Mainor v. State

Darrell Leonard Mainor v. State of Maryland, No. 55, September Term, 2020. Opinion by Getty, J. CRIMINAL LAW – SENTENCING – DENIAL OF POSTPONEMENT – ABUSE OF DISCRETION – Court of Appeals held that the trial court abused its discretion when it insisted that defendant be sentenced before discharging the jury and refused to postpone sentencing for either a long-form presentence investigation or defendant’s mother’s testimony, both of which were requested by defendant to mitigate his punishment. Additionally, Court of Appeals held that the trial judge’s dismissive comments of the defendant’s mother during the sentencing process could cause a reasonable person to infer the trial judge was not impartial, thereby violating defendant’s due process rights to a fair sentencing. Circuit Court for Wicomico County Case No. C-22-CR-18-000762 Argued: May 10, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 55 September Term, 2020 DARRELL LEONARD MAINOR V. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Biran JJ.

Opinion by Getty, J. Filed: August 11, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-16 10:16-04:00 Suzanne C. Johnson, Clerk This case calls on us to consider a trial judge’s exercise of discretion in declining to postpone a defendant’s sentencing. Following a two-day trial, Darrell Leonard Mainor was convicted of home invasion, burglary, assault, and reckless endangerment. Directly following the jury verdict, the trial court indicated its intention to move to sentencing. Mr. Mainor requested a postponement in order to prepare mitigating information for the court’s consideration in fashioning his sentence.

Specifically, Mr. Mainor requested that the court order a long-form presentence investigation report (“PSI”)1 and indicated that additional time would allow his mother to secure leave from work to testify on his behalf. In response, the trial court denied Mr. Mainor’s request for a long-form PSI and decided to move forward with sentencing despite his mother’s absence. For reasons fully explained below, we find that the trial judge’s use of discretion in reaching these outcomes was “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” In re Don Mc., 344 Md. 194, 201 (1996) (quoting State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26 (1971)).

Additionally, the trial judge’s remarks in the sentencing process demonstrated an unreasonable consideration of the jury’s entitlement to observe sentencing and a perceivable partiality or bias against the defendant and his mother. Therefore considering cumulatively the remarks and actions of the trial judge, we conclude that the trial judge abused his discretion by denying Mr. Mainor’s request to postpone sentencing and, consequently, we reverse the judgment of the Court of Special 1 “A pre-sentence investigation is an investigation of the relevant background of a convicted offender, usually conducted by a probation officer attached to a court, designed to act as a sentencing guide for the sentencing judge.” Germain v. State, 363 Md. 511, 522 (2001) (citations and quotations omitted). Appeals and remand the case to that court with instructions to vacate the sentence of the Circuit Court for Wicomico County and to remand the case to that court for re-sentencing before a different judge. BACKGROUND A. Home Invasion, Burglary, and Assault.

On July 23, 2018, a violent home invasion took place at 501 Christopher Street in Salisbury, Maryland at the home of an elderly ninety-year-old, Francis Joan McCrorey. Shirley Donohoe, an eighty-one-year-old woman and close friend of Ms. McCrorey, was assisting Ms. McCrorey in her home that day. After fixing lunch for Ms. McCrorey, Ms. Donohoe escorted Ms. McCrorey to the bathroom. As the two women exited the bathroom, they were confronted by an unfamiliar man in the house demanding to know where the money was kept.

After Ms. Donohoe responded by explaining that she did not know where the money was, the assailant struck Ms. Donohoe in the face repeatedly, breaking her upper dental plate and nose as well as knocking her unconscious. When Ms. Donohoe regained consciousness, she observed the assailant leave the home through the back door. Ms. McCrorey was sitting on the floor next to the bathroom, bleeding from her cheek.2 Ms. Donohoe called 911 for assistance. Officer Noah King of the Salisbury Police Department responded to the call and found both women injured and frightened.

Although in a frantic state, Ms. Donohoe was able to provide the responding 2 Ms. Donohoe did not witness the assailant strike Ms. McCrorey and could not recall seeing any blood on Ms. McCrorey, but the responding police officer noted Ms. McCrorey’s bleeding cheek. A line with a death certificate attached was submitted in the record by the State to inform the court that Ms. McCrorey died prior to trial. 2 officer with a brief description of the assailant, indicating he was a young African- American male wearing a gray sweatshirt with the hood pulled up. Both women were taken by ambulance to the hospital for medical treatment. Later at the hospital, Ms. Donohoe provided further details about her assailant’s description, estimating that he was between twenty and twenty-five years old, about five feet, ten inches tall, and between one- hundred and eighty and two hundred pounds with a stocky build.

