Twigg v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1878

September Term, 2011

DONALD R. TWIGG

v.

STATE OF MARYLAND

Woodward,
Nazarian,
Salmon, James P.
(Retired, Specially Assigned),

JJ.

Opinion by Woodward, J.

Filed: October 1, 2014
 On August 3, 2011, a jury in the Circuit Court for Charles County found appellant,

Donald R. Twigg, guilty of second degree rape, third degree sexual offense, incest, and

sexual child abuse. The victim was appellant’s minor daughter, and the offenses occurred

between the years 1974 and 1979. On October 17, 2011, the circuit court imposed a separate

sentence on each conviction, to be served consecutively, totaling forty years of incarceration,

followed by a fifteen-year suspended sentence for the sexual child abuse conviction, with

five years of probation.

On appeal to this Court, appellant presents one issue for review,1 which we have re-

phrased as a question:

Did the trial court err in imposing separate sentences on appellant for
second degree rape, third degree sexual offense, and incest?

We will answer this question in the affirmative, and vacate all of the sentences

imposed on appellant and remand the case for the imposition of a new sentence.

BACKGROUND

In the underlying criminal action, appellant was indicted by a Grand Jury in Charles

County, Maryland on October 29, 2010, on six counts: (1) sexual child abuse; (2) carnal

knowledge; (3) second degree rape; (4) second degree sexual offense; (5) third degree sexual

offense; and (6) incest. The victim of all of the charges was appellant’s daughter, Ms. M.,

who was born on March 26, 1964. The offenses charged in the indictment allegedly occurred

1
Appellant’s issue presented, in the words of his brief, is as follows:

Whether separate convictions and/or sentences for second degree
rape, third degree sexual offense, and/or incest cannot [sic] stand.
from 1974 to 1979, when Ms. M. was nine to fourteen years old. On August 2 and 3, 2011,

appellant was tried in the circuit court before a jury on all six charges.

At trial, Ms. M. testified that, beginning when she “was around the age of 7 years

old,” appellant began to sexually abuse her, and the abuse continued until she was “[r]oughly

15 and ½.” Specifically, Ms. M. stated that, while she was living at home, appellant would

come into her room at night and put his hand under her shirt or nightgown, which later

progressed to appellant putting “his finger inside of [her] vagina and . . . [her] hand on

[appellant’s] penis . . . until he had an orgasm.” In addition, Ms. M. testified that, “around

age 12, [appellant] started to penetrate [her] with his penis.” Ms. M. indicated that the

instances of penetration ceased when she was approximately fifteen and a half years old. Ms.

M. said that overall, the incidents of vaginal intercourse occurred “several times.” According

to Ms. M., these incidents occurred in the basement of the family home and in appellant’s

van in nearby parking lots.

Ms. M. also acknowledged that she was currently involved in several lawsuits against

appellant concerning family property and bank accounts. She testified, however, that the

property disputes were not the reason that she had come forward with allegations of sexual

abuse.

Detective Corporal Kenneth Klezia, of the Charles County Sheriff’s Office’s Special

Victims Unit, testified that, on October 9, 2010, he met with Ms. M. to conduct a recorded

telephone call between Ms. M. and appellant. During the recorded conversation, appellant

2
stated that he always used condoms when having sex with Ms. M. to prevent pregnancy.

At the close of the State’s case-in-chief, appellant moved for judgment of acquittal

pertaining to the second degree sexual offense charge, which was granted. Appellant then

testified in his own defense, denying all allegations of sexual abuse and claiming a

misunderstanding regarding the recorded telephone conversation. In addition, appellant

testified to several recent disputes between himself and Ms. M. involving jewelry, money,

and property.

At the close of all of the evidence, appellant moved for judgment of acquittal as to the

carnal knowledge count, which the trial court took under advisement. The jury returned

verdicts of guilty on the charges of: sexual child abuse (from July 1, 1974 to January 1,

1979); carnal knowledge (from March 25, 1974 to June 30, 1976); second degree rape (from

July 1, 1976 to March 25, 1978); third degree sexual offense (from July 1, 1976 to March 25,

1978); and incest (from March 25, 1974 to January 1, 1979). The court then granted

appellant’s motion for judgment of acquittal as to the carnal knowledge count.

On October 17, 2011, the circuit court sentenced appellant to consecutive sentences

of: twenty years for second degree rape; ten years for third degree sexual offense; ten years

for incest; and a suspended sentence of fifteen years for sexual child abuse, with five years’

supervised probation. Appellant timely noted an appeal to this Court.

STANDARD OF REVIEW

In Khalifa v. State, the Court of Appeals explained the standard of review governing

3
a constitutional claim:

“When a claim is based upon a violation of a constitutional
right it is our obligation to make an independent constitutional
appraisal from the entire record. But this Court is not a finder of
facts; we do not judge the credibility of the witnesses nor do we
initially weigh the evidence to determine the facts underlying the
constitutional claim. It is the function of the trial court to ascertain
the circumstances on which the constitutional claim is based. So, in
making our independent appraisal, we accept the findings of the trial
judge as to what are the underlying facts unless he is clearly in error.
We then re-weigh the facts as accepted in order to determine the
ultimate mixed question of law and fact, namely, was there a violation
of a constitutional right as claimed.”

382 Md. 400, 417 (2004) (quoting Harris v. State, 303 Md. 685 (1985)). The Court of

Appeals further counseled that, “although we do not engage in de novo fact-finding, our

application of the law to the facts is de novo.” Khalifa, 382 Md. at 417 (citation omitted).

