Nathan Joseph Johnson v. State of Maryland, No. 109, September Term, 2018. Opinion
by Nazarian, J.
REMAND FROM COURT OF APPEALS — MOTION TO RECONSIDER OR
REMAND FOR RESENTENCING
By a 2-1 vote, the Court declined to exercise its discretion to remand this case for
resentencing and, as a result, denied the State of Maryland’s motion to reconsider.
Circuit Court for Queen Anne’s County
Case No. 17-CR-17-290
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 109
September Term, 2018
ON MOTION FOR RECONSIDERATION
______________________________________
NATHAN JOSEPH JOHNSON
v.
STATE OF MARYLAND
______________________________________
Graeff,
Nazarian,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: November 18, 2020
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-11-19 09:29-05:00
Suzanne C. Johnson, Clerk
By Order dated November 10, 2020, the Court of Appeals remanded this case to
this Court, without affirming or reversing, in order that we might “clarify the basis of [our]
decision on April 14, 2020 denying Petitioner’s motion for reconsideration.” This Opinion
explains that decision.
I. BACKGROUND
A. The Appeal
After a bench trial in the Circuit Court for Queen Anne’s County, Nathan Joseph
Johnson was convicted of involuntary manslaughter, reckless endangerment, possession
with intent to distribute heroin and fentanyl, and possession of heroin and fentanyl. The
circuit court sentenced him to ten years of incarceration (all but seven years suspended) for
involuntary manslaughter and a consecutive twenty years (all but five suspended) for
distribution. The court also stated at sentencing that it would “generally suspend and [run]
concurrently” sentences for reckless endangerment and possession with intent to distribute
fentanyl.
On appeal, Mr. Johnson raised four contentions. First, relying on State v. Thomas,
464 Md. 133 (2019), he argued that the evidence was insufficient as a matter of law to
sustain his conviction for involuntary manslaughter under a theory of gross negligence.
Second, he argued that the (circumstantial) evidence was not sufficient to support his
conviction for distribution of a controlled substance. Third, he contended that the circuit
court erred in admitting text messages from a cell phone. And fourth, he argued that the
trial court had erred in imposing separate sentences for distribution and involuntary
manslaughter. The State opposed these contentions.
B. The Merits Opinion
We held oral argument on December 3, 2019 and issued a reported opinion on
January 31, 2020. Johnson v. State, 245 Md. App. 46 (2020). We won’t recount the entire
opinion here, but a few points bear on the motion for reconsideration and our decision to
deny it.
First, this was the first overdose-related involuntary manslaughter case to reach our
Court after the Court of Appeals issued Thomas, 464 Md. at 169–72, and the first
opportunity to identify situations that would or wouldn’t satisfy Thomas’s new standard.1
After analyzing the facts of this case against the Thomas factors, we concluded that
“[i]nterpreting Thomas to assume knowledge of a drug’s contents with its riskiness on the
part of all low-level, infrequent dealers would lead to the per se rule Thomas warned
against[,]” and that “if this drug sale qualifies as grossly negligent, we struggle to imagine
a transaction that wouldn’t.” Johnson, 245 Md. App. at 64. Accordingly, we held that the
evidence was insufficient to support a finding that he had acted with gross negligence, and
we reversed the conviction for involuntary manslaughter.
Id. at 69.
Second and third, we agreed with the State that the evidence was sufficient to
support the conviction for possession with intent to distribute, id. at 65–68, and that the
trial court had not erred in admitting the available text messages between Mr. Johnson and
the victim.
Id. at 68–69.
1
Compare McCauley v. State,
245 Md. App. 562 (2020) (affirming gross negligence
involuntary manslaughter conviction where defendant was a habitual dealer who knew the
contents of the drugs she sold and warned buyers about them).
2
As a result, we affirmed the judgments except the conviction for involuntary
manslaughter. During the recent argument in the Court of Appeals, there were several
references to the involuntary manslaughter conviction being vacated. It wasn’t. The
judgment of conviction was reversed, as we stated in the order at the conclusion of our
opinion:
JUDGMENT OF THE CIRCUIT COURT
QUEEN ANNE’S COUNTY FOR
INVOLUNTARY MANSLAUGHTER
COUNT REVERSED. JUDGMENTS
AFFIRMED IN ALL OTHER RESPECTS.
