IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND¶
| STATE OF MARYLAND | |
| v. | Case No. C-24-CR-06-018547 |
| VICTOR AMAYA, Petitioner. | |
| (Petition for Resentencing Pursuant to Md. Code Ann., Crim. Proc. § 8-111) |
MEMORANDUM OPINION AND ORDER GRANTING PETITION FOR RESENTENCING¶
Before: The Honorable Maxine R. Holcomb, Associate Judge
Filed: March 4, 2031
I. Introduction¶
This matter comes before the Court on the Petition for Resentencing filed November 14, 2030, by Petitioner Victor Amaya, through counsel from the American Civil Liberties Union of Maryland, in cooperation with the Office of the Public Defender, Post-Conviction and Sentence Modification Division, pursuant to the Maryland Felony Murder Resentencing Act of 2029, codified at Md. Code Ann., Crim. Proc. § 8-111. The Petition asks this Court to vacate the Petitioner’s 2007 conviction for first-degree felony murder, to enter a conviction on the underlying felony of armed robbery, and to resentence the Petitioner to time served with a term of supervised release. The State, by Response filed January 22, 2031, declined to contest the Petition’s factual assertions and deferred to the Court’s findings under § 8-111. The Court held an evidentiary hearing on February 18, 2031, at which the Petitioner appeared in person under transport order from the Patuxent Institution Eligible Persons Program, accompanied by counsel; the State appeared by Assistant State’s Attorney Dwight P. Massey; and the Court received documentary evidence and the testimony of three witnesses.
For the reasons that follow, the Petition is GRANTED.
II. Procedural Background¶
On June 11, 2006, the Petitioner, then twenty years of age, was arrested in connection with an armed robbery of the Penn-North Liquors store at the 1900 block of Pennsylvania Avenue, Baltimore City. During the course of that robbery, a co-defendant, hereinafter referred to as the Co-Defendant, discharged a firearm and killed the store’s owner, Mr. Albert Hyun-Jin Park. The Petitioner did not enter the establishment, did not possess and did not discharge a firearm at any point before, during, or after the offense, and was, at the moment of the discharge, seated in the back of a vehicle parked outside the establishment, listening to music through earbud headphones. The Co-Defendant was separately tried, convicted of first-degree premeditated murder, and sentenced to life imprisonment without the possibility of parole, in proceedings not subject to the present Petition. A third individual present in the vehicle at the time of the offense, hereinafter referred to as the Third Co-Conspirator, was separately tried, convicted of armed robbery and conspiracy to commit armed robbery, and is presently serving a term of imprisonment unrelated to the present Petition.
The Petitioner was indicted on charges including first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and use of a firearm in the commission of a crime of violence. On April 3, 2007, following a four-day jury trial before the Honorable Reginald T. Marston (Ret.), the Petitioner was convicted on all counts. On June 28, 2007, Judge Marston imposed a sentence of life imprisonment with the possibility of parole on the felony murder count, with the sentences on the remaining counts to run concurrently. By order of August 14, 2007, the Petitioner was committed to the Patuxent Institution Eligible Persons Program pursuant to Md. Code Ann., Corr. Servs. § 4-101 et seq., where he has remained continuously confined for the twenty-three years, six months, and twenty-one days preceding the date of this Order. The Petitioner’s total custodial time, counting from the date of his initial arrest, exceeds twenty-four years and eight months.
The record of the original sentencing reflects circumstances that the Court regards as unusual to the disposition of a first-degree murder case and that bear upon the present Petition. At the Petitioner’s sentencing hearing of June 28, 2007, Judge Marston received allocution statements and written submissions from each of the Petitioner’s two co-defendants—the Co-Defendant and the Third Co-Conspirator—and victim impact statements from the family of the deceased, Mr. Albert Hyun-Jin Park. The co-defendants, each speaking through his own counsel and against his own apparent interest, asserted that the Petitioner had played no operational role in the offense, that he had not been informed of its planning, that he had been brought along for reasons collateral to its execution, and that, in the words of the Third Co-Conspirator’s allocution, the sentencing court would “punish a kid who didn’t know what we were doing.” The family of Mr. Park, through victim impact statements submitted pursuant to Md. Code Ann., Crim. Proc. § 11-403, opposed the Petitioner’s prosecution and the imposition of any sentence of imprisonment upon him, expressing the conviction that the Petitioner had not been responsible for Mr. Park’s death and that no purpose of justice would be served by the further loss of his liberty. These statements appear of record in the original sentencing transcript and in the file of the Clerk’s office. They did not alter the sentence imposed.
