Bowers v. State ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2719
September Term, 2014
JONATHAN EUGENE BOWERS
v.
STATE OF MARYLAND
Wright,
Kehoe,
Nazarian,
JJ.
Opinion by Wright, J.
Filed: March 30, 2016
Following a guilty plea in the Circuit Court for Somerset County on March 13,
2013, appellant, Jonathan Eugene Bowers, was sentenced to 10 years’ incarceration for
one count of involuntary manslaughter.1 On December 10, 2014, Bowers filed a motion
to correct an illegal sentence pursuant to Md. Rule 4-345 arguing that because the
manslaughter sentencing statute, Md. Code (2002, 2012, Repl. Vol.), Criminal Law
Article (“CR”) § 2-207, is ambiguous, he is subject to the rule of lenity which requires
that CR § 2-207 be read in his favor. In this case, Bowers asserts that CR § 2-207 should
be read as imposing two separate maximum sentences for voluntary and involuntary
manslaughter; since he is convicted of involuntary manslaughter, he argues he should be
subject to a maximum of 2 years in a local facility and, therefore, his 10-year sentence is
illegal. Bowers’s motion was denied by the circuit court on January 20, 2015. This
appeal follows.
On appeal, Bowers presents the following question for our review: 2
Did the circuit court properly deny Bowers’s motion to correct an illegal sentence?
1
Bowers was also sentenced to 3 years’ consecutive incarceration for one count of
conspiracy to manufacture a controlled dangerous substance, but that conviction is not
part of this appeal.
2
Bowers framed the question as follows:
Did the [c]ircuit [c]ourt err as a matter of law by denying Bowers’s
[m]otion when there is no binding judicial precedent holding the maximum
sentence for involuntary manslaughter is ten years, Crim. Law § 2-207 is
ambiguous, and Maryland’s [l]egislature has failed to remedy the ambiguity
in the law?
1
After a careful consideration of Maryland criminal law cases, authority, and legislative
history, we hold that Bowers’s 10-year sentence for involuntary manslaughter is not
illegal.
BACKGROUND
On October 27, 2012, at approximately 3:52 a.m., officers from the Somerset
County Sheriff’s Department responded to a report of an unconscious individual. When
they arrived, the officers saw Bowers seated on the side of the road with his hands in the
air. The unconscious individual was Bowers’s father, Jonathan David Bowers. The
senior Bowers was lying motionless and bleeding from his face.
When the officers returned to Bowers, he had his hands in the air, and said “he and
his father [] were arguing and they had gotten into a fight and it happened real fast.”
Witnesses on the scene reported that Bowers and his father were seen arguing earlier in
the evening, and that later on, during the altercation, Bowers repeatedly kicked his father,
uttering “in a distressed, emotional state that he hoped [his father] was dead.” Bowers
was escorted to the officers’ patrol unit in handcuffs. Approximately an hour later,
Bowers’s father was pronounced dead from “head and neck injuries as a result of
multiple blunt force impact.”
Bowers is a former United States Marine and has completed two combat tours in
Iraq and Afghanistan. Bowers suffers from post-traumatic stress disorder (“PTSD”)3 as a
3
PTSD is a mental health condition that can develop in “people who have seen or
lived through a shocking, scary, or dangerous event” and who fail to recover after the
trauma. The National Institute of Mental Health, Post-Traumatic Stress Disorder,
http://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml
2
result of the numerous traumatic events his experienced in combat. He contends that at
the time he killed his father, he “was in a dissociated rage state for the period following
the initial blows . . . [and] he was not consciously aware of his actions” as a result of the
PTSD.
Bowers was originally indicted for first-degree murder and a series of lesser
offenses. In exchange for the non-prosecution of the remaining charges, Bowers pleaded
guilty to one count of involuntary manslaughter. Bowers received a 10-year sentence to
be served in the custody of the Commissioner of Corrections. He filed this timely appeal
arguing that the imposition of a 10-year sentence for involuntary manslaughter is illegal.
