dissenting:
I dissent. I do not think that Roberts v. Collins, 544 F.2d 168 (4th Cir.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 368 (1977) is applicable to the present facts because Sutton was only charged with and convicted of common law assault. Roberts was charged with common law assault and assault with intent to murder and entered a plea to common law assault. We held in Roberts that under the facts the sentence for common law assault could not exceed fifteen years, which was the maximum sentence for assault with intent to murder.
I do not think the sentence imposed on Sutton violates the cruel and unusual punishment language of the Eighth Amendment, nor does it in any way fail a proportionality analysis. Clarence Sutton was married to Lucille Sutton, who, prior to her marriage to Clarence, had lived with Cecil Jordan. After her marriage, Lucille Sutton continued to see Cecil Jordan from time to time. She explained that her relationship with Jordan was now platonic, but her husband felt otherwise, and he stabbed Jordan five times about the head and chest and left him bleeding by the side of the road. The Maryland prosecutor exercised the judgment and discretion allowed his office by law, and he indicted Sutton only for common law assault. The prosecutor was aware of the evidence he had to prove the charge and he knew the Maryland law of common law assault.
As the majority opinion points out, the Maryland legislature has created different classifications of assault for special treatment. Assault with intent to murder has a maximum penalty of thirty years; assault with intent to rob, and assault with intent to maim, disfigure or disable have a ten year maximum;, and assault with intent to rape has a fifteen year maximum. The legislature chose not to set a specific maximum for common law assault, and therefore, the sentence is in the discretion of the trial judge and subject only to the provisions of the Eighth Amendment forbidding cruel and unusual punishment, and the Supreme Court’s requirement of proportionality as enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
*615The Court of Special Appeals of Maryland in Walker v. State, 53 Md.App. 171, 452 A.2d 1234 (1982), has clearly explained the state’s plan for handling common law assault cases and the reason no statutory maximum punishment has been set by statute.
The appellant’s thesis also ignores the reality that the statutory assaults have not preempted the field of all serious and aggravated assaults. Our Legislature has cut out of the herd for special treatment four assaults where the aggravating factor is a special mens rea or specific intent. This by no means exhausts the category of more grievous and blameworthy assaults. The aggravating factor in a particular case might well be the modality of an assault, and not its mens rea —assault with a deadly weapon, assault by poison (this modality alone makes first-degree murder out of ordinary murder), assault by bomb. Many states have made assault with a deadly weapon a special crime. Maryland has not done so, but has trusted the wide discretion of the common law sentencing provisions to deal appropriately with such severely aggravated assaults. The aggravating factor might well be the harmful consequences of a particular assault and not its mens rea. Even where drugs or alcohol have diminished the capacity of a mind to form a specific intent or where there simply has been no specific intent, a brutal beating that leaves its victim blinded, crippled, disfigured, in a wheel chair for life, in a psychiatric ward for life, is severely aggravated. Once again, Maryland has not dealt with this form of aggravation legislatively but has left it to the discretion of common law sentencing. We sometimes overlook this reality because of the linguistic power of inadvertent phrasing. Whenever we say “simple assault” when what we mean is “common law assault,” we subconsciously convey a sense of triviality where that is far from the necessary case. A common law assault is theoretically capable of being as aggravated as or more aggravated than any of our statutory assaults.
Id. 452 A.2d at 1247-48.
The present case is one of those special cases Maryland had in mind when it provided no statutory maximum for common law assault and left it to the discretion of the trial judge to fashion a proper and adequate punishment. The assault by Sutton upon Jordan was aggravated and was by use of a deadly weapon. The majority states: “If the circumstances of the crime were the sole test of proportionality, the case would not warrant argument because we would readily agree that the sentence was not disproportionate to the gravity of the offense”. However, under the majority’s reasoning and under its holding, no sentence for common law assault in Maryland may exceed ten years no matter how grievous and aggravated the assault may be.
The reliance of the district judge and the majority on Roberts v. Collins is misplaced. Roberts was charged with two counts of assault with intent to murder and two counts of common law assault. At the time of Roberts’ sentence, Maryland law provided a fifteen year maximum penalty for assault with intent to murder. Roberts entered pleas of guilty to the two common law assault counts, and he received twenty year sentences on each count, with the sentences to run consecutively. We held: “When, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment”. Roberts, 544 F.2d at 170.
In the present case Sutton did not relieve the state of proving any element of the crime. He was proved guilty beyond a reasonable doubt of the only crime with which he was charged. The rationale of Roberts is not applicable. The courts in Maryland have held that where one is charged with assault with intent to murder and common law assault, and the assault with intent to murder is disposed of by nolle prosequi, the sentence for common law assault may not exceed ten years, which is the maximum for assault with intent to maim and is the shortest maxi*616mum sentence provided for any of the four Maryland statutory mens rea assaults. See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987). Johnson has the same result we reached in Roberts and for the same reason, but that reason is not applicable to the present case because Sutton was charged only with common law assault.
