This matter stems from an order of the Circuit Court for Baltimore County granting Petitioner, Vincent T. Greco, Jr., postconviction relief by vacating his 1982 conviction for first degree premeditated murder and, as we shall see, leaving in place Petitioner’s related convictions for felony murder and first degree rape. The Court of Special Appeals reversed that order and reinstated Petitioner’s conviction for first degree premeditated murder. State v. Greco,
For the reasons that follow, we hold that the Court of Special Appeals had jurisdiction to entertain the State’s appeal, Petitioner was not entitled to postconviction relief, and the term-of-years sentence he received for first degree premeditated murder, but not the sentence for first degree rape, was illegal and must be corrected on remand.
I.
Background
In 1982, Petitioner was convicted by a jury in the Circuit Court for Baltimore County of first degree premeditated murder,
Greco was tried for killing 78 year old Leta Jeanette Larsen who he allegedly beat brutally before he strangled and raped her in her living room on April 17, 1981.
On the eve of Larsen’s death, Greco, who had steadily dated Larsen’s granddaughter, Sheryl Fitch, received a call from Larsen. She allegedly told Greco that she did not want him to continue to date her granddaughter. Larsen expressed concern over Greco’s use of drugs and alcohol. That night, at approximately 9 p.m., Greco, while at the Ridgley Inn, drank “a few beers” and smoked marijuana. Additionally, he “got some” caffeine pills. He then went to a party at the “Storeroom Bar” where he stayed until about 2 a.m. While at the party, Greco says he drank “about ten drinks — Jack Daniels and Coke and Molson’s Ale.” He also “had some marijuana cigarettes.” When Greco left the party, he “took a six-pack of Michelob with” him.
While driving on Charles Street toward the City of Baltimore, Greco “remembered the conversation with Mrs. Larsen.” Because he knew she stayed up late at night watching television, he decided to stop off to see her.
At Larsen’s home, Greco testified, he and Larsen had a lengthy conversation about his relationship with Sheryl as well as his use of alcohol and marijuana. Larsen and Greco allegedly began to aggravate each other. Larsen, according to Greco, “started talking about sex.” She then went to fix coffee. Greco reportedly went to the bathroom and when he returned, Larsen, allegedly with the top of her pajamas unbuttoned, approached him while he was drinking coffee and requested that they have sexual intercourse. Greco told the jury that he and Larsen engaged in copulation on the kitchen floor. Upon the completion of the coupling, Greco “dozed off.” Suddenly, he was awakened by a feeling of pain in his chest. He observed Larsen standing over him with a knife in her hand.
A struggle ensued as Greco wrestled with Larsen to obtain the knife. During that struggle Larsen cut her hand and Greco is said to have fainted from the sight of blood. He regained consciousness when Larsen allegedly stabbed him in the side. He in turn grabbed her around the neck. They then stumbled into the living room and fell upon the sofa. Fearing that Larsen would kill him, Greco put a pillow over Larsen’s face “because she looked so bad.” He found later that she had ceased breathing.
Greco testified that while he was in a state of panic and frenzy, he rinsed the blood from the knife, washed his face and hands, cleansed his wounds as well as Larsen’s, notwithstanding that she was obviously dead, bandaged Larsen’s wounds, and then covered her with an afghan.
Ten year old Mary Lee Derrickson and eleven year old Joelle Myers, respectively granddaughter and great granddaughter of Larsen, were staying in the house that night with Larsen. Greco, realizing that they were there, awakened them from their supposed sleep and informed them that they were leaving the house with him.
The trio journeyed to College Park, Maryland, in order to find Sheryl Fitch. Greco told Sheryl what had happened.He asserted that Larsen had seduced him and then tried to stab him. He sustained several minor wounds. Sheryl returned to Baltimore with the trio and after dropping the two children at their parents’ home, Greco and Sheryl proceeded to Larsen’s house where Sheryl discovered that the police had arrived. Greco drove to his parents’ house where he was subsequently arrested.
Petitioner’s defense to the charges was that he acted in self-defense and, because he suffered from a blood phobia, mispereeived the threat Ms. Larsen posed and overreacted in response. Petitioner called an expert witness, Dr. Leonard Rothstein, in support of his theory of imperfect self-defense.
