State v. Thomas

State of Maryland v. Philip Daniel Thomas No. 73, September Term 2018 Criminal Procedure – Appeal – Authority of Trial Court to Resentence Defendant When Sentence is Subject of Pending Appeal – Mootness. After the defendant was resentenced by the Circuit Court following a remand, he appealed that sentence, contending that the new sentence was illegal. The Court of Special Appeals agreed and issued an opinion to that effect. Before the Court of Special Appeals issued its mandate and before the time for the State to file a petition for a writ of certiorari to the Court of Appeals had expired, the Circuit Court resentenced the defendant again in accordance with the views expressed in the opinion of the Court of Special Appeals.

The Court of Appeals subsequently granted the State’s petition for a writ of certiorari on the issue of the legality of the original sentence. The defendant moved to dismiss the appeal as moot. In the meantime, the Circuit Court vacated the sentence it had imposed while the case was pending in the Court of Appeals. The Court of Appeals held that the appeal was not moot.

Criminal Procedure – Sentencing – Resentencing After Appeal. The initial sentence of imprisonment received by the defendant was comprised of consecutive sentences for two offenses that should have been merged into one another for purposes of sentencing. After the Court of Special Appeals vacated that sentence on appeal, the Circuit Court, on remand, resentenced the defendant to a maximum period of incarceration for the greater offense that was equal to the maximum period of incarceration under the original aggregate sentence. However, the minimum period of incarceration that the defendant would serve before becoming eligible for parole consideration was longer under the new sentence than under the original sentence.

The new sentence was illegal because it violated a State statute that generally prohibits imposition of a “more severe” sentence following a successful appeal by a criminal defendant. Maryland Code, Courts & Judicial Proceedings Article, §12-702(b). IN THE COURT OF APPEALS Circuit Court for Wicomico County OF MARYLAND Case No. 22-K-16-000031 Argument: May 2, 2019 Docket No. 73 September Term, 2018 STATE OF MARYLAND v. PHILIP DANIEL THOMAS _____________________________________ Barbera, C.J. *Greene McDonald Watts Hotten Getty Booth, JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: August 9, 2019 *Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled Pursuant to Maryland Uniform Electronic Legal Materials Act pursuant to the Maryland Constitution, Article (§§ 10-1601 et seq. of the State Government Article) this document is authentic. IV, Section 3A, he also participated in the 2019-08-12 08:38-04:00 decision and adoption of this opinion.

Suzanne C. Johnson, Clerk On occasion, a court may be called upon to resentence a defendant in a criminal case after an appeal. This can happen when a conviction is overturned on appeal and the defendant is again convicted following remand, or when a conviction is upheld but the initial sentence is determined to be illegal. In both instances, the defendant must be sentenced again. A State statute limits the sentencing court’s discretion in those circumstances.

In general, a circuit court ordinarily may not impose a “more severe” sentence on remand following an appeal. Respondent Philip Daniel Thomas was convicted of several crimes in the Circuit Court for Wicomico County. He received an aggregate sentence of 18 years in prison – 15 years for kidnapping, and three years consecutive for second-degree assault. On direct appeal the Court of Special Appeals vacated the sentence, ruling that the kidnapping and assault convictions should have merged for sentencing purposes.

On remand, the Circuit Court resentenced Mr. Thomas to 18 years in prison for the kidnapping offense alone. Although the new sentence was identical to the original sentence in terms of the maximum duration of confinement, the parole eligibility date under the new sentence was different. Under his original sentence, Mr. Thomas would have been eligible for parole after seven and one-half years; under the new sentence, he would not become eligible for parole until he had served nine years in prison. Another appeal ensued, and the Court of Special Appeals held that his new sentence was illegal as “more severe” than his original sentence.

We agree with the Court of Special Appeals that two sentences of equal maximum length but with different parole eligibility dates are not equivalent to one another. The sentence with the later parole eligibility date is more severe than the other. I Background A. Statutory Provisions concerning Punishment for Criminal Offenses The General Assembly sets general State policy on punishment for criminal offenses in various statutes. For example, statutes set forth the penalty that a court may impose for specific offenses, specify maximum and minimum sentences, limit a sentencing court’s discretion in certain respects, and establish minimum periods of confinement before a defendant becomes eligible for release on parole.

This case involves two such statutes: (1) a statute that limits the discretion of a sentencing court when a defendant is to be resentenced following a successful appeal and (2) a statute that sets a defendant’s eligibility for release on parole from imprisonment for certain offenses. 1. A Limit on Resentencing – CJ §12-702(b) If a conviction is reversed on appeal and the defendant is convicted again, or if a sentence is overturned on appeal, the defendant will need to be resentenced. A State statute limits the sentencing court’s discretion in those circumstances. That statute provides: 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.

