Wilkins v. State

Davon Wilkins v. State of Maryland, No. 112, September Term, 2021, filed January 26,

2022. Opinion by Berger, J.

CRIMINAL PROCEDURE — MARYLAND RULE 4-342 — SENTENCING

JUDGE: Ordinarily, the judge who presided over the trial shall sentence the defendant,

subject to the provisions of Rule 4-361 (which sets forth procedures to be followed when

the original judge is unavailable).

CRIMINAL PROCEDURE — MARYLAND RULE 4-342 — DEFENDANT’S

RIGHT OF ALLOCUTION: Rule 4-342(e) protects a defendant’s right of allocution as

well as, more generally, his right to present information in mitigation of punishment.

CRIMINAL PROCEDURE — MARYLAND RULE 4-342 — DEFENDANT’S

RIGHT OF ALLOCUTION: Where the court provided both parties a full opportunity to

present evidence relevant to sentencing, which included a substantially accurate factual

summary of the crimes, victim impact testimony, expert testimony on behalf of the

defendant, and the defendant’s statement expressing his remorse, the court’s

acknowledgment that, beforehand, it had not familiarized itself with the case did not result

in a constructive denial of the defendant’s right of allocution.

CRIMINAL PROCEDURE — MARYLAND RULE 4-342 — REQUIREMENT TO

STATE ON THE RECORD REASONS FOR THE SENTENCE IMPOSED: The

court ordinarily shall state on the record its reasons for the sentence imposed. Its failure to

do so, however, does not result in an intrinsically illegal sentence, and a claimed violation

of this subsection is subject to the contemporaneous objection requirement.

CRIMINAL PROCEDURE — MARYLAND RULE 4-361 — REPLACEMENT OF

JUDGE: Rule 4-361 sets forth the procedures to be followed when the original judge is

unavailable in a criminal case. Part (a) of the rule governs the situation where the trial or

plea proceeding has already concluded, whereas part (b) of the rule governs where a judge

must be replaced during a jury trial.

CRIMINAL PROCEDURE — MARYLAND RULE 4-361 — REPLACEMENT OF

JUDGE — REQUIREMENTS IMPOSED ON REPLACEMENT JUDGE: Rule

4-361(a) authorizes the replacement judge to sentence the defendant and perform any other

act or duty if satisfied that he or she can properly do so. In contrast, Rule 4-361(b)

authorizes the replacement judge to preside over an ongoing jury trial upon certifying that

he or she has become familiar with the record of the trial. Ordinarily, a judge who takes

over during a jury trial must read, or have read to him or her, a written transcript of the

previous proceedings, or in the case of an audio or video record, listen to the prior

proceedings; and, moreover, the judge must then file, or dictate into the record, a

certification that he or she has become familiar with the record of trial and include in this

certification the means used to gain familiarization. The requirements imposed on a

replacement judge by Rule 4-361(b) are considerably greater than those imposed by Rule

4-361(a).

CRIMINAL PROCEDURE — MARYLAND RULE 4-361 — REPLACEMENT OF

JUDGE — DISCRETION OF SENTENCING JUDGE: A sentencing judge is vested

with virtually boundless discretion in devising an appropriate sentence. In this case, the

replacement judge, after openly acknowledging that she had not read the trial transcript

prior to the resentencing hearing, but then providing both parties a full opportunity to

present their respective cases, without objection to the manner in which the court

proceeded, did not abuse her discretion in imposing an otherwise lawful sentence.

Circuit Court for Baltimore City

Case No. 111045011

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 112

September Term, 2021

______________________________________

DAVON WILKINS

v.

STATE OF MARYLAND

______________________________________

Berger,

Wells,

Sharer, J. Frederick

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Berger, J.

