Phillips v. State

HOTTEN, J. Appellant was convicted of first degree murder and armed robbery by a jury in the Circuit Court for Worcester County. Following a successful appeal and remand by the Court of Appeals, he was re-tried and convicted of first degree murder, armed robbery, and misdemeanor theft. The court sentenced him to life without the possibility of parole and a consecutive twenty year sentence. Appellant appeals and presents the following questions for our review: 1.

Where appellant successfully overturned his conviction on appeal and was retried, did the sentencing court err in increasing appellant’s sentence on the first degree murder count from life with the possibility of parole after his first trial to life without the possibility of parole after the retrial? 2. Is appellant entitled to a new sentencing where one of the reasons relied upon by the State in seeking an increased sentence was incorrect? For the reasons that follow, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL HISTORY On April 8, 2009, appellant, Charles Robert Phillips, was convicted in the Circuit Court for Worcester County of first degree murder, and robbery with a deadly weapon of William Nibblett.

The court sentenced him to life imprisonment with the possibility of parole for the murder and to a consecutive twenty year sentence for the armed robbery. Appellant appealed. ⁶³⁰ During the pendency of his appeal, appellant was incarcerated for several years in the North Branch Correctional Institute (“North Branch”) where he received two disciplinary infractions for possessing weapons. On December 2, 2009, correctional officers searched appellant’s cell and located a weapon made from a piece of a cup inside of appellant’s trash can. On December 4, 2009, correctional officers discovered a second knife-like weapon hidden within appellant’s mattress.

Appellant received an internal administrative hearing where both hearing officers found appellant guilty and imposed sanctions. 1 This Court affirmed his convictions in an unreported opinion and the Court of Appeals granted certiorari. In Phillips v. State, 425 Md. 210 , 40 A.3d 25 (2012), the Court reversed appellant’s convictions and remanded for a new trial. In June of 2012, after appellant’s case was remanded for a new trial, he was transferred to Worcester County Jail (“Worcester Jail”). While there, following a verbal confrontation between several inmates, appellant was strip searched and correctional officers discovered a concealed weapon.

In June of 2013, appellant was re-tried for first degree murder and the related robbery offenses. A jury found him guilty of murder, armed robbery and misdemeanor theft. Prior to sentencing, the State filed a motion seeking an enhanced sentence pursuant to Maryland Code, (1974, Repl.Vol. 2013) § 12-702(b) of the Courts and Judicial Proceedings Article [hereinafter Cts. & Jud. Proc.], which states: (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.

How ⁶³¹ ever, 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 additional objective information concerning identifiable conduct on the part of the defendant; and (3) The factual data upon which the increased sentence is based appears as part of the record. The State argued that the three weapons related disciplinary infractions were sufficient to warrant an increase in sentence. Appellant argued that the statute as written was unconstitutional. Following oral arguments, the court granted the motion, which permitted the State to present evidence at the sentencing hearing for an enhanced sentence.

At sentencing, the State presented several witnesses who testified regarding appellant’s disciplinary violations, including correctional officers and administrative hearing officers. Appellant did not deny that he possessed the weapons or that he was found guilty by the administrative hearing officers. Rather, he contended that personal safety concerns were the motive behind his possession of the weapons. He alleged that he was unaffiliated with a gang; was perceived as a target within the correctional institutions; and that the weapons were a preventative measure if he was attacked.

He also noted that following the two infractions in December, he did not receive any other weapons violations. Additionally, appellant advanced an argument that the statute was vague: [APPELLANT’S COUNSEL]: Your Honor, there isn’t any sort of indication that during the five years, give or take, that [appellant] has spent in custody in relation to this case that he’s ever once attacked any person in any institution with an weapon. It’s not— THE COURT: Is that— APPELLANT: — before this Court. THE COURT: Is that what is required for an increased penalty? ⁶³² APPELLANT: Well, Your Honor, my — my personal opinion is that the information that’s required under the Maryland statute is pretty vague and unclear as to what it is that, you know, the Court can decide.