However, it may not impose a sentence more severe than the sentence previously imposed for the offense unless: 2 (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. Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §12-702(b) (emphasis added). Thus, a court may not impose a “more severe” sentence on remand unless the three statutory criteria are met. 2. Eligibility for Release from Imprisonment on Parole The General Assembly has established different minimum periods of imprisonment before a criminal defendant sentenced to a term of imprisonment is eligible for release on parole, depending on the offenses for which the defendant has been convicted.

A defendant is ordinarily eligible for parole after serving one-fourth of the defendant’s aggregate sentence. Maryland Code, Correctional Services Article (“CS”), §7-301(b)(1). A defendant convicted of a violent crime, however, is not eligible for parole until the defendant has served “the greater of” (1) one-half of the defendant’s aggregate sentence for violent crimes or (2) one-fourth of the defendant’s total aggregate sentence. CS §7- 301(c).

Other statutory provisions not pertinent to this case establish other constraints on an inmate’s eligibility for parole. E.g., Maryland Code, Criminal Law Article, §14-101(c)- (f); see also Carter v. State, 461 Md. 295, 318-22 (2018). 3 This case concerns whether parole eligibility established by statute for a particular sentence is a factor in assessing whether one sentence is “more severe” than another for purposes of CJ §12-702(b). B. Procedural History Mr. Thomas was charged in the Circuit Court for Wicomico County with various offenses arising from an incident in December 2015. Following a trial in June 2016, the jury found him guilty of kidnapping, second-degree assault, false imprisonment, driving under the influence of alcohol, and driving while impaired.1 2016 Sentence and Appeal On June 17, 2016, the Circuit Court sentenced Mr. Thomas to 15 years imprisonment on the kidnapping conviction, and three years imprisonment on the second- degree assault conviction to run consecutively to the sentence for kidnapping.

The Circuit Court also sentenced Mr. Thomas to one year for driving under the influence, to be served concurrently with the sentences on the other charges. The false imprisonment and driving while impaired convictions were merged, respectively, into the kidnapping and driving under the influence convictions and did not result in separate sentences. Thus, the aggregate sentence was 18 years imprisonment. We shall refer to this sentence as the “2016 Sentence.”2 1 The issues in this appeal do not turn on the facts of the underlying offenses.

Accordingly, we will dispense with attempting to summarize the evidence at the trial. 2 As will be seen, Mr. Thomas has been sentenced three times in this case and the primary issue in this appeal concerns a comparison of the first two of those sentences. It happens that each of the three sentencings took place during a different calendar year. To 4 Mr. Thomas appealed, in part on the ground that the Circuit Court erred in imposing separate sentences for the kidnapping and second-degree assault convictions. The State conceded that Mr. Thomas was correct as to that issue.

In an unreported opinion, the Court of Special Appeals also agreed, holding that the second-degree assault conviction should have been merged into the kidnapping conviction for purposes of sentencing. Thomas v. State, 2017 WL 2482469 (2017). The Court of Special Appeals vacated the 2016 Sentence and remanded the case for resentencing. Apparently with CJ §12-702(b) in mind, the Court of Special Appeals instructed the Circuit Court that “the total of appellant’s new sentences not exceed the current total of 18 years’ imprisonment.” Id. at ¹⁴.

The intermediate appellate court also cited Twigg v. State, 447 Md. 1, 30 (2016), in which this Court held that, for purposes of CJ §12-702(b), the total aggregate sentence after remand should be compared to the total aggregate sentence prior to remand (as opposed to comparing sentences for each individual count).3 distinguish among these sentencings, we will refer to them by the calendar year during which each was imposed. 3 In Twigg, the circuit court initially imposed an aggregate sentence of 40 years imprisonment comprised of consecutive sentences related to convictions of three offenses and a suspended sentence for conviction of a fourth offense. The Court held that one of the offenses for which a consecutive sentence was imposed should have been merged into the conviction for the fourth offense. The Court further held that, on remand, the circuit court could resentence the defendant on the other counts that were not merged without violating CJ §12-702(b), so long as the new aggregate sentence did not exceed the original sentence of 40 years imprisonment. 5 2017 Sentence and Appeal On August 9, 2017, Mr. Thomas was resentenced. Consistent with the direction from the Court of Special Appeals, the Circuit Court merged the second-degree assault conviction into the kidnapping conviction for sentencing purposes.

