Holly v. State

Aaron Dwayne Holly v. State of Maryland, No. 1720, Sept. Term 2017. Opinion filed on
June 26, 2019, by Berger, J.

CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE -
JUVENILE OFFENDERS - LIFE SENTENCES - UNITED STATES CONSTITUTION

The Eighth Amendment to the United States Constitution does not form the foundation for
the right to state-furnished counsel at parole hearings, public funds for experts, or judicial
review of parole decisions for juvenile homicide offenders sentenced to life in prison with
parole. Assuming arguendo that there is a Fourteenth Amendment Due Process liberty
interest in parole for juvenile homicide offenders, due process is satisfied when an inmate
is given an opportunity to be heard and a statement of the reasons for the denial. The laws
governing parole in Maryland provide far greater procedural protections than those
required by the Fourteenth Amendment.

CRIMINAL PROCEDURE - CONSTITUTIONAL LAW - SENTENCING - PAROLE -
JUVENILE OFFENDERS - LIFE SENTENCES - MARYLAND DECLARATION OF
RIGHTS

Articles 24 and 25 of the Maryland Declaration of Rights do not form the foundation for
the right to state-furnished counsel at parole hearings, public funds for experts, or judicial
review of parole decisions for juvenile homicide offenders sentenced to life in prison with
parole. Article 25 encompasses the same protections as the Eighth Amendment and does
not provide any broader protections than those guaranteed under the United States
Constitution. The right to counsel under Article 24 is triggered by individuals facing the
risk of incarceration, not individuals already convicted of a crime and sentenced to a period
of incarceration.
Circuit Court for Baltimore County
Case No. 03-K-02-2636
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1720

September Term, 2017
______________________________________

AARON DWAYNE HOLLY

v.

STATE OF MARYLAND
______________________________________

Berger,
Arthur,
Beachley,

JJ.
______________________________________

Opinion by Berger, J.
______________________________________

Filed: June 26, 2019
.

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-06-26 14:59-04:00

Suzanne C. Johnson, Clerk
In 2004, following a jury trial in the Circuit Court for Baltimore County, Aaron

Dwayne Holly (“Holly”) was convicted of first-degree premeditated murder, first-degree

felony murder, and use of a handgun in the commission of a crime of violence. His

convictions stem from the murder of Tanya Jones-Spence on June 7, 2002. Holly was

sentenced to life imprisonment without parole, and his convictions were affirmed by this

Court on direct appeal. Holly v. State, No. 2283, Sept. Term 2004 (unreported opinion

filed July 30, 2007). Holly was seventeen at the time of the murder.

Following the decision of the United States Supreme Court in Miller v. Alabama,

567 U.S. 460 (2012), Holly filed a motion to correct what he alleged to be an illegal

sentence on March 4, 2015. In Miller, the United States Supreme Court held that

“mandatory life without parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at

465. In his motion, Holly asserted that his sentence was unconstitutional because the

sentencing court had not considered his youth prior to sentencing him to life without parole.

The circuit court summarily denied Holly’s motion on April 15, 2015 without a hearing or

explanation.

Holly noted an appeal. While Holly’s appeal was pending, the Supreme Court

issued its opinion in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016). In

Montgomery, the Supreme Court held that Miller applies retroactively. Before this Court,

the State agreed that Holly’s life without parole sentence should be vacated. We reversed

the circuit court and remanded the case for resentencing. Holly v. State, No. 408, Sept.
Term 2015 (unreported opinion filed June 28, 2016).1 On remand, Holly was sentenced to

life imprisonment with parole.

Holly again appealed to this Court, arguing that his sentence of life with parole is

unconstitutional. For the reasons explained herein, we shall affirm.

DISCUSSION

In this appeal, Holly asserts that his life sentence with parole is unconstitutional

because it does not afford him a meaningful opportunity for release. Holly asserts that

there is no meaningful opportunity for him to demonstrate maturity and rehabilitation and

obtain release because Maryland’s parole system does not provide a right to state-furnished

counsel at parole hearings, public funds for experts, or judicial review of parole decisions.

Holly contends that the “substance” of his challenge derives primarily from Graham

v. Florida, 56 U.S. 48 (2010) (holding that the Eighth Amendment bars a sentence of life

in prison without parole for juvenile nonhomicide offenders); Miller, supra, 567 U.S. 460;

and Montgomery, supra, 136 S. Ct. 718. Holly asserts that, as a juvenile homicide offender

who has not been determined to be irreparably incorrigible, he is entitled to a parole hearing

in which he receives a “meaningful opportunity to obtain release based upon demonstrated

maturity and rehabilitation” pursuant to Graham, supra, 560 U.S. at 75. Holly contends

that the following procedural rights are “integral” to the meaningful opportunity

requirement:

1
We set forth details regarding the circumstances of the murder of Ms.
Jones-Spence in our prior unreported opinions. Holly v. State, No. 408, Sept. Term 2015
(unreported opinion filed June 28, 2016); Holly v. State, No. 2283, Sept. Term 2004
(unreported opinion filed July 30, 2007).
2
(1) state-furnished counsel and representation in which counsel
is permitted to

(a) represent the inmate at his parole hearing;

(b) review and dispute all evidence considered
by the parole commission on the record; and

(c) be present when the inmate addresses the
commission on the record;

(2) funds for experts; and

(3) meaningful judicial review.