______________________________________

Filed: January 26, 2022

Pursuant to Maryland Uniform Electronic Legal

Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-01-26

10:46-05:00

Suzanne C. Johnson, Clerk

In 2012, a jury sitting in the Circuit Court for Baltimore City found appellant, Davon

Wilkins, guilty of involuntary manslaughter, use of a handgun in the commission of a crime

of violence, and wearing, carrying, and transporting a handgun. The court sentenced

Wilkins to 10 years’ imprisonment for involuntary manslaughter, a consecutive term of 20

years, the first five without the possibility of parole, for unlawful use of a handgun, and a

concurrent term of three years for wearing, carrying, and transporting a handgun. Those

judgments were affirmed on direct appeal. Wilkins v. State, No. 608, Sept. Term, 2012

(filed Oct. 25, 2013).

Wilkins thereafter sought postconviction relief, and, in 2019, he was awarded a new

sentencing hearing. That hearing was held in 2021 and resulted in the re-imposition of his

original sentence (with the exception that the conviction for wearing, carrying, and

transporting a handgun was merged into that for unlawful use of a handgun). Wilkins now

appeals from that ruling, raising two claims: (1) that the sentencing court violated his right

of allocution and/or Maryland Rule 4-342; and (2) that the sentencing court abused its

discretion in imposing sentence. We shall affirm.

BACKGROUND

We quote our unreported opinion in Wilkins’s direct appeal for context:

On or about 1:00 a.m. on July 1, 2010, the victim,

Renato Broom (hereinafter “Broom”), age 16, was transported

by paramedics from the 700 block of West North Avenue in

Baltimore City to the University of Maryland Shock Trauma

Center. Broom was pronounced dead at 1:28 a.m. The autopsy

revealed that Broom had died from a single gunshot wound.

The cause of death was homicide. More than five months later,

the State charged Wilkins with the murder of Broom and other

related charges.

There was little forensic evidence recovered at the scene

of the shooting, i.e., a single shell casing, two swabs of

suspected blood, several photos taken by the police, and three

one-dollar bills.

The State’s case was based upon the testimony and

identification of Wilkins by two witnesses: A. Simpson and

W. Goode. Neither of the witnesses claimed to be in the

courtyard during the shooting although they were present in the

area that night. Simpson identified Wilkins in a photo array as

the shooter and gave a recorded statement about the events

leading to the incident. Simpson told the police he saw Wilkins

and Broom “fussing about” some money related to a dice

game, and Wilkins “was trying to scare” Broom with a gun and

he shot him. Simpson stated “it was a[n] accident.”

Goode identified Wilkins in a photo array as the person

he overheard saying “it was a[n] accident.” Goode also gave a

recorded statement to this same effect. The photo arrays and

recorded statements were admitted by the trial court over

objection. The statements came in as prior inconsistent

statements to contradict the witnesses’ testimony at trial.

In Simpson’s recorded statement, he claimed to see

everything happen. He saw Broom and his best friend

(Wilkins) playing dice. They started fussing about money,

Wilkins left and came back with a gun; he was waving it

around, trying to scare him (Broom) saying “Yo, give me my

mother fucking money back” and “your life is in my hands.”

Then he (Wilkins) shot his friend – he was trying to scare him.

According to Simpson “it was a[n] accident.” At the time of

the photo array displayed to Simpson, Simpson identified

Wilkins and signed his name next to the photo. Additionally,

Simpson wrote a comment on the back of the photo array “one

summer day on Lennox and Park Ave, Pocket (Broom) and

others were shooting dice when things got out of hand and

Pocket’s best friend (Wilkins) went to get a gun to get his

money back and try to scare him. That’s when he got shot.”

Goode never claimed to have witnessed the shooting but

testified that on July 1, 2010, he was at his sister’s apartment,

located on the first floor of a building on North Avenue. He

was in the living room listening to music or watching television

2

when heard loud noises outside and got up to look through the

window. Goode saw a lot of people “walking away” and heard

somebody screaming “it was an accident” but he didn’t “see

nobody carrying no gun or running” away.