Over a defense objection, the court imposed a sentence of 18 years imprisonment on the kidnapping count alone (“2017 Sentence”). The 2017 Sentence was thus identical to the 2016 Sentence in terms of the maximum amount of time that Mr. Thomas could spend in prison – 18 years. But the two sentences were not identical in another critical respect – at least critical to one who must serve the sentence – eligibility for parole. Because kidnapping is a “crime of violence,”4 the minimum term of imprisonment that Mr. Thomas would serve before becoming eligible for parole was longer under the 2017 Sentence than under the 2016 Sentence.

The parole eligibility math for the sentences imposed on Mr. Thomas works out as follows. Under the 2016 Sentence, one-half of the aggregate sentence for violent crimes (15 years for kidnapping) would be seven and one- half years while one-fourth of the total aggregate sentence (18 years) would be four and one-half years. The greater of those two periods is seven and one-half years – which is the period of incarceration that Mr. Thomas would serve before becoming eligible for parole under the 2016 Sentence. Under the 2017 Sentence, one-half of the aggregate sentence for 4 Maryland Code, Criminal Law Article, §14-101(a)(3).

That statute also provides for enhanced sentences and limits parole eligibility for persons who have been convicted of multiple crimes of violence. 6 violent crimes (18 years for kidnapping) would be nine years – the period of incarceration that Mr. Thomas would serve before becoming eligible for parole under the 2017 Sentence. The upward change in the minimum term to be served by Mr. Thomas before he became eligible for parole prompted the defense objection to the 2017 Sentence in the Circuit Court. The defense argued that the resulting delay in parole eligibility under the 2017 Sentence compared to the 2016 Sentence meant that the Circuit Court had effectively “increased” Mr. Thomas’ sentence when it imposed the 2017 Sentence, in violation of the statutory proscription against imposing a “more severe” sentence on remand. Mr. Thomas appealed the new sentence, reiterating the argument he made in the Circuit Court.

The Court of Special Appeals agreed that the 2017 Sentence was illegal because it violated CJ §12-702(b). It vacated the 2017 Sentence, reasoning that “a resentence that delays a defendant’s parole eligibility date, as in appellant’s case, is a ‘more severe’ sentence prohibited by [CJ] §12-702 absent statutory justification.” Thomas v. State, 239 Md. App. 483, 495 (2018). The State filed a petition for a writ of certiorari posing a single question related to the legality of the 2017 Sentence under CJ §12-702(b). We granted the State’s petition on March 5, 2019 to address that issue.

In the meantime, however, there had been further developments in the Circuit Court that have generated another issue that we must decide along the way. 2019 Sentence During Appeal The Court of Special Appeals published its opinion in this case on November 28, 2018. Before the intermediate appellate court issued its mandate (and four days before the 7 State timely filed its petition for certiorari), the Circuit Court resentenced Mr. Thomas on January 4, 2019 to 15 years for the kidnapping offense (“2019 Sentence”).5 By any measure, such a sentence is not “more severe” than the 2016 Sentence6 and thus does not raise the same issue as the 2017 Sentence. The resentencing was apparently an effort on the part of the Circuit Court to implement the then-recent holding of the intermediate appellate court. After this Court granted certiorari, the State filed a motion in the Circuit Court to vacate the 2019 Sentence on the ground that the Circuit Court lacked jurisdiction or authority to resentence Mr. Thomas at the time it imposed the 2019 Sentence, and that the 2019 Sentence, as the product of a “mistake” or “irregularity,” could be corrected pursuant to Maryland Rule 4-345(b).7 On April 15, 2019, the Circuit Court granted the State’s motion and vacated the 2019 Sentence.

On May 2, 2019, Mr. Thomas noted an appeal The State filed its petition on January 8, 2019. The State’s appellate counsel was 5 unaware of the 2019 Sentence at the time the petition was filed. The Court of Special Appeals later issued its mandate on January 11, 2019. Mr. Thomas has filed a motion to include the transcript of the January 4, 2019, sentencing hearing in the record for this appeal.

The State did not oppose that motion, although it differed with Mr. Thomas on the significance of that resentencing. We deferred ruling on the motion to supplement the record in advance of oral argument. We now grant that motion. 6 Under the 2019 Sentence, the maximum time Mr. Thomas could be incarcerated is 15 years, compared to 18 years under the 2016 Sentence. He would be eligible for parole after seven and one-half years in prison under both sentences. 7 That rule provides that a court “has revisory power over a sentence in case of fraud, mistake, or irregularity.” 8 from the Circuit Court’s April 15, 2019 order.

