Pollard v. State

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Pollard v. S tate Number 22, September Term, 2005 HEADNOTE: ILLEGAL SENTENCE: Petitioner contends that the trial judge erred in 1974 when he imposed a life sentence without expressly recognizing that the entire sentence, or a portion of it, could have been suspended. We hold consistent with our opinion in Wilkins v. Sta te, __ Md. ___, __ A.2d ___ (filed June 9, 2006), that the alleged error does not inhere in the sentence itself and is thus not an illegal sentence within the meaning of Maryland Rule 4345(a). Circuit Co urt for Ha rford Co unty Case # 12-K-73-004779 IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term, 2005 JONATHAN F. POLLARD v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Greene Rod ows ky, Lawrence (retired, specially assigned), F. JJ. Opinion by Greene, J. Bell, C.J., Raker and Harrell, JJ., Concur Filed: August 2, 2006 Rec ently, in State v. Wilkins, ___Md. ___, ___A.2d___ (slip op. at 12) (filed June 9, 2006), we held that a sentencing judge s failure to recognize his or her right to exercise discretion in the imposition of a sentence does not render the sentence illegal within the meaning of Md. Rule 4-345 (a). In the present case, the Court of Special Appeals affirmed the judgment of the Circuit Court for Harford County which denied the motion of Jonathan F. Pollard ( Petitioner ) to correct an illegal sentence. The rationale presented by Petitioner in support of his motion to correct an illegal sentence is essentially the same as that presented by Ralph Edward W ilkins in support of his motion in Wilkins, i.e., that the sentencing judge did not recogn ize his discretio n to suspend a portion of the sentence imposed. Because the alleged illegality did not inhere in the sentence itself, the motion to correct an illegal sentence is not appropriate. The sentence imposed was neither illegal, in excess of that prescribed for the offense for which Petitioner was con victed, nor w ere the term s of the sen tence itself statutorily or constitutionally invalid. Therefore, we affirm the judgments of the Court of Special A ppeals and th e Cir cuit C ourt for H arfo rd County. Background Petitioner was indicted October 2, 1973, on charges of first-degree ra pe and as sault with intent to rape and other related charges. He ap peared in the Circuit Co urt for Harford County on M ay 28, 197 4, an d entered a guilty plea to first-degree rape. Three ca ses were called for trial, criminal case numbers 4777, 4778, and 4779. In exchange for his plea of guilty to first-degree rape in case number 4779, the State agreed to stet the other outstanding charges of robbery and sodomy as alleged in the other two cases pending b efore the c ourt. Upon accepting the plea of guilty, the court ordered a pre-sentence investigation and held a sentencing hearing on July 26, 1974. The court sentenced Petitioner to a term of life imprisonment for first-deg ree rape an d ordered an exam ination at Pa tuxent Institution.1 Between 1975 and 1985, Petitioner filed three separate petitions for post conviction relief, which the court considered an d denied. In Dece mber 1974, the co urt considered Petitioner s motion for modification of sentence and denied that motion. In 1990, Petitioner filed a request with the court entitled, Motio n For C hange of Sen tence. The court in effect denied that motion , as there is no record in the file that it was ever granted. Thereafter, on December 17, 2002, approximately twenty-eight years after imposition of sentence, Petitioner filed pro se in the Circu it Court for H arford C ounty a M otion to Co rrect An Ille gal Or Irregular Sentence. The court set the matter for a hearing in open court where the Petitioner appeared with coun sel. After consideration of the exhibits and the arguments of counsel for the State and the defend ant, the court denied the motion. Through counsel, Petitioner filed a timely appeal to the Court of S pecial Appeals. In an unreported opinion, the intermediate appellate court affirm ed the judg ment of th e Circuit C ourt. Throu gh coun sel, Petitioner filed 1 Until repealed in 1977, the Md. Code (1957, 1976 Repl. Vol.), Article 31B § 5, authorized a trial judge, after conviction of the defendant, to request an examination of the defendant at Patuxent Institution to determine whether the defendant was a defective delinquent, i.e., an individual who, by the demonstration of persistent aggravated antisocial or c riminal beh avior, evide nces a pro pensity towar d criminal ac tivity, . . . as to require . . . confinement and treatment [at the Patuxent Institution]. Dir. of Patuxent Inst. v. Dan iels, 243 Md. 16, 33 , 221 A.2d 397 , 407 (1966). 