[Copyrighted Material Omitted]
Circuit Court for Wicomico County, Case No. 22-K-16-000031.
W. Newton Jackson, III, Judge
by Andrew J. DiMiceli, Asst. Atty. Gen. (Jer Welter, Asst.
Atty. Gen. and Brian E. Frosh, Atty. Gen. of Maryland of
Baltimore, MD), on brief, for Petitioner.
by Michael R. Braudes, Asst. Public Defender (Paul B.
DeWolfe, Public Defender of Maryland of Baltimore, MD), on
brief, for Respondent.
before: Barbera, C.J.,[*] Greene, McDonald, Watts, Hotten,
Getty, Booth, JJ.
Md. 291] On 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
courts discretion in those circumstances. In general, a
circuit court ordinarily may not impose a "more
severe" sentence on remand following an appeal.
Respondent 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
[465 Md. 292] 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.
Although 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.
Another 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.
A. Statutory Provisions concerning Punishment for
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 courts 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
defendants eligibility for release on parole from
imprisonment for certain offenses.
Md. 293] 1. A 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 courts 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.
Maryland 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 defendants 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
defendants aggregate [465 Md. 294] sentence for violent
crimes or (2) one-fourth of the defendants total aggregate
sentence. CS § 7-301(c). Other statutory provisions not
pertinent to this case establish other constraints on an
inmates eligibility for parole. E.g., Maryland
Code, Criminal Law Article, § 14-101(c)-(f); see
also Carter v. State, 461 Md. 295, 318-22, 192
A.3d 695 (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).