Circuit Court for Baltimore County Case No. K-04-CR-001787
Deborah S., Berger, Sharer, J. Frederick (Senior Judge,
Specially Assigned), JJ.
Graeff, Kathryn Grill, J., did not participate in the
Court's decision to report this opinion pursuant to Md.
Deborah S., J.
case presents the question whether four consecutive 25-year
sentences imposed against a juvenile for nonhomicide crimes
constitute cruel and unusual punishment, categorically. More
specifically, it causes us to consider whether the United
States Supreme Court's holding in Graham v.
Florida, 560 U.S. 48 (2010), that it is a categorical
violation of the Eighth Amendment for a juvenile nonhomicide
offender to be sentenced to life without parole
("LWOP"), extends to these multiple-victim,
multiple-crime term-of-years sentences. We hold that
Graham does not extend to the sentences in this case
and they are not otherwise cruel and unusual.
Tuesday, May 4, 2004, Matthew Timothy McCullough, the
appellant, and Martise Williams, both students at
Randallstown High School, in Baltimore County, got into an
argument when Williams called the appellant a
"bitch." Over the next several days, the
controversy escalated. Efforts by school officials to
"calm the waters" by meeting with the students and
their parents proved fruitless. School officials told
appellant not to be on school grounds on Friday, May 7, 2004.
He came to the school that day anyway and during the course
of a school basketball game let it be known that he and three
companions were looking for a fight. School officials ordered
them off the grounds.
that afternoon, when the basketball game was letting out, the
appellant returned with his three companions. The appellant
was 17½ years old, but his companions were older and
were not students. The four walked together "towards the
school where a group of kids were hanging out on the
sidewalk." McCullough v. State, No. 2812, Sept.
Term. 2004, slip op. at 2 (filed Nov. 28, 2005). According to
a teacher who witnessed what happened next, the four
approached a group of students, "[a] few words were
exchanged, a punch was thrown, and there was a fight." A
crowd of 30 or 40 students formed. When it became clear that
the four were not going to prevail, one of them, Tyrone
"Fat Boy" Brown, retrieved a handgun from his car.
"Fat Boy" and the appellant shared the handgun,
using it to fire a total of 12 shots into the crowd. Four
students were seriously wounded; one of them was shot in the
back of the neck and is paralyzed from the chest down.
November 23, 2004, a jury in the Circuit Court for Baltimore
County convicted the appellant of four counts of first degree
assault, one for each victim. Sentencing took place on
January 27, 2005. Exercising his right to allocution, the
appellant made the following statement:
Your Honor, I would like to say what happened on May 7th was
a tragedy. I'd like to apologize for what happened that
day and I'd like to apologize for putting the victims and
their families through the pain and suffering. And I know
that a punishment is acceptable, and I'm here to accept
the punishment. Thank you.
asked by his lawyer whether he thought that, "[a]t some
point in [his] life, " he could "rejoin [the]
community and be a productive part of society[, ]" the
appellant responded, "Yes."
court sentenced the appellant to the maximum 25 years for
each conviction, to be served consecutively, for an aggregate
sentence of 100 years. In doing so, the judge characterized
the crimes as "vicious and heinous, " described the
"horror" endured by the families of the students
and the fear the crimes created in the community, and
recounted the seriousness of the victims' injuries. He
characterized the appellant as a "suburban
terrorist" and a "coward" and observed that
until sentencing he had shown no remorse and had bragged
about "beat[ing] the attempted murder wrap [sic]"
and the use of a handgun charge.
years later, on March 25, 2016, the appellant filed a motion
to correct illegal sentence, arguing that his aggregate
sentence of 100 years violated the prohibition against cruel
and unusual punishment in the Eighth Amendment to the United
States Constitution and in Article 25 of the Maryland
Declaration of Rights. The circuit court denied the motion
without a hearing, by order entered on June 27, 2016.
appellant noted a timely appeal, asking:
Does a juvenile nonhomicide offender's prison sentence of
100 years violate the Eighth Amendment to the United States
Constitution and/or Article 25 of the Maryland Declaration of
For the reasons set forth below, we shall affirm the order of
the circuit court.
