State v. Thomas

465 Md. 288

214 A.3d 132

STATE of Maryland

v.Philip Daniel THOMAS

No. 73, Sept. Term, 2018

Court of Appeals of Maryland.

August 9, 2019

Argued 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.

Argued by Michael R. Braudes, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J.,^* Greene, McDonald, Watts, Hotten, Getty, Booth, JJ.

McDonald, J.

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 court's 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 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.

IBackground

A. Statutory Provisions concerning Punishment for Criminal Offenses

The 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.

1. A Limit on Resentencing – CJ § 12-702(b)

If a 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 appear;

(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.

2. Eligibility for Release from Imprisonment on Parole

The 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, 192 A.3d 695 (2018).

This 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).

B. Procedural History

Mr. 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.¹

2016 Sentence and Appeal

On June 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."²

Mr. 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, 133 A.3d 1125 (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).³

2017 Sentence and Appeal

On 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.

Because kidnapping is a "crime of violence,"⁴ 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.

The 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.

Mr. Thomas appealed the new sentence, reiterating the argument he made in the Circuit Court. The Court...