Back at the scene of the incident, investigating officers discovered that two upstairs bedrooms had been ransacked and a fireproof safe had been emptied. Additionally, the officers located an open second-floor window situated above a first-story roof. A large oil tank sat below the first-story roof. The officers determined that the assailant likely climbed the oil tank, accessed the first-story roof, and then climbed through the second-floor window to enter the home.

Swabs from the oil tank and from the windowsill provided sufficient DNA for an expert in forensic DNA analysis to make a match to Darrell Leonard Mainor’s DNA profile. Following the DNA match, Ms. Donohoe was shown a photo array on September 21, 2018. She did not positively identify Mr. Mainor but did note that his photo was the “closest” to the man that assaulted her. Mr. Mainor was interviewed by the police on November 6, 2018 and initially denied any involvement in the incident, asserting that he had never been to Ms. McCrorey’s home.

He later stated that he might be willing to provide information regarding the incident in exchange for a deal. On the same day, Mr. Mainor was arrested and charged with twelve criminal counts in connection with the home 3 invasion, burglary, and assault, of Ms. Donohoe and Ms. McCrorey. Later at trial, Ms. Donohoe identified Mr. Mainor as her assailant. B. Trial and Sentencing.

Following a two-day jury trial on July 16 and 17, 2019, the jury found Mr. Mainor guilty of home invasion; first, third, and fourth-degree burglary; first and second-degree assault against Ms. Donohoe; and reckless endangerment. The jury found Mr. Mainor not guilty of first and second-degree assault against Ms. McCrorey. After polling the jury, the trial judge immediately stated, “All right. We’ll go to sentencing.” Mr. Mainor’s defense counsel responded by requesting to postpone sentencing to undertake a long-form PSI.

The trial judge indicated there was no need for a PSI, to which defense counsel responded that Mr. Mainor’s mother was unable to be present that day even though she had been at the trial the prior day. In light of her absence, defense counsel emphasized the importance of providing the court with “some background information about [Mr. Mainor] in order to fashion an appropriate sentence.” The trial judge then asked why Mr. Mainor’s mother was unable to be present, to which defense counsel responded, “she has this thing called work that she had to attend.” The trial judge speculated, “[s]o it’s obviously not that important to her.” While asking the State’s position on the request to postpone sentencing, the trial judge reasoned, “I think the jury is entitled to see the resolution of this case.” The State offered no objection to the postponement. Following a short discussion about whether or not the trial judge was able to sentence Mr. Mainor for both the convictions at issue and other violations of probation, the trial judge again reiterated, “I see no need at all, any 4 benefit at all from a long-form PSI.” Defense counsel then asked the trial judge to release the jury from the jury box, although acknowledging that the jury was free to stay if they wished. The trial judge responded, “that’s not your decision.

Maybe they would like to stay here . . . . They can stay right where they are, as far as I’m concerned.” Defense counsel objected “to the [c]ourt’s process[,]” to which the trial judge replied, “[this is a] process which I’ve followed for fifteen years.” The court then went on to hear the State’s recommendations for sentencing as well as statements by two of Ms. Donohoe’s sons. The State asked for a total sentence of fifty years. Following a discussion of merger related to several charges, the court then heard from defense counsel who asked for a “substantially lower” sentence.

While addressing the court, defense counsel stated, “[m]y client is very young. As I indicated to the [c]ourt, I wish that his mother was capable of being here. Unfortunately, she did have to work.” The trial judge answered, “[s]he could be here, [defense counsel], you know that.” Defense counsel replied, “[s]he was here all day yesterday, Your Honor. It is hard for people to get away from work multiple days in a row, especially if they’re in, you know, doing certain types of jobs.” Finally, the court heard a brief statement from Mr. Mainor.

The trial judge imposed a sentence of twenty years’ incarceration for first-degree burglary and twenty years’ incarceration for first-degree assault, to be served consecutively. Shortly thereafter, the trial judge addressed the jury stating, “Mr. Foreman, and ladies and gentlemen of the jury, thank you very much for your services. It was not an easy case to judge. So thank you, you are now free to go.” 5 C. Appeal and Opinion of the Court of Special Appeals.

On November 5, 2020, in an unreported opinion, the Court of Special Appeals affirmed Mr. Mainor’s home invasion, first-degree assault and reckless endangerment convictions,3 holding that there was sufficient evidence for each. Mainor v. State, No. 1068, Sept. Term, 2019, slip op. at 4–9 (filed Nov. 5, 2020). The Court of Special Appeals additionally held that the trial court did not abuse its discretion in overruling defense counsel’s objection to improper comment in the State’s closing argument because the improper comment was a harmless error. Id. at 11–16.

