Boundless at the Trial Level, Toothless on Appeal: Maryland’s Law on Sentencing.

By Isabelle Raquin

A few weeks ago, our Editor-in-Chief, Steve Klepper, wrote a piece entitled “Mental Illness and Maryland’s Toothless Review of Criminal Sentences” regarding the unreported decision, Robbins v. State. In Robbins (Nazarian, J.), the Court lamented, in dicta, about the lack of meaningful appellate review of a classic “over-sentence” for a defendant who suffered from severe mental health issues.  In contrast, on March 8, 2023, the Appellate Court of Maryland chose to report Robson v. State, ACM-REG-0764-2022) (Moylan, J.) a decision affirming the trial court’s sentence that was substantially above the State’s recommendation, and without any of the regrets expressed in Robbins. Robson precisely makes Mr. Klepper’s point: a sentencing judge has boundless discretion and the appellate court’s review is toothless. Robson also suggests that changes in the status quo is unlikely without legislative action or new caselaw emanating from the Supreme Court of Maryland.

Robson’s Facts at Trial and Conviction: The State alleged that a uniformed deputy sheriff knocked on the front door of Mr. Robson’s rural home at night to serve him with a peace order.  According to the State, Mr. Robson answered the door with a shotgun pointed at the deputy’s face     and only lowered it after the deputy drew his pistol. On the contrary, Mr. Robson testified that the deputy banged on the door loudly and did not identify himself, that the shotgun was near the door to shoot squirrels, and that he merely pointed the shotgun at the floor. Mr. Robson also testified that he had been drinking. The jury acquitted Mr. Robson of first-degree assault and hung on second-degree assault.  Mr. Robson was convicted of reckless endangerment.

Robson’s Sentence: At the sentencing hearing, the trial judge lashed out at Mr. Robson for pointing the shotgun in the deputy’s face. The defense objected and argued that the judge’s comment was inconsistent with the jury’s verdicts. The defense asked for no jail and for probation before judgment. After all, Mr. Robson had no prior criminal record and the not-guilty verdict and hung jury count demonstrated he had not pointed the shotgun at the deputy. The pre-sentence report recommended three weekends of incarceration. The State recommended a sentence of five years, all suspended but 30 days, followed by supervised probation. Still, the judge overruled the defense objection and imposed five years in the Division of Corrections, all suspended but two years, i.e., 24 times the State’s recommendation, and 121 times the recommendation of the pre-sentence report.

The Issue on Appeal: The question presented was whether the trial court impermissibly considered acquitted conduct when imposing Mr. Robson’s sentence. Unquestionably, the judge stressed that Mr. Robson pointed a shotgun at the deputy’s face and that it was “not going to tolerate anyone […] pointing firearms.”  Defense counsel objected because, if the jury concluded that Mr. Robson pointed the shotgun at the deputy’s face, they would have been found him guilty of first or second-degree assault. Is the defense counsel’s assertion correct? Does it even matter? The Appellate Court answered both questions in the negative.

The Law in Maryland: Maryland has consistently followed the common law and the principles stemming from decisions of the Supreme Court of the United States that the sentencing judge is invested with nearly boundless discretion. Appellate review of sentences is narrowly limited to three grounds. The late Chief Judge Murphy discussed them in Teasley v. State, 293 Md. 364, 370 (1984): “(1) the sentence may not constitute cruel and unusual punishment or otherwise violate constitutional requirements; (2) the sentencing judge may not be motivated by ill-will, prejudice or other impermissible considerations; and (3) the sentence must be within the statutory limitations.” In Robson, the Appellate Court found that the sentence was not cruel and unusual pursuant to Article 25 of the Maryland Declaration of Rights or the Eight Amendment of the United States Constitution, nor did it exceed the statutory maximum.

Impermissible Considerations: The Appellate Court in Robson then addressed what an impermissible consideration is, or rather what it is not.  Impermissible considerations do not include failure to consider the sentencing guidelines, considering evidence which was not part of the trial, considering conduct of which the defendant has been acquitted, or considering evidence that has been unconstitutionally obtained. The Appellate Court found only one case where a sentencing consideration was held to be impermissible on appellate review, that of Johnson v. State, 274 Md. 536, 538-539 (1975). In Johnson, the sentencing court had improperly considered the fact that the defendant had a trial and testified, instead of pleading guilty. The sentence was vacated and the case remanded for resentencing. Needless to say that the Appellate Court found no impermissible considerations in Robson and affirmed the two-year prison sentence.

What To Do From Here? How can sentences that appear disproportionate or unfair be successfully challenged? Steve Klepper summarized what may be next: “The time may well be here for Maryland lawyers to raise substantive unreasonableness challenges in the Maryland appellate courts. Maybe the appellate courts will change course and consider non-constitutional challenges to sentences. Or maybe the Supreme Court of Maryland, if asked, will hold that Article 25 is broader than the Eighth Amendment.” On that last point, it is true that, in Leitig v. State, 475 Md. 181 (2021), the Supreme Court of Maryland found that Article 21 provides greater protection than the Sixth Amendment of the United States Constitution. Perhaps it will soon agree that Article 25 is broader than its Eighth Amendment counterpart, if challenges to sentences start to emerge on that basis. Additionally, it may be time for the defense bar to consider a legislative approach to addressing unreasonable sentences.

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