Holly asserts that without these rights, his sentence of life with parole constitutes an

unconstitutional de facto life without parole sentence.

Holly describes in detail the procedural framework of the Maryland parole system,

particularly for inmates serving life sentences, as well as what he perceives to be the

deficiencies in Maryland’s parole system. For an inmate serving a life sentence, two

Commissioners conduct the parole hearing, and, if both Commissioners agree that an

inmate serving a life sentence is suitable for parole, the case is considered by the entire

commission. COMAR 12.08.01.17A(7)(f). If a majority of the Commission agrees to

recommend parole, it submits the recommendation to the Governor. Md. Code (1999, 2017

Repl. Vol.), § 7-301(d)(5)(i) of the Correctional Services Article (“CS”); COMAR

12.08.01.17A(7)(g).

Holly emphasizes that there is no statutory provision for state-furnished counsel for

a “juvenile lifer” at any stage of parole release proceedings and explains that, even for

inmates who obtain counsel, there are significant limitations on counsel’s role in the

3
context of the parole system. For example, counsel is not permitted to participate in the

parole hearing. COMAR 12.08.02.18C(1).2 Holly takes further issue with other aspects

of the parole process, including that there is no provision for the recording of parole

hearings before the two Commissioners for inmates serving life sentences, counsel is not

entitled to a full review of the Commission’s file, and counsel’s participation in the

resolution of disputed facts prior to the parole hearing is limited. Holly further emphasizes

that there are no provisions for participation by counsel when a juvenile lifer’s case is

considered by the entire Commission or when parole is recommended to the Governor.

Holly further contends that there is no provision granting a juvenile lifer the right to obtain

funds for experts, and there is no opportunity for judicial review of the Commission’s or

the Governor’s decision to deny parole. Holly asserts that these alleged deficiencies in the

parole system render his sentence unconstitutional.

2
COMAR 12.08.02.18C(1) provides:

A parole hearing is actually an interview of the inmate, and
attendance shall be restricted to parole personnel and a
representative of the institution. On occasions, others may be
invited by the Commission to attend, provided their attendance
does not impede the prisoner being interviewed. The hearings
are private and shall be held in an informal manner, allowing
the prisoner the opportunity to give free expression to his views
and feelings relating to his case. Formal presentations by an
attorney, relatives, and others interested are not permitted at
the parole hearings. Attorneys, relatives, and others who are
interested in the inmate may discuss the relative merits or other
factors of the case with the Commission at its executive offices,
any time before or after a parole hearing.

4
First, we briefly summarize the Maryland authority on the issue of juvenile life

sentences. The Court of Appeals addressed the application of Miller and Montgomery to

sentences of life imprisonment with parole for juvenile homicide offenders in Carter v.

State, 461 Md. 295 (2018), reconsideration denied, October 4, 2018. The issue before the

Court in Carter was whether a sentence of life with the possibility of parole is

“effectively . . . life without parole, because the laws governing parole in Maryland do not

provide [an inmate] with a meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Id. at 307.

Although the Carter Court did not address the specific arguments made by Holly in

the present case with respect to purported rights to counsel, public funds, and judicial

review, the Court rejected the theory that a life with parole sentence was a de facto life

without parole sentence. The Court of Appeals held that the petitioner juvenile homicide

offenders’ life sentences with parole were legal because “the laws governing parole of

inmates serving life sentences in Maryland, including the parole statute, regulations, and a

recent executive order adopted by the Governor, on their face allow a juvenile offender

serving a life sentence a ‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.’” Id. at 307.3

3
The Carter Court explained that its holding was based upon the laws governing
parole decision-making and not based upon how the laws have been carried out. 461 Md.
at 337 (“To the extent that [the Petitioners] are challenging the actual practice of the Parole
Commission and the Governor in making parole decisions, their claims are outside the
scope of a motion to correct an illegal sentence. We thus agree with the Court of Special
Appeals that whether the Parole Commission and others involved in the parole system are
carrying out their duties in practice is not at issue in this appeal.”) (footnote omitted). The
Court observed that “other causes of action are more appropriate to litigate claims that the
5
Holly acknowledges that his appeal is, like Carter, based on the laws and regulations

governing the Maryland parole system and the structure of the parole system in Maryland,

but he asserts that his appeal focuses on “counsel’s role in the parole process, and the

related role of expert witnesses, as well as the role of judicial review,” rather than the

Governor’s role that was addressed in Carter. We are not persuaded by Holly’s attempt to

distinguish this case from Carter. Indeed, the Carter Court expressly held that the “laws

governing parole of inmates serving life sentences in Maryland . . . on their face allow” a

juvenile lifer “a ‘meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation.’” Id. The laws governing parole held to be constitutional in Carter

include the various alleged deficiencies asserted by Holly on appeal.

