Nathan Joseph Johnson v. State of Maryland, No. 109, September Term, 2018. Opinion 

by Nazarian, J.

REMAND FROM COURT OF APPEALS — MOTION TO RECONSIDER OR

REMAND FOR RESENTENCING

By a 2-1 vote, the Court declined to exercise its discretion to remand this case for 

resentencing and, as a result, denied the State of Maryland’s motion to reconsider. 
Circuit Court for Queen Anne’s County

Case No. 17-CR-17-290

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 109

September Term, 2018

ON MOTION FOR RECONSIDERATION

______________________________________

NATHAN JOSEPH JOHNSON

v.

STATE OF MARYLAND

______________________________________

Graeff,

Nazarian,

Zarnoch, Robert A. 

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Nazarian, J.

______________________________________

Filed: November 18, 2020
By Order dated November 10, 2020, the Court of Appeals remanded this case to 

this Court, without affirming or reversing, in order that we might “clarify the basis of [our] 

decision on April 14, 2020 denying Petitioner’s motion for reconsideration.” This Opinion 

explains that decision.

I. BACKGROUND

A. The Appeal

After a bench trial in the Circuit Court for Queen Anne’s County, Nathan Joseph 

Johnson was convicted of involuntary manslaughter, reckless endangerment, possession 

with intent to distribute heroin and fentanyl, and possession of heroin and fentanyl. The 

circuit court sentenced him to ten years of incarceration (all but seven years suspended) for 

involuntary manslaughter and a consecutive twenty years (all but five suspended) for 

distribution. The court also stated at sentencing that it would “generally suspend and [run] 

concurrently” sentences for reckless endangerment and possession with intent to distribute 

fentanyl. 

On appeal, Mr. Johnson raised four contentions. First, relying on State v. Thomas, 

464 Md. 133 (2019), he argued that the evidence was insufficient as a matter of law to 

sustain his conviction for involuntary manslaughter under a theory of gross negligence. 

Second, he argued that the (circumstantial) evidence was not sufficient to support his 

conviction for distribution of a controlled substance. Third, he contended that the circuit 

court erred in admitting text messages from a cell phone. And fourth, he argued that the 

trial court had erred in imposing separate sentences for distribution and involuntary 

manslaughter. The State opposed these contentions. 
2

B. The Merits Opinion

We held oral argument on December 3, 2019 and issued a reported opinion on 

January 31, 2020. Johnson v. State, 245 Md. App. 46 (2020). We won’t recount the entire 

opinion here, but a few points bear on the motion for reconsideration and our decision to 

deny it.

First, this was the first overdose-related involuntary manslaughter case to reach our 

Court after the Court of Appeals issued Thomas, 464 Md. at 169–72, and the first 

opportunity to identify situations that would or wouldn’t satisfy Thomas’s new standard.1

After analyzing the facts of this case against the Thomas factors, we concluded that 

“[i]nterpreting Thomas to assume knowledge of a drug’s contents with its riskiness on the 

part of all low-level, infrequent dealers would lead to the per se rule Thomas warned 

against[,]” and that “if this drug sale qualifies as grossly negligent, we struggle to imagine 

a transaction that wouldn’t.” Johnson, 245 Md. App. at 64. Accordingly, we held that the 

evidence was insufficient to support a finding that he had acted with gross negligence, and 

we reversed the conviction for involuntary manslaughter. Id. at 69.

Second and third, we agreed with the State that the evidence was sufficient to 

support the conviction for possession with intent to distribute, id. at 65–68, and that the 

trial court had not erred in admitting the available text messages between Mr. Johnson and 

the victim. Id. at 68–69.

1 Compare McCauley v. State, 245 Md. App. 562 (2020) (affirming gross negligence 

involuntary manslaughter conviction where defendant was a habitual dealer who knew the 

contents of the drugs she sold and warned buyers about them).
3

As a result, we affirmed the judgments except the conviction for involuntary 

manslaughter. During the recent argument in the Court of Appeals, there were several 

references to the involuntary manslaughter conviction being vacated. It wasn’t. The

judgment of conviction was reversed, as we stated in the order at the conclusion of our 

opinion:

JUDGMENT OF THE CIRCUIT COURT 

QUEEN ANNE’S COUNTY FOR 

INVOLUNTARY MANSLAUGHTER 

COUNT REVERSED. JUDGMENTS 

AFFIRMED IN ALL OTHER RESPECTS. 

