Darryl Nichols v. State of Maryland, No. 8, September Term, 2018

LAW OF THE CASE DOCTRINE – MARYLAND RULE 4-345(a) – MD. CODE 

ANN., CRIM. LAW (2002, 2012 REPL. VOL.) § 1-202 – MAXIMUM SENTENCE 

FOR CONSPIRACY – MD. CODE ANN., CTS. & JUD. PROC. (1974, 2013 REPL. 

VOL.) § 12-702(b) – AGGREGATE SENTENCE – Court of Appeals held that law of 

case doctrine does not bar trial court from considering under Maryland Rule 4-345(a) issue 

as to sentence’s legality that appellate court has not resolved.

Court of Appeals held that, under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 1-

202—which provides that punishment of person who is convicted of conspiracy may not 

exceed maximum punishment for crime that person conspired to commit—where 

defendant is convicted of both crime and conspiracy to commit that crime, trial court cannot 

impose for conspiracy sentence that exceeds sentence that trial court imposed for crime 

that person conspired to commit.

Court of Appeals held that, for purposes of Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 

Repl. Vol.) § 12-702(b)—which states that, generally, on remand, trial court “may not 

impose [] sentence more severe than [] sentence previously imposed for [] offense”—

aggregate sentence of certain number of years of imprisonment is more severe than 

sentence of life imprisonment, with all but lower number of years suspended.
IN THE COURT OF APPEALS

OF MARYLAND

No. 8

September Term, 2018

______________________________________

DARRYL NICHOLS

v.

STATE OF MARYLAND

______________________________________

Barbera, C.J.

Greene

*Adkins

McDonald

Watts

Hotten

Getty,

JJ.

______________________________________

Opinion by Watts, J.

______________________________________

Filed: November 7, 2018

*Adkins, J., now retired, participated in the 

hearing and conference of this case while an 

active member of this Court; after being recalled 

pursuant to the MD. Constitution, Article IV, 

Section 3A, she also participated in the decision 

and adoption of this opinion.

Circuit Court for Baltimore City

Case Nos. 112333013, 112333014, 112333015 

Argued: September 6, 2018 
Under the law of the case doctrine, “a decision [that is] rendered in a [prior] appeal 

. . . is binding in a later appeal.” Law of the Case, Black’s Law Dictionary (10th ed. 2014). 

In other words, once an appellate court

has ruled upon a question [that is] properly presented [in] an appeal[—]or, if 

the ruling [is] contrary to a question that could have been raised and argued 

in that appeal on the then[-existing] state of the record[—]such a ruling 

becomes the law of the case[,] and is binding on the [parties, the appellate 

court,] and [lower] courts alike, unless changed . . . , and neither the questions 

[that were] decided[,] nor the ones that could have been raised and decided[,] 

are available to be raised in a subsequent appeal.

Dep’t of Pub. Safety & Corr. Servs. v. Doe, 439 Md. 201, 216-17, 94 A.3d 791, 800 (2014) 

(cleaned up). The law of the case doctrine’s “purpose is to prevent piecemeal litigation[;]

without it[,] any party . . . could institute as many successive appeals as . . . his [or her] 

imagination could produce new reasons to assign as to why his [or her] side . . . should 

prevail, and the litigation would never terminate.” Dabbs v. Anne Arundel Cty., 458 Md. 

331, 345 n.15, 182 A.3d 798, 806 n.15 (2018) (cleaned up).

In this case, a defendant unsuccessfully challenged a sentence for conspiracy to 

commit false imprisonment in an appeal, then challenged the sentence and sought 

resentencing on the count on a different ground at a resentencing proceeding. We must 

determine, among other issues, whether the law of the case doctrine barred the trial court 

from considering the defendant’s new challenge to the sentence for conspiracy to commit 

false imprisonment.

In the Circuit Court for Baltimore City, the State, Respondent/Cross-Petitioner, 

charged Darryl Nichols, Petitioner/Cross-Respondent, with multiple crimes. After Nichols 

was convicted, the circuit court sentenced him to: life imprisonment, with all but fifty years 
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suspended, for first-degree felony murder; life imprisonment, with all but fifty concurrent 

years suspended, for false imprisonment; fifty concurrent years of imprisonment for 

conspiracy to commit false imprisonment; five concurrent years of imprisonment for 

extortion; five concurrent years of imprisonment for conspiracy to commit extortion; 

followed by five years of supervised probation. Thus, Nichols’s original aggregate 

sentence was life imprisonment, with all but fifty years suspended, followed by five years 

of supervised probation. 

Nichols appealed. The Court of Special Appeals vacated Nichols’s life sentence, 

with all but fifty years suspended, for false imprisonment, holding that, under this case’s 

circumstances, the maximum sentence for false imprisonment was thirty years of 

imprisonment. See Darryl Nichols v. State, No. 169, Sept. Term, 2014, 2016 WL 1622079, 

at *5 (Md. Ct. Spec. App. Feb. 4, 2016).1 The Court of Special Appeals also vacated 

Nichols’s convictions for first-degree felony murder and conspiracy to commit extortion, 

 

1False imprisonment is a common law crime for which no statute prescribes a 

maximum sentence. See Cathcart v. State, 169 Md. App. 379, 386 n.5, 901 A.2d 262, 266 

n.5 (2006), vacated on other grounds, 397 Md. 320, 916 A.2d 1008 (2007). Thus, 

generally, a trial court may impose for false imprisonment any sentence that is not cruel 

and unusual. See Alford v. State, 202 Md. App. 582, 596, 33 A.3d 1004, 1012 (2011). 

That said, false imprisonment is a lesser-included offense of kidnapping. See Cathcart, 

169 Md. App. at 388, 901 A.2d at 268. Where a defendant is charged with a lesser-included 

offense and a greater offense based on the same conduct, and is convicted only of the lesserincluded offense, the trial court cannot impose a sentence that exceeds the maximum 

sentence for the greater offense. See Dixon v. State, 364 Md. 209, 233-34, 772 A.2d 283, 

297 (2001). Thus, where, as here, a defendant is charged with both kidnapping and false 

imprisonment based on the same conduct, and is convicted only of false imprisonment, a 

trial court cannot impose a sentence that exceeds the maximum sentence for kidnapping—

which is thirty years of imprisonment. See Md. Code Ann., Crim. Law (2002, 2012 Repl. 

Vol.) § 3-502(b).
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affirmed the rest of his convictions and sentences, and remanded for resentencing as to 

false imprisonment. See Nichols, 2016 WL 1622079, at *6. The Court of Special Appeals 

rejected Nichols’s contention that his sentence for conspiracy to commit false 

imprisonment must be vacated because conspiracy to commit false imprisonment is a 

lesser-included offense of conspiracy to commit kidnapping. See id. at *5 n.5.

At a resentencing proceeding, Nichols’s counsel challenged his sentence for 

conspiracy to commit false imprisonment on a different ground—namely, that his sentence 

for conspiracy to commit false imprisonment violated Md. Code Ann., Crim. Law (2002, 

2012 Repl. Vol.) (“CR”) § 1-202, which states: “The punishment of a person who is 

convicted of conspiracy may not exceed the maximum punishment for the crime that the 

person conspired to commit.” Nichols’s counsel contended that, under CR § 1-202, given 

that Nichols’s sentence for false imprisonment could not exceed thirty years, neither could 

his sentence for conspiracy to commit false imprisonment. 

The circuit court reasoned, however, that it lacked the authority to resentence 

Nichols for conspiracy to commit false imprisonment, as the Court of Special Appeals had 

remanded for resentencing only as to false imprisonment. The circuit court resentenced 

Nichols to thirty years of imprisonment for false imprisonment, consecutive to the existing 

fifty-year sentence for conspiracy to commit false imprisonment. Nichols’s new aggregate 

sentence was eighty years of imprisonment. Nichols’s counsel argued that, by making 

Nichols’s new sentence for false imprisonment consecutive to the existing sentence for 

conspiracy to commit false imprisonment, the circuit court had impermissibly increased 

his aggregate sentence above the original aggregate sentence of life imprisonment with all 
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but fifty years suspended. The circuit court was unpersuaded. 