DISCUSSION
In Maryland, manslaughter remains a common law crime with a prescribed
statutory penalty. State v. Gibson, 4 Md. App. 236, 241-44 (1968), aff’d, 254 Md. 399(1969). In other words, the elements for the unlawful act of manslaughter have not been
defined by the legislature but remain in its common law form.4 Moore v. State, 194 Md.
(last accessed Feb. 16, 2016). Those with PTSD may continue to feel stress and fear
even when they are not in any danger. Id. Individuals diagnosed with PTSD experience
symptoms such as “re-experiencing,” which includes flashbacks of the trauma and
frightening thoughts, and “arousal and reactivity,” which includes being easily startled,
angry outburst, and feeling “on edge.” Id.4
Involuntary manslaughter is a common law felony defined as an unintentional
killing done without malice. State v. Pagotto, 361 Md. 528, 548 (2000). The elements of
involuntary manslaughter have been set forth in the Maryland Criminal Pattern Jury
Instructions (“MPJI-Cr”), as follows:
3
App. 327, 370 (2010); rev’d on other grounds, 422 Md. 516 (2011). The statutorily
prescribed penalty for manslaughter is found in CR § 2-207 and provides, in pertinent
part:
Penalty
(a) A person who commits manslaughter is guilty of a felony and on
conviction is subject to:
(1) imprisonment not exceeding 10 years; or
(2) imprisonment in a local correctional facility not exceeding 2 years or
a fine not exceeding $500 or both.
INVOLUNTARY MANSLAUGHTER—UNLAWFUL ACT
The defendant is charged with the crime of involuntary manslaughter. In
order to convict the defendant of involuntary manslaughter, the State must
prove:
(1) that [[the defendant] [another participating in the crime with the
defendant]] [[committed] [attempted to commit]] a (unlawful act(s));
(2) that [the defendant] [another participating in the crime] killed (name);
and
(3) that the act resulting in the death of (name) occurred during the
[commission] [attempted commission] [escape from the immediate scene]
of the (unlawful act(s)).
MPJI-Cr 4:17.9B (brackets and parenthesis in original).
Voluntary manslaughter, on the other hand, is defined as “an intentional homicide,
done in a sudden heat of passion, caused by adequate provocation, before there has been
a reasonable opportunity for the passion to cool.” Cox v. State, 311 Md. 326, 331 (1988)
(citations omitted) (emphasis in original).
4
Bowers avers that the maximum penalty he should have received under the statute
should have been 2 years and, therefore, his 10-year sentence for involuntary
manslaughter is illegal. He argues that because the manslaughter statute provides what
he considers to be two possible maximum penalties, the language of the manslaughter
statute is inherently ambiguous. As a result of this ambiguity, Bowers argues that he is
entitled to the application of the rule of lenity.5 He urges us to adopt a construction of the
statute that places the 10-year maximum penalty provision on a voluntary manslaughter
conviction and the 2-year maximum penalty on an involuntary manslaughter conviction.
I. Bowers did not waive his illegal sentence claim by failing to object or
because he entered into a plea agreement.
In response to Bowers’s appeal, the State first argues that Bowers “waived his
illegal sentence claim by consenting to the terms of the plea agreement with the State.”
His knowing and voluntary plea agreement for involuntary manslaughter, the State
explains, required that he expressly acknowledge his understanding that “the maximum
penalty for involuntary manslaughter is 10 years in jail.” At sentencing, the State
continues, Bowers not only failed to object to the legality of his sentencing, but he
requested a sentence of up to 5 years’ imprisonment, which, while being within the
5
The rule of lenity is a judicial doctrine that guides statutory construction,
requiring that when construing an ambiguous criminal statute, a court should resolve the
ambiguity in favor of the defendant. Moore v. State, 163 Md. App. 305, 320 (2005). The
caritas awarded by the rule of lenity “is particularly appropriate where legislative history
of a statute or the relationship between two statutory provisions is not clear.” Id.While “the rule of lenity does not shed light on legislative intent[,] . . . [it] provides a
mechanism for resolving ambiguity when legislative intent cannot be determined to any
degree of certainty.” Gardner v. State, 420 Md. 1, 17 (2011) (citations omitted).
