Clarence J. Sutton v. State of Maryland Maryland House of Correction

cases). yet court has held to the con- No

trary. SUTTON, Clarence J. Petitioner-Appellee,

Furthermore, Copinger requirement the discretion of the notice is not left to judge. Copinger, district 420 F.2d at MARYLAND; Maryland STATE OF (“the judge peti- dismiss the Correction, House of ground of tion on the abuse of writ Respondents-Appellants. petitioner giving first notice to the without No. 88-6619. ”) added). (emphasis By failing give ... opportunity petitioner notice and an Appeals, United States Court of writ, show that he did not abuse Fourth Circuit. district court committed reversible error. Argued Nov. 1988. also maintains that the dis- Decided Jan. justified trict court event 4(b), dismissing Rule the writ under as it Granting Rehearing Order In Banc apparent the face of the motion from 20, 1989.* March that the movant was not entitled to relief. court, however, clearly

The district based 9(b). probably

its decision on Rule While bet, speculation

fairly safe it is still

presume the court’s actions will be identical 4(b) analysis.4

under a Oliver’s while weak, prima invalid. facie The district court focused here on Oliver’s

knowledge bearing of all facts on his sec-

ond motion at the time he filed his first. motion, alleged

The issues on each how-

ever, though covering much common legal

ground, represent do distinct theories. court, previous

The district with all the knowledge litigation

intimate of Oliver’s

emphasized by majority, did not rule on invalidity

the facial of the merits of Oli-

ver’s claims. We should hesitate to do so

now.

Admittedly, opportunity notice and the

respond may only rarely petitioner assist a appears

whose motion is so deficient it Yet, important

successive. it is to remem- appearance of even-handed-

ber scrupulous

ness and adherence to rules aspects cover some not touched actual, scrupulously ap- even-handedness

plied. Although my may certainly qualify readily I would concur with col- him to take leagues’ Judge Dupree's 4(b), determination that inti- such action under Rule he has not done so. * Opinion knowledge legal vacated. mate of Oliver’s factual and Barbera, (J. Atty.

Mary Ellen Asst. Gen. Curran, Jr., Atty. Maryland, Joseph Gen. Div., Gen., Appeals Atty. Criminal Office brief), respondents-appellants. on (Steven Mills, Counsel H. Laurin Student Bernstein, Goldblatt, F. Dori K. Maureen Duca, Supervising Attys., Catherine Del Counsel, Pinkerton, Appellate Liti- Student Georgetown University Program, gation brief), petitioner-appel- Law Center lee. WINTER, Judge, and Chief

Before CHAPMAN, Circuit SPROUSE Judges. WINTER, Chief L.

HARRISON Judge: that Clarence J. district court ruled

Sutton, was con- petitioner who a habeas Maryland law of common under victed of habeas entitled to writ fifteen-year corpus to extent imposed on him exceeded conviction, for the least After Sutton’s he attacked years of ten validity by appeal by post-convic- direct statutory assault of aggravated form of proceedings. He also attacked the va- although tion guilty, might lidity by post-conviction pro- his offense was Maryland ceedings. history We need not recite the Maryland appeals. The State of these efforts because does We affirm. dispute that has exhausted all avail- Sutton re- remedies without success able I. persuades proceedings of those us view there- that exhaustion has occurred. We Sutton was convicted Clarence brought to decide fore are whether indictment under an common law assault imposed on Sutton offends the offense. charged only him with that which Eighth proscription Amendment’s of cruel that Sut at trial established The evidence punishment. and unusual car, his victim into ton had forced and three him in the neck stabbed twice carefully In a considered and written chest, dragged him in and then times opinion, the district court concluded that car, in leaving him abandoned out of the Eighth Amendment had been violated Maryland law there gutter. street Under to the extent that Sutton’s sentence exceed- punishment for prescribed is no maximum State, Sutton v. F.Supp. 681 years. ed ten State, v. assault. See Simms common law (D.Md.1988). reasoning, succinctly Its 291 957, (1980). 712, 714, 421 A.2d 958 288 Md. stated, concept proportion- was that the on the sentence which restriction Eighth in ality embodied the Amendment Eighth Amendment imposed is the may be punish the State seeks to violated when states applicable to the as made conviction for the lesser offense of common Amendment, and its counter Fourteenth severely law assault more than a conviction Rights, Maryland Declaration of part in the aggravated statutory assault of the least Id. Based upon the facts of the case and prosecuted for which he could have been record, including prior criminal Sutton’s and convicted. robbery, theft and three

