RESENTENCING – RESENTENCING AFTER REMAND – INCREASED
SENTENCE


Statutorily-mandated increase in time until parole eligibility upon resentencing, despite
aggregate term of incarceration remaining the same, is imposition of a more severe
sentence prohibited by Md. Code, Courts and Judicial Proceedings § 12-702(b).
Circuit Court for Wicomico County
Case No. 22K-16-000031
                                                                                              REPORTED

                                                                                  IN THE COURT OF SPECIAL APPEALS

                                                                                            OF MARYLAND

                                                                                                No. 1416

                                                                                         September Term, 2017


                                                                                       PHILIP DANIEL THOMAS

                                                                                                    v.

                                                                                        STATE OF MARYLAND


                                                                                      Kehoe,
                                                                                      Nazarian,
                                                                                      Raker, Irma S.
                                                                                       (Senior Judge, Specially Assigned),

                                                                                                   JJ.


                                                                                           Opinion by Raker, J.


                                                                                     Filed: November 28, 2018




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.




                                   2018-11-28
                                   10:06-05:00


Suzanne C. Johnson, Acting Clerk
         Appellant Philip Daniel Thomas was resentenced in the Circuit Court for Wicomico

County to a term of incarceration of eighteen years for kidnapping, with the sentence for

second-degree assault merged, and one year concurrent for driving under the influence.

Appellant presents the following question for our review:

               “Did the trial court on remand impose an illegal sentence?”

         We shall hold that the trial court imposed an illegal sentence because upon

resentencing appellant, the court increased his sentence. Accordingly, we shall vacate

appellant’s sentences and remand to the circuit court for resentencing.



                                              I.

         Appellant was convicted on June 15, 2016, in the Circuit Court for Wicomico

County of kidnapping, second-degree assault, false imprisonment, driving under the

influence, and driving while impaired.1 The trial court imposed a total sentence of eighteen

years’ incarceration as follows: a term of incarceration of fifteen years for kidnapping,

three years to be served consecutive to second-degree assault, and one year concurrent for

driving under the influence.2 On appellant’s direct appeal, this Court held that appellant’s

sentence for second-degree assault merges into his kidnapping sentence, vacated all of

appellant’s sentences, and remanded for resentencing with instructions that “the total of



1
  Because the sole issue in this appeal relates to the trial court’s resentencing, we will not
recite the underlying facts of appellant’s criminal charges and will focus only on the facts
related to his resentencing.
2
    The court merged false imprisonment into kidnapping for sentencing purposes.
appellant’s new sentences not exceed the current total of eighteen years’ imprisonment.”

Thomas v. State, No. 997, Sept. Term 2016 (filed June 8, 2017).

       At resentencing, the State and defense counsel presented their recommendations to

the trial court as follows:

              “[THE STATE]: We’d point out that the guidelines on count
              one, kidnapping, are twelve to eighteen years. I think the
              simplest way is to keep the sentence exactly the same, asking
              for eighteen years on the kidnapping; count two, assault second
              degree will merge into the kidnapping pursuant to the mandate;
              count three merges pursuant to the mandate and Your Honor’s
              sentencing at trial, and . . .
                     Count three is false imprisonment . . .
                     And then the DUI we ask for the same sentence, again
              one year concurrent . . .
                     So we end up exactly where we left off. It’s an
              eighteen-year sentence. It complies with, I think, sort of the
              exact instructions of the Court of Special Appeals. That’s our
              request . . .

              [DEFENSE COUNSEL]: I guess the short response that I
              would make, Your Honor, is I don’t think that that’s the
              cleanest way to take care of this problem. And I think it
              actually creates a new problem. The new problem is the nature
              of kidnapping is considered a violent crime for parole
              purposes, second-degree assault is not considered a violent
              crime for parole purposes, so were the Court to follow what
              [the State] is asking the Court to do, which is to reimpose an
              eighteen-year total sentence but to have it all be pursuant to
              kidnapping, what the Court is, in effect, doing is imposing a
              more severe sentence than was previously imposed.

