             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

               No. 1772

        September Term, 2013




   CHARLES ROBERT PHILLIPS

                   v.

       STATE OF MARYLAND



   Wright,
   Hotten,
   Alpert, Paul E.
          (Retired, Specially Assigned),

                   JJ.




         Opinion by Hotten, J.



       Filed: October 7, 2014
       Appellant was convicted of first degree murder and armed robbery by a jury in the

Circuit Court for Worcester County. Following a successful appeal and remand by the

Court of Appeals, he was re-tried and convicted of first degree murder, armed robbery,

and misdemeanor theft. The court sentenced him to life without the possibility of parole

and a consecutive twenty year sentence. Appellant appeals and presents the following

questions for our review:

   1. Where appellant successfully overturned his conviction on appeal and was
      retried, did the sentencing court err in increasing appellant’s sentence on the
      first degree murder count from life with the possibility of parole after his
      first trial to life without the possibility of parole after the retrial?

   2. Is appellant entitled to a new sentencing where one of the reasons relied
      upon by the State in seeking an increased sentence was incorrect?

For the reasons that follow, we shall affirm the judgments of the circuit court.

                      FACTUAL AND PROCEDURAL HISTORY

       On April 8, 2009, appellant, Charles Robert Phillips, was convicted in the Circuit

Court for Worcester County of first degree murder, and robbery with a deadly weapon of

William Nibblett. The court sentenced him to life imprisonment with the possibility of

parole for the murder and to a consecutive twenty year sentence for the armed robbery.

Appellant appealed.

       During the pendency of his appeal, appellant was incarcerated for several years in

the North Branch Correctional Institute (“North Branch”) where he received two

disciplinary infractions for possessing weapons.      On December 2, 2009, correctional

officers searched appellant’s cell and located a weapon made from a piece of a cup inside

of appellant’s trash can. On December 4, 2009, correctional officers discovered a second
knife-like weapon hidden within appellant’s mattress. Appellant received an internal

administrative hearing where both hearing officers found appellant guilty and imposed

sanctions.1 This Court affirmed his convictions in an unreported opinion and the Court of

Appeals granted certiorari. In Phillips v. State, 425 Md. 210 (2012), the Court reversed

appellant’s convictions and remanded for a new trial.

       In June of 2012, after appellant’s case was remanded for a new trial, he was

transferred to Worcester County Jail (“Worcester Jail”). While there, following a verbal

confrontation between several inmates, appellant was strip searched and correctional

officers discovered a concealed weapon. In June of 2013, appellant was re-tried for first

degree murder and the related robbery offenses. A jury found him guilty of murder,

armed robbery and misdemeanor theft.         Prior to sentencing, the State filed a motion

seeking an enhanced sentence pursuant to Maryland Code, (1974, Repl. Vol. 2013) §12-

702(b) of the Courts and Judicial Proceedings Article [hereinafter Cts. & Jud. Proc.],

which states:

       (b) Remand for sentence or new trial; limitations on increases in sentences.
       – If an appellate court remands a criminal case to a lower court in order that
       the lower court may pronounce the proper judgment or sentence, or conduct
       a new trial, and if there is a conviction following this new trial, the lower
       court may impose any sentence authorized by law to be imposed as
       punishment for the offense. However, it may not impose a sentence more
       severe than the sentence previously imposed for the offense unless:

                (1) The reasons for the increased sentence affirmatively appear;




       1
        For the first offense, appellant received forty five days in segregation and one
hundred and eighty days without visitation privileges. For the second violation, he
received one hundred and sixty three days in segregation and one year without visits.
                                              2
                (2) The reasons are based upon additional objective information
                    concerning identifiable conduct on the part of the defendant; and

                (3) The factual data upon which the increased sentence is based
                appears as part of the record.

The State argued that the three weapons related disciplinary infractions were sufficient to

warrant an increase in sentence.        Appellant argued that the statute as written was

unconstitutional.     Following oral arguments, the court granted the motion, which

permitted the State to present evidence at the sentencing hearing for an enhanced

sentence.

