Jones v. State

BELL, C.J. The genesis of this case is an improper sentence that was imposed upon Jay Anthony Jones, the petitioner, by the Circuit Court for Baltimore City. Having been tried in connection with the shooting and robbery of David Knowlin and ⁶⁹⁰ Jamile Thomas, the petitioner was convicted of, inter alia, first degree assault and robbery with a dangerous weapon. Despite the petitioner’s arguments in mitigation, that: he was the least culpable of those involved in the crime, he had family support and he had no prior contact with the judicial system, the petitioner was sentenced to sixty-five (65) years in prison. The actual shooter received seventy (70) years imprisonment.

The petitioner noted an appeal, challenging that sentence, to the Court of Special Appeals. He argued in that court that the trial court erred in refusing to merge the first-degree assault count with the armed robbery count, as it pertained to one of the victims. Agreeing with that argument, the intermediate appellate court, in order to remedy the illegal sentence, remanded the case, in an unreported opinion, to the Circuit Court. Its mandate provided: “Sentence imposed under Count 3 of indictment No. 103149031 for first-degree assault and sentence imposed under Count 1 of indictment No. 103149033 (robbery with a deadly weapon) vacated; case remanded to the Circuit Court for Baltimore City for imposition of a new sentence in accordance with the views expressed in this opinion; judgments otherwise affirmed; costs to be divided equally between appellant and the Mayor and City Council of Baltimore.” At a resentencing hearing, the trial court reduced the petitioner’s sentence from sixty-five years (65) to sixty years (60); 1 however, although the petitioner indicated his desire to offer such evidence, the trial court refused to consider any ⁶⁹¹ mitigating evidence.

The basis of this refusal may be found in the following colloquy: “[DEFENSE COUNSEL]: Your Honor I wanted to argue for mitigation before you imposed sentence. “THE COURT: I don’t believe there is anything to mitigate on. I think this was sent back for merger. “[DEFENSE COUNSEL]: Okay.” Thus, the trial court seemed to believe, improperly so, we think, that it was constrained by the Court of Special Appeals’ remand only to merge the first-degree assault count with the armed robbery count, and that it was precluded from considering, for purposes of sentencing, any factors that could mitigate the petitioner’s “new sentence.” The petitioner again appealed to the Court of Special Appeals, this time arguing based on Sanders v. State, 105 Md. App. 247 , 659 A.2d 356 (1995), that the sentencing court should have permitted him to offer mitigating evidence before resentencing him. The State, in response, maintained that the issue of mitigation was not properly preserved or, if it were, was without merit. “Assuming without deciding” the validity of the petitioner’s preservation argument, the Court of Special Appeals concluded that there was “no error.” Addressing Sanders , it determined the case to be inapplicable because the petitioner “has failed to provide evidence of ‘events subsequent to the first trial that may have thrown new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.’ ” (quoting North Carolina v. Pearce, 395 U.S. 711, 723 , 89 S.Ct. 2072, 2079 , 23 L.Ed.2d 656, 668 (1969)). The intermediate appellate court held, therefore, that the petitioner did not meet his burden to show that the trial judge misconstrued or misapplied the law and observed that, unlike the trial judge in Sanders , the trial judge here was not “ ‘stuck with a handicap’ ” from the previous trial judge’s ruling.

The intermediate appellate court concluded that “[t]he court’s statement here that T don’t believe there is anything to mitigate on’ does not ⁶⁹² indicate, contrary to appellant’s assertion, that it felt it was precluded from considering argument in mitigation.” This Court granted certiorari, Jones v. State, 410 Md. 701 , 980 A.2d 482 (2009), to determine two issues. The first, whether “the trial court err[ed] in failing to allow [the] petitioner to offer argument in mitigation before imposing sentence.” The second, briefly stated, is whether the “petitioner fail[ed] to preserve his claim that the trial court failed to allow him to offer argument in mitigation.” We disagree with the determination of the Court of Special Appeals, and hold, to the contrary, that the trial court’s refusal to allow mitigating evidence to be adduced prior to the resentencing was in error. The mandate of the intermediate appellate court was clear: the trial court was to issue “a new sentence in accordance with the views expressed in [its] opinion.” The court certainly did not expressly foreclose the trial court from considering mitigating evidence. It is also significant that the “views expressed” did not include a directive that the trial court impose a term of years, or any particular sentence.

