Twigg v. State

Donald R. Twigg v. State, No. 3, September Term 2015
CRIMINAL LAW — MERGER — For crimes committed under a multi-purpose
criminal statute, such as the pre-1990 version of the child abuse statute, only one of the
lesser included offenses, (when none merges with the other(s)), must merge for sentencing
purposes with the greater offense under the Blockburger required evidence test. When it
is unclear upon which lesser included offense the jury relied in convicting a defendant of
child abuse under the pre-1990 statute, only the offense carrying the greatest maximum
sentence merges with child abuse under State v. Johnson, 442 Md. 211 (2015). Here,
Petitioner’s sentence for second degree rape is merged into the sentence for the greater
inclusive offense of child abuse.
CRIMINAL LAW — APPELLATE COURT’S DISCRETION TO REMAND —
Under Maryland Rule 8-604, appellate courts have discretion to remand for resentencing
on a conviction that was not challenged by a defendant on appeal. Resentencing on an
unchallenged offense does not violate double jeopardy principles because the defendant
lacks an expectation of finality in his total sentence by appealing other aspects of his
sentence. In this case, the Court of Special Appeals did not err by remanding for a
resentencing hearing on Petitioner’s unchallenged child abuse conviction.
CRIMINAL LAW — STATUTORY CONSTRUCTION — AGGREGATE
APPROACH TO VIEWING INCREASE — Md. Code Ann., Cts. & Jud. Proc. § 12-
702(b) generally provides that, on remand for a new sentencing hearing, the court “may
not impose a sentence more severe than the sentence previously imposed for the offense[.]”
In a case involving multiple counts of conviction, at which one or more sentences have
been vacated and the case is remanded for a new sentencing hearing, the court violates §
12-702(b) only when the new sentence on the remaining counts is greater in the aggregate
than the originally imposed sentence.
Circuit Court for Charles County
Case No. 08-K-10-001000
Argued: September 3, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 3
September Term, 2015
DONALD R. TWIGG
v.
STATE OF MARYLAND
Barbera, C.J.,
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T. (Retired,
Specially Assigned),
JJ.
Opinion by Barbera, C.J.
Filed: March 28, 2016
This case presents several issues relating to merger of sentences in criminal cases
under the “required evidence test” of Blockburger v. United States, 284 U.S. 299 (1932).
The issues have their genesis in Petitioner Donald R. Twigg’s conviction of child abuse,
second degree rape, third degree sexual offense, and incest against his daughter. As
charged, any one of the three sexual offenses could have provided the basis for the child
abuse conviction. The trial court sentenced Petitioner to a total of forty years’
incarceration: consecutive terms of twenty years for second degree rape, ten years for third
degree sexual offense, and ten years for incest; for child abuse, the court imposed a fifteen-
year sentence, but suspended the entirety of that time in favor of five years’ probation.
We must decide whether all, or only one, of the sexual offenses merge for sentencing
purposes with the sentence for child abuse. We also must decide whether Maryland law
permits a remand to afford the trial court the opportunity to consider resentencing on the
child abuse conviction and, if so, the limits within which the court must operate when
considering a new sentence for that crime. We hold that only the sentence Petitioner
received for second degree rape must be vacated, by application of State v. Johnson, 442
Md. 211 (2015). We further hold that Maryland Rule 8-604(d) authorizes a remand for a
new sentencing hearing and, at that hearing, the sentencing court has the discretion to
resentence Petitioner to a term of active incarceration on the child abuse conviction.
I.
The Trial
In 2011, Petitioner was tried before a jury in the Circuit Court for Charles County
on an indictment charging that he committed the crime of child abuse of his daughter, by
engaging in various sexual offenses against her during the period spanning March 25, 1974,
and January 1, 1979. Each of the charged sexual offenses was alleged to have occurred
within a particular subpart of that nearly five-year timeframe, while his daughter was
between the ages of nine and fourteen years old.
We need not detail all of the evidence presented at trial. It is enough to say that the
jury heard evidence, primarily through the testimony of the daughter, from which the jury
could find beyond a reasonable doubt that during the identified timeframes Petitioner
committed the following four crimes.1 Between July 1, 1976, and March 25, 1978, he
committed a third degree sexual offense2 by touching his daughter’s vagina and making
1
We have not included two additional charges that are no longer of concern. The trial
court granted a judgment of acquittal as to the charges of second degree sexual offense and
carnal knowledge, the latter of which, effective July 1, 1976, was subsumed within the
then-newly enacted rape statute.
2
Then codified in Article 27, § 464B, third degree sexual offense provided in relevant part:
(a) What constitutes. — A person is guilty of a sexual offense in the third
degree if the person engages in sexual contact:
...
(3) With another person who is under 14 years of age and the person
performing the sexual contact is four or more years older than the
victim.
(b) Penalty. — Any person violating the provisions of this section is guilty
of a felony and upon conviction is subject to imprisonment for a period of
not more than 10 years.
Article 27, § 461 defined sexual contact as follows:
(f) Sexual contact. — “Sexual contact” as used in §§ 464B and 464C, means
the intentional touching of any part of the victim’s or actor’s anal or genital
areas or other intimate parts for the purposes of sexual arousal or gratification
or for abuse of either party and includes the penetration, however slight, by
any part of a person’s body, other than the penis, mouth, or tongue, into the
genital or anal opening of another person’s body if that penetration can be
reasonably construed as being for the purposes of sexual arousal or
2
her touch his penis. Between July 1, 1976, the effective date of the then-new rape statute,
and March 25, 1978, he committed second degree rape.3 Between March 25, 1974, and
January 1, 1979, he committed incest4 by engaging in vaginal intercourse with his daughter.
And, throughout that time he committed child abuse “by engaging in sexual molestation
and sexual exploitation.”5
gratification or for abuse of either party. It does not include acts commonly
expressive of familial or friendly affection, or acts for accepted medical
purposes.
3
Then codified in Article 27, § 463, second degree rape provided in relevant part:
(a) What constitutes. — A person is guilty of rape in the second degree if the
person engages in vaginal intercourse with another person:
...