2 a petition for writ of certiorari and we granted the petition. Pollard v. S tate, 387 Md. 462, 875 A .2d 767 (2005 ). Discussion Petitioner contends that the sentencing judge abu sed his discretion by imposing a life sentence and failing to expressly recognize that all or a portion of the sentence could have been suspended. Specifically, Petitioner asserts that it was unclear from the record that Judge Close kn ew that he could suspend a portion of the life sentence. Rather, that it was obvious from [the] sentencing court s language that it believed that it had two, and only two alternative sentences: a sentence of between 18 months and 21 years or a life sentence. In response to this contention, the Court of Special Appeals stated that because judges a re presumed to know the law . . . we will not infer an error by the [sentencing judge], absent an affirmative indicatio n tha t he b eliev ed he lac ked the d iscre tionary auth ority to suspend [petitioner s] sentence. Adopting the rationale of th e Court of Special A ppeals, the S tate contends that the intermediate appellate court s judgment should be affirmed because the Circuit Court correctly denied Petitioner s motion to correct his life sentence and that there is no ind ication th at the trial judge w as unaw are of h is autho rity. We view the matter differently, primarily, because our focus is on the nature of the sentence actually imposed, rather than on what the sentencing judge said or did not say about his discretionary authority, during the course of that sentencing proceeding. Further, we emphasize that the sentencing court is not required to specify, either before, during or after 3 the imposition of a sentence, that it does or does not have the discretion to suspend any portion of a sentence. Therefore, it is not material, to the question of legality of a sentence, that the sentencin g judge did not acknowledge his discretion under § 641A to suspend a portion of the life sentence. See Wilkins, slip at 8; see also State v. Chaney, 375 Md. 168, 179, 825 A.2d 452, 458 (2003) (holding that merely because a sentencing jud ge s failure expressly and consecutively to acknowledge the existence of a second statute permitting [the] suspension of . . . [a life sentence, is not a] sufficient [basis] to infer that [the sentencing judge] was u nawa re of its p otential a pplicatio n to the s entenc e he im pos[e s] . . . ). Petitioner was co nvicted of first-d egree ra pe. The statute in effect in 19 74 specific ally provided that [e]very person convicted of a crime of rape . . . shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more th an twe nty one yea rs . . . . Md. Code (1957, 1971 Repl. Vol.), Article 27 § 461. Pursuant to statutory authority, the sentencing judge cou ld have im posed a life sentence, o r a sentence for a defin ite term of years. The sentence imposed was life and was a senten ce perm itted by law . Wilkins, slip op. at 7. 4 Pursuant to another statutory provision, the sentenc ing judge w as authorize d, in the exercise of judicial discretion, to suspend a portion of the sentence imposed. Md. Code (1957, 19 71 Rep l. Vol.), Art. 27 § 641A provides, in r elevant par t:2 Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions a s the courts deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years. The judge did not suspend any portion of the life sentence imposed . Immedia tely, prior to imposing the sentence, Judge Close asked: 2 Effective October 1, 2001, § 641 A was repealed and re-enacted without substantive change as Md. Code (1957, 2001 Repl. Vol), §§ 6-221 thru 6-222 (a) of the Crimin al Proc edure A rticle. Section 6-2 21 reads, in p ertinent part: On entering a judgment of conviction, the court may suspend the imposition or execution of sentence and place the defendant on p robation on the cond itions that the court consid ers prop er. In addition, § 6-222(a), in pertinent pa rt, states: A . . . court m ay: (1) impose a sentence for a specified period and provide tha t a lesser period be served in confine ment; (2) suspend the remainder of the sentence; and (3) order probation for a [period] longer than the sentence but not [in ex cess of five years]. 