The court simply held that a merger of two of the sentences was required. The intermediate appellate court’s concluding remarks on the merger issue are instructive in this regard: “Therefore, appellant’s first-degree assault conviction must merge into the robbery-with-a-deadly-weapon conviction. If the jury believed, as it may have done pursuant to the court’s instructions, that the shooting was part of the robbery, then the first-degree-assault conviction merges into the greater offense (robbery with a dangerous weapon). Because we have no way of knowing whether the jury believed that the shooting was separate from the armed robbery, we hold that, for sentencing purposes, the first-degree-assault charges merged into the crime of robbery with a dangerous weapon.” Thus, the Court of Special Appeals only instructed the trial court to merge the two convictions, for sentencing purposes, without any additional express or implied limitations. ⁶⁹³ I. The Right of Allocution is Required in Resentencing.

We begin our analysis with the acknowledgment that a trial judge has “very broad discretion in sentencing.” Jackson v. State, 364 Md. 192, 199 , 772 A.2d 273, 277 (2001); Gary v. State, 341 Md. 513, 516 , 671 A.2d 495, 496 (1996); Poe v. State, 341 Md. 523, 531 , 671 A.2d 501, 505 (1996); Jennings v. State, 339 Md. 675, 683 , 664 A.2d 903, 907 (1995); Jones v. State, 336 Md. 255, 265 , 647 A.2d 1204, 1209 (1994); State v. Dopkowski, 325 Md. 671, 679 , 602 A.2d 1185, 1189 (1992); Logan v. State, 289 Md. 460, 480 , 425 A.2d 632, 642 (1981). Nonetheless, we have made clear that the trial judge should tailor the criminal sentence to fit the “ ‘facts and circumstances of the crime committed and the background of the defendant, including his or her reputation, prior offenses, health, habits, mental and moral propensities, and social background.’ ” Jackson, 364 Md. at 199 , 772 A.2d at 277 (quoting Poe, 341 Md. at 532 , 671 A.2d at 505 ). It is well established that: “ ‘only three grounds for appellate review of sentences are recognized in this State: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits.’ ” Jackson, 364 Md. at 200 , 772 A.2d at 277 (quoting Gary, 341 Md. at 516 , 671 A.2d at 496 ); citing Teasley v. State, 298 Md. 364, 370 , 470 A.2d 337, 340 (1984); see generally Logan v. State, 289 Md. 460 , 425 A.2d 632 (1981); Kaylor v. State, 285 Md. 66 , 400 A.2d 419 (1979); Clark v. State, 284 Md. 260 , 396 A.2d 243 (1979). This case does not involve a contention that the sentence constituted cruel and unusual punishment or that it was not within statutory limits.

It does, however, demand a discussion under (2), particularly as it pertains to whether the trial court during sentencing was “motivated by ... impermissible considerations.” ⁶⁹⁴ To be sure, the trial court correctly noted that the case was remanded “for merger.” This does not mean, however, that the hearing was confined simply and solely to the implementation of that mandate. To accomplish merger a new resentencing was required, and because mitigating evidence may be offered at a sentencing, the petitioner was within his right to raise the issue and the trial court should have considered such evidence as may have been offered by him. The first question that must be asked and answered is whether a “resentencing” or a “new sentence” is a “sentencing.” The answer is yes. Bartholomey v. State, 267 Md. 175 , 297 A.2d 696 (1972) is clear on this point.

In Bartholomey , the decision in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), prompted this Court “summarily [to] vacate[ ] death sentences imposed in 120 other cases then pending on its docket ... and remand[ ] all the cases ‘for further proceedings.’ ” 267 Md. at 183 , 297 A.2d at 700 . In one of the eases on review in Bartholomey, Sterling v. State, 248 Md. 240 , 235 A.2d 711 (1967), in which the defendant was sentenced to death for rape, Bartholomey, 267 Md. at 191 , 297 A.2d at 704 , the sentencing court, in error, despite the vacating of that sentence pursuant to Furman , “automatically mandate[d] imposition of the next most severe penalty.” Bartholomey, 267 Md. at 191 , 297 A.2d at 704 . We reversed. Id. at 192 , 297 A.2d at 705 .