The trial court ruled that, “[w]ith respect to the proposed expert testimony concerning the mental state of the defendant, that testimony will not be admitted to support the fact that the defendant honestly but unreasonably believed that he was in danger of injury or that the killing was the only way to prevent it.” The court explained that its ruling was based on the court’s understanding that Petitioner’s defense theory was the equivalent of the impermissible defense of diminished capacity. The court added, though, that its “ruling [would] not preclude evidence of intoxication and its effects to negate specific intent.” After further discussion about the permitted scope of Dr. Rothstein’s testimony, the court clarified its ruling:
[E]xpert testimony from Doctor Rothstein that one: the phobia was combined with alcohol and drug consumption altered the defendant’s judgment and impaired the accuracy of his perception causing him to improperly assess the seriousness of the victim’s alleged attack and to overreact to the alleged bodily injury, that is specifically excluded. And two, that the defendant did not as a fact premeditate or deliberate, but believed himself to be acting in self-defense, that is still part of what I call the diminished capacity imperfect self-defense defense. It would be excluded.
During trial, Dr. Rothstein testified that, “within reasonable medical certainty,” Petitioner was likely to have a “phobic response” under the circumstances in which Petitioner “was awakened to a sensation of pain and a struggle ensued with another individual during which [Petitioner] saw blood.” Dr. Rothstein gave testimony on the subject, in response to several other hypothetical questions posed by defense counsel as well as the State.
The jury convicted Petitioner of first degree premeditated murder, felony murder, and first degree rape. The trial court sentenced Petitioner to consecutive life
On direct appeal, Petitioner argued, in part, that the trial court erred in excluding expert testimony that his “phobia of harm to his body and fainting at the sight of blood,” together with his consumption of alcohol, “caused him to misperceive and improperly assess the seriousness of the victim’s attack, to overreact to his perception of the threat of bodily harm, and negated an intent to kill or inflict great bodily harm on the deceased.” With regard to that claim of error, the Court of Special Appeals, in an unreported opinion, held:
What [Petitioner] sought to do, notwithstanding a specific disavowal of the same, was to invoke the defense of diminished capacity, a defense, we note, that was rejected in Johnson v. State,292 Md. 405 [439 A.2d 542 ] (1982). Irrespective of how [Petitioner] chooses to style his efforts, the result is the same, ie., the injection into the case of the diminished capacity defense. The Court of Appeals, as we have said, rejected that defense in Johnson. Likewise, we also reject that defense here.
The Court of Special Appeals affirmed all three judgments of conviction and vacated the sentences for premeditated and felony murder because separate sentences for two convictions of murdering a single individual could not stand. The life sentence for rape was not disturbed.
The Circuit Court, on remand, re-sentenced Petitioner to consecutive sentences of life imprisonment for premeditated murder and first degree rape, with no separate sentence for the felony murder conviction. Petitioner thereafter filed several motions to reconsider the sentences, pursuant to which the Circuit Court ultimately, in 1998, reduced the consecutive sentences for premeditated murder and rape to concurrent terms of life imprisonment, with all but fifty years suspended, and no term of probation following the unsuspended portion.
In December 1996, Petitioner filed a petition for postconviction relief. The petition remained pending and, in June 2008, Petitioner amended it to assert, inter alia, that the trial court’s exclusion of Dr. Rothstein’s testimony regarding Petitioner’s psychiatric background impeded his ability to establish imperfect self-defense.
On September 24, 2009, the postconviction court issued a written opinion granting Petitioner relief in the form of a new trial. The court reasoned that § 7-106(c)
The State applied for leave to appeal the September 24, 2009 postconviction order. That same day, the State filed a motion asking the Circuit Court to reconsider and clarify that its ruling applied only to the premeditated murder conviction. The Circuit Court issued a subsequent ruling dated February 25, 2010 confirming that postconviction relief was limited to a new trial solely on the premeditated murder charge. The State did not apply for leave to appeal the February 25, 2010 order.
The Court of Special Appeals granted the State’s application for leave to appeal the September 24, 2009 order and thereafter issued its reported opinion, Greco, supra, reversing the grant of postconviction relief. The Court first addressed Petitioner’s contention that the Court did not have jurisdiction to entertain the appeal because the State had not applied for leave to appeal the postconviction court’s February 25, 2010 order. The Court rejected the contention, reasoning that the postconviction court’s subsequent order “did not vacate or supercede its original [September 24, 2009] order, but rather clarified in the subsequent February 25, 2010 order that the original order was meant to grant a new trial for the first degree murder conviction only, as this issue had not been specifically addressed in the original order.” Greco,
On the merits of the State’s appeal, the Court of Special Appeals held that the postconviction court erred in granting Petitioner a new trial on the premeditated murder count. Id. at 671,
II.
