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Thomas v. Maryland12/6/1993
the iron on April 8, guilty of reckless endangerment for swinging the iron, guilty of unlawful use of a telephone, and violation of an order to vacate. Judge Wise imposed the sentences we have set forth above, and in so doing stated that the purpose of the long sentences was not to send a "message" to the defendant, "but to send him away as long as is necessary to protect [his wife,] which essentially is the balance of her life, not his."
II.
The defendant challenges the consecutive sentences of 20 years and 30 years imposed for the batteries of April 2 and April 8. He contends that the sentences violate the prohibition against cruel and unusual punishment established by the federal and state constitutions; violate a Maryland common law requirement of proportionality; and, because they are to run consecutively, result from an abuse of discretion on the part of the trial judge. Additionally, he contends the 30-year sentence is illegal because it exceeds the 10-year sentence that would have been the maximum possible sentence if the victim had died and the defendant had been convicted of manslaughter.
The defendant bases his claim of illegality of sentence on the principles of Simms v. State, 288 Md. 712, 421 A.2d 957 (1980), and upon the statement made by the trial judge that if the victim had died the defendant could have been convicted of no more serious offense than manslaughter. In Simms, this Court held, as a matter of Maryland common law, that:
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 957. In the case before us, the only "greater offense" with which the defendant was charged as a result of the April 8 incident was assault with intent to murder. He was found not guilty of that offense, and applying the Simms principle to that set of facts results in the conclusion that the trial judge could not lawfully impose a sentence for the lesser included battery that exceeded the maximum sentence then prescribed for the greater offense. The maximum sentence for assault with intent to murder was, at the time of the offense, and is now, 30 years. Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 12. It is therefore clear that the mandate of Simms does not operate to bar the sentence of 30 years that was imposed for the April 8 battery.
The defendant points out, however, that in finding him not guilty of assault with intent to murder, the trial judge stated that if the victim had died, the defendant could have been convicted of no more serious offense than manslaughter. He argues that because 10 years imprisonment is the maximum penalty for manslaughter, we should extend the Simms principle so as to create a limitation of 10 years on the sentence for battery. We decline to do so. Simms has direct application only when a greater offense has been charged and jeopardy has attached with respect to that greater offense. See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987) (a nolle prosequi of an aggravated assault after jeopardy attaches is the same as an acquittal for Simms purposes, and the cap for the nolle prossed charge applies); Gerald v. State, 299 Md. 138, 472 A.2d 977 (1984) (defen
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