Even if Carter were not dispositive on this issue, Holly’s appellate claim fails

because the authority cited by Holly does not provide support for the constitutional rights

he demands. As we shall explain, there is no basis for the rights asserted by Holly under

the United States Constitution or Maryland Declaration of Rights. Finally, although Holly

cites a Massachusetts case reaching the result advocated by Holly in this appeal, there is

no authority to support such a result in Maryland.

Parole Commission and others involved in the parole system are not carrying out their
responsibilities.” Id. The Court further commented that several of these claims are
currently being litigated in the United States District Court for the District of Maryland in
a lawsuit brought pursuant to 42 U.S.C. § 1983. Id. at 337 n.26; see also Maryland
Restorative Justice Initiative et al. v. Hogan et al., No. 16-01021-ELH (D. Md.).
6
I.

We first address whether the rights Holly advocates have any foundation in the

United States Constitution. A brief discussion of the United States Supreme Court caselaw

on issues relating to life sentences for juvenile offenders is necessary to provide the proper

context for our analysis. In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court

held that the Eighth Amendment bars a sentence of life in prison without parole for juvenile

offenders convicted of any crime other than homicide. The Supreme Court first addressed

the issue of under what circumstances a juvenile homicide offender may be sentenced to

life in prison without the possibility of parole in Miller, supra. The Miller Court held that

“the Eighth Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” 567 U.S. at 479 (emphasis added). The Court

did not prohibit life sentences without parole categorically, but commented that

“appropriate occasions for sentencing juveniles to this harshest possible penalty will be

uncommon.” Id. The Supreme Court did “not foreclose a sentencer’s ability to make that

judgment in homicide cases,” but the Court “require[d the sentencing court] to take into

account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480.

In Montgomery, supra, the Court further explained that “[a] hearing where ‘youth

and its attendant characteristics’ are considered as sentencing factors is necessary to

separate those juveniles who may be sentenced to life without parole from those who may

not.” 136. S. Ct. at 735. The primary issue before the Court in Montgomery was whether

the Miller holding was entitled to retroactive effect. The Supreme Court held that Miller

7
announced a new substantive constitutional rule that was retroactive on state collateral

review. 136 S. Ct. at 732. Although the Montgomery Court gave retroactive effect to

Miller, the Court explained that this did “not require States to relitigate sentences, let alone

convictions, in every case where a juvenile offender received mandatory life without

parole.” Id. at 736. Rather, a Miller violation could be remedied “by permitting juvenile

homicide offenders to be considered for parole, rather than by resentencing them.” Id.4

Graham, Miller, and Montgomery were all concerned with sentencing, and,

specifically, about whether a sentence of life imprisonment without parole for juvenile

offenders violated the Eighth Amendment. The cases addressed the issue of what

constitutes a meaningful opportunity for release only in an extremely limited context. In

Graham, the Supreme Court held “while the Eighth Amendment prohibits a State from

imposing a life without parole sentence on a juvenile nonhomicide offender, it does not

require the State to release that offender during his natural life.” 560 U.S. at 75. The

Graham Court expressly explained that “[i]t is for the State[s], in the first instance, to

explore the means and mechanisms for compliance” with the meaningful opportunity for

release requirement. Id. Indeed, the Court of Appeals observed in Carter that Graham

held that “[t]here is no constitutional requirement that a state have a parole system per se,

so long as the state provides a meaningful opportunity for release based on demonstrated

4
Courts have reached different conclusions on the issue of whether Montgomery
made Miller retroactive to all cases involving juveniles sentenced to life without parole or
only to cases involving juveniles sentenced to life without parole pursuant to a mandatory
sentencing scheme. The United States Supreme Court has granted certiorari to address this
issue. Mathena v. Malvo, 893 F.3d 265 (2019), cert. granted, ___ S. Ct. ___ (U.S. Mar.
18, 2019).
8
maturity and rehabilitation.” Carter, supra 461 Md. at 318. Graham established the

meaningful opportunity requirement, but was silent as to its requirements.

Nor did the Supreme Court explicate the meaningful opportunity requirement in

Miller or Montgomery. The phrase “meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation” appears only once in Miller, supra, 567 U.S. at

479, in the context of an explanatory parenthetical following a citation to Graham, supra,

560 U.S. at 75. In Montgomery, the Supreme Court did not address the meaningful

opportunity requirement at all, but instead addressed the remedy for a Miller violation,

explaining that “[a]llowing those offenders to be considered for parole ensures that

juveniles whose crimes reflected only transient immaturity – and who have since matured

– will not be forced to serve a disproportionate sentence in violation of the Eighth

Amendment.” 136 S. Ct. at 736. It is these limited references to a juvenile offender’s

meaningful opportunity to obtain release that Holly asserts form the basis for the rights to

state-furnished counsel’s participation at a parole hearing, state funds for experts, and

judicial review of parole decisions.