(3) Who is under 14 years of age and the person performing the act is
at least four years older than the victim.
(b) Penalty. — Any person violating the provisions of this section is guilty
of a felony and upon conviction is subject to imprisonment for a period of
not more than 20 years.
4
Incest, at the time the offense was committed, was codified in Article 27, § 335 as follows:
Every person who shall knowingly have carnal knowledge of another person,
being within the degrees of consanguinity within which marriages are
prohibited by law in this State, shall be deemed guilty of felony, and upon
conviction thereof shall be punished by imprisonment in the penitentiary for
a term not less than one nor more than ten years, in the discretion of the court.
5
Then codified in Article 27, § 35A, the child abuse statute provided in relevant part:
(a) Penalty. — Any parent, adoptive parent or other person who has the
permanent or temporary care or custody or responsibility for the supervision
of a minor child under the age of eighteen years who causes abuse to such
minor child shall be guilty of a felony and upon conviction shall be sentenced
to not more than fifteen years in the penitentiary.
(b) Definitions. — Wherever used in this section, unless the context clearly
indicates otherwise:
...
2. “Child” means any person under the age of eighteen (18) years.
...
3
At the close of all the evidence, the court instructed the jury that, to convict
Petitioner of the crime of “sexual child abuse,” the jury was required to find, among other
elements, that Petitioner engaged in sexual molestation or exploitation of his daughter. The
court further instructed that the dates identified in the charging document for child sexual
abuse “cover the entire period,” that child sexual abuse is “a generic type of charge,” and
that “the other [sexual offense] charges are specifications within that generic charge.” The
State argued in closing that Petitioner committed the “sexual molestation or sexual
exploitation” element of child abuse by engaging in any of the charged sexual offenses.
The State did not seek to prove or argue in closing that the child abuse charge was—or
could be—based on evidence of molestation or exploitation other than that which the State
offered in support of the various charged sexual offenses.
The jury completed a verdict sheet finding Petitioner guilty of child abuse, second
degree rape, third degree sexual offense, and incest. The jury was not directed either by
the judge or on the verdict sheet to specify which of the charged sexual offense(s) satisfied
the molestation/exploitation element of the child abuse conviction. As mentioned at the
7. “Abuse” shall mean any: (A) physical injury or injuries sustained by
a child as a result of cruel or inhumane treatment or as a result of
malicious act or acts by any parent, adoptive parent or other person who
has the permanent or temporary care or custody or responsibility for
supervision of a minor child (B) any sexual abuse of a child, whether
physical injuries are sustained or not.
8. “Sexual abuse” shall mean any act or acts involving sexual
molestation or exploitation, including but not limited to incest, rape, or
sexual offense in any degree, sodomy or unnatural or perverted sexual
practices on a child by any parent, adoptive parent or other person who
has the permanent or temporary care or custody or responsibility for
supervision of a minor child.
4
outset, the court imposed consecutive sentences for rape, third degree sexual offense, and
incest, and a fifteen-year suspended sentence for child abuse, for a total of forty years of
active incarceration.
The Appeal
Petitioner argued before the Court of Special Appeals that he was entitled to have
the “separate convictions and/or sentences” for the three sexual offenses vacated as lesser
included offenses of that crime. He rested the argument on the Fifth Amendment provision,
held applicable to the states, that “[n]o person shall . . . be subject for the same offence to
be twice put in jeopardy of life or limb,” requiring merger of a lesser included offense as
set forth in Blockburger. For that proposition, Petitioner relied primarily upon the
reasoning and holding of Nightingale v. State, 312 Md. 699 (1988). The Court of Special
Appeals agreed with Petitioner that he was entitled to have all three sexual offenses—
second degree rape, third degree sexual offense, and incest—vacated, under Nightingale.
Twigg v. State, 219 Md. App. 259, 272 (2014). At the time the intermediate appellate court
issued Twigg, we had not yet decided State v. Johnson, 442 Md. 211 (2015).
The Court of Special Appeals further held that,
(1) under the circumstances of the instant case, this Court has the
discretionary authority to remand the case to the trial court for the purpose
of imposing a new sentence on [Petitioner] for his sexual child abuse
conviction, and (2) on remand, the trial court may impose any sentence it
deems proper up to the maximum penalty prescribed by the child abuse
statute for such offense committed from July 1, 1974 through January 1,
1979.
219 Md. App. at 282.
The Court of Special Appeals concluded that resentencing on the greater offense is
5
permissible because the trial court had failed to merge the lesser offenses, id. at 284-85,
reasoning that the trial judge is entitled to consider the “total sentence for all of the
convictions together,” id. at 287. The Court of Special Appeals explained that it would
defy common sense to conclude that Petitioner’s sentence would be unlawfully increased,
even if the judge on remand were to impose the maximum fifteen years of active
incarceration on the child abuse conviction, because Petitioner’s total sentence would not
exceed the total forty-year sentence imposed originally. Id.
Both Petitioner and the State sought issuance of a writ of certiorari to review the
judgment of the Court of Special Appeals. Petitioner asks:
1. When an appellate court holds that a lesser included offense (or offenses)
should have been merged into the greater offense and it vacates the sentences
that were merged for the lesser offense (or offenses), does the appellate court
have authority to vacate the sentence imposed for the greater offense and
remand for re-sentencing/new sentencing for that offense where there has
been no challenge on appeal to the legality of the conviction or sentence for
the greater offense?
2. In this case, did the Court of Special Appeals have authority and/or discretion
to remand the case for re-sentencing/new sentencing on the greater offense
of child sexual abuse after correctly holding that the lesser included offenses
of second degree rape, third degree sexual offense, and incest must merge
into child sexual abuse for sentencing purposes?
The State asks:
Where Twigg was convicted of child sexual abuse and three statutory sexual
offenses (incest, second degree rape, and third degree sexual offense) – any
one of which supports a conviction for child sexual abuse – should only one
of the statutory sexual offenses merge for purposes of sentencing, rather than
all three?
