Benedict v. State

WILNER, J. We granted certiorari to determine whether, when a court (1) imposes a sentence of imprisonment on a defendant, (2) suspends execution of all but a designated part of that sentence in favor of probation, and (3) later revokes the probation, the court may direct execution of anything more than the previously suspended part of the sentence. In this case, the Circuit- Court for Washington County purported to do so, ³ although it is not entirely clear whether, in fact, it did so. Whatever its intent, we shall conclude that its authority was limited to the previously suspended part of the sentence and shall remand the case for issuance of a new judgment in conformance with the pronouncements in this Opinion. BACKGROUND On November 2, 1998, appellant was convicted, on guilty pleas, of second degree assault and malicious destruction of property.

He was sentenced on the assault charge to ten years imprisonment, with all but 18 months suspended. For the malicious destruction of property, he was sentenced to prison for three years, with all but 18 months suspended. In both instances, appellant was to be on unsupervised probation for three years following his release. The two sentences were directed to run concurrently with each other.

The 18-month confinement period would have expired on May 2, 2000. Appellant was released on mandatory supervision, however, on August 9, 1999. That was because, according to the Division of Correction, he had accumulated a total of 267 days of diminution credits — 180 days of good conduct credits (10 days/month deducted in advance from the 18 month unsuspended portion of his sentence), 35 days of earned industrial credits, and 52 days of earned special project credits. According to our calculation, appellant served 280 days in prison.

On August 29, 1999 — 20 days after his release — appellant senselessly battered a 19-year old man, rendering him unconscious for at least three days. Appellant was arrested on September 1 and charged with first and second degree assault and reckless endangerment. He was tried by a jury, convicted of second degree assault and reckless endangerment (the latter being merged into the former), and sentenced to ten years in prison. Appellant’s arrest resulted in a warrant charging him with a violation of the probation ordered under the 1998 sentences.

Proceedings on that warrant were apparently stayed pending ⁴ resolution of the new criminal case. He appeared before the court, with counsel, on August 29, 2000, and admitted to the violation. The court terminated the probation and directed, as to the assault conviction, that appellant “be committed to the Division of Correction for a period of 10 years. You have credit for time served, and this sentence will be consecutive to any sentence you’re now serving.” With respect to the malicious destruction conviction, the court said “three years Division of Correction, concurrent with [the sentence for assault] but consecutive to any sentences you’re now serving.” The docket entry in the assault case recorded the disposition as “SENTENCE: TEN (10) YEARS Division of Correction; Credit for time served HO days,” the sentence “to run Consecutive to any sentence now serving or obligated to serve.” (Emphasis added).

The docket entry in the malicious destruction case was similar: “SENTENCE: THREE (3) YEARS Division of Correction; Credit for time served HO days.” (Emphasis added). How the clerk arrived at the number 140 is unclear. 1 The court made no statement quantifying the number of days of credit. The transcript of the probation violation hearing shows only that the court pronounced the sentence as 10 years and that appellant would “have credit for time served.” Unhappy with the decision to run the execution of the 1998 sentences consecutive to the sentence imposed in 1999, appellant filed a motion with the sentencing judge to modify it and ⁵ a motion to have a three-judge panel review it. The motion to modify was denied on September 14, 2000; the motion for review was considered and, on October 12, 2000, the review panel declined to disturb the sentences.

Neither order said anything about the number of days of credit to which appellant was entitled, because no issue was raised with respect to it. In the order denying review, the panel described the effective sentences as ten years and three years, respectively, with “credit for time served.” In February, 2001, appellant filed a pro se petition for post-conviction relief, claiming that the sentences were illegal. The basis of the petition was that, as the sentences were imposed in 1998, they could not be made consecutive to the sentence imposed in 1999. After obtaining counsel, that petition was voluntarily withdrawn.

