Petition for Writ of Certiorari — Palmer v. Maryland (No. 08-93)

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Supreme Court, U.8.

FILED

08-93 JUL 18 2008

Cr 2TOF Tid CLE

7. ° ob « F ’ ~ . .

In The Ud screed shee Smee COME

Supreme Court of the United States

o-—

TRACY PALMER,

Petitioner,

STATE OF MARYLAND and

SHARDEN BUSIE HOILE,

Respondents.

On Petition For A Writ Of Certiorari

From The Maryland Court Of Appeals

PETITION FOR A WRIT OF CERTIORARI

RUSSELL P. BUTLER, ESQUIRE

MARYLAND CRIME VICTIMS’ RESOURCE

CENTER, INC.

1001 Prince George’s Boulevard, Suite 750

Upper Marlboro, Maryland 20774

(301) 952-0063

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342 2831

QUESTION PRESENTED FOR REVIEW

Article 47 of the Declaration of Rights to the

Maryland Constitution provides, “[a] victim of crime

shall be treated by agents of the State with dignity,

respect, and sensitivity during all phases of the

criminal justice process ... a victim of crime shall

have the right to be informed of the rights established

in this Article and, upon request and if practicable, to

be notified of, to attend, and to be heard at a criminal

justice proceeding.”

The question presented is:

Whether a Victim is entitled to a remedy for

violations of rights provided in Article 47 of the

Declaration of Rights to the Maryland Constitution

because of the application of Due Process and Equal

Protection clauses to states through the Fourteenth

Amendment, guaranteeing remedies for rights pro-

vided under state law.

Under the interpretation of the law when the Four-

teenth Amendment was adopted, protection of the law

included a remedy for the violation.

PARTIES TO THE PROCEEDING

The parties for the proceeding are:

1. TRACY PALMER, Victim

2. STATE OF MARYLAND, a state, and

3. SHARDEN BUSIE HOILE, a defendant of

the State

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING

OPINIONS ENTERED IN THE CASE

BASIS FOR SUPREME COURT JURISDIC-

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS

APPENDIX

Court of Appeals of Maryland Opinion

Court of Special Appeals of Maryland

RPA 5. sicicta sce otnsenackecenessandoaeesie ose ..App. 50

Court of Appeals of Maryland Motion for Re-

consideration

TABLE OF AUTHORITIES

CASES

Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357

(1884)

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct.

780 (1971)

Booth v. Maryland, 482 U.S. 496, 107 S.Ct.

2529 (1987)

Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524 (1886) ....18, 42

Calderon v. Thompson, 523 U.S. 538

(1998) 36, 42, 43, 44

Chicago B. & Q. R. Co. v. Chicago, 166 US.

226 (1897)

Doe v. U.S., 666 F.2d 43 (4th Cir. 1981)

Elkins v. U.S., 364 U.S. 206, 80 S.Ct. 1437

(1960)

Groome v. Gwinn, 43 Md. 572 (1875)

Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853

(1998)........ Dea en edonesniedecet a ae dade ett nae 43

Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383

[0 ENS ACE TEN Hee ae oR NE SND Nem eRe Ee Morera: —

Kenna v. U.S. Dist. Court for C.D.Cal., 435 F.3d

1011 (9th Cir. 2006)

)

Lamb vu. Kontgias, 395 Md. 57 (2006), cert.

denied, 127 S.Ct. 1875 (2007)

Logan v. Zimmerman Brush Co., 455 U.S. 422,

102 S.Ct. 1148 (1982)

TABLE OF AUTHORITIES — Continued

Page

Lopez-Sanchez v. State, 388 Md. 214, 879 A.2d

695 (2005), cert. denied, 546 U.S. 1102, 126

ees Se CE iss dks epinncpeinacncccucanssuduicecexssnteaeeenne ee

Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489

(1964)

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684

(1961) passim

Marbury v. Madison, 5 U.S. 137 (1803)

McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454

as ae a ar OA ee 43

Melissa J. v. Superior Court, 190 Cal. App. 3d

476, 237 Cal. Rptr. 5 (1987)

Merrili Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, 456 U.S. 353, 102 S.Ct. 1825 (1982).........30

Minneapolis & St. L. Ry. Co. v. Beckwith, 129

Fs eg He CI cnsihxdo.dsitkacentoncicnonsenenesnaibinnetiamaecsmabidramne

Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.

Morris v. Slappy, 461 U.S. 1 (1983)

Palko v. State of Connecticut, 302 U.S. 319, 58

es. FE EOE Piciiccacbctsaccvasvitivenines etiatlanaa debate cca

Payne v. Tennessee, 501 U.S. 808, 111 S.Ct.

oo) ‘aida Ss Seema wamacalicommneoaae 43

People v. Rowland, 51 Cal. App. 4th 1745, 60

Cal. Rptr. 2d 351 (1997) 16, 17, 45

TABLE OF AUTHORITIES — Continued

\ Page

State ex rel. Hance v. Arizona Bd. of Pardons

and Paroles, 178 Ariz. 591, 875 P2d 824

(1993)

Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124

ps SAREE Se RIEE Tp SIE OOO LROT REE OMI AR OTE ND Pon eR oye PE 31

U.S. v. Perry, 360 F.3d 519 (6th Cir. 2004)....15, 16, 45

Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341 (1914) ...18, 19

Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct.

8 ES a ee ae Oe De PES eee eee EN MRI 35

Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359

PEIN iieincadesisrsexces TER Nery EA ET Ot 19, 29, 35

RULES

U.S. Const. amend. IV

U.S. Const. amend. V

U.S. Const.

U.S. Const. amend. XIV passim

Md. Const. art. XLVII of the Dec. of Rts passim

I SIN OG OA 6 grins svanvowdécncevkcndssdaveaeuenentaus 25, 31

Ne I oes dire cn ksis ontcveravoabvanwéerens 8, 11, 33, 41

Crim. P. Art. § 11-104

Crim. P. Art. § 11-503

TABLE OF AUTHORITIES — Continued

Page

OTHER

Christopher R. Green, The Original Sense of

the (Equal) Protection Clause: Subsequent

Interpretation and Application, 19 GEO. Ma.-

SON Civ. Rts. L.J.1 (2008) 30, 31, 32

The Crime Victims’ Right to Attend the Trial:

The Reascendant National Consensus, 9

Lewis & Clark L. Rev. 481 (2005)...........................34

Taking Deterrence Sertously: Excluding Uncon-

stitutionally Obtained Evidence 49 McGill

L.J. 105, 115-116 (2004) 22, 23

The Proposed Crime Victims’ Federal Constitu-

tional Amendment: Working Toward a Proper

Balance, 49 Baylor L. Rev. 1, 11-12 (Winter

PETITION FOR WRIT OF CERTIORARI

Comes now the Petitioner, Tracy Palmer, by and

through her attorney, Russell P. Butler, #sq., of the

Maryland Crime Victims’ Resource Center, Inc.,

asking this Honorable Court to grant a Writ of Cer-

tiorari. Petitioner respectfully prays that a Writ of

Certiorari issue to review the judgment below.

OPINIONS ENTERED IN THE CASE

Court of Appeals of Maryland, Hoile v. MD, 948

A.2d 30 (2008), appears at Appendix, App. 1.

The opinion of the Court of Special Appeals of

Maryland appears at Appendix, App. 50 to the peti-

tion.

BASIS FOR SUPREME COURT JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Constitution, Fourteenth Amendment

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citi-

zens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Md. Constitution, Declaration of Rights,

Article 47.

Rights of Victim of Crime.

(a) A victim of crime shall be treated by

agents of the State with dignity, respect, and

sensitivity during all phases of the criminal

justice process.

(5) In a case originating by indictment or

information filed in a circuit court, a victim

of crime shall have the right to be informed

of the rights established in this Article and,

upon request and if practicable, to be notified

of, to attend, and to be heard at a criminal

justice proceeding, as these rights are im-

plemented and the terms “crime”, “criminal

justice proceeding”, and “victim” are specified

by law.

cause of action for monetary damages for vio-

lation of any of its provisions or authorizes a

victim of crime to take any action to stay a

criminal] justice proceeding.

Md. Criminal Procedure Code Ann. § 11-104.

Victim Notification.

(a)(1) In this section the following words

have the meanings indicated.

(2) “Victim” means a person who suf-

fers actual or threatened physical, emotional,

or financial harm as a direct result of a crime

or delinquent act.

(3) “Victim’s representative” includes a

family member or guardian of a victim who

is:

(i) aminor;

(ii) deceased; or

(iii) disabled.

(c1) Within 10 days after the filing or

the unsealing of an indictment or informa-

tion in circuit court, whichever is later, the

prosecuting attorney shall:

(i) mail or deliver to the victim or

victim’s representative the pamphlet de-

scribed in § 11-914(9)(1i) of this title and

the notification request form described

in § 11-914(10) of this title; and

(ii) certify to the clerk of the court

that the prosecuting attorney has com-

plied with this paragraph or is unable to

identify the victim or victim’s represen-

tative.

(3) For cases described under this sub-

section, the prosecuting attorney may provide

a State’s witness in the case with the guide-

lines for victims, victims’ representatives,

and witnesses available under §§ 11-1001

through 11-1004 of this title.

(d)(1) A victim or victim’s representa-

tive may file a completed notification request

form with the prosecuting attorney.

(2) The prosecuting attorney shall send

a copy of the completed notification request

form to the clerk of the circuit court or juve-

nile court.

(3) By filing a completed notification

request form, a victim or victim’s representa-

tive complies with Article 47 of the Maryland

Declaration of Rights and each provision of

the Code that requires a victim or victim’s

representative to request notice.

(4) To keep the address of a victim or

victim’s representative confidential, the vic-

tim or victim’s representative shall designate

in the notification request form a person who

has agreed to receive notice for the victim or

victim’s representative.

(e)(1) The prosecuting attorney shall

send a victim or victim’s representative prior

notice of each court proceeding in the case, of

the terms of any plea agreement, and of the

right of the victim or victim’s representative

to submit a victim impact statement to the

court under § 11-402 of this title if:

(i) prior notice is practicable; and

(ii) the victim or victim’s represen-

tative has filed a notification request

form under subsection (d) of this section.

(2) If the case is in a jurisdiction in

which the office of the clerk of the circuit

court or juvenile court has an automated fil-

ing system, the prosecuting attorney may

ask the clerk to send the notice required by

paragraph (1) of this subsection.

(3) As soon after a proceeding as prac-

ticable, the prosecuting attusney shall tell

the victim or victim’s representative of the

terms of any plea agreement, judicial action,

and proceeding that affects the interests of

the victim or victim’s representative, includ-

ing a bail hearing, change in the defendant’s

pretrial release order, dismissal, nolle prose-

qui, stetting of charges, trial, disposition,

and postsentencing court proceeding if:

(i) the victim or victim’s represen-

tative has filed a notification request

form under subsection (d) of this section

and prior notice to the victim or victim’s

representative is not practicable; or

(ii) the victim or victim’s represen-

tative is not present at the proceeding.

(4) Whether or not the victim or vic-

tim’s representative has filed a notification

request form under subsection (d) of this sec-

tion, the prosecuting attorney may give the

victim or victim’s representative information

about the status of the case if the victim or

victim’s representative asks for the informa-

tion.

Md. Criminal Procedure Code Ann. § 11-503.

Notice of Subsequent Proceedings.

(a) In this section, “subsequent proceeding”

includes:

(1) a sentence review under § 8-102 of

this article;

(2) a hearing on a request to have a

sentence modified or vacated under the

Maryland Rules;

(3) in a juvenile delinquency proceed-

ing, a review of a commitment order or

other disposition under the Maryland

Rules;

(4) an appeal to the Court of Special

Appeals;

(5) an appeal to the Court of Appeals;

and

(6) any other postsentencing court pro-

ceeding.

(b) Following conviction or adjudication and

sentencing or disposition of a defendant or

child respondent, the State’s Attorney shall

notify the victim or victim’s representative

of a subsequent proceeding in accordance

with § 11-104(e) of this title if: (1) before

the State’s Attorney distributes notification

request forms under § 11-104(c) of this title,

the victim or victim’s representative submit-

ted to the State’s Attorney a written request

to be notified of subsequent proceedings; or

(2) after the State’s Attorney distributes noti-

fication request forms under § 11-104(c) of

this title, the victim or victim’s representa-

tive submits a notification request form in

accordance with § 11-104(d) of this title.

(c(1) The State’s Attorney’s office shall:

Gi) notify the victim or victim’s repre-

sentative of all appeals to the Court of

Special Appeals and the Court of Ap-

peals; and

Gi) send an information copy of the no-

tification to the office of the Attorney

General.

(2) After the initial notification to the

victim or victim’s representative or receipt of

a notification request form, as defined in

§ 11-104 of this title, the office of the Attor-

ney General shall:

(i) notify the victim or victim’s repre-

sentative of each subsequent date perti-

nent to the appeal, including dates of

hearings, postponements, and decisions

of the appellate courts; and

(ii) send an information copy of the no-

tification to the State's Attorney’s office.

(d) A notice sent under this section shall in-

clude the date, the time, the location, and a

brief description of the subsequent proceed-

ing.

Md. Rule 4-345

(a) [legal Sentence. The court may correct

an illegal sentence at any time.

(b) Modification or Reduction ~— Time For.

The court has revisory power and control

over a sentence upon a motion filed

within 90 days after its imposition (1) in

the District Court, if an appeal has not

been perfected, and (2) in a circuit court,

whether or not an appeal has been filed.

Thereafter, the court has revisory power

and control over the sentence in case of

fraud, mistake, or irregularity, or as pro-

vided in section (e) of this Rule. The

court may not increase a sentence after

the sentence has been imposed, except

that it may correct an evident mistake in

the announcement of a sentence if the

correction is made on the record before

the defendant leaves the courtroom fol-

lowing the sentencing proceeding.

Notice to Victims. The State’s Attorney

shall give notice to each victim and

victim’s representative who has filed a

Crime Victim Notification Request form

pursuant to Code, Criminal Procedure

Article, § 11-104 or who has submitted a

written request to the State’s Attorney to

be notified of subsequent proceedings as

provided under Code, Criminal Proce-

dure Article, § 11-503 that states (1) that

a motion to modify or reduce a sentence

has been filed; (2) that the motion has

been denied without a hearing or the

date, time, and location of the hearing;

and (3) if a hearing is to be held, that

each victim or victim’s representative

may attend and testify.

Open Court Hearing. The court may

modify, reduce, correct, or vacate a sen-

tence only on the record in open court,

after hearing from the defendant, the

State, and from each victim or victim’s

representative who requests an oppor-

tunity to be heard. No hearing shall be

held on a motion to modify or reduce the

sentence until the court determines that

the notice requirements in section (c) of

this Rule have been satisfied. If the

court grants the motion, the court ordi-

narily snall prepare and file or dictate

into the record a statement setting forth

the reasons on which the ruling is based.

Desertion and Non-support Cases. At

any time before expiration of the sen-

tence in a case involving desertion and

non-support of spouse, children or desti-

tute parents, the court may modify, re-

duce, or vacate the sentence or place the

defendant on probation under the terms

and conditions the court imposes.

STATEMENT OF THE CASE

After Sharden Busie Hoile was charged with

attempt to commit first degree rape, attempt to

commit first degree sex offense, first degree assault,

attempt to commit second degree rape, attempt to

commit second degree sex offense, second degree

assault, and third degree sex offense on April 10,

1998, Hoile entered a plea of guilty to the charge of

first degree assault of Ms. Tracy L. Palmer, Victim.

Hoile was sentenced to 15 years in prison, which was

suspended in favor of five years of probation. Yet in

May 2001, Hoile violated the April 1998 probation

order and was therefore ordered by the trial judge to

serve the original 15-year sentence concurrently with

a sentence Hoile already was serving tor a separate

conviction in the Circuit Court for Calvert County.

Hoile filed a Motion for Reconsideration of his sen-

tence in the Prince George’s County case.

In December 2004, the Prince George’s County

(Circuit) Court granted Hoile’s Motion for Reconsid-

eration. As a result, Hoile was ordered to be commit-

ted to the Department of Health and Mental Hygiene

for substance abuse treatment. The Prince George’s

County court forwarded a copy of the order imposing

the altered sentence to the Calvert County court, but

upon receipt +f the order the Calvert County (Circuit)

court declined to reconsider Hoile’s sentence in the

separate case. This result occasioned the Prince

George’s County court to hold another hearing on

April 8, 2005 at Hoile’s request, to consider the effect

on its December 2004 ruling of the refusal by the

Calvert County court to alter its sentence of impris-

onment. The Prince George’s County court again

modified the sentence in its case, the present one, to

time served and placed Hoile on five years of super-

vised probation. The victim was not notified of either

the Prince George’s County’s hearings to reconsider

Hoile’s sentence.

