Brightwell v. State

⁴⁸³ WOODWARD, J. David Brightwell, appellant, was convicted by a jury sitting in the Circuit Court for Somerset County of two counts of armed robbery, use of a handgun in the commission of a felony, and a variety of other offenses related to his participation in a 1996 gas station robbery. Appellant was sentenced to a total of fifty years’ incarceration. In an unreported opinion filed on March 30, 1999, this Court affirmed appellant’s convictions. Appellant subsequently filed a pro se motion to correct an illegal sentence, which the circuit court denied.

Appellant noted a timely appeal from that denial and presents the following question for our review, which we have rephrased for clarity: 1 Did the trial court err by denying appellant’s motion to correct an illegal sentence? For the reasons which follow, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS As a preliminary matter, the State urges us to dismiss appellant’s appeal for failing to comply with the requirements of Maryland Rule 8-503 by filing a 49-page, hand-written brief without leave of this Court or in the alternative to require ⁴⁸⁴ appellant to file a brief in conformity with the Rules. See Md. Rule 8-503(g).

The State also seeks dismissal of appellant’s appeal because appellant failed to append to his brief “the pertinent part of’ the ruling and order “that deals with the points raised by the appellant on appeal.” 2 See Md. Rule 8-504(b). The State cites to Rollins v. Capital Plaza Associates, L.P., 181 Md.App. 188, 203 , 955 A.2d 869 (2008) (noting that the appeal was dismissed because of violations of rules of appellate procedure). We agree that appellant has violated a number of our procedural rules. Although appellant is a pro se litigant, he is still required to follow the appellate rules. “Dismissal of an appeal for nonconformity with these rules is, however, discretionary.” In re Joshua W., 94 Md.App. 486, 491 , 617 A.2d 1154 (1993); see Md. Rule 8-503(g).

We shall exercise our discretion and deny the State’s motion to dismiss this appeal. We adopt a portion of the factual background from this Court’s unreported opinion in Brightwell v. State, No. 502, September Term 1998 (filed March 30, 1999), slip op. at 1-3. On August 14, 1996, three men participated in the robbery of Richards’ Exxon, located a few miles south of Princess Anne, Maryland. Charles T. Richards, the owner of Richards’ Exxon, testified that he opened his gas station that morning at approximately 6:55 a.m.

While Richards was reading the morning paper, a man approached him and asked him for change for the snack machine. After Richards gave the man some change, he went back to reading his paper. Richards stated: “The first thing I know he was right behind me and behind the counter right up to me where there was nothing I could do.” Richards claimed that the man “worked [him] over pretty good”; the assailant beat him with a pistol, threatened to kill him, tied him up with rope, and put him in the lady’s restroom at the service station. The robber also removed approximately $700 or ⁴⁸⁵ $800 dollars from Richards’s pants pocket.

According to Richards, “someone else” was with the assailant. * * * One of the robbers demanded the combination to the service station’s safe. When the robbers were unable to open the safe, the assailant who had previously hit Richards threatened to kill Richards and [a customer, Robert] Dorsey. The robber then untied Richards and Richards opened the safe. At that time, Richards could see that there was another person in the service station, but he was unable to see that person’s face because he had blood in his eyes from the beating.

After Richards opened the safe, he was again tied up and put back in the restroom, and the robbers instructed Richards and Dorsey not to come out for five or ten minutes. According to Richards, the men took three to four hundred dollars out of the cash register and over five thousand dollars from the safe. In a trial ending on September 29, 1997, appellant was tried on charges related to his involvement in the noted robbery. At the conclusion of appellant’s trial, the following colloquy occurred when the jury returned with its verdict: THE CLERK: Ladies and gentlemen of the jury, are you agreed upon your verdict?

THE JURY: We have. THE CLERK: [Appellant], will you stand. [APPELLANT]: (complying). THE CLERK: Ladies and gentlemen of the jury, in case 97-CR-04909, victim Charles Richards, count number one, armed robbery what say you? THE FOREMAN: Guilty.

THE CLERK: Count number two, robbery? THE FOREMAN: Guilty. THE CLERK: Count number three, assault with intent to murder? THE FOREMAN: Guilty. ⁴⁸⁶ THE CLERK: Count number four, assault?

