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As a result of an agreement reached during a post-conviction proceeding in the circuit court, the post-conviction court granted defendant a "re-sentencing" hearing before the judge who had imposed the sentence from which defendant was seeking post-conviction relief. At the request of the post-conviction court, defendant's counsel submitted a proposed order that the post-conviction court modified. At the re-sentencing hearing, the sentencing judge rejected defendant's request to impose the agreed upon sentence. Defendant filed a petition for writ of certiorari. The court held that if a plea agreement reached during a post-conviction proceeding resulted in relief in the form of defendant's right to a belated motion for modification of sentence hearing before the judge who imposed the sentences that defendant was serving, the sentencing judge was not "bound" by that agreement. The court also held that when a post-conviction court granted defendant only the right to file a belated motion for modification of sentence, unless the judge who imposed the sentence was unavailable to decide the motion, the motion for modification must be presented to the judge who imposed the sentence. The court further held that if a sentencing judge breached a plea agreement by imposing a sentence that exceeded the sentence for which the defendant bargained and upon which defendant relied in pleading guilty, that sentence was "illegal," and could be corrected "at any time" pursuant to Md. Rule 4-345(a). Accordingly the court held that the sentence at defendant's re-sentencing hearing was not "illegal" and affirmed defendant's sentence.Receive FREE Daily Opinion Summaries by Email
Tatem v. State, No. 33, September Term, 2010
CRIMINAL PROCEDURE; POST-CONVICTION PROCEEDINGS; POSTCONVICTION RELIEF IN THE FORM OF A BELATED MOTION FOR
MODIFICATION OF SENTENCE HEARING; MOTION TO CORRECT ILLEGAL
SENTENCE: If a plea agreement reached during a post-conviction proceeding results in
relief in the form of the defendant’s right to a belated motion for modification of sentence
hearing before the judge who imposed the sentences that the defendant is serving, the
sentencing judge is not “bound” by that agreement. When a post-conviction court grants the
defendant only the right to file a belated motion for modification of sentence, unless the
judge who imposed that sentence is unavailable to decide the motion, the motion for
modification must be presented to the judge who imposed the sentence. If a sentencing judge
breaches a plea agreement by imposing a sentence that exceeded the sentence for which the
defendant bargained and upon which the defendant relied in pleading guilty, that sentence
is “illegal,” and may be corrected “at any time” pursuant to Md. Rule 4-345(a).
IN THE COURT OF APPEALS
September Term, 2010
PAUL ANDREW TATEM
STATE OF MARYLAND
Opinion by Murphy, J.
Filed: May 20, 2011
As a result of an agreement reached during a post-conviction proceeding in the
Circuit Court for Wicomico County, the Post-Conviction Court granted Paul Andrew
Tatem, Petitioner, a “re-sentencing” hearing before the judge who had imposed the
sentence from which Petitioner was seeking post-conviction relief. At the request of the
Post-Conviction Court, Petitioner’s Post-Conviction Counsel submitted a proposed
ORDER that the Post-Conviction Court modified by adding the italicized provision set
forth below. The modified ORDER, docketed on September 6, 2007, provides:
Upon consideration of the foregoing Motion to Set
Hearing on Modification of sentence filed herein having been
read and considered it is this 5th day of August Sept, 2007,
ORDERED by the Circuit Court for Wicomico
County, Maryland that this matter be scheduled on the docket
for re-sentencing, but there is no binding plea agreement
before the Court at this time.
At the re-sentencing hearing, Petitioner and the State requested that the sentencing
judge impose the agreed upon sentence, but the sentencing judge rejected that request.
After the judgments entered by the sentencing judge were affirmed by the Court of
Special Appeals in an unreported opinion,1 Petitioner filed a petition for writ of certiorari,
in which he presented the following questions:
1) If a judge presiding at a post-conviction hearing
approves a plea agreement reached by the parties with respect to
the sentence the petitioner is to receive at a resentencing, does
the approval bind a different judge who presides at the
In addition to Petitioner’s “direct” appeal from the judgments announced at the resentencing hearing, Petitioner also appealed the sentencing judge’s denial of his pro se motion to
correct illegal sentence. Those appeals were consolidated by the Court of Special Appeals.