5
sentencing guidelines, exceeds what Bowers now argues to be the “maximum” 2-year
sentence for involuntary manslaughter. The State relies on Chaney v. State, 397 Md. 460(2007), for the proposition that a “sentence may not be attacked belatedly and collaterally
through a motion under [Md.] Rule 4-345(a), and . . . the defendant is not excused from
having to raise a timely objection in the trial court.”
We disagree with the State and do not find that Bowers waived his appeal of his
sentence. Md. Rule 4-345(a) permits the court to “correct an illegal sentence at any
time.” Thus, an appellate court “may correct an illegal sentence on appeal even if no
objection was made in the trial court,” Leopold v. State, 216 Md. App. 586, 609 (2014)
(citations omitted), because “a defendant who fails to object to the imposition of an
illegal sentence does not waive forever his right to challenge that sentence.” Walczak v.
State, 302 Md. 422, 427 (1985) (citing Coles v. State, 290 Md. 296, 303 (1981)). Further,
contrary to the State’s assertion, “a guilty plea would not alter the illegality of the
sentence imposed.” Stevenson v. State, 180 Md. App. 440, 447 (2008) (citations
omitted). The State’s reliance on Chaney is misguided because the Chaney Court
distinguished between deficient sentences and illegal sentences, limiting illegal sentences
“to those situations in which the illegality inheres in the sentence itself.” Chaney, 397
Md. at 466. The Court held that deficient sentences, not illegal sentences, “may not be
attacked belatedly and collaterally through a motion under [Md.] Rule 4-345(a).” Id. In
the instant matter, Bowers, by questioning the interpretation of the statute as a whole, is
challenging his sentence as one whose “illegality inheres in the sentence itself,” id., and
thus, he is well within his rights to challenge it on appeal.
6
II. Bowers’s 10-year sentence for involuntary manslaughter is not illegal.
In order for Bowers to receive the benefit of the rule of lenity, the Maryland
manslaughter statute must be considered ambiguous. See, e.g., Melton v. State, 379 Md.
471, 488 (2004) (noting that the rule of lenity applies to “ambiguous units of prosecution
and penalty provisions in criminal statutes”). If the language of the statute is clear and
unambiguous, the analysis of a statute is over. People’s Ins. Counsel Div. v. Allstate Ins.
Co., 408 Md. 336, 351 (2009). A statute is ambiguous if it is reasonably susceptible to
more than one meaning: if it is intrinsically unclear or if its application in a particular
circumstance is uncertain. Webster v. State, 359 Md. 465, 480-81 (2000). While the rule
of lenity permits an ambiguity in a criminal statute to be construed against the State and
in favor of the defendant, id., the rule of lenity cannot be used to “create an ambiguity
where none exists.” Jones v. State, 336 Md. 255, 261 (1994) (citations omitted). Only if
the statutory language is ambiguous is this Court required to look “beyond the statute’s
plain language in discerning the legislative intent.” Melton, 379 Md. at 477 (citing
Comptroller of the Treasury v. Clyde’s of Chevy Chase, Inc., 377 Md. 471, 483 (2003)).
Bowers argues that the manslaughter statute is ambiguous “because the words of
the statute are susceptible to more than one interpretation.” Webster, 359 Md. at 480. He
posits three possible interpretations of the manslaughter statute: (1) the interpretation of
the circuit court judge who heard Bowers’s case and sentenced him to 10 years, that there
are two possible maximum sentences; (2) that the maximum 2-year sentence is
“incorporated” into the provision authorizing a 10-year sentence, citing to advocates who
7
argue that the 2-year sentence is obsolete; and (3) that the General Assembly intended to
impose different maximum sentences for voluntary and involuntary manslaughter.
Bowers urges us to adopt the third option: that the intent of the General Assembly in
passing the manslaughter statute was to assign different penalties to the two classes of the
crime. He urges us to accept his interpretation, that “the intent of [CR] § 2-207 was to
impose a maximum sentence for involuntary manslaughter of no more than two years
and/or a fine of up to $500” (emphasis added), while the penalty for voluntary
manslaughter was intended to be “imprisonment not exceeding 10 years[.]” CR § 2-207.
For the reasons laid out below, we do not find Bowers’s argument persuasive.
i. The Maryland manslaughter statute is not ambiguous.
