David Andrew Hartless v. State of Maryland, No. 123, Sept. Term 2017. Opinion filed on
May 30, 2019, by Berger, J.


CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE -
JUVENILE OFFENDERS - LIFE SENTENCES

The Eighth Amendment to the United States Constitution requires that, before being
sentenced to life without parole, a juvenile homicide offender receive an individualized
sentencing process that expressly considers the juvenile’s youth and attendant
circumstances. There is no such individualized sentencing requirement expressly
considering a juvenile’s youth and attendant circumstances for juvenile homicide offenders
who receive sentencing other than life without parole.

CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE -
JUVENILE OFFENDERS - LIFE SENTENCES - EXECUTIVE CLEMENCY

The Parole Commission’s authority to make and review recommendations concerning a
pardon, commutation of sentence, or other clemency does not constitute the authority to
divert a parole request into a request for executive clemency. The laws and regulations
governing executive clemency in Maryland do not render a juvenile homicide offender’s
sentence of life with parole unconstitutional.
Circuit Court for Howard County
Case No. 13-K-87-017022
                                                                                                    REPORTED

                                                                                     IN THE COURT OF SPECIAL APPEALS

                                                                                               OF MARYLAND

                                                                                                     No. 123

                                                                                             September Term, 2017
                                                                                   ______________________________________

                                                                                         DAVID ANDREW HARTLESS

                                                                                                       v.

                                                                                            STATE OF MARYLAND
                                                                                   ______________________________________

                                                                                        Berger,
                                                                                        Arthur,
                                                                                        Beachley,

                                                                                                     JJ.
                                                                                   ______________________________________

                                                                                             Opinion by Berger, J.
                                                                                   ______________________________________

                                                                                        Filed: May 30, 2019




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



                            2019-06-05 11:38-04:00




Suzanne C. Johnson, Clerk
       This case is before us on appeal from an order of the circuit court denying the motion

to correct an illegal sentence filed by David Andrew Hartless, appellant. In 1989, Hartless

was convicted of premeditated first-degree murder, robbery with a deadly weapon, and

lesser-included offenses. He was sentenced to life in prison for first-degree murder and

twenty years’ imprisonment for robbery with a deadly weapon. His convictions were

affirmed on direct appeal. Hartless v. State, 327 Md. 558, 560 (1992). Hartless was

seventeen years old when he committed the crimes.

       Following the decisions of the United States Supreme Court in Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016),

Hartless filed a motion to correct what he alleged to be an illegal sentence. Hartless

asserted that his sentence was unconstitutional pursuant to recent Supreme Court precedent

addressing life sentences without parole for juvenile homicide offenders. The circuit court

denied Hartless’ motion.

       Hartless noted a timely appeal. This Court stayed Hartless’ appeal pending the

decision of the Court of Appeals in Carter v. State, No. 54, Sept. Term, 2017; Bowie v.

State, No. 55, Sept. Term 2017; and McCullough v. State, No. 56, Sept. Term, 2017,

because the cases raised issues relating to whether a life sentence with the possibility of

parole or a lengthy term of years sentence constituted an unconstitutional de facto life

without parole sentence. On August 29, 2018, the Court of Appeals issued an opinion in

Carter v. State, 461 Md. 295 (2018), reconsideration denied, October 4, 2018. The Court’s

consolidated opinion resolved the cases of Carter, Bowie, and McCullough. Following the
issuance of the Carter opinion, we lifted the stay in Hartless’ appeal and the appeal

proceeded.

       In this appeal, Hartless presents three issues for our consideration, which we set

forth verbatim:

              1. What is the scope of Carter’s requirement that all juvenile
                 offenders are entitled to an individualized sentencing
                 hearing that takes into account the offender’s youth, and
                 based on Carter’s interpretation of this requirement, did the
                 circuit court err in determining that Mr. Hartless’ life plus
                 twenty year sentence, imposed without an individualized
                 sentencing, was legal?

              2. Presenting an issue that was not ruled upon in Carter, did
                 the circuit court err in not finding Mr. Hartless’ life
                 sentence illegal since the statutes and regulations governing
                 the Maryland parole system authorize the Parole
                 Commission to divert any parole application to a request
                 for executive clemency?

