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Criminal Law

degree assault, our statute covers any unpermitted touching, regardless of injury, but still retains a 10 year maximum sentence. Te error here appears to be that the legislature retained the higher term of imprisonment, even though it codified a very different definition of assault that what had been on the books. As a result, cases like Hickman v. State, 193 Md. App.

238 (Md. App. 2010) have come down in which the courts continue to grapple with the codification. Here, Hickman was charged with the common law offense of affray, involuntary manslaughter and second degree assault. Te defense team moved to dismiss the common law charge of affray, because they argued, when the legislature codified assault, they codified all manner of assault, including affray. Logically, the defendant asserted, because affray was not provided for specifically by stature, it was subsumed by the general assault charge. Despite the defense attorney’s argument, the court found

that under the common law, affray is a distinct and separate crime from assault, although both crimes share many of the same elements. Te court focused on the fact that the victims of each crime are separate and distinct. With assault, one harms an individual, while an affray is an offense against the public and a disruption of peace. See Hickman at 251.Hickman is an example of how our codification of assault, regarding sentencing and otherwise, is still in need of additional clarification.

Impact of the Maryland Sentencing Guidelines

Te Maryland Sentencing Guidelines Manual provides in

the preface to the May 1, 2010 ed. (with November 1, 2010 and December 20, 2010 updates) that “the guidelines are mandatory. Guidelines compliment rather than replace the judicial decision- making process and the proper exercise of judicial discretion.” One feature of the guidelines is to place an accurate

“Offense Score” pertaining to the nature of the crime. Obviously, aggravating factors are considered when one uses the guidelines to assign score to the “offense” committed. Te way the guidelines work, the higher the score, the higher the sentence range, depending on the “Offender Score.” See Sentencing Matrix for Offenses Against Persons. Te offender score takes into account criminal background, among other things. Te guidelines place the baseline offense of second degree assault in what is characterized as a Seriousness Category of “V.” When determining an Offense Score, a defendant guilty of second degree assault gets one point, simply for the offense committed. A defendant convicted of a fourth degree sexual offense, falls into the Seriousness Category of “VII.” A fourth degree sexual offense is exactly two standard deviations lower that a second degree assault charge, yet the guidelines assign that individual offense the same one point for the conviction. “VII” is the least serious category that exists, based on the guidelines.

Trial Reporter / Summer 2011 39 Tis means that a non-sexual second degree assault of

another person is treated in the exact same manner as that of a fourth degree sexual offense. Yet, the maximum statutory sentence for one crime is ten years in jail and the maximum statutory sentence for the other crime is one year in jail. If one were to survey 100 people on the street, it is likely that most if not all would say the fourth degree sexual offense should carry a higher maximum sentence than second degree assault. But although the two crimes are treated the same in determining an “offense score,” just the opposite is true. According to the to Maryland Sentencing Guidelines, if one

were convicted of a fourth degree sexual offense, with no injury to the victim, no weapon present and no special vulnerability of the victim, one would have an “Offense Score” of 1. When that offense score is plugged into the Sentencing Matrix For Offenses Against Persons (see attached), an Offender Score of 4 (moderate but not severe) would place that defendant in the range of receiving a 3 month to 18 month sentence. However, the statutory maximum would actually come into play on behalf of the defendant and limit the time to a maximum of one year imprisonment. Clearly, the statutory maximum for a fourth degree sexual offense is illogical and may need to be modified upward due to the problematic application of the Maryland Sentencing Guidelines, as illustrated.

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