Although Goode admitted that he heard somebody utter

the phrase “it was an accident,” he waffled about whether and

who he saw uttering those words. At first, Goode maintained

that he didn’t “see the person’s face that said it.” Later, he

claimed, “it was a couple of guys I seen saying it.” When the

State asked whether one of those people was the person who

Goode had picked out in the photo array, he contended “no, he

didn’t actually say that, no.” After the State prompted Goode

about his prior statement when identifying Wilkins’s photo,

Goode conceded “that’s one of the persons who was saying it.”

In testimony that referred to both Wilkins and Broom as

“the victim,” Goode recounted that Wilkins looked emotional

and concerned, “like he was trying to get help for somebody.”

Goode described Wilkins and Broom, both of whom he had

known most of his life, as “the best of friends.”

At trial, Goode stated that he did not hear a gunshot

although he had told the police on July 15, 2010, that he heard

a shot before he got up to look out the window. To counteract

this conflict in his testimony, the State played Goode’s entire

taped statement from July 15, 2010, in which he told the police

that he identified Wilkins “because that’s the one I seen

standing, made the statement saying it was an accident.”

Defense counsel thereafter impeached Goode, with his

testimony from the pre-trial suppression hearing, during which

he stated that he did not see the person who said it was an

accident. Goode admitted that he had “bad memories,” and

“I’m under, you know, I don’t want to tell my personal

problems, but I’m going through . . . a little something.”

The Defense elected not to present any evidence and

Wilkins did not testify on his own behalf. . . . [T]he jury

acquitted Wilkins of Murder in the First and Second Degree

but found him guilty of Involuntary Manslaughter, Use of a

Handgun in a Crime of Violence, and Wearing, Carrying and

Transporting a Handgun.

3

Wilkins, slip op. at 2-5.

At sentencing, the trial court expressed its belief that the jury had given Wilkins a

“break” in acquitting him of first- and second-degree murder and convicting him instead

of the lesser included offense of involuntary manslaughter. Finding that Wilkins had

exhibited “no remorse” for the killing, the court imposed the statutory maximum penalties

for each offense and ran two of those sentences (for manslaughter and use of a handgun in

the commission of a crime of violence) consecutively.

On direct appeal, Wilkins claimed that the trial court, in imposing sentence,

improperly had considered conduct for which he had been acquitted. We held that this

claim was unpreserved but that, in any event, under Henry v. State, 273 Md. 131, 147-48

(1974), the trial court properly could consider such conduct. Wilkins, slip op. at 7-14.

In 2016, Wilkins filed a postconviction petition, alleging, among other things, that

he had been denied his right of allocution at his sentencing hearing. Ultimately, in 2019,

he and the State agreed that he would receive a new sentencing hearing, and, in exchange,

he would withdraw his remaining postconviction claims with prejudice. The

postconviction court thereafter entered a consent order, memorializing those terms, and, as

relevant here, it vacated Wilkins’s sentences and remanded the matter for a new sentencing

hearing.

On remand, the case was assigned to a different judge because the original judge

had retired in the meantime. At Wilkins’s resentencing hearing, the court initially

expressed uncertainty as to the proper procedure it should follow:

4

THE COURT: . . . I don’t have a problem starting from

the beginning. I don’t have a problem hearing from all of the

witnesses, but you understand that the position that I am in, is

that I did not -- I was not the judge for the hearing and I was

not Judge Young. I’m Judge Young’s replacement.

And so I did not hear the facts of this case. They did

not play out in front of me. If I -- even as I look through the

transcript, which I did not do, because it did not come to me in

a post-conviction. So I -- so my question is, if it’s for a right

of allocution, is it necessary -- and I tell you, I don’t have a

problem doing it, -- but is it necessary to have a full sentencing

hearing or is the right for him to just allocute?

