Bartholomey v. State

297 A.2d 696, 267 Md. 175, 1972 Md. LEXIS 664

• Court: Court of Appeals of Maryland
• Decided: December 4, 1972
• Docket: [No. 106, September Term, 1970.] [No. 386, September Term, 1971.] [Misc. No. 2, September Term, 1972.] [Misc. No. 3, September Term, 1972.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Barnes and Smith, JJ., dissent; Barnes, J., filed a dissenting opinion in which Smith, J., concurs at page 197 infra and Smith, J., filed a dissenting opinion at page 221 infra.

I

On December 8, 1968, in the course of escaping from lawful confinement in the Wicomico County jail, Joseph James Bartholomey shot and killed two peace officers. He was found guilty by a jury on two counts of murder in the first degree, and the court thereafter imposed sen-fences of death upon each conviction. We affirmed the judgments on appeal, Bartholomey v. State, 260 Md. 504, 273 A. 2d 164 (1971), holding, among other things, that imposition of the death sentence for first degree murder, authorized by Maryland Code (1957 Ed.), Article 27, § 413,¹ violated neither the federal nor State constitutions. Bartholomey petitioned for a writ of certiorari in the Supreme Court of the United States, claiming that his death sentences constituted cruel and unusual punishment in violation of the Eighth Amendment to the federal constitution made applicable to the states through the Fourteenth Amendment.

On June 29, 1972, the Supreme Court of the United States, in the consolidated cases of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, sub nom. Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), reh. den. 409 U. S. 902, 93 S. Ct. 89, 34 L.Ed.2d 163 (1972), considered the question whether death sentences imposed under discretionary statutes upon two defendants convicted of rape and one convicted of murder in the first degree violated the Eighth and Fourteenth Amendments to the federal constitution. By a divided (5-4) per curiam decision, the Court concluded:

“. . . that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.”

Each of the Justices who joined in the Court’s judgment expressed his views in a separate opinion. Justices Brennan and Marshall concluded that the imposition of the death penalty constituted cruel and unusual punishment in all cases and in all circumstances and therefore violated the Eighth and Fourteenth Amendments to the federal constitution. Justice Douglas concluded thát statutes like those involved in Furman whieh permitted discretion in the imposition vel non of the death penalty were unconstitutional in their operation, as infrequently and arbitrarily applied to unpopular groups, thereby violating the principle of equal protection implicit in the Eighth Amendment’s ban on cruel and unusual punishment. Justice Stewart, while declining to rule on the constitutionality of capital punishment in the abstract, concluded that statutes permitting discretion in the imposition of the dealth penalty were arbitrarily applied in a wanton and freakish manner and, consequently, violated the constitutional prohibition against cruel and unusual punishment. Justice White expressed views similar to those held by Justice Stewart; he believed that because of the infrequent and unjustified use of non-mandatory death penalties for murder and rape, discretionary imposition of the death penalty for those offenses constituted cruel and unusual punishment. The Chief Justice and Justices Blackmun, Powell, and Rehnquist dissented, each by separate opinion. In his dissent, in which each of the other dissenting Justices joined, Justice Powell observed:

“Whatever uncertainties may hereafter surface, several of the consequences of today’s decision are unmistakably clear. . . . The Court’s judgment removes the death sentences previously imposed on some 600 persons awaiting punishment in state and federal prisons throughout the country. . . .” 408 U. S. at 416-17, 92 S. Ct. at 2817, 33 L.Ed.2d at 452.

