Nathan Joseph Johnson v. State of Maryland
No. 109, September Term, 2018
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
November 18, 2020
Nazarian, J.
ON MOTION FOR RECONSIDERATION
Nаthan Joseph Johnson v. State of Maryland, No. 109, September Term, 2018. Opinion by Nazarian, J.
REMAND FROM COURT OF APPEALS — MOTION TO RECONSIDER OR REMAND FOR RESENTENCING
By a 2-1 vote, the Court declined to exercise its discretion to remand this case for resentencing and, as a result, denied the State of Maryland‘s motion to reconsider.
Circuit Court for Queen Anne‘s County
Case No. 17-CR-17-290
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the Stаte Government Article) this document is authentic.
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 109
September Term, 2018
ON MOTION FOR RECONSIDERATION
NATHAN JOSEPH JOHNSON
v.
STATE OF MARYLAND
Graeff,
Nazarian,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Nazarian, J.
Filed: November 18, 2020
By Order dated November 10, 2020, the Court of Appeals remanded this case to this Court, without affirming or reversing, in order that we might “clarify the basis of [our] decision on April 14, 2020 denying Petitioner‘s motion for reconsideration.” This Opinion explains that decision.
I. BACKGROUND
A. The Appeal
After a bench trial in the Circuit Court for Queen Anne‘s Cоunty, Nathan Joseph Johnson was convicted of involuntary manslaughter, reckless endangerment, possession with intent to distribute heroin and
On appeal, Mr. Johnson raised four contentions. First, relying on State v. Thomas, 464 Md. 133 (2019), he argued that the evidence was insufficient as a matter of law to sustain his conviction for involuntary manslaughter under а theory of gross negligence. Second, he argued that the (circumstantial) evidence was not sufficient to support his conviction for distribution of a controlled substance. Third, he contended that the circuit court erred in admitting text messages from a cell phone. And fourth, he argued that the trial court had erred in imposing separate sentences for distribution and involuntary manslaughter. The State opposed these contentions.
B. The Merits Opinion
We held oral argument on December 3, 2019 and issued a reported opinion on January 31, 2020. Johnson v. State, 245 Md. App. 46 (2020). We won‘t recount the entire opinion here, but a few points bear on the motion for reconsideration and our decision to deny it.
First, this was the first overdose-related involuntary manslaughter case to reach our Court after the Court of Appeals issued Thomas, 464 Md. at 169-72, and the first opportunity to identify situations that would or wouldn‘t satisfy Thomas‘s new standard.1 After analyzing the facts of this case against the Thomas factors, we concluded that “[i]nterpreting Thomas to assume knowledge of a drug‘s contents with its riskiness on the part of all low-level, infrequent dealers would lead to the per se rule Thomas warned against[,]” and that “if this drug sale qualifies as grossly negligent, we struggle to imagine a transaction that wouldn‘t.” Johnson, 245 Md. App. at 64. Accordingly, we held that the evidence was insufficient to support a finding that he had acted with gross negligence, and we reversed the conviction for involuntary manslaughter. Id. at 69.
Second and third, we agreed with the State that the evidence was sufficient to support the conviction for рossession with intent to distribute, id. at 65-68, and that the trial court had not erred in admitting the available text messages between Mr. Johnson and the victim. Id. at 68-69.
As a result, we affirmed the judgments except the conviction for involuntary manslaughter. During the recent argument in the Court of Appeals, there were several references to the involuntary manslaughtеr conviction being vacated. It wasn‘t. The judgment of conviction was reversed, as we stated in the order at the conclusion of our opinion:
JUDGMENT OF THE CIRCUIT COURT QUEEN ANNE‘S COUNTY FOR INVOLUNTARY MANSLAUGHTER COUNT REVERSED. JUDGMENTS AFFIRMED IN ALL OTHER RESPECTS. APPELLANT AND QUEEN ANNE‘S COUNTY TO SPLIT COSTS.