We answer “yes” to all three questions and, accordingly, affirm in part and reverse in part
the judgment of the Court of Special Appeals. We begin by addressing the State’s cross-
6
petition on merger and then will address Petitioner’s two questions on resentencing.
II.
The State urges us to reverse the Court of Special Appeals’s holding that all of the
sexual offense convictions merge for purposes of sentencing. In the State’s view, when,
as happened here, the jury did not specify which of the sexual offenses satisfied the
molestation/exploitation element of child abuse, the law requires that only one of those
offenses, in this case, second degree rape, merges for sentencing purposes with the
conviction and sentence for child abuse. For that proposition, the State relies on our
recently-decided Johnson opinion. The State further argues that Nightingale does not
mandate a different result.6 Petitioner counters that Johnson does not dictate the outcome
the State seeks and, contrary to the State’s reading of Nightingale, application of that case
requires that the sentences for all three of the sexual offenses—second degree rape, incest,
and third degree sexual offense—merge with the sentence for child abuse.
Resolution of this dispute requires us first to determine what we did—and did not—
decide in Nightingale insofar as it relates to the State’s cross-petition.7
6
The General Assembly effectively overruled our decision in Nightingale by amending the
child abuse statute in 1990 to permit separate sentences for child abuse and any underlying
crime(s) that establish the gravamen of the child abuse conviction. Laws of Maryland, ch.
604 (1990) (enacted by H.D. 815, 1990 Leg., 400th Sess. (Md. 1990)); see also Tribbitt v.
State, 403 Md. 638, 652-53 (2008) (discussing the amendment). The State does not
challenge here the holding of the Court of Special Appeals that the 1990 amendment of the
child abuse statute was not intended to apply retroactively. See Twigg v. State, 219 Md.
App. 259, 278 (2014).
7
Petitioner raises in his Cross-Respondent’s Brief/Reply Brief a preliminary “Motion to
dismiss the question presented in State’s Conditional Cross-Petition.” He asserts that
because child sexual abuse is now governed by its own statute, which contains an anti-
7
Nightingale (and Myers) v. State
There were two petitioners in Nightingale, Carol Nightingale and Albert James
Joseph Myers, Sr. Both were charged with committing child abuse under the then-extant
statute, see supra note 5, by engaging in sexual molestation or exploitation of their
respective daughters.
Petitioner Nightingale was tried before a jury on charges of second degree rape,
incest, common law battery, perverted practice, and second degree sexual offense, in
addition to child abuse. All of the crimes were alleged to have been committed “on or
about 1977 to 1982” when his daughter was “under 14 years of age.” 312 Md. at 700-01.
The victim “testified that on various occasions during the years in question her father had
engaged in sexual activity with her, beginning with fondling and culminating with vaginal
intercourse, fellatio, and cunnilingus.” Id. at 701. Nightingale was acquitted on the charges
of battery, perverted practices, second degree rape, and incest. The jury found him guilty
of child abuse and second degree sexual offense. For those crimes, the court imposed
consecutive sentences of fifteen years’ imprisonment. Id.Petitioner Myers was tried before a jury on three consolidated criminal
informations, only two of which contained charges resulting in guilty verdicts. Id. at 701-
02 & n.2. The first of those, Number 7317, charged Myers with committing child abuse
merger provision, “[t]here is no issue of public interest or import to be resolved” by
answering the State’s question; moreover, if we decide that question in the State’s favor,
he will have suffered the “extreme prejudice” of facing a more severe sentence (a thirty-
five-year maximum imprisonment) than what he faced on remand from the judgment and
mandate of the Court of Special Appeals (a fifteen-year maximum imprisonment). For
reasons that will be made clear in this opinion, we deny the motion.
8
as well as second, third, and fourth degree sexual offenses upon his daughter; the charges
were alleged to have occurred “between November, 1983 through February, 1985,” while
she was under fourteen years of age. Number 7319 charged Myers with child abuse by
committing third and fourth degree sexual offenses against his daughter in a single incident
“on or about August 3, 1985,” during which, the daughter testified, Myers “thrust his hand
inside her panties and touched her vagina.” Id. at 701-02. The jury found Myers guilty of
all the charges in Number 7317 and 7319. In case Number 7317, the court imposed four
concurrent sentences, the longest of which was twenty years of incarceration for second
degree sexual offense. In case Number 7319, the court imposed three concurrent sentences,
the longest of which was fifteen years for child sexual abuse, with ten of those years
suspended, and made the sentences consecutive to those in Number 7317. Id. at 702.
Both Nightingale and Myers argued before this Court that, “for double jeopardy
purposes, their convictions and sentences for child abuse and sexual offenses cannot stand
because the crimes are the same under the required evidence test of Blockburger.” Id. at
702. We described that test as follows:
If each offense requires proof of a fact which the other does not, the offenses
are not the same and do not merge. However, if only one offense requires
proof of a fact which the other does not, the offenses are deemed the same,
and separate sentences for each offense are prohibited.
Id. at 703 (quoting Newton v. State, 280 Md. 260, 268 (1977)).8 We noted, with regard to
8
The Blockburger Court used essentially the same language: “The applicable rule is that
where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not.” Blockburger
v. United States, 284 U.S. 299, 304 (1932).
9
the then-applicable child abuse statute:
[C]hild abuse, taken in its broadest sense, involves certain elements (e.g.,
physical harm and a particular relationship between actor and victim) that
none of the sexual offenses do. By the same token, each of the sexual
offenses requires some elements (e.g., performance of a sexual act or sexual
contact and sexual arousal or gratification) that child abuse does not. But the
analysis does not end at this point. When a multi-purpose criminal statute is
involved, we refine it by looking at the alternative elements relevant to the
case at hand.
