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.
Read More…December 2022 Maryland Certiorari Grants: Supreme Edition
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, the Supreme Court of Maryland held its first conference under its new name. From that conference emerged the first post-name change opinion, Tapestry, Inc. v. Factory Mutual Insurance Company, authored by Chief Justice Matthew Fader for a unanimous Court. For another answer to a future trivia question, the Appellate Court of Maryland issued its first unreported opinions today under its new name, and the first to be posted was Judge Shaw’s opinion in Hawley v. Greer.
The conference also produced only one certiorari grant, Gerstein v. Rocon, LLC, and the Court’s statement of the Issues Presented reflects that the “CSA” is now the “ACM.”
Read More…Talking About Maryland’s Appellate Courts in the Past Tense
By Steve Klepper (Twitter: @MDAppeal)
Last month, Maryland voters approved a constitutional amendment renaming our appellate courts—with the Court of Appeals becoming the Supreme Court of Maryland, and the Court of Special Appeals becoming the Appellate Court of Maryland. Judges of the Supreme Court of Maryland will now be “Justices.”
Since then, lawyers have kept asking me the same question: “If I’m discussing a pre-name-change decision, do I use the new names and titles?”
Read More…Certiorari Granted from Sharply Divided COSA Over the Right to Counsel
The Court of Appeals will hear argument in State v. Clark, 255 Md. App. 327 (2022), the latest of a series of postconviction cases involving whether a presumption of prejudice applies when a trial court orders a testifying defendant not to communicate with their counsel during a break in the trial. The question sharply divided the COSA, with the Hon. Kathryn Graeff writing for the majority that the U.S. Supreme Court’s presumption of prejudice for the deprivation of counsel did not apply where trial counsel failed to object and the defendant did not produce sufficient evidence at the postconviction hearing that he would have conferred with counsel but for the erroneous order. In a lengthy dissent, the Hon. Douglas Nazarian concluded the importance of the fundamental right to counsel required the presumption of prejudice and that the defendant should not resurrect his right after the trial court’s order depriving him of such right, in order to demonstrate he has been prejudiced.
This case turns on the application of the rule enunciated in Geders v. U.S., 425 U.S. 80 (1976) – a case on direct appeal – to a postconviction case governed by the principles of Strickland v. Washington, 466 U.S. 668 (1984). In Geders, the Supreme Court held that the trial court’s order preventing a defendant from consulting his counsel about anything during a 17-hour overnight recess between his direct and cross-examination deprived him of his right to the assistance of counsel guaranteed by the Sixth Amendment. In Geders, the trial attorney had objected to the Court’s order. Geders applied a presumption of prejudice and ordered a new trial. But what if trial counsel does not object? That is Mr. Clark’s case.
Read More…Mark Your Calendars: Maryland Appellate Courts to Change Names on December 14
The Court of Appeals of Maryland posted this update today:
Read More…November 2022 Maryland Certiorari Grants
On Friday afternoon, the Court of Appeals of Maryland granted review in two criminal and three civil appeals. The certiorari grants, with links to the Court of Special Appeals opinions under review, are below.
Read More…Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?
When challenging an expert’s causation opinion that contradicts peer-reviewed medical literature under Rule 5-702(3), does the movant need to provide an affidavit from its own expert to explain the inconsistency between the literature and the challenged opinion? No.
Rule 5-702 does not require an expert affidavit for a court to consider relevant medical or other peer-reviewed scientific literature when ruling on the admissibility of expert testimony. Instead, it is a matter of counsel’s judgment (and possibly budget) to consider whether a competing expert affidavit would help show the court that the challenged opinion is unreliable and inadmissible under Rule 5-702. Although a good expert’s affidavit is often helpful, it might over-complicate some proceedings by opening a prolonged and distracting “battle of the experts.”
Sometimes, professional peer-reviewed literature speaks for itself and most effectively rebuts the challenged opinion on its own. Judges, as “gatekeepers,” do not require expert affidavits to walk them through such literature. But dicta from a recent Court of Appeals opinion, Frankel v. Deane[i], seems to suggest otherwise. This could lead some courts to invent a nonexistent expert-affidavit requirement under Rule 5-702.
Read More…The Courts They Are a-Changin’
By John Grimm
Tuesday was an election night full of historic firsts for Maryland—including the first Black governor[1] and attorney general,[2] the first South Asian woman lieutenant governor,[3] and the first woman to win statewide state office independently.[4] It also marked the fruition of the seemingly quixotic legislative project of giving Maryland’s appellate courts names that make sense. By a margin of 73% to 27%, voters approved a constitutional amendment changing the name of the state’s highest court from the Court of Appeals to the Supreme Court of Maryland (and the title of its jurists from judge to justice), and the state’s intermediate appellate court from the Court of Special Appeals to the Appellate Court of Maryland.
Read More…October 2022 Maryland Certiorari Grants
On Friday, the Maryland Court of Appeals granted certiorari in two appeals, one civil and one criminal.
Read More…Maryland Appellate Courts’ “Highlighted Cases” Pages Offer a Primer on Motions Practice
Motions are seldom the feature of an appellate opinion, but often play a prominent role in moving your case, efficiently and effectively, through the appellate process. Title 8 of the Maryland Rules, in Rules 8-431, 8-603 and others, impose requirements on the motion’s timing, scope, contents and appearance, as well as any response. The court may rule quickly, particularly when the motion is filed before the brief, and even dismiss an appeal on the court’s own initiative (see Rule 8-602(a)). While you may be looking forward to the next edition of the Appellate Practice for the Maryland Lawyer: State and Federal, for updates on the Motions Practice in State Appellate Courts chapter (as the author of that chapter, I certainly am!), consider in the meantime the “Highlighted Cases” pages of the Court of Appeals and Court of Special Appeals, each providing in real time examples of motions, responses and rulings. These websites are a helpful primer to appellate practitioners, whether you are seasoned or green.
In other news, the Maryland Appellate Blog wishes to congratulate one of our own, Brad McCullough, on his appointment to the Circuit Court for Montgomery County. He has been a Blog editor and colleague since we started in 2013. We will miss him, but our loss is Maryland’s gain.
Maryland Appellate Blog 