In the order and memorandum opinion denying Bowers’s motion to correct an
illegal sentence, the circuit court found that Bowers’s 10-year sentence was not illegal
because the manslaughter statute is not ambiguous. The circuit court concluded:
Defendant is mistaken. First and foremost, courts only resort to legislative
materials for statutory interpretation after courts have determined that the
plain language of the statute itself lends itself to at least two possible
reasonable interpretations. Webster v. State, 359 Md. 465, 480 . . . (2000).
The manslaughter statute provides two possible penalties for manslaughter:
up to ten (10) years in a penitentiary or up to two (2) years in a local facility
and $500 fine. Md. Code Ann., Crim. Law § 2-207 (a). There is nothing
on the face of this statute that lends itself to two possible interpretations.
The meaning is clear. There are two possible penalties: 10 years in prison
or 2 years in jail. The meaning of the statute itself is objectively clear,
even if one finds the rationale, or perhaps lack thereof, behind the statute
personally vexing.
8
(Emphasis added). We agree with the circuit court’s final decision but need to take the
opportunity to answer some of the questions the circuit court judge found frustrating in
deciding the issue presented in this appeal.
Bowers views the statute as providing two different sentences for manslaughter
that are at odds with each other. But actually, a straightforward reading of the statute
shows that it merely provides sentencing options that give a sentencing court broad
discretion as to whether defendant should serve the sentence in the Department of
Corrections or in a local facility and for how long. The statute makes no distinction
between voluntary and involuntary manslaughter because the category of manslaughter
has no bearing on the conviction or the ultimate sentence.
Legal authorities have consistently interpreted the manslaughter statute to carry
one penalty for a conviction of either voluntary or involuntary manslaughter.
Highlighting the relatively inconsequential distinction between voluntary and involuntary
manslaughter, Judge Charles E. Moylan, of this Court, explains in his authoritative
treatise on criminal homicide that the qualifiers “voluntary” and “involuntary” are merely
descriptive terms. Charles E. Moylan, Jr., Criminal Homicide Law § 8.5, at 155-56
(2002). Because manslaughter is an implicit, lesser included offense within murder, an
“indictment or criminal information on which [the defendant] stood trial will never even
have mentioned the word manslaughter, let alone have made some more subtle
distinction between voluntary manslaughter and involuntary manslaughter.”6 Id. Even in
6
Bowers was indicted for murder, but pled guilty to involuntary manslaughter, a
lesser included offense.
9
the rare instances where manslaughter is alleged per se, the charging document “will not
have made any distinction between voluntary manslaughter and involuntary
manslaughter.” Id. With regard to sentencing, Judge Moylan explains:
If a defendant is convicted of manslaughter in Maryland, the maximum
penalty provided by the Legislature is 10 years imprisonment and there is
no distinction between whether the conviction was for a voluntary
manslaughter or an involuntary one.
Id. Judge Moylan adds that the verdict in a manslaughter case will not, “nor should it,”
have made a distinction between voluntary and involuntary manslaughter. Id.
Additionally, in his widely cited authority on Maryland criminal law, Maryland Criminal
Jury Instructions and Commentary, Professor David E. Aaronson elucidates the
manslaughter statute. He explains:
In terms of penalty, there is no distinction between voluntary and
involuntary manslaughter. Pursuant to [CR] § 2-207(a) (formerly art. 27, §
387), a person convicted of involuntary manslaughter or voluntary
manslaughter is guilty of a felony and subject to a maximum of ten years
imprisonment or imprisonment for two years and/or a maximum fine of
$500.
1 David E. Aaronson, Maryland Criminal Jury Instructions and Commentary § 5.54(A),
at 902 (2015) (emphasis added).
Maryland courts have also affirmed the absence of any distinction in sentencing
between voluntary and involuntary manslaughter. In Connor v. State, 225 Md. 543(1961), the Court of Appeals reasoned that defendant Connor was not prejudiced by the
circuit court’s failure to differentiate between voluntary and involuntary manslaughter in
the jury instruction because:
10
the penalty statute (§ 387)[7] makes no distinction between the two, the
penalty for both grades of manslaughter is the same; nor is there any
distinction in the usual form of the possible verdicts in a homicide case . . .
between voluntary and involuntary manslaughter.