312 Md. at 705.
This “alternative elements” approach was not newly minted in Nightingale; the
Court had employed it in several prior cases including, for example, Newton v. State.9
Petitioner Newton had been convicted of and separately sentenced for felony murder and
the underlying attempted robbery of the murder victim. Newton, 280 Md. at 262-63. We
noted in Nightingale that the Newton Court had “looked to the alternative elements
involved in the felony murder” variety of first degree murder and, because punishment for
both the “underlying felony and murder committed in the perpetration of that felony
constitute, under the required evidence test, double punishment for the same offense in
violation of the Fifth Amendment’s double jeopardy clause,” the underlying felony
conviction merged with the murder conviction. Nightingale, 312 Md. at 705 (quoting
Newton, 280 Md. at 273-74). We summarized the alternative elements analysis employed
in Newton and other cases involving multi-purpose statutes:
When, as here, a multi-purpose criminal statute is involved, the court must
construct from the alternative elements within the statute the particular
formulation that applies to the case at hand. It should rid the statute of
9
See also State v. Boozer, 304 Md. 98, 104 (1985); Thomas v. State, 277 Md. 257, 269
(1976).
10
alternative elements that do not apply. It must, in other words, treat a multi-
purpose statute written in the alternative as it would treat separate statutes.
The theory behind the analysis is that a criminal statute written in the
alternative creates a separate offense for each alternative and should
therefore be treated for double jeopardy purposes as separate statutes would.
If, when we look at the applicable alternative elements, a lesser offense in
effect becomes one of the elements of another offense, the Blockburger test
is met. It is met because, by virtue of that fact, all the elements of the lesser
offense must be established to prove the other; only the other offense has any
additional elements.
Id. at 706-07 (internal quotation marks and citation omitted).
We recognized that sexual offense statutes, as well as the then-extant child abuse
statute, are multi-purpose statutes, in that all of them punish “several different types of
conduct, which may be treated as separate statutory offenses for double jeopardy
purposes.” Id. at 706. We identified the elements of each of the relevant crimes charged
in Nightingale’s and Myers’s cases and considered those elements in light of the evidence
produced, the court’s instructions, the prosecutor’s closing arguments, and, in
Nightingale’s case, how the judge answered the jury’s question, asking whether “‘touching,
in the wrong places, alone, constitute[s] child abuse as described in our instructions.’” Id.
at 707-08 (alteration in original).
With respect to criminal information Number 7319 in Myers’s case, we reasoned
that “the jury must have found a sexual offense as the basis of the child abuse verdict,
because that information involved but a single incident of sexual contact.” Id. at 708. As
for the remaining child abuse charges (in Nightingale’s case and in information Number
7317 in Myers’s case), in each, the child abuse charge spanned a period of time. With
respect to those child abuse charges, we were unable to discern whether the juries had based
11
their guilty verdicts on one or more of the charged sexual offenses or, instead, some other
form of sexual molestation or exploitation not rising to the level of a sexual offense. We
said:
[A] jury could have reached various decisions as to child abuse and sexual
offenses, all of which were reflected in general verdicts of guilty.
The problem, then, is that we cannot tell whether these general
verdicts of guilty were based on the use of sexual offenses as lesser included
offenses (or elements) of child abuse, or whether the child abuse verdicts
were based on other reasons (e.g., some sort of sexual molestation which the
juries thought did not rise to the level of a sexual offense in any degree). In
these circumstances we resolve the ambiguity in favor of the defendants and
set aside the judgments on the sexual offense counts.
Id.
In Nightingale’s case, we merged the second degree sexual offense into the child
abuse conviction. In Myers’s case Number 7317, we merged all three sexual offenses into
the child abuse conviction.
Notable for present purposes, we did not explain why we merged all of the
underlying sexual offenses into the respective child sexual abuse convictions. Indeed, the
only ambiguity expressly identified in Nightingale related to whether the juries based their
guilty verdicts on some act of sexual molestation or exploitation other than one of the
charged sexual offenses.
The precise question put before us by the State in the present case was not
considered in Nightingale, and, consequently, that case does not dictate the outcome here.
We are not left, however, to write on a clean slate, as the answer to the question presented
is found in Johnson, our recent decision applying Blockburger.
State v. Johnson
12
Petitioner Johnson was convicted of felony murder and two underlying felonies,
kidnapping and robbery, and sentenced separately on all three convictions. He appealed,
arguing that he was entitled, by application of Blockburger, to have the sentences for both
underlying felonies merge with his conviction and sentence for felony murder. The Court
of Special Appeals in an unreported opinion agreed with Johnson and vacated the sentences
for both underlying felonies.
We granted the State’s petition for certiorari and reversed the judgment of the Court
of Special Appeals. We concluded that the law requires that only one of the underlying
“predicate” felonies merges and, because it was not clear upon which of the two felonies
the jury found Johnson guilty of felony murder, “the conviction for the predicate felony
with the greatest maximum sentence merges for sentencing purposes.” 442 Md. at 221.
We reasoned:
Because only one predicate felony is required to support a felony murder
conviction, once the State proves a predicate felony and the death of the
victim as a result of that felony, the crime of felony murder is complete, and,
for the required evidence test’s purposes, all of felony murder’s elements
have been satisfied such that the elements of any additional predicate felonies
would be redundant. In other words, once one merger for sentencing
purposes occurs, as to felony murder and one predicate felony, the elements
of any additional predicate felonies are no longer required elements of felony
murder. For the required evidence test’s purposes, the pairing of the
conviction for one predicate felony with the felony murder conviction leaves
no room for a pairing with any additional predicate felonies. In sum, once
the conviction for one predicate felony merges, application of the required
evidence test does not result in further merger of convictions for other
predicate felonies.
Id. at 222-23 (footnote omitted).
The Present Case
13
The reasoning of Johnson applies equally to the case before us. The jury found
Petitioner guilty of second degree rape, incest, and third degree sexual offense as well as
child sexual abuse. Any one of the sexual offenses satisfies the molestation/exploitation
“element” of child sexual abuse. By tracking the Court’s reasoning in Johnson, the answer
to the Blockburger multiple punishment merger question before us becomes clear. Once
the State proves a predicate sexual offense and abuse of a child victim as a result of that
predicate offense, the crime of child sexual abuse is complete, and, for purposes of the
required evidence test, the sexual molestation/exploitation element of child sexual abuse is
satisfied, rendering redundant, for the purpose of Blockburger multiple punishment
merger, additional predicate sexual offenses.