APPELLANT AND QUEEN ANNE’S
COUNTY TO SPLIT COSTS.
Id. at 69. Indeed, our holding that the evidence was insufficient to support a finding of
gross negligence would have precluded re-trial on that charge had we reversed on other
grounds.
Finally, our resolution of the involuntary manslaughter conviction left no occasion
for us to reach the one sentencing issue that was raised in the appeal, i.e., Mr. Johnson’s
contention that the sentences for involuntary manslaughter or distribution should merge.
Id. At the very end of its brief, the State argued that if we were to determine that Mr.
Johnson’s sentences for involuntary manslaughter and distribution merged, we should
remand the case for resentencing under the principles enunciated in Twigg v. State, 447
Md. 1 (2016). Neither side raised, in their briefs or at argument, any issues regarding
resentencing, or not, in the event a conviction was reversed.
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C. The Motion To Reconsider
On February 18, 2020, the State filed a timely Motion to Reconsider and Remand
for Resentencing on Reckless Endangerment and Possession [with Intent to] Distribute
Heroin and Fentanyl. See Md. Rule 8-605(a). The State’s motion did not take issue with
any aspect of the analysis or any conclusion in our merits opinion, nor did it seek any relief
or revision relating to our decision to reverse Mr. Johnson’s conviction for involuntary
manslaughter. Instead, citing Twigg and Maryland Rules 8-604(d)(1) and (d)(2), the State
argued that the interests of justice would be served by remanding the case for resentencing
in light of the revised “sentencing package” resulting from the reversal of the involuntary
manslaughter conviction, Mot. Recons. at 2–5, and that “the sentencing court should be
given an opportunity to ‘redefine’ the shape and size of [Mr.] Johnson’s sentencing
package so it continues to reflect the sentencing judge’s intent.” Id. at 6. The State argued
that “[t]he fact that [Mr.] Johnson’s case involves reversal based on sufficiency grounds
rather than a merger issue does not change the analysis []” under Twigg,
id., but by
reversing Mr. Johnson’s conviction this Court had unwrapped the sentencing package and
that “the sentencing court is entitled to an opportunity to reshape the package so that it
continues to reflect the court’s intent.”
Id. at 7 (emphasis added).
We asked Mr. Johnson to respond to the State’s motion. See Md. Rule 8-605(a). He
countered that the State had failed to raise any of the grounds for reconsideration set forth
in Maryland Rule 8-605(b) and that Twigg had never been extended to a case in which a
count of conviction had been reversed. Resp. at 1. He contended that the merits opinion
had not left any issues unaddressed or ruled on any issues the parties hadn’t briefed nor did
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the opinion conflict with any decisions of a superior court. Id. at 4. He then distinguished
Twigg from this case in two respects. First, he argued that Twigg involved a merger of
sentences for convictions left intact and that every case relying on Twigg and remanding
for resentencing had involved an illegal sentence or sentencing defect, not a reversal.
Id. at
5–7. Second, “even if Twigg could be extended as the State contends to a case in which a
count of conviction is reversed, that decision would only grant the discretion to remand,
not require it,”
id. at 7, and he argued the circumstances of this case advise against us
exercising our discretion to remand for resentencing in this case.
Id. at 7–9.
D. Our Decision On The Motion
Because the merits opinion was a reported opinion, a motion for reconsideration of
that opinion must be submitted to the Court as a whole. The panel, led by the authoring
judge, prepares a recommendation for the Court and presents that recommendation at the
next monthly Conference. In a typical motion to reconsider a reported opinion, the Court
is asked to consider changing some aspect(s) of the opinion itself; because, in deciding to
report the case, the Court had decided that the issued opinion was “of substantial interest
as precedent,” Md. Rule 8-605.1(a), amendments to the original reported opinion might
affect whether the opinion still meets that standard or whether the Court remains
comfortable with the opinion continuing to serve as binding precedent. The Court normally
memorializes its decision on a motion either (a) in a new opinion that reflects the changes
the Court decided to make in response to the motion or (b) in an order denying the motion
which, even in the absence of any explanation, reveals the Court’s decision not to change
the opinion.
