Saenz v. State

CATHELL, Judge. Silvano Amoldo Saenz, appellant, was convicted in a jury trial in the Circuit Court for Montgomery County of child abuse and sexual offense in the second degree. The trial court sentenced appellant to ten years on the child abuse conviction and merged the second degree sexual offense conviction into the child abuse conviction. He presents three main issues on appeal: I. Did the sentencing judge consider that the defendant maintained his innocence after being convicted of a crime as a factor in determining the length of his sentence when the judge stated “I see and hear no remorse from you about this, not one bit” and then expressly included this observation in determining a ten year sentence?

II

Did the sentencing judge abuse his discretion when he departed from the Sentencing Guidelines which recommend a maximum four year period of incarceration and sentenced a defendant convicted of child abuse to ten years without explaining his reasons for imposing the harsh sentence in light of the defendant’s respected character and lack of criminal record and where there was no record of physical or psychological trauma to the well adjusted victim and an absence of compelling circumstances?

III

Did the defendant’s counsel provide ineffective assistance when he failed to call a potentially important character witness on the defendant’s behalf and permitted the jury to be rushed into deciding a verdict without objection? The Facts Appellant’s 10-year-old daughter, after identifying the appellant, testified that he made her “suck his private” on the “sofa” in the basement of his house. She testified that ²⁴¹ it first occurred when she was five or six. She said that it occurred on different days and would, on occasion, happen while her mother was upstairs cooking dinner.

It stopped after appellant moved out of the house for good. She described the nature of the incidents at some length and graphically. In light of the issues raised, we need not further describe that testimony except to say that the trial court’s description of the offenses as “unbelievable” and “heinous” is an understatement. I. The trial judge did not consider impermissible matters in fashioning the sentence.

There was a separate sentencing proceeding on March 13, 1992, almost two months after appellant’s conviction. At that hearing, speaking in the present tense, the trial court stated, “I see and hear no remorse from you about this; not one bit.” Saenz now claims that the trial court’s statement equates to consideration of an impermissible matter, i.e., appellant’s claim of innocence evidenced by his not guilty plea. 1 We note initially that the trial court’s statement referred to appellant’s post-conviction demeanor. The trial court expressly referred to appellant’s lack of present remorse at the sentencing hearing. The court’s sentencing statement came immediately after Saenz’s allocution.

That allocution included: [Ejverything that has happened here is because of a big hate and jealousy, because I have been trying for three ²⁴² and a half years to separate from my children’s mother and until now haven’t been able to do it. She always swore that I would never be free from her---- First she used tricks, then she tried to keep me using other ways, pretending the girl was sick____ She wasn’t sick. She has recurred to these dirty tricks to accuse me of something that has never been proved; it is just words. ... [A]nd it has been my wife — the child’s mother’s lies. She has a very smart mind to do all these tricks.

Under the circumstances of this case, the trial court was commenting as an aside at sentencing on appellant’s lack of remorse at that hearing. There is no indication anywhere in the record that links the trial court’s statement to appellant’s original decision to plead not guilty. At the time Saenz displayed the lack of remorse that generated the trial court’s remark, the presumption of innocence had been gone for almost two months. It is clear to us that the trial court properly considered appellant’s attitude at the sentencing hearing.

In Wain v. Warden, 215 Md. 650, 653 , 138 A.2d 482 (1958), the Court of Appeals held that a sentencing judge may consider a defendant’s attitude at trial in determining the sentence. As to conduct or attitude at hearings after conviction when guilt has been found as a matter of fact, we perceive that Wain still permits the consideration of remorse, or lack thereof, displayed after conviction. In Johnson v. State, 274 Md. 536, 542-43 , 336 A.2d 113 (1975), the Court held that it was improper to conclude that a defendant’s constitutionally protected decision to plead not guilty is a factor that may influence the sentencing judge to the detriment of the accused. The relevant portion of the trial court’s colloquy with the defendant in Johnson is distinguishable from the present case: What lesson have you learned when you were not telling the truth ... at the time of trial? ²⁴³ ...

The jury didn’t accept it and I didn’t accept it. You weren’t telling the truth. [Emphasis added.] [I]f you had come in here with a plea of guilty ... you would probably have gotten a modest sentence.... But with this attitude ... you can’t receive that kind of treatment. 274 Md. at 539-40 , 336 A.2d 113 . In its holding in Johnson , the Court opined: [W]hen Judge Powers said, “if you had come in here with a plea of guilty ... you would probably have gotten a modest sentence,” he indicated that he ... punished Johnson more severely because he failed to plead guilty — the words just quoted manifest that an impermissible consideration may well have been employed.

Id. at 543 , 336 A.2d 113 . See also Herbert v. State, 31 Md.App. 48, 55-56 , 354 A.2d 449 (1976) (holding that “[t]he mandate of Johnson is clear ... protestations of innocence throughout the trial must not influence sentencing ‘in any way.’ ”) (Emphasis added.) Johnson and Herbert hold that a defendant’s exercise of certain rights at trial, and his trial attitude based upon those rights, may not be considered at sentencing. As we see it, neither case forbids a sentencing judge to consider a defendant’s attitude when no presumption of innocence remains, i.e., lack of remorse exhibited at the sentencing hearing. In the case sub judice, we perceive the trial court’s statement as a response to the attitude of appellant at the sentencing hearing.

