State v. Bustillo

State of Maryland v. Juan Pablo Bustillo, No. 56, September Term 2021. Opinion by
Gould, J.
SENTENCING AND PUNISHMENT---PROBATION
A trial court’s failure to articulate the duration of the defendant’s probation, as required by
Maryland Rule 4-346(a), is a procedural error that must be raised at the trial level.
SENTENCING AND PUNISHMENT---ILLEGAL SENTENCE
A trial court did not impose an illegal sentence under Rule 4-346(a) when it failed to
articulate the duration of the defendant’s probation.
Circuit Court for Prince George’s County
Case No.: CT181511X
Argued: April 8, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 56
September Term, 2021
STATE OF MARYLAND
v.
JUAN PABLO BUSTILLO
*Getty, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
McDonald, Robert N. (Senior Judge,
Specially Assigned)
JJ.
Opinion by Gould, J.
Filed: August 24, 2022
*Getty, C.J., now a Senior Judge,
participated in the hearing and conference
of this case while an active member of this
Pursuant to Maryland Uniform Electronic Legal
Court. After being recalled pursuant to
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic. Md. Const., Art. IV, § 3A, he also
2022-08-24 participated in the decision and adoption of
14:56-04:00
this opinion.
Suzanne C. Johnson, Clerk
This case requires us to determine whether an error made during the sentencing of
a defendant rendered the resulting sentence illegal. Here, the sentencing court imposed a
split sentence of 25 years, suspending five years. Although the court mentioned probation
and referenced “conditions of probation,” it failed to advise the defendant of the duration
of probation, as required by Maryland Rule 4-346(a). The court did, however, include the
duration, a five-year term, and conditions of probation in the probation order that the
defendant and his counsel signed prior to leaving the courtroom. The defendant appealed,
alleging the sentence was illegal. The Court of Special Appeals reversed in a reported
decision, holding that the violation of Rule 4-346(a) rendered the sentence illegal, and
remanded the case to the circuit court to, among other things, strike the five-year probation
from the sentence.
For the reasons that follow, we respectfully disagree with the Court of Special
Appeals and hold that the violation of Rule 4-346(a) was a procedural defect in the
sentencing proceeding that did not render the sentence illegal.
BACKGROUND
The Sentence
On November 20, 2018, Juan Pablo Bustillo was indicted in the Circuit Court for
Prince George’s County for sexually abusing his daughter from the time she was nine until
she was 15, and for other related offenses. On October 16, 2019, he was convicted of
sexual abuse of a minor, third-degree sexual offense, and second-degree assault.
At his sentencing, both sides sought a split sentence that included a period of
probation. The State requested a sentence of 45 years, with all but 25 years suspended,
plus five years of supervised probation.1 Defense counsel asked the court to sentence Mr.
Bustillo “to a period of probation, suspending . . . all but three or four years.”
The trial court announced Mr. Bustillo’s sentence as follows:
THE COURT: . . . with respect to child abuse -- sexual child abuse, the Court
will impose a sentence of 25 years’ incarceration, suspend all but 20 years,
give you credit for 447 days already served. Just so the record is clear, I am
going two years above guidelines due to the nature and circumstances of the
offense at hand. With respect to sex offense in the third degree, the Court
will impose a sentence of ten years’ incarceration, suspend all but two years
to run concurrent to the sentence imposed for –
[THE STATE]: I believe it’s Count Four.
THE COURT: -- for Count One. With respect to Count Four, second degree
assault, the Court will impose a sentence of ten years’ incarceration, suspend
all but six months to run concurrent to the sentence imposed in Count One
and Count Three. As conditions of probation, we will mandate that the
defendant register as a lifetime sexual offender. We will also order that the
defendant participate in the Sex Offender Program as needed by Parole and
Probation. We will also order that the defendant have no contact -- excuse
me, no contact with his daughter, . . . and no contact with -- what’s the
mother’s name?
[DEFENSE COUNSEL]: I. D.
THE COURT: -- with Ms. D. We will also order that the defendant undergo
drug and alcohol evaluation and treatment as deemed appropriate by Parole
and Probation.
[THE STATE]: And the lifetime supervision, Your Honor.
THE COURT: Lifetime supervision, also.
1
The State did not specify how the 45-year recommended sentence should have
been allocated across the three counts on which Mr. Bustillo was convicted.
2
The court did not state the length of Mr. Bustillo’s probation. The court explained to Mr.
Bustillo his appeal rights and told him: “You do have some paperwork that you need to
sign, so just have a seat.”
The sentencing judge then signed and issued a written probation order. Mr. Bustillo
and defense counsel both signed the order, the latter as a witness to the former’s signature.2
The order stated that Mr. Bustillo was sentenced to supervised probation for five years,
beginning upon his release, and contained various terms and conditions, including that he
was required to attend alcohol and drug treatment, have no contact with the victim or her
mother, and complete a sexual assault treatment program through the parole and probation
department.
Court of Special Appeals
Mr. Bustillo noted a timely appeal to the Court of Special Appeals and raised two
issues, only the second of which is relevant here. Mr. Bustillo argued that because the
sentencing judge never articulated that he “would have to serve a specific period of
probation when he finished his period of incarceration[,]” the inclusion of five years of
probation on the docket entries, commitment record, and probation order were illegal. Mr.
Bustillo contended that those documents required correction to reflect that the sentencing
court did not order probation.
