Hartless v. State

Panel: Berger, Arthur, Beachley, JJ. Berger, J. ⁷⁹ This case is before us on appeal from an order of the circuit court denying the motion to correct an illegal sentence filed by David Andrew Hartless, appellant. In 1989, Hartless was convicted of premeditated first-degree murder, robbery with a deadly weapon, and lesser-included offenses. He was sentenced to life in prison for first-degree murder and twenty years' imprisonment for robbery with a deadly weapon.

His convictions were affirmed on direct appeal. Hartless v. State , 327 Md. 558 , 560, 611 A.2d 581 (1992). Hartless was seventeen years old when he committed the crimes. Following the decisions of the United States Supreme Court in Miller v. Alabama , 567 U.S. 460 , 132 S.Ct. 2455 , 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718 , 193 L.Ed.2d 599 (2016), Hartless filed a ¹⁴⁹ motion to correct what he alleged to be an illegal sentence.

Hartless asserted that his sentence was unconstitutional pursuant to recent Supreme Court precedent addressing life sentences without parole for juvenile homicide offenders. The circuit court denied Hartless' motion. Hartless noted a timely appeal. This Court stayed Hartless' appeal pending the decision of the Court of Appeals in Carter v. State , No. 54, Sept. Term, 2017; Bowie v. State , No. 55, Sept. Term 2017; and McCullough v. State , No. 56, Sept. Term, 2017, because the cases raised issues relating to whether a life sentence with the possibility of parole or a lengthy term of years sentence constituted an unconstitutional de facto life without parole sentence.

On August 29, 2018, the Court of Appeals issued an opinion in Carter v. State , 461 Md. 295 , 192 A.3d 695 (2018), reconsideration denied , October 4, 2018. The Court's consolidated opinion resolved the cases of Carter , Bowie , and McCullough . Following the issuance of the Carter opinion, we lifted the stay in Hartless' appeal and the appeal proceeded. In this appeal, Hartless presents three issues for our consideration, which we set forth verbatim: ⁸⁰ 1.

What is the scope of Carter's requirement that all juvenile offenders are entitled to an individualized sentencing hearing that takes into account the offender's youth, and based on Carter's interpretation of this requirement, did the circuit court err in determining that Mr. Hartless' life plus twenty year sentence, imposed without an individualized sentencing, was legal? 2. Presenting an issue that was not ruled upon in Carter , did the circuit court err in not finding Mr. Hartless' life sentence illegal since the statutes and regulations governing the Maryland parole system authorize the Parole Commission to divert any parole application to a request for executive clemency? 3. An argument raised for preservation purposes, is the Court of Appeals' decision in Carter in contravention with Supreme Court precedent in Miller and Montgomery , which held that a non-incorrigible juvenile offender has a substantive right to release upon a showing of demonstrated maturity and rehabilitation? With respect to the first issue raised by Hartless, for reasons we shall explain, we reject Hartless' premise that Carter requires an individualized sentencing hearing that takes into account the offender's youth for all juvenile homicide offenders.

We shall further hold that the availability of executive clemency as an alternative to parole does not render Hartless' sentence unconstitutional. For reasons we shall explain, we do not address the merits of the third issue. We shall affirm. BACKGROUND We set forth briefly the factual background underlying this appeal.

The underlying murder occurred in 1987 when Hartless was seventeen years old. Hartless entered a convenience store in Columbia, Maryland, intending to rob the store. A twenty-year-old store clerk, Angelica Velazco, was alone in the store at the time. Hartless ordered Velazco to lie on the floor.

Velazco complied, but Hartless smashed a bottle over her head and subsequently stabbed her to death. ⁸¹ The State sought a sentence of life without the possibility of parole for Velazco's murder, but the trial court ruled that it was not an allowable sentence at the time of Hartless' crime. The circuit court subsequently sentenced Hartless to life imprisonment for murder. Defense counsel acknowledged ¹⁵⁰ that the court was obligated to impose a life sentence for the murder conviction but asked the court to issue a concurrent sentence for the robbery. Defense counsel specifically pointed to Hartless' age at the time of the offense, Hartless' difficult childhood circumstances, and the corrosive influence of Hartless' stepfather, Leo Rites.