That, as we understand Johnson and Herbert , is not prohibited. The Court of Appeals in Reid v. State, 302 Md. 811, 821-22, 490 A.2d 1289 (1985), was faced with a trial court’s comment as to its feeling that the defendant may have lacked remorse. The trial court began its sentencing statement by saying, “I don’t know whether you really appreciate what you did to that young lady____ This young girl will never be the same.” Id. at 822 , 490 A.2d 1289 . In its decision, the Court of Appeals did not address that statement.

Id. The Court of Appeals was concerned primarily with statements contained in a victim impact statement as ²⁴⁴ to the length of sentence and accepted the trial court’s statement that it had not considered the victim’s opinion on that matter. Id. Nevertheless, it quoted the judge’s statement without comment.

Id. That statement can certainly be described as a statement that the appellant did not recognize the damage he had done, i.e., a failure to show remorse. To the extent that there can be an inference or dicta by silence, we suggest that it may well be contained in that Court’s treatment of the statement we have described contained in Reid . We further contrast the trial court’s statement in the case sub judice and the statement mentioned without criticism in Reid with the statement found to be reversible error in Colesanti v. State, 60 Md.App. 185, 193 , 481 A.2d 1143 (1984), cert, denied, 302 Md. 570 , 489 A.2d 1129 (1985): You didn’t come into court and admit your guilt____ To me, when somebody comes into court and they admit their guilt to me, it shows they are remorseful for what they have done____ I don’t think that it’s fair to treat someone who comes into court and who publicly acknowledges their guilt with the same hand that you would treat somebody who comes in and denies their guilt.

Later, at a reduction hearing, the trial judge in Colesanti reiterated that he gave consideration to the exercise of a defendant’s constitutional right to plead not guilty when he said: “What I have done and what I will continue to do ... when a person pleads guilty then I do give them some additional considerations. It’s a reward to them.” Id. Even though the trial judge in Colesanti said he did not penalize those who pled guilty, we opined otherwise: “[T]he trial judge expressly advised ... that he rewarded those who pleaded guilty. Necessarily, it follows that he penalized those who pleaded not guilty.” Id. at 195 , 481 A.2d 1143 .

In the present case, the trial judge limited his consideration to defendant’s lack of remorse at sentencing. Colesanti is therefore distinguishable. ²⁴⁵ In Hurley v. State, 60 Md.App. 539, 560-65 , 483 A.2d 1298 (1984), cert, denied, 302 Md. 409 , 488 A.2d 500 (1985), the trial court commented extensively on the fact that no one had testified describing the circumstances leading up to the killing, that it had no evidence of mitigation, that there was no evidence in regards to the location of the body. The court then said that if the defendant would reveal the location of the body, that would have some impact on the court. 2 Hurley argued on appeal that the trial court’s comments indicated that it had considered the fact that he had remained silent in fashioning its sentence and thus had impermissibly considered his exercise of a constitutional right in imposing the sentence. Id. at 560, 564, 483 A.2d 1298 .

We disagreed saying: We note ... that the court’s comments are to be read in full context; isolation of a particular passage serves no purpose____ [I]n their entirety, we do not find the impermissible considerations suggested by Johnson or Herbert ; we find only the court’s recognition that appellant’s conduct continues to cause the victims of his crime to suffer. Id. at 565, 483 A.2d 1298 (emphasis added). In Vogel v. State, 76 Md.App. 56, 69-70 , 543 A.2d 398 (1988), aff'd, 315 Md. 458 , 554 A.2d 1231 (1989), the trial court commented to the defendant at sentencing that “you have to this morning maintained your innocence; ... it means that they have concluded that you are in a state of denial and while you are in that state there is no help that is available ... that can be ... effective.'” Vogel ²⁴⁶ alleged that the trial court’s statements indicated that it impermissibly considered his claim of innocence in fashioning its sentence. Id. at 69, 543 A.2d 398 .

We commented that the trial court had been “thinking aloud about the efficacy of a sentence based on deterrence versus a sentence based on rehabilitation,” Id. at 69 , 543 A.2d 398 , and that we considered his statements to be a “thoughtful, a concerned, and a highly commendable consideration of all pertinent sentencing factors.” Id. at 70 , 543 A.2d 398 . Judge McGuckian, in the present case, merely considered Saenz’s present absence of remorse and contextually made no impermissible consideration. In Johnson, 274 Md. at 543 , 336 A.2d 113 , the Court of Appeals commented that its view that it is impermissible for a sentencing judge to weigh against a defendant his exercise of his constitutional rights to counsel or a jury trial was shared by nearly all of the courts in the country. It affixed an extensive listing of authority to that effect. 274 Md. at 543 , 336 A.2d 113 .

In respect to the appropriateness of including remorse or the lack of it exhibited during post-trial proceedings, there is substantial authority in federal case law holding that such consideration is permissible. In United States v. Carter, 804 F.2d 508, 510 (9th Cir.1986) defense counsel and the prosecutor entered into a plea bargain as to a sentence, and the trial judge participated in that process. Later, the defendant rejected the plea bargain, chose to go to trial, and was convicted. Id. at 513 .

At sentencing his counsel informed the court that other than his client’s exercise of his constitutional right to reject the plea bargain and to stand trial, nothing else had happened; thus to impose a heavier sentence would be, in effect, punishing the appellant for exercising a constitutional right. Id. The sentencing judge responded in a general sense: If the facts are all established and the Government obviously has a good case and the Defendants plead guilty, the Court is