Eighth Amendment to the federal constitution, applicable to
the States through the Fourteenth Amendment, see Robinson
v. California, 370 U.S. 660 (1962), provides that
"[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted." Early Supreme Court jurisprudence
interpreting the Cruel and Unusual Punishments Clause
prohibited barbaric punishments, such as torture or methods
of execution causing undue suffering. See, e.g.,
Wilkerson v. Utah, 99 U.S. 130, 135-36 (1878) (noting in
dicta that the punishment of torture is prohibited);
In re Kemmler, 136 U.S. 436, 447 (1890)
("Punishments are cruel when they involve torture or a
lingering death . . . .").
Weems v. United States, 217 U.S. 349, 367 (1910),
the Supreme Court recognized in the Cruel and Unusual
Punishments Clause the "precept . . . that punishment
for crime should be graduated and proportioned to [the]
offense." See also Coker v. Georgia, 433 U.S.
584, 592 (1977) (Eighth Amendment "bars not only those
punishments that are 'barbaric' but also those that
are 'excessive' in relation to the crime
committed."). The sentence at issue in Weems
was "cadena temporal, " a punishment
permitted by the law of the Philippines for the crime of
making a false entry in a public record. Cadena
temporal consists of "imprisonment for at least 12
years and one day, in chains, at hard and painful labor; the
loss of many basic civil rights; and subjection to lifetime
surveillance." Gregg v. Georgia, 428 U.S. 153,
171 (1976). The Court held that that punishment violated the
Cruel and Unusual Punishments Clause not because it was
barbaric, but because it was excessive and disproportionate
to the crime for which it was imposed.
Weems, two types of proportionality analyses
emerged. In one type, the Court imposed "categorical
restrictions on the death penalty." Graham, 560
U.S. at 59. In some of those cases, the Court categorically
prohibited the death penalty because it was
unconstitutionally excessive in relation to the severity of a
particular offense. See Kennedy v. Louisiana, 554
U.S. 407 (2008) (rape of a child); Coker, 433 U.S.
at 584 (rape of an adult); Enmund v. Florida, 458
U.S. 782 (1982) (non-triggerman felony murderer). In others,
the Court categorically prohibited the death penalty because
it was unconstitutionally excessive in relation to the
diminished culpability of a particular class of offenders.
See Atkins v. Virginia, 536 U.S. 304, 306 (2002)
("mentally retarded" offenders); Roper v.
Simmons, 543 U.S. 551 (2005) (juvenile offenders). In
determining whether to impose a categorical proportionality
restriction, the Court has looked to state legislative
enactments and practices to assess whether a national
consensus has emerged for or against a particular punishment
vis-à-vis a class of offenders, see, e.g.,
Atkins, 536 U.S. at 313-15; and whether the penological
goals of retribution and deterrence are served by imposing
the punishment. See, e.g., Roper, 543 U.S. at 571.
other type of proportionality analysis, the Supreme Court
reviews "the length of term-of-years sentences given all
the circumstances in a particular case . . . . to determine
whether the sentence is unconstitutionally excessive."
Graham, 560 U.S. at 59. Three "'objective
criteria'" are relevant to this analysis: "the
gravity of the offense as compared to the harshness of the
penalty; the sentences imposed on others in the same
jurisdiction; and the sentences imposed for the same offense
in other jurisdictions."United States v. Young,
766 F.3d 621, 626 (6th Cir. 2014) (quoting Solem v.
Helm, 463 U.S. 277, 288, 292 (1983)). Ordinarily, a
court will reach the latter two criteria only if its
consideration of the first factor gives rise to "an
initial inference of gross disproportionality."
