* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Opinion by LEAHY, J.
On September 2, 2015, Pasheka Sesay ("Appellant") was tried by a jury in the Circuit Court for Prince George's County and convicted of theft scheme over $100,000, conspiracy to commit theft scheme over $100,000, theft scheme over $500, conspiracy to commit theft scheme over $500, and three counts of filing a false tax return. Afterward he was sentenced to a total of 20 years of incarceration, with all but 8 years of suspended, to be followed by 5 years of supervised probation. Appellant was also ordered to pay restitution in the amount of $100,000.00.
In his timely appeal, Appellant maintains that his jury trial, convictions and sentences are void for lack of jurisdiction because on May 1, 2015, the circuit court erred in granting his belated request to withdraw his guilty plea, thereby allowing the case to proceed to trial. He also contends that the sentence imposed following his guilty plea was illegal, so that, should we determine his convictions are void and restore his case to the posture that it was in on May 1, 2015, we should also vacate his illegal sentence.
We hold that the circuit court had jurisdiction to correct Appellant's illegal sentence on May 1, 2015, and did so by accepting Appellant's request to withdraw his guilty plea. Maryland law does not provide Appellant the right to have his illegal sentence corrected more than once. We affirm.
Appellant was indicted in the Circuit Court for Prince George's County, Maryland, and charged with multiple counts of theft scheme over $100,000, and related offenses, including conspiracy to commit theft scheme. On November 1, 2013, Appellant agreed to plead guilty to one count of conspiracy to commit theft scheme over $100,000 and to be sentenced to "a cap of six months." The parties agreed that the maximum sentence was 25 years, the sentencing guidelines for Appellant called for a sentence between two to five years, and that there was a matter of restitution exceeding $100,000. Pertinent to our discussion, the court engaged in the following colloquy with Appellant:
After ascertaining that the Appellant understood his rights, the State provided the following statement of facts in support of the guilty plea:
The court found the facts sufficient to sustain the plea. After numerous postponements, Appellant eventually was sentenced on April 17, 2015. At that time, he was sentenced to 25 years of incarceration, with all but six months suspended, to be followed by five years of supervised probation. He was also ordered to pay $760,000.00 restitution to Sonco Worldwide, Incorporated. As part of the sentence, the court authorized home detention and stayed execution of home detention so that Appellant did not have to report until May 5, 2015.
Eleven days after sentencing, on April 28, 2015, Appellant filed a "Motion for Reconsideration of Sentence and/or Stay Pending Appeal" (Rule 4-345(e)). In that written motion, he averred that he had not contacted, nor been qualified to serve, home detention, and that his interview for that form of detention was scheduled for May 26, 2015, or twenty-one days after he was ordered to report for imposition of sentence. Appellant also indicated that he intended to file an application for leave to appeal his conviction in order to challenge the effectiveness of defense counsel, alleged coercion by counsel, and "other things." Because Appellant would serve the entirety of his sentence pending said application, he requested to remain free on bond.
On May 1, 2015—a total of fourteen days after sentencing—Appellant and the State appeared at a hearing before the sentencing court on the aforementioned written motion for reconsideration of sentence. There, and for the first time, his counsel informed the court that Appellant actually wanted "to request to withdraw his plea in the case." Over the State's objection, the court stated: "I am going to grant him a new trial because his wish is my command here." The court then directed the clerk to "[s]et it down for a trial, please." Appellant exclaimed, "God bless you, Your Honor." The docket entries indicate that Appellant's motion to withdraw plea was granted.
Appellant elected a jury trial. The underlying facts are consistent with the statement of facts elicited at Appellant's initial plea hearing. In brief,
More specifically, from August 1, 2008 until May 25, 2012, Stephen Donoian was employed as the Chief Financial Officer ("CFO") for Sonco Worldwide, Incorporated, a Prince George's County business. Donoian testified that he previously pleaded guilty to a theft scheme involving Sonco gas cards, as well as a theft scheme involving taking pay checks from the company in excess of $200,000.00. Donoian had already served time and paid restitution in connection with those convictions at the time of appellant's trial.
As part of his job as CFO, Donoian provided gas cards to drivers for the company. Sometime in 2008, Donoian gave Appellant—whom he also employed as a caregiver for his elderly father—one of these company gas cards. Donoian also gave Appellant a second gas card about a year later. Although Appellant was temporarily employed by Sonco, he was not authorized to have a company gas card. Donoian was able to conceal Appellant's transactions because Donoian was the only person in the company assigned to account for them. The jury received documentation detailing Appellant's use of the gas cards over the relevant time periods, demonstrating that was able to use the gas cards to charge thousands in illicit purchases until February 2012.
