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Thomas v. Maryland12/6/1993
rty 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
may 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,
id. at 724, 421 A.2d at 964, it holds that Simms does 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.
To be sure, Simms is 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 Simms relied. 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.
Id. at 723-724, 421 A.2d at 963.
In 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
included one. 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, 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
petitioner may be punished as severely as for the most reprehensible conduct, even though the conduct for which
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