Id. In these proportionality review cases, the
Supreme Court almost always has upheld the sentences. See
Rummel v. Estelle, 445 U.S. 263, 273 (1980)
("Outside the context of capital punishment, successful
challenges to the proportionality of particular sentences
have been exceedingly rare.") For example, in
Harmelin v. Michigan, 501 U.S. 957 (1991), a
plurality of the Court upheld a mandatory LWOP sentence for
the crime of possession of 672 grams of cocaine, stating that
the Eighth Amendment's "proportionality
principle" is "narrow" and "does not
require strict proportionality between crime and
sentence." Id. at 997, 1001. "[I]t forbids
only extreme sentences that are 'grossly
disproportionate' to the crime." Id. at
Court's 2010 decision in Graham, 560 U.S. at 82,
altered the landscape of proportionality review by imposing,
for the first time, a categorical sentencing restriction
outside the realm of the death penalty. The defendant in
Graham was convicted of armed burglary and another
offense, both committed when he was 16. In a plea agreement,
he was sentenced to probation before judgment. He committed
additional crimes, in violation of his probation. The court
found him guilty of the armed robbery and sentenced him to
LWOP. The Supreme Court held that sentencing
juvenile offenders to LWOP for a nonhomicide crime is cruel
and unusual punishment.
Graham Court began its analysis by considering
"objective indicia of national consensus" about
LWOP sentences imposed against juvenile nonhomicide
offenders. Id. at 62. It commented that (at that
time) thirteen states prohibited LWOP sentences for juvenile
nonhomicide offenders. Thirty-seven states, and the federal
courts, permitted LWOP for juvenile nonhomicide offenders,
but the sentence very rarely was imposed.
on a 2009 study and its own independent research, the Court
determined that across the nation only 123 juvenile offenders
were serving LWOP sentences for nonhomicide offenses.
See P. Annino, D. Rasmussen, & C. Rice,
Juvenile Life without Parole for Non-Homicide Offenses:
Florida Compared to Nation, 14 (Sept. 14, 2009)
("Juvenile LWOP Study"). Florida accounted
for 77 of those offenders and another 10 states accounted for
the remaining 46. Thus, while 38 jurisdictions permitted
juvenile nonhomicide offenders to be sentenced to LWOP, only
11 jurisdictions had imposed that sentence and, with the
exception of Florida, they did so "quite rarely."
Id. at 64.
the practice of imposing LWOP sentences against juvenile
nonhomicide offenders was not as rare as the practices had
been in the death penalty cases where the Court had adopted
categorical bars, see, e.g., Atkins, 536
U.S. at 316 (5 executions of "mentally retarded"
defendants over 13 years), it was "exceedingly
rare" when measured against the number of juveniles
convicted of nonhomicide crimes each year. Graham,
560 U.S. at 67. In the Court's view, it was
"'fair to say that a national consensus [had]
developed against it.'" Id. (quoting
Atkins, 536 U.S. at 316).
Court then considered whether in this context LWOP sentences
are justified by the "culpability of the
offenders." Id. In doing so, it followed the
same rationale undergirding its decision in Roper to
categorically prohibit the death penalty for juvenile
offenders. In Roper, the defendant was convicted of
murder, burglary, and kidnapping, committed when he was 17,
and was sentenced to death. Reasoning that the death penalty,
being the worst punishment, should be reserved for the worst
offenders, the Supreme Court identified "[t]hree general
differences between juveniles under 18 and adults [which]
demonstrate that juvenile offenders cannot with reliability
be classified among the worst offenders[.]" Id.
at 569. They suffer from "'[a] lack of maturity and
an underdeveloped sense of responsibility'" that
"'often result in impetuous and ill-considered
actions and decisions.'" Id. (quoting
Johnson v. Texas, 509 U.S. 350, 367 (1993)). They
"are more vulnerable or susceptible to negative
influences and outside pressures, including peer
pressure." Id. And their characters are
"not as well formed as that of an adult. The personality
traits of juveniles are more transitory, less fixed."
Id. at 570. Due to these differences, juveniles have
"diminished culpability" and once that "is
recognized, it is evident that the penological justifications
for the death penalty apply to them with lesser force than to
adults." Id. at 571. The Roper Court
rejected the argument that a categorical bar was unnecessary
because the criminal justice system already provides
case-by-case consideration of mitigating factors, including
the age of the offender. It found that the "differences
between juvenile and adult offenders are too marked and well
understood to risk allowing a youthful person to receive the
death penalty despite insufficient culpability."