2
Though illegible, we compared the signature of the “witness” on the probation
order to a signature by defense counsel on one of his court filings in this case, and it appears
that they were both signed by the same person. [See Appendix]
3
Mr. Bustillo asserted that because the sentence articulated at the hearing controls,
and the sentencing court did not impose a term of probation, he was not sentenced to
probation. Citing to Robinson v. Lee, 317 Md. 371, 379-80 (1989), and Maryland Rule 4-
346(a),3 Mr. Bustillo further argued that because he had the right to be accurately apprised
of his sentence at the sentencing hearing, the subsequent addition of probation violated his
right to fundamental fairness.
The State argued that Mr. Bustillo was not entitled to raise this issue on appeal
because he failed to preserve it in the circuit court. According to the State, there are limited
exceptions to the preservation requirement, and this was not one of them because the
court’s failure to specify the duration of probation was a mere procedural error that did not
render Mr. Bustillo’s sentence “inherently illegal.”
The Court of Special Appeals reversed, holding that the trial court “illegally
increased [Mr. Bustillo’s] sentence by adding a five-year period of probation.” Juan Pablo
B. v. State, 252 Md. App. 624, 628 (2021). The Court first determined that the transcript
from the sentencing hearing, which did not indicate that Mr. Bustillo’s sentence included
a five-year term of probation, conflicted with the probation order, which clearly reflected
this term. Id. at 639. The Court noted that the trial court violated Rule 4-346(a), for failing
3
Rule 4-346(a) provides:
When placing a defendant on probation, the court shall advise the defendant
of the conditions and duration of probation and the possible consequences of
a violation of any of the conditions. The court also shall file and furnish to
the defendant a written order stating the conditions and duration of probation.
4
to advise the defendant of the conditions and duration of probation in open court, and that
the court compounded its error by failing to comply with the procedure for correcting
mistakes in the sentencing, as outlined in Rule 4-345(c).4 Id. at 641-42.
The Court next addressed whether the two Rule violations resulted in an inherently
illegal sentence, as argued by Mr. Bustillo, or constituted a procedural error, as argued by
the State. The Court observed that inherently illegal sentences generally come in three
varieties: (1) a sentence that exceeds the statutory maximum, id. at 642 (citing Carlini v.
State, 215 Md. App. 415, 427 (2013)), or is less than the required minimum, id. at 642
(citing Hoile v. State, 404 Md. 591, 620 (2008)); (2) a sentence that “never should have
been imposed,” id. at 642 (quoting Johnson v. State, 427 Md. 356, 368-69 (2012)); or (3) a
sentence that exceeds the cap imposed by a binding plea agreement, id. at 642 (citing
Matthews v. State, 424 Md. 503, 518-19 (2012)). The Court noted, however, that it is “less
clear whether a sentence imposed in violation of a mandatory Maryland Rule likewise is
inherently illegal.” Id. at 642-43.
In analyzing this issue, the Court reviewed three cases involving the failure to
comply with Rule 4-245(b) in the imposition of enhanced sentences: Armstrong v. State,
69 Md. App. 23 (1986); Carter v. State, 319 Md. 618 (1990); and Bailey v. State, 464 Md.
685 (2019). Juan Pablo B., 252 Md. App. at 643-44. The Court also discussed cases
involving sentences in violation of binding plea agreements—Dotson v. State, 321 Md. 5154
Rule 4-345(c) provides: “The court may correct an evident mistake in the
announcement of a sentence if the correction is made on the record before the defendant
leaves the courtroom following the sentencing proceeding.”
5
(1991); Cuffley v. State, 416 Md. 568 (2010); Baines v. State, 416 Md. 604 (2010); and
Matthews v. State, 424 Md. 503 (2012). Juan Pablo B., 252 Md. App. at 645-46. From its
analysis of these two lines of cases, the Court concluded that “generally, but not always,
sentences that are imposed in violation of a mandatory Maryland rule are inherently
illegal.” Id. at 646.
In determining whether that general rule should apply to Mr. Bustillo’s sentencing,
the Court focused its analysis on Jones v. State, 384 Md. 669 (2005) and Montgomery v.
State, 405 Md. 67 (2008). Juan Pablo B., 252 Md. App. at 646. Based on its review of
these cases, the Court concluded that the duration of a term of probation is an integral part
of a sentence, that a defendant has the right to rely upon the sentence announced orally by
the trial court, and that, therefore, the trial court’s failure to specify the term of Mr.
Bustillo’s probation, in violation of Rule 4-346(a), resulted in an illegal sentence. Id. at
650-51.
The Court concluded that, under Cathcart v. State, 397 Md. 320, 330 (2007), the
unsuspended part of the sentence—the 20 years—was the effective sentence. Juan Pablo
B., 252 Md. App. at 651-52. Observing that the “resulting sentence is a 20-year flat
sentence on the flagship charge, and concurrent terms of two years’ imprisonment for third-
degree sexual offense and six months of imprisonment for second-degree assault,” the
Court remanded the case for resentencing. Id. at 652 n.24.
Petition for Certiorari
The State filed a petition for certiorari, which we granted. State v. Bustillo, 477
Md. 150 (2022).
6
The State presents us with one question:
Did the Court of Special Appeals err in holding that a sentencing court’s
failure to comply with Maryland Rule 4-346(a) when imposing a period of
probation results in an “illegal sentence” within the meaning of Maryland
Rule 4-345(a)?
Notwithstanding the compelling analysis of the intermediate appellate court to the
contrary, we agree with the State that the errors committed by the trial court did not result
in the imposition of an illegal sentence. Accordingly, we reverse.