It is not necessary that Petitioner’s jury be unanimous with respect to the act that
involved the sexual molestation or exploitation of his daughter. See Cooksey v. State, 359
Md. 1, 23-24 (2000); cf. Rice v. State, 311 Md. 116, 122-23 (1987) (holding that the jury
need not be unanimous with regard to the mode of commission of theft, so long as the jury
was unanimous that the property was wrongfully taken from the owner). This is so because
abuse of a child is the gravamen of the offense of child sexual abuse, not the particular
sexual act involving molestation or exploitation itself. See Crispino v. State, 417 Md. 31,
45, 47-50 (2010).
The jury was instructed, and the State argued, that each of the sexual offenses was
charged as a “specification” of child abuse. So long as the jurors were unanimous that
Petitioner committed child sexual abuse, which obviously they were, it is of no
consequence that they may not have agreed on which of the underlying sexual offenses
14
supplied the “element” of sexual molestation or exploitation that supported the child abuse
conviction.
Petitioner argues that he is entitled to have all of the lesser included offenses merge
because the State charged child abuse as a continuing offense. He states that it is “simply
impossible” to discern from this record “whether the jury convicted petitioner of child
sexual abuse based upon all of the underlying sexual conduct and/or offenses, generally
(or, perhaps, based on some other conduct that did not rise to the level of a sexual offense
in any degree).” Putting aside that Nightingale—the sole case upon which Petitioner relies
for this proposition—did not discuss the question presented here, nothing in this trial record
remotely suggests that the jury found Petitioner guilty of child sexual abuse based on “some
other conduct that did not rise to the level of a sexual offense in any degree.” Likewise,
given the evidence at trial, we cannot imagine that any one or more of the jurors found
Petitioner guilty of child abuse only by combining his crimes of rape, incest, and third
degree sexual offense, or some combination of two of the three.
Finally, because we cannot discern which of the three sexual offenses the jury relied
upon in finding Petitioner guilty of child abuse, we resolve that ambiguity by holding, as
we did in Johnson, 442 Md. at 221, 224-25, that Petitioner is entitled to have the crime that
carries the greatest maximum sentence merge for sentencing purposes with the child abuse
sentence. This means, and we so hold, that Petitioner is entitled to have vacated the twenty-
year sentence for second degree rape.10 Petitioner is not entitled to merger of the sentences
10
It is clear under case law of the United States Supreme Court and Maryland that, for
purposes of resentencing, the remedy is to vacate only the sentence imposed upon the lesser
15
imposed on his convictions for the crimes of incest and third degree sexual offense.
III.
The Court of Special Appeals ordered a remand to the Circuit Court for a new
sentencing hearing on the child abuse conviction. Petitioner raises two concerns in
connection with that disposition. He first argues that the Court of Special Appeals, and by
implication this Court, does not have the authority to order the remand. He further argues
that imposing a new sentence on the child abuse conviction would run afoul of the
“constitutional parameters embodied in North Carolina v. Pearce” and implicate “double
jeopardy and related due process concerns.”
The State responds that Maryland Rule 8-604 expressly authorizes the remand and,
at the new sentencing hearing, the Circuit Court may exercise its discretion to resentence
Petitioner for child abuse without offending double jeopardy and due process principles.11
included offense, not the conviction itself. See North Carolina v. Pearce, 395 U.S. 711,
717-19 (1969); Brooks v. State, 439 Md. 698, 737 (2014) (“Sentences for two convictions
must be merged when: (1) the convictions are based on the same act or acts, and (2) under
the required evidence test, the two offenses are deemed to be the same, or one offense is
deemed to be the lesser included offense of the other.”).
11
The State also maintains that Petitioner’s challenge to the constitutional implications of
resentencing “is not ripe for review because the trial court has not yet held a new sentencing
hearing or imposed a new sentence on the child sexual abuse conviction.” The State refers
us to Mercy Medical Center v. Julian, 429 Md. 348, 379 n.17 (2012), which in turn cited
Toland v. Futagi, 425 Md. 365, 390 (2012). We noted in those cases that this Court has
“long forbidden” the practice of issuing an advisory opinion concerning an issue that is not
“ripe,” that is, one that involves “a matter which is future, contingent and uncertain.” See
Hickory Point P’ship v. Anne Arundel Cty., 316 Md. 118, 130 (1989) (internal quotation
marks omitted). Inasmuch as we decide, as a matter of first impression, that this case is
properly remanded to the Circuit Court for a new sentencing, it is appropriate to advise the
court of what the law permits the court to do in the exercise of its sentencing discretion.
Md. Rule 8-131(a).
16
We agree with the State.
The Appellate Court’s Authority to Remand for Resentencing
Maryland Rule 8-604(d)(1) authorizes an appellate court to remand a case to a lower
court if the appellate court “concludes that the substantial merits of a case will not be
determined by affirming, reversing or modifying the judgment, or that justice will be served
by permitting further proceedings.” Rule 8-604(d)(2) further provides that, “[i]n a criminal
case, if the appellate court reverses the judgment for error in the sentence or sentencing
proceeding, the Court shall remand the case for resentencing.”
This Court has recognized, with at least tacit approval, the propriety of resentencing
on a greater offense upon merger for sentencing purposes of a lesser included offense. In
Jones v. State, 414 Md. 686 (2010), we reviewed a ruling of a trial judge on remand
following Jones’s successful challenge of his sentence on appeal to the Court of Special
Appeals. That Court held in an unreported opinion that merger was required under
Blockburger, vacated both the sentences for the lesser included offense and the greater
inclusive offense, and directed resentencing on the greater inclusive offense. Id. at 690.
