Filed April 11, 2007 --Opinion by Judge Alan Wilner
Nancy S. Forster, the Public Defender of Maryland, petitioned for a writ of prohibition, writ of mandamus, or other appropriate relief, vacating a directive and order issued by Judge Edward Hargadon, of the Circuit Court for Baltimore City. Forster argued the directive and order were substantively unlawful and constituted an impermissible local rule. The order imposed certain procedural requirements on parties filing exceptions to the report of a master in juvenile cases and permits the court to dismiss the exceptions if those requirements are not met. The directive directed the court clerk to enter the order in each exceptions case, so that the order and its requirements would be case-specific.
A motion to stay the directive and order pending the Court's decision on the petition had been granted earlier. After considering the petition, however, the Court dismissed it and revoked the stay because the requested relief, if
warranted, was available in two pending cases in Court of Special Appeals.
The Opinion is available in PDF.
Showing posts with label Judge Wilner Alan. Show all posts
Showing posts with label Judge Wilner Alan. Show all posts
Wednesday, April 11, 2007
Jackson v. Pasadena Receivables (Ct. of Appeals)
Filed April 11, 2007 --Opinion by Judge Alan Wilner
This case arose from a collection action in the District Court to recover judgment on a credit card debt. The debtor, Sheri Jackson, never denied that she used the credit card to purchase the items which, together with finance charges, comprise the debt and that, at some point, she simply stopped making payments on the account. She argued that, because she never signed the credit card agreement and the credit card issuer, Citibank, made no reasonable attempt to obtain her signature, the credit card agreement violates a provision of the Maryland Retail Credit Accounts Law (RCAL), codified at Maryland Code, § 12-503(e)(1) of the Commercial Law Article (CL). As a result, Ms. Jackson claimed that, in accordance with CL § 12-513(a), all of the finance charges that had ever been assessed during the nine years that she used the credit card were forfeited.
The Court disagreed and holding that the choice of law provision in credit card agreement, calling for South Dakota law to be applied to disputes arising under the agreement or in connection with the use of he card, was valid and enforceable in Maryland. The Maryland Retail Credit Account Law provision requiring that the credit card agreement be signed by buyer or that issuer make reasonable attempt to obtain buyer's signature was not such a fundamental policy of Maryland that it could override the choice of law provision.
The Opinion is available in PDF.
This case arose from a collection action in the District Court to recover judgment on a credit card debt. The debtor, Sheri Jackson, never denied that she used the credit card to purchase the items which, together with finance charges, comprise the debt and that, at some point, she simply stopped making payments on the account. She argued that, because she never signed the credit card agreement and the credit card issuer, Citibank, made no reasonable attempt to obtain her signature, the credit card agreement violates a provision of the Maryland Retail Credit Accounts Law (RCAL), codified at Maryland Code, § 12-503(e)(1) of the Commercial Law Article (CL). As a result, Ms. Jackson claimed that, in accordance with CL § 12-513(a), all of the finance charges that had ever been assessed during the nine years that she used the credit card were forfeited.
The Court disagreed and holding that the choice of law provision in credit card agreement, calling for South Dakota law to be applied to disputes arising under the agreement or in connection with the use of he card, was valid and enforceable in Maryland. The Maryland Retail Credit Account Law provision requiring that the credit card agreement be signed by buyer or that issuer make reasonable attempt to obtain buyer's signature was not such a fundamental policy of Maryland that it could override the choice of law provision.
The Opinion is available in PDF.
Friday, March 16, 2007
Cunningham v. State (Ct. of Appeals)
Filed March 15, 2007--Opinion by Judge Alan M. Wilner (retired, specially assigned).
Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van and was subsequently convicted in the Circuit Court for Baltimore City of (1) possession with intent to distribute goods of a value less than $1,000 that Appellant knew bore or were identified with a counterfeit mark, (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the same name and address of the transferor of the sounds or images, and (3) acting as a peddlar without a license. The court sentenced Appellant to 18 months in prison, with all but 30 days suspended in favor of 18 months probation. As an additional penalty, the court required that Appellant pay restitution in the amount of $955.
Although no objection was made to the restitution order and notwithstanding Appellant immediately, at the sentencing hearing, paid the restitution, Appellant now complains that the order constitutes an illegal sentence because (1) the recipient was neither a victim nor a proper restitution payee, and (2) no evidence was introduced regarding the amount of restitution.
Referring to Chaney v. State, to fit within the category of an illegal sentence, the illegality must inhere in the sentence itself, i.e., there either has been no convinction warranting any sentence or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantially unlawful. This Court held that the Order challenged here did not fit within the ambit of an "illegal sentence" in that regard, and the alleged deficiencies went only to the amount and to whether the recipients were persons entitled to restitution. Any other deficiency in the sentence that may be grounds for an appellate court to vacate it must ordinarily be raised in or decided by the trial court. Subject only to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court. Here, not only did the Appellant not object to the restitution, but brought money orders totalling $955 to the sentencing hearing, made them payable to persons not identified in the record, and delivered them to the prosecutor.
Held: When a criminal defendant fails to raise a timely objection in the trial court to a valid restitution order, that defendant waives any complaint about the amount or the recipient of the restitution.
The full opinion is available in PDF.
Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van and was subsequently convicted in the Circuit Court for Baltimore City of (1) possession with intent to distribute goods of a value less than $1,000 that Appellant knew bore or were identified with a counterfeit mark, (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the same name and address of the transferor of the sounds or images, and (3) acting as a peddlar without a license. The court sentenced Appellant to 18 months in prison, with all but 30 days suspended in favor of 18 months probation. As an additional penalty, the court required that Appellant pay restitution in the amount of $955.
Although no objection was made to the restitution order and notwithstanding Appellant immediately, at the sentencing hearing, paid the restitution, Appellant now complains that the order constitutes an illegal sentence because (1) the recipient was neither a victim nor a proper restitution payee, and (2) no evidence was introduced regarding the amount of restitution.
Referring to Chaney v. State, to fit within the category of an illegal sentence, the illegality must inhere in the sentence itself, i.e., there either has been no convinction warranting any sentence or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantially unlawful. This Court held that the Order challenged here did not fit within the ambit of an "illegal sentence" in that regard, and the alleged deficiencies went only to the amount and to whether the recipients were persons entitled to restitution. Any other deficiency in the sentence that may be grounds for an appellate court to vacate it must ordinarily be raised in or decided by the trial court. Subject only to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court. Here, not only did the Appellant not object to the restitution, but brought money orders totalling $955 to the sentencing hearing, made them payable to persons not identified in the record, and delivered them to the prosecutor.
Held: When a criminal defendant fails to raise a timely objection in the trial court to a valid restitution order, that defendant waives any complaint about the amount or the recipient of the restitution.
The full opinion is available in PDF.
Thursday, March 15, 2007
Property and Casualty Insurance Guaranty Corporation v. Yanni (Ct of Appeals)
Filed March 15, 2007. Opinion by Judge Lynne Battaglia, joined by Judge Glenn T. Harrell, Jr. as to the immunity issue only. Dissenting opinion by Judge Alan Wilner (retired, specially assigned).
From the opinion's headnote:
The court's official headnote adequately captures the substance of the majority opinion, but in dissent, Judge Wilner (joined by Cheif Judge Robert Bell) responded that the majority resorts to an overly constrained interpretation to come up with a conclusion at odds with the stated purposes for establishing PCIGC, "to provide a mechanism for the prompt payment of covered claims". Explicit language in the statute drops PCIGC into the shoes of the defaulting insurer, and thus PCIGC is an insurer for the perposes of the statuory scheme. Moreover, since the failure to timely pay the amounts due to Yanni was due to PCIGC's failure to timely pay amounts due under the policy, the penalties most certainly should be deemed as "arise out of" the policy. Finally, the dissent found the reasoning to afford immunity to PCIGC, derived for other cases, inapposite here, where PCIGC was being held accountable for its own failure to comply with the statute's requirement, and to suggest a different channel to seek redress as suggested in the majority opinion, "makes utterly no sense", and for all those reasons, would have affirmed the judgment of the court below.
The opinion is available in PDF format.
From the opinion's headnote:
WORKERS’ COMPENSATION - INSURER - COVERED CLAIM - IMMUNITY
The Property and Casualty Insurance Guaranty Corporation (“PCIGC”) sought review of the Circuit Court for Montgomery County’s entry of summary judgment for Peter L. Yanni in which the Circuit Court upheld the Workers’ Compensation Commission’s award of late-payment penalties and attorneys’ fees to Yanni for PCIGC’s tardy payment of Yanni’s workers’ compensation award. The Court of Appeals reversed summary judgment for Yanni and held that the penalties should not have been assessed against the PCIGC because it was not an “insurer” for purposes of Section 9-728 of the Labor and Employment Article, and because the late-payment penalties were not part of Yanni’s “covered claims,” as the term is defined in Section 9-301(d) of the Insurance Article. The Court also concluded that, even if the PCIGC were an “insurer,” and the penalties were part of the “covered claim,” it was immune from the assessment of late-payment penalties under the provisions of Section 9-314(a) of the Insurance Article and Section 5-412 of the Courts and Judicial Proceedings Article.
The court's official headnote adequately captures the substance of the majority opinion, but in dissent, Judge Wilner (joined by Cheif Judge Robert Bell) responded that the majority resorts to an overly constrained interpretation to come up with a conclusion at odds with the stated purposes for establishing PCIGC, "to provide a mechanism for the prompt payment of covered claims". Explicit language in the statute drops PCIGC into the shoes of the defaulting insurer, and thus PCIGC is an insurer for the perposes of the statuory scheme. Moreover, since the failure to timely pay the amounts due to Yanni was due to PCIGC's failure to timely pay amounts due under the policy, the penalties most certainly should be deemed as "arise out of" the policy. Finally, the dissent found the reasoning to afford immunity to PCIGC, derived for other cases, inapposite here, where PCIGC was being held accountable for its own failure to comply with the statute's requirement, and to suggest a different channel to seek redress as suggested in the majority opinion, "makes utterly no sense", and for all those reasons, would have affirmed the judgment of the court below.
The opinion is available in PDF format.
Chaney v. State (Ct. of Appeals)
Filed March 14, 2007. Opinion by Judge Alan M. Wilner (retired, specially asigned).
From the headnote of the opinion:
Following conviction of second degree assault, Chaney was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditions of probation were that Chaney pay restitution to the victim in the amont of $5,000 within 30 months after his release from prison and that he be employed full-time or a full-time student. At the sentencing hearing, Chaney was presented with, and signed, the probation order and separate judgment of restitution. Chaney timely appealed the conditions to probation.
