Smith v. State, 887

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Submitted to ORTH; ORTH
• Citation: 356 A.2d 320,31 Md.App. 310
• Parties: Frances Ester SMITH v. STATE of Maryland.
• Docket Number: No. 887,887
• Decision Date: 15 April 1976

Page 310

31 Md.App. 310

356 A.2d 320

Frances Ester SMITH v. STATE of Maryland.

No. 887.

Court of Special Appeals of Maryland.

April 15, 1976.

Certiorari Denied July 12, 1976.

Jack B. Rubin and Lee Gordon, Assigned Public Defenders, for appellant.

Francis B. Burch, Atty. Gen., John A. Austin, Asst. Atty. Gen., William A. Swisher, State's Atty., Baltimore City and Joseph Wase, Asst. State's Atty., Baltimore City, for appellee.

Submitted to ORTH, C. J., and MENCHINE and MASON, JJ.

ORTH, Chief Judge.

On this appeal Frances Ester Smith does not challenge her conviction of murder in the second degree, entered in the Criminal Court of Baltimore on 2 April 1975 upon her plea of guilty thereto. ¹ She is unhappy, however, with her punishment. We trace the long and tortuous journey leading to the ultimate sentence imposed.

On 1 February 1973 in the Criminal Court of Baltimore, Mrs. Smith, charged with the homicide of her husband, Johnny James Smith, was found guilty by a jury of murder in the second degree. On 8 May 1973, after a motion for a new trial was heard and denied and a medical report was obtained, she was committed to the care of the Commissioner of Correction for 30 years from 1 February 1973. She appealed on 18 May 1973. ² The Court of Special Appeals affirmed the judgment, Smith v. State, 20 Md.App. 254, 315 A.2d 76 (1974), and the mandate was issued on 21 March 1974. On 6 May 1974 Mrs. Smith moved the trial court for a reduction of sentence. Rule 764, § b 1. The motion was granted, and on 20 May the sentence was reduced to 24 years from 1 February 1973. In the meantime, on 17 May 1974, the Court of Appeals ordered that a writ of certiorari issue to the Court of Special Appeals. By a majority opinion filed 25 November 1974, Smith v. State, 273 Md. 152, 328 A.2d 274, the Court of Appeals reversed the judgment of the Court of Special

Appeals, which, then, as directed, vacated its mandate on 8 January 1975, reversed the judgment of the Criminal Court of Baltimore and remanded the case for a new trial. Thereupon, on 2 April 1975, Mrs. Smith pleaded guilty to murder in the second degree. The plea was accepted, and verdict rendered accordingly

At the penalty stage of the trial defense counsel informed the court that there had been plea negotiations. The prosecutor and defense counsel suggested that a presentence investigation be made. Regardless of what the investigation disclosed, the State indicated, it would recommend that the sentence not exceed 15 years. If the report of the investigation were 'favorable', that is, '(i)f the report spoke extremely well of Mrs. Smith and her prospects for the future, something along those lines,' the State would have no objection to Mrs. Smith striking her plea of guilty to murder in the second degree and entering a plea to manslaughter. The State would not oppose 'whatever the probation report comes up with, in the way of a recommendation.' The court held the sentencing sub curia. It referred Mrs. Smith 'to the Probation Department for complete evaluation' and set disposition for 23 April 1975.

On 23 April 1975 the matter of disposition came before the court. Counsel commented on the probation report which had been filed. 'In the light of the findings of the Probation Department in the probation report, in light of the findings of the Medical Division of the Supreme Bench in 1973, and in light of the mitigating circumstances which are present in this case,' the State adhered to the bargain that it would recommend a sentence not to exceed 15 years. The judge announced the sentence. Finding probation 'totally unrealistic', he said:

'I concluded that the appropriate sentence to be imposed would be imposed as starting as of now, without regard to her previous incarceration, which has been a period of nineteen months. And the sentence is to be twelve years in the custody of the Department of Corrections. That [356 A.2d 322] sentence is to start as of today. So that in effect, the nineteen

months that she has already served is eliminated. Half of her sentence from the twenty-four years, the first twelve years have already been taken care of by her nineteen months incarceration under this sentence, because this is a new sentence of twelve years starting today.'

Defense counsel entreated the court for a short delay in the execution of sentence: 'This young lady has two children at home. She does have an ailing mother, and we will present her to the authorities on Monday.' The court granted the request, postponed the execution of the sentence until Monday, 28 April, and continued bail, observing: 'She will be required to surrender herself to the Sheriff.'

