Gilmer v. State

• Decision Date: 28 January 2005
• Docket Number: No. 787,787
• Citation: 161 Md. App. 21,866 A.2d 918
• Parties: Anthony GILMER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

866 A.2d 918

161 Md. App. 21

Anthony GILMER v. STATE of Maryland.

No. 787, September Term, 2003.

Court of Special Appeals of Maryland.

January 28, 2005.

Amy E. Brennan (Stephen E. Harris, Public Defender, on brief), for appellant.

Devy Petterson Russell (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel SALMON, BARBERA, SHARER, JJ.

BARBERA, J.

Appellant, Anthony Gilmer, was convicted by a jury in the Circuit Court for Baltimore City of first and second degree assault.¹ After merging the latter conviction into the former, the court sentenced appellant to fifteen years' imprisonment. Appellant asks two questions on appeal, which we have slightly rephrased:

I. Did the trial court err in refusing to give appellant credit at sentencing for pre-trial incarceration pursuant to Maryland Code (2001), § 6-218(b) of the Criminal Procedure Article?

II. Did the trial court err in refusing to give appellant's proposed voir dire question, which asked: "Do you believe that evidence produced by the Defendant in his defense is less credible than evidence produced by the State?"

For the following reasons, we shall affirm the circuit court's judgment.

FACTUAL BACKGROUND

The issues we decide require only a brief recital of the underlying facts of this case. On September 1, 2002, appellant and Jonathan Blue were pre-trial detainees at the Baltimore City Detention Center. Appellant had been incarcerated at the detention center since July 2, 2001, on an unrelated charge. Shortly after 4:00 p.m. on September 1, 2002, appellant and Blue were in the "day room" participating in "passive recreation," which includes access to the pay telephone. The two men engaged in a fist fight over whose turn it was to use the telephone. They were removed from the day room by a detention center officer, but were allowed to return a short time later. When the officer left the room, appellant attacked Blue with his fists and stabbed him with a knife in the head and neck.

DISCUSSION

I.

Appellant argues that the court erred when it refused to give him credit on his fifteen-year sentence for the time he was incarcerated on an unrelated charge that was eventually nol prossed. He argues that the court's decision runs afoul of Maryland Code (2001), § 6-218(b) of the Criminal Procedure Article.²

That statute in pertinent part provides:

(1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time spent in the custody of a correctional facility, hospital, facility for persons with mental disorders, or other unit because of:

(i) the charge for which the sentence is imposed; or

(ii) the conduct on which the charge is based.

(2) If a defendant is in custody because [of³] a charge that results in a dismissal or acquittal, the time that would have been credited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or commitment was filed during that custody.

(3) In a case other than a case described in paragraph (2) of this subsection, the sentencing court may apply credit against a sentence for time spent in custody for another charge or crime.

We disagree with appellant that the court was required by this statute to give him credit on the sentence in this case for the time he served on the unrelated charge. This is because appellant's situation is controlled, not by subsection (b)(2) of the statute, but by subsection (b)(3).

There is no doubt that the unrelated charge ended in a nolle prosequi, and not a dismissal or acquittal. Notwithstanding that the mandatory credit provided by subsection (b)(2) applies only in a case "that results in a dismissal or acquittal," appellant argued that the court was required to give him credit for pre-trial incarceration from July 2, 2001, when his incarceration on the unrelated charge evidently began, until August 31, 2002, the day before he committed the instant assault. Without saying as much, appellant was equating a nolle prosequi to the "dismissal or acquittal" referred to in § 6-218(b)(2).

The court gave appellant sentencing credit from the date he assaulted his fellow detainee until the date of sentencing. The court disagreed with appellant, however, that it was obligated to award him credit for time he had served on the unrelated charge for which he was incarcerated at the time of the assault. The court reasoned that it had discretion whether to award such credit and, in exercising that discretion, declined to award appellant credit for any of his pre-assault incarceration.

Appellant re-raises on appeal the argument that he is entitled to the time he served on the nol prossed charge. He relies on the proposition recognized in Fleeger v. State, 301 Md. 155, 160, 482 A.2d 490 (1984), and restated more recently in Dedo v. State, 343 Md. 2, 9, 680 A.2d 464 (1996), that the sentence credit statute has as one of its purposes "to eliminate `dead' time, which is time spent in custody that will not be credited to a future sentence." He argues that this purpose is given effect by treating a nolle prosequi as the equivalent of a dismissal or an acquittal.