Defense counsel also asked for Hartless to be sent to the Patuxent Institution where he would be able to receive psychiatric care and treatment. The circuit court imposed the mandatory life sentence for the first-degree murder conviction and a consecutive twenty-year term of imprisonment for robbery with a deadly weapon. The court noted Hartless' age at the time the crime was committed but emphasized that Hartless had committed the "ultimate crime" in a "rather vicious" manner and emphasized that the victim was "rather young." The circuit court expressly commented that it was "fully cognizant of the various psychological and psychiatric reports." On January 23, 2017, Hartless filed the motion to correct illegal sentence pursuant to Maryland Rule 4-345(a) that ultimately gave rise to this appeal. He argued that his sentence was illegal based upon the United States Supreme Court cases of Miller , supra , 567 U.S. 460 , 132 S.Ct. 2455 , and Montgomery , supra , 136 S.Ct. 718 .

We shall discuss these cases in further detail infra , but it is helpful to set forth the holdings of each case here in order to provide context for Hartless' motion. In Miller , the Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.' " 567 U.S. at 465 , 132 S.Ct. 2455 . The Montgomery Court held that Miller announced a new substantive rule that applies retroactively to convictions that were final prior to the Miller decision. 136 S.Ct. at 736 . The ⁸² Montgomery Court explained that Miller "requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Id. at 734 .

The Court further explained that Miller "determined that sentencing a child to life without parole is excessive for all but 'the rare juvenile offender whose crime reflects irreparable corruption.' " Id. (quoting Miller , 567 U.S. at 479 -80 , 132 S.Ct. 2455 ). 1 Against this backdrop, Hartless filed a motion to correct what he alleged to be an illegal sentence, arguing that his sentence was unconstitutional as a de facto sentence of life without parole. Hartless asserted that a sentence of life with parole is effectively equivalent to life without parole in Maryland because there is no "meaningful opportunity to obtain release" for individuals sentenced to life with parole. Hartless contended that the circuit court had not considered the factors set forth in Miller , supra , before sentencing him to what was effectively a sentence of life without parole, and, therefore, the circuit court's sentence was illegal.

The circuit court, in a written order, observed that there was "not yet precedent" on the constitutionality of Hartless' life sentence with parole. The circuit court observed that Hartless had an upcoming ¹⁵¹ parole hearing and had "not yet been denied parole." The court found Hartless' motion to be "premature" and denied the motion without prejudice. Hartless noted a timely appeal to this Court. The appeal was stayed pending the Court of Appeals' decision in Carter , Bowie , and McCullough , supra , which presented the same theory underlying Hartless' motion and argued that a life sentence in Maryland "is effectively ... life without parole, ⁸³ because the laws governing parole in Maryland do not provide [an inmate] with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Carter , supra , 461 Md. at 307 , 192 A.3d 695 .

The Court of Appeals rejected this theory, holding in Carter that the petitioners' life sentences were legal because "the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " Id. 2 DISCUSSION We first address which of the appellate issues raised by Hartless are properly before this Court and which issues are unpreserved or otherwise not appropriate for this Court to address. The primary argument raised by Hartless before the circuit court is the same argument expressly rejected by the Court of Appeals in Carter : that a life sentence in Maryland is effectively a sentence of life without parole because the laws governing parole in Maryland do not provide a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Therefore, Hartless contended before the ⁸⁴ circuit court, such a sentence is unconstitutional for juvenile offenders pursuant to Miller , supra , 567 U.S. 460 , 132 S.Ct. 2455 , and Montgomery , supra , 136 S.Ct. 718 . Before this Court, Hartless raises three additional issues.

First, Hartless argues that Carter mandates an "individualized sentencing process that takes account of the offender's youth" for all juvenile homicide offenders regardless of whether they are sentenced to life without parole. This issue, albeit framed quite differently, was presented before the circuit court, and we shall address it. 3 ¹⁵² Hartless' second argument is that his sentence is illegal because the Parole Commission is empowered to "turn any application for parole into a request for executive clemency." This issue was not raised before the trial court, and ordinarily, we would not address issues that were not raised in or decided by the trial court. 4 See Md. Rule 8-131(a) ("Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court."). We recognize, however, that a motion to correct an illegal sentence can be filed at any time and is not subject to the ordinary preservation rules. See Md. Rule 4-345(a) ("The court may correct an illegal sentence at any time."); ⁸⁵ Carlini v. State , 215 Md. App. 415 , 426, 81 A.3d 560 (2013) (explaining that for Rule 4-345(a) purposes, the illegality must actually inhere in the sentence itself).