That appeal has been set for argument in the Court of Special Appeals in March 2020. Motion to Dismiss Appeal In the meantime, the 2019 proceedings in the Circuit Court generated additional activity in this Court. After the Circuit Court imposed the 2019 Sentence but before it vacated that sentence, Mr. Thomas filed in this Court a motion to dismiss this appeal. He argued that the 2019 Sentence rendered the present appeal moot.

In the alternative, he requested that the Court dismiss the writ of certiorari as having been improvidently granted. Unsurprisingly, the State opposed that motion. We deferred a decision on Mr. Thomas’ motion, allowed the parties to address the issue at oral argument, and will decide that motion as part of this opinion. II Discussion A. Whether this Appeal is Moot Mr. Thomas has moved to dismiss this appeal as moot in light of the 2019 Sentence, or alternatively to dismiss the writ of certiorari as improvidently granted.

In his motion, he reasoned that, once the Circuit Court sentenced him to a maximum term of 15 years imprisonment in the 2019 Sentence, there was no longer any issue under CJ §12-702(b) as the 2019 Sentence is not “more severe” than the 2016 Sentence. Accordingly, he had obtained the relief he sought on appeal and the issue on which the Court granted certiorari no longer exists. The State responded by questioning the jurisdiction and the authority of 9 the Circuit Court to impose the 2019 Sentence before the appeal process had reached its conclusion.8 Past decisions of this Court have explained that a circuit court retains “fundamental jurisdiction” of a case while it is on appeal.9 However, a circuit court may not exercise that jurisdiction in a way that frustrates the appellate process and any circuit court action that does so will be subject to reversal for that reason.10 Even if a circuit court has exercised 8 The State also initially opposed Mr. Thomas’ motion as untimely under Maryland Rule 8-603(a)(4). It subsequently withdrew that argument when Mr. Thomas renewed the motion in his appellate brief.

See Maryland Rule 8-603. 9 Beginning in 1980, this Court has recognized, in several decisions, that a circuit court retains fundamental jurisdiction while a case is on appeal. See Pulley v. State, 287 Md. 406, 414-19 (1980) (trial court had fundamental jurisdiction to retry defendant while denial of defendant’s motion to dismiss on double jeopardy grounds was on appeal); State v. Peterson, 315 Md. 73, 79-82 (1989) (circuit court acted within its fundamental jurisdiction when it conducted second probation revocation hearing with parties’ assent while issue related to first probation revocation hearing was on appeal, thus rendering appeal moot); In re Emileigh F., 355 Md. 198, 202 (1999) (juvenile court had fundamental jurisdiction to close CINA case while appeal of custody decision in that case was pending in Court of Appeals); Cottman v. State, 395 Md. 729, 742 (2006) (circuit court had fundamental jurisdiction to grant motion for new trial in criminal case while appeal of conviction at initial trial was pending). A recent opinion of this Court quoted a pre-Pulley decision to the effect that an appeal brings the subject matter of the appeal within the “exclusive jurisdiction of the appellate court.” State v. Simms, 456 Md. 551, 576 (2017). However, that case concerned the power of the State to nolle pros charges in the trial court after an appeal is taken.

We do not read it as a retreat from those cases that have discussed a circuit court’s continuing fundamental jurisdiction during the pendency of an appeal. 10 See, e.g., In re Emileigh F., 355 Md. at 202-04 (vacating juvenile court’s decision to close CINA case and terminate its own jurisdiction while appeal was pending, which interfered with right of appellant to prosecute the appeal concerning a child custody ruling); see also Jackson v. State, 358 Md. 612, 620 (2000) (“any post-judgment ruling by a circuit court that [precludes or hampers the appellate court] may be subject to reversal on appeal, but it is not void ab initio for lack of jurisdiction to enter it”). 10 its fundamental jurisdiction in a way that moots an issue in a pending appeal, this Court may still express its views on that issue.11 The Circuit Court’s actions in this case following the recent decision of the Court of Special Appeals, while no doubt a conscientious effort to comply with that decision, have thus raised some complex questions. Was the 2019 Sentence an exercise of the Circuit Court’s fundamental jurisdiction? Even if the Circuit Court had jurisdiction, did it have authority to take that action while the case was still on appeal? Even if the Circuit Court should have refrained from exercising its fundamental jurisdiction while the case was on appeal, did the 2019 Sentence nevertheless render this appeal moot?

Even if this appeal is moot, should we still express our views concerning the interpretation of CJ §12-702(b)? The answers to such questions will have to wait for