The Petitioner did not pursue direct appeal. Trial counsel having advised, in his written closing letter to the client dated July 15, 2007, that “the felony murder conviction is, under presently controlling Maryland law, not subject to meaningful appellate challenge,” no notice of appeal was filed. The present Petition is the Petitioner’s first post-conviction filing.
III. The Underlying Offense¶
The factual record before this Court—drawn from the trial transcript, the original police reports, the testimony of retired Detective Sergeant LeRoy Bramwell of the Baltimore City Police Department’s Homicide Unit, and the Petitioner’s own statement of August 7, 2006—establishes the following.
The robbery was planned by the Co-Defendant, who at the relevant time held authority over the Petitioner through a combination of debt the Petitioner owed and a prior history of physical assault by the Co-Defendant upon him. The Petitioner did not select the target, did not procure the firearm, was not consulted in the planning of the robbery, and was not assigned any operational role in its execution. He was, instead, brought along in the back seat of a vehicle the Co-Defendant and the Third Co-Conspirator had arrived in earlier that afternoon. Shortly before the Co-Defendant entered the store, the Petitioner, who had eaten nothing since the previous evening, asked the Co-Defendant for a bag of Nacho Cheese Doritos. The Co-Defendant told the Petitioner that he would get them inside and instructed the Petitioner to stay in the car. The Co-Defendant then exited the vehicle and walked to the store, the firearm concealed beneath his shirt. The Third Co-Conspirator remained at the vehicle and was, by his own subsequent sworn admission, “told to keep an eye on” the Petitioner—that is, to ensure that the Petitioner did not exit the vehicle or otherwise interfere with the operation. The vehicle’s air conditioning was left running, in deference to the heat of the afternoon and to the Petitioner, whose post-traumatic seizure disorder is known to be aggravated by temperature dysregulation.
The Petitioner was not informed that the firearm the Co-Defendant carried was loaded; the Co-Defendant had told him, in advance, that the weapon was “just for show.” Throughout the period the Co-Defendant was inside the store, the Petitioner sat in the back seat of the vehicle listening to music through earbud headphones at a volume that obscured the sound of the gunshot. He did not see, hear, or otherwise know of the killing of Mr. Park until officers of the Baltimore City Police Department arrived at the vehicle approximately four minutes after the discharge. When officers approached the vehicle and ordered the Petitioner out of the back seat, he was removed from the car in a state of acute distress, weeping audibly and calling out repeatedly, in a mixture of English and the childhood Spanish of his mother’s household, for his mother. He offered no resistance to the officers and remained in that condition through the booking process at the Western District station.
The testimony of the surviving store clerk, Ms. Imelda Songco, and of the customer present at the scene at the time of the discharge, Mr. Marvin Doss, both of whom testified at the original trial, placed the Petitioner in the back seat of the vehicle, visible to them through the storefront window, throughout the relevant period. Neither witness testified that the Petitioner ever entered the establishment, was ever in proximity to the firearm, or was ever in proximity to Mr. Park.
IV. The Statutory Framework¶
The Maryland Felony Murder Resentencing Act of 2029 was enacted by the General Assembly to provide a mechanism for the review of first-degree felony murder convictions imposed upon defendants whose participation in the underlying felony did not include the act of killing, the intent to kill, or major participation in the underlying felony undertaken with reckless indifference to human life. The statute, codified at Md. Code Ann., Crim. Proc. § 8-111, sets out the following requirements. A petitioner is eligible for relief if the Court finds, by a preponderance of the evidence:
(1) that the petitioner was not the actual killer;
(2) that the petitioner did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; and
(3) that the petitioner was not a major participant in the underlying felony or did not act with reckless indifference to human life.
