Short answer: Yes, if the defendant or the attorney filed the right document at the right time. That does not mean that the court will lower the sentence, but the option isn’t even on the table if the proper document was not filed at the proper time. In my practice, I have seen the full gamut of rulings on Motions to Modify Sentence, from flat denials at the time of filing to life sentences being modified to time served sentences, which resulted in a defendant’s immediate release. In all likelihood, such defendants would have otherwise died in prison. What happens in a particular case depends on a number of factors that are unique to that case, but a defendant won’t even have a chance at this type of relief unless the Motion is filed on time.
When a defendant is sentenced in Maryland, he typically has three post-sentencing rights:
- the right to file an appeal within 30 days (or an application for leave to appeal from a guilty plea),
- the right to file an application for sentence review by a three judge panel within 30 days (if sentence is at least two years), and
- the right to file a Motion to Modify Sentence within ninety days.
This post will focus on that third right. Under Maryland Rule 4-345, the sentencing court may reduce a defendant’s sentence pursuant to a pending Motion to Modify Sentence or a Motion for Reconsideration of Sentence.
Who?
Anyone sentenced in Maryland may file a Motion to Modify Sentence within 90 days of the date of sentence.
What?
A Motion to Modify Sentence is also called a Motion to Reconsider Sentence. Same thing, different names. It is also sometimes called a Modification or a “Mod” for short. The sentencing court may only reduce the sentence or leave it the same based on this Motion. The court cannot increase a sentence based on this Motion. A defendant does not have a legal right to have his sentence reduced, but he does have the right to ask. A defendant is neither entitled to a hearing nor entitled to relief with this Motion. That means that the court could simply choose to deny the Motion at the time of filing or the court could agree to hold it and deny it later with or without a hearing.
Where?
This Motion must be filed with the same court that imposed the sentence. If Judge John Doe is the one who sentenced the defendant, Judge John Doe is the one who gets to decide this motion. If Judge John Doe has retired or died, then the Motion will usually go to the judge who inherited Judge John Doe’s docket.
When?
In order to preserve the right, the Motion must be filed within 90 days of the date of sentence. But, at the time the Motion is filed, the defendant should request that the court hold the motion sub curia or in abeyance. That simply means that the defendant is asking the court, please do not decide this motion now, hold onto it and decide it later. It makes sense to ask the court to wait to decide the Motion from a very practical standpoint. The court just sentenced the defendant based on the information it had available at the time sentencing. The court is probably not going to change its mind about the sentence it imposed just 90 days earlier. Also, an argument to reduce the defendant’s sentence is not a legal argument, it is a request for the court’s mercy. Therefore, it makes sense to wait some period of time, build up a good institutional record while in prison, and then go back to the court to try and convince the court that the defendant has improved himself while incarcerated and is deserving of the court’s mercy.
Usually, the court is asked to hold the Motion in abeyance until such time as the defendant requests a hearing. If a defendant was sentenced prior to July 1, 2004 and the Motion is still pending, the court has indefinite jurisdiction over the motion. What that means is that if the court agreed to hold on to it at the time that it was filed, the court’s time to act on it never expires. In theory, a defendant could come back to the court and ask the court to reduce his sentence, 20 years later, so long as the Motion has not been decided yet.
If a defendant was sentenced after July 1, 2004, the court has FIVE YEARS from the date of sentence to act. Keep in mind, this is five years from the date of sentence, not five years from the date of filing the Motion. After five years, the court no longer has the ability to reduce the sentence. So, if a defendant manages to file a Motion to Modify Sentence within 90 days of sentence and the court agrees to hold it until the defendant requests a hearing, but the defendant forgets to act within his five year deadline, then the right is lost. If the court is holding the motion, it is up to the defendant to ask the court to take action.
Why?
There is no downside to filing this motion. As a result of this Motion, a defendant will either be in the exact same position he was in before he filed or he will be in a better position. The court cannot increase the defendant’s sentence based on this Motion. If the trial or guilty plea attorney failed to file the Motion within 90 days of the date of sentence, the only way to get the right back is through a post conviction. The defendant must allege that trial counsel was ineffective for failing to file the Motion. Unfortunately, despite the case law, not every county treats this issue the same. In some jurisdictions, getting the right back is a relatively straightforward process, in others, the court will deny relief.
Relevant Case Law
Unless a defendant tells his trial counsel to not file a Motion to Modify Sentence, then trial counsel renders ineffective assistance in failing to do so. In the absence of evidence that a defendant expressly told his attorney not to file the Motion, a defendant is entitled to file the Motion belatedly.
- State v. Flansburg, 345 Md. 694, 703 (1997) (defendant is entitled to the effective assistance of counsel on a motion to modify sentence)
- State v. Adams, 171 Md. App. 668, 716 (2006), reversed on other grounds, 406 Md. 240 (2008) (“[a]n objective standard of reasonableness requires that counsel file a motion for modification of sentence within ninety days after sentencing”)
- Matthews v. State, 161 Md. App. 248, 252 (2005) (trial counsel’s failure to file a motion for reconsideration of sentence constitutes ineffective assistance of counsel without the necessity of showing that such a motion would have been granted)
- Stovall v. State, 144 Md. App. 711, 728-29 (2002) (the entitlement to file a motion to modify sentence belatedly does not require a demonstration that the motion would have been successful).
**An important note about guilty pleas. If you entered a guilty plea, you still have the right to file a Motion to Modify Sentence. However, if your plea was “binding” or an “ABA” plea, then the court cannot lower your sentence without the State’s consent.
