Mateen v. Saar

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Muhsin R. Mateen v. Mary Ann Saar, et al., No. 121, September Term 2002 [Criminal Law: Sentencing: Whether an inmate s sentence was for 50 years, or life w ith all but fifty years suspended. Held: The inmates senten ce was for fifty years because a docket entry, a Division of Correction Sentence and Detainer Status Change Report, and a Circuit Court Commitment Record all clearly indicated that the Court had imposed a sentence of 50 years.] [Criminal Law: Sentencing: Whether extra judicial communications between the Court and the Division o f Correctio ns amou nted to a de facto correction of an inmate s sentence. Held: No. While Maryland Rule 774, the Rule in effect at the time of the inmate s resentencing, allowed a court to correct an illegal sentence at any time, subsection (c) of the Rule also mandated that a modification or reduction or striking of sentence shall be made on the record in open court after notice to the defendant and the State s Attorney. As there was no notice o r hearin g in the p resent c ase, the in mate s senten ce wa s not co rrected .] [Criminal Law: Sentencing: Appeals: Whether the State can challenge o n appeal th e legality of a 50 year se ntence for first d egree m urder. H eld: No . The State may challenge a sentence on appeal only when a circuit cour t fails to impo se a sentenc e that is specifically mandated by statute, and a life sentence for first degree murder may be suspended at the discretion of the circuit court, and so is not specifically man dated. ] IN THE COURT OF APPEALS OF MARYLAND No. 121 September Term, 2002 MUHSIN R. MATEEN v. MA RY A NN S AAR , et al. Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Battaglia, J. Raker, Wilner and Cathell, JJ, dissent Filed: August 4, 2003 This case comes to us from a judgment of the Court of Special Appea ls affirming the Circuit Court for Baltimore City s denial of Muhsin R. Mateen s Petition for Writ of Habeas Corpus. We must con sider whether the C ircuit Court s pronouncement of Mateen s 1973 sentence for first degree murder was for 50 years, or for life w ith all but 50 years suspended, whether subsequent off-the-record communications between the sentencing judge and the chairman of the Maryland Parole Commission, in the absence of notice to Mateen or an opportun ity to be heard , could have constituted a valid correction of Mateen s 1973 sentence, and finally, wh ether the Sta te 1 has the right on appeal to challenge the legality of a flat 50year sentence, if that was what the trial judge pronounced, for first degree murder. For the reasons discussed h erein, we sh all conclud e that Ma teen s senten ce was f or 50 years, that, although illegal, his sentence was not corrected in accordance with the Maryland Rules, and that the State did not have the right to challenge the legality of the sentence o n appeal. Con sequ ently, we shall reverse the judgment of the Court of Special Appeals and remand the case with directions that the intermediate appellate court remand the case to the Circuit Court for further proceedings consistent with this opinion. I. BACKGROUND On November 30, 1972, Mateen (a/k/a Jerome Allen Williams) 2 was convicted in the 1 Mateen sought relief in his Petition against the Gov ernor of Ma ryland, the Secretary of the Department of Public Safety and Correctional Services, the Commissioner of Correction, the Chairperson of the Maryland Parole Commission, and the Warden of the Western Correction al Institution. We shall refer to these respondents collectively as the State. 2 Mate en cha nged h is name in 1974 . Criminal Court of Baltimore of first degree murder. At the time of the murder, Maryland law provided that [e]very person convicted of murder in the first degree . . . shall suffer death, or undergo a confinement in the p enitentiary of the State for the period of their natural life, in the discretion of the court bef ore whom such person may be tried. M aryland Cod e, Art. 27, § 413 (1957, 1971 Repl. Vol.). Because discretionary death sentences like that provided for in Section 413 had been struck dow n by this Court as unconstitutional by the time of Mateen s sentencing,3 Judge Marshall A. Levin declared that, the law [left him with] no alternative other than to impose a life sentence. Consequently, on January 5, 1973, Judge Levin sentenced Mateen to the jurisdiction of the Commissioner of Correction comm encing Septem ber 9, 19 72, and continu ing for the ba lance o f his na tural life . Thereafter, however, in State v. Wooten, 277 Md. 114, 116-18, 352 A.2d 829, 831 (1976), this Court determined that Article 27, Section 413 was subject to Maryland Code, Art. 27, § 641A (1957, 1971 Repl. Vol.), which empowered courts to impose a sentence for a specified period and provide that a lesser period be served in confinement [and to] suspend 3 In Bartho lomey v. State, 267 Md. 17 5, 181-84, 297 A .2d 696, 699-701 (1972), decided before Mateen s sentencing, this Court determined that the imposition of the dea th penalty under any Maryland Statute that allowed for, but did not require the d eath penalty, was violative of the Eighth and Fourteenth Am endm ents to th e Fede ral Con stitution. (citing the consolidated cases of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, sub nom . Furma n v. Geor gia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed .2d 346 (1972), reh. den. 409 U .S. 902 , 93 S. C t. 89, 34 L .Ed.2d 163 (1 972)). See also State v. Chaney, ___ Md. ___, ___ A.2d ___ (2003)(No. 89, Sept. Term, 2002)(Filed June 10, 2003)(Slip op. at 9-10), for a recent discussion of the background regarding the status of M aryland 's death penalty statute at this time. -2- the remainder of the sentence. Subsequently, in Williamso n v. State, 284 Md. 212, 215, 395 A.2d 496, 497 (1979 ), we concluded tha t a trial judge erred when he did not exercise the discretion that he possessed und er Wooten despite [an] appellant s request that he consider suspending part of the life sentence imposed upon her. In light of these decisions, Mateen filed a petition for post conviction relief with the Criminal Court of Baltimore, in which he asserted that his life sentence was illegal because Judge Levin, in 1973, failed to consider a suspension of the sentence as a possible alternative to incarceration. The post conviction judge agreed and ordered that the case be remanded to the trial court for resentencing. On March 19, 1982, a new sentencing hearing was held before Judge Levin. 