OPINION
Berger, J.
In
2012, a jury sitting in the Circuit Court for Baltimore City
found appellant, Davon Wilkins, guilty of involuntary
manslaughter, use of a handgun in the commission of a crime
of violence, and wearing, carrying, and transporting a
handgun. The court sentenced Wilkins to 10 years'
imprisonment for involuntary manslaughter, a consecutive term
of 20 years, the first five without the possibility of
parole, for unlawful use of a handgun, and a concurrent term
of three years for wearing, carrying, and transporting a
handgun. Those judgments were affirmed on direct appeal.
Wilkins v. State, No. 608, Sept. Term, 2012 (filed
Oct. 25, 2013).
Wilkins
thereafter sought postconviction relief, and, in 2019, he was
awarded a new sentencing hearing. That hearing was held in
2021 and resulted in the re-imposition of his original
sentence (with the exception that the conviction for wearing
carrying, and transporting a handgun was merged into that for
unlawful use of a handgun). Wilkins now appeals from that
ruling, raising two claims: (1) that the sentencing court
violated his right of allocution and/or Maryland Rule 4-342;
and (2) that the sentencing court abused its discretion in
imposing sentence. We shall affirm.
We
quote our unreported opinion in Wilkins's direct appeal
for context:
On or about 1:00 a.m. on July 1, 2010, the victim, Renato
Broom (hereinafter "Broom"), age 16, was
transported by paramedics from the 700 block of West North
Avenue in Baltimore City to the University of Maryland Shock
Trauma Center. Broom was pronounced dead at 1:28 a.m. The
autopsy revealed that Broom had died from a single gunshot
wound. The cause of death was homicide. More than five months
later, the State charged Wilkins with the murder of Broom and
other related charges.
There was little forensic evidence recovered at the scene of
the shooting, i.e., a single shell casing, two swabs of
suspected blood, several photos taken by the police, and
three one-dollar bills.
The State's case was based upon the testimony and
identification of Wilkins by two witnesses: A. Simpson and W
Goode. Neither of the witnesses claimed to be in the
courtyard during the shooting although they were present in
the area that night. Simpson identified Wilkins in a photo
array as the shooter and gave a recorded statement about the
events leading to the incident. Simpson told the police he
saw Wilkins and Broom "fussing about" some money
related to a dice game, and Wilkins "was trying to
scare" Broom with a gun and he shot him. Simpson stated
"it was a[n] accident."
Goode identified Wilkins in a photo array as the person he
overheard saying "it was a[n] accident." Goode also
gave a recorded statement to this same effect. The photo
arrays and recorded statements were admitted by the trial
court over objection. The statements came in as prior
inconsistent statements to contradict the witnesses'
testimony at trial.
In Simpson's recorded statement, he claimed to see
everything happen. He saw Broom and his best friend (Wilkins)
playing dice. They started fussing about money, Wilkins left
and came back with a gun; he was waving it around, trying to
scare him (Broom) saying "Yo, give me my mother fucking
money back" and "your life is in my hands."
Then he (Wilkins) shot his friend - he was trying to scare
him. According to Simpson "it was a[n] accident."
At the time of the photo array displayed to Simpson, Simpson
identified Wilkins and signed his name next to the photo.
Additionally, Simpson wrote a comment on the back of the
photo array "one summer day on Lennox and Park Ave,
Pocket (Broom) and others were shooting dice when things got
out of hand and Pocket's best friend (Wilkins) went to
get a gun to get his money back and try to scare him.
That's when he got shot."
Goode never claimed to have witnessed the shooting but
testified that on July 1, 2010, he was at his sister's
apartment, located on the first floor of a building on North
Avenue. He was in the living room listening to music or
watching television
when heard loud noises outside and got up to look through the
window. Goode saw a lot of people "walking away"
and heard somebody screaming "it was an accident"
but he didn't "see nobody carrying no gun or
running" away.
Although Goode admitted that he heard somebody utter the
phrase "it was an accident," he waffled about
whether and who he saw uttering those words. At first, Goode
maintained that he didn't "see the person's face
that said it." Later, he claimed, "it was a couple
of guys I seen saying it." When the State asked whether
one of those people was the person who Goode had picked out
in the photo array, he contended "no, he didn't
actually say that, no." After the State prompted Goode
about his prior statement when identifying Wilkins's
photo, Goode conceded "that's one of the persons who
was saying it."
