Dixon v. State

²¹² HARRELL, Judge. On 12 December 1997, in the Circuit Court for Prince George’s County, a jury convicted Thomas Dalton Dixon, Petitioner, of attempted voluntary manslaughter, first degree assault, and the use of a handgun in the commission of a crime of violence. The trial judge sentenced Petitioner to twenty years imprisonment for first degree assault, ten years for attempted voluntary manslaughter (to be served concurrent with the sentence for first degree assault), and twenty years for the use of a handgun in the commission of a crime of violence (to be served consecutively to the sentence for first degree assault). On appeal, in an unreported opinion, the Court of Special Appeals reversed the judgments and remanded the case for a new trial.

Dixon v. State, No. 203, Sept. Term, 1998, unreported, 123 Md.App. 797 , filed 30 October 1998, cert. denied, 352 Md. 619 , 724 A.2d 21 (1999) (Dixon I). On remand, trial was commenced anew on the same charges, but presided over by a different trial judge. At the conclusion of the evidence, the State was permitted, over Petitioner’s objection, to enter a nolle prosequi 1 of the attempted voluntary manslaughter count. A jury again convicted Petitioner of first degree assault and the use of a handgun in the commission of a crime of violence.

The judge sentenced Petitioner to twenty years imprisonment for the first degree assault and twenty years for the handgun violation, to be served consecutive to the sentence on the assault conviction. The Court of Special Appeals, on direct appeal, affirmed. Dixon v. State, 133 Md.App. 325 , 755 A.2d 560 (2000) (Dixon II). ²¹³ We granted Petitioner’s petition for writ of certiorari, Dixon v. State, 361 Md. 433 , 761 A.2d 932 (2000), to consider the following question: Was Petitioner illegally sentenced to twenty years for first degree assault where in a prior trial he was convicted of attempted voluntary manslaughter and first degree assault and sentenced to concurrent terms of ten and twenty years, respectively, and the Court of Special Appeals, upon reversing the convictions, concluded for the trial court’s guidance on remand that first degree assault should have merged into attempted voluntary manslaughter, and on retrial the State was allowed, over objection, to nol pros the attempted voluntary manslaughter charge? I. The crime in this case occurred during the early morning hours on 23 May 1997.

According to the evidence, the victim, Edward Johnson, and his friend, Senee Paquita Waiters, after consuming their supply of crack cocaine, went in search of more. At approximately 2:00 a.m., they drove to the intersection of Virginia Avenue and Forest Terrace in Prince George’s County. Johnson had purchased drugs in this area before. Johnson pulled the car over to where two men were standing with Petitioner and asked the group if they had any drugs.

Petitioner responded affirmatively and told Johnson to drive the car to the other side of the street. Johnson complied and, after exiting the car, began talking with Petitioner. An altercation ensued, and Petitioner fired five shots, striking Johnson four times in the lower back and hip, and striking a bystander, Michael Prioleau, once in the eye. All of the charges upon which Petitioner was tried in the present case related to the acts against Johnson.

A Dixon I — The First Trial A jury, on 12 December 1997, convicted Petitioner of attempted voluntary manslaughter, first degree assault, and the use of a handgun in the commission of a crime of violence. At the same time, the jury found Petitioner not guilty of attempt ²¹⁴ ed first degree murder, attempted second degree murder, and reckless endangerment. At sentencing, Petitioner’s attorney argued that the first degree assault conviction merged into the attempted voluntary manslaughter conviction. 2 The trial judge apparently disagreed 3 and ordered separate sentences for each of Petitioner’s convictions — twenty years imprisonment for first degree assault, ten years concurrent for volun ²¹⁵ tary manslaughter, and twenty years for the use of a handgun in the commission of a crime of violence conviction, to be served consecutive to the assault conviction sentence. B. Dixon I — The Court of Special Appeals ’s Opinion The intermediate appellate court’s unreported opinion of 30 October 1998, directed vacation of the Circuit Court’s judgments and remanded the case for a new trial.

The Court of Special Appeals considered five questions in its opinion. With regard to the third question, the holding as to which served as the reason the intermediate appellate court vacated the trial court’s judgments, the court determined that the Circuit Court failed to make a sufficient inquiry into a reported violation during trial of its sequestration order. The appellate court, however, proceeded to volunteer to address the remaining four questions presented by Petitioner “for the court’s guidance on remand.” The fifth question 4 that the court addressed was whether “the trial court err[ed] by imposing separate sentences upon the convictions for first degree assault and attempted manslaughter.” Petitioner argued that, under the required evidence test, 5 the first degree assault conviction merged into the attempted voluntary manslaughter conviction. On the merger issue, the intermediate appellate court responded: ²¹⁶ First degree assault is a relatively new statutory crime which only took effect on October 1, 1996, and the question of whether it would merge into a manslaughter conviction is a matter of first impression.