Lastly, pertinent to this case, the Court of Special Appeals held that the trial court’s refusal to postpone sentencing was not an abuse of discretion, reasoning that, when questioned, defense counsel did not proffer any “specific details of what he expected the pre-sentence investigation to reveal” or what Mr. Mainor’s mother’s “hypothetical testimony would entail.” Id. at 16–17. Thus, the Court of Special Appeals concluded that the trial court did not abuse its discretion for failing to weigh “information that was never offered.” Id. at 17. Mr. Mainor timely petitioned this Court for a writ of certiorari, which we granted on February 8, 2021. Mainor v. State, 472 Md. 313 (2021).

Before us is the following question: Did the trial court abuse its discretion and violate Petitioner’s right to present information in mitigation of punishment where the court insisted that Petitioner be sentenced before it discharged the jury and refused to postpone sentencing for either a presentence investigation or the appearance and testimony of Petitioner’s mother on his behalf? 3 Mr. Mainor’s conviction for first-degree burglary was not at issue before the Court of Special Appeals. 6 For the reasons more fully stated below, we answer this question in the affirmative and hold that the trial court abused its discretion when it insisted that Mr. Mainor be sentenced before discharging the jury and refused to postpone sentencing for either a long- form PSI or Mr. Mainor’s mother’s testimony. Accordingly, we reverse the judgment of the Court of Special Appeals. STANDARD OF REVIEW “It is settled that the decision whether to grant a postponement is within the sound discretion of the trial judge.” Ware v. State, 360 Md. 650, 706 (2000) (citing Wilson v. State, 345 Md. 437, 451 (1997)). “Where the decision or order of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” In re Don Mc., 344 Md. at 201 (quoting Junker, 79 Wash.2d at 26 ). Additionally, “[a]n abuse of discretion occurs where no reasonable person would take the view adopted by the circuit court.” Montague v. State, 471 Md. 657, 674 (2020) (quoting Williams v. State, 457 Md. 551, 563 (2018)).

DISCUSSION A. Parties’ Contentions. Mr. Mainor, Petitioner, argues that the circuit court abused its discretion in denying his request to postpone sentencing. Mr. Mainor asserts that, by moving directly to sentencing immediately following the delivery of the jury verdict, his rights to present information in mitigation of punishment were violated. Specifically, Mr. Mainor contends that the circuit court abused its discretion by refusing to postpone his sentencing to allow 7 for either a long-form PSI or for his mother to be available to testify on his behalf as requested by his counsel.

In support of his claim of abuse of discretion, Mr. Mainor argues that the trial judge relied on untenable grounds to deny the postponement, as evidenced by the trial judge’s speculative comments about his mother’s absence and the trial judge’s remarks about the jury’s entitlement to observe his sentencing. Finally, Mr. Mainor contends that the trial judge’s negative and unfounded comments about his working mother created an appearance of unfairness and partiality, resulting in a due process violation and constituting yet another basis for this Court to find an abuse of discretion. Accordingly, Mr. Mainor asks this Court to reverse and remand this case to the Court of Special Appeals with instructions to remand the case to the circuit court for re-sentencing before a different judge. Conversely, the State, Respondent, argues that the circuit court properly exercised its discretion in denying Mr. Mainor’s request to postpone sentencing.

The State contends that Mr. Mainor’s request for a postponement primarily depended on his request for a long- form PSI. Emphasizing that the decision to grant or deny a PSI is also discretionary, the State maintains that Mr. Mainor did not meet his burden of showing that the circuit court should order the PSI because he failed to proffer specific information or circumstances that required further investigation in order to assist the sentencing process. The State points out that Mr. Mainor only articulated that the PSI would potentially reveal “some background information.” Thus, the State reasons, without further justification for the PSI request, the trial judge reasonably determined “that a PSI providing only generic, summary background information” would offer no benefit for sentencing. 8 Additionally, the State contends that the circuit court did not abuse its discretion in declining to postpone Mr. Mainor’s sentencing on the basis of his mother’s absence. Again, the State maintains that Mr. Mainor failed to “explain the content of his mother’s expected testimony” or “proffer the materiality” of her testimony.