              3. An argument raised for preservation purposes, is the Court
                 of Appeals’ decision in Carter in contravention with
                 Supreme Court precedent in Miller and Montgomery,
                 which held that a non-incorrigible juvenile offender has a
                 substantive right to release upon a showing of demonstrated
                 maturity and rehabilitation?

With respect to the first issue raised by Hartless, for reasons we shall explain, we reject

Hartless’ premise that Carter requires an individualized sentencing hearing that takes into

account the offender’s youth for all juvenile homicide offenders. We shall further hold

that the availability of executive clemency as an alternative to parole does not render

Hartless’ sentence unconstitutional. For reasons we shall explain, we do not address the

merits of the third issue. We shall affirm.




                                              2
                                      BACKGROUND

       We set forth briefly the factual background underlying this appeal. The underlying

murder occurred in 1987 when Hartless was seventeen years old. Hartless entered a

convenience store in Columbia, Maryland, intending to rob the store. A twenty-year-old

store clerk, Angelica Velazco, was alone in the store at the time. Hartless ordered Velazco

to lie on the floor. Velazco complied, but Hartless smashed a bottle over her head and

subsequently stabbed her to death.

       The State sought a sentence of life without the possibility of parole for Velazco’s

murder, but the trial court ruled that it was not an allowable sentence at the time of Hartless’

crime. The circuit court subsequently sentenced Hartless to life imprisonment for murder.

Defense counsel acknowledged that the court was obligated to impose a life sentence for

the murder conviction but asked the court to issue a concurrent sentence for the robbery.

Defense counsel specifically pointed to Hartless’ age at the time of the offense, Hartless’

difficult childhood circumstances, and the corrosive influence of Hartless’ stepfather, Leo

Rites. Defense counsel also asked for Hartless to be sent to the Patuxent Institution where

he would be able to receive psychiatric care and treatment.

       The circuit court imposed the mandatory life sentence for the first-degree murder

conviction and a consecutive twenty-year term of imprisonment for robbery with a deadly

weapon.    The court noted Hartless’ age at the time the crime was committed but

emphasized that Hartless had committed the “ultimate crime” in a “rather vicious” manner

and emphasized that the victim was “rather young.”              The circuit court expressly



                                               3
commented that it was “fully cognizant of the various psychological and psychiatric

reports.”

       On January 23, 2017, Hartless filed the motion to correct illegal sentence pursuant

to Maryland Rule 4-345(a) that ultimately gave rise to this appeal. He argued that his

sentence was illegal based upon the United States Supreme Court cases of Miller, supra,

567 U.S. 460, and Montgomery, supra, 136 S. Ct. 718. We shall discuss these cases in

further detail infra, but it is helpful to set forth the holdings of each case here in order to

provide context for Hartless’ motion. In Miller, the Court held that “mandatory life without

parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S. at 465.

       The Montgomery Court held that Miller announced a new substantive rule that

applies retroactively to convictions that were final prior to the Miller decision. 136 S. Ct.

at 736. The Montgomery Court explained that Miller “requires a sentencer to consider a

juvenile offender’s youth and attendant characteristics before determining that life without

parole is a proportionate sentence.” Id. at 734. The Court further explained that Miller

“determined that sentencing a child to life without parole is excessive for all but ‘the rare

juvenile offender whose crime reflects irreparable corruption.’” Id. (quoting Miller, 567

U.S. at 479-80).1


       1
          Courts have reached different conclusions on the issue of whether Montgomery
made Miller retroactive to all cases involving juveniles sentenced to life without parole or
only to cases involving juveniles sentenced to life without parole pursuant to a mandatory
sentencing scheme. The United States Supreme Court has granted certiorari to address this
issue. Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), cert. granted, ___ S. Ct. ___ (U.S.
Mar. 18, 2019).
                                              4
       Against this backdrop, Hartless filed a motion to correct what he alleged to be an

illegal sentence, arguing that his sentence was unconstitutional as a de facto sentence of

life without parole. Hartless asserted that a sentence of life with parole is effectively

equivalent to life without parole in Maryland because there is no “meaningful opportunity

to obtain release” for individuals sentenced to life with parole. Hartless contended that the

circuit court had not considered the factors set forth in Miller, supra, before sentencing him

to what was effectively a sentence of life without parole, and, therefore, the circuit court’s

sentence was illegal.

