Palmer v. State Of Md.

• Citation: 998 A.2d 361,193 Md.App. 522
• Decision Date: 05 July 2010
• Docket Number: 2008,No. 1408,2427,2009.,1408
• Parties: Harry Boston PALMERv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

193 Md.App. 522

998 A.2d 361

Harry Boston PALMERv.STATE of Maryland.

Nos. 1408, Sept. Term, 2008, 2427, Sept. Term, 2009.

Court of Special Appeals of Maryland.

July 5, 2010.

Matthew H. Fogelson (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Sarah P. Pritzlaff (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., MEREDITH and MATRICCIANI, JJ.

MATRICCIANI, J.

On December 19, 1980, appellant, Harry Boston Palmer, was sentenced to incarceration for multiple crimes of violence. In 2008, appellant moved to recalculate his sentences, and the Circuit Court for Howard County called for a status conference on July 24, 2008. The court denied appellant's motion and subsequently issued an amended order of commitment. Appellant moved to correct the amended order as an illegal sentence, which motion was heard and denied on August 13, 2008. Appellant appealed that ruling on August 13, 2008, as Number 1408 of September Term, 2008. Appellant filed a second motion to correct the amended order as an illegal sentence on December 14, 2009. This motion was denied without a hearing on December 28, 2009, and appellant appealed that ruling on December 30, 2009, as Number 2427 of September Term, 2009.

QUESTION PRESENTED

Appellant presents one question for our review, which we have edited, for clarity:

I. Did the trial court err when it denied appellant's motions to correct an illegal sentence?

For the reasons set forth below, we answer no and affirm the ruling of the Circuit Court for Howard County.

FACTS AND PROCEEDINGS

On April 8, 1980, appellant was riding in a stolen vehicle when it attempted to pass an unmarked Maryland State Police vehicle illegally. The trooper gave chase and appellant fired at him with a shotgun stolen from the “Gun Smith on Wheels” of Laurel, Maryland. At the time of his arrest, appellant had charges pending against him in several jurisdictions for various crimes, including armed robbery and burglary.

Appellant was charged with ten criminal counts, all listed in the “CHARGES” section of the trial court's docket sheet, as follows:

(1) Assault W/i Murder (2) Attempt Murder (3) Assault by Shooting (4) Assault (5) Battery (6) Mal. Destr. (7) Assault W/i Murd. (8) Assault by Shooting (9) Assault (10) Mal. Destr.

The “TRIAL” section of the docket sheet indicates that a jury found appellant guilty of all counts on September 11, 1980. In that same section, a paragraph entitled “JUDGMENT AND SENTENCE” summarizes appellant's sentences:

(C) Cts. 1 30 yrs. 2 Merge 3 10 yrs. 4 Merge 5 Merge 6 3 yrs. 7 30 yrs. 8 10 yrs. 9 Merge 10 3 yrs.

The sentences were imposed with the following “Special Conditions:”

Count 3 is consecutive to count 1, Count 6 is concurrent to count 3, Count 7 is concurrent to count 6, Count 8 is consecutive to count 7, count 10 is concurrent to count 8. Credit from time served.

Appellant's commitment record, dated December 19th, 1980, reflects the same sentences and conditions:

Commencing on December 19, 1980 for a period of 30 years as to count 1; count 2 merges; 10 years to count 3, consecutive [sic] to count 1; counts 4 & 5 merge; 3 years to count 6, concurrent to count 3; count 7-30 years, concurrent to count 6, 10 years to count 8, consecutive to count 7; count 9 merges; 3 years to count 10 concurrent to count 8; with credit for time served.

Taking these terms at face value and assuming that all the sentences would be carried out, appellant faced as many as seventy years in confinement for the crimes in this case.¹

As a routine part of the incarceration process, the Maryland Department of Public Safety and Correctional Services, Division of Parole and Probation (“DPP”), prepared a “Pre-Sentence Investigation” report (“PSI”). The report, dated November 12, 1980, recited appellant's convicted counts and sentences almost exactly as they appear on the docket sheet.² Nevertheless, the PSI sewed the seeds of this case when its author concluded that appellant “received a total of 40 years with credit for 225 days served.”

Employees and agents of DPP, the Division of Correction (“DOC”), and the Maryland Parole Commission (“MPC”) repeated the PSI's error, describing appellant's maximum incarceration as forty years rather than seventy.³ Appellant's “Inmate Institutional Progress Sheet” from the DOC contains an entry, dated “12/24/1980,” the context of which is not altogether clear but indicates that appellant was sentenced to “40 years from 4/8/80.” There are also at least six “Parole Recommendation/Decison” reports from the MPC, dating from 1991 to 2008, as well as an “Order for Release on Parole” from 1998, all of which indicate that appellant was sentenced to forty years, beginning in 1980 and ending in 2020.⁴

In the meantime, appellant pursued the usual array of post-conviction judiciary processes. The circuit court heard appellant's application for review of sentence on January 16, 1981, and denied it on March 16, 1981. The court heard and denied appellant's motion for reconsideration on April 21, 1981. The court twice denied post-conviction relief, first on March 9, 1981, and again in 1987.