For comparison of Nichols’s original sentences to the status of his sentences after 

the resentencing proceeding, we set forth the following table:

Crime: Original Sentence: Status After Resentencing

Proceeding:

First-degree 

felony murder

Life imprisonment, with all but 

fifty years suspended N/A (conviction vacated)

False 

imprisonment

Life imprisonment, with all but 

fifty concurrent years suspended

Thirty consecutive years of 

imprisonment

Conspiracy to 

commit false 

imprisonment

Fifty concurrent years of 

imprisonment Fifty years of imprisonment

Extortion Five concurrent years of 

imprisonment Remained the same

Conspiracy to 

commit extortion

Five concurrent years of 

imprisonment N/A (conviction vacated)

Aggregate 

sentence:

Life imprisonment, with all but 

fifty years suspended, followed by 

five years of supervised probation

Eighty years of imprisonment

Nichols appealed again. The Court of Special Appeals determined that the law of 

the case doctrine barred the circuit court from considering Nichols’s second challenge to 

his sentence for conspiracy to commit false imprisonment. See Darryl Nichols v. State, 

No. 1277, Sept. Term, 2016, 2017 WL 6492681, at *3 (Md. Ct. Spec. App. Dec. 19, 2017). 

But, the Court of Special Appeals agreed with Nichols that, under Md. Code Ann., Cts. & 

Jud. Proc. (1974, 2013 Repl. Vol.) (“CJ”) § 12-702(b)—which states that, generally, on 

remand, a trial court “may not impose a sentence more severe than the sentence previously 

imposed for the offense”—the circuit court had impermissibly increased his aggregate 

sentence by making his new sentence for false imprisonment consecutive to his existing 

sentence for conspiracy to commit false imprisonment for a total of eighty years of active 
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incarceration. See Nichols, 2017 WL 6492681, at *6. The Court of Special Appeals 

vacated Nichols’s sentence for false imprisonment, affirmed in all other respects, and 

remanded with instructions to impose a new sentence for false imprisonment that would 

not result in a new aggregate sentence of more than fifty years of active incarceration. See

id.

Before us, Nichols contends that the Court of Special Appeals erred in concluding

that the law of the case doctrine barred the circuit court from considering at the 

resentencing proceeding his second challenge to his sentence for conspiracy to commit 

false imprisonment. Nichols argues that his fifty-year sentence for conspiracy to commit 

false imprisonment violates CR § 1-202 because it exceeds the thirty-year maximum 

sentence that he received for false imprisonment. The State disagrees with Nichols, and 

asserts that the Court of Special Appeals erred in determining that the circuit court had 

impermissibly increased Nichols’s sentence by imposing a new aggregate sentence of 

eighty years of imprisonment where Nichols had been originally sentenced to life 

imprisonment with all but fifty years suspended. 

Below, in Part I, consistent with existing case law, we hold that the law of the case 

doctrine does not bar a trial court from considering under Maryland Rule 4-345(a) an issue 

as to a sentence’s legality that an appellate court has not resolved. Here, the Court of 

Special Appeals erred in concluding that the law of the case doctrine barred the circuit 

court from considering Nichols’s second challenge to his sentence for conspiracy to 

commit false imprisonment, as the Court of Special Appeals did not resolve that challenge 

in the first appeal.
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In Part II, addressing the merits of that challenge, we hold that, under CR § 1-202, 

where a defendant is convicted of both a crime and conspiracy to commit that crime, a trial 

court cannot impose for the conspiracy a sentence that exceeds the maximum sentence that 

the trial court imposed for the crime that the person conspired to commit. The plain 

language of CR § 1-202 requires this result. And, although there is no ambiguity as to CR 

§ 1-202’s language, its legislative history confirms the General Assembly’s intent that a 

defendant’s punishment for conspiracy to commit a crime not exceed the punishment that 

the defendant received for the crime that the defendant conspired to commit. Here, given 

that the circuit court sentenced Nichols to thirty years of imprisonment for false

imprisonment, the circuit court could not impose a sentence of more than thirty years of 

imprisonment for conspiracy to commit false imprisonment. 

In Part III, we hold that, under CJ § 12-702(b), an aggregate sentence of a certain 

number of years of imprisonment is more severe than a sentence of life imprisonment, with 

all but a lower number of years suspended. Here, given that Nichols’s original aggregate 

sentence was life imprisonment with all but fifty years suspended, followed by five years 

of supervised probation, the circuit court impermissibly increased his aggregate sentence

at the resentencing proceeding by imposing a thirty-year sentence for false imprisonment 

consecutive to the fifty-year sentence for conspiracy to commit false imprisonment, for a

new aggregate sentence of eighty years of imprisonment.

In Part IV, we grant the State’s request to vacate all of Nichols’s sentences, and to 

remand for resentencing as to the remaining convictions.
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BACKGROUND

Charges and Underlying Events

In the circuit court, the State charged Nichols with first-degree murder, kidnapping, 

false imprisonment, extortion, and conspiracy to commit each of these crimes. The 

indictments identified Nichols’s co-conspirators as Donta Vaughn and Sherelle Ferguson, 

and identified the victim as Eric Pendergrass.

At trial, as a witness for the State, Wayne Price testified that, in late January 2009, 

he, Vaughn, Ferguson, and a friend whom he knew as “Ty,” met and discussed ways to try 

to make $50,000. Subsequently, Price, Ty, Vaughn, Ferguson, and Nichols met. At that 

meeting, Vaughn proposed a plan “to grab” an acquaintance of his, obtain money from the

acquaintance’s “girl[,]” and then kill the acquaintance. Price said that he wanted no part 

of the plan and left. 

As a witness for the State, Tiara Felder testified that Pendergrass had been her 

boyfriend and roommate. On February 1, 2009, between 12 a.m. and 1 a.m., Pendergrass 

telephoned Felder and told her to go to a closet, get a bag, and take it to his mother’s house. 

Felder got the bag, looked inside, and saw cash, which she estimated to be $15,000. After 

Felder arrived at Pendergrass’s mother’s house, someone knocked on the door. 

Pendergrass’s cousin answered the door, and Felder saw a woman outside. The woman 

said that she was there for Pendergrass. Felder gave the bag of cash to the woman. On 

February 1 or 2, 2009, Felder received a text message from a phone number that she did 

not recognize. For approximately two or three days, Felder exchanged text messages with 

the unknown number. As a result of the text messages, Felder took another bag, containing 
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between $25,000 and $30,000 in cash, to a certain location. Afterward, Felder learned that 

Pendergrass had been killed. 

Verdicts, Original Sentences, and First Appeal

A jury found Nichols guilty of first-degree felony murder, false imprisonment, 

conspiracy to commit false imprisonment, extortion, and conspiracy to commit extortion.2

The circuit court sentenced Nichols to: life imprisonment, with all but fifty years 

suspended, for first-degree felony murder; life imprisonment, with all but fifty concurrent 

years suspended, for false imprisonment; fifty concurrent years of imprisonment for 

conspiracy to commit false imprisonment; five concurrent years of imprisonment for 

extortion; five concurrent years of imprisonment for conspiracy to commit extortion; 

followed by five years of supervised probation. Nichols’s original aggregate sentence was 

life imprisonment, with all but fifty years suspended, followed by five years of supervised 

probation. 

Nichols appealed. On October 13, 2015, the Court of Special Appeals: vacated 

Nichols’s conviction for first-degree felony murder, his sentence for conspiracy to commit 

extortion,3and his sentence for false imprisonment; affirmed the balance of Nichols’s 

 

2The jury found Nichols not guilty of first-degree premeditated murder, conspiracy 

to commit first-degree murder, kidnapping, and conspiracy to commit kidnapping. 

3As to Nichols’s conviction for first-degree felony murder, the Court of Special 

Appeals held that, because it was based on extortion, which is not a crime that can support 

first-degree felony murder, the conviction must be vacated. See Darryl Nichols v. State,

No. 0169, Sept. Term, 2014, 2015 WL 5944381, at *3 (Md. Ct. Spec. App. Oct. 13, 2015). 

The Court of Special Appeals vacated Nichols’s sentence for conspiracy to commit 

extortion because the circuit court had also sentenced him for conspiracy to commit false 

imprisonment, and the Court of Special Appeals concluded that a trial court may impose

(Continued...)
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convictions and sentences; and remanded for resentencing as to false imprisonment with 

instructions not to impose a sentence that exceeded thirty years of imprisonment. See

Darryl Nichols v. State, No. 0169, Sept. Term, 2014, 2015 WL 5944381, at *6 (Md. Ct. 