       The circuit court, in a written order, observed that there was “not yet precedent” on

the constitutionality of Hartless’ life sentence with parole. The circuit court observed that

Hartless had an upcoming parole hearing and had “not yet been denied parole.” The court

found Hartless’ motion to be “premature” and denied the motion without prejudice.

       Hartless noted a timely appeal to this Court. The appeal was stayed pending the

Court of Appeals’ decision in Carter, Bowie, and McCullough, supra, which presented the

same theory underlying Hartless’ motion and argued that a life sentence in Maryland “is

effectively . . . life without parole, because the laws governing parole in Maryland do not

provide [an inmate] with a meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Carter, supra, 461 Md. at 307. The Court of Appeals rejected

this theory, holding in Carter that the petitioners’ life sentences were legal because “the

laws governing parole of inmates serving life sentences in Maryland, including the parole

statute, regulations, and a recent executive order adopted by the Governor, on their face



                                              5
allow a juvenile offender serving a life sentence a ‘meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.’” Id.2

                                      DISCUSSION

       We first address which of the appellate issues raised by Hartless are properly before

this Court and which issues are unpreserved or otherwise not appropriate for this Court to

address. The primary argument raised by Hartless before the circuit court is the same

argument expressly rejected by the Court of Appeals in Carter: that a life sentence in

Maryland is effectively a sentence of life without parole because the laws governing parole

in Maryland do not provide a meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation. Therefore, Hartless contended before the circuit

court, such a sentence is unconstitutional for juvenile offenders pursuant to Miller, supra,

567 U.S. 460, and Montgomery, supra, 136 S. Ct. 718. Before this Court, Hartless raises

three additional issues. First, Hartless argues that Carter mandates an “individualized

sentencing process that takes account of the offender’s youth” for all juvenile homicide


       2
         The Court explained that its holding was based upon the laws governing parole
decision-making and not based upon how the laws have been carried out. Carter, supra,
461 Md. at 337 (“To the extent that [the Petitioners] are challenging the actual practice of
the Parole Commission and the Governor in making parole decisions, their claims are
outside the scope of a motion to correct an illegal sentence. We thus agree with the Court
of Special Appeals that whether the Parole Commission and others involved in the parole
system are carrying out their duties in practice is not at issue in this appeal.”) (footnote
omitted). The Court observed that “other causes of action are more appropriate to litigate
claims that the Parole Commission and others involved in the parole system are not
carrying out their responsibilities.” Id. The Court further commented that several of these
claims are currently being litigated in the United States District Court for the District of
Maryland in a lawsuit brought pursuant to 42 U.S.C. § 1983. Id. at 337 n.26; see also
Maryland Restorative Justice Initiative et al. v. Hogan et al., No. 16–01021–ELH (D.Md.).

                                             6
offenders regardless of whether they are sentenced to life without parole. This issue, albeit

framed quite differently, was presented before the circuit court, and we shall address it.3

       Hartless’ second argument is that his sentence is illegal because the Parole

Commission is empowered to “turn any application for parole into a request for executive

clemency.” This issue was not raised before the trial court, and ordinarily, we would not

address issues that were not raised in or decided by the trial court.4 See Md. Rule 8-131(a)

(“Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless it

plainly appears by the record to have been raised in or decided by the trial court.”). We

recognize, however, that a motion to correct an illegal sentence can be filed at any time

and is not subject to the ordinary preservation rules. See Md. Rule 4-345(a) (“The court

may correct an illegal sentence at any time.”); Carlini v. State, 215 Md. App. 415, 426

(explaining that for Rule 4-345(a) purposes, the illegality must actually inhere in the




