Jennings v. State, 116

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL, and RAKER, JJ., and JOHN F. McAULIFFE; BELL; Dissenting opinion by RAKER, J., in which ELDRIDGE; RAKER; ELDRIDGE
• Citation: 339 Md. 675,664 A.2d 903
• Parties: Arnold Jerome JENNINGS, Jr. v. STATE of Maryland. ,
• Docket Number: No. 116,116
• Decision Date: 01 September 1994

Page 675

339 Md. 675 664 A.2d 903 Arnold Jerome JENNINGS, Jr.
v.
STATE of Maryland. No. 116, Sept. Term, 1994. Court of Appeals of Maryland. Sept. 14, 1995.

[664 A.2d 904]

Page 677

George E. Burns, Jr., Assistant Public Defender, (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Mary Ellen Barbera, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief), Baltimore, for respondent.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL, and RAKER, JJ., and JOHN F. McAULIFFE, Judge (retired), Specially Assigned.

BELL, Judge.

We granted certiorari in this case to address whether a sentencing court properly may consider, in imposing sentence, a defendant's refusal to accept responsibility, or exhibit remorse, for the crimes for which that defendant has been convicted. The Court of Special Appeals, in an unreported opinion, held that a sentencing court may consider this factor. It thus affirmed the judgment of the Circuit Court for Baltimore County. At the request of Arnold Jerome Jennings, Jr., the petitioner, we granted certiorari and shall now affirm the judgment of the Court of Special Appeals.

Page 678

I.

Because this case involves only the propriety of the trial court's sentencing decision, it is not necessary to set out in detail the facts surrounding the crimes out of which this case arose. It is enough, for context, to recount that as a result of an armed robbery, committed at a restaurant on Pulaski Highway, the petitioner was charged with the use of a handgun in the commission of a felony and the armed robberies of the owner of the restaurant and two of its patrons. Although he has consistently maintained his innocence, a jury in the Circuit Court for Baltimore County convicted the petitioner of all charges. The court then sentenced him to concurrent prison terms. As to the robbery counts the term was 20 years, and for the handgun offense it was five years. The latter sentence was ordered served without parole.

The propriety of the sentence the petitioner received was one of the subjects of the petitioner's appeal to the Court of Special Appeals. The circumstances surrounding its imposition are reflected in the colloquy that occurred after counsel had been heard as to the appropriate disposition. Having been advised that he wanted to address it, the court invited the petitioner to do so, making [664 A.2d 905] clear, however, that "what you are about to tell me is very important, very important." The following then occurred:

THE DEFENDANT: Your Honor, jury found me guilty. You have got to sentence me. But when you do, can you make it as least as possible? I'd like to be there with my kid.

THE COURT: Anything further?

THE DEFENDANT: No.

THE COURT: This court doesn't treat lightly the use of handguns in the commission of crimes and more, especially, the type of handgun that was used in this crime.

I cautioned you just before you spoke, Mr. Jennings, that what you had to say to the court was very important because, according to the PSI, according to the statement from your attorney, the jury found the wrong guy guilty.

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And until you can face up to your problem of your implication in this little event you haven't learned a thing. For me to give you a minimum sentence just doesn't fit my role.

On the, Count One, sentence of this court would be twenty years to the Department of Corrections; Count Two, twenty years to the Department of Corrections concurrent to Count One; Count Three, twenty years to the Department of Corrections concurrent to Count One; [Count 17], five years to the Department of Corrections to be served without parole and to run concurrent with Count One.

Nothing is going to be suspended because this gentleman does not have any remorse, none whatsoever.

I guarantee you, get a letter thirty days from now. Oh, I'm sorry. I did all that. But there is absolutely no remorse ... I don't either.

THE DEFENDANT: Incarcerate at the Baltimore County Detention?

THE COURT: I gave you an opportunity. I said what you have to say to me is very important.

All I wanted to hear from you is, you know, what implication you had this, in this, because you're an innocent. In your mind you're an innocent man.

Well, I'm sorry. But take your appeal and let's see what happens there.

The petitioner subsequently filed an application for review of sentence. The majority of the three-judge panel appointed for that purpose filed a Memorandum Opinion and Order, in which it ruled that the petitioner's sentence would remain the same, but would be modified by suspending all but 12 years and placing the petitioner on probation upon his release from incarceration.

