Wilkins v. State

• Decision Date: 03 June 2005
• Docket Number: No. 938 Sept. Term, 2004.,938 Sept. Term, 2004.
• Parties: Ralph Edward WILKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

875 A.2d 231

162 Md. App. 512

Ralph Edward WILKINS v. STATE of Maryland.

No. .

Court of Special Appeals of Maryland.

June 3, 2005.

Renee M. Hutchins, Sajeed Popat (Michael Millemann on the brief), Baltimore, for appellant.

Mary Ann Ince (J. Jodeph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before EYLER, JAMES R., ADKINS, BARBERA, JJ.

JAMES R. EYLER, Judge.

In 1971, Ralph Edward Wilkins, appellant, was tried by a jury in the Circuit Court for Prince George's County and convicted of first-degree murder. Subsequently, appellant was sentenced to life imprisonment. Appellant has since raised numerous challenges to his conviction and sentence.

On this appeal, appellant challenges the 2004 denial of a motion to correct an illegal sentence. In support of this contention, appellant argues that the trial court erroneously believed that it could not suspend all or any part of his life sentence; thus, the sentence is illegal and should be corrected under Maryland Rule 4-345. We agree with appellant; thus, we must vacate appellant's sentence and remand for a new sentencing hearing.

Procedural History

On December 8, 1971, appellant was convicted by a jury of first-degree murder without capital punishment. On January 24, 1972, appellant was sentenced to life imprisonment. He appealed to this Court, Wilkins v. State, 16 Md.App. 587, 300 A.2d 411 (1973), aff'd, Wilkins v. State, 270 Md. 62, 310 A.2d 39 (1973), cert. denied, Wilkins v. Maryland, 415 U.S. 992, 94 S.Ct. 1592, 39 L.Ed.2d 889 (1974), and his judgment was affirmed.

On June 16, 2003, appellant filed a petition for post-conviction relief in the Circuit Court for Prince George's County, arguing that the trial court abused its discretion by failing to acknowledge its authority to suspend all or part of the life sentence it had imposed. On January 6, 2004, after hearing arguments on appellant's petition, the court ruled that there was no merit to appellant's claim that the trial court abused its discretion at sentencing. The court did, however, grant in part appellant's petition, allowing appellant to file a belated motion for modification of sentence within 90 days.

On February 9, 2004, appellant filed a notice of appeal to this Court, based on the court's January 6, 2004 ruling. This Court dismissed appellant's appeal as untimely, the mandate issuing on June 8, 2004.

On March 15, 2004, pursuant to the court's partial grant of post-conviction relief, appellant, acting pro se, filed a motion for modification of sentence.¹ On April 28, 2004, appellant moved that the motion for modification be held in abeyance, and on May 6, 2004, appellant filed a motion to correct an illegal sentence, which was denied on May 19, 2004.

On June 9, 2004, appellant filed a notice of appeal to this Court, based on the denial of his motion to correct an illegal sentence. On September 13, 2004, this Court dismissed appellant's appeal as untimely, pursuant to Maryland Rule 8-502.² Subsequently, appellant filed a motion for reconsideration,³ and on December 29, 2004, this Court reinstated the instant appeal.

Factual Background

The sentencing statute applicable to first-degree murder at the time of appellant's sentencing in 1972, Md.Code (1957, 1971 Repl.Vol.), Art. 27 § 413,⁴ provided:

Penalty for first degree murder; verdict adding "without capital punishment."

Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the court before whom such person may be tried; provided, however, that the jury in a murder case who render a verdict of murder in the first degree, may add thereto the words `without capital punishment,' in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, `without capital punishment,' shall the court in imposing the sentence, sentence the convicted party to pay the death penalty.

