Stanton v. State

Murphy, C. J., delivered the opinion of the Court. We granted certiorari in this case to consider whether, upon a criminal conviction in a circuit court, the trial judge ²⁴⁶ may legally impose a sentence to run consecutively to an earlier imposed District Court sentence in an unrelated case which is then pending de novo review in the circuit court. On April 30, 1979, the appellant pleaded guilty in the Circuit Court for Cecil County to forgery. Judge H. Kenneth Mackey accepted the guilty plea and deferred sentence pending receipt of a presentence report.

On July 11, 1979, prior to imposition of sentence for the forgery offense, the appellant was convicted of assault in the District Court of Maryland and was sentenced to five years’ imprisonment. He appealed that conviction to the circuit court, pursuant to Maryland Code (1974, 1980 Repl. Vol.), § 12-401 of the Courts and Judicial Proceedings Article, thereby entitling him to be tried de novo. 1 On August 16, 1979, prior to disposition of the de novo appeal, Judge Mackey sentenced the appellant to a five-year term for the forgery conviction to run consecutively to the five-year sentence imposed on the assault charge in the District Court. The consecutive sentence was imposed over áppellant’s objection that the entry of the de novo appeal of the District Court conviction nullified the District Court judgment and consequently no sentence then existed to which the circuit court sentence could consecutively run.

On appeal, the Court of Special Appeals, in an opinion by Judge Melvin, said: "While the execution of a District Court sentence may or may not be stayed when an appeal has been taken, an appeal does not alter the fact that it has been imposed and is still in existence. It remains in existence unless duly changed by the sentencing judge or until such time as the defendant, upon his de novo trial, is either acquitted or found guilty. If he is found guilty at the de novo trial and is sentenced anew, the District Court sentence then no longer exists. ²⁴⁷ "In the case at bar, at the moment the circuit court imposed its sentence, the District Court sentence was in existence. It was therefore not improper for the sentencing judge to make his sentence consecutive to that then existent sentence.” Stanton v. State, 45 Md. App. 662, 665-66 , 415 A.2d 305 (1980) (emphasis in original, footnotes omitted).

The Court of Special Appeals pointed out that even though appellant had appealed the assault conviction, and would be afforded a trial de novo in the circuit court, nevertheless he was incarcerated on a commitment pursuant to the District Court sentence. 2 The court observed that the record did not disclose the disposition of the de novo appeal of the assault charge but that any sentence imposed by the circuit court would be a new sentence "and would, as of the date of imposition of' the new sentence, completely displace the original District Court sentence”; that the District Court sentence "would then be non-existent just as if it had completely expired”; and that the result would be that the circuit court sentence for the forgery offense would then be subject to immediate execution and would not await the expiration of the new sentence that might have been imposed after the de novo hearing on the assault charge. 45 Md. App. at 666 (n. 2). The court affirmed the judgment of the Circuit Court for Cecil County. Before us the appellant agrees that a guilty finding at his de novo trial will result in a circuit court sentence which completely displaces the earlier District Court sentence. He restates his position: because the District Court judgment "was clinically if not legally dead” at the time of Judge Mackey’s sentence on the forgery charge, and because a new circuit court sentence on the assault conviction was ²⁴⁸ inevitable, it was impossible for Judge Mackey’s sentence to run consecutively to the defunct District Court sentence.

Appellant therefore urges that the judgment of the Court of Special Appeals be reversed and the case remanded with instructions that Judge Mackey’s five-year consecutive sentence be reversed and he be instructed to enter a sentence "without reference to the de novo appeal heard in the Circuit Court.” The Attorney General, referring to the case as an "academic legal battle,” states that the Court of Special Appeals granted appellant essentially the relief he requested, namely, that the sentence for the forgery offense would be served