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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3050 September Term, 2007

STATE OF MARYLAND v. OMIED KARMAND

Davis, Eyler, Deborah S., Meredith, JJ.

Opinion by Eyler, Deborah S., J.

Filed: December 8, 2008

In the Circuit Court for Montgomery County, pursuant to an agreement with the State, Omied Karmand pleaded guilty to a single count of distribution of cocaine in violation of Md. Code (2002), section 5-602(1) of the Criminal Law Article ("CL").1 The underlying offense was the sale of cocaine by Karmand, through an intermediary, to an undercover narcotics officer, in a parking lot in Rockville. Later that same day, Karmand was arrested for selling cocaine in the District of Columbia. That incident involved the same undercover officer but a separate sale of cocaine. The plea agreement called for a binding 18-month cap on the executed portion of the sentence.2 By the time the plea was taken, Karmand had been convicted for the sameday drug offense in the District of Columbia and had served 30 days in jail. Pursuant to the plea agreement, the court sentenced Karmand to three years' imprisonment, all but nine months suspended (with credit for 179 days served), followed by 18 months' probation. Within 90 days, Karmand filed a motion for reconsideration of sentence under Rule 4-345(e), with a request for a hearing ("the First Motion").3 Four months later, he

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CL section 5-602 states:

Except as otherwise provided in this title, a person may not: (1) manufacture, distribute, or dispense a controlled dangerous substance; or (2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to manufacture, distribute, or dispense a controlled dangerous substance. The maximum penalty is set forth in CL section 5-608(a): imprisonment of 20 years and a $25,000 fine.
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The motion was entitled "Request for Reconsideration."

filed a line withdrawing his hearing request and asking the court to hold the First Motion sub curia until he filed a new request for a hearing. He filed a new hearing request about a year later. Two months after the new hearing request was filed, the court held a hearing on the First Motion. The original sentencing judge had retired, so another judge presided. By then, Karmand had finished serving his prison time and his probationary period, and was attending community college and doing well. Karmand's lawyer asked the court to strike the conviction and enter probation before judgment ("PBJ"), under Md. Code (2001, 2007 Supp.) section 6-220 of the Criminal Procedure Article ("CP"),4 so Karmand could pursue his plans to become a healthcare professional, which would not be possible with a felony conviction on his record. The prosecutor argued in opposition that this was Karmand's second drug distribution conviction and that he already had received a PBJ in a prior juvenile offense for possession of alcohol, without learning from that benefit. The

The current statute, codified at the 2008 Replacement Volume, is identical to that in effect at the time of the hearing. CP section 6-220 states in relevant part: *** (b)(1) When a defendant pleads guilty or nolo contendere or is found guilty of a crime, a court may stay the entering of judgment, defer further proceedings, and place the defendant on probation subject to reasonable conditions if: (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea. *** 2

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prosecutor did not argue that it was outside the court's authority, under Rule 4-345, to strike a conviction and grant a PBJ. In the following colloquy, the court denied the motion for reconsideration of sentence: THE COURT: . . . I guess where I come down is that, you know, with the whole notion of licensing and the high degree of responsibility involved in the public trust, I just don't think with the, you know, the conviction that you have here and the one that you already had in the District [of Columbia], even though that's been obviated, I just don't feel like it would be in the public interest to grant the probation before judgment. And for that reason, I regret that I am going to deny the request and I'm going to let the conviction stand. [DEFENSE COUNSEL]: Judge, if I could just say, I understand the Court's ruling. I don't know if the Court was made to understand that the incidents that led to his arrest and his charges here chronologically predated the conduct in the District of Columbia. I don't know if that matters or changes things but -- THE COURT: I'm not, I take it that they were related in some way and involved the same officer or whatever but yet that they were separate convictions. I mean, that's what I understood. And I gather convictions that involved separate amounts of cocaine. [DEFENSE COUNSEL]: Yes. THE COURT: And, you know, I just feel like at some point there is a threshold that you can just, you can swallow and try and pass and you get to a point where you swallow and I just [don't] pass. And I compliment you on your advocacy, Mr. [counsel]. I think you've done as much as could be done on [Karmand's] behalf. But I just, in good conscience, I just don't feel that I can grant that. Respectfully denied. [DEFENSE COUNSEL]: Very well. [STATE'S ATTORNEY]: Thank you, Your Honor.

