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Thomas v. State

Court of Special Appeals of Maryland

November 28, 2018

PHILIP DANIEL THOMAS
v.
STATE OF MARYLAND

          Circuit Court for Wicomico County Case No. 22K-16-000031

          Kehoe, Nazarian, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Raker, J.

         Appellant 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 review:

"Did the trial court on remand impose an illegal sentence?"

         We 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.

         I.

         Appellant 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.[1] 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.[2] 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).

         At 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 imposed.
THE COURT: How could it be more severe than previously imposed?
[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 ...

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