Fleeger in particular informs our analysis of the issue. The case presented the following situation: Robert Fleeger was taken into custody on a charge of theft. He remained in custody for nearly six months awaiting trial, then escaped and stole a vehicle. He was captured and returned to jail the next day. Two weeks later, the State charged him with escape and unauthorized use of a vehicle. Fleeger, 301 Md. at 158, 482 A.2d 490.

Fleeger eventually entered into a plea agreement with the State whereby the State agreed to nol pros the pending theft charge in exchange for Fleeger's guilty plea to escape and unauthorized use. At sentencing, the court gave him credit for his post-escape, pre-sentence custody. The court, however, refused to give him credit for his pre-escape custody on the theft charge. Fleeger argued on appeal that this was error. The Court of Appeals agreed. Id. at 158-59, 165, 482 A.2d 490.

The Court reviewed the sentencing credit statute, which at the time was codified at Maryland Code Annotated (1957, 1982 Repl.Vol.), Article 27, § 638C,⁴ and made the following observations:

[A] purpose of the credit statute is the elimination of "dead" time, which is time spent in custody that will not be credited to any valid sentence. Section 638C(a) seeks to avoid dead time by authorizing mandatory credit for any time spent in custody while awaiting trial on an offense for which the defendant is ultimately convicted. The statute also seeks to eliminate dead time that results when a defendant is in custody on one crime but is ultimately convicted of another. By enacting § 638C(a) [the precursor to § 6-218], the General Assembly sought to ensure that a defendant receive as much credit as possible for time spent in custody as is consistent with constitutional and practical considerations.

Fleeger, 301 Md. at 165, 482 A.2d 490 (citations omitted).

The Fleeger Court concluded that, in the case before it, the State's nolle prosequi of the theft charge was effectively a dismissal of the charge within the meaning of the statute. This was because the State was precluded from reinstating the original theft charge, so long as Fleeger complied with the terms of the plea agreement. 301 Md. at 162, 482 A.2d 490 (citing State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976), for the proposition that the State may not prosecute a defendant on charges that are nol prossed as part of a plea agreement because the State is "precluded from withdrawing [a] plea bargain where withdrawal is unfair or inequitable to the defendant"). See also Magrogan v. State, 56 Md.App. 289, 292-93, 467 A.2d 784 (1983)

(holding that the State's nolle prosequi of a housebreaking charge as part of a plea agreement is effectively tantamount to dismissal, and therefore, Article 27, § 638C is applicable).

Standing at counterpoint to Fleeger and Magrogan is Roberts v. State, 56 Md.App. 562, 468 A.2d 410 (1983), cert. denied, 299 Md. 426, 474 A.2d 219 (1984), a case relied upon by the State. Roberts also involved application of the sentence credit statute. There, we held that the State's "stet" of a charge is not tantamount to a dismissal or an acquittal.⁵ We explained:

The statute provides for credit for time spent in custody under a charge which culminates in "dismissal or acquittal," not a stet. "A stet in Maryland is a method of placing an indictment in a state of suspended animation into which new vitality may be breathed through either prosecutorial or defense resuscitation." A stet only means that the State chooses not to prosecute the accused on that charging document at that time....

It remains possible for [Roberts] to be prosecuted for the Baltimore City handgun violation. Since that charge is still viable and [he] remains in potential jeopardy of being tried thereon, he is not in the same position as if the charge had been dismissed or if he had been acquitted.

Roberts, 56 Md.App. at 565-66, 468 A.2d 410 (citations omitted).

We went on to note in Roberts that the purpose of the credit statute, i.e., to give credit for time spent in custody when there is no other way to credit that time,

does not exist when the first charge is merely stetted because that charge may be eventually tried and may result in conviction and sentence. In such case, the accused will then be credited with the time spent in custody as a result of that charge. If appellant's reading of the statute were correct, should the handgun charge ever be tried and result in a conviction and sentence, he would be entitled to receive credit for time in custody thereon against the sentence for that offense in addition to credit against the sentence that was re-imposed for violation of probation. We do not

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