Clark v. State

Jamel Clark v. State of Maryland, No. 430, September Term 2019. CRIMINAL LAW > SENTENCTING AND PUNISHMENT REVIEW HARMLESS AND REVERSIBLE ERROR If certain convictions are required to be merged for sentencing purposes, and they are not, the trial court has committed “reversible error,” and as a matter of law, the sentence is illegal. DOUBLE JEOPARDY > SENTENCTING AND PUNISHMENT PROHIBITION OF MULTIPLE PROCEEDINGS OR PUNISHMENTS Fundamentally, the Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the offense. DOUBLE JEOPARDY > SENTENCTING AND PUNISHMENT PROHIBITION OF MULTIPLE PROCEEDINGS OR PUNISHMENTS EFFECT OF PROCEEDINGS AFTER ATTACHMENT OF JEOPARDY By virtue of Maryland common law, double jeopardy forbids a defendant from being put in jeopardy again for the same offense—in jeopardy of being convicted of a crime for which he has been acquitted; in jeopardy of being twice convicted and punished for the same crime.

SENTENCING AND PUNISHMENT > SENTENCE ON CONVICTION OF DIFFERENT CHARGE SINGLE TRANSACTION OR COURSE OF CONDUCT PROOF OF FACT NOT REQUIRED FOR OTHER OFFENSE The required evidence test stands as: the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. SENTENCING AND PUNISHMENT > SENTENCE ON CONVICTION OF DIFFERENT CHARGE SINGLE TRANSACTION OR COURSE OF CONDUCT PROOF OF FACT NOT REQUIRED FOR OTHER OFFENSE If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. SENTENCING AND PUNISHMENT > SENTENCE ON CONVICTION OF DIFFERENT CHARGE SINGLE TRANSACTION OR COURSE OF CONDUCT PROOF OF FACT NOT REQUIRED FOR OTHER OFFENSE MERGER OF OFFENSES When a defendant is convicted of a felony involving a controlled dangerous substance, they have been disqualified from possessing a firearm, while someone who has not been convicted of a felony under Title 5 of the Criminal Law Code is allowed to possess a firearm, within the purview of the law and subject to other prerequisites.

Essentially, CR § 5-622 places a condition on who can and cannot possess a firearm. On the other hand, CR § 4-303 places no condition on whether someone can or cannot possess an assault weapon. Under section (a)(2) of CR § 4-303, no person can possess an assault weapon, notwithstanding the limited exceptions noted in CR § 4-303(b). SENTENCING AND PUNISHMENT > SENTENCE ON CONVICTION OF DIFFERENT CHARGE SINGLE TRANSACTION OR COURSE OF CONDUCT PROOF OF FACT NOT REQUIRED FOR OTHER OFFENSE MERGER OF OFFENSES Appellant’s conviction for possession of an assault weapon was not required to be merged, for sentencing purposes, into the conviction for possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance, since each crime required proof that the other did not, and each offense can exist without the other.

Md. Code Ann., Crim. Law (“CR”) § 5-622(b), CR § 4-303(a)(2). SENTENCING AND PUNISHMENT > SENTENCE ON CONVICTION OF DIFFERENT CHARGE SINGLE TRANSACTION OR COURSE OF CONDUCT PROOF OF FACT NOT REQUIRED FOR OTHER OFFENSE MERGER OF OFFENSES A defendant can in fact be subject to the offense of possession of a firearm having been previously convicted of a felony involving a controlled dangerous substance, and not to the offense of possession of an assault weapon, simply because while all assault weapons may be firearms, not all firearms are assault weapons. CRIMINAL LAW > IN GENERAL NATURE AND ELEMENTS OF CRIME RULE OF LENITY The rule of lenity—a principle of statutory interpretation—can require the merger of sentences even when the required evidence test has not been satisfied and is only applicable where at least one of the two offenses subject to the merger analysis is a statutory offense.

CRIMINAL LAW > IN GENERAL NATURE AND ELEMENTS OF CRIME RULE OF LENITY STATUTORY PROVISIONS CONSTRUCTION AND OPERATION IN GENERAL LIBERAL AND STRICT CONSTRUCTION In a “probing examination” of the rule of lenity, this Court has acknowledged that “an inquiry into legislative intent is not only meaningless when at least one statute is not involved but is also meaningless when two statutes were enacted years apart and were not focused on the same subject matter. Therefore, if two separate criminal statutes create separate offenses based on different criminal behavior with different criminal consequences, and there is no relevant legislative history suggesting that the Legislature intended to prohibit the imposition of separate sentences for the two separate crimes, then the rule of lenity is inapplicable. CRIMINAL LAW > IN GENERAL NATURE AND ELEMENTS OF CRIME RULE OF LENITY STATUTORY PROVISIONS CONSTRUCTION AND OPERATION IN GENERAL LIBERAL AND STRICT CONSTRUCTION Undoubtedly, these two criminal statutes proscribe two different criminal behaviors, with differing legislative policies behind their enactment, along with distinct punishments for violation of the prohibited acts stated therein. We do not find any indication of ambiguity in the application of these statutes, nor do we believe that it is “intrinsically unclear” as to the circumstances in which the statutes would be applicable.

