Timothy Willie Sweetwine v. State of Maryland and the Warden of the Maryland House of Correction

769 F.2d 991, 1985 U.S. App. LEXIS 21234

Opinions

PER CURIAM:

Timothy Willie Sweetwine appeals from the district court’s order, dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

On appeal, Sweetwine contends that imposition of a twenty-year sentence upon his conviction at trial of armed robbery in violation of Md.Ann.Code art. 27 § 488 (1982 Repl.Vol.), after he had successfully appealed from his guilty plea to simple robbery, for which he had been sentenced to six years, under Md.Ann.Code art. 27, § 486 (1976 Repl.Vol.), constitutes a denial of due process of law. We recently rejected essentially the same argument made by a defendant sentenced under the federal bank robbery statute, 18 U.S.C. § 2113, in United States v. Whitley, 759 F.2d 327 (4th Cir.1985) (en banc). There, we stated that:

The likelihood of either actual vindictiveness or apprehension of vindictiveness ... is minimal when the second sentence is imposed for an offense greater than that which was the basis of the original conviction. The complete explanation for the harsher penalty is obvious on the face of a judgment convicting the defendant of the greater crime.

Id. at 332. This same reasoning is equally applicable to the case at bar.¹

Nor do we agree with Sweetwine that the second sentencing judge failed to articulate a basis supported by factual data for the increased sentence. On the facts of this case, vindictiveness is notably absent.

Accordingly, the judgment below is affirmed.²

AFFIRMED.

Footnotes

1

. The Maryland appellate courts have previously held that armed robbery and simple robbery are distinct offenses for sentencing purposes. Sweetwine v. State, 42 Md.App. 1, 8, 398 A.2d 1262, 1267 (1979), aff’d, 288 Md. 199, 201 n. 1, 421 A.2d 60, 61 n. 1, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980); see Bynum v. State, 277 Md. 703, 707, 357 A.2d 339, 341, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976).

2

. We have considered Sweetwine’s motion for testimony in abstentia filed on the day of argument, and it does not alter our decision.