Britton v. State

KRAUSER, C.J. Adrian Antonio Britton, appellant, pleaded guilty in the Circuit Court for Montgomery County to one count of resisting arrest and two counts of second-degree assault for assaulting two different police officers: Officer Kenneth Moreau and Officer Harley Schwarz. He was thereafter sentenced to the following consecutive terms of imprisonment: two years for assaulting Officer Moreau, eighteen months for assaulting Officer Schwarz, and eighteen months for resisting arrest. After his appeal was dismissed, as improper, appellant filed a motion to correct an illegal sentence, asking the circuit court to merge, for sentencing purposes, his convictions for assault into his conviction for resisting arrest. When the circuit court denied that motion, he noted this appeal.

Finding no error by the court below, we affirm. Plea Hearing At appellant’s guilty plea hearing, the State proffered that, on January 22, 2008, Officer A. Siegelbaum 1 observed appellant’s car approach a red light “at a high rate of speed,” “swerve[ ] around” another vehicle, and then race through the red light. After pulling appellant over, the officer got out of his patrol car and walked towards appellant’s vehicle. As the officer approached appellant’s car, appellant backed his vehicle towards the officer, “trying,” in the words of the circuit court, “to run [the officer] over.” After a passenger in appellant’s ⁵⁹³ car jumped out, declaring that he did not “want to be any part of this,” appellant “took off at a high rate of speed,” followed by the officer in his patrol car.

During the ensuing chase, appellant drove at nearly double the posted speed limit, “erratically crossing the double yellow divider” and “driving on the shoulder” and on unpaved portions of the road. Officer Moreau, responding to a radio broadcast from Officer Siegelbaum, positioned his vehicle near an intersection, but on the side of the road. Appellant drove off the roadway and rammed Moreau’s car, striking it “broadside in the rear passenger door” and causing it to spin “about 180 degrees” into the intersection. As a result of the collision, Officer Moreau suffered “soft tissue damage” and “neck and back trauma.” Appellant’s vehicle then crashed through a residential front yard, struck down a neighborhood-watch sign, “went through several shrubs, and ultimately struck two trees,” where it “became wedged” and “caught fire.” At that point, appellant “jumped out of the car and fled on foot” into the backyard of that residence.

Officer Siegelbaum pursued appellant on foot, at one point tasering him, but to no apparent effect, as appellant continued his flight. When Officers Siegelbaum and Moreau, joined by Officer Schwarz and Sergeant Fergus Sugrue, were finally able to grab appellant, he “violently resisted,” “punching and kicking the officers.” Though tasered two more times, appellant continued to struggle. During the melee, appellant hit Officer Schwarz in the right eye, causing bruising and swelling. For that injury, the officer was later treated at the Germantown Emergency Center.

Appellant also injured Sergeant Sugrue’s left shoulder and Officer Siegelbaum’s hand, for which Siegelbaum was transported from the scene to the Germantown Emergency Center. 2 Eventually, the officers were able to subdue appel ⁵⁹⁴ lant. 3 Appellant was charged with one count of resisting arrest and four counts of assault, one for each of the four officers he had struck or kicked or both. He was also charged with four counts of fleeing, and eluding police and one count of attempting to disarm a police officer. After the State reduced the assault count relating to Officer Moreau from first to second degree, appellant pleaded guilty to that assault, as well as to second-degree assault as to Officer Schwarz, 4 and resisting arrest. The State then entered a nolle prosequi as to each of the remaining counts.

Sentencing After appellant pleaded guilty, the court imposed three consecutive sentences for the two second-degree assault convictions and resisting arrest. At the sentencing hearing, appellant’s counsel requested that the assault conviction relating to Officer Schwarz be merged into the resisting arrest conviction on the ground that the assault occurred during the course of resisting arrest. The court denied that request, ruling that the two charges involved separate actions: “I think based upon the factual predicate there is evidence supporting the resisting arrest different from the evidence supporting the second[-]degree assault.” ⁵⁹⁵ Appellant noted an appeal from his conviction. Because appellate review of a guilty plea may only be obtained by an application for leave to appeal and because appellant’s notice of appeal lacked sufficient content to be deemed the substantive equivalent of an application for leave to appeal, this Court dismissed his appeal.

See Md.Code (1973, 2006 Repl. Vol.), § 12-302(e) of the Courts & Judicial Proceedings Article (“Section 12-301 of this subtitle does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sought by application for leave to appeal.”). Appellant subsequently filed a motion to correct an illegal sentence under Maryland Rule 4-345(a), which provides that “[tjhe court may correct an illegal sentence at any time.” He requested that his two assault convictions be merged into his resisting arrest convictions for sentencing purposes. 5 When the circuit court denied appellant’s motion, he noted this appeal.

Motion to Dismiss Moving to dismiss the instant appeal, the State asserts that the circuit court’s failure to merge appellant’s convictions for sentencing purposes does not render his sentence “illegal” under Rule 4-345(a), as the illegality, if there was one, did not inhere in the court’s sentence. And, because the sentence was not illegal under Rule 4-345(a), reasons the State, the circuit court properly denied appellant’s collateral attack on his sen ⁵⁹⁶ tence. Therefore, we must, insists the State, dismiss this appeal. As the Court of Appeals has explained, “[a] criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons,” but only a small subset of those deficiencies render a sentence “illegal” for the purposes of collateral attack under Rule 4-345(a).

Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506 (2007). Collateral review under Rule 4-345(a) is “limited to those situations in which the illegality inheres in the sentence itself; ie., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.” Id. Only if that definition of illegality is met will a court consider a “collateral and belated attack[ ]” on a sentence under Rule 4-345(a). Id.