On December 8, 2005, Ms. Palmer wrote a letter

to the trial judge in Hoile’s case in Prince George’s

County stating that she had not been notified of the

December 2004 or April 2005 hearings, although she

previously requested such notification in writing in

a letter dated July 2, 1998 to the Assistant State’s

Attorney. The Prince George’s County court held a

hearing on February 10, 2006 at which Ms. Palmer

was represented by counsel. The court found that the

victim had not been notified properly, as required by

Maryland Code (2001, 2007 Cum. Supp.), Criminal

Procedure Article, §§ 11-104, 11-503 and Maryland

Rule 4-345(e)(2) and (f). On Palmer’s motion, the trial

court vacated the April 2005 sentence and reinstated

the original sentence for fifteen years incarceration,

remedying the violation of Ms. Palmer’s rights. After

the court vacated the reconsideration of sentence, the

following exchange took place:

Assistant State’s Attorney: And may I in-

quire of the Court procedurally, now that the

sentence has been vacated, original sentence

stands. Will a new order need to be issued to

the Department of Corrections so that re-

gardless of Mr. Hoile’s status in his Calvert

County case, that he is — he is incarcerated

under the sentence in this matter?

Counsel for Palmer: A new commitment or-

der will need to be filed Your Honor.

Court: The Clerk agrees with you, and I’m

sure she will look into that.

In effect, the February 10, 2006 vacation of

Hoile’s reconsidered sentence reinstated the immedi-

ate prior sentence (the one imposed upon finding a

violation of probation), at least until the trial judge

were to act anew on the now resurrected Motion to

Reconsider sentence. On February 13, 2006, a new

commitment order was filed by the Clerk of the

Circuit Court, committing Hoile to the Division of

Correction for the remainder of the 15-year sentence.

Hoile appealed to the Court of Special Appeals.

The intermediate appellate court, in an unreported

opinion, dismissed the appeal as premature because

the trial judge in Prince George’s County had not

acted yet on the revived motion to reconsider sen-

tence. (See App. 50)

In December 2007, the Maryland Court of Ap-

peals granted Hoile’s Petition for Writ of Certiorari

and the State’s Cross-petition. The Court of Appeals

remanded the case with instructions to vacate the

sentence of the remainder of 15 years imposed by the

Circuit Court and to reinstate the sentence of proba-

tion imposed in April of 2005 stating that there were

no remedies and there was no authority for

the trial court to remedy. (See App. 1) A Motion for

Reconsideration was filed by Ms. Palmer which raised

the Fourteenth Amendment issues found in this

Petition but it was denied by the Maryland Court of

Appeals on June 10, 2008. (See App. 54)

ARGUMENT

THE LACK OF REMEDIES FOR VIOLA-

TIONS OF VICTIMS’ RIGHTS AS DETER-

MINED BY THE MARYLAND COURT OF

APPEALS IS CONTRARY TO THE CON-

STITUTION OF THE UNITED STATES.

A. THE FOURTEENTH AMENDMENT AF-

FORDS DUE PROCESS RIGHTS TO

CRIME VICTIMS.

The Maryland Court of Appeals failed to consider

that while the General Assembly could provide an

express remedy that an express remedy is not needed

as the Constitution of the United States provides a

remedy as a matter of law. Following the logic of the

Maryland Court of Appeals’ opinion that remedies

exist only when created by a legislature would elimi-

nate the rule of law as known in this country.

The narrow issue before this Court is whether

the Maryland Court of Appeals improperly denied the

Petitioner an ability to seek a remedy for a state

provided right found in Article 47 of the Declaration

of Rights to the Maryland Constitution. Such right to

a remedy for a violation of Article 47 and implement-

ing statutes and rules is based on the Fourteenth

Amendment of the United States Constitution, which

provides, “No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

Due Process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV.

The People of the State of Maryland have

granted victims of crime legal interests through the

adoption of Article 47 of the Declaration of Rights to

the Maryland Constitution, which provides,

(a) A victim of crime shall be treated by

agents of the State with dignity, respect, and

sensitivity during all phases of the criminal

justice process.

(b) In a case originating by indictment or

information filed in a circuit court, a victim

of crime shall have the right to be informed

of the rights established in this Article and,

upon request and if practicable, to be notified

of, to attend, and to be heard at a criminal

justice proceeding, as these rights are im-

plemented and the terms ‘crime’, ‘criminal

justice proceeding’, and ‘victim’ are specified

by law.

cause of action for monetary damages for vio-

lation of any of its provisions or authorizes a

victim of crime to take any action to stay a

criminal justice proceeding.

The Maryland legislature has further provided

these interests of crime victims include the “terms of

any plea agreement, judicial action, and proceeding

that affects the interests of the victim or victim’s

representative, including a bail hearing, change in

the defendant’s pretrial release order, dismissal, nolle

prosequi, stetting of charges, trial, disposition, and

post-sentencing court proceeding.” Md. Crim. P. Code

Ann. § 11-104(e)(3). A reconsideration of sentence to

reduce the imposed sentence in a _ post-sentencing

court proceeding affects the victim’s interest. Having

created these legal interests for victims, the State

cannot deprive victims of the benefits of these inter-

ests without Due Process of law and the Equal Pro-

tection of law under the Fourteenth Amendment.

The Maryland holding is contrary to holding of

the 6th Circuit. In U.S. v. Perry, 360 F.3d 519, 526

(6th Cir. 2004), it was recognized that restitution is

mandatory rather than discretionary for defendants

convicted of certain offenses. In Perry, the Court

looked at the legislative history of the MVRA (“Man-

datory Victim Restitution Act”), stating, “This provi-

sion [the MVRA] is intended by the committee to

clarify that the issuance of a restitution order is an

integral part of the sentencing process that is to be

governed by the same, but no greater, procedural

protections as the rest of the sentencing process. ...

The committee believes that this provision fully

comports with the requirements of the Due Process

clause of the Fifth amendment.... [T]he act ...

ensures the protection of the victim’s right to a fair

determination of the restitution owed. The commit-

tee believes this provision will ensure the streamlined

administration of justice while at the same time

protecting the rights of all individuals. S. Rep. No.

104-179, at 20-21 (1996), reprinted in 1996

U.S.C.C.A.N. 924, 933-34. This makes clear that

Congress meant the MVRA to protect the rights of all

individuals, including victims, in a manner consistent

with Due Process requirements.” See U.S. v. Perry,

360 F.3d at 524-525. Under the MVRA, a victims has

a remedy if the victims’ rights were violated.

The Maryland Court of Appeals holding in this

case is also inconsistent with other state courts that

have held it is proper to re-sentence a defendant after

a victims’ right was ignored. See People v. Rowland,

51 Cal. App. 4th 1745 (1997). In Rowland, the defen-

dant, as part of a plea bargain, pleaded no contest to

two counts of grand theft. The trial court imposed an

aggravated three-year sentence for each count of

grand theft, to run concurrently, but denied the

victim’s request for restitution. After sentencing, the

trial court favorably acted upon a Motion by the

victim raising the issue of the victim’s restitution.

The court determined that the original sentence

without consideration of restitution was improper.

The trial court re-sentenced the Defendant to pay the

victim approximately $168,517 as was mandated by

Pen. Code, § 1202.4, and that it did not prejudice

defendant. The California Court of Appeals affirmed

the trial court’s judgment that determined the origi-

nal sentencing of defendant was improper for lack of

an award of victim restitution and the re-sentencing

to include such an award was a required remedy. The

court rationalized that the original sentence was

invalid because the trial court failed altogether to

address the victim’s right to restitution award, as

mandated by both Cal. Const., art. I, § 28, subd. (b),

and by Pen. Code, § 1202.4. See generally People v.

Rowland, 51 Cal. App. 4th 1745.

The prohibitions of the Fourteenth Amendment

apply to legislative, executive, and judicial authori-

ties in a state. Chicago B. & Q. R. Co. v. Chicago, 166

U.S. 226, 234 (1897). Once the People of Maryland

created a right in Article 47 to provide crime victims

the right to notice and to be heard, these rights

require recourse in the courts. Otherwise, there

would be a violation of Due Process and Equal Protec-

tion Clauses applicable through the state by the

Fourteenth Amendment.

The legislature may prescribe a form of pro-

cedure to be observed in the taking of private

property for public use, but it is not Due

Process of law if provision be not made for

compensation. Notice to the owner to appear

in some judicial tribunal and show cause

why his property shall not be taken for pub-

lic use without compensation would be a

mockery of justice.

See Chicago, B. & Q.R. Co. v. City of Chicago, 166

U.S. at 236-237. Whether the violation occurs because

of Maryland’s legislature failure to enact on the

Maryland judiciary’s failure to interpret, it makes no

difference.

The constitutional problem caused by the Mary-

land Court of Appeals opinion is analogous to the

situation faced in Mapp v. Ohio, 367 U.S. 643,

655-656, 81 S.Ct. 1684 (1961), where this Court

imposed the judicial remedy of exclusion of evidence

to remedy the violation of a constitutional right in

order to preserve the integrity of the judicial system.

Infra. The consequence of the Maryland Court of

Appeals’ opinion, which in their own words, allows

Maryland law for victims to “lack adult teeth,” fails to

consider the impact of the Fourteenth Amendment.

While the Court in Mapp meant for the exclu-

sionary rule as a means of enforcing the people’s right

to be free from unreasonable searches and seizures

as guaranteed by the Fourth Amendment to the

United States Constitution, the Court went even

further to state, “Nothing can destroy a government

more quickly tnan its failure to observe its own laws,

or worse, its disregard of the charter of its own exis-

tence.” Mapp, at 659.

While the exclusionary rule reared its head early

in Boyd v. United States in 1886, in a civil case, it

gained acceptance as a remedy for Fourth Amend-

ment violations in 1914 in the landmark case of

Weeks v. United States, 232 U.S. 383 (1914), where

the Court ruled that evidence seized as a result of an

illegal search and seizure was inadmissible in federal

criminal proceedings and read the Rule into the

Fourth Amendment, rationalizing by judicial integ-

rity and as a deterrent to corruption /d. at 398.

Wolf v. Colorado, 338 U.S. 25 (1949) (overruled by

Mapp), extended the Fourth Amendment’s right of

privacy to the states via the Due Process clause of the

Fourteenth Amendment. Later Mapp found it “logi-

cally and constitutionally necessary” that it also

apply to the states through the Due Process clause

because it was an “essential part of the right to

privacy.” Mapp v. Ohio, 357 U.S. 643, 656 (1961).

Mapp extended the decision as a need for judicial

integrity and reasoned that the rule was required as

an implicit constitutional privilege necessary for the

deterrence of police misconduct. /d. The deterrent

purpose of the exclusionary rule necessarily assumes

that the police have engaged in willful, or at the very

least negligent, conduct that has deprived the defen-

dant of some right. By refusing to admit evidence

gained as a result of such conduct, the courts hope to

instill in those particular investigating officers, or in

their future counterparts, a greater degree of care

toward the rights of an accused.

The Court’s reasoning in Mapp provides not only

a remedy for a violation of an illegal search and

seizure but an affirmative step to keep the govern-

ment from giving empty promises, which is now the

current state of rights granted to victims through

Article 47. Contrary to Maryland interpretation, the

Court of Appeals of Arizona held that the Arizona

Constitution protects a victim’s nght to Due Process

(See Ariz. Const. art. 2, § 2.1(A)), and that the court

had jurisdiction over special action against state

officer, and because the state failed to inform victim

of her rights under Victims’ Bil] of Rights, victim’s

failure to request notice of release proceedings did not

excuse state from including her participation in

proceedings, and thus the Board’s order was set

aside. See State ex rel. Hance v. Arizona Bd. of Par-

dons and Paroles, 178 Ariz. 591, 875 P.2d 824 (1993).

The Court reasoned that the state failed to first fulfill

its constitutional obligation to inform the victim of

her right, stating, “[t]he constitutional mandate is

clear: victims must be informed of their rights.” See

Arizona Bd. of Pardons and Paroles, 178 Ariz. at 597.

“Armed with this knowledge, victims may choose to

exercise these rights. Conversely, an uninformed

victim may not exercise her rights because she is

unaware of them, or unaware that the right to notice

of a release hearing requires that she first file a

request for such a notice.” Jd. The Court found the

Victims’ Rights Implementation Act also clearly

imposes a corollary duty on the state to provide the

information [notice] and that the legislation created

specific obligations on state government to inform

victims of their rights at various stages of criminal

proceedings. “While the statutory provisions do not

specifically address how the state is to inform victims

of pre-Bill of Rights crimes, the overriding principle is

clear: the linchpin of Ariz. Const. art. 2, § 2.1(A)(12) is

the right of victims to be informed of their constitu-

tional rights, and the state has an affirmative obliga-

tion to so inform them.” See id. The Arizona Court

has applied remedies where the Maryland Courts

have not.

When the rights to be notified, present, and

heard are ignored by agents of the state and the

courts have diminished judicial integrity, providing a

remedy to victims ensures that the violations are not

a result of intent or negligence by the state which is

responsible to fulfill their duty to victims. If the

Maryland Courts continue to provide these empty

rights, one must ask if the rights even exist. If a state

court can ignore an obligation it has put on itself, one

must wonder how far this Constitutional violation

could extend.

The current state of turmoil that victims’ rights

face is inconsistent with the efforts taken by advo-

cates of the victims’ rights movement who have been

successful in passing many state constitutional

amendments. Before 2000, twenty-nine states had

adopted victims’ rights amendments to their consti-

tutions. The Proposed Crime Victims’ Federal Consti-

tutional Amendment: Working Toward a _ Proper

Balance, 49 Baylor L. Rev. 1, 11-12 (Winter 1997).’

' See Ala. Const. amend. 557; Alaska Const. art. I, § 24;

Ariz. Const. art. II, § 2.1; Cal. Const. art. I, § 28; Colo. Const.

art. II, § 16a; Fla. Const. art. I, § 16(b); Idaho Const. art. I, § 22;

Ill. Const. art. I, § 8.1; Ind. Const. art. I, § 13(b); Kan. Const. art.

15, § 15; Md. Decl. of Rights art. 47; Mich. Const. art. I, § 24;

Mo. Const. art. I, § 32; Neb. Const. art. 1, § 28; Nev. Const. art. I,

§ 8: N.C. Const. art. 1, § 37; N.J. Const. art. I, ae 22; N.M. Const.

art. II, § 24: Ohio Const. art. I, § 10a; Okla. Const. art. II, § 34;

(Continued on following page)

Not only have efforts been taken by states to

provide and enforce these rights but also by the

federal government through 18 U.S.C. § 3771 of the

Crime Victims’ Rights Act. The current state of the

victims’ rights law is analogous to pre-Mapp, when

those against the exclusionary rule feared that its

application to the states would allow many criminals

to run free. The drastic consequences of the exclu-

sionary rule are obvious. The fact that excluded

evidence would be likely to convince a jury beyond

reasonable doubt of the defendant’s guilt is not rele-

vant to the issue of exclusion. As a result, harsh

criticism was given to the exclusionary rule for as

long as it has been in existence. In 1923, Dean Wig-

more referred to the rule as ‘misguided sentimental-

ity’ (Wigmore, D.J, Evidence, (2nd ed. 1923), saying

“

.. it appears indifferent to the result of making

justice inefficient ... coddles the criminal classes of

the population ... and regards the zealous officer of

the law as a greater danger to the community than

the unpunished murderer or embezzler or panderer.”

See Taking Deterrence Seriously: Excluding Unconsti-

tutionally Obtained Evidence 49 McGill L.J. 105, 115-

116 (2004).

The irrational fear of the exclusionary rule as

seen pre-Mapp is similar to the fear of enforcement of

victims’ nights in that applying the exclusionary rule

R.I. Const. art. I, § 23; S.C. Const. art. I, § 24: Tex. Const. art. I,

§ 30; Vitah Const. art. I, § 28; Va. Comst. art. I, § 8-A; Wash.

Const. art. I, § 35; Wis. Const. art. I, § 9m.

to the states could possibly adversely impact criminal

prosecution. However, it is argued that

we can conclude with reasonable confidence

that the American exclusionary rule has had

a significant but limited deterrent effect on

police overreaching. Perhaps the best evi-

dence of the rule’s impact is the dramatic in-

crease in the use of warrants after Mapp v.

Ohio ... , the case that imposed the exclu-

sionary rule on states that had not already

adopted it as a matter of state law. Since

warrant-based searches are more likely to be

constitutional than warrantless ones, we can

infer greater compliance from an increase in

the proportion of the former to the latter. We

car also infer a significant deterrent effect

from the fact that successful suppression mo-

tions are exceptionally rare. Further evi-

dence of the exclusionary rule’s deterrent

impact can be garnered from surveys ques-

tioning police and other justice system offi-

cials about their perceptions and practices.

Almost all of these studies show that these

officials believe that the Rule exerts signifi-

cant deterrent force and that they behave ac-

cordingly.

See McGill L.J. 105, 115-116 (2004).

It is appareni that the just rationele for judicial

integrity in Mapp has left us with a more economic,

fair, and just criminal system, much lke we would

see if victims were afforded remedies when their

rights are violated as is the case with Ms. Palmer.

The Victim here asks for no more than what is guar-

anteed to her by the United States Constitution and

what this Court deemed necessary in Mapp,

a decision, founded on reason and truth,

[that] gives to the individual no more than

that which the Constitution guarantees him,

to the police officer [or agent of the state] no

less than that to which honest law enforce-

ment is entitled, and to the courts, that judi-

cial integrity so necessary in the _ true

administration of justice.