In light of its decision in Furman, the Court summarily vacated death sentences imposed in 120 other cases then pending on its docket; it entered orders in the language of Furman, vacating the judgment in each of these cases “insofar as it leaves undisturbed the death penalty imposed” and remanded all the cases “for further proceedings.” Bartholomey was one of the cases so remanded to us for further proceedings. Bartholomey v. Maryland, 408 U. S. 938, 92 S. Ct. 2870, 33 L.Ed.2d 759 (1972). In obedience to the Supreme Court’s remand order, we heard argument on the question whether, in view of the particular facts and circumstances involved in Bartholomey’s case, the imposition and carrying out of the death penalty would constitute cruel and unusual punishment in violation of the constitutional principles enunciated in Fur-man. The Public Defender, representing Bartholomey, maintained that it would; he argued that Furman “will not permit the death sentence under any statutory scheme which is discretionary with the trier of fact and, in fact, makes impermissible any discretionary sentencing statute which may be arbitrarily applied”; that the imposition of the death penalty in Bartholomey’s case is unconstitutional under the Maryland statutory scheme because not mandatory; and that Furman’s holding applied without regard to the nature of the offense or the particular circumstances under which the crime was committed. The Attorney General, representing the State of Maryland, argued that Furman did not flatly prohibit the death sentence as a permissible form of punishment even where the statute authorizing its imposition was not mandatory. Noting differences between the Maryland statute (§ 413), under which Bartholomey was sentenced to death, and the Georgia and Texas statutes involved in Furman, the Attorney General maintained that “each case, and the procedures of each state should be examined on a case-by-case basis to determine if, in fact, the death penalty as there imposed had been meted out in such a random and infrequent manner as to constitute in that case or in that class of cases a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United Státes.” Although acknowledging that the Maryland statutes vest discretion in both the jury and the judge in the imposition of the death penalty, the Attorney General suggested that under Furman it must be shown that such discretion was “arbitrarily, capriciously or discriminatorily applied before the Court can find that the death penalty constitutes a ‘cruel and unusual’ punishment in the constitutional sense.”

We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the federal constitution.² In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory. See, e.g., State v. Martineau, 293 A. 2d 766 (1972) ; State v. Leigh, 31 Ohio St. 2d 97, 285 N.E.2d 333 (1972) ; Commonwealth v. Bradley, 449 Pa. 19, 295 A. 2d 842 (1972) ; Adams v. State, 284 N.E.2d 757 (1972) ; State v. Dickerson, 298 A. 2d 761 (1972) ; Adderly v. Wainwright, (M.D. Fla. 1972) ; Johnson v. Warden, 16 Md. App. 227, 295 A. 2d 820 (1972). That Furman invalidates all death penalties imposed pursuant to discretionary statutes is so, without regard to the nature of the offense, the particular circumstances under which the crime was committed, or the particular procedure followed in imposing the death sentence. Indeed, included among the 120 cases which the Supreme Court remanded for further proceedings in light of Furman were cases involving murders of law enforcement officers (as in Bartholomey), mass killings, and aggravated rapes.³

The invalidity of Bartholomey’s death sentences does not, of course, affect the legality of either of his underlying murder convictions.⁴ See Moore v. Illinois, 408 U. S. 786, 92 S. Ct. 2562, 33 L.Ed.2d 706 (1972) ; Brady v. State, 226 Md. 422, 174 A. 2d 167 (1961), aff’d, 373 U. S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) ; Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963) ; State v. Martineau, supra. The “further proceedings” required to be taken under Furman are limited to those involved in imposing valid sentences upon Bartholomey. The only lawful sentence that can be imposed for murder in the first degree under the controlling statute (§ 413) is life imprisonment; no discretion is lodged in the sentencing judge and the imposition of any other sentence would plainly be illegal. In so concluding, we are not unmindful of Article 27, § 643 which provides that “where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, . . . [the sentencing judge] may, in lieu of the minimum penalty so prescribed, impose a less penalty of the same character; provided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime where the law provides one and only one penalty.” But in view of Furman, life imprisonment is the only penalty permitted under § 413 and, consequently, the provisions of § 643 have no application to a sentence imposed under § 413. Moreover, and of equal importance, under Maryland law prior to Furman the sentencing judge could not impose a lesser sentence than that prescribed in § 413, such as a term of years. Dodson v. State, 14 Md. App. 483, 486, 287 A. 2d 324, 325 (1972) held, and we agree, “that the Legislature, in prescribing the penalty for first degree murder in 1916, did not intend to prescribe a maximum and a minimum (which would contemplate a range in between), but intended to prescribe two alternative penalties, each fixed by the Legislature itself, without committing to the trial judge any discretion except a choice between the two, with that choice available only when not precluded by the jury’s verdict.” See also White v. State, 227 Md. 615, 177 A. 2d 877 (1962), rev’d on other grounds, 373 U. S. 59, 83 S. Ct. 1050, 10 L.Ed.2d 193 (1963).

