Baker v. State

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Wesley E ugene B aker v. State , No. 13 2, Sept. T erm, 20 04. CRIM INAL LAW PROCEEDING ILLEGAL SENTENCE CAPITAL SENTENCING In 1992, Petitioner was convicted of, among other crimes, first-degree murder and consequently sentenced to death. In a Motion to Correct an Illegal Sentence filed in 2004 under Maryland R ule 4-345 (a), which g ave rise to the instant case, h e argued th at his death sentence was imposed in a racially-biased (Petitioner is African-American and the victim of his crimes was Caucasian; Petitioner alleged that the death penalty was sou ght more frequently in such situations statewide and in Baltimore County where the c rimes were committed than in other racial com bina tions of a ccus ed an d vic tim) a nd geograph icallybiased (Petitioner asserted that the State's Attorn ey for Baltim ore Cou nty, who elec ted to pursue the death p enalty and w hose off ice prosecuted the case against him, sought such punishment in eligible cases more frequ ently than state's attorneys for other Maryland jurisdictions) manner. To sup port the alleged constitutional errors under the federal Equal Protection Clause of the Fourteenth Am endmen t and the E ighth Am endmen t (and their Maryland constitutional analogues), Petitioner relied principally on an empirical, government-sponsored study of Maryland's implementation between 1978 and 1999 of its death penalty statute, released publicly in early 2003 and published formally in 2004. The Circuit Court for Harford County denied the Motion to Correct an Illegal Sentence, without holding an evidentiary hearing. The Court of Appea ls here affirm s the Circuit Court on the basis that Maryland law interpreting what grounds are permitted to be raised as to the illegality of a senten ce in a Ru le 4-345(a) motion does not contem plate an empirical study as a qualifying predicate. Grounds for illegality of a sentence are those that inhere in the sentence itself, i.e., the sentence was illegal or should n ot have be en impos ed. A gen eral empirica l study of death -eligible case statistical patterns, such as was offered here, does not demonstrate, or tend to demonstrate, that the specific death sentence in this case w as ille gal o n its f ace. Mo reov er, Petitio ner's motion fails to come within a recent exc eption, the so -called con stitutional exce ption, to Ru le 4-345(a) jurispruden ce. With regard to this e xception, the Court rece ntly recognized that a defendant could seek relief via a motion under the Rule if he/she argued novel constitutional arguments that arose from decisions of the U.S. Supreme Court or the Court of Appeals of Maryland in an unrelate d case or ca ses decided after impo sition of the d eath sentence on the defenda nt/movan t. Petitioner's mo tion here did not come within this exception. Finally, the Court declined to recognize any further exception to embrace a generalized statistical study as a predicate for arguing illegality of a specific sentence. Circuit Co urt for Harfo rd Coun ty Case # 12-K-92-000088 IN THE COURT OF APPEALS OF MARYLAND No. 132 September Term, 2004 WESLEY EUGENE BAKER v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: October 3, 2005 We consider h ere wheth er the Circuit Court for Harford County erred in denying a Motion to Correct a n Illegal Sen tence, witho ut holding a n evidentiary hearing, where the defendant relied p rincipall y on an em piric al, go vern men t-spo nsor ed study of Marylan d's implementation between 1978 and 1999 of its death pen alty statute, released p ublicly in early 2003 and published formally in 2004, to support an allegation of constitutional error in the 1992 imposition on him of the sentence of death. We hold that the Circuit Court neither erred as a matter of law nor abused its discretion; therefore, we affirm. I. On 26 October 1992, Wesley Eugene Baker ("Baker") was convicted by a jury in the Circuit Court fo r Harford County 1 of the first-degree murder of Jane Frances T yson, robbery of Mrs. T yson with a deadly weapon, and use of a handgun in the co mmissio n of a fel ony. The court, 2 four days later, sentenced Baker to death fo r the convic tion of mu rder, as we ll as to forty years of incarceration twenty years for robbery with a deadly weapon and a consec utive tw enty years f or the u se of a h andgu n in the c omm ission o f a felo ny. On direct appeal, this Court affirmed Baker's convictions and sentence of death. Baker v. State, 332 Md. 542, 632 A.2d 783 (1993), cert. denied, 511 U.S . 