The State therefore asserts—bearing in mind the absence of an explanation of how Mr. Mainor’s mother’s testimony would provide mitigating information—that the trial judge exercised proper discretion in refusing to postpone sentencing for the purpose of accommodating her testimony on a later date. Lastly, the State argues that the trial judge’s “stray comments” regarding the absence of Mr. Mainor’s mother and the entitlement of the jury to witness sentencing did not affect the postponement ruling. Consequently, the State asserts these comments were harmless, and that although “reasonable people might disagree with the court’s comments about the jury and [Mr.] Mainor’s mother, they would not infer bias or partiality[.]” Accordingly, the State argues that Mr. Mainor was not denied a fair trial and asks this Court to affirm the Court of Special Appeals’ opinion below. B. Denial of Request to Postpone.

We begin our analysis by considering the trial court’s denial of Mr. Mainor’s request to postpone sentencing beyond the date of the jury verdict. As we have noted, the decision on whether to postpone sentencing “is committed to the sound discretion of the court.” Abeokuto v. State, 391 Md. 289, 329 (2006) (citing Ware, 360 Md. at 706 ). We have defined judicial discretion as “a composite of many things, among which are conclusions drawn from objective criteria . . . [and] judgment exercised with regard to what is right 9 under the circumstances and without doing so arbitrarily or capriciously.” In re Don Mc., 344 Md. at 201 (quoting Junker, 79 Wash.2d at 26 ). Additionally, the “proper exercise of discretion involves consideration of the particular circumstances of each case . . . [and] a court errs when it attempts to resolve discretionary matters by the application of a uniform rule, without regard to the particulars of the individual case.” Gunning v. State, 347 Md. 332, 352 (1997).

Next, we recognize that a defendant has an absolute right to allocution, which includes an absolute right to present mitigating information, prior to sentencing pursuant to Maryland Rule 4-342(e), which provides: 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. Md. Rule 4-342(e). See also Chaney v. State, 397 Md. 460 , 470–71 n.6 (2007) (“Defendants have a right . . . to allocute, which includes the right ‘to present information in mitigation of punishment.’”). As we have stated before, this rule is not permissive.

See Jones v. State, 414 Md. 686, 698 (2010) (citing Kent v. State, 287 Md. 389, 393 (1980)). Instead, “[i]t is this Court’s position that the trial judge has to consider mitigating evidence when it is offered[.]” Id. at 701. Put another way, “while what the trial court makes of evidence offered in mitigation is a matter entrusted to its discretion, its application of [Rule 4-342(e)] . . . is mandatory.” Id. at 703. The remedy for a violation of this rule is re- sentencing.

Id. (quoting Kent, 287 Md. at 393–94). Here, Mr. Mainor argues that the trial court abused its discretion by failing to give proper weight to the importance of allowing Mr. Mainor to present additional information 10 in mitigation of punishment. We agree.

Irrespective of a trial judge’s perception of the benefit of hearing mitigating evidence under an individual set of facts, the opportunity to present mitigating information must be given to a defendant pursuant to Maryland Rule 4- 342(e). By refusing Mr. Mainor’s request to postpone the sentencing beyond the date of the verdict, the trial judge eliminated Mr. Mainor’s opportunity to present mitigating information in either manner proposed by Mr. Mainor—namely a long-form PSI or his mother’s testimony. As we further explain below, we hold that this was a violation of Maryland Rule 4-342(e) and, as such, requires that Mr. Mainor be re-sentenced. a. Denial of the Long-form PSI.

Initially, the State emphasizes that pursuant to § 6-112(b) of the Correctional Services Article (“COR”) of the Maryland Code, the trial court’s ruling on a PSI request is discretionary, and the requesting party bears the burden of establishing that the investigation should be ordered. COR § 6-112(b) provides: (b)(1) If a circuit court is satisfied that a presentence investigation report would help the sentencing process, the court may order the Division to complete a report before: (i) sentencing a defendant who is convicted of a felony or of a misdemeanor that resulted in serious physical injury or death to the victim to the jurisdiction of the Division of Correction; or (ii) referring a defendant to the Patuxent Institution. (2) The party that requests the report has the burden of establishing that the investigation should be ordered. Md. Code (1999, 2017 Repl.

Vol.), COR § 6-112(b) (emphasis added). The State maintains that the fact that other circumstances—not present here—give rise to a statutorily mandated PSI further underscores the trial judge’s discretion to deny Mr. Mainor’s PSI request in this 11 case. See Md. Code (1999, 2017 Repl. Vol.), COR § 6-112(c)(1) (mandating a PSI in cases of first-degree murder convictions where the State has requested life without parole).