We address first the jurisdictional issue Petitioner has raised. Petitioner asserts, as he did before the Court of Special Appeals, that the intermediate appellate court lacked jurisdiction to consider the State’s appeal “because the State did not appeal from the effective order providing
The postconviction court issued its opinion and order on September 24, 2009 addressing Petitioner’s claim for relief. The record of the postconviction proceedings reveals that Petitioner’s sole basis for seeking relief related to the premeditated murder conviction. Both in the amended petition and in oral argument at the hearing before the postconviction court, Petitioner’s claim focused exclusively on the failure of the trial court to allow him sufficient opportunity to establish imperfect self-defense. That defense was applicable only to the premeditated murder conviction, not to the felony murder and rape convictions. The limited incus of Petitioner’s contention was evident to the postconviction court. The court noted specifically in the opinion accompanying the September 24, 2009 order that “fPjetitioner raises two issues for post conviction relief, both of which stem from the trial court’s decision preventing the petitioner from presenting his theory of imperfect self-defense.” That court, moreover, explicitly based its opinion and grant of relief “upon the [Pjetitioner’s attempt to introduce expert psychiatric testimony in order to support his claim of imperfect self-defense.” Although the accompanying order simply granted postconviction relief and ordered a new trial, the rationale for the court’s order, thoroughly explained in the court’s opinion, demonstrates that the relief granted pertained solely to the premeditated murder conviction.
The February 25, 2010 order was issued pursuant to the State’s request in its motion that the court reconsider the grant of relief or, at the least, clarify that the relief applied only “to premeditated first degree murder and not the two remaining counts of first degree felony murder and first degree rape.” At the hearing on the State’s motion, the court denied reconsideration of the relief granted, but agreed with the State that the order needed to be clarified. The court ruled:
[I]t should have been clear — and perhaps it was not — that the Court felt that under the law the testimony of the psychiatrist in this case should have been allowed to present the imperfect self-defense theory, and that would have been used in an effort to show that the defendant in this case lacked the mental capacity to form the requisite intent to commit murder in the first degree, not as to the first degree rape and/or felony murder.
As such, the Court will amend this order that the motion for new trial is granted as to the first-degree premeditated murder only.
The court’s February 25, 2010 order did not supersede the September 24, 2009 order, as Petitioner contends, but rather made clear the intended limited scope of the earlier order.
The State timely applied for, and ultimately was granted, leave to appeal the
III.
A.
Petitioner contests the Court of Special Appeals’s reversal of the postconviction court’s order granting him a new trial on the premeditated murder charge. We have said that Petitioner sought to defend that charge by claiming imperfect self-defense, offering the theory that his blood phobia caused him to misperceive and overreact to the threat posed by the victim. In support of that theory, Petitioner attempted to offer the expert psychological testimony of Dr. Rothstein, but the Circuit Court, citing Johnson v. State,
Petitioner does not deny that the UPPA generally bars relief on the basis of allegations of error that have been “finally litigated.” See § 7-102(b) (“A person may begin a proceeding brought under this title if: (1) the person seeks to set aside or correct the judgment or sentence; and (2) the alleged error has not been previously and finally litigated ... ”). He also accepts, or at least does not contest, that the allegation of error he has brought in this postconviction proceeding was “finally litigated” on direct appeal of the judgments of conviction.
Petitioner argues nonetheless that the allegation of error was properly before the postconviction court. As he has done throughout these proceedings, Petitioner argues that the alleged error comes within the exception to the “finally litigated” bar that is set forth in § 7-106(c) of the UPPA. Once again, that subsection provides:
(1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived.
(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:
(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and
(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.
The parties agree that, as stated in Hoey and Simmons, Maryland law permits a criminal defendant to present testimony concerning his mental impairment to support a claim of imperfect self-defense. The parties also seem to agree that, only if the legal standard set forth in Hoey and Simmons were both new and of constitutional dimension, as required by § 7-106(c)(2)(i), would it be necessary for us to determine whether the standard is “intended to be applied retrospectively,” and would thereby affect the validity of Petitioner’s conviction for first degree premeditated murder.
The parties disagree about whether in Hoey and Simmons we recognized a new legal standard required by a constitution. As we shall see, the rule of law set forth in those cases in fact was previously recognized by the law in this State and therefore
B.
Determining whether a principle of law qualifies as “not previously recognized” is a question best answered by examining the legal landscape before and after issuance of the decision setting forth the legal principle at issue. If a rule does not squarely amend a prior rule, but merely clarifies it or comments on dicta associated with it, then it will not qualify as “not previously recognized.” See Hunt v. State,
Petitioner argues that Hoey and Simmons announced a new rule by overturning a conflicting rule set forth six years earlier, in Johnson. Specifically, Petitioner asserts that Johnson precluded his claim of imperfect self-defense by prohibiting the admission of mental impairment evidence that disputed the factual existence of his mens rea. We disagree.