4 The parties represent that there is no transcript available of that hearing. A docket entry for the date of the h earing, h owev er, states: Chan ge of s entenc e hearin g. Judgme nt. Fifty (50) years c/o DOC dating from 9-9-72. In addition, a C riminal Court of Baltimore Commitment Record, dated March 19, 1982, states: Prisoner is committed to the jurisdiction of the Commissioner of Correction commencing on 9-9-72 for a period of Fifty (50) years. A Division of Correction Sentence and Detainer Status Change Report also states that Mateen s sentence was red uced on 3 -19-82 to 5 0 years from life, and tha t [h]is total sentence now reads: 50 [years] from 9-9-72. Seven months after the resentencing hearing, in a letter dated October 28, 1982, the Chairman of the Maryland Parole Commission sought clarification of Mateen s sentence 4 The propriety of this decision is not at issue in the present proceeding. -3- from Judge L evin. The C hairman w rote in a letter to Judge Levin that the Annotated Code of Maryland m andates if a person is found guilty of First Degree Murder the sentence must be life imprisonment. The Chairman then asked Judge Levin w hether it wa s his intention to sentence [Mateen] to life imprisonment and suspend all but 50 years or was [Mateen] found guilty of a lesser count and sentenced to 50 years incarceration? Clarification of the correct sentence structure, the Chairman reasoned, is necessary in determining whether [Mateen] receives parole consideration after serving one-fourth of his sentence or whether he has to serve 15 years less good conduct time and industrial time if he was sentenced to life imprisonment, with a portion suspended. Judge Levin responded by letter dated November 3, 1982, in which he w rote: Please forgive my inartist ic senten cing. It was my intention to sentence [Mateen] to life and suspend all but fifty years. After receiving Judge Levin s letter, the Division of Correction issued a second Sentence and Detainer Status Change Report on November 16, 1982, stating that Mateen s total sentence now reads: Life suspend 50 yrs. By letter dated A pril 1, 1984, M ateen soug ht clarification from Jud ge Levin of his sentence. Three da ys later, the Circuit Court for Baltim ore City 5 issued another Commitment 5 By Ch. 523 of the Acts of 1980, the courts of the Supreme Bench of B altim ore C ity, which included the Criminal Court of Baltimore, the Superior Court of Baltimore City, the Court of C omm on P leas, the B altim ore C ity Co urt and th e Cir cuit C ourt of B altim ore C ity, were abolished a nd replace d by the Circuit Court for Baltimore City, effective January 1, 1983. State v. Baltimore, 296 M d. 67, 68 -69 n.1 , 459 A .2d 585 , 585 n.1 (1983 ). -4- Record stating, Sentence changed to read: Balance of Natural Life and all but Fifty (50) years susp ended, and two days after that, Jud ge Levin wrote to M ateen that, The sentence I gave you at your resentencing on March 19, 1982 was life with all but fifty years suspende d. Judge L evin also w rote: Under Maryland la w whe n a person is found g uilty of first degree murder th e judge must sentence him to life imprisonm ent. Howeve r, the judge can suspend part of that sentence, which I did in you r case. Your commitment order has been rewritten by the clerk s office in order to reflec t what I stated above and to remove any confusion that exists about your sentence. Mateen wrote another letter to Judge Levin in November of 1984 again seeking clarification of his sentence and an explanation as to his eligibility for p arole. Judge Levin responded by letter dated December 13, 1984, in which he wrote: I imposed a life sentence. However, I suspended all but 50 years. That means that your actual sentence is 50 years. If you are released on parole and any part of your sentence is thus suspended (meanin g tha t you have not served the entire 50 years) then the suspended amount can be reimposed if you violate p arole . . . . P arole is p redicate d on 50 years. In 1986, Mateen became eligible for, but was denied, parole. In 1987, he was transferred to a Pre-Release unit, eventually began to participate in family leave and work release programs, and was ag ain con sidered for, bu t denied , parole. Parole was also denied in 1988 and in 1989. In 1990, Mateen wrote another letter to Judge Levin, again seeking clarification of his sentence a nd an exp lanation as to his eligibility for paro le. Judge L evin responded to M ateen in a May 15, 1990 letter, reiterating that his actual sentence was -5- amended in 1982 from life, to life, with all but 50 years suspended. The judge also explained that according to the Paro le Commission, M ateen became eligible fo r parole in 1986, but that parole was denied that year, as well as in 1987 , 1988, and 1989, and that Mateen was sche duled to appear before the Parole Commission again in June of 1990. The Judge then noted that the Parole C ommissio n was trea ting Mate en s eligibility for p arole properly and explaine d tha t eligibility do es no t mea n you are a utom atica lly released . . . you mus t satisfy the Parole Com mission that you a re a suita ble can didate f or paro le. In 1993, the Comm issioner of Correction cancelled family leave and work release program s for inma tes serving life sentences a nd ordere d that all such inmates be classified to no less than medium security, except under certain conditions. As a result, Mateen was removed from family leave and w ork release program s and return ed to a me dium secu rity faci lity. Division of Correction Directives 100-005, 100-508 and 100-543, which reflected these p olicies, w ere issue d later. On September 14, 1993, Mateen appeared before the Maryland Parole Commission, parole was den ied, and M ateen s case was to be reheard in one year. One year later, Mateen again appeared before the Parole Commission, and the Commission recommended that Mate en be p aroled. I n 1995 , Gove rnor G lenden ing den ied paro le. Two years later M ateen f iled, pro se, a Petition for Writ of Habeas Corpus in the Circuit Court for Baltimore City seeking, Declaratory Judgement for Suspended Life sentence, Release on Parole and/or to Participate in Pre-Release, Work Release, and Fam ily -6- Leave Programs. On October 31, 2000, without a hearing and prior to the deadline for Mateen s reply to the State s response to his Petition for Writ of Habeas Corpus, the Circuit Court issued an Order denying Mateen s Petition on the basis that the individual confined or restrained is not entitled to any relief. Mateen w as never served w ith a copy of that order. Mateen eventually retained counsel who, after learning of the Court s order denying Mateen s Petition, wro te a July 31, 2001, letter to the post conviction judge. In that letter, Mateen s counsel explained that since neither [Mateen] nor his attorney were informed of the Court s final judgment in this case, [Mateen] has lost his right of appeal. Therefore, Mateen s counsel requested that the Court reissue and refile nunc pro tunc its October 31, 2000, Order so that Mateen could exercise his right of appeal. Tw o month s later, the Circu it Court issued an Order for nunc pro tunc relief, and the reafter, M ateen filed a timely appeal. The Court of Special Appeals affirmed the dismissal of Mateen s petition for habeas corpus relief in Mateen v. Galley, 146 Md. App. 623, 807 A.2 d 708 (20 02). The in termediate appellate court determined that on March 19, 1982, Mateen was resentenced to an illegal term of 50 years imprisonment. The Court also concluded, however, that the illegal sentence was corrected by extrajudicial communications between the sentencing judge and the Chairman of the M aryland Parole Comm ission, whic h promp ted amen dments to a Division of Correction Sentence and Detainer Status Change Report and a Circuit Court Commitment Record, so that those records indicated that Mateen s sentence was life w ith all but 50 years suspended. We gran ted certiorari, 372 Md. 763, 816 A.2d 111 (2003), to consider the -7- following questions presented in Mateen s petition, which he filed pro se. I. Was Judge Levin s sentence ambiguous