State v. Schlick

State of Maryland v. John Schlick, No. 63, September Term, 2018. Opinion by Greene, J.

CRIMINAL PROCEDURE – MARYLAND RULE 4-345 – REVISORY POWER

The Court of Appeals held that the circuit court erred in dismissing Respondent John Schlick’s
motion to modify his sentence on the ground that it lacked revisory power over his sentence.
The Court determined that Mr. Schlick’s sentence was originally imposed on September 15,
2008, so under Maryland Rule 4-345(e), the court retained revisory power over his sentence for
five years therefrom. His counsel, however, was ineffective because she failed to file a motion
for modification, despite Mr. Schlick’s requests to do so. As a result, Mr. Schlick was granted
postconviction relief to file a belated motion for modification. Implicit in the postconviction
relief granted to Mr. Schlick is the circuit court’s authority to exercise its revisory power over
Mr. Schlick’s sentence for five years following the postconviction court’s final order, consistent
with Rule 4-345(e). Given that postconviction relief was granted on March 20, 2013, the court
retained revisory power over Mr. Schlick’s sentence until March 20, 2018. As such, the circuit
court erred in dismissing Mr. Schlick’s motion prematurely.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 204299006
Argued: April 5, 2019 OF MARYLAND

No. 63

September Term, 2018

______________________________________

STATE OF MARYLAND

v.
JOHN SCHLICK

Barbera, C.J.
*Greene,
McDonald,
Watts,
Hotten,
Getty,
Battaglia, Lynne A.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________

Opinion by Greene, J.
______________________________________

Filed: August 23, 2019

*Greene, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Maryland Constitution, Article
IV, Section 3A, he also participated in the
Pursuant to Maryland Uniform Electronic Legal
Materials Act
decision and adoption of this opinion.
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-08-23
15:05-04:00

Suzanne C. Johnson, Clerk
 After the imposition of sentence, a criminal defendant has the right to seek

modification of that sentence under Maryland Rule 4-345(e). In order to obtain review of

his or her sentence, a defendant may file a motion seeking modification “within 90 days

after imposition of a sentence.” Md. Rule 4-345(e)(1). After a timely motion is filed,

generally the trial court has revisory power over a defendant’s sentence for five years “from

the date the sentence originally was imposed[.]” Md. Rule 4-345(e)(1)(B).

Postconviction proceedings introduce an added complexity to the tenets of

Maryland Rule 4-345(e). This Court has previously decided that when a defendant receives

ineffective assistance of counsel and, consequently, loses his or her right to file a motion

for modification of sentence, the defendant may be afforded the right to file a belated

motion. State v. Flansburg, 345 Md. 694, 705, 694 A.2d 462, 468 (1997). This Court has

not had occasion to decide how or whether such postconviction relief impacts a circuit

court’s revisory power over a defendant’s sentence. The matter now before this Court

concerns precisely that question. As such, we undertake to review the extent of a circuit

court’s revisory power over a sentence, where a defendant has been granted postconviction

relief to file a belated motion for modification of sentence.

FACTUAL & PROCEDURAL BACKGROUND

In 2005, Respondent John Schlick (“Mr. Schlick”) pleaded guilty in the Circuit

Court for Baltimore City to a narcotics offense.1 On September 20, 2005, he was sentenced

1
The sole matter before this Court concerns Mr. Schlick’s sentence and specifically the
trial court’s revisory power over that sentence. Accordingly, the details underlying Mr.
Schlick’s conviction are not pertinent to our review. Therefore, we set forth only the
chronology of events related to Mr. Schlick’s sentencing.
to 16 years in prison, 14 years and six months of which were suspended, and he was to be

placed on five years of probation upon his release. Mr. Schlick did not request that his

sentence be modified or otherwise reviewed.

After his release on probation, Mr. Schlick was convicted of another crime. As a

result, he was charged with violating the terms of his probation. On September 15, 2008,

Mr. Schlick appeared before the Circuit Court for Baltimore City for a violation of

probation hearing. At the violation of probation hearing, the court revoked Mr. Schlick’s

probation and sentenced him to 14 years and six months incarceration, thereby reimposing

the suspended portion of Mr. Schlick’s 2005 sentence for the narcotics offense. No motion

was filed on Mr. Schlick’s behalf to modify or otherwise review his sentence.

On August 31, 2012, with the assistance of counsel, Mr. Schlick filed a petition for

postconviction relief, and on November 30, 2012 he supplemented the petition. Mr.

Schlick argued that he received ineffective assistance of counsel because he had directed

his lawyer from the 2008 violation of probation hearing to file a motion for reduction of

sentence, but his lawyer failed to do so. Mr. Schlick’s counsel from the 2008 hearing swore

under oath in an affidavit that she failed to file the motion for modification as requested by

Mr. Schlick. The postconviction court held a hearing on Mr. Schlick’s petition on February

20, 2013. On March 20, 2013, the court ruled on the petition in Mr. Schlick’s favor. The

court concluded that Mr. Schlick received ineffective assistance of counsel and permitted

Mr. Schlick to “file a belated [m]otion for [m]odification of [s]entence within ninety (90)

days of the date of [its] order.”