We held in Johnson that “this State does not recognize diminished capacity as a legal doctrine operating to negate specific criminal intent.”
In support of his reading of Hoey and Simmons, Petitioner points to our language in Hoey where we stated: “[W]e ... disapprove that portion of the Johnson opinion which indicated that a criminal defendant is not entitled to present evidence of his impaired mental condition for the limited purpose of showing the absence of mens rea,”
Petitioner misreads Johnson, and in doing so misstates the effect upon Johnson of Hoey and Simmons. We addressed in Johnson a challenge to a trial court’s exclusion of psychological evidence that demonstrated the defendant’s insufficient mental capacity to form the requisite specific intent to commit first degree murder.
We rejected Johnson’s attempt to have us recognize the defense of diminished capacity, as part of our common law. We reasoned that the defense of diminished capacity is similar to the defense of legal insanity (now known in Maryland as “lack of criminal responsibility”), in that acceptance of either defense “involve[s] a moral choice by the community to withhold a finding of responsibility and its consequence of punishment.” Id. at 425,
We concluded in Johnson that recognition of the diminished capacity defense in Maryland could only be accomplished by legislative fiat. Id. at 425-26,
Our holding in Johnson did not reach, much less discuss and decide, whether evidence of a mental impairment could be offered to prove imperfect self-defense. In fact, we made clear in Johnson that we were not deciding the admissibility of any evidence outside that specific variety offered to prove diminished capacity. We made explicit our understanding of “a fundamental difference between evidence demonstrating that the defendant did not as a fact possess the requisite mental state, here premeditation and deliberation, as opposed to evidence establishing that the defendant was generally less capable than a normal person of forming a requisite mens rea.” Id. at 426 n. 10,
Any editorial language from the portion of Johnson that reviewed prior case law, which could be read as barring the admission of all mental impairment evidence, is dicta. This includes our statement that introduction of expert testimony pertaining to a mental defect when sanity is not at issue conflicts with basic precepts of criminal law. Although that statement could lead to a myriad of legal conclusions, none of those conclusions held the force of law in Maryland after Johnson, because none of those conclusions derived from the facts, the issue presented, or the holding in that case. Pertinent to this appeal, none of those myriad conclusions, including the one drawn by Petitioner (that Johnson barred the admission of all mental impairment evidence), constitutes a “rule” for purposes of § 7 — 106(c). Petitioner therefore is mistaken in arguing that Hoey and Simmons overturned a “rule” of Johnson barring for all purposes the admission of mental impairment evidence, as no such rule can be read into the Johnson decision.
Rather, as the Court of Special Appeals saw it, both Hoey and Simmons “[f]ocus[ed] on certain sweeping language in the Johnson dicta,” Greco,
Likewise, in Simmons, we held that the trial court erred in excluding psychiatric evidence offered by a defendant to prove imperfect self-defense.
In relation to Johnson, Hoey and Simmons simply clarify a point of dicta. To repeat, Johnson was a case about diminished capacity and the mental impairment evidence used to prove that defense. Hoey and Simmons spoke of mental impairment evidence offered for the purpose of factually rebutting the existence of mens rea. The latter two cases could not, and did not, overrule any rule announced in the former case. Hoey “disapprove^]” of language that “indicated” a certain legal conclusion; and purported “to make indelibly clear” an associated point of confusion.
We confirm our conclusion by noting that, prior to Hoey and Simmons, but subsequent to Johnson, courts in Maryland permitted the admission of mental impairment evidence for the purpose of factually disputing the mens rea element of a crime. In Kanaras v. State, the appellant, Kanaras, appealed his convictions for murder, housebreaking and theft, arguing, inter alia, that the trial court abused its discretion by excluding his psychiatric expert from “expressing opinions about whether appellant’s psychological profile was consistent or inconsistent with voluntary participation in a violent crime.”
To like effect is Cirincione v. State,
What I think that the defendant [is attempting] to do in this case is to present evidence demonstrating that the defendant did not as a fact, and I underscore as a fact, possess the requisite mental state for first-degree murder which is premeditation and deliberation. I am sure that the State understands, as well as the defense, that the burden is on the State to prove every element of the crime of first-degree murder beyond a reasonable doubt and that will include specific intent. But the defendant had to rebut the State’s case; that’s what the defense seeks to do. I will allow the doctor to testify based on the evidence that is presently before the jury and not on any assumptions by the doctor, and that goes for Dr. Richmond if she testifies as well.
