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Court to hear inmate's plea on sentence; His appeal deals with 5 years Arundel panel tacked onto his term; Defense: Move is 'vindictive'; At issue is whether judges had authority to add more years


When photographer Wayne Resper asked a panel of Anne Arundel County judges to shorten his sentence of life plus five years for trying to kill a witness and related charges in a shoplifting case, he got an unexpected response: five more years in jail and no rehabilitation program.

Maryland's highest court has taken up his appeal of the harsher sentence to determine whether three-judge panels have the authority to do what this one did. The case had been submitted for consideration by the lower Court of Special Appeals; the Court of Appeals has placed the case on its May calendar.

Resper, of Crofton, was convicted in March of attempted murder, witness intimidation and reckless endangerment of a witness's sister. He was sentenced to life in prison on the attempted murder charge and five years on the witness intimidation charge.

Whether Anne Arundel Circuit Judge Clayton R. Greene added another five years on the endangerment charge is the issue.

Resper's lawyers argue that the judge combined it with the life term -- "merged" in legal parlance -- so it was not available for the judicial panel to consider.

County prosecutors, however, say Greene ordered the second five-year term, then made it concurrent with the life term -- a slight distinction, but one that would make it possible for the judicial panel to add it to the rest of the sentence.

Resper's lawyers also argue that nothing in the law allows the judicial panel to take away a recommendation that he be evaluated for a selective psychiatric program in prison.

Just because the law does not spell out every change a panel can make doesn't necessarily mean it cannot make them, countered Gary E. Bair, chief of the state attorney general's criminal appellate division.

After he is sentenced, a convict can ask a three-judge panel from the court in which he was tried to hear a plea for leniency. The panel can increase, decrease or uphold a sentence.

The Anne Arundel panel ruled that Resper's act "cries out for the maximum permissible sentence."

Gill Cochran, who represented Resper at his trial, called it "Draconian" and "vindictive."

Resper's case attracted attention because he was accused of nearly killing a witness over a $35.96 shoplifting case; it was the second time a witness about to testify against him was shot before appearing in court.

Resper's sister-in-law, Carolyn Resper, and three others were found slain in Washington the day before she was to testify against him and his brother, Ronald, in a robbery trial in 1985. The brothers were questions but not charged in those shootings in Washington, and the case remains unsolved.

Resper pleaded guilty last March to attempted murder, intimidating a witness and reckless endangerment in the August 1997 wounding of Amy and Cheryl Fischer in the driveway of their family's Crownsville home. Covered in her own blood, Amy Fischer, then 26, begged for her life, as Resper pulled the trigger a few feet from her head.

The gun jammed; had it fired, she could have been killed. Fischer, who is left-handed, lost the use of her left arm.

She was to testify in District Court the next day that she had seen Resper pocket six rolls of film and walk out of the Annapolis Mall store where she worked.

Though state sentencing guidelines advised a sentence of 20 to 35 years, Judge Greene gave Resper life plus five years. He acceded to a defense request to ask corrections officials to evaluate Resper for Patuxent Institution's program, which is targeted at youthful offenders who seem amenable to psychiatric treatment. The cutoff is generally around age 30; Resper is 39.

About 90 percent of the 300 inmates at Patuxent Institution for psychiatric treatment were recommended for testing by judges.

"A judge's recommendation wins them testing. A judge's recommendation does not necessarily get them into the program," said Leonard A. Sipes Jr., a corrections department spokesman.

"If he wins he would still be serving a life sentence," said Deputy State's Attorney William Roessler, who prosecuted the case. "I'm not too worried about this one."

Pub Date: 2/19/99

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