2) Did [the Post-Conviction Court] approve the plea
agreement reached by the parties during the post-conviction
hearing with respect to the sentence to be imposed at
resentencing, thereby binding [the judge] who presided over the
3) Is a sentence imposed in violation of a plea agreement
an illegal sentence?
4) Where a sentence is imposed in violation of a plea
agreement, must the defendant object at the time the sentence if
imposed in order to preserve for appellate review the issue of
whether the sentence is illegal?
We granted the petition. 414 Md. 330, 995 A.2d 296 (2010). For the reasons that
follow, we shall affirm the judgments of the Court of Special Appeals.
On October 28, 2002, in the Circuit Court for Wicomico County, a jury convicted
Petitioner of armed robbery and related offenses. On September 11, 2006, Petitioner filed
a pro se petition for post-conviction relief, which was supplemented by his PostConviction Counsel on January 25, 2007. The following transpired during a May 29,
2007 hearing on that petition:
[The Prosecutor]: There are allegations of ineffective
assistance on several points. Mr. [Tatem] received a total
sentence of 25 years in this case. I have discussed with
defense counsel, and the defense counsel is aware that the
State’s original plea offer to the Defendant prior to trial was
to recommend an active period of incarceration, if he pled,
capped at 12 years. He received a sentence of 25 years after
trial, after two trials actually.
The original guidelines I believe were a total of 6 to 12 years,
and that was the basis of the State’s offer at the time prior to
Given the issues of uncertainty, without having [Petitioner’s
original trial counsel] available at this point to address issues
raised by the Defendant, the State is willing to concede on, I
guess, a limited finding of ineffective assistance of counsel.
The Defendant would withdraw all other issues, post
conviction issues with prejudice. The State would agree to a
modification hearing or a resentencing hearing being
scheduled based on the relief granted by the Court, and at
that hearing the State would recommend or the State
would consent to the Court resentencing the Defendant to
a sentence of 25 years, suspend all but 12 years.
The Court: . . . . So what would happen then, I don’t know
what the Defendant’s position is, the State’s willing to grant a
motion for modification and if the Defendant concedes or
accedes impose a sentence of 25 years suspend all but 12.
[The Prosecutor]: That’s our agreement that he would –
The Court: And that’s what you wish to do, [Petitioner’s PostConviction Counsel]?
[Petitioner’s Post-Conviction Counsel]: That’s correct. I’ve
spoken to Mr. Tatem and basically he would just be availing
himself of the offer the State made before the second trial,
which he was unaware of. And in return we would withdraw
with prejudice all the remaining issues in the petition and
The Court: And you are Paul Andrew Tatem?
[The Defendant]: Yes, Sir.
The Court: You understand everything that’s been said so far?
[The Defendant]: Yes, Sir.
The Court: And you would be willing to withdraw all grounds
that you have alleged and your attorney has alleged on post
conviction in exchange for the Court’s granting you a new
hearing on sentencing?
[The Defendant]: Yes, Sir.
The Court: And correct me if I’m wrong again, does that
mean he will receive a sentence of 25 years suspend all but 12
[Petitioner’s Post-Conviction Counsel]: 12 would be a cap. 25
suspend all but 12 as a cap would be what the State would
The Court: And that is to take place at a later date.
[Petitioner’s Post-Conviction Counsel]: I believe that it
would be set in either as a resentencing or a motion for
modification before [the judge who imposed the sentences at
[The Prosecutor]: I would think it would be before the
original trial judge, would be our preference.
The Court: Both of you better have good notes to remind [the
sentencing judge] of this. But I think one of you, it should be
you, I guess, [Petitioner’s Post-Conviction Counsel], submit
an order to the court for me to sign.
The first paragraph of this opinion includes the proposed Order submitted by
Petitioner’s Post-Conviction Counsel that was modified and filed by the Post-Conviction
The sentencing judge held two “re-sentencing” hearings. The following transpired
at Petitioner’s first hearing:
[The Prosecutor]: Well, as we discussed the case for, or as I
considered the case and we discussed it leading up to the post
conviction hearing, frankly my documentation and memory at
the point of that was somewhat hazy as to whether I had
offered it as a binding cap, it is certainly possible that I offered
it as a binding cap to [Petitioner’s trial counsel]. [Petitioner’s
trial counsel] is no longer available to consult with to confirm
or deny that. And giving the benefit of the doubt to the
Defendant’s position, I conceded at the point of the postconviction that it certainly was possible that I at some point
agreed to offer it as a binding plea, which was the 12 years
being, was the upper limit of the guidelines that was applicable
at the time, so that was how I had calculated the plea offer.