After the appeal request, Chaney filed a motion for modification and reduction of sentence, complaining that there had been no request by the victim for restitution, and no evidentiary basis for the $5,000 judgment. Chaney's motion was denied, and no appeal was taken from that ruling. The Court of Appeals granted certiorari prior to consideration by the Court of Special Appeals, to consider whether the two conditions constituted an "illegal sentence" that may be corrected notwithstanding Chaney's failure to object to them in a timely manner in the trial court below.
The court noted that a defendant may file a motion to correct an illegal sentence even if 1) no objection was made when the sentence was imposed, 2) the defendant consented to it, or 3) the sentence was not timely challenged in direct appeal, but that the scope of the privilege is narrow, where the illegality inheres in the sentence itself. That is, either there has been no conviction warranting the sentence or the sentence is not a permitted one for the conviction upon which it was imposed, and therefore is intrinsically and subtantively unlawful.
The court found nothing intrinsically illegal about either condition here, even though Chaney argued that the conditions were inappropriate here because no evidentiary foundation was laid to support them. At best, this would require the court to vacate if the compaint was preserved for appellate review, or the court chooses to exercise its discretion under Rule 8-131(a) to consider issues not raised in or decided by the trial court. Here, Chaney had failed to appeal from the trial court's denial of his motion, but the court nonetheless decided to exercise its discretion and consider the restitution issue, because it was found to constitute plain error and transcended this case, potentially affecting hundreds of other cases, but not the employment condition, which could await the time Chaney is charged with violating that condition.
Restitution is provided for in Section 11-603 of the Criminal Proceedings Article, if as a direct result of the crime, the victim suffered specified items of damage set forth in subsection (a), and in subsection (b) the victim is presumed to have a right of restitution if the victim or the State requests restitution, and the court is presented with competent evidence of any specified item of damages. The court noted the facial ambiguity of the statute, calling it "at best, inartfully drawn," and was unwilling to read the first part without the conditions set forth in the second part, since restitution is part of a criminal sanction.
Consequently, the court held that as a matter of due process and Maryland criminal procedure, restitution may only be awarded if 1) the defendant is given reasonable notice that restitution is being sought and the amount, 2) the defendant is given a fair opportunity to defend against that request, and 3) there is sufficient admissible evidence to support the request, as to both the amount and relationship to the crime. The court noted that the statues and rules provide for the involvement of the victim in the process and provide a due process framework for consideration of these requirements. Here, in spite of the presence of the victim and compliance with those statutes and rules, no demand was made for restitution, and no evidence was submitted, so the $5,000 restitution figure "was pulled entirely out of thin air." Thus the court vacated the order of restitution.
The opinion is available in PDF format.
From the headnote of the opinion:
Before a restitution order is granted, Section 11-603 of the Criminal Procedure Article requires that the victim of the crime or the State request restitution and that competent evidence supporting the amount of the restitution order be presented to the trial court. In this case, because the record demonstrates that no request for restitution was made and no competent evidence was presented to support the amount of restitution, the restitution order must be vacated.
Following conviction of second degree assault, Chaney was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditions of probation were that Chaney pay restitution to the victim in the amont of $5,000 within 30 months after his release from prison and that he be employed full-time or a full-time student. At the sentencing hearing, Chaney was presented with, and signed, the probation order and separate judgment of restitution. Chaney timely appealed the conditions to probation.
After the appeal request, Chaney filed a motion for modification and reduction of sentence, complaining that there had been no request by the victim for restitution, and no evidentiary basis for the $5,000 judgment. Chaney's motion was denied, and no appeal was taken from that ruling. The Court of Appeals granted certiorari prior to consideration by the Court of Special Appeals, to consider whether the two conditions constituted an "illegal sentence" that may be corrected notwithstanding Chaney's failure to object to them in a timely manner in the trial court below.
The court noted that a defendant may file a motion to correct an illegal sentence even if 1) no objection was made when the sentence was imposed, 2) the defendant consented to it, or 3) the sentence was not timely challenged in direct appeal, but that the scope of the privilege is narrow, where the illegality inheres in the sentence itself. That is, either there has been no conviction warranting the sentence or the sentence is not a permitted one for the conviction upon which it was imposed, and therefore is intrinsically and subtantively unlawful.
The court found nothing intrinsically illegal about either condition here, even though Chaney argued that the conditions were inappropriate here because no evidentiary foundation was laid to support them. At best, this would require the court to vacate if the compaint was preserved for appellate review, or the court chooses to exercise its discretion under Rule 8-131(a) to consider issues not raised in or decided by the trial court. Here, Chaney had failed to appeal from the trial court's denial of his motion, but the court nonetheless decided to exercise its discretion and consider the restitution issue, because it was found to constitute plain error and transcended this case, potentially affecting hundreds of other cases, but not the employment condition, which could await the time Chaney is charged with violating that condition.
Restitution is provided for in Section 11-603 of the Criminal Proceedings Article, if as a direct result of the crime, the victim suffered specified items of damage set forth in subsection (a), and in subsection (b) the victim is presumed to have a right of restitution if the victim or the State requests restitution, and the court is presented with competent evidence of any specified item of damages. The court noted the facial ambiguity of the statute, calling it "at best, inartfully drawn," and was unwilling to read the first part without the conditions set forth in the second part, since restitution is part of a criminal sanction.
