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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Supreme Court, U.8.
FILED

08-93 JUL 18 2008

Cr 2TOF Tid CLE
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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

L

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.

5

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

2

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.

(c) Nothing in this Article permits any civil
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.

3

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

ee

4

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:

5

(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

6

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

7

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

8

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

Y

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.

®

10

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

1]

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

12

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

13

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

14

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.

(c) Nothing in this Article permits any civil
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.

15

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

16

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

17

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

18

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

19

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

20

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

21

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)

22

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.

23

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.

24

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

25

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

26

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.

27

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

28

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

29

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

30

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.

31

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).

32

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

33

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.

34

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

35

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).

36

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

37

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).

38

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.

39

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.

40

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

42

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

43

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,

44

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.

46

“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.

(c) Victims and Victims’ Representatives. Al-
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.

(c) Nothing in this Article permits any civil
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

© The inability to stay criminal proceedings pending an
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
23

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1144%3A1. Public record. Not legal advice.