       3
         Before the circuit court, Hartless asserted that an individualized sentencing process
that takes account of the offender’s youth was necessary because a life sentence with the
possibility of parole was effectively a life sentence without the possibility of parole in
Maryland. As we have explained, the Carter Court rejected the argument that a life
sentence with the possibility of parole is effectively a life sentence without parole.
Nonetheless, because Hartless raised the issue of whether he had been impermissibly
deprived of a right to an individualized sentencing process below, we address the merits of
this issue on appeal.
       4
        Hartless asserts that this argument was “partially presented” in the Carter briefing
but not ruled upon. The Court of Appeals briefly touched upon the laws regarding
executive clemency in its discussion of the various laws governing parole of inmates
serving life sentences in Maryland, observing that “[d]istinct from the Governor’s role in
the parole of inmates serving life sentences, the Maryland Constitution confers the
independent power of executive clemency on the Governor.” Carter, supra, 461 Md. at
325.
                                              7
sentence itself). Accordingly, we shall address Hartless’ second argument regardless of

the fact that it was not raised or addressed below.

       Hartless’ third appellate argument -- which Hartless concedes is raised “for

preservation purposes” -- asserts that Carter is inconsistent with Supreme Court precedent

and should be reconsidered. This Court, of course, is bound by the Court of Appeals’

decision in Carter and we will not revisit this issue.

       We, therefore, turn to the merits of the issues before us, namely, whether the circuit

court erred by denying Hartless’ motion to correct illegal sentence on the basis that he was

required to receive an individualized sentencing process and whether the availability of

executive clemency renders the parole system unconstitutional. We review the circuit

court’s denial of a motion to correct illegal sentence de novo. Rainey v. State, 236 Md.

App. 368, 374 (2018).

                                              I.

       Hartless’ first appellate contention is that his sentence should be vacated because he

did not receive an individualized sentencing process at which the circuit court expressly

considered his youth and attendant circumstances. Hartless asserts that Carter requires

that any juvenile convicted of homicide receive an individualized sentencing process at

which six factors are considered regardless of whether the court is considering a sentence

of life imprisonment without the possibility of parole. Specifically, Hartless asserts that a

court must evaluate (1) the defendant’s chronological age and immaturity, impetuosity, and

the failure to appreciate risks and consequences; (2) the defendant’s family and home

environment; (3) circumstances of the offense, including the extent of the defendant’s

                                              8
participation in the criminal conduct; (4) the impact of familial and peer pressures on the

defendant; (5) the effect of the defendant’s youth on the criminal justice process, such as

his inability to comprehend a plea bargain; and (6) the possibility of a defendant’s

rehabilitation. These factors are drawn from Miller, supra, 567 U.S. at 477-78.5

       A brief discussion of the United States Supreme Court caselaw on issues relating to

life sentences for juvenile offenders is necessary in order to provide the proper context for

our discussion of Carter.   In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court

held that the Eighth Amendment bars a sentence of life in prison without parole for juvenile

offenders convicted of only non-homicide offenses. The Supreme Court first addressed

the issue of under what circumstances a juvenile homicide offender may be sentenced to

life in prison without the possibility of parole in Miller, supra. The Miller Court held that

“the Eighth Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” 567 U.S. at 479 (emphasis added). The Court

did not prohibit life sentences without parole categorically, but commented that

“appropriate occasions for sentencing juveniles to this harshest possible penalty will be

uncommon.” Id. The Supreme Court did “not foreclose a sentencer’s ability to make that

judgment in homicide cases,” but the Court “require[d the sentencing court] to take into


       5
        The State does not agree that proper consideration of “youth and its attendant
characteristics” requires consideration of these specific factors. The State asserts that
Miller discusses certain “hallmark features” of youth, but that it does not require a
sentencing court to specifically consider these factors on the record before imposing a
sentence of life without parole. Because, as we shall explain, we shall hold that no
individualized sentencing hearing was required because Hartless was not sentenced to life
without parole, we need not examine the nature of such an individualized sentencing
hearing. Indeed, such a discussion would be purely hypothetical.
                                             9
account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480.

       In Montgomery, supra, the Court further explained that “[a] hearing where ‘youth

and its attendant characteristics’ are considered as sentencing factors is necessary to

separate those juveniles who may be sentenced to life without parole from those who may

not.” 136. S. Ct. at 735. The primary issue before the Court in Montgomery was whether

the Miller holding was entitled to retroactive effect. The Supreme Court held that Miller

announced a new substantive constitutional rule that was retroactive on state collateral

review. 136 S. Ct. at 732. Although the Montgomery Court gave retroactive effect to

Miller, the Court explained that this did “not require States to relitigate sentences, let alone

convictions, in every case where a juvenile offender received mandatory life without

parole.” Id. at 736. Rather, a Miller violation could be remedied “by permitting juvenile

homicide offenders to be considered for parole, rather than by resentencing them.” Id.