DISCUSSION

On appeal to this Court, appellant argues that “the application of principles of double

jeopardy provide[] that the convictions and/or sentences for second degree rape, third degree

sexual offense, and/or incest must merge into the conviction and/or sentence for sexual child

abuse.” Appellant cites to Nightingale v. State, 312 Md. 699 (1988), in support of the

proposition that, “separate judgments for child abuse and underlying sexual offenses of any

kind or degree violate the prohibition against double jeopardy.” Appellant argues that,

“although the Legislature amended the law pertaining to child abuse in response to

Nightingale in order to allow separate sentences for child abuse and the underlying conduct,

there was no provision for retrospective application of the change” that would apply to

4
appellant’s conduct from 1974 to 1979. Any such retrospective application, according to

appellant, would violate both federal and state constitutional prohibitions against ex post

facto laws. Appellant concludes that, because the several sex offenses merge into the sexual

child abuse for sentencing purposes, the “judgments on the charges of second degree rape,

third degree sexual offense, and incest” must be vacated.

In response, the State argues that, “[w]hen a legislature has clearly indicated that it

intends to permit multiple punishment[s] for offenses that otherwise would be considered

the ‘same offense’ pursuant to the test set forth in Blockburger v. United States, 284 U.S.

299 (1932), double jeopardy principles do not prevent the imposition of multiple sentences

in a single trial.” Further, the State asserts that the General Assembly has provided

“unmistakably clear legislative intent to permit separate sentences,” and thus, appellant’s

sentences are not violative of double jeopardy. Accordingly, the State concludes that “[t]he

trial court properly imposed separate sentences on [appellant]’s convictions for child abuse,

second degree rape, third degree sexual offense, and incest.” We agree with appellant and

will explain.

I.

The Required Evidence Test

“The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states by the Fourteenth Amendment, provides the

criminally accused with protection from, inter alia, multiple punishment stemming from the

5
same offense.” Purnell v. State, 375 Md. 678, 691 (2003), superseded by statute on other

grounds as recognized in Alexis v. State, 209 Md. App. 630, 677 (2013). “[D]espite the lack

of a double jeopardy clause in its Constitution, Maryland’s common law provides protection

from double jeopardy to the criminally accused.” Purnell, 375 Md. at 691. “Multiple

punishment challenges generally arise in two different sets of circumstances: those involving

two separate statutes embracing the same criminal conduct, and those involving a single

statute creating multiple units of prosecution for conduct occurring as a part of the same

criminal transaction.” Richmond v. State, 326 Md. 257, 261 (1992) (citations omitted).

When resolving whether two offenses are deemed the same for the purpose of a

double jeopardy challenge, Maryland courts have generally applied the Blockburger

“required evidence test” set forth by the Supreme Court in Blockburger v. United States, 284

U.S. 299 (1932). See Miles v. State, 349 Md. 215, 219 (1998) (“We have often pointed out

that, as a matter of Maryland common law, the normal standard for determining whether one

offense merges into another is what is usually called the ‘required evidence test.’”). The

Blockburger required evidence test “focuses upon the elements of each offense; if all of the

elements of one offense are included in the other offense, so that only the latter offense

contains a distinct element or distinct elements, the former merges into the latter.” State v.

Jenkins, 307 Md. 501, 517 (1986) (citations omitted).

In State v. Lancaster, 332 Md. 385 (1993), the defendant was found guilty pursuant

to two statutes:

6
 Maryland Code (1957, 1992 Repl. Vol.), Art. 27, § 464C(a)(2), which
prohibits, inter alia, engaging in fellatio “with another person who is
14 or 15 years of age and the person performing the sexual act is four
or more years older than the other person.” Based upon the same acts
of fellatio, the defendant was also found guilty of committing an oral
sex act in violation of Art. 27, § 554, which makes it unlawful, inter
alia, for a person to take “into his or her mouth the sexual organ of
any other person . . . .”

Id. at 389-90. After receiving separate sentences under each statute, the defendant appealed

to the Court of Special Appeals. Id. at 390. The Court of Special Appeals vacated the

sentence imposed under § 554, reasoning that, “the § 554 offense was an included offense

which, for sentencing purposes, merged into the § 464C(a)(2) offense.” Id. at 390-91.

The Court of Appeals granted certiorari to “consider the State’s argument that the

§ 554 offense charged in this case has a distinct element not found in the § 464C(a)(2)

offense and that, for this reason, the § 554 offense is not included within the § 464C(a)(2)

offense and therefore does not under Maryland law merge into the § 464C(a)(2) offense.”

Id. The Court of Appeals explained that, under Maryland law, the Blockburger required

evidence test was to be utilized as a “threshold test,” and that “[i]t is only when there is no

merger under the required evidence test that other criteria are considered to determine

whether the offenses should merge.” Id. at 394.

The Court discussed the required evidence test in detail:

We have often pointed out that under settled Maryland
common law, the usual rule for deciding whether one criminal offense
merges into another or whether one is a lesser included offense of the
other, when both offenses are based on the same act or acts, is the so-
called required evidence test.

