ACM Applies the Twigg Sentencing Package Doctrine in Two Recent Cases
In Twigg v. State, 447 Md. 1, 28 (2016), the trial court failed to merge a lesser including offense at sentencing. Compounding the error, the trial court imposed an executed sentence for a lesser included offense but suspended the sentence for the greater offense. Twigg successfully argued on appeal that the executed sentence for the lesser included offense was illegal because the case involved multiple counts arising from a single criminal episode. Twigg maintained that the appellate court must vacate the executed sentence for the lesser offense, while leaving intact the suspended sentence for the greater offense.
Twigg pointed to two limitations on the appellate court’s power. First, the text of section 12-702(b) of the Courts and Judicial Proceedings Article that limited the appellate court to remanding a “sentence.” Second, principles of double jeopardy prevented the appellate court from vacating the suspended sentence for the greater offense and remanding for resentencing because any executed sentence imposed by the trial court would necessarily constitute an impermissible greater and successive penalty. The Supreme Court of Maryland rejected these arguments, holding that, as a general matter, a court imposing a sentence on one count of conviction may consider sentences imposed on other counts. Double jeopardy did not bar the resentencing primarily because there were not successive trials. Thus, on remand, the sentencing court could resentence on the greater offense considering the sentence for the lesser included had been vacated and merged.
The Supreme Court of Maryland resolved section 12-702(b)’s use of “sentence” in the singular to mean the package of sentences imposed for multiple counts arising from a single criminal episode. Therefore, because the trial court originally imposed a package of inter-related sentences for multiple counts arising out of a single episode, when the appellate court must vacate one of the constituent sentences in the package, it may remand the entire package for the trial court to resentence on all remaining counts. At Twigg’s resentencing, the trial court could impose any sentence for the greater offense up to the lesser of the statutory maximum or the aggregate sentence originally imposed for package. This practice became known as the “sentencing package.”
Two recent opinions from the Appellate Court of Maryland (ACM) further examine the contours of Twigg’s sentencing package doctrine: Wright v. State, 255 Md. App. 407 (2022) and Mohan v. State, — Md.. App. —, CSA-REG-1853-2021 (Dec. 9, 2022). Because both cases are interesting on their individual merits, I will address the reason for each reversal and the application of the sentencing package doctrine.
In Wright v. State, the grand jury indicted the defendant for murder, use of a handgun in a crime of violence, and unlawfully wearing, carrying, and transporting a handgun. The trial court, however, sua sponte added one count of first-degree assault as a lesser included offense of murder. Still, the trial court instructed on both modalities of first-degree assault (firearm variation and intent to commit serious bodily injury). The jury returned a guilty verdict on first-degree assault and use of a handgun. The sentencing court imposed consecutive sentences for those convictions.
Many years later, the defendant challenged the legality of the sentence for first-degree assault. A portion of the trial record having been lost, no one could tell what modality of first-degree assault (firearm variation or intent to commit serious bodily injury) the jury convicted Mr. Wright for. Because ambiguities regarding the factual basis for a conviction are resolved in the defendant’s favor, the Appellate Court of Maryland (Hon. Douglas Nazarian), concluded that the conviction for first degree assault was illegal. The ACM held that only the variation requiring the intent to commit serious bodily injury is a lesser-included offense of first-degree murder (the firearm variation is not). The ACM vacated the sentence for first-degree assault.
Although the trial court originally imposed the maximum sentence for the use count, and that sentence was not challenged as being illegal, the ACM remanded for a resentencing under the sentencing package doctrine. Wright illustrates how the package doctrine can allow for a resentencing hearing at which the defendant may present evidence of intervening circumstances (perhaps a positive institutional adjustment and progress report) to mitigate the overall package of sentences. Moreover, the resentencing triggers the defendant’s right to file a motion for modification of sentence and other post-sentencing rights.
In Mohan, the jury returned a guilty verdict on two counts: child sexual abuse and third-degree sex offense. The sentencing court imposed a period of executed incarceration on the child sexual abuse and suspended the sentence on the third-degree sex offense. Mohan reversed the conviction for child sexual abuse and remanded the third-degree sex offense count for resentencing under the package doctrine.
The operative facts included that the grand jury charged the defendant with child sexual abuse in the indictment as the victim’s parent. Although Mohan was married to the child’s mother and lived in the same home, he was neither the biological nor the adoptive parent of the minor child. The ACM held that the trial court erred in concluding that Mohan was a parent under CR 3-602(b)(1). Applying a do novo review, the ACM rejected that Mohan was a “de facto” parent under the civil case Conover v. Conover, 450 Md. 51 (2016). The Court declined to “broadly interpret a criminal statute to incorporate the civil de facto parent doctrine into an area in which it has no origin or corollary application.” The ACM also found that the legislature’s intent was to create four categories of individuals who stand in a close position of trust to a minor child: (1) a parent, (2) another person who has permanent or temporary case or custody of a minor, (3) another person who has responsibility for the supervision of a minor, and (4) a household member or family member. ACM noted that Mohan could have been charged under other sections of CR 3-602 but he was specifically charged as a parent.
The ACM reversed the conviction for child sexual abuse and remanded the third-degree sex offense conviction for resentencing. It did so because “the sentencing package was disturbed by a decision to reverse a conviction.” ACM made it clear that the sentencing court may impose a sentence on the remaining count up to the maximum incarceration available at the time of the defendant’s crime so long as it does not exceed the original aggregate sentence.