         At sentencing, the State presented several witnesses who testified regarding

appellant’s disciplinary violations, including correctional officers and administrative

hearing officers. Appellant did not deny that he possessed the weapons or that he was

found guilty by the administrative hearing officers. Rather, he contended that personal

safety concerns were the motive behind his possession of the weapons. He alleged that he

was unaffiliated with a gang; was perceived as a target within the correctional

institutions; and that the weapons were a preventative measure if he was attacked. He

also noted that following the two infractions in December, he did not receive any other

weapons violations. Additionally, appellant advanced an argument that the statute was

vague:

         [APPELLANT’S COUNSEL]: Your Honor, there isn’t any sort of
         indication that during the five years, give or take, that [appellant] has spent
         in custody in relation to this case that he’s ever once attacked any person in
         any institution with an weapon. It’s not –

         THE COURT: Is that –


                                               3
       APPELLANT: – before this Court.

       THE COURT: Is that what is required for an increased penalty?

       APPELLANT: Well, Your Honor, my – my personal opinion is that the
       information that’s required under the Maryland statute is pretty vague and
       unclear as to what it is that, you know, the Court can decide. I mean, the
       Court can decide any – the Court could decide that if my – you know, if he
       were to take a tone with someone, if he were to just not show himself to be
       amenable, if he engages in bad behavior, you know, the Court can consider
       that.

       THE COURT: Well I think –

       APPELLANT: It’s pretty vague.

       THE COURT: Well, I don’t know how vague it is, but I think, certainly,
       any disciplinary record is sufficient for the Court to consider. And that’s
       pretty much what the appellate court said in Davis when they said, well, this
       evidence was here and would have been sufficient, but it never became part
       of the record and the judge never said that’s what he was relying on.

              So the intimation is, if it had been introduced into evidence, and if
       the judge said, well, this is what I’m relying on then it would have been
       authorized because that – just like these records that have been introduced
       into evidence here, that was the type of evidence that the Court foresaw a
       judge considering and looking at in determining whether, in fact, an
       increased sentence could be warranted.

The court disagreed and found that it would consider the disciplinary infractions:

       THE COURT: All right. Well, let me do this because, it’s – even though
       you indicated it’s vague, I think it’s pretty clear in Criminal and Judicial
       Proceedings, Section 12-702(b), in order to consider an increased sentence,
       the reasons for the increased sentence – increased penalty affirmatively
       appear.

              And I am stating on the record that I find that the three incidents –
       two in the D.O.C. and the one in the Worcester County Jail – where
       [appellant] was found in possession of a weapon are the type of behavior
       and conduct that would warrant an increased sentence.



                                             4
              The other consideration is based on additional objective information
       concerning identifiable conduct. Again, it’s pretty much the same, that this
       is objectionable – objective conduct. It’s not subjective. It’s not – I’m not
       considering the attitude that the one witness talked about or anything of that
       nature.[2] I am strictly considering these three incidents where he was in
       possession of a weapon.

              And number three is the factual data upon which the increased
       sentence is based appears as part of the record. And there is an abundance
       of factual evidence that’s in evidence based on the C.D.s of the hearing,
       based on the written findings of the hearing examiner, based on the written
       reports of the correctional officers and the officers at the Worcester County
       Jail and the testimony of the witnesses. So there’s an abundance of
       evidence that’s in the record that I will consider in fashioning this sentence.

Announcing its ruling, the court stated:

       THE COURT: As I was indicating, rehabilitation is another factor to be
       considered by the Court, and I was alluding to the fact that [appellant] has
       numerous criminal convictions, continued criminal activity, being placed on
       supervised probation four times, three of which were violated, and, in
       addition, this crime for which he stands convicted of today occurred one
       day after he was released from jail.

               In addition to that, after sentencing upon the first conviction, while
       he was incarcerated, he was charged with institutional violations on three
       separate occasions, the two in D.O.C and the one in the Worcester County
       Jail, and was found guilty of each. Chillingly, each of these events involved
       a knife, the same weapon that was used in this particular case.

                                           ***
              So to prevent [appellant being released and committing another
       crime], what I’m going to do, as to Count No. 1, I’m going to sentence you
       to the Division of Correction for the remainder of your natural life without
       the possibility of parole. As to Count No. 3, armed robbery, I’m going to
       sentence you to 20 years in the Division of Correction, and that 20 years is
       consecutive to the life sentence. As to Count No. 4, the theft of less than
       $500, that will merge with the Count No. 3, armed robbery.

