By: Riley Cummins

The Supreme Court of Maryland held that when one of a defendant’s convictions contributing to a multi-sentence term is vacated, the Division of Correction must immediately credit time served against any remaining valid sentences, beginning at the date of the first vacated sentence.  Bivens v. Clark, 491 Md. 345, 377, 339 A.3d 931, 949-50 (2025).  The court further held that when a defendant is reprosecuted, any resulting conviction constitutes a new judgment whose sentence succeeds the sentences of the prior convictions.  Id. at 377, A.3d at 950.

On January 7, 2016, Amondre Clark (“Clark”) pled guilty to and was sentenced for three charges (“Sentences ‘A,’ ‘B,’ and ‘C’”) totaling 26 years of confinement, with all but 13 years suspended.  On February 18, 2016, Clark was sentenced for a violation of probation to 3 years and 6 months (“Sentence D”) to run consecutively to Sentences A, B, and C. Clark was further sentenced on October 20, 2022, to 1 year and one day (“Sentence E”) for possession of prison contraband. A year later, Clark successfully moved to correct an illegal sentence because his plea to cases A, B, and C capped confinement at 15 years, but his sentence totaled 26 years. As relief, the Montgomery County Circuit Court permitted Clark to withdraw his guilty plea and retry his case.  On April 17, 2024, Clark pled guilty to the charge associated with Sentence B, resulting in a new sentence of eight years, eight months, and 26 days. The court credited Clark with eight years, eight months, and 26 days as time served (“time-served sentence”). At the plea hearing, the court acknowledged Clark’s release, and the State entered nolle prosequi on the cases tied to Sentences A and C, with no mention of Sentences D or E.

Despite the sentencing court’s expectation of Clark’s release, the Division of Correction (“Division”) failed to release him.  The Division treated the time-served sentence as replacing Sentence B and determined that Sentences D and E ran consecutively to it. The Division tolled Sentence D and held Clark for six months between the October 2023 vacatur and the April 2024 plea hearing with no active sentence running. Clark filed a habeas petition on June 11, 2024, asserting that, under Criminal Procedure § 6-218(d), Sentence D should have been immediately executed after his October 2023 convictions were vacated; the court agreed and released him.  The Division appealed. Pending review, the Supreme Court of Maryland granted Clark’s petition for a writ of certiorari to answer whether, upon vacatur of an individual’s convictions, the Division must (1) immediately carry out any remaining sentence and credit an individual for time served under an invalidated conviction; and (2) regard any conviction resulting from reprosecution as an independent judgment, rather than a sentence modification.

The court first held that Clark was entitled to credit for time served under his vacated conviction towards his other active sentences, beginning at the start of the invalidated sentences.  Bivens, 491 Md. at 366, 339 A.3d at 943.  The court examined CP § 6-218(d), which entitles a defendant serving multiple sentences to receive credit for all time spent in custody under any sentence later invalidated.  Id. at 365, 339 A.3d at 942.  The court rejected the Division’s argument that CP § 6-218(c) governed. Id. at 366, 339 A.3d at 943. Instead, it found that Clark’s circumstances paralleled the unambiguous language of CP § 6-218(d), as Sentences A, B, and C were invalidated; therefore, section (d) applied and Clark was entitled to credit for time in custody under those sentences, beginning from the date of the first vacated sentence.  Id. at 366, 339 A.3d at 943. Further, the court reasoned that crediting Clark for time served on invalid sentences was consistent with statutory intent.  Id. at 367, 339 A.3d at 944. The purpose of CP § 6-218(d) is to ensure individuals receive credit for “‘any time spent in custody’ and to eliminate ‘dead time.’”  Id. at 367, 339 A.3d at 944 (quoting Fleeger v. State, 301 Md. 155, 165, 484 A.2d 490, 490 (1984)). The court held the Division’s decision to toll Clark’s sentence instead of crediting him immediately was inconsistent with this purpose.  Bivens, 491 Md. at 367, 339 A.3d at 944.