And I believe that I would have been satisfied to present it as a
binding plea, so I believe that, for purposes of the postconviction and today’s hearing, I will concede that at some
point it was a binding plea offer.
The Defendant contended that he had not been adequately
communicated that offer, that he might have accepted that
offer. Be that as it may, the State conceded to allow him to
be given post-conviction, consented for him to be given
post-conviction relief to the extent of having the
resentencing reconsideration and a resentencing hearing,
and that’s why we are here today.
The Court: All right. Well, the posture of the case then, if I’m
correct, and please correct me if I’m wrong, would be that
apparently there is an agreement between the State and
Defense as part of post-conviction relief to present a binding
plea to this member of the bench, who was the sentencing
judge, and she would be free to hear all the evidence and
testimony at a sentencing hearing, anything presented by the
State as to why I should agree to be bound, anything presented
by the defense as to why I should agree to be bound, and I am
able to reject or accept the binding plea. If I don’t accept the
binding plea, then he gets to withdraw his plea and we go to
trial again, for the third time. If I accept the binding plea, then
I must impose the capped amount of 25 years or less.
[The Prosecutor]: We were discussing that prior to, I’m not
sure that either of us would agree that his relief at this point
would be an immediate granting of a new trial. The relief
granted at the post-conviction hearing was to be given a
belated sentencing reconsideration. I’m not sure that
translates, if the Court does not, you know, agree to the
recommended sentence I’m not sure that I would agree at this
point that – that would translate into a new trial, that’s
something that would have to be determined later.
The Court: Well I suppose that for the purposes of advising the
Defendant of his options we should have an understanding, the
Court should have an understanding of the repercussions
should I reject the agreement, because if I reject the agreement
and the effect is that his sentence remains the same, that
obviously would influence the State and defense. If on the
other hand, and I think whether there is an agreement or not I
would have to make a ruling on that so that if the State can’t
retry the case and that would be the effect of my rejecting the
plea, then there might be some additional considerations that I
If, on the other hand, my sentence would remain the same,
that would obviously affect the determination ultimately of
whether or not I should agree to be bound.
[The Prosecutor]: I think at least that a rejection by the
Court would allow him to probably have a new postconviction hearing, I would agree to that but...
The Court: All right. Well, I understand that Mr. Tatem wants
to go forward at this time. And I’m happy to allow him to go
forward at this time, but I think that we need to determine, at
least I as the sentencing judge, need to make my own initial
determination of whatever information you would like to
present as to the effect of a rejection of the binding plea.
This case went to trial, and there was a conviction. And
I sentenced him as I thought appropriate at the time. Now, I’m
being asked to modify my sentence, and I would obviously
give very strong consideration to anything the State and
defense presented to me as to why I should do that. But you’re
asking me to change the outcome. And one consideration that
the Court is going to take into account is what the effect of that
would be upon the ultimate sentence that the Defendant is
So, you may be ready to go forward. I can hear
anything you want to present, Counsel, today, I’d be happy
to do that, but I’m not necessarily in a position to rule
without having done some research as to the effect of a
denial under these circumstances.
And I realize Collateral Review handled the postconviction portion of it, then gave the trial attorneys the
right to file a motion for modification of sentence, but do
you all understand what I’m saying here?
[Petitioner’s Modification Hearing Counsel]: I understand.
[The Prosecutor]: I understand.
The Court: And we can go forward and then I will make a
legal decision, and I’ll file a written opinion as to why I accept
or reject the binding plea. I don’t think I have to do that on the
record today. But I do think that - - that I will do that before I
make any further rulings. I will want to know, and I would
very much be interested to hear the State and defense’s
position regarding that.
[Petitioner’s Modification Hearing Counsel]: Your Honor, may
we pass this momentarily so I can discuss it with my client?
The Court: Certainly, Do you understand this Mr. Tatem?