1078, 114 S.Ct. 1664, 128 L.Ed.2d 3 80 (1994) ("Baker I"). Baker filed subsequently a number of petitions 1 The underlying crimes occurred in Baltimore County. Thus, Baker was charged by indictment in the Circu it Court fo r Baltimore County on 24 June 1991. On Baker's motion, under Maryland Rule 4-2 54, the matter was rem oved to the Circuit Co urt for Harf ord Cou nty on 13 Jan uary 1992 f or trial. 2 Baker elected to be sentenced b y the trial judge, rather than the jury that heard the guilt/innocence phase of the proceedings. and motion s in M aryland st ate cou rts. The ir dispos itions, no ne fav orable to Bake r, are explained in Baker v. S tate, 367 Md. 648, 790 A.2d 629 (2 002), cert. denied, 535 U.S. 1050, 122 S.Ct. 1814, 152 L.Ed.2d 817 (2002) ("Baker II") (affirming denial of a motion for new sentencing based on newly disco vered evid ence and denial of a motion to correct an illegal sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); 3 Baker v. S tate, 377 M d. 567, 8 33 A.2 d 1070 (2003 ), cert. denied, 541 U.S. 944, 124 S.Ct. 1673, 158 L.Ed.2d 370 (2004) ("Baker III") (affirming denial of a motion to quash an illegal sentence and warrant of execution on grounds that the sentencing circuit court judge changed his county of residence for a period of time during his term and thus violated the judicial residency requirement of Article IV, Section 2 of the Maryland Constitution ); Baker 3 Baker offered three arguments that relied upon the U.S. Supreme Court's holding in Apprendi: The first argument Baker makes is that "Ma ryland s death penalty statute is unconstitutional becau se it provides that a sentence o f death m ay be impose d if the State proves only that the aggravating circumstances outweigh any mitigating circumstances by a preponderance o f the evidence. Ba ker s second argumen t is that the rights identified in Apprendi should be applied retroactively to his sentence. Baker s third argument is that as a matter of fundamental fairn ess, and pu rsuant to Article 24 of the Maryland D eclaration of Rights, this Cou rt should hold that no sentence o f death in Maryland is permissible unless the finder o f fact una nimously find s beyond a re asonable doubt that the aggravating circumstances outweigh mitigating circum stances . Baker II, 367 at 676, 790 A.2d at 645-46. 2 v. State, 383 M d. 550, 8 61 A.2 d 48 (2 004), cert. denied, __ U.S . __, 125 S.Ct. 1931, 161 L.Ed.2d 775 (2005) ("Baker IV") (affirming denial of a motion to correct an illegal sentence based upon a constitutional challenge, grounded on Ring v. Arizona, 536 U.S. 584, 122 S.C t. 2428, 153 L.Ed.2d 556 (2002), to the preponderance of the evidence standard used to weigh aggravating circumstances against mitigating circumstances during the sentencing procee ding). Most recently and the instigation for the present appeal, Baker filed in the Circuit Court on 18 October 2004 a Motion to Correct an Illegal Sentence, a Motion to Reopen the Post-Conviction Proceeding, and a Petition for Post-Conviction Relief. Principally relying on a statistical study, commissioned by Governor Parris N. Glendening in September 2000, conducted by Professor Raymond Paternoster of the University of Maryland,4 and published formally in the Spring of 2004,5 Baker arg ued that his d eath senten ce was im posed in a racially-biased (Baker is African-American and the victim of his crimes was Caucasian; Baker alleged that the death penalty was sought more frequen tly in such situation s than in 4 Dr. Paternoster is a professor in the Department of Criminology and Criminal Justice at the University of Maryland, College Park. 5 On 7 January 2003 the University of Maryland issued a press release announcing completion of the initial Study, including a brief summa ry of its findings and a w ebsite address where the Ex ecutive Summ ary and Final R eport could be viewed and downloaded. A Supplemental R eport, which focu sed on death eligible cases a rising in Baltimore County and upon which Baker pa rtially relied, was rele ased to the p ublic in February 2004. Findings from the Study were also released in a formal academic publication in the Spring of 2004, Raymond Paternoster et al., Justice by Geography and Race: The Administration of the Death Penalty in Maryland, 1978-1999, 4 MARGINS 1 (2004). 