Maryland Rule 4-342(d)
states, “sufficiently in advance of sentencing to afford the defendant a reasonable opportunity to investigate, The State’s Attorney shall disclose to the defendant or counsel any information that the State expects to present to the Court for consideration in sentencing. If the Court finds the information was not timely provided, the court shall postpone sentencing”.
This rule is applicable to all criminal trials, felonies and misdemeanors, jury and non-jury trials as well as guilty and non-guilty pleas. Brown v. State, 11 Md. App. 27 (1971).
The provisions of this section are mandatory and are not waived by mere failure to object at time of trial. Dunn v. State, 65 Md. App.637 (1985).
Since the word “shall” makes it mandatory that the State disclose any evidence it expects to present, and not merely identification of those whom it might call to testify, the giving at a sentencing hearing of only a few minutes notice of the intent to call a witness required remand for a re-sentencing. Green v. State, 127 Md. App. 758 (1999).
Cruz-Quintanilla v. State, 228 Md. App. 64 (2016) affirmed the use of a gang expert’s testimony during a sentencing hearing. The Court found that it was properly within the sentencing judge’s discretion whether or not to consider evidence regarding the nature and activities of MS-13 as it pertained to the court’s consideration of the defendant’s character. The appellate court was not requested to consider the sentence of incarceration followed by five (5) years probation with the special condition the defendant not be involved in any gang activity or be a member of any gang. (July 31, 2017, Court of Appeals affirms Court of Special Appeals, 455 Md. 35)