Circuit Court for Wicomico County Case No. 22K-16-000031
Nazarian, Raker, Irma S. (Senior Judge, Specially Assigned),
Philip Daniel Thomas was resentenced in the Circuit Court for
Wicomico County to a term of incarceration of eighteen years
for kidnapping, with the sentence for second-degree assault
merged, and one year concurrent for driving under the
influence. Appellant presents the following question for our
"Did the trial court on remand impose an illegal
shall hold that the trial court imposed an illegal sentence
because upon resentencing appellant, the court increased his
sentence. Accordingly, we shall vacate appellant's
sentences and remand to the circuit court for resentencing.
was convicted on June 15, 2016, in the Circuit Court for
Wicomico County of kidnapping, second-degree assault, false
imprisonment, driving under the influence, and driving while
impaired. The trial court imposed a total sentence
of eighteen years' incarceration as follows: a term of
incarceration of fifteen years for kidnapping, three years to
be served consecutive to second-degree assault, and one year
concurrent for driving under the influence. On
appellant's direct appeal, this Court held that
appellant's sentence for second-degree assault merges
into his kidnapping sentence, vacated all of appellant's
sentences, and remanded for resentencing with instructions
that "the total of appellant's new sentences not
exceed the current total of eighteen years'
imprisonment." Thomas v. State, No. 997, Sept.
Term 2016 (filed June 8, 2017).
resentencing, the State and defense counsel presented their
recommendations to the trial court as follows:
"[THE STATE]: We'd point out that the guidelines on
count one, kidnapping, are twelve to eighteen years. I think
the simplest way is to keep the sentence exactly the same,
asking for eighteen years on the kidnapping; count two,
assault second degree will merge into the kidnapping pursuant
to the mandate; count three merges pursuant to the mandate
and Your Honor's sentencing at trial, and . . .
Count three is false imprisonment . . .
And then the DUI we ask for the same sentence, again one year
concurrent . . .
So we end up exactly where we left off. It's an
eighteen-year sentence. It complies with, I think, sort of
the exact instructions of the Court of Special Appeals.
That's our request . . .
[DEFENSE COUNSEL]: I guess the short response that I would
make, Your Honor, is I don't think that that's the
cleanest way to take care of this problem. And I think it
actually creates a new problem. The new problem is the
nature of kidnapping is considered a violent crime for parole
purposes, second-degree assault is not considered a violent
crime for parole purposes, so were the Court to follow what
[the State] is asking the Court to do, which is to reimpose
an eighteen-year total sentence but to have it all be
pursuant to kidnapping, what the Court is, in effect, doing
is imposing a more severe sentence than was previously
THE COURT: How could it be more severe than previously
[DEFENSE COUNSEL]: Well, it's more severe because
you're imposing, in effect, three additional years with
respect to kidnapping.
THE COURT: You mean [it] was fifteen years ...