APPELLANT AND QUEEN ANNE’S 

COUNTY TO SPLIT COSTS.

Id. at 69. Indeed, our holding that the evidence was insufficient to support a finding of 

gross negligence would have precluded re-trial on that charge had we reversed on other 

grounds.

Finally, our resolution of the involuntary manslaughter conviction left no occasion 

for us to reach the one sentencing issue that was raised in the appeal, i.e., Mr. Johnson’s 

contention that the sentences for involuntary manslaughter or distribution should merge. 

Id. At the very end of its brief, the State argued that if we were to determine that Mr. 

Johnson’s sentences for involuntary manslaughter and distribution merged, we should 

remand the case for resentencing under the principles enunciated in Twigg v. State, 447 

Md. 1 (2016). Neither side raised, in their briefs or at argument, any issues regarding 

resentencing, or not, in the event a conviction was reversed.
4

C. The Motion To Reconsider

On February 18, 2020, the State filed a timely Motion to Reconsider and Remand 

for Resentencing on Reckless Endangerment and Possession [with Intent to] Distribute 

Heroin and Fentanyl. See Md. Rule 8-605(a). The State’s motion did not take issue with 

any aspect of the analysis or any conclusion in our merits opinion, nor did it seek any relief 

or revision relating to our decision to reverse Mr. Johnson’s conviction for involuntary 

manslaughter. Instead, citing Twigg and Maryland Rules 8-604(d)(1) and (d)(2), the State 

argued that the interests of justice would be served by remanding the case for resentencing 

in light of the revised “sentencing package” resulting from the reversal of the involuntary 

manslaughter conviction, Mot. Recons. at 2–5, and that “the sentencing court should be 

given an opportunity to ‘redefine’ the shape and size of [Mr.] Johnson’s sentencing 

package so it continues to reflect the sentencing judge’s intent.” Id. at 6. The State argued 

that “[t]he fact that [Mr.] Johnson’s case involves reversal based on sufficiency grounds 

rather than a merger issue does not change the analysis []” under Twigg, id., but by 

reversing Mr. Johnson’s conviction this Court had unwrapped the sentencing package and 

that “the sentencing court is entitled to an opportunity to reshape the package so that it 

continues to reflect the court’s intent.” Id. at 7 (emphasis added).

We asked Mr. Johnson to respond to the State’s motion. See Md. Rule 8-605(a). He 

countered that the State had failed to raise any of the grounds for reconsideration set forth 

in Maryland Rule 8-605(b) and that Twigg had never been extended to a case in which a 

count of conviction had been reversed. Resp. at 1. He contended that the merits opinion 

had not left any issues unaddressed or ruled on any issues the parties hadn’t briefed nor did 
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the opinion conflict with any decisions of a superior court. Id. at 4. He then distinguished 

Twigg from this case in two respects. First, he argued that Twigg involved a merger of 

sentences for convictions left intact and that every case relying on Twigg and remanding 

for resentencing had involved an illegal sentence or sentencing defect, not a reversal. Id. at 

5–7. Second, “even if Twigg could be extended as the State contends to a case in which a 

count of conviction is reversed, that decision would only grant the discretion to remand, 

not require it,” id. at 7, and he argued the circumstances of this case advise against us 

exercising our discretion to remand for resentencing in this case. Id. at 7–9. 

D. Our Decision On The Motion

Because the merits opinion was a reported opinion, a motion for reconsideration of 

that opinion must be submitted to the Court as a whole. The panel, led by the authoring 

judge, prepares a recommendation for the Court and presents that recommendation at the 

next monthly Conference. In a typical motion to reconsider a reported opinion, the Court 

is asked to consider changing some aspect(s) of the opinion itself; because, in deciding to 

report the case, the Court had decided that the issued opinion was “of substantial interest 

as precedent,” Md. Rule 8-605.1(a), amendments to the original reported opinion might 

affect whether the opinion still meets that standard or whether the Court remains 

comfortable with the opinion continuing to serve as binding precedent. The Court normally 