convictions heavily The district court relied on our sentenced to charges of he was Collins, v. Roberts decision in 544 F.2d 168 imprisonment. fifteen-years denied, 973, cert. (4 Cir.1976), 97 (1977), 1663, refined the common law of 52 L.Ed.2d 368 and sub Maryland has S.Ct. cases, Supreme creating statutory sequently crimes of decided Court Helm, rob, 277, Solem v. principally 463 assault with intent (1983). 3001, murder, intent to 103 77 L.Ed.2d 637 It and assault with S.Ct. State, Heathe v. persuasive 257 certain sexual offenses. also found rape or to commit (1971), 345, these crimes Ind. 274 N.E.2d 697 which punishment years, Supreme of Indiana held that the years, thirty years, and fifteen Court is ten Md., 27, Art. sentence for a lesser included offense respectively. 3A Ann.Code not, under the there is the addition Amendment § constitution, maim, dis Indiana’s exceed that crime of assault with intent offense, ap if the figure prevent or to lawful for a even or disable Accord, Applica charged. penal a maximum offense is not prehension carries which Cannon, Md., 629, tion 203 Or. 281 P.2d 233 ty years. 3A Ann.Code of Art. of ten (1955). permissible 27, Maryland It found no basis for 386. It is the law of § do, distinguishing, Maryland of assault is a lesser courts be the common law crime the defendant in the various tween cases included offense aggravated assault. See John assault and with both crimes of State, (“simple”) A.2d 675 common law assault and cases son v. 310 Md. 531 State, supra; v. common law offense is v. Walker (1987); Simms State, supra; State, e.g., Simms v. Md.App. 452 A.2d State, supra. denied, Walker (1982), cert. 296 Md. 63 sue Id. excessive.” II. at 3010. This statement should also us, contends that the Before conjunction read in with the Court’s “a fifteen- decide