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THE COURT: Would you like your materials back? [DEFENSE COUNSEL]: Sure. (Emphasis added.) The hearing concluded at 9:23:52 a.m. At that point in the hearing transcript, the word "(Recess)" appears. Then, at 9:31:06, the hearing transcript continues, picking up as defense counsel was speaking: [DEFENSE COUNSEL]: -- consideration and leave it as an open matter, or is this, I don't want to give my client false hope and I don't want to read the Court wrong, so maybe just ask that you -- THE COURT: Well, you can certainly . . . file a motion. I'm not sure what else you can put forward that hasn't been put forward. So, frankly, I don't want to encourage you in that regard. [DEFENSE COUNSEL]: Okay. THE COURT: But you have every right to file a motion. [DEFENSE COUNSEL]: Thank you, Your Honor. [STATE'S ATTORNEY]: Thank you, Your Honor. [APPELLEE]: Thank you, Your Honor. The record does not contain a written order denying the First Motion. The docket entries state clearly, however, that the First Motion was denied. Less than 30 days after the hearing on the First Motion, Karmand filed a second motion for reconsideration of sentence ("the Second Motion"), and a hearing request.5 In

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This motion also was entitled "Request for Reconsideration." 4

the Second Motion, he acknowledged that the court had denied the First Motion. He asked the court to "revisit [his] request to reconsider this sentence a felony record at a time in the future when requested by [Karmand]." On October 15, 2007, the court entered an order scheduling a hearing on the Second Motion for January 10, 2008. At the January 10, 2008 hearing, the presiding judge listened to the arguments of counsel and said that he was going to hold the matter sub curia. Later that same day, he issued an order granting the Second Motion by striking Karmand's conviction and entering PBJ. Less than 30 days later, the State noted this appeal pursuant to Md. Code (1974, 2006 Repl. Vol.), section 12-302 of the Courts & Judicial Proceedings Article ("CJ"). It poses two questions,6 which we have divided and reworded because they in fact raise three issues:

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As worded by the State, the questions presented are: Did the trial court err in striking [Karmand's] conviction and granting probation before judgment because [Karmand's] second request for reconsideration was not filed within 90 days of the imposition of sentence, as required by Rule 4-345, and Rule 4-345 only authorizes the reduction or modification of a sentence? Did the trial court err in striking [Karmand's] conviction and granting probation before judgment because Rule 4-243 required the State's consent before the trial court was authorized to order a disposition more favorable to [Karmand] than that provided in the plea agreement, which the trial court had approved? 5

I.

II.

I.

Did the circuit court err in granting the Second Motion because it had denied the First Motion and the Second Motion was not timely filed? Did the circuit court err in granting the Second Motion by striking the distribution conviction and sentence and entering a probation before judgment because Rule 4-345 does not authorize a court to reconsider a sentence by striking the conviction for which the sentence was imposed? Did the circuit court err in granting the Second Motion by striking the distribution conviction and sentence and entering probation before judgment when the original conviction and sentence were the result of a plea bargain and the State did not consent, under Rule 4243, to a disposition more favorable than the plea bargain?

II.

III.

We find merit in the State's first issue, and therefore we shall vacate the order granting the Second Motion. Our disposition of the first issue means we shall not reach the second or third issues.

DISCUSSION
I. CJ section 12-302(c) allows in particular circumstances an appeal by the State from a final judgment in a criminal case. For our purposes, the relevant language is as follows: (c) In a criminal case, the State may appeal as provided in this subsection. . .. (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Imposed or modified a sentence in violation of the Maryland Rules. (Emphasis added.)
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Rule 4-345 is entitled "Sentencing

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