Stanton v. State

Melvin, J., delivered the opinion of the Court. On April 30, 1979, the appellant, James Ernest Stanton, appeared with counsel in the Circuit Court for Cecil County for trial on a six count indictment charging him with larceny and related offenses in connection with his unlawful appropriation of an unemployment check issued to a third ⁶⁶³ person by the New Jersey State Department of Labor and Industry. His plea of guilty to the 5th count of the indictment (forgery) was accepted by the court and a verdict of guilty was rendered thereon. The other counts of the indictment were nol prossed by the State.

Sentencing was deferred pending receipt of an up-to-date presentencing report. While awaiting sentencing on the forgery charge, the appellant, on July 11, 1979, was sentenced to five years imprisonment by the District Court of Maryland sitting in Cecil County on an unrelated assault charge. He appealed the assault conviction to the Circuit Court for Cecil County. On August 16,1979, which was before the assault charge had been tried de novo in the circuit court, the appellant came before the court for sentencing on the forgery charge.

His counsel urged the court to "consider the possibility of a concurrent sentence.” The court, however, imposed a sentence of five years "to run consecutively to the sentence passed in the Cecil County District Court ... on July 11, 1979.” The sole issue before us is the legality of making the August 16, 1979 sentence consecutive to the District Court sentence before disposition of the appellant’s then pending appeal from the the District Court judgment of conviction. Appellant argues that, "in contemplation of law, there was no District Court judgment or sentence at the time that Appellant was sentenced.” Consequently, he argues, making the sentence consecutive to the District Court sentence was legally impermissible. We would agree that if "there was no District Court .. . sentence at the time Appellant was sentenced” in the circuit court on August 16, 1979, the imposition of a sentence to be consecutive to that non-existent District Court sentence would be illegal, or, more accurately, an "empty gesture”; for as said by Judge Moylan for this Court in State v. White, 41 Md. App. 514, 515-516 , 397 A.2d 299 (1979): "From the first judge in the sentencing sequence, the adverbs 'concurrently’ and 'consecutively’ are but empty gestures. A judge cannot imbue the sentence, in any controlling fashion, with power ⁶⁶⁴ over the future judicial actions of others.

His sentence may not be consecutive or concurrent to something which does not yet (and may never) exist. The first sentencing judge simply creates that status quo to which a later sentencing judge may relate.” In other words, if there were no District Court sentence in existence at the time the circuit court imposed its sentence, the circuit court judge would have been "the first judge in the sentencing sequence” and therefore his sentence could not be made "consecutive or concurrent to something which does not yet (and may never) exist.” We do not agree, however, that the District Court sentence imposed on July 11, 1979, did not exist on August 16, 1979, when the circuit court imposed its sentence. Appellant argues that it did not exist "in contemplation of law” because the judgment on which it was based had been appealed and § 12-401 (d) of the Courts and Judicial Proceedings Article provides that appeals from the District Court in criminal cases "shall be tried de novo.” He contends that the effect of a pending trial de novo following an appeal from the District Court is to "wash out” the trial in the District Court, including any sentence imposed there, "as if no judgment had been entered. ...” Appellant refers us to certain language in Pinkett v. State, 30 Md. App. 458 , 352 A.2d 358 , cert. denied, 278 Md. 730 (1976) and Hardy v. State, 279 Md. 489 , 369 A.2d 1043 (1977), that, he argues, supports this contention. In Pinkett , this Court dealt with the issue of whether on a de novo appeal from the District Court the State could abandon District Court charging documents and proceed by way of new criminal informations.

We said, in an opinion by Chief Judge