       2
       One of the State’s witnesses was one of appellant’s case managers from North
Branch who reviewed his progress while in disciplinary segregation. During
examination, she noted that appellant was respectful but tended to be cocky and arrogant.

                                             5
Appellant noted a timely appeal. Additional facts shall be provided, infra, to the extent

they prove relevant in addressing the issue presented.

                                STANDARD OF REVIEW

       It is well-established that there are only three grounds for appellate review of

sentences recognized in this state, which the Court of Appeals outlined in Gary v. State,

341 Md. 513 (1996). They are: “(1) whether the sentence constitutes cruel and unusual

punishment or violates other constitutional requirements; (2) whether the sentencing

judge was motivated by ill-will, prejudice or other impermissible considerations; and (3)

whether the sentence was within statutory limits.” Id. at 516.

       In Ridenour v. State, 142 Md. App. 1, 11-12 (2001), we discussed the trial judge’s

broad powers over sentencing and the appellate courts’ scope of review, stating:

              Trial judges are vested with broad discretion in sentencing. In
       exercising this discretion, the sentencing judge should consider “the facts
       and circumstances of the crime committed and the background of the
       defendant, including his or her reputation, prior offenses, health, habits,
       mental and moral propensities, and social background.” The judge’s
       consideration should be undertaken with the aim of furthering the goals of
       the criminal justice system: punishment, deterrence, and rehabilitation.

                A sentence is subject to appellate review on three bases: (1) whether
       it is in violation of federal or state constitutional guarantees; (2) whether the
       sentencing judge was motivated by ill-will, prejudice, or other
       impermissible considerations; and (3) whether the sentence is within
       statutory limits.

Id. at 11-12 (internal citations omitted).

                                        DISCUSSION

I. Due Process



                                              6
       The Fourteenth Amendment to the U.S. Constitution protects a defendant’s due

process rights. It states in relevant part: “nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.” Article 24 of the Maryland Declaration of

Rights states:

       That no man ought to be taken or imprisoned or disseized of his freehold,
       liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed,
       or deprived of his life, liberty or property, but by the judgment of his peers,
       or by the Law of the land.

       Appellant alleges that Cts. & Jud. Proc. §12-702(b) violates his due process rights

under both the U.S. Constitution and the Maryland Declaration of Rights. He advances

two arguments in support of his contention. First, appellant avers that the State must

prove beyond a reasonable doubt any offenses which can be used to increase his sentence.

Second, he challenges the statute as void for vagueness, contending that the statute is

unclear as to what “identifiable conduct” may render a defendant subject to an increased

sentence.

            a. Burden of Proof

       Before the trial court and this Court, appellant argues that any conduct subsequent

to his first conviction that was used to increase his sentence must have been established

before a jury beyond a reasonable doubt. The State responds that there is a distinction

between factual determinations that increase a sentence by law, and facts that influence a

court’s exercise of discretion – the former requires proof beyond a reasonable doubt,

while the latter does not. The State avers that the circumstances of the instant case


                                             7
involve an exercise of the court’s discretion. Accordingly, any conduct did not need to be

established beyond a reasonable doubt by a jury.

       The U.S. Supreme Court has consistently affirmed the importance of a jury

determination of a defendant’s guilt or innocence. Addressing the origins of the right to a

jury trial, the Court opined:

       The guarantees of jury trial in the Federal and State Constitutions reflect a
       profound judgment about the way in which law should be enforced and
       justice administered. A right to jury trial is granted to criminal defendants in
       order to prevent oppression by the Government. Those who wrote our
       constitutions knew from history and experience that it was necessary to
       protect against unfounded criminal charges brought to eliminate enemies
       and against judges too responsive to the voice of higher authority. The
       framers of the constitutions strove to create an independent judiciary but
       insisted upon further protection against arbitrary action. Providing an
       accused with the right to be tried by a jury of his peers gave him an
       inestimable safeguard against the corrupt or overzealous prosecutor and
       against the compliant, biased, or eccentric judge. If the defendant preferred
       the common-sense judgment of a jury to the more tutored but perhaps less
       sympathetic reaction of the single judge, he was to have it. Beyond this, the
       jury trial provisions in the Federal and State Constitutions reflect a
       fundamental decision about the exercise of official power – a reluctance to
       entrust plenary powers over the life and liberty of the citizen to one judge or
       to a group of judges. . . .

Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). More recently, in Apprendi v. New

Jersey, 530 U.S. 466, 477 (2000), the Court has explained:

       [T]o guard against a spirit of oppression and tyranny on the part of rulers,
       and as the great bulwark of [our] civil and political liberties, trial by jury
       has been understood to require that the truth of every accusation, whether
       preferred in the shape of indictment, information, or appeal, should
       afterwards be confirmed by the unanimous suffrage of twelve of [the
       defendant’s] equals and neighbours. . . .

(internal citations and quotations omitted) (emphasis in the original).



                                              8
         Relying on Apprendi, appellant maintains that the right to a jury trial extends to

any factual findings which increase a defendant’s sentence. There, Apprendi was charged

with second degree possession of a firearm for an unlawful purpose, and twenty two other

related charges, after shooting several times into the home of an African American

family. 530 U.S. at 469. The second degree firearm possession carried a maximum

sentence of ten years imprisonment.       Id.       He originally indicated to police that his

motivation for the shooting was that he did not want the African American couple living

in his neighborhood. He later retracted this statement and was not charged under the

state’s hate crime statute. Id.   Apprendi pled guilty to three firearms charges. Id. The

State moved for an enhanced sentence as to the second degree firearm possession count,

alleging that the shooting was racially motivated and therefore, a hate crime. Id. at 470.

The potential sentence with the hate crime enhancement for the second degree firearm

possession count alone increased from a maximum of ten years to a maximum of twenty

years.    Id.   After hearing the evidence on the enhancement, the court found by a

preponderance of the evidence that the crime was racially motivated and sentenced

Apprendi to twelve years for the second degree firearm possession count and two

concurrent sentences for the other two counts. Id. at 471. Apprendi appealed, arguing

that due process required that a jury find that the hate crime enhancement was established

beyond a reasonable doubt. Id.

         The Supreme Court explored the history and importance of the jury trial and proof

beyond a reasonable doubt. See generally id. at 476-85. It explained that while in the

past there was very little distinction between an element of a felony and a sentencing

                                                9
factor, today, courts have accepted that the two are different and some determinations

“[go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.”

Id. at 484. Citing McMillan v. Pennsylvania, 477 U.S. 79 (1989), the Court explained

that a sentencing factor is “a fact that was not found by a jury but that could affect the

sentence imposed by the judge.” Id. at 485. In determining whether a fact is an element

or a sentencing factor: “the relevant inquiry is one not of form, but of effect – does the

required finding expose the defendant to a greater punishment than that authorized by the

jury’s guilty verdict.” Id. at 494. The Court elaborated that “[t]his is not to suggest that

the term ‘sentencing factor’ is devoid of meaning. The term appropriately describes a

circumstance, which may be either aggravating or mitigating in character, that supports a

specific sentence within the range authorized by the jury’s finding that the defendant is

guilty of a particular offense.” Id. at 494 n. 19. The Court held that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Id. at 490.

       Since this ruling, Maryland Courts have repeatedly addressed Apprendi’s impact

on enhanced sentences. See Oken v. State, 378 Md. 179 (2003); Borchardt v. State, 367

Md. 91 (2001); Parker v. State, 185 Md. App. 399 (2009); Jones v. State, 138 Md. App.

12 (2001). In the instant case, we are tasked with determining whether Cts. & Jud. Proc.

§12-702(b) permits an increase in the statutory maximum of appellant’s sentence. If it

does, the conduct must be established beyond a reasonable doubt. We addressed a similar

inquiry in Parker. There, the defendant was convicted of witness retaliation, which had a

                                             10
maximum sentence of five years. 185 Md. App. at 410. However, the statute permitted

the court to enhance the sentence to a maximum of twenty years if the retaliation was

committed in relation to a felony. Id. The court found that the circumstances for the

enhancement were present and sentenced him to twenty years. Id. at 411. The defendant

appealed, arguing in part that his due process rights under Apprendi were violated by

increasing the sentence without a jury finding beyond a reasonable doubt. Id. at 409.

       We began by reviewing Apprendi and exploring the differences discussed supra,

between a sentencing factor and an element of the crime. Id. at 415-17. Citing Blakely v.

