Circuit Court for Wicomico County Case No. 22-K-16-000031
Argument: May 2, 2019
Barbera, C.J. [*] Greene McDonald Watts Hotten Getty
occasion, a court may be called upon to resentence a
defendant in a criminal case after an appeal. This can happen
when a conviction is overturned on appeal and the defendant
is again convicted following remand, or when a conviction is
upheld but the initial sentence is determined to be illegal.
In both instances, the defendant must be sentenced again. A
State statute limits the sentencing court's discretion in
those circumstances. In general, a circuit court ordinarily
may not impose a "more severe" sentence on remand
following an appeal.
Philip Daniel Thomas was convicted of several crimes in the
Circuit Court for Wicomico County. He received an aggregate
sentence of 18 years in prison - 15 years for kidnapping, and
three years consecutive for second-degree assault. On direct
appeal the Court of Special Appeals vacated the sentence,
ruling that the kidnapping and assault convictions should
have merged for sentencing purposes. On remand, the Circuit
Court resentenced Mr. Thomas to 18 years in prison for the
kidnapping offense alone.
the new sentence was identical to the original sentence in
terms of the maximum duration of confinement, the parole
eligibility date under the new sentence was different. Under
his original sentence, Mr. Thomas would have been eligible
for parole after seven and one-half years; under the new
sentence, he would not become eligible for parole until he
had served nine years in prison.
appeal ensued, and the Court of Special Appeals held that his
new sentence was illegal as "more severe" than his
original sentence. We agree with the Court of Special Appeals
that two sentences of equal maximum length but with different
parole eligibility dates are not equivalent to one another.
The sentence with the later parole eligibility date is more
severe than the other.
Statutory Provisions concerning Punishment for Criminal
General Assembly sets general State policy on punishment for
criminal offenses in various statutes. For example, statutes
set forth the penalty that a court may impose for specific
offenses, specify maximum and minimum sentences, limit a
sentencing court's discretion in certain respects, and
establish minimum periods of confinement before a defendant
becomes eligible for release on parole. This case involves
two such statutes: (1) a statute that limits the discretion
of a sentencing court when a defendant is to be resentenced
following a successful appeal and (2) a statute that sets a
defendant's eligibility for release on parole from
imprisonment for certain offenses.
Limit on Resentencing - CJ §12-702(b)
conviction is reversed on appeal and the defendant is
convicted again, or if a sentence is overturned on appeal,
the defendant will need to be resentenced. A State statute
limits the sentencing court's discretion in those
circumstances. That statute provides:
If an appellate court remands a criminal case to a lower
court in order that the lower court may pronounce the proper
judgment or sentence, or conduct a new trial, and if there is
a conviction following this new trial, the lower court may
impose any sentence authorized by law to be imposed as
punishment for the offense. However, it may not impose a
sentence more severe than the sentence previously
imposed for the offense unless:
(1) The reasons for the increased sentence affirmatively
(2) The reasons are based upon additional objective
information concerning identifiable conduct on the part of
the defendant; and
(3) The factual data upon which the increased sentence is
based appears as part of the record.
Code, Courts & Judicial Proceedings Article
("CJ"), §12-702(b) (emphasis added). Thus, a
court may not impose a "more severe" sentence on
remand unless the three statutory criteria are met.
Eligibility for Release from Imprisonment on Parole
General Assembly has established different minimum periods of
imprisonment before a criminal defendant sentenced to a term
of imprisonment is eligible for release on parole, depending
on the offenses for which the defendant has been convicted. A
defendant is ordinarily eligible for parole after serving
one-fourth of the defendant's aggregate sentence.
Maryland Code, Correctional Services Article
("CS"), §7-301(b)(1). A defendant convicted of
a violent crime, however, is not eligible for parole until
the defendant has served "the greater of" (1)
one-half of the defendant's aggregate sentence for
violent crimes or (2) one-fourth of the defendant's total
aggregate sentence. CS §7-301(c). Other statutory
provisions not pertinent to this case establish other
constraints on an inmate's eligibility for parole. E.
g., Maryland Code, Criminal Law Article,
§14-101(c)-(f); see also Carter v. State, 461
Md. 295, 318-22 (2018).
case concerns whether parole eligibility established by
statute for a particular sentence is a factor in assessing
whether one sentence is "more severe" than another
for purposes of CJ §12-702(b).