              THE COURT: How could it be more severe than previously
              imposed?

              [DEFENSE COUNSEL]: Well, it’s more severe because
              you’re imposing, in effect, three additional years with respect
              to kidnapping.

              THE COURT: You mean [it] was fifteen years before?

                                            2
[DEFENSE COUNSEL]: Correct.

THE COURT: Oh.

[DEFENSE COUNSEL]: And so I think actually the safest
course of action, in order to obviate any sort of claim that we
might make, and would make, that what you’re really doing is
increasing [appellant’s] sentence after a resentencing hearing,
would be to . . . reimpose the fifteen-year sentence pursuant to
the kidnapping conviction and either run all other sentences
concurrent with or merge them into the conviction for
kidnapping.

                              ***

THE COURT: My intention was to give you eighteen years. It
was a horrific experience for that young lady. I remember the
trial. And the guidelines range is something to eighteen years
anyway.

[THE STATE]: The guidelines were twelve to eighteen, and
the Court of Special Appeals, different than what [defense
counsel] is telling Your Honor, if you look at page twenty-nine
and thirty [of its opinion], it specifically tells Your Honor the
sentence is not to exceed the current total of eighteen years. It
does not elevate the sentence, and he’s free to raise whatever
they want after that. I’m hoping the Court doesn’t reward him
by giving him three years off his sentence.

THE COURT: [Defense counsel], you get the last word if you
want it.

[DEFENSE COUNSEL]: Your Honor, I’m just saying it
creates another issue that’s going to go up on appeal. If the
Court disagrees with me, it’s fine. I’m just saying it makes, it
makes it so much simpler because there’s, I think there’s a
pretty clear argument that giving him eighteen years on
kidnapping is a more severe sentence than fifteen years on
kidnapping—

THE COURT: You can make that argument.



                               3
              [DEFENSE COUNSEL]: —consecutive to three years on
              second degree assault.

              THE COURT: Your appellate people can make that argument
              if they want. But the right thing to do in my heart is to impose
              an eighteen-year sentence, which is what I’m going to do.”

The trial court resentenced appellant to a term of incarceration of eighteen years for

kidnapping, merged the assault count, and reimposed the concurrent one-year sentence for

driving under the influence. This timely appeal followed.



                                              II.

       Before this Court, appellant argues that the delay in his parole eligibility upon

resentencing is the imposition of a “more severe” or “increased” sentence, which is an

illegal sentence prohibited by Md. Code, Courts and Judicial Proceedings, § 12-702(b). An

inmate convicted of a violent crime, as defined by Md. Code, Criminal Law, § 14-101(a),

is not eligible for parole until after serving the greater of “1. One half of the inmate’s

aggregate sentence for violent crimes; or 2. One fourth of the inmate’s total aggregate

sentence.”    Md. Code, Correctional Services, § 7-301(c)(1)(i) (emphasis added).

Appellant’s original parole eligibility was set at seven and a half years, i.e., one half of his

original fifteen-year sentence for the violent crime of kidnapping, which was greater than

four and a half years, i.e., one fourth of his total aggregate sentence of eighteen years (that

included three years consecutive for the non-violent crime of second-degree assault). Upon

merging the kidnapping and second-degree assault convictions and resentencing appellant

to the same eighteen-year aggregate term, albeit solely for the violent crime of kidnapping,


                                               4
appellant’s new parole eligibility increased to nine years, i.e., one half of his new eighteen-

year sentence for kidnapping.

       Appellant acknowledges the aggregate approach delineated in Twigg v. State that “a

defendant’s sentence will be considered to have increased under [Md. Code, Courts and

Judicial Proceedings] § 12-702(b)3 only if the total sentence imposed after retrial or on

remand is greater than the originally imposed sentence.” Twigg v. State, 447 Md. 1, 30,

133 A.3d 1125, 1142 (2016) (emphasis added). He maintains nevertheless that his new

sentence is an increase that is not sanctioned by Twigg because “[a] delay in parole

eligibility works [as] an increase in sentence.”