CR § 5-622(b), CR § 4- 303(a)(2). CRIMINAL LAW > IN GENERAL NATURE AND ELEMENTS OF CRIME SENTENCE ON CONVICTION OF DIFFERENT CHARGE FUNDAMENTAL FAIRNESS Fundamental fairness is one of the most basic considerations in all our decisions in meting out punishment for a crime. In deciding whether fundamental fairness requires merger, we have looked to whether the two crimes are part and parcel of one another, such that one crime is an integral component of the other. CRIMINAL LAW > SENTENCTING AND PUNISHMENT REVIEW PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW Although a defendant may attack an illegal sentence by way of direct appeal, the fundamental fairness test does not enjoy the same procedural dispensation of [Md.] Rule 4–345(a) that permits correction of an illegal sentence without a contemporaneous objection.

CRIMINAL LAW > SENTENCTING AND PUNISHMENT REVIEW PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW Appellant did not properly preserve his fundamental fairness argument for appellate review. Nevertheless, even if Appellant had not waived his contention regarding fundamental fairness, we are not persuaded that this principle would compel merger of Appellant’s sentences. The legislature obviously intended to punish these two acts separately, and not under one sentence. Additionally, CR § 4-303 and CR § 5-622 punish separate instances of wrongdoing.

Circuit Court for Baltimore City Case No. 118250011 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 430 September Term, 2019 ______________________________________ JAMEL CLARK v. STATE OF MARYLAND ______________________________________ Fader, C.J., Reed, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Reed, J. ______________________________________ Filed: April 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-10-23 14:04-04:00 Suzanne C. Johnson, Clerk After a jury trial in the Circuit Court for Baltimore City, Jamel Clark (“Appellant”) was convicted of possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance, in violation of Md. Code Ann., Crim. Law (“CR”) § 5-622(b), and possession of an assault weapon, in violation of CR § 4-303(a)(2).

The trial court imposed two, consecutive sentences for a total eight-year sentence. Appellant raises a single question on appeal, which we have rephrased for clarity:1 I. Must Appellant’s sentences for possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance and possession of an assault weapon be merged, where they were based on the possession of a single firearm? For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On March 6, 2018, while in jail for reasons not disclosed by the record, Appellant called his girlfriend, Ms. McGregor.

During the recorded conversation, Appellant asked Ms. McGregor about the location of his truck, to which she replied that it was sitting “out front,” which meant it was in front of her house. When Appellant questioned if she had “moved his stuff,” she informed him that “the stuff was still wrapped up” and that she had moved it to the back closet “on top of the Christmas tree box.” Appellant further inquired 1 Appellant presents the following question: 1. Must this Court merge Mr. Clark’s sentences for possession of a firearm under Md. Code Ann., Crim. Law § 5-622 (b) and possession of an assault weapon under Md. Code Ann., Crim.

Law § 4-303 (a)(2) where the two offenses were based on the possession of a single firearm? of Ms. McGregor as to whether someone could see the “stuff,” and she answered, “No.” Detective Ian Smith (“Detective Smith”) listened to this recorded call and based on what he heard Appellant say to Ms. McGregor, he applied for a warrant to search Ms. McGregor’s house for contraband. The next day, on March 7, 2018, Detective Smith and six officers executed the warrant at Ms. McGregor’s house. When Ms. McGregor answered the door, the officers asked her if there “was anything in the house that they needed to know about,” and she informed them that there was a weapon in the basement of the home, on top of the Christmas tree box. Ms. McGregor then directed the officers to the basement closet where they found the weapon, wrapped in clothes, on top of the Christmas tree box.

The weapon was identified at trial as an Encom America 45-caliber semi-automatic pistol. When asked whose gun it was, Ms. McGregor confessed that Appellant had brought the weapon to her house. This exchange was captured on several officers’ body-worn cameras. Appellant was subsequently charged with five firearm possession offenses and illegal possession of ammunition.2 Three of the six counts were nol prossed by the State, while the remaining three counts — possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance, possession of an assault weapon and illegal possession of ammunition — went to trial.