The first degree assault crime appears as follows: (a) Serious physical injury; use of a firearm. — (1) A person may not intentionally cause or attempt to cause serious physical injury to another. (2) A person may not commit an assault with a firearm .... 6 Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 12A-1. On the other hand, attempted voluntary manslaughter 7 is a common law crime which requires the specific intent to kill and a substantial step toward the perpetration of a homicide in the heat of passion in response to legally adequate provocation. See Cox v. State, 69 Md.App. 396 [, 518 A.2d 132 ] (1986), aff’d, 311 Md. 326 [, 534 A.2d 1333 ] (1988).

An examination of the first prong of the first degree assault crime makes clear that there are no elements present which cannot be found as elements of attempted voluntary manslaughter. A conviction based on the first prong of first degree assault, therefore, would merge into a convic ²¹⁷ tion for voluntary manslaughter under the required evidence test. The second prong of first degree assault, however, contains at least the additional element of the use of a firearm. Thus, ... to determine whether [Petitioner’s] first degree assault conviction should merge into the voluntary manslaughter conviction, we must know which prong of the first degree assault crime was used to convict [Petitioner].

(Footnote omitted). The Court of Special Appeals concluded, however, that it was unable to make this latter determination as the record was ambiguous. The intermediate appellate court noted that the Circuit Court instructed the jury that it could convict Petitioner of first degree assault under either modality, (a)(1) or (a)(2), of the first degree assault statute (see supra note 6), and “the jury returned a verdict of guilty on the first degree assault charge without indicating which alternative it used to convict” Petitioner. The Court of Special Appeals then turned to the legislative history of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 12A-1, but determined that it did not shed light on whether the Legislature intended the statutory crime to be separate from attempted voluntary manslaughter.

The court next considered the “rule of lenity,” which the court described as “providing] that any ambiguity concerning whether the legislature intended multiple punishments for the same transaction will be resolved against creating multiple offenses out of the single transaction.” (Citing White v. State, 318 Md. 740, 744 , [ 569 A.2d 1271, 1273 ] (1990)); see infra note 38. The intermediate appellate court explained further: The Court of Appeals has applied the rule of lenity when one offense is statutory and the other common law. See White, 318 Md. at 745-47 , [ 569 A.2d at 1273-72 ]. That is the situation which confronts us. [Petitioner’s] shooting of Johnson was a single transaction from which both first degree assault, a statutory offense, and attempted manslaughter, a common law offense, resulted. ²¹⁸ The Court of Special Appeals concluded that under Snowden v. State, 321 Md. 612 , 583 A.2d 1056 (1991), supra note 5, due to the ambiguity regarding the exact basis of the jury’s verdict and the lack of guidance in the legislative history, the court must give Petitioner the benefit of the doubt and merge the sentence for first degree assault “into the greater sentence of attempted voluntary manslaughter.” C. Dixon II — The Second Trial On remand, Petitioner was tried again on the charges of attempted voluntary manslaughter, first degree assault, and the use of a handgun.

At the conclusion of the evidence, the State was permitted, over objection by Petitioner’s attorney, to enter a nolle prosequi as to the attempted voluntary manslaughter count. 8 The jury found Petitioner guilty of first degree assault and of the use of a handgun. At the sentencing hearing on 19 May 1999, a trial judge different than the one who presided in Dixon I considered the import of the Court of Special Appeals’s opinion in Dixon I. The colloquy was: THE COURT: There’s one wrinkle in this, but I think that the wrinkle can be explained away. [PETITIONER’S ATTORNEY]: I’m sorry. What is that? THE COURT: The wrinkle is this.

Judge Rymer [the trial judge in Dixon I ] sentenced him to 10 years for the involuntary— [PETITIONER’S ATTORNEY]: The attempted involuntary manslaughter. 9 THE COURT: — manslaughter, which was the maximum. He then sentenced him to 20 years for the first degree assault. The Court of Special Appeals said that the first degree assault actually merged into the involuntary man ²¹⁹ slaughter. I think that’s what they said.

If that is what they said, although it merges — see, he ran them concurrent. [PETITIONER’S ATTORNEY]: That is correct. THE COURT: Although it merges, I think it really reduces, in effect, the maximum sentence for first degree assault down to 10 years. I could be wrong. But I think it does.

And if you look at it that way, then the first degree assault, instead of being 20 years, would be 10 years. Although that might be the legal effect, and although I allowed the State to enter as nolle prosequi the involuntary manslaughter, I think the 20 years is still possible, because, see normally you can’t allow the State to enter nolle prosequi on something that’s going to be detrimental to the Defense in retrial.... And I allowed [the State] to nol pros that because it made sense to do that. So then that raises the issue, does that limit the first degree assault to 10 years, as opposed to 20 years, because the original sentence would have merged the 20-year sentence of the first degree assault into the 10 year sentence of the involuntary manslaughter, and would have resulted in a 10 year sentence.

