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«DAVID BRIGHTWELL v. STATE OF MARYLAND Meredith, Woodward, Friedman JJ. Opinion by Woodward, J. Filed: July 1, 2015 David Brightwell, appellant, was ...»

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2735

September Term, 2012

DAVID BRIGHTWELL

v.

STATE OF MARYLAND

Meredith,

Woodward,

Friedman

JJ.

Opinion by Woodward, J.

Filed: July 1, 2015

David Brightwell, appellant, was convicted by a jury sitting in the Circuit Court for Somerset County of two counts of armed robbery, use of a handgun in the commission of a felony, and a variety of other offenses related to his participation in a 1996 gas station robbery. Appellant was sentenced to a total of fifty years’ incarceration. In an unreported opinion filed on March 30, 1999, this Court affirmed appellant’s convictions. Appellant subsequently filed a pro se motion to correct an illegal sentence, which the circuit court denied. Appellant noted a timely appeal from that denial and presents the following question

for our review, which we have rephrased for clarity:1

Did the trial court err by denying appellant’s motion to correct an illegal sentence?

1

Appellant’s question as stated in his brief is as follows:

Did the circuit court in denying appellant’s motion to correct an illegal sentence, pursuant to Maryland Rule 4-345(a) and motion to reopen his Petition for Post-Conviction Relief, clearly err as a matter of law,

when:

A. The circuit court erroneously concluded that appellant issues of an illegal sentence is a proper subject for appellate review on direct appeal and, having failed to raise the issue on direct appeal. Petitioner has waived the right to bring this issue under the guise of a motion to correct an illegal sentence, denying appellant’s motion?

B. The circuit court erroneously concluded that appellant [sic] issues filed to reopen his Petition for Post-Conviction Relief, to raise the proposed allegation of an illegal sentence, as this allegation was not raised on appeal, nor was this allegation raised at the first post conviction hearing, this allegation has been waived, and did not consider appellant’s issues in their entirety.

For the reasons which follow, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

As a preliminary matter, the State urges us to dismiss appellant’s appeal for failing to comply with the requirements of Maryland Rule 8-503 by filing a 49-page, hand-written brief without leave of this Court or in the alternative to require appellant to file a brief in conformity with the Rules. See Md. Rule 8-503(g). The State also seeks dismissal of appellant’s appeal because appellant failed to append to his brief “the pertinent part of” the ruling and order “that deals with the points raised by the appellant on appeal.” 2 See Md. Rule 8-504(b). The State cites to Rollins v. Capital Plaza Associates, L.P., 181 Md. App. 188, 203 (2008) (noting that the appeal was dismissed because of violations of rules of appellate procedure). We agree that appellant has violated a number of our procedural rules. Although appellant is a pro se litigant, he is still required to follow the appellate rules. “Dismissal of an appeal for nonconformity with these rules is, however, discretionary.” In re Joshua W., 94 Md. App. 486, 491 (1993); see Md. Rule 8-503(g). We shall exercise our discretion and deny the State’s motion to dismiss this appeal.

We adopt a portion of the factual background from this Court’s unreported opinion in Brightwell v. State, No. 502, September Term 1998 (filed March 30, 1999), slip op. at 1-3.

–  –  –

In a trial ending on September 29, 1997, appellant was tried on charges related to his involvement in the noted robbery. At the conclusion of appellant’s trial, the following

colloquy occurred when the jury returned with its verdict:

–  –  –

THE FOREMAN: Guilty.

THE CLERK: Count number four, assault?

THE FOREMAN: Guilty.

THE CLERK: Count number five, battery?

THE FOREMAN: Guilty.

THE CLERK: Count number six, handgun use felony?

THE CLERK: Count number nine, conspiracy?

THE FOREMAN: Guilty.

THE CLERK: Count number four, assault?

THE FOREMAN: Guilty.

THE CLERK: Count number five, battery?

THE FOREMAN: Guilty.

THE CLERK: Count number six, handgun use felony?

Thereafter, on February 26, 1998, the court imposed the following consecutive sentences: twenty years’ imprisonment for appellant’s armed robbery of Richards; ten years’ imprisonment for his use of a handgun in the commission of a felony, as it related to his crimes against Richards; and twenty years’ imprisonment for his armed robbery of Dorsey;

all sentences were to run consecutively. Appellant’s remaining convictions were merged for

–  –  –

On August 15, 2012, appellant filed a motion to correct an illegal sentence. In his motion, appellant noted that the record reflected that the jury at his trial was never polled and “did not hearken to its verdict.” He asserted that such was a violation of Md. Rule 4-327 and a denial of his right to a unanimous verdict. Accordingly, he insisted that the verdict against him was invalid and, therefore, his sentence was illegal.





On November 8, 2012, the trial court denied appellant’s motion.

