Parker v. State

193 Md.App. 469

997 A.2d 912

Omar PARKERv.STATE of Maryland.

No. 2117, Sept. Term, 2009.

Court of Special Appeals of Maryland.

July 2, 2010.

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Brian M. Saccenti (Elizabeth L. Julian, Acting Public Defender, on the brief) Baltimore, MD, for appellant.

Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, WOODWARD and MATRICCIANI, JJ.

HOLLANDER, J.

This case comes before us for the second time. Following a trial in 2007, a jury in the Circuit Court for Baltimore City convicted Omar Parker,¹ appellant, of second degree assault, in violation of Md.Code (2002, 2005 Supp.), § 3-203 of the Criminal Law Article (“C.L.”), and retaliation for testimony, in violation of C.L. § 9-303.² The court initially sentenced appellant to five years' incarceration for second degree assault and, pursuant to C.L. § 9-303(c)(2), to a concurrent term of twenty years for “retaliation for testimony.” The court dated both sentences from February 17, 2006, the date of appellant's arrest. This Court subsequently affirmed appellant's convictions but vacated his sentence for retaliation and remanded for a new sentencing for that offense. See Parker v. State, 185 Md.App. 399, 404, 970 A.2d 968 (2009) (“ Parker I ”).

On October 20, 2009, the circuit court imposed a term of five years' incarceration for retaliation, commencing on July 2, 2009, the date when the Maryland Division of Correction (“DOC”) released appellant with respect to his assault conviction and transferred him to the Baltimore City Detention Center (“BCDC”). At the resentencing, the circuit court did not award appellant any credit for the time he had served from his arrest on February 17, 2006, until his transfer to BCDC on July 2, 2009.

Appellant's second appeal followed. He presents one question: “Did the circuit court err in failing to give Mr. Parker credit against his five year sentence for witness retaliation for the time he served between February 17, 2006, and July 1, 2009?”

For the reasons set forth below, we shall vacate and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND³

This matter is rooted in an incident that occurred on November 29, 2005, when appellant threatened Kya Hicks with a gun. See Parker I, 185 Md.App. at 403-09, 970 A.2d 968. Appellant was convicted on June 4, 2007. At the initial sentencing proceeding on July 26, 2007, the court said:

Well Mr. Parker, also know [sic] as Mr. Anderson, there's no question that you're an intelligent man a well spoken man but you clearly have no insight into your behavior. You have no remorse. You've no desire to change.

You have a serious drug history and the basis of this case [sic] strikes at the very heart of the criminal justice system. Intimidation of witnesses undermines everything that the criminal justice system stands for.

So as far as this court's concerned, its [sic] this kind of case which is the most serious case that we face in our society today.

Accordingly, in Parker I the court imposed a sentence of five years' incarceration for second degree assault and a concurrent term of twenty years for retaliation. The court inquired as to “the start date,” and defense counsel responded, “February 17, 2006.” The court said: “I will date that sentence from ... February 17, 2006.”

Appellant lodged his first appeal on August 16, 2007. He argued inter alia, that the circuit court erred in sentencing him to an enhanced term of twenty years for witness retaliation, because the jury was never asked to determine whether the retaliation related to a drug crime or a crime of violence, as required for an enhanced twenty-year sentence under C.L. § 9-303(c)(2).⁴ Parker I, 185 Md.App. at 409-13, 970 A.2d 968. In an Opinion filed on May 7, 2009, the Parker I Court agreed. Id. at 415, 970 A.2d 968. Therefore, the Court vacated the sentence for retaliation and remanded for resentencing under C.L. § 9-303(c)(1).⁵Id. at 421, 970 A.2d 968.

As to the retaliation conviction, the trial court held a second sentencing hearing on October 20, 2009, at which the State asked the court “to impose a five-year sentence,” which was the maximum allowed under the circumstances. The State was silent as to whether the sentence should be consecutive or concurrent. The following exchange is pertinent:

[APPELLANT'S COUNSEL]: Your Honor, given the opinion from the Court of Special Appeals and all the surrounding case law, given the fact that he's already given 20 years, I'm going to submit.

THE COURT: So you're not asking for less than five years?

