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Thomas v. Maryland12/6/1993
Part III A of the Court's opinion, with which I fully agree, compel the conclusion that the 30-year sentence for the April 8th battery should also be vacated and the case remanded for resentencing on that count.
CHASANOW, Judge, dissenting in part.
The Court today reverses a sentence as cruel and unusual punishment, even though it holds that sentence is within the
permissible 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.
I.
In 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 " 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. Simms was 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 Simms rationale 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.
In 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
at 680. The justification for this holding was that " he anomaly pointed to in the Simms opinion . . . may arise when the greater charge is nol prossed." 310 Md. at 694, 531 A.2d at 681. The Johnson rationale 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.
If 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 t
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