Washington, 542 U.S. 296 (2004), and quoting U.S. v. Booker, 543 U.S. 220, 232 (2005),

we explained that: “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant.” Id. at 417 (emphasis in the original). We further clarified,

quoting a Court of Appeals case, Wadlow v. State, 335 Md. 122 (1994):

              In Maryland, . . . we have generally drawn a distinction between
       sentence enhancement provisions that depend upon prior conduct of the
       offender and those that depend upon the circumstances of the offense. In
       the former situation, involving recidivism, we have made it clear that
       determination of the requisite predicate facts is for the sentencing judge. . . .

              In the latter case, however, where the legislature has prescribed
       different sentences for the same offense, depending upon a particular
       circumstance of the offense, we have held that the presence of that
       circumstance must be alleged in the charging document, and must be
       determined by the trier of fact applying the reasonable doubt standard.

Parker, 185 Md. App. at 419. Since the defendant’s increased sentence resulted from the

circumstances of the crime itself, we concluded that due process necessitated that the



                                              11
facts establishing the enhancement be submitted to the jury and proven beyond a

reasonable doubt. Id. at 421.

       Returning to the case at bar, at his first trial, appellant was convicted of first degree

premeditated murder and armed robbery. He was sentenced to life with the possibility of

parole and a consecutive twenty year sentence for the armed robbery conviction. The

maximum sentence for first degree murder is life without the possibility of parole and the

maximum sentence for armed robbery is twenty years. See Crim. Law. §§2-201(b)(1) &

3-403(b). At his second trial, he was convicted of first degree premeditated murder,

armed robbery, and misdemeanor theft. He was sentenced to life without the possibility of

parole and a consecutive twenty year sentence for armed robbery.3 As we explained in

Parker, the statutory maximum is the maximum sentence that can be imposed based on

the facts reflected in the guilty verdict. 185 Md. App. at 417.           Courts and Judicial

Proceedings §12-702(b) permits a court to impose a more severe sentence than the

sentence imposed at the first trial if there was some conduct on the part of the defendant

that occurred after the first conviction. This conduct does not have any relation to the

crime that the defendant was tried for, and accordingly, has no relation to his guilt or

innocence. Therefore, in answering the question posited in Apprendi, whether the factual

findings expose the defendant to a sentence greater than the statutory maximum, we

respond in the negative. Here, the consequence of being found guilty of first degree

murder is that the court may impose a sentence up to life without the possibility of parole.

Courts and Judicial Proceedings §12-702(b) did not expose appellant to a sentence greater

       3
           The theft count merged with the armed robbery count for purposes of sentencing.
                                              12
than that and accordingly, it did not expose him to a sentence greater than the statutory

maximum.      The facts the sentencing court considered, those relating to appellant’s

disciplinary record while he was incarcerated, are unrelated to the guilty verdict. They

have no role in establishing or disproving whether appellant committed premeditated

murder. We hold that Apprendi is not applicable to the case at bar and that appellant’s

due process rights were not violated. Accordingly, we will not reach appellant’s second

due process argument asserting vagueness. See Galloway v. State, 365 Md. 599, 610

(2001) (“‘. . . [t]he basic rule is that there is a presumption’ that the statute is valid. We

are reluctant to find a statute unconstitutional if, ‘by any construction, it can be

sustained.’”) (internal citation omitted).

II. Unconstitutional in application

       Appellant also maintains that even if we find the statute is not per se

unconstitutional, it was unconstitutionally applied to the circumstances of his case.

       To determine whether the court properly applied Cts. & Jud. Proc. §12-702(b) to

appellant’s case, we must construe the statute.       The Court of Appeals outlined the

principles of statutory construction in Condon v. State of Maryland-Univ. of Maryland,

332 Md. 481, 491 (1993).

       The cardinal rule of statutory construction is to ascertain and carry out the
       true intention of the legislature. Tucker v. Fireman’s Fund Ins. Co., 308
       Md. 69, 73, 517 A.2d 730 (1986). In searching for legislative intention, a
       court looks for the general purpose, aim, or policy behind the statute.
       Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987).
       We first look to the plain meaning of the language of the statute to discern
       legislative intent. Tucker, supra, 308 Md. at 73, 517 A.2d 730. Where the
       language is clear and unambiguous, a court may not add or delete words to
       make a statute reflect an intent not evidenced in that language, State v. In Re