2
 Mr. Schlick, with the assistance of counsel, filed a motion for modification in the

Circuit Court for Baltimore City on May 24, 2013, which was within 90 days of the

postconviction court’s order. Six days later, on May 30, 2013, Mr. Schlick, acting without

the assistance of counsel, filed a motion asking the court to hold his motion “in abeyance

until a later date.” In July 2013, Mr. Schlick sent a letter to the circuit court pro se,

articulating some of the reasons he believed the court should reduce his sentence. On

January 6, 2014, the court scheduled Mr. Schlick’s motion for a hearing to be held on

February 12, 2014. On January 30, 2014, Mr. Schlick filed a motion to postpone the

hearing. The court granted Mr. Schlick’s motion on January 31, 2014 and ordered that

“[Mr. Schlick]’s [m]otion for [m]odification of [s]entence . . . continue to be held sub curia

by the [c]ourt, until such time as [Mr. Schlick] requests a hearing.”

On July 24, 2014, Mr. Schlick’s counsel requested a hearing on his motion for

modification. On January 15, 2015, the trial court granted Mr. Schlick’s request and again

set the matter for a hearing, which was to be held on March 6, 2015. The March 6, 2015

hearing was not held.2 On October 15, 2015, Mr. Schlick’s counsel again requested a

hearing. On July 16, 2016, the court ordered that the matter be set for a hearing on October

17, 2016. On October 11, 2016, Mr. Schlick’s counsel filed a motion requesting a

continuance, with the State’s consent, because Mr. Schlick was incarcerated outside of

Maryland, and the Department of Corrections could not transport him in time for the

2
It is not clear from the record why the March 6, 2015 hearing did not take place as
scheduled.
3
hearing. The circuit court granted the postponement and reset the hearing for January 10,

2017.

In December 2016, the circuit court issued an order to show cause. Therein, the

court explained that Mr. Schlick had been originally sentenced for purposes of Rule 4-

345(e) when his probation was revoked on September 15, 2008. Thus, on September 15,

2013, five years had passed from the date of his sentence. The court directed the parties to

address whether Mr. Schlick’s motion should be dismissed on the grounds that, under

Maryland Rule 4-345(e), the “five[-]year expiration date for w[hen] the [c]ourt can revise

[Mr. Schlick]’s sentence” had expired. At the hearing on January 10, 2017, the court heard

arguments from the State’s attorney and Mr. Schlick’s counsel with regard to its revisory

authority over Mr. Schlick’s sentence and on the merits of his motion for modification.

On August 8, 2017, the circuit court dismissed Mr. Schlick’s motion without ruling

on the merits. The court reasoned that Mr. Schlick’s sentence was originally imposed on

September 15, 2008, and its revisory power lapsed on September 15, 2013. Accordingly,

the court concluded that it “no longer ha[d] revisory power over [Mr. Schlick]’s sentence.”

In addition, the court pointed out that Mr. Schlick was granted postconviction relief and

filed his belated motion in compliance with the postconviction court’s order, but he did not

obtain a hearing or ruling on the motion before September 15, 2013. Therefore, the court

concluded that Mr. Schlick’s “inability to receive a sentence modification” was attributable

to his own actions, not any “fault or error of the [c]ourt, nor ineffective assistance of

counsel[.]”

4
 Mr. Schlick noted a timely appeal to the Court of Special Appeals. Schlick v. State,

238 Md. App. 681, 194 A.3d 49 (2018). Our intermediate appellate court concluded that,

despite the five-year limitation set forth in Rule 4-345(e), “the trial court retained

fundamental jurisdiction to rule on the belated [m]otion for [m]odification of [s]entence.”

Id. at 690, 194 A.3d at 54. The court explained that “[t]here are any number of reasons it

may be impossible or impractical for a judge to act promptly upon a motion for reduction

of sentence filed with the court before the expiration of the five-year period[.]” Id. at 692,

194 A.3d at 55. For instance, a defendant may be granted permission to file a belated

motion “toward the end of the original period of review.” Id.

The court emphasized that, in Mr. Schlick’s case, the trial court did not set Mr.

Schlick’s motion for a hearing “until after the expiration of five years from the imposition

of the original sentence.” Id. at 693, 194 A.3d at 55-56. The Court of Special Appeals

explained that “[i]n a perfect world, a court should set the hearing within the five-year

period,” but it also recognized that “courts are busy.” Id. at 693, 194 A.3d at 56. If a circuit

court fails to set a hearing to consider the merits of a motion for modification within the

five-year window, according to our intermediate appellate court, “the consequence should

not be held against the defendant.” Id. The Court of Special Appeals pointed out that after

a defendant files a motion there is also an onus on the defendant and counsel “to make the

best efforts” to have a hearing in a timely manner. Id. In summation, the court explained

that “the court has [fundamental] jurisdiction over the motion, but it is within the discretion

of the trial court to consider the totality of the circumstances and determine whether to hear

the motion on its merits.” Id. Therefore, the Court of Special Appeals vacated the

5
judgment of the circuit court and remanded the case to the circuit “court to consider

whether to entertain the [motion] and to consider the merits of the motion.” Id. at 693, 194

A.3d at 56.