We stated: “[o]n the contrary, in resentencing ... the sentencing court must approach its task [of sentencing] as if no sentence had ever been imposed.” Id. at 193 , 297 A.2d at 706 . The trial court is charged, therefore, with “exercising its sentencing discretion” as if the sentence was occurring for the first time. Id. During resentencing, therefore, especially one where the mandate specifies, for “a new sentence” the Maryland courts must rely on the standard rules of sentencing.

This comports with Maryland Rule 4-342(a) 2 which provides: “Ap ⁶⁹⁶ plicability. This Rule applies to all cases except those governed by Rule 4-343. 3 ” “[A]ll cases” include resentencings. Before a sentence is imposed, a defendant’s long-recognized right of allocution is triggered. In Harris v. State, 306 Md. 344 , 509 A.2d 120 (1986), a case which concerned the right of allocution for a defendant sentenced to death, this Court confirmed the deep roots allocution has within this State’s jurisprudence.

It stated: “The right of allocution existed in 1776 in essentially the form above outlined: it was a formal, narrowly defined right viewed as an essential part of the criminal sentencing procedure. This, therefore, was the nature of the common ⁶⁹⁷ law right originally secured for the citizens of Maryland by Article 5 of the Declaration of Rights. “As sentencing statutes prescribing ranges of penalties rather than fixed penalties became more common, judicial discretion assumed a significant role in the sentencing process. Presumably in response to the trial courts’ newly vested discretion, the scope of allocution was broadened, permitting a criminal defendant to inform the court of any mitigating factors relevant to sentencing, or simply to plead for leniency.” Id. at 354-55 , 509 A.2d at 125 (footnote omitted). “Allocution ‘provides a unique opportunity for the defendant himself to face the sentencing body ... and to explain in his own words the circumstances of the crime’ ” as well as “ ‘his feelings regarding his conduct, culpability, and sentencing.’ ” Shifflett v. State, 315 Md. 382, 386 , 554 A.2d 814, 816 (1989) (quoting Harris, 306 Md. at 358 , 509 A.2d at 127 ). Section (f) of Rule 4-342 controls how a trial court should treat allocution.

It states: “(f) Allocution and information in mitigation. Before imposing sentence, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement and to present information in mitigation of punishment.” Rule 4—342(f). Case law speaks in terms of the type of information the court “may” consider. See Bartholomey, 267 Md. at 193 , 297 A.2d at 706 (“[T]he sentencing judge may inquire into the past criminal record of the defendant and hear evidence and receive reports in aggravation or mitigation of punishment; the inquiry of the judge is not limited by the strict rules of evidence and he is invested with wide discretion in determining the sentence to be imposed within the authorized statutory limits.”); Purnell v. State, 241 Md. 582, 585 , 217 A.2d 298, 300 (1966)(“It is almost, if not universally, held that opprobrious or kindly and commendable action on the part of a convict may ⁶⁹⁸ be considered in sentencing as a matter either of aggravation or mitigation of possible punishment.”); Farrell v. State, 213 Md. 348 , 131 A.2d 863 (1957).

This Court has made clear, however, that the Rule itself is not permissive. See Kent v. State, 287 Md. 389, 393 , 412 A.2d 1236, 1238 (1980). In Kent , the issue was the validity of a sentence imposed in violation of Rule 772 d, the predecessor of Rule 4-342. That Rule provided: “ ‘Allocution. ‘Before imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right.’ ” Kent, 287 Md. at 393 , 412 A.2d at 1238 .

As to the effect of the Rule, we stated: “Considering the language of the rule, its requirements are clearly mandatory. Brown v. State, 11 Md.App. 27 , 272 A.2d 659 , cert. denied, 261 Md. 722 (1971). See also In re James S., 286 Md. 702 , 410 A.2d 586 (1980); State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979); Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978).” Id. at 393 , 412 A.2d at 1238 . In a footnote the Court reasoned: “The history of Rule 772 d, which was previously numbered Rule 761 a, confirms that it was intended to be mandatory.