Here, in response to Mr. Mainor’s requests for a PSI, the trial judge remarked that he did not think that a long-form PSI was warranted, asking Mr. Mainor’s counsel, “What will a long-form PSI tell me?” The trial judge later stated, “I see no need at all, any benefit at all from a long-form PSI.” The State contends that by stating there was no “benefit” or “need” to order a PSI, the trial judge clearly indicated that he was not satisfied that a presentence investigation report would assist the sentencing process. Therefore, the State argues the trial judge properly exercised discretion in denying Mr. Mainor’s request for a PSI under COR § 6-112(b)(1). Furthermore, the State argues that Mr. Mainor failed to meet his burden of establishing why the court should order a long-form PSI. The State relies on a Court of Special Appeals case, Somers v. State, to support this assertion. 156 Md. App. 279 (2004).

In Somers, the defendant was sentenced the same day as the verdict was returned, and in that case the following colloquy occurred: THE COURT: [Mr. Prosecutor], as to sentencing? [STATE]: Your Honor, the State is ready to proceed with sentencing. [DEFENSE]: Your honor, I request a pre-sentence investigation. THE COURT: Denied. We will sentence today. [Mr. Prosecutor]? Id. at 318 .

On appeal, the defendant argued that the trial court abused its discretion “by failing to give him an opportunity to explain the basis for his request for a presentence investigation and by failing to exercise any discretion at all in denying the request for such 12 an investigation.” Id. However, the Court of Special Appeals held that the trial court properly denied the PSI request because the defendant “did not give a reason and did not attempt to give a reason” for the request and thus made “no showing . . . to support it.” Id. at 319 . Here, the State notes that when asked what a PSI would reveal, Mr. Mainor’s counsel stated: Well, for example, my client’s mother was here yesterday, she’s unable to be here this morning. I do think it’s important that the [c]ourt has some background information about my client in order to fashion an appropriate sentence.

Additionally, at another point Mr. Mainor’s counsel referenced the importance of providing the trial court with background information through a PSI because it was likely that Mr. Mainor’s sentence would be substantial. The State maintains that these responses made no “showing of need” for a PSI because they failed to proffer what specific background information the PSI may provide. In the same vein, the State argues that Mr. Mainor’s justification for his PSI request—to provide some background information—amounted to a boilerplate definition of a PSI. See Germain, 363 Md. at 522 (defining a PSI as an “[i]nvestigation of the relevant background of a convicted offender”).

The State emphasizes that the purpose of any PSI is to provide background information about the defendant, and if “a stated desire to provide ‘background information’ alone compels a PSI, then courts effectively must order an investigation on demand[,]” thereby eviscerating judicial discretion. Therefore, the State contends that without a case-specific explanation of how a PSI would assist the sentencing 13 process, the trial court did not abuse its discretion in declining to postpone Mr. Mainor’s sentencing for a long-form PSI. We strongly disagree with the State’s position. Somers is easily distinguishable from this case because counsel for the defendant in Somers did not offer any explanation for the PSI request whatsoever.

See Somers, 156 Md. App. at 318 . The extent of the PSI request in Somers was, “Your honor, I request a pre-sentence investigation.” Id. It is quite clear from the record that there was a more detailed discussion surrounding the need for a PSI in Mr. Mainor’s case. Moreover, while case-specific reasoning would, of course, be useful in persuading the trial judge of the benefit of a PSI to the sentencing process, we reject the State’s argument that a defendant must proffer case-specific reasoning or articulate specific circumstances in his or her background meriting further investigation in order to meet the burden imposed by COR § 6-112(b)(2).

The very nature of a PSI—or any investigation, for that matter—is to unearth new and relevant information. This information is used to assist the sentencing court “in reaching its goal of individualizing the sentence to fit the offender and not merely the crime.” Germain, 363 Md. at 523 (citation and quotations omitted). A PSI report may vary in scope and focus, but typically contain[s] at least the following items: (1) complete description of the situation surrounding the criminal activity; (2) offender’s educational background; (3) offender’s employment background; (4) offender’s social history; (5) residence history of the offender; (6) offender’s medical history; (7) information about environment to which the offender will return; (8) information about any resources available to assist the offender; (9) probation officer’s view of the offender’s 14 motivations and ambitions; (10) full description of the defendant’s criminal record; and, (11) recommendation as to disposition. Germain, 363 Md. at 522 n.9.

It is apparent to us that a PSI report often generates a wealth of new information that may not always be at the defense counsel’s immediate disposal when requesting a PSI. Thus, we conclude that it would be illogical to require a showing of specific information anticipated to be revealed by a future investigation that—at the time of the showing—had not yet been