Hughes v. State

Anthony Thomas Hughes v. State of Maryland, Nos. 325 and 331, September Term, 2017.
Argued: February 1, 2018. Opinion by Sharer, J.

CRIMINAL PROCEDURE – APPEALS – ILLEGAL SENTENCE – SCOPE OF
REVIEW

Appellant’s application for leave to appeal challenging the post-conviction court’s choice
of remedies to correct an illegal sentence does not prevent an appellate court from
reviewing the post-conviction court’s underlying factual determination that the sentence
was illegal and its decision to grant appellant partial relief.

Pursuant to Maryland Rule 8-131(a), appellate courts may review any issues raised in or
decided by lower courts. As such, the post-conviction court’s finding that the sentence
imposed for one count in a five-count plea agreement did not conform to the agreement
was subject to review when appellant challenged whether the remedy afforded by the post-
conviction court to correct the illegality was appropriate. When there is a challenge to the
choice of remedies afforded to correct an illegal sentence, an appellate court may review
both the remedy and the underlying determination of the illegality of the sentence.

CRIMINAL PROCEDURE – POST-CONVICTION – ILLEGAL SENTENCE –
REMEDY – BENEFIT OF THE BARGAIN

A post-conviction challenge to the legality of only a single sentence for one count of a
multi-count plea agreement does not require a court to strike the entire plea agreement in
order to correct the illegality. Pursuant to Maryland Rule 4-345(a), a court “may correct
an illegal sentence at any time.” The post-conviction court determined that the sentence
challenged by appellant exceeded the sentencing cap imposed by the plea agreement and
struck only the sentence and conviction of the non-conforming count, rather than striking
the entire plea agreement, as appellant sought.

On appeal this Court held that the post-conviction court’s decision to strike the sentence
and conviction for only the non-conforming count of the plea agreement corrected the
illegality and restored appellant to the benefit of his bargain of the plea agreement, while
preserving the finality of the unchallenged and legal sentences on the four remaining counts
of the plea. The resolution of the illegality in appellants favor was legally correct and was
an equitable and reasonable remedy.
Circuit Court for Carroll County
Case No. 06-K-03-029949

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 325 & 331

September Term, 2017

______________________________________

ANTHONY THOMAS HUGHES

v.

STATE OF MARYLAND

______________________________________

Berger,
Friedman,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Sharer, J.
______________________________________

Filed: November 7, 2019

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-11-07 15:15-05:00

Suzanne C. Johnson, Clerk
PREFACE

In 2003, Anthony Thomas Hughes, appellant, was charged in the Circuit Court for

Carroll County, in a 25-count indictment relating to violent offenses involving four

victims.1 He entered a plea of not guilty and proceeded to trial on an agreed statement of

facts, resulting in conviction on all counts. On direct appeal, this Court reversed and

ordered a new trial.2 On November 14, 2005, prior to the ordered new trial, Hughes entered

into a plea agreement, the details of which we shall recount, infra. It is that agreement, and

the trial court’s implementation of it, that has given rise to this appeal.

In 2012, Hughes filed, pro se, a Motion to Correct Illegal Sentence, contending that

he did not agree to what he characterized as a 75-year sentence. The motion was summarily

denied, and Hughes noted an appeal, which, consequently, mirrored his motion and was

not treated or acted on as an appeal. On February 10, 2016, Hughes, through counsel, filed

a petition for post-conviction relief, again challenging the legality of the sentence based on

an alleged breach of the plea agreement by the State and the trial court. Following a

hearing, the court granted relief in part by vacating the conviction and sentence only as to

Count 7 – the count that did not appear to conform to the terms of the plea agreement.

1
The indictment charged Hughes with: one count of attempted first-degree murder,
attempted second-degree murder, eight counts of first-degree assault, first-degree burglary,
seven counts of second-degree assault, third-degree burglary, four counts of wear and carry
a deadly weapon with intent to injure, malicious destruction of property, and fourth-degree
burglary.
2
Anthony Thomas Hughes, No. 2771, Sept. Term, 2003 (filed May 6, 2005).
Dissatisfied with the post-conviction court’s grant of only partial relief, Hughes

invoked the jurisdiction of this Court in two respects: he filed a notice of appeal3 based on

the court’s denial of his initial Motion to Correct Illegal Sentence, and an application for

leave to appeal4 based on the court’s consideration of his petition for post-conviction relief.

We granted the application for leave to appeal and consolidated it with the direct appeal.

On appeal, Hughes asks this Court to determine whether the post-conviction court

erred by not allowing him to elect his remedy in response to the breach of the plea

agreement, and by vacating the conviction and sentence as to Count 7 only, rather than

vacating the entire plea agreement.5

Finding that the sentence imposed on Count 7 was illegal and agreeing with the

post-conviction court’s choice of remedy, we shall affirm.