7
 The required evidence test focuses upon the elements of
each offense; if all of the elements of one offense are included in
the other offense, so that only the latter offense contains a distinct
element or distinct elements, the former merges into the latter.
Stated another way, the required evidence is that which is minimally
necessary to secure a conviction for each offense. If each offense
requires proof of a fact which the other does not, or in other words, if
each offense contains an element which the other does not, there is no
merger under the required evidence test even though both offenses are
based upon the same act or acts. But, where only one offense requires
proof of an additional fact, so that all elements of one offense are
present in the other, and where both offenses are based on the same
act or acts, merger follows[.]

When there is a merger under the required evidence test,
separate sentences are normally precluded. Instead, a sentence
may be imposed only for the offense having the additional element
or elements.

When applying the required evidence test to multi-purpose
offenses, i.e., offenses having alternative elements, a court must
examine the alternative elements relevant to the case at issue.

Id. at 391-92 (internal alterations, quotations, ellipses, and citations omitted) (emphasis

added).

The Court of Appeals identified § 464C(a)(2) and § 554 as “multi-purpose” statutory

provisions—i.e., containing alternative elements in the disjunctive—and explained that in

analyzing a multi-purpose statute a court must apply the required evidence test to the element

or elements before it. Id. at 398-99. The Court proceeded, applying the required evidence

test to the multi-purpose § 554 statute:

The statutory element of § 554 relevant to this case is the
defendant’s “taking into his . . . mouth the sexual organ of any other
person . . . .” This element would appear to be fully encompassed by

8
 the elements of the § 464C(a)(2) offense, because a forbidden “sexual
act” under § 464C(a)(2) is statutorily defined as including fellatio and
cunnilingus. The § 554 offense has no additional elements. A person
cannot commit a fourth degree sexual offense under §464C, as
charged in this case, without also violating § 554. Consequently, we
reject the State’s argument that the § 554 offense of which the
defendant was convicted contained an element distinct from the
elements of the § 464C(a)(2) offense of which he was convicted. The
State has not established any error in the Court of Special Appeals’
holding that the § 554 offense is an included offense and, for
sentencing purposes, merges into the § 464C(a)(2) offense.

Id. at 401.

In Nightingale v. State, 312 Md. 699 (1988), the Court of Appeals considered two

defendants who claimed that their sentences for child abuse and sexual offenses could not

stand, because the crimes were the same under the required evidence test of Blockburger.

Id. at 702. The first defendant, Nightingale, received two consecutive fifteen-year sentences

for child abuse and second degree sexual offense, resulting from his conduct between 1977

and 1982.2 Id. at 701. The second defendant, Myers, was found guilty of two counts of child

abuse, one count of second degree sexual offense, two counts of third degree sexual offense,

and two counts of fourth degree sexual offense, on two consolidated informations stemming

from his conduct from 1983 through 1985. Id. Myers received four concurrent sentences

for the first criminal information (the longest being twenty years for second degree sexual

2
The crimes committed in Nightingale v. State, 312 Md. 699 (1998), were during part
of the same time period that appellant in the case sub judice committed his crimes. As will
be discussed infra, Nightingale and White v. State, 318 Md. 740 (1990), were superseded by
statute in 1990.

9
offense), three concurrent sentences for the second criminal information (the longest being

fifteen years for child abuse with ten years suspended); and the sentences for the second

criminal information were made consecutive to those imposed in the first criminal

information. Id. at 702. The Court of Special Appeals affirmed the convictions and

sentences of Nightingale and Myers in two unreported opinions. Id. at 701-02.

The Court of Appeals granted certiorari to determine whether

separate convictions and sentences for both child abuse and second,
third, or fourth degree sexual offense [are] improper where the State
relies on and proves the sexual offense to sustain the child abuse
conviction[.]

Id. at 700.

After analyzing the relevant statutes, the Court stated

that child abuse, taken in its broadest sense, involves certain elements
(e.g., physical harm and a particular relationship between actor and
victim) that none of the sexual offenses do. By the same token, each
of the sexual offenses requires some element (e.g., performance of a
sexual act or sexual contact and sexual arousal or gratification) that
child abuse does not. But the analysis does not end at this point.
When a multi-purpose criminal statute is involved, we refine it by
looking at the alternative elements relevant to the case at hand.

Id. at 705.

The Court then concluded

that each jury could have found the defendant before it guilty of child
abuse based solely on evidence of a sexual offense in some degree.
If that were done, then the sexual offense became, in effect, a lesser
included offense of sexual child abuse, and . . . the offenses are the
same for double jeopardy purposes.

10
Id. at 708.

The Court, however, could not merge the sexual offenses into the child abuse

convictions under the required evidence test, because “we cannot tell whether these general

verdicts of guilty were based on the use of sexual offenses as lesser included offenses (or

elements) of child abuse, or whether the child abuse verdicts were based on other reasons

(e.g., some sort of sexual molestation which the juries thought did not rise to the level of a

sexual offense in any degree).” Id. Nevertheless, the Court resolved the ambiguity in favor

of the defendants and set aside the judgments on the sexual offense counts. Id.

Turning now to the matter sub judice, it is clear to this Court that, pursuant to the

Blockburger required evidence test as set forth in Lancaster and Nightingale, appellant’s

convictions for second degree rape, third degree sexual offense, and incest merge into the

conviction for sexual child abuse for sentencing purposes. Nightingale specifically provides

that, if a child abuse conviction is based solely on underlying sex offenses, the underlying

offenses will merge into the child abuse conviction for sentencing purposes. The record

before this Court demonstrates that the State based its argument for sexual child abuse solely

on the underlying sexual offenses committed by appellant, i.e., second degree rape, third

degree sexual offense, incest, and carnal knowledge from 1974 through 1979. Our analysis,

however, is not complete, because we next must determine whether the legislative intent

underlying the child abuse statute prevents merger from occurring in the instant case.

