DONALD R. TWIGG
STATE OF MARYLAND
Argued: September 3, 2015
Circuit Court for Charles County Case No. 08-K-10-001000
Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned), JJ.
This case presents several issues relating to merger of sentences in criminal cases under the "required evidence test" of Blockburger v. United States, 284 U.S. 299 (1932). The issues have their genesis in Petitioner Donald R. Twigg's conviction of child abuse, second degree rape, third degree sexual offense, and incest against his daughter. As charged, any one of the three sexual offenses could have provided the basis for the child abuse conviction. The trial court sentenced Petitioner to a total of forty years' incarceration: consecutive terms of twenty years for second degree rape, ten years for third degree sexual offense, and ten years for incest; for child abuse, the court imposed a fifteen-year sentence, but suspended the entirety of that time in favor of five years' probation.
We must decide whether all, or only one, of the sexual offenses merge for sentencing purposes with the sentence for child abuse. We also must decide whether Maryland law permits a remand to afford the trial court the opportunity to consider resentencing on the child abuse conviction and, if so, the limits within which the court must operate when considering a new sentence for that crime. We hold that only the sentence Petitioner received for second degree rape must be vacated, by application of State v. Johnson, 442 Md. 211 (2015). We further hold that Maryland Rule 8-604(d) authorizes a remand for a new sentencing hearing and, at that hearing, the sentencing court has the discretion to resentence Petitioner to a term of active incarceration on the child abuse conviction.
In 2011, Petitioner was tried before a jury in the Circuit Court for Charles County on an indictment charging that he committed the crime of child abuse of his daughter, by engaging in various sexual offenses against her during the period spanning March 25, 1974, and January 1, 1979. Each of the charged sexual offenses was alleged to have occurred within a particular subpart of that nearly five-year timeframe, while his daughter was between the ages of nine and fourteen years old.
We need not detail all of the evidence presented at trial. It is enough to say that the jury heard evidence, primarily through the testimony of the daughter, from which the jury could find beyond a reasonable doubt that during the identified timeframes Petitioner committed the following four crimes. Between July 1, 1976, and March 25, 1978, he committed a third degree sexual offense by touching his daughter's vagina and making her touch his penis. Between July 1, 1976, the effective date of the then-new rape statute, and March 25, 1978, he committed second degree rape. Between March 25, 1974, and January 1, 1979, he committed incest by engaging in vaginal intercourse with his daughter. And, throughout that time he committed child abuse "by engaging in sexual molestation and sexual exploitation."
At the close of all the evidence, the court instructed the jury that, to convict Petitioner of the crime of "sexual child abuse, " the jury was required to find, among other elements, that Petitioner engaged in sexual molestation or exploitation of his daughter. The court further instructed that the dates identified in the charging document for child sexual abuse "cover the entire period, " that child sexual abuse is "a generic type of charge, " and that "the other [sexual offense] charges are specifications within that generic charge." The State argued in closing that Petitioner committed the "sexual molestation or sexual exploitation" element of child abuse by engaging in any of the charged sexual offenses. The State did not seek to prove or argue in closing that the child abuse charge was-or could be-based on evidence of molestation or exploitation other than that which the State offered in support of the various charged sexual offenses.
The jury completed a verdict sheet finding Petitioner guilty of child abuse, second degree rape, third degree sexual offense, and incest. The jury was not directed either by the judge or on the verdict sheet to specify which of the charged sexual offense(s) satisfied the molestation/exploitation element of the child abuse conviction. As mentioned at the outset, the court imposed consecutive sentences for rape, third degree sexual offense, and incest, and a fifteen-year suspended sentence for child abuse, for a total of forty years of active incarceration.
Petitioner argued before the Court of Special Appeals that he was entitled to have the "separate convictions and/or sentences" for the three sexual offenses vacated as lesser included offenses of that crime. He rested the argument on the Fifth Amendment provision, held applicable to the states, that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb, " requiring merger of a lesser included offense as set forth in Blockburger. For that proposition, Petitioner relied primarily upon the reasoning and holding of Nightingale v. State, 312 Md. 699 (1988). The Court of Special Appeals agreed with Petitioner that he was entitled to have all three sexual offenses- second degree rape, third degree sexual offense, and incest-vacated, under Nightingale. Twigg v. State, 219 Md.App. 259, 272 (2014). At the time the intermediate appellate court issued Twigg, we had not yet decided State v. Johnson, 442 Md. 211 (2015).
