Thomas v. State

¶1dissenting in part.

¶2The Court today reverses a sentence as cruel and unusual punishment, even though it holds that sentence is within the *109permissible range of punishment for the crime charged. Had the Court reached the same result by simply extending the holding (albeit ignoring some of the dicta) in Simms v. State, 288 Md. 712, 421 A.2d 957 (1980) to uncharged greater offenses, I would join in the decision and the result. Instead, for the first time in its history, the Court reverses a sentence for being cruel and unusual punishment, and in doing so gives little guidance to trial judges.

¶3I.

¶4In Simms, a defendant was acquitted of a statutory aggravated assault count and convicted of the common law assault count. He was sentenced to twelve years on the common law assault charge when the aggravated assault for which he was acquitted carried only ten years. This Court vacated the sentence, not because it was cruel and unusual, but because “[t]o uphold the twelve year sentence[ ] under these circumstances would be to sanction an extreme anomaly in the criminal law. It would permit a defendant to be punished more severely because of an acquittal on a charge. He would have fared better if he were less successful or had pled guilty to the greater charge.... ” 288 Md. at 723-24, 421 A.2d at 963. Simmswas founded on Maryland common law and, apparently, principles of “fairness,” rather than the constitutional prohibitions against cruel and unusual punishment. Where it is clear that a common law assault is a lesser included offense of a greater aggravated assault and there are no other aggravating factors, the Simmsrationale ought to be applicable and the punishment for the common law assault should be limited by the punishment for the greater statutory offense whether the defendant is acquitted of the greater offense or never charged with it.

¶5In Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987), this Court reiterated that, where a statutory aggravated assault count is nol prossed during trial, the nol prossed count “places a cap upon the possible maximum sentence on the lesser included simple assault charge.... ” 310 Md. at 692, 531 A.2d *110at 680. The justification for this holding was that “[t]he anomaly pointed to in the Simmsopinion ... may arise when the greater charge is nol prossed.” 310 Md. at 694, 531 A.2d at 681. The Johnsonrationale should be extended to cover uncharged aggravated assaults as well as nol prossed aggravated assaults. The same "fairness” that led to the limitation on punishment of common law assaults, which are clearly lesser included offenses of nol prossed aggravated assaults, is equally applicable to common law assaults which are clearly lesser included offenses of uncharged aggravated assaults. It would seem that the anomaly that is present when the State elects to nol pros what is clearly a greater aggravated assault is also present when the State elects not to charge the greater aggravated assault.

¶6If an assault clearly was a lesser included offense and, at most, involved an intent to maim, then the sentence should reasonably be limited to the maximum for assault with intent to maim. The same holds true for an assault and battery where the intent was, at most, an intent to murder; the punishment should be limited by the maximum for assault with intent to murder. If, however, there were conceivably two or more intents, e.g., clubbing a woman with the intent to disable and then rape her, then the punishment for the assault would only be limited to the maximum for an assault with intent to rape and an assault with intent to disable consecutively. Also, if the assault and battery were committed on a victim of a class deserving special protection, that should aggravate the offense, and the assault and battery might not be simply a lesser included. offense. For assaults on people deserving special protection, the punishment might permissibly exceed the maximum for assault with intent to disable or murder. For example, assaults on infants, the handicapped, the aged, police officers, prison guards, etc., have aggravating elements and might not be simply a lesser included offense of assault with intent to disable or assault with intent to murder. Had the majority based its holding on an extension of Simmsand Johnson, I would be in full agreement. The Court, *111however, rejects this common law limitation and concludes that “Simms has direct application only when a greater offense has been charged and jeopardy has attached with respect to that greater offense.” 333 Md. at 91, 634 A.2d at 4.

¶7II.

¶8The majority opinion reaffirms the line of cases holding that a twenty-year sentence for the common law crime of assault and battery is permissible. It then goes on to do something that this Court has never done before; it reverses, as cruel and unusual punishment, a sentence within the permissible range of punishment for the crime.