I can hear from everyone, but please be assured that I

am not aware of how this trial took place. I was not present

and I’m certain that both of you are going to fill me in as much

as you can, but you, as I know, living through a trial and

hearing the witnesses and hearing the evidence is different.

So, I just want to be specific, if the issue was that he did

not have a right of allocution, should we not give him that right

to allocution and then make a determination and argument as

it pertains to what the sentence should be from the State and

Defense, or should we be starting from the beginning of

sentencing, which, I’m not certain puts this Court in any

different position. But if you feel as though it does, that’s fine,

then giving Mr. Wilkins his right of allocution after I hear from

both of you and your witnesses.

That’s where I’m, I’m not really sure where we are.

The circuit court ultimately decided that the proper procedure was to conduct a full

sentencing hearing:

THE COURT: Yes. I guess at this point, I’m -- the

posture of -- where I am with the posture of the case is, you

know, we could go forward. You can have your sentencing

hearing. You can tell me everything that you want to tell me.

Mr. [defense counsel] can tell me everything that he wants to

tell. Mr. Wilkins can give his right of allocution and then I’ll

sentence him appropriately.

5

[DEFENSE COUNSEL]: Your Honor, that -- thank

you, Your Honor. That’s the approach that we would request

be taken.

THE COURT: Okay. All right.

[PROSECUTOR]: Well, I think -- I mean at this point,

Your Honor, I have -- you know, I don’t want the Court to be

uncomfortable and I do want to be sure -- because I thought the

Court would have the entire trial file from Judge Young, so I

did not --

THE COURT: No. Why would I? I mean, --

[PROSECUTOR]: I assumed --

THE COURT: Judge Young doesn’t have a trial file.

He just listened to the trial. He just -- he doesn’t have a trial

file. He didn’t have notes. He didn’t tell me why he sentenced

the way he sentenced. So that’s -- so you are -- you have his

successor.

He didn’t -- Judge Young -- I don’t have a note on this.

There is no trial notes on this trial for this Court.

There’s just a record of the fact that he -- what I have in

here is my trial folder, that I made. There are no notes that I

have from this trial. So we can go through the sentencing.

You’ve got the post-conviction and we’ll go from there.

The court then conducted a full sentencing hearing. After the clerk informed the

court of the charges on which the jury had found Wilkins guilty (involuntary manslaughter,

use of a handgun in the commission of a crime of violence, and wearing, carrying, and

transporting a handgun) and the original sentences (and the court observed that there had

been an erroneous failure to merge the handgun offenses), the prosecutor summarized the

facts of the case:

6

Your Honor, this case involved the shooting of the

victim, [Renato] Broom, by the defendant. There was -- the

facts produced at trial showed that the defendant, on July lst of

2010 at around 12:48 in the morning, was playing dice with

some people in the neighborhood, including the victim, Mr.

Broom.

During the course of that argument -- during the course

of the dice game, an argument ensued. The defendant left and

returned with a loaded handgun and fired a single shot,

shooting the victim once, through the shoulder, through the

body and out the right side of his armpit, during an argument

over the dice game.

As the defendant and his friends were leaving the dice

game, where Mr. Broom would later succumb to his injuries,

he was heard by a witness that it was an accident, as he walked

past an open window. A witness, Mr. Goode, testified that at

trial.

The State believes and argued back then, these are

serious facts, obviously, and we’re going to hear from the

social worker, so some of this argument, you know, may come

up again.

But at the time of this case, both of these individuals

were young. Mr. Broom was, I believe, 15 at the time and Mr.

Wilkins was, if I remember correctly, 19 at the time.

Mr. Wilkins was on probation at the time of this offense

for a second degree assault, where he was alleged to have -- or

where he was convicted of beating up a special needs child. A

VOP warrant was outstanding at the time of this shooting.

The defendant also had a juvenile record, which at the

time, was relevant. He had two fact sustained as a juvenile.

