Jones v. State Of Md.

Decision Date17 June 2010
Docket Number2009.,No. 100,100
PartiesJay Anthony JONESv.STATE of Maryland.
CourtMaryland Court of Appeals

Sherrie B. Glasser, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore) on brief, for petitioner/cross-respondent.

Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY and BARBERA, JJ.

BELL, C.J.

The genesis of this case is an improper sentence that was imposed upon Jay Anthony Jones, the petitioner, by the Circuit Court for Baltimore City. Having been tried in connection with the shooting and robbery of David Knowlin and Jamile Thomas, the petitioner was convicted of inter alia, first degree assault and robbery with a dangerous weapon. Despite the petitioner's arguments in mitigation, that: he was the least culpable of those involved in the crime, he had family support and he had no prior contact with the judicial system, the petitioner was sentenced to sixty-five (65) years in prison. The actual shooter received seventy (70) years imprisonment.

The petitioner noted an appeal, challenging that sentence, to the Court of Special Appeals. He argued in that court that the trial court erred in refusing to merge the first-degree assault count with the armed robbery count, as it pertained to one of the victims. Agreeing with that argument, the intermediate appellate court, in order to remedy the illegal sentence, remanded the case, in an unreported opinion, to the Circuit Court. Its mandate provided:

“Sentence imposed under Count 3 of indictment No. 103149031 for first-degree assault and sentence imposed under Count 1 of indictment No. 103149033 (robbery with a deadly weapon) vacated; case remanded to the Circuit Court for Baltimore City for imposition of a new sentence in accordance with the views expressed in this opinion; judgments otherwise affirmed; costs to be divided equally between appellant and the Mayor and City Council of Baltimore.”

At a resentencing hearing, the trial court reduced the petitioner's sentence from sixty-five years (65) to sixty years (60); 1 however, although the petitioner indicated his desire to offer such evidence, the trial court refused to consider any mitigating evidence. The basis of this refusal may be found in the following colloquy:

[DEFENSE COUNSEL]: Your Honor I wanted to argue for mitigation before you imposed sentence.

“THE COURT: I don't believe there is anything to mitigate on. I think this was sent back for merger.

[DEFENSE COUNSEL]: Okay.”

Thus, the trial court seemed to believe, improperly so, we think, that it was constrained by the Court of Special Appeals' remand only to merge the first-degree assault count with the armed robbery count, and that it was precluded from considering, for purposes of sentencing, any factors that could mitigate the petitioner's “new sentence.”

The petitioner again appealed to the Court of Special Appeals, this time arguing based on Sanders v. State, 105 Md.App. 247, 659 A.2d 356 (1995), that the sentencing court should have permitted him to offer mitigating evidence before resentencing him. The State, in response, maintained that the issue of mitigation was not properly preserved or, if it were, was without merit.

“Assuming without deciding” the validity of the petitioner's preservation argument, the Court of Special Appeals concluded that there was “no error.” Addressing Sanders, it determined the case to be inapplicable because the petitioner “has failed to provide evidence of ‘events subsequent to the first trial that may have thrown new light upon the defendant's life, health, habits, conduct, and mental and moral propensities.’ (quoting North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656, 668 (1969)). The intermediate appellate court held, therefore, that the petitioner did not meet his burden to show that the trial judge misconstrued or misapplied the law and observed that, unlike the trial judge in Sanders, the trial judge here was not ‘stuck with a handicap’ from the previous trial judge's ruling. The intermediate appellate court concluded that [t]he court's statement here that ‘I don't believe there is anything to mitigate on’ does not indicate, contrary to appellant's assertion, that it felt it was precluded from considering argument in mitigation.”

This Court granted certiorari Jones v. State, 410 Md. 701, 980 A.2d 482 (2009), to determine two issues. The first, whether “the trial court err [ed] in failing to allow [the] petitioner to offer argument in mitigation before imposing sentence.” The second, briefly stated, is whether the petitioner fail[ed] to preserve his claim that the trial court failed to allow him to offer argument in mitigation.” We disagree with the determination of the Court of Special Appeals, and hold, to the contrary, that the trial court's refusal to allow mitigating evidence to be adduced prior to the resentencing was in error.