On remand, the trial court refused to allow Jones to argue in mitigation before imposition
of the new sentence. Id. at 690-91. Jones appealed, claiming error in the trial court’s
refusal to permit argument. Id. at 691. We determined that the trial court had erred and
remanded for a new sentencing proceeding. Id. at 692, 703. Important for present
purposes, we expressed no concern that the Court of Special Appeals was without the
authority to order a remand for resentencing on the greater offense. To the contrary, we
stated that the trial court’s “primary task” on remand was to conduct the “resentencing of
17
the petitioner” on the greater offense. Id. at 707.
Petitioner offers no authority for the proposition that remand for resentencing, as
was done in Jones and as the Court of Special Appeals did in the present case, is
unauthorized by Maryland statute, our rules, or our case law, and we are not aware of any.
Double Jeopardy and Due Process
Petitioner argues that resentencing on the child abuse conviction would run afoul of
double jeopardy and due process protections. We disagree.
The Supreme Court has made clear that resentencing does not offend double
jeopardy principles. The Court stated in United States v. DiFrancesco, 449 U.S. 117, 132
(1980), that the prohibition against multiple trials is the controlling principle in double
jeopardy cases and the same prohibition precludes appellate review of an acquittal. The
double jeopardy prohibition does not preclude either an appeal of a sentence or
resentencing. Id. at 133. “[T]he pronouncement of sentence has never carried the finality
that attaches to an acquittal,” id.; likewise, resentencing following an appeal does not
subject the defendant to “multiple” sentences, id. at 138-39. See also Pennsylvania v.
Goldhammer, 474 U.S. 28, 29-30 (1985) (per curiam) (holding that the Double Jeopardy
Clause does not prevent a state court from resentencing a defendant following reversal of
some of the defendant’s convictions on appeal).
Even more to the point is North Carolina v. Pearce, 395 U.S. 711 (1969). In that
case, the Court held that the Double Jeopardy Clause does not bar the imposition of a longer
sentence after a retrial and reconviction than was imposed in the original, vacated
proceeding. Id. at 722-23. The Pearce Court was quite clear on that point: “A man who
18
is retried after his first conviction has been set aside may be acquitted. If convicted, he
may receive a shorter sentence, he may receive the same sentence, or he may receive a
longer sentence than the one originally imposed.” Id. at 722.
Petitioner’s due process argument is likewise unavailing. Petitioner appears to rely
on the Pearce Court’s discussion of due process concerns that might attend resentencing
after a defendant’s successful appeal. The Pearce Court was concerned specifically about
the extent to which vindictiveness may play a role in the imposition of a harsher sentence
following retrial. Id. at 725. The Court recognized the inherent unfairness of “imposing a
heavier sentence” upon a defendant “for the explicit purpose of punishing the defendant
for his having succeeded in getting his original conviction set aside.” Id. at 723-24.
Because due process “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,” the Court provided a prophylactic rule to guard against it:
In order to assure the absence of such a motivation, . . . whenever a judge
imposes a more severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear [and] must be based upon
objective information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing proceeding.
Id. at 725-26.
The Supreme Court has retreated from its analysis in Pearce. See Texas v.
McCullough, 475 U.S. 134, 138 (1986) (explaining that “the evil the [Pearce] Court sought
to prevent” was the vindictiveness of a sentencing judge, not the imposition of “enlarged
sentences after a new trial”); Alabama v. Smith, 490 U.S. 794, 799-800 (1989) (stating that,
absent a reasonable likelihood that an increased sentence was the “product of actual
19
vindictiveness on the part of the sentencing authority,” the defendant retains the burden “to
prove actual vindictiveness”). These cases clarify that vindictiveness is not to be presumed
from the imposition of a more severe sentence on remand following the defendant’s
successful appeal.
Although McCullough, Smith, and even Pearce all concerned resentencing
following reconviction, we see no material distinction, for purposes of protecting due
process, between those cases and a remand for a new sentence on an unchallenged
conviction—here, child abuse—when the sentence for a lesser included offense is merged
on appeal by application of Blockburger. In that circumstance, a more severe sentence will
not offend due process unless one of two situations occurs: either the record of the new
sentencing hearing demonstrates a reasonable likelihood that an increased sentence was the
product of actual vindictiveness on the part of the sentencing authority, or the defendant
“prove[s] actual vindictiveness.” Smith, 490 U.S. at 799-800.
§ 12-702(b) of the Courts and Judicial Proceedings Article
We agree with the State that whatever remains of the Pearce doctrine in Maryland,
insofar as it relates to this case, would be found in § 12-702(b) of the Courts and Judicial
Proceedings Article of the Maryland Code.12 See Jones v. State, 307 Md. 449, 454 (1986)
(noting that § 12-702(b) codified the constitutional doctrine of Pearce and adopted
“significant portions of the Pearce language”). The first sentence of subsection (b) states:
“If an appellate court remands a criminal case to a lower court in order that the lower court
12
Md. Code Ann., Cts. & Jud. Proc. § 12-702 (1988, 2013 Repl. Vol.). All further statutory
citations are references to the Courts and Judicial Proceedings Article.
20
may pronounce the proper judgment or sentence . . . the lower court may impose any
sentence authorized by law to be imposed as punishment for the offense.” The next
sentence of subsection (b) codifies Pearce and reads:
However, [the court] 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.
Petitioner contends that this statutory language precludes imposition of a new sentence for
his conviction of child abuse because any sentence that modifies the originally imposed,
fully suspended sentence would constitute a “sentence more severe than the sentence
previously imposed” for that crime.
We disagree, as did our colleagues on the Court of Special Appeals. For reasons
we shall explain, even if, on remand, the trial court were to impose the then-applicable
fifteen-year maximum sentence for child sexual abuse, that sentence would not violate §
12-702(b). We reach that conclusion by employing pertinent principles of statutory
construction.