On January 7, 2019, this Court granted the State’s Petition for a Writ of Certiorari.

We granted certiorari to answer the following question:

Does a court lose revisory power over a criminal sentence “after the
expiration of five years from the date the sentence originally was imposed,”
as Maryland Rule 4-345(e) states, or does the court instead indefinitely retain
“fundamental jurisdiction” to revise a sentence, which it is an abuse of
discretion not to consider exercising, as the Court of Special Appeals held
below?

State v. Schlick, 462 Md. 261, 199 A.3d 693 (2019).

STANDARD OF REVIEW

In the present case, we are tasked with interpreting Maryland Rule 4-345(e). It is

well settled that an interpretation of Maryland Rule 4-345 is a question of law that is subject

to de novo review. See State v. Crawley, 455 Md. 52, 66, 166 A.3d 132, 140 (2017).

MARYLAND RULE 4-345(e)

Maryland Rule 4-345(e) governs a trial court’s revisory power over sentences that

it has imposed. Specifically, it sets forth the authority of and procedural requirements for

a sentence to be revised by the trial court upon a defendant’s motion. Relevant to the matter

sub judice, Maryland Rule 4-345(e)(1) provides:

Upon a motion filed within 90 days after imposition of a sentence . . . in a
circuit court, whether or not an appeal has been filed, the court has revisory
power over the sentence except that it may not revise the sentence after the
expiration of five years from the date the sentence originally was imposed on
the defendant and it may not increase the sentence.

6
The language of Maryland Rule 4-345(e) sets forth two critical time frames: (1) the

defendant has 90 days after imposition of a sentence to file a motion for modification; and

(2) the trial court has revisory power over the defendant’s sentence for five years from the

date the sentence originally was imposed. Md. Rule 4-345(e)(1).

Of particular importance to the case before us is the five-year limitation on a trial

court’s revisory power, which is a relatively new addition to Rule 4-345(e). Prior to 1951,

a court could revise a sentence only until the end of the term of court. Bereska v. State,

194 Md. App. 664, 680-81, 5 A.3d 750, 760 (2010). In 1951, this Court adopted Part 4,

Rule 10(c) of the General Rules of Practice and Procedure, which allowed modification of

sentences, either sua sponte or pursuant to a defendant’s motion, within 90 days of the

imposition of sentence. State v. Robinson, 106 Md. App. 720, 722-23, 666 A.2d 909, 910-

11 (1995). In 1961, Part 4, Rule 10(c) was amended and renumbered as Maryland Rule

764(b). Id. The Rule continued to allow a trial court to reduce a sentence during the 90-

day period after the imposition of sentence, even absent a motion. Id. at 723, 666 A.2d at

911. In addition, Maryland Rule 764(b) allowed a party to file a motion to revise a sentence

within 90 days of the imposition of sentence, after which the court could modify the

sentence “any time ‘thereafter.’” Id.

In 1984, the modern Maryland Rules were adopted, and Maryland Rule 764(b)

became Maryland Rule 4-345(b). Steven Grossman & Stephen Shapiro, Judicial

Modification of Sentences in Maryland, 33 U. BALT. L. REV. 1, 6 n. 33 (2004). Rule 4-

345(b) placed no time limit on the trial court’s authority to revise a sentence upon a motion

timely filed within 90 days of the imposition of sentence. See Greco v. State, 347 Md. 423,

7
435, 701 A.2d 419, 424-25 (1997) (“[T]he history of . . . Maryland [R]ule [4-345] supports

the proposition that once a defendant files a motion for modification of a sentence within

the mandatory 90 day period, the trial court does not lose the power to act on that motion

when the court holds the motion sub curia for months, or even years.”). It was not until

2004 that the provision was renumbered as Rule 4-345(e), and the five-year limit on a

court’s revisory power was adopted by this Court. See Tshiwala v. State, 424 Md. 612,

616 n. 2, 37 A.3d 308, 310 n. 2 (2012).

Maryland Rule 4-345(e) and Postconviction Relief

Under the Uniform Postconviction Procedure Act, a defendant may file one petition

for postconviction relief “[f]or each trial or sentence[.]” Md. Code, Crim. Proc., § 7-103(a).

The petition “may not be filed more than 10 years after the sentence was imposed.” Md.

Code, Crim. Proc., § 7-103(b). When a defendant receives ineffective assistance of

counsel, he or she may be entitled to relief under the Act. See generally Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). As a post-trial remedy,

a defendant is entitled to the relief that is needed to put the defendant in the position that

he or she would have enjoyed but for counsel’s ineffectiveness. See Williams v. State, 326

Md. 367, 382-83, 605 A.2d 103, 110 (1992) (holding that the appropriate relief was that

which would “place [the defendant] in the same position he [or she] would have been in

but for the incompetence of his [or her] counsel.”).

