Jennings v. State

BELL, Judge. We granted certiorari in this case to address whether a sentencing court properly may consider, in imposing sentence, a defendant’s refusal to accept responsibility, or exhibit remorse, for the crimes for which that defendant has been convicted. The Court of Special Appeals, in an unreported opinion, held that a sentencing court may consider this factor. It thus affirmed the judgment of the Circuit Court for Baltimore County.

At the request of Arnold Jerome Jennings, Jr., the petitioner, we granted certiorari and shall now affirm the judgment of the Court of Special Appeals. ⁶⁷⁸ I. Because this case involves only the propriety of the trial court’s sentencing decision, it is not necessary to set out in detail the facts surrounding the crimes out of which this case arose. It is enough, for context, to recount that as a result of an armed robbery, committed at a restaurant on Pulaski Highway, the petitioner was charged with the use of a handgun in the commission of a felony and the armed robberies of the owner of the restaurant and two of its patrons. Although he has consistently maintained his innocence, a jury in the Circuit Court for Baltimore County convicted the petitioner of all charges. The court then sentenced him to concurrent prison terms.

As to the robbery counts the term was 20 years, and for the handgun offense it was five years. The latter sentence was ordered served without parole. The propriety of the sentence the petitioner received was one of the subjects of the petitioner’s appeal to the Court of Special Appeals. The circumstances surrounding its imposition are reflected in the colloquy that occurred after counsel had been heard as to the appropriate disposition.

Having been advised that he wanted to address it, the court invited the petitioner to do so, making clear, however, that “what you are about to tell me is very important, very important.” The following then occurred: THE DEFENDANT: Your Honor, jury found me guilty. You have got to sentence me. But when you do, can you make it as least as possible? I’d like to be there with my kid.

THE COURT: Anything further? THE DEFENDANT: No. THE COURT: This court doesn’t treat lightly the use of handguns in the commission of crimes and more, especially, the type of handgun that was used in this crime. I cautioned you just before you spoke, Mr. Jennings, that what you had to say to the court was very important because, according to the PSI, according to the statement from your attorney, the jury found the wrong guy guilty. ⁶⁷⁹ And until you can face up to your problem of your implication in this little event you haven’t learned a thing. For me to give you a minimum sentence just doesn’t fit my role.

On the, Count One, sentence of this court would be twenty years to the Department of Corrections; Count Two, twenty years to the Department of Corrections concurrent to Count One; Count Three, twenty years to the Department of Corrections concurrent to Count One; [Count 17], five years to the Department of Corrections to be served without parole and to run concurrent with Count One. Nothing is going to be suspended because this gentleman does not have any remorse, none whatsoever. I guarantee you, get a letter thirty days from now. Oh, I’m sorry.

I did all that. But there is absolutely no remorse ... I don’t either. THE DEFENDANT: Incarcerate at the Baltimore County Detention?

THE COURT: I gave you an opportunity. I said what you have to say to me is very important. All I wanted to hear from you is, you know, what implication you had this, in this, because you’re an innocent. In your mind you’re an innocent man.

Well, I’m sorry. But take your appeal and let’s see what happens there. The petitioner subsequently filed an application for review of sentence. The majority of the three-judge panel appointed for that purpose filed a Memorandum Opinion and Order, in which it ruled that the petitioner’s sentence would remain the same, but would be modified by suspending all but 12 years and placing the petitioner on probation upon his release from incarceration.

In the Court of Special Appeals, the petitioner maintained that the trial court based his sentence on an impermissible consideration, i.e., that he did not plead guilty. The intermediate appellate court rejected that argument. While recognizing that a defendant’s not guilty plea or protestations of innocence throughout the trial may not properly be consid ⁶⁸⁰ ered, it held that the lack of remorse after conviction may be. It was the latter which the trial court considered when sentencing the petitioner, the Court of Special Appeals said.

Having been convicted of three counts of armed robbery and one count of use of a handgun in the commission of a felony, the petitioner’s maximum exposure, if the sentence for each convicted count were imposed consecutively, was 80 years, see Maryland Code (1957, 1992 Repl.Vol.), Art. 27 §§ 36B(b) and 488, with a mandatory minimum sentence of five years without parole. See § 36B(b)(iv). The sentencing guidelines for these offenses, prepared by an agent of the Division of Parole and Probation, reflected an over-all guideline range—for all of the counts—of nine years to 24 years. 1 Both the prosecutor and the petitioner’s counsel urged the court to impose a lengthy sentence. They both recommended, ⁶⁸¹ however, that only a portion of it actually be ordered served and that the sentence be one in which the punishments were served concurrently.