FACTUAL BACKGROUND

Because Hughes presents only procedural questions, we need not set forth an

extensive factual recitation in support of the underlying convictions. Therefore, we provide

3
Hughes v. State, No. 325, September Term, 2017.
4
Hughes v. State, No. 331, September Term, 2017.
5
Appellant’s questions, as presented in his brief:

After the lower court correctly found that Mr. Hughes’ sentence failed to
conform to his binding plea agreement, did the lower court err: (1) by failing
to permit Mr. Hughes to elect his choice of remedies, and withdraw his guilty
plea; and/or (2) by affording Mr. Hughes a remedy neither requested, nor
previously sanctioned in Maryland, by vacating solely that portion of the plea
and sentence which failed to conform to the parties’ binding plea agreement?
2
only a brief narration of the relevant background. See Teixeira v. State, 213 Md. App. 664,

666 (2013); Washington v. State, 190 Md. App. 168, 171 (2010). For context, we refer to

the State’s brief for a summary of the events of December 31, 2002.

On that evening, Hughes broke into the home of his ex-wife, Ellen Redifer, in

Westminster, Carroll County. Redifer, her daughter, Arianna Hughes and Arianna’s

boyfriend, Sean Malay, fled from the house, and were pursued by Hughes. Hughes caught

Redifer and struck her multiple times in the head, neck and upper chest with a large framing

hammer. Malay attempted to intervene but was threatened with the hammer. Redifer’s

neighbor, John Glover, responded and pulled Hughes away from Redifer, and he too was

struck with the hammer. Hughes and Glover grappled, and Hughes cut Glover in the back

of the head with a box cutter knife. At that point Hughes ran from the scene but returned

and attempted to run down all of them with his car. Hughes then fled to a relative’s house

in West Virginia, where he was later arrested. Redifer survived the critical injuries

sustained in the attack.

PROCEEDINGS BELOW

On July 21, 2003, Hughes pleaded not guilty on an agreed statement of facts

proffered by the State, after which the court found him guilty on all counts. The court

imposed a sentence of life plus 45 years’ imprisonment. Hughes appealed, arguing that he

had not knowingly and voluntarily waived his right to a jury trial. This Court agreed,

reversed his convictions, and ordered a new trial. See Hughes v. State, No. 2771, Sept.

Term, 2003 (filed May 6, 2005).

3
On the day that Hughes appeared for a motions hearing preliminary to his new trial,

a binding plea agreement was negotiated.6 Hughes agreed to plead guilty to five counts:

Count 1 – attempted first-degree murder of Redifer; Count 7 – first-degree assault of the

neighbor, John Glover; Count 11 – first-degree burglary; and to Counts 14 and 15 – second-

degree assault of Arianna Hughes and Sean Malay, respectively. In exchange for the guilty

plea the State agreed to ask for a sentence of 75 years’ incarceration with all but 45 years

suspended for the attempted murder count (Count 1). The remaining four counts (Counts

7, 11, 14 and 15) were to carry either suspended or concurrent sentences.

Following recitation of the agreement, the court advised Hughes of his rights

pursuant to Md. Rule 4-242, including an extensive voir dire to establish his competency

to enter into the plea agreement. Thereafter, the court accepted the plea agreement, binding

to its terms, and the State gave a factual proffer to support the charges. The court found

Hughes guilty of the five counts and ordered a pre-sentence investigation. As agreed, the

State then entered a nol pros of the remaining counts of the indictment.

At sentencing, the State requested, pursuant to the binding plea agreement: as to

Count 1 (attempted murder) 75 years’ incarceration with all but 45 years suspended; as to

Count 7 (first-degree assault), 25 years consecutive to Count 1, but suspended; and

concurrent term-of-years sentences for the three remaining charges, all of which the court

6
The record does not contain a transcript of negotiation discussions.

4
imposed.7 As agreed at the plea hearing, the State had nol prossed the remaining counts

that were not included in the plea agreement. Appellant did not object to the sentences as

requested or imposed and confirmed on the record that he understood the sentences

imposed and that he had no questions about them.

Soon thereafter, Hughes moved to modify his sentence, and requested that the

motion be held sub curia. The motion was denied without a hearing. On September 5,

2012, Hughes filed a pro se Motion to Correct Illegal Sentence, contending that he never

consented to a 75-year sentence. That motion was also summarily denied.

Hughes next filed an “Application for Leave to Appeal Denied [sic] the Motion to

Correct Illegal Sentence.” Other than the caption, the document was essentially a

handwritten copy of his original typed motion. The Clerk’s office noted on a “Case

Frequency Report” that, “This motion has already been denied See order dated 9.24.12.”

Because of that, the filing was not treated as Hughes’ appeal of the court’s denial of his

Motion to Correct Illegal Sentence, and no further action was taken by the court. The State

had also filed a formulaic response to appellant’s handwritten filing, incorporating its

response to the original motion.

7
Initially at sentencing, the court failed to include a term of probation, as required when a
portion of a sentence is suspended; however, the court recalled the case later that same day
and imposed a five-year term of probation to follow Hughes’ release from incarceration.

5
On February 10, 2016, Hughes, now represented by counsel, filed a petition for post-

conviction relief, again challenging the legality of the sentence.8 He argued that the State

and court violated the plea agreement when a 25-year consecutive sentence for Count 7

was requested and imposed, which exceeded the terms of the plea agreement, thereby

rendering the sentence illegal. As to relief, he proclaimed his entitlement to either vacate

the entire plea agreement, or to have it specifically enforced by making the Count 7

sentence a concurrent suspended sentence of 25 years, rather than consecutive.