[The Defendant]: Yes, I understand
The following transpired at Petitioner’s second hearing:
[Prosecutor]:When we were last here, the Court was
struggling with the question of, if we were presenting this as a
binding agreement on resentencing, what the Court’s recourse
would be if the Court could not accept the binding nature. It
is my understanding from talking to [Petitioner’s
Modification Hearing Counsel] this morning that Mr.
Tatem is willing to proceed with the State making the
recommendation but without it being in the nature of a
The Court: All right. So we are just going to start from
[Prosecutor]: Yes, we’re here for sentencing.
The Court: I’m going to need to hear the statement of facts
and the whole nine yards from beginning to end, although he
has been found guilty, the finding of guilt has not been
[Prosecutor]: That’s right.
The Court: So perhaps we can begin with, you’re going to
have to refresh my recollection. I remembered having
difficulty with the Court having been ordered to accept a
binding plea from another judge. That was problematic for
me, because that was relief that apparently was conceived
of in a post-conviction hearing in front of another judge.
[Prosecutor]: Right. And I’m not sure that that other judge
really was considering it to be a binding agreement that
would bind you, and I don’t think he did but–
[Petitioner’s Modification Hearing Counsel]: As a matter of
fact, I think he specifically on in [sic] his order said, wrote
that, that it is not.
The Court: Frankly, notwithstanding the State’s
recommendation, I’m not persuaded to change my sentence. I
did not treat him unfairly the first time. I am not persuaded
that if he had pled guilty I would have treated him differently.
I accept that this is basically the equivalent as if he came in
and admitted his guilt, because that’s what would have
happened if it had been a guilty plea before me. And I’m
taking into consideration the State’s recommendation.
I always do. I value the State’s recommendation. But as I said,
this is not a binding plea. I may have treated him harshly.
Counsel, did I indicate to either of you that I was going to
be willing to accept this sentence, in any way, at any
[Prosecutor]: I don’t believe so.
The Court: Did I ever say I’d be willing to go along with
this? I don’t think so, right?
[Petitioner’s Modification Hearing Counsel]: I don’t think
the Court tipped its hand one way or the other.
The Court: I routinely don’t. What I normally will say is,
okay, you know, I will reserve the right to hear everything
that’s presented to me in mitigation and either go forward or
not according to the recommendation of the State. But I still
believe that under count one, ten years was an appropriate
sentence for armed robbery. That under count five, ten years
consecutive for first degree assault of a separate person,
consecutive to count one, was an appropriate sentence. Under
count ten, five years mandatory minimum sentence
consecutive to counts one and five is appropriate for use of a
handgun in the commission of a felony.
So, that is my sentence. The remaining counts either merge or
have been vacated by operation of law.
The opinion of the Court of Special Appeals includes the following analysis:
Appellant argues that the agreement between the
parties was binding upon the resentencing judge, as it was
accepted by the post-conviction judge. What appellant
appears to misunderstand, however, is the exact nature of the
agreement made between the parties at the post-conviction
The parties did not agree to a specific sentence, per se,
as post-conviction relief. Instead, the State agreed “to a
modification hearing or a resentencing hearing being
scheduled based on the relief granted by the Court, and at that
hearing the State would recommend or the State would
consent to the Court resentencing the Defendant to a
sentence of 25 years, suspend all but 12 years.” (Emphasis
added). The agreement was thus simply the allowance of a
belated resentencing hearing, with the State consenting to
a cap of 12 years, in exchange for appellant waiving his other
post-conviction claims. The post-conviction judge did not,
nor could he, require the resentencing judge to accept the
The post-conviction judge questioned appellant on his
understanding of the agreement and asked, “And you would
be willing to withdraw all grounds that you have alleged and
your attorney has alleged on post conviction in exchange for
the Court’s granting you a new hearing on sentencing?”
(Emphasis added). Thereafter, although the post-conviction
judge said, “Correct me if I’m wrong again, does that mean he
will receive a sentence of 25 years suspend all but 12 years?,”
in our view, he was merely acknowledging his understanding
of what would occur if all went according to plan at the
resentencing hearing. He in no way bound or intended to bind
the resentencing judge to that ruling.