So, I will say both doctors, each of them can give an opinion as to whether the defendant, because of substance abuse, was so intoxicated on the date of the incident that he possessed no reason or understanding at the time the alleged act occurred.
Id. at 179,
In sum, there is no support for Petitioner’s argument that, because of Johnson, mental impairment evidence offered to prove imperfect self-defense was categorically barred until Johnson was overruled by Hoey and Simmons. Johnson did not provide a holding on that rule, so Hoey and Simmons did not set forth a previously unrecognized view on that rule. We therefore hold that the “legal standard” set forth in Hoey and Simmons does not qualify as “not previously recognized” under § 7-106(c)(2)(i) of the UPPA. Petitioner may not rely on that subsection to re-litigate the allegation that the trial court erred in 1982 by excluding his expert’s testimony.
C.
Independent of whether the rule announced in Hoey and Simmons was not previously recognized, § 7-106(c)(2)(ii) also requires that the new rule affect the validity of the challenged conviction. In other words, assuming for the sake of argument that Hoey and Simmons presented a constitutional rule that was “not previously recognized,” Petitioner would still have to identify how he was prejudiced by the Johnson rule in a way that would have been ameliorated by application of the standard set forth in Hoey and Simmons. See Md. Rule 4-402(a)(3) & (4) (providing that a petition for postconviction relief shall include “[t]he allegations of error upon which the petition is based” and “[a] concise statement of facts supporting the allegations of error”); see also Fairbanks v. State,
The transcript of Petitioner’s trial reveals that his expert, Dr. Rothstein, was not restricted from expressing an opinion on Petitioner’s mental impairment and the effect that mental impairment had on Petitioner’s actions. After the trial court ruled on the scope of Dr. Rothstein’s testimony, the doctor testified that, consistent with his own diagnosis, Petitioner was found at the age of 16 or 17 to suffer from a “phobic response to the threat of bodily harm and to blood.” The doctor further testified that, given a hypothetical scenario identical to Petitioner’s version of events, Petitioner’s violent reaction of strangling Ms. Larsen was “consistent with some of the features of the operation of a phobic reaction.” When asked to explain what he meant by that, Dr. Rothstein responded:
The feature that is most directly a product of the phobic response would in that situation be the fainting upon being presented with the stimulus, the combined stimuli of the sight of blood and the perception that someone was attacking him. That would be perceived as a threat.
That would be perceived as a threat of bodily harm. The second way in which it would be consistent would be that in the case of somebody who faints as a result of a phobic response to a specific stimulus or indeed anyone who experiences a fainting episode, that there is a brief period following the recovery from the fainting episode during which there is some residual confusion and unclarity of thinking. And that particular state of mind would contribute to the possibility of a misappraisal or misevaluation of what was being seen. That coupled with the fact that the person’s particular emotional response to the threat of bodily harm would tend to result in the combination of the misperception and the overreaction to that which was misperceived.
Regardless of the trial court’s evidentiary ruling based on Johnson that Petitioner would not be allowed to present evidence of diminished capacity, Petitioner was not precluded from offering evidence of his mental impairment in support of his defense of imperfect self-defense. Through Dr. Rothstein, Petitioner offered evidence of the existence of his phobia and the violent effect that phobia could have on someone in Petitioner’s situation. More to the point, Dr. Rothstein essentially explained that Petitioner’s phobia could cause an episode of imperfect self-defense: a misperception of a threat and a violent overreaction to that misperception. The jury simply remained unconvinced by the weight of Dr. Rothstein’s testimony and Petitioner’s defense theory.
In effect, Johnson’s alleged bar on mental impairment evidence had no effect on the evidence that, in the end, was presented at Petitioner’s trial. Consequently, Petitioner
IV.
A.
Because we have held that Petitioner was not entitled to postconviction relief, Petitioner’s allegation that he received an illegal sentence remains at issue. We therefore turn to address preliminarily whether we should review Petitioner’s allegedly illegal sentence now, even though a separate appeal of that sentence remains pending in the Court of Special Appeals.
Petitioner first asserts that review of his allegedly illegal sentence at this juncture is proper because an illegal sentence may be corrected at any time. Moreover, Petitioner asserts, review is proper because he included this allegation in the Petition for Writ of Certiorari he filed with this Court, which we granted without limiting or qualifying in any way the issues presented.
