Coley v. State

WILNER, Judge. After a joint trial with two co-defendants before a Baltimore City jury, appellant was convicted of felony murder. At sentencing on November 26, 1982, Judge Hammerman, who presided over the trial, explained that appellant was entitled to more consideration than his co-defendants because he alone confessed to the crime, thus aiding in the convictions of the others, and because he alone expressed remorse. The judge imposed the maximum sentences the law allows on the two co-defendants.

In contrast, instead of giving appellant the maximum sentence of life in prison, Judge Hammerman imposed a “life sentence with fifteen years of it suspended.” Appellant was understandably puzzled by the sentence. His counsel’s inquiry to the trial judge as to what exactly the sentence meant was met with the response, “That’s up to the Parole Board, not up to me.” Appellant and his co-defendants then jointly appealed to this Court, appellant claiming, among other things, that the use of his confession at trial was unlawful and that he was entitled to be resentenced because the sentence was vague and indefinite. We affirmed appellant’s conviction but vacated his sentence and remanded for resentencing. Ball v. State, 57 Md. App. 338, 470 A.2d 361 (1984), modified on other grounds 307 Md. 552 , 515 A.2d 1157 (1986).

In doing so, we noted that: “We agree with the appellant Coley that in this case, some clarification is in order. It may well have been that what the sentencing judge intended was to impose a sentence of life imprisonment, all but 15 years of which would be suspended. A definite term of imprisonment followed by a suspension of the remainder of the sentence ⁷³⁴ gives clear guidelines to the prison authorities, to the Parole Board, and to the appellant himself. The very indefiniteness of a life expectancy, however, would make it impossible for the parole authorities to calculate backward from an uncertain date.” Id. at 369.

The resentencing hearing held on January 18, 1988 did not proceed as we had expected. Upon reminding the trial judge that “[i]t was clearly the Court’s intention, at the time of sentencing, that Mr. Coley receive something less than a life sentence, based on various mitigating factors ...,” appellant’s counsel was told by the judge that: “[I]f it can be said, and I emphasize the word ‘if’—if it can be said, I felt because of what Mr. Coley did in the courtroom, he deserved some degree of consideration on the sentenced d]id he not in his appeal try to repudiate that which he did in the courtroom? And did he not really say that things shouldn’t have gone down the way they did in the courtroom, and that my confession shouldn’t have been admitted, and it’s improper to consider it? Didn’t he really retreat from his responsible acts in the courtroom?” The trial judge then resentenced appellant to life in prison with no time suspended.

Although he commented that he did not hold appellant’s appeal against him, the judge pointed out: “Mr. Coley, I do not have all the same feelings today that I did have the day that you were before me for sentencing.” Appellant brings this appeal as a result of this seeming increase in his sentence, arguing: 1. The trial judge illegally increased appellant’s sentence by reinstating the suspended portion of his life sentence after remand. 2. Appellant is entitled to be resentenced by another judge because the judge below has demonstrated an inability to disregard impermissible sentencing factors. ⁷³⁵ We find merit in appellant’s first contention but none in the second, and therefore shall remand to the trial judge for another resentencing, this time with a helpful suggestion. The record of the initial sentencing hearing clearly shows that the trial judge intended to sentence appellant to something less than life in prison.

Nevertheless, the judge imposed a full life sentence on remand. Trial courts in Maryland are directed by statute that: “If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper ... sentence ... 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 objective information concerning identifiable conduct on the part of the defendant occurring after the original sentence was imposed; and (3) The factual data upon which the increased sentence is based appears as a part of the record.” Cts. & Jud.Proc.Code Ann. § 12-702(b) (1973). This statute in essence codifies North Carolina v. Pearce, 395 U.S. 711 , 89