                                             13
       Patrick A., 312 Md. 482, 487, 540 A.2d 810 (1988), to avoid a harsh result,
       Simpson v. Moore, 323 Md. 215, 225, 592 A.2d 1090 (1991); Cotham and
       Maldonado v. Board, 260 Md. 556, 565, 273 A.2d 115 (1971). A clearly
       worded statute must be construed without “forced or subtle interpretations”
       that limit or extend its application. Tucker, supra, 308 Md. at 73, 517 A.2d
       730; Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052 (1977), cert.
       denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86. The language must be
       examined in the context in which it was adopted. Motor Vehicle Admin. v.
       Mohler, 318 Md. 219, 225, 567 A.2d 929 (1990).

With these considerations in mind, we now turn to Cts. & Jud. Proc. §12-702(b) to

ascertain whether the sentencing court’s application passes constitutional muster.

       The statute was crafted in response to the U.S. Supreme Court’s opinion in North

Carolina v. Pearce, 395 U.S. 711 (1969). The defendants in that case were convicted of

crimes and received new trials after successfully appealing their convictions. Id. at 713-

14. After their second trial, they received more harsh sentences than they had received at

their first trial. Id. The Supreme Court held that there was no absolute bar to imposing a

harsher sentence upon retrial under either the Equal Protection Clause or Due Process

Clause. The Court held that a trial court may impose a new sentence that is more severe

than the sentence at the first trial based on events that occurred after the first conviction.

Notably, the Court explained that it may be permissible for a court to increase a sentence:

       in the light of events subsequent to the first trial that may have thrown new
       light upon the defendant’s ‘life, health, habits, conduct, and mental and
       moral propensities.’ Williams v. New York, 337 U.S. 241, 245, 69 S.Ct.
       1079, 1082, 93 L.Ed. 1337. Such information may come to the judge’s
       attention from evidence adduced at the second trial itself, from a new
       presentence investigation, from the defendant’s prison record, or
       possibly from other sources. The freedom of a sentencing judge to
       consider the defendant’s conduct subsequent to the first conviction in
       imposing a new sentence is no more than consonant with the principle, fully
       approved in [Williams v. New York, supra,] that a State may adopt the
       ‘prevalent modern philosophy of penology that the punishment should fit

                                              14
       the offender and not merely the crime.’ Id., 337 U.S. at 247, 69 S.Ct., at
       1083.

Id. at 723 (emphasis added). The Court then enumerated the requirements that must be

present before a Court increases a sentence.

       [W]e have concluded that whenever a judge imposes a more severe
       sentence upon a defendant after a new trial, the reasons for his doing so
       must affirmatively appear. Those reasons must be based upon objective
       information concerning identifiable conduct on the part of the defendant
       occurring after the time of the original sentencing proceeding. And the
       factual data upon which the increased sentence is based must be made part
       of the record, so that the constitutional legitimacy of the increased sentence
       may be fully reviewed on appeal.

Id. at 726.

       In response to this ruling, Maryland, along with many other states, enacted a

statute codifying the court’s ruling. The revisor’s note to Cts. & Jud. Proc. §12-702(b)

explains that “. . . the circumstances permitting an increased sentence are taken almost

verbatim from [Pearce].” The intent of the General Assembly in enacting §12-702 was to

effectuate the Supreme Court’s concerns from Pearce. Since the language of the statute

we are interpreting is derived directly from Pearce, we give consideration to the text of

the Pearce decision in ascertaining its intent. See Briggs v. State, 289 Md. 23, 33 (1980)

(analyzing Cts. & Jud. Proc. §§12-702(b)&(c) and explaining that an examination of

Pearce is useful to resolving the issues since the statute was created in response to

Pearce). The Pearce Court explained that facts appropriate to consider in increasing a

sentence after a re-trial are those related to “the defendant’s life, health, habits, conduct,

and mental and moral propensities” or facts included in a new presentencing report or the

defendant’s records while incarcerated since the first trial. 395 U.S. at 723.

                                               15
       In Davis v. State, 312 Md. 172 (1988), the Court of Appeals accepted that a

disciplinary record while incarcerated may be used to increase a sentence pursuant to Cts.