Mapp at 660.

In cenflict with other state and federal courts,

the Maryland Court of Appeals has determined that a

victim has no recourse when denied or failed to

consider a victim’s right. Cf. Kenna v. United States

Dist. Court, 435 F.3d 1011 (9th Cir. 2006) (providing

that under federal law, a sentence without appropri-

ate consideration of the victim could be remanded).

The Kenna Court further commented that crime

victims were no longer just supposed to act like good

Victorian children — seen but not heard. id. at 1013.

B. A VICTIW’S RIGHT TO DUE PROCESS

IS VIOLATED WHEN THEIR OPPOR-

TUNITY TO ENFORCE A STATE RIGHT

IS DENIED.

Maryland’s failure to consider the Petitioner’s

Due Process and Equal Protection claims under the

Fourteenth Amendment violates the dictates of

justice. Maryland’s fundamental law, its constitution,

provides that victims’ interests are ordered liberty

through Article 47 of the Declaration of Rights. Ms.

Palmer is a participant who has been provided statu-

tory and constitutional liberty interests under Mary-

land law found in the States Dec. of Rts. art. 47.

In Marbury v. Madison, 5 U.S. 137 (1803), this

Court stated:

[I]t is a settled and invariable principle in

the laws of England, that every right, when

withheld, must have a remedy, and every in-

jury its proper redress. The government of

the United States has been emphatically

termed a government of laws, and not of

men. It will certainly cease to deserve this

high appellation, if the laws furnish no rem-

edy for the violation of a vested legal right.

There should and must be remedy for the denial

of Ms. Palmer’s state constitutional and statutory

rights; Due Process and Equal Protection under the

Fourteenth Amendment demands no less. A lack of

redress for Ms. Palmer is contrary to the notion of

justice in our country.

“It is this mght to vindicate one’s rights in

court that is the heart of the constitutional

right to Due Process of law. This principle is

expressed in one of the original sources of the

theory of constitutionalism, the Magna

Carta. Section 40 of that document states

that among the duties government owes to

its subjects is that {t]o no one will we sell, to

no one will we refuse or delay, right or jus-

tice.’ This principle is also expressed in the

Supreme Court’s holding that the Due Proc-

ess clause of the Fourteenth Amendment

prevents states from ‘denying potential liti-

gants use of established adjudicatory proce-

dures, when such an action would be the

equivalent of denying them an opportunity to

be heard upon their claimed nght|s].’” Logan

v. Zimmerman Brush Co., 455 U.S. 422

(1982), quoting Boddie v. Connecticut, 401

U.S. 371, 380, 28 L. Ed. 2d 113, 91 S. Ct. 780

(1971).

Morrison v. Lipscomb, 877 F.2d 463, 468 (6th Cir.

1989). This Court, in the interest of justice, should

grant this Writ in order to consider rectifying the

miscarriage of justice which occurred in this case.

Maryland should not be able to deny crime victims

the rule of laws that have created legal interests and

rights by constitutional and statutory enactments.

President Reagan’s Task Force on Victims of Crime

called for appropriate action; its final report in De-

cember 1982 included the following in a letter to

President Reagan,

We found that the perception you [President

Reagan] shared when you gave us our charge

is, unfortunately, true. The innocent victims

of crime have been overlooked, their pleas for

justice have gone unheeded, and their

wounds — personal, emotional, and financial

— have gone unattended.

We also found that there is not quick remedy

to the innocent victim’s plight. Only sus-

tained efforts of federal, state, and local gov-

ernments, combined with the resources of

the private sector, can restore balance to the

criminal justice system.

Citizens from all over the nation told us

again and again how heartened they were

that this Administration has taken up the

challenge, ignored by others in the past, of

stopping the mistreatment and neglect of the

innocent by those who take liberty for license

and by the system of justice itself.

Jurisdictions across the United States responded

to the call of the Reagan Task Force, only to have

courts like the Maryland court below indicate that

the hard-won rights were illusory. (See App. 46) What

the Maryland courts have ignored is that victims, like

all Americans, are entitled to Due Process protections

regarding their interests.

In a different context, Justice Scalia appropri-

ately noted the concern over the failure of courts of

justice to take into account the interests of victims,

Recent years have seen an outpouring of

popular concern for what has come to be

known as “victims’ rights” — a phrase that

describes what its proponents feel is the fail-

ure of courts of justice to take into account in

their sentencing decisions not only the fac-

tors mitigating the defendant’s moral guilt, but

also the amount of harm he has caused to in-

nocent members of society. Many citizens have

found one-sided and hence unjust the crimi-

nal trial in which a parade of witnesses

comes forth to testify to the pressures beyond

normal human experience that drove the de-

fendant to commit his crime, with no one to

lay before the sentencing authority the full

reality of human suffering the defendant has

produced — which (and not moral guilt alone)

is one of the reasons society deems his act

worthy of the prescribed penalty. Booth v.

Maryland, 482 U.S. 496, 520 (1987). (J.

Scalia dissenting).

The lack of Due Process for crime victims is not a

rare or remote event. In a 2004 letter from the Na-

tional Association of Attorneys General to Senators

Kyl and Feinstein, attorneys general from across the

country plainly indicated that the system unfairly

treats victims, denying victims the basic liberties

under law,

As Attorneys General from diverse regions

and populations in our nation, we continue to

see a common denominator in the treatment

of crime victims throughout the country.

Despite the best intentions of our laws, too

often crime victims are still denied basic

rights to fair treatment and Due Process that

should be the birthright of every citizen who

seeks justice through our courts.

See http://www.nvcap.org/AG%20Letter. pdf. Crime

victims like all Americans deserve the rule of law. The

Maryland courts’ failure to enforce a victim’s right to

be informed, present, and heard is extremely unjust

in denying proper process to the victim by a failure to

uphold the law as established in Article 47. This

Court should agree to hear this case to provide that

“liberty and justice to all” includes liberty and justice

to victims of crime.

The adoption of the Fourteenth Amendment

created a federal basis of requiring a remedy for a

violation of a right provided by a state. Holden uv.

Hardy, 169 U.S. 366, 389 (1898) (The Fourteenth

Amendment contains a sweeping provision forbidding

the States from abridging the privileges and immuni-

ties of citizens of the United States and denying them

the benefit of Due Process or equal protection of the

laws). Under federal law, states must therefore

provide for a right — when withheld — a remedy and

every injury shall have its proper redress.

The Supreme Court of the United States has held

that the Fourteenth Amendment is applicable in state

criminal proceedings. This principle has lead to

incorporation of certain rights of the Fourth, Fifth,

and Sixth Amendments to the United States Consti-

tution to make them applicable to the states through

the Due Process Clause. See, e.g., Wolf v. Colorado,

338 U.S. 25, 33 (1949). (Incorporating the Fourth

Amendment to the states; however, not incorporating

the remedy of the exclusionary r de recognizing the

provision “becomes a form and its protection an

illusion.”) Twelve years after Wolf, the Supreme Court

eliminated the illusion of a lack of protection of the

law of the Fourth Amendment by creating a judicial

remedy of exclusion of evidence. Mapp v. Ohio, 367

U.S. 643, 659 (1961) (being “constitutional in origin,

we can no longer permit that right to remain an

empty promise”). To hold otherwise is to grant a right,

but to withhold its privilege and enjoyment is con-

trary to the requirements for the enforcement of

constitutional rights. Jd. at 656. Neither Congress nor

state legislatures have to act and declare an express

legislative “formulated sanction” before the judiciary

can remedy the violation. Cf. Merrill Lynch v. Curran,

456 U.S. 353, 376 (1982) (to prevent “a monstrous

absurdity ... if there be an admitted wrong, the

courts will look far to supply an adequate remedy’”).”

C. A VICTIM’S RIGHT TO EQUAL PRO-

TECTION IS VIOLATED WHEN THEIR

OPPORTUNITY TO ENFORCE A STATE

RIGHT IS DENIED.

The Fourteenth Amendment states that no state

shall “deny to any person within its jurisdiction the

equal protection of the laws.” Congressional inter-

preters of the Fourteenth Amendment held in 1871

that the “protection of the laws” in the Equal Protec-

tion Clause included the right to a remedy, as under

Magna Carta chapter 40. See Christopher R. Green,

The Original Sense of the (Equal) Protection Clause:

* Applying the holding that a legislative body must act

before a defendant’s rights could be remedied would mean that

defendant’s would have no remedies unless expressly provided

by a legislative body. That is not the case for defendants in state

criminal proceedings.

Subsequent Interpretation and Application, 19 GEO.

MASON Civ. Rts. L.J. (forthcoming 2009), available at

http://ssrn.com/abstract=1100121, at 25-27, 66-68

(hereafter Green, Subsequent Interpretation). For

instance, John A. Bingham, who composed the Equal

Protection Clause, equated it to Magna Carta § 40

Cong. Globe, 42nd Cong., lst Sess. app. 83 (March 31,

1871). This interpretation echoed extensive usage of

“protection of the laws” at the time the Equal Protec-

tion Clause was adopted to refer to the right to a

remedy.”

The Supreme Court’s early expositions of the

Equal Protection Clause held that it secured the right

to a remedy, though this requirement was later

neglected as the Court focused instead on the

Clause’s function as a generic antidiscrimination

requirement. In 1885, the Court held that the Four-

teenth Amendment required “access to the courts of

the country for the protection of their persons and

property, the prevention and redress of wrongs.”

Barbier v. Connolly, 113 U.S. 27, 31 (1885); see also

Truax v. Corrigan, 257 U.S. 312, 334 (1921). The

Court reiterated in 1889 that the Equal Protection

Clause required at a minimum “equal accessibility to

the courts for the prevention or redress of wrongs,

and the enforcement of rights.” Minneapolis & St. L.

* Christopher R. Green, The Original Sense of the (Equal)

Protection Clause: Pre-Enactment History, 19 GEO. MASON CIv.

Rts. L.J.1 (2008), available at http://ssrn.com/abstract=1100105,

at 50-52 (hereafter Green, Pre-Enactment History).

Ry. Co. v. Beckwith, 129 U.S. 26, 29 (1889). See also

Green, Subsequent Interpretation at 52-64 (docu-

menting rise of the generic non-discrimination read-

ing of the Equal Protection Clause).

Legal scholarship has documented the extremely

common use of “protection of the laws” at the time of

the adoption of the Equal Protection Clause to refer

to victims’ rights and security against crime. The

Equal Protection Clause imposes on states the duty to

show equal solicitude to all participants in the crimi-

nal justice system within its jurisdiction. See Green,

Pre-Enactment History at 40-45; Green, Subsequent

Interpretation at 71-73. See Green, Pre-Enactment

History at 53 & n.232. In the instant case, the Victim

should be afforded equal solicitude to the other par-

ticipants — the State and the Defendant — as the

Victim has a right in the criminal proceedings under

the “protection of the law.”

Furthermore, a very long tradition in American

political thought views the duty to obey a state’s

decrees and the state’s duty to protect crime victims

as correlative. Given that tradition, “nor [shall any

State] deny to any person within its jurisdiction the

equal protection of the laws” expresses each state’s

duty to protect crime victims within its jurisdiction.

See Green, Pre-Enactment History at 29-36. During

the debates leading to the Civil Rights Act of 1871,

the failure of Southern states to protect black crime

victims from Klan violence was viewed as the para-

digmatic constitutional violation. The black crime

victims of the South did not receive protection from

the violence without a remedy when their constitu-

tional rights were invaded. See Green, Subsequent

Interpretation at 7-33. Similarly, inequality in the

protection of crime victims, even without malicious

motive, violates the original meaning of the Equal

Protection Clause. See Green, Subsequent Interpreta-

tion at 64-65. The State has not provided victims of

crime with adequate protection from violence, be-

cause of a lack of a remedy.

Input from victims in sentencing is obviously a

critical way in which the State may supply victims

with remedial justice, literal protection against future

crime, and punishment of the guilty. However, the

Court of Appeals applied Rule 4-345 to deprive trial

courts of all power to correct mistakes about notice,

presence, and input to victims. Because Ms. Palmer

was not notified of Hoile’s reconsideration hearings

in Prince George’s County, she has therefore been

denied the protection of the laws that has been

supplied to other victims and participants in the

criminal proceeding. Participants whose views are

considered or denied by courts are protected, but not

for Ms. Palmer. Because Ms. Palmer’s inability to

supply the sentencing court with information conced-

edly relevant to its sentencing decision renders her

less adequately protected than others, she has

straightforwardly received less “protection of the

laws” than other participants unless the trial court

has the power to remedy its error.

D. THE PENDULUM HAS SWUNG TO

PROVIDE VICTIMS WITH RIGHTS IN

CRIMINAL CASES.

Private prosecution of criminal cases existed in

the common law and throughout the U.S. until

around 1900. See, e.g., The Crime Victims’ Right to

Attend the Trial: The Reascendant National Consen-

sus, 9 Lewis & Clark L. Rev. 481 (2005) (describing

the historical role of a crime victim in criminal pro-

ceedings). Historically, victims of crime were parties

in state criminal proceedings, and as parties they had

the full right to participate to protect their security

and liberty.

In Maryland, at some unknown point and for

unclear reasons or authority, victims lost their

common rights to prosecute a criminal case. In

Lopez-Sanchez v. State, 388 Md. 214, 224, cert. de-

nied, 546 U.S. 1102, i26 S.Ct. 1042 (2006), this Court

indicated, “The non-party status of crime victims has

been a central precept of Maryland criminal jurispru-

dence ever since public prosecution became the sole

method of enforcing this State’s criminal law.” As a

result of the loss of status as private prosecutors,

crime victims had little or no rights in criminal cases.

In the 1980s, in Maryland and elsewhere in the

United States, statutes were adopted by legislatures

that provided victims with various interests in crimi-

nal cases. In many cases, those statutes were ineffec-

tive for various and sundry reasons. The People of the

State of Maryland, by the powers vested unto them

by the Constitutions of the United States and Mary-

land in 1994, however, amended that social contract

to add Article 47 of the Declaration of Rights. Victims

have regained their legal interests in their security

and liberty in Maryland through constitutional

amendment, statutes, and rules.

1. Victims’ rights, like Defendants’

rights, in state criminal cases, have

remedies for their violations.

The liberty protected by the United States Con-

stitution is more than exemption from physical

restraint and includes the liberty of the mind as well

as liberty of action. See, e.g., Palko v. Connecticut,

302 U.S. 319 (1937). A liberty interest arises from

an expectation or interest created by state law or

policies. Wilkinson v. Austin, 545 U.S. 209, 221

(2005). Ms. Palmer had full expectations that her

rights were real and would be fully applied. Dignity,

respect, and sensitivity are also part of ordered

liberty as defined by the Maryland Constitution, and

as ordered liberties, they are enforceable against the

states. See Md. Const. art. 47(a) of Md. Dec. of Rts.‘

Wolf v. Colorado, 338 U.S. 25, 27 (1949). The United

States Supreme Court has indicated that victims

have a “pewerful and legitimate interest in punishing

* By various statutes, the interests of victims also include “a

bail hearing, change ‘a the defencant’s pretrial release order,

dismissal, nolle prosequi, stetting of charges, trial, disposition,

and post-sentencing proceeding.” Crim. P. Art., §11-104(e)(3).

the guilty” and “to unsettle these expectations is to

inflict a profound injury.” Calderon v. Thompson, 523

U.S. at 556. The rights to be informed, present, and

heard are among the rights and privileges the State

owes to crime victims. See Md. Const. art. 47(b) of

Md. Dec. of Rts. These rights applied to victims under

the Common Law because they were parties as pri-

vate prosecutors in criminal cases. These rights apply

similarly today as the People have spoken through

the adoption of Article 47 and victims have once again

become participants in state criminal proceedings.

Just as the rights of defendants are enforceable

without express remedies, victims’ rights are enforce-

able though the U.S. Const. amend. XIV. The judici-

ary’s obligation is the protection of the laws. Those

provisions and obligations do not discriminate and

provide remedies only for defendants and deny them

to others. Cf. Malloy v. Hogan, 378 U.S. 1, 11 (1964).

A victim has the right to justice just as the defendant

and the State have a right to justice. The federal

Constitution applies; therefore, justice and remedies

are required for all. If a victim has the ability to

“participate in the same manner as a party” and a

party has the ability to obtain remedies, then a victim

can participate in the same manner as “ party to

obtain remedies. Otherwise, without a remedy, a

constitutional violation occurs as victims are denied

the protection of laws.

In Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610

(1983), this Court held, “In creating a novel Sixth

Amendment right to counsel with whom the accused

has a ‘meaningful relationship,’ and ordering retrial,

the Court of Appeals failed to take into account the

interest of the victim in not undergoing the ordeal of

yet a third trial.” And therefore this Court found

there is nothing in the record to support the conclu-

sion that respondent was entitled to a new trial, and

the District Court properly denied relief.” See Morris,

461 U.S. at 2. Using the logic of Morris one would

argue that this Court has made it clear that even

when the defendant has a Constituvuional mght the

court must still consider the rights of the victim.