Consequently, the court held that as a matter of due process and Maryland criminal procedure, restitution may only be awarded if 1) the defendant is given reasonable notice that restitution is being sought and the amount, 2) the defendant is given a fair opportunity to defend against that request, and 3) there is sufficient admissible evidence to support the request, as to both the amount and relationship to the crime. The court noted that the statues and rules provide for the involvement of the victim in the process and provide a due process framework for consideration of these requirements. Here, in spite of the presence of the victim and compliance with those statutes and rules, no demand was made for restitution, and no evidence was submitted, so the $5,000 restitution figure "was pulled entirely out of thin air." Thus the court vacated the order of restitution.
The opinion is available in PDF format.
Wednesday, March 14, 2007
Department of Health and Mental Hygiene v. Kelly (Ct. of Appeals)
Filed March 14, 2007 – Opinion by Judge Lynne Battaglia
Anthony Kelly was adjudged incompetent to stand trial in the Circuit Court for Montgomery County because his delusional disorder prevented him from understanding the adversarial nature of the proceedings against him, and precluded him from assisting in his criminal defense. He was committed to a state health institution for treatment, where the Department of Health and Mental Hygiene sought to forcibly medicate him. The Department convened a Clinical Review Panel that approved the forcible medication and that decision was upheld by an ALJ. The Circuit Court for Baltimore City reversed. On appeal, the Court of Appeals affirmed, holding that Section 10-708 (g) of the Health-General Article of the Maryland Code (1982, 2005 Repl. Vol.) requires the State to prove that an individual, because of his mental illness, is dangerous to himself or others within a state institution before it can forcibly administer medication. Finding nothing in the record to show that Kelly was, because of his mental illness, dangerous to himself or others within the state institution, the Court determined that he could not be forcibly medicated pursuant to Section 10-70 8 (b)(2) and (g).
In a concurring opinion, Judge Alan Wilner raised a concern that the Court had addressed a broader question that the one presented in the case. Judge Wilner would have courts look at the nature and purpose of the prescribed medication when psychiatrists in a State hospital to which a criminal defendant has been committed believe it is necessary to forcibly medicate the defendant. Where the State could demonstrate that the purpose of the medication was not just to suppress but also to treat and ameliorate the symptoms that caused the patient to be committed in the first place, Judge Wilner would put the focus on whether (1) without the medication, those symptoms will not be treated or ameliorated and the patient will therefore remain ineligible for release, and (2) with the medication, the patient will likely become eligible for release. Judge Wilner would put the burden on the State to show both that the prescribed medication is for that broader purpose and that, alone or in conjunction with other medications or therapies, it has a reasonable chance of achieving that objective without undue side effects. Judge Glenn Harrell joined in the concurrence.
The opinion is available in PDF.
Anthony Kelly was adjudged incompetent to stand trial in the Circuit Court for Montgomery County because his delusional disorder prevented him from understanding the adversarial nature of the proceedings against him, and precluded him from assisting in his criminal defense. He was committed to a state health institution for treatment, where the Department of Health and Mental Hygiene sought to forcibly medicate him. The Department convened a Clinical Review Panel that approved the forcible medication and that decision was upheld by an ALJ. The Circuit Court for Baltimore City reversed. On appeal, the Court of Appeals affirmed, holding that Section 10-708 (g) of the Health-General Article of the Maryland Code (1982, 2005 Repl. Vol.) requires the State to prove that an individual, because of his mental illness, is dangerous to himself or others within a state institution before it can forcibly administer medication. Finding nothing in the record to show that Kelly was, because of his mental illness, dangerous to himself or others within the state institution, the Court determined that he could not be forcibly medicated pursuant to Section 10-70 8 (b)(2) and (g).
In a concurring opinion, Judge Alan Wilner raised a concern that the Court had addressed a broader question that the one presented in the case. Judge Wilner would have courts look at the nature and purpose of the prescribed medication when psychiatrists in a State hospital to which a criminal defendant has been committed believe it is necessary to forcibly medicate the defendant. Where the State could demonstrate that the purpose of the medication was not just to suppress but also to treat and ameliorate the symptoms that caused the patient to be committed in the first place, Judge Wilner would put the focus on whether (1) without the medication, those symptoms will not be treated or ameliorated and the patient will therefore remain ineligible for release, and (2) with the medication, the patient will likely become eligible for release. Judge Wilner would put the burden on the State to show both that the prescribed medication is for that broader purpose and that, alone or in conjunction with other medications or therapies, it has a reasonable chance of achieving that objective without undue side effects. Judge Glenn Harrell joined in the concurrence.
The opinion is available in PDF.
Monday, February 12, 2007
Del Marr v. Montgomery County (Ct. of Appeals)
Issued February 9, 2007 -- Opinion of Judge Alan Wilner
Petitioner suffered an injury to his back while in the employ of the Montgomery County Board of Education and received a preliminary award of $114 per week for 50 weeks of benefits from the Workers' Compensation Commission (the "Commission.") After two reopenings of his case reflecting the deterioration of his condition, Petitioner received an amended award of 115 weeks of benefits to be paid at the enhanced rate of $223 per week, to commence as of the effective date of the new order, with credit for "payments made" under the prior orders that did not involve an enhanced rate of weekly compensation. This enhanced rate was awarded pursuant to Maryland's Workers' Compensation Law, Md. Ann. Code, LE Sec. 9-628 and -629, which sections provide for enhanced weekly rates once the number of awarded weeks of benefits exceeds 75 weeks.