In State v. Flansburg, we held that defense counsel’s failure to file a timely motion

for modification, in contravention of a client’s directive to do so, constituted “a ground for

the postconviction remedy of permission to file a belated motion for reconsideration of

8
sentence.” 345 Md. 694, 705, 694 A.2d 462, 468. The facts in Flansburg were not

complex. On December 5, 1985, John Flansburg (“Mr. Flansburg”) pleaded guilty to a

second-degree sex offense and was sentenced to seven years’ imprisonment with four years

suspended and five years’ probation upon release. Id. at 696, 694 A.2d at 463. While on

probation in 1990, Mr. Flansburg was convicted of battery and second-degree murder. Id.

A hearing was held on May 21, 1991 to review whether his probation should be revoked.

Id. The court revoked Mr. Flansburg’s probation and reimposed the three years of his

sentence that had previously been suspended. Id. Subsequently, Mr. Flansburg made two

timely written requests for his attorney to file a motion for modification. 3 Id.

Notwithstanding his requests, Mr. Flansburg’s counsel failed to file the motion. Id.

On February 5, 1994, Mr. Flansburg filed a petition for postconviction relief. Id. at

697, 694 A.2d at 463. He argued that his counsel’s failure to file a motion for modification

deprived him of his right to effective assistance of counsel. Id. The circuit court dismissed

Mr. Flansburg’s petition, concluding that the Maryland Post Conviction Procedure Act did

not apply to his revocation of probation hearing. Id. at 697, 694 A.2d at 463-64. The Court

of Special Appeals reversed the circuit court’s ruling and concluded that Mr. Flansburg

had the right to effective assistance of counsel at his revocation of probation hearing. Id.

3
Mr. Flansburg requested that the motion be filed pursuant to Maryland Rule 4-345(b),
which provided, in relevant part, that “[t]he court has revisory power and control over a
sentence upon a motion filed within 90 days after its imposition[.]” State v. Flansburg,
345 Md. 694, 697 n. 1, 694 A.2d 462, 463 n. 1 (1997). At the time Flansburg was decided,
the five-year limit on a court’s revisory power was not codified. See id. The court retained
revisory power over a sentence indefinitely, so long as a timely motion for modification
was filed. See Greco v. State, 347 Md. 423, 435, 701 A.2d 419, 424-25 (1997).
9
at 697, 694 A.2d at 464. We granted certiorari and, ultimately, affirmed the judgment of

the Court of Special Appeals. Id. We held that “[t]he failure to follow a client’s directions

to file a motion [for modification of sentence] . . . is a ground for the postconviction remedy

of permission to file a belated motion[.]” Id. at 705, 694 A.2d at 468.

Flansburg made clear that when a defendant directs his or her lawyer to file a motion

to modify the sentence, the lawyer’s failure to file a timely motion may constitute

ineffective assistance of counsel. Id. To remedy counsel’s ineffectiveness, the

postconviction court may permit a defendant to file a belated motion for modification of

sentence. Id. At the time that Flansburg was decided, the five-year limitation on a court’s

revisory power over a sentence did not exist. Thus, Flansburg leaves open the question of

whether, or to what extent, a trial court’s revisory power extends over a motion for

modification that is filed pursuant to an order for postconviction relief.

PARTIES’ ARGUMENTS

The parties’ contentions amount to a dispute over the interpretation of Maryland

Rule 4-345(e), and the circuit court’s power to modify Mr. Schlick’s sentence. The State

asserts that the circuit court lacked revisory power over Mr. Schlick’s sentence and, thus,

properly dismissed his motion. Mr. Schlick contends that the circuit court’s power to rule

on his motion for modification was implicit in the postconviction relief granted to him.

The State argues that the Court of Special Appeals erred in concluding that the

circuit court retained fundamental jurisdiction over Mr. Schlick’s motion because the five-

year period in Rule 4-345(e) is mandatory. To support its position, the State cites to the

plain text of Maryland Rule 4-345(e), which limits a circuit court’s revisory power to “five

10
years from the date the sentence originally was imposed.” Md. Rule 4-345(e)(1)(B). In

addition, the State posits that the Rule’s history demonstrates that the five-year period was

deliberately enacted to limit the trial court’s revisory power over sentences it has imposed.4

4
The State also argues that this Court’s caselaw, specifically Cardinell v. State, dictates
that the time limits imposed by Rule 4-345(e) are mandatory. 335 Md. 381, 644 A.2d 11
(1994), overruled on other grounds by State v. Green, 367 Md. 61, 785 A.2d 1275 (2001).
After oral arguments, on April 19, 2019, the State filed a Notice of Subsequent Authority
with this Court. Therein, the State contends that in Cardinell, this Court held that the time
limits specified in Rule 4-345(e) are “jurisdictional.” Id. at 392-93, 644 A.2d at 16.
Therefore, according to the State, a circuit court cannot exercise revisory power over a
sentence, except as authorized by Maryland Rule 4-345(e).