11
 II.

Legislative Intent

The Supreme Court has carved out an exception to the application of merger when the

required evidence test under Blockburger has been satisfied. In Albernaz v. United States,

450 U.S. 333 (1981), the Supreme Court considered whether sentences for conspiracy to

import marijuana and conspiracy to distribute marijuana were permitted under the required

evidence test. Id. at 335. Petitioners received consecutive sentences under each statutory

provision, with the total sentence exceeding the maximum that could have been imposed

under either conspiracy to import or conspiracy to distribute. Id. As an initial matter, the

Court reviewed the Blockburger test, labeling it a “rule of statutory construction . . . to be

used to determine whether Congress has in a given situation provided that two statutory

offenses may be punished cumulatively.” Id. at 337 (internal quotations omitted). The Court

explained:

Thus, the question of what punishments are constitutionally
permissible is not different from the question of what punishments the
Legislative Branch intended to be imposed. Where Congress
intended, as it did here, to impose multiple punishments, imposition
of such sentences does not violate the Constitution.

Id. at 344.

The Court then proceeded to affirm the sentences of the petitioners, determining that

the required evidence test was superceded by the fact that “Congress intended to permit the

imposition of consecutive sentences for violations of § 846 and § 963.” Id. at 343.

12
 Less than two years later, in Missouri v. Hunter, 459 U.S. 359 (1983), the Supreme

Court granted certiorari to decide

whether the prosecution and conviction of a criminal defendant
in a single trial on both a charge of “armed criminal action” and a
charge of first degree robbery—the underlying felony—violates the
Double Jeopardy Clause of the Fifth Amendment.

Id. at 360. The respondent was sentenced, pursuant to Missouri state law, to ten years for

robbery and a consecutive fifteen years for armed criminal action. Id. at 362. The Supreme

Court expressly rejected the view of the Missouri Supreme Court, which concluded that the

offenses were “the same offense” pursuant to Blockburger, and thus separate sentences

violated the double jeopardy clause. Id. at 364-65. The Court emphasized the priority of

legislative intent over the Blockburger required evidence test, stating:

Where, as here, a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those two
statutes proscribe the “same” conduct under Blockburger, a court’s
task of statutory construction is at an end and the prosecutor may seek
and the trial court or jury may impose cumulative punishment under
such statutes in a single trial.

Id. at 368-69. Upon remanding the matter back to the state court, the Supreme Court

concluded that, “[h]ere, the Missouri Legislature has made its intent crystal clear.

Legislatures, not courts, prescribe the scope of punishments.”3 Id. at 368.

3
As noted by the State in its brief in the instant case, subsequent to the Supreme
Court’s decisions in Albernaz and Hunter, Maryland case law evidences an adoption of the
idea that legislative intent controls the Blockburger test. See, e.g., Frazier v. State, 318 Md.
597, 613-14 (1990) (noting that clear legislative intent mandating separate punishments is
(continued...)

13
 Shortly following the Albernaz and Hunter decisions, the Court of Appeals had

occasion to scrutinize the legislative intent underlying the then child abuse statute, Maryland

Code (1957, 1987 Repl. Vol), Art. 27, § 35A, the same statute under which appellant in the

case sub judice was convicted.4 White v. State, 318 Md. 740 (1990). White was convicted

in the circuit court of first degree murder and child abuse. Id. at 741. White received a

sentence of life imprisonment for the first degree murder conviction and a consecutive

fifteen-year prison term for the child abuse conviction under Art. 27, § 35A. Id.

The Court of Appeals granted certiorari to determine “whether a conviction of child

abuse should merge into a murder conviction where both convictions are based on the same

act or acts.” Id. at 741-42. As to the legislative intent underlying Art. 27, § 35A, the Court

declared that

[t]here is nothing in the language of the Child Abuse Statute, or in its
legislative history, indicating whether the General Assembly intended
that a parent or one having custody should be sentenced for both child
abuse and murder where the malicious act causing physical injury
ultimately led to the death of the child. Clearly, in this regard the
statute is ambiguous as to whether separate punishment is in
order.

Id. at 748 (emphasis added). The Court concluded that, “in the absence of express statutory

language to the contrary, a child abuse conviction merges into a homicide conviction when

3
(...continued)
dispositive of the Blockburger test).
4
Maryland Code (1957, 1987 Repl. Vol), Art. 27, § 35 A is now codified in Criminal
Law Article, §§ 3-601 & 3-602.

14
both are based on the same act or acts.” Id.

Although we indicated above that appellant’s convictions for second degree rape, third

degree sexual offense, and incest would merge into his conviction for sexual child abuse for

sentencing purposes pursuant to the required evidence test, Hunter, Albernaz, and subsequent

Maryland decisions instruct that legislative intent can act to override convictions that would

otherwise merge under Blockburger. In White, the Court of Appeals recognized that

Albernaz allowed for the General Assembly to provide for separate punishments in the child

abuse statute for the underlying offenses, but determined that the legislative intent of Art. 27,

§ 35A on this subject was ambiguous. White, 318 Md. at 745, 748. In the instant matter,

because the acts that form the basis of appellant’s convictions occurred between 1974 and

1979, he was subject to the child abuse statute existing during that time—namely, Art. 27,

§ 35A. Because, under White, there is no clear legislative intent behind Art. 27, § 35A to

provide separate punishment for any offense underlying the child abuse conviction, our

determination that the Blockburger required evidence test mandates the merger of appellant’s

sexual offense convictions into the sexual child abuse conviction for sentencing purposes

remains undisturbed, at least for the moment. We must now consider the 1990 amendment

by the Maryland General Assembly to the child abuse statute.