DISCUSSION
The Parties’ Contentions
The State reiterates its argument that Mr. Bustillo was barred from arguing that
probation was improper. In support of its argument, the State cites Maryland Rule 8-
131(a), which provides that appellate courts do not address issues that were neither raised
nor decided in the trial court, and Rule 4-323(c), which requires parties to inform the court
of “the action that the party desires the court to take or the objection to the action of the
court[.]” The State also cites Rule 4-345(a), which grants the court authority to “correct
an illegal sentence at any time” and argues that the Rule is a rare and narrow exception to
the preservation requirements. The State maintains that Rule 4-345(a) is limited to
correcting sentences that are “inherently illegal,” not procedural errors in the sentencing
process. And because the error here was of the latter variety, it provides Mr. Bustillo no
basis for relief.
Mr. Bustillo argues that the court’s failure to inform him of the duration of his
probation at sentencing resulted in “fundamental unfairness” and failed to “put[] the
7
correctional authorities on notice as to their role in overseeing the sentence.” As a result,
he argues, the court lacked the authority to impose a period of probation because it failed
to provide both the duration and the terms of probation, as required by Rule 4-346(a). He
maintains that his sentence was therefore inherently illegal, and, to the extent the court
attempted to fix its violation of Rule 4-346(a) by providing such information in the
probation order, that action was inadequate because the court failed to comply with the
requirements imposed by Rule 4-345(c) for fixing “evident mistake[s] in the announcement
of a sentence[.]”
Mr. Bustillo further contends that because conflicts between the transcript of the
sentencing hearing and docket entries and/or commitment records are resolved in favor of
the transcript unless the transcript is shown to be in error, “there is no reason why
transcripts should not also take precedence over probation orders.” Therefore, he contends,
“issuing a probation order (and other documents) that went beyond the sentence imposed
on the record conflicted with the general rule that statements made on the record in the
transcript control the nature of the imposed sentence.”
Further, Mr. Bustillo maintains that Rule 4-346(a) cannot be read in isolation from
sections 6-221 and 6-222 of the Criminal Procedure Article (“CP”) of the Maryland Code
(2001, 2018 Repl. Vol.), which establish the court’s authority to impose probation and split
sentences. Construed in this light, Mr. Bustillo contends that the court lacked authority to:
(1) impose a probation period that exceeded five years, see Kupfer v. State, 287 Md. 540,
543 (1980); (2) impose probation in the absence of a split sentence, see Laurie v. State, 29
Md. App. 609 (1976); and (3) impose an indeterminate sentence, see id. Because under
8
Cathcart v. State, 397 Md. 320 (2007), the remedy for failing to impose an actual term of
probation when purporting to suspend a part of the sentence is to vacate the probation term
and treat the unsuspended part of the sentence as the effective sentence, Mr. Bustillo argues
that his sentence should not include any probation.
Mr. Bustillo further contends that the mention of “conditions of probation” during
his sentencing hearing did not unambiguously impose a term of probation as required under
CP § 6-221 because, as the Court of Special Appeals observed, “the sentencing court did
not clearly differentiate between probation and lifetime supervision” and each of the
conditions of supervision mentioned by the court on the record were likewise permissible
conditions under CP § 11-723. Accordingly, Mr. Bustillo argues that the Court correctly
held that the “transcript was ambiguous as to whether [Mr. Bustillo] was fully aware that
he was being sentenced to probation in addition to the conditions imposed under CP § 11-
723.”5
5
CP § 11-723 provides:
Persons subject to lifetime sexual offender supervision
(a) Except where a term of natural life without the possibility of parole is
imposed, a sentence for the following persons shall include a term of
lifetime sexual offender supervision:
(1) a person who is a sexually violent predator;
(2) a person who has been convicted of a violation of:
(i) § 3-303 or § 3-304 of the Criminal Law Article; or
(ii) § 3-305 or § 3-306(a)(1) or (2) of the Criminal Law Article as the
sections existed before October 1, 2017;
(3) a person who has been convicted of a violation of § 3-309 or § 3-310
of the Criminal Law Article, § 3-311 of the Criminal Law Article as the
section existed before October 1, 2017, or an attempt to commit a
9
violation of § 3-306(a)(1) or (2) of the Criminal Law Article as the
section existed before October 1, 2017;
(4) a person who has been convicted of a violation of § 3-602 of the
Criminal Law Article involving a child under the age of 12 years;
(5) a person who is required to register under § 11-704(c) of this subtitle;
and
(6) a person who has been convicted more than once arising out of
separate incidents of a crime that requires registration under this
subtitle.
Sentences including lifetime sexual offender supervision
(b) Except where a term of natural life without the possibility of parole is
imposed, a sentence for a violation of § 3-307(a)(1) or (2) of the Criminal
Law Article may include a term of lifetime sexual offender supervision.
Term and commencement of lifetime sexual offender supervision
(c)(1) Except as provided in paragraph (2) of this subsection, the term of
lifetime sexual offender supervision imposed on a person for a crime
committed on or after October 1, 2010, shall:
(i) be a term of life; and
(ii) commence on the expiration of the later of any term of
imprisonment, probation, parole, or mandatory supervision.
(2) For a person who is required to register under § 11-704(c) of this subtitle,
the term of lifetime sexual offender supervision imposed for an act
committed on or after October 1, 2010, shall:
(i) commence when the person’s obligation to register commences;
and
(ii) expire when the person’s obligation to register expires, unless the
juvenile court:
1. finds after a hearing that there is a compelling reason for the
supervision to continue; and
2. orders the supervision to continue for a specified period of
time.
Presentence investigations and risk assessments done prior to imposing
special conditions to supervision
(d)(1) For a sentence that includes a term of lifetime sexual offender
supervision, the sentencing court, or juvenile court in the case of a person
who is required to register under § 11-704(c) of this subtitle, shall impose
10
By failing to clearly place him on probation, and by then purporting to do so through
the probation order, commitment record, and docket entries, Mr. Bustillo maintains, the
sentencing court violated Rule 4-346(a). Additionally, by waiting until after the sentencing
hearing to impose probation in the probation order, Mr. Bustillo argues, the court exceeded
special conditions of lifetime sexual offender supervision on the person at
the time of sentencing, or imposition of the registration requirement in
juvenile court, and advise the person of the length, conditions, and
consecutive nature of that supervision.