Montgomery County appealed the Commission's decision to the Montgomery County Circuit Court, which reversed in part the decision of the Commission, holding that credit was to be made not for the dollar amount of payments made but only for the prior weeks of payment without dollar adjustments for those prior weeks' lower rate. Upon etitioner's appeal of that decision, the Court of Special Appeals upheld the Circuit Court. Petitioner appealed to the Maryland Court of Appeals.
Citing precedent in prior cases in which workers' compensation claimants' awards had been both increased and decreased in judicial proceedings, the Court of Appeals upheld the decision of Court of Special Appeals, holding that amended awards by the Commission do not effectuate a retroactive rate increase for weeks already paid and do not require a credit for dollars of payment, only for weeks of payment at the previously applicable rates.
The opinion is available in full here in PDF.
Petitioner suffered an injury to his back while in the employ of the Montgomery County Board of Education and received a preliminary award of $114 per week for 50 weeks of benefits from the Workers' Compensation Commission (the "Commission.") After two reopenings of his case reflecting the deterioration of his condition, Petitioner received an amended award of 115 weeks of benefits to be paid at the enhanced rate of $223 per week, to commence as of the effective date of the new order, with credit for "payments made" under the prior orders that did not involve an enhanced rate of weekly compensation. This enhanced rate was awarded pursuant to Maryland's Workers' Compensation Law, Md. Ann. Code, LE Sec. 9-628 and -629, which sections provide for enhanced weekly rates once the number of awarded weeks of benefits exceeds 75 weeks.
Montgomery County appealed the Commission's decision to the Montgomery County Circuit Court, which reversed in part the decision of the Commission, holding that credit was to be made not for the dollar amount of payments made but only for the prior weeks of payment without dollar adjustments for those prior weeks' lower rate. Upon etitioner's appeal of that decision, the Court of Special Appeals upheld the Circuit Court. Petitioner appealed to the Maryland Court of Appeals.
Citing precedent in prior cases in which workers' compensation claimants' awards had been both increased and decreased in judicial proceedings, the Court of Appeals upheld the decision of Court of Special Appeals, holding that amended awards by the Commission do not effectuate a retroactive rate increase for weeks already paid and do not require a credit for dollars of payment, only for weeks of payment at the previously applicable rates.
The opinion is available in full here in PDF.
Saturday, February 10, 2007
Cathcart v. State (Ct. of Appeals)
Filed February 9, 2007—Opinion by Judge Alan Wilner
Robin Cathcart was convicted by a jury of first degree assault and false imprisonment after brutally beating his former girlfriend and thereafter precluding her from leaving her apartment to seek medical assistance. For the first degree assault, the court imposed a sentence of ten years. For the common law offense of false imprisonment, the court sentenced Cathcart to life imprisonment, consecutive to the ten year sentence for assault, with all but ten years suspended. No period of probation was imposed with respect to the suspended part of the life sentence.
Cathcart appealed arguing that, under the circumstances of the case, the imposition of a life sentence for the common law offense of false imprisonment was unconstitutionally disproportionate and therefore illegal. Noting that the maximum sentence in Maryland for kidnapping – an aggravated form of false imprisonment – was only thirty years and that the permissible sentence for false imprisonment in other States ranged from six months to ten years, he complained that holding the victim in her apartment for up to three hours was grossly disproportionate and therefore cruel and unusual.
The Court of Special Appeals concluded that the sentence was effectively one of ten years, rather than life, given the fact that no period of probation was imposed with respect to the suspended part of the life sentence and that Cathcart could therefore never serve more than ten years on that sentence. It affirmed the trial court’s judgment reasoning that, under the circumstances, a sentence of ten years for false imprisonment was not unconstitutionally disproportionate.
In his petition for certiorari, Cathcart maintained that a sentence of life imprisonment, with all but ten years suspended with no probation, constituted an illegal sentence, but the nature of his complaint differed. Carthcart argued that, in the absence of a period of probation attached to the suspended part of the sentence, the effect of the sentence, as articulated and when considered together with the ten year sentence for assault, is to preclude any parole consideration for the entire duration of the twenty years. Because the term of confinement includes a life sentence, parole eligibility is calculated on each sentence separately and then aggregated. Because first degree assault is a crime of violence, he must serve five years before he becomes eligible for parole on that sentence (the greater of one-half of the sentence imposed for the violent crime or one-fourth of the aggregate sentence.) If the sentence imposed for false imprisonment is treated as a life sentence, even though all but ten years is suspended, he would have to serve at least 15 years before he becomes eligible for parole on that sentence. That alone would make the entire part of the false imprisonment sentence ordered executed by the court immune from parole. Further, when the 5 year minimum on the assault is aggregated with the 15 year minimum on the false imprisonment, under the structure of the Circuit Court, he would not be eligible for parole for 20 years and that, as a result, the entire 20 year aggregate sentence he received would be a non-parolable one. Cathcart argued that the sentence was illegal on two fronts, (1) it is cruel and unusual to impose a non-parolable sentence of 15 years for false imprisonment, and (2) by precluding the prospect of parole in the absence of any authorizing statute, the court has effectively intruded upon the discretion of the Parole Commission, thereby exercising an Executive function in violation of the separation of powers principle enunciated in Article 8 of the Maryland Declaration of Rights.