issue we must whether application of the discussion of the factors common law assault year sentence for [is] First, specific cases. the Court dis- in violation cruel and unusual ability cussed the courts ... where recognized gravity of an and it into his car at ordered the victim defendant widely as to that there are shared views him five times about knifepoint, stabbed of crimes. It then the relative seriousness chest, him dragged out the head and added: him?” If the of the car and abandoned principles accepted are There were the sole of the crime apply measuring that courts the case would proportionality, test of harm caused or threatened victim would readi- argument because we warrant magnitude of society. The absolute dispro- sentence was not ly agree that the relevant.... Few the crime be In gravity of the offense. portionate to the of dispute would a lesser included not the would that circumstance punished more se fense should harsh; not be cruel appear unduly it would Thus, greater a verely than the offense. and unusual. justified viewing assault with court is Helm, teaches However, supra, v. Solem intent to murder as more serious than embod- proportionality of principle alia, Rob simple [citing, inter is not tested Eighth Amendment ied in the Collins, supra] erts v. offense. Rath- gravity of solely the the 293, 103 at 3011.1 463 U.S. at S.Ct. er, holds that Collins, supra, the ac- In Roberts v. analysis under proportionality a court’s cused, Maryland law for as- indicted under guided Eighth Amendment should be the simple and for with intent to murder sault (i) criteria, including the by objective assault, pleaded guilty to the common law and the harshness gravity of the offense charge. We held that common law assault (ii) imposed the sentences penalty; the of permit did not the Amendment jurisdic- criminals the same on other great- to a term to be sentenced defendant tion; (iii) imposed and the sentences of for conviction er than that authorized in other crime commission same specif- murder.2 Our intent to jurisdictions. does holding Constitution ic was “the Signifi- at 3010. 462 U.S. at punish- of a imposition sanction comparison respect to cantly, with offense than included ment for a lesser in the imposed on criminals sentences imposed for the lawfully may be said, jurisdiction, the Court same “[i]f 544 F.2d at offense.” pen- subject the same crimes are to serious holding applicable We think penalties, that to less serious alty, or Roberts between here. The difference punishment at is- indication that the some permitted upon legislatively conviction challenges necessity dissent 1. The prosecutor analysis this case based proportionality related offense Rhodes, opinion prove. States v. attempt court’s United elected not to 1985), (4 Cir. and F.2d 1027-28 Helm, v. 463 U.S. at 290 limits of Solem avowed one, the instant conten- In that unlike dissent, n. 16. See n. sentence for the maximum tion was made that necessity this case there is no at 616-617. was limited maxi- common law assault inherently propor and factual the extensive for tionality least heinous forms mum sentence for the Rhodes, analysis nor contemplated in (assault rob "judgment endeavoring to we substitute are maim). we Rather were with intent to appro court as to the that of sentence, years twenty per limit the asked to We are sentence.” priateness of a fifty-four years, aggregate count with an i.e., inquiry, engaged a much here in narrower for assault with intent the maximum sentence precludes im whether position years. didWe fifteen murder which upon conviction a go beyond of counsel. contention than is law assault included common lesser rob, neces- tence for assault that in Roberts case is the instant against cruel prohibition sarily violates charged with defendant was punishment.” Id. But we and unusual law assault. assault and to a not amount does this difference think Maryland breth- respect to our due With a less- assault is distinction. Common persuasive. ren, point do not find either we forms of of the various offense er included greater statu- First, we doubt whether where the in those cases statutory assault heinous than a may be less tory offense support the crime would offense. common law included lesser re- conviction shoplifting given in were examples Simms statutory offense gardless of whether set- (the larceny in a mercantile crime (the crime of false fraud ting) welfare Appeals has Maryland Court pay- to welfare respect pretenses with in a Roberts result as the same reached sen- ments), carry maximum each of which the accused case in which law offenses than the common tences less and a lesser greater offense with both Maryland court they include. The only of the and convicted included offense exam- statutory crimes these deemed However, it em- included offense. greater offenses” be- “less heinous ples of Mary- as a matter of phasized that it so did must be element which cause the additional com- not under land common law mitigating rather is a proved to convict or the Eighth Amendment pulsion of the aggravating than an factor. Rights. Simms Maryland Declaration in forth general basis of the set So- State, 964. The stated Under rules 421 A.2d at lem, aggravated State offense involves that “where the decision the the intent to and degree rob of than the charges greater culpability both Thus, has in effect argu- the State it is simple assault ... it includes. lesser offense the ten maxi- prosecute for pretenses, elected to larceny false able whether and greater the offense specified for mum lesser offenses respectively, are included at 965. intent to rob.” Simms elements the additional precisely because statutory for the crimes to convict needed in the Court importantly, More Simms rendering a mitigating are proposition the the that rejected dictum Similarly, culpable. it is less defendant offense included for a lesser punishment “required evi- arguable the also whether for maximum described may not exceed the Blockburger v. United dence” test offense, great- the even where the L.Ed. States, position, Explaining this er is not deter- (1932), articulating test Appeals first noted Court “greater” what is a great- is a and Legislature creates a mine what that “when the addition- applies by adding an element to basic “lesser” when er offense occasionally may mitigating proved is a element to be crime” added al element an mitigating rather than context Eighth as a be “viewed factor. Amendment factor, for this reason a aggravating and the Fifth inquiry, unlike proportionality for the is jeopardy, lesser context of double Amendment It also at 965. greater offense.” Simms necessity to apparent logical there no is ‘simple assaults’ (as commented that mitigating “[s]ome element count additional an or con- may involve more heinous brutal one) pur- for aggravating opposed to an present in cases than duct determining is the which poses aggrava- statutory falling within one however, not, We or offense. do assaults”, this occurs and the and when ted these issues. decide either only for prosecuted common accused objection second regard to the statutory assault, exceeding the With a sentence Simms, that there recognize we raised in statutory assault would maximum for conduct con variety of criminal an infinite Amendment. proscribed by assault, but not concluded, stituting do not “we be- Id. The Court statutory aggra assault, amounting any form of simple that a sentence for lieve