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Thomas v. Maryland12/6/1993
nce exhibited in the slap that occurred on April 2.
Comparison to penalties imposed by the legislature for certain aggravated assaults also forcefully suggests that the sentence imposed for this offense was grossly disproportionate. An assault with intent to maim, disfigure, or disable is currently punishable by a sentence not to exceed 15 years, and at the time of this offense the statutory maximum was 10 years. Maryland Code (1957, 1992 Repl. Vol.), Art. 27, § 386. As the State concedes, the conduct for which the defendant was convicted on this occasion is significantly less serious than
an assault with intent to maim, disfigure, or disable. As we pointed out in Simms, supra, because the defendant was not charged with this type of aggravated assault, the maximum statutory penalty for the aggravated assault does not, by operation of law, become the maximum penalty for the simple assault or battery. When it is clear, however, that the conduct underlying the simple assault or battery is in fact less serious than the assaultive conduct for which the legislature has fixed a maximum penalty, a penalty that exceeds the statutory maximum suggests disproportionality, and we give that fact heavy weight in this case.
The maximum statutory penalties for assault in other jurisdictions also indicate that the sentence of 20 years is disproportionate to the defendant's crime. In another jurisdiction, the slap inflicted upon Shirlene Thomas would be classified by statute as a misdemeanor-type simple assault, battery, or assault and battery, and would have carried a maximum sentence anywhere from one month, see N.D. Cent.Code §§ 12.1-17-01 and 12.1-32-01 (1985, 1993 Cum.Supp.), to two and one-half years, Mass.Gen. L. ch. 265, § 13A (1992). Although interstate comparisons are somewhat difficult because of the variety of ways in which states differentiate between aggravated and simple assaults and batteries, we append hereto a list of maximum penalties for simple assault and batteries in other states.
The State argues that the slap of April 2 cannot be considered in a vacuum; that the sentencing judge should be permitted to consider the subsequent events, including the assault of April 8 and the later telephone threats, in fashioning a proper sentence for the April 2 incident. We agree, but we hasten to point out that punishment for the separate conduct should be imposed in the case involving that conduct. Each incident may color the other, and additional knowledge of a defendant's propensities may affect the ultimate determination of what is a fair sentence for the case under consideration. Those considerations will never, however, justify the imposition
of a sentence that is grossly disproportionate for the offense for which the defendant is being sentenced.
C.
The sentence of 30 years imposed for the April 8 battery presents a more difficult problem. The defendant was acquitted of assault with intent to murder, a crime having a maximum penalty of 30 years, and thus the sentence imposed does not exceed the common law limitation imposed by Simms. The defendant argues that the trial judge made a finding that if death had occurred the defendant could not have been convicted of any crime more serious than manslaughter. Accordingly, he says, the trial judge must have found that the defendant did not have an intent to inflict serious bodily harm, for if he had possessed such an intent and death had resulted, he would have been guilty of second degree murder. State v. Earp, 319 Md. 156, 162, 571 A.2d 1227 (1990); Ross v. State, 308 Md. 337,
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