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This motion did not challenge the merits opinion’s analysis, conclusions, or
language. It asked us to grant a form of relief that had not been addressed in the merits
opinion, and the Court could have granted or denied the motion without making any
changes. All the same, the panel deliberated and decided (on a 2-1 vote that we will explain
further below) to recommend that the Court deny the motion. The Court adopted the panel’s
recommendation at its March 2020 Conference (held on March 31, 2020). The motion was
denied in an order that described only the disposition of the motion, not the underlying
reasoning.
The State filed a petition for writ of certiorari in the Court of Appeals, and the
Court granted that petition on June 5, 2020. The Court held oral argument on November 5,
2020, and, on November 10, 2020, remanded the case to this Court, without affirming or
reversing, in order that we might “clarify the basis of [our] decision on April 14, 2020
denying Petitioner’s motion for reconsideration.”
II. DISCUSSION
The circumstances of this motion offer a rare retrospective glimpse into the
metaphorical room where this decision happened (or, in this instance, inside the third floor
of the Robert C. Murphy Courts of Appeal Building).2 We described above the process of
deciding the State’s motion to reconsider, and on the merits, the panel split by a 2-1 vote.
Judges Nazarian and Zarnoch voted to deny the motion, for reasons we explain below.
Judge Graeff voted to grant the motion because the reversal of the involuntary
2
Cf. Lin-Manuel Miranda, The Room Where It Happens, Hamilton, Act 2 (2015).
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manslaughter conviction reduced Mr. Johnson’s conviction from thirty years’
incarceration, with all but twelve years suspended, to twenty years’ incarceration, with all
but five years suspended, and, in her view, the trial court should have the ability to
reconsider its sentencing package in light of our holding.
Two considerations animated the panel’s discussions and recommendation and the
ultimate decision to deny the State’s motion to reconsider. First, the relief the State sought
in its motion—a remand for resentencing after reversal of Mr. Johnson’s conviction for
involuntary manslaughter—had not been sought until after we issued our opinion. This
consideration proved dispositive: Judges Nazarian and Zarnoch shared this view, and the
2-1 vote on this ground drove the panel’s recommendation to the Court that the motion be
denied, and that is the recommendation that the Court adopted.
The second consideration was the application of Maryland Rule 8-604(d)(1),3 and
the principles articulated in Twigg vel non to the facts and circumstances of this case. Judge
Nazarian voted to deny the motion for this reason as well, and specifically on the grounds
that (a) the involuntary manslaughter conviction had been reversed, not merged, and a
resentencing with the potential to increase the sentence for other convictions could defeat
our reversal on that charge; (b) the conviction for reckless endangerment, although
unchallenged by Mr. Johnson, likely would not have survived the merits opinion’s analysis
of gross negligence and resentencing on that charge would be inconsistent with the
principles underlying our holding; and (c) the net sentence after the reversal of the
3
Because, unlike Twigg, our opinion in this case did not reverse a judgment for error in a
sentence or the sentencing proceeding, Rule 8-604(d)(2) provides no basis for a remand.
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involuntary manslaughter charge was not so disparate from the trial court’s sentencing
intentions to warrant a remand in the context of this sentencing package. Judge Zarnoch
voted against reaching this issue because it had not been raised in the briefing and argument
on the merits.
The preceding two paragraphs provide a superficial answer to the Court of
Appeals’s question and solve the key mystery with which the Court of Appeals and the
parties grappled at oral argument. But a mere statement of reasons leaves out the most
important element of the panel majority’s decision: our discretion as a Court to make it.
No case, statute, or other authority compelled the outcome of this motion. Our differences
as a panel in deliberating on this decision represent differences only as to how we should
exercise our discretion in addressing the State’s motion, and specifically whether this is an
appropriate case to grant the discretionary relief the State seeks. To the extent, then, that
the State contends that Twigg (or any other authority) requires an appellate court to remand
under these (or any) circumstances, we disagree.
