Reiger v. State

• Citation: 170 Md. App. 693,908 A.2d 124
• Decision Date: 22 September 2006
• Docket Number: No. 0766, September Term, 2005.,0766, September Term, 2005.
• Parties: Peter H. REIGER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

908 A.2d 124

170 Md. App. 693

Peter H. REIGER v. STATE of Maryland.

No. 0766, September Term, 2005.

Court of Special Appeals of Maryland.

September 22, 2006.

Stephen B. Mercer (Rene Sandler, on brief), Rockville, MD, for Appellant.

Steven L. Holcomb (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, ADKINS and SHARER, JJ.

ADKINS, Judge.

Appellant Peter H. Reiger challenges the legality of his 30 year sentence for second degree murder, raising a single issue on which this Court granted leave to appeal:

Whether the sentencing court, by considering the action the parole board might later take, relied on an impermissible criteria in setting the sentence?

We shall hold that Reiger waived his objection by failing to assert it at sentencing. In any event, we conclude there was no error, because a court may consider parole eligibility and good conduct credits in imposing sentence.

FACTS AND LEGAL PROCEEDINGS

Reiger was convicted of bludgeoning his mother to death. After neighbors noticed newspapers piling up outside the home where both Reigers lived, police discovered appellant inside, in an incoherent state of intoxication, while his mother lay dead in her bedroom. Although Reiger could not recall all of the events leading up to his assault, he recalled that he became mad at her and struck her 20 or 30 times. Reiger has a black belt in one of the martial arts.

Reiger pleaded nolo contendere to second degree murder, which carries a maximum penalty of 30 years imprisonment. Reiger's lack of any prior record, advanced alcoholism, education and employment as a certified architect, lack of danger to others, and the vulnerability of the victim were factored into the pre-sentence report. The State argued that, although the sentencing guidelines were 12 to 20 years, the maximum 30 year sentence should be imposed.

Before accepting Reiger's plea, the Circuit Court for Montgomery County determined that Reiger understood the maximum sentence and that there could be no agreement binding the court with respect to sentencing. The court imposed the maximum sentence of 30 years. The following remarks by the sentencing court give rise to this appeal:

Now I will tell you that the Court's sentence is going to include a recommendation to the Patuxent Institute.... I will tell you that the sentence the Court is going to impose is above the sentencing guidelines, and I will tell you why. Your lawyer will tell you this. The State certainly knows. The number imposed does not mean the number imposed. We know that. If you give a person X number of years, they're not going to do X number of years, and that's not a criticism of the system. That is an explanation of the components of our correctional system. For example, a five-year sentence, for example, doesn't mean five years. The person's going to do about two and a half years. And so in considering what an appropriate punishment is, whether the Court should do it or shouldn't, the Court considers the amount of time that the Court finds the person actually would serve, and adjusts the sentence accordingly. Because I know that a defendant who goes out of this courtroom and into the Department of Corrections, except in those cases where a sentence is mandatory, and this is not that case, ... the person doesn't serve the number of years that the Court imposes, and that's because of good time. (Emphasis added.)

Reiger will become eligible for parole at some point after he serves the portion of his sentence required by Md.Code (1999, 2005 Cum.Supp.), section 7-301(c) of the Correctional Services Article (CS), which provides that an inmate convicted of a violent crime is not eligible for parole until he or she serves at least half of the aggregate sentence for the violent crime.

DISCUSSION

The sentencing court has "virtually boundless discretion" in imposing a sentence. See State v. Dopkowski, 325 Md. 671, 679, 602 A.2d 1185 (1992). Consequently, "[a] trial judge may impose any sentence not in violation of constitutional requirements or statutory limits, so long as it is not motivated by ill-will, prejudice or other impermissible considerations." Douglas v. State, 130 Md.App. 666, 677-78, 747 A.2d 752 (2000). The "extremely limited" grounds upon which criminal sentences may be appealed include "whether the sentencing judge was motivated by ... impermissible considerations." See Jackson v. State, 364 Md. 192, 200, 772 A.2d 273 (2001); Teasley v. State, 298 Md. 364, 370, 470 A.2d 337 (1984).