As there was no challenge to the 10 year sentence imposed for first degree assault, the Court focused on the sentence for false imprisonment and set forth the options available in sentencing a defendant for a crime that carries a prison sentence. The court may
(1) impose a sentence up to the maximum term allowed and, by stating no contrary ruling, implicitly direct that the entire sentence be executed; (2) suspend the imposition or execution of sentence and place the defendant on probation on the conditions that the court considers proper. This section provides two options: the court may defer the actual imposition of a sentence in favor of probation, or it may impose a sentence and suspend the execution of all of it in favor of the probation. In either event, so long as the probation is not revoked, the defendant will not be incarcerated at all. If the probation is revoked, the court may then proceed either to impose the sentence that it had deferred or direct execution of all or any part that it had previously imposed but suspended; (3) impose a sentence for a specified time and provide that a lesser time be served in confinement or suspend the remainder of the sentence and order probation for a time. If the court chooses the latter approach, it must impose the full sentence it intends to impose; and (4) impose a sentence of custodial confinement or imprisonment as a condition of probation. The split sentence option may be used in connection with a life sentence; however, there must be a period of probation attached to the suspended part of the sentence.
Failure 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 under CP § 6-222. Because the effect of the omission is to limit the period of incarceration to the unsuspended part of the sentence, that becomes, in law, the effective sentence. If the court has chosen not to impose a period of probation and thereby limited the period of incarceration to the unsuspended portion of the sentence, the effect of remanding the case for it to do so would be tantamount to allowing it to increase the sentence from that fixed number of years to a life sentence, and our jurisdiction does not allow for that. Consequently, the matter was remanded to the Circuit Court to amend the sentence imposed on the false imprisonment conviction to imprisonment for 10 years, consecutive to the sentence imposed on the first degree assault conviction.
The full opinion is available in PDF.
Robin Cathcart was convicted by a jury of first degree assault and false imprisonment after brutally beating his former girlfriend and thereafter precluding her from leaving her apartment to seek medical assistance. For the first degree assault, the court imposed a sentence of ten years. For the common law offense of false imprisonment, the court sentenced Cathcart to life imprisonment, consecutive to the ten year sentence for assault, with all but ten years suspended. No period of probation was imposed with respect to the suspended part of the life sentence.
Cathcart appealed arguing that, under the circumstances of the case, the imposition of a life sentence for the common law offense of false imprisonment was unconstitutionally disproportionate and therefore illegal. Noting that the maximum sentence in Maryland for kidnapping – an aggravated form of false imprisonment – was only thirty years and that the permissible sentence for false imprisonment in other States ranged from six months to ten years, he complained that holding the victim in her apartment for up to three hours was grossly disproportionate and therefore cruel and unusual.
The Court of Special Appeals concluded that the sentence was effectively one of ten years, rather than life, given the fact that no period of probation was imposed with respect to the suspended part of the life sentence and that Cathcart could therefore never serve more than ten years on that sentence. It affirmed the trial court’s judgment reasoning that, under the circumstances, a sentence of ten years for false imprisonment was not unconstitutionally disproportionate.
In his petition for certiorari, Cathcart maintained that a sentence of life imprisonment, with all but ten years suspended with no probation, constituted an illegal sentence, but the nature of his complaint differed. Carthcart argued that, in the absence of a period of probation attached to the suspended part of the sentence, the effect of the sentence, as articulated and when considered together with the ten year sentence for assault, is to preclude any parole consideration for the entire duration of the twenty years. Because the term of confinement includes a life sentence, parole eligibility is calculated on each sentence separately and then aggregated. Because first degree assault is a crime of violence, he must serve five years before he becomes eligible for parole on that sentence (the greater of one-half of the sentence imposed for the violent crime or one-fourth of the aggregate sentence.) If the sentence imposed for false imprisonment is treated as a life sentence, even though all but ten years is suspended, he would have to serve at least 15 years before he becomes eligible for parole on that sentence. That alone would make the entire part of the false imprisonment sentence ordered executed by the court immune from parole. Further, when the 5 year minimum on the assault is aggregated with the 15 year minimum on the false imprisonment, under the structure of the Circuit Court, he would not be eligible for parole for 20 years and that, as a result, the entire 20 year aggregate sentence he received would be a non-parolable one. Cathcart argued that the sentence was illegal on two fronts, (1) it is cruel and unusual to impose a non-parolable sentence of 15 years for false imprisonment, and (2) by precluding the prospect of parole in the absence of any authorizing statute, the court has effectively intruded upon the discretion of the Parole Commission, thereby exercising an Executive function in violation of the separation of powers principle enunciated in Article 8 of the Maryland Declaration of Rights.
As there was no challenge to the 10 year sentence imposed for first degree assault, the Court focused on the sentence for false imprisonment and set forth the options available in sentencing a defendant for a crime that carries a prison sentence. The court may
(1) impose a sentence up to the maximum term allowed and, by stating no contrary ruling, implicitly direct that the entire sentence be executed; (2) suspend the imposition or execution of sentence and place the defendant on probation on the conditions that the court considers proper. This section provides two options: the court may defer the actual imposition of a sentence in favor of probation, or it may impose a sentence and suspend the execution of all of it in favor of the probation. In either event, so long as the probation is not revoked, the defendant will not be incarcerated at all. If the probation is revoked, the court may then proceed either to impose the sentence that it had deferred or direct execution of all or any part that it had previously imposed but suspended; (3) impose a sentence for a specified time and provide that a lesser time be served in confinement or suspend the remainder of the sentence and order probation for a time. If the court chooses the latter approach, it must impose the full sentence it intends to impose; and (4) impose a sentence of custodial confinement or imprisonment as a condition of probation. The split sentence option may be used in connection with a life sentence; however, there must be a period of probation attached to the suspended part of the sentence.