Spec. App. Oct. 13, 2015). The Court of Special Appeals held that the circuit court erred 

in sentencing Nichols to life imprisonment, with all but fifty years suspended, for false 

imprisonment, as, under this case’s circumstances, the maximum sentence for false 

imprisonment was thirty years of imprisonment. See id. at *5-6. Before the Court of 

Special Appeals, Nichols contended that conspiracy to commit false imprisonment is a 

lesser-included offense of kidnapping. See id. at *5. The Court of Special Appeals rejected 

this contention, as each crime includes an element that the other does not. See id. 

Specifically, one element of kidnapping is that the defendant transports the victim to 

another place, while conspiracy to commit false imprisonment does not include this 

element. See id. One element of conspiracy to commit false imprisonment is that the 

defendant agreed with at least one other person to commit the crime of false imprisonment, 

while kidnapping lacks this element. See id.

Nichols moved for reconsideration. On February 4, 2016, the Court of Special 

Appeals issued a superseding opinion that was identical to the original one, except that, in 

the new opinion: two footnotes were added to address the motion for reconsideration;

typographical errors were fixed; and the Court vacated not only Nichols’s sentence, but 

also his conviction, for conspiracy to commit extortion. Compare Nichols, 2015 WL 

 

only one sentence for a common law conspiracy, regardless of how many crimes the 

defendant agreed to commit. See id. at *5-6.
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5944381, with Nichols, 2016 WL 1622079, at *4 n.4, *5 n.5, *6.

Resentencing Proceeding

On August 18, 2016, the circuit court conducted a resentencing proceeding. At the 

proceeding, Nichols’s counsel asked the circuit court “to consider [an issue] that the Court 

of Special Appeals [had] not consider[ed.]” Nichols’s counsel advised that CR § 1-202 

states: “The punishment of a person who is convicted of conspiracy may not exceed the 

maximum punishment for the crime that the person conspired to commit.” Nichols’s 

counsel pointed out that the Court of Special Appeals had held that, under this case’s 

circumstances, the maximum sentence for false imprisonment was thirty years of 

imprisonment. See Nichols, 2016 WL 1622079, at *4-5. Nichols’s counsel contended 

that, accordingly, the sentence for conspiracy to commit false imprisonment could not 

exceed thirty years of imprisonment. Nichols’s counsel acknowledged that Nichols had 

not raised, and the Court of Special Appeals had not addressed, the issue of whether his 

sentence for conspiracy to commit false imprisonment could exceed the maximum sentence 

for false imprisonment. 

The prosecutor responded that the Court of Special Appeals had affirmed Nichols’s 

conviction and sentence for conspiracy to commit false imprisonment. The prosecutor 

contended that, if the Court of Special Appeals had intended for Nichols’s sentence for 

conspiracy to commit false imprisonment to be capped at thirty years of imprisonment, it 

would have stated as much. 

The circuit court concluded that it lacked the authority to resentence Nichols for 

conspiracy to commit false imprisonment. The circuit court observed that the Court of 
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Special Appeals had remanded only for resentencing as to certain of Nichols’s convictions, 

which did not include his conviction for conspiracy to commit false imprisonment. The 

circuit court stated that the only issues that were before it were the ones that the Court of 

Special Appeals had addressed. The circuit court observed that it was conducting a 

resentencing proceeding, not a hearing on a motion to modify a sentence. 

The circuit court resentenced Nichols to thirty years of imprisonment for false 

imprisonment. The circuit court made Nichols’s new thirty-year sentence for false 

imprisonment consecutive to his existing fifty-year sentence for conspiracy to commit false 

imprisonment, making his new aggregate sentence eighty years of imprisonment.

Nichols’s counsel noted that his original sentence for false imprisonment had been

concurrent to his sentence of life imprisonment, with all but fifty years suspended, for firstdegree felony murder, and contended that the circuit court had impermissibly increased his 

aggregate sentence by imposing an aggregate sentence of eighty years of imprisonment—

i.e., by making his new sentence for false imprisonment consecutive to his existing 

sentence for conspiracy to commit false imprisonment. The circuit court did not agree.

Opinion of the Court of Special Appeals in This Appeal

Nichols appealed again. On December 19, 2017, the Court of Special Appeals 

vacated Nichols’s sentence for false imprisonment, affirmed in all other respects, and 

remanded for resentencing as to false imprisonment. See Nichols, 2017 WL 6492681, at 

*6. The Court of Special Appeals held that the law of the case doctrine prevented Nichols 

from challenging the sentence for conspiracy to commit false imprisonment on the ground 

that his sentence exceeded the maximum sentence for false imprisonment. See id. at *4. 
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The Court explained that the law of the case doctrine applied because the issue as to 

Nichols’s sentence for conspiracy to commit false imprisonment could have been raised or 

decided in the first appeal. See id. at *3.

The Court of Special Appeals concluded that, under CJ § 12-702(b), the circuit court 

had impermissibly increased Nichols’s aggregate sentence by imposing an active eightyyear sentence of incarceration. See id. at *6. The Court of Special Appeals remanded for 

resentencing with instructions not to impose a new sentence for false imprisonment that 

would result in an aggregate sentence of more than fifty active years of imprisonment. See

id.

Petition for a Writ of Certiorari and Conditional Cross-Petition

On February 7, 2018, Nichols petitioned for a writ of certiorari, raising the 

following issue: “Whether, despite Maryland Rule 4-345[(a)]’s provision that a court may 

correct an illegal sentence at any time, the law of the case doctrine may bar a claim of an 

illegal sentence for failure to properly raise the issue on appeal?” On February 21, 2018, 

the State conditionally cross-petitioned for a writ of certiorari, raising the following issue: 

“Is Nichols’s total sentence of 80 years of imprisonment, which was imposed at 

resentencing, not an illegal increase from his previous total sentence of life with all but 50

years suspended?” On April 9, 2018, this Court granted the petition and the conditional 

cross-petition. See Nichols v. State, 458 Md. 580, 183 A.3d 156 (2018).
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DISCUSSION

I. The Law of the Case Doctrine

The Parties’ Contentions

Nichols contends that the Court of Special Appeals erred in holding that the law of 

the case doctrine barred the circuit court from considering the issue of whether his sentence 

for conspiracy to commit false imprisonment is an illegal sentence because it exceeds the 

maximum sentence for false imprisonment. Nichols argues that the law of the case doctrine 

does not apply because the Court of Special Appeals did not decide that issue in the first 

appeal. Nichols asserts that, under Maryland Rule 4-345(a), a court may review an 

inherently illegal sentence at any time. Nichols maintains that his sentence for conspiracy 

to commit false imprisonment is an illegal sentence because it violates CR § 1-202, which 

prohibits a sentence for conspiracy from exceeding the maximum sentence for the crime 

that the defendant conspired to commit. 

The State responds that the law of the case doctrine precluded Nichols from arguing 

that his sentence for conspiracy to commit false imprisonment is an illegal sentence. The 

State contends that the argument that Nichols pursued in the first appeal was the same as 

the argument that he pursued at the resentencing proceeding—namely, that his sentence 

for conspiracy to commit false imprisonment is an illegal sentence because it was subject 

to the thirty-year maximum sentence for false imprisonment. The State argues that, at the 

resentencing proceeding, Nichols did not raise a new issue, and instead simply relied on 

CR § 1-202 as additional support for the argument that he had made in the first appeal. The 

State asserts that, although a defendant may raise the issue of a sentence’s legality at any 
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time under Maryland Rule 4-345(a), that does not mean that the defendant may re-raise an 

issue as to a sentence that an appellate court has resolved. 

Standard of Review

An appellate court reviews without deference a lower court’s conclusion as to 

whether the law of the case doctrine applies. See Balt. Cty. v. Fraternal Order of Police, 

Balt. Cty. Lodge No. 4, 449 Md. 713, 731, 144 A.3d 1213, 1224 (2016).