5 THE COU RT: M r. Pollard, is there anything tha t you wish to say in your own behalf, any reason that you wish to give to the Court why it should be lenient in imposing a sentence upon you? PETITIONER: I would like to say that I am sorry for what I done [sic]. Judge Close then imposed sentence: THE COU RT: Le t me just say this to you, the presentence investigation, the report that I have, doesn t show anything bad with regard to your background. You apparently have never committed any offense against the law previously. I suppose you had a very short time in employment as a cook before you entered the Marine Co rps, [where he was stationed at Aberdeen Provin g Gro unds,] a nd then came a ll this. Now, Jonathan , the Court h as some re ason to believe - at least there have been certain allegations made that you may have had similar involvement such as this with the v ictim in this case in . . . the area, and that is really one of the reasons that the sentence that will be imposed upon you is of the nature that you will hea r. * * * * THE COURT : Now, the sentence of the Court is that you be committed to the custody of the Commission of Correction for the perio d of you r natura l life . . . . In State v. Wooten, 277 Md. 114, 115, 352 A.2d 829, 831 (1976), interpreting § 641A, this Court held that it was within the discretion of the trial court to suspend all or a portion of a life sentence because the statute grants that authority to the judge. In Williamson v. State, 284 Md. 212, 215 395 A.2d 496, 497 (1979), we held that the sentencing judge abused his discretion in failing to consider that he had the authority to suspend any part of a life sentence. In Wilkins, we explained that the issue in Wooten was substantive (whether the 6 trial judge had authority to suspend a portion of a life sentence) and in Williamson the issue was procedural (whether a trial judge s failure to exercise discretion was an abuse of discretion). Slip op. at 13. Moreover, if the error alleged in the sentencing proceeding involves an abuse of discretion, that error may be appropriately raised on direct appeal or as a matter of post conviction relief. Id.; see also Beverly v. State, 349 Md. 106, 127, 707 A.2d 91, 101 (1998) (finding reversible error, resulting in a remand for a n ew sentencing w here the sentencing judge abused her discretion in failing to recognize that she had d iscretion to sentence in accord with the plea a greement ); Maus v . State, 311 Md. 85, 108, 532 A.2d 1066, 1077 (1987) (n oting that w hen a cou rt must exerc ise discretion, f ailure to do so is error, and ordin arily requires reve rsal. ). Ultimate ly, in Wilkins, we held that a trial judge s alleged failure to exercise discretion in the imp osition of a sentence do es not render the sentence illegal within th e contem plation of a motion to correct an illegal se ntence . See slip op. at 17. (filed June 09, 2006 ). Similarly, in the pre sent case, the trial judge s fa ilure to exercise discretion in the imposition of a life sentence did not render the sentence illegal within the me aning o f Md . Rule 4 -345(a ). Conclusion In our review of the sentence imposed, we con clude that it was a sentence permitted by law. The alleged error does not inhere in the sentence itself; and thus is not an illegal 7 sentence within the meaning of Rule 4-345 (a).3 If there was some defect in the sentencing proceeding, that alleged d efect could have been raised on direct appeal from the conviction and sentence imposed, or at the very least could have been raised in a petition for post conviction relief. A motion to correct an illegal sentence, however, may not be used as an alternative method of obtaining belated appellate review of the proceedings that led to the impos ition of j udgm ent and senten ce in a c riminal c ase. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED WITH COS TS. 3 Maryla nd Rule 4-3 45, Sentencing Revisory p ower of co urt. (a) Illegal sentence. The court may correct an illegal sentence at any time. 8 In the Circu it Court for H arford C ounty Case No. 12-K-73-004779 IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term, 2005 JONATHAN F. POLLARD v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Greene Rod ows ky, Lawrence F. (retired, specially assigned), JJ. Concurring Opinion by Raker, J., which Bell, C .J., joins. Filed: August 2, 2006 Raker, J., concurring, in which Bell, C.J., joins: I join in the opinion of the Court holding that the alleged error in this case does not inhere in the senten ce itself and is thus not an illegal sentenc e within the meaning of Rule 4345(a). Accordingly, the matter may not be raised in a motion to correct an illegal sentence. I write separ ately to state that if this Court were to reach the merits, I would reverse the judgment of the Circuit Court and remand the case for a new sentencing because I do not believe that the trial judge was aware that he had the disc retion to suspend a portion of a life sentence. In this regard, I disagree with the vie w expre ssed by