Willey v. State

ALPERT, Judge. This appeal involves a dispute over an increase of sentence imposed after a successful appeal. Procedure below On February 22, 1988, Neal Willey, III, appellant, appeared before Judge Themelis of the Circuit Court for Baltimore City on the charge of assault and battery upon Kimberly Jackson. The court imposed probation before judgment and placed Willey on three years of supervised probation.

On March 1 and 7 of 1988, Willey assaulted Jackson and Chris Luecking. Willey was convicted of two out of the four charges lodged against him in the District Court for Anne Arundel County. Those convictions became final on February 3, 1989. Thereafter, on December 7, 1989, Judge Themelis held a violation of probation hearing.

The court decided to revoke Willey’s probation. I’m going to strike probation before judgment and enter in lieu thereof a finding of guilt. I’m going to impose 14 years to the Division of Correction____ Willey appealed that decision to our court. In an unreported opinion, Willey v. State, (Md.Ct.Spec.App. No. 190, September Term, 1990, filed: December 5, 1990) Slip Op., we reversed the judgment and remanded the case for a hearing before a different judge because the lower court had predetermined guilt. 1 In the interim, Willey was convicted of murder in the Circuit Court for Baltimore County. ³⁵² On April 2,1991, Judge Friedman of the Circuit Court for Baltimore City held the second violation of probation hearing.

This time, the court imposed a sentence of fifteen years on Willey. 2 THE COURT: All right. This case comes before me today with a most unfortunate history. There is no doubt about that. I think that the death of the victim in the case, for which Mr. Willey was convicted of first degree murder and use of a handgun in the commission of a crime of violence would not have occurred if Mr. Willey had not gone to wherever that woman [Shifflett] was and shot her____ Mr. Willey is apparently a dangerous and deadly man.

All right. The Court had previously in this case granted probation before judgment, so that the judgment was stayed. Judgment in this case is reinstated, and the probation before judgment is struck. And I impose a sentence of 15 years consecutive to the sentence which Mr. Willey is presently serving____ Willey appeals his sentence and asks whether his sentence is illegal.

I. In his brief, Willey contends that his sentence of fifteen years “represents an illegal increase in Appellant’s sentence resulting from a successful appeal.” To support his position, Willey cites Jones v. State, 307 Md. 449 , 514 A.2d 1219 (1986) and § 12-702(b) of the Courts Article. (b) Remand for sentence or new trial; limitations on increases in sentences. — If an appellate court remands a criminal case to a lower court in order that the lower ³⁵³ 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: (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. At the time of the Jones decision 3 § 12-702(b)(2) read as follows: (2) The reasons are based upon objective information concerning identifiable conduct on the part of the defendant occurring after the original sentence was imposed____ In Briggs v. State, 289 Md. 23 , 421 A.2d 1369 (1980), the Court of Appeals examined the background of § 12-702.

The Court noted that “[t]he operative language of the statutory enactment derives from North Carolina v. Pearce, 395 U.S. 711 [ 89 S.Ct. 2072 , 23 L.Ed.2d 656 ] [1969]....” 4 Briggs, 289 Md. at 27-28 , 421 A.2d 1369 . ³⁵⁴ Subsequent to the United States Supreme Court decision in Pearce, our court adopted the Pearce standard in Cherry v. State, 9 Md.App. 416, 425 , 264 A.2d 887 , cert. granted, 259 Md. 730 (1970). 5 The Briggs Court pointed out that “[w]ith no decisions of this Court to guide them, the Court of Special Appeals in Cherry v. State, supra, elected to join those courts which had held that the principles announced in Pearce apply with equal force to a trial de novo.” Briggs, 289 Md. at 29 , 421 A.2d 1369 . 6 Shortly thereafter, “the Maryland General Assembly, by its enactment effective July 1, 1972, rewrote Article 5, section 43 of the Maryland Code to include the expansion of the Pearce doctrine as enunciated in Cherry.” Briggs, 289 Md. at 29 , 421 A.2d 1369 . The United States Supreme Court took a different tack. In Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972), the Supreme Court decided that the prophylactic rule announced in Pearce did not apply to the judge of a superior panel when resentencing a defendant following a de novo trial on appeal from an inferior tribunal. Colten, 407 U.S. at 118 , 92 S.Ct. at 1961 .