Thomas was charged in the Circuit Court for Wicomico County
with various offenses arising from an incident in December
2015. Following a trial in June 2016, the jury found him
guilty of kidnapping, second-degree assault, false
imprisonment, driving under the influence of alcohol, and
driving while impaired.
Sentence and Appeal
17, 2016, the Circuit Court sentenced Mr. Thomas to 15 years
imprisonment on the kidnapping conviction, and three years
imprisonment on the second-degree assault conviction to run
consecutively to the sentence for kidnapping. The Circuit
Court also sentenced Mr. Thomas to one year for driving under
the influence, to be served concurrently with the sentences
on the other charges. The false imprisonment and driving
while impaired convictions were merged, respectively, into
the kidnapping and driving under the influence convictions
and did not result in separate sentences. Thus, the aggregate
sentence was 18 years imprisonment. We shall refer to this
sentence as the "2016 Sentence."
Thomas appealed, in part on the ground that the Circuit Court
erred in imposing separate sentences for the kidnapping and
second-degree assault convictions. The State conceded that
Mr. Thomas was correct as to that issue. In an unreported
opinion, the Court of Special Appeals also agreed, holding
that the second-degree assault conviction should have been
merged into the kidnapping conviction for purposes of
sentencing. Thomas v. State, 2017 WL 2482469 (2017).
The Court of Special Appeals vacated the 2016 Sentence and
remanded the case for resentencing. Apparently with CJ
§12-702(b) in mind, the Court of Special Appeals
instructed the Circuit Court that "the total of
appellant's new sentences not exceed the current total of
18 years' imprisonment." Id. at
*14. The intermediate appellate court also cited Twigg v.
State, 447 Md. 1, 30 (2016), in which this Court held
that, for purposes of CJ §12-702(b), the total aggregate
sentence after remand should be compared to the total
aggregate sentence prior to remand (as opposed to comparing
sentences for each individual count).
Sentence and Appeal
August 9, 2017, Mr. Thomas was resentenced. Consistent with
the direction from the Court of Special Appeals, the Circuit
Court merged the second-degree assault conviction into the
kidnapping conviction for sentencing purposes. Over a defense
objection, the court imposed a sentence of 18 years
imprisonment on the kidnapping count alone ("2017
Sentence"). The 2017 Sentence was thus identical to the
2016 Sentence in terms of the maximum amount of time that Mr.
Thomas could spend in prison - 18 years. But the two
sentences were not identical in another critical respect - at
least critical to one who must serve the sentence -
eligibility for parole.
kidnapping is a "crime of violence, " the minimum term
of imprisonment that Mr. Thomas would serve before becoming
eligible for parole was longer under the 2017 Sentence than
under the 2016 Sentence. The parole eligibility math for the
sentences imposed on Mr. Thomas works out as follows. Under
the 2016 Sentence, one-half of the aggregate sentence for
violent crimes (15 years for kidnapping) would be seven and
one-half years while one-fourth of the total aggregate
sentence (18 years) would be four and one-half years. The
greater of those two periods is seven and one-half
years - which is the period of incarceration that Mr. Thomas
would serve before becoming eligible for parole under the
2016 Sentence. Under the 2017 Sentence, one-half of the
aggregate sentence for violent crimes (18 years for
kidnapping) would be nine years - the period of incarceration
that Mr. Thomas would serve before becoming eligible for
parole under the 2017 Sentence.
upward change in the minimum term to be served by Mr. Thomas
before he became eligible for parole prompted the defense
objection to the 2017 Sentence in the Circuit Court. The
defense argued that the resulting delay in parole eligibility
under the 2017 Sentence compared to the 2016 Sentence meant
that the Circuit Court had effectively "increased"
Mr. Thomas' sentence when it imposed the 2017 Sentence,
in violation of the statutory proscription against imposing a
"more severe" sentence on remand.
Thomas appealed the new sentence, reiterating the argument he
made in the Circuit Court. The Court of Special Appeals
agreed that the 2017 Sentence was illegal because it violated
CJ §12-702(b). It vacated the 2017 Sentence, reasoning
that "a resentence that delays a defendant's parole
eligibility date, as in appellant's case, is a 'more
severe' sentence prohibited ...