III.

The 1990 Amendment

Following the Court of Appeals’ decisions in Nightingale and White, the General

15
Assembly amended the Maryland child abuse statute by passing House Bill 815, and its

companion bill, Senate Bill 421. The amendment added the following language to Art. 27,

§ 35A:

(b)(2) The sentence imposed under this section may be
imposed separate from and consecutive to or concurrent with a
sentence for any offense based upon the act or acts establishing the
abuse.

Art. 27, § 35A (eff. July 1, 1990) (underlines omitted). The purpose clause of Chapter 604

of the Acts of 1990—the legislation that amended Art. 27, § 35A—reads as follows:

FOR the purpose of reversing the holdings of the Maryland Court of
Appeals in the cases of Nightingale v. State (312 Md. 699, 542
A2d 373 (1988)) and White v. State (filed February 28, 1990)
by providing that if a conviction is entered against an
individual for murder, rape, sexual offense, any sex crime, or
any crime of violence, and a conviction is also entered for
child abuse, a court may impose a sentence for the other
offenses separate from and consecutive to or concurrent with
a sentence imposed for child abuse; and generally relating to
penalties for child abuse.

(underlines and strikeouts omitted).

The Court of Appeals commented on the above purpose clause in Fisher v. State, 367

Md. 218 (2001):

The purpose clause of Chapter 604 of the Acts of 1990 declares
that the Legislature intended to allow the imposition of multiple
sentences “if a conviction is entered against an individual for murder,
rape, sexual offense, any sex crime, or any crime of physical violence,
and a conviction is also entered for child abuse.” The philosophy
underlying present § 35C(b)(3)[formerly § 35A(b)(2)] is articulated
in a letter from an Assistant Attorney General to the Chairman of the
House Judiciary Committee urging the adoption of the bill that

16
 enacted § 35[A(b)(2)]. In part the letter reads:

Child abuse and the underlying crimes
involve separate societal evils. The
underlying crime is one of violence against a
member of society. Child abuse is a breach of
custodial or familial trust. The two crimes
should be punished separately and the
person who violates both laws should be
exposed to a greater possible penalty.

Id. at 242-43 (first emphasis in original; second emphasis added).

The State recognizes that the Court of Appeals’ decision in White finds ambiguity in

the legislative intent underlying Art. 27, § 35A, and argues that the General Assembly’s

intent in enacting the 1990 statutory amendment to overrule Nightingale and White was “not

because the legislature made a new judgment as to whether separate sentences were

permissible, but to correct an existing misperception.” The State asserts that “[t]he

amendment is not being applied retroactively to [appellant], nor is he subject to an ex post

facto law, as he also contends.” Rather, the State argues, appellant is being subjected to the

law as the legislature originally intended, pre-Nightingale and White. We disagree with the

State and shall explain.

Our review of the legislative history of the 1990 amendment to Art. 27, § 35A reveals

no language evidencing the General Assembly’s intent to make the amendment apply

retroactively. Nor is there anything in the record, or the legislative history, that supports the

State’s contention that the purpose of the 1990 amendment to the child abuse statute was to

clarify the General Assembly’s original intent rather than formulate a new intent. Indeed, the

17
legislative history indicates that the General Assembly believed that it had been given

newfound authority to override the required evidence test by amending the child abuse statute

to expressly say so.

An official copy of the 1990 Bill Analysis for Senate Bill 421, located in the bill file

for Senate Bill 421, which is maintained on microfilm in the state archives, clarifies that the

legislature intended to exercise new authority following the Supreme Court’s decision in

Hunter. The Bill Analysis includes a synopsis of Nightingale, followed by a synopsis of

Hunter, the latter stating: “[T]he United States Supreme Court held that if a legislature

specifically authorizes cumulative punishment under two statutes, a prosecutor may seek and

a trial court or jury may impose cumulative punishment under such statutes in a single trial.”

Below the summary of the Hunter decision is a handwritten note that states: “Merger No

longer is valid!!” In our opinion, this is convincing evidence that the legislature was made

aware of its authority to override merger under the required evidence test by “specifically

authoriz[ing]” cumulative punishment for certain designated of offenses, and thus the

General Assembly acted to do so prospectively by amending Art. 27, § 35A.5 Accordingly,

we conclude that the 1990 Amendment to the child abuse statute does not override the

5
In light of our determination that the 1990 amendment to the child abuse statute is
prospective only, there is no legal basis for the retroactive application of such amendment,
and thus the issue of whether the retroactive application of the 1990 amendment violates
Maryland or federal ex post facto laws does not arise. See Doe v. Dep’t of Pub. Safety and
Corr. Servs., 430 Md. 535, 568-69 (2013) (holding that the Maryland sex offense registry
statute, which is expressly made retroactive, violates the Maryland constitutional prohibition
against ex post facto laws).

18
teachings of Nightingale and White in the instant case, which mandate the merger of

appellant’s sexual offense convictions into his sexual child abuse conviction for sentencing

purposes.

