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Maryland Court of Appeals Announces Circuit Court Retains Authority to Exercise Its Revisory Power for Up to Five Years After Granting Belated Postconviction Motion

by Douglas Ankney

In a case of apparent first impression, the Court of Appeals of Maryland announced that a circuit court has authority to revise a criminal defendant’s sentence for up to five years from the date the circuit court granted postconviction relief, permitting a belated motion for modification of sentence.

In 2005, John Schlick was sentenced to 16 years in prison, with 14 years and six months suspended, and five years of probation upon release. While on probation, Schlick was convicted of another crime. In September 2008, the circuit court imposed a prison term of the 14 years and six months that had been suspended.

After sentencing, Schlick told his attorney to file a motion for a sentence reduction, but his attorney failed to do so.

In 2012, Schlick filed a postconviction motion claiming ineffective assistance of counsel due to his attorney’s failure to file the motion for sentence reduction. The attorney swore under oath that she had failed to file the motion after Schlick had requested her to do so.

On March 20, 2013, the circuit court granted the postconviction motion and gave Schlick 90 days in which to file a motion for a modification of sentence. Schlick timely filed the motion in May 2013.

But, for various reasons, no hearing on the motion was held until January 2017, when the court sua sponte raised the issue of whether the court still had revisory authority to modify Schlick’s sentence. The court ultimately dismissed the motion without addressing its merits. The court reasoned that by statute it had authority to modify Schlick’s sentence for up to five years after it was imposed. Since the probation was revoked and the prison sentence was imposed in September 2008, the circuit court determined it no longer had revisory authority after September 2013. Schlick appealed.

The Court of Special Appeals vacated the circuit court’s decision and remanded, ruling that the circuit court retained fundamental jurisdiction over the motion, and it was within that court’s discretion whether or not to consider the motion on its merits. The Maryland Court of Appeals granted the State’s Petition for Writ of Certiorari.

The Court of Appeals observed that, “Upon a motion filed within 90 days after imposition of a sentence ... in a circuit court ... the court has revisory power over a sentence except that it may not revise the sentence after expiration of five years from the date the sentence originally was imposed ....” Maryland Rule 4-345(e). When probation is revoked and a new sentence is imposed, then the new sentence has the effect of being an original sentence. McDonald v. State, 550 A.2d 696 (Md. 1988).

Under the Uniform Postconviction Procedure Act, a defendant may file one petition for postconviction relief for each trial or sentence. Md. Code, Crim. Proc., § 7-103(a). When a defendant receives ineffective assistance of counsel, he or she may be entitled to relief under the act. Strickland v. Washington, 466 U.S. 668 (1984). As a post-trial remedy, a defendant is entitled to the relief that is needed to put the defendant in the position that he or she would have enjoyed but for counsel’s ineffectiveness. Williams v. State, 605 A.2d 103 (Md. 1992).

When defense counsel fails to timely file a motion for modification of sentence in contravention of a client’s directive to do so, the defendant is entitled to the postconviction remedy of permission to file a belated motion for reconsideration of sentence. State v. Flansburg, 694 A.2d 462 (Md. 1997)

But the Court of Appeals had not before decided if the circuit courts have authority to modify a sentence when the belated motion for reconsideration of sentence has been filed more than five years from the date the sentence was originally imposed.

The Court of Appeals determined that Schlick’s “original sentence” was imposed in September 2008 when the circuit court revoked his probation and sentenced him to 14 years and six months in prison. Had his attorney properly filed the motion for reconsideration of sentence, the circuit court would have had authority to revise the sentence for five years or until September 2013.

But his attorney did not timely file the motion. However, the circuit court granted Schlick postconviction relief on March 20, 2013, permitting him to file a belated motion for modification of sentence. The Court of Appeals reasoned that to “put the defendant in the position he would have enjoyed but for counsel’s ineffectiveness” required that Schlick be entitled to the circuit court retaining power to consider his motion for five years. Consequently, the circuit court had power to rule on the merits of his motion until March 20, 2018. Since the circuit court dismissed Schlick’s petition on August 8, 2017 — which was 224 days before March 20, 2018 — the Court concluded that the circuit court still had those 224 days in which to decide the motion.

Accordingly, the Court affirmed the judgment of the Court of Special Appeals and directed that court to remand to the circuit with instructions to Schlick to file a motion in circuit court requesting the circuit court to reconsider his motion for modification. The Court of Appeals further directed that the circuit court would then have revisory power over Schlick’s sentence for 224 days from the date of his request. See: State v. Schlick, 214 A.3d 1139 (Md. 2019). 

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