The cardinal rule of statutory construction is to ascertain and give effect to the intent
of the General Assembly. State v. Johnson, 415 Md. 413, 421 (2010). We begin with the
plain meaning of the statute. Meyer v. State, 445 Md. 648, 676 (2015). If the statutory
language is unambiguous and consistent with the purpose of the statute, our review ceases
and we apply the normal and plain meaning of the statute. Harrison-Solomon v. State, 442
Md. 254, 265 (2015). When, however, the language is ambiguous because it gives rise to
21
more than one reasonable interpretation, we must look to other indicia to ascertain the
intent of the General Assembly, “including the relevant statute’s legislative history, the
context of the statute within the broader legislative scheme, and the relative rationality of
competing constructions.” Id. at 265-66. In all cases, when confronted with construing
the meaning of a statutory provision, we must provide a reasonable interpretation—one
that is consonant with logic and common sense. McCree v. State, 441 Md. 4, 13 (2014).
Section 12-702(b) provides that, on remand, “[the court] may not impose a sentence
more severe than the sentence previously imposed for the offense[.]” We must ascertain
the meaning of the terms “sentence” and “offense.” Those terms are used not simply in
the context of the phrase, “[the court] may not impose a sentence more severe than the
sentence previously imposed for the offense,” but also in the context of the language that
precedes that phrase: upon remand for resentencing, “the lower court may impose any
sentence authorized by law to be imposed as punishment for the offense.” See Haile v.
State, 431 Md. 448, 470 (2013) (explaining the “longstanding principle of statutory
construction” that requires courts to interpret a statute “by looking to the statutory scheme
in its entirety rather than segmenting the statute and analyzing only its individual parts”)
(internal quotation marks omitted); see also Diaz v. State, 129 Md. App. 51, 84-85 (1999)
(stating that “the issue in the instant case is not so much whether the word ‘offense’ should
be singular or plural, but rather if the word includes ‘count’ or ‘all counts comprising a
singular criminal episode’”).
Petitioner declares that “sentence” and “offense” are “unequivocally singular
nouns.” We are not nearly as convinced as Petitioner that this is so, in the context of § 12-
22
702(b). Those terms appear unambiguous when applied in a case involving conviction of
only one count, yet those same terms are less than clear in cases involving multiple counts
arising from a single criminal episode or transaction. In the latter, frequently occurring
situation, it is not unreasonable to understand the terms as referring to the total sentence
for all those counts upon which the defendant was convicted. In that situation, the General
Assembly could well have intended “the offense” to refer to the criminal episode,
encompassing all the counts of which the defendant was convicted, and “the sentence” to
refer to the total sentence imposed for those component counts. To resolve this ambiguity,
we turn first to the legislative history of the statute.
The legislative history of § 12-702(b) discloses that the General Assembly enacted
that language in 1973 to codify the Pearce presumption of vindictiveness doctrine.
Gardner, 420 Md. 1, 14-15 (2011). The 1973 Revisor’s Note stated:
As a result of this judicial history, we have a constitutional limitation on
increase of sentence if there is an ordinary appeal and either a remand for
sentencing or a re-conviction after a new trial. And we have a statutory
limitation on increase of sentence if there is a conviction after a de novo
appeal. What § 12-702 proposes is the codification of the case law, and the
retention of the existing statutory law, thus providing a uniform approach to
the problem, and one readily accessible to and understandable by those
involved in criminal sentencing.
Laws of Maryland, ch. 2 (1973) (First Special Session), Revisor’s Note to § 12-702(b).
Notwithstanding that § 12-702(b) was “Maryland’s legislative response to the due
process holding of North Carolina v. Pearce,” it remains a “statement of legislative policy
that stands independent of current Supreme Court notions of what due process may
require.” Dixon v. State, 364 Md. 209, 225-27 (2001) (quoting Davis v. State, 312 Md.
23172, 178 (1988)). That § 12-702(b), as a legislative enactment, remains independent of the
Supreme Court’s retreat from Pearce, however, does not address, much less resolve, the
question presented by the case before us. See Gardner, 420 Md. at 15 & n.5; Dixon, 364
Md. at 226-27. What remains for determination is what constitutes a “more severe
sentence” than one previously imposed for the “offense” at a new sentencing. As to that
question, the legislative history offers no clue.
The canon of statutory construction that requires a reasonable interpretation
consistent with logic and common sense aids us in answering the question. See Briggs v.
State, 413 Md. 265, 275 (2010). We conclude that, as the word is used in § 12-702(b),
“offense” means not simply one count in a multi-count charging document, but rather the
entirety of the sentencing package that takes into account each of the individual crimes of
which the defendant was found guilty.
The notion of sentencing as a “package” is well-recognized, not simply by the Court
of Special Appeals in the present case but also among our sister federal and state appellate
courts. The Court of Special Appeals reasoned that,
[i]n imposing sentences for multiple convictions in a single case, a trial judge
considers not only the sentence for each conviction, but also the total
sentence for all of the convictions together. Indeed, the Maryland Sentencing
Guidelines are structured to reflect such dual consideration. The sentencing
guidelines provide a guideline range for each conviction, and then an overall
guideline for all of the convictions, viewed as a whole.
Twigg, 219 Md. App. at 259 (citing the Maryland Sentencing Guidelines Manual, §§ 3, 9
(2014)).
The federal appellate courts are uniform in recognizing the “basic notion of how
24
sentencing decisions are made in cases involving multiple counts of conviction.” United
States v. Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014) (explaining that “sentencing on
multiple counts is an inherently interrelated, interconnected, and holistic process which
requires a court to craft an overall sentence—the ‘sentence package’—that reflects the
guidelines and the relevant [sentencing] factors”); accord United States v. Weingarten, 713
F.3d 704, 712 (2d Cir. 2013); United States v. Rodgers, 278 F.3d 599, 604 (6th Cir. 2002);
United States v. Townsend, 178 F.3d 558, 567 (D.C. Cir. 1999); United States v. Campbell,
106 F.3d 64, 68 (5th Cir. 1997); United States v. Sullivan, 967 F.2d 370, 374-75 (10th Cir.
1992); Kelly v. Neubert, 898 F.2d 15, 17-18 (3d Cir. 1990); United States v. Pimienta-
Redondo, 874 F.2d 9, 14 (1st Cir. 1989); United States v. Gray, 852 F.2d 136, 138 (4th Cir.