The State believes that the defendant received a fair

sentence back then and is asking for the same sentence again

today. Ten years on involuntary manslaughter with 20 years

consecutive for the handgun used in the commission of a crime

of violence.

7

It’s always interesting when we end up in cases like this,

so much later returning -- I’ve had a couple in the last few

months and it’s interesting, because we’re in a different

position. We’re hearing now not just about the facts of the

offense as alleged, but we’ll be hearing, presumably, also about

the defendant’s record since then. What he’s done in prison to,

you know, show that he has taken the facts seriously. To show

that he has tried to engage in some sort of -- I don’t know what

the right word it -- receiving assistance for the factors that

caused him to shoot Mr. Broom in the first place.

But I still think we are in the position of a re-sentencing

based on these facts, which have not changed. The fact is Mr.

Broom is still dead. His family is still suffering the

consequences of losing him.

Thereafter, the victim’s sisters testified, pointing out, among other things, that

Wilkins had left the dice game and returned with the handgun, belying his claim of

accident, and that Wilkins had bullied the victim in the past.

The defense then presented evidence in mitigation. Defense counsel conceded the

accuracy of the prosecution’s statement of facts but declared that the shooting had been

accidental. The defense then called a social worker who had been retained to examine the

case. She had performed a psycho-social assessment of Wilkins and determined that he

suffered from a “[p]oor parent/child relationship” because he had been raised by an

impoverished, single mother; that he had engaged in “delinquent behavior”; but that, since

making a “horrible mistake,” that is, killing Mr. Broom, he had worked to become a “role

model” for “other incarcerated young men.” Then, Wilkins exercised his right of

allocution, expressing remorse for killing Mr. Broom and declaring that he stood before

the court “a fixed man” who deserved a second chance. The defense’s case in mitigation

8

concluded with counsel’s request that the court consider a sentence in the range of 15-16

years of active incarceration and up to 10 years of suspended time.1

Having heard the argument and considered the evidence as summarized above, the

court imposed the following sentence:

As to Court IV, involuntary Manslaughter, with the start

date remaining, I’m sorry, January the 19th, 2011, the sentence

of this Court is ten years.

As to Count II, use of a handgun in the commission of

a felony or crime of violence, Count II, with a start date of

January the l9th, 2011, the sentence of this Court is 20 years,

the first five years without the possibility of parole, which is to

run consecutive to Count IV.

As to the wear, carry and transport of a handgun, this

Court makes the finding that it, in fact, merges with the use of

a handgun in the commission of a felony, in compliance with

the Wilkins’ case, as well as the Crowder case.[2]

This timely appeal followed.

1

In addition, more than seven months prior to the resentencing hearing, defense

counsel filed a sentencing memorandum that further outlined his arguments in favor of a

reduced sentence.

2

The court was referring to State v. Wilkins, 343 Md. 444 (1996) (per curiam)

(unrelated to appellant in this case), and Crowder v. State, No. 2403, Sept. Term, 2018

(unreported, filed Aug. 10, 2020), both of which held that wearing, carrying, and

transporting a handgun merges into use of a handgun in the commission of a felony or

crime of violence.

9

DISCUSSION

I.

Wilkins contends that he was provided his right of allocution only in form, not in

substance. According to Wilkins, the resentencing judge acknowledged that “she did not

know the facts of the case” and that “she had not read the trial transcript,” from which he

invites us to conclude that the resentencing judge “had apparently studiously ignored the

facts of this case.” Not only did this “effectively depriv[e] him of his right of allocution

under Rule 4-342(e),” Wilkins asserts, but the court furthermore failed to “state on the

record its reasons for the sentence imposed,” in violation of Rule 4-342(f). These

contentions are without merit.