Failure 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 under CP § 6-222. Because the effect of the omission is to limit the period of incarceration to the unsuspended part of the sentence, that becomes, in law, the effective sentence. If the court has chosen not to impose a period of probation and thereby limited the period of incarceration to the unsuspended portion of the sentence, the effect of remanding the case for it to do so would be tantamount to allowing it to increase the sentence from that fixed number of years to a life sentence, and our jurisdiction does not allow for that. Consequently, the matter was remanded to the Circuit Court to amend the sentence imposed on the false imprisonment conviction to imprisonment for 10 years, consecutive to the sentence imposed on the first degree assault conviction.
The full opinion is available in PDF.
Friday, February 9, 2007
Volodarsky v Tarachanskaya (Ct. of Appeals)
Filed February 9, 2007--Opinion by Judge Alan M. Wilner.
Family Law Article §9-101 provides as follows:
Held: Yes. In reversing the decision of the Court of Special Appeals (and thereby affirming the trial court), the Court of Appeals held that, if a court if a trial court finds that there are reasonable grounds to believe that a child has been abused there must be further fact finding by the trial court on the substantive issue of abuse by a preponderance of evidence. The Court of Appeals specifically rejected claims that §9-101 created a less stringent standard of proof.
Family Law Article §9-101 provides as follows:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.Issue: Where the trial court has reasonable grounds to believe that a child has been abused, is the trial court required to make a factual finding of abuse and if so, must the factual finding be supported by a preponderance of the evidence?
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
Held: Yes. In reversing the decision of the Court of Special Appeals (and thereby affirming the trial court), the Court of Appeals held that, if a court if a trial court finds that there are reasonable grounds to believe that a child has been abused there must be further fact finding by the trial court on the substantive issue of abuse by a preponderance of evidence. The Court of Appeals specifically rejected claims that §9-101 created a less stringent standard of proof.
Full opinion available in PDF.
Tuesday, January 9, 2007
Legacy Funding LLC v. Cohn (Ct. of Appeals)
Decided January 9, 2007 - Opinion by Judge Alan M. Wilner.
In each of these three consolidated cases, Appellant, Legacy Funding LLC, purchased owner occupied residential real property ("Property") at foreclosure. The sales were ratified, and some time thereafter, Legacy paid the funds and otherwise complied with the terms of the sale. The funds received at the sale, after payment of proper expenses, resulted in a surplus, which ordinarily would go to the borrower. After it had complied with the terms of the sale, Legacy moved for possession of the Property. Legacy then sought payment from the excess proceeds for the reasonable rental value of the property during the time the owner continued to live on the property dating back to the time the sale had been ratified. The Circuit Court granted the motions for possession, but denied the motions for a portion of the surplus funds.
Held: The Court noted that the foreclosure action was the proper venue to raise the issues Legacy raised. It then held that the elements for non-statutory wrongful detainer theory are: "(1) [claimant] was lawfully entitled to possession, (2) [claimant] demanded possession following its entitlement to do so, and (3) the possession was wrongfully denied." (This is in contrast to a claim for income actually received from the real property, where upon payment of the sales price, the purchaser is "automatically entitled to rents and profits accruing from the property after the date of the sale.") The court reiterated its opinion in Empire v. Hardy, 386 Md. 628, 873 A.2d 1187 (2005), that a "purchaser at a foreclosure sale is not actually entitled to possession [the first element of wrongful detainer] until the purchase price is paid and, through delivery of a deed of conveyance, legal title passes." (However, the Court noted a court of equity may, in its discretion, grant possession upon ratification and before the purchase price is paid.) Because in this case, Legacy was not entitled to possession until after it had paid the purchase price, its claim for wrongful detainer could only arise after that payment was made.
The Court noted that there is also a distinction in calculating damages as between income producing properties and residential properties. The damages for a claim based on income producing property is the "rents and profits accruing from the property after the date of sale." On the other hand, a claim for wrongful detainer is in the nature of an action for trespass. The damages for such an action are based on the injury to the claimant, not the benefit derived by the defendant, and are "'usually measured by a reasonable rent for the land wrongfully occupied.'"
Having determined when Legacy was lawfully entitled to possession of the Property, the Court remanded the case back to the Circuit Court for a determination as to when Legacy demanded possession and when, if at all, the demand was rejected.
The full opinion is available in PDF
In each of these three consolidated cases, Appellant, Legacy Funding LLC, purchased owner occupied residential real property ("Property") at foreclosure. The sales were ratified, and some time thereafter, Legacy paid the funds and otherwise complied with the terms of the sale. The funds received at the sale, after payment of proper expenses, resulted in a surplus, which ordinarily would go to the borrower. After it had complied with the terms of the sale, Legacy moved for possession of the Property. Legacy then sought payment from the excess proceeds for the reasonable rental value of the property during the time the owner continued to live on the property dating back to the time the sale had been ratified. The Circuit Court granted the motions for possession, but denied the motions for a portion of the surplus funds.