       Hartless does not expressly rely upon Montgomery or Miller for the principle that

all juvenile homicide offenders are entitled to individualized sentencing processes

regardless of whether they are sentenced to life without the possibility of parole. Indeed,

if a Miller violation can be remedied simply by permitting a juvenile offender to be

considered for parole, it is illogical to suggest that Montgomery and Miller somehow

require an individualized sentencing process for all juveniles convicted of homicide,

regardless of whether they are sentenced to life with or without parole.

       Because neither Montgomery nor Miller addresses Hartless’ appellate issue, it is

unsurprising that Hartless relies only upon Carter for this principle. This issue, however,

                                              10
was not the issue before the Court of Appeals in Carter.            Carter addressed the

constitutionality of a sentence of life imprisonment with parole for juvenile homicide

offenders in Maryland and considered whether such a sentence violated the Eighth

Amendment on the basis that it failed to provide a meaningful opportunity for release. The

Carter Court recognized that the “Eighth Amendment’s proscription against cruel and

unusual punishments precludes [a sentence of life without parole] for a juvenile offender

unless the defendant is an incorrigible murderer,” but rejected the argument that life with

the possibility of parole is effectively a sentence of life without parole. 461 Md. at 306-

07. The Court of Appeals held that a sentence of life imprisonment with the possibility of

parole for juvenile homicide offenders is legal “as the laws governing parole of inmates

serving life sentences in Maryland, including the parole statute, regulations, and a recent

executive order adopted by the Governor, on their face allow a juvenile offender serving a

life sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation.’” Id. at 307.

       The specific language in Carter cited by Hartless in support of his assertion that an

individualized sentencing process taking into consideration a juvenile’s youth is required

for all juvenile homicide offenders is found at 461 Md. at 317. The Carter Court, after

discussing various Supreme Court Eighth Amendment cases, set forth principles it derived

“concerning the constitutional constraints on life sentences for juvenile offenders” and

identifying the Supreme Court authority for each principle. This was presented by the

Court via the following bullet point summary, which we quote verbatim:



                                            11
• With respect to juvenile offenders convicted of offenses
  other than homicide, the Eighth Amendment categorically
  bars a sentence of life in prison without the possibility of
  future release from custody. Graham.

• With respect to juvenile offenders convicted of homicide:

       • there must be an individualized sentencing process
         that takes account of the offender’s youth;

       • the defendant may be sentenced to imprisonment
         without the possibility of future release only if the
         court determines that the defendant is incorrigible.
         Miller; Montgomery.

• For all juvenile offenders who are convicted of non-
  homicide offenses and the vast majority who are convicted
  of homicide, there must be a “meaningful opportunity to
  obtain release” from custody based on “demonstrated
  maturity    and    rehabilitation.”   Graham;     Miller;
  Montgomery.

• It is up to the states in the first instance to devise the means
  and mechanisms for providing such a meaningful
  opportunity. Graham.

• A parole system that takes into account the offender’s youth
  at the time of the offense and demonstrated rehabilitation
  provides such a meaningful opportunity. Graham; Miller.

• There is no constitutional requirement that a state have a
  parole system per se, so long as the state provides a
  meaningful opportunity for release based on demonstrated
  maturity and rehabilitation. Graham.

• An executive clemency system that leaves the decision on
  release of an offender to the unfettered discretion of a




                               12
                   public official or entity does not provide such a meaningful
                   opportunity. Rummel;[6] Solem.[7]

                • While a state’s criminal justice system must provide such a
                  meaningful opportunity, it need not guarantee release.
                  Graham.

Carter, supra, 461 Md. at 317-18.

