Hicks v. State, 215

• Decision Date: 01 September 1984
• Docket Number: No. 215,215
• Citation: 485 A.2d 1021,61 Md.App. 183
• Parties: Marvin HICKS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 183

61 Md.App. 183

485 A.2d 1021

Marvin HICKS v. STATE of Maryland.

No. 215, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Jan. 7, 1985.

Adrienne E. Volenik, Assigned Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Bernard A. Penner, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Ruth Finch, Asst. State's Atty., Baltimore, for Baltimore City on brief), for appellee.

Submitted before MOYLAN, GETTY and BELL, JJ.

GETTY, Judge.

In this case, we are called on to decide whether an originally suspended sentence which is reimposed may be made to run consecutively to an intervening sentence that does not specify whether it is to be consecutive to or concurrent with any other sentence. Appellant Marvin Hicks appeals from an order of the Circuit Court for Baltimore City (Johnson, J.) reimposing an originally suspended eighteen month sentence and making that sentence run consecutive to another eighteen month sentence appellant was already serving. We agree with the sentence imposed by the circuit court.

The sentencing sequence may be set out as follows:

1. On July 28, 1981, appellant was found guilty of theft of under $300.00 and was placed on probation before judgment for one year. Appellant's probation was subsequently violated and his probation before judgment was struck.

Sentence A: Judge James Perrott on April 27, 1982, imposed upon appellant a sentence of 18 months to the Department of Corrections, to be suspended, with one year of supervised probation.

2. On November 7, 1983, appellant was convicted of attempted burglary and failure to appear in the District Court.

Sentence B: Appellant was sentenced by the District Court (Wahl, J.) to 18 months imprisonment for each offense, to run concurrently with each other.

3. On February 22, 1984, the Circuit Court of Baltimore City (Johnson, J.) found appellant in violation of the probation ordered by Judge Perrott.

Sentence A revisited: Judge Johnson reimposed appellant's original 18 month sentence and stated that it was to run consecutive to the 18 month sentence imposed by Judge Wahl.

Generally, sentencing is within the judge's discretion, Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979). His discretion is not unfettered, however. He is not permitted to be motivated by ill-will, prejudice or other improper consideration, or to impose sentences that constitute cruel and unusual punishment or that fall outside statutory limits. Kaylor, supra, 285 Md. at 69, 400 A.2d 419 (citations omitted). In State v. White, 41 Md.App. 514, 397 A.2d 299 (1979), we held that a judge also must relate the sentence to the status quo at the moment of sentencing. "[A judge] may make his sentence concurrent with or consecutive to whatever other sentence then exists, either (1) actually being served or (2) in suspension but with ever present potentiality for the lifting of that suspension. He may not, however, presume to bind the future." White, supra, 41 Md.App. at 515, 397 A.2d 299.

Appellant argues that sentence B, imposed by Judge Wahl, was obviously intended to run concurrently with sentence A, and that Judge Johnson...