Please ensure Javascript is enabled for purposes of website accessibility

Convicts have right to counsel at resentencing, CSA holds

Matthew J. Fader speaks Monday at his investiture. (The Daily Record / Maximilian Franz)

‘Given the stakes at a resentencing, the amount of discretion available to the resentencing court, and the possibility for error or mistake, the potential utility of counsel is unquestionable,’ Court of Special Appeals Judge Matthew J. Fader wrote in allowing a Baltimore man to challenge again his life sentence for first-degree murder, this time with a lawyer. (The Daily Record / Maximilian Franz)

Convicts have a right to counsel when being resentenced after a determination that their original sentence was illegal, Maryland’s second highest court ruled Monday.

A resentencing, like an original sentencing, is a “critical” stage of a criminal proceeding that affects the duration of incarceration and thus implicates the convict’s rights to due process and counsel, the Court of Special Appeals said in its 3-0 reported decision.

“A resentencing, like a sentencing, involves the imposition of a sentence, and can alter both the fact and duration of a defendant’s incarceration,” Judge Matthew J. Fader wrote for the court. “Counsel at resentencing, as at sentencing, can provide assistance to the defendant and ensure that the defendant receives due process. And trial courts generally have wide discretion in imposing a new sentence, as they have when imposing an initial sentence.”

The Court of Special Appeals’ decision enables convicted first-degree murderer Robert P. Smallwood to challenge again his sentence of life in prison, less 72 days, that was handed down in 1982.

Having been denied his request for counsel at resentencing, Smallwood was resentenced in 2013 by the Baltimore City Circuit Court to life in prison with all but 80 years suspended. The court said the resentencing was a “collateral” — not critical — proceeding and the right to counsel did not apply.

The Court of Special Appeals disagreed.

“Given the stakes at a resentencing, the amount of discretion available to the resentencing court, and the possibility for error or mistake, the potential utility of counsel is unquestionable,” Fader wrote. “In this case, although the presence of counsel for Mr. Smallwood may not have changed the result at all, it also may have.”

Fader cited the Maryland Court of Appeals’ landmark 2013 decision in DeWolfe v. Richmond, also known as DeWolfe II, that defendants have a state constitutional right to counsel at initial bail hearings because they face the possibility of incarceration at that pretrial proceeding.

“(A) resentencing after the grant of a motion to correct an illegal sentence has the potential to affect the term of incarceration, which the majority in DeWolfe II viewed as sufficient by itself to invoke a due process right to counsel,” Fader wrote.

Smallwood filed his motion, also without the assistance of counsel, after having served more than 30 years in prison. He stated that his sentence of life less the 72 days was “indefinite, ambiguous and therefore illegal” as it would require the state to release him at the incalculable 72 days before his death.

At his resentencing hearing, Smallwood stated he had “tried for years to get an attorney” to challenge the sentence with no success.

“So, I decided to come down here anyway because I’m getting – you know, I got 31 years in, so I can’t wait any longer,” Smallwood added, according to the Court of Special Appeals’ opinion.

When the post-conviction court said the right to counsel did not apply to his resentencing, Smallwood – with counsel provided by the Maryland public defender’s office — sought review by the Court of Special Appeals.

Smallwood’s appellate attorney, Thomas M. Donnelly, hailed the court’s decision Tuesday.

“It’s a case that surprisingly hasn’t come up before,” said Donnelly, of The Law Offices of Thomas M. Donnelly LLC in Baltimore. “The state, us and the court had to draw logical parallels to the situation. It leads to the inescapable conclusion that a resentencing is a critical stage in the proceeding at which the right to counsel attaches.”

Raquel Coombs, a spokeswoman for the Maryland attorney general’s office, declined to comment on the court’s decision or whether the state plans to seek review by the Court of Appeals.

The Court of Special Appeals rendered its decision in Robert P. Smallwood v. State of Maryland, No. 2169 September Term 2016.

To purchase a reprint of this article, contact