The petitioner asked the court to suspend all of the sentence except that which could not be suspended, ie., the five year mandatory minimum portion of the handgun sentence, while the prosecutor suggested that the suspended portion of the sentence should be ten years, leaving ten years to be served by the petitioner. It is with this backdrop that the sentencing proceedings should be viewed.

II

The petitioner asserts that he was improperly sentenced for refusing to admit his guilt at the sentencing hearing. He argues that, when imposing sentence, a sentencing court may not consider a defendant’s failure to acknowledge guilt after conviction nor may it punish the defendant for “protestations of innocence.” Indeed, forcing a defendant to admit guilt at a sentencing proceeding, the petitioner maintains, violates the defendant’s privilege against self-incrimination, a privilege which remains viable pending appeal or sentence review. See Ellison v. State, 310 Md. 244, 259 , 528 A.2d 1271, 1278 (1987). The State, on the other hand, argues that the sentencing court properly considered the petitioner’s refusal to accept responsibility, or exhibit remorse, for his crimes at the sentencing proceeding.

According to the State, rather than punishing the petitioner for his “protestations of innocence,” the court construed the petitioner’s failure to acknowledge his culpability as evidence of a lack of remorse, a fact most relevant to the petitioner’s prospects for rehabilitation. This, the State says, is appropriately considered by the sentencing court in the exercise of its sentencing discretion.

III

As a threshold matter, we must consider whether we are able to reach the merits of this case. The sentence the petitioner seeks to have us review is not the sentence that the sentencing court imposed. That sentence was significantly ⁶⁸² modified by a three-judge panel of the Circuit Court for Baltimore County, in response to an Application For Sentence Review filed by the petitioner. This case is, therefore, arguably moot.

See Adkins v. State, 324 Md. 641, 646 , 598 A.2d 194, 197 (1991); Robinson v. Lee, 317 Md. 371, 375 , 564 A.2d 395, 397 (1989); State v. Peterson, 315 Md. 73, 79-82 , 553 A.2d 672, 675-77 (1989); Attorney General v. Anne Arundel Co. School Bus Contractors Ass’n, Inc., 286 Md. 324, 327 , 407 A.2d 749, 752 (1979). Although acknowledging that this is so—that the matter is arguably moot—the State urges that we nevertheless address the merits, asserting that “the issue presented by this case is ‘of important public concern.’ ” State’s brief at 3 n. 1 (quoting State v. Peterson, supra, 315 Md. at 82-83 , 553 A.2d at 677 ). In Peterson , this Court held that it would depart from its general rule in not addressing the merits of a moot question “where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest.” Id. We applied the same test in Chertkov v. State, 335 Md. 161, 170-71 , 642 A.2d 232, 237 (1994) (whether a binding plea agreement precludes a trial court from modifying a sentence imposed pursuant to that agreement); Thanos v. State, 332 Md. 511, 521 , 632 A.2d 768, 772 (1993) (whether a defendant sentenced to death may waive time limitation on execution of death penalty); Montgomery County v. McNeece, 311 Md. 194, 200-01 , 533 A.2d 671, 674 (1987) (whether Maryland Rule 2-551, dealing with in banc review, is constitutional).

How a trial court’s perception that a defendant shows a lack of remorse is to be treated for sentencing purposes is a matter of some significance; it is a matter of important public concern. Accordingly, we shall consider the merits of this case.

IV

In Maryland, the primary objectives of sentencing are punishment, deterrence, and rehabilitation. State v. Dopkowski 325 Md. 671, 679 , 602 A.2d 1185, 1189 (1992); Johnson ⁶⁸³ v. State, 274 Md. 536, 540 , 336 A.2d 113, 115 (1975). Because the task of a sentencing court, “within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined,” Williams v. New York, 337 U.S. 241, 247 , 69 S.Ct. 1079, 1083 , 93 L.Ed. 1337, 1342 (1949), trial courts are given very broad latitude in the kinds of information they may consider in pursuing those goals. Id.; Dopkowski, 325 Md. at 679 , 602 A.2d at 1189 .