I think that’s the law. It’s peculiar. THE COURT: I thought about this all during the trial. And I especially thought about it when I allowed you to nol pros involuntary manslaughter, because, normally, you cannot — you had a right to nol pros it because it was not a lesser included offense.

On the other hand, I don’t think you have a right to nol pros it to the detriment of the Defendant. I think the thought there is the same; that that goes through my mind. [Prosecution has not] mentioned this, but— [PROSECUTION]: I will address it, but I’ll wait till [Petitioner’s attorney] finishes his allocution. ²²⁰ THE COURT: Well, I’m sure I’ll understand what your position is going to be, and you may be 100 percent correct. But I want Annapolis to know that it has at least been considered. Petitioner’s attorney asked the trial judge, in light of the foregoing remarks, to sentence Petitioner to no more than ten years for the first degree assault conviction and to sentence him to a concurrent sentence, within the sentencing guidelines, on the use of a handgun in the commission of a felony or a crime of violence conviction.

The State responded that the trial judge was not limited to the ten year sentence on the involuntary manslaughter in Dixon I as to the first degree assault conviction in Dixon II because “[gjiven that in the posture with which this trial was brought before us now, most recently, there was no — well the attempted manslaughter was not a lesser included anything. And as Your Honor has said, that’s why you allowed me to nol pros that charge.” The State argued- that the judge should follow the intent of the trial judge in Dixon I, which was to sentence Petitioner to twenty years for first degree assault, notwithstanding the ten year concurrent sentence for attempted voluntary manslaughter. 10 The State further asserted that the intent of the judge in the first trial, that Petitioner serve a total of forty years— twenty years for first degree assault (the ten concurrent years for voluntary manslaughter being inconsequential to the sentencing in the second trial due to the nol pros) and twenty ²²¹ consecutive years for the use of a handgun in the commission of a crime of violence — should be followed in Dixon II. 11 The judge responded: I agree with [the State]. I think that’s the intent of 12-702(b); 12 that you do not exceed the sentence; not that you do not exceed the sentence for any particular offense, but that the overall sentence will not be exceeded in a retrial. I really believe that that is the intent of the Court’s Article, Item 702(B) [sic].

I really do. And I have thought about that very, very seriously. The judge then sentenced Petitioner to twenty years imprisonment for the first degree assault conviction and twenty years consecutive for the conviction of use of a handgun in the commission of a felony or a crime of violence. ²²² D. Dixon II — The Court of Special Appeals’s Second Opinion Petitioner appealed again to the Court of Special Appeals. The intermediate appellate court addressed, among other issues, the question of whether, in the sentences resulting from the second trial, the twenty year sentence for first degree assault violated Maryland Code (1974, 1998 Repl.Vol.), § 12-702(b) of the Courts & Judicial Proceedings Article (CJP).

Petitioner argued, employing CJP § 12-702(b), “that the merger of the first degree assault into attempted voluntary manslaughter alluded to by [the unreported Court of Special Appeals’s] opinion in Dixon I should compel a sentencing ‘cap’ of ten years, the maximum penalty for attempted manslaughter, at the retrial where an attempted manslaughter count was never submitted to the jury.” Dixon, 133 Md.App. at 336 , 755 A.2d at 566 . The Court of Special Appeals disagreed. The intermediate appellate court reasoned that the sentence resulting from the second trial did not result in a greater sentence than imposed in Dixon I in violation of CJP § 12-702(b). Dixon, 133 Md.App. at 338 , 755 A.2d at 567 .

The court began by reasoning that because the Circuit Court in the first trial actually did not sentence Petitioner to ten years for the attempted voluntary manslaughter/fírst degree assault conviction, regardless of whether the court should have for the purposes of CJP § 12-702(b) and the federal Due Process Clause, “it is beyond dispute that the standard against which we measure any subsequent sentence is the original sentence that actually WAS, not the sentence that arguably SHOULD HAVE BEEN.” Dixon, 133 Md.App. at 337 , 755 A.2d at 566 (emphasis in original). Disregarding the twenty-year consecutive sentences imposed at both trials for the unlawful use of a handgun as inconsequential to the present discussion, the court concluded that because no attempted voluntary manslaughter conviction resulted from the second trial, the ten year sentence imposed for attempted voluntary manslaughter at the first trial was not a factor to be considered at the second sentencing; the trial judge at the second trial was not limited in sentencing for the first degree assault by a ten year ²²³ cap. Id. Thus, the court reasoned that the twenty year sentence imposed at the second trial for first degree assault was the same sentence imposed at the first trial for first degree assault; there was no increase in sentence “within the contemplation of North Carolina v. Pearce [, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), (see infra pp. 223-25) ] or [CJP] § 12-702(b)” (see supra note 12).