The State argues that we should decline to review Petitioner’s allegedly illegal sentence. The State asserts that Petitioner “largely created and benefitted from” the sentencing error and postponed challenging that illegality until the State sought leave to appeal the postconviction ruling. The State further argues that this Court should not review the allegedly illegal sentence because the challenge is unrelated to the postconviction issue and is “currently pending as a separate action in the Court of Special Appeals that this Court has expressly rejected for inclusion in its grant of certiorari review in the present case.”
We are not persuaded by the State’s arguments that we should decline to review Petitioner’s allegedly illegal sentence. First, Petitioner’s allegation that he received an illegal sentence relies on this Court’s holding in Cathcart v. State,
B.
Because Cathcart is crucial to much of Petitioner’s argument, we review it in
We concluded, therefore, that the “[fjailure to impose a period of probation does not necessarily make the sentence illegal but simply precludes it from having the status of a split sentence.” Id. at 330,
First Degree Murder
We now turn to Petitioner and the State’s respective positions in connection with, first, the sentence for first degree premeditated murder. Petitioner’s argument stems from the unusual circumstances that led to the sentence currently in place for that crime. He asserts that his life sentence for first degree premeditated murder, with all but fifty years suspended and no period of probation, was converted by operation of law into a fifty-year term-of-years sentence, pursuant to our holding in Cathcart. Because the statutorily prescribed penalty for first degree murder is, at a minimum, life imprisonment (although the court may exercise its
The State concedes that a fifty-year term-of-years sentence for first degree murder is illegal, acknowledging that the minimum sentence permitted by statute is life imprisonment and recognizing that “the unsuspended 50-year term in this case was imposed illegally.” The State argues nevertheless that, should we conclude that Petitioner’s sentence is illegal, “this Court should, at most, strike the illegality and remand to the circuit court to determine the appropriate and legal sentences.” The State distinguishes the matter sub judice from Cathcart because, in that case, the unsuspended portion of the split sentence (ten years), when taken as a term-of-years sentence, was not an illegal sentence for Cathcart’s conviction. In this case, however, a fifty-year sentence is illegal. The State argues, therefore, that, on remand, imposing an “increase of sentence” to life imprisonment, or life imprisonment with a fixed unsuspended portion and probation, would not be improper.
Petitioner presents a creative argument, although one to which we cannot subscribe, as Maryland law provides otherwise. Preliminarily, we do agree with Petitioner, and presumably with the State as well, that Cathcart applies to convert his sentence by operation of law to a fifty-year sentence. We find no indication in Catkcart that its application should be limited to cases in which the converted sentence would be a legal sentence. That is, a split sentence imposed without a period of probation to follow lacks the attributes of a split sentence, regardless of whether the resulting term-of-years sentence would be legal or illegal. The pertinent question in cases in which converting the unsuspended portion of a sentence into a term-of-years sentence would render it illegal, such as in the matter sub judice, concerns the authority of the court to correct the illegality arising from the conversion. We begin by considering a line of cases concerning the sentencing court’s power with respect to
In Hoile v. State,
In response to Hoile’s arguments, we first commented that “[t]he correction of an illegal sentence may result in an increase over the erroneous sentence previously imposed on the defendant.” Id. at 620,
We considered specifically in Hoile whether the trial court, not acting after an appeal, permissibly could increase a defendant’s sentence if the sentence being modified was not illegal. This factual scenario would not trigger the prohibition on increased sentences pursuant to CJ § 12-702(b), which Petitioner asserts imposes a limit on the trial court’s discretion to resentence him on remand. We disagree with Petitioner’s assessment of the limitations on the sentencing court to correct an illegal sentence on remand. We conclude that Maryland law does not set a previously imposed, illegal sentence as the upper bound for the sentence that a trial court may impose to correct an illegal sentence after remand from the Court of Special Appeals or this Court. Rather, the sentencing court must look through the illegal sentence to a previous lawful sentence imposed,
In Dixon v. State,
Upon retrial, at the conclusion of the evidence, the State was permitted to enter nolle prosequi as to the attempted voluntary manslaughter charge. Id.,
To arrive at our conclusion that the maximum sentence Dixon could have received after remand and upon reconviction was based on the maximum legal sentence that could have been imposed originally, not on the sentence that actually was imposed, we discussed CJ § 12-702(b) at length. We agreed with Dixon’s interpretation of that statute, “mandat[ing] that the sentencing following the second trial be circumscribed by a lawful sentence resulting from the first trial.” Id. at 228,
A defendant is convicted by a jury of involuntary manslaughter and use of a handgun in the commission of a crime of violence. The trial court sentences the defendant to three years imprisonment for involuntary manslaughter. On the use of a handgun count, the court imposes a concurrent three year term despite the fact that Art. 27, § 36B(d) mandates a sentence of not less than 5 years without parole. The defendant appeals, and the Court of Special Appeals orders a new trial. At the new trial, the defendant is again convicted of involuntary manslaughter and use of a handgun.