E. OTHER COURTS HAVE RULED A

COURT MUST SUPPLY A REMEDY FOR

A VIOLATION OF VICTIMS’ RIGHTS.

In Melissa J. v. Superior Court, the Court of

Appeals for California held that termination of resti-

tution without first properly notifying crime victim

of hearing was erroneous. Under Cal. Penal Code

§ 1191.1 victims’ rights legislation gave a crime victim

a right to notice of all sentencing proceedings. There-

fore, a crime victim must be given notice of, and the

right to appear at, a hearing to terminate restitution,

and the victim could challenge a ruling regarding

restitution if the requirements were not satisfied. The

court reasoned that proper determination of victim

mghts cannot take place without notice and an oppor-

tunity for the victim to be heard. See Melissa J. v.

Superior Court, 190 Cal. App. 3d 476, 237 Cal. Rptr. 5

(1987).

In Doe v. U.S., 666 F.2d 43 (4th Cir. 1981), the

4th Circuit determined the text, purpose, and legisla-

tive history of Rule 412 clearly indicate that Congress

enacted the rule for the special benefit of the victims

of rape. The rule, however, made no reference to the

right of a victim to appeal an adverse ruling. Never-

theless, the Court found the remedy is implicit as a

necessary corollary of the rule’s explicit protection of

the privacy interests that Congress sought to safe-

guard. See Doe v. U.S., 666 F.2d 43, 45 (4th Cir. 1981).

The Court held the congressional intent embodied in

Rule 412 would be frustrated if rape victims are not

allowed to appeal an erroneous evidentiary ruling

made at a pre-trial hearing conducted pursuant to the

rule.

F. THE JUDICIARY MUST ENFORCE THE

PROTECTION OF LAWS WITH APPRO-

PRIATE REMEDIES WHEN VICTIMS’

RIGHTS ARE VIOLATED.

The People of Maryland have amended the

State’s social contract to include crime victims’ rights

as part of the State’s fundamental law — its Constitu-

tion. The legislature has implemented those laws.

The Court of Appeals has failed to apply Article 47 of

the Declaration of Rights and the statutes adopted to

implement the constitutional provision to enforce the

protection of those laws creating federal constitu-

tional violations.

For the Maryland Court of Appeals to indicate

that it is the General Assembly’s fault because the

legislature “has not given much substance to the

illusory nature of the enforcement of victims’ rights”

and it is “presumed to be aware of this Court’s inter-

pretation” and “if not legislatively overturned ... to

have acquiesced ... ,” begs the question of the State’s

obligations under the law to remedy violations of

victims’ rights regarding its obligations to the protec-

tion of laws. (See App. 46)

The General Assembly’s failure to overturn case

law is not a proper basis for the failure of the Court of

Appeals to exercise its separate and distinct constitu-

tional duties.” Quoting from Judge Story, this Court

indicated that the “time-honored maxim of the com-

mon law, ‘ubi jus, ibi remedium,’ expanded into the

proportions which belong to a canon of constitutional

constructions” directs a court to use all of its constitu-

tional powers to achieve remedies. Groome v. Gwinn,

43 Md. 572 (1876).

The People established State constitutional

rights for crime victims to protect the People from the

* Apparently under Maryland law, one unknown person

who may have been a staff person of a legislative committee can

eliminate the enforcement for the constitutional rights of crime

victims by preparing a memorandum and including it in a

legislative committee file 11 years before a_ constitutional

amendment was adopted by the People of the State.

infringement of those rights from the Government.°

The Judicial powers of Government under the Consti-

tution are separate and distinct from those of the

Legislative and Executive powers of Government. The

Maryland General Assembly’s failure to act or to

improperly act cannot prevent a court from acting

within the scope of its authority to find a constitu-

tional violation. A Court must step in not only to find

a violation of a right but also to find a remedy, just as

the Circuit Court found a remedy. Article 47 may not

be disregarded by statutory construction to a statute

enacted in 1983 and superseded by a constitutional

enactment in 1994 and statutes and rules to iznple-

ment that constitutional provision. If a state is al-

lowed to “become a lawbreaker, it breeds contempt for

law; it invites every man to become a law into him-

self; it invites anarchy” that the social compact in-

tends to prevent. See, e.g., Elkins v. United States,

364 U.S. 206, 223 (1960) (A government of laws will

fail if the government fails to observe the law scrupu-

lously.). The constitutional duties under the federal

constitution demand a remedy for the violation of Ms.

Palmer’s rights as a victim of crime. Like the Su-

preme Court held in Mapp v. Ohio, this Court should

eliminate illusion regarding victims’ mghts and

° Maryland’s Government includes each part of the separate

Legislative, Executive, and Judicial! Departments of Govern-

ment. See Art. VIII of Dec. of Rts. The prohibitions of the

Fourteenth Amendment apply to legislative, executive, and

judicial authorities in a state. Chicago B. & Q. R. Co. v. Chicago,

166 U.S. 226, 234 (1897).

41]

provide remedies for rights when those rights are

violated.

In certain circumstances, courts lack the power

to supply remedies for rights that have been violated.

For instance, Marbury v. Madison held that Marbury

was entitled to a remedy concerning his commission

but not to a mandamus from the Supreme Court.

However, executive officials had the power to supply a

remedy to vindicate Marbury’s right. See Marbury, 5

U.S. at 168. However, the Court of Appeals agreed

with Ms. Palmer and the trial court that her rights

were violated when Mr. Hoile’s sentence was modified

without her participation — her notice, her presence,

and her input, but the state court still held that the

very court that violated Ms. Palmer’s rights lacked the

power to undo that violation. Because of the State

Court’s interpretation of Rule 4-345, the violation of

her rights must be permanent. As a result, no one at

all has the power to remedy Mr. Hoile’s improperly-

modified sentence. The federal constitution forbids

such a result because rights would never have reme-

dies following this logic contrary to the Fourteenth

Amendment.

Preventing courts from correcting deficient

sentences (without legal vested victim’s participatory

rights) strikes at the heart of protection of victims’

rights laws by eliminating an adequate response to

crime and nullifying participation rights of crime

victims. It is the duty of court to be watchful of a

person’s constitutional rights and to avoid encroach-

ments and constitutional provisions for the security of

person and property should be liberally construed.

Boyd v. United States, 116 U.S. 616, 635 (1886). See

also, Mapp v. Ohio, 367 U.S. 643, 663 (1961) (BLACK,

J., concurring).

There is a blatant conflict between what the

Maryland Court of Appeals has held in this case,

which is to neglect its constitutionally mandated duty

to provide victims with rights, including those under

Article 47. The United States Supreme Court has

previously held states cannot provide rights without

remedies. However this Court has yet to settle this

conflict regarding an application of victims’ mghts.

Lopez-Sanchez v. State, 388 Md. 214, 218, 879 A.2d

695, 697 (2005), cert. denied, 546 U.S. 1102, 126 S.Ct.

1042 (2006). Lamb v. Kontgias, 395 Md. 57 (2006),

cert. denied, 127 S.Ct. 1875 (2007).

In Calderon v. Thompson, 523 U.S. 538, 556, 118

S.Ct. 1489, 1501 (1998), this Court held that where a

federal court of appeals sua sponte recalls its man-

date to revisit the merits of an earlier decision deny-

ing habeas corpus relief to a state prisoner, the court

abuses its discretion unless it acts to avoid a miscar-

riage of justice as defined by habeas corpus jurispru-

dence.

Similar is the instant case, where the trial court

in February 2006 vacated the altered sentence im-

posed in April 2005 and reinstated the immediate

prior sentence that was imposed upon finding a

violation of probation, committing Hoile to the Divi-

sion of Correction for the remainder of the 15-year

sentence. The trial court made this determination

after realizing that the Victim was not properly

notified as required, and therefore the hearing reduc-

ing the sentence to five years probation was an error

that the trial court chose to revisit. Following the

rationale of Calderon, if this error was not corrected

after the trial court held the February 2006 hearing,

it would be a violation of law to not correct the known

error. “Our federal system recognizes the independent

power of a State to articulate societal norms through

criminal law; but the power of a State to pass laws

means little if the State cannot enforce them.” See

Calderon v. Thompson 523 U.S. 538, 556, 118 S.Ct.

1489, 1501 (1998) (quoting McCleskey v. Zant, 499

U.S. 467, 491, 111 S.Ct. 1454, 1469 (1991). In the

instant case, the rights of the People of Maryland are

futile if the Maryland courts fail to fashion remedies

for the violations of Maryland’s constitution require-

ments, statutes, and rules for crime victims.

It is important to recognize the conflict with what

the Maryland Court of Appeals has created through

its decision in Hoile and what the Supreme Court has

stated with respect to crime victims, “[olnly with an

assurance of real finality can the State execute its

moral judgment in a case. Only with real finality can

the victims of crime move forward knowing the moral

judgment will be carried out.” See generally Payne v.

Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d

720 (1991). “To unsettle these expectations is to inflict

a profound injury to the ‘powerful and legitimate

interest in punishing the guilty,’ Herrera v. Collins,

506 U.S. 390, 421, 113 S.Ct. 853, 871, 122 L.Ed.2d

203 (1993) (O'CONNOR, J., concurring), an interest

shared by the State and the victims of crime alike.”

See Calderon at 1501. In the instant case, Ms. Palmer

had a legitimate interest and right to be informed,

present, and heard the reconsideration hearings for

the Defendant. In hearing this case, this Court has

the opportunity to provide victims of crime, including

Ms. Palmer, with a constitutional redress for the

violation of their rights under the Fourteenth Amend-

ment. Rights are not illusory; they are real and

therefore enforceable with remedies.

PETITIONERS’ CONCLUSION

WHEREFORE, Tracy Palmer, Victim, respect-

fully requests that the Petition for Writ of Certiorari

be granted as it presents important issues to the

Court, resolution of which would be in the public

interest not only in a uniform application of remedies

for crime victims but also to apply those rights and

remedies to the states through the Fourteenth

Amendment.

Where courts contrary to the holding cf the

Maryland court appropriately found remedies for

violations of crime victims’ rights include:

I. Fourth Circuit:

i. Doe v. U.S., 666 F.2d 43 (4th Cir.

1981)

Sixth Circuit:

i. U.S. v. Perry, 360 F.3d 519 (6th Cir.

2004)

. Ninth Circuit:

i. Kenna v. U.S. Dist. Court for

C.D.Cal., 435 F.3d 1011 (9th Cir.

2006)

Arizona:

i. State ex rel. Hance v. Arizona Bd. of

Pardons and Paroles, 178 Ariz. 591,

875 P.2d 824 (1993).

California:

i. Melissa J. v. Superior Court, 190

Cal. App. 3d 476, 237 Cal. Rptr. 5

(1987).

People v. Rowland, 51 Cal. App. 4th

1745, 60 Cal. Rptr. 2d 351 (1997).

Coupled with the conflict in law is the need to

clarify historic meaning of the Fourteenth Amend-

ment’s “protection of the laws” clause. Failing to

correct the constitutional errors and omissions on the

guise of state law abrogates this Court’s responsibili-

ties under the federal constitution and for the integ-

rity and public confidence of our justice system.

“Justice for Victims. Justice for All.” (et justice pour

tous).

Respectfully submitted,

RUSSELL P. BUTLER, ESQUIRE

MARYLAND CRIME VICTIMS’

RESOURCE CENTER, INC.

1001 Prince George’s Boulevard,

Suite 750

Upper Marlboro, Maryland 20774

(301) 952-0063

Counsel for Petitioner

' “Jvetice for Victims. Justice for All” is the theme of 2008

Nations! “‘reume Victims’ Rights Week. See http://www.ovc.gov/

ncvrw/welcome.htm!

App. l

SHARDEN BUSIE HOILE v.

STATE OF MARYLAND

No. 87, September Term, 2007

COURT OF APPEALS MARYLAND

948 A.2d 30; 2008 Md. LEXIS 248

May 7, 2008, Filed

JUDGES: Bell, C.J.,* Raker, Harrell, Battaglia,

Greene, Eldridge, John C. (Retired, specially as-

signed), Cathell, Dale R. (Retired, specialy assigned),

JJ. Opinion by Harrell, J.

OPINION BY: Harrell

OPINION

Gallia est omnis divisa in partes tres.' The first

part of this opinion provides underlying facts of the

criminal case and its convoluted procedural path to

our door. The second part explains the Court’s rea-

sons for denying earlier the defendant’s Motion to

Strike Appearance of the crime victim’s attorney in

the appeal. In the third and final part of this opinion,

we shall address the merits of the issues for which

certiorari was granted.

* Raker, J., now retired, participated in the hearing and

conference of this case while on active member of this court;

after being recalled pursuant to the Constitution, Article IV,

Section 3A, she also participated in the decision and adoption of

this opinion.

' Julius Caesar, COMMENTARII DE BELLO GALLICO.

App. 2

I. Facts and Procedural History

On 10 April 1998, Sharden Busie Hoile, Petitioner/

Cross-Respondent here, pled guilty in the Circuit

Court for Prince George’s County to a charge of first

degree assault of Ms. Tracy L. Palmer, a former

romantic partner. Hoile was sentenced to 15 years in

prison, which was suspended in favor of five years of

probation. On 18 May 2001, Hoile was found to have

violated that probation and therefore was ordered by

the trial judge to serve the original 15 year sentence

concurrently with a sentence Hoile then was serving

for a separate conviction in the Circuit Court for

Calvert County.’ Hoile filed a motion for reconsidera-

tion of sentence in the Prince George’s County case.

On 10 December 2004, the Circuit Court for

Prince George’s County held a hearing on Hoile’s

motion. The motion was granted. As a result, Hoile

ostensibly was to be committed to the Department of

Health and Mental Hygiene for substance abuse

treatment.” The Circuit Court for Prince George’s

County forwarded a copy of the order imposing the

altered sentence to the Circuit Court for Calvert

County. The Circuit Court for Calvert County de-

clined, however, to reconsider Hoile’s sentence in its

* The Calvert County conviction was for a crime also

committed against the same victim, Ms. Palmer.

* Pursuant to Maryland Rule 4-345 and Maryland Code

(2000, 2005 Repl. Vol.), Health-General Article, § 8-507, later

amended by Chapter 338 of the Laws of 2006.

App. 3

case. This result occasioned the Circuit Court for

Prince George’s County to hold another hearing on 8

April 2005, at Hoile’s request, to consider the effect

on its 10 December 2004 ruling of the refusal by the

Calvert County court to alter its sentence of impris-

onment.” The Circuit Court for Prince George’s

County, upon reflection, again modified the sentence

in its case, the present one, to time served and placed

Hoile on five years of supervised probation.

“ As best as we may determine from the record before us, on

16 February 2005, the Circuit Court for Calvert County denied

Hoile’s companion motion for reconsideration of sentence filed in

that Court “on the matter for a drug treatment program.”

Palmer was notified of Hoile’s sentence reconsideration efforts in

the Calvert County case. Whether the motion was wholly denied

or some aspect of it remains pending in Calvert County, we are

unable to determine from this record.

° In order for Hoile to be committed for substance abuse

treatment under the altered sentence rendered by the Circuit

Court for Prince George’s County, the Circuit Court for Calvert

County also was required to grant Hoile’s motion for reconsid-

eration in its case. The version of Maryland Code (2000, 2005

Repl. Vol.), Health-General Article, § 8-507(a) in effect at the

time of the reconsideration hearing restricted substance abuse

treatment to defendants for whom “no sentence of incarceration

is currently in effect... .” See Fuller v. State, 169 Md. App. 303,

309 n. 3, 900 A.2d 311, 314 n. 3 (2006), aff’d, 397 Md. 372, 918

A.2d 453 (2007) (“We are persuaded, however, that a petitioner

serving multiple terms of confinement would be eligible for

commitment to [drug and alcohol treatment) if — but only if — all

of the sentencing judges order commitment for treatment.”).

Maryland Code (2000, 2005 Repl. Vol.), Health-General Article,

§ 8-507(a) since has been amended by Chapter 338 of the Laws

of 2006.

App. 4

On 8 December 2005, Ms. Palmer wrote a letter

to the trial judge in Hoile’s case in Prince George’s

County stating that she had not been notified® of

the 10 December 2004 or 8 April 2005 hearings,

although she previously requested such notification

in writing in a letter dated 2 July 1998 to the Assis-

tant State’s Attorney who prosecuted the case.’ The

court held a hearing on 10 February 2006, where

Paimer was represented by counsel, and found as a

fact that the victim had not been notified properly,

as required by Maryland Code (2001, 2007 Cum.

Supp.), Criminal Procedure Article,” §§ 11-104,°

* The record contains two letters from the Prince George’s

County State’s Attorney’s Office announcing the 10 December

2C04 and 8 April 2005 reconsideration hearings, both ostensibly

sent to Palmer prior to the respective hearings. A 24 November

2004 letter informing Palmer of the December 2004 hearing,

however, has the recipient's address biacked out. An 18 March

2005 letter informing of the April 2005 hearing contains no

address at all. In addition, the copy of the 18 March 2005 letter

in the record appears to be an original document, not a photo-

copy of a letter. Thus, viewed alone, these documents do not

resolve whether Palmer, in fact, was sent the required notices.

