Kaylor v. State

Decision Date26 April 1979
Docket Number54,Nos. 42,s. 42
Citation400 A.2d 419,285 Md. 66
PartiesKevin Patrick KAYLOR v. STATE of Maryland. John BUTTS, the younger v. STATE of Maryland.
CourtMaryland Court of Appeals

John W. Sause, Jr., Dist. Public Defender, Centreville, for appellants.

Ray E. Stokes, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE and COLE, JJ.

COLE, Judge.

In these two cases we are asked to decide one question: Whether a judge, upon finding the accused guilty of violating probation, may order the sentence previously suspended therefor, to be served consecutively to the sentence the accused is then serving for conviction of a crime committed while on probation.

Kevin Patrick Kaylor (Kaylor) was convicted in the Circuit Court for Cecil County on July 17, 1975 of obtaining controlled dangerous substances by use of a false name and of obtaining a prescription drug by use of a false name in violation of Maryland Code (1957, 1976 Repl.Vol.), Article 27, §§ 287(b), and 300(g-1)(2). He was sentenced to three years for the first offense and two years for the second offense, the sentences to run concurrently. These sentences were suspended and Kaylor was placed on probation for three years.

On August 26, 1976, the Circuit Court for Cecil County, after a hearing, revoked Kaylor's probation because he had been convicted of malicious destruction of property and receiving stolen goods by the Circuit Court for Kent County and of receiving stolen goods by the Circuit Court for Queen Anne's County. The three year sentence, which had been suspended, was ordered to be served consecutively to the sentences Kaylor was then serving for the subsequent offenses. On appeal, the Court of Special Appeals affirmed the judgment in an unreported per curiam opinion, Kaylor v. State, No. 1125, September Term, 1977, filed May 25, 1978. On August 18, 1978, this Court granted Kaylor's petition for a writ of certiorari.

John Butts (Butts) entered a guilty plea to assault charges in the Criminal Court of Baltimore and was sentenced to three years imprisonment on February 23, 1976. This sentence was suspended and Butts was placed on probation for five years. On July 6, 1977 Butts was convicted of assault with intent to murder in the Criminal Court of Baltimore and sentenced to ten (10) years imprisonment. Butts' probation was revoked on November 3, 1977 and his original three year sentence was directed to run consecutively to the ten year sentence he was then serving. The Court of Special Appeals affirmed the trial court's disposition in Butts v. State, No. 1319, September Term, 1977, filed June 19, 1978 (unreported). This Court granted Butts' petition for a writ of certiorari on September 7, 1978 and directed that Butts' cause be consolidated with that of Kaylor.

Kaylor and Butts contend that the power of the courts to suspend sentences and order probation is derived solely from statutory authorization. 1 They argue that since there is no specific statutory authorization to direct that a suspended sentence be served consecutively to a sentence subsequently imposed the courts lack the authority and power to order such disposition. The result urged upon us is that when probation is revoked the suspended sentence starts to run from the date of revocation and that only concurrent sentences are proper.

The State, in reply, contends that a judge has the power to designate the time at which a sentence will commence and has the discretion to run a sentence consecutively to another sentence. The State argues that if a trial judge cannot make the earlier sentence cumulative to the subsequently imposed sentence a probationer will be able to avoid punishment for his original offense.

Initially, we note that imposition of sentence in a criminal case is a matter within the discretion of the judge. The authority of the court to sentence a convicted defendant derives from the court's power to try an accused person for a crime committed within its jurisdiction. Rigor v. State, 101 Md. 465, 61 A. 631 (1905). Further, there is nothing improper Per se about the imposition of consecutive sentences. Long v. State, 7 Md.App. 256, 254 A.2d 707 (1969). The restraints on a judge's power to impose sentence are, generally, that the sentence not constitute cruel and unusual punishment, that the sentencing judge not be motivated by ill-will, prejudice or other improper considerations and, that the sentence fall within statutory limits. Roberts v. Warden, 242 Md. 459, 219 A.2d 254, Cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966); Gleaton v. State, 235 Md. 271, 201 A.2d 353 (1964); Raley v. State, 32 Md.App. 515, 363 A.2d 261 (1976), Cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977); Smith v. State, 23 Md.App. 177, 325 A.2d 902 (1974); Blevins v. State, 8 Md.App. 708, 261 A.2d 797 (1970). However, it is settled law that consecutive sentences do not constitute cruel and unusual punishment where the length of each sentence is within the limits prescribed by statute, Martin v. State, 227 Md. 407, 177 A.2d 247 (1962); Jones v. State, 3 Md.App. 608, 240 A.2d 347, Cert. denied, 394 U.S. 993, 89 S.Ct. 1484, 22 L.Ed.2d 769 (1969). Here the appellants do not challenge the sentencing judges' motivations nor do they contend that the penalties exceed statutory limits. Instead, the appellants directly attack their sentences by asserting that the sentencing judges were powerless to run the sentences consecutively.