       The State argues that appellant’s new sentence is not a “more severe” or “increased”

sentence. First, the State points out that Twigg prohibits only an aggregate sentence that

exceeds the original sentencing package and that appellant will not serve more than his

original eighteen-year sentence. Second, the State claims that the “ancillary effect” of

delaying appellant’s parole eligibility is not relevant to the § 12-702(b) analysis because

parole is an executive function outside of the purview of courts. According to the State,

the statute “does not, and was never intended to, address changes in parole eligibility,”

meaning that the statute does not prohibit such change, and the statute is “the only source

of non-constitutional limits on resentencing.”




3
  All subsequent Maryland statutory references herein shall be to Md. Code, Courts and
Judicial Proceedings.

                                              5
                                               III.

         The interpretation of a statute is a question of law, which we review de novo.

Shealer v. Straka, 459 Md. 68, 80, 184 A.3d 391, 398 (2018). The cardinal rule of statutory

construction is to ascertain and effectuate the intent of the Legislature. Watts v. State, 457

Md. 419, 430, 179 A.3d 929, 935 (2018).

         Section 12-702(b) prohibits, absent certain justifications,4 a court from imposing a

“more severe” sentence on resentencing or retrial as follows:

                “(b) 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;
                       (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.”

Id. (emphasis added). This rule comes from the analysis in North Carolina v. Pearce, 395

U.S. 711 (1969), of the Due Process Clause of the Fourteenth Amendment, explaining as

follows:

                “Due process of law . . . requires that vindictiveness against a
                defendant for having successfully attacked his first conviction
                must play no part in the sentence he receives after a new trial.
                And since the fear of such vindictiveness may

4
    The State maintains that these justifications do not apply in appellant’s case.
                                                6
              unconstitutionally deter a defendant’s exercise of the right to
              appeal or collaterally attack his first conviction, due process
              also requires that a defendant be freed of apprehension of such
              a retaliatory motivation on the part of the sentencing judge.”

Id. at 725 (footnote omitted).

       In enacting § 12-702(b) in 1973, the Maryland General Assembly “adopted not only

the Pearce doctrine but also significant portions of the Pearce language as the statutory

policy of Maryland.” Jones v. State, 307 Md. 449, 454, 514 A.2d 1219, 1222 (1986); see

also Sweetwine v. State, 288 Md. 199, 214, 421 A.2d 60, 68 (1980) (“[§ 12-702(b)], which

incorporates the language of the Pearce opinion almost verbatim, was intended by the

General Assembly to codify the Pearce due process holding.”).

       Whether a delay in appellant’s parole eligibility is an “increased” sentence or a

“more severe” sentence prohibited by § 12-702 is a matter of first impression in Maryland.

As far as we are aware, all federal and most of the state appellate courts that have

considered this matter agree as follows: when the minimum term of incarceration before

parole eligibility is set by statute, as opposed to being left entirely to the discretion of a

parole commission board, a delay in parole eligibility upon resentencing, absent

justification, constitutes a prohibited “increased” or “more severe” sentence.

       Appellate courts employ the same reasoning found in Warden, Lewisburg

Penitentiary v. Marrero, 417 U.S. 653 (1974), which reads as follows:

              “In concluding in Bradley [v. United States, 410 U.S. 605, 611
              (1973)] that ineligibility for early parole under 18 U.S.C. §
              4208(a) was part of the ‘prosecution,’ we reasoned that, since
              a District Judge’s decision to make an offender eligible for
              early parole is made at the time of entering a judgment of