and under the rule of lenity should [it] be construed as fifty years from September 9, 1972? II. Was petitioner dep rived of du e process rig hts and a h earing on h is writ of habeas corpus based on court errors? Mateen also raised a third question: Can petitioner raise a claim in a habeas corpus proceeding? After filing his petition for certiorari, how ever, Mateen retained counsel who withdrew this question . Mateen s counsel th en raised the following question in M ateen s brief: Do the Division of Correction s classification rules mak ing parole more diff icult to obtain violate the Ex Post Facto provisions of the federal and Maryland constitutions? Counsel asserts that the question, although not specifically nam ed as a qu estion prese nted in Mateen s petition for certiorari, was nonetheless raised in othe r parts of the p etition, and tha t, in any ev ent, we should exercis e our di scretion to addr ess the is sue. We need not reach the preservation, habeas corpus, or due process issues because, for the reasons discussed herein, we shall conclude that Mateen s properly entered sentence was for 50 years, commencing on September 9, 1972, not life with all but 50 years suspended, and that the State is u nable to ch allenge the le gality of this sentence in this proceeding or otherwise at this juncture. Consequently, we shall vacate the judgment of the Court of Special Appeals and rem and the case to the interme diate appellate court with directions that it reman d to the C ircuit Co urt for f urther p roceed ings co nsistent with th is opinio n. II. DISCUSSION -8- Mateen contends that his sentence should be construed as a flat 50 years, rather than life with all but 50 years suspended, because the pronouncement of his sentence by Judge Levin on March 19, 1982 was ambiguous, and under the rule of lenity he is entitled to the less severe sentence. Mateen also claims that, contrary to the decision of the Court of Special Appeals, it was not mere ha rmless error when the Circuit Court violated Ma ryland Rule 4-345(d) by failing to correct the sentence on the record, in open court, and after hearing from the parties. Mateen further contends that if his sente nce is in fac t life with all but 50 years suspended, then two Division of Correction Directives v iolate the ex p ost facto provisions of the federa l and M aryland C onstitutio ns. Those directives, DCD 100-005 and DCD 100-508 , provide, resp ectively, that inma tes serving life sentences w ith all but a specific term of years suspended cannot be classified be low med ium secur ity except under certain conditions, and that such inmates are ineligible for work release. Mateen claims that because the Maryland Parole Commission has a long standing policy requiring inm ates to successfu lly complete work rele ase and o ther forms of leave p rior to recomm ending pa role to the Governor, the combina tion of that p olicy along w ith the DO C Directiv es preven ts him from obtaining release on parole. The result of this, according to Mateen, is an impermissibl[e] increase [in] the quantum of punishment imposed on [him] at the time of his original sentencing in violation of ex post facto principles. Finally, Mateen argues that the trial court violated his due process rights by denying his petition for writ of habeas corpus withou t a hearin g. -9- The State urges us to reject Mateen s assertion that his sentence should be construed as 50 years because [s]uch a sentence is illegal and is not what the circuit court imposed when it resentenced [Mateen] in 1982. The State also claims th at Matee n s ex pos t facto argument has not be en preserv ed for revie w becau se neither h is brief in the Court of Special Appea ls, nor the Petitio n for a W rit of Certiorari he filed with this Court, contains such an argum ent. Even if we choose to review Mateen s ex post facto argument, the State asserts, we should reje ct it because D ivision of C orrection D irectives are not laws within the meaning of the ex post facto clauses of the federal and Maryland Constitutions, because such directives do not lengthen Mateen s period of incarceration, and the Parole Commission does not condition a parole recommendation on an inmate s work release or leave status. Fina lly, the State asserts that Mateen s due process challenge to the Circuit Court s dismissal of his habeas petition should be rejected because Mateen produced no evidence that the Circuit Court did not consider his reply and other papers filed in support of his habeas petition , and also because Mateen did not ask for a hearing when he requested the Court to reissue its October 31, 2000, order dismissing his petition. Our analysis begins with Mateen s resentencing, which occurred over tw enty years ago, on March 19, 1982, and for which no transcript of the proceeding is available. We agree with the Court of Special Appeals that Mateen s sentence was a flat 50 years, rather than life with all but 50 years susp ended . See Mateen, 146 Md. App. at 646, 807 A.2d at 721. As was pointed out by the interm ediate appe llate court, a Criminal Court of Baltimore Commitment -10- Record, dated M arch 19, 19 82, the day of the resenten cing hearin g, states: Prisoner is committed to the jurisdiction of the Commissioner of Correction commencing on 9-9-72 for a period of Fifty (5 0) years. Also, a Division of Correction Sentence and Detainer Status Change Report states that Mateen s sentence was reduced on 3-19-82 to 50 years from lif e, and that [h]is total sentence now reads: 50 [years] from 9-9-72. In addition, subsequent to the proceedings in the Court of Special Appeals, the State discovered a docket entry for March 19, 1982 that states: Change of sentence hearing. Judgment. Fifty (50) years c/o DOC dating from 9-9-72. Although admittedly terse, [t]he value of a simple docket entry which . . . makes clear to everyone the disposition of each and every claim in a case cannot be overemphasized. Jones v. Hubbard, 356 Md 513, 523, 740 A.2d 1004, 1010 (19 99). Docket entries are mad e under the eye of the court, and by its authority, Jackson v. State, 68 Md. App. 679, 688, 515 A.2d 768, 773 (1986)(quoting Weigho rst v. State, 7 Md. 442, 450 (1855)), and are presumed to be true until corrected. Coleman v. State, 231 Md. 220, 222223, 189 A.2d 616, 618 (1963)(citing Roberts v. State, 219 Md. 485, 488, 150 A.2d 448 (1959). Furthermore, we also note that [f]undamental 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. Robinson v. Lee, 317 Md. 371, 379-80, 564 A.2d 395, 399 (1989). Thus, we agree with the conclusion of the Court of Special Appeals that the sentence imposed upon Mateen during his resentencing on M arch 19, 1982 was for 50 years. -11- We also acknowledge, as did the Court of Special Appeals, that a straight 50-year sentence for first deg ree mu rder w as illeg al. Mateen, 146 Md. App. at 646, 807 A.2d at 722. The statute in effect at the time of Mateen s conviction in the present case, prescribing the penalties for first degree mu rder, stated: Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natu ral life . . . . Maryland Code, Art. 27, § 41 3 (1957, 1971 R epl. Vol.). Similarly, the statute in effect at the time of Mateen s resentencing that prescribed punishment for first degree murder directed: A person found g uilty of murde r in the first deg ree shall be