¶9Neither sentence imposed for Mr. Thomas’s course of vicious, escalating spousal abuse should result in this Court’s first reversal of a sentence as cruel and unusual punishment. There were good reasons why the trial judge intended to impose the maximum permissible sentences permitted by law for the April 2nd assault and battery as well as for the April 8th assault and battery. Contained in the court file is a letter, from the manager of the family violence shelter who was assisting Ms. Thomas, which states that “[Mr. Thomas] has demonstrated his contempt for the law and we feel he is capable and serious of carrying out his threat to kill Ms. Thomas.” The twenty-year sentence for the April 2nd offense was harsh, but it was unquestionably within the range of punishment permitted for the crime of assault and battery by a substantial number of prior cases. The sentence was justified by Mr. Thomas’s record of assaults and his intent, as evidenced by his threats and his actions, to kill Ms. Thomas whenever he is released from prison.

¶10The majority acknowledges that this Court and the Court of Special Appeals “have sustained 20-year sentences for common law assault against both constitutional and legal attacks____” 333 Md. at 98, 634 A.2d at 8. A case on point is Roberts v. Warden, 242 Md. 459, 219 A.2d 254, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966), where the *112defendant pled guilty to two counts of common law assault on two police officers. The nature and severity of the assaults in Robertswere apparently not considered relevant by this Court because they were not even discussed. The only way one can piece together the facts surrounding the assaults is through prior case history,1 which indicates that Roberts claimed he pled guilty to two technical common law assaults on police officers. He attempted to explain the assaults he pled guilty to by claiming he accidently shot one of the officers and then struck the other officer with the butt of the gun in self defense to keep from being shot himself. This Court held that the two, twenty-year consecutive sentences for the two counts of simple assault did not constitute cruel and unusual punishment without even reviewing the facts surrounding the assault. Roberts v. Warden, 242 Md. at 461, 219 A.2d at 255.

¶11This Court also addressed whether a sentence for assault constituted cruel and unusual punishment in Adair v. State, 231 Md. 255, 189 A.2d 618 (1963), In Adair, the defendant was convicted of assault with intent to rape one victim and sentenced to life imprisonment. He was convicted of common law assault on a second victim and sentenced to a twenty-year consecutive sentence for the assault. Again without any discussion of the nature and severity of the assault, this Court stated simply: “The sentence of twenty years’ confinement for assault did not constitute ‘cruel and unusual punishment’ contrary to Articles 16 and 25 of the Maryland Declaration of Rights.” 231 Md. at 256, 189 A.2d at 619. The majority apparently went back to the thirty-year-old briefs to ascertain the nature of the assault even though, when the AdairCourt *113held that the twenty-year sentence for assault did not constitute cruel and unusual punishment, the facts were not deemed sufficiently relevant to be discussed by this Court.

¶12In the instant case, the April 2nd assault, giving the judge the benefit of the doubt and taking the testimony in the light most favorable to the State, was a serious instance of spousal abuse. Shirleen Thomas testified that on April 2nd, the police were called to her home and warned her husband against future assaults. In Shirleen Thomas’s testimony on the witness stand, she maintained that the description of the incident included in the application for statement of charges was correct. She confirmed that “[Mr. Thomas] got real angry because the police was called. He cussing and destroyed some of the items in the apartment. Then he went in the kitchen to get a knife, which he pulled on me. Then he took his hand and struck on the right side of the face.... ” At the conclusion of the State’s case, in denying a motion for judgment of acquittal, the trial judge stated that “[Mr. Thomas] did cause injury to her face which may or may not have been a scar and may or may not have been a permanent or temporary scar____” It is reasonable to assume the trial judge felt the twenty-year sentence was justified because 1) Mr. Thomas had two prior convictions for assault, one sentence was suspended and he served a jail sentence for his other previous assault; 2) the April 2nd assault was committed immediately after Mr. Thomas was warned by the police; 3) Mr. Thomas subsequently committed another much more violent assault on Ms. Thomas in spite of a protective order; and 4) even after being incarcerated for those offenses, he repeatedly threatened to kill Ms. Thomas. The judge believed these threats would be carried out if Mr. Thomas was ever released.

¶13The legislature has set up a procedure for review of criminal sentences by a panel of three or more trial judges under Maryland Code (1957, 1992 Repl.Vol.), Article 27, §§ 645JA through 645JG. Thomas sought a review of his sentences and after a hearing a panel of three circuit court judges unanimously decided both assault sentences should remain un*114changed. That decision by three experienced trial judges provides some indication that the twenty-year sentence is not unreasonable and should not be considered cruel and unusual punishment.

