Circuit Court for Howard County Case No. 13-K-87-017022
Berger, Arthur, Beachley, JJ.
case is before us on appeal from an order of the circuit
court denying the motion to correct an illegal sentence filed
by David Andrew Hartless, appellant. In 1989, Hartless was
convicted of premeditated first-degree murder, robbery with a
deadly weapon, and lesser-included offenses. He was sentenced
to life in prison for first-degree murder and twenty
years' imprisonment for robbery with a deadly weapon. His
convictions were affirmed on direct appeal. Hartless v.
State, 327 Md. 558, 560 (1992). Hartless was seventeen
years old when he committed the crimes.
the decisions of the United States Supreme Court in
Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, __U.S.__, 136 S.Ct. 718
(2016), Hartless filed a motion to correct what he alleged to
be an illegal sentence. Hartless asserted that his sentence
was unconstitutional pursuant to recent Supreme Court
precedent addressing life sentences without parole for
juvenile homicide offenders. The circuit court denied
noted a timely appeal. This Court stayed Hartless' appeal
pending the decision of the Court of Appeals in Carter v.
State, No. 54, Sept. Term, 2017; Bowie v.
State, No. 55, Sept. Term 2017; and McCullough v.
State, No. 56, Sept. Term, 2017, because the cases
raised issues relating to whether a life sentence with the
possibility of parole or a lengthy term of years sentence
constituted an unconstitutional de facto life
without parole sentence. On August 29, 2018, the Court of
Appeals issued an opinion in Carter v. State, 461
Md. 295 (2018), reconsideration denied, October 4,
2018. The Court's consolidated opinion resolved the cases
of Carter, Bowie, and McCullough.
Following the issuance of the Carter opinion, we
lifted the stay in Hartless' appeal and the appeal
proceeded. In this appeal, Hartless presents three issues for
our consideration, which we set forth verbatim:
1. What is the scope of Carter's requirement
that all juvenile offenders are entitled to an individualized
sentencing hearing that takes into account the offender's
youth, and based on Carter's interpretation of
this requirement, did the circuit court err in determining
that Mr. Hartless' life plus twenty year sentence,
imposed without an individualized sentencing, was legal?
2. Presenting an issue that was not ruled upon in
Carter, did the circuit court err in not finding Mr.
Hartless' life sentence illegal since the statutes and
regulations governing the Maryland parole system authorize
the Parole Commission to divert any parole application to a
request for executive clemency?
3. An argument raised for preservation purposes, is the Court
of Appeals' decision in Carter in contravention
with Supreme Court precedent in Miller and
Montgomery, which held that a non-incorrigible
juvenile offender has a substantive right to release upon a
showing of demonstrated maturity and rehabilitation?
respect to the first issue raised by Hartless, for reasons we
shall explain, we reject Hartless' premise that
Carter requires an individualized sentencing hearing
that takes into account the offender's youth for all
juvenile homicide offenders. We shall further hold that the
availability of executive clemency as an alternative to
parole does not render Hartless' sentence
unconstitutional. For reasons we shall explain, we do not
address the merits of the third issue. We shall affirm.
forth briefly the factual background underlying this appeal.
The underlying murder occurred in 1987 when Hartless was
seventeen years old. Hartless entered a convenience store in
Columbia, Maryland, intending to rob the store. A
twenty-year-old store clerk, Angelica Velazco, was alone in
the store at the time. Hartless ordered Velazco to lie on the
floor. Velazco complied, but Hartless smashed a bottle over
her head and subsequently stabbed her to death.
State sought a sentence of life without the possibility of
parole for Velazco's murder, but the trial court ruled
that it was not an allowable sentence at the time of
Hartless' crime. The circuit court subsequently sentenced
Hartless to life imprisonment for murder. Defense counsel
acknowledged that the court was obligated to impose a life
sentence for the murder conviction but asked the court to
issue a concurrent sentence for the robbery. Defense counsel
specifically pointed to Hartless' age at the time of the
offense, Hartless' difficult childhood circumstances, and
the corrosive influence of Hartless' stepfather, Leo
Rites. Defense counsel also asked for Hartless to be sent to
the Patuxent Institution where he would be able to receive
psychiatric care and treatment.
circuit court imposed the mandatory life sentence for the
first-degree murder conviction and a consecutive twenty-year
term of imprisonment for robbery with a deadly weapon. The
court noted Hartless' age at the time the crime was
committed but emphasized that Hartless had committed the
"ultimate crime" in a "rather vicious"
manner and emphasized that the victim was "rather
young." The circuit court expressly commented that it
was "fully cognizant of the various psychological and
January 23, 2017, Hartless filed the motion to correct
illegal sentence pursuant to Maryland Rule 4-345(a) that
ultimately gave rise to this appeal. He argued that his
sentence was illegal based upon the United States Supreme
Court cases of Miller, supra, 567 U.S. 460,
and Montgomery, supra, 136 S.Ct. 718. We
shall discuss these cases in further detail infra,
but it is helpful to set forth the holdings of each case here
in order to provide context for Hartless' motion. In
Miller, the Court held that "mandatory life
without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment's prohibition
on 'cruel and unusual punishments.'" 567 U.S. at
Montgomery Court held that Miller announced
a new substantive rule that applies retroactively to
convictions that were final prior to the Miller
decision. 136 S.Ct. at 736. The Montgomery Court
explained that Miller "requires a sentencer to
consider a juvenile offender's youth and attendant
characteristics before determining that life without parole
is a proportionate sentence." Id. at 734. The
Court further explained that Miller "determined
that sentencing a child to life without parole is excessive
for all but 'the rare juvenile offender whose crime
reflects irreparable corruption.'" Id.
(quoting Miller, 567 U.S. at 479-80).
this backdrop, Hartless filed a motion to correct what he
alleged to be an illegal sentence, arguing that his sentence
was unconstitutional as a de facto sentence of life
without parole. Hartless asserted that a sentence of life
with parole is effectively equivalent to life without parole
in Maryland because there is no "meaningful opportunity
to obtain release" for individuals sentenced to life
with parole. Hartless contended that the circuit court had
not considered the factors set forth in Miller,
supra, before sentencing him to what was effectively
a sentence of life without parole, and, therefore, the
circuit court's sentence was illegal.
circuit court, in a written order, observed that there was
"not yet precedent" on the constitutionality of
Hartless' life sentence with parole. The circuit court
observed that Hartless had an upcoming parole hearing and had
"not yet been denied parole." The court found
Hartless' motion to be "premature" and denied
the motion without prejudice.
noted a timely appeal to this Court. The appeal was stayed
pending the Court of Appeals' decision in
Carter, Bowie, and McCullough,
supra, which presented the same theory underlying
Hartless' motion and argued that a life sentence in
Maryland "is effectively . . . life without parole,
because the laws governing parole in Maryland do not provide
[an inmate] with a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation."
Carter, supra, 461 Md. at 307. The Court of
Appeals rejected this theory, holding in Carter that
the petitioners' life sentences were legal because
"the laws governing parole of inmates serving life
sentences in Maryland, including the parole statute,
regulations, and a recent executive order adopted by ...