[Copyrighted Material Omitted]
Submitted bye: Katherine P. Rasin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant
Submitted by: Carrie J. Williams (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Wright, Hotten, Alpert, Paul E. (Retired, Specially Assigned), JJ. Opinion by Hotten, J.
[219 Md.App. 629] Hotten, J.
Appellant was convicted of first degree murder and armed robbery by a jury in the Circuit Court for Worcester County. Following a successful appeal and remand by the Court of Appeals, he was re-tried and convicted of first degree murder, armed robbery, and misdemeanor theft. The court sentenced him to life without the possibility of parole and a consecutive twenty year sentence. Appellant appeals and presents the following questions for our review:
1. Where appellant successfully overturned his conviction on appeal and was retried, did the sentencing court err in increasing appellant's sentence on the first degree murder count from life with the possibility of parole after his first trial to life without the possibility of parole after the retrial?
2. Is appellant entitled to a new sentencing where one of the reasons relied upon by the State in seeking an increased sentence was incorrect?
For the reasons that follow, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL HISTORY
On April 8, 2009, appellant, Charles Robert Phillips, was convicted in the Circuit Court for Worcester County of first degree murder, and robbery with a deadly weapon of William Nibblett. The court sentenced him to life imprisonment with the possibility of parole for the murder and to a consecutive twenty year sentence for the armed robbery. Appellant appealed.
[219 Md.App. 630] During the pendency of his appeal, appellant was incarcerated for several years in the North Branch Correctional Institute (" North Branch" ) where he received two disciplinary infractions for possessing weapons. On December 2, 2009, correctional officers searched appellant's cell and located a weapon made from a piece of a cup inside of appellant's trash can. On December 4, 2009, correctional officers discovered a second knife-like weapon hidden within appellant's mattress. Appellant received an internal administrative hearing where both hearing officers found appellant guilty and imposed sanctions. This Court affirmed his convictions in an unreported opinion and the Court of Appeals granted certiorari. In Phillips v. State, 425 Md. 210, 40 A.3d 25 (2012), the Court reversed appellant's convictions and remanded for a new trial.
In June of 2012, after appellant's case was remanded for a new trial, he was transferred to Worcester County Jail (" Worcester Jail" ). While there, following a verbal confrontation between several inmates, appellant was strip searched and correctional officers discovered a concealed weapon. In June of 2013, appellant was re-tried for first degree murder and the related robbery offenses. A jury found him guilty of murder, armed robbery and misdemeanor theft. Prior to sentencing,
the State filed a motion seeking an enhanced sentence pursuant to Maryland Code, (1974, Repl. Vol. 2013) § 12-702(b) of the Courts and Judicial Proceedings Article [hereinafter Cts. & Jud. Proc.], which states:
(b) Remand for sentence or new trial; limitations on increases in sentences. -- If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper judgment or sentence, or conduct a new trial, and if there is a conviction following this new trial, the lower court may impose any sentence authorized by law to be imposed as punishment for the offense. However, [219 Md.App. 631] it may not impose a sentence more severe than the sentence previously imposed for the offense unless:
(1) The reasons for the increased sentence affirmatively appear;
(2) The reasons are based upon additional objective information concerning identifiable conduct on the part of the defendant; and
(3) The factual data upon which the increased sentence is based appears as part of the record.
The State argued that the three weapons related disciplinary infractions were sufficient to warrant an increase in sentence. Appellant argued that the statute as written was unconstitutional. Following oral arguments, the court granted the motion, which permitted the State to present evidence at the sentencing hearing for an enhanced sentence.
At sentencing, the State presented several witnesses who testified regarding appellant's disciplinary violations, including correctional officers and administrative hearing officers. Appellant did not deny that he possessed the weapons or that he was found guilty by the administrative hearing officers. Rather, he contended that personal safety concerns were the motive behind his possession of the weapons. He alleged that he was unaffiliated with a gang; was perceived as a target within the correctional institutions; and that the weapons were a preventative measure if he was attacked. He also noted that following the two infractions in December, he did not receive any other weapons violations. Additionally, appellant advanced an argument that the statute was vague:
[APPELLANT'S COUNSEL]: Your Honor, there isn't any sort of indication that during the five years, give or take, that [appellant] has spent in custody in relation to this case that he's ever once attacked any person in any institution with an weapon. It's not --
THE COURT: Is that --
APPELLANT: -- before this Court.
THE COURT: Is that what is required for an increased penalty?
[219 Md.App. 632] APPELLANT: Well, Your Honor, my -- my personal opinion is that the information that's required under the Maryland statute is pretty vague and unclear as to what it is that, you know, the Court can decide. I mean, the Court can decide any -- the Court could decide that if my -- you know, if he were to take a tone with someone, if he were to just not show himself to be amenable, if he engages in bad behavior, you know, the Court can consider that.
THE COURT: Well I think --
APPELLANT: It's pretty vague.
THE COURT: Well, I don't know how vague it is, but I think, certainly, any disciplinary record is sufficient for the Court to consider. And that's pretty much what the appellate court said in Davis when they said, well, this evidence was here and ...