Abdul–Maleek v. State

• Decision Date: 27 April 2012
• Docket Number: No. 46,Sept. Term, 2011.,46
• Citation: 43 A.3d 383,426 Md. 59
• Parties: Muhammad H. ABDUL–MALEEK v. STATE of Maryland.
• Court: Maryland Court of Appeals

426 Md. 59

43 A.3d 383

Muhammad H. ABDUL–MALEEK

v.STATE of Maryland.

No. 46, Sept. Term, 2011.

Court of Appeals of Maryland.

April 27, 2012.

Binny Miller (American University Washington College of Law, Criminal Justice Clinic, Washington, D.C.), on brief, for Petitioner.

Susannah E. Prucka, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, ALAN M. WILNER, (Retired, Specially Assigned), and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

BARBERA, J.

Pursuant to Maryland Code (1974, 2006 Repl.Vol. & 2010 Supp.), § 12–401 of the Courts and Judicial Proceedings Article (CJ),¹ a criminal defendant convicted in the District Court is entitled to appeal that judgment to the Circuit Court, for a trial de novo. If convicted in the Circuit Court, the sentencing judge is not limited by the sentence previously imposed in District Court and “may impose a more severe sentence” so long as the sentence is “authorized by law to be imposed as punishment for the offense.” CJ § 12–702(c).² Petitioner, Muhammad Abdul–Maleek, was convicted in the District Court of Maryland sitting in Montgomery County, exercised his right to appeal, and was afforded a de novo trial by jury in the Circuit Court for Montgomery County. The jury likewise convicted Petitioner of theft, and the Circuit Court imposed a more severe sentence than that imposed by the District Court.

We issued a writ of certiorari to review Petitioner's assertion that the Circuit Court impermissibly “based [Petitioner's sentence] on the fact that he exercised his right to appeal and receive a de novo jury trial.” We hold that Petitioner is entitled to resentencing because the court's comments at sentencing could cause a reasonable person to conclude that the sentence was based in part on Petitioner's exercise of his right to a de novo trial on appeal.

I.

A detailed account of the facts underlying Petitioner's conviction is not necessary to resolution of the issue before this Court. To provide background, however, we include the following narrative, derived primarily from the testimony of Ms. Leyla Monroy, the victim of Petitioner's crime.

On July 20, 2010, Ms. Monroy, was visiting the public library in Rockville Town Center and noticed her cell phone was missing. She called her phone, a male voice answered, and he indicated that he would return the cell phone if Ms. Monroy gave him fifty dollars. While initially reluctant, Ms. Monroy agreed to meet the man at a nearby location and to pay him the money.

Ms. Monroy met the man in a corridor between two establishments near the Rockville Town Square. She later identified Petitioner as the man she met and recognized his voice as the man who had answered her cell phone. Petitioner again told Ms. Monroy that he would not return her cell phone until she gave him the money. After some exchange between Ms. Monroy and Petitioner, Ms. Monroy finally capitulated. As Ms. Monroy was only carrying three twenty-dollar bills and Petitioner had indicated he wanted fifty dollars, commenting “[w]ell, do you want your phone or not, because you know, it's up to you,” Ms. Monroy turned over all three bills. Upon receipt of the money, Petitioner then “just turned around and walked away.”

Meanwhile, a parking enforcement officer, Jerry Adams, noticed the disagreement between Ms. Monroy and Petitioner. Adams testified that Petitioner explained that “he wanted to help and he wasn't the guy who [Ms. Monroy] talked to on the phone,” and the man on the phone was Jerome, “a former student of [Petitioner]” who “looked homeless.” Petitioner reacted by commenting “[y]ou're just parking enforcement.” At that point, Adams stepped away to radio to the police. When he returned, Ms. Monroy had already given Petitioner forty dollars and Adams then observed her hand over her remaining twenty-dollar bill.

According to Adams, Petitioner then began to walk away but returned to show his driver's license to the officer, because, as Petitioner explained, “he didn't want any trouble, he wanted to, me to know that he was coming back; that he was just going to get her phone, he was coming back.” Petitioner then walked away, but Adams maintained visual contact with him for the duration and “just simply saw him turn around and come back.” Petitioner gave the phone to Adams, to return to Ms. Monroy, as well as his business card, and he indicated that “he would try to get her money back.” Petitioner then departed.