Md. Code Ann., Crim. Proc. § 8-111(c). Where the Court finds these criteria satisfied, the statute directs the Court to vacate the felony murder conviction, to enter judgment on the underlying felony as if the petitioner had been originally convicted of that offense, and to resentence the petitioner accordingly. Id. § 8-111(e). In considering resentencing, the Court may consider any evidence of the petitioner’s rehabilitation, post-conviction conduct, and current circumstances. Id. § 8-111(f).
V. Findings of Fact¶
The Court, having reviewed the trial record, the documentary evidence introduced at the hearing of February 18, 2031, and the testimony of the witnesses produced thereat, makes the following findings of fact by a preponderance of the evidence.
A. The Petitioner Was Not the Actual Killer¶
The forensic record is unambiguous. The firearm recovered at the scene was tested for latent prints and for the presence of gunshot residue; the Petitioner’s prints were not present on the weapon, and gunshot residue was absent from his hands, sleeves, and outerwear. The Co-Defendant’s prints were present on the weapon, and his hands and clothing bore residue consistent with the discharge. The two eyewitnesses produced at the original trial—Ms. Songco and Mr. Doss—both testified that the Petitioner was in the back seat of a vehicle parked outside the store, visible to them through the storefront window, throughout the relevant period, and that the Petitioner never entered the establishment. The Petitioner could not, as a matter of physical fact, have been the actual killer. The State concedes this prong. The Court so finds.
B. The Petitioner Did Not Act with Intent to Kill¶
The record contains no evidence that the Petitioner shared the Co-Defendant’s intent to use lethal force, and substantial evidence that the Petitioner had no real-time awareness of the offense as it was unfolding. The Petitioner’s August 7, 2006 statement, given approximately nineteen hours after his arrest and outside the presence of counsel—a circumstance the Court notes but does not here independently review—describes a belief that the firearm “wasn’t going to be loaded for real,” and recounts that the Co-Defendant had told the Petitioner to wait in the car for the bag of Nacho Cheese Doritos the Co-Defendant promised to bring out from the store. The statement further recounts that the Petitioner did not hear the discharge of the firearm because of the volume of the music in his earbud headphones. No testimony at trial controverted this account. The Co-Defendant himself, in a sworn declaration filed in support of the present Petition on October 9, 2030, attests that he did not communicate his intent to discharge the firearm to the Petitioner and that he had, in fact, affirmatively told the Petitioner that the weapon was unloaded and “just there to scare them.” The Third Co-Conspirator, in a separate sworn declaration filed November 1, 2030, attests that the Petitioner “had no idea what was happening” and that the Third Co-Conspirator had been “told to keep an eye on [the Petitioner] so he didn’t wander out of the car.” The Court credits this evidence. The Court finds that the Petitioner did not act with the intent to kill.
C. The Petitioner Was Not a Major Participant Acting with Reckless Indifference to Human Life¶
In considering the third prong, the Court is guided by the factors set forth in Md. Code Ann., Crim. Proc. § 8-111(d), which direct inquiry into the petitioner’s role in planning the underlying felony; the petitioner’s role in procuring or supplying the lethal weapon; the petitioner’s awareness of the danger posed by his confederate; the petitioner’s presence at the killing; the petitioner’s actions during the offense; and the petitioner’s efforts to minimize the violence or render aid. Each factor weighs decisively against a finding of major participation in this case. The Petitioner did not plan the robbery and was not consulted in its planning. He did not procure or supply the firearm. He was told, falsely, that the firearm was unloaded and would not be used in earnest. He was not present at the killing in any meaningful physical sense: he was outside the establishment, seated in the back of a vehicle, with music playing through earbud headphones at a volume that obscured the sound of the gunshot. He took no action during the offense because he had no awareness that the offense was occurring. His cooperation at the moment of arrest—pulled from the back seat of the vehicle in tears and calling out for his mother—was inconsistent in every respect with the conduct of a major participant acting with reckless indifference to human life. The Court further finds, as material context for this factor, that the assignment of the Third Co-Conspirator to “keep an eye on” the Petitioner during the operation is itself evidence that the Petitioner was not understood by his own confederates as an operational participant in the underlying felony, but rather as a person whose presence had to be managed and contained. The Court finds that the Petitioner was not a major participant in the underlying felony, and that he did not act with reckless indifference to human life.