memorializes its decision on a motion either (a) in a new opinion that reflects the changes 

the Court decided to make in response to the motion or (b) in an order denying the motion

which, even in the absence of any explanation, reveals the Court’s decision not to change 

the opinion.
6

This motion did not challenge the merits opinion’s analysis, conclusions, or 

language. It asked us to grant a form of relief that had not been addressed in the merits 

opinion, and the Court could have granted or denied the motion without making any 

changes. All the same, the panel deliberated and decided (on a 2-1 vote that we will explain 

further below) to recommend that the Court deny the motion. The Court adopted the panel’s

recommendation at its March 2020 Conference (held on March 31, 2020). The motion was 

denied in an order that described only the disposition of the motion, not the underlying 

reasoning. 

The State filed a petition for writ of certiorari in the Court of Appeals, and the 

Court granted that petition on June 5, 2020. The Court held oral argument on November 5, 

2020, and, on November 10, 2020, remanded the case to this Court, without affirming or 

reversing, in order that we might “clarify the basis of [our] decision on April 14, 2020 

denying Petitioner’s motion for reconsideration.” 

II. DISCUSSION

The circumstances of this motion offer a rare retrospective glimpse into the 

metaphorical room where this decision happened (or, in this instance, inside the third floor 

of the Robert C. Murphy Courts of Appeal Building).

2 We described above the process of 

deciding the State’s motion to reconsider, and on the merits, the panel split by a 2-1 vote. 

Judges Nazarian and Zarnoch voted to deny the motion, for reasons we explain below. 

Judge Graeff voted to grant the motion because the reversal of the involuntary 

2 Cf. Lin-Manuel Miranda, The Room Where It Happens, Hamilton, Act 2 (2015).
7

manslaughter conviction reduced Mr. Johnson’s conviction from thirty years’ 

incarceration, with all but twelve years suspended, to twenty years’ incarceration, with all 

but five years suspended, and, in her view, the trial court should have the ability to 

reconsider its sentencing package in light of our holding.

Two considerations animated the panel’s discussions and recommendation and the 

ultimate decision to deny the State’s motion to reconsider. First, the relief the State sought 

in its motion—a remand for resentencing after reversal of Mr. Johnson’s conviction for 

involuntary manslaughter—had not been sought until after we issued our opinion. This 

consideration proved dispositive: Judges Nazarian and Zarnoch shared this view, and the 

2-1 vote on this ground drove the panel’s recommendation to the Court that the motion be 

denied, and that is the recommendation that the Court adopted.

The second consideration was the application of Maryland Rule 8-604(d)(1),

3

and 

the principles articulated in Twigg vel non to the facts and circumstances of this case. Judge 

Nazarian voted to deny the motion for this reason as well, and specifically on the grounds 

that (a) the involuntary manslaughter conviction had been reversed, not merged, and a 

resentencing with the potential to increase the sentence for other convictions could defeat 

our reversal on that charge; (b) the conviction for reckless endangerment, although

unchallenged by Mr. Johnson, likely would not have survived the merits opinion’s analysis 

of gross negligence and resentencing on that charge would be inconsistent with the 

principles underlying our holding; and (c) the net sentence after the reversal of the 

3 Because, unlike Twigg, our opinion in this case did not reverse a judgment for error in a 

sentence or the sentencing proceeding, Rule 8-604(d)(2) provides no basis for a remand.
8

involuntary manslaughter charge was not so disparate from the trial court’s sentencing 

intentions to warrant a remand in the context of this sentencing package. Judge Zarnoch

voted against reaching this issue because it had not been raised in the briefing and argument 

on the merits.

The preceding two paragraphs provide a superficial answer to the Court of 

Appeals’s question and solve the key mystery with which the Court of Appeals and the 

parties grappled at oral argument. But a mere statement of reasons leaves out the most 

important element of the panel majority’s decision: our discretion as a Court to make it. 

No case, statute, or other authority compelled the outcome of this motion. Our differences 

as a panel in deliberating on this decision represent differences only as to how we should 

exercise our discretion in addressing the State’s motion, and specifically whether this is an 

appropriate case to grant the discretionary relief the State seeks. To the extent, then, that 

the State contends that Twigg (or any other authority) requires an appellate court to remand 

under these (or any) circumstances, we disagree.

