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 JOHNSO N

v. STATE OF MARYLAND

_________ _____ ________________________ Graeff, Nazarian, Zarnoch, Robert A. (Senior Judge, Specially Assigned),

JJ.

_____________ _________________________

Opinion by Nazarian, J.

_____________ _________________________ Filed: November 18, 2020By 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 explain s that decision

. I. BACKGROUND A. The Appeal After a bench trial in the Circuit Court f or 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 , h e 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 satisf y 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 trans action 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 th ird , 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 vic tim. 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. D uring 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 t he 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
grou nds

. 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 b riefs 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 decisi on 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 revi sed “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. S ee 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 extend ed to a case in which a count of conviction had been reversed. Re sp. 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 did5

the opinion conflict with any decisions of a super ior court. Id

. at 4. He then distinguished Twigg from this case in two respects. F irst , 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 ille gal 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,” i d

. 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 th e 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 su bstantial interest as precedent , ” Md. Rule 8

- 605.1(a) , a mendments to the original reported opinion might affect whether the opinion still meets that standard or whether the Court remains comfortable with th e opinion continuing to serve as binding precedent . The Court normally memorializes its decision on a motion either (a) in a new opinion that reflect s 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, reveal s the Court’s decision not to change the opinion.6

T his 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 grant ed 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 . T he Court adopted the panel’s recommendation at its March 20 20 Conference (held on March 31, 2020). T he 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 th e case to this Court , w ithout 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, insi de 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 o n 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 vot ed to grant the motion because the reversal of the involuntary

2 Cf

. L in

- 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’ incar ceration, with all but five years suspended, and , in her view, the trial cou rt 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 dec ision 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

c onsideration 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 th at is the recommendation that the C ourt 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 th e grounds that (a) the involuntary manslaughter conviction had been reversed, not merged , and a resentencing with the potential to increas e the sentence for other c onvictions could defeat

our reversal on that charge ; (b) the conviction for reckless endangerment, alt hough unchallenged by Mr. Johnson, likely would not have survived the merits opinion’s analysis of gross negligence and resentencing on that charg e would be inconsistent with the principles underlying our holding; and (c) the net sentence after t he reversa l 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 reach ing this issue because it had not been raised in the briefing and argument on the merits.
Th e 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 rep resent 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 s eeks

. 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 sole l y about sentencing. Mr. Twigg had been convicted of myriad sex offenses . M r. 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. H e contended that his many convictions a ll 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). Th at might not seem strange on its face, but the result9

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 result ing 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 t h ere were no

cases squarely holding that we had the authority to do so. B ut 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 t o 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 aft er 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, is10

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

. at 21. As a matter of holding, then, Twigg stands for the proposition that a ppellate courts have the discretionary authority to remand cases for resentencing in response to their decision that the trial court’s sentencing package has been disr upted 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, o ur Court’s o pinion in Twigg highlight ed and relie d 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 th e 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 t he Court of Appeals’ s discussion doesn’t repeat the limitation in so many words, it expressly endorse d 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 circumstan ces , 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 whether11

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

.