Accordingly, we shall address Hartless' second argument regardless of the fact that it was not raised or addressed below. Hartless' third appellate argument -- which Hartless concedes is raised "for preservation purposes" -- asserts that Carter is inconsistent with Supreme Court precedent and should be reconsidered. This Court, of course, is bound by the Court of Appeals' decision in Carter and we will not revisit this issue. We, therefore, turn to the merits of the issues before us, namely, whether the circuit court erred by denying Hartless' motion to correct illegal sentence on the basis that he was required to receive an individualized sentencing process and whether the availability of executive clemency renders the parole system unconstitutional.

We review the circuit court's denial of a motion to correct illegal sentence de novo . Rainey v. State , 236 Md. App. 368 , 374, 182 A.3d 184 (2018). I. Hartless' first appellate contention is that his sentence should be vacated because he did not receive an individualized sentencing process at which the circuit court expressly considered his youth and attendant circumstances. Hartless asserts that Carter requires that any juvenile convicted of homicide receive an individualized sentencing process at which six factors are considered regardless of whether the court is considering a sentence of life imprisonment without the possibility of parole.

Specifically, Hartless asserts that a court must evaluate (1) the defendant's chronological age and immaturity, impetuosity, and the failure to appreciate risks and consequences; (2) the defendant's family and home environment; (3) circumstances of the offense, including the extent of the defendant's participation in the criminal conduct; (4) the impact of familial and peer pressures on the defendant; (5) the effect of the defendant's youth on the criminal justice process, such as his inability to comprehend a plea bargain; and (6) the ⁸⁶ possibility of a defendant's rehabilitation. These factors are drawn from Miller , supra , 567 U.S. at 477 -78 , 132 S.Ct. 2455 . 5 ¹⁵³ A brief discussion of the United States Supreme Court caselaw on issues relating to life sentences for juvenile offenders is necessary in order to provide the proper context for our discussion of Carter . In Graham v. Florida , 560 U.S. 48 , 130 S.Ct. 2011 , 176 L.Ed.2d 825 (2010), the Supreme Court held that the Eighth Amendment bars a sentence of life in prison without parole for juvenile offenders convicted of only non-homicide offenses. The Supreme Court first addressed the issue of under what circumstances a juvenile homicide offender may be sentenced to life in prison without the possibility of parole in Miller , supra .

The Miller Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. at 479 , 132 S.Ct. 2455 (emphasis added). The Court did not prohibit life sentences without parole categorically, but commented that "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. The Supreme Court did "not foreclose a sentencer's ability to make that judgment in homicide cases," but the Court "require[d the sentencing court] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480 , 132 S.Ct. 2455 . In Montgomery , supra , the Court further explained that "[a] hearing where 'youth and its attendant characteristics' are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole ⁸⁷ from those who may not." 136 S.Ct. at 735 .

The primary issue before the Court in Montgomery was whether the Miller holding was entitled to retroactive effect. The Supreme Court held that Miller announced a new substantive constitutional rule that was retroactive on state collateral review. 136 S.Ct. at 732 . Although the Montgomery Court gave retroactive effect to Miller , the Court explained that this did "not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole." Id. at 736 . Rather, a Miller violation could be remedied "by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Id.

Hartless does not expressly rely upon Montgomery or Miller for the principle that all juvenile homicide offenders are entitled to individualized sentencing processes regardless of whether they are sentenced to life without the possibility of parole. Indeed, if a Miller violation can be remedied simply by permitting a juvenile offender to be considered for parole, it is illogical to suggest that Montgomery and Miller somehow require an individualized sentencing process for all juveniles convicted of homicide, regardless of whether they are sentenced to life with or without parole. Because neither Montgomery nor Miller addresses Hartless' appellate issue, it is unsurprising that Hartless relies only upon Carter for this principle. This issue, however, was not the issue before the Court of Appeals in Carter .

Carter addressed the constitutionality of a sentence of life imprisonment with parole for juvenile homicide ¹⁵⁴ offenders in Maryland and considered whether such a sentence violated the Eighth Amendment on the basis that it failed to provide a meaningful opportunity for release. The Carter Court recognized that the "Eighth Amendment's proscription against cruel and unusual punishments precludes [a sentence of life without parole] for a juvenile offender unless the defendant is an incorrigible murderer," but rejected the argument that life with the possibility of parole is effectively a sentence of life without parole. 461 Md. at 306 -07 , 192 A.3d 695 . The Court of