Accepting the State’s premise that for the purposes of [CJ] § 12-702(b) “the sentence previously imposed” is the sentence that was actually imposed even if that sentence is illegal, the trial court cannot impose a sentence more severe than three years for use of a handgun. The Legislature plainly did not intend this result, which would defeat the mandate of § 36B(d). The sentence actually imposed by the trial court cannot operate as a sentencing cap under [CJ] § 12-702(b) if it is more severe than the maximum sentence authorized by law or less severe than the minimum sentence required by law, regardless of whether the illegality favors the State or the defendant.
Id. at 230,
In sum, Petitioner’s previously imposed sentence for first degree premeditated murder of life, suspend all but fifty years, was converted by operation of law into a term-of-years sentence of fifty years imprisonment. That converted sentence was not authorized by statute; therefore, it was illegal. On remand, the Circuit Court is limited by the maximum legal sentence that could have been imposed, with the illegality removed. That is, the Circuit Court must impose a sentence of life imprisonment, all but fifty years suspended, to be followed by some period of probation.
First degree rape
Petitioner also contends that his fifty-year sentence for first degree rape, after application of the rule of Cathcart, is illegal because it exceeds his life expectancy. He argues that the Circuit Court was required to “determine that the sentence was lower than a reasonable estimate of the defendant’s natural life” before imposing a term-of-years sentence pursuant to former Article 27, § 462, the statute under which Petitioner was convicted, because that section provided for a maximum sentence of “the period of [the defendant’s]
We begin by recognizing that, regardless of the length of a term-of-years sentence, it is impossible for a defendant to serve a period of incarceration longer than the balance of his natural life. That is, whether a sentence of fifty years of incarceration is longer than the balance of a defendant’s natural life is irrelevant, strictly speaking, because the sentence will be complete at the end of the defendant’s life, even if years remain on the term-of-years sentence. There are practical distinctions, however, between a term-of-years sentence and a life sentence. Specifically, Maryland statutes treat life sentences differently for purposes of parole eligibility. Compare Md.Code (1999, 2008 Repl. Vol. 2011 Supp.), § 7-301(d) of the Correctional Services Article (CS) (limiting parole eligibility for an inmate sentenced to life imprisonment until the inmate has served in confinement fifteen years, and twenty-five years for an inmate sentenced to life imprisonment when the State sought life without parole or death) with CS § 7-301(b) (generally providing for parole eligibility once an inmate has served in confinement one-fourth of the aggregate sentence imposed). Additionally, unlike a defendant serving a term-of-years sentence, a defendant serving a life sentence, once eligible for parole, may only be paroled with the approval of the Governor. CS § 7-301(d)(4)-(5).
Authorities from other jurisdictions support, or are in accord, with our conclusion. See, e.g., Alvarez v. State,
We are not persuaded by Petitioner’s assertion that determining his life expectancy is necessary to determine what sentence would be less than life.
We hold, then, that Petitioner’s effective sentence of fifty-years does not exceed the statutory maximum of “the period of his natural life” and, therefore, is not an illegal sentence.
V.
In conclusion, we hold that: the Court of Special Appeals properly entertained the State’s appeal; Petitioner was not entitled to postconviction relief; and Petitioner’s fifty year sentence for first degree premeditated murder was illegal, but the fifty-year sentence for first degree rape was not.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. CASE REMANDED TO THE CIRCUIT COURT OF BALTIMORE COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. TWO-THIRDS OF THE COSTS IN THIS COURT AND THE FULL COSTS IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
Notes
. Petitioner presented the following questions for review:
1. May the Court of Special Appeals exercise jurisdiction over an appeal taken from a superseded Circuit Court order?
2. Did the Court of Special Appeals err when it concluded that this Court did not set forth a new, constitutionally-mandated rule when, in 1988, it overruled Johnson v. State and thereby permitted criminal defendants to present evidence of mental impairments in defense of specific intent crimes?
3. Did the Court of Special Appeals err when it declined to apply this Court's mandatory retroactivity standard to a rule that corrected an unconstitutional infringement on the factfinding process of criminal trials?