Id. at 69. Indeed, our holding that the evidence was insufficient to support a finding of gross negligence would
Finally, our resolution of the involuntary manslaughter conviction left no occasion for us to reach the one sentencing issue that was raised in the appeal, i.e., Mr. Johnson‘s contention that the sentences for involuntary manslaughter or distribution should merge. Id. At the very end of its brief, the State argued that if we were to determine that Mr. Johnson‘s sentences for involuntary manslaughter and distribution merged, we should remand the case for resentencing under the principles enunciated in Twigg v. State, 447 Md. 1 (2016). Neither side raised, in their briefs or at argument, any issues regarding resentencing, or not, in the event a conviction was reversed.
C. The Motion To Reconsider
On February 18, 2020, the State filed a timely Motion to Reconsider and Remand for Resentencing on Reckless Endangerment and Possession [with Intent to] Distribute Heroin and Fentanyl. See
We asked Mr. Johnson to respond to the State‘s motion. See
the opinion conflict with any decisions of a superior court. Id. at 4. He then distinguished Twigg from this case in two respects. First, he argued that Twigg involved a merger of sentences for convictions left intact and that every case relying on Twigg аnd remanding for resentencing had involved an illegal sentence or sentencing defect, not a reversal. Id. at 5-7. Second, “even if Twigg could be extended as the State contends to a case in which a count of conviction is reversed, that decision would only grant the discretion to remand, not require it,” id. at 7, and he argued the circumstances of this case advise against us exercising our discretion to remand for resentencing in this case. Id. at 7-9.
D. Our Decision On The Motion
Because the merits opinion was a reported opinion, a motion for reconsideration of that opinion must be submitted to the Court as a whole. The panel, led by the authoring judge, prepares a recommendation for the Court and presents that recommendation
This motion did not challenge the merits opinion‘s analysis, conclusions, or language. It asked us to grant a form of relief that had not been addressed in the merits opinion, and the Court could have granted or denied the motion without making any changes. All the same, the panel deliberated and decided (on a 2-1 vote that we will explain further below) to recommend that the Court deny the motion. The Court adоpted the panel‘s recommendation at its March 2020 Conference (held on March 31, 2020). The motion was denied in an order that described only the disposition of the motion, not the underlying reasoning.
The State filed a petition for writ of certiorari in the Court of Appeals, and the Court granted that petition on June 5, 2020. The Court held оral argument on November 5, 2020, and, on November 10, 2020, remanded the case to this Court, without affirming or reversing, in order that we might “clarify the basis of [our] decision on April 14, 2020 denying Petitioner‘s motion for reconsideration.”
II. DISCUSSION
The circumstances of this motion offer a rare retrospective glimpse into the metaphorical room wherе this decision happened (or, in this instance, inside the third floor2 of the Robert C. Murphy Courts of Appeal Building). We described above the process of deciding the State‘s motion to reconsider, and on the merits, the panel split by a 2-1 vote. Judges Nazarian and Zarnoch voted to deny the motion, for reasons we explain bеlow. Judge Graeff voted to grant the motion because the reversal of the involuntary
manslaughter conviction reduced Mr. Johnson‘s conviction from thirty years’ incarceration, with all but twelve years suspended, to twenty years’ incarceration, with all but five years suspended, and, in her view, the trial court should have the ability to reсonsider its sentencing package in light of our holding.
Two considerations animated the panel‘s discussions and recommendation and the ultimate decision to deny the State‘s motion to reconsider. First, the relief the State sought in its motion—a remand for resentencing after reversal of Mr. Johnson‘s conviction for involuntary manslaughter—had not been sought until after we issued our opinion. This consideration proved dispositive: Judges Nazarian and Zarnoch shared this view, and the 2-1 vote on this ground drove the panel‘s recommendation to the Court that the motion be denied, and that is the recommendation that the Court adopted.
The second consideration was the application of
involuntary manslaughter charge was not so disparate from the trial court‘s sentencing intentions to warrant a remand in the context of this sentencing package. Judge Zarnoch voted against reaching this issue because it had not been raised in the briefing and argument on the merits.