                                              7
              conviction, the decision was part of the sentence and therefore
              also part of the ‘prosecution.’
                      Similarly, a pragmatic view of sentencing requires the
              conclusion that parole eligibility under 18 U.S.C. § 4202 is also
              determined at the time of sentence. Since, under § 4202, an
              offender becomes eligible for parole after serving one third of
              his sentence, . . . parole eligibility is a function of the length of
              the sentence fixed by the district judge. Although, of course,
              the precise time at which the offender becomes eligible for
              parole is not part of the sentence . . . it is implicit in the terms
              of the sentence . . . [T]he fact that the Board of Parole, not the
              sentencing judge, finally determines whether and when an
              offender should be released on parole does not undercut our
              conclusion that the district judge, at the time of sentencing,
              determines when the offender will become eligible for
              consideration for parole and the Board’s action simply
              implements that determination.”

Id. at 658–59 (emphasis added) (footnote omitted). When a statutory provision determines

parole eligibility, Warden distinguishes between the eligibility for and granting of parole

and reasons that eligibility is “a function of the length of the sentence fixed by the [trial]

judge,” while granting parole falls outside the purview of the sentencing court. Id. at 658.

Pearce involved an increase in the total years of incarceration upon resentencing. The

Supreme Court, however, “couched its due process analysis in terms of the severity of the

sentence rather than its length,” and hence the fact that a defendant was resentenced to the

same number of years is not “dispositive” in a Pearce analysis.                United States v.

Hawthorne, 532 F.2d 318, 324 (3d Cir. 1976).

       Most federal appellate courts hold as follows regarding federal sentencing

guidelines: “Although a later sentence imposed by a judge is for an identical term of

imprisonment as the initial one, it is nevertheless more severe for purposes of due process

if it provides for parole consideration later than the initial sentence.” United States v. Bello,

                                               8
767 F.2d 1065, 1068 (4th Cir. 1985); see also United States v. Steele, 988 F.2d 998, 999

(9th Cir. 1993) (holding that defendant’s resentence with same total years was nonetheless

“harsher” because resentence was pursuant to a different statute that required serving one

third of sentence to become eligible for parole rather than leaving eligibility up to discretion

of Parole Commission); United States v. Pimienta-Redondo, 874 F.2d 9, 15 (1st Cir. 1989)

(holding that defendant’s same twelve-year total resentence “was not ‘enhanced’ at all”

under Pearce analysis because “[t]here has been no suggestion that . . . retrofitting the

sentence . . . caused him some further detriment, say, postponing the likely date of parole .

. .”); United States v. Gilliss, 645 F.2d 1269, 1283 (8th Cir. 1981) (holding that defendant’s

resentence from twenty years with parole eligibility after three years to same twenty years

but with later parole eligibility was “harsher” or “more severe”); cf. United States v.

Barash, 428 F.2d 328, 331 (2d Cir. 1970) (holding that Pearce rule prohibits, absent the

justifications there enumerated, “an increase in the punishment imposed after a conviction

on retrial regardless of the form of punishment, whether it is imprisonment, suspended

sentence with probation, fine, or any other corrective measure the court may provide”

(emphasis added)). Even a resentence where the total term of incarceration is less than that

of the original sentence is “more severe” if it delays the defendant’s parole eligibility. E.g.,

State v. Soco, 508 So. 2d 915, 917–18 (La. Ct. App. 1987) (holding as “more severe” a

resentence of thirty-five years without parole eligibility compared to original sentence of

ninety-nine years with parole eligibility after thirty-three years).

       In its brief, the State relies on Keawe v. State, 901 P.2d 481 (Haw. 1995), to support

its position. Hawaii law, however, is consistent with the reasoning of Warden and our

                                               9
holding in this case. When parole eligibility is not set by statute but instead left to the sole

discretion of the parole commission board, a resentence of the same total term that

nonetheless delays a defendant’s parole eligibility is not a “more severe” sentence. See,

e.g., Keawe v. State, 901 P.2d at 489–90; Fukusaku v. State, 273 P.3d 1241, 1249 (Haw.

Ct. App. 2012).