We begin3 with Maryland Rule 4-342, which applies to sentencing upon the

conclusion of a criminal trial or plea proceeding, and provides in part:

***

(b) Judge. If the defendant’s guilt is established after a trial

has commenced, the judge who presided shall sentence the

3

The State points out that Wilkins did not claim, during the resentencing hearing,

that the judge’s purported lack of preparation effectively denied him his right of allocution,

and therefore, it contends, this claim is unpreserved. To address the State’s

non-preservation argument would require us to decide whether denial of the right of

allocution results in an inherently illegal sentence (because that would obviate any

preservation requirement), which appears to be an open question in Maryland. But see

State v. Wilkins, 393 Md. 269, 275 (2006) (suggesting, in strong dicta, that the denial of

the right of allocution does not result in an inherently illegal sentence). To avoid addressing

whether denial of the right of allocution results in an inherent illegality, and because both

parties have briefed the matter fully (after all, the whole point of the resentencing was to

ensure that Wilkins could exercise his right of allocution, which previously had been

denied), we shall exercise our discretion and address the merits of this claim. Md. Rule

8-131(a).

10

defendant. If a defendant enters a plea of guilty or nolo

contendere before trial, any judge may sentence the defendant

except that, the judge who directed entry of the plea shall

sentence the defendant if that judge has received any matter,

other than a statement of the mere facts of the offense, which

would be relevant to determining the proper sentence. This

section is subject to the provisions of Rule 4-361.

***

(e) Allocution and Information in Mitigation. Before

imposing sentence, the court shall afford the defendant the

opportunity, personally and through counsel, to make a

statement and to present information in mitigation of

punishment.

(f) Reasons. The court ordinarily shall state on the record its

reasons for the sentence imposed.

***

In the instant case, the original sentencing judge had retired during the time between

Wilkins’s trial and his resentencing. Accordingly, the case was assigned to a new judge

for the resentencing, under Rules 4-342(b) and 4-361(a).4

Although the replacement judge acknowledged initially her unfamiliarity with the

case, the sentencing hearing that followed provided both parties a full opportunity to

present evidence relevant to sentencing. Not only did the prosecutor summarize the facts

of the crimes, but defense counsel conceded that the prosecutor’s summary was

substantially accurate. The prosecutor presented victim impact testimony, and the defense

presented testimony in mitigation by a social worker it had chosen for that purpose.

4

We shall discuss Rule 4-361 in more detail in Part II of this opinion, which

addresses Wilkins’s other assignment of error.

11

Finally, Wilkins was provided his opportunity to address the court, which he did. Only

after all this did the court impose sentence. Nothing about this procedure was a sham.

Wilkins was provided a full and fair opportunity to present his case, but merely because

the replacement judge imposed the maximum possible sentence does not mean that his

opportunity was in any sense an empty gesture.5 The court did not infringe Wilkins’s right

of allocution.

As for Wilkins’s claim that the circuit court violated Rule 4-342(f) because it failed

to state its reasons on the record, we note that defense counsel did not raise this issue at

sentencing. Therefore, it is not preserved, and we shall not address it.6 See, e.g., Reiger v.

5

We cannot help but note the apt observation of the original sentencing judge, who

declared that the jury had given Wilkins a “break” in acquitting him of first- and

second-degree murder and convicting him instead of involuntary manslaughter. Although

the record suggests that the replacement judge was unaware of this observation by her

predecessor, she nonetheless heard evidence, in the State’s uncontested summary, that

Wilkins had left the scene and returned with a weapon. Clearly, she could properly take

that into account in imposing sentence. Nor was Wilkins a first-time offender, as the

State’s presentation made clear. We reject Wilkins’s suggestion that the sentence imposed

(which was the same as the original sentence except for the merger error) is evidence that

the replacement judge merely deferred to the decision of the original judge without

exercising her own discretion.