Shortly thereafter, the police arrived and Adams turned over Petitioner's business card to them. By using the information on the business card the police officers obtained Petitioner's residential address, visited that address and ultimately arrested Petitioner there.

Procedural Background

Petitioner was charged in the District Court of Maryland with (1) obtaining by extortion money having a value of less than $500 in violation of Maryland Code (2002 & 2010 Supp.), § 3–701(b) of the Criminal Law Article (CR), and (2) stealing Ms. Monroy's cell phone having a value of $100, less than $1,000, in violation of CR § 7–104. On January 10, 2011, the District Court found Petitioner not guilty on the first count and guilty on the second. The court sentenced him to eighteen months' incarceration, sixteen months suspended, with one year of supervised probation upon release, and a fine of $500, $350 of which was suspended. The court also ordered Petitioner to pay restitution to Ms. Monroy in the amount of $60. That same day, Petitioner filed a Notice of Appeal from the District Court judgment.

Petitioner's two-day de novo jury trial in the Circuit Court for Montgomery County commenced on April 6, 2011, on the sole charge of theft. On April 7, 2011, the jury returned a guilty verdict. At the sentencing proceeding that afternoon, defense counsel argued that Petitioner should receive no jail time and unsupervised probation and, alternatively, should the court impose executed incarceration, the court should decline to order probation. The State argued, in part, that the nature of Petitioner's actions, “tak[ing] advantage of someone under these circumstances,” warranted “executed incarceration.” The State continued:

It's in light of that, Your Honor, the State is asking for executed incarceration. To give you an idea, [the District Court Judge], gave the defendant 18 months, suspend all but 60 days. That's neither here nor there. It's a de novo appeal. I would ask for more than that, Your Honor. The defendant had the opportunity to sort of let that lie, take responsibility for his actions. He did not do that. I would ask the Court for an executed incarceration above and beyond the 60 days. How far above and beyond, I will leave in the Court's sound judgment. Thank you.

The Court, after hearing from Petitioner, imposed its sentence, explaining:

Mr. Abdul–Maleek, you may indeed be a kind, caring, and conscientious individual, but none of those adjectives or descriptions apply to what you did to this young lady on this day. Nothing kind about it, nothing caring about it, nothing conscientious about it, quite the contrary, and I just, I'm at a loss for words.

An individual who has a job, has a family, to do something like this and the total disregard that you had for this young lady, I'm really at a loss. I mean, if you had a drug addiction and you did it to get the money to support your drug addiction, that doesn't make it right but at least there's some explanation.

Your attorneys did a very fine job on your behalf, notwithstanding the fact that that may have been a record, returning a verdict of five minutes or thereabouts, but that had nothing to do with your attorneys. It had more to do with the facts that were presented to the jury, and obviously, they didn't have any problems with that.

* * *

You have every right to go to trial in this case, which you did—not once, but twice. Ms. Monroy was victimized, and then she had to come back and testify in District Court; then she had to come back again and testify in the Circuit Court, and she had to do that because you have every right to have all of those opportunities to put forth your position. I am at a total loss.

The Court will impose a sentence of 18 months to the Montgomery County Detention Center. The Court will suspend all but eight months, and the Court will recommend the Pre–Release Center, place you on 18 months of supervised probation upon your release.

(Emphasis added.)

The sentencing court also explained that Petitioner was to comply with standard probation conditions, to submit to drug and alcohol testing as deemed appropriate, to have no contact with Ms. Monroy and to pay restitution to Ms. Monroy in the amount of sixty dollars. The court waived Petitioner's fines and court costs.

Petitioner timely filed a petition for writ of certiorari, which we granted. Abdul–Maleek v. State, 420 Md. 463, 23 A.3d 895 (2011). We now consider whether the Circuit Court's reference at sentencing to the fact that Petitioner exercised his de novo appeal right gave the appearance that the court based the sentence on an impermissible consideration.³

II.

A. Waiver

Before we arrive at the merits of Petitioner's contentions, we must address the State's argument that Petitioner's contentions are not preserved for appellate review because he lodged no objection to the sentencing court's statements concerning his exercise of the statutory right to a de novo trial on appeal. Petitioner counters that requiring a defendant to object in the circumstances presented here, where the trial court's comments before imposing sentence referred to a right Petitioner had already exercised, would require counsel to risk subjecting her client to an increased sentence. This is so because, according to Petitioner, a court might seek retribution for defense counsel's contemporaneous suggestion of error; therefore, ordinary principles of...