Twigg itself proves the point. Unlike this case, Twigg was solely about sentencing. 

Mr. Twigg had been convicted of myriad sex offenses. Mr. Twigg didn’t challenge any of 

his convictions on the merits—not only were none reversed, they all remained intact. The 

only question raised initially in Twigg was the extent to which the various sentences 

merged. He contended that his many convictions all merged for sentencing purposes into 

his conviction for sexual child abuse and, with one difference, both this Court and the Court 

of Appeals agreed. Twigg v. State, 219 Md. App. 259, 266–80 (2014), aff’d in part, rev’d 

in part, 447 Md. 1, 10–19 (2016). That might not seem strange on its face, but the result 
9

was extreme and anomalous in that particular case: the trial court had imposed consecutive 

sentences totaling forty years of active incarceration, yet only a fifteen-year suspended 

sentence for sexual child abuse. Twigg, 219 Md. App. at 280. 

The sentence resulting from the mergers was obviously out of sync with what the 

trial court had sought to impose, but there was enough uncertainty about our authority to 

remand for resentencing on the remaining charge that we ordered supplemental briefing on 

(a) whether any authority permitted or precluded us from doing so and (b) any limitations 

on the sentence a circuit court could impose on remand. Id. at 280–82. And there were no 

cases squarely holding that we had the authority to do so. But based on our analysis of 

Jones v. State, 414 Md. 686 (2010), “we conclude[d] that the Court of Appeals recognized 

our discretionary authority, in cases where the trial court fails to properly merge the 

convictions for sentencing purposes, to vacate the sentences on all of the convictions 

involved in the merger and to remand the case to the trial court for the imposition of a new 

sentence on the conviction remaining for a sentence after merger has been accomplished.” 

Twigg, 219 Md. App. at 284–85 (emphasis added). 

The Court of Appeals disagreed with us on the extent to which Mr. Twigg’s 

sentences merged—it vacated the sentence for second-degree rape—but otherwise 

affirmed. Twigg, 447 Md. at 18–19. As we had, the Court of Appeals “recognized, with at 

least tacit approval, the propriety of resentencing on a greater offense upon merger for 

sentencing purposes of a lesser included offense.” Id. at 20 (discussing Jones). The Court 

also noted that Mr. Twigg “offer[ed] no authority for the proposition that remand for 

resentencing, as was done in Jones and as the Court of Appeals did in the present case, is 
10

unauthorized by Maryland statute, our rules, or our case law, and we are not aware of any.” 

Id. at 21. 

As a matter of holding, then, Twigg stands for the proposition that appellate courts 

have the discretionary authority to remand cases for resentencing in response to their 

decision that the trial court’s sentencing package has been disrupted by mergers the trial 

court didn’t anticipate or consider. Neither Twigg opinion remotely suggests that 

resentencing is compulsory or that the State or the trial court is entitled to another bite at 

the sentencing apple. To the contrary, our Court’s opinion in Twigg highlighted and relied

on the extreme result of the merger decisions in that particular case—we qualified the first 

holding by saying that “under the circumstances of the instant case, this Court has the 

discretionary authority to remand the case to the trial court for the purpose of imposing a 

new sentence on appellant for his sexual child abuse conviction . . . .” Id. at 282. And 

although the Court of Appeals’s discussion doesn’t repeat the limitation in so many words, 

it expressly endorsed the remand “as was done in Jones and as the Court of Special Appeals 

did in the present case,” Twigg, 447 Md. at 21, which comes pretty close.

As a matter of principle, nothing in Twigg appears to preclude an appellate court 

from ordering a Twigg remand in a case where the sentencing package was disturbed by a 

decision to reverse a conviction. But by the same token, Twigg can’t reasonably be read to 

compel a remand under these circumstances, especially if a remand is discretionary in a 

merger case such as Twigg. The authority to order a remand for resentencing lies in the 

discretion of the appellate court that reviewed the conviction and decided to reverse it. And 

in this case, the three members of the panel reached different conclusions about whether 
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the Court should exercise its discretion to order a remand. There is no debate among us 

about whether we could, only whether this is an appropriate case to exercise that discretion.