Held: The Court noted that the foreclosure action was the proper venue to raise the issues Legacy raised. It then held that the elements for non-statutory wrongful detainer theory are: "(1) [claimant] was lawfully entitled to possession, (2) [claimant] demanded possession following its entitlement to do so, and (3) the possession was wrongfully denied." (This is in contrast to a claim for income actually received from the real property, where upon payment of the sales price, the purchaser is "automatically entitled to rents and profits accruing from the property after the date of the sale.") The court reiterated its opinion in Empire v. Hardy, 386 Md. 628, 873 A.2d 1187 (2005), that a "purchaser at a foreclosure sale is not actually entitled to possession [the first element of wrongful detainer] until the purchase price is paid and, through delivery of a deed of conveyance, legal title passes." (However, the Court noted a court of equity may, in its discretion, grant possession upon ratification and before the purchase price is paid.) Because in this case, Legacy was not entitled to possession until after it had paid the purchase price, its claim for wrongful detainer could only arise after that payment was made.
The Court noted that there is also a distinction in calculating damages as between income producing properties and residential properties. The damages for a claim based on income producing property is the "rents and profits accruing from the property after the date of sale." On the other hand, a claim for wrongful detainer is in the nature of an action for trespass. The damages for such an action are based on the injury to the claimant, not the benefit derived by the defendant, and are "'usually measured by a reasonable rent for the land wrongfully occupied.'"
Having determined when Legacy was lawfully entitled to possession of the Property, the Court remanded the case back to the Circuit Court for a determination as to when Legacy demanded possession and when, if at all, the demand was rejected.
The full opinion is available in PDF
Tuesday, December 19, 2006
Evans v. State (Ct. of Appeals)
Filed December 19, 2006—Opinion by Judge Alan Wilner, joined as to Nos. 107 and 124 by Judge Clayton Greene, dissent by Chief Judge Robert Bell, in which Judge Greene joined as to Parts C and D only.
The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.
The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."
Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.
The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.
Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.
In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.
The full opinion is available in WordPerfect and PDF.
Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.
The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.
The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."
Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.
The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.
Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.
In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.
The full opinion is available in WordPerfect and PDF.
Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.
Thursday, December 7, 2006
Atty Grievance Comm. v. Midlen (Ct. of Appeals)
December 4, 2006--Opinion by Judge Alan Wilner.
This is a reciprocal discipline case governed by Maryland Rule 16-773. In April, 2006, Bar Counsel, having learned that, in November, 2005, the District of Columbia Court of Appeals had found that respondent, John Midlen, Jr., violated certain D.C. Rules of Professional Conduct (DCRPC) and had suspended him from the practice of law for a period of eighteen months, filed a petition seeking reciprocal discipline in Maryland. The petition, filed pursuant to Maryland Rule 16-773(b), alleged that, based on the findings of the D.C. Court, Midlen had violated Maryland Rules of Professional Conduct (MRPC) 1.15 (safekeeping property in which a client has an interest), 1.16 (requirements upon termination of representation), and 8.4(a), (c), and (d) (violating other MRPC; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that is prejudicial to administration of justice).
In accordance with Rule 16-773(c), the Court of Appeals issued an order directing the parties to show cause why, based on any of the grounds set forth in Rule 16-773(e), corresponding discipline should not be imposed.
Attorney was suspended for a period of eighteen months.
The full opinion is available in WordPerfect and PDF.
This is a reciprocal discipline case governed by Maryland Rule 16-773. In April, 2006, Bar Counsel, having learned that, in November, 2005, the District of Columbia Court of Appeals had found that respondent, John Midlen, Jr., violated certain D.C. Rules of Professional Conduct (DCRPC) and had suspended him from the practice of law for a period of eighteen months, filed a petition seeking reciprocal discipline in Maryland. The petition, filed pursuant to Maryland Rule 16-773(b), alleged that, based on the findings of the D.C. Court, Midlen had violated Maryland Rules of Professional Conduct (MRPC) 1.15 (safekeeping property in which a client has an interest), 1.16 (requirements upon termination of representation), and 8.4(a), (c), and (d) (violating other MRPC; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that is prejudicial to administration of justice).
In accordance with Rule 16-773(c), the Court of Appeals issued an order directing the parties to show cause why, based on any of the grounds set forth in Rule 16-773(e), corresponding discipline should not be imposed.
Attorney was suspended for a period of eighteen months.
The full opinion is available in WordPerfect and PDF.
Laboratory Corp. of America v. Hood (Ct. of Appeals)
Filed December 1, 2006--Opinion by Judge Alan Wilner.
Certified questions from the U.S. District Court for the District of Maryland. The questions directed to the Court were as follows:
Certified questions from the U.S. District Court for the District of Maryland. The questions directed to the Court were as follows:
- In a case where a medical laboratory receives a specimen from a Maryland physician and erroneously interprets the specimen in another State, causing injury in Maryland the Maryland residents, should this court follow the "standard of care" exception in the Restatement (First) of Conflicts of Law §380(2) and apply the substantive law of the State where the erroneous interpretation took place?
- Does denying Maryland residents the right to bring a wrongful birth action by applying North Carolina law violate the public policy of the State of Maryland?
- Where a laboratory analyzes a mother’s amniocentesis specimen and the results are provided to the mother’s physician, but relied upon by both parents, does the laboratory have a sufficient relationship with the father that gives rise to a duty of care?
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