sentenc ed to either d eath or to imprisonment for life . . . . Maryland Code, Art. 27, § 412(b) (1957, 1976 Repl. Vol., 1980 Supp.). Thus, a judge had only two options wh en rendering a senten ce for first degree murder: death, or imprisonment for life. A sente nce of 50 years is illegal in the sense that it does n ot com port w ith either of thos e two s entenc ing opt ions. An illegal sentence, as was properly recognized by the Court of Special Appeals, may be corrected by a court at any time, e ven on its own initiative . Mateen, 146 Md. App at 64749, 807 A .2d at 72 2-23. See also State v. Griffiths, 338 Md. 485, 496, 659 A.2d 876, 882 (1995)(recognizing that Maryland Rule 4-3 45(a) allows a court to correct an illegal sentence at any time and stating that the Rule does not preclude action by the trial court on its own initiative. ) We differ, however, with the intermediate appellate court s assessment that the cumulative effect of Judge Levin s N ovembe r 1982 an d April 1984 letter[ s] along w ith -12- the DOC[ s] revis[ion of] its sentence change report and the court[ s] revis[ion ] of its commitment record constituted a de facto correction of Mateen s 50 year sentence to life with all b ut 50 yea rs suspe nded. Mateen, 146 Md. App. at 649, 807 A.2d at 722-23. When Mateen was resentenced on March 19, 1982, Maryland Rule 774 governed the revisory power of the court with respect to sentencing. That Rule provided the court w ith broad powers to correct an illegal sentence, stating in part that [t]he court may correct an illegal sentence a t any time. M d. Rule 77 4(a). The c ourt s pow er to correct an illegal sentence, however, was not unlimited, for the Rule also stated: A modification or reduction or striking of sentence shall be made on the reco rd in open court after n otice to the defendant and the State s Attorney. A new sentence specifying the modification or reduction made shall be entered of record. Md. Rule 774 (c). In the instant case, no hearing was held on the record in open court, and no notice was given to Mateen or to the State. Rather, seven months after Mateen was resentenced to 50 years, the Chairm an of the M aryland Parole Comm ission sent a le tter to Judge Levin pointing out that the Maryland Code required a sentence of life imprisonment for first degree murder, and seeking clarification as to whether the judge meant to sentence Mateen to life in prison with all but 50 years suspended. Judge Levin responded in a letter to the Chairman that it was his intention to impose a sentence of life w ith all but 50 years suspended.6 Based upon these off-the-record communications, the Division of Co rrection s 6 The copies of these let ters in the record are of v ery poor q uality. It does not appear, however, that Mateen was sent copies of them. -13- Sentence Change Report and eventually, the Circuit Court s Commitment Record, were revised to reflect a sentence of life with all but 50 years suspended. For the next two decades, Mateen was treated as a lifer, the consequences of which included restrictions on work release and family leave programs, and parole. Mateen s sentence, however, was never corrected p roperly because there w as never a hearing on the record or notice provided to the parti es, as w as requ ired by M aryland R ule 744 (c). See Do tson v. State, 321 Md. 515, 523, 583 A.2d 710, 714 (1991)(stating that the Maryland Rules have the force o f law ). Con sequ ently, the Circuit Court s commitment order and the DOC s sentence change report indicating that Mate en s senten ce is life with all but 50 years suspended, are of no legal force or effect. The State, however, urges us not to conclude that the appropriate sentence was 50 years because such a sentence for first degree murder was illegal. Even if the 50-year sentence was illegal, however, that does not necessarily mean that the State ha s the right to challen ge it here . We ex plain. In State v. Green, 367 Md. 61, 79, 785 A.2d 1275, 1283 (2001), we established once and for all that there is now no common law right of appeal under Maryland law. Indeed, the right to appe al in either a c ivil or criminal case, must find its source in an act of the legislatu re. State v. Bailey, 289 Md. 143, 147, 42 2 A.2d 1021, 1 024 (1 980). See also Jones v. State, 298 Md. 634 , 637, 471 A.2d 1 055, 1057 (198 4) ( Under M aryland law the State s right to appeal in a criminal ca se is limited; it may do so only when authorized by statute. ). -14- Thus, we mu st determine if any statute pro vided the S tate with the rig ht to challenge on appea l the lega lity of M ateen s 50 year se ntence for first d egree m urder. Maryland Code, § 12-302(c)(2) of the Courts and Judicial Pro ceedings A rticle (1973, 2002 Repl. Vo l.), is the only statute tha t could em power th e State to appeal here. It provides that the State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code. The question, then, is whether a sentence of life for first degree murder unde r the relevan t statutory provisio ns is specifically mandate d by the code . For the fo llowing rea sons, we c onclude th at it is not. When a sentencing judge h as the discretion to suspend a sentence, or similarly, to grant probation b efore judg ment, the se ntence is not specifically mandated by the Maryland Code. In Green, supra, we concluded that the State had the right to appeal because the sentencing provisions of Maryland Code, Art. 27, § 643B(c) (1957, 1992 Repl. Vol.), were man dato ry. Id. at 82, 785 A.2d at 1287. In so concluding, we reasoned that the statute specifically directed that courts may not suspend all or part of such sentences. Id. We also noted that the statute was entitled Mandatory sentences for crimes of violence, and that it employed the term shall. In State v. Hannah, 307 M d. 390, 3 92, 514 A.2d 16 , 17 (1986 ), Hannah pled guilty to common law robbery and to the use of a handgun in the commission of a felony in violation of Marylan d Cod e, Art. 27 , § 36B (1957, 1982 Repl. Vol., 1985 Cum. Supp.). For the robbery charge, the circuit court sentenced him to 10 years imprisonment, of which, he -15- was to serve two. Id. The rest of his confinement was suspended, with Hannah being placed on probation upon his release from cu stod y. Id. Thereaf ter, the circuit co urt struck its previous finding of guilt on the handgu n charge a nd gave H annah pr obation be fore judgm ent, pursuant to Art. 27 , § 64 1, which prov ided in pa rt tha t when ever a per son p lead s gui lty to an offense, the court may stay the entering of judgment and place the person on probation subject to reasonable terms and conditions as appropriate. Id. at 393-94, 514 A,2d at 17. The State appealed, arguing that it had the right to do so pursuant to § 12-302 of the Courts and Ju dicial Pr oceed ings A rticle. Id. at 394, 514 A.2d at 18. We granted certiorari before any proceedings in the C ourt of Specia l Appeals , and conc luded that th e State had a right to appeal. In so concluding, we stated th at the State s right to appeal rises or falls on CJ § 12-302 (c)(2), wh ich confe rred a spe cial right of ap peal for th e State wh en it contends that a trial judge had failed to impose th e sentence specifically mandated by the General Assem bly. Id. at 397, 514 A.2d at 19. We then observed that the statute governing the penalties for the use of a handgun in the commission of a felony specifically prohibited a court from suspen ding a sentence or en tering judgment of p robation before a verdic t. See Maryland Code , Art. 27 , § 36B(e)(2) and (3) (1957, 1982 Repl. Vol.)