3 other racial combinations of accused and victim) and geographically-biased (Baker asserted that the State's Attorney for Baltimore County, who elected to pursue the death penalty and whose office prosecuted the case against him, sought such punishme nt in eligible cases more frequently than state 's attorneys for other Maryland jurisdictions) m anner. The Paternoster Study essentially examined the statewide implementation of Maryland s death sentence scheme between 1978 and 1999.6 Baker arg ued the de ath penalty statute was app lied to him unconst itutio nally. 7 All motions were denied by the Circuit Court on 18 November 2004, as was Bake r's subse quent M otion fo r Reco nsidera tion. Although we d enie d Ba ker's application for leave to appeal the denial of his post-conviction initiatives, Baker v. S tate, 6 The Paternoster Study, although arguably of greater detail in its accumulation of data and analytical methodology, was not the first published study or repo rt on this subjec t. See, e.g., M ARYLAND O FFICE OF THE P UBLIC D EFENDER, C APITAL P UNISHMENT IN M ARYLAND 1978-1987: A R EPORT BY THE M ARYLAND P UBLIC D EFENDER ON THE A DMINISTRATION OF C APITAL P UNISHMENT (1987); T HE R EPORT OF THE G OVERNOR'S C OMMISSION ON THE D EATH P ENALTY: A N A NALYSIS OF C APITAL P UNISHMENT IN M ARYLAND 1978 - 1993 (1993); R EPORT OF THE G OVERNOR'S T ASK F ORCE ON THE F AIR IMPOSITION OF THE D EATH P ENALTY (1996); D AVID C. B ALDUS & G EORGE W OODWORTH, R ACE OF V ICTIM AND R ACE OF D EFENDANT D ISPARITIES IN THE A DMINISTRATION OF M ARYLAND'S C APITAL C HARGING AND S ENTENCING S YSTEM (1979-1996): P RELIMINARY F INDING (2001). 7 Baker argued that, under the U.S. Constitution, the Maryland death penalty statute violated his Fou rteenth A mend ment e qual pr otection right. He contended also that the death penalty statute violated his Eighth A mendm ent right in tha t it allowed fo r the arbitrary application of the death penalty. In addition, Baker argued that his corollary rights under the Maryland Constitution were violated, specifically Article 16 (prohibiting cruel and unusual pains and pena lties), Article 24 (embodying the concept of equal protection), and Article 25 (prohibiting cruel and unusual punishment) of the Maryland Declaration of Rights. As evid ence of th ese v iolat ions , he re lied o n the Pate rnos ter Study. 4 384 Md. 537, 865 A.2d 563 (20 05), 8 we granted his application for leave to appeal the denial of the Motion to Correct an Illegal Sentence. II. Under Maryland Rule 4-345(a), "[t]he court may correct an illegal sentence at any time." 9 Generally such a motion is "not appropriate where the alleged illegality 'did not inhere in [the defendant's] sentence.'" Evans v. S tate, 382 Md. 248, 278, 855 A.2d 291, 309 (2004), cert. denied, __ U.S. __, 125 S.Ct. 1325, 161 L.Ed.2d 113 (2005) (altera tion in original) (quoting State v. Kanaras, 357 Md. 17 0, 185, 742 A.2d 508, 517 (1999 )). Con sequ ently, a motion to correct an illegal sentence historically was entertained only where the alleged illegality was in the sentence itself or the sentence never should have been imposed. See, e.g., Evans, 382 Md. at 251, 855 A.2d at 292-93 (alleging an illegal sentence because the trial judge's application of an amendment to the death penalty statute, which became effective a few mo nths after the murders, v iolated the ex post facto clauses of the U.S. and M aryland constitu tions); Jones v. Sta te, 384 Md. 669, 672, 866 A.2d 151, 152-53 8 Section 7-104 of the Crimin al Procedu re Article, states that "[t]he co urt may reopen a postconviction proceeding that was p reviously concluded if the court determines that the action is in the interests of justice." Maryland Code (2001 ), Criminal Procedure Article, § 7-104 (emph asis add ed). As recen tly noted in Gray v. S tate, __Md.__ (2005) (Misc. No. 108, September Term, 2004) (filed August 10, 2005) (slip op. a t 16), § 7-104 "requires the cou rt to exercise discretion when ruling on a petition to reopen a postconviction pro ceedin g." Thus, "[w]e will only reverse a trial court's discretionary act if we find that the court abused its discretion." Gray, slip op. a t 17. 