Johnson v. State, No. 119

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; DIGGES
• Citation: 274 Md. 536,336 A.2d 113
• Parties: Kenneth Ricardo JOHNSON v. STATE of Maryland.
• Decision Date: 16 April 1975
• Docket Number: No. 119

Page 536

274 Md. 536 336 A.2d 113 Kenneth Ricardo JOHNSON
v.
STATE of Maryland. No. 119. Court of Appeals of Maryland. April 16, 1975.

[336 A.2d 114]

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Geraldine Kenney Sweeney, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

David B. Allen, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Clarence W. Sharp and George A. Eichhorn, III, Asst. Attys. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty. and Stephen C. Orenstein, Asst. State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MURPHY, C. J. and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

Kenneth Ricardo Johnson, the petitioner, after failing in the Court of Special Appeals (Johnson v. State, 21 Md.App. 214, 319 A.2d 581 (1974)) to obtain a reversal of his burglary conviction by the Circuit Court for Prince George's County (Ralph W. Powers, J.), was granted his request for certiorari by this Court so that we could review the prison sentence he received for that criminal act. The scope of this Court's review, as directed in the writ, is 'limited solely to the question (of) whether the (trial) court denied . . . (Johnson) due process by sentencing him 'to a longer term based upon his not admitting guilt but instead pleading not guilty and testifying in his own behalf.'""

As there are no issues before us concerning the conduct of the trial, a skeletal review of what occurred there will suffice. ¹ Johnson was indicted on four counts-burglary, housebreaking, larceny and receiving stolen goods-and,

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having pleaded not guilty to all charges, was tried by a jury on May 16, 1973. At that trial the petitioner testified at length in his own behalf, the general theme of which was a protestation of his innocence. But this was to no avail, as the jury found the accused guilty on the burglary count. After that verdict was recorded, Judge Powers, on June 20, 1973, directed that Johnson be imprisoned for twelve years.

In reviewing the legality of this sentence we are fully cognizant of the fact that, in this State, the awesome responsibility of imposing sentence is within the exclusive domain of the trial judge (subject to modification pursuant to the review of criminal sentence provision contained in Maryland Code (1957, 1971 Repl.Vol., 1974 Cum.Supp.) Art. 27, § 645JA-645JG), and thus his determination in this regard cannot be reevaluated upon appellate review unless either it is based upon an impermissible consideration, Costello v. State, 237 Md. 464, 469, 206 A.2d 812 (1965); Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353 (1964); Mitchell v. State, 82 Md. 527, 534, 34 A. 246 (1896), or is passed in violation of statute, State Ex Rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974). Since the term imposed by Judge Powers in this case (twelve years) is within the longevity limits set by statute for burglary ('not more than twenty years,' Code (1957, 1971 Repl.Vol.) Art. 27, § 29), it is [336 A.2d 115] not in violation of the duration of imprisonment allowable by law. However, although we cannot be sure to what extent it actually affected the judge's ultimate determination, if at all, we think that certain remarks made by the sentencing judge, as they are transcribed in the record, indicate that he may have imposed sentence in this case based upon an impermissible consideration. Therefore, in order to be sure that Johnson's sentence is free of any taint, we are constrained to vacate the one imposed and remand the case so as to afford Judge Powers an opportunity to again sentence the petitioner, taking into account only permissible factors. ²

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The illicit component to which we refer and which might have been considered in a manner adverse to the petitioner, at the time when the duration of his sentence was decided, is the fact that Johnson entered a plea of not guilty. The evidence that this consideration may have impermissibly entered the Judge's thinking is found in the colloquy which took place between Judge Powers and Johnson at the time of allocution, just prior to the imposition of sentence. In pertinent part the transcript of that dialogue reads as follows:

'The court: What lesson have you learned when you were not telling the truth about it at the time of trial?

The defendant Johnson: I wasn't telling the truth about it?

The court: That's right. The jury didn't believe you about this wild story about a man running out and asking you to hold something; that's perfectly ridiculous. The jury didn't accept it and I didn't accept it. You weren't telling the truth.

The defendant Johnson: I was telling the truth.

The court: Very well. A necessary ingredient to leniency in any case is the attitude of the individual.

The defendant Johnson: Yes, sir.

The court: And when you sit up here and lie about it, and you're not telling the truth. You think you're trying to get away with it. That attitude is not consistent with any consideration for leniency. If you had come in here after this happened, before the other trouble you got into-if you had come in

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here with a plea of guilty and been honest about (it) and said, 'Of course I did it,' which you did, you would probably have gotten a modest sentence, concurrent with the one in the District of Columbia, and you would have gotten out of it. But with this attitude that you have you can't receive that kind of treatment.

The sentence of the court is that you be confined under the jurisdiction of the Department of Correctional Services for a period of twelve years, to run...