The State’s Notice also brought to this Court’s attention our recent decision in
Rosales v. State, 463 Md. 552, 206 A.3d 916 (2019). In Rosales, we differentiated between
a “jurisdictional” rule and a “claim processing” rule. Id. at 567-68, 206 A.3d at 924-25. A
“jurisdictional” rule is set forth by our State’s legislature through the passage of a statute.
See id. at 567, 206 A.3d at 924. A “claim processing” rule does not involve a time limit
prescribed by the legislature. See id. For example, a court-made rule is a claim processing
rule, and its purpose is “to promote the orderly progress of litigation by requiring that the
parties take certain procedural steps at certain specified times.” Id.

According to the State, Rosales may have called Cardinell into question by
suggesting that the time limits in the Rule are not jurisdictional requirements, but instead
are claim-processing steps, because they are established by court rule and not by statute.
Nonetheless, the State argues that the outcome of the present case does not hinge on the
classification of Rule 4-345(e). If the rule is jurisdictional, in the State’s view, this Court
cannot expand the five-year limit therein. If the Rule is a claim-processing rule, according
to the State, it is still mandatory, meaning that courts cannot disregard it or commit
reversible error when they abide by it. Either way, the Rule’s time prescriptions are
mandatory.

In addition, the State contends in its Notice that whether Maryland Rule 4-345(e) is
a “jurisdictional” or “claim processing” rule is immaterial because the Rule is
unconstitutional. The Maryland Crime Victims’ Resource Center, before this Court as
amicus curiae, also argues that the Rule is unconstitutional. The State and amicus
resurrect an argument that was first presented to this Court by the Honorable Dale R.
Cathell in 2004 when the Rule was amended to include the five-year limitation. Judge
Cathell argued that it is unconstitutional for the trial court to exercise revisory power over
(continued . . .)
11
The State also contends that, even if the circuit court retained fundamental jurisdiction over

Mr. Schlick’s sentence, the court did not abuse its discretion by choosing to, instead,

comply with Rule 4-345(e)’s unambiguous command that it not exercise its jurisdiction.

Moreover, the State argues that, as a matter of postconviction relief, Mr. Schlick

was not entitled to a ruling on his motion more than five years after his sentence was

originally imposed. The State acknowledges, however, that defendants may be granted

postconviction relief to file a belated motion for modification. Under certain

circumstances, the State agrees that a defendant may be granted the postconviction relief

of belated consideration of a motion for modification, outside of the five-year window set

forth in Maryland Rule 4-345(e).5 In the present case, however, the State argues that Mr.

(. . . continued)
a sentence outside of the term of court. Furthermore, he asserted that judicial modifications
of sentences violate the Separation of Powers doctrine, enumerated in Article 8 of the
Declaration of Rights, and encroaches upon the Governor’s pardoning power, enumerated
in Article II, Section 20 of the Maryland Constitution.

In the case at bar, we do not expand or disregard the time frames set forth in Rule
4-345(e). Rather, we apply them to the present scenario, which arises in the postconviction
context. Therefore, whether the Rule is properly classified as “jurisdictional” or “claim
processing” is immaterial to our disposition of Mr. Schlick’s case. Moreover, in 2004,
when this Court adopted the five-year time limit set forth in Rule 4-345(e), we were not
persuaded that the Rule was unconstitutional. We are, likewise, not persuaded to alter our
discourse today. Furthermore, the United States Supreme Court has concluded that “[t]o
reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act
as much as the imposition of the sentence in the first instance.” United States v. Benz, 282
U.S. 304, 311, 51 S. Ct. 113, 115, 75 L. Ed. 354 (1931). As such, we conclude that Rule
4-345(e) is constitutional because modifying a sentence is a judicial act that does not
violate the separation of powers doctrine nor usurp the Governor’s power to pardon.

5
The State admits that postconviction relief “would entitle a movant to a belated ruling on
a motion for sentence reduction only where the postconviction court actually granted
(continued . . .)
12
Schlick was not expressly or impliedly granted such a right. According to the State, Mr.

Schlick’s sentence was imposed on September 15, 2008, and he obtained postconviction

relief to file a belated motion in March 2013. Therefore, he had six months to obtain a

ruling on his motion before the circuit court’s revisory power expired. During that time,

the State contends that there was no impediment to Mr. Schlick seeking a hearing on his

motion, and Mr. Schlick asked the court to hold his motion in abeyance. Thus, Mr.

Schlick’s entitlement to file a belated motion, the State asserts, did not automatically entitle

him to a belated ruling on that motion. Finally, the State emphasizes that if Mr. Schlick is

entitled to relief, it should be because he was granted postconviction relief to file a belated

motion, not because the circuit court retains fundamental jurisdiction to reduce a sentence.

On the other hand, Mr. Schlick argues that Rule 4-345(e) does not divest a circuit

court of its revisory power over a motion for modification that is filed pursuant to a

postconviction court’s ruling. Mr. Schlick contends that there is a tension between the

five-year period during which a circuit court retains revisory power over a sentence and

the ten-year period during which a defendant may obtain postconviction relief. This

tension not only hamstrings defendants’ postconviction rights, but, according to Mr.

