Malvo v. State

• Docket Number: 29, Sept. Term, 2021
• Decision Date: 26 August 2022
• Parties: Lee Boyd MALVO v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

481 Md. 72

281 A.3d 758

Lee Boyd MALVO

v.STATE of Maryland

No. 29, Sept. Term, 2021

Court of Appeals of Maryland.

August 26, 2022

Argued by Kiran Iyer, Assigned Public Defender (Celia Davis, Asst. Public Defender, Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Appellant.

Argued by Carrie J. Williams, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Amicus Curiae Victim's Representative Nelson Rivera: Victor Stone, Esquire, Maryland Crime Victim's Resource Center, Inc., 1001 Prince George's Boulevard, Suite 750, Upper Marlboro, MD 20774.

Amici Curiae the Juvenile Law Center, the Charles Hamilton Houston Institute for Race and Justice, the Center on Race, Inequality, and the Law at the N.Y.U. School of Law, the Fred T. Korematsu Center for Law and Equality; and the Sentencing Project: Booth Marcus Ripke, Esquire, Nathans & Biddle, LLP, 120 East Baltimore Street, Suite 1800, Baltimore, MD 21202, Marsha L. Levick, Esquire, Juvenile Law Center, 1800 JFK Blvd, Suite 1900B, Philadelphia, PA 19103.

Amicus Curiae Roderick & Solange MacArthur Justice Center: Andrew D. Levy, Esquire, Anthony J. May, Esquire, Brown, Goldstein & Levy LLP, 120 East Baltimore Street, Suite 2500, Baltimore, MD 21202, David M. Shapiro, Esquire, Roderick & Solange MacArthur Justice Center, Northwestern Pritzker School of Law, 375 East Chicago Avenue, Chicago, IL 60611.

Counsel for Amicus Curiae the National Association of Criminal Defense Lawyers: William Friedman, Esquire, Samir Deger-Sen, Esquire, Tyce R. Walters, Esquire, James A. Tomberlin, Esquire, Jansen VanderMeulen, Esquire, Latham & Watkins LLP, 555 Eleventh Street N.W., Suite 1000, Washington, DC 20004, David B. Smith, Esquire, Vice-Chair, Committee National Association of Criminal Defense Lawyers, 1660 L Street, N.W., Washington, DC 20036.

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould, JJ.

McDonald, J.

To be legal, a sentence in a criminal case must be consistent both with the law governing the offense for which the defendant was convicted and with the Eighth Amendment's proscription against "cruel and unusual" punishments. During the past two decades, the United States Supreme Court has issued several decisions elaborating on the application of the Eighth Amendment to juvenile offenders sentenced as adults. This case concerns whether a juvenile offender who was sentenced prior to key decisions pertinent to his situation should be resentenced to ensure that his sentence complies with the Constitution and therefore is legal.

Over the course of three weeks in October 2002, Petitioner Lee Boyd Malvo, then age 17, and John Allen Muhammad, then age 41, committed a series of murders in the greater Washington, D.C. area, primarily by shooting a high-powered rifle while concealed in the trunk of a modified automobile so as to terrorize the area of the country in which Mr. Muhammad's ex-wife lived. These crimes received considerable national media attention and became known as the "DC sniper attacks."

Mr. Malvo and Mr. Muhammad were charged with multiple counts of murder and other crimes in Virginia and Maryland. In Virginia, Mr. Malvo was convicted on four counts of first-degree murder. In Maryland, Mr. Malvo voluntarily testified against Mr. Muhammad and, in 2006, pled guilty to six counts of first-degree murder in the Circuit Court for Montgomery County. At his sentencing that year, the prosecutor stated that Mr. Malvo, once under the sway of an "evil man," had changed and "grown tremendously" since his participation in the crimes. The sentencing court similarly acknowledged Mr. Malvo's cooperation with law enforcement, his remorse, and his transformation since he was arrested. The court sentenced Mr. Malvo to the maximum sentence of six terms of life in prison without the possibility of parole, to run consecutively to each other and to the four sentences of life without parole that he was serving in Virginia.