Judg e Harrell in h is concurring opinion. While I subscribe generally to the proposition that trial judges are presumed to know the law and to apply it properly, I do not believe that the record in this case supports that conclusion. Petitioner was sentenced in 1974, two years before this Court made clear in State v. Wooten, 277 Md. 114, 352 A.2d 829 (1976), that trial judges had discretion to suspend a portion of a m andato ry life sente nce. I do not agree with the concurring opinion s view that Wooten merely clarified the law as to whether a portion of a life sentence could be suspended. See conc. o p. at 5. Wooten did mu ch mo re. When the Court held in Wooten that Md. Code (1 957, 197 1 Repl. V ol.), Art. 27 § 641A g ranted sente ncing judg es discretion to suspend life sentences, it resolved ambiguities in § 641A.1 1 Unless otherwise noted, all subsequent statutory references herein shall be to Md. Code (1957, 1971 Repl. Vol.), Article 27A. The Wooten court, focusing exclusively on the language in the first sentence of § 641A, overlooked the ambiguity created by the second sentence of § 641A, which provides as follows: The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in exce ss of fiv e years. § 641A (emphasis added). By providing that probation could be granted for a period of time longer than the sentence, this provision creates a basis for believing that the General Assemb ly might have intended sentence as used in § 641A to exclude life sentences, a s it would be impossible to grant probation for a period of time longer than a life sentence. The Wooten court made clear that trial judges had discretion to impose a term of confinement other than life when imposing a life sentence. The Wooten court overlooked another ambiguity in § 641A. It is unclear from the text of § 641A whether it gives a court the power to suspend a portion of a sentence without concurrently imposing probation. The first sentence of § 641A reads as follows: Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and co ndition s as the c ourts de em pro per. Id. (emphasis added ). This sentence is ambigu ous because it could b e read to say that (1) a court may suspend a sentence and a court may impose probation, or it could be read to say -2- that (2) a court may suspend a sentence and imp ose probation, but not on e without the other. 2 Thus, when the Wooten court held that § 641A gave sentencing judges the power to suspend any portio n of an y sentenc e, it resolv ed this a mbigu ity as well. Indeed, this ambiguity was a major focus of the Wooten case. The State argued vociferou sly before both the trial court and the Court of Special Appeals that § 641A was a statute governing probation, and consequently did not grant senten cing judge s discretion to suspend portions of sentences unless the suspension was in conjunction with an imposition of probation.3 At the hearing in the trial court on the State s motion to correct an illegal sentence in Wooten, the following exchange took place b etween the A ssistant State s Attorney and the court: 2 Technically speaking, the ambiguity here arises because the scope of may is ambiguous. It could be that may was intended to modify each clause of the conjunction in the first sentence of § 641A, so that, if clarified, it would read as follows: Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence, and may place the defendant on probation upon such terms and conditions as the courts deem proper. § 641A (alterations in italics). Clarified in this way, it is clear that § 641A gives a court the power to suspend a sentence without concurrently imposing probation. May as used in § 641A, however, could also have been intended to modify the conjunction itself. If understood in this way, then § 641A gives a court permission to suspend a portion of a sentence and concurrently impose probation, but does not give the court permission to do one without the other. 3 Ironically, the position taken by the State in Wooten is in marked contrast to the position taken by the State in the case sub judice. In its brief, the State baldly asserts that [c]ontrary to Pollard s contention, even prior to Wooten, the applicable statutes clearly and unequivocally provided for suspension of all, or a portion of, any life sentences. -3- [STAT E S ATT Y ]: Well, your H onor, fram ing the issue so the Court sees my point of view, I think the issue in this case is can the Court suspend the execution of the sentence. [COU RT]: Well, 641A says, Upon entering a judgment of conviction, . . . w hich w as don e . . . the Court having jurisdiction, . . . and I had it . . . may suspend the imposition or execution