Schlick, it condones ineffective assistance of counsel in violation of the Sixth Amendment

to the United States Constitution. Mr. Schlick asserts that this tension may be assuaged by

(. . . continued)
permission to obtain a belated ruling, either expressly or by necessary implication.” For
example, the State concedes that if a postconviction court granted a defendant the right to
file a belated motion after the five-year period expired, the grant of relief would imply
authorization to obtain a ruling on the motion.
13
permitting circuit courts to entertain a properly filed, belated motion for modification of

sentence for a period of five years from the date on which the motion is filed.

In addition, Mr. Schlick contends that he was granted postconviction relief after the

Rule’s five-year deadline had elapsed. To that end, Mr. Schlick argues that his sentence

was originally imposed, for purposes of Rule 4-345(e), on September 20, 2005 – not on

September 15, 2008 – so the court’s revisory power lapsed on September 20, 2010.

Therefore, in Mr. Schlick’s view, because he was not granted postconviction relief until

March 20, 2013, the circuit court’s ability to rule on his motion was implicit in the

postconviction court’s ruling granting him the right to file a belated motion. Moreover,

Mr. Schlick points out that the State conceded that if a defendant was granted permission

to file a belated motion after the five-year period had expired, then permission to rule on

the motion outside of the five-year period would be implicit in the court’s ruling. Finally,

Mr. Schlick argues that to allow him to file a belated motion for modification, but not allow

the circuit court to rule on that motion, would be an “empty remedy.”

DISCUSSION

The Imposition of Mr. Schlick’s Sentence

Before determining when the circuit court’s revisory power ended, we analyze the

prefatory issue of when the circuit court’s revisory power began. The language of Rule 4-

345(e) provides that the event triggering the start of the circuit court’s revisory power is

“the date the sentence originally was imposed on the defendant[.]” Md. Rule 4-

345(e)(1)(B). For guidance on when Mr. Schlick’s sentence was originally imposed and,

14
thus, when the five-year limit on the circuit court’s revisory power began to run, we look

to this Court’s decision in McDonald v. State, 314 Md. 271, 550 A.2d 696 (1988).

In McDonald, Kathleen McDonald (“Ms. McDonald”) was convicted of solicitation

in the District Court of Maryland located in Baltimore County. Id. at 273, 550 A.2d at 696.

Ms. McDonald, consequently, received a six-month suspended sentence and was placed on

supervised probation for one year. Id. Subsequently, on a de novo appeal, the Circuit Court

for Baltimore County found that Ms. McDonald had violated her probation, revoked her

probation, and reimposed the sentence handed down by the district court. Id. at 273, 284,

550 A.2d at 697, 702. Ms. McDonald filed a motion for modification, which the circuit

court denied because it believed it did not have the authority to revise the original sentence.

Id. On appeal, this Court reversed the circuit court and concluded that the revocation of

Ms. McDonald’s probation returned Ms. McDonald to her original sentencing status. Id.

at 284-85, 550 A.2d at 702. We held:

Whether the hearing judge reimposes the original sentence or imposes a new
sentence, the effect under Rule 4-345(b) remains the same; the 90-day period
runs from the time any sentence is imposed or reimposed upon revocation of
probation, and the court retains the authority to modify that sentence as the
rule provides.

Id. at 285, 550 A.2d at 702.

To reach our conclusion in McDonald, we looked to the Court of Special Appeals’

decision in Coley v. State, 74 Md. App. 151, 536 A.2d 1166 (1988). In Coley, the Court

of Special Appeals held that “where a probation is revoked and resentencing occurs, the 90

15
day modification period should run from the date the new sentence is reimposed.” Id. at

156, 536 A.2d at 1169. Our intermediate appellate court in Coley reasoned:

[I]f an order revoking a defendant’s probation returns the hearing judge to
the original sentencing status, then any sentence so imposed must have the
effect of an original sentence. Because Rule 4-345(b) applies to any
sentence, it must apply to a sentence which is imposed following a revocation
of probation.

Id.
From McDonald and Coley, we discern that when a defendant is resentenced after

his or her probation is revoked, whether the court proceeds to reimpose the defendant’s

initial sentence or impose a new sentence, the resulting sentence is treated as an “original

sentence” for purposes of Maryland Rule 4-345(e). To treat the subsequent pronouncement

of a sentence as an “original sentence” yields the conclusion that the portion of Rule 4-

345(e) that affords the circuit court revisory power for “five years from the date the

sentence originally was imposed” must be interpreted to afford the trial court revisory

power for five years from the date on which the defendant’s probation is revoked and the

subsequent sentence is reinstated or reimposed. As a result, a defendant has 90 days from

the date on which his or her probation is revoked and subsequent pronouncement of a

sentence, whichever is later, to file a motion for modification. Likewise, the trial court has

five years from the date on which a defendant’s probation is revoked and a sentence is

imposed to exercise its revisory power over the sentence.