* At a 10 February 2006 hearing, the Circuit Court found

that Palmer “did everything she could based on the record before

me to be notified and was not notified.”

~ Unless otherwise noted, all statutory references are to

Maryland Code (2001, 2007 Cum. Supp.), Criminal Procedure

Article.

° Section 11-104 contains the statutory scheme by which a

victim may elect to be notified of court proceedings in a criminal

case. If a victim has filed a written request form with the

prosecuting attorney, the prosecuting attorney is required to

(Continued on following page)

App. 5

11-503,° and Maryland Rule 4-345(e\(2) and

“send a victim or victim’s representative prior notice of each

court proceeding in the case... .” § 11-104(e)(1).

Section 11-503 states:

Notice of Subsequent Proceedings.

(a) In this section, “subsequent proceeding” in-

cludes:

(1) a sentence review under § 8-102 of

this article;

(2) a hearing on a request to have a

sentence modified or vacated under the

Maryland Rules;

(3) in a juvenile delinquency proceed-

ing, a review of a commitment order or

other disposition under the Maryland

Rules;

(4) an appeal to the Court of Special

Appeals;

(5) an appeal to the Court of Appeals;

and

(6) any other postsentencing court

proceeding.

(b) Following conviction or adjudication and

sentencing or disposition of a defendant or child re-

spondent, the State’s Attorney shall notify the victim

or victim’s representative of a subsequent proceeding

in accordance with § 11-104(e) of this title if:

(1) before the State’s Attorney distrib-

utes notification request forms under § 11-

104(c) of this title, the victim or victim’s rep-

resentative submitted to the State’s Attorney

a written request to be notified of subse-

quent proceedings; or

(Continued on following page)

App. 6

(f)."" On Palmer’s motion, the trial court vacated the

altered sentence imposed on 8 April 2005.

(2) after the State’s Attorney distrib-

utes notification request forms under § 11-

104(c) of this title, the victim or victim’s

representative submits a notification re-

quest form in accordance with § 11-104(d) of

this title.

(c)(1) The State’s Attorney’s office shall:

(i) notify the victim or vic-

tim’s representative of all appeals

to the Court of Special Appeals and

the Court of Appeals; and

Gi) send an_é= information

copy of the notification to the of-

fice of the Attorney General.

(2) After the initial notification to the

victim or victim’s representative or receipt

of a notification request form, as defined in

§ 11-104 of this title, the office of the Attor-

ney General shall:

(2) notify the victim or vic-

tim’s representative of each sub-

sequent date pertinent to the

appeal, including dates of hear-

ings, postponements, and deci-

sions of the appellate courts; and

(ii) send an _ information

copy of the notification to the

State’s Attorney’s office.

(d) A notice sent under this section shall include

the date, the time, the location, and a brief description

of the subsequent proceeding.

‘ Maryland Rule 4-345 states, in pertinent part:

(e) Modification Upon Motion.

(Continued on following page)

App. 7

After the court vacated the reconsideration of

sentence, the following exchange took place:

Assistant State’s Attorney: And may

I inquire of the Court procedurally, now that

the sentence has been vacated, original sen-

tence stands. Will a new order need to be

(2) Notice to Victims. The State’s At-

torney shall give notice to each victim and

victim’s representative who has filed a

Crime Victim Notification Request form

pursuant te Code, Criminal Procedure Arti-

cle, § 11-104 or who has submitted a wnit-

ten request to the State’s Attorney to be

notified of subsequent proceedings as pro-

vided under Code, Criminal Procedure Arti-

cle, § 11-503 that states (A) that a motion to

modify or reduce a sentence has been filed;

(B) that the motion has been denied with-

out a hearing or the date, time, and location

of the hearing; and (C) if a hearing is to be

held, that each victim or victim’s represen-

tative may attend and testify.

(f) Open Court Hearing. The court may modify,

reduce, correct, or vacate a sentence only on the re-

cord in open court, after hearing from the defendant,

the State, and from each victim or victim’s represen-

tative who requests an opportunity to be heard. The

defendant may waive the right to be present at the

hearing. No hearing shall be held on a motion to mod-

ify or reduce the sentence until the court determines

that the notice requirements in subsection (e)(2) of

this Rule have been satisfied. If the court grants the

motion, the court ordinarily shall prepare and file or

dictate into the record a statement setting forth the

reasons on which the ruling is based.

App. 8

issued to the Department of Corrections so

that regardless of Mr. Hoile’s status in his

Calvert County case, that he is — he is incar-

cerated under the sentence in this matter?

Counsel for Palmer: A new commit-

ment order will need to be filed Your Honor.

Court: The Clerk agrees with you, and

I’m sure she will look into that.

In effect, the vacation of Hoile’s reconsidered

sentence reinstated the immediate prior sentence (the

one imposed upon finding a violation of probation), at

least until the trial judge were to act anew on the

now resurrected motion to reconsider sentence.

Before the judge could move on to revisit the merits of

Hoile’s Motion to Reconsider Sentence at the 10

February 2005 hearing, Hoile asked for a continu-

ance. One was granted.

On 13 February 2006, a new commitment order

was filed by the Clerk of the Circuit Court, commit-

ting Hoile to the Division of Correction for the re-

mainder of the 15 year sentence.”

* Specifically, the commitment order stated:

Reconsideration of sentence on 4/08/05 is vacated.

Concurrent with Calvert County K-00-147. Probation

terminated unsatisfactorily, Parcle and

may close their interest in this case. Any bench war-

rants are recalled. All costs, fines and restitution

deemed uncollectible.

App. 9

Hoile filed an immediate appeal to the Court of

Special Appeals. In addition, Hoile filed a motion to

exclude Palmer’s' participation, individually or

through counsel, as a party to the proceedings in the

Court of Special Appeals. The intermediate appellate

court originally denied the motion, without prejudice,

permitting Hoile to seek the same relief in his reply

brief or at oral argument. Counsel! for Palmer filed a

brief (accepted by the intermediate appellate court)

and participated in oral argument in the Court of

Special Appeals as if a party. Although Hoile, in his

reply brief, renewed his request to strike the appear-

ance of Palmer’s counsel, the Court of Special Appeals

dismissed the appeal without acting on the motion.

The intermediate appellate court, in an unreported

opinion, dismissed the appeal as premature because

the trial judge in the Circuit Court for Prince

George’s County had not acted yet on the revived

motion to reconsider sentence.”

On 5 December 2007, we granted Hoile’s Petition

for Writ of Certiorari and the State’s Cross-petition.

The Petition and Cross-petition collectively raise four

questions:

'’ The mandate of the Court of Special Appeals, issued on 24

September 2007, lists only the State of Maryland as Appellee.

The Certification of Transmission of Record to this Court,

however, lists Palmer’s attorney, in addition to the Office of the

Attorney General for the State, as one of the atterneys for

“Respondents.”

App. 10

1. Did the Court of Special Appeals err

by dismissing Petitioner’s appeal from an or-

der of the trial court reimposing Petitioner’s

sentence of incarceration where the tnal

court previously had granted [Hoile’s] motion

for reconsideration and modified his sentence

to probation but then vacated that sentence

at the request of the victim who alleged she

had not been notified of the reconsideration

hearing?

2. Did the trial court illegally increase

[Hoile’s}] sentence when it vacated his sen-

tence of probation and reimposed a sentence

of incarceration?

3. Did the trial court err in granting a

motion to vacate judgment where that mo-

tion was filed by the victim, a non-party to

the case?

4. Is Hoile precluded from arguing that

the trial court illegally increased his sen-

tence?

On 3 January 2008, Hoile filed a Motion to Strike

the Appearance of Counsel for Palmer in the proceed-

ings before this Court. Palmer opposed the motion.

The State filed a memorandum of law, the content of

which we interpret as urging the Court to “do the

right thing” regarding the motion. On 11 March 2008,

after hearing oral arguments on the motion only from

Hoile and Palmer (the State declined to argue), we

issued an Order denying Hoile’s motion. In section II

of this opinion we explain our reasons for denying the

motion. Although an interlocutory ruling, the denial

App. 11

of the motion deserves an explanation because of the

relative “sea change” in our jurisprudence it repre-

sents regarding the status of a victim’s participation

in a criminal appeal.

II. Motion to Strike Appearance of Counsel

In his Motion and supporting Memorandum of

Law, Hoile contended that Palmer is not a party and

should not be able to participate in the case as a

matter of right.'* Palmer countered that she has a

right to brief and argue the issues in the case as if a

party, citing, among other supporting reasons, recent

changes to Maryland Rule 8-111.”

‘“* Hoile and the State agree that Palmer may participate in

the case as an amicus curiae, as opposed to a party.

** Maryland Rule 8-111 is found in Title 8 of the Maryland

Rules. Title 8 is titled “Appellate Review in the Court of Appeals

and the Court of Special Appeals.” Thus, the rights available to a

victim under Maryland Rule 8-111 are effective only once a case

has reached the threshold of the appellate realm, i.e., an appeal-

able judgment or order has been entered by a trial court.

Maryland Rule 8-111 currently states:

DESIGNATION OF PARTIES; REFERENCES

(a) Formal Designation.

(1) No Prior Appellate Decision. When

no prior appellate decision has been rendered,

the party first appealing the decision of the

trial court shall be designated the appellant

and the adverse party shall be designated

the appellee. Unless the Court orders oth-

erwise, the parties to a subsequently filed

(Continued on following page)

App. 12

Section (c) was added by a Rules Order of this

Court signed on 4 December 2007. The change

appeal shall be designated the cross-

appellant and cross-appellee.

(2) Prior Appellate Decision. In an

appeal to the Court of Appeals from a deci-

sion by the Court of Special Appeals or by a

circuit court exercising appellate jurisdic-

tion, the party seeking review of the most

recent decision shall be designated the peti-

tioner and the adverse party shall be desig-

nated the respondent. Except as otherwise

specifically provided or necessarily implied,

the term “appellant” as used in the rules in

this Title shall include a petitioner and the

term “appellee” shall include a respondent

(b) Alternative References. In the interest of

clarity, the parties are encouraged to use the designa-

tions used in the trial court, the actual names of the

parties, or descriptive terms such as “employer,” “in-

sured,” “seller,” “husband,” and “wife” in papers filed

with the Court and in oral argument.

though not a party to a criminal or juvenile proceed-

ing, a victim of a crime or a delinquent act or a

victim’s representative may:

(1) file an application for leave to ap-

peal to the Court of Special Appeals from an

interlocutory or a final order under Code,

Criminal Procedure Article, § 11-103 and

Rule 8-204; or

(2) participate in the same manner as

a party regarding the rights of the victim or

victim's representative. [Emphasis added. |

App. 13

became effective on 1 January 2008." Thus, this

motion presents our first opportunity to construe the

new portions of the rule. Palmer contends that Mary-

land Rule 8-111(c)(2) permits her to participate in this

appeal “in the same manner as a party.” Under the

circumstances of this case, we must agree that

Palmer has the right to brief and argue in this ap-

peal.

Because this is our first application of Maryland

Rule 8-111(c) since its adoption, some relevant retro-

spection is required. Article 47 of the Maryland

Declaration of Rights, the Victims’ Rights Amend-

ment,” states:

(a) A victim of crime shall be treated by

agents of the State with dignity, respect, and

sensitivity during all phases of the criminal

justice process.

(b) In a case originating by indictment or

information filed in a circuit court, a victim

of crime shall have the nght to be informed

of the rights established in this Article and,

upon request and if practicable, to be notified

of, to attend, and to be heard at a criminal

justice proceeding, as these rights are im-

plemented and the terms “crime”, “criminal

Hoile conceded at oral argument on the motion to strike

that the revised rule applies to the present case.

" Article 47 was ratified by the voters of Maryland on 8

November 1994.

App. 14

justice proceeding”, and “victim” are specified

by law.

cause of action for monetary damages for vio-

lation of any of its provisions or authorizes a

victim of crime to take any action to stay a

criminal} justice proceeding.

Article 47 represents “the strong public policy

that victims should have more rights and should be

informed of the proceedings, that they should be

treated fairly, and in certain cases, that they should

be heard.” Lopez-Sanchez v. State, 388 Md. 214, 229,

879 A.2d 695, 704 (2005), superceded by statute on

other grounds by Chapter 260 of the Acts of 2006.

Article 47 and related legislation have created a class

of specific, but narrow, rights for victims with regard

to certain aspects of the criminal proceedings against

the perpetrators of the crimes committed against

victims or their property. For example, § 11-104

provides the statutory scheme by which a victim may

elect to be notified of the proceedings in the relevant

criminal case. Section 11-102 grants victims the right

to attend any proceeding in which the right to attend

is granted to the defendant. Section 11-302 defines

victims’ rights to be present at trial. Sections 11-402

and 11-403 elaborate victims’ rights to be heard

regarding pre-sentence investigative reports and at

sentencing hearings, respectively. Section 11-404

defines victims’ rights to address juries in death

penalty proceedings. Section 11-503 grants victims

the right to be notified of post-conviction appeals and

other proceedings.

App. 15

Section 11-103 provides that a victim may file an

action for leave to appeal an interlocutory or final

order that “denies or fails to consider” a right granted

to him or her by certain statutory provisions. The

application for leave to appeal, however, does not stay

other proceedings in a criminal case, unless all par-

ties consent.” § 11-103(c); Article 47 of the Maryland

Declaration of Rights.

These rights, however, are limited in application

and context. In the present case, for example, Palmer

is not a party to the litigation. § 11-103(b); Maryland

Rule 8-111(c). There are only two parties, the State of

Maryland and Hoile. See Lopez-Sanchez, 388 Md. at

226 879 A.2d at 702 (“The victim is not a party to the

proceeding ... although vested with statutory and

constitutional rights. ...”); Surland v. State, 392 Md.

17, 23 n.1, 895 A.2d 1034, 1037 n. 1 (2006). As such,

there are some important differences between the

rights of parties and those of non-parties enjoying

limited rights regarding participation in criminal

litigation. Although a victim may “file an application

for leave to appeal,” he or she does not have a right to

appeal is a major limitation on victims’ rights. See Cianos v.

State, 338 Md. 406, 411 n.5, 659 A.2d 291, 294 n.5 (1995) (“While

it is possible for an application for leave to appeal to stay the

proceeding if all the parties agree to the stay, we note that the

chances of a criminal defendant agreeing to a delay in sentenc-

ing, so that his victims may have the opportunity to appeal a

perceived denial of victim’s rights, are something less than

unlikely.”).

App. 16

appeal as a party does. Maryland Code (1974, 2006

Repl. Vol.), Courts & Judicial Proceedings Article,

§ 12-301. A non-party’s right to participate in the

litigation is limited to “decisions affecting the party’s

direct and substantial interests.” Lopez-Sanchez, 388

Md. at 227, 879 A.2d at 702.

The limits of victims’ rights have been defined

further in Maryland caselaw. In Cianos v. State, 338

Md. 406, 659 A.2d 291 (1995), we held that victims

who erroneously were denied a right to speak at the

defendant’s sentencing were not entitled to maintain

an appeal. In so holding, we noted that the statute

enabling victims to speak at sentencing had “no

teeth” because victims could not seek invalidation of

the sentence. Cianos, 338 Md. at 412, 659 A.2d at 294

(quoting Lodowski v. State, 302 Md. 691, 747, 490

A.2d 1228, 1256-57 (1985)).

We _ re-affirmed that proposition in Lopez-

Sanchez, 388 Md. 214, 879 A.2d 695. In Lopez-

Sanchez, a victim of a violent crime committed by a

juvenile sought to appeal an inadequate restitution

amount awarded in the disposition of the juvenile

court proceeding. We held that if “the prosecutor or

the trial court does not follow the law with respect to

a victim’s rights in a juvenile proceeding, the Legisla-

ture has not given to the victim the general right to

appeal that decision.” Lopez-Sanchez, 388 Md. at 230,

879 A.2d at 704. In response to our holding in Lopez-

Sanchez, the General Assembly enacted Chapter 260

of the Acts of 2006, which amended § 11-103 to extend

victims’ rights to file an application for leave to

App. 17

appeal to orders arising from a juvenile proceeding,

including disposition hearings under Maryland Code

(1974, 2006 Repl. Vol.), Courts & Judicial Proceedings

Article, § 3-8A-19.

After the Legislature amended § 11-103, our

Standing Committee on Rules of Practice and Proce-

dure (“Rules Committee”) proposed changes ostensi-

bly to conform the relevant rules to the new

legislation. The Rules Committee proposed amending

Maryland Rule 8-111 to “extend[] the right to file an

application for leave to appeal to a victim of a [juve-

nile] delinquent.”” 158th Report of the Standing

Committee on Practice and Procedure, 26 September

2007, available at http://www.courts.state.md.us/rules/

reports/1L58thReport.pdf. We adopted the proposed

rule changes by a Rules Order dated 4 December

2007. The new subsection (c) of Maryland Rule 8-111

became effective on 1 January 2008.