Holly asserts that he has a liberty interest in a meaningful opportunity to obtain

release based upon demonstrated maturity and rehabilitation that implicates the Due

Process Clause of the Fourteenth Amendment and that due process requires the procedural

rights he asserts. In our view, Holly’s assertion that a foundation for the specific procedural

rights he seeks can be found in Graham, Miller, and Montgomery is tenuous at best given

the limited discussion in those cases of the meaningful opportunity requirement. Indeed,

in Graham, the Supreme Court expressly emphasized that states are not required “to

9
guarantee eventual freedom” for offenders. 560 U.S. at 75. The United States Court of

Appeals for the Fourth Circuit recently rejected a juvenile homicide offender’s contention

that “Miller and its lineage give rise to a constitutionally protected liberty in juvenile-

specific Eighth Amendment protections,” holding that “juvenile-specific Eighth

Amendment protections do not apply” to juveniles sentenced to life with parole.

Bowling v. Director, Virginia Dep’t of Corr., 920 F.3d 192, 199 (2019). Because, like

Holly, the appellant in Bowling was sentenced to life with parole, the court determined that

it “need not decide whether the rights articulated by Miller and its lineage trigger liberty

interests.” Id.

Although the Fourth Circuit jurisprudence on this issue is persuasive, it is not

binding, and we are mindful that arguments have been made that the Supreme Court’s

decisions in Graham, Miller, and Montgomery established such a liberty interest for

juvenile offenders sentenced to life with parole. See Sarah French Russell, Review for

Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment, 89 IND.

L.J. 373, 417 (2014) (“Graham’s Eighth Amendment requirement that states provide a

‘meaningful’ and ‘realistic’ chance of release could be seen as creating a liberty interest

for juvenile offenders in release -- regardless of whether applicable state statutes have

otherwise created such an interest.”). We need not determine whether a liberty interest in

parole for juvenile offenders was created in Graham, Miller, Montgomery because, as we

shall explain, even if we assume arguendo that Graham, Miller, and Montgomery

established a due process protected liberty interest in parole for juvenile homicide

10
offenders, the Fourteenth Amendment does not require the procedural rights sought by

Holly in this appeal.

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12 (1979), the Supreme Court

addressed the due process implications of a state parole statute that created an “expectancy

of release” upon the fulfillment of certain conditions.5 The Court held that in those

circumstances, inmates have a due process liberty interest in parole that includes certain

procedural rights. Id.; Board of Pardons v. Allen, 482 U.S. 369, 381 (1987). The Court

has held that due process is satisfied when inmates are given “an opportunity to be heard,”

and, if parole is denied, “a statement of the reasons” for the denial. Swarthout v. Cooke,

562 U.S. 216, 220 (2011) (per curiam) (citing Greenholtz, supra, 442 U.S. at 16).

In Greenholtz, the Supreme Court held, contrary to the inmates’ contentions, that a

formal hearing was not required in order for the parole system to comply with the Due

Process Clause of the Fourteenth Amendment. 442 U.S. at 15-16. The Court reasoned that

the Nebraska parole system, which included an examination of the inmate’s file and a

personal interview at which the inmate was permitted to present the parole board with

letters and statements on his behalf, “affords an opportunity to be heard” as required by the

Due Process Clause. Id. The Court further rejected the inmates’ assertion that the Parole

Board should be required to specify the particular evidence underlying the Board’s decision

5
Inmates generally have no such liberty interest in parole in Maryland. “Parole in
Maryland . . . is not explicitly conditioned on some particular combination of findings”
and, therefore, “the Maryland statutory scheme governing . . . parole does not create a
liberty interest protected by the Fifth and Fourteenth Amendments.” McLaughlin-Cox v.
Maryland Parole Comm’n, 200 Md. App. 115, 124-25 (2011).
11
to deny parole, observing that “when parole is denied,” the Board “informs the inmate in

what respects he falls short of qualifying for parole.” Id. at 16. The Supreme Court held

that the Nebraska parole system “affords the process that is due” and “[t]he Constitution

does not require more.” Id. The Greenholtz standard has been reaffirmed by the Supreme

Court, most recently in 2011. Swarthout, supra, 562 U.S. at 220-22. The Court

commented in Swarthout that “[i]n the context of parole, we have held that the procedures

required are minimal.” Id. at 220.

The parole system in Maryland provides far more procedural protections than the

“minimal” protections held to be sufficient for compliance with the Fourteenth Amendment

by the Supreme Court. The Court of Appeals discussed the Maryland parole system at

length in Carter, describing many of the procedural safeguards afforded to inmates eligible

for parole in Maryland. We set forth the Court of Appeals’ discussion from Carter below:

The Maryland Constitution provides that “[t]he General
Assembly of Maryland shall have the power to provide by
suitable general enactment . . . for the release upon parole in
whatever manner the General Assembly may prescribe, of
convicts imprisoned under sentence for crimes.” Maryland
Constitution, Article III, § 60(c). The General Assembly has
exercised that constitutional authority by creating the
Maryland Parole Commission and enacting statutes governing
the process by which an inmate can seek release on parole. See
Maryland Code, Correctional Services Article (“CS”), § 7-101
et seq. Pursuant to legislative direction, the Parole
Commission has adopted regulations governing its policies and
activities with respect to parole. CS § 7-207; COMAR
12.08.01.