Id. The Court of Special Appeals then discussed Petitioner’s “alternative theory for a sentencing cap.” 13 The court explained its interpretation of the difference between Petitioner’s alternative arguments: Whereas the earlier subcontention, involving the risk of vindictive resentencing, can only be triggered by the sequence of 1) an original conviction and sentence, 2) an appellate reversal followed by a retrial, and 3) a reconviction and resentencing, this second subcontention is unconcerned with any trial sequence. [Petitioner’s] argument would be precisely the same if there had never been an earlier trial. Even in the limited, present-tense context of a single trial, however, [Petitioner’s] argument does rely on the dicta from our opinion reviewing the first trial. Dixon, 133 Md.App. at 338 , 755 A.2d at 567 .

The intermediate appellate court determined: If the first degree assault in this case should turn out to have been a lesser included offense within the greater inclusive charge of attempted manslaughter, the ten-year ²²⁴ penalty “cap” should, indeed, have been applied. If, on the other hand, the first-degree assault in this case was not a lesser included offense, then there never was a penalty “cap” and the twenty-year sentence for the assault was properly imposed. What remains for us to consider, therefore, is the senior/junior relationship between those two offenses under the circumstances of this case. Dixon, 133 Md.App. at 343 , 755 A.2d at 570 .

In determining this alternative argument, and thus focusing on the second trial rather than on the first, the court resolved, relying primarily upon Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988), Vogel v. State, 76 Md.App. 56 , 543 A.2d 398 (1988), Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977), and State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978), that unlike the first trial, as discussed in dicta in the unreported Court of Special Appeals’s opinion in Dixon I, there was no ambiguity in the second trial “as to the basis for the jury’s verdict of guilty on the charge of first degree assault,” and thus there was no need to call upon the “rule of lenity” to clarify any vagueness regarding the basis for the first degree assault conviction. Rather, “[t]he hypothetical possibility discussed in the dicta never came to pass.” Dixon, 133 Md.App. at 343-53 , 755 A.2d at 570-75 . The court reasoned that it was clear [in the second trial] that the variety of first-degree assault that would merge into a conviction for attempted voluntary manslaughter was NOT REQUIRED to sustain the first-degree assault conviction here. That conviction rested, albeit redundantly, on an independent basis.

That independent rationale, moreover, had a unique element, the use of a firearm, NOT REQUIRED to prove attempted voluntary manslaughter. Dixon, 133 Md.App. at 353 , 755 A.2d at 575 (emphasis in original) (applying Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988)). Thus, the court concluded that first degree assault conviction in the second trial was not the lesser included offense of attempted voluntary manslaughter and ²²⁵ “was not, therefore, subject to any penalty ‘cap.’ ” Dixon, 133 Md.App. at 354 , 755 A.2d at 575 . We disagree with the Court of Special Appeals.

We conclude that convictions for attempted voluntary manslaughter and first degree assault of the (a)(1) variety merge under the required evidence test, while the (a)(2) variety does not. At Petitioner’s first trial, the jury was instructed as to both theories of first degree assault, and the record was uncertain as to which basis, (a)(1) or (a)(2), of the statute the jury relied on in rendering its conviction of first degree assault. In sentencing at the second trial, the trial judge should have been restricted in his sentence for the first degree assault conviction by the ten year sentence for attempted voluntary manslaughter imposed at the trial in Dixon I. The sentence of ten years for attempted voluntary manslaughter, with twenty concurrent years for first degree assault, was an illegal sentence. Because the sentence from the first trial was illegal, the trial court was bound in its sentencing in the second trial by what would have been the legal sentence of ten years, regardless of the nolle prosequi for attempted voluntary manslaughter at the second trial.

II

A. Maryland Code (1974, 1998 Repl.Vol.), § 12-702(b) Maryland Code (1974, 1998 Repl.Vol.), § 12-702(b) of the Courts & Judicial Proceedings Article, supra note 12, states, in pertinent part, that, at a new sentencing following a successful appeal, re-trial, and conviction, “the lower court may impose any sentence authorized by law to be imposed as punishment for the offense.” (Emphasis added). In addition, the lower court “may not impose a sentence more severe than the sentence previously imposed for the offense ” unless three conditions are met, see supra note 12. (Emphasis added). Recently, we visited the province of CJP § 12-702(b) in Davis v. State, 312 Md. 172 , 539 A.2d 218 (1988).

We explained that CJP § 12-702(b) was Maryland’s legislative response to the due process holding of North Carolina v. ²²⁶ Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). Davis, 312 Md. at 177 , 539 A.2d at 220 (citing Sweetwine v. State, 288 Md. 199, 214 , 421 A.2d 60 , cert. denied, 449 U.S. 1017 , 101 S.Ct. 579 , 66 L.Ed.2d 477 (1980)). Pearce “created a prophylactic rule to be applied in certain cases involving increased sentences following retrial” and held “that due process requires not only that vindictiveness play[s] no part in the resentencing, but also that a defendant must be freed of apprehension of such a retaliatory motivation.” 14 Id. The Supreme Court in Pearce concluded: [T]o assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.

Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. 15 Pearce, 395 U.S. at 726 , 89 S.Ct. at 2081 , 23 L.Ed.2d 656 ; see Davis, 312 Md. at 177 , 539 A.2d at 220 . We have made clear, however, that “[CJP] § 12-702(b) is a statement of legislative policy that stands independent of ²²⁷ current Supreme Court notions of what due process may require.” Davis, 312 Md. at 178 , 539 A.2d at 221 (internal quotation marks omitted) (quoting Jones v. State, 307 Md. 449, 454-55 , 514 A.2d 1219 (1986)). We elaborated previously in Jones v. State, 307 Md. 449 , 514 A.2d 1219 (1986): [T]he General Assembly did not say “We enact Pearce as it now stands or may hereafter be modified by the Supreme Court.” It enacted a clear and specific law.

That fact that “the scope and thrust of Pearce ” have been “clarified” in [Texas v. ] McCullough, 475 U.S.[134, 142], 106 S.Ct. [976], 982, 89 L.Ed.2d [104 (1986) ] or modified in Wasman [v. United States, 468 U.S. 559 , 104 S.Ct. 3217 , 82 L.Ed.2d 424 (1984) ] does not change what the statute says, any more than would the statute be repealed were the Supreme Court to overrule Pearce in toto. Even if the Supreme Court now believes that due process does not now forbid what it seemed to prohibit in Pearce ... that has no bearing on the General Assembly’s statutory policy and the intent embodied in it. Jones, 307 Md. at 454-55 , 514 A.2d at 1222 (citing Briggs v. State, 289 Md. 23, 31-32 , 421 A.2d 1369, 1374-75 (1980)), see Davis, 312 Md. at 178 , 539 A.2d at 221 . Petitioner contends that his sentence in his second trial is illegal as it violates CJP § 12-702(b).

He argues: the sentence that was actually imposed for first degree assault, 20 years, was illegal because, as the Court of Special Appeals concluded in [Petitioner’s] first appeal, first degree assault merged into attempted voluntary manslaughter. Thus, “the sentence previously imposed” [, pursuant to Maryland Code (1974, 1998 Repl.Vol.), § 12 — 702(b),] for first degree assault was 10 years, the sentence that was imposed for attempted voluntary manslaughter. Petitioner’s Br., at 11. According to Petitioner, the Circuit Court in the second trial was required to base its sentencing for first degree assault on the “lawful” sentence of ten years for attempted voluntary manslaughter that should have been imposed.

The State avers though that Petitioner’s logic has ²²⁸ taken a “wrong turn” and that Petitioner’s twenty year sentence for first degree assault resulting from the second trial was not an illegal increase in a sentence following appeal because there was no net increase in his original sentence. The State argues that because it nol prossed the attempted voluntary manslaughter charge, in the second trial, and the Circuit Court judge sentenced Petitioner to two consecutive terms of twenty years for first degree assault and the use of a hand gun charges, the Circuit Court judge “imposed precisely the same sentence of [twenty] years for first-degree assault that was originally imposed.” Respondent’s Br., at 2-3. We agree with Petitioner’s interpretation of CJP § 12-702(b) that the statute mandates that the sentencing following the second trial be circumscribed by a lawful sentence resulting from the first trial. It is clear that, in CJP § 12-702(b), the sentence imposed on remand must be one that is “authorized by law.” Again, the court “may not impose a sentence more severe than the sentence previously imposed for the offense” (withstanding the three conditions, supra note 12).

Therefore, as it must be “authorized by law,” the new sentence must be based on a sentence that was legal when “previously imposed.” Our analysis then turns to whether the initial sentence of twenty years for first degree assault, with ten concurrent years for attempted voluntary manslaughter, was legal. 16 The Court of Special Appeals, in its reported opinion in Dixon II, incorrectly concluded otherwise; the court should have followed what it pejoratively described as Petitioner’s “Orwellian revision of history.” Instead, the intermediate appellate court concluded that CJP § 12-702(b), regarding “the sentence previously imposed for the offense,” means only that sentence “originally imposed,” without considering whether that originally imposed sentence was lawful. Dixon, 133 Md.App. at 337 , 755 A.2d at 567 . The court stated: ²²⁹ For purposes of both the Maryland Rule and the federal Due Process Clause, it is beyond dispute that the standard against which we measure any subsequent sentence is the original sentence that actually WAS, not the sentence that arguably SHOULD HAVE BEEN. The “sentence previously imposed” is the sentence that first came from the mouth of the sentencing judge — right or wrong, lawful or unlawful, constitutional or unconstitutional — and not the subsequent fate of that sentence, as it may have been cut or trimmed or shaped or in any way reformed by ex post facto appellate analysis.