Mr. Malvo's sentence was consistent with the pertinent State statute and with the advisory State sentencing guidelines at that time. Since then, however, the Supreme Court has held that the Eighth Amendment does not permit a sentence of life without parole for a juvenile homicide offender if a sentencing court determines that the offender's crime was the result of transient immaturity, as opposed to permanent incorrigibility.¹ The Supreme Court has further held that this constraint applies retroactively and, thus, it applies to Mr. Malvo's case.

In 2017, Mr. Malvo filed a motion to correct an illegal sentence, based in part on the ground that the sentencing court did not have the benefit of the subsequent, but retroactive, Supreme Court decisions at the time he was sentenced. The Circuit Court for Montgomery County denied the motion.

This case presents the question whether ambiguity in a sentencing court's remarks about a juvenile offender's post-offense conduct and character, when made before the Supreme Court issued the decisions that govern the sentencing of a juvenile offender to life without the possibility of parole, rendered such a sentence illegal under the Eighth Amendment. Based on the record of this case, opposing inferences can be drawn as to whether the sentencing judge determined that Mr. Malvo was not "the rare juvenile offender whose crime reflects irreparable corruption" for whom the Eighth Amendment allows a sentence of life without parole. If the sentencing judge reached that conclusion, the sentence failed to comport with the Constitution. In light of this ambiguity, Mr. Malvo must be resentenced.

As a practical matter, this may be an academic question in Mr. Malvo's case, as he would first have to be granted parole in Virginia before his consecutive life sentences in Maryland even begin. Ultimately, it is not for this Court to decide the appropriate sentence for Mr. Malvo or whether he should ever be released from his Maryland sentences. We hold only that the Eighth Amendment requires that he receive a new sentencing hearing at which the sentencing court, now cognizant of the principles elucidated by the Supreme Court, is able to consider whether or not he is constitutionally eligible for life without parole under those decisions.

IBackground

A. Limits on the Punishment of Juvenile Offenders

1. Limits under the Eighth Amendment to the United States Constitution The Eighth Amendment to the United States Constitution forbids the imposition of "cruel and unusual" punishments. The Supreme Court has explained that giving effect to the provision's guarantee requires "referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual."

Roper v. Simmons , 543 U.S. 551, 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (citation and internal quotation marks omitted). "This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change." Graham v. Florida , 560 U.S. 48, 58, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (citation and internal quotation marks omitted).

In recent years, the Supreme Court has issued a series of decisions applying this Eighth Amendment standard in the context of juvenile offenders sentenced to severe punishments in the criminal justice system. As recounted in Part I.B.4 of this opinion, Mr. Malvo's sentencing occurred in late 2006 near the beginning of this series of decisions and preceded a number of decisions significant to the resolution of this case.

Supreme Court Precedent as of 2006

In 2005, Roper was the first in the Supreme Court's series of decisions concerning the application of the Eighth Amendment to the sentencing of juvenile offenders. There, the Court held that the Eighth Amendment forbids the execution of an offender who committed the crime when younger than 18 years old. 543 U.S. at 568, 125 S.Ct. 1183. The Court noted that a majority of states had already banned the punishment and emphasized that "three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders." Id. at 569, 125 S.Ct. 1183. Specifically, those differences are (1) juveniles’ lack of maturity and an underdeveloped sense of responsibility resulting in "impetuous and ill-considered actions and decisions"; (2) juveniles’ greater vulnerability or susceptibility to negative influences and outside pressures; and (3) the more mutable nature of juveniles’ character and personality traits. Id. at 569-70, 125 S.Ct. 1183. In light of these differences, the Court determined that the two distinct social purposes served by the death penalty - retribution and deterrence - apply to juveniles with lesser force than to adults. Id. at 570, 125 S.Ct. 1183. In rejecting the argument that juveniles’ reduced culpability can be adequately considered on a case-by-case basis, the Court identified an "unacceptable likelihood ... that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth ... even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death." Id. at 572-73, 125 S.Ct. 1183.

Supreme Court Precedent after 2006

Roper dealt exclusively with the death penalty. Five years later, in 2010 - four years after Mr. Malvo's sentencing - the Supreme Court first declared that the Eighth Amendment also imposes constraints on the imposition of a life without parole sentence on a juvenile offender. In Graham v. Florida , 560 U.S. 48, 59, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held that the Constitution forbids sentencing a juvenile non-homicide offender to life without parole, announcing for the first...