¶14What are the factors that, according to the majority, make this twenty-year sentence for assault and battery cruel and unusual punishment when previously every other twenty-year sentence for assault and battery was not. We are not given much guidance. We are given only a factual analysis where the majority seems to have made its own findings of fact instead of taking the testimony and reasonable inferences in the light most favorable to the trial judge’s decision. For example, the majority states that “the battery in this case did not result in any lasting physical injury, and cannot be considered legally ‘serious.’ ” 333 Md. at 98, 634 A.2d at 7. This seems to create a brand new category of “not legally serious” common law assaults. This assault was “legally serious.” Thomas outweighs his wife by approximately 40 pounds and is over a foot taller than she. The judge could reasonably have assumed that the “slap” was to punish Ms. Thomas for calling the police and was committed with all the force Thomas could muster. The majority opinion goes on to state, “[t]he sentence is not the result of a recidivist history.” 333 Md. at 98, 634 A.2d at 7. This ignores Thomas’s two prior convictions, one with a jail sentence imposed for assault and battery. It also ignores the very serious subsequent assault he committed on his wife. In addition, the majority states that “[t]he sentence was not based on any ... judicial decision to impose severe penalties to deter domestic violence because of its societal impact.” 333 Md. at 98, 634 A.2d at 7. To the contrary, the judge specifically stated, “I don’t have one particular offense here. I’ve got a continuation of offenses and they’re called spouse abuse. In this case, wife abuse. Very seldom is it one particular act and very seldom does it represent a passing motivation.” The judge further stated, “everything that has been tried has not changed his behavior — has not deterred his obsessiveness with doing physical *115harm to her, even including incarceration.”2 This sentence was deemed necessary in order to deter spousal abuse and to prevent severe future harm to this victim.

¶15When is a sentence for assault and battery cruel and unusual punishment? The majority provides us with little or no guidance — we can assume that, if on resentencing the judge gives Thomas nineteen years, the sentence would probably be reversed, but what about a fifteen-year sentence or a ten-year sentence. Judges need to know, and are entitled to know, what the maximum permissible punishment is for any crime. Some people, and Mr. Thomas is one, deserve the maximum permissible punishment for their crime. The Court reiterates that twenty years imprisonment is still a permissible punishment for the common law crime of assault and battery, but it leaves several questions unanswered. Are there “legally serious” and “not legally serious” degrees of common law assault carrying different maximum penalties? What is the maximum, constitutionally permissible sentence for the assault and battery in the instant case? The trial judge obviously intended to give Thomas the maximum sentence — the Court should give the judge some guidance for resentencing.

¶16The majority quotes with approval Justice Kennedy’s concurring opinion in Harmelin v. Michigan,3501 U.S.-, 111 *116S.Ct. 2680, 115 L.Ed.2d 836 (1991). In that same opinion Justice Kennedy also stated:

“[T]he objective line between capital punishment and imprisonment for a term of years finds frequent mention in our Eighth Amendment jurisprudence. By contrast, our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years. ‘It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not[.]’ Although ‘no penalty is per se constitutional,’ the relative lack of objective standards concerning terms of imprisonment has meant that ‘ “[ojutside the context of capital punishment, successful challenges to the proportionality of particular sentences [are] exceedingly rare.” ’ ” (Emphasis in original) (citations omitted).

¶17Harmelin, 501 U.S. at-, 111 S.Ct. at 2705, 115 L.Ed.2d at 868-69 (quoting Solem v. Helm, 463 U.S. 277, 289-90, 294, 103 S.Ct. 3001, 3009-10, 3012, 77 L.Ed.2d 637, 649, 652 (1983) (footnote omitted), in turn quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 390 (1980)).4 Longer sentences than those imposed in the instant *117case have been upheld for conduct which some may consider less reprehensible than Mr. Thomas’s violent attacks on his spouse. See Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (holding a sentence of twenty years for possession with intent to distribute nine ounces of marijuana was not cruel and unusual punishment and that an extensive proportionality review was unnecessary); Rummel, 445 U.S. at 285, 100 S.Ct. at 1145, 63 L.Ed.2d at 397-98 (holding mandatory life sentence pursuant to Texas recidivist statute for obtaining $120.75 by false pretenses did not constitute cruel and unusual punishment where defendant was previously convicted of two other nonviolent crimes — fraudulent use of a credit card for $80.00 worth of goods and passing a forged check in the amount of $28.36). It is noteworthy that the majority does not analogize to, rely on, or even cite any case from any jurisdiction which reverses any sentence as being cruel and unusual punishment.5

