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McCullough v. State

Court of Special Appeals of Maryland

August 30, 2017


         In the Circuit Court for Baltimore County Case No. K-04-CR-001787

          Eyler, 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. Rule 8-605.1.

          Eyler, Deborah S., J.

         This 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.


         On 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.

         Later 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.

         On 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.

         When 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."

         The 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.

         Eleven 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.

         The 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 Rights?
For the reasons set forth below, we shall affirm the order of the circuit court.



         The 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."[1] 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 . . . .").

         In 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.

         After 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.

         In the 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 1001.[2]

         The 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.[3] The Supreme Court held that sentencing juvenile offenders to LWOP for a nonhomicide crime is cruel and unusual punishment.

         The 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.[4] Thirty-seven states, and the federal courts, permitted LWOP for juvenile nonhomicide offenders, but the sentence very rarely was imposed.

         Relying 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.

         Although 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).

         The 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.

         Finally, 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.

         The 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).

         Two 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 juveniles:

         "By 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 concluded that

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.[5], [6]


         In the 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").[7] 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 75.[8] 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."

         The 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.


         In the 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.

         1. Graham does not apply to consecutive term-of-years sentences imposed for multiple offenses

         Appellate 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 juvenile offender.

         Arizona (2011): State v. Kasic, 265 P.3d 410

         The 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.[9] 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).

         The 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, "[10] 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).[11]

         Louisiana (2013): State v. Brown, 118 So.3d at 332

         The 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.)

         Virginia (2016): Vasquez v. Commonwealth of Virginia, 781 S.E.2d 920

         When 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.

         In a 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 ...

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