In May, 2001, appellant filed another pro se petition for post conviction relief raising the same issue. While that petition was pending, appellant filed a motion to correct an illegal sentence, reiterating his complaint about the 1998 sentence being made consecutive to the 1999 sentence and complaining as well that, by directing execution of more than the previously suspended part of the sentences, the court effectively had increased those sentences. On August 15, 2002, the court denied all relief, concluding that (1) it had the authority to “reimpose the original sentence, 10 years and 3 years, concurrent, with credit for time served and credits earned while in the Division of Correction before release on parole or 'probation” (emphasis added), and (2) it had the authority “to impose sentences to run consecutive to any new sentence being served, and is not required to run the VOP [violation of probation] sentences concurrent to any sentence received as a result of a subsequent conviction.” This appeal is from that order. Appellant no longer complains about the court’s having made the sentences consecutive to the 1999 sentence, but limits his complaint to its having directed execution of anything more than the previously suspended part of the sentence^, i.e., eight-and-a-half years of the sentence for assault and one-and-a-half years of the sentence for malicious destruction of property.

He contends that, if a ⁶ court imposes a “split sentence” and later revokes probation, it imposes an illegal sentence “when it imposes the entire sentence of imprisonment, both suspended and unsuspended portions, with credit for time served, instead of directing execution of only that part of the sentence which it had previously suspended.” DISCUSSION We noted initially some uncertainty as to the substance of the court’s disposition. In its August, 2000 ruling, the court clearly directed execution of the entire ten year sentence, less a credit only for “time served” which, despite the docket entry, would have to include the 280 days he served in a Division of Correction facility. The review panel construed the ruling in that manner. In its August, 2002 order denying appellant’s motion to correct illegal sentence, however, the court indicated that it had the authority to reimpose the sentence of ten years “with credit for time served and credits earned while in the Division of Correction before release on parole or probation.” (Emphasis added).

Whether the court intended that statement literally, as simply an expression of its authority, or whether it meant the statement to define its actual disposition is unclear. If the statement was intended to define the actual disposition, appellant would have received all that he sought and all to which he is entitled, as the credit against the ten years would have included the entire 18 months that was initially unsuspended — the 280 days that he actually served in prison and the 267 days of diminution credits that led to his release on mandatory supervision. Ordinarily, when faced with such an ambiguity, we would remand the case for clarification. In this instance, however, clarification alone might be inadequate, for we believe that the court may not direct execution of any part of the 18 month period.

Its authority is limited to the previously suspended period of eight-and-a-half years. At issue here is the proper interplay between three related statutes which, notwithstanding some apparent facial inconsis ⁷ tency, can be read together to create a clear and harmonious allocation of authority between the court and the Maryland Parole Commission. Because we believe that the Legislature intended such a harmonious reading of its handiwork, we shall read the statutes in that manner. See Whiting-Turner v. Fitzpatrick, 366 Md. 295, 302-03 , 783 A.2d 667, 671 (2001) (“statutes on the same subject are to be read together and harmonized to the extent possible” so as to avoid rendering any of them or any portions of them superfluous); Cooper v. Sacco, 357 Md. 622 , 745 A.2d 1074 (2000); GEICO v. Ins.

Comm’r, 332 Md. 124 , 630 A.2d 713 (1993). As a prelude, when the court initially imposed the ten and three-year sentences in November,1998, and when it revoked the probation in August, 2000, it acted under then-Md. Code, Art. 27, § 641A. The provisions of that section now appear in §§ 6-219 through 6-224 of the Criminal Procedure Article, adopted as part of the general code revision process in 2001. In Moats v. Scott, 358 Md. 593, 595 , 751 A.2d 462, 463 (2000), we explained the various options available to a court under § 641A (and that remain available under the new Criminal Procedure Article) upon convicting a defendant of a crime that carries a penalty of incarceration.

Paraphrasing what we said there: (1) The court may impose a prison sentence up to the maximum term allowed and, by stating no contrary ruling, direct that the entire sentence be executed. If that approach is chosen, subject to an earlier release on parole or, through the accumulation of statutory diminution credits, on mandatory supervision, the defendant will serve the entire sentence in prison. (2) The court may suspend imposition of sentence and place the defendant on probation. If it chooses that approach, which courts rarely do, no sentence has been imposed.

If the defendant violates the probation, the court may revoke it and, at that time, impose a sentence up to the maximum term allowed and decide how much of it should be executed. ⁸ (3) The court may impose sentence up to the maximum term allowed and suspend execution of all of it in favor of probation. In that setting, the full sentence has been imposed but, subject to the probation, the court has excused the defendant from serving any part of it in prison. If the defendant violates the probation, the court may revoke it and, at that time, direct execution of all or any part of the sentence. The court does not, at that time, either impose or reimpose the sentence.

The sentence has already been imposed. All that is at issue