Since the sentences imposed upon Bartholomey have heretofore been vacated by the Supreme Court, and the sole jurisdiction to impose new sentences lies with the trial court, Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972) ; Cochran v. State, 119 Md. 539, 87 A. 400 (1913) ; McDonald v. State, 45 Md. 90 (1876), we shall, pursuant to the provisions of Maryland Rule 871 b ⁵ remand the case to the lower court for resentencing with directions that it sentence Bartholomey to life imprisonment on each of his murder convictions. At the resentencing hearing, Bartholomey has the right to be present and represented by counsel, additionally, he should be afforded his right of allocution under Rule 761 a.⁶ Brown v. State, 11 Md. App. 27, 272 A. 2d 659 (1971). Life imprisonment being the only permissible sentence that can be imposed upon Bartholomey, the sentencing judge need not consider any evidence at the sentencing hearing to assist him in automatically pronouncing that sentence. In imposing such sentence, and in determining the date from which it will commence to run, the sentencing judge must, for parole eligibility purposes under Article 41, § 122 (b), credit Bartholomey with all time spent in confinement following the imposition of the illegal death sentences. See Article 5, § 17; Dennis v. Warden, 12 Md. App. 512, 280 A. 2d 53 (1971).⁷

The Public Defender suggests that the sentencing court also consider, prior to resentencing, the mental competency of the accused to understand the nature or object of the sentencing hearing and to assist his counsel. That, of course, is always a consideration at a sentencing hearing, no more so on the remand in this case than in any other case. Equally clear is the fact that on remand the proper forum to resentence Bartholomey is the original sentencing court and not necessarily the original sentencing judge. See Maryland Rule 764; Article 27, § 642; Annot., 83 A.L.R.2d 1032 (1962) ; Jordan v. State, 5 Md. App. 520, 248 A. 2d 410 (1968) ; Prather v. Warden, 1 Md. App. 478, 231 A. 2d 726 (1967) ; People v. Collins, 25 Mich. App. 609, 181 N.W.2d 601 (1970) ; People v. Gilbert, 227 Mich. 538, 198 N. W. 971 (1924).

Finally, as pointed out by the Attorney General, under Article 27, § 700 each prisoner in any of the penal institutions of the State is entitled to a diminution of his period of confinement for (1) his good behavior (five days off for each month) (§ 700 (b)); (2) hard work at industrial, agricultural or administrative tasks (an additional five days off for each month) (§ 700 (c)) ; and (3) academic progress (an additional five days off for each month) (§ 700 (d)). Bartholomey, as a prisoner sentenced to death, was not credited with any “good time” against a future release date since his release from confinement was never contemplated. Nor as a prisoner sentenced to death was he afforded an opportunity to engage in any institutional work or academic programs. The State maintains that Bartholomey would be entitled to credit for good behavior, if merited, but not to any credits for work or academic programs, since he engaged in none. Bartholomey, on the other hand, claims that because he was denied an opportunity to work or participate in academic programs, full credit must be entered against his life sentences in calculating his period of lawful confinement and his eligibility for parole. We think the matter of the time credits earned by Bartholomey under § 700 during his confinement under the illegal death sentences is peculiarly within the province of the appropriate officials in the Department of Public Safety and Correctional Services, to be determined by that agency under established policies and in accordance with the merits of each case.