When Judge Rymer pronounced his sentences on December 12, 1997, that sentencing event, was for purposes of North Carolina v. Pearce and Md. Rule 12-702(b) [sic], locked immutably into history. No dicta of ours can change what Judge Rymer did. We may alter the effect of what he did, but cannot change the fact that he did it. Neither may a leap of logic by [Petitioner]. “The moving finger writes and, having writ, moves on....” Id.

(emphasis in original). It is incorrect, however, to reach the conclusion that the Legislature intended that CJP § 12-702(b), if the original sentence imposed was unlawful, authorized the sentencing court, on remand, to impose an unlawful sentence. 17 The Court of Special Appeals was quick in its reasoning to cite to the purpose of Pearce and of CJP § 12-702(b); however, it also implicitly must have imagined that the authors of Pearce or of CJP § 12-702(b) apparently meant ²³⁰ that, although intending to avoid vindictiveness, they would permit the outer limit of a defendant’s sentence on retrial and conviction to include a previous unlawful sentence. 18 Petitioner, in his reply brief to this Court, provides a hypothetical that demonstrates and exemplifies the error of the limits identified in the Court of Special Appeals’s interpretation of CJP § 12-702(b). He writes: A defendant is convicted by a jury of involuntary manslaughter and use of a handgun in the commission of a crime of violence. The trial court sentences the defendant to three years imprisonment for involuntary manslaughter.

On the use of a handgun count, the court imposes a concurrent three year term despite the fact that Art. 27, § 36B(d), mandates a sentence of not less than 5 years without parole. The defendant appeals, and the Court of Special Appeals orders a new trial. At the new trial, the defendant is again convicted of involuntary manslaughter and use of a handgun. Accepting the State’s premise that for the purposes of [CJP] § 12-702(b) “the sentence previously imposed” is the sentence that was actually imposed even if that sentence is illegal, the trial court cannot impose a sentence more severe than three years for use of a handgun.

The Legislature plainly did not intend this result, which would defeat the mandate of § 36B(d). The sentence actually imposed by the trial court cannot operate as a sentencing cap under [CJP] § 12-702(b) if it is more severe than the maximum sentence authorized by law or less severe than the minimum sentence required by law, regardless of whether the illegality favors the State or the defendant. We shall divert from the destination to which the Court of Special Appeals leads — that if “the sentence previously imposed” may be illegal, then, on remand, following a new trial, ²³¹ the court may impose the same illegal sentence. That result leads to illegal sentences ad infinitum.

In essence, assuming the first sentence was for an illegal twenty years instead of a legal ten years, then Petitioner is worse off for appealing the case — exactly what the Court in Pearce and the Legislature in CJP § 12-702(b) attempted to avoid. Before, however, determining the legality of the first sentence, we must address the effect that the nolle prosequi of the attempted voluntary manslaughter charge has on the present case, if any. Our preceding discussion ignores (for the sake of demonstration and interpretation of CJP § 12-702(b)) that action and assumes that the same charges existed at the first and the secopd trial. To deduce otherwise permits the State, assuming that in the first trial the two charges should have merged and the legal maximum sentence was ten years, to increase a sentence that would not have been permitted to be augmented under CJP § 12-702(b).

On this point, Petitioner argues: [T]he sole reason for the increase was the nolle prosequi of the attempted voluntary manslaughter charged by the State. It would be anomalous indeed if a sentence could be increased under [CJP] § 12-702(b) because the State dropped the charge. An increase in sentence is clearly not permitted under [CJP] § 12-702(b) simply because the prosecutor nol[ ] prossed the attempted voluntary manslaughter charge to get it “out of the way.” Though not directly on point, in that the cases did not involve CJP § 12-702(b), we have employed a line of reasoning, similar to what Petitioner argues here, in Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), Gerald v. State, 299 Md. 138 , 472 A.2d 977 (1984), and Johnson v. State, 310 Md. 681 , 531 A.2d 675 (1987) (infra note 24), to demonstrate why we would not permit the entry of a nolle prosequi (or an acquittal) to cause a defendant to receive a higher sentence. 19 These cases ²³² also demonstrate that, assuming merger is applicable and as was broached at oral argument, the nolle prosequi could not have been permitted in the first trial and thus could not be permitted in the second trial. Analogizing those cases to the present one avoids situations in which the State nol prosses one charge, a greater offense, and proceeds on the lesser included offense, which has a greater penalty than the greater offense, and thus, because of the nolle prosequi, the defendant is subject to the greater sentence of the lesser included offense.