“To interpret rules of procedure, we use the same

canons and principles of construction used to inter-

pret statutes.” State ex rel. Lennon v. Strazzella, 331

Md. 270, 274, 627 A.2d 1055, 1057 (1993). “We thus

'* The Rules Committee also proposed minor amendments

to Maryland Rules 1-326 and 8-204 to conform to the 2006 post

Lopez-Sanchez changes to § 11-103. The alteration to Maryland

Rule 1-326 was merely to include a reference to “Title 8” of the

Maryland Rules in the rule permitting counsel to enter appear-

ance on behalf of a victim. The amendments to Maryland Rule 8-

204 included inserting language throughout the rule expressly

including juvenile court proceedings as a type of proceeding for

which an application for leave to appeal may be sought.

App. 18

look to the plain meaning of the language employed

in these rules and construe that language without

forced or subtle interpretations designed to limit or

extend its scope.” J 7e v. State, 332 Md. 654, 658-59,

632 A.2d 1183,1185 (1993).

Subsection (c) of the Rule goes beyond merely

ensuring that victims of crimes committed by juve-

niles are granted the same rights as other crime

victims. Subsection (c)(1) alone conforms and carries

out the provisions of § 11-103.” Section 11-103(b)

refers to twelve specific statutory rights granted to

victims. If any of those specific statutory rights are

violated, the victim may seek leave to appeal.

In the present case, however, subsection (c)(1) of

Rule 8-171 is not what concerns us. Instead, subsec-

tion (c)(2) is implicated. Subsection (c\2) of Maryland

Rule 8-111 permits a victim to “participate in the

Same manner as a party regarding the rights of the

victim. ...” This subsection stands as the analog to

subsection (cX1). The two subsections address differ-

ent contexts: if a victim is aggneved by an adverse

trial court action affecting one or more of the twelve

statutory rights referred to in § 11-103(b), subsection

(c)(1) applies, and the victim may seek leave to appeal

under § 11-103(b); if a victim is content with the

implicated trial court action, but a party appeals, the

* The reference to Maryland Rule 8-204 in subsection (c1)

creates the time frame in which a victim must file an application

for leave to appeal.

App. 19

victim may “participate in the same manner as a

party” in that appeal, but only with regard to the

victim’s righis. Victims’ rights under subsection (c)(2)

extend only as far as, and are subject to, the same

limitations as victims’ rights under subsection (c)(1)

and § 11-103(b).

Our interpretation of subsection (c) of the Rule is

supported by the employment in it of the disjunctive

connector “or” between (c)(1) and (c)(2). “The word ‘or’

is a disjunctive conjunction which serves to establish

a relationship of contrast or opposition.” Walker uv.

Lindsey, 65 Md. App. 402, 407, 500 A.2d 1061, 1064

(1985). Accordingly, subsections (c)(1) and (c)(2) must

have been intended to be independent and mutually

exclusive provisions applying in the different contexts

explicated here.

Our construction of Maryland Rule 8-11l(c) in

this fashion avoids potentially anomalous results. If

the level of appellate participation afforded victims

under subsection (c)(2) were less than the level of

participation potentially afforded under subsection

{c)(1), crime victims would be unable in the former to

protect their potentially more meritorious claims. A

victim seeking to “participate in the same manner as

a party” under subsection (c)(2) in a party’s appeal at

least has benefitted from a ruling or judgment of the

trial court. That ruling, favorable to the victim, could

be the subject of an appeal as of right by a party. By

contrast, subsection (c)(1) applies where the victim’s

rights are affected by an unfavorable ruling below

and seeks leave to appeal.

App. 20

As noted above, the amendments to Maryland

Rule 8-111 go beyond merely carrying out the changes

indicated in Chapter 260 of the Acts of 2006. The

addition of subsection (c)(2) has the effect of changing

further the landscape of a victim’s role in appellate

criminal proceedings. In other words, the recent

amendments to Maryland Rule 8-111 serve as a

distinguishing feature between the present case and

Maryland precedent where Maryland’s appellate

courts have restricted more narrowly victims’ roles in

criminal appeals. See Surland, 392 Md. at 23 n.1, 895

A.2d at 1037 n.1 (holding that a homicide victim’s

parents did not have standing as victims’ representa-

tives to file a brief or participate in oral argument in

the Court of Appeals); Cranos, 338 Md. at 412, 659

A.2d at 294 (holding that crime victim’s relatives

lacked standing to appeal sentence); Lamb v. Kont-

gias, 169 Md. App. 466, 479, 901 A.2d 860, 867 (2006)

(holding that the victim had no standing to appeal

the lack of notice of, and opportunity to speak at, a

hearing to reconsider sentence).

This Court previously, by Rule change, altered

the landscape of prior caselaw in other areas of the

law as well. See, e.g., Committee Note to Maryland

Rule 5-607 (noting that the adoption of Maryland

Rule 5-607 in 1994 “eliminate[d]” the common-law

voucher rule); Wilson v. Holliday, 364 Md. 589, 598-

601, 774 A.2d 1123, 1128-30 (2001) (describing why,

following Lynch v. Lynch, 342 Md. 509, 677 A.2d

584 (1996), the Court of Appeals enacted Maryland

Rule 15-207(e) governing spousal and child support

App. 21

enforcement through contempt proceedings, abrogat-

ing the holding in Lynch); Greco v. State, 347 Md. 423,

433 n.4, 701 A.2d 419, 423 n.4 (1997) (noting how

Maryland Rule 4-345 had been modified to abrogate the

holding in State v. Sayre, 314 Md. 559, 552 A.2d 553

(1989), regarding mistakes in announcing sentence);

Kang v. State, 163 Md. App. 22, 44-45, 877 A.2d 173,

185-86 (2005), aff’d, 393 Md. 97, 899 A.2d 843 (2006)

(noting that the addition of Maryland Rule 4-323(b)

limited the effect of “[n]umerous cases of the Court of

Appeals” by permitting, for the first time, a continu-

ing objection); Hoang v. Hewitt Ave. Assocs., LLC, 177

Md. App. 562, 581, 936 A.2d 915, 926-27 (“Such was

the state of Maryland law of pleading and damages

when the Court of Appeals decided Falcinelli v.

Cardascia, 339 Md. 414, 663 A.2d 1256 (1995), and

Scott v. Jenkins, 345 Md. 21, 690 A.2d 1000 (1997).

Those cases prompted amendments to the Maryland

Rules that are important to the issue before us.”);

Williams v. State, 110 Md. App. 1, 23 n.6, 675 A.2d

1037, 1048 n.6 (1996) (noting how Maryland Rule 1-

502 [since replaced by Maryland Rule 5-609] altered

the admission into evidence convictions of infamous

crimes); Moaney v. State, 28 Md. App. 408, 415, 346

A.2d 466, 471 (1975) (“The abrogation of the common

law right to indictment is clearly shown by the

amendments to Rule 709.”).

In the present case, Palmer was authorized to

participate in briefing and oral argument before this

Court on 3 April 2008 on the issues that directly and

substantially affected her specific statutory rights

App. 22

enumerated in §11-103(b), as implicated by the

parties’ certiorari questions. Lopez-Sanchez, 388 Md.

at 227, 879 A.2d at 702. In the trial court, Palmer

successfully filed and argued a motion to vacate

reconsideration of Hoile’s sentence based on asserted

denial of her rights. Palmer now argues that the

motion was necessary in order to protect her rights to

be notified, attend, and be heard under §§ 11-102, 11-

104, 11-403 and 11-503. The resolution of the present

appeal on the merits will affect Palmer’s “direct and

substantial interests.” Lopez-Sanchez, 388 Md. at

227, 879 A.2d at 702. Therefore, she was permitted to

participate in a manner similar to a party, including

participating in oral argument and filing a brief.”

III. Merits of the Present Appeal

A. The Granting of the Motion to Vacate

Reconsideration of Sentence is an Ap-

pealable Judgment

The Court of Special Appeals dismissed Hoile’s

appeal as premature, holding that the vacation of

Hoile’s altered sentence of time served and five years

probation was not an appealable final judgment. It is

a long-standing principle of our appellate jurispru-

dence that generally, “an appeal in a criminal case is

premature until after final judgment.” Dail v. Price,

*' For the purposes of Rule 8-111(c2), Palmer, and future

persons in a similar procedural posture, shall be designated as

“Victim,” not as a Petitioner or Respondent.

App. 23

184 Md. 140, 143, 40 A.2d 334, 336 (1944); Maryland

Code (1977, 2006 Repl. Vol.), Courts & Judicial Pro-

ceedings Article § 12-301. “Because of the difficulty in

determining whether an issue before an appellate

court arises from a final judgment, this Court has

formulated a definition: The judgment must be so

final as to determine and conclude rights involved, or

deny the appellant means of further prosecuting or

defending his rights and interests in the subject

matter of the proceeding....” Sigma Reproductive

Health Ctr. v. State, 297 Md. 660, 665, 467 A.2d 483,

485 (1983) (internal quotation omitted). In a basic

sense, “a final judgment consists of a verdict [in a

criminal case] and either the pronouncement of

sentence or the suspension of its imposition or execu-

tion.” Lewis vu. State, 289 Md. 1, 4, 421 A.2d 974

(1980). “Usually, a criminal case is complete and

disposed of when sentence has been pronounced and,

generally, sentence is the punishment to be inflicted

on the convicted person in the form of imprisonment

or fine or both.” Langworthy v. State, 284 Md. 588,

596-97, 399 A.2d 578, 583 (1979) (footnote and cita-

tion omitted), superseded by statute on other grounds

as stated in Treece v. State, 313 Md. 665, 547 A.2d

1054 (1987). “When sentence is pronounced or im-

posed, there is a final judgment for purposes of ap-

peal.” State v. Sayre, 314 Md. 559, 565, 552 A.2d 553,

556 (1989), superceded by Rule change on other

grounds as stated in Greco v. State, 347 Md. 423, 433

n.4, 701 A.2d 419, 423 n.4 (1997).

App. 24

The State contends that because “a new sentence

has not yet been imposed, there is no final judgment

and no appealable order.” The State, in this argu-

ment, takes a narrow view of what constitutes a

sentence “imposed” by a court. The State urges that

the original sentence of 15 years incarceration was

not reimposed on Hoile, rather, it simply was “resur-

rected,” “revived,” “sprung back,” or “reverted” by

virtue of the court’s vacation of the altered sentence

of time served and five years’ probation. The State’s

argument ignores the procedure required to “revive”

Hoile’s original sentence and our caselaw which takes

a broader view of what constitutes the imposition of

sentence.

In McDonald v. State, 314 Md. 271, 550 A.2d 696

(1988), we rejected the argument that an original

sentence was “revived” when reimposed on a defen-

dant. McDonald was convicted of solicitation and was

sentenced to a six-month suspended sentence with

supervised probation for one year. Later, the trial

court found that McDonald violated her probation

and reimposed the six-month sentence. The trial

court denied McDonald’s Rule 4-345 motion for recon-

sideration of sentence because more than 90 days

elapsed since the original imposition of sentence. We

held that the reinstating of a suspended sentence

following the parole violation constituted an imposi-

tion of sentence. We noted that “[w]Jhether the hear-

ing judge reimposes the original sentence or imposes

a new sentence, the effect under Rwe 4-345[] re-

mains the same... .” McDonald, 314 Md. at 285, 550

App. 25

A.2d at 702. We expressly adopted the reasoning of

the Court of Special Appeals in Coley v. State, 74 Md.

App. 151, 156, 536 A.2d 1166, 1169 (1988), where the

intermediate appellate court stated that “if an order

revoking a defendant’s probation returns the hearing

judge to the original sentencing status, then any

sentence so imposed must have the effect of an origi-

nal sentence.” The Court of Appeals concluded that

“(t]he 90-day period runs from the time any sentence

is imposed or reimposed upon revocation of proba-

tion... .” McDonald, 314 Md. at 285, 550 A.2d at 702.

In Greco, 347 Md. 423, 701 A.2d 419, we ad-

dressed whether a reduction in sentence as a result of

a defendant's motion for reconsideration was an

“Imposition of sentence.” Greco was convicted in 1984

of first degree murder and first degree rape. Greco,

347 Md. at 426, 701 A.2d at 420. He was sentenced to

consecutive terms of life imprisonment. Jd. The

defendant filed a motion for reconsideration of sen-

tence, which was held sub curia by the trial court

until 1992. Jd. In 1992, the trial court modified

Greco’s sentence to concurrent life terms of impris-

onment. Jd. Shortly thereafter, Greco filed another

motion for reconsideration of sentence under Mary-

land Rule 4-345. Jd. The trial court ruled that it was

divested of jurisdiction to hear Greco’s new motion for

reconsideration of sentence because more than 90

days had passed since the original imposition of

sentence in 1984. Jd. The Court of Appeals held that,

by reducing Greco’s sentence in 1992, the trial court

had imposed a new sentence, thus resetting the

App. 26

90-day clock. Greco, 347 Md. at 432 701 A.2d at 423.

Therefore, we also held that Greco was entitled to be

heard on his new motion for reconsideration of sen-

tence. Jd. Greco stands for the proposition that the

granting of a motion for modification of sentence

constitutes the imposition of a new sentence. Accord

State v. Green, 367 Md. 61, 83-84, 785 A.2d 1275,

1288 (2001) (“[O]ur cases make clear that when a

trial court grants a motion to revise a criminal sen-

tence, it resurrects the penalty portion of a judgment,

thus, the new sentence represents the actual disposi-

tion of the case and the modified sentence becomes

the appealable order.”). The State offers no persua-

sive argument as to why the vacation of the grant of

an identical motion does not also constitute an impo-

sition of a new sentence. See Green, 367 Md. at 83-84,

785 A.2d at 1288 (rejecting an argument described as

“exceedingly technical” and holding that when a trial

court revises sentence “the new sentence represents

the actual disposition of the case and the modified

sentence becomes the appealable order”); Webster, 359

Md. at 477, 754 A.2d at 1010 (finding an appealable

judgment where “the collateral motion . .. was granted,

and resulted in the imposition of a new sentence”).

The State’s reasoning, were it to be adopted,

could lead to potentially anomalous results. If the

State had opposed Hoile’s initially successful motion

for reconsideration of sentence on the grounds that it

was a violation of either the Maryland Code or the

Maryland Rules, the State clearly would have the

right to appeal. Maryland Code (1974, 2006 Repl.

App. 27

Vol.), Courts & Judicial Proceedings Article, § 12-

302(cKX2); Green, 367 Md. at 84, 785 A.2d at 1288

(2001); Webster, 359 Md. at 477, 754 A.2d at 1010. The

State, instead, offered no opposition to Hoile’s motion

and allowed its time for appeal from the grant thereof

to expire. The State then supported Palmer’s motion

to vacate reconsideration of sentence after the time

expired for the State’s appeal from the decision on the

motion. See State v. Wilkins, 393 Md. 269, 273, 900

A.2d 765, 768 (2006) (“In other words, a motion to

correct an illegal sentence is not an alternative

method of obtaining belated appellate review of the

proceedings that led to the imposition of judgment

and sentence in a criminal case.”). In essence, the

State joined in a motion seeking to reverse a decision

of the Circuit Court for which the State’s time to

appeal had expired.

Hoile also points out that if the Circuit Court

were to deny his resurrected pending motion for

modification of sentence, he would have no opportu-

nity to appeal. The State’s brief is conspicuously

silent in response to this argument. There is much

caselaw holding that the denial of a motion to modify

a sentence, unless tainted by illegality, fraud, or

duress, is not appealable. See, e.g., Costello v. State,

237 Md. 464, 469-70, 206 A.2d 812, 815 (1965) (hold-

ing that where the defendant alleged a violation of

the “constitutional right to due process of law,” the

defendant would be permitted to appeal a denial of a

motion to modify sentence as an “exception to the

general principle”); State v. Rodriguez, 125 Md. App.

App. 28

428, 442, 725 A.2d 635, 642 (1999) (“As a general rule,

‘fa] motion to modify or reduce a sentence is directed

to the sound discretion of the trial court and is not

appealable.’” (quoting State v. Strickland, 42 Md.

App. 357, 359, 400 A.2d 451, 452 (1979))). This clear

principle, however, might be seen as called into

question recently by dicta” in Fuller v. State, 397 Md.

372, 918 A.2d 453 (2007) (Fuller 11). For the purpose

of clarity, we explain that a denial of Hoile’s pending

motion for modification of sentence would have been

unappealable.

” The analysis in Fuller JI of the right to appeal a court’s

discretionary denial of motion to reconsider sentence is entirely

dicta. The issue in Fuller I] was whether a defendant who

moved to be committed to drug and alcohol treatment and was

denied such relief could appeal the court’s order. Fuller at-

tempted to analogize his efforts to be committed to treatment to

a vanety of other motions, including motions for modification of

sentence under Maryland Rules 4-345(a) (illegal sentence) and

4-345(e) (modification in the discretion of the court). Fuller H,

397 Md. at 387, 918 A.2d at 462. The Court in Fuller JI ulti-

mately concluded that “(t]he denial of a Section 8-507 [of the

Health-General Article} petition for commitment, however, is not

analogous to the denial of a motion for modification. Unlike a

motion for modification, a petition for commitment does not

affect the length of a sentence, only where a portion of it is to be

served.” Fuller II, 397 Md. at 389, 918 A.2d at 463. Thus, the

dicta in Fuller II was only included for purpose of comparison

and was of little actual value in determining the ultimate

outcome in that case.