(2) Before imposing special conditions, the sentencing court or juvenile court
shall order:
(i) a presentence investigation in accordance with § 6-112 of the
Correctional Services Article; and
(ii) for a sentence for a violation of § 3-307(a)(1) or (2) of the Criminal
Law Article, a risk assessment of the person conducted by a sexual
offender treatment provider.
(3) The conditions of lifetime sexual offender supervision may include:
(i) monitoring through global positioning satellite tracking or
equivalent technology;
(ii) where appropriate and feasible, restricting a person from living in
proximity to or loitering near schools, family child care homes, child
care centers, and other places used primarily by minors;
(iii) restricting a person from obtaining employment or from
participating in an activity that would bring the person into contact
with minors;
(iv) requiring a person to participate in a sexual offender treatment
program;
(v) prohibiting a person from using illicit drugs or alcohol;
(vi) authorizing a parole and probation agent to access the person’s
personal computer to check for material relating to sexual relations
with minors;
(vii) requiring a person to take regular polygraph examinations;
(viii) prohibiting a person from contacting specific individuals or
categories of individuals; and
(ix) any other conditions deemed appropriate by the sentencing court
or juvenile court.
(4) The sentencing court or juvenile court may adjust the special conditions
of lifetime sexual offender supervision, in consultation with the person's
sexual offender management team.
11
its authority under CP § 6-221. Thus, Mr. Bustillo maintains, the Court of Special Appeals
correctly vacated the five-year probation period, resulting in a “flat, term-of-years
sentence[].”
Analysis
A
Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any time.”
The phrase “at any time” means that the preservation requirements do not apply to
challenges to illegal sentences; that is, the court’s authority to correct an illegal sentence
exists even if the defendant failed to object in the trial court at the sentencing hearing or
raise the issue in a direct appeal. Bailey v. State, 464 Md. 685, 696 (2019). Indeed, the
only temporal limitation on “at any time” is that the correction must occur before the
sentence is fully served. Barnes v. State, 423 Md. 75, 86 (2011).6
Lest Rule 4-345(a) swallow up the preservation requirement, the scope of the court’s
authority under this Rule is “narrow.” Bailey v. State, 464 Md. 685, 697 (2019) (citation
omitted). The Rule is designed to correct “inherently illegal” sentences, not sentences
resulting from “procedural error[s].” Id. at 696 (citing Colvin v. State, 450 Md. 718, 728
(2016)). Thus, “only claims sounding in substantive law, not procedural law, may be raised
through a [Maryland] Rule 4-345(a) motion.” Id. (quoting Colvin, 450 Md. at 728). “[T]he
6
A defendant may invoke Rule 4-345(a) in a motion to correct sentence in the trial
court, on direct appeal, or “collaterally and belatedly[.]” Chaney v. State, 397 Md. 460,
466 (2007). The denial of a motion in the trial court is appealable. Id.12
illegality must inhere in the sentence itself, rather than stem from trial court error during
the sentencing proceeding.” Matthews v. State, 424 Md. 503, 512 (2012).
Accordingly, “a trial court error during the sentencing proceeding is not ordinarily
cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful.”
Montgomery v. State, 405 Md. 67, 74-75 (2008) (citation omitted). Additionally, whether
a sentence is illegal for purposes of Rule 4-345(a) is a question of law that we review
without deference to either the trial or intermediate appellate courts. Bailey, 464 Md. at
696.
As this Court has stated:
We have consistently defined this category of “illegal sentence” as limited to
those situations in which the illegality [of the sentence] 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.
Chaney, 397 Md. at 466 (emphasis added).
B
Mr. Bustillo does not dispute that the inquiry under Rule 4-345(a) is whether the
court had the inherent authority to impose the sentence. And he does not contend that a
25-year sentence with 5 years suspended, coupled with a 5-year probation, was not within
the court’s authority. Rather, he contends that the court lacked authority “to place someone
on probation without actually informing them that they are being placed on probation or
without indicating the duration on the record.”
13
When a sentencing court sentences a defendant “for a crime that carries a prison
sentence[,]” the court has the discretion to choose among four options.7 Cathcart, 397 Md.
at 326. The option relevant here derives from CP § 6-222(a), which provides the authority
for a sentencing court to impose what is known as a “split sentence.”8
7
There are four options available to a court sentencing a defendant for a crime that
carries a prison sentence:
(1) the court may impose up to the maximum allowable sentence, and if the court does
not indicate anything to the contrary, the defendant serves the entire sentence,
subject to any earlier release only through parole, a pardon, or credit against the
sentence;
(2) the court may suspend the imposition or execution of a sentence and place the
defendant on probation;
(3) the court may impose a split sentence, where the defendant is sentenced to the full
sentence the court intends to impose, and the court orders that (a) the defendant be
incarcerated for only a portion of the sentence, (b) the remainder of the sentence is
suspended, and (c) the defendant is placed on probation for a specific term; and
(4) the court may impose a period of imprisonment as a condition of probation.
Cathcart v. State, 397 Md. 320, 326-27 (2007).