       Hartless quotes the second bullet point, pointing to this language: “With respect to

juvenile offenders convicted of homicide . . . there must be an individualized sentencing

process that takes account of the offender’s youth.” Hartless derives from this language

that, in Carter, the Court of Appeals intended to recognize the right to an individualized

sentencing process that takes account of the offender’s youth for any and all juvenile

offenders convicted of homicide, regardless of whether a sentencing court is considering

imposing a sentence of life without parole.

       To be sure, this statement, taken completely out of context, could provide support

for Hartless’ position. The context, however, is essential. This language was presented in

a bullet point list summarizing Supreme Court authority. Critically, this language did not

set forth the Court of Appeals’ legal conclusions or holdings. The right identified in Miller

and Montgomery pertains specifically to juvenile offenders sentenced to life imprisonment

without parole, not to all juvenile homicide offenders. It is plain that the bullet point list

set forth in Carter simply summarized the right identified in Miller and Montgomery




       6
           Rummel v. Estelle, 445 U.S. 263 (1980).
       7
           Solem v. Helm, 463 U.S. 277 (1983).

                                              13
without including a portion of the relevant language identifying the group of juvenile

offenders to whom the right applied. Indeed, Hartless’ proposed reading of this language

is illogical.   As the State points out, this proposed right would have far-reaching

implications for all juveniles who have previously been convicted of homicide in the State

of Maryland.      If the Court of Appeals intended to recognize this new right, it is

unreasonable to believe that the right would be presented via a bullet point summary of

Supreme Court authority.          Rather, the right would be announced clearly and

unambiguously.

       Additional support for Hartless’ argument is presented through quoted language

from Carter absent its appropriate context. For example, Hartless asserts that the Carter

Court “explain[ed] that ‘if the defendant was convicted of homicide, the court will need to

hold an individualized sentencing hearing to consider whether the defendant is

incorrigible.’” The quoted language appears in the following paragraph of Carter (quoted

language in bold):

                The implications of the Supreme Court’s recent Eighth
                Amendment decisions for a case in which a court sentenced a
                juvenile offender to life without parole are very clear. In such
                a case, the defendant must be re-sentenced to comply with the
                holdings of Graham and Miller. If the defendant was
                convicted of homicide, the court will need to hold an
                individualized sentencing hearing to consider whether the
                defendant is incorrigible.

461 Md. at 333-34 (footnote omitted). By quoting only the bolded text, Hartless asserts

that an individualized sentencing hearing is required for all juvenile offenders convicted of




                                              14
homicide, while consideration of the quoted text within its greater context makes clear that

this requirement applies only to juvenile offenders sentenced to life without parole.

       Hartless cites page 341 of the Court of Appeals’ opinion in Carter for the same

proposition, but, again the context reflects a much narrower requirement. Hartless asserts,

citing 461 Md. at 341, that “Carter held that Miller and Montgomery apply to all juveniles

sentenced to life imprisonment.” The Carter Court actually opined that “[i]f the structure

of the Maryland parole system [did] render the sentences of” juvenile homicide offenders

“effectively life without parole, then those sentences violate the Eighth Amendment and

would therefore be illegal.” 461 Md. at 341. In those circumstances, the juvenile offender

“would be entitled to a new sentencing proceeding at which the court would consider

whether he was one of the few juvenile homicide offenders who is incorrigible and may

therefore be sentenced constitutionally to life without parole.” Id. Critically, because the

Court held that the Maryland parole system does not render the sentences of juvenile

homicide offenders “effectively life without parole,” resentencing was not required in

Carter. The same applies in this case.

       We find no support in Carter for Hartless’ proposition that all juvenile offenders

convicted of homicide have the right to an individualized sentencing process that takes

account of the offender’s youth.8 In our view, the identification of Hartless’ proposed right



       8
         Indeed, it is unclear what Hartless proposes the right to an individualized
sentencing hearing would require. Hartless identifies six factors that he asserts should be
considered by a sentencing court, but then argues that the individual defendants in Carter
and Bowie received individualized sentencings in compliance with Miller because the

                                             15
is unsupported by the context of the various examples of quoted language, as well as

inconsistent with Supreme Court authority.           Carter held that a sentence of life

imprisonment with the possibility of parole for juvenile homicide offenders does not

violate the Eighth Amendment. This is the sentence Hartless received. We, therefore,

reject Hartless’ contention that his sentence is unconstitutional because he did not receive

an individualized sentencing hearing at which the circuit court expressly considered his

youth and attendant circumstances.