Following a hearing, the post-conviction court issued an order granting relief in part

by vacating the conviction and the sentence for Count 7, leaving all other convictions and

sentences unchanged.9 The post-conviction court ordered a new trial on Count 7. At the

8
The initial petition for post-conviction relief raised five questions for the court’s review.
The first two questions related to appellant’s plea being knowingly, intelligently, and
voluntarily made without full compliance with Rule 4-242. Two questions related to the
illegality of the sentence and whether Hughes was entitled to elect his remedy. The final
question was an ineffective assistance of counsel claim.

The petition was later amended to add a claim challenging the legality of the
sentence that was originally imposed without a term of probation. However, the case was
recalled, on the day of sentencing, to allow the trial court to add a five-year probation term
to the sentence. This claim is not being pursued on appeal. At the hearing, Hughes
withdrew all claims from the original request, except for those relating to the illegality of
his sentence.
9
We question the court’s authority to vacate the conviction under Count 7. Rule 4-345(a)
affords the court the authority to “correct an illegal sentence at any time [,]” but it does not
give the court the authority to vacate an otherwise valid and lawful conviction. However,
because the State effectively abandoned its intent to pursue Count 7 by entering a nol pros
before the scheduled retrial, and by failing to pursue a cross-appeal challenging the court’s
authority, the State has waived the matter.

6
time of Hughes’ initial appearance pursuant to that Order, the State entered a nol pros to

Count 7. Those events occurred on the day following Hughes’ filing of a notice of appeal

and an application for leave to appeal, to which we have referred, supra.10

DISCUSSION

The procedural posture of this appeal requires that we preliminarily address two

underlying issues: (1) the effect of the State’s entry of nol pros as to Count 7 after an

appeal had been noted; and (2) whether, when determining the appropriateness of the

remedy afforded, we can review the post-conviction court’s determination that the sentence

imposed by the trial court was illegal. While these two issues were not directly argued by

the parties in their respective briefs, they were considered below, and discussion is

necessary in order for our discussion of the merits of the consolidated appeals.

The State’s Nol Pros of Count Seven

Hughes does not directly challenge the State’s ability to enter a nol pros of a count

after the defendant has noted an appeal. Nonetheless, because it is a predicate to our review

of the post-conviction court’s decision, we shall briefly address the question.

On April 25, 2017, Hughes filed his notice of appeal and an application for leave to

appeal together with a motion to stay proceedings pending resolution of the appeals and,

on the following day, the State entered a nol pros of Count 7. The State contends,

generally, that “Hughes received more than [that] to which he was entitled under the plea

10
At the same time, Hughes moved for a stay pending the outcome of his appeal. That
matter is not before the Court.

7
agreement when the court vacated his felony conviction and sentence in count seven and

the State elected not to reprosecute [sic] him on that charge.”

While the parties acknowledge the issue of the timeliness of the nol pros, neither

question the legal effect of its post-judgment entry.

An entry of nol pros on a count or charge reflects the “prosecutor’s desire not to

proceed against the accused on the basis of that particular charging document.” State v.

Ferguson, 218 Md. App. 670, 680 (2014) (quoting Huebner v. District Court of Maryland,

62 Md. App. 462, 470 (1985)). We have said, the “[e]ntry of a nol pros ‘is generally within

the sole discretion of the prosecuting attorney, free from judicial control and not dependent

upon the defendant’s consent.’” Ferguson, 218 Md. App. at 680 (quoting Ward v. State,

290 Md. 76, 83 (1981)). However, that authority is not without limits.

As we recently held in Simms v. State, 232 Md. App. 62 (2017), a “post-conviction

nol pros is ineffective ….” 232 Md. App. at 70. Simms went to trial on an agreed statement

of facts and was found guilty. Id. at 64, 67. He was sentenced according to an agreed-

upon sentence on one charge and the State nol prossed the remaining charges. Id. Simms

then appealed, asserting, inter alia, insufficiency of the evidence. Id. at 64. While the

appeal was pending before this Court, the State entered a nol pros of the count on which

Simms had been convicted. Id. at 64, 67.

The Court of Appeals granted certiorari and affirmed, sub nom, clarifying that

after a defendant has received a final judgment in the form of a conviction
and sentencing, the State may not enter a nolle prosequi to alter the final
judgment. Upon conviction and sentencing based upon an underlying charge,
the underlying charge is no longer pending and the State’s authority to enter

8
a nol pros has ended. Final judgment terminates the case in the trial court….
Therefore, the State lacked the authority to nol pros in order to alter the final
judgment or to eliminate the appellate process initiated by [appellant].

State v. Simms, 456 Md. 551, 578 (2017).

The Court of Appeals reasoned, that “[b]ecause [appellant] appealed his conviction

and sentence, the trial court had no jurisdiction to alter the conviction or sentence by relying

on the State’s nol pros authority.” Id. at 576.