¶18There is no question that the twenty-year sentence in the instant case was harsh. But even if the sentence was harsh and even if the three-judge panel that reviewed the sentence should have reduced it, that does not make the sentence cruel and unusual punishment. No prior twenty-year sentence for the crime of assault and battery has ever been held to be cruel and unusual punishment, and there are at least six reported appellate decisions sustaining twenty-year sentences for assault and battery against such constitutional attacks.6 When *118we consider the totality of circumstances including that the assault and battery was committed by a man with two prior convictions for the same crime, who continued with escalating ferocity to assault his wife and who we may assume, if released, would carry out his threats to kill his wife, this sentence does not warrant being the first sentence ever reversed by this Court as cruel and unusual punishment.

¶19I respectfully dissent from Part II, III, A and B of the Court’s opinion.

¶20Judge RODOWSKY has authorized me to state that he joins in the views expressed in Part II in this dissenting opinion.

¶27concurring and dissenting.

¶28I am in complete agreement with the analysis employed, and the decision reached, by the majority with respect to the April 2nd battery. I, therefore, join the majority opinion in that regard. Although I agree with much of the analysis, I am unable to agree with the result reached by the majority with respect to the April 8th battery. As to that, then, I dissent.

¶29The petitioner received a thirty year sentence for a battery which was a lesser included offense of assault with intent to murder, with which he was also charged and of which he was acquitted. In upholding that sentence, the majority relies on the principles we enunciated in Simms v. State, 288 Md. 712, 421 A.2d 957 (1980). Recognizing that, under Simms,

when a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convicted only of the lesser included charge, he *119may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge,

¶30id. at 724, 421 A.2d at 964, it holds that Simmsdoes not operate to bar the sentence of thirty years. In its view, it simply is a cap; thus, as such, it only prevents a sentence exceeding, not one that equals, the maximum sentence permitted by the greater offense.

¶31To be sure, Simmsis susceptible to being interpreted as establishing a cap on the sentence that may be imposed for a lesser included offense when the greater offense has been charged. See Johnson v. State, 283 Md. 196, 388 A.2d 926 (1978), upon which Simmsrelied. The facts of that case and the Court’s rationale, however, are revealing. Having been acquitted of assault with intent to rob, which carried a maximum sentence of ten years, Simms and Thomas were sentenced to twelve years imprisonment. This Court was concerned that “it is only because each defendant was acquitted on the assault with intent to rob charge that the longer twelve year sentences arguably became legally permissible. But for the acquittals, each defendant would of necessity have received lighter sentences.” Simms, 288 Md. at 723, 421 A.2d at 963 (emphasis added). The Court explained:

To uphold the twelve year sentences under these circumstances would be to sanction an extreme anomaly in the criminal law. It would permit a defendant to be punished more severely because of an acquittal on a charge. He would have fared better if he were less successful or had pled guilty to the greater charge of assault with intent to rob. Cf. Johnson v. State, 274 Md. 536, 543, 336 A.2d 113[, 117] (1975), holding that “a price may not be exacted nor a penalty imposed for” pleading not guilty.

¶32Id. at 723-724, 421 A.2d at 963.

¶33In this case, as in Simms, the petitioner was acquitted of the greater offense, only in this case, the greater offense carried a maximum penalty more severe than the lesser *120included one.1 Although certainly not the same, I see an anomaly in this situation, the converse to that identified in Simms. The benefit of obtaining an acquittal of the greater offense is that imposition of its maximum sentence of thirty years is avoided. If the same sentence may be imposed notwithstanding that he has successfully defended that charge — the petitioner is nevertheless sentenced to thirty years albeit on the basis of the “lesser included” offense,2 the petitioner is denied that benefit. While not as reprehensible as punishing the defendant more severely, allowing the imposition of the same sentence, despite the acquittal for the greater offense, does not take account of, or give effect, to that acquittal. The anomaly presented by that case is that the *121petitioner may be punished as severely as for the most reprehensible conduct, even though the conduct for which he was convicted has been determined not to have been so blameworthy.

¶34I would hold that the petitioner could have received no more than twenty years for the April 8th battery.