It appears that we have not before addressed whether the failure to merge, for sentencing purposes, convictions for different crimes in a single prosecution, results in an illegality that “inheres in the sentence itself’ and, consequently, may be addressed in a Rule 4-345(a) motion, rather than on direct appeal. Our appellate courts have, however, considered similar kinds of claims in Randall Book Corp. v. State, 316 Md. 315 , 558 A.2d 715 (1989); Campbell v. State, 65 Md.App. 498 , 501 A.2d .111 (1985); and Ingram v. State, 179 Md.App. 485 , 947 A.2d 74 (2008). In Randall, the defendant, a corporate entity, was convicted, after a trial, of multiple counts of displaying obscene materials and received a separate fine for each conviction. 316 Md. at 318-19 , 558 A.2d 715 . After “exhaust[ing] all avenues of direct appeal,” the defendant collaterally attacked those fines in a motion to correct an illegal sentence that was filed, as in the instant case, pursuant to Rule 4-345(a).

Because Randall involved the imposition of multiple sentences for the violation of a single statute, the challenge was couched in terms of double jeopardy, not of merger. But both types of claims involve, what the Court of Appeals called, “multiple ⁵⁹⁷ punishment-same trial problems,” and the Court’s analysis of those problems, as we shall see, sheds light on the merger issue in the instant case. See Randall, 316 Md. at 324 , 558 A.2d 715 . In its motion to correct an illegal sentence, Randall alleged that the imposition of separate sentences for multiple violations of a single criminal statute “violate[d] the Double Jeopardy Clause of the Fifth Amendment because multiple sentences were imposed for the same offense.” Id. at 322 , 558 A.2d 715 .

The State contended that, although such a challenge could have been made on direct appeal, the sentences were not “illegal” under Rule 4-345(a) because each was “within the allowable statutory penalty for the offense” and, therefore, that the challenge could not be made in a collateral attack under that rule. Id. at 321 , 558 A.2d 715 . The Court of Appeals disagreed, holding that the argument that “multiple sentences were imposed for the same offense d[id] allege an illegal sentence within the meaning of Rule 4-345.” Id. at 322 , 558 A.2d 715 . In so holding, the Randall Court noted that “multiple punishment-same trial problems arise from two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction.” Id. at 324 , 558 A.2d 715 .

While Randall involved the second set of circumstances, the “multiple sentence-single statute problem[],” the instant case involves the first: the imposition of multiple sentences under two different criminal statutes— specifically, Maryland Code (2002, 2007 Supp.), § 9-408(b) of the Criminal Law Article, which proscribes resisting arrest, and § 3-203(c) of the same article, which proscribes second-degree assault against a law enforcement officer. The alleged error in both eases, however, is the same: multiple punishments were imposed for what was asserted to be the “same offense.” Hence, there is no reason not to reach the same conclusion, here, that the Court of Appeals did in Randall , ⁵⁹⁸ namely, that a challenge to such sentences may be made collaterally under Rule 4-345(a). We made a similar observation in Campbell . In that case, we said that separate sentences, whether concurrent or consecutive, imposed for convictions that should have been merged were “not permitted by law.” Campbell, 65 Md.App. at 510 , 501 A.2d 111 .

Although Campbell was decided on direct appeal, and not on collateral review under Rule 4-345(a), we cited, in reaching our conclusion, “the mandates of Rule 4-345(a)” and the fact that “an impermissible sentence” could be set aside on post-conviction review. Id. at 510-11 , 501 A.2d 111 . Finally, we turn to Ingram , but only for the distinction it drew in reaching a contrary result. In that case, we distinguished Randall and emphasized that there are certain double jeopardy violations that do not implicate Rule 4-345(a).

Ingram, 179 Md.App. at 509 , 947 A.2d 74 . But our analysis in that case, which involved multiple punishments in successive prosecutions, demonstrates why appellant’s contention, which involves multiple punishments in a single prosecution, is different. In Ingram , we held that a challenge to a sentence imposed after a second trial, that “should have been barred by the legal protections against double jeopardy,” did not allege an “illegal sentence” under Rule 4-345(a). Id.

In so holding, we noted that, although it appeared that the circuit court should have granted the defendant’s motion to dismiss a subsequent indictment after a prior conviction for the same conduct, a challenge to the sentence imposed after the second trial did not allege an error that inhered in the sentence itself. Id. at 511 , 947 A.2d 74 (citing Chaney, 397 Md. at 466-67 , 918 A.2d 506 ). In contrast to Randall and Campbell , the error in Ingram occurred prior to sentencing, not at it. Thus, the error, in Ingram , “relate[d] only indirectly to the sentence.” Id. at 509 , 947 A.2d 74 .

Hence, when the trial court is required to merge convictions for sentencing purposes but, instead, imposes a separate sentence for each unmerged conviction, it commits ⁵⁹⁹ reversible error. As in Randall , such an error implicates the illegality of imposing “multiple sentences ... [in a single prosecution] for the same offense.” See Randall, 316 Md. at 322-23 , 558 A.2d 715 . As in Campbell , the result is the imposition of a sentence “not permitted by law.” See Campbell, 65 Md.App. at 510 , 501 A.2d 111 . And, unlike in Ingram , the alleged error “relates ... [ ]directly to the sentence.” Cf.

Ingram, 179 Md.App. at 509 , 947 A.2d 74 . Thus, the illegality, in the words of the Chaney Court, “inheres in the sentence itself’ and may be challenged, collaterally, in a motion filed under Rule 4-345(a). Consequently, we shall deny the State’s motion to dismiss. Merger Appellant claims that his convictions for assaulting Officer Schwarz and Officer Moreau should have been merged, for sentencing purposes, into his conviction for resisting arrest because “the assaults were committed ... as part of [his]