We need not apply Simms to the matter before us, because we ultimately shall hold

that the post-conviction court was correct in ruling that Hughes’ sentence on Count 7 was

illegal, and because we conclude that the remedy granted by the post-conviction court

restores Hughes to the terms of the plea agreement, we assume, arguendo, the legal effect

of the State’s nol pros.

The State did not note a cross-appeal

A second preliminary inquiry is our authority to review the post-conviction court’s

underlying determination that the sentence exceeded the terms of the plea agreement.

Attempting to limit the scope of our review, Hughes asserts that “[t]he lower court’s finding

that [his] sentence failed to conform to the parties’ binding plea agreement is beyond the

scope of this appeal ….” because the State has failed to file a cross-appeal from the ruling

of the post-conviction court.

The scope of appellate review is governed by Maryland Rule 8-131, providing, in

relevant part, that:

Ordinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court, but

9
the Court may decide such an issue if necessary or desirable to guide the trial
court or to avoid the expense and delay of another appeal.

Rule 8-131(a).

But, the Rule affords this Court discretion to consider issues that were “raised in or

decided by the trial court[.]” Id. Additionally, the Rule permits the exercise of discretion

over matters that were neither raised in nor decided by the trial court, when “such an issue

[is] necessary or desirable to guide the trial court ….” Id.

Hughes refers us to Walston v. Sun Cab Co., Inc., 267 Md. 559 (1973), for the

proposition that an appellee cannot urge this Court to consider matters outside the scope

of an appeal absent a cross-appeal. Walston, however, expressly limits any restriction to

“matters not within or related to the issues raised by an appellant.” 267 Md. at 564.

Clearly, the issues presented to the post-conviction court regarding the legality, or

illegality, of Hughes’ sentence and the extent to which the parties received the benefit of

the plea bargain, are sufficiently intertwined to be considered as issues related to those

raised in Hughes’ direct appeal and his application for leave to appeal.

Hughes asks us to review the court’s choice of remedies. Therefore, we review the

court’s factual findings that resulted in the remedy afforded when determining whether that

remedy was appropriate. Indeed, in determining whether the post-conviction court erred

in its choice of remedies, as Hughes argues, we review what the plea agreement

contemplated and whether the State and the trial court complied with its terms. Such

review presents matters “within or related to” the issues raised by Hughes, and within this

Court’s discretion to consider.

10
Binding Plea Agreements

Plea agreements are a vital and efficient mechanism for both the State and the

defendant, as well as for the public. See Cuffley v. State, 416 Md. 568, 577 (2010). The

Maryland Rules governing plea agreements provide strict safeguards and procedures to

ensure that the defendant’s procedural due process rights are protected.

Judge Moylan has explained for this Court:

A plea agreement is, of course, a contract between a criminal defendant and
the State in which each seeks to gain a benefit and, in return for such benefit,
each agrees to pay a price. It is a very special contract, moreover, in that even
after the basic quid pro quo is agreed upon by the primary contracting parties,
the entire package may be submitted to a criminal court for its approval and
its subsequent enforcement. If it should then be the enforcing authority (to
wit, the court) that commits a breach of the contract, what even-handed
justice requires is that each of the primary contracting parties, if suffering
from the breach, is equally entitled to seek a remedy under equally conducive
procedural conditions.

State v. Smith, 230 Md. App. 214, 218 (2016), aff’d, 453 Md. 561 (2017).

Maryland Rule 4-242 imposes various conditions that must be satisfied before a

court can accept a guilty plea. In this case, there is no challenge to the adequacy of the trial

court’s qualification of Hughes’ plea.

While Rule 4-242(h)11 limits when a defendant can move to withdraw a plea when

a violation of the agreement is asserted, Rule 4-345, which governs revision of sentences,

11
Rule 4-242(h) provides that a defendant may withdraw a plea “[a]t any time before
sentencing,” and thereafter if made by motion within ten days, at which point “the court
may set aside the judgment and permit the defendant to withdraw a plea of guilty[ ]… if
the defendant establishes that the provisions … of this Rule were not complied with or
there was a violation of a plea agreement entered into pursuant to Rule 4-243….”
11
expressly provides that “[t]he court may correct an illegal sentence at any time.” Rule 4-

345(a) (emphasis added). Maryland courts have consistently held that

“a sentence imposed in violation of the maximum sentence identified in a
binding plea agreement and thereby ‘fixed’ by that agreement as ‘the
maximum sentence allowable by law,’ is … an inherently illegal sentence[,]”
and is cognizable under Maryland Rule 4-345(a).

Ray v. State, 454 Md. 563, 572 (2017) (quoting Matthews v. State, 424 Md. 503, 519

(2012)).

When reviewing the illegality of a sentence, we must resolve the terms of the plea

agreement, which, unless in writing, must be ascertained through only the record of the

plea agreement hearing. See Cuffley, 416 Md. at 582 (establishing “that any question that

later arises concerning the meaning of the sentencing term of a binding plea agreement

must be resolved by resort solely to the record established at the Rule 4-243 plea

proceeding” (emphasis in original)). Further, it matters not what the State, the court, or the

defendant intended or understood the terms to be at that time; rather, the terms are resolved

under an objectively reasonable person standard. See Ray, 454 Md. at 577 (a court “must

determine what a reasonable lay person in the defendant’s position would understand the

agreed-upon sentence to be, based on the record developed at the plea proceeding”).