of sentence . . . and then it goes on. [STAT E S ATT Y]: . . . and place the defendant on probation . . . [COU RT]: Then it says, The Court may impose a sentence for a specified period . . . well, the sentence of life was imposed. . . . and provide that a lesser period be served in confine ment, . . . [STA TE S A TT Y] : Your H onor, you stop ped, respec tfully [COURT]: Go ahead. [STAT E S ATT Y ]: And . . . suspend the remainder of the sentence and grant probation for a period . . . not in excess of five years. Now that was n ot done in th is case, no probation was given in this case , and I w ent to the Chap ter . The State made similar arguments before the Court of Special Appeals. The opinion of the Court of Special Appeals in Wooten stated as follows: In sentencing Mrs. W ooten, the co urt did not place her on probation upon any terms and conditions in suspending a part of the time to be sp ent in co nfinem ent. Th e State s ugges ts, and argued below, that § 641A requires that a defendant be placed on probation when a sentence is imposed for a specified period but a lesser period to be served in confinement is provided by the cou rt. State v. Wooten, 27 M d. App . 434, 44 2, 340 A .2d 308 , 313 (1 975). -4- After the Court of Special Appeals rejected this argument, the State, in its brief filed with this Court in Wooten, pointed to another pro blem crea ted by reading § 641A to grant a sentencing judge unlimited discretion to suspend a portion of any sentence, including a life sentence. The State pointed out that this interpretation of § 641A created a conflict with Md. Code (1957, 1978 Repl. Vol.), Art. 41, § 122(b), which provided that a person sentenced to a life sentence must serve fifteen years of the sentence until being eligible for parole, because the trial judge in Wooten had suspended all but eight years of Wooten s life sentence.4 In its brief, the State argued as follows: Applying the provisions of [Art. 41 , § 122(b)] to [Woote n], it appears that she w ill not be eligible for parole consideration until she has served fifteen years of the life sentence imposed by [the trial judg e]. Undoubtably she will seek to be released after the expiration of the eight years sh e was ord ered to spen d in confinem ent, or sooner, and will thus place the Commissioner of Correction s in the unten able position of either h aving to disregard [the trial judge s] suspension order or to violate the provisio ns of A rticle 41 , Section 122(b ). The comments made by the Wooten trial court also support the position that the issue of whether § 641A permitted a trial judge to suspend a portion of a life sentence was far from 4 At the time, subsection (b) read in full as follows: No person who has been sentenced to life imprisonment shall be eligible for parole consideration until he shall have served fifteen years or the equal of fifteen years when considering the allowances for diminution of period of confinement provided for in Article 27, § 700 and Article 27, § 638C, of the Annotated Code of Maryland. Prisoners serving terms of life imprisonment shall only be paroled with the approval of the Governor. Md. Code (1957, 1978 Repl. Vol.), Art. 41 § 122(b). -5- settled prior to our decision in Wooten. In its memorandum opinion in support of its Order denying the State s m otion to corre ct an illegal sen tence, the trial c ourt observed that the questions presented by the sentencing in this case, as well as in other cases in the state of which this court has been informally advised, need resolution by a definitive appe llate decisio n. It is difficult to believe that the trial court would express such an opinion if the definitive appellate decision on this issue that we ultima tely handed down in Wooten were as unre marka ble as th e conc urring o pinion claims. This conclusion that Wooten did more than clarify an unam biguous s tatute is further reinforced by reference to contemporaneous historical materials outside the Wooten record. In 1974, a joint committee of the Maryland Judicial Conference and the Maryland State Bar Association issued a report proposing detailed reforms to the Maryland criminal justice system. R EPORT ON S TANDARDS O F C RIMINAL J USTICE (1974). Th is joint committee consisted of seven members of the Maryland Judicial Conference, nine members of the Maryland State Bar Association, and five fa culty mem bers of Marylan d law s chools . Id., Foreword at 1. In this repo rt, the comm ittee recomm ended tha t trial courts gen erally should have the power to suspend sentences, but that courts should not have such powers f or certain serious offen ses, inclu ding fir st degre e murd