The appellants cite the opinion of this Court in State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974) which held that in the absence of any statutory authority, a court does not possess any inherent power to suspend the execution of a sentence. We do not believe that Sonner may properly be extended to govern the present appeals. The Sonner decision was premised on the prerogative of the legislature to specify the maximum and minimum penalties which may be imposed for the commission of a crime. Accordingly, this Court held that a judge may not suspend a mandatory minimum sentence because that would undermine the legislative mandate as to the minimum penalty for that crime. It does not follow, however, that a judge's power to direct when a sentence is to be served upon revocation of probation should be made to depend upon specific statutory authorization just because his power to suspend the execution of a sentence is so restrained. the rationale behind Sonner has no application here, where the direction as to when a sentence shall commence does not conflict with the penalty for a specific crime imposed by the legislature, but merely implements that punishment.

A court has a power to impose whatever sentence it deems fit as long as it does not offend the constitution and is within statutory limits as to maximum and minimum penalties. Reynolds v. Warden, 229 Md. 623, 182 A.2d 875 (1962); Reid v. State, 200 Md. 89, 88 A.2d 478, Cert. denied, 344 U.S. 848, 73 S.Ct. 63, 97 L.Ed. 659 (1952). This judicial power includes the determination of whether a sentence will be consecutive or concurrent, with the same limitations. See Martin v. State, supra ; Wright v. State, 24 Md.App. 309, 330 A.2d 482 (1975); Long v. State, supra ; Wharton's Criminal Procedure § 629 (12th ed. C. Torcia 1976).

This Court has long adhered to the position that consecutive sentences are a proper exercise of the trial court's discretion. Martin v. State, supra ; Yantz v. Warden, 210 Md. 343, 123 A.2d 601, Cert. denied, 352 U.S. 932, 77 S.Ct. 236, 1 L.Ed.2d 169 (1956); Eyer v. Warden, 197 Md. 690, 80 A.2d 19, Cert. denied, 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 632 (1951); Smith v. State, supra ; McClain v. State, 10 Md.App. 106, 268 A.2d 572 (1970); Fisher v. State, 1 Md.App. 505, 231 A.2d 720 (1967). Moreover, the power of a judge to impose consecutive sentences ensures that a person who commits separate and distinct violations of the law receives separate and distinct punishments. Otherwise a person would escape the full impact of punishment for one offense. Johnson v. Warden, 196 Md. 672, 75 A.2d 843 (1950); Rigor v. State, supra ; See also Calp v. Warden, 216 Md. 629, 139 A.2d 506 (1958). Chief Judge McSherry, in delivering the opinion of the Court in Rigor, stated:

Jurisdiction to inflict cumulative punishment is dependent, not on the accident that the offender has been convicted twice or oftener, before the same tribunal, but upon the fact that distinct violations of the law have been committed by one individual whose malefactions merit separate, and therefore cumulative, penalties. Authority to sentence at all is incident to and a consequence of the power to try an accused, and the right to try is founded on the fact that the crime was committed within the jurisdiction of the Court, and upon the further fact that the prisoner, after being indicted, is present in person before the Court during the trial. It is not material how or by what means he was brought into Court, as will be shown later on in discussing another phase of the case. If the Court which imposed a sentence that is to begin upon the expiration of a prior punishment inflicted by some other tribunal of the same commonwealth has jurisdiction of the offense charged and over the culprit, it can unquestionably proceed to try him, and upon conviction can sentence him for that violation of the law by imposing a cumulative penalty. If this were not so, the subsequent offense might remain unpunished by reason of the death of material witnesses during the running of the prior sentence. (101 Md. at 470, 61 A. at 633 (emphasis supplied)).

We conclude, therefore, that a judge may, in the exercise of his discretion, impose consecutive sentences for distinct violations of the law, thus preventing duly convicted offenders from escaping punishment for the commission...

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  • State v. Parker
    • United States
    • Maryland Court of Appeals
    • September 1, 1992
    ...includes the determination of whether a sentence will be consecutive or concurrent, with the same limitations." Kaylor v. State, 285 Md. 66, 70, 400 A.2d 419, 422 (1979) (citations omitted). Designation of Parker's Maryland sentence as "concurrent" with his federal sentence was essentially ......
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