Id. at 572-73.
the Court in Graham examined the "penological
justifications for the sentencing practice" of LWOP,
i.e., retribution, deterrence, incapacitation, and
rehabilitation, and found that none of them supported LWOP
sentences for juvenile nonhomicide offenders. Id. at
71-74. The "'heart of the retribution rationale is
that a criminal sentence must be directly related to the
personal culpability of the criminal offender.'"
Id. at 71 (quoting Tison v. Arizona, 481
U.S. 137, 149 (1987)). Once again relying on Roper,
the Court reasoned that "'the case for retribution
is not as strong with a minor as with an adult, '"
and "becomes even weaker with respect to a juvenile who
did not commit homicide." Id. (quoting
Roper, 543 U.S. at 571). Juveniles "'will
be less susceptible to deterrence[, ]'" id.
(quoting Roper, 543 U.S. at 571), because they lack
maturity and have an "'underdeveloped sense of
responsibility[.]'" Id. at 72 (quoting
Johnson, 509 U.S. at 367). LWOP sentences have
little deterrent effect because they are imposed so rarely.
Id. Incapacitation is not an adequate justification
because one cannot reasonably assume that a juvenile
nonhomicide offender "forever will be a danger to
society[.]" Id. at 72. And the LWOP penalty
runs contrary to the goal of rehabilitation because it is
based on an "irrevocable judgment" that a juvenile
nonhomicide offender lacks capacity for change and is equally
culpable as an adult offender. Id. at 74.
Graham Court concluded that the national consensus
against LWOP sentences for juveniles, the diminished
culpability of juveniles, and the absence of penological
justifications together warranted a departure from the
ordinary "case-by-case proportionality approach, "
id. at 77, for the imposition of "'the
second most severe penalty permitted by law'"
against a juvenile for a nonhomicide crime. Id. at
69 (quoting Harmelin, 501 U.S. at 1001). It
emphasized that a LWOP sentence "alters the
offender's life by a forfeiture that is irrevocable[,
]" and "deprives the convict of the most basic
liberties without giving hope of restoration[.]"
Id. at 69-70. "[T]his sentence 'means
denial of hope; it means that good behavior and character
improvement are immaterial; it means that whatever the future
might hold in store for the mind and spirit of [the convict],
he will remain in prison for the rest of his days."
Id. at 70-71 (quoting Naovarath v. State,
779 P.2d 944, 944 (Nev. 1989)) (second alteration in
Graham). For the same reasons the Court explained in
Roper, juveniles cannot "'reliab[ly] be
classified among the worst offenders[, ]'" and
therefore are undeserving, across the board, of such a harsh
sentence. Id. at 68 (quoting Roper, 543
U.S. at 569). Indeed, LWOP "is an especially harsh
punishment for a juvenile" because "a juvenile
offender will on average serve more years and a greater
percentage of his life in prison than an adult
offender." Id. at 70.
The Court concluded:
In sum, penological theory is not adequate to justify life
without parole for juvenile nonhomicide offenders. This
determination; the limited culpability of juvenile
nonhomicide offenders; and the severity of life without
parole sentences all lead to the conclusion that the
sentencing practice under consideration is cruel and unusual.
This Court now holds that for a juvenile offender who did
not commit homicide the Eighth Amendment forbids the sentence
of life without parole.
Id. at 74 (emphasis added). Further refining its
holding, the Court went on to explain:
A State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime. What the
State must do, however, is give defendants like Graham some
meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. It is for the
State, in the first instance, to explore the means and
mechanisms for compliance. It bears emphasis, however, that
while the Eighth Amendment prohibits a State from
imposing a life without parole sentence on a juvenile
nonhomicide offender, it does not require the State to
release that offender during his natural life. Those who
commit truly horrifying crimes as juveniles may turn out to
be irredeemable, and thus deserving of incarceration for the
duration of their lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain
behind bars for life. It does prohibit States from making the
judgment at the outset that those offenders never
will be fit to reenter society.
Id. at 75 (emphasis added).
years later, in Miller v. Alabama, 567 U.S. 460
(2012), the Supreme Court held that mandatory LWOP
sentences for juvenile homicide offenders violate
the Eighth Amendment, categorically. The Court reasoned that
mandatory LWOP penalty schemes "prevent the sentencer
from taking account of" the diminished culpability of
removing youth from the balance-by subjecting a juvenile to
the same life-without-parole sentence applicable to an
adult-these laws prohibit a sentencing authority from
assessing whether the law's harshest term of imprisonment
proportionately punishes a juvenile offender."