* Although the following discussion itself may seem like

unnecessary dicta, it is, in fact, integral to the outcome of the

present case. A non-party to his case, Palmer, filed and prose-

cuted a successfu!] motion to vacate after the time for the State's

(Continued on following page)

App. 29

The proper perspective from which to analyze

Fuller IJ begins with the Court of Special Appeals’s

opinion in that case, Fuller v. State, 169 Md. App.

303, 900 A.2d 311 (2006) (Fuller I). The Court of

Special Appeals in Fuller J surveyed prior reported

cases and noted its synthesized “conclusion that this

Court does not have jurisdiction to review the ruling

at issue is entirely consistent with the well settled

rule (never modified by the General Assembly) that,

unless the circuit court erroneously concludes that it

does not have jurisdiction to consider the defendant’s

motion for modification, no direct appeal lies from the

circuit court’s denial of a motion for modification or

reduction of a sentence that the defendant concedes

to be a legal sentence.” Fuller I, 169 Md. App. at 309-

310, 900 A.2d at 315 (foctnotes omitted). We affirmed

the judgment of the Court of Special A»peals, but our

reasoning on this issue appeared to differ. In support

of its assertion that no appeal lies from the refusal to

modify a legal sentence, except where it declines to

exercise jurisdiction, the Court of Special Appeals

relied on Costello. Fuller I, 169 Md. App. at 310 n.6,

900 A.2d at 315 n.6. We, however, disagreed with that

reliance, noting that “[wJe disagree with the State’s

opportunity for appeal expired, resulting in a dramatic increase

in Hoile’s previously prevailing sentence. It would be contrary to

the interests of justice to preclude Hoile from appellate review

entirely under these circumstances. It would be unfair to hold

that Hoile must wait for the trial court to rule on his pending

motion for modification of sentence, only to have denial of that

motion be unappealable.

App. 30

rationale relying upon Costello . . . that a decision left

to the discretion of the trial court judge is not review-

able on appeal, because that justification was obvi-

ated in Merritt [v. State], 367 Md. 17, 785 A.2d 756, in

which we examined the appealability of the denial of

a motion for a new trial.” Fuller IJ, 397 Md. at 388,

918 A.2d at 462. Then, quoting contrasting dicta in

Greco, 347 Md. at 423, 701 A.2d at 419, the Court in

Fuller II stated that “‘[iJf the motion is denied, the

defendant is finished — he or she may not file another

motion for reconsideration.” Fuller II, 397 Md. at

389, 918 A.2d at 463 (quoting Greco, 347 Md. at 423,

701 A.2d at 419). This undeveloped dicta could be

read to call into question the clearly articulated

earlier rule prohibiting appeal of a discretionary

denial! of a timely motion for modification of sentence

under Maryland Rule 4-345(e) and its predecessors.

The language in Fuller IJ, as construed here,

should not be read as retreating from the Court’s

earlier expressed views on this point. In discussing

the appealability of the denial of a motion to correct

an illegal sentence under Maryland Rule 4-345(a),

Judge Eldridge fairly described earlier Maryland

jurisprudence on the issue as a “plethora of inconsis-

tent opinions,” a “saga,” and “zigzagging.” Staie v.

Kanaras, 357 Md. 170, 180, 742 A.2d 508, 514 (1999).

Kanaras, in overruling at least five prior reported

cases and affirming several others, brought needed

clarity by holding that the denial of a motion to

correct an illegal sentence is appealable. Kanaras is

just as notable for what it did not overrule as what it

App. 31

did. Kanaras, expressly overruled Valentine v. State,

305 Md. 108, 501 A.2d 847 (1985): Harris vu. State, 241

Md. 596, 217 A.2d 307 (1966); Burley v. State, 239

Md. 342, 211 A.2d 714 (1965); Wilson v. State, 227

Md. 99, 175 A.2d 775 (1961); and Brady v. State, 222

Md. 442, 160 A.2d 912 (1960). Kanaras, however, did

not overrule Costello, though discussing it exten-

sively. The Court’s opinion in Fuller II correctly

recognized Kanaras as “reconciling” Costello while

overruling Wilson, the case upon which Costello relies

largely. Fuller I], 397 Md. at 384, 918 A.2d at 460.

The holding of Costello has not been challenged,

either by Fuller, Kanaras, or any other case. Thus,

the distinction between motions to correct a sentence

based upon an error of law and motions to reconsider

sentence that are entirely committed to a court’s

discretion remains good law. Therefore, a denial of

Hoile’s pending motion for modification of sentence

would not be appealable.™

Finally, the State’s argument fails as a practical

matter. As a result of the 5 April 2005 hearing, Hoile

was under a sentence of five years of probation.

Following the 10 February 2006 hearing, the Circuit

Court signed a new commitment order, committing

* Hoile’s motion in the present case is one that is addressed

to the trial court’s discretion. Hoile alleges no error of law that

might infect the sentence imposed on violation of probation. The

support for his motion consists of his enrollment in Narcotics

Anonymous, good behavior while in prison, securing a position

as a maintenance worker, and obtaining his G.E.D.

App. 32

Hoile to the Division of Correction for the remainder

of a 15 year period of incarceration. The filing of a

new commitment order is not a mere formality.

In Sayre, 314 Md. at 565, 552 A.2d at 556, super-

ceded by Rule change cn other grounds as stated in

Greco, 347 Md. at 433 n.4, 701 A.2d at 423 n.4, the

question considered was when was a_ sentence

deemed to be imposed on a defendant following a

conviction. The Court of Appeals held that the sen-

tence was imposed when it was announced from the

bench and the trial court “indicates that the particu-

lar case before it is terminated,” even if the trial

judge suffered a “slip of the tongue” and announced

the wrong sentence. Sayre, 314 Md. at 565, 552 A.2d

at 556. No commitment order or transfer of the

defendant to the executive branch was necessary tor

the sentence to be deemed imposed. The new com-

mitment order in the present case provides far

greater indicia of finality than that of an oral indica-

tion from the bench that the proceedings before the

court are closed. In fact, the dissent in Sayre argued

that the Court should have held that a sentence was

imposed when the commitment order was filed. See

Sayre, 314 Md. at 568, 552 A.2d at 557 (Rodowsky, J.,

dissenting) (““The oral utterance is an act of judg-

ment, but it is not an entirely unalterable one. Other

events, as for example entry of the order of commit-

ment, are required to give it absolute finality.’”

(quoting Rowley v. Welch, 114 F.2d 499, 503 (D.C. Cir.

1940))). The Majority in Sayre rejected that argu-

ment, holding instead that finality attached to the

App. 33

judgment prior to the filing of a new commitment

order.

The new order in the present case altered the

sentence that Hoile was then serving. See Webster,

359 Md. at 477, 754 A.2d at 1010 (agreeing with the

State in that case that the sentence modification at

issue was an appealable judgment because “the

action of the trial court served to alter the sentence

previously imposed upon the petitioner”); Abeokuto v.

State, 391 Md. 289, 351, 893 A.2d 1018, 1054 (2006)

(“In the present case, the trial court initially imposed

the sentence for extortion to begin on 24 December

2002 and then purported in subsequent papers to

change it to consecutive with the death sentence,

which effected an increase (albeit potentially a meta-

physical one) in the sentence. This was not permit-

ted.”). The new sentence represents a sentence

imposed on Hoile, and as such, is appealable.

We also conclude that the new sentence imposed

in February 2006 amounted to an increase in sen-

tence over the sentence imposed in April 2005. This

requires little explanation. Prior to 1C February 2006,

Hoile was sentenced to probation. Currently, Hoile

stands sentenced to the remainder of 15 years in

prison.

B. The Trial Court Impermissibly In-

creased Hoile’s Sentence

Having determined that the 10 February 2006

hearing resulted in an increased sentence imposed on

App. 34

Hoile, we must determine whether the increase in

that sentence was legal. Hoile presents three argu-

ments for why it was not. First, Hoile contends that

the factual findings made by the Circuit Court are

insufficient to find that the sentence imposed at the

April 2005 hearing violated Maryland Rule 4-345(e)

and (f) and thus, was not an “illegal” sentence. Hoile,

curiously, first argues that the facts as found by the

Circuit Court are not sufficient to hold that the April

2005 proceeding violated Rule 4-345(e) and (f). Be-

cause we do not address the argument here, it is not

necessary to recount it in detail. Essentially, Hoile

contends that because the Circuit Court failed to

make a specific finding that the State failed to take

adequate steps to notify Palmer of the proceeding, the

Circuit Court could not deem the April 2005 sentence

illegal. If we were to address this argument and agree

with Hoile, we likely would remand the case to the

Circuit Court for such a factual determination. In-

stead, we hold that the Cirewit Court illegally in-

creased Hoile’s sentence by granting the motion to

vacate sentence, and shall reverse ultimately the

Circuit Court. Second, Hoile contends that even if the

Circuit Court failed to comply with Maryland Rule 4-

345(e) and (f), the failure to notify the victim does not

render the sentence of five years probation “illegal.”

Finally, he contends in his reply brief that a court

may not increase a defendant’s sentence unless the

original sentence is illegal.

Here, the Victim and the State part ways with

their responsive arguments. The State concedes that

App. 35

the “modified sentence ae not ‘illegal’... .” Instead,

the State contends that the failure to notify the

Victim of the proceedings constitutes an “irregular-

ity,” over which the Circuit Court retains revisory

power under Maryland Rule 4-345(b). By contrast,

Ms. Palmer maintains that the sentence imposed at

the April 2005 hearing) was “illegal” and may be

corrected by the Circuit Court pursuant to Maryland

Rule 4-345(a).

1. Illegal Sentence

Maryland Rule 4-345(a) states that a “court may

correct an illegal sentence at any time.” The correc-

tion of an illegal sentence may result in an increase

over the erroneous sentence previously imposed on

the defendant. State v. Griswold, 374 Md. 184, 821

A.2d 430 (2003) (holding that the trial court illegally

reduced convictions on motion for reconsideration and

reinstating convictions which effectively increased

sentence); State v. Hannah, 307 Md. 390, 403, 514

A.2d 16, 22 (1986) (vacating, on the State’s appeal,

the sentence of probation before judgment and order-

ing trial court to impose mandatory minimum of five

years in prison); State ex rel. Sonner v. Shearin, 272

Md. 502, 526, 325 A.2d 573, 586 (1974) (“Upon the

remand the trial judge shall delete the improper

suspension of sentence so that the handgun violation

will be for the mandatory term of five years.”);

Mateen v. Galley, 146 Md. App. 623, 649, 807 A.2d

708, 723 (2002) (holding that an illegal sentence “may

be corrected by the imposition of a legal sentence,

App. 36

even though the corrected sentence is longer than the

original illegal sentence”), reversed on other grounds,

Mateen v. Saar, 376 Md. 385, 829 A.2d 1007 (2003).

An illegal sentence is a sentence “not permitted

by law.” Walczak v. State, 302 Md. 422, 427, 488 A.2d

949, 951 (1985). An illegal sentence properly is

corrected only “where there is some illegality in the

sentence itself or where no sentence should have been

imposed.” Evans v. State, 382 Md. 248, 278, 855 A.2d

291, 309 (2004). Language in Evans stating that a

sentence is illegal “where no sentence should have

been imposed” is inapplicable to the context of the

present case. The language in Evans does not make a

sentence illegal merely because a required procedure

was not followed prior to the court imposing the

sentence. Evans cites three cases for the premise that

a sentence is illegal if it is imposed “where no sen-

tence should have been imposed.” In all three cases,

no sentence should have been imposed at any pro-

ceeding in the case. See Ridgeway v. State, 369 Md.

165, 171, 797 A.2d 1287, 1290 (2002) (no sentence

should have been imposed on the defendant for

certain assault charges because the defendant was

acquitted of those charges); Holmes v. State, 362 Md.

190, 195-96, 763 A.2d 737, 740 (2000) (sentence of

probation with home detention as a condition of

probation was illegal because the trial court lacked

statutory authority to impose such a condition);

Moosavi v. State, 355 Md. 651, 662, 736 A.2d 285, 291

(1999) (sentence was illegal because the defendant

was convicted under an inapplicable statute). By

App. 37

contrast, the State and Palmer do not contend that

the Circuit Court would be without authority to

impose a sentence of probation at a hearing which

fully complied with the requirements of Maryland

Rule 4-345(e) and (f). Instead, they argue that the

particular proceeding at which the sentence of proba-

tion was imposed on Hoile was deficient. Thus, the

rule as stated in Evans is of no help to the State or

Palmer.

A sentence is not illegal where the illegality “did

not inhere in [the defendant’s] sentence.” Jd. (quoting

Kanaras, 357 Md. at 185, 742 A.2d at 517).

“The notion of an ‘illegal sentence

within the contemplation of the Walczak de-

cision deals with substantive law, not proce-

dural law. It has obvious reference to a

sentence which is beyond the statutorily

granted power of the judge to impose. It does

not remotely suggest that a sentence, proper

on its face, becomes an ‘illegal sentence’ be-

cause of some arguable procedural flaw in

the sentencing procedure.”

Wilkins, 393 Md. at 273, 900 A.2d at 768 (quoting

Corcoran v. State, 67 Md. App. 252, 255 507 A.2d 200,

202 (1986)).

Although “there are significant differences be-

tween the current Maryland rule [4-345] and its

federal counterpart [35(b)],” Greco, 347 Md. at 434,

701 A.2d at 424, we have found federal precedent

helpful in applying some aspects of the rule. In Wil-

kins, 393 Md. at 275, 900 A.2d at 769, and Randall

App. 38

Book Corp. v. State, 316 Md. 315, 321-22, 558 A.2d

715, 719 (1989), we discusse1 approvingly the Su-

preme Court’s decision in Hill v. United States, 368

U.S. 424, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962), in our

analysis of what constitutes an illegal sentence. In

Hill, the trial judge did not afford the defendant an

opportunity to allocute prior to sentencing, in viola-

tion of the Federal Rules. On a later appeal, the

defendant argued that the sentence imposed by the

trial court was an illegal sentence. The Supreme

Court disagreed, stating:

But, as the Rule’s language and history

make clear, the narrow function of Rule 35 is

to permit correction at any time of an illegal

sentence, not to re-examine errors occurring

at the trial or other proceedings prior to the

imposition of sentence. The sentence in this

case was not illegal. The punishment meted

out was not in excess of that prescribed by

the relevant statutes, multiple terms were

not imposed for the same offense, nor were

the terms of the sentence itself legally or

constitutionally invalid in any other respect.

Hill, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed. 2d

417.

As noted above, Hill has been discussed with

approval in several reported Maryland appellate

decisions. Although both are given rights at a sen-

tencing proceeding, the law currently recognizes that

a criminal defendant has a greater cognizable inter-

est in the sentencing proceeding than does the victim

App. 39

of the crime.” If it is not an illegal sentence where the

criminal defendant is sentenced and not afforded the

required opportunity to speak on his own behalf, it is

less able to be maintained that an illegal sentence

results where the victim is denied the opportunity to

speak.

Palmer and the State do not allege that the

sentence of probation imposed at the April 2005

hearing exceeded any statutorily prescribed limits or

violated any substantive criminal law. The sentence

is not illegal on its face, and accordingly, the sentence

is not illegal.

2. Irregularity

The State argues that, although the April 2005

sentence is not illegal, the proceeding was marred by

an “irregularity.” The State correctly points out that

the “court has revisory power over a sentence in case

* A criminal defendant may appeal as a matter of right

from a final judgment, but a victim must seek “leave to appeal.”

Maryland Rule 8-lll(c); § 11-103. In addition, a criminal

defendant is a party to the criminal case. The victim is not.

Maryland Rule 8-111(c); § 11-103. As a party to the case, the

criminal defendant has a greater interest in the outcome of the

proceeding. This should not be understood, however, to mean

that either the courts or the law are unmindful of the natural

human feelings of a victim of a crime, and society in general, in

hoping and expecting that justice is done, deterrence furthered,

retribution meted out, and society protected from the defen-

dant’s further criminal deeds were he or she not restrained by

incarceration or other restraint.

App. 40

of fraud, mistake, or irregularity.” Maryland Rule 4-

345(b). The State’s argument, however, suffers from a

fundamental flaw. At least on the facts in the present

case, a court may not increase a sentence under

Maryland Rule 4-345(b).