6

We note in passing that Rule 4-342(f) contains mandatory language. (“The court

ordinarily shall state on the record its reasons for the sentence imposed.”) That language,

however, is qualified by the word “ordinarily.” In other contexts, the term “ordinarily” has

been recognized as creating an exception to the general rule otherwise stated. See, e.g.,

Jones v. State, 379 Md. 704, 712-13 (2004) (explaining that the term “ordinarily” in Rule

8-131(a) implies there are exceptions to the general rule that an appellate court will not

consider unpreserved issues). Because the term “ordinarily” means that Rule 4-342(f) does

not state an “absolute” requirement, Jones, 379 Md. at 712, it follows that a violation of

Rule 4-342(f) does not result in an illegal sentence, and it is therefore subject to the

contemporaneous objection rule. See Juan Pablo B. v. State, 252 Md. App. 624, 642-51

(2021) (examining when a violation of a mandatory Maryland Rule of Procedure results in

12

State, 170 Md. App. 693, 698-702 (2006) (holding that the failure to object at sentencing

results in waiver of a claim that a court had relied upon improper considerations in

imposing sentence).

II.

We turn next to Wilkins’s claim that the circuit court abused its discretion in

resentencing him. The gravamen of that claim is that the replacement judge failed to

familiarize herself with the record prior to the resentencing hearing, which, according to

Wilkins, violated Rule 4-361.

Wilkins acknowledges that the replacement that occurred in this case was governed

by Rule 4-361(a) (which, as we shall explain, imposes a less stringent condition on the

replacement judge than Rule 4-361(b)), but he then attempts to shoehorn this case into Rule

4-361(b), declaring: “Surely, whatever distinction may lie between these two

sub-provisions of Rule 4-361, it cannot be that a sentencing court may engage in studied

ignorance of the record of the trial which she took no part in.” Relying upon Hood v. State,

334 Md. 52 (1994), a case that applied Rule 4-361(b), he asserts that, because the

resentencing judge purportedly ignored the facts and circumstances of the trial record, she

denied him “a meaningful opportunity to present information in mitigation.” He concludes

that prejudice must be presumed and that we must vacate and remand for a new sentencing

hearing.

an inherently illegal sentence), cert. filed, Pet. No. 331, Sept. Term, 2021 (filed Nov. 16,

2021).

13

Initially, we observe that Wilkins did not raise this claim before the resentencing

court. Because a violation of Rule 4-361 does not result in an inherently illegal sentence,7

a contemporaneous objection was required. This claim is therefore unpreserved. Even if

it had been preserved, we would hold that it has no merit.

Maryland Rule 4-361, which applies in case of a disability of a judge, as occurred

here, provides:

(a) After Verdict or Acceptance of Plea. If by reason of

termination of office, death, sickness, or other disability, the

judge before whom a defendant has been tried or by whom a

plea of guilty or nolo contendere has been accepted is unable

to perform an act or duty of the court after verdict or after

acceptance of a plea, any other judge authorized to act in that

court may sentence the defendant and perform any other act or

duty if satisfied that he or she can properly do so.

(b) During Jury Trial in Circuit Court. If by reason of

termination of office, absence, death, sickness, or other

disability, the judge before whom a jury trial in circuit court

has commenced is unable to proceed with the trial, any other

judge authorized to act in that court upon certifying that he or

she has become familiar with the record of the trial, may

proceed with and finish the trial.

7

In Hood, the Court of Appeals stated that the harmless error rule applies to a

violation of Rule 4-361(b) (albeit under circumstances where it may be difficult to show

harmlessness). Hood, 334 Md. at 62-63. See also Dove v. State, 415 Md. 727, 741-42

(2010) (observing that the harmless error rule generally applies to violations of the

Maryland Rules). That implies that a claimed violation of Rule 4-361(b) is subject to the

contemporaneous objection rule because generally, preserved claims of error are reviewed

for harmless error, and unpreserved claims of error may be reviewed for plain error. See,

e.g., Greer v. United States, 593 U.S. __, 141 S. Ct. 2090, 2099 (2021). By contrast, illegal

sentence claims are not subject to the contemporaneous objection rule. Reiger, 170 Md.