[APPELLANT'S COUNSEL]: No.

Defense counsel indicated to the court that appellant “was released from the Division of Correction and sent to the jail on July the 2nd.” ⁶ The following colloquy ensued:

THE COURT: All right. Well, given the fact that the court viewed this case as such a serious violation, since it was one of the first matters in which there was testimony that there was retaliation for testifying, and since the Court of Special Appeals indicated that-that because the jury was not instructed to find that the retaliation had occurred in connection with a felony, that the court could not enhance the penalty.

And the court had given Mr. Parker the 20 years as the enhanced penalty. Therefore, the court, in this case, ... as per the instructions of the Court of Special Appeals with regard to the limits, this court feels that five years is the appropriate sentence. And I will give the defendant five years, and I'll date it from July 2nd, 2009 to give him credit for all time that he's served on this charge....

[APPELLANT'S COUNSEL]: So, Your Honor, for clarification, so his sentence is going to be [sic] begin on the date that he was actually transferred from the Division of [C]orrections?

THE COURT: Yes. Yes.

* * *

[APPELLANT'S COUNSEL]: ... My client is concerned that the credit would go back to, I believe, it's February of 2006.

THE COURT: I asked him when he was transferred to the Baltimore City Jail, and you just told me July 2nd. So that's the day it's [sic] going to get because he was serving a sentence on the assault in the second degree. Although if he was still at the Division of Correction, my sentence with regard to retaliation would be consecutive to that sentence.

Because he completed that sentence [for assault], then I'm willing to give him credit for all the time he's been held at the City Jail pending sentencing in this matter.

[APPELLANT'S COUNSEL]: Your Honor, I'm going to object then. Because under the case law he can't be given a consecutive anyway [sic]. He's been in, he served pretrial from-

THE COURT: I'm not giving him a consecutive sentence. I'm giving him five years and I'm dating it from July 2nd 2009.

This appeal followed.

DISCUSSION

I.

Appellant argues that the circuit court erred by failing to credit him for the time he served between his arrest on February 17, 2006, and his release to the BCDC on July 1, 2009, a total of 1,231 days.⁷ According to appellant, he served that time for the initial sentences of five years for assault and a concurrent term of twenty years for retaliation. Therefore, appellant maintains that, pursuant to Md.Code (2001, 2007 Supp.), § 6- 218 of the Criminal Procedure Article (“C.P.”), he is entitled to credit on the new retaliation sentence for all the time he previously spent in custody on that sentence.

The State insists that C.P. § 6-218(d) applies here. In its view, the court was not required to grant appellant credit for the time he served in connection with his first sentencing.

We pause to review the relevant statutory provisions. C.P. § 6-218, titled “Credit against sentence for time spent in custody,” provides, in part: ⁸

(b) In general.-(1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time spent in the custody of a correctional facility, ... or other unit because of:

(i) the charge for which the sentence is imposed; or

(ii) the conduct on which the charge is based.

(2) If a defendant is in custody because of a charge that results in a dismissal or acquittal, the time that would have been credited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or commitment was filed during that custody.

(3) In a case other than a case described in paragraph (2) of this subsection, the sentencing court may apply credit against a sentence for time spent in custody for another charge or crime.

(c) Credit when prior sentence set aside.-A defendant whose sentence is set aside because of a direct or collateral attack and who is reprosecuted or resentenced for the same crime or for another crime based on the same transaction shall receive credit against and a reduction of the term of a

definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time spent in custody under the prior sentence, including credit applied against the prior sentence in accordance with subsection (b) of this section.

(d) Credit when one of multiple sentences set aside.-A defendant who is serving multiple sentences, one of which is set aside as the result of a direct or collateral attack, shall receive credit against and a reduction of the remaining term of a definite or life sentence, or the remaining minimum and maximum terms of an indeterminate sentence, for all time spent in custody under the sentence set aside, including credit applied against the sentence set aside in accordance with subsection (b) of this section.

(e) Credit awarded at sentencing.-(1) The court shall award the credit required by this section at the time of sentencing.

(2) After having communicated with the parties, the court shall tell the defendant and shall state on the record the amount of the credit and the facts on which the credit is based.

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