I mean, the Court can decide any — the Court could decide that if my — you know, if he were to take a tone with someone, if he were to just not show himself to be amenable, if he engages in bad behavior, you know, the Court can consider that. THE COURT: Well I think— APPELLANT: It’s pretty vague. THE COURT: Well, I don’t know how vague it is, but I think, certainly, any disciplinary record is sufficient for the Court to consider. And that’s pretty much what the appellate court said in Davis when they said, well, this evidence was here and would have been sufficient, but it never became part of the record and the judge never said that’s what he was relying on.

So the intimation is, if it had been introduced into evidence, and if the judge said, well, this is what I’m relying on then it would have been authorized because that — just like these records that have been introduced into evidence here, that was the type of evidence that the Court foresaw a judge considering and looking at in determining whether, in fact, an increased sentence could be warranted. The court disagreed and found that it would consider the disciplinary infractions: THE COURT: All right. Well, let me do this because, it’s — even though you indicated it’s vague, I think it’s pretty clear in Criminal and Judicial Proceedings, Section 12-702(b), in order to consider an increased sentence, the reasons for the increased sentence — increased penalty affirmatively appear. And I am stating on the record that I find that the three incidents — two in the D.O.C. and the one in the Worcester County Jail — where [appellant] was found in possession of a weapon are the type of behavior and conduct that would warrant an increased sentence. ⁶³³ The other consideration is based on additional objective information concerning identifiable conduct.

Again, it’s pretty much the same, that this is objectionable — objective conduct. It’s not subjective. It’s not — I’m not considering the attitude that the one witness talked about or anything of that nature.[ 2 ] I am strictly considering these three incidents where he was in possession of a weapon. And number three is the factual data upon which the increased sentence is based appears as part of the record.

And there is an abundance of factual evidence that’s in evidence based on the C.D.s of the hearing, based on the written findings of the hearing examiner, based on the written reports of the correctional officers and the officers at the Worcester County Jail and the testimony of the witnesses. So there’s an abundance of evidence that’s in the record that I will consider in fashioning this sentence. Announcing its ruling, the court stated: THE COURT: As I was indicating, rehabilitation is another factor to be considered by the Court, and I was alluding to the fact that [appellant] has numerous criminal convictions, continued criminal activity, being placed on supervised probation four times, three of which were violated, and, in addition, this crime for which he stands convicted of today occurred one day after he was released from jail. In addition to that, after sentencing upon the first conviction, while he was incarcerated, he was charged with institutional violations on three separate occasions, the two in D.O.C and the one in the Worcester County Jail, and was found guilty of each.

Chillingly, each of these events involved a knife, the same weapon that was used in this particular case. ⁶³⁴ So to prevent [appellant being released and committing another crime], what I’m going to do, as to Count No. 1, I’m going to sentence you to the Division of Correction for the remainder of your natural life without the possibility of parole. As to Count No. 3, armed robbery, I’m going to sentence you to 20 years in the Division of Correction, and that 20 years is consecutive to the life sentence. As to Count No. 4, the theft of less than $500, that will merge with the Count No. 3, armed robbery. Appellant noted a timely appeal.

Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issue presented. STANDARD OF REVIEW It is well-established that there are only three grounds for appellate review of sentences recognized in this state, which the Court of Appeals outlined in Gary v. State, 341 Md. 513 , 671 A.2d 495 (1996). They are: “(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 was within statutory limits.” Id. at 516 , 671 A.2d 495 . In Ridenour v. State, 142 Md.App. 1,11-12 , 787 A.2d 815 (2001), we discussed the trial judge’s broad powers over sentencing and the appellate courts’ scope of review, stating: Trial judges are vested with broad discretion in sentencing.

