State v. Wooten

⁴³⁵ Orth, C. J., delivered the opinion of the Court. THE ISSUES The preliminary issue in this case is whether the appeal by the State from the denial of its motion to correct an allegedly illegal sentence is properly before us. We hold that it is. The primary issue — whether the sentence was illegal — will therefore be determined.

In making that determination we must demarcate the punishment a trial judge is authorized to impose on a person convicted of murder in the first degree. STATEMENT OF THE CASE At a bench trial in the Circuit Court for Baltimore County Marcianna Wooten was convicted of the first degree murder of William Eugene Wooten, her husband. 1 She was sentenced to life imprisonment, but the court ordered that not more than eight years be served, the balance of the sentence to be suspended. The State filed a motion claiming that the sentence as imposed was “improper, illegal, and in derogation of Statutory law” because “the only sentence that can be imposed for conviction of murder in the first degree is life imprisonment” and “under Statutory law and the cases construing same, no discretion is lodged in the sentencing Judge to impose any sentence other than life imprisonment for a conviction of murder in the first degree.” It prayed that the court correct the illegal sentence and impose a life sentence in accordance with Code, Art. 27, § 413. The motion was denied upon hearing. 2 The State appealed from the denial.

Mrs. Wooten included a motion to dismiss the appeal in her brief filed in this Court. Maryland Rule 1036, § d. ⁴³⁶ THE PROPRIETY OF THE APPEAL Mrs. Wooten claims that the appeal by the State is not allowed by law. Pointing out that the State entered its motion under Rule 764, § a which provides: “The court may correct an illegal sentence at any time”, she urges under the authority of Harris v. State, 241 Md. 596 , 597-598 and Dawson v. State, 17 Md. App. 316, 319-320 , that relief under the Rule is “a statutory remedy and, as such, not appealable.” Both those cases were decided prior to the decision in State ex rel. Sonner v. Shearin, 272 Md. 502 , which we think is dispositive of the question of the appeal here.

In Shearin the Court of Appeals held that the trial judge’s refusal to correct an illegal sentence was properly appealed by the State. There, as here, the State appealed to this Court from the trial court’s denial of the State’s motion to correct a sentence alleged to be illegal. Before we considered the appeal, the Court of Appeals granted the State’s petition for a writ of certiorari. The Court of Appeals found, at 526, that the holding in State v. Fisher, 204 Md. 307 , considered in light of the language used in Liquor Board v. Handelman, 212 Md. 152 , and the subsequent holding in State v. Jacob, 234 Md. 452 , “is authority for an appeal from the imposition of an illegal sentence, since the issue of the trial court’s jurisdiction is involved in the sense whether it exceeded the powers vested in it by prescribing a penalty contrary to law.

A lower court which thus exceeds its powers must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error.” Because the appeal was before the Court of Appeals only by way of certiorari to this Court, it necessarily follows that the Court of Appeals found that the appeal, for the reasons it expressed, was properly before the Court of Special Appeals. It is true that the Court of Appeals noted that it was not obliged to interpret Courts Art. §§ 12-301 and 12-302 as those sections might apply to the case before it, 272 Md. at 526 , footnote 6. This was so because the law which was in ⁴³⁷ effect at the time Jacob was decided was to all intents and purposes the law in effect at the beginning of the prosecution involved in Shearin , which was before the effective date of the revisions codified as Courts Art. §§ 12-301 and 12-302.

We believe, however, that the revisions made no change in the law material to the question here. The Revisor’s Note to § 12-301 explains that, with one exception not here relevant, no change was intended in the general rules as to appealability. With reference to § 12-302 (c) concerning appeals in criminal cases by the State, the Revisor points out that the subsection is essentially the language of the former Art. 5, § 14. Thus, the enactment of § § 12-301 and 12-302 did not so change the law under which Shearin was decided as to affect the Shearin holding.

Under that holding the appeal here is properly before us and we so find. 3 THE SENTENCE AUTHORIZED UPON CONVICTION OF MURDER IN THE FIRST DEGREE At common law the penalty for murder was death. 4 F. Wharton, The Law of Homicide, § 659 (3rd ed. 1907). In 1809 Maryland for the first time made statutory provisions for ⁴³⁸ the punishment of unlawful homicide. Acts 1809, ch. 138, § IV (1) prescribed: “Every person convicted of murder of the first degree, his or her aiders, abettors and counsellors, shall suffer death by hanging by the neck.” This statutory affirmation as to murder in the first degree of the common law penalty for murder obtained until 1908 when a lesser sentence in the discretion of the trial court was authorized by the General Assembly. It provided in ch. 115, Acts 1908: “Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the court before whom such person may be tried.” Eight years later, ch. 214, Acts 1916, enabled a jury to proscribe the death penalty if it desired: “Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the Court before whom such person may be tried; provided, however, that the jury in a murder case who render a verdict of murder in the first degree, may add thereto the words ‘without capital punishment,’ in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, ‘without capital punishment,’ shall the court in imposing the sentence, sentence the convicted party to pay the death penalty.” 5 This statute remained viable until 29 June 1972 when the Supreme Court of the United States decided the consolidated cases of Furman v. Georgia, Jackson v. Georgia and Branch v. Texas, sub nom.

Furman v. Georgia, 408 U. S. 238 , reh. ⁴³⁹ den. 409 U. S. 902 . Our Court of Appeals construed Furman in Bartholomey v. State, 267 Md. 175 , 184: “We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the federal constitution. In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory.” Thus, at the present time in Maryland, and until 1 July 1975, the punishment upon conviction of murder in the first degree is life imprisonment, the death penalty having been read out of § 413 by judicial fiat. In 1975 the General Assembly attempted to restore the death penalty within constitutional limitations.

Acts 1975, ch. 252, effective 1 July 1975, repealed present § 413, other sections authorizing the death penalty, and related sections, and re-enacted them with amendments. The statutory scheme as to conviction of murder in the first degree or upon conviction of aiding, abetting or counselling the commission of any murder in the first degree was that the punishment be life imprisonment unless otherwise provided, § 413(A) and (C). Subsection (B) spelled out the circumstances under which a person convicted of murder in the first degree “shall be sentenced to death.” Subsection (D) assured that the death penalty where provided was mandatory: “A death sentence may not be suspended, and no other penalty in lieu of the death penalty may be imposed upon conviction of murder in the first degree specified in subsection (B).” In Bartholomew, at 185, the Court of Appeals said: “The only lawful sentence that can be imposed for murder in the first degree under the controlling ⁴⁴⁰ statute (§ 413) [as then in effect] is life imprisonment; no discretion is lodged in the sentencing judge and the imposition of any other sentence would plainly be illegal.” The sentencing judge here made plain that he was well aware of this. 6 He also observed that Code, Art. 27, § 643, permitting the imposition of a penalty less than the statutory minimum under certain