Reiger argues that the court impermissibly considered his parole eligibility when it imposed the maximum sentence of 30 years in lieu of a shorter term within the range calculated under the sentencing guidelines. According to Reiger, the sentencing court interfered with the Parole Commission in the exercise of its executive clemency function, by selecting a sentence that is calculated to limit and defeat anticipated actions of the Parole Commission.

I. Waiver Of Impermissible Sentencing Consideration Claim

The State contends that Reiger's failure to object at sentencing, and the facial legality of the sentence, mean that his impermissible sentencing consideration claim is not preserved for appellate review. Md. Rule 4-323(c) governs objections to non-evidentiary rulings:

For purposes of review ... on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.

"If there is an opportunity to object to a ruling or order when it is made, the failure to do so (and to inform the court of the relief requested) may constitute waiver." Hill v. State, 355 Md. 206, 219, 734 A.2d 199 (1999)(emphasis omitted).

In Brecker v. State, 304 Md. 36, 39-41, 497 A.2d 479 (1985), the defendant's failure to object at sentencing on the ground he later raised on appeal prevented appellate review. Although the defendant contested the amount of restitution ordered by the court, he did not object that the court failed to inquire about his ability to pay. The Court of Appeals held that, "in accordance with `well settled' Maryland law, appellant is considered to have waived the point he now argues." Id. at 40, 497 A.2d 479 (citation omitted). See also Simms v. State, 65 Md.App. 685, 692, 501 A.2d 1338 (1986)(noting that challenge based on sentencing court's failure to consider ability to pay restitution "may have been waived" by failure to object).

In Towers v. Director, Patuxent Institute, 16 Md.App. 678, 682-83, 299 A.2d 461 (1973), this Court considered whether an objection was necessary to preserve the defendant's right to appeal on the ground that the sentencing judge improperly considered a prior conviction that was unconstitutional. We held that the rule requiring contemporaneous objection to the admission of evidence at trial applied equally in the penalty phase. See id. "If timely objection is not made below to the consideration by the sentencing judge of a prior conviction, the question of its propriety is not preserved for appeal." Id. at 683, 299 A.2d 461.

In Saenz v. State, 95 Md.App. 238, 241 n. 1, 620 A.2d 401 (1993), we recognized that it was "doubtful" that the defendant's improper sentencing consideration challenge was preserved for appellate review. Nevertheless, as the State acknowledges, this Court in Douglas, observed in dictum that it is "unclear whether an objection to the trial judge's consideration of an impermissible factor is waived if the objection is not made at the time of sentencing." Douglas, 130 Md.App. at 677, 747 A.2d 752.

Reiger argues that no objection was necessary in these circumstances. In his view, this waiver issue was resolved by Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985), in which the Court of Appeals held "that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court." Reiger also relies on Passamichali v. State, 81 Md.App. 731, 745 n. 4, 569 A.2d 733, cert. denied, 319 Md. 484, 573 A.2d 808 (1990), in which we questioned whether an appellant's improper sentencing consideration challenge could be distinguished from challenges to illegal sentences and whether an objection should be necessary. As Reiger reads them, Walczak and Passamichali collectively mean that a defendant need not lodge a contemporaneous objection to the sentencing court's consideration of improper evidence or impermissible factors in order to preserve his right to appellate review of that sentence.

We hold that an objection is required to prevent waiver in these circumstances. Reiger's reliance on Walczak is misplaced. The Court of Appeals has distinguished between errors by a sentencing court that result in an otherwise lawful sentence, and errors that inhere in the sentence itself. See State v. Wilkins, 393 Md. 269, 274, 900 A.2d 765 (2006); Baker v. State, 389 Md. 127, 133, 883 A.2d 916 (2005). Only the latter type of error renders the sentence illegal. See Baker, 389 Md. at 133, 883 A.2d 916. Thus, a claim that "a sentencing judge was motivated by impermissible considerations .... does not render the sentence illegal within the meaning of Rule 4-345." Randall Book Corp. v. State, 316 Md. 315, 322-23, 558 A.2d 715 (1989). For this reason, the Walczak holding that an objection is not necessary to preserve the right to appeal an illegal sentence does not apply to impermissible sentencing consideration claims like Reiger's.

We recognize that this case...