maxi- case the In such a sen- year maximum vated assault. exceeds the ten which aggra- warrant a conviction for would the statu- prescribed for sentences mum assault, irrespective compara- of whether the vated may be relevant tory assaults cap charged. Maryland argues not constitute but do latter is purposes, tive imposed. may be Legislature preempt on the sentence did not intend to however, clearly not The instant creating of assault crimes the field because, trial as the category this assaults. class sentence: imposing said respect to the vast This be true with Sutton, although the offense Mr. assault, array amounting to but of conduct guilty as- found you were amounting form of my mind sault, question there’s However, not, Mary- this does assault. as- purposes all intents that for inexorably to the con- suggests, land lead All intent to murder. an sault was with thereby scheme clusion that ingredients of assault per- preempt created does not field sayI here. this are murder sentences missible of- sentencing you for that say I am constituting the acts sim- purposes where sentencing you for I’m fense. ple also constitute one or more I discretion allowed whatever am assault.3 forms under the cir- appropriate just feel conviction, argument that some criminal actions for an assault cumstances imposition sen- look at the nature warrant I’m entitled to those authorized under the assault. tences than most) (or least even under the such that had been If facts were alter the fact statutory assault does not mur- intent to prosecuted for assault with Maryland Legislature has made guilty, found we he could have been der appropriate maxi- determination of own that if he had equally that it is true think classes of mum for various prosecuted for assault with been Thus, disable, reject argu- we he could have been criminal assault. maim cap presence of that crime. or absence of a ment that the for common permissible on the open sen Although we leave the the depends upon whether assault apply if a defend tencing rule that would charged also prosecutor has assault guilty of common law ant is found that such assault. We think aggravated finding support a that would not on facts it renders irrational because distinction is statutory aggrava guilt form of statutory offenses existence of the the assault, Maryland we think that the ted equal protec- meaningless, potential raises parame determines the statutory scheme problems perhaps raises problems, for tion cruel and unusual ters of Rather, process of law.4 facts of denial of due simple assault on any conviction prove confusing point. held a state must all the elements of on this that 3. We find the dissent beyond argues an offense a reasonable doubt. Sutton this is one of the The dissent first that cases,” prosecutor argues permit by Maryland that to the to elect "special not covered try only for common law assault and to him warranting but a stiff sen- scheme permit punished severely be as he tence, him to language quotes precise charged punished had he been could have been (also sentencing judge referenced in assault, aggravated necessity without the with contrary. dis- opinion) which observes the See proof required of the additional factor for con- sent, 615, ruling today Our is con- aggravated viction of the would violate support a fined to the situation where the facts holding Winship. statutory aggravated assault. conviction of a circumstances, only by subsequent we can con- Under these We note that decisions bring statutory aggra- open possibility that a failure to Court in this area leave that clude charge argument regard assault combined with Sutton’s in this has merit. vated Wilbur, 684, 1881, imposed Mullaney 421 U.S. than for a conviction 95 S.Ct. (1975), Pennsyl aggravated and McMillan v. results in a circumven- 44 L.Ed.2d 508 of the crime 2411, vania, 79, scheme, 67 106 S.Ct. 91 L.Ed.2d legislative sentencing 477 U.S. and is tion of the Brewer, F.2d United States v. cruel and unusual. therefore Cf. 667, (6 1988) ("Therefore, appears 668 Cir. 375, require Winship, 90 S.Ct. of the Court would In In re all nine members beyond 1068, 1078, (1970), proof notice in the indictment and L.Ed.2d 368 the Court by Legisla- imposed the sentence prescribed do not think cap is one though pun- ture, the statu- Sutton violates the cruel and unusual applies and it even Eighth charged.5 language ishment Amend- tory crime is not ment, any way propor- fail nor does it hold that where therefore We tionality analysis. Clarence Sutton was charged and a common law assault alone Sutton, who, prior to her married to Lucille plea trial or conviction obtained marriage Clarence, had lived with Cecil guilty, which the maximum sentence marriage, After her Lucille Sutton Jordan. imposed, consistent with continued to see Cecil Jordan from time to Amendment, the maximum sentence for explained relationship her time. She of the least statu conviction platonic, her hus- with Jordan was now tory the evidence would crime otherwise, felt and he stabbed Jordan band support On the facts of this a conviction.6 times the head and chest and five about guilty Sutton could have been bleeding by left him the side of the road. intent to maim or disable Maryland prosecutor exercised the maximum sentence is ten judgment and his discretion allowed office said, years. course, judge Of as the trial law, and he indicted Sutton he could also have been found prosecutor assault. The assault intent to murder. But that prove aware evidence had charged, if it crime was not even charge and he law of knew proved, so to the least we look common law assault. identify crime of the maximum out, majority opinion points As the permissible sentence. Maryland legislature has created different AFFIRMED. special classifications of assault for treat- ment. Assault with intent to murder has a CHAPMAN, Judge, dissenting: Circuit thirty years; I dissent. I do not think rob, that Roberts v. with intent to and assault with intent Collins, (4th Cir.1976), 544 F.2d 168 maim, cert. disfigure a ten disable have denied, 52 year maximum;, and assault with intent to (1977) applicable L.Ed.2d 368 to the rape has a fifteen maximum. The facts because Sutton was legislature specific chose not to set a maxi- charged with and convicted common law mum for common law and there- assault. Roberts was fore, with com sentence is the discretion of the mon law assault and assault with intent to subject only provi- trial murder plea and entered a to common law forbidding sions of the assault. We held in Roberts that under the punishment, cruel and unusual and the Su- facts the sentence for preme common law assault requirement Court’s proportional- could not years, ity exceed fifteen Helm, which was as enunciated in Solem v. maximum sentence for assault with U.S. 77 L.Ed.2d 637 intent to murder. reasonable doubt of a fact that increases the simple prosecutor bring election of the to a punishment beyond by the maximum set single multiple count indictment. In the legislature for the other elements of the of- discretion, judicial sentencing name of the dis- fense.") We do not decide this issue because it any necessity prose- sent would remove for the properly having before us never been possibility cutor ever to chose between the of a prior proceedings. raised in We mention it prove sentence and the need to an addi- highlight potential here further the in- tional element of the crime. Maryland’s position.

