Warning to Maryland defense attorneys: When it comes to requests to modify sentences, make sure the prosecution agrees not only to a modification hearing but to join you in pressing for the modification itself.
Convicted armed robber Paul Andrew Tatem discovered this the hard way.
On Friday, Maryland’s top court unanimously upheld a judge’s reimposition of Tatem’s 25-year prison sentence, even though prosecutors had recommended that his time behind bars be cut to 12 years after discussions with defense counsel.
In its unanimous decision, the Court of Appeals said Wicomico County Circuit Judge Kathleen L. Beckstead acted within her authority in rejecting the prosecution’s recommendation.
Tatem’s appellate lawyer had argued that Beckstead was obliged to follow the post-conviction agreement that defense counsel and prosecution reached to have the sentence reduced. The judge’s reimposition of the 25-year prison term was thus “illegal,” argued Matthew H. Fogelson, of the Maryland public defender’s office.
But the Court of Appeals said the agreement was for a resentencing hearing to be held and did not guarantee a reduction.
The high court noted that prosecutors stated in circuit court that they had agreed only “to a modification hearing or a resentencing hearing” at which they would “recommend” a sentence of 25 years, with all but 12 years suspended. The prosecutors added that they had no binding plea agreement with the defendant, the high court noted.
“As a result of the agreement reached during the post-conviction proceeding, [Tatem] acquired an enforceable right to a resentencing hearing before the sentencing judge,” Judge Joseph F. Murphy Jr. wrote for the high court. Tatem “did not, however, acquire an enforceable right to the recommended sentence,” he added.
Criminal-procedure professor Byron L. Warnken said Friday’s decision should serve as a “re-reminder” to defense lawyers that they must make sure the prosecution is in full agreement when they seek a sentence reduction. The opposing sides must then put on a united front and assure the judge that a lighter sentence is called for in the case, he added.
Such unity “downsizes the risk,” said Warnken, who teaches at the University of Baltimore School of Law. “If you [defense attorneys] truly want what you just negotiated, then you and opposing counsel go to the judge.”
The 12 years the prosecution recommended at Tatem’s resentencing hearing reflected a plea offer prosecutors had extended to him before his trial for armed robbery, assault and use of a handgun in a felony. His trial attorney had rejected the offer without consulting him, Tatem alleged.
His trial in Wicomico County Circuit Court ended in October 2002 with convictions on all three offenses. Beckstead sentenced Tatem to 10 years in prison for the armed robbery, 10 years for the assault and five years for the handgun offense.
Four years later, Tatem filed a pro se motion for post-conviction relief, which his attorney supplemented in January 2007.
At hearing that May on the petition, the prosecution said it supported a reduction in the sentence to 25 years with all but 12 years suspended.
But Beckstead decided her earlier 25-year sentence was appropriate due to the seriousness of Tatem’s violent crimes. The Court of Special Appeals affirmed in an unreported opinion in January 2010.
Tatem then sought review by the Court of Appeals.
Neither Fogelson nor Brian S. Kleinbord, of the Maryland attorney general’s office, returned telephone messages seeking comment on the decision Friday. Kleinbord heads the office’s criminal appeals division.
WHAT THE COURT HELD
Paul Andrew Tatem v. Maryland, CA No. 33, Sept. Term 2010. Reported. Opinion by Murphy, J. Filed May 20, 2011.
Did the judge issue an illegal sentence by handing down a prison term that exceeded the prosecution’s recommendation at a resentencing hearing?
No; the prosecution had agreed only to a modification hearing and to recommend a reduction; the judge was under no obligation to agree to that recommendation.
Matthew H. Fogelson for petitioner; Mary Ann Ince for respondent.
RecordFax # 11-0520-20.