The Court of Special Appeals further held that,
(1) under the circumstances of the instant case, this Court has the discretionary authority to remand the case to the trial court for the purpose of imposing a new sentence on [Petitioner] for his sexual child abuse conviction, and (2) on remand, the trial court may impose any sentence it deems proper up to the maximum penalty prescribed by the child abuse statute for such offense committed from July 1, 1974 through January 1, 1979.
219 Md.App. at 282.
The Court of Special Appeals concluded that resentencing on the greater offense is permissible because the trial court had failed to merge the lesser offenses, id. at 284-85, reasoning that the trial judge is entitled to consider the "total sentence for all of the convictions together, " id. at 287. The Court of Special Appeals explained that it would defy common sense to conclude that Petitioner's sentence would be unlawfully increased, even if the judge on remand were to impose the maximum fifteen years of active incarceration on the child abuse conviction, because Petitioner's total sentence would not exceed the total forty-year sentence imposed originally. Id.
Both Petitioner and the State sought issuance of a writ of certiorari to review the judgment of the Court of Special Appeals. Petitioner asks:
1. When an appellate court holds that a lesser included offense (or offenses) should have been merged into the greater offense and it vacates the sentences that were merged for the lesser offense (or offenses), does the appellate court have authority to vacate the sentence imposed for the greater offense and remand for re-sentencing/new sentencing for that offense where there has been no challenge on appeal to the legality of the conviction or sentence for the greater offense?
2. In this case, did the Court of Special Appeals have authority and/or discretion to remand the case for re-sentencing/new sentencing on the greater offense of child sexual abuse after correctly holding that the lesser included offenses of second degree rape, third degree sexual offense, and incest must merge into child sexual abuse for sentencing purposes?
The State asks:
Where Twigg was convicted of child sexual abuse and three statutory sexual offenses (incest, second degree rape, and third degree sexual offense) – any one of which supports a conviction for child sexual abuse – should only one of the statutory sexual offenses merge for purposes of sentencing, rather than all three?
We answer "yes" to all three questions and, accordingly, affirm in part and reverse in part the judgment of the Court of Special Appeals. We begin by addressing the State's cross- petition on merger and then will address Petitioner's two questions on resentencing.
The State urges us to reverse the Court of Special Appeals's holding that all of the sexual offense convictions merge for purposes of sentencing. In the State's view, when, as happened here, the jury did not specify which of the sexual offenses satisfied the molestation/exploitation element of child abuse, the law requires that only one of those offenses, in this case, second degree rape, merges for sentencing purposes with the conviction and sentence for child abuse. For that proposition, the State relies on our recently-decided Johnson opinion. The State further argues that Nightingale does not mandate a different result. Petitioner counters that Johnson does not dictate the outcome the State seeks and, contrary to the State's reading of Nightingale, application of that case requires that the sentences for all three of the sexual offenses-second degree rape, incest, and third degree sexual offense-merge with the sentence for child abuse.
Resolution of this dispute requires us first to determine what we did-and did not- decide in Nightingale insofar as it relates to the State's cross-petition.
Nightingale (and Myers) v. State
There were two petitioners in Nightingale, Carol Nightingale and Albert James Joseph Myers, Sr. Both were charged with committing child abuse under the then-extant statute, see supra note 5, by engaging in sexual molestation or exploitation of their respective daughters.
Petitioner Nightingale was tried before a jury on charges of second degree rape, incest, common law battery, perverted practice, and second degree sexual offense, in addition to child abuse. All of the crimes were alleged to have been committed "on or about 1977 to 1982" when his daughter was "under 14 years of age." 312 Md. at 700-01. The victim "testified that on various occasions during the years in question her father had engaged in sexual activity with her, beginning with fondling and culminating with vaginal intercourse, fellatio, and cunnilingus." Id. at 701. Nightingale was acquitted on the charges of battery, perverted practices, second degree rape, and ...