Maryland Rule 4-345(a) and the Law of the Case Doctrine

Maryland Rule 4-345(a) states: “The court may correct an illegal sentence at any 

time.” In Smith v. State, 453 Md. 561, 576, 162 A.3d 955, 964 (2017), this Court explained 

where and how Maryland Rule 4-345(a) applies, stating:

If a sentence is illegal within the meaning of [Maryland Rule 4-345(a)—]that 

is, the illegality inheres in the sentence itself[—]then the defendant may file 

a motion in the trial court to correct it, notwithstanding that[:] (1) no 

objection was made when the sentence was imposed, (2) the defendant 

purported to consent to it, or (3) the sentence was not challenged in a timelyfiled direct appeal or at some other previous procedural juncture.

(Cleaned up).

In Scott v. State, 379 Md. 170, 182-83, 840 A.2d 715, 722 (2004), this Court held 

that Maryland Rule 4-345(a) does not “render[] the doctrine of law of the case inapplicable 

to motions to correct an illegal sentence.” (Footnote omitted). In Scott, id. at 175, 840 

A.2d at 718, a defendant filed a motion to correct an illegal sentence, contending that his 

two sentences of life imprisonment were unlawful for different reasons. Specifically, the 

defendant argued that his first sentence of life imprisonment was ambiguous because it was 

unclear whether he would be eligible for parole. See id. at 176, 840 A.2d at 719. The 
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defendant asserted that his second sentence of life imprisonment was ambiguous because 

it was unclear whether it was meant to be consecutive to or concurrent with his first 

sentence of life imprisonment. See id. at 177, 840 A.2d at 719. A trial judge denied the 

motion to correct an illegal sentence. See id. at 176-77, 840 A.2d at 719.

Years later, the defendant filed a second motion to correct an illegal sentence, 

repeating his previous contentions and arguing that new parole guidelines rendered his 

sentences of life imprisonment illegal. See id. at 179-80, 840 A.2d at 720. A second trial 

judge denied the motion to correct an illegal sentence, noting that the first trial judge had 

rejected the defendant’s previous contentions, and concluding that the new parole 

guidelines did not render his sentences of life imprisonment illegal sentences. See id. at 

180, 840 A.2d at 720-21. The defendant appealed, and the Court of Special Appeals 

affirmed the second trial judge’s determination, holding that the law of the case doctrine 

applies to a motion to correct an illegal sentence. See id. at 180-81, 840 A.2d at 721.

Before this Court, the defendant contended that the Court of Special Appeals erred 

in holding that the law of the case doctrine applies to a motion to correct an illegal sentence. 

See id. at 181, 840 A.2d at 721. The defendant “argue[d] that, because [Maryland] Rule 

4-345(a) allows a defendant to raise the illegality of a sentence at any time, it is 

inappropriate to use the doctrine of law of the case to give preclusive effect to earlier orders 

in a case denying relief.” Id. at 181, 840 A.2d at 721.

This Court held that the Court of Special Appeals erred in applying the law of the 

case doctrine—but not for the reason that the defendant contended. See id. at 182-83, 840 

A.2d at 722. This Court explained that the law of the case doctrine does not apply to a trial 
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court’s ruling; thus, in Scott, contrary to the Court of Special Appeals’s holding, the second 

trial judge was free to either adopt, or decline to adopt, the first trial judge’s rejection of

the contentions that the defendant made in both motions to correct an illegal sentence. See

id. at 184-85, 840 A.2d at 723-24. This Court disagreed, however, with the defendant’s 

argument that, under Maryland Rule 4-345(a), the law of the case doctrine does not apply 

to a motion to correct an illegal sentence. See id. at 182-83, 840 A.2d at 722. This Court 

explained the relationship between the law of the case doctrine and res judicata,

4

as well 

as the relationship between res judicata and Maryland Rule 4-345(a), as follows:

The law of the case doctrine differs from res judicata in that it applies to court 

decisions [that are] made in the same, rather than a subsequent, case. . . . 

[B]ecause motions to correct an illegal sentence occur as part of the same 

criminal proceeding[,] and not a wholly independent action, . . . res judicata

might apply if such a motion was considered to be a wholly independent 

action. . . . [H]owever, [] this is unlikely to occur because, although Maryland 

Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at 

any time,” [Maryland Rule 4-345(a)] creates a limited exception to the 

general rule of finality by sanctioning a method of opening a judgment [that 

is] otherwise final and beyond the reach of the court. [Maryland] Rule 4-

345(a) is a limited exception because it applies only to motions that occur as 

part of the same criminal proceeding.

Scott, 379 Md. at 182 n.6, 840 A.2d at 722 n.6 (cleaned up).

In State v. Garnett, 172 Md. App. 558, 562-63, 916 A.2d 393, 395, cert. denied, 399 

Md. 594, 925 A.2d 633 (2007), the Court of Special Appeals held that the law of the case 

doctrine did not bar a trial court from considering a challenge to a sentence where the 

 

4Res judicata, which is also known as claim preclusion, is “[a]n affirmative defense 

barring the same parties from litigating a second lawsuit on the same claim, or any other 

claim arising from the same transaction or series of transactions and that could have been 

— but was not — raised in the first suit.” Res Judicata, Black’s Law Dictionary (10th ed. 

2014).
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defendant had not raised the challenge in a prior appeal. In Garnett, 172 Md. App. at 560, 

916 A.2d at 394, the defendant was found guilty but not criminally responsible of certain 

crimes, and the trial court ordered restitution. The State filed a Motion to Allow 

Garnishment, which the defendant opposed on the ground that the order of restitution was 

not a criminal sanction, and thus was dischargeable in a bankruptcy proceeding. See id. at 

560, 916 A.2d at 394. The trial court denied the Motion to Allow Garnishment, and the 

State appealed. See id. at 560, 916 A.2d at 394. This Court held that the trial court erred 

in denying the Motion to Allow Garnishment because the order of restitution was a criminal 

sanction, and was not dischargeable in a bankruptcy proceeding. See id. at 560, 916 A.2d 

at 394.

The defendant filed a Motion to Dismiss and to Correct Illegal Sentence, requesting 

that the trial court dismiss the Motion to Allow Garnishment and vacate the order of 

restitution on the ground that the defendant had been found guilty but not criminally 

responsible. See id. at 560, 916 A.2d at 394. The trial court granted the Motion to Dismiss 

and to Correct Illegal Sentence, and the State appealed again. See id. at 560, 916 A.2d at 

394.

Before the Court of Special Appeals, the State contended that the law of the case 

doctrine barred the trial court from granting the Motion to Dismiss and to Correct Illegal 

Sentence. See id. at 561, 916 A.2d at 394. The Court of Special Appeals disagreed, 

observing that, in the first appeal, the defendant had not raised the issue of whether it was 

permissible to impose a criminal sanction on a defendant who had been found guilty but

not criminally responsible. See id. at 562-63, 916 A.2d at 395. The Court of Special 
- 18 -

Appeals addressed the relationship between the law of the case doctrine and Maryland Rule 

4-345(a), stating:

[Maryland] Rule 4-345(a) permits a defendant to assert an “illegal sentence” 

argument that was not previously addressed by an appellate court. 

Obviously, the law of the case doctrine would prevent relitigation of an 

“illegal sentence” argument that has been presented to[,] and rejected by[,]

an appellate court. . . . On the other hand, [Maryland] Rule 4-345(a) would 

be meaningless if the law of the case doctrine were extended to sentences 

that could have been—but were not—challenged as illegal [when a 

defendant] filed his or her first appellate brief in this Court.

Id. at 561-62, 916 A.2d at 395 (paragraph break omitted).

Analysis

Here, consistent with existing case law, we conclude that the law of the case doctrine 

bars a trial court from considering under Maryland Rule 4-345(a) an issue as to the legality 

of a sentence where an appellate court has previously resolved the same issue. The law of 

the case doctrine does not, however, bar a trial court from considering under Maryland 

Rule 4-345(a) an issue as to the legality of a sentence that an appellate court has not 

resolved. In addition, the law of the case doctrine does not prohibit consideration of an 

issue as to the legality of a sentence under Maryland Rule 4-345(a) where a defendant could 

have raised, but failed to raise, the issue in a prior appeal.

