Court of Appeals Addresses Appellate Preservation of Sentencing Challenges
In Bryant v. State, No. 37, September Term 2013 (Feb. 3, 2014), the Court of Appeals re-affirmed the importance of preserving issues for appellate review, holding that the defendant had waived his challenge to the imposition of his sentence. The Court also concluded that – even if the issue had been preserved – the defendant’s sentence had been properly imposed.
After Tyrone Bryant was convicted of drug charges, the State sought a mandatory, enhanced sentence of twenty-five years without the possibility of parole – a sentence that can be imposed on a defendant who has previously served at least one term of confinement of at least 180 days and has two separate qualifying prior convictions. Md. Code Ann., Crim. Law § 5-608(c). At sentencing, in order to prove Bryant’s eligibility for the enhanced sentence, the State submitted certified copies of docket entries from two separate cases. Each docket entry identified Tyrone L. Bryant as the defendant, with the same date of birth and the same State Identification number.1 A file from Patuxent Institution showed that an inmate Tyrone Bryant had been incarcerated in one of those two prior cases, but that inmate Bryant had a different birthdate than the one reflected in the court dockets, and there was some discrepancy as to his dates of incarceration. The State also called as a witness a fingerprint technician with the Baltimore City Police Department. She testified that two fingerprint cards contained prints from Tyrone Bryant, which were obtained when he was incarcerated on the two prior convictions. The prosecution then asked her to compare Bryant’s fingerprints to those on the two fingerprint cards.
The sentencing judge said that the prosecution’s efforts “were unnecessary to prove the prior offenses,” and asked defense counsel “if he was arguing that the convictions” did not belong to the defendant. Bryant v. State, Slip Op. at 3. Defense counsel said that he could not say that the offenses were not the defendant’s “‘right now.’” Id. Based on a review of the exhibits, the sentencing judge found that the sentencing statute’s requirements had been met. Id. The judge then imposed concurrent mandatory, enhanced sentences on each count. The Court of Special Appeals affirmed in an unreported opinion, and the Court of Appeals granted certiorari.
The State argued that Bryant had “waived any challenge to the imposition of his sentence because he failed to object during the sentencing proceeding.” Id. at 4. Bryant, on the other hand, asked the “Court to review his enhanced sentence, despite no objection below, as an illegal sentence pursuant to Md. Rule 4-345 (a), or, in the alternative, pursuant to the Court’s scope of review under Md. Rule 8-131 (c).” Id. In a 5-2 decision, the Court of Appeals sided with the State and affirmed the decision of the Court of Special Appeals.
Writing for the majority, Judge Greene first addressed “the procedural rules regarding preservation of issues generally.” Id. He cited Md. Rule 8-131 (a), which “provides that appellate courts ordinarily will not decide an issue not raised in or decided by the trial court. In other words, the appellate courts will only address issues that are properly preserved for review, and issues that are not preserved are deemed to be waived.” Id. Similarly, Rule 4-323 (c), which applies to non-evidentiary rulings in criminal cases, “provides that an objection must be made ‘at the time the ruling or order is made or sought’ in order to be preserved for appellate review.” Id. at 5. As Rule 4-323 applies to sentencing proceedings as well as trials, it is understood “that challenges to sentencing determinations are generally waived if not raised during the sentencing proceeding.” Id.at 6 (citations omitted).
Although defense counsel had not objected when Bryant was sentenced, Bryant argued that the Court could still consider his challenge to his sentence. Bryant relied on Md. Rule 4-345 (a), which authorizes appellate review of an illegal sentence, even if no objection was made in the trial court. But that exception is narrow and is limited to situations where the illegality is inherent in the sentence itself, “‘i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.’” Id.at 8-9 (quoting Chaney v. State, 397 Md. 460, 466, 918 A.2d 506, 10 (2007)) (other citations omitted).