It is established that

“[t]he test for determining what the defendant reasonably understood at the
time of the plea is an objective one. It depends not on what the defendant
actually understood the agreement to mean, but rather, on what a reasonable
lay person in the defendant’s position and unaware of the niceties of the
sentencing law would have understood the agreement to mean, based on the
record developed at the plea proceeding. It is for this reason that extrinsic

12
evidence of what the defendant’s actual understanding might have been is
irrelevant to the inquiry.”

Ray, 454 Md. at 579-80 (emphasis added) (quoting Cuffley, 416 Md. at 582). If, however,

“we still find ambiguity regarding what the defendant reasonably understood to be the

terms of the agreement, then the ambiguity should be construed in favor of the defendant.”

Id. at 577-78.

Applying this test to the instant case, we are persuaded that the terms of the plea

agreement were not ambiguous; but, the sentence imposed was inconsistent with the stated

terms of the agreement and thus illegal.

The Plea Agreement

The transcript of the plea agreement discussions reflect that the plea agreement was

originally articulated on the record as: “The State’s position, Your Honor, would be asking

for a sentence of 75 years to serve, suspend all but 45 years to serve[,]” … “on a Guilty

Plea to Counts One, Seven, 11, 14, and 15….”

We excerpt relevant portions of defense counsel’s qualification of Hughes on the

plea agreement:

[COUNSEL]: The second ground is that you received an illegal sentence.
Respectfully, the maximum penalty for attempted murder in the first degree
in the State of Maryland is life in prison. Do you understand that?

[DEFENDANT]: Yes, I do.

[COUNSEL]: You are receiving not a life sentence but a 75-year sentence
with all but 45 years being suspended. Do you understand that?

[DEFENDANT]: Yes, I do.

13
***

[COUNSEL]: Now, you are also receiving secondary sentences, but those
sentences will either be suspended or those sentences will be run concurrent
with the 75-year suspend all but 45 years sentence you are receiving on
Count Number One. Do you understand that?

[DEFENDANT]: Yes, I do.

[COUNSEL]: But the maximum penalty for assault in the first-degree is 25
years. Do you understand that?

[DEFENDANT]: Yes, I do.

[COUNSEL]: The maximum penalty for assault in the second-degree is 10
years. Do you understand that?

[DEFENDANT]: Yes, I do.

[COUNSEL]: The maximum penalty for burglary I believe is 15 years.
Twenty years, burglary in the first-degree.

[DEFENDANT]: Are you sure it’s 20?

***

[COUNSEL]: Twenty years. Okay. Do you understand that?

[DEFENDANT]: Yes, I do.

[COUNSEL]: Very good. And provided the Judge does not give you
sentences that exceed those penalties then the Judge’s sentence will be a
legal sentence and in all likelihood your application on that ground would
fail. Do you understand that?

[DEFENDANT]: Yes, I do.

(Emphasis added).

Hughes argues that he

14
tendered his guilty plea pursuant to a very specific plea agreement: he
tendered the plea to five enumerated counts … in return for the negotiated
sentence…. The agreement, therefore, called for these five counts to be
resolved, via a guilty plea which resulted in a sentence which did not exceed
a term of seventy-five years incarceration (with all but forty-five years of that
term suspended)….

Further, he asserts that “[t]he [post-conviction] court’s chosen remedy, therefore,

again violated the terms of the binding plea agreement, and exceeded what [he] was entitled

to[.]” (Footnote omitted).

Experience tells us that the ebb and flow of discussion at a sentencing hearing may

sometimes create uncertainty in the minds of the principals and may have done so in this

instance. The plea agreement articulated on the record contained no provision for a

consecutive sentence to any of the pleaded counts. It was clear on its face. The sentence

imposed, in fact, was burdened with the possibility of being greater than 75 years should

Hughes be paroled or otherwise released after serving the 45-year sentence and then

reoffend, thereby exposing himself to execution of the suspended consecutive 25-year

sentence.

Standard of Review

“A substantively illegal sentence is subject to correction at any time.” State v.

Crawley, 455 Md. 52, 66 (citing Rule 4-345(a)), reconsideration denied (Aug. 23, 2017).

“The principle that a substantively illegal sentence must be corrected applies regardless of

whether the sentence has been negotiated and imposed as part of a binding plea agreement.”