8
Section 6-222(a) provides:
A circuit court or the District Court may:
(1) impose a sentence for a specified time and provide that a lesser
time be served in confinement;
(2) suspend the remainder of the sentence; and
(3) (i) order probation for a time longer than the sentence but, subject
to subsections (b) and (c) of this section, not longer than:
1. 5 years if the probation is ordered by a circuit court; or
2. 3 years if the probation is ordered by the District Court; or
(ii) if a defendant convicted of sexual abuse of a minor under § 3-
602 of the Criminal Law Article, a crime involving a minor
under § 3-303, § 3-304, or § 3-307 of the Criminal Law Article,
or a crime involving a minor under § 3-305 or § 3-306 of the
Criminal Law Article as the sections existed before October 1,
2017, consents in writing, order probation for a time longer than
14
As explained in Cathcart, the suspension of part of the sentence goes hand-in-hand
with probation:
Absent conditioning the suspension on a period of probation, the sentence
would no longer be a split sentence, for without such a provision, there would
be no ability for the court ever to direct execution of the suspended part of
the sentence. No matter what the defendant may thereafter do, he or she
could never be incarcerated, under that sentence, for a longer period of time
than provided for by the unsuspended part.
397 Md. at 329.
While CP § 6-222 confers the authority of the circuit court to place a defendant on
probation as part of a split sentence, Rule 4-346(a) prescribes the process for doing so:
When placing a defendant on probation, the court shall advise the defendant
of the conditions and duration of probation and the possible consequences of
a violation of any of the conditions. The court also shall file and furnish to
the defendant a written order stating the conditions and duration of probation.
The use of the mandatory word “shall” in Rule 4-346(a) means that the sentencing court is
required to advise the defendant of the conditions and duration of probation; it is not
optional. Nevertheless, although we do not take lightly noncompliance of mandatory
provisions of any rule, let alone one of such importance as Rule 4-346(a), we respectfully
disagree with Mr. Bustillo that such failure rendered his sentence illegal.
Maryland Rule 1-201(a) explains how to determine the consequences of
noncompliance with a mandatory rule, as follows:
These rules shall be construed to secure simplicity in procedure, fairness in
administration, and elimination of unjustifiable expense and delay. When a
the sentence that was imposed on the defendant, but not longer
than:
1. 10 years if the probation is ordered by a circuit court; or
2. 6 years if the probation is ordered by the District Court.
15
rule, by the word “shall” or otherwise, mandates or prohibits conduct, the
consequences of noncompliance are those prescribed by these rules or by
statute. If no consequences are prescribed, the court may compel compliance
with the rule or may determine the consequences of the noncompliance in
light of the totality of the circumstances and the purpose of the rule.
We have not been directed to any rule or statute that prescribes the consequences
for noncompliance with Rule 4-346(a), nor have we found one through our own research.
Thus, we must turn to “the totality of the circumstances and the purpose of the rule” to
determine whether noncompliance rendered his sentence illegal.
In determining the purpose of the Rule, we first observe that, in addition to the
court’s duty to verbally advise the defendant of the conditions and duration of probation,
Rule 4-346(a) also requires the court to provide the defendant with a written order
providing the same. This belt and suspenders approach is consistent with the sentiments
we expressed in Robinson v. Lee, and upon which Mr. Bustillo relies for his “fairness”
argument:
Fundamental fairness dictates that the defendant understand clearly what
debt he must pay to society for his transgressions. If there is doubt as to the
penalty, then the law directs that his punishment must be construed to favor
a milder penalty over a harsher one. Wright v. State, 24 Md. App. 309, 330
A.2d 482 (1975); see also Gatewood v. State, 244 Md. 609, 224 A.2d 677(1966); Grimm v. State, 212 Md. 243, 129 A.2d 128 (1957).
We hasten to add that the trial judges of this state can avoid this dilemma.
All they need do is spell out with reasonable specificity the punishment to be
imposed commensurate with the defendant’s background, conduct, and
personality traits. In our view, this is the beginning of the correctional
process. If the punishment is clear, the defendant can begin to conform.
317 Md. 371, 379-80 (1989). Thus, “[t]he obvious purpose of Rule 4-346(a) is to ensure
that a defendant need not engage in guesswork” about the duration and conditions of
16
probation as well as the consequences of violating such conditions. My Nguyen v. State,
189 Md. App. 501, 508 (2009).
Here, however, considering the circumstances, we conclude that Mr. Bustillo did
not have to resort to guesswork. First, both the State and defense counsel requested a
period of probation—the State requested five years, and defense counsel requested three to
four years. Although the court was not required to accede to either request, probation
clearly had to have been on Mr. Bustillo’s radar as the court began to announce his
sentence.
Second, the court’s statements about the gravity of the crimes Mr. Bustillo
committed indicated a likelihood that the maximum prison sentence was about to be
imposed.9 The court stated that “short of a homicide,” it could not find conduct “more
reprehensible and disgusting than deriving some type of sexual gratification from a child.
But then to exacerbate the situation to have that child be your own biological offspring, it’s
incredibly disturbing.”
Third, as noted above, when a court imposes a prison term and suspends the
execution of a part of it, the court must also impose a period of probation attached to the
suspended portion of the sentence. Cathcart, 397 Md. at 327. Thus, in light of the court’s
expressed sentiments on the gravity of the crime, when the court announced a 25-year
sentence with all but 20 years suspended, defense counsel would not have reasonably
9
Mr. Bustillo was charged with the crime of sexual abuse of a minor under Section
3-602(b)(1) of the Criminal Law Article (“CR”) of the Maryland Code (2002, 2012 Repl.
Vol.), which carries a maximum sentence of 25 years. CR § 3-602(c).
17
understood that the court intended to impose a flat sentence of 20 years without any
probation. See id. at 330 (a life sentence with all but 10 years suspended, in the absence of
a probation, results in an effective 10-year sentence). Put another way, defense counsel
would have understood from the court’s announcement of a split sentence that the court
was also placing Mr. Bustillo on probation.