Indeed, in signing the order to set the matter in for
resentencing, the postconviction judge specifically added his
handwritten notation to the draft order submitted by the
defense, “but there is no binding plea agreement before the
Court at this time.” Although appellant could have
immediately applied for leave to appeal the postconviction
judge’s order, he did not do so. He was thus on notice that the
resentencing judge was under no obligation to accept the
agreement between the parties. Appellant conceded as much
at the resentencing hearing on January 11, 2008. At the start
of the hearing, after the resentencing judge had indicated her
reluctance to be bound by an agreement made before the
post-conviction judge, the prosecutor specifically stated, “It is
my understanding from talking to  [defense counsel] this
morning that Mr. Tatem is willing to proceed with the State
making the recommendation but without it being in the nature
of a binding agreement.” The defense did not demur to the
prosecutor’s statement, and it serves as another example of
appellant’s knowledge that the sentencing judge would not, in
fact, be bound by any agreement between the parties.
The mere fact that the parties came to an agreement did
not bind the sentencing judge to acceptance of that agreement.
The judge gave careful consideration to the agreement
contemplated by the parties, but based on appellant’s record
and the crimes he perpetrated, she believed her original
sentence to be just. The sentence as reimposed by the trial
judge was inherently legal, within her discretion, and not
impeded by any agreement between the parties to the
contrary. Appellant received exactly that for which
he bargained at the post-conviction hearing, a belated
Tatem v. State, Nos. 2698, September Term, 2007 & 2985, September Term, 2008
(consolidated) unreported opinion filed on January 14, 2010, pp 12-14.
Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence
at any time.” In Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010), this Court held that
when a court has breached a plea agreement by imposing a sentence that exceeded the
sentence for which the defendant bargained and upon which the defendant relied in
pleading guilty, that sentence is “illegal.” Id. at 586, 7 A.3d at 567. We therefore answer
“yes” to Petitioner’s third question, answer “no” to Petitioner’s fourth question, and hold
that Petitioner did not waive his “illegal sentence” argument by failing to make that
argument before the re-sentencing hearing concluded. We also hold, however, that there
is no merit in the argument that an illegal sentence was imposed at the re-sentencing
We hold that, when a post- conviction court grants the defendant the right to file a
belated motion for modification of sentence, unless the judge who imposed that sentence
is unavailable to decide the motion, the motion for modification must be presented to the
judge who imposed the sentence.2 Although the Post-Conviction Court certainly had the
authority to (1) vacate the sentences imposed by the sentencing judge, (2) preside at a
“new” sentencing hearing, and (3) proceed to impose the sentence for which Petitioner
had bargained, the above quoted portions of the record make it clear that the PostConviction Court granted Petitioner only the right to a “belated” motion for modification
Although Md. Rule 4-345(e) does not expressly provide that a motion for modification
must be presented to and decided by the judge who imposed the sentence at issue, as noted by
this Court in Johnson v. State, 274 Md. 29, 333 A.2d 37 (1975), the “Reduction of Sentence”
provisions in the Maryland Rules are “virtually identical” to the provisions then contained in
Rule 35 of the Federal Rules of Criminal Procedure. Id. at 39, 333A.2d at 42. “Federal case law
clearly indicates that, under Rule 35, motions to correct or reduce a sentence are to be heard by
the court that rendered the original judgment and sentence. See Wright, Federal Practice &
Procedure: Criminal (Second) § 582 (1982).” State v. Beam, 766 P.2d 678, 684 n.3 (Idaho 1988).
of sentence hearing before the judge who imposed the original sentences.
As a result of the agreement reached during the post-conviction proceeding,
Petitioner acquired an enforceable right to a “re-sentencing” hearing before the
sentencing judge, as well as to a joint submission of that agreement to the sentencing
judge. Petitioner did not, however, acquire an enforceable right to the recommended
sentence. As the above quoted portions of the record also make clear, no reasonable
person in Petitioner’s position would be confused about (1) the limited relief granted by
the Post-Conviction Court, or (2) whether the sentencing judge ever indicated that she
would agree to modify any of the sentences that she had previously imposed. Under these
circumstances, while we express no opinion on the issue of whether Petitioner may be
entitled to other post-conviction relief, we hold that the sentences imposed at Petitioner’s
re-sentencing hearing are not “illegal” under Md. Rule 4-345(a).
JUDGMENTS OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
PETITIONER TO PAY THE COSTS.