(declaring that no court shall suspend a mandatory minimum sentence prescribed in this subheading and that no court shall enter a judgment of probation before or without verdict with respect to any case arising under this subheading ). Thus, because the judge s probation disposition violated a mandatory sentencing law, we concluded that Section 12-302(c)(2) of the Courts and -16- Judicial Proceedings A rticle pro vided th e State w ith the ab ility to appe al. Id. at 402, 514 A.2d a t 21-22 . Four years later, in Shilling v. State , 320 Md. 288, 577 A.2d 83 (1990), we concluded that Maryland Code, Art. 27, § 641(a)(2) (1987 Repl. Vol.), was a mandatory sentencing statute and, as a resu lt, the State had a rig ht to app eal. Shilling was found guilty of operating a motor vehicle while intoxicated in violation of Maryland Code, § 21-902(a) of the Transportation Article (1987 Repl. V ol., 1989 C um. Sup p.). The circu it court judge , despite the fact that Shilling had been previously found guilty of driving while under the influence of alcohol and given probation before judgment for that crime, stayed the entry of judgm ent, granted Shilling probation before judgment, and fined him $2 50.00. Id. at 290, 577 A.2d at 84. Section 641(a)(2) p rovided in p art: Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a second or subsequent violation of §21-902(a) or (b) of the Tra nsportation Article if the second or subsequent violation occurr ed with in 5 years o f the pre vious v iolation . A person is in violation of § 21-902(a) or (b) if that person receive s proba tion un der this s ection. Id. at 291, 577 A.2d at 84. We determined that this language spe cific ally eliminated the possibility of probation under the circumstances of the case, and that the trial judge, therefore, impos ed a dis position contrar y to that spe cifically m andate d by statute . Id. at 294, 577 A.2d 86. Indeed, we stated that a sentence is specifically mandated when the legislature prohibits probation before judgment or suspension of the imp osition o f senten ce. Id. at 294, -17- 577 A.2 at 8 6. Although under previous c ase law an d versions o f Section 1 2-302, the S tate had a right to appeal from an illegal sentence, we observed that the version of Section 12302(c)(2), which is substantially the same as the law at issue in the p resent case, seeks to specify that the State may appeal when the trial court does not impose a sentence the legislature has clearly mandated. Id. Because the Legisla ture had pro hibited probation under the circumstances of this case in Section 641(a)(2), we concluded that it mandated that some sentence, however minimal, be imposed, and that the State, therefore, had a right to appe al. Id. at 293, 577 A.2d at 85. In enacting the law prescribing the penalties for first degree murder, which were in effect at the time of Mateen s conviction and when he was resentenced, it is clear that the Legislature did not specifically prohibit sentencing judges from exercising their discretion to suspend a life sentence . The statute in effect at the time of M ateen s conviction in the present case prescribing the penalties for first degree murder stated: Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a con finement in the penitentiary of the State for the period of their natural life . . . . Maryland Code, Art. 27, § 413 (1957, 1971 Repl. Vol.). Similarly, the statute in effect at the time of Mateen s resentencing that prescribed punishment for first degree murder directed: A person found guilty of murd er in the first de gree shall be sentenced either to death or to imprisonment for life. Maryland C ode, Art. 27, § 41 2(b) (19 57, 197 6 Rep l. Vol., 1980 Supp.). N either of tho se statutes spe cificall y prohibit a sentencing judge from -18- suspen ding a lif e senten ce. Furthermore, this Court has determined that sentencing judges do, in fact, have the discretion to suspend all or part of life sentences for first degree m urder, State v. Wooten, 277 Md. at 116-18, 352 A.2d at 831-32, and that the failure to exercise such discretion is error. Williamson v. State, 284 Md. at 215, 395 A.2d at 497 (concluding that a trial judge erred when he did not exercise the discretion that he possessed under Wooten despite [an] appellant s request that he consider suspending part of the life sentence imposed upon her ); but see State v. Chaney, ___ Md. ___, ___ A.2d ___ (2003). Because a sentencing judge has the discretion to suspend a life sentence for first degree murder, that sentence has no t been specifi cally man dated by the Le gislature . Conseq uently, the State has no right to appeal the legality of Mateen s sentence. Nor may the State circumvent the limitations of Section 12-302(c)(2) by insisting, in an argument suggestive of a motion to correct an illegal sentence under Maryland Rule 4345(a), that we not construe Mateen s sentence as 50 years because that sentence was illegal. Our decision in Telak v. Sta te, 315 Md. 568, 556 A.2d 225 (1989), is instructive on this pont. In that case, Telak was found guilty in the District Court of Maryland, Baltimore County, of driving while intoxicated and negligent driving. Id. at 569, 556 A.2d at 225. On July 24, 1986, the District Court entered an order striking the guilty verdicts and imposing probation before jud gment, 2 years supervised probation, a fine, and a requirement of alcoho l-related treatme nt. Id. Neither pa rty filed a notice o f appeal w ithin 30 days of this order. Id. On Aug ust 15, 1986, how ever, the State filed a M otion to Correct an Illegal -19- Senten ce, which was denied by the District Court on September 18, 1986. Id. Twelve days later, but 68 days a fter the Distric t Court s July 24 order, the State filed a notice of appeal to the Circuit Court f or Baltim ore Co unty. Id. Telak filed a motion to dismiss the S tate s appeal on the gro und that it w as not filed within the 30 day time frame mandated by Maryland Code, § 12-401(c)(1) of the Courts and Judicial Proceedings Article (1974, 1984 Repl. Vol.). 