The law of the case doctrine bars a trial court from considering an issue as to a 

sentence’s legality that an appellate court has resolved. Maryland Rule 4-345(a) allows a 

defendant to raise a new issue as to a sentence’s legality at any time; Maryland Rule 4-

345(a) does not allow a defendant to re-raise an old issue as to a sentence’s legality. In 

other words, “the law of the case doctrine [] prevent[s] relitigation of an ‘illegal sentence’ 
- 19 -

argument that has been presented to[,] and rejected by[,] an appellate court.” Garnett, 172 

Md. App. at 562, 916 A.2d at 395. As this Court held in Scott, 379 Md. at 183, 840 A.2d

at 722, Maryland Rule 4-345(a) does not render the law of the case doctrine inapplicable 

to an issue as to a sentence’s legality.

Turning to this case’s circumstances, to determine whether the law of the case 

doctrine applies, we must ascertain whether, in the first appeal, the Court of Special 

Appeals resolved the contention that Nichols raised at the resentencing proceeding. In 

other words, we must determine whether, at the resentencing proceeding, Nichols raised a 

new issue by contending that his sentence for conspiracy to commit false imprisonment 

was an illegal sentence because it violated CR § 1-202. If, as Nichols argues, he raised a 

new issue, then the Court of Special Appeals did not decide the issue in the first appeal, 

and the law of the case doctrine did not bar the circuit court from considering the issue at 

the resentencing proceeding. But, if, as the State asserts, Nichols did not raise a new 

issue—and instead simply provided new support (namely, CR § 1-202) as to an issue that 

he had already raised in the first appeal—then the Court of Special Appeals decided the 

issue in the first appeal, and the law of the case doctrine barred the circuit court from 

considering the new support as to the issue at the resentencing proceeding.

To resolve the question of whether Nichols raised at the resentencing proceeding an 

issue that he had not raised in the first appeal, we review his contentions in the first appeal 

and at the resentencing proceeding. In his brief in the first appeal, Nichols listed multiple 

questions presented, including: “Did the [circuit] court err by imposing sentences for false 

imprisonment and conspiracy to commit false imprisonment that exceeded the statutory 
- 20 -

maximum penalty for the greater [] offense of kidnapping[, of] which [Nichols] was 

acquitted?” Brief of Appellant, Darryl Nichols v. State, No. 169, Sept. Term, 2014 (Md. 

Ct. Spec. App.), 2014 WL 7717632, at *3. Nichols contended that, where a defendant is 

charged with a lesser-included offense and a greater offense based on the same conduct, 

and is convicted only of the lesser-included offense, the trial court cannot impose a 

sentence that exceeds the maximum sentence for the greater offense. See id. at *16. 

Nichols argued that false imprisonment is a lesser-included offense of kidnapping, and that 

his sentence for conspiracy to commit false imprisonment could not exceed the maximum 

penalty for conspiracy to kidnap, which is thirty years of imprisonment. See id. at *17-18.

In its original opinion, the Court of Special Appeals rejected Nichols’s contention, 

concluding that conspiracy to commit false imprisonment is not a lesser-included offense 

of kidnapping because each crime has an element that the other does not. See Nichols, 

2015 WL 5944381, at *5. Nichols filed a motion for reconsideration in which he contended 

that conspiracy to commit false imprisonment is a lesser-included offense of conspiracy to 

commit kidnapping. See Nichols, 2016 WL 1622079, at *5 n.5. In its superseding opinion, 

the Court of Special Appeals disagreed. See id. The Court of Special Appeals determined, 

however, that a trial court may sentence a defendant for only one conspiracy based on the 

same conduct, no matter how many crimes the defendant agreed to commit. See id. The 

Court of Special Appeals vacated Nichols’s conviction and sentence for conspiracy to 

commit extortion. See id. Thus, Nichols’s sentence for conspiracy to commit false 

imprisonment was his only remaining sentence for conspiracy. See id.

A review of the record demonstrates that an issue as to CR § 1-202 was not raised 
- 21 -

in Nichols’s brief in the first appeal, see Brief of Appellant, Nichols, 2014 WL 7717632,

the Court of Special Appeals’s original opinion, see Nichols, 2015 WL 5944381, or the 

Court of Special Appeals’s superseding opinion, see Nichols, 2016 WL 1622079.

At the resentencing proceeding, for the first time, Nichols’s counsel argued that the 

sentence for conspiracy to commit false imprisonment is an illegal sentence under CR § 1-

202. Nichols’s counsel pointed out that CR § 1-202 states: “The punishment of a person 

who is convicted of conspiracy may not exceed the maximum punishment for the crime 

that the person conspired to commit.” Nichols’s counsel noted that the Court of Special 

Appeals had held that, under this case’s circumstances, the maximum sentence for false 

imprisonment was thirty years of imprisonment. See Nichols, 2016 WL 1622079, at *4-5. 

Nichols’s counsel contended that, accordingly, his sentence for conspiracy to commit false 

imprisonment could not exceed thirty years of imprisonment. 

We agree with Nichols that he raised a new issue at the resentencing proceeding. In 

the first appeal, Nichols contended that his fifty-year sentence for conspiracy to commit 

false imprisonment was illegal because it exceeded the thirty-year maximum sentence for 

conspiracy to commit kidnapping, of which he was acquitted, and he argued that conspiracy 

to commit false imprisonment was a lesser-included offense of conspiracy to commit 

kidnapping. By contrast, at the resentencing proceeding, Nichols argued that his fifty-year 

sentence for conspiracy to commit false imprisonment was illegal because it exceeded the 

thirty-year maximum sentence for false imprisonment, and thus violated CR § 1-202. 

Nichols’s arguments clearly raised different issues.

We reject the State’s contention that, at the resentencing proceeding, Nichols simply 
- 22 -

provided new support—namely, CR § 1-202—as to an issue that he had already raised in 

the first appeal. The State reasons that, both in the first appeal and at the resentencing 

proceeding, Nichols contended that his sentence for conspiracy to commit false 

imprisonment “was illegal because it was subject to the [thirty]-year cap [] on his sentence 

for false imprisonment.” The State is mistaken. In the first appeal, Nichols argued that his 

sentence for conspiracy to commit false imprisonment could not exceed the maximum 

sentence for conspiracy to commit kidnapping—not that it could not exceed the maximum 

sentence for false imprisonment. See Brief of Appellant, Nichols, 2014 WL 7717632, at 

*17-18; Nichols, 2016 WL 1622079, at *5 n.5.

At oral argument, the State contended that the law of the case doctrine bars 

Nichols’s argument as to CR § 1-202 because, according to the State, Nichols could have 

raised the argument in the first appeal but failed to do so. We note that this position 

contradicts the State’s earlier contention that Nichols should be barred from raising CR § 

1-202 because he argued a similar point during the first appeal by advocating for a sentence 

of no more than thirty years of imprisonment for conspiracy to commit false imprisonment. 

Despite the variance in the State’s position, we are of the view that, notwithstanding the 

law of the case doctrine, under Maryland Rule 4-345(a), a trial court may consider an issue 

as to a sentence’s legality that a defendant could have raised, but failed to raise, in a prior 

appeal. Maryland “Rule 4-345(a) would be rendered meaningless if the law of the case 

doctrine were extended [to preclude challenges] to sentences that could have been—but 

were not—challenged as illegal” when a defendant pursued his or her appeal in the Court 

of Special Appeals. Garnett, 172 Md. App. at 562, 916 A.2d at 395. Moreover, it has been 
- 23 -

established that under Maryland Rule 4-345(a), a defendant may raise an issue as to a 

sentence’s legality even if he or she did not raise the issue “in a timely-filed direct appeal 

or at some other previous procedural juncture.” Smith, 453 Md. at 576, 162 A.3d at 964 

(cleaned up). 

Under the circumstances of this case, the law of the case doctrine did not bar the 

circuit court from considering the issue that Nichols raised at the resentencing proceeding. 

Having determined that the issue of whether Nichols’s sentence for conspiracy to commit 

false imprisonment violated CR § 1-202 was properly before the circuit court—and, by

extension, is properly before this Court—we turn to the merits.