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I was never told that i
could have my conviction modified when i went to trail back in 1996 i got six months suspended sentence and one year probation so when i got my carrier permit the state police told me i could have my case modified to something lower i said how its been almost 20 years now so if its true can i really have it modified to a pbj
Please give me a call if you would like to discuss your case, 301-880-7118. I’d rather not give out case specific input in the comments section, especially without knowing more about your case
I dont want to waste your time if i dint have a case since it been 20 years after my conviction. But you can contact me at 443-929-3447
I really didnt know that my lawyer was suppose to tell me i had that right cuz after my trail he just went about his business but he made sure he got all his money from though maybe if he told me i could have had this charge expunged by now it has been following me for all this years now i have taken steps to try to get rid of it i have filed for a pardon but i heard that can take upwards to five years to get an answer and i file to have it shielded im surprised they shied it but im happy with that but i would be happier if i could have filed for a modification all those years ago ok thank you for your blog and the time you took to read my post
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Thanks for the info. Great job. I have a question about someone that was found guilty in 1995, of mal dest prop/ value 300.00. He was able to buy shot gun to protect his family. The FBI said he could purchase it, but Maryland a few months later came and took them away. Do I have to write a letter to the governor, or can I just write a letter to a judge and have his case reduced to a pbj? This has been over 21 yrs ago. Thank you for your time.
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I served 8 months out of my max of 18 momths and was modified to 1 year probation. I have violated the probation so will I be credited the 8 months I have already served if sent back to jail?
Hello. I was given a sentence of 15 years all suspended but one. I was given credit for 5 years time served and placed in seven months home confinement. Because of my career I’m allowed to work 24 hours a day of I want to. I am fulfilling the other obligations of the court, therapy, alcohol treatment, (although I don’t drink) my Attorney asked for home confinement, if I had none better I should have just taken the jail time Sat in the County lock up for about a month and been done with it as my time was DOC time which is fifty percent in Maryland but not knowing my Attorney rigged this up because he is friends with the home confinement service and is probably getting a kick back. I didn’t want home detention. Can I file a modification to get off of this, it is pointless, I can walk out of here when I want a be gone for weeks at a time because of my work, this is pointless.
Please email me ejsuter@ericasuterlaw.com or call my office 301-880-7118. You should not discuss the details of your case on a public forum.
My fiance had his mod n reconsideration they denied him he been incarcerated for five years 1st degree assault what else can he do
The answer entirely depends on what has happened in his case already. Please contact me directly by email or phone if you would like to discuss. ejsuter@ericasuterlaw.com or 301-880-7118
Depends on the case. Please email me or call. ejsuter@ericasuterlaw.com 301-880-7118
If someone pleads guilty to a child sex offense 3rd degree in exchange for not have the other 2 child sex offenses prosecuted and received 25 years with 10 suspended and is currently serving 15 years in state prison can that sentence be overturned or modified?
Depends on whether it was a binding plea.
Hi Erica,
My name is Cheryl hicks and I am writing to you regarding my son Tyrone hicks. He is currently sitting in a Henrico west jail waiting form his appeal to go through. In reading up on all of the laws and case, I see that his lawyer could have asked for a modification of my son’s 13 year sentence among other things. I’ve been trying to find out as much as I can as far as how his rights were violated and the fact that the prosecutors bribed witnesses to testify in court. They stated this during the trial and the judge didn’t care. There’s a lot involved and I just need some advice now on his right to file a motion to reconsider to the judge. I plan on meeting the 3 judges for his appeal because his attorney isn’t going and see what happens. It’s a shame that people who can’t pay for legal representation will most definitely be sentenced for long periods of incarceration with no hope in site.
Please feel free to email me directly or give me a call.
My daughter was sentenced in Charles County for a crime. She had a public defender who said that he will file A sub Curia within 90 days of her sentencing so that my daughter can file as many motions for reconsideration as she wants and the judge has up to 5 years to bring her in for a hearing. Was he right? If so, how many times can my daughter request a motion for reconsideration within 5 years?
Your daughter needs to request a hearing. The court will not set a hearing automatically. Often in Charles County, the court will say “no action” when a hearing is requested.n That means the court will continue to hold. You can request again in the future. However, if the court denies the motion, you cannot file again. Please speak consult directly with your attorney about this.
I am going to be attending my hearing for a sentence modification/reconsideration because my motion was filed within 90 days of the sentencing date and it was held sub curia. The sentencing date was in 10/20/2008. I was given the hearing despite this being outside of 5 years of the date of sentencing. Is there any case law or argument I can make at the hearing that might make the judge reconsider after the 5 year period? It was a “guilty” charge and I cannot wait for the 10 years for the Maryland to enact this law where you can get an expungement after 10 years of the date of disposition. I have completed and have been able to show the judge with proof the immense amount of change that I have made in my life and how my life is about giving back to the community now, and how this charge is holding me back from going to medical school. Is there anything I can argue to have him give me leniency. Pardon the alias.
I apologize for not responding at the time of your post. Your comment got buried under spam. How did your hearing turn out?
My cousin was awaiting sentencing in a criminal case in Maryland. He was just notified by his public defendant that they could no longer represent him because of a conflict of interest. They could not explain just what the conflict of interest was but he would have to get another public assistance. He was scheduled for sentencing two weeks ago. Does he have any recourse in these drastic changes in the case?
Your cousin should contact the supervisor in the PD’s office.
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