During the sentencing hearing, appellant's counsel⁵ argued that, "under the provisions of Article 27 Section 641(a) [sic]⁶ and 643⁷ this court has the discretion, if it sees fit to exercise that discretion, to give a sentence less than that called for of life imprisonment with a conviction of first degree murder." In support of this premise, appellant's counsel argued that there were several mitigating factors that would warrant a sentence of less than life imprisonment. Appellant's counsel noted that, according to the "Parole and Probation Report,⁸" which the court indicated that it had reviewed, appellant (1) had turned himself in to the authorities when he became aware that the police were looking for him; (2) served as a "tier representative at the County Jail"; (3) had on occasion been "a calming influence at the jail as a tier counsellor"; (4) was "not likely to be assaultive under strong pressure or stress"; (5) had just turned twenty years old at the time of the offense and had endured an abusive childhood and troubled upbringing.⁹

Following appellant's proffer of mitigating factors, the following colloquy, pertinent to this appeal, ensued.

THE COURT: Let's stop right and go back to one reference that you made, [appellant's counsel].

APPELLANT'S COUNSEL: Yes, sir.

THE COURT: You said that the Court could do anything it wanted to under Article 27, Section 643, where I could give him a penalty less than the statutory amount. Section 643 happens to read this way:

"In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the judge of the Criminal Court of Baltimore and the several judges of the circuit courts of the counties may, in lieu of the minimum penalty so prescribed, impose a less penalty of the same character; provided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime where the law provides one and only one penalty."

APPELLANT'S COUNSEL: Yes, sir.

THE COURT: Now, I would think that where you have got a conviction of first degree murder, the mere fact that it has life or death there does not take it away from the fact that it only has that penalty. And I wouldn't think that we would have a right under a penalty that says you either give them death or life. If the jury says without capital punishment, then the only penalty that can be imposed is life. But it has always been my impression — and I will touch on that point later, but I just want to say that this is my impression — that the sentence in this case being first degree murder, and being found guilty of first degree murder without capital punishment, that there is only one penalty provided under the statute as a result of the verdict of the jury, and that is that it be life.

APPELLANT'S COUNSEL: Your Honor, we have read that section several times, as the Court has. However, we literally view a penal statute as strictly construed, we literally view the language where it says, "the punishment for any crime where the law provides one and only one penalty."

The law for the crime of first degree murder provides two penalties, life or death. It is for that reason that we feel that the statute would be applicable.

* * *

THE COURT: Can you cite me any case in Maryland where a man has been either convicted of or pleaded guilty to first degree murder where he ever got anything less than life?

APPELLANT'S COUNSEL: No, I cannot.

* * *

THE COURT: I think I am right on it but I will also protect myself on it later.

* * *

THE COURT: Except that if I disagree with your argument technically, I like to put that in the record because I do still do disagree with that. And I think that the proper interpretation of that is once the jury has come up with first degree murder without capital punishment that there is only one penalty the Court can give.

* * *

THE COURT: Now, [appellant's counsel] —

APPELLANT'S COUNSEL: Yes, sir.

THE COURT: — assuming you are right and assuming the Court is wrong in your contention that the Court can give a lesser sentence than life, do you have any further remarks in behalf of the defendant that you wish to make before we hear from the defendant himself?

APPELLANT'S COUNSEL: No, sir.

(Emphasis added.)

Although not referred to by the court, as noted above, appellant's counsel also cited Md.Code (1957, 1971 Repl.Vol.), Art. 27 § 641 A to support his argument that the court had discretion to suspend any or all of appellant's sentence. Section 641 A provided in pertinent part:

Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.

(Emphasis added.)

Ultimately, the court concluded:

I would agree that this may well have been a proper case for the death penalty. On the other hand, this was a question of fact for the jury to decide. They decided that you were guilty of murder in the first degree but they recommended — and it is mandatory on the court — that it be without capital punishment, and thus it will be.

Now, even though your counsel has argued that the court could give something else than life imprisonment, we don't agree with this. On the other hand, let the record clearly show we will assume that we do have a right to give something less than the death penalty, but in this case we see no reason in the world why there should be anything other than the life imprisonment in this case because it is just not warranted under the facts of

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