviction court’s order.
Before this Court, neither party challenges the propriety of the postconviction court’s
ruling.
By affording Mr. Schlick 90 days from the date of its order to file a motion for
modification, the postconviction court effectively restored Mr. Schlick’s rights and the
circuit court’s revisory power under Rule 4-345(e). That is, had Mr. Schlick received
(. . . continued)
conclusion, the Jones Court relied on Moats, which concerned the imposition of a sentence
in the context of applying good conduct credits to a defendant’s time served. Moats, 358
Md. at 605-06, 751 A.2d at 468-69. As such, neither Jones nor Moats interpreted the Rule
at issue in the case at bar, and Mr. Schlick’s reliance on those cases is misplaced.
18
effective assistance of counsel, he would have had 90 days from the date of his probation
revocation and final judgment of the court to file a motion for modification. Mr. Schlick
was denied this right due to his counsel’s ineffectiveness. The postconviction court
restored his right to file the motion for modification. Given that the postconviction court’s
order was rendered on March 20, 2013, Mr. Schlick had until June 18, 2013 to file his
motion. He filed a motion on May 24, 2013.
Maryland Rule 4-345(e), however, explicitly affords Mr. Schlick more than the right
to simply file a motion for modification. The Rule also grants the circuit court revisory
power over such a motion for five years from the date on which a defendant’s sentence was
originally imposed. Md. Rule 4-345(e)(1)(B). For reasons that we previously explained,
if Mr. Schlick had received effective assistance of counsel, he would have been entitled to
the benefit of the circuit court’s revisory power over his sentence for five years from the
date that the court revoked his probation and reimposed his sentence. Mr. Schlick’s
sentence was reimposed on September 15, 2008. If a timely motion had been filed, the
circuit court would have retained revisory power over Mr. Schlick’s sentence until
September 16, 2013, because September 15, 2013 fell on a Sunday. See Md. Rule 1-
203(a)(1).
Not only was Mr. Schlick denied the right to file a motion for modification of
sentence, he was also denied the court’s exercise of discretion consistent with its revisory
powers under Rule 4-345(e). Thus, to meaningfully restore Mr. Schlick’s rights under the
Rule, not only must Mr. Schlick be permitted to file a belated motion within 90 days of the
postconviction court’s order, but it follows that implicit in the postconviction court’s grant
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of relief was the ability of the circuit court to exercise its revisory power over Mr. Schlick’s
motion for five years from the date of the postconviction court’s order. Applying the
aforesaid principles to the facts of the present case, Mr. Schlick was granted postconviction
relief on March 20, 2013. In compliance with the postconviction court’s order, he filed a
motion for modification on May 24, 2013. Therefore, the trial court had revisory power
over Mr. Schlick’s sentence until March 20, 2018.
In reaching this conclusion, we recognize that Rule 4-345(e) includes a defendant’s
right to seek meaningful redress by filing a timely motion for modification of sentence and
obtaining the meaningful exercise of a circuit court’s discretion to act on that motion within
the time limits prescribed by the Rule. See Md. Rule 4-345(e). This application of the
Rule is consistent with the notion to place the defendant in the position he would have been
but for his counsel’s ineffectiveness. See Williams, 326 Md. 367, 382-83, 605 A.2d 103,
110-11. If we were to adopt the State’s position and hold that the circuit court’s revisory
power over Mr. Schlick’s sentence lapsed on September 16, 2013 – five years after his
probation was revoked on September 15, 2008 – Mr. Schlick’s rights under Rule 4-345(e)
would not have been fully restored. By the time Mr. Schlick obtained postconviction relief
on March 20, 2013, he would have had only approximately six months remaining for the
circuit court to rule on his motion before its revisory power lapsed. Under that scenario,
Mr. Schlick would be denied the full benefit of the five-year time period during which the
circuit court could exercise its discretionary revisory power over his sentence.
In our view, the circuit court erred when it prematurely concluded that it lacked
revisory power over Mr. Schlick’s sentence and thereby failed to exercise its discretion to
20
rule on the motion for modification of sentence.7 Clearly, Mr. Schlick is not guaranteed a
reduction in sentence or other modification of sentence as a matter of law. Rather, he is
entitled to the full benefits of Maryland Rule 4-345(e), which he was denied due to his
counsel’s ineffectiveness. That is to say, Mr. Schlick is entitled to a full and fair
opportunity in which to obtain the court’s consideration and ruling on his motion
considering the totality of the circumstances. Accordingly, we affirm the judgment of the
Court of Special Appeals. We emphasize that our holding in this case is limited to those
situations where a defendant is deprived of the opportunity to timely file or otherwise
obtain consideration by the court of a motion for modification under Maryland Rule 4-
345(e) as a result of ineffective assistance of counsel.
CONCLUSION
We hold that, when the postconviction court granted Mr. Schlick 90 days from the
date of its order to file a motion for modification of sentence, implicit in the court’s ruling
was the circuit court’s authority to exercise it revisory power over Mr. Schlick’s sentence
for five years following the postconviction court’s final order. Given that Mr. Schlick was
granted postconviction relief on March 20, 2013, the circuit court had revisory power over
his sentence for an additional five years from that date, or until March 20, 2018. On August
8, 2017, when the court dismissed Mr. Schlick’s motion without a ruling on the merits
7
Given that we hold that the circuit court’s revisory power was ongoing when it dismissed
Mr. Schlick’s motion, it is not necessary for us to decide whether, as the Court of Special
Appeals concluded, the circuit court retains indefinite fundamental jurisdiction to modify
a sentence outside of the five-year period set forth in Maryland Rule 4-345(e). See Schlick
v. State, 238 Md. App. 681, 693-94, 194 A.3d 49, 55-56 (2018).
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because of a perceived lack of revisory power, the circuit court dismissed Mr. Schlick’s
motion prematurely. The court, in fact, had revisory power over Mr. Schlick’s sentence
for an additional 224 days, or until March 20, 2018. As such, when the circuit court
dismissed Mr. Schlick’s motion without a ruling on the merits, the circuit court erred as a
matter of law.
Mr. Schlick is entitled to a full and fair opportunity to have his motion considered
on the merits and ruled on within five years after the postconviction court’s order.
Therefore, we affirm the judgment of the Court of Special Appeals and direct that court to
remand the case to the circuit court. If Mr. Schlick intends to further pursue his request for
modification of sentence, he is required, within 30 days of this mandate, to file a motion in
the Circuit Court for Baltimore City requesting that the court reconsider his motion for
modification. In light of the 224 days that were outstanding when the circuit court
dismissed Mr. Schlick’s motion, we hold that the Circuit Court for Baltimore City retains
revisory power over Mr. Schlick’s sentence for an additional 224 days accounting from the
date of Mr. Schlick’s written request to the circuit court.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY PETITIONER.
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