Crawley, 455 Md. at 67. As such, it follows that “‘a sentence imposed in violation of the

maximum sentence identified in a binding plea agreement and thereby fixed by that

15
agreement as the maximum sentence allowable by law, is … an inherently illegal

sentence[,]’ and is cognizable under Maryland Rule 4–345(a).” Ray, 454 Md. at 572

(quoting Matthews, 424 Md. at 519). We review a court’s decision to vacate a plea

agreement de novo. Falero v. State, 212 Md. App. 572, 584 (2013) (citing Sifrit v. State,

383 Md. 77, 93 (2004)).

Before the post-conviction court, Hughes’ counsel expressly stated that “to be clear,

we are challenging the sentence under Maryland Rule 345(a) as being illegal.” Counsel

offered that “perhaps the Court may find, you know, as to count 7, the 25 years consecutive

on assault, all suspended, maybe that is the only illegal sentence. And so, maybe that is

the only thing that the Court has jurisdiction to correct.”

Hughes’ counsel concluded that: “The only rationale [sic] conclusion would be that

you must be allowed to withdraw as to the plea in its entirety, otherwise we have got a sort

of severance going and we have got some counts standing[.]” When asked by the court if

defense counsel had any case law authority to support that proposition, counsel responded

that she “could not locate case law that specifically said that …” and that: “I am relying

on reason, Your Honor.”

In response to the various arguments presented at the hearing, the State challenged

the ambiguity allegations, then addressed a lengthy waiver argument and, finally,

challenged appellant’s assertion of illegality of the sentence. The State argued that if the

court were to find the sentence illegal, it can correct it at any time. Essentially, the State

argued that any remedy to which Hughes would have been entitled relating to a breach in

16
the plea agreement or an illegal sentence exceeding the agreement, was waived when not

presented on the direct appeal. Maryland Rule 4-345(a), however, permits a court to

correct an illegal sentence at any time.

The State relied primarily on Chaney v. State, 397 Md. 460, 467 (2007), proffering

that it stands for the proposition that:

While a post-conviction proceeding is an appropriate vehicle in which to
challenge the legality of a sentence, a far more prudent tact is through a
motion to correct an illegal sentence, pursuant to Rule 4-345(a). The later
[sic] allows for the right to file a direct appeal from an unfavorable ruling,
while the former does not. And he did not do that.

(Internal quotations omitted).

In its memorandum opinion, the post-conviction court considered each issue

presented. The court first addressed the waiver arguments, finding that:

The only alleged illegal sentence in this case is as to count 7 for first
degree assault. [Appellant] alleges that the State and the Plea Judge agreed
that it would run within the confines of a 75 year, suspend all but 45 year
sentence. Certainly, the sentence imposed by the sentencing judge was legal
in the sense that it was generally permitted by statute. There is case law,
however, that supports the proposition that once a judge commits the Court
to a sentence less than the maximum permitted by law, violation of the lesser
term becomes an illegal sentence, just as if the judge had violated the
statutory limits. Dotson v. State, 321 Md. 515, 524 (1990). Since that is
precisely the allegation in this case, this claim, if proven, would fall into the
second category of illegal sentences and would not have been waived by
failing to appeal.12

12
As to waiver, as it related to Hughes’ failure to appeal the denial of his pro se Motion to
Correct Illegal Sentence, the court found that he had attempted to file an application for
leave to appeal the denial of that motion, but it was handwritten and misread by the court
and had remained dormant, “but not due to any fault of his.” As a result, the court
concluded to “treat the Application as a request for reconsideration of that prior Motion to
Correct Illegal Sentence.”
17
Speaking to whether the State, the trial court, or both, violated the plea agreement,

the post-conviction court engaged in a careful review of the plea and sentencing hearings:

From this record, the plea agreement initially involved a
recommendation by the State. The first portion of the plea transcript relative
to this is when the Assistant State’s Attorney put on the record that the State
is “asking” for a sentence of 75 years suspend all but 45 years on all counts.
No one corrected this representation. Next, Defense Counsel advises
[appellant] that “the judge has committed to giving you a sentence that you
negotiated here and that was read into the record a little earlier.” Likewise,
this statement was never corrected or clarified. Since the only sentence that
was “read into the record a little earlier” was the 75 year suspend all but 45
years, [appellant] was being advised, at least up to this point in the transcript,
that the maximum sentence he faces is the 75 years suspend all but 45 years.
Finally, in discussing the limitations of his rights on appeal, Defense Counsel
advised that he would be given 75 years suspend all but 45 years for
attempted first degree murder, that he could be given concurrent or
suspended sentences for the other charges, and then proceeded to list the
maximum penalties that the statutes provide for each crime. This advice
appears to contradict the prior “negotiated” sentences that the Plea Judge
“committed” to give [appellant]….

In this case, being limited to the record in this case, it is not clear
which sentence the parties intended. Accordingly, the plea agreement will
be interpreted to require the imposition of the lesser of the two sentences,
that being an aggregate of 75 years suspend all but 45 years.

The court found that the State had breached the agreement by asking for the

consecutive sentence and the trial court breached the agreement by imposing that sentence.

As a result, the post-conviction court granted relief “by vacating the plea and sentence for

such offense and setting the matter in for an initial appearance on Count7 [sic].” However,

the court also acknowledged that Hughes was seeking “to withdraw his plea agreement as

to those sentences which were undeniably legal[,]” but that it could find no case law to

support that position, asserting entitlement to “withdraw [a] plea as to legal sentences as a

18
consequence for the imposition of an illegal sentence on a single charge.” For support, the

court stated that it “notes that rules of plea agreements are not to be enforced strictly

pursuant to contract law, but rather must adhere to the principles of fairness and equity.”