THE FOREMAN: Guilty. THE CLERK: Count number five, battery? THE FOREMAN: Guilty. THE CLERK: Count number six, handgun use felony?

THE FOREMAN: Guilty. THE CLERK: Count number seven, false imprisonment? THE FOREMAN: Guilty. THE CLERK: Count number eight, theft, three hundred dollars plus?

THE FOREMAN: Guilty. THE CLERK: Count number nine, conspiracy? THE FOREMAN: Guilty. THE CLERK: In case number 97-CR-04910, victim Robert Lee Dorsey, in count number one, armed robbery?

THE FOREMAN: Guilty. THE CLERK: Count number two, robbery? THE FOREMAN: Guilty. THE CLERK: Count number three, assault with intent to murder.

THE FOREMAN: Guilty. THE CLERK: Count number four, assault? THE FOREMAN: Guilty. THE CLERK: Count number five, battery?

THE FOREMAN: Guilty. THE CLERK: Count number six, handgun use felony? THE FOREMAN: Guilty. THE CLERK: Count number seven, false imprisonment?

THE FOREMAN: Guilty. THE CLERK: Count number eight, theft, three hundred dollars or less? THE FOREMAN: Guilty. THE CLERK: Ladies and gentlemen of the jury, harken to your verdict as the court hath recorded it.

In case ⁴⁸⁷ number 97-CR-04909, victim Charles Richards, count number one, guilty; count number two, guilty; count number three, guilty; count number four, guilty; count number five, guilty; count[ ] number six, guilty; count number seven, guilty; count number eight, guilty; count number nine, guilty. In ease number 97CR04910 victim, Robert Lee Dorsey, count number one, guilty; count number two, guilty; count number three, guilty; count number four, guilty; count number five, guilty; count number six, guilty; count number seven, guilty; count number eight, guilty. Ladies and gentlemen of the jury, harken to your verdict as the court hath required of you, your foreman says that you find [appellant] guilty. And so say you all.

THE COURT: All right. [State’s Attorney] do you have any record on [appellant]? Thereafter, on February 26, 1998, the court imposed the following consecutive sentences: twenty years’ imprisonment for appellant’s armed robbery of Richards; ten years’ imprisonment for his use of a handgun in the commission of a felony, as it related to his crimes against Richards; and twenty years’ imprisonment for his armed robbery of Dorsey; all sentences were to run consecutively. Appellant’s remaining convictions were merged for sentencing purposes. On August 15, 2012, appellant filed a motion to correct an illegal sentence.

In his motion, appellant noted that the record reflected that the jury at his trial was never polled and “did not hearken to its verdict.” He asserted that such was a violation of Md. Rule 4-827 and a denial of his right to a unanimous verdict. Accordingly, he insisted that the verdict against him was invalid and, therefore, his sentence was illegal. On November 8, 2012, the trial court denied appellant’s motion. ⁴⁸⁸ DISCUSSION Appealing the denial of his motion, appellant asserts that the trial court erred by failing to order a poll of the jury and, further, that the record does not indicate that the jury hearkened to its verdict. More specifically, appellant asserts that the record does not reflect the jury’s response to the clerk’s statement: “And so say you all.” As a result, appellant maintains, there was a violation of Md. Rule 4-327(e) and a “deni[al] [of] his constitutional right to a unanimous [verdict] by the jury[.]” Appellant insists that the noted errors may not be the subject of harmless error analysis and that his sentences were illegal because the verdicts of conviction were invalid.

Accordingly, appellant asks this Court to “determine whether the verdict met the requirements of Md. Rule 4-327(a) and (e)” and requests “a hearing so that proof of [his] allegations ... may be offered.” 3 The State responds that the jurors were properly hearkened as to their verdicts. A unanimous verdict of the jury was announced by the foreman and the jury was subsequently hearkened by the clerk. No dissenting responses were given. Therefore, the State concludes that the trial court correctly denied appellant’s motion to correct an illegal sentence. ⁴⁸⁹ Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any time.” Challenges to the legality of a sentence, however, are limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or