D. The Petitioner’s Cognitive Impairment at the Time of the Offense¶
Although not strictly required for relief under § 8-111, the Court finds it necessary to address the Petitioner’s neurological status at the time of the offense, which the trial record overlooked entirely and which substantially informs both the Court’s findings under subsection C and its resentencing analysis under subsection F below. The Court received into evidence the neuropsychological evaluation of the Petitioner conducted on January 9, 2031, by Dr. Aileen Mensah, Ph.D., A.B.P.P., a forensic neuropsychologist whose qualifications are not contested. Dr. Mensah’s evaluation, supplemented by the archived medical record from the University of Maryland Medical Center where the Petitioner underwent emergency craniotomy in March of 2003 following an assault that left him with severe traumatic brain injury, establishes that the Petitioner has lived since the age of sixteen with significant and permanent cognitive sequelae, including reduced processing speed, executive dysfunction, expressive aphasia, mild dysarthria, post-traumatic seizure disorder, and impairment in his capacity to evaluate consequences in real time.
These impairments were present at the time of the June 2006 offense. They were not raised by trial counsel, not evaluated by any defense or State expert, and not considered by the sentencing court. The Court records this not in support of any claim of incompetence—the Petitioner was found competent to stand trial in 2007 and this Court does not now disturb that finding—but as material context for the question of culpability and as a substantial mitigating circumstance properly considered upon resentencing.
E. Evidence of Rehabilitation¶
The record before the Court contains extensive evidence of the Petitioner’s conduct across twenty-three years and seven months of confinement at the Patuxent Institution Eligible Persons Program. The Court has reviewed the institutional file in its entirety. The Petitioner has accumulated no infractions for violence, no infractions for contraband, and no infractions for refusal to participate in programming. He has completed every component of the Eligible Persons Program’s clinical curriculum required by COMAR 12.12.05, including individual psychotherapy, group therapy, anger and impulse management, cognitive rehabilitation tailored to his traumatic brain injury sequelae, and the vocational programming available to him within the limits his neurological impairments allow. Letters of support were submitted by the Director of Patuxent Institution, Dr. Erin B. Shaffer, Psy.D.; by the Petitioner’s treating clinical psychologist, Dr. Patrice Owusu; by two unit officers; and by the Petitioner’s mother, Ms. Gladys Amaya, who has visited the Petitioner without interruption twice weekly for the duration of his confinement. The Patuxent Institutional Board of Review submitted a clinical recommendation in support of release pursuant to the Director’s authorization.
Each communication, in its own register, attests to a man whose participation in the Program has been exemplary, whose disposition is uniformly gentle, and whose readiness for release is not in serious question. The Court finds that the Petitioner has been rehabilitated to the extent that the concept retains coherence for a man whose offending was the function of cognitive injury and adolescent coercion rather than of any character defect requiring transformation. He is, by all credible accounts before the Court, the same gentle person he was before the system received him, worn down further by time and by the consequences time has imposed.
F. The Position of the Co-Defendants and the Family of the Deceased¶
The Court does not, in considering a petition under Md. Code Ann., Crim. Proc. § 8-111, require evidence of victim consent or co-defendant support to grant relief; the statute is principally concerned with the petitioner’s own role in the underlying offense. The Court notes the following nonetheless, because the present case is unusual in the degree to which every party other than the State has, from the moment of the original disposition, regarded the Petitioner’s confinement as a miscarriage of justice.