Id. at 558-59. After Connor, this Court considered State v. Gibson, 4 Md. App. 236, 241
(1968), aff’d, 254 Md. 399 (1969), in which it reiterated that “manslaughter, whether
voluntary or involuntary, is punishable by a term of imprisonment not exceeding ten
years.” See also, e.g., Forbes v. State, 324 Md. 335, 340 (1991) (“Common law
involuntary manslaughter carries a ten year maximum term of imprisonment and is a
felony[.]”).
Bowers contends, however, that the discussion in Connor concerning the penalty
for manslaughter is dicta because the differences in punishment of voluntary and
7
Md. Code, Art. 27, §§ 387 - 388C were repealed by Acts in 2002 and replaced
with CR § 2-207. The Revisor’s Notes for CR § 2-207 indicate that the “new
language [is] derived without substantive change from former Art. 27, §§ 387 and
387A.” Some of the reasoning behind the changes includes:
[I]n subsection (a) of this section, the former phrase “in the discretion of the
court” is deleted as implicit in setting a maximum penalty.
In subsection (a)(1) of this section, the former reference to a person being
subject to imprisonment “in the penitentiary” is deleted for consistency
within this article. Currently, inmates are sentenced to the custody of a unit
such as the Division of Correction and then are placed in a particular
facility. See [Md. Code (1999, 2008 Repl. Vol.), Correctional Services
Article] § 9-103.
In subsection (a)(2) of this section, the defined term “local correctional
facility” is substituted for the former term “jail” for consistency with the
Correctional Services Article.
CR § 2-207.
11
involuntary manslaughter were not before the Court. It was dicta, Bowers argues,
because the “Connor Court was not called upon to examine the construction of the
manslaughter statute or opine whether there was a difference in the penalties for the two
crimes.” Because Gibson relied on Connor for the premise that both types on
manslaughter are punishable by the same maximum sentence, Bowers maintains that
Gibson should not be relied upon either.
“Obiter dictum” is typically a judicial comment “that is unnecessary to the
decision in the case and therefore not precedential (although it may be considered
persuasive).” Black’s Law Dictionary 1240 (10th ed. 2014). However, the Court of
Appeals has previously explained that “[w]hen a question of law is raised properly by the
issues in a case and the Court supplies a deliberate expression of its opinion upon that
question, such opinion is not to be regarded as obiter dictum although the final judgment
in the case may be rooted in another point also raised by the record.” Schmidt v. Prince
George’s Hosp., 366 Md. 535, 551 (2001) (citations omitted). A matter is not dictum if
“the question was directly involved in the issues of law . . . and the mind of the Court was
directly drawn to, and distinctly expressed upon the subject.” Id. at 552 (citing Carstairs
v. Cochran, 95 Md. 488, 499 (1902). Upon our review of Connor and Gibson, we find
that their discussion of the manslaughter penalty “reflects the application of this Court’s
judicial mind,” id., and we therefore disagree with Bowers’s contention that those cases
are not to be relied upon.
12
Our review of case law and legal authority on Maryland criminal law indicates a
consistent and uniform understanding of the manslaughter sentencing statute.
Accordingly, we disagree with Bowers that the manslaughter statute is capable of more
than one interpretation and is, therefore, ambiguous. Webster, 359 Md. at 480. “Because
the text of the statute is unambiguous, we need not look beyond the plain language of the
statute to discern the intent of the Legislature.” Dixon v. Dep’t of Pub. Safety & Corr.
Servs., 175 Md. App. 384, 412 (2007) (citation omitted). However, even if we were to
determine that the statute is ambiguous and would then necessarily review the legislative
history of the manslaughter statute, the legislative history would support our position that
a penalty under the statute is the same whether the conviction was for voluntary or
involuntary manslaughter.
ii. The history of the Maryland manslaughter statute does not support Bowers’s
construction.
Legislation is created with a particular objective or purpose. Kaczorowski v.