Bartholomey’s sentences having heretofore been vacated, we shall remand the case to the lower court for imposition of life sentences in accordance with the procedures herein outlined.⁸

II

Dolphus Joyner was found guilty of murder in the first degree by a jury on September 21, 1971; he was thereafter sentenced by the, court to death.⁹ Because appeals from convictions in cases involving imposition of the death penalty are by Article 5, § 12 within the jurisdiction of this Court, Joyner’s appeal was filed with us rather than the Court of Special Appeals. In his appeal, Joyner raised a number of contentions seeking reversal of his judgments. Furman was decided after Joyner’s brief was filed in this Court. We heard argument in Joyner’s case limited to the question of the effect of Furman upon Joyner’s death sentence. For the reasons cited by us in Bartholomey, we vacate Joyner’s death sentence and remand the case to the trial court for imposition of a life sentence in accordance with the procedures heretofore outlined in Bartholomey. Once the trial court has imposed a life sentence upon Joyner, it should forthwith transmit the case to the Court of Special Appeals so that that court may promptly determine the merits of the questions raised by Joyner in his appeal. In view of the delay in passing upon the merits of Joyner’s case, the Court of Special Appeals should look favorably upon a motion to advance, if one is filed.

III

Theodore Roosevelt Arrington was convicted of murder in the first degree at a court trial on March 30, 1961. He was sentenced to death on July 21, 1961. On appeal, we affirmed. Arrington v. State, 228 Md. 143, 179 A. 2d 344 (1962). A petition for a writ of habeas corpus filed by Arrington in the United States District Court for the District of Maryland was denied on April 17, 1970. An appeal from that denial taken to the United States Court of Appeals for the Fourth Circuit was dismissed on April 16, 1971 after which Arrington filed a petition for a writ of certiorari in the Supreme Court of the United States. That petition was granted in the wake of Furman, the Supreme Court ordering that the judgment against Arrington be vacated “insofar as it leaves undisturbed the death penalty imposed. . . Arrington v. Maryland, supra note 8. The Supreme Court remanded the case to the Fourth Circuit on July 31, 1972 which, in turn, remanded it to the U. S. District Court.

On October 3, 1972, Arrington filed a “Petition to Vacate Illegal Sentence” in this Court. In light of Furman he prayed that we issue an order vacating his death sentence and.remand the case to the sentencing court for a new trial on the issue of sentencing. As Arrington’s death sentence has already been vacated, and as we are without original jurisdiction to act on his petition, (see Article 26, § 30, and State v. Rutherford, 145 Md. 363, 125 A. 725 (1922)) we must dismiss his appeal. It is, of course, likely that the U. S. District Court will remand the case to the State trial court in which Arrington was convicted, with a directive to impose a lawful sentence ,upon him or release him. Arrington may, if he wishes, file a petition directly in the trial court in which he was sentenced seeking the correction of his illegal sentence under Rule 764 a.¹⁰ In any event, the procedure ultimately to be followed in resentencing Arrington in the lower court will be as outlined by us in Bartholomey.

IV

Elisha Sterling, Jr. was found guilty by a jury of rape on November 22, 1966. The jury did not add to its verdict the words “without capital punishment,” as it was authorized to do under Article 27, § 463 had it wanted to prohibit the sentencing judge from imposing the death penalty and limit the sentence to a term not in excess of twenty years; the court sentenced Sterling to death on December 2, 1966 under the provisions of Article 27, § 461.¹¹ On appeal, we affirmed. Sterling v. State, 248 Md. 240, 235 A. 2d 711 (1967). Sterling’s petition for a writ of habeas corpus filed in the U. S. District Court was dismissed on March 21, 1972 and no appeal was taken. At the time Furman was decided, Sterling had no proceedings pending in any court. He thereafter filed a “Petition to Vacate Illegal Sentence” in this Court, praying that in conformance with Furman we pass an order vacating the sentence of death imposed upon him and remand the case to the trial court for a new trial on the issue of sentencing.

For the reasons set forth in Arrington (supra, III), we have no original jurisdiction to consider the merits of Sterling’s petition. That his death sentence is illegal under Furman is, however, entirely clear. That the trial court which imposed the sentence has the power to vacate it under Rule 764 a (supra, note 10), and thereafter impose a lawful sentence, is likewise clear. Sterling could obtain the same result by filing a petition under the provisions of the Uniform Post Conviction Procedure Act, Article 27, § 645A; that statute provides in subsection (a) that a person convicted of a crime and incarcerated under a sentence imposed in violation of the federal or State constitutions may have such illegal sentence set aside or corrected.