–  –  –

Appealing the denial of his motion, appellant asserts that the trial court erred by failing to order a poll of the jury and, further, that the record does not indicate that the jury hearkened to its verdict. More specifically, appellant asserts that the record does not reflect the jury’s response to the clerk’s statement: “And so say you all.” As a result, appellant maintains, there was a violation of Md. Rule 4-327(e) and a “deni[al] [of] his constitutional right to a unanimous [verdict] by the jury[.]” Appellant insists that the noted errors may not be the subject of harmless error analysis and that his sentences were illegal because the verdicts of conviction were invalid. Accordingly, appellant asks this Court to “determine whether the verdict met the requirements of Md. Rule 4-327(a) and (e)” and requests “a hearing so that proof of [his] allegations... may be offered.” 3

–  –  –

unanimous verdict of the jury was announced by the foreman and the jury was subsequently hearkened by the clerk. No dissenting responses were given. Therefore, the State concludes that the trial court correctly denied appellant’s motion to correct an illegal sentence.

Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any time.” Challenges to the legality of a sentence, however, are limited to those situations in which the illegality inheres 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.

Chaney v. State, 397 Md. 460, 466 (2007) (citations omitted).

Sentences corresponding to verdicts of conviction that were not properly finalized have been, under certain circumstances, held to be illegal. See Jones v. State, 384 Md. 669, 3 (...continued) conviction proceedings. In the motion to correct illegal sentence that is the subject of this appeal, however, he merely contended that his trial counsel had been ineffective by not requesting a poll of the jury and by failing to object to “the clerk’s failure to hearken properly”; he did not mention appellate or post-conviction counsel. See Md. Rule 8-131(a) (“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....”). As our analysis in this opinion will make clear, there was no failure to hearken the jury. Moreover, a motion to correct illegal sentence is not the appropriate mechanism through which to claim ineffective assistance of counsel. See State v. Wilkins, 393 Md. 269, 273 (2006) (stating that “a motion to correct an illegal sentence is not an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case”). Our opinion in this case, therefore, will address only appellant’s claims related to the finalization of his verdicts of conviction.

–  –  –

and its importance, as follows:

[T]he return of a verdict by a jury has been comprised of three distinct procedures, each fulfilling a specific purpose. After the jury returned to the jury box to deliver its verdict, the foreman, speaking for the jury, orally answered the inquiry of the clerk and stated the verdict to the trial court.... A poll of the jury is conducted to ensure the unanimity of the verdict prior to its entry on the record. The underlying requirement of a final verdict is that it be unanimous....

*** After polling, the third step occurs when the jury is hearkened to its verdict as the traditional formality announcing the recording of the verdict.... It is in the absence of a demand for a poll that a hearkening is required for the proper recordation of a verdict....

Traditionally, hearkening removed the case from the jury’s consideration; however, because the parties and the trial court retain the right to poll the jury until its discharge after hearkening, where polling the jury follows its hearkening, the poll of the jury performs the same function.

Id. at 682-84 (citations and internal quotation marks omitted); see also Md. Rule 4-327(a) (“The verdict of a jury shall be unanimous and shall be returned in open court.”); Md. Rule 4-327(e) (“On request of a party or on the court’s own initiative, the jury shall be polled after it has returned a verdict and before it is discharged. If the sworn jurors do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberation, or may discharge the jury if satisfied that a unanimous verdict cannot be reached.”).

In Jones, the Court held that, when a verdict of conviction was not announced in open court, along with the other convictions in the case, and the jury was not polled and did not

–  –  –

illegal. 384 Md. at 685-86.

The case at bar, however, is distinguishable from Jones, because the verdicts of appellant’s convictions were announced in open court and properly hearkened. With respect to the failure to poll the jury, appellant did not request a poll and so none was conducted.

The Court of Appeals has stated:

–  –  –

Jones, 384 Md. at 683 (alterations in original) (some citations omitted).

“As a matter of protocol, hearkening has been the standard practice in Maryland for more than 100 years, when a jury renders a verdict in a criminal case.” State v. Santiago, 412 Md. 28, 31 (2009). As to the hearkening of the jury in the instant case, the record shows that

the clerk directed the following query to the jury:

–  –  –

“Essentially, hearkening requires the trial court to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson.” Id. Regarding whether an affirmative response from the jury is required in order

to finalize a verdict, the Court of Appeals stated in Givens v. State:

–  –  –

Id. at 487-88 (internal quotation marks omitted).

We are persuaded that in the instant case the clerk of the court did exactly what was required in order to finalize the verdicts against appellant. Each verdict was announced to the jury as recorded by the clerk, at the conclusion of which the jury was asked if they all

–  –  –

the subsequent actions of the trial court, as well as the silence of defense counsel, that the jury either expressed their unanimous agreement in a non verbal way or failed to indicate any dissent to the announcement of the verdicts. Therefore, we hold that appellant’s sentences were not illegal, as they stemmed from verdicts that were announced in open court and properly hearkened to the jury. Accordingly the circuit court did not err by denying appellant’s motion.

–  –  –

12



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