Mayor & City Council of Baltimore, 309 Md. 505, 513 (1987). In order to determine the
purpose of the statute, we “may and often must consider other ‘external manifestations’
or ‘persuasive evidence,’ including a bill’s title and function paragraphs, amendments
that occurred as it passed through the legislature, its relationship to earlier and subsequent
legislation, and other material.” Id. at 515.
a. Early history of Maryland’s manslaughter statute.
English Common Law defined manslaughter generally as the unlawful killing of a
person without the express or implied malice found in murder and split the crime into two
13
degrees: voluntary and involuntary. William Blackstone, Commentaries on the Laws of
England: Book 4: Public Wrongs, Homicide (1770). While murder and many other
crimes were punishable by death at common law, manslaughter was a crime that had the
“benefit of clergy,” a form of relief available to mitigate penalties if the accused repented.
The punishment would then change from death to a lesser penalty, such as branding of
the hand or forfeit of certain possessions, after which the accused would be released after
being pardoned. Jeffrey K. Sawyer, “Benefit of Clergy” in Maryland and Virginia, 34
Am. J. Legal Hist. 50-54 (1990).
In 1809, Maryland enacted the first piece of legislation to systematically deal with
the punishment of crimes (the “1809 Act” or the “Act”). John Brumbaugh, A New
Criminal Code for Maryland?, 23 Md. L. Rev. 1, 2 (1963). The 1809 Act abolished the
benefit of clergy8 and replaced the flexibility in punishment it offered with sentencing
range guidelines for judges, who could now sentence convicted individuals to
workhouses and penitentiaries. 1809 Md. Laws, Chap. 138 §11, p. 468. The Act imposed
a 10-year imprisonment as a maximum penalty for manslaughter. Md. Laws 1809, Chap.
138, §4(3), at 460. It read, in pertinent part: “Every person duly convicted of the crime of
manslaughter, shall be sentenced to undergo a confinement in the said penitentiary for a
8
The first draft of the Maryland bill abolishing clergy makes very clear the
connection between the new sentencing procedures and the abolition of clergy. “And be
it enacted that all claims to dispensation from punishment by benefit of clergy, (in as
much as they are compatible with the principle of strict justice) shall be and hereby are
forever abolished.” Sawyer, p. 68. Md. Code Ann., Art. 27, sec. 626 (1957, 1952 Repl.
Vol.) currently restates the abolishing of clergy.
14
period not more than ten years, to be dealt with as herein after directed.” Id. For most
common law crimes, the 1809 Act declared the penalty for the particular crime without
defining the crime itself. Id.; see Brumbaugh, 23 Md. L. Rev. at 3 (“The act is concerned
primarily with the problem of punishment. In many cases the statute, when it deals with
particular crimes, does nothing more than refer to a common law crime, without defining
it, and announce a penalty.”). Thus, the Act did not define manslaughter nor did it
distinguish between voluntary or involuntary manslaughter. 1809 Md. Laws, Ch. 138,
§4(3), at 460. In 1860, the manslaughter sentencing law was changed to read:
Every person convicted of the crime of manslaughter, shall be sentenced to
the penitentiary for not more than ten years nor less than eighteen months.
This version of the statue is noteworthy, as it provides for the court, both upper and lower
bounds, affording ample discretion.
In the same year, Maryland Governor Thomas H. Hicks delivered a Message of
the Governor to the Maryland General Assembly calling for shorter minimum sentences
in State penitentiaries for certain crimes because of “unjust, indiscriminating severity” of
previous minimum mandatory penalties. He stated, “I see no reason why there should not
be shorter terms of service in the Penitentiary than two years or eighteen months, the
minimum allowed by law; at least as long as we have no House of Correction for the
offenses of lighter grade.” Message of the Governor to the Maryland General Assembly,
January Session 1860, Maryland Senate Journal of Documents, 1860, at 7-8. Shortly
thereafter, however, Maryland realized the financial burden that shorter sentences in the
15
State penitentiary placed on the State budget. As a result, Governor Hicks called for the
shorter sentences to be served in local jails rather than the State penitentiary:
In my communication to the General Assembly at its session in January,
1860, I suggested the propriety of punishing crimes of lesser grade by
confinement in the Penitentiary for a shorter period than the minimum then
allowed by law. The experiment has been made, and has not met my
expectation. The large number of criminals of this class sentenced to the
Penitentiary has imposed upon its finances a bur[d]en which they cannot
well endure . . . .