IV

Retroactive Application of Nightingale and White

Finally, the State argues that appellant should “not receive the benefit of the Court of

Appeals’ decisions in Nightingale or White . . . as his offenses were committed before those

cases were decided.” Specifically, the State asserts that “[a]ll of the acts constituting

[appellant’s] conviction of child abuse predated the 1988 decision in Nightingale and the

1990 decision in White. The evidence showed that [appellant’s] abuse began in 1971,

although the jury’s verdict was based upon his conduct during the period from 1974 to

1979.” Again, we are not persuaded.

“In the overwhelming majority of cases, a judicial decision sets forth and applies the

rule of law that existed both before and after the date of the decision. . . . [I]n the ordinary

case, no issue of a ‘prospective only’ application arises.” Am. Trucking Ass’ns Inc. v.

Goldstein, 312 Md. 583, 591 (1988) (citations omitted). Retroactivity “is overwhelmingly

the norm, and is in keeping with the traditional function of the courts to decide cases before

them based upon their best current understanding of the law.” James B. Beam Distilling Co.

v. Georgia, 501 U.S. 529, 535 (1991). Where, however, the judicial decision overrides prior

law and declares a new principle of law, “prospective only” application arises. See Houghton

19
v. Cnty. Comm’rs of Kent Cnty., 307 Md. 216, 220 (1986). The Court of Appeals has

explained that, “where a decision has applied settled precedent to new and different factual

situations, the decision always applies retroactively, and it is only where a new rule

constitutes a clean break with the past that the question of prospective only application

arises.” Denisyuk v. State, 422 Md. 462, 478 (2011) (quoting United States v. Johnson, 457

U.S. 537, 549 (1982)) (internal quotations and alterations omitted).

It is clear that in Nightingale and White the Court of Appeals “applied settled

precedent to new and different factual situations.” See Denisyuk, 422 Md. at 478. In

Nightingale, the Court applied the principles of the required evidence test under Blockburger

to sexual offenses that formed the factual basis for a conviction for sexual child abuse. 312

Md. at 708. Indeed, the sexual offenses underlying the child abuse conviction is Nightingale

occurred between 1977 to 1982, which overlaps the time frame when appellant’s sexual

offenses were committed in the case sub judice: 1974 to 1979. In White, the Court used the

principles of statutory construction to ascertain whether the legislative intent of the child

abuse statute supported separate punishments for murder and child abuse where both

convictions were based on the same act or acts. 318 Md. at 748. Therefore, the Court of

Appeals in Nightingale and White elucidated the same law, and interpretation thereof, as

would apply to appellant’s conduct here. Accordingly, we hold that from 1974 through 1979,

when appellant committed the sexual offenses that formed the basis for his sexual child abuse

conviction, all of appellant’s convictions were subject to Maryland merger law as articulated

20
by the Court of Appeals in Nightingale and White.

V.

Remand

Because in the instant case the convictions for second degree rape, third degree sexual

offense, and incest merge into the conviction for sexual child abuse, the separate sentences

for those convictions must be vacated. See Moore v. State, 198 Md. App. 655 (2011). As a

result, appellant is no longer subject to the trial court’s sentences totaling forty years of

incarceration. What is left is a fifteen-year suspended sentence on the sexual child abuse

conviction. It is clear, however, that, had the trial judge been aware that a sentence could be

imposed on only the sexual child abuse conviction, the imposition of a fifteen-year

suspended sentence would have been highly unlikely. The issue then is whether this Court

can remand the case to the trial court for the purpose of imposing a new sentence on

appellant for the sexual child abuse conviction, and if so, whether there are any limitations

on the sentence that can be imposed by the trial judge, other than the maximum penalty

prescribed by the statute in effect at the time of the commission of the offenses underlying

the sexual child abuse conviction. Because the parties did not address these issues in their

respective briefs, this Court requested supplemental memoranda on the following questions:

1. Assuming, arguendo, that appellant’s convictions for second
degree rape, third degree sexual offense, and incest merge into the
child sexual abuse conviction for sentencing purposes (and thus the
sentences for all convictions except child sexual abuse will be

21
 vacated),[6] what authority permits or precludes this Court from
remanding the case to the circuit court for purposes of resentencing
appellant on the child sexual abuse conviction?

II. Assuming that a remand is either authorized or not precluded by
law, what, if any, limitations are placed on the trial court in
resentencing appellant, other than the maximum penalty prescribed by
the child abuse statute for offenses committed from July 1, 1974
through January 1, 1979.[7]

For the reasons that follow, we hold that (1) 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, and

(2) on remand, the trial court may impose any sentence it deems proper up to the maximum

penalty prescribed by the child abuse statute for such offense committed from July 1, 1974

through January 1, 1979.

A.

Authority to Remand for a New Sentence

In general, “where merger is deemed to be appropriate, this Court merely vacates the

sentence that should be merged without ordering a new sentencing hearing.” Carroll v. State,

6
As will be discussed infra, this Court has the authority, in its discretion, to vacate the
sentence on the sexual child abuse conviction and remand the case for the imposition of a
new sentence.
7
We do not believe, as appellant claims, that by addressing these issues, we will be
rendering an “improper advisory opinion.” Under Maryland Rule 8-131(a), this Court may
decide an issue not raised in or decided by the trial court “if necessary or desirable to guide
the trial court or to avoid the expense and delay of an other appeal.” In light of our decision
on the merger issue raised in the instant appeal, these issues will necessarily arise and need
to be resolved for the guidance of the trial court.