Eligibility for Parole

Parole is the conditional release of an inmate from confinement
pursuant to a decision or recommendation of the Parole

12
Commission. See CS § 7-101(i); § 7-301 et seq. As a general
rule, an inmate who is serving a sentence longer than six
months becomes eligible for parole consideration after serving
one-fourth of the inmate’s aggregate sentence. CS § 7-301(a);
COMAR 12.08.01.17A. There are a number of exceptions to
that general rule, two of which are pertinent to this opinion.

First, if the inmate was convicted of a violent crime committed
after October 1, 1994, the inmate is not eligible for parole
consideration until the inmate has served one-half of the
aggregate sentence for the violent crimes, or one-fourth of the
aggregate sentence, whichever is greater. CS § 7-301(c)(1)(i);
COMAR 12.08.01.17A(3).

Second, an inmate sentenced to life imprisonment with the
possibility of parole is not eligible for parole consideration
until the inmate has served 15 years (or the equivalent of 15
years taking into account diminution credits). CS § 7-
301(d)(1); COMAR 12.08.01.17A(7). In certain cases in
which the inmate was convicted of first-degree murder, the
inmate may not be eligible for parole until the inmate has
served 25 years (taking into account diminution credits). CS §
7-301(d)(2); COMAR 12.08.01.17A(7)(b).

The Decision on Parole

An eligible prisoner is to receive a parole hearing unless,
following a review, the Parole Commission “determines that
no useful purpose would be served by a hearing.” COMAR
12.08.01.17A(1), (3). Hearings may be conducted by a hearing
examiner employed by the Parole Commission or by a
Commissioner, except that only Commissioners may conduct
hearings in certain enumerated cases. CS §§ 7-204, 7-205. For
an inmate serving a life sentence, two Commissioners conduct
the initial hearing. COMAR 12.08.01.17A(7)(f).

As a general rule, the Parole Commission “has the exclusive
power” to authorize the release of an inmate on parole. CS §
7-205(a)(1). However, the Parole Commission does not have
the authority to grant parole directly to an inmate serving a life
sentence. In a feature that distinguishes the parole system in
Maryland from that in most other states, the Governor plays a
role in cases where the inmate is serving a life sentence. CS §
7-206(3)(i); CS § 7-301(d)(4)-(5).

13
If both Commissioners who conduct the initial hearing agree
that an inmate serving a life sentence is suitable for parole, the
case is considered by the entire Parole Commission. COMAR
12.08.01.17A(7)(f), 23A. If the Parole Commission agrees by
majority vote to recommend parole, it submits the
recommendation to the Governor. CS § 7-301(d)(5)(i);
COMAR 12.08.01.17A(7)(g). The Governor may approve or
disapprove the Parole Commission’s recommendation, but if
the Governor does not do either within 180 days of receipt of
the recommendation and the inmate has already served 25
years, the Parole Commission’s recommendation becomes the
effective decision on parole. CS § 7-301(d)(5)(ii-iii).

Parole Considerations

To determine whether an inmate is suitable for parole, the
Parole Commission is to consider a number of factors,
including the circumstances of the offense; the “physical,
mental, and moral qualifications” of the inmate; the progress
of the inmate during confinement; any drug or alcohol
evaluation of the inmate (including the inmate’s amenability to
treatment); whether, if released, the inmate will be law-
abiding; an updated victim impact statement and any victim-
related testimony; any recommendations of the sentencing
judge; and whether there is a substantial risk that the inmate
will not abide by the conditions of parole. CS § 7-305;
COMAR 12.08.01.18A(1)-(2).

If the inmate was a juvenile at the time of the offense, the
Parole Commission’s regulations require consideration of the
following additional factors:

(a) age at the time the crime was committed;

(b) the individual’s level of maturity and sense of
responsibility at the time of [sic] the crime was
committed;

(c) whether influence or pressure from other individuals
contributed to the commission of the crime;

(d) whether the prisoner’s character developed since the
time of the crime in a manner that indicates the prisoner
will comply with the conditions of release;

14
(e) the home environment and family relationships at
the time the crime was committed;

(f) the individual’s educational background and
achievement at the time the crime was committed; and

(g) other factors or circumstances unique to prisoners
who committed crimes at the time the individual was a
juvenile that the Commissioner determines to be
relevant.

COMAR 12.08.01.18A(3).

Under the statute, neither the general considerations governing
all decisions of the Parole Commission, nor the special
considerations relating to the juvenile offenders, apply to the
Governor’s decision to approve or disapprove parole for an
inmate serving a life sentence. However, the Governor recently
issued an executive order setting forth the factors that the
Governor is to consider in approving or disapproving parole
for an inmate serving a life sentence and providing for a written
decision by the Governor concerning the application of those
factors.