An excellent discussion of the rule and the right to allocution generally, including the history of the right and cases in other jurisdictions, is contained in Judge Thompson’s opinion for the Court of Special Appeals in Brown v. State, 11 Md.App. 27 , 272 A.2d 659 , cert. denied, 261 Md. 722 (1971).” Id. at 393 n. 3, 412 A.2d at 1238 n. 3. To be sure, in the evolution of this Rule, the trial court’s responsibility has diminished—no longer is a trial court required to inform the defendant of his or her right of allocution. Under Rule 4-342, the court is required only to afford the defendant the chance to “make a statement and to ⁶⁹⁹ present information.” On this point, this Court, in State v. Lyles, 308 Md. 129, 133 , 517 A.2d 761, 763 (1986), stated: “In our view there is simply no requirement that the court inform the accused of his right to ailocute under the present rule. Rule 4-342 is somewhat different than former Rule 772(c).

The former rule, by its terms, required the court to inform an accused that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment before sentence was imposed. The rule also required the court to afford the defendant an opportunity to exercise this right. The requirement that the court inform the accused of this right was eliminated in the present version of the rule leaving only the requirement that an opportunity to make a statement be afforded.” The “requirement” that the petitioner have “an opportunity” to offer mitigating evidence was not complied with here. See Shifflett, 315 Md. at 388 , 554 A.2d at 817 (footnote omitted)(“That rule requires that the court afford the defendant an opportunity to make a statement and present information in mitigation of punishment.”).

Indeed, the opportunity was denied even though, in the instant case, the petitioner requested the opportunity to present mitigating evidence; he was told, in effect and in fact, that he was not entitled to such an opportunity. That ruling directly violated Md. Rule 4-342(f). Affirming that the requirement that there be an opportunity to present mitigating evidence is mandated is consistent with the United States Supreme Court’s holding in North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) 4 . ⁷⁰⁰ Addressing the perimeters of the trial court’s authority on resentencing, the Court instructed: “A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Williams v. New York, 387 U.S. 241, 245 [ 69 S.Ct. 1079, 1082 , 93 L.Ed. 1337, 1341 (1949) ]. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.

The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ Id., at 247[, 69 S.Ct. at 1083 , 93 L.Ed. at 1342 ].” Id. at 723, 89 S.Ct. at 2079-80 , 23 L.Ed.2d at 668 . Although, in Pearce , a conviction, rather than a sentence, had been vacated, the underlying rationale is the same. The Court of Special Appeals, relying heavily on this passage from Pearce , stresses that the petitioner did not meet his burden to prove that he had new “life, health, habits, conduct, and mental and moral propensities” since the first trial and sentencing. Whether any burden of proof is imposed on a defendant, the petitioner, in this case, was never given the opportunity, prescribed by Rule 4-342(f), to meet it.

In response to the petitioner’s indication that he wanted to present mitigating evidence, the trial court stated: “I don’t believe there is anything to mitigate on. I think this was sent back for merger.” Even if the petitioner had new information or evidence, the opportunity for him to have introduced it was foreclosed. The trial court thus treated the proceeding as being one for the limited purpose of merging two counts. It was unwilling to hear what the petitioner’s defense counsel ⁷⁰¹ had to say, and, unfortunately, the petitioner neither pursued nor pushed the issue.

The remand hearing was for the purpose of “resentencing” the petitioner. Therefore, the trial court was required, as with any sentencing proceeding, to listen to the evidence and to decide whether to accept, or refuse, it as mitigation. This Court does not share the Court of Special Appeals’ confidence that there was no new, and possibly pertinent, information to be adduced, as the opportunity to present it was precluded by the trial court’s refusal to consider the matter of mitigation. It is this Court’s position that the trial judge has to consider mitigating evidence when it is offered; it may, but need not, accept it.

Nor is this Court to be understood as holding that the petitioner’s right to allocate is unbridled. In Harris v. State, 306 Md. at 359 , 509 A.2d at 127 , we made this point with clarity. There, commenting on the trial court’s authority to control allocation, we said: “[W]e do not suggest that the exercise of this right [of allocution] may be unlimited as to either duration or content. Although a sentencing court may not deny a defendant who elects to allocute a fair opportunity to exercise his right, the court may in its discretion curtail allocution that is irrelevant or unreasonably protracted.” Id.

A related issue is the extent to which the trial court’s sentencing role in this case was