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Convicted robber gets 15 years added to term following dual appeals

Eugene E. Gardner would have been better off had he not appealed his armed-robbery conviction and the 25-year prison sentence he received at trial.

But Gardner appealed both his guilt and punishment in quick succession to two separate panels.

First, a sentence review panel made up of three Baltimore County Circuit Court judges increased the punishment to 45 years. The Court of Special Appeals subsequently reversed the conviction and ordered a new trial, at which Gardner was again found guilty but, this time, was sentenced to 40 years.

Gardner’s appellate attorney, Amy E. Brennan, argued that the 40-year sentence violated a Maryland law prohibiting punishments after retrials from being greater than those “previously imposed” on the defendant for the exact same offense. The maximum punishment Gardner could face was the 25-year sentence imposed after his first trial, added Brennan, an assistant Maryland public defender.

But Maryland’s top court held May 24 that Gardner’s “previously imposed” sentence was not the 25 years he received after the first trial but the 45-year punishment the review panel imposed.

Thus, the 40-year sentence after the second trial was valid because it was not greater than 45 years, the Court of Appeals unanimously held.

The court said the sentence increase from 25 to 40 years was the risk Gardner took in mounting the two concurrent appeals.

“Insofar as petitioner [Gardner] only faced a 25-year sentence at the time he noted his appeal to the Court of Special Appeals, the subsequent increase of that sentence to 45 years was due to petitioner’s decision to seek review by the panel,” Judge Mary Ellen Barbera wrote for the high court. “That petitioner pursued both avenues of relief with one favorable outcome and one unfavorable is of no consequence; petitioner has cited no legal authority suggesting such outcomes are in any way incompatible or that one negates the other, and we know of none.”

David Gray, a criminal procedure professor, said the court’s decision should make defense attorneys more deliberate in deciding to appeal adverse verdicts and punishments to both the Court of Special Appeals and a review panel, which has the authority to increase a trial judge’s sentence.

“If you are appealing from a judgment of conviction and also appealing your sentence, then you are well advised to think carefully about which appeal you want to be decided first because there’s a risk either way,” said Gray, who teaches at the University of Maryland Francis King Carey School of Law. “After this Court of Appeals decision, attorneys have to make a careful decision about which appeal they want to come first.”

Gray noted that had Gardner not appealed the original sentence to the review panel, his prison term after retrial would have been 25 years, at most. On the other hand, had the Court of Special Appeals not overturned the first verdict, Gardner’s sentence would have been 45 years instead of 40, Gray said.

“You don’t know what the right choice is ahead of time” in terms of whether and in which order to appeal, Gray said. “It’s a delicate dance.”

But Brian S. Kleinbord, of the Maryland attorney general’s office, saw the case differently.

“The defendant understands that the three-judge panel can increase his sentence,” said Kleinbord, who heads the office’s criminal appeals division. “The defendant was trying to have the best of both worlds by taking his chances with the three-judge panel but arguing that his operative sentence was the one handed down by the sentencing judge.”

At Gardner’s first trial in 2005, a Baltimore County Circuit Court jury found him guilty of armed robbery and using a handgun in committing a felony. The judge sentenced him to concurrent prison sentences of 25 years for the robbery and 5 years for the handgun offense.

Gardner appealed to both the sentence review panel and the Court of Special Appeals.

The panel voted unanimously to increase the sentence, saying Gardner “was a serious danger to the public and that it would be appropriate to modify his sentence.”

The panel left the armed-robbery sentence intact but increased the handgun penalty to 20 years’ incarceration. The panel said the sentences should be served consecutively, rather than concurrently, creating a 45-year prison term.

The Court of Special Appeals subsequently reversed Gardner’s conviction on procedural grounds and remanded for a new trial. He was convicted again of the same offenses. Gardner’s attorney argued for a 25-year sentence, the same as that imposed at the first trial. The prosecution pressed for the 45 years imposed by the review panel.

The judge settled on a 40-year sentence.

The Court of Special Appeals upheld the punishment, saying the review panel’s 45-year prison term was the “sentence previously imposed” and the one which could not be increased under Section 12-702(b) of the Maryland Courts & Judicial Proceedings Article.

The Court of Appeals agreed.

Brennan, Gardner’s attorney, did not return a telephone message seeking comment on the court’s decision.



Eugene E. Gardner v. Maryland, CA No. 11, Sept. Term 2010. Reported. Opinion by Barbera, J. Filed May 24, 2011.


Did the lower court err in holding that the sentence “previously imposed” was the punishment rendered by a sentence review panel and not the earlier one handed down by the trial judge?


No; the reviewing panel imposed the sentence, which under Maryland law cannot be increased upon conviction after a retrial.


Amy E. Brennan for petitioner; Susannah E. Prucka for respondent.

RecordFax # 11-0524-20