firmities in sentencing cap 6. To link the common law to the argues reasoning faulty The dissent that our penalty any maximum for offense other than because common law assault is not a lesser aggravated statutory the least assault for which statutory included offense of the various as- supports the evidence a conviction also would actually saults unless a charged. assault dissent, proportion- countenance a circumvention of the at 615-616. We can- ality by Maryland Legis- scheme agree. established not The nature of the criminal offense lature. by must be determined the facts of the case and by proved, the elements of the crime to special those present case is one of Mary- The Appeals of Special Court The provid- in mind Md.App. Maryland cases had when State, 53 land Walker law for common clearly explained ed no maximum (1982),has 452 A.2d the discretion of the handling law and left it to assault for plan the state’s proper and ade- no a reason trial fashion and the cases assault by stat- The assault Sutton quate punishment. been set has aggravated and was upon Jordan was ute. weapon. The deadly a use of ignores also appellant’s thesis The of the crime “If the circumstances states: have statutory assaults reality that proportionality, test were the sole field of all serious preempted argument because would not warrant Legislature case Our assaults. readily agree that the special treat- we would of the herd has cut out gravity to the aggravat- disproportionate where ment four assaults However, majori- specif- under the rea or the offense”. special mens ing factor is holding, no ty’s reasoning exhausts and under by no means ic intent. This Mary- and blame- for common law assault category grievous aggravating years no matter how worthy assaults. land exceed ten might well be case in a the assault grievous factor assault, not its modality of an be. weap- deadly with a —assault mens rea judge and the The reliance of the district (this modality alone on, by poison assault is mis- majority on Roberts v. Collins of ordi- murder out first-degree makes two Roberts was placed. Many murder), by bomb. nary murder and of assault with counts deadly awith made assault states have At the law assault. counts of common two has Maryland special crime. weapon a sentence, law time of Roberts’ so, the wide has trusted not done year maximum a fifteen law of the common discretion Roberts to murder. for assault appropriately with deal provisions to the two common pleas entered aggravated assaults. severely such twenty counts, and he received might well be factor aggravating count, with the each year sentences particular as- of a consequences harmful held: consecutively. We to run sentences where Even not its mens rea. sault and the burden “When, state of to relieve the ca- diminished drugs or alcohol have of- of the proving all elements intent specific mind to form pacity of a murder, a intent fense of specif- simply has been there or where in- plea defendant tenders intent, beating that leaves its a brutal ic ought simple cluded offense disfigured, in a blinded, crippled, victim himself exposed held to have not to be life, psychiatric ward in a chair wheel punishment”. constitutionally aggravated. Once life, severely Roberts, 544 F.2d at with this not dealt Maryland has again, has legislatively but not relieve aggravation case Sutton did form of of common discretion element of the proving it to the the state of left this sentencing. beyond overlook proved guilty We sometimes crime. He was power of linguistic reality because crime with reasonable doubt saywe Whenever phrasing. inadvertent The rationale which he was mean is we “simple when what assault” courts in applicable. The Roberts is assault,” subconscious- we “common one is Maryland have held that where that triviality where convey sense of ly charged assault with intent to murder with A necessary from case. com- is far assault, and the assault and common law theoretically capable mon law assault is disposed to murder ag- more being as or for common prosequi, nolle as- gravated than years, may exceed ten law assault saults. with is the for assault shortest maxi- intent to maim and is the Id. 452 A.2d at 1247-48. 616 any of four always a lesser included offense