In the present case, assuming merger of the attempted voluntary manslaughter and first degree assault convictions, regardless of the nolle prosequi, the trial judge should have been bound in sentencing by the sentence for the attempted voluntary manslaughter conviction. We then do not have to consider necessarily the nolle prosequi; however, the Simms-Gerald-Johnson line of cases, not permitting a nolle prosequi, provides similar reasoning why we cannot permit the second sentencing in the present case to be based on an illegality in the initial sentencing. In Simms v. State, 288 Md. 712 , 421 A.2d 957 , we decided two cases together —Simms v. State and Thomas v. State. In the latter case, the defendant was charged with, inter alia, assault with intent to rob, with a maximum sentence of ten years, and simple assault, 20 both based on the same alleged conduct.

Simms, 288 Md. at 717 , 421 A.2d at 960 . At the close of evidence, but before the case went to the jury, the State nol prossed 21 the charge of assault with intent to rob. ²³³ Simms, 288 Md. at 718 , 421 A.2d at 960 . The defendant was found guilty of simple assault and was sentenced to twelve years. 22 We determined that because “all of the elements of simple assault are present in the offense of assault with intent to rob” and both are based upon the defendant’s same acts, they are “deemed the same for merger and double jeopardy purposes.” Id. We stated further that “simple assault is a lesser included offense of assault with intent to rob” and that “if a defendant were found guilty of both, he could not receive a separate sentence for each offense.

Instead, a sentence could be imposed only for the greater offense of assault with intent to rob.” Simms, 288 Md. at 718-19 , 421 A.2d at 960-61 (citations omitted). We concluded: To uphold the twelve year sentences [Simms’s and Thomas’s] under these circumstances would be to sanction an extreme anomaly in the criminal law. It would permit a defendant to be punished more severely because of an acquittal on a charge. He would have fared better if he were less successful or had pled guilty to the greater charge of assault with intent to rob....

Accordingly, we hold that when a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convicted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence ²³⁴ which could have been imposed had he been convicted of the greater charge. 23 Simms, 288 Md. at 724 , 421 A.2d at 963-64 . In Gerald v. State, 299 Md. 138 , 472 A.2d 977 , the defendant was charged, in part, with, armed robbery carrying a maximum sentence of twenty years, robbery carrying a maximum sentence of ten years, and simple assault. Gerald, 299 Md. at 139 , 472 A.2d at 978 . A jury found him guilty only on the assault charge, and he was sentenced to fifteen years.

Gerald, 299 Md. at 139-40 , 472 A.2d at 978 . We noted that the three charges arose out of the same incident and that “[l]ike a little fish being eaten by a bigger fish which in turn is eaten by a yet bigger fish, simple assault is swallowed by robbery which then is swallowed by armed robbery.” Gerald, 299 Md. at 140-41 , 472 A.2d at 979 . Likening Gerald to Simms , we concluded: [WJhen the State placed Gerald in jeopardy on both the armed robbery and robbery charges, it was seeking a prosecution not only on a charge carrying a maximum possible sentence of 20 years, but, in the alternative, a charge carrying a maximum possible sentence of only 10 years---- Had it believed that Gerald’s conduct was so atrocious as to warrant a sentence subject only to constitutional limitations, it could have gone to trial only on the simple assault charge, see Simms, 288 Md. at 726-27 , 421 A.2d 957 , or, if it thought that justice would be served by a possible maximum sentence of 20 years, it could have proceeded on the armed robbery and assault charges. Of course, in such event, the prosecution would have to enter a nolle prosequi before jeopardy attached with respect to the ²³⁵ charges it did not wish to pursue.

But by putting Gerald to trial on both aggravated assaults, the prosecution indicated its acquiescence to a possible maximum sentence of 10 years. Under such circumstances, it is unfair to permit the State to exact a more severe and unanticipated penalty than that which could have been imposed if the prosecution, even though not able to prove armed robbery, had been successful in proving robbery. See Simms, 288 Md. at 724 , 421 A.2d 957 . The short of it is that the “flagship crime” governing the sentence to be imposed in the case sub judice was the robbery and not the armed robbery.

The maximum possible sentence that could be imposed on Gerald’s conviction of assault was, therefore, 10 years, and the sentence of 15 years which was imposed was illegal. Gerald, 299 Md. at 145-46 , 472 A.2d at 981 . Thus, we determined that the ten year maximum sentence for robbery provided the maximum that could be imposed on the simple assault conviction. 24 B. Dixon I — Legality of Initial Sentences 1. Required Evidence Test To determine whether, in the second trial (Dixon II), the trial judge, in sentencing Petitioner on the first degree assault conviction, was limited to the ten year sentence imposed in Dixon I for the attempted voluntary manslaughter according to CJP § 12-702(b), we must decipher whether attempted voluntary manslaughter merges with first degree assault, and if so under what reasoning. 25 ²³⁶ The doctrine of merging of offenses, as applicable in the present case, stems in part from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, applicable to state court proceedings via the Fourteenth Amendment.

