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introduction of Senate Bill 47 and its passing, the legislature lowered the maximum term of imprisonment to ten years for a second degree assault on a police officer. Tis change was instituted in the Second Amendment of the Tird Reading File Bill.

Tis is our first clue as to the inherent unfairness of the

maximum term of imprisonment for second degree assault. If one commits an assault on a police officer, the maximum term of imprisonment does not change! Te maximum amount that one can be fined monetarily increases and the crime is considered a felony, not a misdemeanor. However, the maximum term of imprisonment does not change. If a ten year maximum sentence is appropriate for a felony assault on a police officer, then surely it shouldn’t apply to second degree misdemeanor assaults. Tis is concrete statutory proof that a ten year maximum term of imprisonment for a “run of the mill” assault is unhelpful.

Maryland Case Law Regarding Second Degree Assault

One may say that the maximum term of imprisonment is

just that, a maximum, and not mandatory. One may argue that it is good to give flexibility to the “sentencer” to hand down a fair sentence based on the facts of the case.

36 Trial Reporter / Summer 2011 In Walker v. State, 417 Md. 589 (Md., 2011), the facts

of the case regarding the sentence that Ms. Walker received paint a telling picture. Ms. Walker was charged with second degree assault for an altercation that she had over money. She allegedly “repeatedly hit Tahlene Shipley and bit her on the cheek” when the two became involved in a disagreement. Te disagreement concerned money that [Walker] allegedly owed for construction work performed by Ms. Shipley's husband.” See Walker at 593. Ms. Walker received a 23 month sentence of imprisonment,

with all but 12 months suspended, and $1,000 fine. Tis common fact pattern and result shows that a wide array of sentences may be handed down for what can be generally characterized as minimal criminal behavior, when compared to the panoply of assault scenarios. While I recognize the multi- factor analysis necessary for each sentence handed down, this article posits that a more specific framework that should be set forth in the assault arena. A search of the Maryland docket finds no other criminal convictions for Mr. Walker and this author notes that the alleged victim in this case, Tahlene Shipley, was also charged with assault stemming from the same incident with Ms. Walker. Tis unfairness is no more apparent than in the case of

Nguyen v. State, 189 Md.App. 501 (2009) cert. granted 417 Md. 125 (Md. 2010). Te facts of that case are startling. Mr. Nguyen pled guilty to a fourth degree sexual offense and to second degree assault stemming from the same set of incidents. Te victim was an 11 year old girl who told authorities that the 38 year old Nguyen wrapped his arms around her and fondled her vaginal area on multiple occasions. Mr. Nguyen pled guilty to both fourth degree sexual

offense and second degree assault. Nguyen was sentenced to 365 days incarceration for the fourth degree sexual offense and received 18 months for the second-degree assault. Mr. Nguyen received “time served” and was placed on probation. I have attempted to find a case where my analysis can

remove all of the variables considered when a trial judge issues a sentence. Terefore, the background of the defendant, willingness to obtain treatment, criminal record, and contrition of the defendant are neutralized here because we are dealing with one defendant. Analyzing the Nguyen case enables us to see exactly what would be handed down to same defendant, with the same criminal background, stemming from the same set of facts, by the same sentencing judge. Tis result, while it makes no difference to Mr. Nguyen,

illuminates the mistake made by the legislature. He received less time for the fourth degree sexual offence than for the second degree assault. Mr. Nguyen received the maximum allowable punishment under the fourth degree sexual offense statute, which was only one


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