Id. at 474. In addition, mandatory LWOP sentences
prevent the sentencer from taking the "'mitigating
qualities of youth'" into account. Id. at
476 (quoting Johnson, 509 U.S. at 367). The Court
a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest
possible penalty for juveniles. By requiring that all
children convicted of homicide receive lifetime incarceration
without possibility of parole, regardless of their age and
age-related characteristics and the nature of their crimes,
the mandatory-sentencing schemes before us violate this
principle of proportionality, and so the Eighth
Amendment's ban on cruel and unusual punishment.
Id. at 489., 
case at bar, the appellant contends his 100-year sentence,
comprising four consecutive 25-year sentences, is the
functional equivalent of a LWOP sentence for nonhomicide
crimes, and therefore violates the Eighth Amendment under
Graham. Because he will not be eligible for parole
until he has served 50% of each consecutive sentence, the
earliest he may be released is 2054, when he will be 67 years
old. See Md. Code (1999, 2008 Repl. Vol.), §
7-301(c)(1)(i) of the Correctional Services Article
("CS"). He argues that by imposing a sentence with
a 50-year non-parole period, the court denied him a
"meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation" while he is of
an age to have the chance for reconciliation with society and
fulfillment outside prison, contrary to the Cruel and Unusual
Punishments Clause. See Graham, 560 U.S. at
He maintains further that even if the length of the
non-parole portion of his sentence does not violate the
Eighth Amendment, once he becomes parole eligible, the
Maryland parole system will not afford him a "meaningful
opportunity" for release. He asks this Court to vacate
all four sentences for first degree assault and remand the
case to the circuit court for resentencing "in
accordance with Graham and its progeny."
State counters that the appellant was not sentenced to LWOP;
rather, he was given four consecutive term-of-years
sentences, all within the maximum allowed by law and each for
a crime against a different victim. It points out that the
Supreme Court has never held a term-of-years sentence
categorically unconstitutional and maintains there are no
"principled bases for substituting the statutory maximum
set by the legislature with an ad hoc statutory maximum as
defined by an appellate court." Furthermore, the State
argues, the appellant may not challenge the constitutionality
of the Maryland parole statutes in a motion to correct an
illegal sentence and, in any event, the parole statutes
require the Parole Commission to consider "demonstrated
maturity and rehabilitation" in assessing whether to
grant parole to a juvenile nonhomicide offender.
seven years since the Supreme Court decided Graham,
courts across the country have grappled with what impact, if
any, it has on term-of-years sentences for juveniles
sentenced for nonhomicide crimes, with varying results.
See Moore v. Biter, 742 F.3d 917, 920 (9th Cir.
2014) (dissent from denial of rehearing en banc)
(discussing the split in authority and collecting cases). We
shall discuss some of these cases below.
Graham does not apply to consecutive term-of-years
sentences imposed for multiple offenses
courts in five states-Arizona, Louisiana, Virginia, Colorado,
and Missouri-have held that Graham's categorical
prohibition does not apply to multiple term-of-years
sentences for multiple offenses that, cumulatively, exceed a
juvenile offender's natural life expectancy. See
State v. Kasic, 265 P.3d 410 (Ariz.Ct.App. 2011);
State v. Brown, 118 So.3d 332 (La. 2013);
Vasquez v. Commonwealth of Virginia, 781 S.E.2d 920
(Va. 2016), cert. denied U.S., 137 S.Ct. 568 (2016);
Lucero v. People, 394 P.3d 1128 (Co. 2017);
People v. Rainer, 394 P.3d 1141 (Co. 2017);
Willbanks v. Dep't of Corrections, S.W.3d, 2017
WL 2952445 (Mo. 2017), pet. for cert.