Applying the principles stated above to the facts of the present case, the circuit court

imposed Mr. Schlick’s sentence on September 20, 2005. Mr. Schlick correctly notes that

for purposes of Rule 4-345(e) he was sentenced on September 20, 2005. Thereafter, he

16
had until December 19, 2005 to file a motion for modification, and the circuit court retained

revisory power over his sentence until September 20, 2010.

Mr. Schlick’s position, however, does not go far enough. After he was sentenced

in 2005, Mr. Schlick was released on probation but, ultimately, violated the terms of his

probation. Consequently, the court revoked his probation and reimposed his sentence on

September 15, 2008. Pursuant to McDonald, the “order revoking [Mr. Schlick’s] probation

return[ed] the hearing judge to the original sentencing status” and for purposes of Rule 4-

345(e) the new sentence “h[ad] the effect of an original sentence.” See McDonald, 314

Md. at 284, 550 A.2d at 702. As such, Mr. Schlick had 90 days, or until December 14,

2008, to file a motion for modification. If a timely motion had been filed on Mr. Schlick’s

behalf, as he had requested of counsel, the circuit court would have had revisory power

over his sentence for five years from the date that his sentence was then imposed.6

6
Mr. Schlick relies on Jones v. State, 138 Md. App. 12, 769 A.2d 1015 (2001), to contend
that his sentence was not imposed on September 15, 2008. To support his argument, Mr.
Schlick relies on language from Jones, in which the Court of Special Appeals stated that
when a court, “suspends execution of all or part of [a] sentence in favor of probation, and
later strikes the probation and directs execution of all or part of the previously suspended
part of the sentence, the court does not, at that time[,] reimpose all or any part of the
sentence.” Jones, 138 Md. App. at 22, 769 A.2d at 1021 (quoting Moats v. Scott, 358 Md.
593, 596-97, 751 A.2d 462, 464 (2000)). The Court of Special Appeals went on to say that
the “original sentence is the only true punishment; the probation revocation is merely the
withdrawal of favorable treatment previously accorded the defendant.” Id. at 21-22, 769
A.2d at 1020-21.

By applying the selected language to the present case Mr. Schlick takes Jones out of
context. Jones did not decide what constitutes an imposition of sentence for purposes of
ruling on a defendant’s motion for modification of sentence or otherwise purport to
interpret Rule 4-345. Rather, Jones concerned whether a sentence was imposed in the
context of imposing an enhanced penalty. Id. at 19, 769 A.2d at 1019. To reach its
(continued . . .)
17
 To the extent that the State argues that Mr. Schlick’s sentence was originally

imposed for purposes of determining the typical limitation on a trial court’s revisory power,

the State is correct. Our inquiry, however, does not end there because a timely motion for

modification was not filed on Mr. Schlick’s behalf. The postconviction court ruled on

March 20, 2013 that Mr. Schlick received ineffective assistance of counsel and that he was

therefore permitted to file a belated motion for modification. We must decide what, if any,

impact the postconviction court’s order had on the time constraints of the circuit court’s

revisory power under Maryland Rule 4-345(e).

Mr. Schlick’s Postconviction Relief and the Circuit Court’s Revisory Power

The postconviction court ruled on March 20, 2013 that Mr. Schlick received

ineffective assistance of counsel because his attorney failed to file a timely motion for

modification. Accordingly, the postconviction court granted Mr. Schlick permission to file

a belated motion for modification within 90 days of the postconviction court’s order.

Before this Court, neither party challenges the propriety of the postconviction court’s

ruling.

By affording Mr. Schlick 90 days from the date of its order to file a motion for

modification, the postconviction court effectively restored Mr. Schlick’s rights and the

circuit court’s revisory power under Rule 4-345(e). That is, had Mr. Schlick received

(. . . continued)
conclusion, the Jones Court relied on Moats, which concerned the imposition of a sentence
in the context of applying good conduct credits to a defendant’s time served. Moats, 358
Md. at 605-06, 751 A.2d at 468-69. As such, neither Jones nor Moats interpreted the Rule
at issue in the case at bar, and Mr. Schlick’s reliance on those cases is misplaced.
18
effective assistance of counsel, he would have had 90 days from the date of his probation

revocation and final judgment of the court to file a motion for modification. Mr. Schlick

was denied this right due to his counsel’s ineffectiveness. The postconviction court

restored his right to file the motion for modification. Given that the postconviction court’s

order was rendered on March 20, 2013, Mr. Schlick had until June 18, 2013 to file his

motion. He filed a motion on May 24, 2013.

Maryland Rule 4-345(e), however, explicitly affords Mr. Schlick more than the right

to simply file a motion for modification. The Rule also grants the circuit court revisory

power over such a motion for five years from the date on which a defendant’s sentence was

originally imposed. Md. Rule 4-345(e)(1)(B). For reasons that we previously explained,

if Mr. Schlick had received effective assistance of counsel, he would have been entitled to

the benefit of the circuit court’s revisory power over his sentence for five years from the

date that the court revoked his probation and reimposed his sentence. Mr. Schlick’s

sentence was reimposed on September 15, 2008. If a timely motion had been filed, the

circuit court would have retained revisory power over Mr. Schlick’s sentence until

September 16, 2013, because September 15, 2013 fell on a Sunday. See Md. Rule 1-

203(a)(1).

