SNOW HILL — A local man, serving a seven-year sentence for the death of a friend outside a downtown Ocean City bar in January 2013, is seeking a reduction in his sentence to two years, pointing out the semantic difference between voluntary and involuntary manslaughter.
In August 2014, George Nottingham, now 50, of West Ocean City, was sentenced to seven years in prison after a Worcester County jury found him guilty of manslaughter, second-degree assault, affray and reckless endangerment. Nottingham was charged in January 2013 for his role in the death of long-time friend Michael Post, 39, outside the Harbor Inn in the early morning hours during what began as a friendly dispute over a swiped cell phone and ended in tragedy with the defendant swatting Post outside the door, causing him to fall on the icy, snowy sidewalk. Posted suffered a fractured skull during the fall that ultimately caused his death.
Now nearly one year into his seven-year sentence, Nottingham, through his new attorney Chris Llinas, has filed a motion asking the court to correct what they believe was an “illegal sentence” and reduce Nottingham’s sentence to just two years. Essentially, the issue boils down to the distinction between voluntary and involuntary manslaughter and the sentencing guidelines for each.
According to the specific statute governing the court’s sentence on the manslaughter, a person who commits manslaughter is guilty of a felony and on conviction is subject to imprisonment not exceeding 10 years, imprisonment in a local correctional facility not exceeding two years or fine not exceeding $500 or both.
Through his attorney, Nottingham is asserting he was indicted for and ultimately convicted of manslaughter, which is a felony and crime of violence and carries a maximum penalty of 10 years. However, he asserts the jury was instructed and believed he was charged with the lesser involuntary manslaughter, which carries a maximum two-year sentence.
“The defendant respectfully requests that this honorable court corrects its illegal sentence in this matter and reduce the defendant’s sentence to two years as the unresolvable ambiguity of the manslaughter statute requires application of the rule of lenity in favor of the defendant, or re-issue the defendant’s commitment record to accurately reflect a conviction for the common law offense of involuntary manslaughter,” the motion filed on July 8 reads.
A supplemental motion asking the court to reconsider its earlier denial of a request to correct Nottingham’s commitment record to reflect the difference between voluntary and involuntary manslaughter was filed by Llinas on July 17.
During Nottingham’s trial, the jury heard on several occasions the term “involuntary manslaughter” in relation to the major count against Nottingham. The motion asserts the transcripts reveal the count was described as involuntary manslaughter during the judge’s introduction of the case at the start of jury selection. It was referred to again as involuntary manslaughter in a jury instruction. Finally, the count was described as involuntary manslaughter during the prosecution’s closing argument. The motion filed last week cites the trial transcript to prove its point.
“We’re going to talk about the law now,” the prosecutor told the jury during closing argument. “We’re going to talk about involuntary manslaughter, specifically what’s known as unlawful act manslaughter. It is a particular type of manslaughter. And as I told you before, even as I stand here now, I don’t believe that Mr. Nottingham intended to kill Mr. Post, he didn’t, but he is responsible and accountable for his actions.”
Llinas also previously filed a motion, seeking a correction in the commitment record for Nottingham, which the court has denied. However, during the motion for a correction of the alleged illegal sentence, he reiterated the importance of correcting the commitment record, pointing out the not-so-subtle differences in parole eligibility and good behavior diminutions.
“The clerk issued a commitment record for the defendant that, like the indictment, incorrectly references the conviction for the common law manslaughter county as one for a statutory offense,” the motion reads. “Further, the commitment record refers to the conviction as for manslaughter, generally, without reference to whether it is voluntary of involuntary. And finally, the commitment record provides no guidance as to parole eligibility.”
For example, Nottingham’s conviction for manslaughter is considered a “crime of violence,” which means he is not eligible for parole until he has served 50 percent of the total sentence, which would not be until December 2017. According to the motion, if Nottingham’s commitment record accurately reflected a conviction for involuntary manslaughter, it would not be considered a crime of violence, making him eligible for parole after serving 25 percent of the sentence.
In addition, the semantic difference between voluntary and involuntary manslaughter has a bearing on certain credits for reducing Nottingham’s sentence. For example, under the current manslaughter conviction, considered a crime of violence, Nottingham is allowed only five days per month of diminution credits, but if the conviction was changed to involuntary manslaughter as requested, he would be eligible for 10 per month of diminution credits.
Finally, the difference between voluntary and involuntary impacts Nottingham’s day-to-day life in prison. For example, the crime of violence conviction classifies him as a “medium I security level inmate” rather than a minimum security level inmate, which affects where and with whom he is housed, the extent to which he can move around the prison grounds and the types of jobs for which he is eligible.
“When all avenues of statutory construction — textual, structural and historical — fail to resolve ambiguity in a statute governing criminal liability or penalty, the rule of lenity comes into play and mandates that the statute be strictly construed in favor of the defendant,” the motion reads. “The plain language of both statutes authorizes conflicting maximum penalties of 10 years and two years without providing any specific guidance as to when and under what circumstances each of these maximum penalties apply.”