State v. Evans

SALMON, Judge. In this case, appellee, Gregory Evans, was thrice sentenced to consecutive 20 year terms of imprisonment for possession of cocaine with intent to distribute and conspiracy to distribute cocaine. After his third sentencing, a three-judge sentence review panel reduced his sentence by ordering the two 20 year sentences to run concurrently rather than consecutively. Appellant, the State of Maryland, filed a Motion for Reconsideration of Review of Sentence and Motion to Strike Illegal Sentence.

Appellant’s motions were denied and this appeal followed. On appeal, we must determine whether the three judge panel had the authority to consider appellee’s Application for Review of Sentence. BACKGROUND In December of 1990, appellee was convicted by a jury in the Circuit Court for Baltimore City (Angeletti, J., presiding) on five narcotics violations. On February 7, 1991, Judge Angeletti sentenced appellee to 20 years imprisonment on Count I, charging possession of cocaine with the intent to distribute, and ordered that sentence to run consecutive to a parole violation in an unrelated case.

On Count III, charging conspiracy to distribute cocaine, appellee received another 20 year term, to run consecutive to the sentence imposed on Count I. Appellee was sentenced on the remaining counts as follows: Count II, charging possession of cocaine, four years concurrent with Count I; Count IV, charging conspiracy to possess cocaine with the intent to distribute it, 20 years ²⁹⁷ concurrent with Count I; Count V, charging conspiracy to possess cocaine, four years concurrent with Count III. Appellee filed a timely Application for Review of Sentence before a three-judge panel, but the panel ordered, on April 24, 1991, that his sentence was to remain the same. Appellee appealed his convictions, and a panel of this Court, in a per curiam unreported opinion, affirmed appellee’s convictions but vacated his sentence. On October 16, 1992, appellee was resentenced by Judge Angeletti to two consecutive twenty year terms, as before, on Counts I and III.

Judge Angeletti merged Counts II and V, however, and ran Count IV concurrent with Count I. Appellee filed a second appeal, and a panel of this Court again vacated appellee’s sentence in a per curiam unreported opinion. The panel concluded as follows: We think the totality of the circumstances indicates that the appearance of impropriety existed in this case. These circumstances include: the possibility that the trial judge impermissibly considered the closing argument of the trial attorney in sentencing Evans to the maximum of 40 years; the possibility that the sentence was unduly severe and 20 years in excess of the guidelines; the appearance of impropriety created by the instances of animosity between the trial judge and the trial attorney at trial, the remarks made by the trial judge at the sentencing and resentencing hearings. Therefore, we remand the case to the circuit court ... for resentencing before a different judge.

Evans v. State, No. 1575, September Term, 1992, filed June 7, 1993. On September 1, 1993, appellee appeared before Judge Themelis for his third sentencing, and the court sentenced appellee to the exact sentence that had been imposed by Judge Angeletti at the second sentencing proceeding. 1 Appellee filed a timely Application for Review of Sentence by a three-judge panel, and on November 30, 1993, the panel ²⁹⁸ modified appellee’s sentence by ordering the two 20 year sentences to run concurrently rather than consecutively. As we have said, the panel denied appellant’s Motion for Reconsideration of Review of Sentence and Motion to Strike Illegal Sentence. DISCUSSION Appellant asserts that the three judge panel was without authority under- Art. 27, § 645JA to review the sentence imposed by Judge Themelis.

Art. 27, § 645JA provides, in part: a) Unless no different sentence could have been imposed or unless the sentence was imposed by more than one trial judge, every person convicted of a crime by any trial court of this State and sentenced to serve, with or without suspension, a total of more than two years imprisonment in any penal or correctional institution in this State shall be entitled to have the sentence reviewed by a panel of three or more trial judges of the judicial circuit in which the sentencing court is located. However, a person has no right to have any sentence reviewed more than once pursuant to this section.... (Emphasis added). Appellant argues that the limiting language, “unless the sentence was imposed by more than one trial judge,” foreclosed appellee’s right to a sentence review in this case.

Pointing out that the purpose of the Sentence Review Act is to ensure uniformity of punishment, appellant contends that inasmuch as two different judges had already imposed the same sentence in this case, the spirit of the statute would not be advanced by allowing further review by a three judge panel. Appellee contends, on the other hand, that the limiting language contemplates the situation in which two judges hear one case together and impose one sentence together. According to appellee, the sentence for which appellee requested review was imposed by Judge Themelis alone and thus was not imposed by more than one judge. ²⁹⁹ In Collins v. State, 326 Md. 423 , 605 A.2d 130 (1992), the Court of Appeals explained how Art. 27, §§ 645JA-645JG, subtitled “Review of Criminal Sentences,” was conceived: On October 15, 1962, acting on a recommendation of the Maryland State Bar Association, then Governor J. Millard Tawes appointed a commission to