Further finding that:

There would certainly be nothing ‘fair’ or ‘equitable’ in permitting the
withdrawal of all pleas when, as here, the error is limited. Nor can [appellant]
point to any prejudice that he has incurred, is incurring, or will incur by
permitting him to withdraw his plea only as to the illegal sentence.

Based on that finding, the court granted Hughes relief in part and denied it in part.

The Remedy

We agree with the post-conviction court that the State’s request for the consecutive

sentence, and the trial court’s imposition of that sentence, created an illegal sentence. Thus,

we reach the ultimate question before us: the appropriateness of the post-conviction court’s

grant of partial relief by vacating the sentence and conviction only as to Count 7.

Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence

at any time.” An illegal sentence has been defined as “one ‘in which the illegality inheres

in the sentence itself.’” Rainey v. State, 236 Md. App. 368, 374 (quoting Chaney, 397 Md.

at 466), cert. denied, 460 Md. 23 (2018). We explained in Carlini v. State, 215 Md. App.

415 (2013), when discussing the Court of Appeals’s decision in Matthews v. State, supra,

that the Court “made explicit what had theretofore been only implicit, to wit, that a sentence

in excess of the sentencing cap agreed upon in a binding plea agreement is ipso facto an

illegal sentence cognizable under Rule 4-345(a).” Carlini, 215 Md. App. at 431. The

Matthews Court also stressed that “even if the sentencing terms, as expressed at the plea

19
hearings, were ambiguous, the ambiguities must be resolved in the defendants’ favor.”

Matthews, 424 Md. at 523 (citing Cuffley, 416 Md. at 586; Baines v. State, 416 Md. 604,

620 (2010)).

Hughes contends that the court’s error was, “rather than affording [him] his

traditional ability to elect his remedy from these two options – or respecting his election to

withdraw the plea – the court provided a remedy which has never before been sanctioned

in Maryland, viz., vacating one count of a multi-count plea agreement and providing a new

trial on that sole count.” He offers no authority in support of that bald assertion, nor have

we found any authority that the remedy ordered by the post-conviction court in this case

has “never before been sanctioned” by the appellate courts of this State.13

13
At oral argument before this Court, the State interestingly pointed out the Court of
Appeals’s decision in State v. Crawley, 455 Md. 52 (2017), wherein the Court determined
that “[t]he principle that a substantively illegal sentence must be corrected applies
regardless of whether the sentence has been negotiated and imposed as part of a binding
plea agreement.” 455 Md. at 67. Further that, “Crawley’s sentence – unlawful as originally
imposed [a split sentence without a period of probation] – was properly remedied through
the imposition of a period of probation[,]” despite his argument that it exceeded the terms
allowed pursuant to the binding plea agreement. Id.

Crawley had pleaded guilty pursuant to a binding plea agreement that did not
contemplate or mention a term of probation. Id. at 56. At sentencing, Crawley was
sentenced in accordance with the plea and given a split sentence of life imprisonment with
all but 35 years suspended without a period of probation. Id. at 56-57. Following the
Court’s decision in Cathcart v. State, 397 Md. 320 (2007), Crawley moved to revise his
illegal sentence based on the court’s failure to impose a period of probation. Id. at 61. At
resentencing, the court vacated the agreed upon sentence and re-imposed a life sentence
with all but 35 years suspended, affording him the time he had served thus far, and added
a term of four years of probation, which Crawley appealed, alleging that it exceeded the
agreed upon terms of the plea agreement. Id. at 62.

20
Hughes asserts that the court was correct in finding that the sentence was illegal but

argues that it erred in the remedy it afforded him. He argues that the court’s error in

severing the convicted counts and the sentences was twofold: first, in “focusing on the

guilty plea, and the sentences for each count, as individual and discrete sentences, rather

than as necessary and interrelated parts of a comprehensive whole[;]” and second, in

“focusing [on] the perceived fairness of the relief, rather than the other core constitutional

considerations at stake.” Hughes concludes that “ultimately, the concerns for fairness and

equity are subordinate to the constitutional considerations, viz., ensuring that when the

accused tenders a guilty plea as consideration for a binding agreement, the accused receives

the full benefit of his or her bargain.” Although Hughes sprinkles his arguments with

references to constitutional considerations, he offers neither argument nor authority in

support of those concepts.