er and f irst degr ee rape . See id., Comm ittee Report on ABA Sentencing Alternatives and Procedu res at 21-22 . Most ge rmane to present purposes, the committee, in conjunction with its discussion of this proposal, observed the -6- following about the state of Maryland law governing the powers of trial courts to suspend sentences: Suspension of sentence and probation is apparently available at present in Maryland as a possible disposition for all offenses, although it has never been tested whether it is available under the sentencing structure for such offenses as first degree murder (see Section 413 of A rticle 27) or rape (see Section 468 of Article 27). Id. at 21 (emp hasis adde d); see also id., Committee Report on ABA Standards on Probation at 8 (observing that [t]he present statutory sections governing suspension of sentence and probation at the circuit court level are overlapping and confusing ). That a committee composed of representatives of the Maryland ju diciary, bar, and le gal academ ic comm unity would represent Maryland law as being unsettled on this point and advance a proposal to clarify it lends strong support to the claim that a m ember of the Marylan d legal com munity would not have b een awa re prior to our decision in Wooten that § 641A granted trial judges unlimite d pow er to sus pend p ortions o f senten ces. The revolutionary nature of our opinion in Wooten is further evidenced by the fact that trial judges resisted applying the suspension powers granted by our interpretation of § 641A even after Wooten had been decided. This resistance is amply demonstrated by the facts of this Court s opinion in Williamson v. S tate, 284 Md. 212 , 395 A.2d 496 (1979). In Williamson, we vacated a life sentence imposed for first degree murder and remanded for resentencing where the sentencing judge refused to recognize his discretion under § 641A to susp end a p ortion o f the de fenda nt s life s entenc e. Williamson, 284 Md. at 213-15, 395 -7- A.2d at 496- 97. Defend ant s coun sel called the s entencing judge s atten tion to Wooten, but the sentencing judge flatly refused to consider suspension of a portion of the defendant s life sentence, expressing his view that the General Assemb ly did not intend § 641A to apply to life sentences because it undermined the General Assembly s intention to make first degree murder punish able by lif e. Id. at 213-14, 395 A.2d at 496. The Co urt, quite corre ctly, held that the sentencing judge committed reversible error by abdicating his discretion under § 641A, as interpreted in Wooten. Id. at 215, 395 A.2d at 497. Nonetheless, the sentencing judge s extreme position is quite telling, as it strains credulity to think that the sentencing judge would so forthrightly question the result in Wooten if its holding were as routine as the concu rring op inion m akes it o ut to be. The colloquy between defense counsel and the judge support the finding that the trial judge believed that he had only two options: to impose a life sentence, or to sentence petitioner to a term of incarceratio n somewhere between eighteen months and twenty one years. When a court m ust exe rcise dis cretion, f ailure to do so is usually re versible error. See e.g., Maus v . State, 311 M d. 85, 108, 532 A.2d 1066, 1077-78 (1987). The fact that petitioner was called upon to allocute before sentence was imposed has no bearing on the issue before this Court; all defendants have an absolute right to allocute, irrespective of wheth er the jud ge has d iscretion to impo se one s entenc e or ano ther. -8- Based on the reco rd in this case, if this Court w ere to reach the merits, I w ould conclude that the trial judge did not exercise his discretion in imposing the sentence, and therefore, petitioner would be entitled to a new sentencing. Chief Judge Bell has authorized me to state that he joins in the views expressed in this opinio n. -9- Circuit Co urt for Harfo rd Coun ty Case # 12-K-73-004779 IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term, 2005 JONATHAN F. POLLARD v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Greene Rodowsky, Lawrence F. (Retired, speciall y assigned), JJ. Concurring Opinion by Harrell, J. Filed: August 2, 2006 For the reasons stated in my concurring and dissenting opinion in Wilkins v. Sta te, __ Md. __, __ A.2d __ (concurring and dissen ting op.) (filed 9 June 2006 ), I disagree with the reasoning of the Majority opinion here. I nonetheless would affirm the judgment of the Court of Specia l Appeals , which af firmed, on the merits, the Circuit Court s denial of Pollard s Motion to Correct Illegal Sentence. I believe that a sentencing judge