filed, No. 17-165 (Jul. 28, 2017). Some of these courts
have held that Graham never applies outside of LWOP
sentences. Others have held that even if Graham
might apply to one term-of-years sentence for a single
offense that is so lengthy as to be a de facto LWOP
sentence, it cannot apply to a lengthy aggregate sentence
resulting from a multitude of offenses committed by the
(2011): State v. Kasic, 265 P.3d 410
defendant was convicted of "thirty-two felonies arising
from six arsons and one attempted arson committed over a
one-year period beginning when he was seventeen years of
age." 265 P.3d at 411. He received an aggregate sentence
of 139.75 years. On appeal, he argued that "the
'reasons underlying the Court's decision in
Graham [were] applicable to juveniles, such as
[him], serving a term-of-years sentence exceeding the
juvenile's life expectancy.'" Id. at
414 (second alteration in original).
Arizona Court of Appeals disagreed, stating that the opinion
in Graham "made clear" that the case only
applied to juvenile offenders sentenced to life without
parole; therefore, "Graham does not
categorically bar the sentences imposed in this case."
Id. at 415. The court "decline[d] to extend
[Graham's] reasoning in the manner [the
defendant] urge[d]." Id. It proceeded with a
conventional proportionality review, "considering all of
the circumstances of [the defendant's] case[, ]"
including the "gravity of the offenses and the severity
of the combined sentence, " and concluded that the
"sentences [were] not 'constitutionally
excessive.'" Id. Noting that the defendant
did not receive any single sentence longer than 15.75 years,
and relying upon the "general rule" that the court
will "not consider the imposition of consecutive
sentences in the proportionality inquiry,
" the court found that "different
considerations apply to consecutive term-of-years sentences
based on multiple counts and multiple victims."
Id. at 415-16. The "sentences, viewed
individually and in the aggregate, further Arizona's
penological goals and thus reflect a rational legislative
judgment, entitled to deference." Id. at 416
(citation and quotation marks omitted).
(2013): State v. Brown, 118 So.3d at 332
defendant was convicted of one count of aggravated
kidnapping, for which he was sentenced to life, and four
counts of armed robbery, for which he was sentenced to four
concurrent terms of 10 years. He was 16 when he committed the
offenses. The court originally had imposed concurrent
sentences, without parole, but amended the sentences
post-Graham. The State took issue with the
amendments to the term-of-years sentences. The case came
before the Supreme Court of Louisiana on the question
"whether, and to what extent, the . . . decision in
Graham applies in cases in which the juvenile
offender committed multiple offenses resulting in cumulative
sentences matching or exceeding his life expectancy without
the opportunity of securing early release from confinement on
parole." 118 So.3d at 335. Observing that
Graham did not include any "analysis of
sentences for multiple convictions and provide[d] no guidance
on how to handle such sentences, " the court concluded
that Graham does "not prohibit consecutive term
of year sentences for multiple offenses committed [by a
juvenile], even if they might exceed a defendant's
lifetime." Id. at 341. (As we shall discuss,
infra, the same court later reached a different
result in addressing a lengthy term-of-years sentence against
a juvenile for one offense.)
(2016): Vasquez v. Commonwealth of Virginia, 781 S.E.2d
they were 16 years old, the defendants broke into a
townhouse, stole property, and repeatedly raped and sexually
assaulted the female occupant at knifepoint. In a joint jury
trial, Vasquez was convicted of eighteen felonies and
Valentin was convicted of twelve felonies. These crimes
included forcible vaginal and anal rape, breaking and
entering while armed with a deadly weapon, forcible fellatio,
abduction, and robbery. The court sentenced each defendant to
multiple term-of-years sentences "which, in the
aggregate, equaled 283 years for Vasquez, with 150 years
suspended, and 148 years for Valentin, with 80 years
suspended." 781 S.E.2d at 926. As a result, Vasquez
would serve 133 years of active incarceration and Valentin
would serve 68 years. Pursuant to Virginia law, both would
become eligible for parole upon reaching the age of 60.
Id. at 924 n.3.
consolidated appeal, the Supreme Court of Virginia held that
Graham is not implicated for "multiple
term-of-years sentences imposed on multiple crimes that, by
virtue of the accumulation, exceed the criminal
defendant's life expectancy." 291 Va. at 925. The
multiple sentences imposed by the trial court were
"nothing like Graham, which ...