II. CR § 1-202

The Parties’ Contentions

Nichols contends that his sentence of fifty years of imprisonment for conspiracy to 

commit false imprisonment is an illegal sentence. Nichols points out that he was charged 

with false imprisonment (a lesser-included offense) and kidnapping (a greater offense) 

based on the same conduct. Nichols notes that, where a defendant is charged with a lesserincluded offense and a greater offense based on the same conduct, and is convicted only of 

the lesser-included offense, the trial court cannot impose a sentence that exceeds the 

maximum sentence for the greater offense. Nichols argues that, because the maximum 

sentence for kidnapping is thirty years of imprisonment, see CR § 3-502(b), the circuit 

court could not sentence him to more than thirty years of imprisonment for false 

imprisonment. Nichols advises that CR § 1-202 states: “The punishment of a person who 

is convicted of conspiracy may not exceed the maximum punishment for the crime that the 
- 24 -

person conspired to commit.” Nichols asserts that, based on CR § 1-202, his sentence for 

conspiracy to commit false imprisonment could not exceed his thirty-year sentence for 

false imprisonment. 

The State responds that Nichols’s sentence for conspiracy to commit false 

imprisonment is a legal sentence and that it did not exceed the maximum sentence for false 

imprisonment. The State argues that false imprisonment is a common law crime for which 

no statute prescribes a maximum sentence. The State asserts that, generally, a trial court 

may impose any sentence for false imprisonment that is not cruel and unusual. The State 

contends that, accordingly, a fifty-year sentence for conspiracy to commit false 

imprisonment does not exceed the maximum sentence for false imprisonment, and does 

not violate CR § 1-202. The State maintains that, as used in CR § 1-202, the term 

“maximum punishment” means the highest possible sentence for a crime, not the sentence 

that a trial court imposed in a particular case. In other words, the State asserts that CR § 

1-202 permits a sentence for a conspiracy to be up to the statutory maximum sentence, if 

any, for the crime that the defendant conspired to commit. 

Standard of Review

An appellate court reviews without deference the issue of whether a sentence is 

illegal. See State v. Crawley, 455 Md. 52, 66, 166 A.3d 132, 140, reconsideration denied

(Aug. 23, 2017). “In interpreting a statute, a court first considers the statute’s language, 

which the court applies where the statute’s language is unambiguous and clearly consistent 

with the statute’s apparent purpose.” Hailes v. State, 442 Md. 488, 495, 113 A.3d 608, 612 

(2015) (cleaned up).
- 25 -

CR § 1-202 and Its Predecessors

In 1927, the General Assembly enacted CR § 1-202’s earliest predecessor, Md. 

Code Ann., Art. 27, § 43-A, which set the maximum sentence for any conspiracy at ten 

years of imprisonment and/or a $2,000 fine. See 1927 Md. Laws 1306 (Ch. 651). Without 

amending the statute, the General Assembly recodified it three times. First, as of 1939, the 

statute had been recodified as Art. 27, § 42. Second, as of 1951, the statute had been 

recodified as Art. 27, § 46. And third, as of 1957, the statute had been recodified as Art. 

27, § 38. 

In Scarlett v. State, 201 Md. 310, 320-21, 93 A.2d 753, 757-58 (1953), this Court 

held that, under Art. 27, § 46, a trial court did not abuse its discretion in sentencing a 

defendant to seven years of imprisonment for conspiracy to violate a lottery law, even 

though the maximum sentence for a first conviction of violating the lottery law was only

one year of imprisonment. This Court noted that the defendant’s seven-year sentence was 

“considerably below the” ten-year maximum sentence under Art. 27, § 46. Id. at 320, 93 

A.2d at 758. This Court was unpersuaded by the defendant’s reliance on a federal statute 

under which, if a defendant was convicted of conspiracy to commit a misdemeanor, the 

defendant’s sentence could not exceed the maximum sentence for the misdemeanor. See

id. at 320-21, 93 A.2d at 758. This Court stated: “Whether or not the proviso in the [federal 

statute] has merit, the fact remains that [Art. 27, § 46] does not contain such a proviso.” 

Id. at 321, 93 A.2d at 758.

Eight years after this Court decided Scarlett, the General Assembly amended Art. 

27, § 38 (Art. 27, § 46’s successor) to include language that was similar to the federal 
- 26 -

statute’s language. See 1961 Md. Laws 1185 (Ch. 691, H.B. 860). Specifically, in 1961, 

the General Assembly eliminated the ten-year/$2,000 maximum sentence for any 

conspiracy by amending Art. 27, § 38 to state: “The punishment of every person convicted 

of the crime of conspiracy shall not exceed the maximum punishment provided for the 

offense he or she conspired to commit.” Id.

Seven years later, in State v. Michael, 2 Md. App. 750, 753, 237 A.2d 782, 784 

(1968), the Court of Special Appeals discussed the General Assembly’s intent in amending 

Art. 27, § 38 as follows:

It seems obvious to us [that] the intention of the [General Assembly] was 

simply to avoid the effects of Scarlett[, 201 Md. at 320-21, 93 A.2d at 757-

58,] which held that a[ defendant] could, in some cases, receive a much 

longer term for a conspiracy than for the completed crime [that] was the 

object of the conspiracy.

(Citation omitted). In Johnson v. State, 362 Md. 525, 533, 766 A.2d 93, 97 (2001), this 

Court quoted, and did not dispute the accuracy of, the Court of Special Appeals’s 

assessment in Michael, 2 Md. App. at 753, 237 A.2d at 784.

In 2002, as part of the Code Revision, the General Assembly repealed Art. 27, § 38 

and replaced it by enacting Md. Code Ann., Crim. Law (2002) (“CR (2002)”) § 1-202, 

which stated: “The punishment of a person who is convicted of conspiracy may not exceed 

the maximum punishment for the crime that the person conspired to commit.” 2002 Md. 

Laws 209 (Vol. I, Ch. 26, H.B. 11). CR (2002) § 1-202’s Revisor’s Note stated in pertinent 

part: “The only changes are in style.” Id. Since 2002, the General Assembly has not 

amended the statute.
- 27 -

Analysis

Here, we conclude that, under CR § 1-202, where a defendant is convicted of both 

a crime and conspiracy to commit that crime, a trial court may not impose for conspiracy 

a sentence that exceeds the sentence that the trial court imposed for the crime that the 

person conspired to commit. CR § 1-202’s plain language states: “The punishment of a 

person who is convicted of conspiracy may not exceed the maximum punishment for the 

crime that the person conspired to commit.” A plain language analysis of CR § 1-202 

warrants the stance that we reach. And, although CR § 1-202’s language is unambiguous, 

we observe, as a confirmatory matter, that CR § 1-202’s legislative history requires the 

same outcome. In other words, in enacting CR § 1-202, the General Assembly’s purpose 

was to ensure that, in any given case, a defendant’s sentence for conspiracy to commit a 

crime would not exceed the sentence that the defendant received for the crime that the 

defendant conspired to commit.

The State does not identify any case, and we know of none, after the 1961 

amendment to Art. 27, § 38 in which a defendant was convicted of both a crime and 

conspiracy to commit that crime, and an appellate court held that it was proper for the 

sentence for conspiracy to exceed the sentence for the crime that the defendant conspired 

to commit. Indeed, at oral argument, the Assistant Attorney General acknowledged that 

she was unaware of the existence of such a case. Neither CR § 1-202 nor any other 

Maryland authority supports the proposition that a sentence for conspiracy to commit a 

crime may exceed the sentence for the crime that the defendant conspired to commit.

Under the State’s position, where a defendant is convicted of conspiracy to commit 
- 28 -

a common law crime, such as false imprisonment, CR § 1-202 does not apply, and thus 

would not set a cap on the sentence. Simply put, adopting the State’s position would lead 

to unacceptable results, as this case’s circumstances demonstrate. After the resentencing 

proceeding, Nichols’s sentence for false imprisonment was thirty years of imprisonment, 

whereas his sentence for conspiracy to commit false imprisonment was fifty years of 

imprisonment. If we adopted the State’s position, it would be permissible for Nichols to 

have a fifty-year sentence for conspiracy, which is twenty years more than his thirty-year 

sentence for actually committing the crime in question. This circumstance would be 

inconsistent with the plain language of CR § 1-202 and would indicate that Nichols was 

more culpable for agreeing to falsely imprison Pendergrass than for actually falsely 

imprisoning him.