                                              II.

       Hartless further asserts that his sentence is illegal “due to the structure of Maryland’s

parole system, which has the power to turn any application for parole into a request for

executive clemency.” First, we observe that this issue was addressed at least implicitly in

Carter when the Court held that “the laws governing parole of inmates serving life

sentences in Maryland, including the parole statute, regulations, and a recent executive

order adopted by the Governor, on their face allow a juvenile offender serving a life

sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.’” 461 Md. at 307.


sentences were imposed “as a result of characteristics of the particular defendant” despite
the fact that the sentencing court did not consider the six identified factors.

        Furthermore, given that Carter held that a life sentence in Maryland is not
effectively a life without parole sentence, it is unclear what an individualized sentencing
requirement would accomplish. The trial court is required to impose a life sentence in
homicide cases. Md. Code (2002, 2012 Repl. Vol.), § 2-201(b) of the Criminal Law
Article. Although a sentencing court may choose to suspend part of a life sentence,
Hartless does not explain under what circumstances a court would be required to exercise
its authority to suspend a sentence pursuant to his proposed standard.
                                              16
       Furthermore, we disagree with Hartless’ contention that the statutes and regulations

governing executive clemency permit juvenile offenders serving a life sentence to be

diverted from parole consideration. Hartless bases his argument on Md. Code (1999, 2017

Repl. Vol.) § 7-206(3) of the Correctional Services Article (“CS”), which provides that the

Parole Commission “shall . . . review and make recommendations to the Governor . . .

concerning parole of an inmate under a sentence of life imprisonment; and . . . if requested

by the Governor, concerning a pardon, commutation of sentence, or other clemency.”

Hartless also cites COMAR 12.08.01.15(B), which provides that “[t]he Commission will

recommend to the Governor a commutation of a life sentence where the case warrants

special consideration or where the facts and circumstances of the crime justify special

consideration, or both.” Hartless asserts that these statutes and regulations “clearly

bestow” authority to treat an application for parole as an application for executive

clemency.

       We disagree with Hartless’ reading of the statute and the regulations. Executive

clemency is not a substitute for parole consideration. Rather, executive clemency is an

additional avenue of possible early release. The plain language of CS § 7-206(3) supports

this conclusion. The Commission “shall . . . review and make recommendations to the

Governor . . . concerning parole of an inmate under a sentence of life imprisonment.” Id.

This language is mandatory; the Commission is required to review and make

recommendations to the Governor regarding parole. In addition, the Commission, “if

requested by the Governor,” shall make and review recommendations “concerning a

pardon, commutation of sentence, or other clemency.” Id.         The Commission is only

                                            17
involved in making recommendations with respect to pardons, commutations, or other

clemency upon the request of the Governor.

       Similarly, the regulations cited by Hartless fail to support his assertion that parole

applications can be diverted into requests for executive clemency. COMAR 12.08.01.15

sets forth the circumstances under which the Commission considers a request for

commutation when “all legal remedies are exhausted” and permits the Commission to

“entertain these requests at a parole hearing, and in its discretion may deny the requests or

submit it to the Governor with a recommendation.” Nothing in the regulations cited by

Hartless permits the diversion of a parole request into a request for executive clemency.

       The Commission’s role in the context of clemency is entirely separate from the

Commission’s role in the context of parole. In our view, the clear and unambiguous

language of the statute and regulations do not support Hartless’ contention that the Parole

Commission is permitted to divert a meritorious parole request to a request for executive

clemency.9    We hold, therefore, that the laws and regulations governing executive

clemency in Maryland do not render Hartless’ sentence unconstitutional. Accordingly, the

circuit court did not err by denying Hartless’ motion to correct illegal sentence.

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR HOWARD COUNTY AFFIRMED.
                                           COSTS TO BE PAID BY APPELLANT.




       9
         As we discussed supra in footnote two, to the extent Hartless is challenging the
practice of the Parole Commission and the Governor in making parole decisions, his claim
is outside the scope of a motion to correct illegal sentence. Carter, supra, 461 Md. at 337.
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