On 28 April 1975, when Mrs. Smith appeared before the court, the judge changed the sentence. He explained:

'. . . I found that the sentence which I imposed was not in accord with a recent act of the Legislature.

Mrs. Smith originally, in 1973 had been sentenced to a term of thirty years incarceration as a result of a conviction of murder in the second degree. Later, the trial Judge in that case, Judge Harris, reduced that sentence to twenty-four years. Later, there was a reversal in the Court of Appeals. And the case was re-tried before me on April 22nd, when she submitted under a plea of guilty to murder in the second degree. So, that the previous sentence imposed on Mrs. Smith was a term of twenty-four years. She had been incarcerated for a period of approximately nineteen months. The dates I have are from May 8th of 1973, until December 23rd, 1974.

And in sentencing Mrs. Smith, I imposed a term of twelve years imprisonment which was one-half of the twenty-four year term. However, that was done on the basis of not allowing any credit for the nineteen months, because I thought it would be easier to keep the books straight if we just wiped

out the first twelve years with the nineteen months taking care of that, and giving her a new sentence of twelve years

It developed that it is mandatory that any time spent serving a sentence, or awaiting trial must be allowed for. Under those circumstances, the twelve year sentence is being stricken as an illegal sentence, and a different sentence is going to be imposed.'

He imposed the new sentence:

'The sentence is a term of fifteen years imprisonment with credit given for the nineteen months imprisonment previously served. So that the present term is a term of fifteen years with credit given for the period served from May 8th, 1973, through December 23rd, 1974.' ³

Defense counsel took exception, pointing out that there were no new circumstances to support the increased sentence. The judge commented: 'That has nothing to do with anything other than the legality of the sentence.' Defense counsel persisted: 'I understand, but the point being, she was exposed on Wednesday to a maximum of twelve years, not being exposed to a maximum of fifteen years, which is three years greater than the sentence she had Wednesday, regardless of when she may or may not be eligible for parole. On those grounds, if the Court pleases, we take exception to your Honor's sentence.' The court stated that 'the exception will be noted.' Mrs. Smith forthwith, on 28 April 1975, noted an appeal. ⁴ The curtain did [356 A.2d 323] not yet fall, however, in the lower court. We find in the record an order signed by the

trial judge under date of 22 May 1975 which is not mentioned in either the brief of Mrs. Smith or the brief of the State. It reads

'On April 28, 1975, the above named defendant was sentenced to a term of fifteen years under the jurisdiction of the Department of Correction, the sentence to date from September 8, 1973. It was intended that the defendant be given full credit for all time spent in incarceration. It has now been ascertained that the defendant's incarceration began on February 1, 1973.

IT IS, THEREFORE, ORDERED this 22d day of May, 1975, that the sentence under the above indictment be corrected to read fifteen years under the jurisdiction of the Department of Correction dating from February 1, 1973.'

The order of 22 May 1975 is reflected in the docket entries under that date. The entry concludes: 'Copy of corrected commitment filed.'

We list the various sentences from time to time imposed:

Original Conviction

Sentence of 8 May 1973: 30 years from 1 February 1973.

Sentence of 20 May 1974: 24 years from 1 February 1973.

Conviction on Remand

Sentence of 23 April 1975: 12 years from 28 April 1975.

Sentence of 28 April 1975: 15 years with credit given for time served for the period from 8 May 1973 through 23 December 1974.

Sentence of 22 May 1975: 15 years from 1 February 1973.

The statute which the trial judge referred to in striking as illegal the sentence he imposed on 23 April 1975 was Acts 1974, ch. 735, § 1, effective 1 July 1974, codified as Art. 27, § 638C. Credit is required to be given for time spent in custody, under subsection a before conviction, and under subsection b against a subsequent sentence when a sentence

is set aside. In relevant part the statute provides that any person who is convicted and sentenced shall receive credit for all time spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital or other agency as a result of the charge for which sentence is imposed or as a result of the conduct on which the charge is based. Subsection a. A person whose sentence is set aside as the result of direct or collateral attack and who is reprosecuted or resentenced for the same offense or for another offense based on the same transaction shall receive credit against the term of a definite sentence for all time spent in custody under the prior sentence. Subsection b. In each case the term of the sentence shall be diminished by the credit. By subsection (d) this required credit shall be awarded by the trial judge at the time of sentencing. 'After having communicated with the parties, the judge shall inform the defendant and...