Unlike the automatic life sentence which must be imposed under § 413 upon persons convicted of murder in the first degree, persons convicted of rape may be sentenced under § 461 to life imprisonment, or to a lesser sentence of from eighteen months to twenty-one years in the penitentiary. Questions therefore arise with respect to imposing a lawful sentence upon Sterling which are not presented in resentencing persons convicted of murder in the first degree. Both the Attorney General and the Public Defender have urged, notwithstanding our lack of original jurisdiction to act on Sterling’s petition, that we address ourselves to these questions and express our views. We shall do so because of the exceptional nature and importance of the issues involved and because, in addition to Sterling, four other prisoners convicted of rape and sentenced to death ¹² must properly be resentenced. See Kardy v. Shook, 237 Md. 524, 207 A. 2d 83 (1965).

There is, of course, nothing illegal in the jury’s verdict pronouncing Sterling guilty of rape; that verdict stands and, as in Bartholomey, further action need be taken only on the sentence, and not on the merits of Sterling’s conviction. That the jury did not add the limiting words to its verdict (“without capital punishment”) permitted the sentencing judge full discretion in the matter of sentencing Sterling to any of the penalties authorized by § 461. That the death sentence imposed by the sentencing judge upon Sterling has now been outlawed by Furman, and must therefore be vacated, does not automatically mandate imposition of the next most severe penalty which the court could lawfully impose, i.e., life imprisonment. On the contrary, in resentencing Sterling, and the four other prisoners similarly situated, the sentencing court must approach its task as if no sentence had ever been imposed, and it was exercising its sentencing discretion under § 461 for the first time. Considering the case in this posture, the sentencing judge may inquire into the past criminal record of the defendant and hear evidence and receive reports in aggravation or mitigation of punishment; the inquiry of the judge is not limited by the strict rules of evidence and he is invested with wide discretion in determining the sentence to be imposed within the authorized statutory limits. Purnell v. State, 241 Md. 582, 217 A. 2d 298 (1966) ; Farrell v. State, 213 Md. 348, 131 A. 2d 863 (1957). In other words, to aid the sentencing judge in fairly and intelligently exercising the discretion vested in him, the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the sentence that should be imposed.¹³ Skinker v. State, 239 Md. 234, 210 A. 2d 716 (1965) ; Scott v. State, 238 Md. 265, 208 A. 2d 575 (1965) ; Costello v. State, 237 Md. 464, 206 A. 2d 812 (1965) ; Driver v. State, supra note 13; Baker v. State, supra note 13. The sentencing judge may, but need not, obtain a presentence report under Article 41, § 124 (b) .¹⁴ Of course, the sentencing judge may take into consideration the defendant’s conduct after the oifense was committed, viz., he may consider evidence of events occurring after the date of the original sentencing to whatever extent he may deem necessary. North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969) ; Williams v. New York, 337 U. S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) ; Purnell v. State, supra; Gatewood v. State, 15 Md. App. 450, 291 A. 2d 688 (1972).¹⁵

No positive requirement exists, as seemingly suggested by the Public Defender on behalf of Sterling, that the resentencing judge must hear the testimony of witnesses concerning the particulars of the crime in order to capture the “flavor” of the case and the circumstances under which the oifense was committed. Neither is the resentencing judge’s responsibility necessarily limited, as suggested by the Attorney General, to a simple review of the transcript of the trial. As indicated, Sterling is entitled to a meaningful sentencing hearing at which full consideration must be given to the full range of punishment alternatives prescribed by § 461. It goes without saying that, as in Bartholomey, Sterling is entitled to be present at the sentencing hearing, represented by counsel, and afforded his right of allocution.

The fact that Sterling elected to be tried by a jury which had the power under § 463 to qualify its verdict so as to limit the extent of punishment to a term not in excess of twenty years imprisonment does not require that he be afforded another jury determination on the issue of punishment prior to the court’s imposition of a new sentence upon him. We think the jury’s refusal to add the limiting words “without capital punishment” to its verdict was lawful when done, and nothing in Furman mandating the invalidity of death sentences imposed under discretionary statutes inhibits resentencing by the court in such circumstances without again affording a jury the opportunity it once rejected to limit the length of punishment. See Johnson v. Warden, 16 Md. App. 227, 295 A. 2d 820 (1972).¹⁶

Nor do we think that those individuals charged with rape who initially waived a jury trial and elected to be tried by the court, and upon whom the court, after conviction, imposed the death sentence (see Jones and Ralph, supra note 12), have the right, at the resentencing hearing, to challenge the legality of their jury trial waivers. Their object, of course, is to obtain a new trial on the issue of punishment by a jury empowered to add the words “without capital punishment” to the verdict of guilt, and thus limit the resentencing court to a sentence not in excess of twenty years. But the question whether there was a valid waiver of the constitutional right to a jury trial is one properly to be raised and decided under the provisions of the Post Conviction Procedure Act and not at the resentencing hearing. See State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971). See also Maryland Rule 741. If it be established at a post conviction hearing that no valid jury trial waiver was made, the new trial afforded before a jury would not, of course, be limited to the issue of punishment.

If, upon resentencing, Sterling is given a life sentence, full credit must be given for parole eligibility purposes, as in Bartholomey, for all time spent in confinement under the illegal death sentences. If the maximum term of twenty-one years is imposed, the sentencing judge must credit against such sentence all time spent in confinement under the illegal death sentence, as well as all time spent in jail prior to trial and initial sentencing. Wright v. Warden, 11 Md. App. 673, 276 A. 2d 411 (1971), Jones v. State, 11 Md. App. 468, 275 A. 2d 508 (1971). If'less than the maximum term of years is imposed, the new sentence must clearly reflect that full credit was given for all time spent in confinement under the illegal death sentence, but time spent in jail prior to trial and initial sentence may, but need not, be credited against the new sentence. Dennis v. Warden, supra.17

No. 106: Case remanded to the trial court for imposition of life sentences in accordance with the views expressed and procedures outlined in this opinion.18

No. 386: Sentence of death vacated; case remanded to the trial court for imposition of a life sentence in accordance with the views expressed and procedures outlined in this opinion.19

No. 2: Appeal dismissed for want of jurisdiction.

No. 3: Appeal dismissed for want of jurisdiction.

1 . “Every person convicted of murder in the first degree . . . shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the court before whom such person may be tried; provided, however, that the jury in a murder case . . . may add thereto the words ‘without capital punishment,’ in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, ‘without capital punishment,’ shall the court in imposing the sentence, sentence the convicted party to pay the death penalty.”

2 . In addition to the death penalty authorized by § 413 for murder in the first degree, §§ 12, 337, 461, and 462 of Article 27 authorize the imposition of that penalty, respectively, for assault with intent to rape, kidnapping, rape and statutory rape.

3 . Murder of Law Enforcement Officers. See, e.g., (in addition to Bartholomey) State v. Delgado, 161 Conn. 536, 290 A. 2d 338 (1971) , remanded sub nom. Delgado v. Connecticut, 408 U. S. 940, 92 S. Ct. 2879, 33 L.Ed.2d 764 (1972); Commonwealth v. Stewart, 270 N.E.2d 811 (1971), remanded sub nom. Stewart v. Massachusetts, 408 U. S. 845, 92 S. Ct. 2845, 33 L.Ed.2d 744 (1972); State v. Atkinson, 253 S. C. 531, 172 S.E.2d 111 (1970), remanded sub nom. Atkinson v. South Carolina, 408 U. S. 936, 92 S. Ct. 2859. 33 L.Ed.2d 752 (1972).

Mass Murder. See, e.g., Eyman v. Alford, 448 F. 2d 306 (9th Cir. 1969), remanded sub nom. Alford v. Eyman, 408 U. S. 939, 92 S. Ct. 2874, 33 L.Ed.2d 762 (1972); State v. Davis, 158 Conn. 341, 260 A. 2d 587 (1969), remanded sub nom. Davis v. Connecticut, 408 U. S. 935, 92 S. Ct. 2856, 33 L.Ed.2d 750 (1972); State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297 (1969), remanded sub nom. Kelbach v. Utah, 408 U. S. 935, 92 S. Ct. 2858, 33 L.Ed.2d 751 (1972) .

Aggravated Rape. See State v. Chance, 279 N. C. 643, 185 S.E.2d 227 (1971), remanded sub nom. Chance v. North Carolina, 408 U. S. 940, 92 S. Ct. 2878, 33 L.Ed.2d 764 (1972); State v. Williams, 252 La. 1023, 215 So. 2d 799 (1968), remanded sub nom. Williams v. Louisiana, 408 U. S. 934, 92 S. Ct. 2851, 33 L.Ed.2d 747 (1972).

4 . Nor does the invalidity of Bartholomey’s death sentences affect in any way the other judgments of conviction and sentences pronounced upon him at his trial for assault with intent to murder and escape.

5 . “If in an appeal in a criminal action this Court shall reverse the judgment for error in the judgment or in the sentence, this Court will remand the case to the lower court in order that such court may pronounce the proper judgment or sentence.”

6 . Maryland Rule 775 provides:

“The accused shall he present ... at every stage of the trial . . . and at the imposition of sentence, except as provided in this Rule. . . . The defendant’s presence is not required at a reduction of sentence under Rule 764 (Revisory Power of Court). . . .”

There being no valid sentence imposed upon Bartholomey, the imposition of life sentences upon him, although automatic, cannot be considered a reduction in his sentences. A sentencing hearing is a critical stage of the proceeding and Bartholomey is entitled to be present.

7 . Article 41, § 122 (b) provides:

“No person who has been sentenced to life imprisonment shall be eligible for parole consideration until he shall have served in confinement fifteen years. . . .”

In Dennis, it was held that the fifteen-year parole eligibility period is to be measured from the date the life sentence was imposed (full credit being afforded for the period of confinement served under the illegal sentences).

8 . In addition to Bartholomey, eight other Maryland cases in which the death penalty had been imposed for murder in the first degree were pending before the Supreme Court when Furman was decided. The court vacated the death sentences imposed in each case and remanded for further proceedings in light of Fur-man. Six of the cases were remanded to us. Cunningham v. Warden, 408 U. S. 938, 92 S. Ct. 2867, 33 L.Ed.2d 757 (1972); Gilmore v. Maryland, 408 U. S. 940, 92 S. Ct. 2876, 33 L.Ed.2d 763 (1972); Johnson v. Maryland, 408 U. S. 937, 92 S. Ct. 2866, 33 L.Ed.2d 757 (1972); Miller v. Maryland, 408 U. S. 934, 92 S. Ct. 2851, 33 L.Ed.2d 747 (1972); Strong v. Maryland, 408 U. S. 939, 92 S. Ct. 2872, 33 L.Ed.2d 760 (1972); Tull v. Warden, 408 U. S. 939, 92 S. Ct. 2871, 33 L.Ed.2d 760 (1972). We are today entering orders in each of these cases remanding to the lower court for imposition of a life sentence in accordance with the views expressed and procedures outlined in Bartholomey. Two cases, Arrington v. Maryland, 408 U. S. 938, 92 S. Ct. 2869, 33 L.Ed.2d 759 (1972) and Mefford v. Warden, 408 U. S. 935, 92 S. Ct. 2856, 33 L.Ed.2d 750 (1972) were remanded to the United States Court of Appeals for the Fourth Circuit and are not under our jurisdiction. (See infra, III)

9 . He was also found guilty of two counts of armed robbery, one count of assault with intent to murder, and one count of carrying a dangerous weapon openly.

10 . Rule 764 a provides:

“The court may correct an illegal sentence at any time.”

That the “court” referred to in the Rule is the trial court, and not the appellate court, is clear. See Rule 5 i.

11 . § 461 provides:

“Every person convicted of a crime of rape or as being accessory thereto before the fact shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more than twenty-one years; and penetration shall be evidence of rape, without proof of emission.”

§ 463 provides:

“The jury which finds any person guilty of rape under § 461 of this subtitle, or guilty of carnal knowledge under § 462 of this subtitle, may add to their verdict the words ‘without capital punishment,’ in which event the sentence of the court shall not exceed twenty years in the penitentiary; and in no such case in which the jury has returned a verdict including the words ‘without capital punishment’ shall the court in imposing sentence, sentence the convicted person to pay the death penalty or to be confined in the penitentiary for more than twenty years.”

12 . We affirmed the judgments of conviction and imposition of the death sentences in these cases. Jones v. State, 247 Md. 530, 233 A. 2d 791 (1967); Domneys v. State, 229 Md. 388, 182 A. 2d 880 (1962); Shorey v. State, 227 Md. 385, 177 A. 2d 245 (1962); Ralph v. State, 226 Md. 480, 174 A. 2d 163 (1961) (but see Ralph v. Warden, 438 P. 2d 786 (4th Cir. 1970), cert. denied, 408 U. S. 942, 92 S. Ct. 2869, 33 L.Ed.2d 766 (1972)).

13 . Any information which might influence the judgment of the sentencing judge, not received from the defendant himself, or given in his presence, should (without necessarily disclosing its source) be called to the defendant’s attention so as to afford him an opportunity to refute or discredit it. Driver v. State, 201 Md. 25, 92 A. 2d 570 (1952); Turner v. State, 5 Md. App. 584, 248 A. 2d 801 (1968); Jordan v. State, 5 Md. App. 520, 248 A. 2d 410 (1968); Baker v. State, 3 Md. App. 251, 238 A. 2d 561 (1968).

14 . “(b) The parole agents of the Department shall provide the judges of said courts with presentence reports or other investigations in all cases when requested by any judge. The presentence reports shall be made available, upon request, to the defendant’s attorney and the State’s Attorney’s Office. However presentence reports shall be confidential and not available for public inspection except upon court order or' for use by any correctional institution. Such agents shall also perform such other probationary services as the said judges may from time to time request.”

15 . In Pearce, the court said that “[t]he freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, ... [337 U. S. at 247, 69 S. Ct. at 1083, 93 L. Ed. at 1342] that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ ” 395 U. S. at 723, 89 S. Ct. at 2079, 23 L.Ed.2d at 668.

16 . In addition to Sterling, Shorey and Domneys were also tried by jury. See supra note 12.

17 . These sentencing principles will, of course, also apply to the resentencing of Shorey, Domneys, Jones, and Ralph.

18 . Other cases not heretofore cited in this opinion involving Maryland prisoners convicted of first degree murder and sentenced to death are Brice v. State, 264 Md. 352, 286 A. 2d 132 (1972); Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Veney v. State, 251 Md. 182, 246 A. 2d 568 (1968); DeToro v. State, 227 Md. 551, 177 A. 2d 847 (1962); Brown v. State, 225 Md. 349, 170 A. 2d 300 (1961); Boblit v. State, 220 Md. 454, 154 A. 2d 434 (1959). We have no original jurisdiction to vacate the death sentence, and remand for resentencing, in any of these cases. Each of these individuals, however, is clearly entitled to have his death sentence vacated under Furman and a life sentence imposed pursuant to the procedures heretofore set forth.

19 . Robert R. Robertson was found guilty of murder in the first degree and sentenced to death on January 4, 1972. His appeal from that judgment and sentence was pending before us when Furman was decided. We are today entering an order vacating the death sentence imposed upon him and remanding the case to the trial court for imposition of a life sentence in accordance with the procedures outlined in Bartholomey. As in Joyner, supra II, after the trial court has imposed a life sentence upon Robertson, the case should be transmitted to the Court of Special Appeals so that the merits of Robertson’s appeal can be adjudicated by that court.

Melvin Steward was found guilty of murder in the first degree and sentenced to death. On appeal, we affirmed in an unreported opinion. Steward v. State, No. 44, September Term, 1971 (filed June 29, 1972). In view of Furman, we stayed our mandate by order dated July 31, 1972. Since we have retained jurisdiction in Steward’s case, we are today entering an order vacating Steward’s death sentence and remanding the case to the trial court for imposition of a life sentence in accordance with the procedures set forth in Bartholomey.