7 Id. at 570, 556 A.2d at 225-26. The C ircuit Court denied Telak s motion, entered a mandate granting the State s motion to correct an illegal sentence, and remanded the case to th e Distric t Court . Id. at 570, 556 A.2d at 226. We granted certiorari to consider wheth er the S tate s ap peal w as timely f iled, and held tha t it was n ot. Id. The State argued that its appeal was timely even though the notice was filed more than 30 days after the July 24, 1 986 or der of th e Distric t Court dispos ing of th e case. Id. In support of that argu ment, the S tate relied on C hapter 49 o f the Acts of 1976, which enacted both Section 12-401, providing the State with the right to appeal from a final judgment in a district court crimin al case, and S ection 12-3 02(c)(2), giv ing the State the right to appeal from a final judgm ent in a c ircuit co urt crim inal case . Id. at 573, 556 A.2d at 228. According to the State, Chapter 49 codified our decision in State ex rel. So nner v. She arin, 272 Md. 50 2, 325 A .2d 573 (1 974), wh ere we ind icated that the State could take an appeal 7 Section 12-401(a ) provided the State w ith the ability to appeal from a final judgment of the District Court if it alleged that the trial judge failed to impose the sentence specifically mandated by the Code. With respect to the time for filing an appeal, Section 12-401(c)(1) stated, Except as provided in paragraph (2), an appeal shall be taken by filing an order for appeal with the clerk of the District Court within 30 days from the date of the final judgment from which appealed. -20- from the order denying the motion to correct an illegal sentence, and that the thirty-day period for filin g an ap peal ran from th at order . Id. at 574, 5 56 A.2 d at 228 . We rejected the State s argument, instead concluding that the language of Sections 12-401 and 12-302 clearly demonstrated that the State could take an appeal only from a final judgment in a district or circuit court criminal case, and that the denial of a motion to correct an illegal senten ce is no t a final ju dgme nt. Id. at 575-76, 556 A.2d at 228-29. A final judgment in a criminal case, we noted, consists of the verdict and , except where the re is an acquittal, the sanction imposed, which is normally a fine or sentence of imprisonment or both. Id. We explained that a motion to correct an illegal sentence, on the other hand, is in the nature of a collateral attac k and [ a]n appea l from its denial is not a direct appeal from the original sentence. Id. at 576, 556 A.2d at 229. In Chapter 49 of the Acts of 1976, the General A ssembly legis lated with re spect to direct appeals from judgments in criminal cases; it did not authorize an appeal from the denial of a motion to correct an illegal sentence filed pursuant to Marylan d Rule 4-345 (a). Id. Thus, we concluded that under Section 12-401 o f the Cou rts and Judic ial Proceed ings Article, th e only order of the District Court from which the State could appeal was the July 24, 1986 order imposing sanctions upon Telak, not the later order denying the State s motion to correct an illegal sentence filed pursuant to the Maryland Rules. Telak demonstrates that the State may not circumvent the legislatively-mandated 30 days for noting a n appeal f rom a fina l judgmen t in a criminal c ase by filing, beyon d thirty -21- days after entry of the final judgment, an appeal from an order denying a motion to correct an illegal sentence. Similarly, in the present case, the State may not evade the limitations placed upon its ability to appeal Mateen s sentence in Section 12-301(c)(2) by challenging the legality of his sentence on a ppeal with an argum ent that is in the n ature of a m otion to correct an illega l senten ce purs uant to M aryland R ule 4-3 45(a). Our inquiry, how ever, is not at an end, for it is w ell established that a court may correct an illega l senten ce on its own in itiative an d at any tim e, even upon a ppeal. See Ridgeway v. State, 369 M d. 165, 171 , 797 A.2d 1287, 12 90 (2002 ); Griffiths, 338 Md. at 496, 659 A.2d at 882. Indeed, in Boyd v. State, 321 Md. 69, 73-74 n.2, 581 A .2d 1, 3 n.2 (1990), this Court ex mero motu ordered the trial court to correct an illegal sentence upon remand. The defendant in that case was convicted of first degree murder, attempted murder, and conspiring to dynam ite her hu sband s car. Id. at 73, 58 1 A.2d at 3. She was sentenced to life imprisonment without the possibility of parole on the murder conviction and was given concurrent life sentences for the r emain ing con victions . Id. at 73, 581 A.2d at 3. The issue before us was whether the trial judge erred in refusin g to recu se hims elf. Id. at 71, 581 A.2d at 1. In dicta, we pointed out, even though the petitioner had not raised the issue, that the sentence of life imprisonment for the crime of attempting to dynamite a vehicle exceeds the statutory maximu m of 20 years imprison ment . . . and is, therefore, an illegal sentence. Id. at 73-74 n.2, 581 A.2d 1, 3 n.2. We then stated that we expected the trial court to correct the sentence after the case is remanded pursuant to our mandate. Id. -22- The imposition of the illegal sente nce in Boyd was appealable by the defendant because it would have subjected her to greater punishment than was allowed under the law for the crim e that sh e com mitted. Contrastingly, Mateen s 50-year sentence in the present case is an illegal sen tence, but on e for wh ich, as previo usly discussed , the State has no right to ch allen ge on appeal . We cann ot do indirectl y wha t the S tate c ould not a sk fo r dire ctly. III. Conclusion We have concluded that Mateen s sentence is 50 years in prison. The Circuit Court s commitment order and the DOC s sentence change report indicating that Mateen s sentence is life with all but 50 years suspended , are of no legal force or effect. Upon remand, the Circuit Court must issue a new commitment order indicating the length of Mateen s sentence as 50 years, commencing September 9, 1972, and the DOC must respond accordingly, by considering Mateen as an inmate with a 50 year senten ce, rather than as an inma te with a life sentence with all but 50 years suspended. JUDGMENT OF THE COURT OF SPECIAL APPEALS REV ERS ED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THE C I R CU I T C O U R T F O R F U R TH E R PROCEEDINGS CONSIS TENT W ITH TH IS OPINION. RESPONDENTS TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. -23- Circuit Co urt for Baltim ore City Case No. 24-H-97303901/CH-1455 IN THE COURT OF APPEALS OF MARYLAND No. 121 September Term, 2002 ______________________________________ MUHSIN R. MATEEN v. MARY ANN SAAR ______________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. ______________________________________ Dissen ting op inion b y Wilner, J ., in which R aker and C athell, JJ., join ______________________________________ Filed: August 4, 2003 With respect, I dissent. The Court in this case man dates a sente nce that it acknowledges is fla t-out illeg al. That, a lone , is ex traordinary. Stranger yet are the bases on which it rea ches that r esult. It se emin gly ap plies the rule o f len ity to w ipe a way a legal sentence in favor of an illegal one, for which there is utterly no authority or logic.1 In substituting its judgment on a purely factual matter for th at of the trial co urt what sentence was actually imposed by the judge it gives greater credence to the shorthand hearsay script of an unknow n clerk than to the recorded statement of the judge who imposed the sentence. And, ignoring the fact that the Circuit Court denied relief to the defendant, who is the appellant here, it holds that the illegal sentence, which the trial court found was never impos ed, mu st be sus tained b ecause the State is not allo wed to appea l it. The relevant facts are really quite simple. In January, 1973, having been convicted of first degree murder, Muhsin R. Mateen, then known as Jerome Williams, was sentenced by Judge M arshall Lev in to life impris onment, the sentenc e to date from September 9, 1972. 