Fourth, after imposing a split sentence that, by definition, implied a period of
probation, the court expressly referenced the “conditions of probation” and, referring to the
probation order, told the defendant at the conclusion of the sentencing that “[y]ou do have
some paperwork that you need to sign, so just have a seat.” Mr. Bustillo’s counsel would
have understood that the probation order was forthcoming.
Fifth, although the transcript is silent on the duration of probation, the probation
order that Mr. Bustillo and his counsel signed before he left the courtroom specifies a five-
year term and the conditions of probation.10 This is no small point. The probation order is
10
Mr. Bustillo’s signature appears below the following statement of consent:
I have read, or have had read to me, the above conditions of probation. I
understand these conditions and agree to follow them. I understand that if
do not follow these conditions, I could be returned to court charged with
violation of probation.
If I fail to abide by the above conditions, the court could enter judgment
against me and proceed with disposition as if I had not been placed under
probation. I have been notified and understand that by consenting to and
receiving a stay of judgment under Criminal Procedure Article, 6-220, I
waive my right to appeal from judgment of guilty by the court in this case.
I understand that my failure to comply with Condition 10 may result in my
case being referred to the State’s Central Collection Unit, resulting in an
additional collection fee as permitted by law.
18
not an administrative document prepared by a clerk, such as a docket entry or commitment
record; it is a court order. As such, a probation order, bearing the signatures of Mr. Bustillo
and his counsel, holds significant weight in our consideration of the relevant circumstances.
In sum, this is not a situation where the transcript conflicts, or is inherently
incompatible, with the probation order or commitment record; the probation order merely
filled the informational gap from the court’s announcement of the sentence. See, e.g., State
v. Brown, 464 Md. 237, 268 (2019) (resolving conflict between the court’s statement and
the commitment record, probation record, and docket entries by finding that the transcript
controlled and the court did not make an “evident mistake” by informally correcting this
error by having the documents reflect the correct sentence); Gatewood v. State, 158 Md.
App. 458, 482 (2004) (resolving conflict between trial court’s failure to specify if sentence
was consecutive and docket and commitment entries, which stated the sentence was
consecutive, by finding that the court’s failure to state that the sentence was consecutive
made it concurrent); Jackson v. State, 68 Md. App. 679, 690-91 (1986) (resolving conflict
whether restitution was to be paid only as a condition of probation or as part of the sentence
based on what the probation order stated after determining that the docket entry was
ambiguous, the probation order was clear, and the trial transcript was unavailable); Shade
v. State, 18 Md. App. 407, 413 (1973) (finding that defendant had not been sentenced to
probation, even though the trial court probably intended to sentence the defendant to the
I understand that Parole and Probation may impose Graduated Sanctions
upon me for any technical violation of the above conditions of probation, as
authorized pursuant to Correctional Services Article, §§ 6-111 and 6-121.
19
probation period stated in the probation order, because the transcript was clear that the only
condition for the suspension of the defendant’s sentence was to pay the fines and costs).
Rather, here, the court expressly and implicitly informed Mr. Bustillo that his
sentence included probation. The probation order signed by Mr. Bustillo and his counsel
provided any missing information concerning the conditions and duration of the probation.
All told, no speculation was required on Mr. Bustillo’s part—he knew the precise details
of his sentence before he left the courtroom. See Costello v. State, 240 Md. 164, 168 (1965)
(“Sentencing is a definite and objective matter, and it is for that reason that the only
sentences known to the law are those which appear in the public records of the courts.”).
Thus, pursuant to Rule 1-201(a), considering the totality of the circumstances, we hold that
the purpose of Rule 4-346(a) was satisfied here. Accordingly, although the court violated
a mandatory requirement of Rule 4-346(a), such violation did not, in and of itself, render
the resulting sentence illegal.
C
We are also persuaded by our review of the case law applying Rule 4-345(a) that
the error committed by the circuit court in this case was a procedural error that does not
give rise to a cognizable claim of illegality. To shed light on why the error here falls on
the procedural side of the divide, we will briefly review a subset of such cases.
1
In Bailey v. State, 464 Md. 685, 690 (2019), the defendant was tried and convicted
by a jury of driving while impaired by alcohol and related offenses. As a subsequent
offender, the defendant was subject to enhanced penalties under Section 21-902(b)(1) of
20
the Transportation Article of the Maryland Code (1977, 2020 Repl. Vol.). To seek an
enhanced penalty, the State was required under Rule 4-245(b) to give notice to the
defendant at least 15 days before trial.11 The State’s notice, however, was five days too
late. The defendant made no objection to the late notice, and the court imposed an
enhanced sentence. Bailey, 464 Md. at 690-91.
The issue in Bailey was whether the late notice “resulted in an illegal sentence
requiring correction, or instead, whether the late notice was a procedural deficiency subject
to harmless error review.” Id. at 691. In holding that the late notice did not render the
sentence illegal, we stated that “[t]he State’s imperfect compliance created a procedural
deficiency in the sentence but not a sentence in which the circuit court did not have
statutory power to impose.” Id. at 697. We concluded that review under Rule 4-345(a)
was not “appropriate in this matter.” Id.
Although the defendant in Bailey failed to object to the State’s tardy notice, we
nevertheless exercised our discretion under Rule 8-131(a) to review the issue. We
surveyed prior cases addressing Rule 4-245(b) and noted that the purpose of the Rule was
“to inform a defendant fully of the nature of the State’s case against him in order that he
11
Rule 4-245(b) provides:
When the law permits but does not mandate additional penalties because of
a specified previous conviction, the court shall not sentence the defendant as
a subsequent offender unless the State’s Attorney serves notice of the alleged
prior conviction on the defendant or counsel before the acceptance of a plea
of guilty or nolo contendere or at least 15 days before trial in circuit court or
five days before trial in District Court, whichever is earlier. The notice
required under this section shall be substantially in the form approved by the
State Court Administrator and posted on the Judiciary website.