We do not discern any ambiguity in the plain language of CR § 1-202. The statute’s 

plain language requires the outcome that we reach. CR § 1-202 plainly states that the 

punishment for a person who is convicted of conspiracy may not exceed the maximum 

punishment for the crime that the person conspired to commit. CR § 1-202 uses the word 

“punishment” rather than “sentence,” which is a strong indicator that CR § 1-202 refers to 

the imprisonment or punishment that is actually imposed on a defendant. Additionally, CR 

§ 1-202’s legislative history supports our conclusion. CR § 1-202’s predecessor, Art. 27, 

§ 38, was amended after this Court’s holding in Scarlett, 201 Md. at 320-21, 93 A.2d at 

757-58, which permitted a defendant’s sentence for conspiracy to exceed the punishment 

for the underlying crime. In amending Art. 27, § 38, the General Assembly would 

necessarily have been aware of Scarlett and purposely amended a statute to abrogate it.
- 29 -

Even if we perceived ambiguity in CR § 1-202’s language, and the legislative 

history were not dispositive, the result would be the same. Where a statute is ambiguous, 

and where the means of statutory interpretation fail to resolve the ambiguity, the rule of 

lenity compels a court to resolve the ambiguity in the defendant’s favor. As this Court 

explained in Oglesby v. State, 441 Md. 673, 681, 109 A.3d 1147, 1151-52 (2015):

The “rule of lenity” is not a rule in the usual sense, but an aid for 

dealing with ambiguity in a criminal statute. Under the rule of lenity, a court 

[that is] confronted with an otherwise unresolvable ambiguity in a criminal 

statute that allows for two possible interpretations of the statute will opt for 

the construction that favors the defendant. For a court [that is] construing a 

statute, the rule of lenity is not a means for determining—or defeating—

legislative intent. Rather, it is a tie-goes-to-the-runner device that the court 

may turn to when it despairs of fathoming how the General Assembly 

intended that the statute be applied in the particular circumstances. It is a 

tool of last resort, to be rarely deployed and applied only when all other tools 

of statutory construction fail to resolve an ambiguity. This follows from the 

fact that our goal in construing statutes is always to ascertain and carry out 

the legislative purpose of the statute and not to seek out an interpretation that 

necessarily favors one party or the other.

(Cleaned up).

The State relies on two cases for the proposition that CR § 1-202 makes a sentencing 

cap inapplicable to a sentence for conspiracy. The State brings to our attention that, in 

Johnson, 362 Md. at 530, 766 A.2d at 96, this Court stated that CR § 1-202’s predecessor’s 

“reference to the maximum sentence for the substantive or target offense means the basic 

maximum sentence[,] and does not include any enhanced penalty provisions.” (Citations 

omitted). And, in DeLeon v. State, 102 Md. App. 58, 71, 648 A.2d 1053, 1059 (1994), the 

Court of Special Appeals stated that a statute that was similar to CR § 1-202’s predecessor, 

concerning conspiracy to violate the controlled dangerous substances law, “contemplate[d]
- 30 -

the ordinary maximum available for all who perpetrate the target crime[,] and [did] not 

incorporate the enhanced penalty provisions [that were] available only for certain of those 

perpetrators.”

The State’s reasoning is faulty. Plainly, CR § 1-202 acts as a cap on sentencing

with respect to the punishment for a conspiracy offense exceeding the punishment for the 

underlying crime. It is accurate that, in Johnson, 362 Md. at 530, 766 A.2d at 96, and 

DeLeon, 102 Md. App. at 71, 648 A.2d at 1059, this Court and the Court of Special 

Appeals, respectively, indicated that CR § 1-202’s predecessor and a similar statute 

prevented a trial court from imposing an enhanced sentence for conspiracy. We do not 

agree with the State, however, that the observation in Johnson and DeLeon that CR § 1-

202 and a similar statute set a cap on sentences for conspiracy by making enhanced 

penalties inapplicable, means that, under CR § 1-202, a trial court is free to sentence a 

defendant for conspiracy in excess of the punishment for the underlying crime.

Based on the plain language of CR § 1-202 and its legislative history, we are 

convinced that the circuit court erred in declining to resentence Nichols for conspiracy to 

commit false imprisonment. We vacate Nichols’s fifty-year sentence for conspiracy to 

commit false imprisonment, and remand with directions to resentence Nichols to no more 

than thirty years of imprisonment for conspiracy to commit false imprisonment.

III. CJ § 12-702(b)

The Parties’ Contentions

The State contends that the Court of Special Appeals erred in concluding that the 

circuit court impermissibly increased Nichols’s aggregate sentence by imposing an 
- 31 -

aggregate sentence of eighty years of imprisonment for conspiracy to commit false 

imprisonment and false imprisonment. The State observes that Nichols’s original 

aggregate sentence was life imprisonment, with all but fifty years suspended, followed by 

five years of supervised probation. By contrast, after the resentencing proceeding, his 

aggregate sentence was eighty years of imprisonment, with no sentence of life 

imprisonment. The State points out that, if Nichols’s original aggregate sentence had 

remained intact, the circuit court could have imposed a sentence of life imprisonment for a 

violation of probation. The State argues that a sentence that includes a sentence of life 

imprisonment, regardless of how much, if any, of the sentence has been suspended, is more 

severe than a sentence that does not include a sentence of life imprisonment. 

Nichols responds that the circuit court impermissibly increased his sentence by 

imposing a new aggregate sentence that included thirty more unsuspended years of 

imprisonment than his original aggregate sentence. Nichols points out that, in the first 

appeal, the Court of Special Appeals vacated his conviction and life sentence for firstdegree felony murder and vacated his life sentence for false imprisonment. Nichols 

contends that the existence of the two original sentences of life imprisonment does not

justify an increase in the unsuspended portion of his sentence, as the circuit court lacked 

the authority to impose his two original sentences of life imprisonment in the first place. 

CJ § 12-702(b)

CJ § 12-702(b) states, in pertinent part:

If an appellate court remands a criminal case to a lower court in order that 

the lower court may pronounce the proper . . . sentence, . . . the lower court 

may impose any sentence authorized by law to be imposed as punishment for 
- 32 -

the offense. However, it may not impose a sentence more severe than the 

sentence previously imposed for the offense unless:

(1) The reasons for the increased sentence affirmatively appear;

(2) The reasons are based upon additional objective information 

concerning identifiable conduct on the part of the defendant; and

(3) The factual data upon which the increased sentence is based 

appears as part of the record.

In Twigg v. State, 447 Md. 1, 30, 133 A.3d 1125, 1142 (2016), this Court held that, 

for CJ § 12-702(b)’s purposes, a trial court has “impose[d] a sentence more severe than the 

sentence previously imposed” where the new aggregate sentence is higher than the original 

aggregate sentence. In Twigg, id. at 5, 133 A.3d at 1128, a trial court sentenced a defendant 

to: twenty years of imprisonment for second-degree rape; ten consecutive years of 

imprisonment for third-degree sexual offense; ten consecutive years of imprisonment for 

incest; and fifteen suspended years of imprisonment, and five years of probation, for child 

abuse. The defendant’s original aggregate sentence was forty years of imprisonment, with

five years of probation. See id. at 5, 133 A.3d at 1128. The Court of Special Appeals 

vacated the defendant’s sentences for second-degree rape, third-degree sexual offense, and 

incest, determining that, for sentencing purposes, the trial court should have merged those 

convictions with the conviction for child abuse. See id. at 9, 133 A.3d at 1130. The Court 

of Special Appeals also vacated the defendant’s sentence for, and remanded for 

resentencing as to, child abuse, explaining that the trial court was entitled to impose a new 

aggregate sentence. See id. at 9, 133 A.3d at 1130. The Court of Special Appeals 

determined that the trial court could resentence the defendant to the maximum sentence of 
- 33 -

fifteen years of imprisonment for child abuse, as, under that circumstance, the defendant’s 

new aggregate sentence would not exceed the original aggregate sentence of forty years of 

imprisonment. See id. at 9, 133 A.3d at 1130-31.

This Court held that, for sentencing purposes, the trial court needed to merge only 

the defendant’s conviction for second-degree rape with his conviction for child abuse; in 

other words, the Court of Special Appeals erred in holding that, for sentencing purposes, 

the trial court also needed to merge the defendant’s convictions for third-degree sexual 

offense and incest with his conviction for child abuse. See id. at 18, 133 A.3d at 1136. 

This Court concluded that the Court of Special Appeals acted within its authority, and did 

not violate the Due Process Clause or the prohibition on double jeopardy, by vacating the 

defendant’s sentence for child abuse and remanding for resentencing on all of the offenses 

of conviction. See id. at 19, 133 A.3d at 1136.