1988); United States v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987); United States v. Hagler,
709 F.2d 578, 579 (9th Cir. 1983); United States v. Norton, 657 F.2d 1003, 1004 (8th Cir.
1981) (per curiam).
The majority of our sister state appellate courts that have addressed the issue
similarly view sentencing as a package. See State v. Wade, 998 A.2d 1114, 1120 (Conn.
2010) (holding that “the original sentencing court is viewed as having imposed individual
sentences merely as component parts or building blocks of a larger total punishment for
the aggregate convictions, and, thus, to invalidate any part of that package without allowing
the court thereafter to review and revise the remaining valid convictions would frustrate
the court’s sentencing intent”) (internal quotation marks omitted); Adams v. State, 696
S.E.2d 676, 679 (Ga. 2010); Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013);
State v. Goncalves, 941 A.2d 842, 848 (R.I. 2008).
25
We likewise agree with those courts that, “[a]fter an appellate court unwraps the
package and removes one or more charges from its confines, the sentencing judge, herself,
is in the best position to assess the effect of the withdrawal and to redefine the package’s
size and shape (if, indeed, redefinition seems appropriate).” Pimienta-Redondo, 874 F.2d
at 14; see also Townsend, 178 F.3d at 567; Shue, 825 F.2d at 1114; State v. Wade, 998 A.2d
at 1120; Sanjari, 981 N.E.2d at 583 (concluding that the aggregate approach gives the trial
court the flexibility to carry out its intent to effectuate the goals of sentencing by imposing
a sentence that fits both the crime and the criminal); Goncalves, 941 A.2d at 848(explaining that the trial court “may correct the entire initial sentencing package to preserve
the originally intended sentencing scheme”).
Construing the “offense” in § 12-702(b) as referring in multi-count cases to the
aggregate of the various component parts—i.e., individual counts—and the “sentence” in
such cases as referring to the entire sentencing package readily comports with the widely
held view of the realities of trial judges’ approach to sentencing. Nothing in the plain
language of the statute, moreover, precludes this construction of it.
Furthermore, attributing these meanings to “offense” and “sentence” in no way runs
afoul of the clear legislative purpose behind the General Assembly’s enactment of § 12-
702(b), which we know was to codify the Pearce doctrine. Indeed, this construction is
consonant with how federal and state appellate courts have applied the Pearce doctrine to
resentencing after vacation on appeal of one or some counts of a multi-count offense.
The federal courts of appeal and majority of state appellate courts that have spoken
on the subject are in accord in taking this view. See Fowler, 749 F.3d at 1023 (“[W]e adopt
26
the aggregate package approach endorsed by the majority of our sister circuits, and
contemplated by the Supreme Court, for determining whether a sentence imposed under
the guidelines has become more severe for purposes of invoking the Pearce
presumption.”); Weingarten, 713 F.3d at 714 (“Where one or more of several related counts
have been vacated, and the district court on resentencing has increased the sentence on the
remaining, related counts to maintain the same aggregate sentence as before, no
presumption of vindictiveness applies.”); accord Townsend, 178 F.3d at 570; Campbell,
106 F.3d at 68; Sullivan, 967 F.2d at 374-75; Kelly, 898 F.2d at 18; Gray, 852 F.2d at 138;
Hagler, 709 F.2d at 579; Norton, 657 F.2d at 1004; People v. Woellhaf, 199 P.3d 27, 31
(Colo. App. 2007); White v. State, 576 A.2d 1322, 1329 (Del. 1990); Adams, 696 S.E.2d
at 680; State v. Harrington, 805 N.W.2d 391, 394 (Iowa 2011); State v. Keefe, 573 A.2d
20, 22 (Me. 1990); State v. Larson, 783 P.2d 1093, 1096 (Wash. Ct. App. 1989).13
In summary, a defendant’s sentence will be considered to have increased under §
12-702(b) only if the total sentence imposed after retrial or on remand is greater than the
originally imposed sentence. Accordingly, if on remand in the present case the Circuit
Court were to exercise its discretion to impose on the child abuse conviction any period of
active incarceration, even if it were the maximum of fifteen years’ incarceration available
13
This construction of § 12-702(b), moreover, does not result in unfair prejudice to a
defendant who has been successful on appeal in having one or more, but not all, convictions
and/or sentences vacated. See Greenlaw v. United States, 554 U.S. 237, 253-54 (2008)
(explaining that, when a trial court on remand “impose[s] a sentence on the remaining
counts longer than the sentence originally imposed on those particular counts, but yielding
an aggregate sentence no longer than the aggregate sentence initially imposed,” the
defendant “may [have] gain[ed] nothing from his limited success on appeal, but he will
also lose nothing, as he will serve no more time than the trial court originally ordered”).
27
at the time of Petitioner’s crime, such a sentence would not violate § 12-702(b) because,
when added to the combined twenty years of incarceration for third degree sexual offense
and incest, Petitioner’s total sentence would not be greater than the total forty-year sentence
originally imposed.14
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED IN
PART AND AFFIRMED IN PART.
CASE REMANDED TO THAT
COURT WITH INSTRUCTIONS TO
REMAND TO THE CIRCUIT
COURT FOR CHARLES COUNTY
FOR RESENTENCING
CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID BY
PETITIONER.
14
The State does not seek to have vacated the sentences for incest and third degree sexual
offense, for both of which Petitioner received the maximum sentence. We do not intend
this opinion to be read as precluding, in the appropriate case, vacation of all sentences
originally imposed on those convictions and sentences left undisturbed on appeal, so as to
provide the court maximum flexibility on remand to fashion a proper sentence that takes
into account all of the relevant facts and circumstances. The only caveat, aside from the
exception set forth in § 12-702(b)(1)-(3), is that any new sentence, in the aggregate, cannot
exceed the aggregate sentence imposed originally.
28