commits error if he or she refuses to acknowledge his or her p ower to suspen d com pletely or p artially a sen tence im posed . Williamso n v. State, 284 Md. 212, 215, 395 A.2d 496, 497 (197 9); Wooten v. State, 277 Md. 114, 117-18, 352 A.2d 829, 832 (1976). The allegation of error in the present case, like the allegation of error in Wilkins, is the imposition of a sentence in a manner that violates a statute.1 Maryland Code (1957, 1971 Repl. Vol.), Article 27, § 641A. Hence, if made manifest on the record, the judge s refusal to recognize his or her power to suspend all or part of an imposed sentence results in an illegal senten ce bec ause th e defic iency inh eres in th e senten ce. Wilkins v. Sta te, __ M d. __, __ A.2d _ _ (200 6) (con curring and dis senting op. at 4- 5). 1 Maryland Code (1957, 1971 Repl. Vol.), Article 27, § 641A provided, in pertinent part: Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years. Unless otherwise provided, all statutory references are to Article 27, § 641A. Because the allegation of error propo sed by Pollard inheres in the sentence itse lf, I would reach the merits of the case. Pollard argues that the trial judge erred on 26 July 1974 when he imposed a life sentence without ex pressly recognizing that the entire sentence, or a portion of it, could have been suspended. Pollard contends that the record of the exchange between the trial judge and himself at the guilty plea proceeding earlier on 28 May 1974 demonstrates that the trial judge was unaware two months later of his discretion to su spend all or a portion of the life sentence ultimately imposed. Evidence of this, he claims, can be found when the court outlined the range of possible sentences that it could impose, as required before accepting a guilty plea, but failed to state expressly that it could suspend all or any part of such a sentence: THE COURT: Do you understand that if the Court a ccepts this plea that you could, in the discretion of the Court, either receive a life sentence, that is to be ordered to the custody of the Commissioner of Correction for a period of your natural life, or in the alternative, that you might receive anywhere from eighteen months to twenty-one years in prison, do you understan d that? [MR. PO LLAR D]: Yes, sir. -2- THE COURT: Do you understand that if the Court a ccepts this plea it cannot promise you what the sentence may be? [MR. PO LLAR D]: Yes, sir. We recently considered a similar claim in State v. Chaney, 375 Md. 168, 179, 825 A.2d 452, 458 (2003 ). In 1978, two years after Wooten was decided, Chaney was sentenced in the Circuit Court for Calvert County to life imprisonment for a conviction of first-degree murder. Chaney, 375 Md. at 171, 825 A.2d at 453. Twenty-two years after his sentencing, Chaney moved in the C ircuit Court f or a new sentencing proceedin g, arguing th at the sentencing judge had not considered suspending any part of his sentence, as was allowed by Article 27, § 64 1A, w hich w as in eff ect in 19 78. Id. Chaney, like Pollard, cited the absence of an affirmative statement by the sentencing judge acknowledging contemporary awareness of the discretion to suspend part or all of the senten ce. Chaney, 375 Md. at 173, 825 A.2d at 456. We reversed th e Court o f Special Appeals s decision to grant a new sentencing hearing. Chaney, 375 Md. at 177, 825 A.2d at 457. Applying the established principle that judges are presumed to know the law, we stated: Chaney fails to provid e us with any evidence sufficient to rebut this presumption. There is nothing in the record to negate the presumption that the sentencing jud ge knew and prop erly -3- applied the law. He did not misstate the law . In fact, as both we and the intermediate appellate cou rt agree, he correctly stated that the only sentence available under Art 27, § 413 and Bartholomey [v. State, 267 Md. 175, 297 A.2d 696 (1972)] was life imprisonment under these facts. The Wooten decision, clarifying that life sentences were subject to possible subsequent suspension, was decided two years prior to Chane y s conviction. Nothing has been presented that rebuts the presumption that the sentencing judge was aw are of that decision. (E mphasis in original). Chaney, 375 M d. at 184, 82 5 A.2d a t 461. Pollard contends that, because he was sentenced two years before Wooten was decided, we should not apply to his case the presumption that the sen tencing judge k new o f and e xercise d prop erly his sen tencing discretio n. I would conclude that Pollard s argument fails. The sentencing judge s possible lack of prescience in 1974 in foreseeing Wooten is not materia l.2 Our decision in Wooten merely clarif[ied] that life sen tences w ere sub ject to po ssible su bsequ ent susp ension , notwithstanding the unambiguous language of the statute to that effec t. Chaney, 375 Md. at 184, 825 A.2d at 461. The statute was in existence and effective before Wooten was decided. 