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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 692 September Term, 2000

SAMUEL CORNELL HILLARD

v.

STATE OF MARYLAND

Davis, Kenney, Eyler, Deborah S., JJ.

Opinion by Davis, J.

Filed: November 6, 2001

On May 31, 1996, appellant was convicted of robbery with a deadly weapon, use of a handgun in a crime of violence, two separate counts of assault and battery, and false imprisonment. The circuit court, on July 10, 1996, sentenced appellant to the following: twenty years imprisonment, with all but ten years

suspended, and five years probation for robbery with a deadly weapon; ten years concurrent for the use of a handgun, with five years mandatory; one year concurrent for the assault and battery charges; and one year concurrent for false imprisonment.

Appellant filed a petition for post-conviction relief on October 10, 1996. We affirmed appellant's conviction on May 14, 1997

and, on January 14, 1998, appellant withdrew his petition for post-conviction relief. At a hearing on January 14, 1998, the circuit court

(Nichols, J.) reconsidered appellant's sentence and imposed five years imprisonment on the robbery with a deadly weapon charge, five years for the use of a handgun in a crime of violence, to be served concurrently and, according to the court, "[t]hat five years without parole." The revised sentence was to commence

retroactively to appellant's original sentence commencement date of November 14, 1995. Appellant served less than four years of

his five-year sentence and was released on March 30, l999. Subsequent to his release from prison, appellant, on May 2, 1999, was charged with the murder of his former girlfriend's boyfriend. On or about May 4, 1999, the Division of Parole and

- 2 Probation filed an application for warrant on the basis that appellant violated probation. Agent Christina Stockton, Senior

Agent, and Mary Grace Waldron, Field Supervisor I, both employed by the Maryland Department of Public Safety and Correctional Services, Division of Parole and Probation, reported to the court appellant's "ill adjustment to supervision." report they stated: [Appellant] was released on Mandatory Release from Southern Maryland Pre-Release Unit on March 30, 1999. Since his release from incarceration, [appellant] has given this Agent several different addresses where he is residing. On two occasions this Agent attempted to verify the addresses given by this offender. In both instances on April 22, 1999 and April 29, 1999 the home verification was unsuccessful. On the first instance, the resident of the home had no knowledge of the [appellant]. In the second instance, this Agent discovered that this was the residence of the [appellant's] aunt. She informed this Agent that [appellant] did not reside at that address. Therefore, [appellant]'s misrepresentation regarding his residence prohibited this Agent from conducting a home verification. In addition, it has come to this Agent's attention that on May 2, 1999 [appellant] allegedly Committed First Degree Murder. This Agent was informed by Detective Jernigan of the Prince George's County Police Department, that [appellant] gunned down the new boyfriend (Wayne Sellers) of his ex-girlfriend (Terri Lewis). A warrant has been issues [sic] for [appellant] by the Police Department charging him with First Degree Murder (Case #CR000E00125041). At this time [appellant] is being sought by the Prince George's County Police Department. In that

- 3 In light of the aforementioned facts it is respectfully requested that a Warrant be issued charging appellant with violation of Probation. On May 24, 1999, the State filed a petition against

appellant for violation of probation and a warrant was issued for his arrest. He was served with a copy of a bench warrant on

June 5, 1999 and was assigned a public defender on June 11, 1999. Appellant's public defender, on July 15, 1999, filed a

motion to dismiss the petition for violation of probation1 based on the following reasons: 1. That the [appellant] in the herein cause is charged with violation of probation of a Court Order of July 10, 1996. That on January 14, 1998, the [appellant] was resentenced in this matter to a period of five years incarceration without parole. This sentence dated from November 14, 1995. That the [appellant] probation in this case. . . . The circuit court (Sothoron, J.), on September 15, 1999, denied appellant's motion to dismiss, stating in its Order: We note that the record indicates that the motion to dismiss, dated July 15, 1999, requested the court for an order dismissing the "indictment and each count therein." In the circuit court's denial of that motion, on September 15, 1999, the trial judge made mention of the fact that that "indictment" related "solely to a violation of probation," not to appellant's subsequent charge of murder.
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- 4 Furthermore, this [c]ourt notes that the Reconsideration of the [appellant]'s Sentence by Judge C. Philip Nichols, Jr. was illegal, in that such violated the provisions of Maryland Rule 4-345. Accordingly, the [appellant] was and is still on probation pursuant to this Court's original sentence. On March 3, 2000, appellant was convicted by a jury in the Circuit Court for Prince George's County (Krauser, Sherry, J.) of second degree murder and use of a handgun. On April 25,

2000, he was found guilty of violation of probation in the circuit court (Sothoron, J.). The court imposed a sentence of

twenty years imprisonment with all but ten years suspended. The following is the sequence of the proceedings before the circuit court: 11/14/955/31/96 7/10/96 Beginning date of revised sentence/date appellant incarcerated Appellant convicted of armed robbery and related offenses Appellant sentenced for robbery with deadly weapon to twenty years, all but ten years suspended, five years probation; ten years concurrent with five years mandatory for use of a handgun in the commission of a crime of violence; one year for false imprisonment and one year for assault and battery, to be served concurrently. Petition for Post Conviction relief filed Appellant's 7/10/96 sentence reconsidered pursuant to agreement between State and appellant that, in consideration for withdrawal of Post-Conviction Petition, appellant is sentenced to five years for robbery with a deadly weapon and five years concurrent without parole for use of handgun in commission of crime of violence Appellant's mandatory release after serving

10/10/961/14/98 -

3/30/99 -

- 5 four years of 1/14/98 five year sentence; appellant received "Mandatory Supervision Release Certificate" that reads "the date on which the inmate's maximum term will expire is November 14, 2000." 5/2/99 - Appellant charged with murder of ex-girlfriend's boyfriend (Basis of Violation) 5/4/99 - State filed petition for violation of probation and appellant arrested on bench warrant on 6/5/99 7/15/99 Appellant filed motion to dismiss Petition for Violation of Probation based on contention that, pursuant to 1/14/98 reconsideration of his original sentence, he was no longer on probation (No probationary period was imposed at 1/14/98 hearing) 9/15/99 Appellant's Motion to Dismiss Violation of Probation Petition denied; circuit court concluded that reconsideration of sentence was illegal in that it violated Maryland Rule 4-345 because reconsideration hearing was not heard by sentencing judge, notwithstanding agreement between appellant and State and, because the reconsideration proceeding was illegal, appellant was on original probation 3/3/00 - Appellant convicted by jury in Prince George's County Circuit Court of second degree murder of ex-girlfriend's boyfriend 4/25/00 Appellant found guilty of violation of probation and sentenced to twenty years, with all but 10 years suspended; appeal subsequently filed to Court of Special Appeals As noted in the time line, above, appellant filed this timely appeal presenting one question for our review: Did the trial court err in finding appellant in violation of probation?

DISCUSSION
Appellant contends that he was not on probation and, a

- 6 fortiori, could not be found to be in violation of probation. According to appellant

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