mum sentence legislative assaults. created forms of assault. Maryland statutory mens rea 681, State, The uses and 310 Md. 531 Johnson v. State See Johnson support in- to this lesser has the same Walker v. State A.2d 675 Johnson finding, these cluded offense but both of in Roberts and result we reached reason, cases involved defendants who were applica- same but that reason charged common and with both law assault present ble to the case because Sutton another form of assault. John- charged only with common law assault. charged intent to son was with assault with great weight majority places on murder, charged and as- Walker was with finding that common law assault is a lesser rape, in addition to sault with both of assault with intent to included offense charge of common law assault. Under murder, maim, rob, rape. to or to This indictments, such common law assault is a is true when two offenses are included offense because set of facts. When com- same intent to murder and assault with charged, it alone mon law assault stands rape require proof intent is not a lesser included offense because and element additional essential of intent. offense which it there is no other within 1247-48, makes clear Walker 452 A.2d at it included or with which above, quoted statu- that, in merge. Mary- makes clear Walker tory forms of not “exhaust the assault do land, law assault category grievous of more and blame- aggravated than the serious and various worthy trying assaults.” Rather than assault. This was rec- forms every list a statute circumstance that ognized judge by the trial at the time of might grievous, make an assault more Ma- he stated: when ryland wisely left common law assault in Sutton, although Mr. the offense for place judges and its trial to fashion trusted you was as- were appropriate punishment an within constitu- sault, question in my there’s no mind tional limits. purposes intents that for all and the as- question necessity proportion- I for a an intent to murder. All sault was with ality analysis this case. United ingredients of assault with intent to Rhodes, 1019, States v. 779 F.2d 1027-28 say murder are here. I this not (4th Cir.1985), we concluded: sentencing you I for that of- say am sentencing you Therefore, I fense. am extent that Solem does I I reasoning am allowed whatever discretion overrule the Rummel 263, Estelle, 1133, just appropriate feel and under the cir- [v. 63 conviction, an assault L.Ed.2d cumstances for 382 (1980)] and [Hutto v.] 703, 70 I am entitled to look at the nature of the Davis U.S. S.Ct. [454 but, rather, explicitly L.Ed.2d ac- assault. 556] cases, cepts position in those asserted You stabbed this man. You took him noncapital pro- cases successful Park, out to Lincoln him stabbed out challenges portionality extremely will be there, him, punctured him and then drove rare, 289-290, at at city. back into the You him threw out of requires it seems to us that Solem gutter the car. You him threw in the proportionality analysis an extensive dead, a street and left him there for only in those cases involving life sen- spotted by hours later that he was tences parole. without police hospital and taken to the miraculously lived. keeping This is in with footnote 16 of long recited the criminal Solem: record of Sutton and took this into consid- Contrary to the suggestions, dissent’s setting eration in fifteen sentence. 3017, 3022], S.Ct. at [103 majority’s proportional- submit that the adopt imply approval we do not or of a ity analysis persuasive is not general appellate because rule of review of sen- based on a conclusion that common specific authority, tences. Absent it is court to Constitu- appellate not violate of an does the role sentence reverse; that of the I judgment tion and would substitute appropriate- sentencing court as ORDER rather, sentence;