In 1995, most of the judicial record from this case was destroyed pursuant to the Fifth Judicial Circuit's records retention and disposal schedule in effect at that time.⁵ No transcript or notes from the sentencing hearing remain.

On August 27, 2004, the court heard and denied appellant's second motion for reconsideration. At that proceeding, appellant stated that his original sentence had been “40 years back in April of 1980.” The court noted that although most of the record had been destroyed, what was left of it revealed that the court had previously denied a motion for reconsideration, depriving the court of jurisdiction over the motion before it.

During a routine audit in 2008, the DOC discovered the aforementioned discrepancy and wrote to the circuit court, asking it to clarify the matter and issue an amended order of commitment. On July 24, 2008, appellant appeared before the court for a “status conference,” where he moved to recalculate his sentences. The court determined that appellant's total confinement stood at seventy years, denied appellant's motion, and issued an amended order of commitment to clarify the record.

Appellant filed a motion to correct an illegal sentence, arguing that the court's amended order of commitment from July 24, 2008, constituted an illegal increase in one or more of his sentences.⁶ The court heard and denied this motion on August 13, 2008. Appellant filed a second, similar motion on December 14, 2009, which the court denied without a hearing on December 28, 2009. Appellant now seeks our review of these rulings in this consolidated appeal.

DISCUSSION

Appellant argues that the sentences handed down on December 19, 1980 imposed a maximum incarceration of forty years and that the amended order of commitment that issued after the July 24, 2008 status conference illegally increased his sentences to seventy years, violating Maryland Rule 4-345(e)(1). See State v. Sayre, 314 Md. 559, 562, 552 A.2d 553 (1989). First, appellant contends that the sentences are inherently ambiguous as pronounced by the trial court. Second, appellant contends that the various records from the Maryland Department of Public Safety and Correctional Services make his sentence ambiguous. In either case, appellant argues the rule of lenity requires that we resolve the ambiguity in his favor, so that his sentences imposed at most forty years of incarceration. See Scott v. State, 379 Md. 170, 187, 840 A.2d 715 (2004) (holding that the rule of lenity applies to ambiguous pronouncements). We review the trial court's ruling and amended order of commitment de novo. See Cox v. State, 397 Md. 200, 211, 916 A.2d 311 (2007).

Appellant first argues that the pronounced sentences are ambiguous because of the way they are worded. The trial court found that, according to the plain language of the sentencing as evidenced by the docket sheet, count seven was concurrent with count six, which was concurrent with count three, which was consecutive to count one. Therefore, the court reasoned that count seven was “consecutive” to count one.

Citing our decisions in Gatewood v. State, 158 Md.App. 458, 857 A.2d 590 (2004) and Nelson v. State, 66 Md.App. 304, 503 A.2d 1357 (1986), appellant argues that “because Count 7 was not explicitly made consecutive to Count 1 it ran concurrently with that count.” Specifically, appellant argues: “The word ‘consecutive’ is not used with regard to Count 7. Thus under Gatewood and Nelson Count 7 cannot [sic] deemed to be consecutive to Count 1.” Essentially, appellant argues that there is no “ transitive property” of consecutive sentences,⁷ so that although count seven appears to be consecutive to count one by way of its relations to “ intermediate” sentences, those relations are ambiguous. Therefore, appellant concludes that the rule of lenity demands that we ignore the intermediate sentences and consider count seven as concurrent with count one. For the reasons that follow, we disagree with this proposition.

Appellant misconstrues the holdings in two of our decisions when he argues that, as a general matter: “If during a criminal sentencing, a judge does not explicitly make one sentence consecutive to another, the sentences are deemed to be running concurrently.” There are several cases in which the court pronounced a sentence without explicitly making it consecutive to another one of the sentences and the sentences were deemed concurrent with one another. See Gatewood, 158 Md.App. at 480, 482, 857 A.2d 590; Nash v. State, 69 Md.App. 681, 519 A.2d 769 (1987); Nelson v. State, 66 Md.App. 304, 310, 503 A.2d 1357 (1986). That, however, does not form the rule, because those cases turned on the fact that their pronouncements failed to specify how the sentence in question related to any other sentence, at all.

In Gatew...