9 Maryland R ule 4-345 states, in pertinen t part: "Rule 4-345. Se ntencing R evisory pow er of court. (a) Illega l senten ce. The court m ay correc t an illega l senten ce at an y time." 5 (2005) (alleging an illegal sentence because the verdict was not announced orally in open court so as to allow the jury to be polled and hearkened to the verdict, and thus violated Maryland Rule 4-32 7); State v. Griffiths, 338 Md. 485, 496-97, 659 A.2d 876, 882 (1995) (alleging an illegal sentence because the imposition of a greater offense followed by the imposition of a sentence for a lesse r included offense c reated a cumulative sentence prohibited by double jeo pardy protectio ns); Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (198 5) (alleging a n illegal senten ce becau se "the imp osition of res titution as a condition of probation d[id] not authorize a trial court to order restitution to a victim of a crime of which [the defendant] was not convic ted"); Roberts v. Warden of Maryland Penitentiary, 206 Md. 246, 249, 111 A.2d 597, 598 (1955) (alleging an illegal sentence on two convictions of assault bec ause the sentence ex ceeded that which was permitted by law); 10 Bond v. State, 78 Md. 523, 524, 28 A. 407, 407 (1894) (alleging an illegal sentence because the two sections of the M aryland Code, under w hich the sentence w as imposed, were "repugnant and totally inconsistent, and c annot therefore be en forced"). 11 Thus, where the 10 In Roberts, the motion to correct an illegal sentence was raised under then prevailing Rule 10(a) of the Criminal Rules of Practice and Procedure, which provided: "The court may correct an illegal se ntence at any time ." While the substantive content of this provision has been embodied in various numbered Rules ov er time, for the purposes of our cu rrent analysis there is substantively no difference with its present day counterpart Maryland Rule 4345(a), which was adopted as such in 1984. 11 No rule governed motions to correct an illegal sentence when Bond was decided; however, the concept of an illegal sentence was recognized in common law. 6 sentence or sanction was itself lawful, a R ule 4-345 (a) motion w as not an ap propriate ve hicle to challe nge the legality of a senten ce. Evans, 382 M d. at 279 , 855 A .2d at 30 9. We recently recogn ized an ex ception in c apital sentenc ing cases to these historic principles. Where a decision in an unrela ted case ren dered by the U .S. Suprem e Court, following imposition of the death sentence in a given Maryland case, supplied a new judicial interpretation of a constitutional provision that might support an argument that an alleged error of constitutional dimension may have contributed to the impo sition of the d eath sentence in that given case, we indicated that a motion to correct an illegal sentence was a proper vehicle to raise the new constitutional argument. In Oken v. S tate, 378 Md. 179, 18485, 835 A.2d 1105, 1108 ( 2003) , cert. denied, 541 U.S. 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004), Oken raised a constitutional challenge to the Ma ryland death p enalty statute in a Rule 4-345(a) motion to correct an illegal sentence. He relied on tw o U.S. Suprem e Court opinions12 decided after his 1991 M aryland d eath sen tence p roceed ing. Oken, 378 Md. at 185-86, 835 A.2d at 11 08-09. This Cou rt reviewed the merits of Oken's constitutional claims, con cluding tha t, despite the new S upreme C ourt cases, the Maryland d eath pena lty statute was not unconstitutional on its face where the jury or judge may conclud e by a 12 Oken relied on Ring v. Arizona, 536 U.S. at 589, 122 S.Ct. at 2432, 153 L.Ed.2d at 564 ("Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on wh ich the legislatu re condition s an increas e in their maximum punishment."), and Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crim e beyo nd th e pre scrib ed statuto ry maximum m ust b e sub mitte d to a jury, and proved be yond a reasonable dou bt."). 7 preponderance of the evidence that the aggravating factors outweigh any mitigating factors. Oken, 378 Md. at 185-86, 269, 835 A.2d at 1108, 11 57-58. Th at Oken addressed the constitutional issues raised in a Rule 4-345(a) context was noted sub sequently by the Court in Evans and summarized as follows: The defendant Oken argued , relying on recent Supreme C ourt cases, that a constitutional error in the capital sentencing proceeding contributed to the death sentence. Section 2-3 03(i) of the Maryland death penalty statute provides that the trier of facts shall determine by a preponderance of the evidence whether the aggravating circumstances under subsection (g) of this section outweigh the