After the jury considered the aforementioned evidence, they found Appellant guilty of: theft and conspiracy to commit theft of property valued over $100,000.00 from October 1, 2009 to May 25, 2012; theft and conspiracy to commit theft of property valued over $500.00 between August 1, 2008 and September 30, 2009; and, three counts of filing a false tax return for the years 2009, 2010, and 2011.
Appellant contends that his conviction and sentence following the September 2, 2015 jury trial must be vacated because the circuit court did not have jurisdiction to honor his request to withdraw his guilty plea on May 1, 2015. Specifically, Appellant asserts that Maryland Rule 4-242(h) and this Court's prior opinion in Bereska v. State, 194 Md.App. 664 (2010), impose a limit on the circuit court's subject matter jurisdiction, requiring a motion to withdraw a guilty plea to be filed no later than ten days after sentencing. Thus, according to Appellant, his subsequent trial, convictions, and sentences are void for lack of jurisdiction. Moreover, Appellant continues that reinstatement of the sentence imposed following his guilty plea is not appropriate, under the circumstances of this case, because "by sentencing Mr. Sesay to 25 years of incarceration, with all but 6 months suspended, and 5 years of supervised probation, the lower court imposed an illegal sentence."
The State responds initially by citing to the general principle that "one cannot appeal from a favorable ruling" and by suggesting that Appellant invited error. See Rush v. State, 403 Md. 68, 95 (2008); see also Burch v. State, 346 Md. 253, 289 (1997) (providing, generally, that defendants may not "sandbag" trial courts and may not ordinarily "freely be allowed to assert one position at trial and another, inconsistent position on appeal"). Regardless, the State maintains that the court could have granted the motion to withdraw the guilty plea pursuant to Maryland Rule 4-331(b)(1)(B), Rule 4-345(a), or both.
In reply, Appellant asserts that there has been no "favorable ruling" in this case because, following the jury trial, he was convicted of multiple offenses and sentenced to a significant term of incarceration. Appellant continues that invited error has no application in jurisdictional claims and that Rule 4-331(b) does not apply. With respect to Maryland Rule 4-345(a), although Appellant acknowledges that the rule permits the correction of a sentence on an invalid guilty plea and that the remedy is either withdrawal of the plea or some form of specific performance, Appellant contends he never had the opportunity to choose his remedy.
We begin our analysis with the matter upon which both Appellant and the State agree; namely, that Appellant's sentence on the original guilty plea was illegal. Maryland Rule 4-345(a) provides that a "court may correct an illegal sentence at any time." "We review the legal issue of the sentencing in this case as a matter of law." Bonilla v. State, 443 Md. 1, 6 (2015) (citations omitted). A sentence is "illegal," for purposes of Rule 4-345(a), where it has been imposed despite there having been "no conviction warranting any sentence for the particular offense" or where "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). The latter category includes any sentence "that is not permitted by statute," Holmes v. State, 362 Md. 190, 195-96 (2000), as well as any "sentence that exceeds the sentence agreed upon as part of a binding plea agreement." Matthews v. State, 424 Md. 503, 514 (2012).
If a trial court approves a plea agreement, it "shall embody in the judgment the agreed sentence . . . encompassed in the agreement." Md. Rule 4-243(c)(3). "Whether a trial court has violated the terms of a plea agreement is a question of law, which we review de novo." Cuffley v. State, 416 Md. 568, 581 (2010). In reviewing such a claim, that a sentence was imposed beyond that which had been agreed upon as part of a binding plea agreement, we must examine "solely" the record of the plea hearing to ascertain precisely what was presented to the court, in the defendant's presence and before the court accepts the agreement, to determine what the defendant reasonably understood to be the sentence the parties negotiated and the court agreed to impose. Id. at 582. The test for determining what the defendant reasonably understood to be the terms of the plea agreement is
Id. The Matthews Court explained:
Matthews, 424 Md. at 511; see also Carlini v. State, 215 Md.App. 415, 432-33 (2013) (discussing Cuffley, Baines, and Matthews and stating "that a sentence in excess of the sentencing cap established by the plea agreement was illegal per se").