See Nightingale v. State, 312 Md. 699, 702 , 542 A.2d 373, 374 (1988) (citing Benton v. Maryland, 395 U.S. 784, 787 , 89 S.Ct. 2056, 2058 , 23 L.Ed.2d 707, 711 (1969)); Newton v. State, 280 Md. 260, 262-63 , 373 A.2d 262, 263 (1977). The Double Jeopardy Clause states that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” “The Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the offense.” 26 Newton, 280 Md. at 263 , 373 A.2d at 264 (citing United States v. Wilson, 420 U.S. 332, 342-43 , 95 S.Ct. 1013, 1021 , 43 L.Ed.2d 232 (1975); Pearce, 395 U.S. at 717 , 89 S.Ct. at 2076 , 23 L.Ed.2d 656 ); see Nightingale, 312 Md. at 702-03 , 542 A.2d at 374 (citing Newton, 280 Md. at 263-65 , 373 A.2d at 264-65 ). Under federal double jeopardy principles and Maryland merger law, the principal test for determining the identity of offenses is the required evidence test. 27 Nightingale, 312 ²³⁷ Md. at 703, 542 A.2d at 374 (quoting Newton, 280 Md. at 268 , 373 A.2d at 266 ); see Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Williams v. State, 323 Md. 312, 316-17 , 593 A.2d 671, 673 (1991); State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978); Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976). In Nightingale , we described the required evidence test as the following: If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge.

However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited. Nightingale, 312 Md. at 703 , 542 A.2d at 374 -75 (quoting Newton, 280 Md. at 268 , 373 A.2d at 266 ); see Frye, 283 Md. at 714 , 393 A.2d at 1375-75 ; Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056, 1058-59 (1991). Additionally, as we have noted, “[t]he required evidence test, or ‘same evidence test,’ 28 or ‘elements test’ as it is sometimes called, applies to both common law offenses and statutory offenses.” Williams, 323 Md. at 317 , 593 A.2d at 673 ; Ferrell, 313 Md. at 297-98, 545 A.2d at 656. ²³⁸ 2. Application of the Required Evidence Test We have not before determined whether attempted voluntary manslaughter merges with first degree assault so that first degree assault is the lesser included offense of the greater offense of attempted voluntary manslaughter.

We shall examine first the elements of each offense. It is important to note at the outset of this analysis that “[wjhere there is a merger of a lesser included offense into a greater offense, we are not concerned with penalties — the lesser included offense generally merges into and is subsumed by the greater offense regardless of penalties.” Spitzinger v. State, 340 Md. 114, 125 , 665 A.2d 685, 690 (1995) (citing Simms, 288 Md. 712 , 421 A.2d 957 ). Attempted voluntary manslaughter is a common law crime, which occurs when an individual, engaged in an altercation, suddenly attempts to perpetrate a homicide caused by heat of passion in response to legally adequate provocation, and where the attempt results in something less than the actual wrongful killing, that person may be convicted of attempted voluntary manslaughter under the common law of Maryland. Cox v. State, 311 Md. 326, 334 , 534 A.2d 1333, 1337 (1988).

Broken into its component parts, voluntary manslaughter is “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool.” Cox, 311 Md. at 331 , 534 A.2d at 1335 (citations omitted); see Selby v. State, 361 Md. 319, 332 , 761 A.2d 335, 342 (2000) (citations omitted). Criminal attempt “consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation.” Bruce v. State, 317 Md. 642, 646 , 566 A.2d 103, 104-05 (1989) (citing Cox, 311 Md. at 330 , 534 A.2d 1333 ). Therefore, attempted voluntary manslaughter requires an attempted homicide in the heat of passion in response to a legally adequate provocation. As noted supra note 6 and accompanying text, first degree assault is a statutory offense and states in pertinent part: ²³⁹ (a) Serious physical injury; use of a firearm. — (1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm. Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 12A-1. According to the statute, a person can be convicted of first degree assault for either intentionally “caus[ing] or attempting] to cause serious physical injury to another” 29 or “committing] an assault with a firearm.” Attempted voluntary manslaughter clearly has a different required mens rea — an intent to kill — than first degree assault, which requires the specific intent to cause, or attempt to cause, serious physical injury. Upon examination of the first modality, (a)(1), of the first degree assault statute, however, it is clear that (a)(1) is subsumed by attempted voluntary manslaughter.

Attempted voluntary manslaughter requires a specific intent to commit a homicide, which embodies an intention to cause or attempt to cause serious physical injury as required by (a)(1). We set out a useful example in Bruce v. State, 317 Md. 642, 647-48 , 566 A.2d 103, 105 (1989), that aids our present analysis: Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, C, and D have each taken the life of another, A acting with the intent to kill, B with the intent to do serious bodily injury, C with reckless disregard of human life, and D in the ²⁴⁰ course of a dangerous felony, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to so serious bodily harm, that he acted in reckless disregard for human life, or that he was committing a dangerous felony.

Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about