“In the context of judgments, it is well settled

that an ‘irregularity’ is ‘the doing or not doing of that,

in the conduct of a suit at law, which, conformable to

the practice of the court, ought or ought not to be

done.”” Gantt v. State, 99 Md. App. 100, 104, 635 A.2d

97, 99 (1994) (quoting Autobahn Motors, Inc. v. Mayor

& City Council of Balt., 321 Md. 558, 562, 583 A.2d

731, 733 (1991)). “[I]rregularity, in the contemplation

of the Rule, usually means irregularity of process or

procedure ... and not an error, which in legal par-

lance, generally connotes a departure from truth or

accuracy of which a defendant had notice and could

have challenged.” Autobahn Motors, 321 Md. 558,

562-63, 583 A.2d 731, 733 (citing Weitz v. MacKenzie,

-273 Md. 628, 631, 331 A.2d 291, 293 (1975)). We

assume, for the sake of argument, that the failure of

the State to notify Palmer (as found by the trial

judge) and the failure of the trial court to inquire into

*° We reserve for future consideration the issue of whether a

court properly may increase a defendant’s sentence under

Maryland Rule 4-345(b) where the defendant is to blame for the

fraud, mistake, or irregularity. Maryland Rules 4-345(e) and (f)

do not obligate the defendant to ensure that the notice provi-

sions of the rule are followed. That obligation falls on the trial

court and the State.

App. 41

notification in the first instance, constitutes an

“irregularity” within the meaning of Rule 4-345(b).

As we noted earlier, “[tJo interpret rules of proce-

dure, we use the same canons and principles of con-

struction used to interpret statutes.” Strazzella, 331

Md. at 274, 627 A.2d at 1057. “We thus look to the

plain meaning of the language employed in these

rules and construe that language without forced or

subtle interpretations designed to limit or extend its

scope.” Lee, 332 Md. at 658-59, 632 A.2d at 1185.

“Generally, it is only when the words of the rule are

ambiguous that we must look toward other sources to

glean the intent of the rule.” Jn re Victor B., 336 Md.

85, 94, 646 A.2d 1012, 1016 (1994).

Maryland Rule 4-345(b) states that “(tlhe court

has revisory power over a sentence in case of fraud,

mistake, or irregularity.” While the statement of the

Rule seems simple enough, there is ambiguity in

determining the scope of the court’s “revisory power”

under this subsection. Maryland Rule 4-345(a), which

perm ‘s a court to increase a sentence to correct an

illege. sentence, does not use the term “revisory

power,” utilizing instead the term “correct.” By con-

trast, Maryland Rule 4-345(e) uses the term “revisory

power, but lists the prohibition on increasing a

sentence as an exception to that “revisory power.”

Thus, we turn to the “legislative history” of the Rule

to determine the remedial scope of the “revisory

power” in Maryland Rule 4-345(b).

App. 42

Prior to 11 May 2004, Maryland Rule 4-345(b)

stated:

Modification or Reduction — Time For.

The court has revisory power and control

over a sentence upon a motion filed within

90 days after its imposition (1) in the District

Court, if an appeal has not been perfected,

and (2) in a circuit court, whether or not an

appeal has been filed. Thereafter, the court

has revisory power and control over the sen-

tence in case of fraud, mistake, or irregular-

ity, or as provided in section (e) [desertion

and nonsupport cases] of this Rule. The court

may not increase a sentence after the sen-

tence has been imposed, except that it may

correct an evident mistake in the announce-

ment of a sentence if the correction is made

on the record before the defendant leaves the

courtroom following the sentencing proceed-

ing.

For the purposes relevant to our discussion here,

current 4-345(b) and 4-345(e) were combined into one

section. The Rule prior to 11 May 2004 made clear

that a trial court could not increase a defendant’s

sentence unless the increase was to correct a “mis-

take in the announcement of sentence” before the

defendant exited the courtroom. The Rules Commit-

tee Letter Report” and Reporter’s Note accompanying

*” The Letter Report “caution[ed] that the Reporter’s Note

was prepared initially for the benefit of the Rules Committee; it

is not part of the Rule and has not been debated or approved by

(Continued on following page)

App. 43

the proposed rule change discussed the rationale of

several of the proposed changes to Maryland Rule 4-

345. Standing Committee on Rules of Practice and

Procedure, Letter Report, Rule 4-345, 17 February

2004 available at http://www.courts.state.md.us/rules/

reports/courtletter-revisorypower.pdf. The removal of

the prohibition of a court increasing a sentence was

not among the changes discussed. Jd. The Reporter’s

Note concluded, “Other changes .. . are stylistic only.”

Id. Thus, it is clear that the penultimate drafters of

the new Rule did not intend to eliminate the prohibi-

tion on increasing a sentence because of fraud, mis-

take, or irregularity.

The distinction between Maryland Rule 4-345(a),

under which a court may increase a sentence, and (b),

under which a court may not, is highlighted by

Ridgeway v. State, 369 Md. 165, 797 A.2d 1297 (2004),

a case decided before the 2004 amendments to Mary-

land Rule 4-345. The Court of Appeals framed the

issue in Ridgeway as “(t]he dispute in this case, and

the decisional issue before this Court, is whether the

trial judge’s correction of the petitioner’s sentence

was pursuant to subsection (a) or [then] subsection

(b) of Rule 4-345.” Ridgeway, 369 Md. at 170, 797

A.2d at 1289. The Court noted that the distinction

the Committee; and it is not to be regarded as any kind of

official comment or interpretation.” Nonetheless, the Reporter’s

Note is helpful in assessing if the drafters of the new rule

proposed a major policy shift such as the one urged by the State

here.

App. 44

between the two subsections was important because

“an illegal sentence may be corrected at any time,

while correcting a mistake in a sentencing order that

results in an increased sentence may only occur

before the defendant leaves the courtroom following

the sentencing proceedings.” Ridgeway, 369 Md. at

170, 797 A.2d at 1290 (internal quotation omitted).

Our conclusion is also supported by Judge

Wilner’s analysis of the Rule in his concurrence, in

Lopez-Sanchez. Judge Wilner noted that

[e]xcept when sentence review is sought

by the defendant under {Criminal Procedure

Article] §§ 8-101 through 8-109, or an appeal

is taken by the State under [Courts & Judi-

cial Proceedings Article] § 12-302 to correct

the failure of a court to impose a sentence

mandated by law, the sentence may not be

increased after it is imposed. The revisory

power of the court extends only to modifica-

tions that are clarifying tn nature or that do

not adversely affect the defendant. (Emphasis

added).

Lopez-Sanchez, 388 Md. at 248, 879 A.2d at 715

(Wilner, J., concurring).

3. Limitations of Victims’ Rights

Palmer argues that, were our judgment to direct,

reversal of the Circuit Court, the effect would be to

deny her any possible remedy for a clear violation

of her right to be notified of, and be heard at, the

App. 45

sentencing proceeding. She largely is correct. Many

victims’ rights seem effective only when exercised

prior to sentencing and entering of a final judgment

against or in favor of the defendant. Such a limitation

is implied in Article 47’s express prohibition on a

court permitting a victim to “stay a criminal justice

proceeding.” See also § 11-103(c). If a victim is not

authorized to take an action to stay the entering of a

judgment in a criminal case, the victim similarly is

powerless to have that judgment reopened or vacated.

It would be somewhat anomalous if the victim had

the power to have a judgment vacated (essentially,

undone) where the victim did not have the power to

stay the entering of that same judgment.

In Lodowski v. State, 302 Md. 691, 747, 490 A.2d

1228, 1256-57 (1985), vacated on other grounds, 475

U.S. 1078, 106 S. Ct. 1452, 89 L. Ed. 2d 711 (1986),

and again in Cianos, 338 Md. at 411-12, 659 A.2d at

294, we briefly discussed the legislative history of a

proposal to permit a victim to seek invalidation of a

defendant’s sentence based on a violation of the

victim’s rights.

“Provisions invalidating the sentence

clearly worried the legislators. A memoran-

dum, evidently prepared by staff of the

House Judiciary Committee, stated, ‘[t]he

major practical problem of both bills ... is

the possibility of placing the defendant in

jeopardy a second time during the sentencing

hearing.’ ... The memorandum concluded

that, ‘House Bill 70 would be acceptable,

however, if [the] lines [invalidating the

App. 46

sentence] were deleted. The statute would

have no teeth after such a deletion but it

would provide the personal input toward

which the statute is aimed.’”

Cianos, 338 Md. at 411-12, 659 A.2d at 294 (quoting

Lodowski, 302 Md. at 747, 490 A.2d at 1256-57). The

Legislature has addressed some of the limitations on

victims’ rights, such as expanding a victim’s right to

apply to appeal, following Lopez-Sanchez. The Legis-

lature, however, in the 23 years since Lodowski and

13 years since Cianos, has not given much substance

to the illusory nature of the enforcement of victims’

rights. “The General Assembly is presumed to be

aware of this Court’s interpretation of its enactments

and, if such interpretation is not legislatively over-

turned, to have acquiesced in that interpretation.”

Williams v. State, 292 Md. 201, 210, 438 A.2d 1301,

1305 (1981). Although a victim now has more oppor-

tunity to participate in an appeal, there remains no

effective tangible remedy for a victim to seek to “un-

do” what already has been done in a criminal case.

The Legislature has not amended the law to permit a

victim, based on a violation of the victim’s rights, to

seek invalidation of an otherwise legal sentence. The

victims’ rights provisions in Maryland law still lack

adult teeth. Thus, the victim is left largely with

extra-judicial remedies.

Although the Legislature responded to the spe-

cific issue decided in Lopez-Sanchez, Judge Wilner’s

description of the lack of remedies afforded victims of

App. 47

crime who have been denied their statutory rights

remains largely apt:

Although disciplinary proceedings con-

ceivably may be brought against a judge who

wilfully violates clear statutory rights, there

seems to be no efficient remedy for a victim

. if a judge, whether in good or bad faith,

denies the victim the rights the Legislature

has conferred.

Lopez-Sanchez v. State, 388 Md. 214, 231, 879 A.2d

695, 704 (2005) (Wilner, J., concurring). In the pre-

sent case, there is absolutely no indication that the

Circuit Court acted in bad faith. The Circuit Court,

on hearing Palmer’s motion to vacate, admitted the

apparent oversight regarding notice and attempted to

remedy the mistake, although the remedy selected

was beyond the Circuit Court’s reach.”

* Not all of Palmer’s concerns are beyond the Circuit

Court’s authority to remedy. Palmer complains that the April

2005 sentence of probation does not have a “no contact order” as

a term of probation. Judging from the facts of the present case

and what we know about the Calvert County case, a “no contact

order” may be justified. Maryland Rule 4-346(b) permits a court,

sua sponte, to “modify ... any condition of probation” or “impose

additional conditions.” A condition of probation prohibiting a

defendant from contacting the victim of a crime is not an illegal

increase in sentence when added after the sentence of probation

had originally been imposed. Then Judge Bell, writing for the

Court of Special Appeals, addressed the issue in Argabright v.

State, 76 Md. App. 706, 548 A.2d 149 (1988). In Argabright, the

trial court, upon request of the probation supervisor, modified a

year old probation order to “require that appellant have no

(Continued on following page)

App. 48

Because Palmer’s rights as a victim of crime were

violated, we again shall fashion the only remedy of

which we are legally capable. Palmer shall not be

burdened with costs in this appeal, where her rights

were violated through no fault of her own.”

JUDGMENT OF THE COURT OF SPECIAL

APPEALS REVERSED; CASE REMANDED TO

THAT COURT WITH INSTRUCTIONS TO VA-

CATE THE SENTENCE OF THE REMAINDER

OF FIFTEEN YEARS IMPOSED BY THE

CIRCUIT COURT FOR PRINCE GEORGE’S

COUNTY AND REMAND TO THE CIRCUIT

COURT WITH INSTRUCTIONS TO REINSTATE

THE SENTENCE OF PROBATION IMPOSED

ON 8 APRIL 2005 AND TO CONDUCT ANY

contact with the victim except through legal channels.” Ar-

gabright, 76 Md. App. at 707, 548 A.2d at 150. The Court of

Special Appeals held that:

The clear and unambiguous language of the Rule

explicitly authorizes the court, “after giving the de-

fendant an opportunity to be heard,” to “impose addi-

tional conditions.” That is precisely what occurred in

this case. The added condition did not amount to an

increase in the sentence. We perceive no error.

Argabright, 76 Md. App. at 708, 548 A.2d at 150.

* “Because the petitioners were arguably denied their

rights ... they will not be burdened with the payment of court

costs in the instant case.” Clianos, 338 Md. at 413. 659 A.2d at

295; Lamb v. Kontgias, 169 Md. App. 466, 483 n. 11, 901 A.2d

860, 870 n. 11 (2006) (same).

App. 49

FURTHER PROCEEDINGS DEEMED NECES-

SARY OR DESIRABLE THAT ARE NOT INCON-

SISTENT WITH THIS OPINION; COSTS TO BE

PAID BY PRINCE GEORGE’S COUNTY, MARY-

LAND.

App. 50

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2756

September Term, 2005

SHARDEN BUSIE HOILE

STATE OF MARYLAND

Murphy, C. J.,

Bloom, Theodore G., (Retired,

Specially Assigned),

Thieme, Raymond G., Jr. (Retired,

Specially Assigned).

JJ.

Opinion by Bloom, J.

Filed: August 23, 2007

This appeal concerns proceedings in the Circuit

Court for Prince George’s County subsequent to

the 1998 conviction of appellant, Sharden Busie

Hoile for first degree assault upon Tracy Palmer. At

that time, appellant was sentenced to fifteen years’

App. 51

imprisonment, with all but 281 days suspended, with

five years’ supervised probation. In May of 2001,

appellant was found to have violated his probation,

and the fifteen year sentence was reinstated. That

sentence was to be served concurrently with a sen-

tence in a different matter, in Calvert County.

In the fall of 2004, appellant filed a motion for

reconsideration of his Prince George’s County sen-

tence. His motion was granted and drug treatment

was ordered after a hearing on December 10, 2004.

His motion for similar relief in his Calvert County

case, however, was denied “at this time,” and the

parties returned to Prince George’s County on April 8,

2005 to determine the effect of that ruling. The State

took no position, and the Prince George’s County

court suspended the balance of appellant’s sentence

and placed him on five years’ active supervised proba-

tion.

Although the record contains letters from the

State’s Attorney’s office to the victim, notifying her of

the hearings on December 10, 2004 and April 8, 2005,

Tracy Palmer wrote to the court on December 8, 2005,

stating that she had not been notified and requesting

that the case be reopened. On February 10, 2006, the

court ruled that the victim had not been properly

notified, as required by Md. Code, Criminal Proce-

dure Article, section 11-102{a) (2001 Vol.) and Rule 4-

345(eX2) and (f). The court further found that the

failure to notify the victim rendered the sentence

imposed on April 8, 2005 illegal and, therefore, va-

cated that sentence. In this appeal, filed four days

App. 52

later, appellant raises two questions arising from that

conclusion:

I. Did the trial court illegally increase ap-

pellants sentence when it vacated his

sentence of probation and imposed a

sentence of fifteen years’ imprisonment?

II. Did the trial court err in granting a mo-

tion to vacate a judgment where that

motion was filed by the victim, a non-

party to the case?

We need not address either of those issues at this

juncture, because the circuit court did not, as appel-

lant suggests, impose a sentence of fifteen years’

imprisonment after vacating the previously imposed

sentence upon the belief that it was illegal since the

victim had not received notification. Instead, at

appellant’s request, the court deferred the hearing on

reconsideration of sentence to March 17, 2006. In the

interim, appellant’s original sentence was unmodi-

fied.

In a criminal case, an appeal lies only from the

judgment of the court, as stated the imposition of a

sentence. There is a difference between modification

of a sentence and nullification of it. In Webster v.

State, 359 Md. 465 (2000), the Court of Appeals noted

that modification of a defendants sentence has the

effect of revising the final judgment previously en-

tered “although it does not result in the entry of a

wholly new judgment.” It is when a new sentence is

assessed to replace the prior sentence by imposing a

App. 53

sanction upon the defendant that there is a final

disposition and an appealable order:

Assessment of a new sentence resurrects the

penalty portion of a judgement; it replaces

the prior sentence. The new senterce “im-

posed a sanction upon the defendant and...

represents a disposition of the criminal case.”

... Thus, the sentence imposed as a result of

the grant granting the motion for reconsid-

eration is the appealable order, and the

State, under § 12-302(c), properly and timely

filed its appeal.

At 477, internal citations omitted.

This appeal was filed on February 14, 2006, one

month before the court was to consider and act upon

appellant’s request for modification of sentence.

When the appeal was filed, it was still within the

power of the circuit court to grant appellant’s request

for modification of sentence. By deferring the hearing

on that request, the circuit court delayed the imposi-

tion of a final judgment essential to appeal. There-

fore, this appeal is premature, and will be dismissed

upon the motion of the appellee.

APPEAL DISMISSED

COSTS TO BE PAID BY APPELLANT.

App. 54

SHARDEN BUSIE HOILE * Inthe

* Court of Appeals

* of Maryland

* No. 87

STATE OF MARYLAND «x September Term, 2007

ORDER

The Court having considered the Motion to

Reconsider filed in the above-captioned case, it is this

10th day of June, 2008,

ORDERED, by the Court cf Appeals of Maryland,

that the motion be, and it is hereby, DENIED.

/s/ Robert M. Bell

Chief Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.