At the original sentencing of June 28, 2007, both of the Petitioner’s co-defendants made formal statements to the sentencing court asserting that the Petitioner had played no operational role in the offense and that he should not be imprisoned. In 2030, in connection with the present Petition, each co-defendant filed a sworn declaration reaffirming and elaborating upon those statements: the Co-Defendant’s declaration of October 9, 2030, addressed in detail in subsections B and C above; and the Third Co-Conspirator’s declaration of November 1, 2030, also addressed therein. Neither co-defendant has, at any point across the twenty-four years from arrest to the present, varied from the position that the Petitioner did not participate in the underlying felony in any operationally meaningful sense. Their consistency on this question is, the Court observes, particularly notable in light of the fact that neither has anything to gain from it; each remains under sentence of imprisonment on his own conviction.
At the original sentencing, the family of Mr. Albert Hyun-Jin Park submitted victim impact statements opposing the Petitioner’s prosecution and the imposition of any sentence of imprisonment upon him. In November of 2030, the family submitted a supplemental letter to the present Court, through counsel, reaffirming the position they took in 2007 and stating that nothing they have observed in the intervening years has altered it. The Court receives the family’s letter with the gravity it deserves and declines to recite from it at length. It is sufficient to record that the family of the deceased has, at every stage at which they have been heard, opposed the imprisonment of the Petitioner; that they oppose it still; and that the continuation of his confinement has, since 2007, run not only against the equities but against the express and consistent position of the persons whom the criminal-legal system most directly purports to serve in a prosecution of this kind.
The Court considers these statements not as a substitute for the legal analysis required by § 8-111 but as material context that bears upon the integrity of the original disposition and the propriety of correcting it now.
G. Resentencing Analysis¶
The statutory maximum for armed robbery under Md. Code Ann., Crim. Law § 3-403 is twenty years. The Petitioner’s custodial time at the date of this Order exceeds that maximum by more than four and one-half years. The Court is satisfied that any sentence this Court would impose for armed robbery upon a twenty-year-old first-time offender with substantial, unmitigated, and unaccommodated cognitive impairment—brought along by his confederates as a managed and contained presence rather than as a planning participant, and acting, in the limited sense that he acted at all, under the coercive influence of an older co-defendant—would not exceed, and would likely fall well below, the statutory maximum. The Petitioner’s confinement to date has substantially exceeded any defensible term of imprisonment for the offense of conviction. Additional incarceration is not warranted, is not in the interest of justice, and is not consistent with the purposes of Md. Code Ann., Crim. Proc. § 8-111. The appropriate disposition is resentencing to time served, with a term of supervised release imposed pursuant to § 8-111(g).
VI. Conclusions of Law¶
The Court concludes that the Petitioner has carried his burden under Md. Code Ann., Crim. Proc. § 8-111(c) by a preponderance of the evidence on each of the three statutory prongs. The Petitioner is therefore entitled to vacatur of his first-degree felony murder conviction and to entry of judgment on the underlying felony of armed robbery, with resentencing in accordance with § 8-111(e).
VII. Disposition¶
For the foregoing reasons, the Petition for Resentencing is GRANTED. The accompanying Order shall issue.
_______________________________________ THE HONORABLE MAXINE R. HOLCOMB Associate Judge Circuit Court for Baltimore City, Maryland
Filed: March 4, 2031
ORDER¶
| STATE OF MARYLAND | |
| v. | Case No. C-24-CR-06-018547 |
| VICTOR AMAYA, Petitioner. |
UPON CONSIDERATION of the Petition for Resentencing filed November 14, 2030, the State’s Response filed January 22, 2031, the documentary record, the testimony received at the evidentiary hearing of February 18, 2031, and the accompanying Memorandum Opinion filed contemporaneously herewith, it is this 4th day of March, in the year Two Thousand Thirty-One, by the Circuit Court for Baltimore City, Maryland, hereby
ORDERED, that the Petition for Resentencing filed by Petitioner Victor Amaya pursuant to Md. Code Ann., Crim. Proc. § 8-111 is GRANTED; and it is further