4. May a fifty-year term of years be imposed as punishment for first-degree murder or first-degree rape?
The State presented these questions in its conditional cross-petition:
[1] . Even if Greco had successfully demonstrated that this Court had established a new procedural standard that was constitutionally mandated in its holding in Hoey v. State,311 Md. 473 ,536 A.2d 622 (1988), and Simmons v. State,313 Md. 33 ,542 A.2d 1258 (1988), did Greco nevertheless fail to establish that the standard was intended to be applied retrospectively, thereby disqualifying him from post-conviction relief under Section 7-106(c) of the Criminal Procedure Article?
[2] . Was Greco’s unrelated challenge to his resentencing not properly before the intermediate appellate court or this Court?
. Imperfect self-defense "requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked.” Christian v. State,
. Section 7-106(c) of the Uniform Postconviction Procedure Act (UPPA), "Effect of a judicial decision that Constitution imposes new standard,” states:
(1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived.
(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:
(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and
(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.
. Unless otherwise noted, all statutory references herein are to the Uniform Postconviction Procedure Act.
. That order also denied as moot Petitioner’s pending motion to correct illegal sentence.
. We repeat, it is unnecessary to decide, and so we do not decide, also whether, as required by § 7-106(c)(i) of the UPPA, the legal standard set forth in Hoey and Simmons is one that "the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings.”
. Petitioner also asserts that “the Court may decide an unpreserved issue 'if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal’ ” and that deciding this issue would serve both purposes. (Quoting Md. Rule 8-131(a)). We need not address this argument because we have held consistently that waiver principles do not apply to allegations of substantively illegal sentences. See, e.g., Walczak v. State,
. Cathcart asserted that, because he was serving a life sentence, he had to serve 15 years before he was eligible for parole plus an additional five years for his related assault conviction. Therefore, although Cathcart was sentenced to serve ten years of executed time, he would not have been eligible for parole during the executed portion of his sentence (until after serving twenty years). Cathcart v. State,
. CP § 6-222, “Limits on probation after judgment; extension for restitution,” provides, in pertinent part:
(a) Limits on probation after judgment. — A circuit court or the District Court may:
(1) impose a sentence for a specified time and provide that a lesser time be served in confinement;
(2) suspend the remainder of the sentence; and
(3) (i) order probation for a time longer than the sentence but, subject to subsections (b) and (c) of this section, not longer than:
1. 5 years if the probation is ordered by a circuit court; or
2. 3 years if the probation is ordered by the District Court[.]
. Maryland Code (1974, 2006 Repl.Vol.), § 12-702 of the Courts and Judicial Proceedings Article (CJ) provides, in pertinent part:
(b) Remand for sentence or new trial; limitations on increases in sentences.
—If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper judgment or sentence, or conduct a new trial, and if there is a conviction following this new trial, the lower court may impose any sentence authorized by law to be imposed as punishment for the offense. However, it may not impose a sentence more severe than the sentence previously imposed for the offense unless:
(1) The reasons for the increased sentence affirmatively appear;
(2) The reasons are based upon additional objective information concerning identifiable conduct on the part of the defendant; and
(3) The factual data upon which the increased sentence is based appears as part of the record.
. The nuances of the analysis with respect to merger are not relevant to the matter sub judice.
. We have rejected Petitioner’s argument that a fifty-year term-of-years sentence serves as the maximum sentence that the court could impose on remand. Therefore, we need not consider his ensuing argument in which he recognizes that the court must impose an "authorized” sentence and requests that the court impose a maximum thirty-year term-of-years sentence statutorily authorized for second-degree murder. As Petitioner has made substantial arguments in this regard, we shall briefly discuss the fallacy of the analysis. While Petitioner’s statement that murder is a single common law offense, separated out into statutory degrees is true, see Campbell v. State,
Petitioner relies on our recent decision in State v. Goldsberry,
. Petitioner emphasizes that the statute under which he was convicted, former Article 27, § 462, established the maximum penalty as “the period of [the defendant’s] natural life,” asserting that the statute necessarily required consideration of that particular defendant's life expectancy. Petitioner, however, does not provide any authority to support that the language utilized in § 462 differs substantively from the language of "life imprisonment,” which is the language employed in the cases he cites and is reflected in the current language of the statute. We see none. And, the 2002 recodification of former Article 27, § 462 supports our conclusion. 2002 Md. Laws, ch. 26. When former Article 27, § 462 was repealed and reenacted as CL § 3-303, it was done so without substantive change. Id. Section 3-303 abandoned the language “for the period of his natural life” and replaced it with the maximum penalty of "imprisonment not exceeding life.”