.10 Computation of the Offender Score.

A. Computation of the Offender Score. The individual completing the worksheet shall derive the offender score by totaling the points represented by the offender's prior criminal history. Any prior criminal adjudications, as defined in COMAR 14.22.01.02B(1), shall be included. With the exception of the juvenile delinquency component of the offender score, the offender score refers only to the defendant's adult involvement with the criminal justice system. A prior adjudication of not criminally responsible (NCR) or not guilty by reason of insanity may not be included when calculating the offender score.

B. Four Components of the Offender Score.

(1) Relationship to the Criminal Justice System When Instant Offense Occurred.

(a) If the offender was in the criminal justice system as the result of an adjudication as an adult when the instant offense occurred, the individual completing the worksheet shall assign a score of 1.

(b) The offender was in the criminal justice system if the offender was on parole, on probation, incarcerated, on work release, on mandatory supervision, was an escapee, or had a comparable status at the time the offense was committed.

(c) An offender is not considered to be in the criminal justice system if the offender was on unsupervised probation for an offense not punishable by imprisonment.

(d) Relationship to the criminal justice system may differ across offenses in multiple offense sentencing events. If there is more than one instant offense and the offender was in the criminal justice system at the time one or more offenses occurred, but not in the criminal justice system at the time additional offense(s) in the sentencing event occurred, the person completing the sentencing guidelines worksheet shall assign a score of 1 to those offenses that were committed while the offender was in the criminal justice system. The person completing the sentencing guidelines worksheet shall assign a score of zero to those offenses that were committed while the offender was not in the criminal justice system.

(2) Juvenile Delinquency.

(a) The individual completing the worksheet shall count only one finding of a delinquent act (i.e., finding of facts sustained at an adjudicatory hearing) for a single adjudicatory hearing. If multiple findings of a delinquent act relate to a single adjudicatory hearing, the individual completing the worksheet shall count only one finding of a delinquent act.

(b) When the defense or State can show that a finding of a delinquent act did not result in the youth’s adjudication as delinquent at a juvenile disposition hearing, the finding of a delinquent act shall not be scored as a part of the juvenile record.

(c) The juvenile delinquency record may not include adjudications based on acts that are no longer crimes.

(d) The individual completing the worksheet shall treat an incarcerable traffic offense in which the court finds a juvenile involved as part of his or her juvenile record.

(e) The individual completing the worksheet shall assign a score of 0 if an offender is 23 years or older by the date of the most recent instant offense. The individual completing the worksheet shall assign a score of 0 if an offender has zero findings of a delinquent act within 5 years of the date of the most recent instant offense.

(f) The individual completing the worksheet shall assign a score of 1 if an offender:

(i) Is younger than 23 years old on the date of the most recent instant offense; and

(ii) Has one or two findings of a delinquent act within 5 years of the date of the most recent instant offense.

(g) The individual completing the worksheet shall assign a score of 2 if an offender:

(i) Is younger than 23 years old on the date of the most recent instant offense; and

(ii) Has three or more findings of a delinquent act within 5 years of the date of the most recent instant offense.

(3) Prior Adult Criminal Record.

(a) In General.

(i) Except as noted in this paragraph, the prior adult criminal record includes all adjudications preceding the current sentencing event, whether the offense was committed before, during, or after the instant offense(s). The prior adult criminal record shall not include: adjudications that were expunged from the record or proven by the defense to have been eligible for expungement as a matter of right prior to the date of offense pursuant to Subtitle 1 (Expungement of Police and Court Records) of Title 10 (Criminal Records) of the Criminal Procedure Article, Annotated Code of Maryland; violations of public local laws; municipal infractions; contempt; criminal nonsupport; adjudications based on acts that are no longer crimes (e.g., cannabis possession); non-incarcerable traffic offenses; military adjudications imposed by an Article 15 proceeding or summary court-martial; findings of guilt by general or special courts-martial, if the elements of the offense require the defendant’s service in a military force, including but not limited to desertion, absence without leave (AWOL), and conduct unbecoming an officer and a gentleman, or do not constitute an offense under Maryland law; or more than one adjudication arising from a single criminal event.

(ii) The sentencing guidelines and offense table in effect at the time of the current sentencing event shall be used to determine the correct seriousness category for each adjudication included in the calculation of the prior adult criminal record.

(iii) If a Maryland offense has not been assigned a seriousness category and the offense has a maximum penalty of 1 year or less, the offense shall be assigned the lowest seriousness category (VII).

(iv) If a Maryland offense has not been assigned a seriousness category (and the offense has a maximum penalty of more than one year) or has been repealed from the Annotated Code of Maryland, but the act on which the repealed offense is based is still a crime, the individual completing the worksheet shall use the closest analogous offense and the sentencing judge and the parties shall be notified.

(b) Criteria.