22
202 Md. App. 487, 518 (2011), aff’d 428 Md. 679 (2012); see also Washington v. State, 200

Md. App. 641, 664 (2011); Moore v. State, 198 Md. App. 655, 718 (2011). Under Maryland

Rule 8-604(d), however, “[i]f the Court concludes that the substantial merits of a case will

not be determined by affirming, reversing or modifying the judgment, or that justice will be

served by permitting further proceedings, the Court may remand the case to a lower court.”

(Emphasis added). In other words, in a case where the trial court fails to effect a merger as

required by law, this Court has the authority, in its discretion, to remand the case for the

purpose of the trial court imposing a new sentence on the conviction into which the other

conviction or convictions merged. Such discretionary authority was implicitly recognized

in the Court of Appeals’ opinion in Jones v. State, 414 Md. 686 (2010).

In Jones, this Court held in an unreported opinion that the appellant’s conviction for

first degree assault should merge, for sentencing purposes, into his conviction for robbery

with a dangerous weapon of the same victim. Id. at 690. Instead of simply vacating the

appellant’s sentence on the first degree assault conviction, we vacated the sentences on both

convictions and remanded the case to the circuit court “for imposition of a new sentence in

accordance with the views expressed in this opinion.” Id.

At the resentencing hearing, the appellant offered mitigating evidence, but the trial

court refused to consider such evidence. Id. at 690-91. The court stated: “I don’t believe

there is anything to mitigate on. I think this was sent back for merger.” Id. at 691. On

appeal, the appellant argued that the trial court should have permitted him to offer mitigating

23
evidence before resentencing him, and thus erred in failing to do so. Id. This Court

disagreed with the appellant, but, on certiorari review, the Court of Appeals agreed with the

appellant, holding that the trial court erred in “refus[ing] to allow mitigating evidence to be

adduced prior to the resentencing.” Id. at 692.

In its analysis, the Court of Appeals began by focusing on the mandate of this Court:

“Sentence imposed under Count 3 of indictment No.
103149031 for first-degree assault and sentence imposed under Count
1 of indictment No. 103149033 (robbery with a deadly weapon)
vacated; case remanded to the Circuit Court for Baltimore City for
imposition of a new sentence in accordance with the views expressed
in this opinion; judgments otherwise affirmed; costs to be divided
equally between appellant and the Mayor and City Council of
Baltimore.”

Id. at 690.

The Court went on to explain:

The mandate of the intermediate appellate court was clear: the
trial court was to issue “a new sentence in accordance with the views
expressed in [its] opinion.” The court certainly did not expressly
foreclose the trial court from considering mitigating evidence. It is
also significant that the “views expressed” did not include a directive
that the trial court impose a term of years, or any particular sentence.
The court simply held that a merger of two of the sentences was
required. . . .

***

Thus, the Court of Special Appeals only instructed the trial court to
merge the two convictions, for sentencing purposes, without any
additional express or implied limitations.

Id. at 692.

24
 The Court then determined that the specification of “a new sentence” in our mandate

meant that the proceeding on remand was “a sentencing.” Id. at 694. According to the

Court, a trial judge has “very broad discretion in sentencing,” while at the same time must

comply with the “the standard rules of sentencing,” namely Rule 4-342. Id. at 693-95.

Because Rule 4-342(f) requires that the trial court afford the defendant the opportunity,

before the imposition of sentence, “to make a statement and to present information in

mitigation of punishment,” the Court concluded that the failure of the trial court in Jones to

comply with such requirement mandated a resentencing. Id. at 703.

In sum, the Court of Appeals relied on the language of this Court’s mandate in Jones

in reaching its holding that the appellant was entitled to present mitigating evidence at his

resentencing. Our mandate provided that the sentences for both the merging conviction and

the conviction remaining after merger be vacated and that the trial court impose “a new

sentence” on remand; our mandate also did not place any limitations on the remand

proceedings. Therefore, we conclude that the Court of Appeals implicitly 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 available for a sentence after merger has been accomplished.

25
 B.

Limitations on Resentencing

Assuming that this Court exercises its discretion in the instant case to vacate the

sentences on all of appellant’s convictions and to remand the case to the circuit court for the

imposition of a new sentence on the sexual child abuse conviction, what limitations, if any,

are placed on the trial judge at the resentencing? As indicated earlier, the trial judge in the

instant case imposed consecutive sentences for second degree rape, third degree sexual

offense, and incest, totaling forty years of incarceration, followed by a consecutive fifteen-

year suspended sentence for sexual child abuse. The issue that will squarely face the trial

court at resentencing is whether the court is limited to imposing only a suspended sentence

of up to fifteen years, or is free to impose (1) a period of incarceration of up to fifteen years,

or (2) a split sentence.

Appellant argues that a new sentence on the sexual child abuse conviction that would

result in any active incarceration or executed time would be an “illegal increase in the

sentence” in violation of “Md. Code, Courts & Judicial Proceedings Article [(“C.J.”)] § 12-

702; Maryland Rule 4-345; Maryland’s existing merger law; North Carolina v. Pearce, 395

U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); and State and federal principles of double

jeopardy, as well as constitutional due process concerns.” Specifically, appellant claims that

the determination of whether there is an illegal increase in the sentence is confined to a

consideration of the sentence previously imposed on the sexual child abuse conviction,

26
because C.J. § 12-702(b) and Rule 4-345(b) consistently refer to the sentence in the singular,

with “no reference to multiple sentences or offenses.”