Twigg itself proves the point. Unlike this case, Twigg was solely about sentencing.
Mr. Twigg had been convicted of myriad sex offenses. Mr. Twigg didn’t challenge any of
his convictions on the merits—not only were none reversed, they all remained intact. The
only question raised initially in Twigg was the extent to which the various sentences
merged. He contended that his many convictions all merged for sentencing purposes into
his conviction for sexual child abuse and, with one difference, both this Court and the Court
of Appeals agreed. Twigg v. State, 219 Md. App. 259, 266–80 (2014), aff’d in part, rev’d
in part,
447 Md. 1, 10–19 (2016). That might not seem strange on its face, but the result
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was extreme and anomalous in that particular case: the trial court had imposed consecutive
sentences totaling forty years of active incarceration, yet only a fifteen-year suspended
sentence for sexual child abuse. Twigg, 219 Md. App. at 280.
The sentence resulting from the mergers was obviously out of sync with what the
trial court had sought to impose, but there was enough uncertainty about our authority to
remand for resentencing on the remaining charge that we ordered supplemental briefing on
(a) whether any authority permitted or precluded us from doing so and (b) any limitations
on the sentence a circuit court could impose on remand. Id. at 280–82. And there were no
cases squarely holding that we had the authority to do so. But based on our analysis of
Jones v. State,
414 Md. 686 (2010), “we conclude[d] that the Court of Appeals recognized
our discretionary authority, in cases where the trial court fails to properly merge the
convictions for sentencing purposes, to vacate the sentences on all of the convictions
involved in the merger and to remand the case to the trial court for the imposition of a new
sentence on the conviction remaining for a sentence after merger has been accomplished.”
Twigg, 219 Md. App. at 284–85 (emphasis added).
The Court of Appeals disagreed with us on the extent to which Mr. Twigg’s
sentences merged—it vacated the sentence for second-degree rape—but otherwise
affirmed. Twigg, 447 Md. at 18–19. As we had, the Court of Appeals “recognized, with at
least tacit approval, the propriety of resentencing on a greater offense upon merger for
sentencing purposes of a lesser included offense.” Id. at 20 (discussing Jones). The Court
also noted that Mr. Twigg “offer[ed] no authority for the proposition that remand for
resentencing, as was done in Jones and as the Court of Appeals did in the present case, is
9
unauthorized by Maryland statute, our rules, or our case law, and we are not aware of any.”
Id. at 21.
As a matter of holding, then, Twigg stands for the proposition that appellate courts
have the discretionary authority to remand cases for resentencing in response to their
decision that the trial court’s sentencing package has been disrupted by mergers the trial
court didn’t anticipate or consider. Neither Twigg opinion remotely suggests that
resentencing is compulsory or that the State or the trial court is entitled to another bite at
the sentencing apple. To the contrary, our Court’s opinion in Twigg highlighted and relied
on the extreme result of the merger decisions in that particular case—we qualified the first
holding by saying that “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 appellant for his sexual child abuse conviction . . . .” Id. at 282. And
although the Court of Appeals’s discussion doesn’t repeat the limitation in so many words,
it expressly endorsed the remand “as was done in Jones and as the Court of Special Appeals
did in the present case,” Twigg, 447 Md. at 21, which comes pretty close.
As a matter of principle, nothing in Twigg appears to preclude an appellate court
from ordering a Twigg remand in a case where the sentencing package was disturbed by a
decision to reverse a conviction. But by the same token, Twigg can’t reasonably be read to
compel a remand under these circumstances, especially if a remand is discretionary in a
merger case such as Twigg. The authority to order a remand for resentencing lies in the
discretion of the appellate court that reviewed the conviction and decided to reverse it. And
in this case, the three members of the panel reached different conclusions about whether
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the Court should exercise its discretion to order a remand. There is no debate among us
about whether we could, only whether this is an appropriate case to exercise that discretion.
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