21
may intelligently conduct his defense.” Id. at 699 (quoting King v. State, 300 Md. 218, 231
(1984)). We contrasted our decision in King v. State, where we found that the notice, while
defective, served the function of notifying the defendant of the potential enhancement, with
Carter v. State, 319 Md. 618 (1990), where no such notice was given. Bailey, 464 Md.at
700-01. We noted that the “failure to provide notice impacts substantive rights and
undermines completely the purpose of the notice requirement[,]” but “when there is a
procedural defect with the notice, such as untimely notice or other defects, the enhancement
is subject to harmless error analysis.” Id. at 701. We concluded that the defendant “would
[not] have proceeded any differently” had the State sent the notice five days earlier, as
required by the Rule, and therefore found that the State’s noncompliance amounted to
harmless error. Id. at 702.
Similarly, here, the error made by the circuit court was procedural, and as discussed
above, the purpose of the Rule was satisfied.
2
In Colvin v. State, the defendant was found guilty of various counts related to the
murder of one person and attempted murder of another person. 450 Md. 718, 723 (2016).
The verdict was announced in open court by juror number 3. The clerk read each charge
and asked that juror if the defendant was found guilty or not guilty. After juror number 3
announced the verdict for each of the six charges, defense counsel asked the clerk to poll
the jury. The clerk asked each juror—except juror number 3—if their verdict was the same
as the one just announced in court. Each juror responded yes, but the clerk forgot to ask
juror number 3—the same juror who announced the verdicts. The clerk then hearkened the
22
verdict by reciting the verdict for each charge, concluding with “and so say you all?” Every
juror, including juror number 3, responded affirmatively. The court dismissed the jury. At
no time did anyone object to the clerk’s failure to specifically ask juror number 3 during
the polling of the jury. Nor did defense counsel raise the issue after the jury was dismissed,
in a post-trial motion, at sentencing, or on direct appeal. Id. at 722-23.
After the circuit court denied his petition for post-conviction relief, the defendant
filed a motion under Rule 4-345(a) to correct an illegal sentence, which the court denied.
Id. at 723. On appeal, he argued, as he did in the circuit court, that the clerk’s failure to
include juror number 3 when polling the jury deprived the verdict of unanimity. He further
argued that the lack of unanimity rendered the verdict unconstitutional and the sentence
illegal. See id. at 723, 728.
This Court rejected the defendant’s arguments. Noting that hearkening the jury to
the verdict alone sufficed to ensure the unanimity of the verdict, we observed that Mr.
Colvin did not contend that there was no conviction warranting a sentence or that the
sentence imposed was not permitted for the crime he committed. Id. at 727. We concluded
that “[t]he most that can be said of [Mr.] Colvin’s alleged claim is that the record does not
reflect, at least as [Mr.] Colvin would argue, a properly conducted polling process.” Id. at
728. Thus, we held that Mr. Colvin did not advance a claim recognized under Rule 4-
345(a) because “[a] sentence does not become an ‘illegal sentence’ because of some
arguable flaw in the sentencing procedure.” Id. at 725 (quoting Tshiwala v. State, 424 Md.
612, 619 (2012)). In doing so, “we reaffirm[ed] the rule that only claims sounding in
23
substantive law, not procedural law, may be raised through a Rule 4-345(a) motion.” Id.
at 728.
3
We turn now to Montgomery v. State, 405 Md. 67 (2008). There, the trial court
sentenced the defendant to ten years’ imprisonment, with no probation. Id. at 68. The
court then deferred the reporting date for the start of defendant’s sentence for three years,
stating that if the defendant exhibited “good behavior” during that three-year period, the
court would “reconsider [the sentence] and vacate it and not make [him] serve another
day.” Id. at 68-69. The court also “reserve[d] the right to advance the date for execution”
if the defendant ran “afoul of the law.” Id. at 82-83. We granted certiorari to consider
whether the court’s action was authorized by Rule 4-348(a), which sets forth the
circumstances under which the circuit court may stay execution of a sentence, and, if not,
whether the absence of such authority rendered the sentence illegal. Id. at 73-74.
We found that although Rule 4-348(a) permitted the stay of execution of a sentence,
rewarding good behavior was not one of the permissible reasons for doing so. Id. at 74.
We noted that the trial court could have ordered that the defendant’s conduct be monitored
under statutes related to suspension or probation, but did not do so. Id. at 81. We concluded
that because the trial court was not authorized to defer the defendant’s report date by
several years, the defendant’s sentence was illegal. Id. In other words, the problem with
the sentence was not that the court did not follow the process for imposing such a sentence;
the problem was that the court did not have the legal authority to impose such a sentence
in the first place.
24
4
We next consider Jones v. State, 384 Md. 669 (2005). There, the verdict sheet
indicated that the jury found the defendant guilty of all four counts with which he was
charged. Id. at 675. However, the court clerk questioned the foreperson about only three
of the four counts and polled the jury only as to those same three counts. Id. at 675-77.