ness of a rehearing and appellant’s petition for The ap- Eighth Amendment applying the rehearing in banc were sub- suggestion only whether court decides pellate judges majority Court. A of mitted to the constitu- is within under review having requested poll in a voted the substantial In view of limits. tional banc, grant rehearing Court to legisla- accorded must be deference that courts, reviewing tures and rehearing in IT ORDERED that IS engage in required to rarely will be court granted. banc that a analysis to determine extended this ORDERED IS FURTHER IS disappro- constitutionally argument at calendared for case shall be priate. 5-9,1989 Within session of Court. the June 3009. 103 S.Ct. at Solem, U.S. at (5) order five days the date of this ten (brief appellant’s copies of briefs additional proportionality engage in a if we do Even (9) brief) additional and nine reply estab- using objective criteria analysis filed and appellees briefs shall be copies of Solem, lished (10) copies file ten additional appellant will offense and (i) gravity of the appendix. joint penalty; harshness on other crim- (ii) imposed The sentences jurisdiction; same

inals in the commis-

(iii) imposed for The sentences jurisdic- crime of the same

sion tions, America, UNITED STATES year sentence for find the fifteen I do not Plaintiff-Appellee, disproportionate. law assault to be common v. gravity of concedes FOUTZ, Herbert L. justify a fifteen the offense would Defendant-Appellant. oth- imposed on As to sentences sentence. jurisdiction, the in the same criminals er America, STATES UNITED that a sentence court found Walker Plaintiff-Appellee, for common law assault was twenty years v. nor uncon- illegal Maryland law under ESPOSITO, Jr., Ralph Rapid, F. a/k/a stitutional, the indictment and under Defendant-Appellant. Walker, common it found that the proof in attempted America, merged had law assault UNITED STATES has submitted Plaintiff-Appellee, rape. No evidence been im- to show sentences third element jurisdic- in other for the same crime posed ARMENTANI, Frank tions, produc- had the burden and Sutton Defendant-Appellant. ing evidence. such to 88-5046. 88-5044 Nos. hold that when would Appeals, United States Court Maryland indict- in a Fourth Circuit. ment, the defendant is convicted Argued Oct. by guilty charge by jury verdict said refer- sentenced without plea, he Decided Jan. by the maximum sen- to or limitation ence statutory mens rea provided for the tences

assaults; subject to be the sentence barring prohibition punishment. Sutton’s unusual

cruel and

Case Details

Case Name: Clarence J. Sutton v. State of Maryland Maryland House of Correction

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 20, 1989

Citation: 865 F.2d 608

Docket Number: 88-6619

Court Abbreviation: 4th Cir.