In the Court of Special Appeals, the petitioner maintained that the trial court based his sentence on an impermissible consideration, i.e., that he did not plead guilty. The intermediate appellate court rejected that argument. While recognizing that a defendant's not guilty plea or protestations of innocence throughout the trial may not properly be considered,

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it held that the lack of remorse after conviction may be. It was the latter which the trial court considered when sentencing the petitioner, the Court of Special Appeals said.

Having been convicted of three counts of armed robbery and one count of use of a handgun in the commission of a felony, the petitioner's maximum exposure, if the sentence for each convicted count were imposed consecutively, was 80 years, see Maryland Code (1957, 1992 Repl.Vol.), Art. 27 §§ 36B(b) and 488, with a mandatory minimum sentence of five years without parole. See § 36B(b)(iv). The sentencing guidelines for these offenses, prepared by an agent of the Division of Parole and Probation, reflected an over-all guideline range--for all of the counts--of nine years to 24 years. ¹ Both [664 A.2d 906] the prosecutor and the petitioner's counsel urged the court to impose a lengthy sentence. They both recommended,

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however, that only a portion of it actually be ordered served and that the sentence be one in which the punishments were served concurrently. The petitioner asked the court to suspend all of the sentence except that which could not be suspended, i.e., the five year mandatory minimum portion of the handgun sentence, while the prosecutor suggested that the suspended portion of the sentence should be ten years, leaving ten years to be served by the petitioner. It is with this backdrop that the sentencing proceedings should be viewed.

II.

The petitioner asserts that he was improperly sentenced for refusing to admit his guilt at the sentencing hearing. He argues that, when imposing sentence, a sentencing court may not consider a defendant's failure to acknowledge guilt after conviction nor may it punish the defendant for "protestations of innocence." Indeed, forcing a defendant to admit guilt at a sentencing proceeding, the petitioner maintains, violates the defendant's privilege against self-incrimination, a privilege which remains viable pending appeal or sentence review. See Ellison v. State, 310 Md. 244, 259, 528 A.2d 1271, 1278 (1987).

The State, on the other hand, argues that the sentencing court properly considered the petitioner's refusal to accept responsibility, or exhibit remorse, for his crimes at the sentencing proceeding. According to the State, rather than punishing the petitioner for his "protestations of innocence," the court construed the petitioner's failure to acknowledge his culpability as evidence of a lack of remorse, a fact most relevant to the petitioner's prospects for rehabilitation. This, the State says, is appropriately considered by the sentencing court in the exercise of its sentencing discretion.

III.

As a threshold matter, we must consider whether we are able to reach the merits of this case. The sentence the petitioner seeks to have us review is not the sentence that the sentencing court imposed. That sentence was significantly

Page 682

modified by a three-judge panel of the Circuit Court for Baltimore County, in response to an Application For Sentence Review filed by the petitioner. This case is, therefore, arguably moot. See Adkins v. State, 324 Md. 641, 646, 598 A.2d 194, 197 (1991); Robinson v. Lee, 317 Md. 371, 375, 564 A.2d 395, 397 (1989); State v. Peterson, 315 Md. 73, 79-82, 553 A.2d 672, 675-77 (1989); Attorney General v. Anne Arundel Co. School Bus Contractors Ass'n, Inc., 286 Md. 324, 327, 407 A.2d 749, 752 (1979).

Although acknowledging that this is so--that the matter is arguably moot--the State urges that we nevertheless address the merits, asserting that "the issue presented by this case is 'of important public concern.' " State's brief at 3 n. 1 (quoting State v. Peterson, supra, 315 Md. at 82-83, 553 A.2d at 677). In Peterson, this Court held that it would depart from its general rule in not addressing the merits of a moot question "where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest." Id. We applied the same test in Chertkov v. State, 335 Md. 161, 170-71, 642 A.2d 232, 237 [664 A.2d 907] (1994) (whether a binding plea agreement precludes a trial court from modifying a sentence imposed pursuant to that agreement); Thanos v. State, 332 Md. 511, 521, 632 A.2d 768, 772 (1993) (whether a defendant sentenced to death may waive time limitation on execution of death penalty); Montgomery County v. McNeece, 311 Md. 194, 200-01, 533 A.2d 671, 674 (1987) (whether Maryland Rule 2-551, dealing with in banc review, is constitutional).

How a trial court's perception that a defendant shows a lack of remorse is to be treated for sentencing purposes is a matter of some significance; it is a matter of important public concern. Accordingly, we shall consider the merits of this case.

IV.

In Maryland, the primary objectives of sentencing are punishment, deterrence, and rehabilitation. State v. Dopkowski, 325...