The majority places great weight on its finding that common law assault is a lesser included offense of assault with intent to murder, to maim, to rob, or to rape. This is true only when two offenses are charged on the same set of facts. When only common law assault is charged, it stands alone and is not a lesser included offense because there is no other offense within which it may be included or with which it may merge. Walker makes clear that, in Maryland, common law assault may be more serious and aggravated than the various forms of statutory assault. This was recognized by the trial judge at the time of sentencing when he stated:
Mr. Sutton, although the offense for which you were found guilty was assault, there’s no question in my mind that for all intents and purposes the assault was with an intent to murder. All the ingredients of assault with intent to murder are present here. I say this not to say I am sentencing you for that offense. I am sentencing you for assault, but I am allowed whatever discretion I feel just and appropriate under the circumstances for an assault conviction, and I am entitled to look at the nature of the assault.
You stabbed this man. You took him out to Lincoln Park, stabbed him out there, punctured him, and then drove him back into the city. You threw him out of the car. You threw him in the gutter of a street and left him there for dead, and it was hours later that he was spotted by the police and taken to the hospital and miraculously lived.
The judge then recited the long criminal record of Sutton and took this into consideration in setting the fifteen year sentence.
I submit that the majority’s proportionality analysis is not persuasive because it is based on a conclusion that common law assault is always a lesser included offense of the legislative created forms of assault. The majority uses Johnson v. State and Walker v. State to support this lesser included offense finding, but both of these cases involved defendants who were charged with both common law assault and another form of statutory assault. Johnson was charged with assault with intent to murder, and Walker was charged with assault with intent to rape, both in addition to a charge of common law assault. Under such indictments, common law assault is a lesser included offense because assault with intent to murder and assault with intent to rape require the proof of the additional essential element of intent.
Walker makes clear 452 A.2d at 1247-48, quoted above, that in Maryland the statutory forms of assault do not “exhaust the category of more grievous and blameworthy assaults.” Rather than trying to list in a statute every circumstance that might make an assault more grievous, Maryland wisely left common law assault in place and trusted its trial judges to fashion an appropriate punishment within constitutional limits.
I question the necessity for a proportionality analysis in this case. In United States v. Rhodes, 779 F.2d 1019, 1027-28 (4th Cir.1985), we concluded:
Therefore, to the extent that Solem does not overrule the reasoning of Rummel [v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)] and [Hutto v.] Davis [454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556] but, rather, explicitly accepts the position asserted in those cases, that in noncapital cases successful proportionality challenges will be extremely rare, 463 U.S. at 289-290, 103 S.Ct. at 3009, it seems to us that Solem requires an extensive proportionality analysis only in those cases involving life sentences without parole.
This is in keeping with footnote 16 of Solem:
Contrary to the dissent’s suggestions, post at 305, 315 [103 S.Ct. at 3017, 3022], we do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is *617not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disappro-priate.
Solem, 463 U.S. at 290, 103 S.Ct. at 3009.
Even if we do engage in a proportionality analysis using the objective criteria established in Solem,
(i) The gravity of the offense and the harshness of the penalty;
(ii) The sentences imposed on other criminals in the same jurisdiction; and
(iii) The sentences imposed for commission of the same crime in other jurisdictions,
I do not find the fifteen year sentence for common law assault to be disproportionate. The majority concedes that the gravity of the offense would justify a fifteen year sentence. As to sentences imposed on other criminals in the same jurisdiction, the Walker court found that a sentence of twenty years for common law assault was not illegal under Maryland law nor unconstitutional, but under the indictment and proof in Walker, it found that the common law assault had merged with the attempted rape. No evidence has been submitted on the third element to show sentences imposed for the same crime in other jurisdictions, and Sutton had the burden of producing such evidence.
I would hold that when only common law assault is charged in a Maryland indictment, and the defendant is convicted of said charge by jury verdict or by guilty plea, he may be sentenced without reference to or limitation by the maximum sentences provided for the statutory mens rea assaults; the sentence to be subject only to the Eighth Amendment prohibition barring cruel and unusual punishment. Sutton’s sentence does not violate the U.S. Constitution and I would reverse;
ORDER
The appellant’s petition for rehearing and suggestion for rehearing in banc were submitted to the Court. A majority of judges having voted in a requested poll of the Court to grant rehearing in banc,
IT IS ORDERED that the rehearing in banc is granted.
IS IS FURTHER ORDERED that this case shall be calendared for argument at the June 5-9,1989 session of Court. Within ten days of the date of this order five (5) additional copies of appellant’s briefs (brief and reply brief) and nine (9) additional copies of appellees briefs shall be filed and appellant will file ten (10) additional copies of the joint appendix.