Three-judge panels gain more authority

July 09, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The state's highest court ruled yesterday that when convicted criminals appeal their sentences to three-judge panels, the panels can change not only the sentence, but also referrals to prison rehabilitation programs.

In the appeal of Wayne Resper of Crofton, who was convicted last year of wounding a witness in his $35.96 shoplifting case, the Court of Appeals unanimously ruled that a three-judge panel acted within its powers when it overturned a judge's recommendation that the Department of Corrections consider evaluating Resper for Patuxent Institution's rehabilitation programs.

Resper, sentenced to life plus five years, had asked the panel to shave his sentence, but the panel made his sentence harsher and removed the Patuxent referral. for Patuxent.

"I think the opinion does re-establish and make clear that if you ask for a three-judge panel, then they are the sentencing judges," said Anne Arundel County State's Attorney Frank R. Weathersbee.

The Court of Appeals ruling takes on added significance because more defendants are expected to seek review panels following a change in state law, the prosecutor said. On July 1, three-judge panels gained the power to toss out the mandatory sentences for violent or drug crimes and increase or decrease the penalty. Before that, the panels had to follow the same state guidelines for mandatory sentences that the trial judge used, and ruled mostly on technical matters.

Writing for the court, Judge Irma S. Raker said a recommendation for evaluation for Patuxent was part of a sentence. Once Resper came before a three-judge panel, those judges could change any aspect of the sentence.

Resper's trial lawyer, Gill Cochran, said, "I'm disappointed mainly because the three-judge panel took away Patuxent, and I don't know what for. At Patuxent you've got a shot at getting out. And it's a way to get help."

Resper, now 41, pleaded guilty in March 1998 to attempted murder, witness intimidation and reckless endangerment for trying to kill a witness in his pending shoplifting case.

In August 1997, Resper wounded Amy and Cheryl Fischer in their driveway in Crownsville. Covered in blood, Amy Fischer, then 26, begged for her life as Resper again pulled the trigger a few feet from her. The gun did not go off.

It was the second time a witness about to testify against him was shot before appearing in court -- the earlier one was in 1985, when his sister-in-law and three others were found slain in Washington the day before she was to testify against Resper and his brother in a robbery case. He was questioned but not charged.

Circuit Judge Clayton Greene Jr. sentenced Resper in May 1998 to life in prison plus five years, and ordered a second five-year term to run at the same time as the life sentence. At the defense's request, Greene recommended that prison officials evaluate Resper for psychiatric treatment at Patuxent.

The life term exceeded the state sentencing guidelines of 20 to 35 years. Resper asked a panel of judges to give him leniency. Horrified by the crime, the judges made the second five-year term consecutive to the other sentences and removed the recommendation for evaluation at Patuxent.

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