This Court rejected the defendant’s contention that CJ § 12-702(b) precluded the 

trial court from resentencing him for child abuse because any term of imprisonment would 

exceed his original entirely-suspended sentence for child abuse. See id. at 24, 133 A.3d at 

1139. This Court determined that, as used in CJ § 12-702(b), the word “offense” does not 

mean an individual crime for which a trial court sentences a defendant, and instead refers

to “the entirety of the sentencing package that takes into account each of the individual 

crimes of which the defendant was found guilty.” Id. at 26-27, 133 A.3d at 1141. This 

Court explained: “[A]fter an appellate court unwraps the [sentencing] package and removes 

one or more charges from its confines, the sentencing judge, herself, is in the best position 

to assess the effect of the withdrawal and to redefine the [sentencing] package’s size and 
- 34 -

shape (if, indeed, redefinition seems appropriate).” Id. at 28, 133 A.3d at 1141-42 (cleaned 

up). This Court concluded that the trial court could resentence the defendant to up to the 

maximum sentence of fifteen years of imprisonment for child abuse because that sentence, 

combined with his ten-year sentence for third-degree sexual offense and his ten-year 

sentence for incest, would make his new aggregate sentence thirty-five years of 

imprisonment, which would not exceed his original aggregate sentence of forty years of 

imprisonment. See id. at 30, 133 A.3d at 1142-43.

Analysis

Here, we conclude that, under CJ § 12-702(b), an aggregate sentence of a certain 

number of years of imprisonment is more severe than a sentence of life imprisonment, with 

all but a lower number of years suspended. Where a trial court imposes an aggregate 

sentence of a certain number of years of imprisonment, the defendant is essentially 

guaranteed to serve that term of imprisonment, barring a circumstance such as the grant of 

parole. By contrast, where a trial court imposes a sentence of life imprisonment, with all 

but a certain number of years suspended, it is impossible to know in advance whether the 

defendant will serve only that term of years, or whether the defendant will serve a life

sentence based on a potential violation of probation. If the defendant finishes the term of 

probation without violating any condition thereof, then the defendant will no longer be 

subject to a sentence of life imprisonment. And, even if the defendant violates a condition 

of probation, the defendant will not necessarily become subject to a sentence of life 

imprisonment. A trial court may not “impose any sentence that might have originally been 

imposed for the crime of which the probationer or defendant was convicted” unless the 
- 35 -

violation of a condition of probation is the defendant’s “fourth or subsequent technical 

violation or a violation that is not a technical violation[.]” Md. Code Ann., Crim. Proc. 

(2001, 2008 Repl. Vol., 2018 Supp.) (“CP”) § 6-223(d)(2)(ii). And, where the defendant 

commits such a violation of probation, it is within the trial court’s discretion whether to 

impose the full suspended portion of the sentence; CP § 6-223(d)(2)(ii) states that the trial 

court “may” do so, not that the trial court “shall” do so.5 In short, where a trial court 

imposes a sentence of life imprisonment, with all but a certain number of years suspended, 

the defendant will not necessarily serve a sentence of life imprisonment. Thus, it cannot 

be said that a sentence of life imprisonment, with all but a certain number of years 

suspended, is more severe than an aggregate sentence of a greater number of years of 

imprisonment.

In sum, we conclude that, under CJ § 12-702(b), Nichols’s original aggregate 

sentence—life imprisonment, with all but fifty years suspended, followed by five years of 

supervised probation—was less severe than his new eighty-year aggregate active sentence. 

Accordingly, the circuit court increased Nichols’s aggregate sentence by imposing a new 

aggregate sentence of eighty years of imprisonment where he had previously been subject 

to a sentence of life imprisonment, with all but fifty years suspended.

IV. Remand for Resentencing

The Parties’ Contentions

The State contends that, if we hold that Nichols’s sentence for conspiracy to commit 

 

5CP § 6-223(d)(2)(ii) was amended by the Justice Reinvestment Act, effective 

October 1, 2017, which was after the resentencing in this case.
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false imprisonment should have been no more than thirty years of imprisonment (which 

we do), we should vacate all of his sentences and remand for resentencing. Nichols has 

not taken a position on the scope of the remand. We agree with the State.

Remand in Twigg

In Twigg, 447 Md. at 5, 18-19, 30, 133 A.3d at 1128, 1136, 1142-43, where a trial 

court sentenced a defendant for second-degree rape, third-degree sexual offense, incest, 

and child abuse, this Court vacated the defendant’s sentences for second-degree rape and 

child abuse, and remanded for resentencing only as to child abuse. Significantly, this Court 

explained that the defendant’s sentences for third-degree sexual offense and incest did not 

need to be vacated, and stated:

The State does not seek to have vacated the sentences for incest and third[-

]degree sexual offense, for both of which [the defendant] received the 

maximum sentence. We do not intend this opinion to be read as 

precluding, in the appropriate case, vacation of all sentences [that were] 

originally imposed on those convictions and sentences [that were] left 

undisturbed on appeal, so as to provide the [trial] court maximum 

flexibility on remand to fashion a proper sentence that takes into account 

all of the relevant facts and circumstances. The only caveat, aside from 

the exception set forth in [CJ] § 12-702(b)(1)-(3), is that any new sentence, 

in the aggregate, cannot exceed the aggregate sentence [that was] imposed 

originally.

Id. at 30 n.14, 133 A.3d at 1143 n.14 (emphasis added).

Analysis

Here, we grant the State’s request to vacate all of Nichols’s sentences and remand 

to the circuit court for resentencing as to all of his three remaining convictions, which are 

for false imprisonment, conspiracy to commit false imprisonment, and extortion. As this 

Court stated in Twigg, 447 Md. at 30 n.14, 133 A.3d at 1143 n.14, where an appellate court 
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determines that at least one of a defendant’s sentences must be vacated, the appellate court 

may vacate all of the defendant’s sentences and remand for resentencing “to provide the 

[trial] court maximum flexibility on remand to fashion a proper sentence that takes into 

account all of the relevant facts and circumstances.” Under this case’s circumstances, we 

find it appropriate to exercise our discretion to vacate all of Nichols’s sentences. Nichols’s 

convictions and sentences arose from the same conduct involving the same victim. 

Vacating all sentences will permit the circuit court to consider all of the relevant facts and 

circumstances of the case. And, Nichols has not expressly asked that we refrain from doing 

so.

On remand, consistent with our holding that the sentence of life imprisonment with 

all but fifty years suspended is less severe than the sentence of eighty years of 

imprisonment, the circuit court must impose an aggregate sentence that does not exceed

fifty years of imprisonment. As the Court of Special Appeals held in the first appeal, the 

circuit court may sentence Nichols to up to thirty years of imprisonment for false 

imprisonment. See Nichols, 2015 WL 5944381, at *4-5. The circuit court may sentence 

Nichols to up to thirty years of imprisonment for conspiracy to commit false imprisonment. 

And, the circuit court may sentence Nichols up to ten years of imprisonment for extortion. 

See CR § 3-705(b). We set forth the following table identifying the offenses and maximum 

sentences:

Crime: Maximum Sentence:

False imprisonment Thirty years of imprisonment

Conspiracy to commit false imprisonment Thirty years of imprisonment

Extortion Ten years of imprisonment

Aggregate Sentence in This Case: Fifty years of imprisonment
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The circuit court may make Nichols’s new sentences either concurrent with or consecutive 

to each other. Under CJ § 12-702(b), however, Nichols’s new aggregate sentence cannot 

exceed fifty years of imprisonment, given that his original aggregate sentence was life 

imprisonment, with all but fifty years suspended, followed by five years of supervised 

probation.

JUDGMENT OF THE COURT OF SPECIAL 

APPEALS REVERSED. CASE REMANDED TO 

THAT COURT WITH INSTRUCTIONS TO 

VACATE ALL OF PETITIONER’S SENTENCES

AND REMAND TO THE CIRCUIT COURT FOR 

BALTIMORE CITY WITH INSTRUCTIONS TO 

RESENTENCE PETITIONER CONSISTENT 

WITH THIS OPINION. COSTS IN THIS COURT 

AND IN THE COURT OF SPECIAL APPEALS TO 

BE DIVIDED EVENLY BETWEEN THE 

PARTIES.