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State v. Chaney No. 89, September Term, 2002 CIVIL PROCEDURE - APPEALS - STANDARDS OF REVIEW PROCEDURAL CONSIDERATIONS - INFERENCES & PRESUMPTIONS On appeal, the burden of establishing error in the lower court rests squarely on the appellant or petitioner. Th is rule reflects a general pre sumption of regularity in the proceedings below. The presumption is that the ruling of the lower court is correct, until the contrary appears. Unless an appellan t or petitioner can demonstrate that a prejudicial error occurs below, reversa l is not w arrante d.

Circuit Co urt for Calver t County Case # 04-C-98-000176 HC

IN THE COURT OF APPEALS OF MARYLAND No. 89 September Term, 2002

STATE OF MARYLAND v. RICHARD MILES CHANEY

Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ.

Opinion by Harrell, J.

Filed: June 10, 2003

I. On 19 April 1978, R ichard Miles Chaney was convicted by a jury in the Circuit Court for Calvert County of first degree murder. On the same day as the verdict was rendered, Chaney was sentenced by the trial judge to life imprisonm ent. On dire ct appeal, his

conviction was affirmed by the Court o f Spec ial App eals. Chane y v. State , 42 Md. App. 563, cert. denied, 286 Md. 745 (1979). The present case arises from the Circuit Court's 12 September 2000 denial of Chaney's pro se "Motion for Appropriate Relief (To Grant Post-Conviction Relief, Habeas Corpus R elief, To C orrect Illegal S entence, or to Reconsider Sentence)." Chaney averred that the sentence imposed was illegal or irregular because the sentencing judge did not consider, as an option at sentencing, the suspension of all or some part of his life sentence. The motions ju dge in the C ircuit Court, 1 in denying Chaney's motion without hearing, treated it as a Pe tition fo r Post C onvictio n Relie f. Chaney filed with the Court of Special Appeals an Application for Leave to Appeal the denial of his motion. Thereafter, he retained counsel who filed a Motion to Treat the Application for Leav e to App eal as a No tice of Ap peal, on the basis that Chaney's motion in the trial court ac tually was a motion to correct illegal sentence. The Court of Special Appea ls granted Chane y's appellate counsel's motion, and transferred the case to its regular docket. On 6 August 2002, afte r briefing an d oral argum ent, the Co urt of Spe cial Appe als

The judge who denied the motion was a different judge than the one who presided at trial and sentencing.

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filed an unreported decision reversing the dec ision of the Circuit Cou rt and remanding the case for a new sentencing hearing. T he State the n filed a Pe tition for W rit of Certiora ri, which we gra nted. State v. Chaney, 372 Md. 132 , 812 A.2d 288 (2002). II. On 6 December 1971, ten-year-old Elizabeth Ann Metzler failed to return from school to her home in northe rn Anne Arundel County. The following day, her dead body was found in the woods several miles from her home. She had been molested sexually and strangled. Richard M iles Chaney was con victed of the murde r. Following re turn of th e ver dict, sentenci ng proce eded imm edia tely: Judge : Gentlemen, lets take this matter up for sentencing. Mr. [State's Attorney], is there anything else you would lik e to present? No, sir.

State's A ttorn ey: Judge:

[Defense counsel] , is the re anything you w ould like to say? Sente ncing, there is not a lot either can s ay.

Defense Counsel: I have discussed the possibility of filing a motion for a new trial with my client and he waives his right to file a motion for a new trial and we submit to sentencing. Judge: You have a perfect right to file a motion for a new trial in this court anytime up to thirty days from toda y. Sentence or unsentence has nothing to do with that here. That is an old hangover from Baltimore City days but we don't operate under that anymore.

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All right. Richard Miles Chaney, stand up. Mr. Chaney, is the re anything you w ish to say to the Court bef ore sentenc e is determin ed in this case? If so, the Court a ffords you a n opportu nity to say it at this time. Defend ant: Judge: No, sir. Well gentleme n, there is only one pun ishment in this State for the crime of w hich this man has been convicted. The law provides a single penalty and no other penalty and so the sentence in the discretion of the Court in this case is limit ed to the im posi tion of th at pe nalty. Acc ordingly, Madame Clerk, the sentence of the Court in this case is that the Defendant be committed to the jurisdiction of the Division of Corrections for the remainder of his natural life. Mr. Cha ney, the Court informs you that you have the following rights. You may appe al this entire proceeding to the Maryland Court of Special Appeals. That right is exercised by filing a written order for appea l with the C lerk of this co urt. It must be filed no t later than thirty days f rom toda y. Secondly, you m ay app ly to a panel of Circuit Trial Judges to review the sentence imposed upon you by this memb er of the court. That right is exercised by filing a written application for review with the Clerk of this Court on forms which the Clerk will provide to you at your request. It must be filed not later than thirty days f rom toda y. Fina lly, you have a right to mov e this member of the court to modify or reduce the sentence imposed upon you. T hat right is exercised by filing a written motion for reconsideration. It must be filed with the Clerk of this court not later than ninety days from today or not later than ninety days from the date of a 3