Not only was Mr. Schlick denied the right to file a motion for modification of

sentence, he was also denied the court’s exercise of discretion consistent with its revisory

powers under Rule 4-345(e). Thus, to meaningfully restore Mr. Schlick’s rights under the

Rule, not only must Mr. Schlick be permitted to file a belated motion within 90 days of the

postconviction court’s order, but it follows that implicit in the postconviction court’s grant

19
of relief was the ability of the circuit court to exercise its revisory power over Mr. Schlick’s

motion for five years from the date of the postconviction court’s order. Applying the

aforesaid principles to the facts of the present case, Mr. Schlick was granted postconviction

relief on March 20, 2013. In compliance with the postconviction court’s order, he filed a

motion for modification on May 24, 2013. Therefore, the trial court had revisory power

over Mr. Schlick’s sentence until March 20, 2018.

In reaching this conclusion, we recognize that Rule 4-345(e) includes a defendant’s

right to seek meaningful redress by filing a timely motion for modification of sentence and

obtaining the meaningful exercise of a circuit court’s discretion to act on that motion within

the time limits prescribed by the Rule. See Md. Rule 4-345(e). This application of the

Rule is consistent with the notion to place the defendant in the position he would have been

but for his counsel’s ineffectiveness. See Williams, 326 Md. 367, 382-83, 605 A.2d 103,

110-11. If we were to adopt the State’s position and hold that the circuit court’s revisory

power over Mr. Schlick’s sentence lapsed on September 16, 2013 – five years after his

probation was revoked on September 15, 2008 – Mr. Schlick’s rights under Rule 4-345(e)

would not have been fully restored. By the time Mr. Schlick obtained postconviction relief

on March 20, 2013, he would have had only approximately six months remaining for the

circuit court to rule on his motion before its revisory power lapsed. Under that scenario,

Mr. Schlick would be denied the full benefit of the five-year time period during which the

circuit court could exercise its discretionary revisory power over his sentence.

In our view, the circuit court erred when it prematurely concluded that it lacked

revisory power over Mr. Schlick’s sentence and thereby failed to exercise its discretion to

20
rule on the motion for modification of sentence.7 Clearly, Mr. Schlick is not guaranteed a

reduction in sentence or other modification of sentence as a matter of law. Rather, he is

entitled to the full benefits of Maryland Rule 4-345(e), which he was denied due to his

counsel’s ineffectiveness. That is to say, Mr. Schlick is entitled to a full and fair

opportunity in which to obtain the court’s consideration and ruling on his motion

considering the totality of the circumstances. Accordingly, we affirm the judgment of the

Court of Special Appeals. We emphasize that our holding in this case is limited to those

situations where a defendant is deprived of the opportunity to timely file or otherwise

obtain consideration by the court of a motion for modification under Maryland Rule 4-

345(e) as a result of ineffective assistance of counsel.

CONCLUSION

We hold that, when the postconviction court granted Mr. Schlick 90 days from the

date of its order to file a motion for modification of sentence, implicit in the court’s ruling

was the circuit court’s authority to exercise it revisory power over Mr. Schlick’s sentence

for five years following the postconviction court’s final order. Given that Mr. Schlick was

granted postconviction relief on March 20, 2013, the circuit court had revisory power over

his sentence for an additional five years from that date, or until March 20, 2018. On August

8, 2017, when the court dismissed Mr. Schlick’s motion without a ruling on the merits

7
Given that we hold that the circuit court’s revisory power was ongoing when it dismissed
Mr. Schlick’s motion, it is not necessary for us to decide whether, as the Court of Special
Appeals concluded, the circuit court retains indefinite fundamental jurisdiction to modify
a sentence outside of the five-year period set forth in Maryland Rule 4-345(e). See Schlick
v. State, 238 Md. App. 681, 693-94, 194 A.3d 49, 55-56 (2018).
21
because of a perceived lack of revisory power, the circuit court dismissed Mr. Schlick’s

motion prematurely. The court, in fact, had revisory power over Mr. Schlick’s sentence

for an additional 224 days, or until March 20, 2018. As such, when the circuit court

dismissed Mr. Schlick’s motion without a ruling on the merits, the circuit court erred as a

matter of law.

Mr. Schlick is entitled to a full and fair opportunity to have his motion considered

on the merits and ruled on within five years after the postconviction court’s order.

Therefore, we affirm the judgment of the Court of Special Appeals and direct that court to

remand the case to the circuit court. If Mr. Schlick intends to further pursue his request for

modification of sentence, he is required, within 30 days of this mandate, to file a motion in

the Circuit Court for Baltimore City requesting that the court reconsider his motion for

modification. In light of the 224 days that were outstanding when the circuit court

dismissed Mr. Schlick’s motion, we hold that the Circuit Court for Baltimore City retains

revisory power over Mr. Schlick’s sentence for an additional 224 days accounting from the

date of Mr. Schlick’s written request to the circuit court.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY PETITIONER.

22