ORDERED, that the Petitioner’s conviction for First-Degree Felony Murder in Case No. C-24-CR-06-018547, entered by judgment of the Honorable Reginald T. Marston on June 28, 2007, is hereby VACATED; and it is further
ORDERED, that judgment is hereby ENTERED against the Petitioner on Count Two of the original indictment, ARMED ROBBERY in violation of Md. Code Ann., Crim. Law § 3-403, on the basis of the original jury verdict of April 3, 2007, which conviction the Petitioner has not contested in the present proceedings; and it is further
ORDERED, that the Petitioner is hereby RESENTENCED on the conviction for Armed Robbery to a term of TWENTY (20) YEARS of imprisonment, the entirety of which shall be DEEMED SATISFIED BY TIME SERVED as of the date of this Order; and it is further
ORDERED, that the order of August 14, 2007, committing the Petitioner to the Patuxent Institution Eligible Persons Program pursuant to Md. Code Ann., Corr. Servs. § 4-101 et seq., is hereby VACATED, the underlying sentence to which that commitment was attached having been resentenced and satisfied; and it is further
ORDERED, that the Maryland Department of Public Safety and Correctional Services, through Patuxent Institution, shall RELEASE THE PETITIONER FROM CUSTODY not later than thirty (30) days from the date of this Order, in accordance with the Release Plan attached hereto as Exhibit A and approved by the Court this date; and it is further
ORDERED, that the Petitioner shall, upon release, be subject to a term of THIRTY-SIX (36) MONTHS OF SUPERVISED RELEASE, administered by the Maryland Division of Parole and Probation, Prince George’s County District Office, upon the following conditions:
(a) The Petitioner shall reside at the residence of his mother, Ms. Gladys Amaya, the address of which is on file with the Court and the Division of Parole and Probation, in Prince George’s County, Maryland;
(b) The Petitioner shall report as directed to his assigned Parole and Probation Agent;
(c) The Petitioner shall maintain continuity of medical care for his post-traumatic seizure disorder and the sequelae of his traumatic brain injury, through a treating physician of his choosing, with documentation of compliance submitted to his Parole and Probation Agent on a quarterly basis;
(d) The Petitioner shall not possess any firearm or other deadly weapon, in conformity with Md. Code Ann., Pub. Safety § 5-133;
(e) The Petitioner shall have no contact, direct or indirect, with the Co-Defendant or the Third Co-Conspirator in the underlying offense, with any member of the family of the deceased Mr. Albert Hyun-Jin Park, or with any witness who testified at the original trial;
(f) The Petitioner shall refrain from the commission of any new criminal offense; and
(g) Such additional conditions as the Division of Parole and Probation may impose consistent with the purposes of Md. Code Ann., Crim. Proc. § 8-111(g);
and it is further
ORDERED, that, upon the satisfactory completion of the term of supervised release imposed herein, the Petitioner shall be discharged from the jurisdiction of this Court without further order; and it is further
ORDERED, that the Clerk of the Court shall transmit, within three (3) business days of the entry of this Order on the docket, a certified copy of this Order, together with a certified copy of the accompanying Memorandum Opinion, to:
(i) the Patuxent Institution, attention of the Director;
(ii) the Maryland Department of Public Safety and Correctional Services, Records Division;
(iii) the Maryland Division of Parole and Probation, Prince George’s County District Office;
(iv) the Office of the State’s Attorney for Baltimore City;
(v) the American Civil Liberties Union of Maryland and the Office of the Public Defender, Post-Conviction and Sentence Modification Division;
(vi) the Petitioner, by counsel; and
(vii) the Maryland Judicial Information Systems, for entry into the Case Search public record consistent with Md. Rule 16-901 et seq.;
and it is further
ORDERED, that nothing in this Order shall be construed to disturb the conviction or sentence of any other person convicted in connection with the offense of June 11, 2006; and it is further
ORDERED, that this Order is effective immediately upon entry on the docket of this Court.
_______________________________________ THE HONORABLE MAXINE R. HOLCOMB Associate Judge Circuit Court for Baltimore City, Maryland
Entered on the docket: March 4, 2031, at 3:42 p.m.
True copy attest:
_______________________________________ Lourdes M. Cárdenas Clerk of the Circuit Court for Baltimore City
‘’See also: Dr. Aileen Mensah’s neuropsychological evaluation, the January 2031 report referenced in Section V(D) of this Order; and the letter from the Park family.’‘