1 The Court states that it granted certiorari to consider two issues raised in Mateen s pro se petition and one question added by the Public Defend er. It never does address the issue raised by the Public Defender, which challenged certain Division of Correction classification rules as being ex post facto enactments. The questions raised in M ateen s petition were: (1) Was Ju dge Levin s senten ce ambiguous a nd under the rule of lenity should [it] be construed as fifty years from September 9, 1972, and (2) Was petitioner deprived of due process rights and a hearing on his writ of habeas corpus b ased on court errors. The Court states that it is not reaching the due process issue because of its holding that the prop erly entered sentence was for 50 years. As the only basis for reaching that conclusion under the grant of certiorari was that the sentence was ambiguous and, under the rule of lenity, should be construed as a sentence of 50 years and as the Court did not add any other issue on its ow n initiativ e, I pr esum e tha t the C ourt applied t he ru le of lenit y in reaching that conclu sion, even th ough it never a gain m entions that rule . That is another of the many puzzling glitches in the majority Opinion. The governing statute at the time allowed only two possible sentences for a person convicted of first degree m urder de ath and life im prisonme nt. A death sentence was not possib le because the statute allow ing it had been de clared unc onstitutional b y this Court. Acc ordingly, only one sen tence wa s legally permissib le the one he receive d. Judge L evin said at sentencing, Mr. Williams, the law leaves m e no alte rnative. There is no longer the death penalty. A ccordin gly, the sen tence . . . is you be sentenced . . . for the rest of your natural life. The sentence, as recorded by the clerk, was that Mateen be committed to the jurisdiction of the Commissioner of Correction commencing on September 9, 1972 for the balance of his natural life. It is not clear whether Mateen appealed his conviction there is nothing in the record to indicate that he did.2 At some point, however, he began filing post conviction applications. His third one was filed in 1981. In that application, he complained that Judge Levin had failed to consider whether any part of his life sentence should be suspended, 2 In his reply to the State s answer to his petition for habeas corpus, Mateen claims that, [i]n the original criminal case, he was tried with a co-defendant, Roosevelt Sneed, and references an app eal, Williams v. State, 50 Md. App. 255, 437 A.2d 665 (1982). Although that case did involve someone by the name of Jerome Williams, it is not likely that Mateen was the Jerome Williams involved in that case. The appellants brief in Williams indicates that the murder of which Williams and Sneed were convicted was committed in May, 1979, and that the two were tried, the first time, by Judge (now Chief Judge of this Court) Rob ert M. Bell, in April, 1980, and, following a mistrial, by Judge Dorf in June, 1980. Unless Mateen somehow escaped, of which there is no evidence, he would have been in prison under Judge Levin s 1973 sentence at the tim e of tho se even ts. If Mateen is confused about which murder he committed, when he comm itted it, and who tried him, his confusion regarding Judge Levin s sentence is not remarkable. 2 which, in State v. Wooten, 277 Md. 114, 352 A.2d 829 (1976), we held was permissible. In October, 1981, Judge Pines granted the applicatio n in order to permit Jud ge Levin to consider whether any part o f the life senten ce he h ad imp osed sh ould be suspen ded. The case was returned to Judge L evin for one purpose and one purpose only to consider whether, in light of Wooten, any part of the life sentence should be suspended. Life imprisonment remained the only legally permissible sentence. The Legislature had not changed the statute to allow any lesser sentence. There is no longer available a transcript of the subsequent proceeding before Judge Levin. All that we have to indicate what happened are two documents emanating from the clerk s office. T he ac tual d ocket en try, of which only a seco nd-hand referenc e appears in the record extract, recites, Change of sentence hearing . Judgment. Fifty (50) years c/o DOC dating from 9-9-72. From that docket entry, the clerk of the court signed a commitment record stating that M ateen wa s comm itted to the jurisd iction of th e Commissioner of Correction commencing on September 9, 1972, for a period of Fifty (50) years. Who prepared the docket entry, from which the commitment record was taken, is unclear. In conformance with the commitment record, the Division o f Correctio n initially, and prob ably routinely, prepared a Sentenc e and D etainer Status Chang e Report showing that M ateen s senten ce had been reduce d on M arch 19 , 1982, f rom life to 50 yea rs. Only two poss ible conclusions can flow from these facts. Either the docket entry, and thus the comm itment record that was prepared from it, was incorrect or Judge Levin -- an 3 experienced, competent trial judge, we ll-versed in criminal sentencing, w ho had already acknowledged that he had no authority to impose any sentence other than life imprisonment nonetheless took leave of his senses and imposed a 50-year sentence that he knew was illegal. Given these two possibilities even if that were all that the record revealed I would have not the s lightest h esita tion in co nclu ding that t he docket en try was clearly in error. But that is not all that the record reveals. In October, 1982, the Chairman of the Parole Commission, puzzled by the Division of Correction s change of status report, wrote to Judge Levin seeking clar ification. In his letter, the Chairman noted that the Code required a life sentence for first degree murder, and he inquired whether it was Judge Levin s inte nt to senten ce [Ma teen] to life imprisonment and suspend all but 50 years or was [Mateen] found guilty of a lesser count and sentenced to 50 years incarceration? Judge Levin replied, stating clearly that it was my inten tion to sentence him to lif e and su spend all but fif ty years. Based on Judge Levin s letter, the Division of Correction prepared a new, corrected change report to reflect the sentence as Life suspend 50 yrs. Mateen, of cou rse, wa s not ha ppy, so, o n April 1, 1984, he wrote to Judge Levin, inquiring about the sentence. Judge Levin responded five days later, again making very clear what he had done: The sentence I gave you at your resentencing on March 19, 1982 was life w ith all but fifty years suspended. Under Maryland law when a person is found guilty of first degree murder the judge must sentence h im to life imp risonmen t. 4 Howeve r, the judge can suspend part of that sentence, which I did in your case. Your commitment order has been rewritten by the clerk s office in order to reflect what I stated above and remov e any con fusion that exis ts abou t your sen tence. A copy of Judge Levin s letter was filed with the clerk and, based on it, the Clerk prepared a new, corrected Commitment Record, stating: As result of a Post Conviction Proceedings ruled on by Judge Pines, that, Jerome A. Williams be remanded to this court for Re-Sentencing by Judge Levin in this case, the following sentence was handed down[:] Prisoner is committed to the jurisdiction of the Commissioner of Correction commencing on 9 September 197 2 for a period of SENTENCE CHANGED TO READ: Balance of Natural Life and all but Fifty (50) years suspen ded. Not satisfied, Mateen again wrote to Judge Levin, on November 23, 1984, seeking clarification. Judge L evin respo nded on Decem ber 13 that c