In testimony that referred to both Wilkins and Broom as
"the victim," Goode recounted that Wilkins looked
emotional and concerned, "like he was trying to get help
for somebody." Goode described Wilkins and Broom, both
of whom he had known most of his life, as "the best of
friends."
At trial, Goode stated that he did not hear a gunshot
although he had told the police on July 15, 2010, that he
heard a shot before he got up to look out the window. To
counteract this conflict in his testimony, the State played
Goode's entire taped statement from July 15, 2010, in
which he told the police that he identified Wilkins
"because that's the one I seen standing, made the
statement saying it was an accident." Defense counsel
thereafter impeached Goode, with his testimony from the
pre-trial suppression hearing, during which he stated that he
did not see the person who said it was an accident. Goode
admitted that he had "bad memories," and
"I'm under, you know, I don't want to tell my
personal problems, but I'm going through . . . a little
something."
The Defense elected not to present any evidence and Wilkins
did not testify on his own behalf. . . . [T]he jury acquitted
Wilkins of Murder in the First and Second Degree but found
him guilty of Involuntary Manslaughter, Use of a Handgun in a
Crime of Violence, and Wearing, Carrying and Transporting a
Handgun.
Wilkins, slip op. at 2-5.
At
sentencing, the trial court expressed its belief that the
jury had given Wilkins a "break" in acquitting him
of first- and second-degree murder and convicting him instead
of the lesser included offense of involuntary manslaughter.
Finding that Wilkins had exhibited "no remorse" for
the killing, the court imposed the statutory maximum
penalties for each offense and ran two of those sentences
(for manslaughter and use of a handgun in the commission of a
crime of violence) consecutively.
On
direct appeal, Wilkins claimed that the trial court, in
imposing sentence, improperly had considered conduct for
which he had been acquitted. We held that this claim was
unpreserved but that, in any event, under Henry v.
State, 273 Md. 131, 147-48 (1974), the trial court
properly could consider such conduct. Wilkins, slip
op. at 7-14.
In
2016, Wilkins filed a postconviction petition, alleging,
among other things, that he had been denied his right of
allocution at his sentencing hearing. Ultimately, in 2019, he
and the State agreed that he would receive a new sentencing
hearing, and, in exchange, he would withdraw his remaining
postconviction claims with prejudice. The postconviction
court thereafter entered a consent order, memorializing those
terms, and, as relevant here, it vacated Wilkins's
sentences and remanded the matter for a new sentencing
hearing.
On
remand, the case was assigned to a different judge because
the original judge had retired in the meantime. At
Wilkins's resentencing hearing, the court initially
expressed uncertainty as to the proper procedure it should
follow:
THE COURT: . . . I don't have a problem starting from the
beginning. I don't have a problem hearing from all of the
witnesses, but you understand that the position that I am in,
is that I did not -- I was not the judge for the hearing and
I was not Judge Young. I'm Judge Young's replacement.
And so I did not hear the facts of this case. They did not
play out in front of me. If I -- even as I look through the
transcript, which I did not do, because it did not come to me
in a post-conviction. So I -- so my question is, if it's
for a right of allocution, is it necessary -- and I tell you,
I don't have a problem doing it, -- but is it necessary
to have a full sentencing hearing or is the right for him to
just allocute?
I can hear from everyone, but please be assured that I am not
aware of how this trial took place. I was not present and
I'm certain that both of you are going to fill me in as
much as you can, but you, as I know, living through a trial
and hearing the witnesses and hearing the evidence is
different.
So, I just want to be specific, if the issue was that he did
not have a right of allocution, should we not give him that
right to allocution and then make a determination and
argument as it pertains to what the sentence should be from
the State and Defense, or should we be starting from the
beginning of sentencing, which, I'm not certain puts this
Court in any different position. But if you feel as though it
does, that's fine, then giving Mr. Wilkins his right of
allocution after I hear from both of you and your witnesses.
That's where I'm, I'm not really sure where we
are.
The
circuit court ultimately decided that the proper procedure
was to...