2018 Executive Order concerning Governor’s Decisionmaking

On February 9, 2018, the Governor issued an executive order
that formally set forth how he would exercise his discretion
under CS § 7-301(d)(4)-(5) to approve or disapprove a
recommendation from the Parole Commission for parole of an
inmate serving a life sentence. See 45:5 Md. Reg. 261 (March
2, 2018), codified at COMAR 01.01.2018.06 (“the 2018
Executive Order”).

The 2018 Executive Order provides that “the Governor shall
assess and consider . . . the same factors and information
assessed by the . . . Parole Commission as provided by the . . .
Parole Commission’s governing statutes and regulations,” as
well as “other lawful factors deemed relevant by the
Governor.” COMAR 01.01.2018.06A. In particular, with
respect to a juvenile offender serving a life sentence, the 2018
Executive Order provides that the Governor will specifically
consider:

15
• the juvenile offender’s age at the time the
crime was committed

• the lesser culpability of juvenile offenders as
compared to adult offenders

• the degree to which the juvenile offender has
demonstrated maturity since the commission
of the crime

• the degree to which the juvenile offender has
demonstrated rehabilitation since the
commission of the crime

COMAR 01.01.2018.06C(1).

The 2018 Executive Order provides that, if the Governor
disapproves a recommendation for parole, the Governor will
provide a written decision confirming that the factors described
in the executive order were considered and, in the case of a
juvenile offender, stating the reasons for disapproving the
Commission’s recommendation. COMAR 01.01.2018.06B,
C(2).

461 Md. at 318-23 (omissions and alterations in original) (footnotes omitted).

The statutes and regulations governing parole in Maryland provide additional

procedural safeguards to inmates beyond those outlined by the Court of Appeals in Carter.

For example, before a parole hearing, the Parole Commission “reviews all information

available,” including “a detailed report of the nature of the offense, a complete social

history, employment record,” and “a pre-parole summary containing a report of the

inmate’s institutional adjustment and progress during his incarceration or since his last

appearance before the Commission.” COMAR 12.08.01.17B(1). Inmates are entitled to

written notice fifteen days prior to the hearing informing them of the “date, time, and place

16
of the hearing” and “[t]he factors which the Commission will consider in making its

determination.” COMAR 12.08.01.17C(1); CS § 7-303.

The inmate is also informed of the “[r]ight of the prisoner or a representative to

examine and inspect before the hearing, any file, report, or other document to be used by

the Commission in making its determination.” Id. The inmate is generally entitled to, “on

request, examine any document that the Commission or hearing examiner will use in

determining whether the inmate is suitable for parole.” CS § 7-303(b). Certain documents

may be shielded from examination,6 but if a document is not made available for

examination, the Commission is required to notify the inmate of its decision and “on

request and if appropriate, the Commission will provide the inmate or the inmate’s

representative with the substance of any information contained in the document or portion.”

CS § 7-303(b)(1). Upon the discovery of any errors, omissions, or disputed facts, the

6
CS § 7-303(b)(1)(ii) provides:

(ii) A document, or a portion of it, is not available for
examination, if the Commission determines that:

1. the document or portion contains a
diagnostic opinion;

2. the inmate’s knowledge of the
document or portion would disrupt
seriously a program of rehabilitation;

3. the document or portion contains
sources of information obtained on a
promise of confidentiality; or

4. the document or portion is otherwise
privileged.

17
inmate’s file may be adjusted by agreement with the parole agent. COMAR

12.08.01.17C(6)(a). The regulations provide for a process for the resolution of any disputes

that cannot be resolved. COMAR 12.08.01.17C(6)(a)-(b).

Holly asserts that juvenile offenders are entitled to broader protections than those

held to be sufficient for compliance with the Fourteenth Amendment in Greenholtz. In

Greenholtz, 442 U.S. at 9-10, the Supreme Court distinguished the parole-release decision

from the parole-revocation decisions at issue in Morrisey v. Brewer, 408 U.S. 471 (1972);

and Gagnon v. Scarpelli, 411 U.S. 778 (1973). The Gagnon Court held that in certain

cases, counsel must be provided in the parole-revocation context. 411 U.S. at 787-88.

When holding that only minimal due process protections apply in the parole-release

decision context, the Greenholtz Court emphasized the “crucial distinction between being

deprived of a liberty one has, as in parole, and being denied a conditional liberty that one

desires.” 442 U.S. at 9.

Holly asserts that the Graham requirement of a “meaningful opportunity to obtain

release” requires broader protections than those afforded to inmates in Greenholtz. Holly

emphasizes the Greenholtz Court’s observation that “[i]f parole determinations are

encumbered by procedures that states regard as burdensome and unwarranted, they may

abandon or curtail parole.” Id. at 13. States do not, however, have the same freedom to

altogether abandon parole in the context of juvenile homicide offenders serving life

sentences without otherwise providing a meaningful opportunity for release in some

manner. Indeed, abandoning parole entirely for juvenile offenders without providing an

18
alternate meaningful opportunity to obtain release would constitute a violation of

Graham’s meaningful opportunity requirement.7

In our view, keeping in mind that the procedural protections required for juvenile

offenders may be greater than those held to be sufficient in Greenholtz, we are still

persuaded that the parole procedures in Maryland provide a meaningful opportunity to

obtain release for juvenile homicide offenders serving a life sentence. As outlined above,

the parole procedures in Maryland provide far more protections for inmates, and

particularly for juvenile inmates, than the minimal due process protections required by the

Fourteenth Amendment as articulated by the Supreme Court in Greenholtz, supra.