(i) The individual completing the worksheet shall use the instructions and table below to determine whether a defendant's prior criminal adult record is minor, moderate, or major. If the defendant has no prior adult criminal record, the individual completing the worksheet shall assign a score of 0. If the defendant has a minor adult criminal record, the individual completing the worksheet shall assign a score of 1. If the defendant has a moderate criminal record, the individual completing the worksheet shall assign a score of 3. If the defendant has a major criminal record, the individual completing the worksheet shall assign a score of 5.

(ii) The individual completing the worksheet shall count the number of prior adjudications according to the seriousness categories. If prior multiple adjudications relate to a single criminal event, the individual completing the worksheet shall score only the offense with the highest seriousness category. The prior adult criminal record shall score no more than one adjudication stemming from a single criminal event.

(iii) Taking the number of adjudications in the most serious category of offenses, the individual completing the worksheet shall refer to the table below and locate the block containing the number of adjudications for that seriousness category.

(iv) The individual completing the worksheet shall use the criteria in the identified block to classify the record as Minor, Moderate, or Major.

(v) Criteria Matrix.

(c) Different Criminal Events Sentenced Together. If multiple offenses from different criminal events are being sentenced together at this sentencing event, the offender's criminal record includes any adjudication before the current sentencing and is the same for each offense being sentenced at this time.

(d) Adjudications Out of Jurisdiction. If an offender has an out of jurisdiction adjudication, excluding military adjudications (see §B(3)(e) of this regulation for instructions for scoring military adjudications), the individual completing the worksheet shall match the offense as closely as possible to the closest analogous Maryland offense. If no Maryland analogous offense exists, the individual completing the worksheet shall count the offense in the lowest seriousness category (VII), and shall inform the judge and parties. If the out of jurisdiction adjudication is based on act that is not a criminal violation in Maryland (e.g., cannabis possession), then the out of jurisdiction adjudication shall be excluded from the prior adult criminal record. If there is a question as to the analogous guidelines offense for an out-of-State adjudication, that question shall be brought to the attention of the judge at sentencing.

(e) Military Adjudications. If an offender has a finding of guilt by a general or special court-martial, the military adjudication shall be matched as closely as possible to the closest analogous Maryland offense. If a military adjudication has no equivalent in Maryland law or requires as an element of the offense the defendant’s service in a military force, including but not limited to desertion, absence without leave (AWOL), and conduct unbecoming an officer and a gentleman, the offense shall be excluded from the adult prior criminal record. If there is a question as to the analogous guidelines offense for a military adjudication, that question shall be brought to the attention of the judge at sentencing.

(f) Theft-Type Offenses. Theft adjudications, such as larceny, larceny by trick, or larceny after trust, that took place before the enactment of the comprehensive theft statute in 1978 are considered misdemeanor theft if they were misdemeanors and felony theft if they were felonies.

(g) Criminal Record Decay Factor. If an offender has lived in the community for at least 10 years prior to the instant offense without criminal justice system involvement resulting from an adjudication or a plea of nolo contendere, the criminal record shall be reduced by one level: from Major to Moderate, from Moderate to Minor, or from Minor to None. An offender was in the criminal justice system if the offender was on parole, on probation, incarcerated, on work release, on mandatory supervision, was an escapee, or had a comparable status. An offender is not considered to be in the criminal justice system if the offender was on unsupervised probation for an offense not punishable by imprisonment.

(h) Conspiracies, Attempts, Solicitations, and Accessoryships.

(i) The individual completing the worksheet shall place conspiracies, attempts, and solicitations in the same seriousness category as the substantive offense unless placed in a different category or specifically addressed by separate statute.

(ii) For conspiracy to commit a lawful act by unlawful means, the seriousness category and offense type classification shall be the same as the most serious unlawful means by which the lawful act was to be accomplished. If there is a question as to the seriousness category or offense type classification for the conspiracy to commit a lawful act by unlawful means, that question shall be brought to the attention of the judge at sentencing.

(iii) If accessory after the fact has a penalty of 5 years or greater under Criminal Law Article, §1-301, Annotated Code of Maryland, a seriousness category V shall be assigned, unless the underlying offense has a seriousness category of less than V, in which case the accessory after the fact shall be assigned the same seriousness category as the underlying offense.

(iv) If accessory after the fact has a penalty of less than 5 years under Criminal Law Article, §1-301, Annotated Code of Maryland, the seriousness category shall be the same category as the underlying offense.

(4) Prior Adult Parole/Probation Violations.

(a) The individual completing the worksheet shall assign a score of 0 if the offender has never been on adult parole, probation, or equivalent supervisory status, or has successfully completed previous periods of supervision as an adult.

(b) The individual completing the worksheet shall assign a score of 1 if the offender was ever found by a court to have violated parole, probation, or equivalent supervisory status, or if the offender has ever received an adjudication for an offense while on parole, probation, or equivalent supervisory status, unless the adjudication arose from the offense or offenses of this sentencing event. The individual completing the worksheet may not assign a point simply because the offender was on parole, probation, or equivalent supervisory status at the time of the instant offense.

C. Total Offender Score. To obtain the total offender score, the individual completing the worksheet shall add the points assigned to each element of the offender score. The maximum offender score is 9 and the minimum score is 0.