mandate of any or of the last Appellate Court which wo uld hear this matter. Now, it is [your attorney's] resp onsibility as your counsel under our rules of co urt to initiate any or all three of these proceedings if you request him to do so. On ce he has d one that his obligation to you as your attorney under our rules of practice ends unless, of course, you make other arrangem ents with him for further representation. III. The State presents one question for review: Did the Court of Special Appeals err in holding that Chaney's sentence was illegal due to the alleged failure of the sentencing court to reco gnize its discre tion to suspend part of Chaney's life sentence? Respondent, in his brief, dissects this somewhat generic question into three sub-parts: A. [The sentencing judge] erred in failing to recognize that he had the discretion to suspend a portion of the life sentence imposed in this case. The failure to exercise discretion rendered Mr. Chaney's sentence illegal and/or Mr. Ch aney's sentence was im posed in an irregular m anner. If the Sentence imposed in this case is not illegal or imposed in an irregular manner, this court can still grant Mr. Chaney a new sentencing hearing pursuant to the Post-C onviction P rocedure A ct.

B.

C.

The first two of Chaney's formulated queries were presented by him, as Appellant there, to the Court of Special Appeals. The third, (C), is new and not properly before us for two reasons. First, it was n ot raised in the tria l court. See Maryland R ule 8-131 (a)(ordinarily the

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appellate court will no t decide an is sue not raise d in or decid ed by the trial cou rt); Walker v. State , 338 Md. 253, 262-63, 658 A.2d 239, 243 (1995). Second, this issue was not raised by way of cross-petition in this Court, nor was it included in our order granting the w rit. See Gonzales v. State , 322 Md. 62, 69, 585 A.2d 222, 226 (1991)(issue not presented in petition for writ will not b e addresse d); Maus v . State , 311 Md. 85, 106, 532 A.2d 1066, 1077 (19 87). Add ition ally, appellate counsel for Chaney, during oral argument before us , affirmative ly withdrew any argument that this case involves an illegal sentence; thus we shall not address his question (C). 2 Our reading of the opinion of the Court of Special Appea ls reveals that the intermediate appellate court reversed the trial court because it viewed the trial judge as having imposed the sentenc e in 1978 under the mistaken assumption that he did not have the power to suspend any portion of the life senten ce. We the refore limit our review to the question of whe ther, on this rec ord, the trial judg e failed to recognize that he had the discretion to suspend all or a portion of the life sentence imposed in this case, and if so, does that error require a new sentencing proceeding. IV. Respondent argues that the trial judge erred when he imposed a life sentence without expressly recognizin g that the sentence, or a portion of it, could have been suspended.

A party may abandon some of the issues raised below and stand on appeal on a narrow er grou nd. Harmon v. State Roads Commission, 242 Md. 24, 30-31, 217 A.2d 513, 516 (1966). 5

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Chaney relies entirely on the transcript of th e sentencin g proceed ing to prov e his point. Specifically, he points to the following language employed by the judge: Well, gentle men, there is only one punishment in this State for the crime of which this man has been convicted. The law provides a single p enal ty and no other penalty and so the sentence in the discretion of the Court in this case is limited to the im posi tion of th at pe nalty. In Respondent's view, this statement indicates that the trial judge was under the impression that he had no discretion to suspend a ll or any portion o f the life sen tence. To b olster this argumen t, Respondent alleges an absence of any mention by the trial judge that he w as aware of the suspension option. Respondent's argument, in short, is that because the trial judge failed to mention the possibility of su spension o f sentence , and stated in stead that his discretion was limited to the imposition of the statutory penalty, the trial judge must not have realized that he had the pow er to suspen d the life sen tence or a p ortion of it. Cha ney, therefore, argues that he is entitled to be sentenced anew so that effectively a different sentencing judge may consider the possibility of a suspended sentence on the facts of this case.
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The Court of Special Appeals agreed with Respondent's position, finding that the trial judge "failed to rec ognize th at he had the discretion to suspend all or pa rt of appellant's senten ce." In reaching its conclusion, the intermediate appellate court relied on Williamson

The trial judge who presided over Chaney's jury trial and sentenced him in 1978 retired in 1987, well prior to the filing of Respondent's motion giving rise to the present case. 6

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v. State , 284 Md . 212, 395 A.2d 496 (1979) and Sanders v . State , 105 Md. App, 247, 659 A.2d 356 (19 95). In Williamson, we were confronted with a situation where the sentencing judge refused to follow an opinion of this Court recognizing that a life sentence could be suspende d. In that case , the follow ing transpired in the trial court: [The Court]: As far as the murder conviction is concerned, there's no choice. She gets life. [Defense Counsel]: No, Your Honor. There is a choice. You can suspend part of it. I brought the Wooten case with me.[4] [The Court]: I un derstand th at, and I com pletely disagree w ith Judge Raine and the Court of Appeals. I think the Legislature said when a person kills somebody else or causes them to be killed, it's life. So as far as I am concerned, the sentence on the murde r charg e is life ...

We held in State v. Wooten, 277 Md. 114 , 116-118,352 A .2d 829, 831-32 (1 976), two years bef ore Ch aney's co nviction at issue h ere, that

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