Perhaps the ends of justice might be fully attained by punishing this class of
offenders by short terms of imprisonment in the jails or almshouses, at hard
labor. In this way they might, at least, under an efficient system, earn
sufficient to pay the cost of maintaining them. If not, the expense could be
lightly borne by the several counties and the city of Baltimore, and thus the
resources of the Penitentiary be relieved from a heavy charge.
Message of the Governor to the Maryland General Assembly, January Session 1862,
Maryland Senate Journal of Documents, 1863, at 6-7. Following the Message of the
Governor, the Maryland legislature changed the manslaughter penalty in 1865 to
language substantially similar to the current CR § 2-207. It read:
Every person convicted of the crime of manslaughter shall be sentenced to
the penitentiary for not more than ten years, or in the discretion of the court
may be fined not more than five hundred dollars, or be imprisoned in jail
for not more than two years, or be fined and imprisoned in jail.
Md. Laws 1864, Ch. 39. The courts, thus, had broad discretion in sentencing individuals
convicted of manslaughter, a crime which itself varied in offensiveness based on the facts
of individual cases, to imprisonment in either the State correctional facility or in the local
jail.
We further note that the judicial discretion in sentencing seen in the manslaughter
statute was similarly applied in other offenses at the time. A conviction for rogues and
16
vagabonds carried a sentence “to the penitentiary for not less than one month nor more
than two years, or to imprisonment in jail, at the discretion of the court, for a like term.”
Md. Code of Public Gen. Laws (1862) Art. 72, § 187. Likewise, a conviction for treason
carried a sentence to “penitentiary for a term not less than six months or more than two
years, or to a fine not less than one hundred nor more than five hundred dollars, at the
discretion of the court.” Md. Code of Public Gen. Laws (1862) Art. 72, § 130; see also
1888 Md. Code of Public General Laws, Art. 27, § 156 (the penalty for larceny required a
sentence to penitentiary “for not less than one year nor more than fifteen years,” but
where the value of the stolen goods was less than fifty dollars, the court had discretion to
sentence to “imprisonment in jail or in the house of correction instead of the
penitentiary”). Because this discretion existed for other crimes that are not necessarily
split like manslaughter, it reinforces our view that there was no legislative intent to
differentiate sentencing between voluntary and involuntary manslaughter.
b. Recent attempts by the Maryland General Assembly to change or modify
the manslaughter statute.
Bowers supports his notion that “the Legislature intended to impose different
maximum sentences for voluntary and involuntary manslaughter” by referencing the
Revisor’s Note on CR § 2-207 in which the Criminal Law Article Review Committee
(“the Committee”) notes:
the distinction between the general term of imprisonment available for a
manslaughter conviction under subsection (a)(1) of this section and the
term for imprisonment in a local correctional facility under subsection
(a)(2) of this section is substantial, perhaps reflecting an implicit distinction
between sentencing for voluntary and involuntary manslaughter.
Generally, distinctions between imprisonment in a State or local
17
correctional facility have been eliminated in light of [Md. Code (1999,
2008 Repl. Vol.) Correctional Services (“CS”)] §§ 9-104 and 9-105, which
govern the place of custody based on the length of imprisonment imposed.
The General Assembly may wish to clarify which situations warrant
sentencing to a longer term in a State correctional facility or for a shorter
term to a local correctional facility.
CR § 2-207 (emphasis added). We find this Note to be much less decisive than Bowers
maintains. The language itself is inconclusive; the Committee indicates that the two
sentencing maximums in local correctional facilities and in the Department of
Corrections are “perhaps” indicative of a bifurcated manslaughter statute. The
speculation by the Committee alone, particularly in light of the strong history to the
contrary, is not enough to convince us that the Legislature intended to impose different
penalties for voluntary and involuntary manslaughter. Moreover, as the circuit court
points out, the Note appears to focus on the location of the incarceration (local facility or
a penitentiary), rather than the length of the sentence.9
In 2009, in a bill endorsed by the Office of the Attorney General and the Office of
the Public Defender, the General Assembly re-examined the manslaughter sentencing
statute in an attempt to codify the common law offenses of voluntary manslaughter and
involuntary manslaughter as separate offenses with separate penalty provisions. S.B.