App. at 700. Nor is an illegal sentence claim subject to the harmless error rule; if a sentence

is inherently illegal, it may be corrected “at any time.” Md. Rule 4-345(a).

14

Rule 4-361(a) requires the replacement judge to satisfy herself that “she can

properly” perform her required duties, whereas Rule 4-361(b) requires the replacement

judge to “certify[] that . . . she has become familiar with the record of the trial.” Clearly,

more is required of a judge who is replaced during trial than one who is replaced after a

verdict has been rendered. Although Hood does not compare Rule 4-361(a) and Rule

4-361(b), it nonetheless suggests why the subparts of the rule impose different

requirements on a replacement judge. Thus, a replacement judge who is expected to

assume management of an ongoing trial must have “a sufficient grasp of the prior testimony

and proceedings to be able to fairly and effectively exercise his or her discretion with

respect to rulings thereafter required, and to properly instruct the jury.” Hood, 334 Md. at

58. To ensure that is the case, Rule 4-361(b) “ordinarily” requires a replacement judge “to

read, or to have read to him or her, a written transcript of the previous proceedings, or in

the case of an audio or video record, to listen to the prior proceedings.” Hood, 334 Md. at

58. Moreover, the judge “must then file, or dictate into the record, a certification that he

or she has become familiar with the record of trial” and “include in this certification the

means used to gain familiarization” so as to provide an opportunity for a timely objection,

if a party believes that the “method employed is inadequate.” Id.

By contrast, Rule 4-361(a), which applies here, merely requires the replacement

judge to satisfy herself that she can “properly” perform her duties. In other words, Rule

4-361(a) provides that the replacement judge self-monitor her compliance with the rule.

This is a considerably less stringent requirement than that of Rule 4-361(b). We decline

Wilkins’s suggestion that we import the more demanding standards of Rule 4-361(b) into

15

a case governed by Rule 4-361(a). Given the “general presumption that judges know the

law and apply it properly,” State v. Chaney, 375 Md. 168, 182 (2003), we conclude that

the replacement judge apparently was satisfied that she could properly perform her duties,

and Wilkins has failed to rebut that presumption.

A “sentencing judge is vested with virtually boundless discretion in devising an

appropriate sentence.” Cruz-Quintanilla v. State, 455 Md. 35, 40 (2017) (citation and

quotation omitted). That discretion, however, “is not without limits.” Id. at 41.8 To find,

however, that the resentencing court abused its discretion, we would have to conclude that

its actions were “manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons.” Mainor v. State, 475 Md. 487, 494 (2021) (citation and quotation

omitted).

In the instant case, the replacement judge openly acknowledged that she had not

read the trial transcript prior to the resentencing hearing. She then declared that both parties

would have a full opportunity to present their respective cases, which they did. At no point

did anyone object to the manner in which the court proceeded. Under these circumstances,

8

The Court stated three grounds on which a defendant may challenge his sentence:

“(1) whether the sentence constitutes cruel and unusual punishment or violates other

constitutional requirements; (2) whether the sentencing judge was motivated by ill-will,

prejudice or other impermissible considerations; and (3) whether the sentence is within

statutory limits.” Cruz-Quintanilla, 455 Md. at 41 (citation and quotation omitted). None

of those grounds is raised in this case. That does not mean that Wilkins’s claims are not

cognizable. He has not, however, demonstrated that the resentencing court either erred or

abused its discretion.

16

we conclude that the court’s actions were not “manifestly unreasonable,” and it therefore

did not abuse its discretion.9 Id.

JUDGMENT OF THE CIRCUIT COURT

FOR BALTIMORE CITY AFFIRMED.

COSTS ASSESSED TO APPELLANT.

9

We reject Wilkins’s attempt to repackage his unpreserved claim of a violation of

Rule 4-342(f) (the resentencing court’s failure to state its reasons on the record) under the

guise of a claim of abuse of discretion.

17