The State responds that appellant “fails to explain, however, how a change in his 15

year suspended sentence would constitute an ‘increase’ from 40 years of active

incarceration.” The State further argues that, even if the imposition of a different sentence

would constitute an “increase” in the sentence, there is no absolute prohibition on an

increased penalty at a resentencing. The State points to the fact that the Supreme Court

overturned the Pearce case in Alabama v. Smith, 490 U.S. 794 (1989), and that C.J. § 12-

702(b) does provide for the imposition of “a sentence more severe than the sentence

previously imposed for the offense” if certain conditions are met. The State concludes that

appellant “is not entitled to the windfall of a suspended sentence.”

As the Court of Appeals stated in Jones, “a ‘resentencing’ or a ‘new sentence’ is a

‘sentencing.’” 414 Md. at 694. “‘[I]n resentencing . . . the sentencing court must approach

its task [of sentencing] as if no sentence had ever been imposed.’ The trial court is charged,

therefore, with ‘exercising its sentencing discretion’ as if the sentence was occurring for the

first time.” Id. (quoting Bartholomey v. State, 267 Md. 175, 193 (1972)). The Court stated

that the trial judge has very broad discretion in sentencing. 414 Md. at 693. The exercise of

that discretion includes the court’s discretion to suspend the sentence and/or order

confinement. See Md. Code Ann., Crim. Proc. Art. § 6-219(b) (2008 Repl. Vol.). Finally,

“[t]here is no absolute prohibition on an increased penalty at a resentencing or after a new

27
trial.” Parker v. State, 193 Md. App. 469, 489 (2010).

Based upon the above principles, we conclude that, where this Court remands a case

for the purpose of imposing a new sentence because of the trial court’s previous failure to

properly merge a defendant’s convictions, the trial court is free to impose any sentence

permitted by law for the conviction that remains after the merger. In the context of the facts

of the instant case, the trial court could impose any sentence on appellant up to a maximum

of fifteen years of incarceration, which was the maximum sentence allowable for child abuse

committed between 1974 and 1979. See Md. Code Ann., Art. 27, § 35A(b) (1957, 1987

Repl. Vol.).

If the trial court should impose any period of incarceration on appellant for the sexual

child abuse conviction, we do not view such sentence as an “increase” in his previous

sentence. In imposing sentences for multiple convictions in a single case, a trial judge

considers not only the sentence for each conviction, but also the total sentence for all of the

convictions together. Indeed, the Maryland Sentencing Guidelines are structured to reflect

such a dual consideration. Maryland Sentencing Guidelines Manual §§ 3, 9 (2014). The

sentencing guidelines provide a guideline range for each conviction, and then an overall

guideline for all of the convictions, viewed as a whole. Id. at § 9. Here, when appellant’s

sentences are viewed as a whole, appellant received forty years of incarceration, followed by

a fifteen-year suspended sentence and five years’ probation. As a result of the merger of the

convictions, the sentences totaling forty years of incarceration must be vacated. To say that

28
the imposition of any incarceration, even the maximum of fifteen years, is an “increase” over

appellant’s previous forty-year sentence is to defy common sense.

In addition, the trial judge in the instant case could have imposed the same sentence

by sentencing appellant to consecutive sentences of ten years’ incarceration for third degree

sexual offense, ten years’ incarceration for incest, fifteen years’ incarceration for sexual child

abuse, followed by twenty years’ incarceration for second degree rape, with all but five years

suspended. In such event, appellant would have no basis to complain that a new sentence of

up to fifteen years’ incarceration was an “increase” in his sentence. Not only is there no

logical reason to leave appellant’s ultimate sentence to a matter of chance, such result would

be contrary to the directive to trial judges in sentencing that they “tailor the criminal sentence

to fit the facts and circumstances of the crime committed and the background of the

defendant, including his or her reputation, prior offenses, health, habits, mental and moral

propensities, and social background.” Jones, 414 Md. at 693 (citations and quotations

omitted).

C. Conclusion

In the instant case, because appellant’s convictions for second degree rape, third

degree sexual offense, and incest must merge into his sexual child abuse conviction for

sentencing purposes, this Court has the authority, in its discretion, to vacate the sentences on

all of appellant’s convictions and remand the case to the trial court for the purpose of

imposing a new sentence on the sexual child abuse conviction. Such new sentence can be

29
any sentence permitted by law for a sexual child abuse conviction where the abuse occurred

between 1974 and 1979. We are directed by Rule 8-604(d) to exercise that discretion if

“justice will be served.” Here, we believe that justice will be served by the exercise of our

discretion. It will be so ordered.

SENTENCES IM POSED O N THE
CONVICTIONS FOR SECOND DEGREE
R A PE, THIRD DEG R EE SEXU A L
OFFENSE, INCEST, AND SEXUAL CHILD
ABUSE VACATED; ALL CONVICTIONS
OTHERW ISE AFFIRMED; CASE
REMANDED TO THE CIRCUIT COURT
FOR IMPOSITION OF NEW SENTENCE
ON SEXUAL CHILD ABUSE CONVICTION
IN ACCORDANCE WITH THE VIEWS
EXPRESSED IN THIS OPINION. COSTS TO
BE PAID BY CHARLES COUNTY.

30