The court further explained how § 6-218(d) and § 6-218(c) operate jointly.  Bivens, 491 Md. at 366, 339 A.3d at 943.  Section 6-218(c) applies to any surplus credit remaining after § 6-218 (d) is satisfied. Id. at 366, A.3d at 943. The Division has no discretion to toll the next valid sentence pending reprosecution, because § 6-218(d) contains no such authority, and a “wait and see” approach could leave a defendant with no credit if they are not reconvicted.  Id. at 366-67, A.3d at 943-44.  In Clark’s case, proper application of § 6-218(d) would have fully satisfied Sentences D and E, leaving over four years surplus credit that § 6-218(c) should have applied toward his new April 2024 conviction.  Id. at 374-75, A.3d at 948-49.

The court also grounded its statutory interpretation in foundational principles of criminal law. Bivens, 491 Md. at 367-68, 339 A.3d at 944. When a conviction is vacated, the clean slate rule erases the judgment and reinstates the defendant’s presumption of innocence.  Id. at 368, 339 A.3d at 944.  The court reasoned that the Division’s “wait and see” approach, withholding credit pending reprosecution, was inconsistent with these principles.  Id. at 367-69, 339 A.3d at 944-45.

Turning to the sequencing question, the court held that Clark’s April 2024 conviction constituted an entirely separate judgment (“Sentence F”), not a modification of a prior sentence.  Bivens, 491 Md. at 369, 339 A.3d at 945.  The court reasoned that, as opposed to a modification that does not alter the underlying judgment, a vacated conviction erases a prior judgment.  Id. at 369, 339 A.3d at 945. Consequently, because no “placeholder” remains in the sequence, the consecutive sentences run from the date of the first vacated sentence, and Clark’s new conviction entered the chain at the end.  Id. at 372, 339 A.3d at 947.  Applying the “batting order” principle recognized in State v. White and DiPietrantonio v. State, the court determined that Sentence F, as a wholly new sentence of wholly new conviction, took last place in the sequence, behind Sentences D and E.  Id. at 372-73, 339 A.3d at 947-48 (citing Scott v. State, 454 Md. 146, 164 A.3d 177 (2017); DiPietrantonio v. State, 61 Md. App. 528, 487 A.2d 676 (1985)).

Independent of the sequencing error, the court found the Division’s reordering of Clark’s sentences encroached on the judiciary’s exclusive sentencing authority.  Bivens, 491 Md. at 374, 339 A.3d at 948.  The court explained that sentencing courts are vested with “virtually boundless discretion,” including power to determine whether sentences run consecutively or concurrently.  Id. at 374, 339 A.3d at 948.  Therefore, by altering a judicial order, the Division attempted to usurp the role of the court.  Id. at 374, 339 A.3d at 948.

Although the court concluded that (1) Clark was entitled to credit for time-served on his vacated convictions commencing on the date of his original conviction; and (2) Clark’s April 2024 conviction was a separate judgment, the sentencing record was unclear as to whether the sentencing court, in imposing the time-served sentence, had accounted for the still outstanding Sentences D and E.  Bivens, 491 Md. at 375-76, 339 A.3d at 949.  As such, the court vacated the judgment of the habeas court and remanded the case.  Id. at 376, 339 A.3d at 949.

Bivens clarifies for practitioners how the Division must calculate sentence credit when convictions are vacated, resolving a conflict over the Division’s informal policy of tolling valid sentences pending reprosecution. Bivens also equips defense counsel with a stronger legal foundation to challenge improper sentence calculations and to ensure that clients receive full credit for time served, preventing unjustified prolonged confinement. Conversely, prosecutors must take caution when pursuing convictions involving consecutive sentences or reprosecution, carefully evaluating the practical effects of vacaturs on sentencing, plea negotiations, and overall strategy, while recognizing that the authority to sequence sentences ultimately rests with the judiciary.

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Riley Cummins is a third-year student at the University of Baltimore School of Law and serves as the Managing Editor for Law Forum. She earned her bachelor’s degree in criminal justice and psychology, with minors in sociology and law from the University of Georgia. Riley is currently a Teaching Assistant for Introduction to Lawyering Skills, Contracts, and Constitutional Law.  In the fall, she will be working in the University of Baltimore Bronfein Family Law Clinic.