mitigating circum stances . (Empha sis added). In Oken, the case was presented to the sentencing jury under this preponderance of the evidence standard. The defendant Oken had raised n o objection to this in the sentencing proceeding or in a prior post conviction proceedin g. In the Ru le 4-345 proceeding, however, Oken argued that the preponderance of the evidence standard violated due process and that a beyond a reasonab le doubt sta ndard w as constitutionally required. This Court, in the Rule 4-345 pro ceeding, res olved the m erits of the constitutional issue, with th e majority hold ing that application of the prepo nderance of the evidence standard was constitutiona l. See also O ken v. State , 367 Md. 191, 195, 786 A.2d 691, 693 (2001), cert. denied, 535 U.S . 1074, 122 S.Ct. 1953, 152 L.Ed.2d 855 (2002), where the Court decided the merits of a similar challenge by the defendant Oken. Evans, 382 Md. at 279 -80, 855 A.2d at 30 9 (emphasis in original). In Evans, supra, after summarizing the general rule s historically governing the proper purpose of a Rule 4-345(a) motion and the circumstances for applying the capital sentencing exception implied in Oken, we stated "this Court has appeared to recogniz e an exce ption to the above-summarized principles where, in a capital sentencing proceeding, an alleged error 8 of constitutiona l dimension may have c ontributed to the death sentence, at least where the allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant's capital sentencing proceeding." Evans, 382 Md. at 279, 855 A .2d at 30 9. Before considering the merits of Evans' constitutional claim,13 we assessed the availability of a Rule 4-345(a) motion to raise such a challenge: Evans, like Oken, claims that a provision of the Maryland death penalty statute was u nconstitution ally applied to him at his capital sentencing proceeding and that this alleged error may have resulted in the death sentence. Also, as in the Oken cases, Evans chiefly relies upon a United States Su preme Cou rt opinion rendered after his 1992 capital sentencing proceeding, namely Carmell v. Texas, supra, 529 U.S . 513, 120 S .Ct. 1620, 146 L.Ed.2d 577 [(2000)]. With regard to the availability of a proceeding under Rule 4-345(a), we perceive no significant differences between the Oken cases and the present case. Con sequ ently, we shall decide the merits of Evans s ex post facto argumen t. Evans, 382 Md. at 280, 855 A.2d at 309-10. Thus, because Evans relied on a U.S. Supreme Court opinion deciding a novel constitutional question of arguable relevance decided after the imposition o f his capital se ntence, a R ule 4-345 (a) motion w as deeme d an appr opriate vehicle available to h im to m ount hi s argum ents. Id. This exception in capital sentencing 13 Relying primarily on Carmell v. Texas, 529 U.S . 513, 120 S .Ct. 1620, 146 L.Ed.2d 577 (2000) (holding that the Ex Post F acto Clause of the U.S. Constitution precluded application of a statute to offenses committed before its effective date), Evans argued that "the jury instruction based on . . . the Acts of 1983, rather than an instruction based on the statute as it read prior to the 1983 amendment, was in violation of the ex post facto clauses of the federal and state constitutions," as "it imposed . . . a new and more burdensome burden of proof." Evans, 382 at 277-78, 283, 855 A.2d at 308, 311. 9 cases to the general limitations as to the proper grounds to raise in a motion to correct an illegal sentence, as applied in Oken and followed in Evans, thus far only has been recognized where the basis of the constitutional argument in support of the alleged error was based on a decision o r decisions o f the U.S. S upreme C ourt. III. Baker's Motion to Correct an Illegal Sentence under review in the presen t case fails to offer grounds cognizable under either pre-Oken general prin ciples or the p ost-Oken constitutional decision exception. Both the U.S. Supreme Court and this Court have confirmed the constitutio nality under the Eighth and Fourteenth Amendments of the punishment of death, including Maryland's death penalty statute s pecific ally. See, e.g., Gregg v. Georgia , 428 U.S. 153, 168-69, 96 S.Ct. 2909, 2922-23, 49 L.Ed.2d 859, 871-72 (1976); Baker II, 367 Md. at 676, 790 A.2d at 646 ("We have held on numerous occasions that the Marylan d death pe nalty statute is cons titutional . . . ."). In addition, there is no direct and specific evidence in this rec ord to sug gest that B aker 's death sentence was surrounded by improp riety of an y kind. See Baker I, 332 Md. at 571, 632 A.2d at 797 ("We a lso conclude that Baker's death sentence was not imposed under the influence of passion, prejudice, or any other arb itrary factor."). Ac cordingly, Ba ker's death se ntence is itself lawful and was imposed validly, and thus is not illegal under the pre-Oken general analytical princip les gov erning motion s broug ht unde r Rule 4 -345(a ). 