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Maryland Court of Appeals: Sentence Imposed on Remand That Is of Equal Maximum Length as Former Sentence but With Longer Term Before Parole Eligibility Is ‘More Severe’

by Douglas Ankney

The Court of Appeals of Maryland held that where a circuit court imposed on remand a sentence of equal maximum length as the former sentence, but required a longer period of incarceration before parole eligibility than the former sentence, the new sentence was “more severe” for purposes of Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 12-702(b).

Philip Daniel Thomas was convicted of several crimes in the Circuit Court of Wicomico County. His aggregate sentence of 18 years included 15 years for kidnapping and three years consecutive for second-degree assault.

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 sentenced Thomas to 18 years on the kidnapping alone. Thomas appealed, arguing that his new sentence was more severe than his former sentence because the new sentence required him to serve more time in prison before becoming eligible for parole. The Court of Special Appeals agreed that the new sentence was illegal, vacated it, and remanded for resentencing. The Maryland Court of Appeals granted the State’s petition for a writ of certiorari.

The Court of Appeals observed that when a trial court resentences a criminal defendant on remand after his successful appeal, the court “may not impose a sentence more severe than the sentence previously imposed” 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.” CJ § 12-702(b).

Ordinarily, a defendant is eligible for parole after serving one-fourth of his aggregate sentence. Maryland Code, Correctional Services Article (“CS”), § 7-301(b)(1). But a defendant convicted of a violent crime is not eligible for parole until he has served the greater of either (1) one-half of his aggregate sentence for violent crimes or (2) one-fourth of his total aggregate sentence. CS § 7-301(c). Kidnapping is a violent crime. Maryland Code, Criminal Law Article, § 14-101(a)(3). Sentence severity is not measured solely by comparing the potential maximum period of confinement. Nichols v. State, 196 A.3d 457 (Md. 2018). Severity includes imprisonment, fines, suspended sentences with probation, and any other corrective measures imposed by the court. United States v. Barash, 428 F.2d 328 (2d Cir. 1970). Because CJ § 12-702(b) derives from North Carolina v. Pearce, 395 U.S. 711 (1969), the court looks to the Pearce factors when determining what the legislative intent is. Another means of determining legislative intent is to consider the consequences of an alternative interpretation. Carter v. State, 192 A.3d 695 (Md. 2018).

In the instant case, Thomas’ kidnapping conviction was a violent crime. His former sentence of 15 years for that conviction required him to serve 7.5 years before parole eligibility. His new sentence on remand of 18 years for kidnapping required him to serve nine years before parole eligibility. Even though the aggregate term of both sentences was 18 years, the Court determined interpretation of CJ § 702(b) requires more than simply comparing the length of sentences. Otherwise, a sentence of life without parole would be considered the equivalent of a sentence of life with the possibility of parole.

Further, the factors in Pearce concerned the U.S. Supreme Court’s observation that a harsher sentence after a successful appeal was either actual vindictiveness on the part of the trial court or gave the appearance of such. To combat this, Pearce permitted a harsher sentence only when factors were shown in the record that are equivalent to the three factors found in CJ § 702(b). Those factors were not present in Thomas’ case. The Maryland Court of Appeals concluded, “If, following a successful appeal, a defendant in a criminal case is resentenced to a term of equal length to the original sentence but with a later parole eligibility date, the new sentence is ‘more severe’ than the original sentence for purposes of CJ § 12-702(b).”

Accordingly, the Court affirmed the judgment of the Court of Special Appeals. See: State v. Thomas, 2019 Md. LEXIS 385 (2019). 

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