       In Hawaii, an executive agency called the Hawaii Paroling Authority (“HPA”)

determines parole eligibility. Haw. Rev. Stat. § 706-669. Once a prisoner with an

“extended term of imprisonment” serves six months, the HPA must hold a hearing and

determine, entirely on its discretion, when the prisoner is to become eligible for parole. Id.

The Hawaii State Legislature intended to grant the HPA “broad discretion” and “exclusive

authority” to determine a prisoner’s minimum term of incarceration before eligibility for

parole. Williamson v. Hawaii Paroling Auth., 35 P.3d 210, 216 (Haw. 2001).

       Addressing a claim that an HPA change in parole eligibility was a more severe

sentence, Keawe stated that “the terms ‘parole’ and ‘sentence’ should not be confused with

each other” and that “[w]hile sentencing is the function of the judiciary, the granting of

parole is generally the function of the executive branch of government, i.e., the Hawaii

paroling authority.” Keawe, 901 P.2d at 489. Pointing to the “clear distinction between

sentencing and paroling” and the language of Haw. Rev. Stat. § 706-609 precluding a court

from resentencing to a “more severe” sentence, the court held that the statute is inapplicable

to cases where a new sentence, no more severe than the prior sentence, results in a longer

time until parole eligibility. Id. at 490. A subsequent case, Fukusaku, reached the same

conclusion where the HPA increased the defendant’s time until parole eligibility from forty

                                              10
to fifty years after the court’s resentencing. Fukusaku, 273 P.3d at 1249. Because the time

until parole eligibility is set wholly at the HPA’s discretion and not predetermined by

statute, it is not a function of a court’s sentence. Thus, Hawaii’s case law on this issue is

consistent with Warden because in Hawaii, both eligibility for and granting of parole are

executive functions, and neither affects the “severity” of the judge’s sentence.

       We are aware of only one appellate jurisdiction that does not follow the reasoning

of Warden: the State of South Dakota. Although parole eligibility is set by statute in South

Dakota, per South Dakota Codified Laws § 24-15A-32 or § 24-15-5 (the system for

offenders sentenced before July 1, 1996), the state does not separate it from the granting of

parole and does not view it as a function of the court’s sentence. Instead, the state groups

eligibility with the granting of parole, which is an executive act completely unrelated to

how a court sentences. State v. Semrad, 794 N.W.2d 760 (S. Dakota 2011), held that

“[b]ecause parole eligibility is not part of a defendant’s sentence, we have recognized that

in other contexts judicial acts delaying parole eligibility do not increase a defendant’s

sentence.” Id. at 763–64; State v. Puthoff, 566 N.W.2d 439, 442 (S. Dakota 1997) (holding

that defendant’s sentence was not increased when only his parole eligibility was affected).

       We decline to follow South Dakota’s conceptual assimilation of a statutorily set

eligibility for parole, which is not within the discretion of the parole commission board,

into the granting of parole, which is. We agree with the majority of the appellate courts,

federal and state, that hold that parole eligibility, insofar as it is set by statute and hence

predeterminate at the time of a court’s sentencing, is a direct function of the court’s



                                              11
sentence, such that an increase in the time before becoming eligible for parole is an

“increased” or “more severe” sentence prohibited absent justification.

       We hold that where the parole eligibility date is set by statute in Maryland, it is a

function of the trial judge’s sentence. Hence, a resentence that delays a defendant’s parole

eligibility date, as in appellant’s case, is a “more severe” sentence prohibited by § 12-702

absent statutory justification. We vacate appellant’s sentence and remand to the circuit

court for a new sentencing consistent with this opinion.


                                          SENTENCES   VACATED.      CASE
                                          REMANDED TO THE CIRCUIT COURT
                                          FOR WICOMICO COUNTY FOR A NEW
                                          SENTENCING CONSISTENT WITH THIS
                                          OPINION.  COSTS TO BE PAID BY
                                          WICOMICO COUNTY.




                                            12