& Jud. Proc. §12-702(b). There, the defendant was convicted of rape and sentenced to

life imprisonment. Id. at 174. He filed a petition for post-conviction relief and was

granted a new trial. Id. At the second trial, he was convicted of the same offenses.

Before sentencing, the State sought to increase his sentence by asserting that the

defendant had several disciplinary infractions while incarcerated, including assaulting and

threatening correctional officers, and possessing shanks and alcohol. Id. at 181. The

defendant denied all of these accusations and asserted that the internal administrative

procedures had found in his favor. Id. at 182. Notwithstanding his objections, the court

increased the defendant’s sentence, sentencing him to life imprisonment plus forty years.

Id. at 175. The defendant appealed, this Court affirmed his conviction and the Court of

Appeals granted certiorari. Id.

          The Court of Appeals noted that although the proffered conduct, the defendant’s

numerous disciplinary infractions, was legally sufficient objective and identifiable

conduct, the three prongs required by §12-702(b) were not met. Id. at 181. The Court

held that although the trial court apparently found that the infractions and other conduct

were sufficient, it did not state its findings on the record or explain its reasoning. Id. at

182-83.     Additionally, the State had offered some evidence that the statute does not

permit to be used to increase a sentence, and the failure of the court to state its rationale

prevented the Court of Appeals from determining whether the sentencing court’s finding

was predicated upon the impermissible conduct. Id. at 183. Finally, as to Cts. & Jud.

                                             16
Proc. §12-702(b)(2), the Court held that while the State relied upon the defendant’s case

record4 from the Department of Corrections, this document was not entered into evidence

and was therefore not a part of the record. Id. at 182. Consequently, there was no factual

basis upon which to base the findings of the sentencing court. The Court of Appeals

vacated the sentence, concluding that even though the defendant’s conduct while

incarcerated was identifiable conduct sufficient under Pearce and Cts. & Jud. Proc. §12-

702(b) to warrant an increased sentence, the statutory requirements were not met. Id. at

183.

       Since Pearce specifically referenced incarceration records, it is evident that it was

permissible to use appellant’s disciplinary infractions from North Branch and the

Worcester Jail to increase his sentence. In Pearce, the Supreme Court acknowledged that

any conduct, subsequent to the first conviction, which would permit the court to impose a

sentence that fit the offender along with the crime, may be considered. The Court even

specifically noted that a defendant’s prison record, may be one such consideration.



       4
        (d) Inmate conduct. – In accordance with regulations adopted by the Division, the
managing official of each correctional facility shall maintain, as a part of an inmate’s case
record:

       (1) an adequate record of the conduct, effort, and progress of the inmate during
       confinement; and

       (2) a record of the character of any offense committed by the inmate and the nature
       and amount of punishment inflicted.



Maryland Code (1999, Repl. Vol. 2008) § 3-601 of the Correctional Services Article.


                                             17
       Taking into consideration the fact that the General Assembly intended the statute

to conform to the intent and requirements of Pearce, and that Pearce clearly enumerates

that a correctional disciplinary record and a defendant’s conduct while incarcerated are

types of conduct that may be considered, we hold that the statute was not applied

unconstitutionally.

III. Improper Argument

       Lastly, appellant asserts that one of the reasons relied upon by the State in seeking

an increase in sentence was incorrect, therefore entitling appellant to a new sentencing.

During arguments on the motion seeking an enhanced sentence, the State remarked that

appellant had been convicted of felony murder in the first trial and convicted of

premeditated murder in the second trial.      As the record demonstrates, and the State

concedes in its brief, this assertion was incorrect. Appellant was found guilty of first

degree premeditated murder in both trials.

       However, we observe that the sentencing court did not rely upon this argument in

determining whether to permit the State to seek an enhanced sentence.

       THE COURT: . . . And – according to the factors, it has to be based on
       objective evidence that would justify an increase in sentence.

              What’s been proffered here, the disciplinary records of [appellant]
       in the D.O.C. and in the Worcester County Detention Center, would be the
       type of objective evidence that, if the Court found was persuasive, would
       warrant an increase in sentence.

              So based on all of that, I’m going to rule that, in fact, the State is
       able to proceed with a request for an increased sentence.

Accordingly, we shall affirm the circuit court.


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JUDGMENTS OF THE CIRCUIT COURT
FOR W ORCESTER COUNTY ARE
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.




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