Judge Greene distinguished between sentences that might be incorrectly imposed, and which are subject to the ordinary preservation rules, and those sentences that are inherently illegal, and which therefore may be reviewed by an appellate court even in the absence of an objection in the trial court:
The distinction between those sentences that are “illegal” in the commonly understood sense, subject to ordinary review and procedural limitations, and those that are “inherently” illegal, subject to correction “at any time” under Rule 4-345 (a), has been described as the difference between a substantive error in the sentence itself, and a procedural error in the sentencing proceedings.
Id. at 9 (citations omitted).
Judge Greene explained that the issue presented by Bryant’s challenge to his sentence was not a challenge to the inherent legality of the sentence. Bryant’s challenge was unlike the situation presented in Bowman v. State, 314 Md. 725, 552 A.2d 1303 (1989), where the defendant’s enhanced sentence was based on a prior conviction for a crime that – as a matter of law – was not a proper predicate conviction for enhanced sentencing. Bowman presented an example of an illegal sentence, which could be challenged on appeal even in the absence of an objection in the trial court. Bryant’s challenge, however, was different. His issue was “not whether there existed the necessary predicate convictions to meet the statutory requirements for an enhanced sentence,” because his prior two predicate convictions satisfied “the requirements of the enhanced sentencing statute.” Slip Op. at 11.
Instead, his issue was “whether there was sufficient evidence of [his] identity to prove beyond a reasonable doubt that the predicate convictions are connected to [him], where there was discrepancy in the record as to [his] birth date and incarceration dates.” Id. Bryant’s attack related “to the sufficiency of the evidence,” which was “an alleged procedural flaw, subject to the normal preservation rules.” Id. at 12. As a result, the Court concluded “that there is no ‘inherent illegality’ within the meaning of Rule 4-345 (a).”Id. The Court of Appeals held that the issue had not been preserved for appellate review, agreeing with the following statement that the Court quoted from the opinion of the Court of Special Appeals:
“[u]pon Bryant’s conviction, he became eligible for enhanced sentencing; thus the sentence imposed was not intrinsically and substantively unlawful. What is challenged is not the sentence itself, but the sufficiency of the evidence to support the sentence, which, if not raised at the trial court, cannot be raised for the first time on direct appeal.”
Id. (emphasis added).
Bryant also pointed to Md. Rule 8-131 (c)’s “clearly erroneous” standard that applies to appellate courts’ review of findings of fact in bench trials, arguing that the Rule allowed review of his sentence. While the Court agreed “that Rule 8-131 (c) would ‘apply equally’ to sentencing proceedings to provide the standard of review (clearly erroneous) where the trial judge made the findings of fact necessary to support a particular sentence,” the Court held that Rule 8-131 (c) does not provide for the review of an unpreserved issue. Id. at 16. “Rule 8-131 (c) neither expressly nor implicitly provides an exception to our general preservation rules or the contemporaneous objection rule. Rather, subsection (c) merely defines the standard of review to be applied by the appellate court sitting in review of non-jury trials.” Id.
Finally, the majority refused to exercise its discretion under Rule 8-131 (a) to review an unpreserved issue. Judge Greene went on to say, however, that if the issue had been properly preserved, the majority “would nonetheless hold that the evidence presented was sufficient for the sentencing judge to conclude that [Bryant] committed the qualifying offenses under § 5-608(c) beyond a reasonable doubt.” Slip Op. at 18 (footnote omitted).
Judge Watts issued a dissenting opinion, which was joined by Judge McDonald. Judge Watts thought that, “[u]nder the circumstances of this case, . . . the Court should exercise its discretion, pursuant to Maryland Rule 8-131 (a), to review the legality of the sentence,” and the Court should “hold that the Sate failed to prove the two predicate offenses beyond a reasonable doubt.” Dissenting Op. at 1.
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1 The Court explained that a “SID number is a unique identifier issued by the Maryland Criminal Justice Information System (CJIS) Central Repository,” which “is assigned to every individual who is arrested or otherwise acquires a criminal history record in Maryland, and is used as an identifier in the Department of Public Safety and Correctional Services (DPSCS) management information systems.” Bryant v. State, Slip Op. at 2, n. 1.
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared on The Maryland Appellate Blog.