larification rea lly was not needed. He reiterated that he had imposed a life sentence and suspended all but 50 years. In 1990, Mateen wrote to Judge Levin fo r the third time, a nd, for the th ird time, Judg e Levin responded that your actual sentence was amen ded in 1 982 fr om life , to life, with all but 50 years s uspen ded, to comm ence o n Septe mber 9 , 1972. Four times, Judge Levin, in writing, made absolutely clear that the effective sentence was life imprisonment, with all but 50 years suspended. Based on that pronouncement, the clerk issued a revised commitment showing that to be the sentence. In so doing, the C ourt effectively corrected the clearly erroneous d ocket en try, as this Court acknowledges the trial court had the au thority to do. It is the only possible construction consistent with (1) law, (2) 5 common sense, and (3) what Judge Levin said he had done. Yet this Court, raising to the height of Mt. Sinai the initial cryptic and clearly erroneous docket entry of an unknown clerk, does not believe Judge L evin. It gives no weight to w hat he said four times he had done. It gives no weig ht to the fact that, if indeed, he actually imposed the illegal sentence of 50 years in 1982, that illegal sentence the erron eous docket entry was corre cted whe n, in conformance with Judge Levin s letter to Mateen, which was filed in the record, the clerk issued a revised commitment record in 1984. In some form of misguided empathy for a first degree murderer, this Court concludes that Judge Levin either was not telling the truth or that he did not know what he wa s doing . That, to me, is unac ceptable. T here is no ra tional basis in th is record to conclude that Judge Levin imposed a sentence of 50 years a sentence he knew would be illegal and a sentence that, on four separate occasions, he said he did not impose. The Cou rt s d esce nt into W onderlan d pro ceed s fur ther with its an alysis of why t he illegal sentence that was never, in fact, imposed cannot be corrected because the State has no right to appeal from it. The Court acknowledges that § 12-302(c)(2) of the Courts and Judicial Proceed ings Article p ermits the Sta te to appeal from a final judgment in a criminal case if the tri al judge failed to impos e the sen tence sp ecifica lly manda ted by the code. Notwithstanding its recognition that the only lega lly permissible sentence, in both 1972 and 1982, was life imprisonmen t, the Court h olds that, bec ause the law permitted Ju dge Lev in to suspend all or part of that sentence, it really was not a sentence specifically mandated by the code. That, to me, is utter sophistry. The f act that execution of the only pe rmissible 6 sentence, or part of that sentence, may be suspended does not make the sentence itself any less mandated. When a judge imposes a sentence and suspends execution of all or part of it, the effective sentence is and remains what the judge has imposed. Suspension of execution merely allows the defendant to serve part of t hat sen tence o utside th e prison walls. See Moats v. Scott, 358 Md. 593, 594-97, 751 A.2d 462, 463-64 (2000). The effect of the Court s pronouncement in this case is that, unless the Legislature has specifically precluded suspension of a sentence, there are no more mandated sentences in Maryland for purposes of § 12-302(c)(2). In its convoluted reasoning, the Court has effectively repealed that statute. Judges C athell and R aker have authorized me to state th at they join in this dis sent. 7 Circuit Court for Baltimore City Case No. 24-H-97303901/CH-1455 IN THE COURT OF APPEALS OF MARYLAND No. 121 September Term, 2002 MUHSIN R. MATEEN v. MARY ANN SAAR, et al. Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Dissenting opinion by Raker, J. Filed: August 4, 2003 Raker, J., dissenting: The dissenting opinion written by Judge Wilner sets out a full basis for rejecting the holding and analysis of the majority. I join his opinion in full. I write separately to add a few observations about the majority analysis and also to emphasize that the rule of lenity is inapplicable to what I believe is a mandatory sentence. Without answering the certiorari questions,1 the majority holds that the State may not challenge this illegal sentence on appeal and that the Circuit Court s commitment order and DOC sentence change is of no legal force or effect. See maj. op. at 23. I believe this holding is both wrong and unfair. It is unfair because without a hearing and without giving the State the opportunity to argue the issue or to even respond, the Court, sua sponte, determines that the State does not have a right to appeal this admittedly illegal sentence. The majority is wrong because the sentence of life is a mandatory sentence; if a trial court imposes anything but a life sentence under the circumstances presented herein, the sentence is unlawful and the State has a right to appeal. A mandatory sentence is one where, regardless of any other circumstance, a judge is required to impose a particular sentence. In Maryland, the Legislature has mandated that the 1 The majority sets forth the following two questions petitioner presented in his certiorari petition: I. Was Judge Levin s sentence ambiguous and under the rule of lenity should [it] be construed as fifty years from September 9, 1972? II. Was petitioner deprived of due process rights and a hearing on his writ of habeas corpus based on court errors? required sentence for first degree murder shall be life imprisonment. See Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 413 (re-codified at Maryland Code (2002) § 2-201(b) of the Criminal Law Article). The trial judge is forced to impose that sentence. As Judge Wilner points out, [t]he fact that execution of the only permissible sentence, or part of that sentence, may be suspended does not make the sentence itself any less mandated. Diss. op. at 6-7. The fact that this Court has said that a trial judge may suspend a portion of that sentence does not transform the sentence into one that is discretionary. See State v. Chaney, __ Md. __, __, 825 A.2d 452, __ (2003) (pointing out that one must pass a sentence before one can suspend it ). The mandatory sentence in this case may be contrasted with a mandatory-minimum sentence. See e.g., Maryland Code (2002) § 4-205 of the Criminal Law Article, captioned Other limitations on sentencing. A sentence that is a mandatory minimum sentence is one in which the judge has no authority to make a downward departure from a statutory minimum. Therefore, the trial judge may not suspend a portion of such a sentence if doing so would reduce it below the mandatory minimum. It is true, therefore, that a trial judge has more latitude with regard to the execution of a mandatory sentence than the execution of a mandatory minimum sentence. Although execution may be subject to the trial court s deference, the sentence itself is nonetheless mandatory. Moreover, to the extent that the majority relies on the rule of lenity to justify its result, the majority is wrong because the rule of lenity has no application whatsoever to the issue 2 before the Court. See maj. op at 11 (stating that [i]f 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 ). The rule of lenity is inapplicable to a mandatory sentence. Accordingly, I dissent. 3

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