Thus, it is very well established in this State that a sentencing court is “vested with virtually boundless discretion” in deciding what factors to consider on the issue of punishment. Dopkowski, 325 Md. at 679 , 602 A.2d at 1189 (quoting Logan v. State, 289 Md. 460, 480 , 425 A.2d 632, 642 (1981)). See also Reid v. State, 302 Md. 811, 819 , 490 A.2d 1289, 1293 (1985) and cases cited therein. The sentencing court’s broad discretion does not permit, however, imposition of sentences that are cruel and unusual; violative of constitutional requirements; motivated by ill-will, prejudice, or other impermissible considerations; or that exceed statutory limitations.

See Reid v. State, 302 Md. at 820 , 490 A.2d at 1294 ; Teasley v. State, 298 Md. 364, 370 , 470 A.2d 337, 340 (1984). See also State v. Dopkowski, 325 Md. at 680 , 602 A.2d at 1189 ; Johnson v. State, 274 Md. at 538 , 336 A.2d at 114 . Moreover, a defendant’s sentence should be individualized “to fit ‘the offender and not merely the crime.’” Smith v. State, 308 Md. 162, 167 , 517 A.2d 1081, 1084 (1986) (quoting Williams v. New York, 337 U.S. at 247 , 69 S.Ct. at 1083 , 93 L.Ed. at 1342 ). Consequently, the defendant’s sentence “should be premised upon both the facts and circumstances of the crime itself and the background of the individual convicted of committing the crime.” Dopkowski, 325 Md. at 679 , 602 A.2d at 1189 .

See Colvin-El v. State, 332 Md. 144, 166 , 630 A.2d 725, 736 (1993), cert. denied, _ U.S._, 114 S.Ct. 2725 , 129 L.Ed.2d 849 (1994) (noting as relevant factors for the sentencing court: convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters a judge ought to have before him or her in determining the sentence that should be imposed); Huffing- ⁶⁸⁴ ton v. State, 304 Md. 559, 577-78 , 500 A.2d 272, 281 (1985), cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986) (institutional history reflecting disciplinary sanction is relevant). See also United States v. Grayson, 438 U.S. 41, 45 , 98 S.Ct. 2610, 2613 , 57 L.Ed.2d 582, 586 (1978) (quoting Williams v. New York, 337 U.S. at 248 , 69 S.Ct. at 1084 , 93 L.Ed. at 1343 ) (“sentences should be determined with an eye toward the ‘[r]eformation and rehabilitation of offenders’”). Although, with the exception of the handgun charge, the sentences imposed by the trial court were the maximum permitted by law for that offense, the trial court by no means exceeded the maximum penalty it could have imposed 2 ; the sentence imposed was within applicable statutory limitations. Indeed, the trial court did not exceed the overall guidelines’ recommended sentence of 24 years.

The petitioner does not challenge the sentences as being cruel or unusual or violative of a constitutional requirement. Nor does the petitioner suggest that the trial court was motivated by ill-will or prejudice. The petitioner’s sole contention is that the trial court used an impermissible consideration in imposing the sentence, i.e., his refusal to admit his guilt at sentencing, when his appeal and review rights were still viable. It is absolutely clear that a trial court may not punish a defendant for invoking his right to plead not guilty and putting the State to its burden of proof for protesting his innocence.

Johnson v. State, 274 Md. at 542-43 , 336 A.2d at 116-17 . See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668 , 54 L.Ed.2d 604, 610 (1978) (“[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort”); Reid v. State, 302 Md. at 820 , 490 A.2d at 1289 ; Teasley v. State, 298 Md. at 370 , 470 A.2d at 340 . Conversely, permitting the trial court to base its sentence on “perceptions ... derived from ⁶⁸⁵ the evidence presented at the trial, the demeanor and veracity of the defendant gleaned from his various court appearances, as well as the data acquired from such other sources as the presentence investigation or any personal knowledge the judge may have gained from living in the same community as the offender” is perfectly acceptable. Johnson, 274 Md. at 540 , 336 A.2d at 115-16 (footnotes omitted).

Moreover, courts have held that a lack of remorse is an appropriate sentencing consideration inasmuch as acceptance of responsibility is the first step in rehabilitation. Vogel v. State, 76 Md.App. 56, 69-70 , 543 A.2d 398, 404-05 (1988), aff'd on other grounds, 315 Md. 458 , 554 A.2d 1231 (1989). See Christian v. State, 513 P.2d 664, 670 (Alaska 1973) (“Certainly the offender’s unwillingness to accept criminal responsibility can and should be taken into account by the sentencing court.”); Davis v. State, 635 P.2d 481, 487 (Alaska Ct.App.1981) (“[I]t was appropriate for the court, in gauging the weight realistically to be accorded to Davis’ rehabilitation, to take into account its belief