9
The Note highlights the discrepancy caused by CS § 9-105, which mandates that
an individual’s sentence to a local correctional facility must be “for a period of not more
than 18 months[.]” Whether CS § 9-105 conflicts with CR § 2-207 is not at issue in this
case because Bowers was sentenced to 10 years in a State correctional facility, and thus
the 18-month maximum sentence in a local facility has no application to him.
18
105, 2009 Leg., 426th Sess. (Md. 2009). The General Assembly, however, declined to
pass the bill, and the law remains unchanged.
In the 2009 bill hearing, one senator discussed the value of maintaining the court’s
discretion in sentencing. His perspective was that judges have discretion on the bench
because they are the ones hearing the facts of each individual case. Accordingly, if a
judge determines that an individual who committed a crime that falls under the
involuntary manslaughter category is deserving of more than 2 years in a local
correctional facility, then the judge is in the best position to make that determination.
As Bowers points out, there have been three unsuccessful attempts to change the
manslaughter statute in the last 17 years.10 He, nevertheless, argues that the Legislature’s
failure to change the statute is not “evidence of the Maryland General Assembly’s tacit
approval of a 10-year maximum sentence for involuntary manslaughter.” We disagree.
While we acknowledge that a bill may fail to pass through the General Assembly for
many reasons, in some instances, “the failure to enact legislation is persuasive evidence
of legislative intent.” Moore v. State, 388 Md. 623, 641 (2005) (citing Stearman v. State
10
Bowers also discusses two more bills that came before the General Assembly.
First, a 1998 bill sought to specify different maximum punishments for voluntary and
involuntary manslaughter. The bill proposed a conviction for “involuntary manslaughter
. . . is subject to imprisonment for not more than 10 years or a fine of not more than
$5,000 or both,” and for “voluntary manslaughter . . . is subject to imprisonment for not
more than 15 years or a fine of not more than $10,000 or both.” Md. S.B. 347-
1998(B)(1) & (2). The bill failed to pass both houses of the General Assembly.
Second, a 2012 bill was presented before the General Assembly to clarify CR § 2-
207. The bill sought to bridge the difference between the 2-year maximum in a local
facility provided by CR § 2-207 and the 18-month maximum provided in CS § 9-105. As
we discussed previously, there is no need for us to reach this question today.
19
Farm Mut. Auto. Ins. Co., 381 Md. 436, 455 (2004) (“The refusal of the Legislature to act
to change a [statute] . . . provides . . . support for the Court to exercise restraint and refuse
to step in and make the change”); State v. Bell, 351 Md. 709, 723 (1998) (“Therefore, by
declining to adopt the proposed language of the amending bill, the Legislature clearly did
not intend” to adopt the result being urged) (additional citations omitted)). Where the
General Assembly has time and again refused to enact bills that aim to change something
specific, legislative inaction becomes “very significant.” Id. (citations omitted). This
Court will not adopt a position that the legislature has repeatedly rejected. Id. (citing
Halliday v. Sturm, 368 Md. 186, 209 (2002) (additional citations omitted)). The
legislative history of the manslaughter sentencing statute provides no evidence that the
present statute distinguishes between voluntary and involuntary manslaughter.
III. Conclusion
Bowers will not be able to receive the benefit of the rule of lenity because the
Maryland manslaughter statute is not ambiguous. The General Assembly has, throughout
the years, been presented with several opportunities to change the language of the statute
but has time and again kept the same words and phrasing. This indicates to us that the
Legislature had no intent, in the current manifestation of CR § 2-207, to differentiate
punishment between voluntary and involuntary manslaughter. As a result, Bowers’s 10-
20
year sentence for involuntary manslaughter is within the limits of the statute and,
therefore, not illegal.
JUDGMENT OF THE CIRCUIT COURT
FOR SOMERSET COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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