We have considered the record from the plea hearing and agree that Appellant was not informed on the record that he could receive either a split sentence, a total sentence of suspended and unsuspended time exceeding six months, or a period of probation. Indeed, we are persuaded that a reasonable lay person in Appellant's position would understand that the court would impose a total sentence of no more than six months' imprisonment, as well as restitution, in an amount to be determined later in excess of $100,000.00. By imposing a sentence that exceeded six months, the court—in Appellant's view—breached the agreement, and, hence, the sentence was illegal.
The question then becomes what is the appropriate remedy. In Solorzano v. State, 397 Md. 661 (2007), the Court of Appeals stated that "where the plea agreement is breached, and it was not caused by the defendant, the general remedy for the breach is to permit the defendant to choose either specific performance or withdrawal of the plea." Id. at 668 (emphasis added, citations omitted); see also Tweedy v. State, 380 Md. 475, 489 (2004) (observing that, in light of a breached plea agreement, the defendant is "entitled to the benefit of his bargain"). Based on the fact that withdrawal of a guilty plea is a recognized remedy to correct an illegal sentence, the State avers that the circuit court was authorized to grant Appellant that relief on May 1, 2015.
Appellant does not dispute that withdrawal of the plea is an available remedy for an illegal sentence. Instead, Appellant responds that the issue of an illegal sentence was not before the circuit court on May 1, 2015 when he requested to withdraw his plea. According to Appellant, he "was never given the opportunity to choose between withdrawing his plea due to the illegality or asking the court to enforce the plea agreement as he reasonably understood it." Appellant continues that he is now, for the first time, making a choice and that choice is specific performance of the original terms of his plea agreement.
Appellant's argument entirely disregards the fact that he already made his choice —to withdraw his guilty plea in the circuit court. Moreover, even though the specific ground—an illegal sentence on the guilty plea—was not raised in the circuit court, our review is de novo. And, the Court of Appeals has made plain that "the issue of whether the trial court imposed an illegal sentence can be raised for the first time in an appellate court." Stubbs v. State, 406 Md. 34, 48 n.1 (2008) (citing Walczak v. State, 302 Md. 422, 437 (1985)); see also Dixon v. State, 364 Md. 209, 235 n.25 (2001) ("We have determined that the legality of a sentence can be decided at `anytime'"). As the Court of Appeals has further explained: "[A]ny illegality must inhere in the sentence, not in the judge's actions. In defining an illegal sentence the focus is not on whether the judge's "actions" are per se illegal but whether the sentence itself is illegal." State v. Wilkins, 393 Md. 269, 284 (2006). Furthermore:
Robeson v. State, 285 Md. 498, 501-02 (Md. 1979); see also Joseph H. Munson Co. v. Sec'y of State, 294 Md. 160, 168 (1982) (recognizing "the principle that a judgment will ordinarily be affirmed on any ground adequately shown by the record, whether or not relied on by the trial court or raised by a party") aff'd sub nom. Sec'y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839 (1984). And:
Unger v. State, 427 Md. 383, 406 (2012).
Here, Appellant moved to withdraw, what amounted to, an illegal sentence on his guilty plea. Maryland cases hold that withdrawal, under such a circumstance, is an authorized remedy. See Cuffley, 416 Md. at 583 (citing Solorzano, 397 Md. at 667-68). But before we conclude that the court did not err by permitting Appellant to withdraw his guilty plea, we must address Appellant's contention that the circuit court did not have jurisdiction to permit withdrawal at the hearing on May 1, 2015.