Furthermore, we find persuasive the United States Court of Appeals for the Fourth Circuit’s

reasoning in Bowling, supra, in which the court held that a juvenile homicide offender had

a state liberty interest in parole consideration, but that due process was satisfied when the

juvenile offender was provided with the opportunity to be heard and a list of reasons why

he was found ineligible for parole. 920 F.3d at 200.

Assuming arguendo that Graham, Miller, and Montgomery establish a liberty

interest in a “meaningful opportunity to obtain release” for juvenile offenders, the Due

Process Clause of the Fourteenth Amendment requires no more than is already guaranteed

7
States need not necessarily have a parole system so long as they offer a meaningful
opportunity for release in some other manner. Carter, supra, 461 Md. at 318 (“There is no
constitutional requirement that a state have a parole system per se, so long as the state
provides a meaningful opportunity for release based on demonstrated maturity and
rehabilitation.”).
19
under Maryland law. We, therefore, reject Holly’s assertion that his sentence of life

imprisonment with parole violates the United States Constitution.

II.

Holly further asserts that the Maryland Declaration of Rights provides the basis for

the procedural rights he seeks. Holly contends that Articles 24 and 25 serve as the

foundation for the right to state-funded counsel’s participation in the parole process, public

funds for experts, and judicial review of parole decisions. We are not persuaded by either

argument.

Article 25 of the Maryland Declaration of Rights provides “[t]hat excessive bail

ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment

inflicted, by the Courts of Law.” Holly concedes that Article 25 has been interpreted to

encompass the same protections as the Eighth Amendment of the United States

Constitution. Holly argues, however, that Article 25 should be interpreted more broadly

in this context.

Holly contends that the use of the disjunctive phrase “cruel or unusual punishment”

in Article 25 offers broader protections than the Eighth Amendment’s use of the phrase

“cruel and unusual.” He cites the case of Thomas v. State, 333 Md. 84, 103 n. 5 (1993) in

support of his assertion that such a reading is “not without support.” The remainder of the

quoted passage from Thomas, however, does not support Holly’s Article 25 argument:

The defendant’s argument that we should afford greater
protection under Article 25 of the Maryland Declaration of
Rights than is afforded by the Eighth Amendment to the United
States Constitution, based upon the disjunctive phrasing “cruel
or unusual” of the Maryland protection, is not without support.

20
See People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 870-72
(1992) (phrasing of “cruel or unusual” in Michigan
Constitution not accidental or inadvertent, and may constitute
a compelling reason for broader interpretation of state
constitution provision than that given Eighth Amendment
clause). See also Harmelin v. Michigan, 501 U.S. [957, 966-
67], 111 S. Ct. at 2687 (opinion of Scalia, J., and as to this part
of the opinion joined by Rehnquist, C.J.) (contending that the
conjunctive phrasing of the Eighth Amendment militates
against the existence of a proportionality component as a part
of that protection). Our cases interpreting Article 25 of the
Maryland Declaration of Rights have generally used the terms
“cruel and unusual” and “cruel or unusual” interchangeably.
The Court of Special Appeals has suggested that “the adjective
‘unusual’ adds nothing of constitutional significance to the
adjective ‘cruel’ which says it all, standing alone.” Walker,
supra, 53 Md. App. at 193 n. 9, 452 A.2d 1234. Because the
prevailing view of the Supreme Court recognizes the existence
of a proportionality component in the Eighth Amendment, we
perceive no difference between the protection afforded by that
amendment and by the 25th Article of our Declaration of
Rights.

Thomas, supra, 333 Md. at 103 n.5.

Holly cites out-of-state cases supporting his position that a prohibition on “cruel or

unusual” punishments is broader than the Eighth Amendment’s prohibition on “cruel and

unusual” punishments. Although other states have reached this conclusion, Maryland has

not. We reiterated this position as recently as two years ago. McCullough v. State, 233

Md. App. 702, 747-48 n.34 (2017), rev’d on other grounds sub nom., Carter, supra, 461

Md. 295. Indeed, in McCullough, we expressly rejected the argument that Article 25 offers

broader protections than the Eighth Amendment:

The “cruel or unusual punishments” clause of Article 25 of the
Maryland Declaration of Rights has long been construed to
have the same meaning as the Cruel and Unusual Punishments
Clause of the Eighth Amendment. See, e.g., Thomas, 333 Md.