2 In a small twist of irony, the sentencing judge in Pollard s case was later specially assigned to this Court in 1978 and participated in deciding Wooten. -4- More importantly, A rticle 27, § 64 1A wa s in effect w hen the co urt sentence d Petitioner in We characterized, in Wooten, the language of Article 27, § 641A as clear, 1974. unambiguous and unqualified. Wooten, 277 Md. at 117, 352 A.2d at 831. Under the principle that judges are presumed to know the law and apply it properly, I would presume that the sentencing judge kne w of A rticle 27, § 64 1A in 19 74 and co nsidered it during senten cing. I would conclude also that Pollard s argument to rebut this presumption finds no support in the record. The inquiry at the plea acceptance stage between the sentencing judge and Pollard, when the sentencing judge correctly stated the law regarding the available range of finite sentences for a conviction of rape, does not indicate necessarily, by negative implication, a lack of aw areness of Article 27, § 641A. A s we note d in Chaney, tem pora lly, one must pass a sentence before one can suspend it. Chaney, 375 Md. at 179, 825 A.2d at 458. Althoug h the senten cing judge did not state expressly that he was e xcising his discretion not to suspend or even to re fuse to con sider suspe nsion, we do not req uire him to do so. Id. ( The issue before us, therefore, is whether the sentencing judge s failure expressly and consecutively to acknowledge the existence of a second statute permitting a suspension of that sentence, [Article 27 , § 641A], [ ] is sufficient to infer that he was u naware of its potential app lication to the sentence he imposed in the case sub judice. We conclude that it is not. ).3 Here a gain, w e shall n ot draw negativ e infere nces fr om this silent rec ord. 3 In Chaney, we discussed the purposes and implications of the established principle that (continued...) -5- Chaney, 375 Md. at 184, 825 A.2 d at 461; see also id. ( It is well-settled that, on appeal, the burden of es tabli shin g error in the lo wer court res ts square ly on the appellant. ) (quoting Bradley v. Hazard Technology Co., 340 M d. 202, 2 06, 655 A.2d 1 050, 10 52 (19 95)). Moreover, even though n ot critical to the analysis, I would emphasize tha t the record includes some arguable indicia of support for application of the presumption that the sentencing judge k new th at he co uld sus pend a ll or a po rtion of the sen tence. F ollowin g acceptance of the guilty plea, the sentencing judge postponed imposition of sentence for the purpose of obtaining a pre-sentence investigation tha t would assist the court in m ak[ing] a more appropriate sentence than might otherwise be mad e. Also, im mediately prior to imposing sentence, th e sentencin g judge inq uired: Mr. Pollard, is there anything that you wish to say in your own behalf, any rea son that you w ish to give to the Court w hy it should be lenient in imp osing sente nce upon you. Pollard re sponded : I would like to say that I am sorry for what I done. Of course, this colloquy equally may be argued to support an inference that the senten cing judge was con sidering on ly whether to sentence Pollard somewhere in the lower portion of the range of 18 months to 21 years of incarceration, versus life impriso nmen t. The point remains, however, that the record does not disclose any clear indication that the judge was unaware of, or unreasonably resistant to, consideration of suspension of sentence as an option. I would agree with the conclusion of the Court of (...continued) judges are presumed to know and properly apply the law, which remain relevant today. See generally State v. Chaney, 375 Md. 168, 179-84, 825 A.2d 452, 458-61 (2003). -6- Special Appeals that [t]he request for a presentence investigation, coupled with the judge s inqu iry, demons trate[d] that [th e trial judge] w as well aware of the discretion he posses sed. I would a lso conclud e that Williamso n v. State, 284 Md. 212, 395 A.2d 496 (1979), is clearly distinguishable from the present case. Here, the sentencing judge uttered no comment that would lead us to co nclude tha t he refused arbitrarily or unrea sonably to recognize his discretionary power to suspend all or part of Pollard s life s entence. I w ould therefore affirm the judgment of the Court of Special Appeals. -7- -8-

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