In Twigg v. State, 447 Md. 1 (2016), the Court of Appeals in its analysis of Maryland

Code (1988, 2013 Repl. Vol.) Courts and Judicial Proceedings Article, § 12-702, concluded

that the term “offense” means “not simply one count in a multi-count charging document,

As the State emphasized at oral argument before this Court, Crawley was not given
the two options that Hughes contends are the only remedies that a defendant is afforded
when a sentence is imposed in excess of the terms of a binding plea agreement – withdrawal
of the plea or specific performance. Instead, the Court of Appeals afforded courts the
authority to correct the illegality by adding a term of probation to split sentences where one
had not previously been imposed, including those bound by binding plea agreements. Id.
at 67-68. To account for the apparent deviation from its recent precedents, the Crawley
Court distinguished its decision from the Cuffley v. State progeny, asserting that unlike
Crawley’s agreed upon sentence that was inherently illegal, those cases “dealt with
resolving ambiguous sentencing terms of a plea agreement.” Id. at 67.
21
but rather the entirety of the sentencing package that takes into account each of the

individual crimes of which the defendant was found guilty.” 447 Md. at 26-27. For

support, the Court of Appeals referred favorably to this Court’s reasoning in our opinion

that,

“[i]n imposing sentences for multiple convictions in a single case, a trial
judge considers not only the sentence for each conviction, but also the total
sentence for all of the convictions together. Indeed, the Maryland Sentencing
Guidelines are structured to reflect such dual consideration. The sentencing
guidelines provide a guideline range for each conviction, and then an overall
guideline for all of the convictions, viewed as a whole.”

Twigg, 447 Md. at 27 (quoting Twigg v. State, 219 Md. App. 259, 287 (2014)).

Hughes draws on the Twigg Court’s discussion of the “sentencing package,”

wherein it recognized that despite ambiguity, in cases that involve multiple charges that

arise from a single event, “it is not unreasonable to understand the terms as referring to the

total sentence for all those counts upon which the defendant was convicted.” Id. at 25.

Further, that “[c]onstruing the ‘offense’ in § 12-702(b) as referring in multi-count cases to

the aggregate of the various component parts – i.e., individual counts – and the ‘sentence’

in such cases as referring to the entire sentencing package readily comports with the widely

held view of the realities of trial judges’ approach to sentencing.” Id. at 28.

Applying the Court’s reasoning to his argument, Hughes contends that “[i]n equal

force, a binding plea agreement – which encompasses multiple counts of a multi-count

charging document – cannot be viewed as a series of individual agreements to individual

counts and sentences[;] [r]ather, … it is a global agreement to a global resolution[.]”

22
Which, he asserts, means that “the violation of one provision of the agreement is a violation

of the entire agreement.”

In his reply brief, Hughes posits further that “[b]ut for the agreement, the defendant

would not have pled guilty, and could be sentenced only if, at trial, the State proved guilt

beyond a reasonable doubt. The agreement, therefore, induced the plea, secured the finding

of guilt, and gave the court the authority to impose sentence.”14 Because of that alleged

inducement, he avers that “[t]he relationship between the agreement, conviction, breach

and illegal sentence are therefore so intrinsically intertwined that the remedy cannot be

limited merely to sentence correction; the error does not affect only the sentence, but infects

and vitiates the regularity of the underlying conviction itself.”

Hughes also refers us to Johnson v. State, 427 Md. 356 (2012) to support his

assertion that

[b]ecause the breach of a binding plea agreement vitiates the promises in
which induced and secured the decision to plead guilty, the imposition of a
sentence in violation of the agreement – particularly at the behest of the State
– is one of the rare scenarios in which the illegality of the sentence affects
both the sentence and the underlying conviction.

The helpful language Hughes refers to in Johnson is: “[w]hen the illegality of a

sentence stems from the illegality of the conviction itself, Rule 4-345(a) dictates that both

14
We recall that Hughes, although entering a not guilty plea to all 25 counts of the
indictment when the matter first came to trial in 2003, proceeded on an agreed statement
of facts, resulting in a guilty verdict on all counts. In fact, during his acceptance of the
guilty plea agreement entered on remand, when asked if he was pleading guilty because he
was actually guilty, Hughes conceded his guilt, stating, “yes, I did hurt Ellen Redifer and
these other people….” but that he “didn’t make a conscious decision to try and kill
anybody.”
23
the conviction and the sentence be vacated.” 427 Md. at 378. However, Johnson was

convicted and sentenced for a crime with which he had not been charged. Such is not the

case in the present appeal. Hughes raises no challenge to his convictions or to the

sufficiency of the evidence underlying those convictions. He was correctly convicted on

all five counts. Hughes’ challenge is solely to the sentence, not the underlying conviction.15

We shall affirm. We concur in the post-conviction court’s finding that the sentence

imposed on Count 7 was an illegal sentence. Moreover, we find the court’s resolution of

that illegality in Hughes’ favor by striking the conviction and sentence to Count 7 to be

equitable and reasonable as well as legally correct, in that it restores to Hughes his benefit

of the bargain – a sentence of 75 years, all of which is to be suspended but 45 years, without

exposure to potential future incarceration. Hughes has received the benefit of his bargain.

JUDGMENT OF THE CIRCUIT COURT
FOR CARROLL COUNTY AFFIRMED;
COSTS ASSESSED TO APPELLANT.

15
Despite Hughes’ argument that he is entitled to withdraw the entire plea agreement as to
all counts, he conceded at the post-conviction hearing that the court may only have
authority to correct the sentence as to the one non-conforming count. Indeed, at oral
argument, his appellate counsel also conceded that no case has explicitly granted that
remedy, only implicitly, because no one has yet sought that remedy.
24