The preceding two paragraphs provide a superficiаl answer to the Court of Appeals‘s question and solve the key mystery with which the Court of Appeals and the parties grappled at oral argument. But a mere statement of reasons leaves out the most important element of the panel majority‘s decision: our discretion as a Court to make it. No case, statute, or other authority compelled the outcome of this motion. Our differences as a panel in deliberating on this decision represent differences only as to how we should exercise our discretion in addressing the State‘s motion, and specifically whether this is an appropriate case to grant the discretionary relief the Statе seeks. To the extent, then, that the State contends that Twigg (or any other authority) requires an appellate court to remand under these (or any) circumstances, we disagree.
Twigg itself proves the point. Unlike this case, Twigg was solely about sentencing. Mr. Twigg had been convicted of myriad sex offenses. Mr. Twigg didn‘t challenge any of his convictions on the merits—not only were none reversed, they all remained intact. The only question raised initially in Twigg was the extent to which the various sentences merged. He contended that his many convictions all merged for sentencing purposes into his conviction for sexual child abuse and, with one difference, both this Court and the Court of Appeals agreed. Twigg v. State, 219 Md. App. 259, 266-80 (2014), aff‘d in part, rev‘d in part, 447 Md. 1, 10-19 (2016). That might not seem strange on its face, but the result
was еxtreme and anomalous in that particular case: the trial court had imposed consecutive sentences totaling forty years of active incarceration, yet only a fifteen-year suspended sentence for sexual child abuse. Twigg, 219 Md. App. at 280.
The sentence resulting from the mergers was obviously out of sync with what the trial court had sought to impose, but there was enough uncertainty about our authority to remand for resentencing on the remaining charge that we ordered supplemental briefing on (a) whether any authority permitted or precluded us from doing so and (b) any limitations on the sentence a circuit court could impose on remand. Id. at 280-82. And there were no cases squarely holding that we had the authority to do so. But based on our analysis of Jones v. State, 414 Md. 686 (2010), “we conclude[d] that the Court of Appeals recognized our discretionary authority, in cases where the trial court fails to properly merge the convictions for sentencing purposes, to vacate the sentences on all of the convictions involved in the merger and to remand the case to the trial court for the imposition of a new sentence on the conviction remaining for a sentence after merger has been accomplished.” Twigg, 219 Md. App. at 284-85 (emphasis added).
The Court of Appeals
unauthorized by Maryland statute, our rules, or our case law, and we are not aware of any.” Id. at 21.
As a matter of holding, then, Twigg stands for the proposition that appellate courts have the discretionary authority to remand cases for resentencing in response to their decision that the trial court‘s sentencing package has been disrupted by mergers the trial court didn‘t anticipate or consider. Neither Twigg opinion remotely suggests that resentencing is compulsory or that the State or the trial court is entitled to another bite at the sentencing apple. To the contrary, our Court‘s opinion in Twigg highlighted and relied on the extreme result of the merger decisions in that particular case—we qualified the first holding by saying that “under the circumstances of the instant case, this Court has the discretionary authority to remand the case to the trial court for the purpose of imposing a new sentence on аppellant for his sexual child abuse conviction . . . .” Id. at 282. And although the Court of Appeals‘s discussion doesn‘t repeat the limitation in so many words, it expressly endorsed the remand “as was done in Jones and as the Court of Special Appeals did in the present case,” Twigg, 447 Md. at 21, which comes pretty close.
As a matter of principle, nothing in Twigg appears to preclude an appellate court from ordering a Twigg remand in a case where the sentencing package was disturbed by a decision to reverse a conviction. But by the same token, Twigg can‘t reasonably be read to compel a remand under these circumstances, especially if a remand is discretionary in a merger case such as Twigg. The authority to order a remand for resentencing lies in the discretion of the appellate court that reviewed the conviction and decided to reverse it. And in this case, the three members of the panel reached different conclusions about whether
the Court should exercise its discretion to order a remand. There is no debate among us about whether we could, only whether this is an appropriate case to exercise that discretion.