Lately, the Supreme Court has backed away from Pearce. Wasman v. ³⁵⁵ United States, 468 U.S. 559, 571 , 104 S.Ct. 3217, 3224 , 82 L.Ed.2d 424 (1984) (plurality opinion) (“We conclude that any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original sentencing may not be considered upon sentencing after retrial, is inconsistent with the Pearce opinion as a whole.”); see Texas v. McCullough, 475 U.S. 134, 144 , 106 S.Ct. 976, 982 , 89 L.Ed.2d 104 (1986) (“It is appropriate that we clarify the scope and thrust of Pearce, and we do so here.”). In light of the Supreme Court’s retreat from Pearce, the State asked the Court of Appeals to reinterpret § 12-702(b) in Jones v. State, 307 Md. 449 , 514 A.2d 1219 (1986). The Court refused.

Jones had been tried and convicted of, “among other things, robbery with a deadly weapon.” Jones, 307 Md. at 451 , 514 A.2d 1219 . On that conviction, Judge Raker of the Circuit Court for Montgomery County sentenced him to nine years of imprisonment. Jones, 307 Md. at 451 , 514 A.2d 1219 . In an unreported opinion, Jones v. State, (Md. Ct.Spec.App. No. 361, September Term, 1983, filed: December 22, 1983) Slip Op., we reversed the conviction.

Jones, 307 Md. at 451 , 514 A.2d 1219 . Another jury reconvicted Jones of the same offense. Jones, 307 Md. at 451 , 514 A.2d 1219 . At sentencing, Judge Mitchell considered Jones’s record.

The “record listed a number of criminal offenses that Jones had committed before his first trial but of which he had not been convicted until after it.” Jones, 307 Md. at 451 , 514 A.2d 1219 . The State persuaded Judge Mitchell that under Supreme Court decisions, he could increase the sentence — effectively, ignoring § 12-702(b). The judge apparently agreed with the State, “for he gave Jones 12 years.” Jones, 307 Md. at 452 , 514 A.2d 1219 . The Court of Appeals, taking the opposite position, stated that “on its face, § 12-702(b) bars an increase in sentence under the circumstances of this case.” Jones, 307 Md. at 453 , 514 A.2d 1219 .

Additionally, the Court explained why it chose not to reinterpret § 12-702(b) in a manner that would reflect current Supreme Court ideology. The Court ³⁵⁶ pointed out that the Legislature was presumptively aware of the Briggs decision (construing the “conduct” provision of § 12-702(b)(2)) 7 and did not amend that subsection. Jones, 307 Md. at 455 , 514 A.2d 1219 . Furthermore, the Legislature met two times after the Wasman case was handed down and did not amend the subsection.

Jones, 307 Md. at 455 , 514 A.2d 1219 . Thus, the Court declared, “This supports our view that § 12-702(b) is a statement of legislative policy that stands independent of current Supreme Court notions of what due process may require.” Jones, 307 Md. at 455 , 514 A.2d 1219 . Unfortunately, Willey fails to perceive that the Legislature amended the language of § 12-702(b)(2), effective July 1, 1988. 8 According to Sutherland, The legislature is presumed to know the prior construction of terms in the original act, and an amendment ³⁵⁷ substituting a new term or phrase for one previously construed indicates that the judicial or executive construction of the former term or phrase did not correspond with the legislative intent and a different interpretation should be given the new term or phrase. 1A Sutherland, Statutes and Statutory Construction (by N.J. Singer) § 22.30 at 265 (Sands 4th ed. 1984 rev.); cited with approval in, In re Criminal Investigation No. 1-162, 307 Md. 674, 689 , 516 A.2d 976 (1986). The present language of § 12-702(b)(2) is incongruous with Willey’s position.

The Legislature added the word “additional” and deleted the phrase “occurring after the original sentence was