State v. White

Moylan, J., delivered the opinion of the Court. In a sentencing disagreement, as in baseball, there is ¡a marked advantage to batting last. There is, of course, no contest (and therefore no significance to holding the ⁵¹⁵ advantage) when sentencing judges are in harmonious accord. When two or more judges sentence the same individual for two or more crimes, however, there is always the risk of discord, advertent or inadvertent.

The rules of the game must provide for just such an eventuality. Within the prescribed statutory range, each judge is autonomous when it comes to imposing sentence in the case before him. When two or more judges seek to relate their independent sentences to each other, however, who shall say whether the sentences are to be concurrent or consecutive or some more exotic combination of the two? If the judges happen to agree, no issue ever arises as to which of two duplicate orders is actually the controlling one.

If, however, there is irreconcilable disagreement, whose decision shall prevail? If judges give conflicting signals, how shall the Warden respond? Posit a defendant being sentenced for two different crimes by two different judges. On Monday, Judge A decrees, “I hereby sentence you to five years, to be served concurrently with whatever sentence Judge B may impose upon you tomorrow.” On Tuesday, Judge B decrees, “I hereby sentence you to five years, to be served consecutively with the five year sentence imposed upon you by Judge A yesterday.” See Alston v. State, 38 Md. App. 611 , for just such a sentencing paradox.

The answer is that the sentencing sequence is controlling. A judge must relate the sentence he imposes to the status quo at the moment of sentencing. He may deal with the present or the past as concrete reality. He may make his sentence concurrent with or consecutive to whatever other sentence then exists, either 1) actually being served or 2) in suspension but with ever-present potentiality for the lifting of that suspension.

He may not, however, presume to bind the future. To do so would be, ipso facto, to usurp the sentencing prerogative of some other judge operating in a near or distant time yet to be. 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 ⁵¹⁶ controlling fashion, with power 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. The plight of Melvin J. White is illustrative. He received three different sentences from three different judges on three different occasions for three different crimes.

Compounding the tangled chronology is the fact that two of these sentencing experiences went through two distinct phases, first a suspension of the sentence and then a revocation of the suspension. Each sentencing judge sought to relate his actions, forward and back, to the actions of his colleagues. When all of the “concurrentlys” and “consecutivelys” had finally been intoned, uncertainty reigned triumphant and White petitioned for post conviction relief in the Circuit Court of Montgomery County. Judge John J. McAuliffe granted him partial relief, from which the State seeks Leave to Appeal.

We will set out briefly the sentencing sequence. 1) Sentence A: In Criminal Case No. 16415, Judge Ralph Miller, on