We acknowledge that "[l]ack of subject-matter jurisdiction may be raised at any time." Lewis v. State, 229 Md.App. 86, 101 (2016), cert. granted, 450 Md. 420 (2016) (citations omitted). We also concur with Appellant's position that his convictions and sentence following the September 2, 2015 jury trial were not a "favorable ruling" and that invited error does not apply to a claim of lack of subject matter jurisdiction, such as alleged here. See In re Professional Engineering Consultants, P.A., 134 P.3d 661, 665 (Kan. 2006) ("[T]he invited error rule does not apply where the error is jurisdictional"); see also People v. Evans, 38 N.E.3d 541, 543-44 (Ill. App. Ct. 2015) ("[I]t is axiomatic that the lack of subject matter jurisdiction is not subject to waiver and may not be cured through consent of the parties"); State v. Minker, 957 N.E.2d 829, 834 (Ohio Ct. App. 2011) ("Parties to an action cannot, through invited error, confer jurisdiction where none exists"); In re Marriage of Chester, 18 P.3d 1111, 1115 (Or. Ct. App. 2001) ("Likewise, subject matter jurisdiction is not susceptible to the principle of invited error"); Alford v. Commonwealth, 696 S.E.2d 266, 268 n.3 (Va. Ct. App. 2010) (recognizing that there is an exception to the invited error doctrine in cases concerning a court's subject matter jurisdiction); Angelo Property Co., LP v. Hafiz, 274 P.3d 1075, 1092 (Wash. Ct. App. 2012) ("The invited error doctrine, however, does not apply to subject matter jurisdiction issues"); Appeal of Williams, 626 P.2d 564, 571 (Wyo. 1981) (observing that subject matter jurisdiction can not be waived and is not subject to the doctrine of invited error).
Appellant bases his jurisdictional argument on Maryland Rule 4-242(h), which provides:
The meaning of the immediate predecessor to this provision—Maryland Rule 4-242(g)—was discussed in Bereska, supra, 194 Md.App. 664.
This Court began its analysis by recognizing that "[u]nder the common law, Maryland courts possessed certain inherent powers over cases, including the authority to modify or vacate judgments, during the `term of court' in which the case was heard." Id. at 680-81. However, "[s]ince 1951, the power has been set forth in the Maryland Rules of Practice and Procedure." Id. at 681. We then explained:
Id. at 684. However, we also recognized that there is a difference "between when a court acts in excess of its jurisdiction, and when a court acts without jurisdiction." Id. at 684-85 (emphasis added). This Court quoted from Judge Eldridge's dissent in Cardinell, as follows:
Bereska, 194 Md. App. at 685 (Eldridge, J., dissenting) (quoting Cardinell, 335 Md. at 424-25 n.8).
We continued by explaining the difference between an action that is "void" and one that is "voidable" as follows:
Id. at 686 (quoting First Federated Commodity Trust Corp. v. Maryland Comm'r of Securities, 272 Md. 329, 334 (1974) (emphasis omitted).
Id. at 686. (Emphasis added).
The Court of Appeals expounded on this distinction between when acts that appear jurisdictional and void are, instead, voidable, in Downes v. Downes, 388 Md. 561, 572 (2005). In that case, the court was presented with an issue concerning the time limits that govern when a person may elect to take a certain percentage of an estate in lieu of amounts expressly set forth in a will. Id. at 565. Judge Wilner explained the distinction as follows:
Id. at 574-75.
Id. at 575 (emphasis in original); see also Brethren Mut. Ins. Co. v. Suchoza, 212 Md.App. 43, 67 (2013) (recognizing that, although acts by a court lacking fundamental jurisdiction are a nullity, "[b]y contrast, if a trial court's ruling on a post-judgment motion affects the subject matter of a pending appeal, it `may be subject to reversal on appeal, but it is not void ab initio for lack of jurisdiction to enter it'") (citations omitted).
Applying these concepts to the facts in Bereska, we explained that:
Bereska, 194 Md. App. at 687.
Id. at 689.
Thus, the circuit court in Bereska lacked jurisdiction to consider the request to withdraw the 1996 guilty plea and its act in so doing was void:
Id. at 690-91 (emphasis added, footnote omitted).
Here, Appellant's request to withdraw the plea was raised at the May 1, 2015 hearing, or 14 days after sentencing and was untimely under Rule 4-242(h). However, we have concluded, and the parties agree, that the court in this case imposed an illegal sentence on Appellant's guilty plea. An illegal sentence constitutes an issue that can be raised at any time. Rule 4-345(a); Johnson v. State, 427 Md. 356, 371 (2012). When the circuit court sentenced Appellant on his guilty plea, it did so in a manner that violated the terms of that plea. We are persuaded that the court had jurisdiction to correct the illegal sentence and permit withdrawal of the plea as a remedy. See Solorzano, supra, 397 Md. at 668. Therefore, in this case where Appellant was subsequently tried by a jury at his own election, we shall uphold the trial court's May 1, 2015 order granting Appellant's motion to withdraw his guilty plea. Appellant cannot now demand that the circuit court correct the same illegal sentence a second time. Accordingly, Appellant's convictions and sentences following the September 2, 2015 jury trial remain inviolate and are affirmed.