21
at 103 n.5, 634 A.2d 1 (“[W]e perceive no difference between
the protection afforded by [the Eighth Amendment] and by the
25th Article of our Declaration of Rights”); Walker v. State, 53
Md. App. 171, 183, 452 A.2d 1234 (1982) (Eighth Amendment
and Article 25 are construed to have the same meaning because
“both of them were taken virtually verbatim from the English
Bill of Rights of 1689”). Accordingly, there is no basis for the
appellant’s argument that he is afforded greater protections by
Article 25 of the Maryland Declaration of Rights than by the
Eighth Amendment.

McCullough, supra, 233 Md. App. at 747-48 n.34. We similarly reject Holly’s Article 25

argument in this case.

Holly further asserts that the rights he asserts flow from Article 24 of the Maryland

Declaration of Rights, which provides “[t]hat no man ought to be taken or imprisoned or

disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner,

destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or

by the Law of the land.” As we shall explain, we are not persuaded that Article 24

guarantees the procedural rights Holly seeks in this case.

Holly correctly observes that Article 24 has been interpreted to provide a broader

right to counsel than required by Article 21 of the Maryland Declaration of Rights or the

Sixth Amendment of the United States Constitution. See, e.g., Rutherford v. Rutherford,

296 Md. 347, 358 (1983). Holly’s argument is principally based upon the case of DeWolfe

v. Richmond, 434 Md. 444, 464 (2013) (DeWolfe II), in which the Court of Appeals held

that “under Article 24 of the Maryland Declaration of Rights, an indigent defendant is

entitled to state-furnished counsel at an initial hearing before a District Court

22
Commissioner.”8 In reaching this holding, the Court emphasized that it had previously

“reaffirmed that the right [to counsel] attaches in any proceeding that may result in the

defendant’s incarceration.” Id. at 461. The Court, quoting Rutherford, reiterated that it is

the risk of incarceration that triggers the right to counsel:

A defendant’s actual incarceration in a jail, as a result of a
proceeding at which he was unrepresented by counsel and did
not knowingly and intelligently waive the right to counsel, is
fundamentally unfair. As repeatedly pointed out in criminal
and civil cases, it is the fact of incarceration, and not the label
placed upon the proceeding, which requires the appointment
of counsel for indigents.

DeWolfe II, supra, 434 Md. at 460 (quoting Rutherford, supra, 296 Md. at 360-61)

(emphasis added in DeWolfe II).

Unlike the arrested individuals appearing before District Court Commissioners in

DeWolfe II, Holly has been convicted of a crime and sentenced to a period of incarceration.

This distinction is critical. Even if we assume arguendo that Holly has a liberty interest in

parole, it does not necessarily follow that the same rights afforded to arrestees risking

incarceration in DeWolfe II apply to inmates convicted of and serving a sentence for first-

degree murder. “There is a crucial distinction between being deprived of a liberty one has

. . . and being denied a conditional liberty that one desires.” Greenholtz, supra, 442 U.S.

at 9. It is the risk of incarceration that triggers the Article 24 right to counsel discussed in

8
“The District Court Commissioner determines at the initial appearance, pursuant
to Maryland Rule 4-216, whether a plaintiff is eligible for pretrial release. If a defendant
was arrested without a warrant, the Commissioner determines whether there was probable
cause for each charge and for the arrest. If there was no probable cause, the defendant is
released with no conditions of release.” Id. at 450.
23
Rutherford and reaffirmed in DeWolfe II. DeWolfe II, supra, 434 Md. at 461; Rutherford,

296 Md. at 360-61. We are not persuaded by Holly’s attempt to extend the right to counsel

analysis of DeWolfe II and Rutherford to the present case. Furthermore, Holly cites no

authority that would support a conclusion that Article 24 provides the foundation for the

right to public funds for experts or the right to judicial review of parole decisions. We

hold, therefore, that Article 24, as interpreted by the Court of Appeals in Rutherford and

DeWolfe II, does not provide the foundation for the procedural rights sought by Holly in

this appeal.

III.

Finally, we briefly address the Massachusetts case relied upon by Holly. In

Diatchenko v. Dist. Attorney for Suffolk Dist., 27 N.E. 3d 349, 354-55 (Mass. 2015)

(Diatchenko II), the Supreme Judicial Court of Massachusetts held that juvenile homicide

offenders sentenced to life imprisonment were entitled to the same rights sought by Holly

at parole hearings, namely the right to state-furnished counsel, the right to funds for experts,

and the right to judicial review of the parole board’s decision.

The Diatchenko II Court’s holding was premised not on federal law, but on the

Massachusetts Declaration of Rights. Id. at 357. Indeed, the Massachusetts Supreme Court

expressly commented that “[p]arole was not the subject of Miller and Graham; life without

parole was.” 27 N.E.3d at 357 n.14. The Diatchenko II Court then evaluated what was

required under the Massachusetts Declaration of Rights in order to comply with the

meaningful opportunity for release requirement. Id. at 361-68. As we explained supra in

Part II of this opinion, there is no such basis for the rights Holly seeks in the Maryland

24
Declaration of Rights. Accordingly, we reject Holly’s invitation to adopt the reasoning of

the Supreme Judicial Court of Massachusetts.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

25