On March 29, 2019, a trial was held, and the State called Detective Smith to testify as to the steps he took in discovering the weapon, from listening to Appellant’s jail call, to 2 While executing the warrant, the officers also recovered a box of ammunition for a firearm that was not an Encom America 45-caliber semi-automatic pistol. 2 executing the warrant. He explained during his testimony that when he executed the search warrant at Ms. McGregor’s house, he was looking for contraband, either “a firearm of some type” or “drugs of some kind.” He also testified that because he has listened to hundreds of jail calls, he can recognize when people are discussing contraband. The State also called Ms. McGregor, who testified about the search of her home on March 7, 2018. She testified that during the search, when first asked about whose gun it was that officers found in the basement, she did not answer, and after officers “alluded to arresting [her],” she stated that Appellant brought the weapon to her house.

However, at trial, Ms. McGregor testified that “another friend” of hers brought the gun to her home. Ms. McGregor stated that she lied because Appellant was already in jail, and her other friend might not be a threat to her and her child. The State then proceeded to play two video clips from the body-worn cameras as prior inconsistent statements. In the first clip, Ms. McGregor led the officers to the gun and said that the gun did not belong to her, but she did know how it got there.

In the second clip, the officers repeatedly asked Ms. McGregor about who brought the gun to her house, and she eventually admits that it was Appellant. At the end of the trial, the State read a stipulation between the state and defense into evidence, which stated: The Defendant has been charged with possession of a firearm. The parties hereby stipulate that the Defendant is prohibited from possessing a firearm because of a previous condition that prohibits his possession of a firearm. The parties also stipulate that the firearm in question is classified as an assault pistol.

After deliberations, the jury convicted Appellant of possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance, in 3 violation of CR § 5-622(b), and possession of an assault weapon, in violation of CR § 4- 303(a)(2). Appellant was acquitted of illegal possession of ammunition pursuant to Md. Code Ann., Pub. Safety § 5-133.1 (b). Appellant was subsequently sentenced to two consecutive sentences, first for five years and then three years (the statutory maximums), for a total of eight years.

This timely appeal followed. DISCUSSION A. Parties’ Contentions Appellant argues that his sentences must merge for four reasons: (1) under the required evidence test, possession of an assault weapon is a lesser included offense of possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance; (2) even if they do not merge under the required evidence test, they must merge because the legislature intended for them to merge; (3) even if the legislature’s intent is ambiguous, the rule of lenity requires that the sentences merge; and (4) principles of fundamental fairness compel merger. The State asserts that under the required evidence test, the sentences do not merge because each conviction requires distinct evidence. The State maintains that the rule of lenity does not apply, because the General Assembly did not intend for CR § 4-303 and CR § 5-622 to merge for sentencing purposes, nor are the statutes ambiguous.

Additionally, the State notes that the doctrine of fundamental fairness does not compel merger because the circuit court has discretion in determining whether it will merge sentences. 4 B. Standard of Review If certain convictions are required to be merged for sentencing purposes, and they are not, the trial court has committed “reversible error,” and as a matter of law, the sentence is illegal. Britton v. State, 201 Md. App. 589 , 598–99 (2011). We take note that Appellant did not argue at sentencing that his sentences should merge. However, “[w]e have held that because of the inherent illegality of the sentence, the normal preservation requirements do not apply in this context.” Latray v. State, 221 Md. App. 544, 555 (2015) (citing Pair v. State, 202 Md. App. 617, 624 (2011)).

Pursuant to Maryland Rule § 4-345(a), a court “may correct an illegal sentence at any time.” Considering that the trial court’s determination regarding sentencing is governed by the Criminal Law article, we must examine whether the trial court’s conclusions were legally correct under a de novo standard of review. Blickenstaff v. State, 393 Md. 680, 683 (2006). C. Analysis Required Evidence Test As applied to the States through the Fourteenth Amendment, the Fifth Amendment’s Double Jeopardy Clause states that no person “shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see also Benton v. Maryland, 395 U.S. 784, 787 (1969).

Fundamentally, “[t]he Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the offense.” Newton v. State, 280 Md. 260 , 262—63 (1977). By virtue of Maryland common law, double jeopardy forbids “a defendant [from being] ‘put in jeopardy again for the same offense—in jeopardy of being convicted of a crime for 5 which he has been acquitted; in jeopardy of being twice convicted and punished for the same crime.’” State v. Griffiths, 338 Md. 485, 489 (1995) (quoting Gianiny v. State, 320 Md. 337, 347 (1990)). The standard outlined by the Supreme Court in deciding whether two offenses are deemed to be one in the same for double jeopardy purposes is the Blockburger test. Blockburger v. United States, 284 U.S.