Davis v. State

¹⁷⁴ McAULIFFE, Judge. This appeal involves an increased sentence following retrial. Petitioner contends that the increase is in violation of a Maryland statute or, in the alternative, is prohibited by the Due Process Clause of the United States Constitution. Because we agree that there was a lack of compliance with the requirements of the controlling statute, we shall vacate the sentence without reaching the constitutional issue.

I. Facts Ernest F. Davis was convicted in 1978, in the Criminal Court of Baltimore, of first degree rape and of a first degree sexual offense. He was sentenced by Judge Albert L. Sklar to life and to ten years imprisonment, the sentences to run concurrently. The convictions were affirmed by the Court of Special Appeals in an unreported opinion. Later, in 1983, Petitioner mounted a successful collateral attack under the Uniform Post Conviction Procedure Act, 1 and Judge James W. Murphy of the Circuit Court for Baltimore City 2 ordered a new trial.

Petitioner was retried before a jury in 1984, and was again convicted of the same offenses. Judge Arrie W. Davis rejected the State’s request for imposition of a mandatory sentence of not less than 25 years without possibility of parole, 3 and sentenced ¹⁷⁵ Petitioner to life imprisonment for rape and 40 years imprisonment consecutive to the life sentence 4 for the sex offense. Petitioner appealed to the Court of Special Appeals and that Court affirmed the convictions and sentence in an unreported opinion. We granted Davis’ petition for certiorari to review the validity of the increased sentence, and at the same time we granted the State’s cross-petition to consider the question of whether Davis had properly preserved the issue for appellate review.

II

Preservation of Issue Initially, we reject the State’s contention that the principal issue was not preserved. Assuming that some type of objection is required to preserve for appellate review the constitutional and statutory validity of an increased sentence following retrial, it is clear that Petitioner made an appropriate objection here. In a “Memorandum of Law in Opposition to an Increased Sentence” filed two days before resentencing, Petitioner cited § 12-702(b) of the Courts and Judicial Proceedings Article and North Car ¹⁷⁶ olina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), in support of his contention that his sentence should not be increased. Moreover, at the sentencing proceeding he repeatedly argued that he could not be given an increased sentence in the absence of proof of “identifiable conduct that’s happened since the first sentencing,” and that no evidence of such conduct sufficient to support a more severe sentence had been produced.

Nothing more was required. See Maryland Rule 4-322(c) and (d).

III

The Statutory Challenge A. Petitioner contends that his sentence is invalid because there has been no compliance with the requirements of § 12-702(b) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1984 Repl.Vol.). That subsection provides: (b) Remand for sentence or new trial; limitations on increases in sentences. 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 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.

The State argues that § 12-702(b) does not apply to a resentencing following retrial ordered by a trial judge, and alternatively, that the record demonstrates full compliance ¹⁷⁷ with the requirements of the statute. We disagree with the State on both points. We examined the history and purpose of § 12-702 in Jones v. State, 307 Md. 449 , 514 A.2d 1219 (1986); Briggs v. State, 289 Md. 23 , 421 A.2d 1369 (1980); and Sweetwine v. State, 288 Md. 199 , 421 A.2d 60 , cert. denied, 449 U.S. 1017 , 101 S.Ct. 579 , 66 L.Ed.2d 477 (1980). In Sweetwine, supra, 288 Md. at 214 , 421 A.2d 60 , we opined that by the adoption of § 12-702(b) the Legislature intended to codify the due process holding of North Carolina v. Pearce, supra.

Pearce created a prophylactic rule to be applied in certain cases involving increased sentences following retrial. After holding that due process requires not only that vindictiveness play no part in the resentencing, but also that a defendant must be freed of apprehension of such a retaliatory motivation, the Supreme Court said: In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Pearce, supra, 395 U.S. at 726 , 89 S.Ct. at 2081 . In Briggs v. State, supra, we held that the express wording of § 12-702(c) mandated compliance with the requirements of § 12-702(b) in cases involving resentencing following a de novo trial on appeal, notwithstanding that the Supreme Court determined in Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972), that the prophylactic rule of Pearce had no application in such cases. In Briggs , we rejected the argument of the State that § 12-702(b) should be interpreted to permit consideration of conduct of the defendant occurring prior to the first sen ¹⁷⁸ tencing provided the event permitting its consideration (conviction of an offense involving the conduct) occurred after that sentencing. Although we made passing reference to our perception of the meaning of the language employed by the Supreme Court in Pearce , our holding was grounded on the clear meaning of the statute.

In Jones v. State, supra, the State argued that because the original intent of the Legislature in enacting § 12-702 was to codify the constitutional doctrine of Pearce , we should interpret § 12-702 in accordance with the current Supreme Court interpretation of Pearce . Specifically, the State pointed to Wasman v. United States, 468 U.S. 559 , 104 S.Ct. 3217 , 82 L.Ed.2d 424 (1984), and Texas v. McCullough, 475 U.S. 134 , 106 S.Ct. 976 , 89 L.Ed.2d 104 (1986), as authority for interpreting Pearce to permit a different judge to increase the sentence after retrial upon consideration of convictions that had occurred between the first and second sentencing and that involved conduct which occurred before the first sentencing. We acknowledged that Was-man and McCullough would permit that result, but said we were powerless to go beyond the clear words of the statute. [T]he General Assembly did not say “We enact Pearce as it now stands or may hereafter be modified by the Supreme Court.” It enacted a clear and specific law. The fact that “the scope and thrust of Pearce ” have been “clarified” in McCullough ... or modified in Wasman does not change what the statute says, any more than would the statute be repealed were the Supreme Court to overrule Pearce in to to.

Even if the Supreme Court now believes that due process does not now forbid what it seemed to prohibit in Pearce ... that has no bearing on the General Assembly’s statutory policy and the intent embodied in it. Jones v. State, supra, 307 Md. at 454-55 , 514 A.2d 1219 . We further stated that “§ 12-702(b) is a statement of legislative policy that stands independent of current Supreme Court notions of what due process may require.” Id. at 455, 514 A.2d 1219 . ¹⁷⁹ As § 12-702(b) applies when “an appellate court remands” a criminal case for further proceedings, the State contends that the statute cannot apply when a circuit court in a post-conviction proceeding orders a new trial. A post-conviction court does, in some measure, function like an appellate tribunal, and an order directing a new trial is somewhat like a “remand” for a new trial.

In light of the legislative policy embodied in § 12-702(b), it does no violence to the statutory language to read “appellate court” to mean “reviewing court” and to read “remands a criminal case ... [for] a new trial” to mean “orders a new trial.” Cf. State v. Loray, 46 N.J. 417 , 217 A.2d 450 (1966) (treating a post-conviction proceeding as an “appeal” within the meaning of statutory language providing for compensation for attorneys); Stahl v. Board of County Com’rs of Geary County, 198 Kan. 623 , 426 P.2d 134, 137 (1967) (agreeing with Loray case). Our decisions in Briggs and Jones were in accord with the policy determination of the General Assembly embodied in § 12-702(b). It is a policy determination that, after a defendant successfully challenges a criminal conviction, he may not at a resentencing for the same offense receive a greater sentence than the sentence previously imposed, unless specified statutory conditions are met.

Unlike the situation in Briggs and Jones , the State’s position here is clearly inconsistent with the policy determination of the General Assembly. It is also inconsistent with the statutory construction principles set forth in our recent cases. See, e.g., Kaczorowski v. City of Baltimore, 309 Md. 505 , 525 A.2d 628 (1987). As a matter of statutory construction, this Court has consistently adhered to the principle that we will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality.

See, e.g., Heileman