10 Moreover, the grounds for Baker s motion in the present case do not fit within the capital sentencing exception for a Rule 4-345(a) motion. Unlike in Oken and Evans, Baker does not rely principally upon a U.S. Supreme Court decision, or even one o f this Cou rt, decided after his 1992 sentencing proceeding, rendering a new constitutional interpretation. Rather, Baker argues that the Paternoster Study, addressing the implementation between 1978 and 199 9 of M aryland's death p enalty statute (ava ilable only after B aker's trial, appellate, prior post-judgment motions, and post-conviction proceedings), demonstrates conclusive ly (or at least makes a prima facie showing of) a substantial risk that race and geography (i.e., the jurisdiction w here the crim e was co mmitted an d thus the local pros ecut or's office that both exercised discretion whether to seek the death penalty and tried the case) influenced how the death penalty process unfolded generally in Maryland and specifically in his case.14 Therefore, because Baker relies almost exclus ively u pon the Paternoster Study, rather than a "new" judicial decision bearing on relevant constitutional 14 Although for statistical purposes Baker's sentencing was included in the sweep of the Paternoster Study, there concededly is no conclusion drawn there that Baker's sentence specifically was influ ence d by any impermissible racial or geographical factors. Add ition ally, Dr. Paternoster stated in his testimon y before the S enate Judicial Proceedings Committee on 9 January 2003, shortly after the initial Study was released to the public: "I would like to make it especially clear that these results [of the Study] do not mean that anyone is behaving in a racially discriminatory manner because I think there are other explanations for that." 11 law, to establish the argued illegality in his sentence, his arguments do not fall within the exception recognized in Oken and Evans.15 As a result, Bak er urges this C ourt to expa nd further the groun ds deem ed appro priate to trigg er Rule 4 -345 (a) analysis to inclu de an argu ably relev ant e mpirical stud y, commissioned by a branch o f State gov ernment a nd publish ed after the s entencing in his case, the results or conclusions of which assertedly support an allegation of constitutional error contributing to the imposition of his death sentence. We shall not expand further the presently recognized groun ds upon wh ich relief may be considered u nder Rule 4-345 (a). A judicial decision is defined as a "judicia l . . . determination after consideration of the facts and the law." B LACK'S L AW D ICTIONARY 436 (8 th ed. 20 04) (em phasis a dded). In contrast, a report is a "formal oral or written presentatio n of facts . . . ." BLACK'S L AW D ICTIONARY at 1326 (emphasis added ). Both may have their place in the processes of the Executive, Legislative, and Judicial branches of State go vernmen t.16 Regarding, how ever, 15 Moreover, the cognizability of Baker's Rule 4-345(a) arguments here is further weakened by Randa ll Book C orporation v. State, 316 Md. 315, 558 A.2d 715 (1989). In Randall Book Corporation, this Court considered a defendant's claim, under a motion to correct an illegal sentence , that the senten cing judge was mo tivated by impe rmissible consid erations . Randall Book Corp., 316 Md. at 322, 558 A.2d at 719. We noted that th is examination was app ropriate on d irect appeal. Randall Book Corp., 316 Md. at 323, 558 A.2d at 719. Yet, we concluded also that "while improper motivation may justify vacation of the sentence, it does not render the sentence illegal wit hin the meaning of Rule 4-345. Appellant did not raise this contention on direct appeal and may not do so here." Id. 16 The Paternoster Study was commissioned by Governor Glendening in 2000 through a Contractual Services Appropriation as a Survey Commission. The budgetary description for the Study stated that the fun ds were f or a study of racial disparity in administration of (continued...) 