The mandate of the intermediate appellate court was clear: the trial court was to issue “a new sentence in accordance with the views expressed in [its] opinion.” The court certainly did not expressly foreclose the trial court from considering mitigating evidence. It is also significant that the “views expressed” did not include a directive that the trial court impose a term of years, or any particular sentence. The court simply held that a merger of two of the sentences was required. The intermediate appellate court's concluding remarks on the merger issue are instructive in this regard:

“Therefore, appellant's first-degree assault conviction must merge into the robbery-with-a-deadly-weapon conviction. If the jury believed, as it may have done pursuant to the court's instructions, that the shooting was part of the robbery, then the first-degree-assault conviction merges into the greater offense (robbery with a dangerous weapon). Because we have no way of knowing whether the jury believed that the shooting was separate from the armed robbery, we hold that, for sentencing purposes, the first-degree-assault charges merged into the crime of robbery with a dangerous weapon.”

Thus, the Court of Special Appeals only instructed the trial court to merge the two convictions, for sentencing purposes, without any additional express or implied limitations. I. The Right of Allocution is Required in Resentencing.

We begin our analysis with the acknowledgment that a trial judge has “very broad discretion in sentencing.” Jackson v. State, 364 Md. 192, 199, 772 A.2d 273, 277 (2001); Gary v. State, 341 Md. 513, 516, 671 A.2d 495, 496 (1996); Poe v. State, 341 Md. 523, 531, 671 A.2d 501, 505 (1996); Jennings v. State, 339 Md. 675, 683, 664 A.2d 903, 907 (1995); Jones v. State, 336 Md. 255, 265, 647 A.2d 1204, 1209 (1994); State v. Dopkowski, 325 Md. 671, 679, 602 A.2d 1185, 1189 (1992); Logan v. State, 289 Md. 460, 480, 425 A.2d 632, 642 (1981). Nonetheless, we have made clear that the trial judge should tailor the criminal sentence to fit the ‘facts and circumstances of the crime committed and the background of the defendant, including his or her reputation, prior offenses, health, habits, mental and moral propensities, and social background.’ Jackson, 364 Md. at 199, 772 A.2d at 277 (quoting Poe, 341 Md. at 532, 671 A.2d at 505).

It is well established that:

‘only three grounds for appellate review of sentences are recognized in this State: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits.’

Jackson, 364 Md. at 200, 772 A.2d at 277 (quoting Gary, 341 Md. at 516, 671 A.2d at 496); citing Teasley v. State, 298 Md. 364, 370, 470 A.2d 337, 340 (1984); see generally

Logan v. State, 289 Md. 460, 425 A.2d 632 (1981); Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979); Clark v. State, 284 Md. 260, 396 A.2d 243 (1979). This case does not involve a contention that the sentence constituted cruel and unusual punishment or that it was not within statutory limits. It does, however, demand a discussion under (2), particularly as it pertains to whether the trial court during sentencing was “motivated by ... impermissible considerations.”

To be sure, the trial court correctly noted that the case was remanded “for merger.” This does not mean, however, that the hearing was confined simply and solely to the implementation of that mandate. To accomplish merger a new resentencing was required, and because mitigating evidence may be offered at a sentencing, the petitioner was within his right to raise the issue and the trial court should have considered such evidence as may have been offered by him.

The first question that must be asked and answered is whether a “resentencing” or a “new sentence” is a “sentencing.” The answer is yes. Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972) is clear on this point. In Bartholomey, the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), prompted this Court “summarily [to] vacate[ ] death sentences imposed in 120 other cases then pending on its docket ... and remand[ ] all the cases ‘for further proceedings.’ 267 Md. at 183, 297 A.2d at 700. In one of the cases on review in Bartholomey,Sterling v. State, 248 Md. 240, 235 A.2d 711 (1967), in which the defendant was sentenced to death for rape Bartholomey, 267 Md. at 191, 297 A.2d at 704, the sentencing court, in error, despite the vacating of that sentence pursuant to Furman, “automatically mandate[d] imposition of the next most severe penalty.” Bartholomey, 267 Md. at 191, 297 A.2d at 704. We reversed. Id. at 192, 297 A.2d at 705. We stated: [o]n the contrary, in resentencing ... the sentencing court must approach its task [of...

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