The defendant was nevertheless sentenced on all four counts, including the count for which
the verdict was not announced and for which the jury was not polled. Id. at 677. He
appealed, and the Court of Special Appeals affirmed, noting that “where it is unmistakable
that the jury found the defendant guilty, ‘substance will prevail over form even if the guilty
verdict is not announced and even if it is neglected again when the jury is polled.’” Id.We granted certiorari and reversed. We concluded that “the trial court could not
legally impose a sentence for a verdict that was not orally conveyed in open court and to
which the jury was neither polled nor hearkened.” Id. at 678. As a result, the verdict on
the one count that was not announced in court, not polled, and not hearkened, could not
stand, and therefore, the sentence for that count was illegal. Id. at 686.
5
Our decision in Hoile v. State, 404 Md. 591 (2008), is instructive. Although the
factual and procedural details in that case are convoluted, for present purposes, it suffices
to note the main points. There, the defendant secured a more lenient sentence at a
resentencing hearing, but the victim was not notified of the hearing as was required under
Rule 4-342(d) and CP § 11-104(e). After learning of the new sentence, the victim moved
to vacate the more lenient sentence, and the court granted the motion and reinstated the
25
more severe sentence. Id. at 597-601.
Victims of crimes have the right “to attend any proceeding in which the right to
appear has been granted to a defendant.” CP § 11-102(a). The procedures for providing
such notice are set forth in CP § 11-104(e). These procedures are mandatory; Rule 4-
342(d)(1) states that the “court shall determine whether the requirements of [CP § 11-
104(e)] have been satisfied.” (Emphasis added.) The issue before us was whether the
failure to provide the victim with notice of the resentencing rendered the resulting sentence
illegal. Although the victim had complied with her obligations to trigger her entitlement
to such notice under CP § 11-104(e), Hoile, 404 Md. at 599 n.7, we held that the failure to
notify her did not render the sentence illegal, id. at 623.
We arrived at that conclusion by first observing that in prior cases, we “discussed
approvingly the Supreme Court’s decision in Hill v. United States, 368 U.S. 424, 82 S. Ct.
468, 7 L.Ed.2d 417 (1962), in our analysis of what constitutes an illegal sentence.” Hoile,
404 Md. at 622. It was our reliance on Hill that makes Hoile particularly instructive to our
analysis here.
In Hill, the issue was whether the sentencing court’s failure to give the defendant
the opportunity to allocute before sentencing, in violation of the Federal Rules, rendered
the sentence illegal. Hoile, 404 Md. at 622. The Supreme Court rejected the defendant’s
argument that the sentence was illegal, and just as we saw fit in Hoile to quote Hill at
length, we do the same here:
But, as the Rule’s language and history make clear, the narrow function of
Rule 35 is to permit correction at any time of an illegal sentence, not to re-
examine errors occurring at the trial or other proceedings prior to the
26
imposition of sentence. The sentence in this case was not illegal. The
punishment meted out was not in excess of that prescribed by the relevant
statutes, multiple terms were not imposed for the same offense, nor were the
terms of the sentence itself legally or constitutionally invalid in any other
respect.
Id. at 622-23 (quoting Hill, 368 U.S. at 424).
In Hoile, the significance we attached to the opinion in Hill stemmed from the
premise that a defendant has a “greater cognizable interest in the sentencing proceeding
than does the victim of the crime.” Id. at 623. Thus, we concluded:
If it is not an illegal sentence where the criminal defendant is sentenced and
not afforded the required opportunity to speak on his own behalf, it is less
able to be maintained that an illegal sentence results where the victim is
denied the opportunity to speak.
Id.
The same logic applies here. Maryland Rule 4-342(e), the Rule implicated in Hoile,
speaks in mandatory terms, as follows: “Before imposing sentence, the court shall afford
the defendant the opportunity, personally and through counsel, to make a statement and to
present information in mitigation of punishment.” (Emphasis added). Similarly, the Rule
implicated here speaks in mandatory terms: “[w]hen placing a defendant on probation, the
court shall advise the defendant of the conditions and duration. . . .” Md. Rule 4-346(a).
(Emphasis added).
From the perspective of an illegal sentence analysis, we do not perceive a
meaningful difference between the court’s mandatory obligations under these two Rules.
If anything, because the right to allocute is critical to ensure a fair sentence, one might
plausibly argue that a court’s failure to comply with Rule 4-342(e) is more prejudicial than
27
its failure to comply with Rule 4-346(a), particularly where, as here, the missing
information was promptly disclosed in the probation order. So, if a violation of the
mandatory procedural requirement in Rule 4-342(e) does not give rise to a cognizable claim
of illegality under Rule 4-345(a), see State v. Wilkins, 393 Md. 269, 275 (2006), then it
stands to reason that the same applies to a violation of Rule 4-346(a).
***
Ultimately, the issue comes down to whether the sentencing judge had the authority
to impose the sentence that he did. In Bailey, because the State had given notice of its
intent to seek an enhanced sentence, albeit five days late, we determined that the court had
the authority to impose the enhanced sentence, so the sentence was not illegal. In Colvin,
we similarly determined that the court had the authority to impose the sentence because the
verdict on which it was imposed was not a nullity as claimed by the defendant. On the
other hand, in Montgomery, we determined that the court did not have legal authority to
defer the sentence for three years and therefore concluded that the sentence was illegal.
Similarly, in Jones, we determined that the court did not have the authority to sentence the
defendant on the one count that was not announced in open court, so we determined that
the sentence there was illegal.
28
Here, when the sentencing judge took the bench to commence the sentencing
hearing, he had the legal authority to impose a 25-year sentence, suspend all but 20 years,
and place Mr. Bustillo on probation for five years. That he did not comply with the
procedure for doing so constitutes clear error, but not one that rendered the resulting
sentence illegal.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED TO
THAT COURT WITH INSTRUCTIONS TO AFFIRM
THE JUDGMENT OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY. COSTS TO BE
PAID BY RESPONDENT.
29
E. 048