12 Maryland Rule 4-345, plainly entitled: "Revisory power of court," the authority vested there "simply grants the trial court limited continuing authority in the criminal case to revise the (...continued) the death penalty. Senate Bill (S.B.) 150-2000. In the immediately previous legislative session, House Bill (H.B.) 538-1999, which proposed that the same type of study be undertake n, failed w hen the H ouse Judic iary Comm ittee gave it an unfavor able report. The published version of the Paternoster Study states that its genera l objective is to estimate the effect that race and geography has . . . [during] four decision points in the capital senten cing pr ocess. R AYMOND P ATERNOSTER, A N E MPIRICAL A NALYSIS OF M ARYLAND'S D EATH S ENTENCING S YSTEM W ITH R ESPECT TO THE INFLUENCE OF R ACE AND L EGAL J URISDICTION, F INAL R EPORT 5 (2004) [hereinafter F INAL R EPORT] (emphasis added ); see also F INAL R EPORT at 5-6 (noting that the Stud y is a detailed presentatio n of our res ults - what w e found w ith respect to the administration of the death penalty ) (emph asis added). When Dr. Paternoster testified before the Senate Judicial Proceedings Committee on 9 January 2003 and was asked to comment about the impact the Study may have on the constitutiona lity of th e dea th pe nalty, he replied: I can t simply because I am not a lawyer . . . I m a social scientist and I m a crimin ologist and I looked at th is data and I found patterns and I m reportin g those patterns . Following release of th e Study, the L egislature ap pears to hav e failed to achieve a majority consensu s whethe r the death penalty statutory scheme required attention in the face of the Stu dy. The follo wing bills re garding the death pen alty statute all failed o f enactm ent. H.B. 16-2003 and S.B. 12-2003 would have established a moratorium on the dea th penalty in order to allow the Legislature to consider the Paternoster Study and make recommendations based on the Study. Bo th bills explicitly me ntioned the Study in their respective Preamb les as a basis for the intended moratorium. S.B. 544-2003 and H.B. 5212004 would have repealed the death penalty (the Fiscal and Policy Note for each bill noted the Study and its findings). S.B. 744-2004, which called for the establishment of the Maryland Commission on Capital Punishment, explicitly required that the Commission review the Study. H.B. 665-2003 would have established a task force to study the need for prosecutorial guidelines a nd proce dures to go vern death penalty decisions. The Fiscal and Policy Note for that bill exclusively relied on the Study and its findings as support for the bill. S.B. 350-2003 would have required this Court to conduc t a proportion ality review in cases that imposed a sentence of death. The Fiscal and Policy Note for the bill noted the Study and its findings. Finally, S.B. 572-2003 would have excluded consideration of the death penalty in circumstances of felony murder and removed felony murder from the list of aggravating circumstances when considering the sentence of death. The Fiscal and Policy Note f or the b ill referre d to the S tudy. 13 senten ce." Kanaras, 357 M d. at 184 , 742 A .2d at 51 6. In a capita l senten cing co ntext, a motion to correct an illegal sentence enables the court to re-evaluate the initial sentence to ensure that it is not illegal, as that term has been defined in our cases considering Maryland Rule 4-345(a), its predecessors, and the common law. It is not an opportunity for the parties to litigate or re-litigate factual issues, but rather a vehicle to demonstrate, particularly in the case of the constitutional decision exception, that newly declared common law causes a penalty that was legal when administered now to be illegal as a matter of constitutional law.17 JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 17 Whether a general statistical study, publish ed afte r a capita l senten cing, ever may demons trate constitutional error in a specific death sentence is a question we need not address. But see McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (concluding that a statistical study did not establish sufficiently that Georgia's capital sentencing system violated either the Equal Pro tection Clause or the Eigh th Amendm ent). 14

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