In exercising this discretion, the sentencing judge should consider “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.” The judge’s consideration should be undertaken with the aim of furthering the goals of the criminal justice system: punishment, deterrence, and rehabilitation. A sentence is subject to appellate review on three bases: (1) whether it is in violation of federal or state constitutional ⁶³⁵ guarantees; (2) whether the sentencing judge was motivated by ill-will, prejudice, or other impermissible considerations; and (3) whether the sentence is within statutory limits. Id. at 11-12 , 787 A.2d 815 (internal citations omitted). DISCUSSION I. Due Process The Fourteenth Amendment to the U.S. Constitution protects a defendant’s due process rights.

It states in relevant part: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article 24 of the Maryland Declaration of Rights states: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. Appellant alleges that Cts. & Jud. Proc. § 12-702(b) violates his due process rights under both the U.S. Constitution and the Maryland Declaration of Rights. He advances two arguments in support of his contention.

First, appellant avers that the State must prove beyond a reasonable doubt any offenses which can be used to increase his sentence. Second, he challenges the statute as void for vagueness, contending that the statute is unclear as to what “identifiable conduct” may render a defendant subject to an increased sentence. a. Burden of Proof Before the trial court and this Court, appellant argues that any conduct subsequent to his first conviction that was used to increase his sentence must have been established before a jury beyond a reasonable doubt. The State responds that there is a distinction between factual determinations that increase a sentence by law, and facts that influence a court’s exercise of ⁶³⁶ discretion — the former requires proof beyond a reasonable doubt, while the latter does not.

The State avers that the circumstances of the instant case involve an exercise of the court’s discretion. Accordingly, any conduct did not need to be established beyond a reasonable doubt by a jury. The U.S. Supreme Court has consistently affirmed the importance of a jury determination of a defendant’s guilt or innocence. Addressing the origins of the right to a jury trial, the Court opined: The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.

A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.

If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.... Duncan v. Louisiana, 391 U.S. 145, 155-56 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). More recently, in Apprendi v. New Jersey, 530 U.S. 466, 477 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the Court has explained: ⁶³⁷ [T]o guard against a spirit of oppression and tyranny on the part of rulers, and as the great bulwark of [our] civil and political liberties, trial by jury has been understood to require that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours....

(internal citations and quotations omitted) (emphasis in the original). Relying on Apprendi , appellant maintains that the right to a jury trial extends to any factual findings which increase a defendant’s sentence. There, Apprendi was charged with second degree possession of a firearm for an unlawful purpose, and twenty two other related charges, after shooting several times into the home of an African American family. 530 U.S. at 469 , 120 S.Ct. 2348 . The second degree firearm possession carried a maximum sentence of ten years imprisonment.

Id. He originally indicated to police that his motivation for the shooting was that he did not want the African American couple living in his neighborhood. He later retracted this statement and was not charged under the state’s hate crime statute. Id.

Apprendi pled guilty to three firearms charges. Id. The State moved for an enhanced sentence as to the second degree firearm possession count, alleging that the shooting was racially motivated and therefore, a hate crime. Id. at 470 , 120 S.Ct. 2348 .

The potential sentence with the hate crime enhancement for the second degree firearm possession count alone increased from a maximum of ten years to a maximum of twenty years. Id. After hearing the evidence on the enhancement, the court found by a preponderance of the evidence that the crime was racially motivated and sentenced Apprendi to twelve years for the second degree firearm possession count and two concurrent sentences for the other two counts. Id. at 471 , 120 S.Ct. 2348 .

Apprendi appealed, arguing that due process required that a jury find that the hate crime enhancement was established beyond a reasonable doubt. Id. ⁶³⁸ The Supreme Court explored the history and importance of the jury trial and proof beyond a reasonable doubt. See generally id. at 476-85, 120 S.Ct. 2348 . It explained that while in the past there was very little distinction between an element of a felony and a sentencing factor, today, courts have accepted that the two are different and some determinations “[go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.” Id. at 484 , 120 S.Ct. 2348 .

Citing McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), the Court explained that a sentencing factor is “a fact that was not found by a jury but that could affect the sentence imposed by the judge.” Id. at 485, 120 S.Ct. 2348 . In determining whether a fact is an element or a sentencing factor: “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty