David Andrew Hartless v. State of Maryland, No. 123, Sept. Term 2017. Opinion filed on May 30, 2019, by Berger, J.
CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE - JUVENILE OFFENDERS - LIFE SENTENCES
The Eighth Amendment to the United States Constitution requires that, before being sentenced to life without parole, a juvenile homicide offender receive an individualized sentencing process that expressly considers the juvenile’s youth and attendant circumstances. There is no such individualized sentencing requirement expressly considering a juvenile’s youth and attendant circumstances for juvenile homicide offenders who receive sentencing other than life without parole.
CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE - JUVENILE OFFENDERS - LIFE SENTENCES - EXECUTIVE CLEMENCY
The Parole Commission’s authority to make and review recommendations concerning a pardon, commutation of sentence, or other clemency does not constitute the authority to divert a parole request into a request for executive clemency. The laws and regulations governing executive clemency in Maryland do not render a juvenile homicide offender’s sentence of life with parole unconstitutional. Circuit Court for Howard County Case No. 13-K-87-017022 REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 123
September Term, 2017 ______________________________________
DAVID ANDREW HARTLESS
v.
STATE OF MARYLAND ______________________________________
Berger, Arthur, Beachley,
JJ. ______________________________________
Opinion by Berger, J. ______________________________________
Filed: May 30, 2019
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-06-05 11:38-04:00
Suzanne C. Johnson, Clerk This case is before us on appeal from an order of the circuit court denying the motion
to correct an illegal sentence filed by David Andrew Hartless, appellant. In 1989, Hartless
was convicted of premeditated first-degree murder, robbery with a deadly weapon, and
lesser-included offenses. He was sentenced to life in prison for first-degree murder and
twenty years’ imprisonment for robbery with a deadly weapon. His convictions were
affirmed on direct appeal. Hartless v. State, 327 Md. 558, 560 (1992). Hartless was
seventeen years old when he committed the crimes.
Following the decisions of the United States Supreme Court in Miller v. Alabama,
567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016),
Hartless filed a motion to correct what he alleged to be an illegal sentence. Hartless
asserted that his sentence was unconstitutional pursuant to recent Supreme Court precedent
addressing life sentences without parole for juvenile homicide offenders. The circuit court
denied Hartless’ motion.
Hartless noted a timely appeal. This Court stayed Hartless’ appeal pending the
decision of the Court of Appeals in Carter v. State, No. 54, Sept. Term, 2017; Bowie v.
State, No. 55, Sept. Term 2017; and McCullough v. State, No. 56, Sept. Term, 2017,
because the cases raised issues relating to whether a life sentence with the possibility of
parole or a lengthy term of years sentence constituted an unconstitutional de facto life
without parole sentence. On August 29, 2018, the Court of Appeals issued an opinion in
Carter v. State, 461 Md. 295 (2018), reconsideration denied, October 4, 2018. The Court’s
consolidated opinion resolved the cases of Carter, Bowie, and McCullough. Following the issuance of the Carter opinion, we lifted the stay in Hartless’ appeal and the appeal
proceeded.
In this appeal, Hartless presents three issues for our consideration, which we set
forth verbatim:
1. What is the scope of Carter’s requirement that all juvenile offenders are entitled to an individualized sentencing hearing that takes into account the offender’s youth, and based on Carter’s interpretation of this requirement, did the circuit court err in determining that Mr. Hartless’ life plus twenty year sentence, imposed without an individualized sentencing, was legal?
2. Presenting an issue that was not ruled upon in Carter, did the circuit court err in not finding Mr. Hartless’ life sentence illegal since the statutes and regulations governing the Maryland parole system authorize the Parole Commission to divert any parole application to a request for executive clemency?
3. An argument raised for preservation purposes, is the Court of Appeals’ decision in Carter in contravention with Supreme Court precedent in Miller and Montgomery, which held that a non-incorrigible juvenile offender has a substantive right to release upon a showing of demonstrated maturity and rehabilitation?
With respect to the first issue raised by Hartless, for reasons we shall explain, we reject
Hartless’ premise that Carter requires an individualized sentencing hearing that takes into
account the offender’s youth for all juvenile homicide offenders. We shall further hold
that the availability of executive clemency as an alternative to parole does not render
Hartless’ sentence unconstitutional. For reasons we shall explain, we do not address the
merits of the third issue. We shall affirm.
2 BACKGROUND
We set forth briefly the factual background underlying this appeal. The underlying
murder occurred in 1987 when Hartless was seventeen years old. Hartless entered a
convenience store in Columbia, Maryland, intending to rob the store. A twenty-year-old
store clerk, Angelica Velazco, was alone in the store at the time. Hartless ordered Velazco
to lie on the floor. Velazco complied, but Hartless smashed a bottle over her head and
subsequently stabbed her to death.
The State sought a sentence of life without the possibility of parole for Velazco’s
murder, but the trial court ruled that it was not an allowable sentence at the time of Hartless’
crime. The circuit court subsequently sentenced Hartless to life imprisonment for murder.
Defense counsel acknowledged that the court was obligated to impose a life sentence for
the murder conviction but asked the court to issue a concurrent sentence for the robbery.
Defense counsel specifically pointed to Hartless’ age at the time of the offense, Hartless’
difficult childhood circumstances, and the corrosive influence of Hartless’ stepfather, Leo
Rites. Defense counsel also asked for Hartless to be sent to the Patuxent Institution where
he would be able to receive psychiatric care and treatment.
The circuit court imposed the mandatory life sentence for the first-degree murder
conviction and a consecutive twenty-year term of imprisonment for robbery with a deadly
weapon. The court noted Hartless’ age at the time the crime was committed but
emphasized that Hartless had committed the “ultimate crime” in a “rather vicious” manner
and emphasized that the victim was “rather young.” The circuit court expressly
3 commented that it was “fully cognizant of the various psychological and psychiatric
reports.”
On January 23, 2017, Hartless filed the motion to correct illegal sentence pursuant
to Maryland Rule 4-345(a) that ultimately gave rise to this appeal. He argued that his
sentence was illegal based upon the United States Supreme Court cases of Miller, supra,
567 U.S. 460, and Montgomery, supra, 136 S. Ct. 718. We shall discuss these cases in
further detail infra, but it is helpful to set forth the holdings of each case here in order to
provide context for Hartless’ motion. In Miller, the Court held that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S. at 465.
The Montgomery Court held that Miller announced a new substantive rule that
applies retroactively to convictions that were final prior to the Miller decision. 136 S. Ct.
at 736. The Montgomery Court explained that Miller “requires a sentencer to consider a
juvenile offender’s youth and attendant characteristics before determining that life without
parole is a proportionate sentence.” Id. at 734. The Court further explained that Miller
“determined that sentencing a child to life without parole is excessive for all but ‘the rare
juvenile offender whose crime reflects irreparable corruption.’” Id. (quoting Miller, 567
U.S. at 479-80).1
1 Courts have reached different conclusions on the issue of whether Montgomery made Miller retroactive to all cases involving juveniles sentenced to life without parole or only to cases involving juveniles sentenced to life without parole pursuant to a mandatory sentencing scheme. The United States Supreme Court has granted certiorari to address this issue. Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), cert. granted, ___ S. Ct. ___ (U.S. Mar. 18, 2019). 4 Against this backdrop, Hartless filed a motion to correct what he alleged to be an
illegal sentence, arguing that his sentence was unconstitutional as a de facto sentence of
life without parole. Hartless asserted that a sentence of life with parole is effectively
equivalent to life without parole in Maryland because there is no “meaningful opportunity
to obtain release” for individuals sentenced to life with parole. Hartless contended that the
circuit court had not considered the factors set forth in Miller, supra, before sentencing him
to what was effectively a sentence of life without parole, and, therefore, the circuit court’s
sentence was illegal.
The circuit court, in a written order, observed that there was “not yet precedent” on
the constitutionality of Hartless’ life sentence with parole. The circuit court observed that
Hartless had an upcoming parole hearing and had “not yet been denied parole.” The court
found Hartless’ motion to be “premature” and denied the motion without prejudice.
Hartless noted a timely appeal to this Court. The appeal was stayed pending the
Court of Appeals’ decision in Carter, Bowie, and McCullough, supra, which presented the
same theory underlying Hartless’ motion and argued that a life sentence in Maryland “is
effectively . . . life without parole, because the laws governing parole in Maryland do not
provide [an inmate] with a meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Carter, supra, 461 Md. at 307. The Court of Appeals rejected
this theory, holding in Carter that the petitioners’ life sentences were legal because “the
laws governing parole of inmates serving life sentences in Maryland, including the parole
statute, regulations, and a recent executive order adopted by the Governor, on their face
5 allow a juvenile offender serving a life sentence a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’” Id.2
DISCUSSION
We first address which of the appellate issues raised by Hartless are properly before
this Court and which issues are unpreserved or otherwise not appropriate for this Court to
address. The primary argument raised by Hartless before the circuit court is the same
argument expressly rejected by the Court of Appeals in Carter: that a life sentence in
Maryland is effectively a sentence of life without parole because the laws governing parole
in Maryland do not provide a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. Therefore, Hartless contended before the circuit
court, such a sentence is unconstitutional for juvenile offenders pursuant to Miller, supra,
567 U.S. 460, and Montgomery, supra, 136 S. Ct. 718. Before this Court, Hartless raises
three additional issues. First, Hartless argues that Carter mandates an “individualized
sentencing process that takes account of the offender’s youth” for all juvenile homicide
2 The Court explained that its holding was based upon the laws governing parole decision-making and not based upon how the laws have been carried out. Carter, supra, 461 Md. at 337 (“To the extent that [the Petitioners] are challenging the actual practice of the Parole Commission and the Governor in making parole decisions, their claims are outside the scope of a motion to correct an illegal sentence. We thus agree with the Court of Special Appeals that whether the Parole Commission and others involved in the parole system are carrying out their duties in practice is not at issue in this appeal.”) (footnote omitted). The Court observed that “other causes of action are more appropriate to litigate claims that the Parole Commission and others involved in the parole system are not carrying out their responsibilities.” Id. The Court further commented that several of these claims are currently being litigated in the United States District Court for the District of Maryland in a lawsuit brought pursuant to 42 U.S.C. § 1983. Id. at 337 n.26; see also Maryland Restorative Justice Initiative et al. v. Hogan et al., No. 16–01021–ELH (D.Md.).
6 offenders regardless of whether they are sentenced to life without parole. This issue, albeit
framed quite differently, was presented before the circuit court, and we shall address it.3
Hartless’ second argument is that his sentence is illegal because the Parole
Commission is empowered to “turn any application for parole into a request for executive
clemency.” This issue was not raised before the trial court, and ordinarily, we would not
address issues that were not raised in or decided by the trial court.4 See Md. Rule 8-131(a)
(“Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless it
plainly appears by the record to have been raised in or decided by the trial court.”). We
recognize, however, that a motion to correct an illegal sentence can be filed at any time
and is not subject to the ordinary preservation rules. See Md. Rule 4-345(a) (“The court
may correct an illegal sentence at any time.”); Carlini v. State, 215 Md. App. 415, 426
(explaining that for Rule 4-345(a) purposes, the illegality must actually inhere in the
3 Before the circuit court, Hartless asserted that an individualized sentencing process that takes account of the offender’s youth was necessary because a life sentence with the possibility of parole was effectively a life sentence without the possibility of parole in Maryland. As we have explained, the Carter Court rejected the argument that a life sentence with the possibility of parole is effectively a life sentence without parole. Nonetheless, because Hartless raised the issue of whether he had been impermissibly deprived of a right to an individualized sentencing process below, we address the merits of this issue on appeal. 4 Hartless asserts that this argument was “partially presented” in the Carter briefing but not ruled upon. The Court of Appeals briefly touched upon the laws regarding executive clemency in its discussion of the various laws governing parole of inmates serving life sentences in Maryland, observing that “[d]istinct from the Governor’s role in the parole of inmates serving life sentences, the Maryland Constitution confers the independent power of executive clemency on the Governor.” Carter, supra, 461 Md. at 325. 7 sentence itself). Accordingly, we shall address Hartless’ second argument regardless of
the fact that it was not raised or addressed below.
Hartless’ third appellate argument -- which Hartless concedes is raised “for
preservation purposes” -- asserts that Carter is inconsistent with Supreme Court precedent
and should be reconsidered. This Court, of course, is bound by the Court of Appeals’
decision in Carter and we will not revisit this issue.
We, therefore, turn to the merits of the issues before us, namely, whether the circuit
court erred by denying Hartless’ motion to correct illegal sentence on the basis that he was
required to receive an individualized sentencing process and whether the availability of
executive clemency renders the parole system unconstitutional. We review the circuit
court’s denial of a motion to correct illegal sentence de novo. Rainey v. State, 236 Md.
App. 368, 374 (2018).
I.
Hartless’ first appellate contention is that his sentence should be vacated because he
did not receive an individualized sentencing process at which the circuit court expressly
considered his youth and attendant circumstances. Hartless asserts that Carter requires
that any juvenile convicted of homicide receive an individualized sentencing process at
which six factors are considered regardless of whether the court is considering a sentence
of life imprisonment without the possibility of parole. Specifically, Hartless asserts that a
court must evaluate (1) the defendant’s chronological age and immaturity, impetuosity, and
the failure to appreciate risks and consequences; (2) the defendant’s family and home
environment; (3) circumstances of the offense, including the extent of the defendant’s
8 participation in the criminal conduct; (4) the impact of familial and peer pressures on the
defendant; (5) the effect of the defendant’s youth on the criminal justice process, such as
his inability to comprehend a plea bargain; and (6) the possibility of a defendant’s
rehabilitation. These factors are drawn from Miller, supra, 567 U.S. at 477-78.5
A brief discussion of the United States Supreme Court caselaw on issues relating to
life sentences for juvenile offenders is necessary in order to provide the proper context for
our discussion of Carter. In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court
held that the Eighth Amendment bars a sentence of life in prison without parole for juvenile
offenders convicted of only non-homicide offenses. The Supreme Court first addressed
the issue of under what circumstances a juvenile homicide offender may be sentenced to
life in prison without the possibility of parole in Miller, supra. The Miller Court held that
“the Eighth Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” 567 U.S. at 479 (emphasis added). The Court
did not prohibit life sentences without parole categorically, but commented that
“appropriate occasions for sentencing juveniles to this harshest possible penalty will be
uncommon.” Id. The Supreme Court did “not foreclose a sentencer’s ability to make that
judgment in homicide cases,” but the Court “require[d the sentencing court] to take into
5 The State does not agree that proper consideration of “youth and its attendant characteristics” requires consideration of these specific factors. The State asserts that Miller discusses certain “hallmark features” of youth, but that it does not require a sentencing court to specifically consider these factors on the record before imposing a sentence of life without parole. Because, as we shall explain, we shall hold that no individualized sentencing hearing was required because Hartless was not sentenced to life without parole, we need not examine the nature of such an individualized sentencing hearing. Indeed, such a discussion would be purely hypothetical. 9 account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 480.
In Montgomery, supra, the Court further explained that “[a] hearing where ‘youth
and its attendant characteristics’ are considered as sentencing factors is necessary to
separate those juveniles who may be sentenced to life without parole from those who may
not.” 136. S. Ct. at 735. The primary issue before the Court in Montgomery was whether
the Miller holding was entitled to retroactive effect. The Supreme Court held that Miller
announced a new substantive constitutional rule that was retroactive on state collateral
review. 136 S. Ct. at 732. Although the Montgomery Court gave retroactive effect to
Miller, the Court explained that this did “not require States to relitigate sentences, let alone
convictions, in every case where a juvenile offender received mandatory life without
parole.” Id. at 736. Rather, a Miller violation could be remedied “by permitting juvenile
homicide offenders to be considered for parole, rather than by resentencing them.” Id.
Hartless does not expressly rely upon Montgomery or Miller for the principle that
all juvenile homicide offenders are entitled to individualized sentencing processes
regardless of whether they are sentenced to life without the possibility of parole. Indeed,
if a Miller violation can be remedied simply by permitting a juvenile offender to be
considered for parole, it is illogical to suggest that Montgomery and Miller somehow
require an individualized sentencing process for all juveniles convicted of homicide,
regardless of whether they are sentenced to life with or without parole.
Because neither Montgomery nor Miller addresses Hartless’ appellate issue, it is
unsurprising that Hartless relies only upon Carter for this principle. This issue, however,
10 was not the issue before the Court of Appeals in Carter. Carter addressed the
constitutionality of a sentence of life imprisonment with parole for juvenile homicide
offenders in Maryland and considered whether such a sentence violated the Eighth
Amendment on the basis that it failed to provide a meaningful opportunity for release. The
Carter Court recognized that the “Eighth Amendment’s proscription against cruel and
unusual punishments precludes [a sentence of life without parole] for a juvenile offender
unless the defendant is an incorrigible murderer,” but rejected the argument that life with
the possibility of parole is effectively a sentence of life without parole. 461 Md. at 306-
07. The Court of Appeals held that a sentence of life imprisonment with the possibility of
parole for juvenile homicide offenders is legal “as the laws governing parole of inmates
serving life sentences in Maryland, including the parole statute, regulations, and a recent
executive order adopted by the Governor, on their face allow a juvenile offender serving a
life sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.’” Id. at 307.
The specific language in Carter cited by Hartless in support of his assertion that an
individualized sentencing process taking into consideration a juvenile’s youth is required
for all juvenile homicide offenders is found at 461 Md. at 317. The Carter Court, after
discussing various Supreme Court Eighth Amendment cases, set forth principles it derived
“concerning the constitutional constraints on life sentences for juvenile offenders” and
identifying the Supreme Court authority for each principle. This was presented by the
Court via the following bullet point summary, which we quote verbatim:
11 • With respect to juvenile offenders convicted of offenses other than homicide, the Eighth Amendment categorically bars a sentence of life in prison without the possibility of future release from custody. Graham.
• With respect to juvenile offenders convicted of homicide:
• there must be an individualized sentencing process that takes account of the offender’s youth;
• the defendant may be sentenced to imprisonment without the possibility of future release only if the court determines that the defendant is incorrigible. Miller; Montgomery.
• For all juvenile offenders who are convicted of non- homicide offenses and the vast majority who are convicted of homicide, there must be a “meaningful opportunity to obtain release” from custody based on “demonstrated maturity and rehabilitation.” Graham; Miller; Montgomery.
• It is up to the states in the first instance to devise the means and mechanisms for providing such a meaningful opportunity. Graham.
• A parole system that takes into account the offender’s youth at the time of the offense and demonstrated rehabilitation provides such a meaningful opportunity. Graham; Miller.
• There is no constitutional requirement that a state have a parole system per se, so long as the state provides a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Graham.
• An executive clemency system that leaves the decision on release of an offender to the unfettered discretion of a
12 public official or entity does not provide such a meaningful opportunity. Rummel;[6] Solem.[7]
• While a state’s criminal justice system must provide such a meaningful opportunity, it need not guarantee release. Graham.
Carter, supra, 461 Md. at 317-18.
Hartless quotes the second bullet point, pointing to this language: “With respect to
juvenile offenders convicted of homicide . . . there must be an individualized sentencing
process that takes account of the offender’s youth.” Hartless derives from this language
that, in Carter, the Court of Appeals intended to recognize the right to an individualized
sentencing process that takes account of the offender’s youth for any and all juvenile
offenders convicted of homicide, regardless of whether a sentencing court is considering
imposing a sentence of life without parole.
To be sure, this statement, taken completely out of context, could provide support
for Hartless’ position. The context, however, is essential. This language was presented in
a bullet point list summarizing Supreme Court authority. Critically, this language did not
set forth the Court of Appeals’ legal conclusions or holdings. The right identified in Miller
and Montgomery pertains specifically to juvenile offenders sentenced to life imprisonment
without parole, not to all juvenile homicide offenders. It is plain that the bullet point list
set forth in Carter simply summarized the right identified in Miller and Montgomery
6 Rummel v. Estelle, 445 U.S. 263 (1980). 7 Solem v. Helm, 463 U.S. 277 (1983).
13 without including a portion of the relevant language identifying the group of juvenile
offenders to whom the right applied. Indeed, Hartless’ proposed reading of this language
is illogical. As the State points out, this proposed right would have far-reaching
implications for all juveniles who have previously been convicted of homicide in the State
of Maryland. If the Court of Appeals intended to recognize this new right, it is
unreasonable to believe that the right would be presented via a bullet point summary of
Supreme Court authority. Rather, the right would be announced clearly and
unambiguously.
Additional support for Hartless’ argument is presented through quoted language
from Carter absent its appropriate context. For example, Hartless asserts that the Carter
Court “explain[ed] that ‘if the defendant was convicted of homicide, the court will need to
hold an individualized sentencing hearing to consider whether the defendant is
incorrigible.’” The quoted language appears in the following paragraph of Carter (quoted
language in bold):
The implications of the Supreme Court’s recent Eighth Amendment decisions for a case in which a court sentenced a juvenile offender to life without parole are very clear. In such a case, the defendant must be re-sentenced to comply with the holdings of Graham and Miller. If the defendant was convicted of homicide, the court will need to hold an individualized sentencing hearing to consider whether the defendant is incorrigible.
461 Md. at 333-34 (footnote omitted). By quoting only the bolded text, Hartless asserts
that an individualized sentencing hearing is required for all juvenile offenders convicted of
14 homicide, while consideration of the quoted text within its greater context makes clear that
this requirement applies only to juvenile offenders sentenced to life without parole.
Hartless cites page 341 of the Court of Appeals’ opinion in Carter for the same
proposition, but, again the context reflects a much narrower requirement. Hartless asserts,
citing 461 Md. at 341, that “Carter held that Miller and Montgomery apply to all juveniles
sentenced to life imprisonment.” The Carter Court actually opined that “[i]f the structure
of the Maryland parole system [did] render the sentences of” juvenile homicide offenders
“effectively life without parole, then those sentences violate the Eighth Amendment and
would therefore be illegal.” 461 Md. at 341. In those circumstances, the juvenile offender
“would be entitled to a new sentencing proceeding at which the court would consider
whether he was one of the few juvenile homicide offenders who is incorrigible and may
therefore be sentenced constitutionally to life without parole.” Id. Critically, because the
Court held that the Maryland parole system does not render the sentences of juvenile
homicide offenders “effectively life without parole,” resentencing was not required in
Carter. The same applies in this case.
We find no support in Carter for Hartless’ proposition that all juvenile offenders
convicted of homicide have the right to an individualized sentencing process that takes
account of the offender’s youth.8 In our view, the identification of Hartless’ proposed right
8 Indeed, it is unclear what Hartless proposes the right to an individualized sentencing hearing would require. Hartless identifies six factors that he asserts should be considered by a sentencing court, but then argues that the individual defendants in Carter and Bowie received individualized sentencings in compliance with Miller because the
15 is unsupported by the context of the various examples of quoted language, as well as
inconsistent with Supreme Court authority. Carter held that a sentence of life
imprisonment with the possibility of parole for juvenile homicide offenders does not
violate the Eighth Amendment. This is the sentence Hartless received. We, therefore,
reject Hartless’ contention that his sentence is unconstitutional because he did not receive
an individualized sentencing hearing at which the circuit court expressly considered his
youth and attendant circumstances.
II.
Hartless further asserts that his sentence is illegal “due to the structure of Maryland’s
parole system, which has the power to turn any application for parole into a request for
executive clemency.” First, we observe that this issue was addressed at least implicitly in
Carter when the Court held that “the laws governing parole of inmates serving life
sentences in Maryland, including the parole statute, regulations, and a recent executive
order adopted by the Governor, on their face allow a juvenile offender serving a life
sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.’” 461 Md. at 307.
sentences were imposed “as a result of characteristics of the particular defendant” despite the fact that the sentencing court did not consider the six identified factors.
Furthermore, given that Carter held that a life sentence in Maryland is not effectively a life without parole sentence, it is unclear what an individualized sentencing requirement would accomplish. The trial court is required to impose a life sentence in homicide cases. Md. Code (2002, 2012 Repl. Vol.), § 2-201(b) of the Criminal Law Article. Although a sentencing court may choose to suspend part of a life sentence, Hartless does not explain under what circumstances a court would be required to exercise its authority to suspend a sentence pursuant to his proposed standard. 16 Furthermore, we disagree with Hartless’ contention that the statutes and regulations
governing executive clemency permit juvenile offenders serving a life sentence to be
diverted from parole consideration. Hartless bases his argument on Md. Code (1999, 2017
Repl. Vol.) § 7-206(3) of the Correctional Services Article (“CS”), which provides that the
Parole Commission “shall . . . review and make recommendations to the Governor . . .
concerning parole of an inmate under a sentence of life imprisonment; and . . . if requested
by the Governor, concerning a pardon, commutation of sentence, or other clemency.”
Hartless also cites COMAR 12.08.01.15(B), which provides that “[t]he Commission will
recommend to the Governor a commutation of a life sentence where the case warrants
special consideration or where the facts and circumstances of the crime justify special
consideration, or both.” Hartless asserts that these statutes and regulations “clearly
bestow” authority to treat an application for parole as an application for executive
clemency.
We disagree with Hartless’ reading of the statute and the regulations. Executive
clemency is not a substitute for parole consideration. Rather, executive clemency is an
additional avenue of possible early release. The plain language of CS § 7-206(3) supports
this conclusion. The Commission “shall . . . review and make recommendations to the
Governor . . . concerning parole of an inmate under a sentence of life imprisonment.” Id.
This language is mandatory; the Commission is required to review and make
recommendations to the Governor regarding parole. In addition, the Commission, “if
requested by the Governor,” shall make and review recommendations “concerning a
pardon, commutation of sentence, or other clemency.” Id. The Commission is only
17 involved in making recommendations with respect to pardons, commutations, or other
clemency upon the request of the Governor.
Similarly, the regulations cited by Hartless fail to support his assertion that parole
applications can be diverted into requests for executive clemency. COMAR 12.08.01.15
sets forth the circumstances under which the Commission considers a request for
commutation when “all legal remedies are exhausted” and permits the Commission to
“entertain these requests at a parole hearing, and in its discretion may deny the requests or
submit it to the Governor with a recommendation.” Nothing in the regulations cited by
Hartless permits the diversion of a parole request into a request for executive clemency.
The Commission’s role in the context of clemency is entirely separate from the
Commission’s role in the context of parole. In our view, the clear and unambiguous
language of the statute and regulations do not support Hartless’ contention that the Parole
Commission is permitted to divert a meritorious parole request to a request for executive
clemency.9 We hold, therefore, that the laws and regulations governing executive
clemency in Maryland do not render Hartless’ sentence unconstitutional. Accordingly, the
circuit court did not err by denying Hartless’ motion to correct illegal sentence.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
9 As we discussed supra in footnote two, to the extent Hartless is challenging the practice of the Parole Commission and the Governor in making parole decisions, his claim is outside the scope of a motion to correct illegal sentence. Carter, supra, 461 Md. at 337. 18