Garner v. State

WATTS, J. We decide: (I) whether, under Md.Code Ann., Crim. Law (2002, 2012 Repl.Yol.) (“CR”) § 4-204, imposition of separate consecutive sentences for two convictions of use of a handgun in the commission of a crime of violence or any felony is permissible where a defendant uses one handgun to commit two separate crimes of violence or felonies against one victim in one criminal transaction; and (II) whether this case should be remanded for re-sentencing on the ground that the trial court imposed a sentence that was inconsistent with CR § 4-204. We hold that: (I) under CR § 4-204, imposition of separate consecutive sentences for two convictions for use of a handgun in the commission of a crime of violence or any felony is permissible where a defendant uses one handgun to commit two separate crimes of violence or felonies against one victim in one criminal transaction because the unit of prosecution is the crime of violence, not the victim or criminal transaction; and (II) this case should be remanded for re-sentencing because the trial court did not impose a sentence that was consistent with CR § 4-204. BACKGROUND The State, Respondent/Cross-Petitioner, charged Terance Garner (“Garner”), Petitioner/Cross-Respondent, in the Circuit Court for Baltimore City (“the circuit court”), in Case Numbers 111031032 and 111031033, with various crimes, including attempted first-degree murder and attempted robbery with a dangerous weapon.

In the circuit court, a jury tried Garner and his co-defendant, Davon Butler (“Butler”). ²³¹ Trial At trial, as a witness for the State, Baltimore Police Officer Jacob Reed (“Officer Reed”), who worked in the Southeastern District, testified as follows. On December 18, 2010, he was on patrol at approximately 6:00 a.m. when he received a call “for shots fired” in the 100 block of North Ellwood Avenue in Baltimore City. Officer Reed drove to that location and saw a man lying between two vehicles. The man appeared to be suffering from several gunshot wounds to the neck, stomach, and right leg.

The man told Officer Reed: “[T]hey tried to rob me.” After Officer Reed asked the man who shot him, the man said “black guys” and “point[ed] northbound.” Officer Reed saw seven shell casings on the ground approximately six or seven feet away from the man. Officer Reed also saw a winter coat, a cellular telephone, a set of keys, a flash drive, and one shoe on the ground near the man. Officer Reed secured the scene; no suspects were apprehended on the day of the shooting. As a witness for the State, Detective Frank Miller with the Baltimore City Homicide Unit testified that, on December 27, 2010, the man identified Garner from a photographic array.

As a witness for the State, the man, Ben Baya WaBeya (“WaBeya”) testified as follows. WaBeya is a native of the Democratic Republic of Congo, who fled his native country and was granted asylum in the United States. WaBeya lived in the Highlandtown neighborhood of Baltimore City and worked at Casa de Maryland, which was located four blocks from his residence. On December 18, 2010, WaBeya decided to walk to work in the morning rather than wait for the bus.

As he was walking, two men, whom WaBeya identified as Garner and Butler, stopped him. Garner and Butler asked WaBeya: “[C]an we get the weed? Can you give us the weed?” WaBeya saw one of the men move his hands, and feared that the man might be armed with a knife, so WaBeya turned and ran from East Fayette Street to North Ellwood Avenue. As WaBeya ran, he was hit by two bullets and felt pain in his right leg.

WaBeya ²³² could not continue running and sat down on North Ellwood Avenue between two vehicles. Garner and Butler chased after WaBeya and caught up with him. The following occurred: [Garner] came to me with a gun, he point me a gun, give me your money. This one was there with him.

I look at them when I was sitting down. The first thing — I say, brothers, I don’t have money. I tried to talk to them politely, I say, brothers, I don’t have money. [Garner] talk to this guy, he tell him to go and check the movement of the police. [Butler] left where he was, he go to the corner of [East] Fayette and [N]orth El[l]wood trying to see the movement of the police and people coming. So, I remember this guy face to face pointing me a gun.

He start shooting me over and over. When he shot me four bullets on my leg, I feel very pain, I say I don’t have money. I remove all my clothes that I have at that time, I remove the jacket, everything. I let them, I said you can check, if you see the money, take the money, leave me.

The man say, where is the money? Check your underwear, he thought I was having the money in the underwear, something like that. The man start again, he shoot me again, four bullets this side. He repeat again, he shoot me a bullet here.

So, I feel like it was very serious and the man doesn’t have compassion for human beings. I cry in my heart, I’m going to die now. So, I say, my brother, can you take whatever you want? And the last thing it was, take even my shoes.

The man didn’t want, he shoot me four bullets in my stomach here, shot me like this. Suddenly I see myself, my inside come like this on me and I see that it was over for me. What happened to me is I remember that — this before they want to take my life now, I tried to protect myself. There was a truck — because I was between the cars where I was sitting.

Suddenly I jump on the truck to protect this part and my head. ²³³ The man — after I jump on the truck, this man come to me, he look on me on the truck, he shoot me this bullet here, the last one, on the side of the neck. For me everything was over and I left where I was hanging, they ran away. After they ran away I see myself sitting on my blood. WaBeya emptied his pockets to show Garner and Butler that he did not have any money.

WaBeya identified various items found on the street as his belongings, including a jacket, a shoe, and a flash drive. WaBeya incurred injuries to his right femur, chest, left hand, and neck. As a result of the shooting, WaBeya was hospitalized for four months, and suffered permanent injuries; 1 three bullets were unable to be removed. At the conclusion of the trial, the jury convicted Garner, in Case Number 111031032, of attempted robbery with a dangerous weapon, first-degree assault, use of a handgun in the commission of a crime of violence, 2 and unlawfully wearing, carrying, or transporting a handgun, and, in Case Number 111031033, of attempted first-degree murder, use of a handgun in the commission of a crime of violence, and unlawfully wearing, carrying, or transporting a handgun. 3 Sentencing On June 29, 2012, the circuit court sentenced Garner to thirty years’ imprisonment for attempted first-degree murder; twenty years’ imprisonment consecutive for use of a handgun in the commission of a crime of violence, the first five years to ²³⁴ be served without the possibility of parole; fifteen years’ imprisonment concurrent for attempted robbery with a dangerous weapon; and one year imprisonment consecutive for the second conviction for use of a handgun in the commission of a crime of violence.

For sentencing purposes, the conviction for first-degree assault merged with the conviction for attempted robbery with a dangerous weapon, and the two convictions for unlawfully wearing, carrying, or transporting a handgun merged with the two convictions for use of a handgun in the commission of a crime of violence. Other Procedural History Garner appealed, and, in an unreported opinion, the Court of Special Appeals affirmed, holding that the circuit court was correct in sentencing Garner to separate consecutive sentences for the two convictions for use of a handgun in the commission of a crime of violence. The Court of Special Appeals observed that, under CR § 4 — 204(c)(1), a sentencing court is required to impose a minimum sentence of five years’ imprisonment, but, “[f]or some reason, the [circuit] court in this case only imposed a one-year sentence[.]” The Court of Special Appeals reasoned, however, that, under the plain language of CR § 4-204(c)(2), the circuit court “did not impose an illegal sentence[.]” 4 Garner petitioned for a writ of certiorari, raising one issue: “Are separate consecutive sentences for use of a handgun in the commission of a crime of violence prohibited when a single handgun is used in committing two crimes against a single victim in one transaction?” The State conditionally cross-petitioned for a writ of certiorari, raising one issue: “Where the Court of Special Appeals correctly determined that the [circuit] court imposed an illegal sentence, but failed to correct that illegal sentence, should this Court correct the illegal ²³⁵ nature of the sentence?” This Court granted the petition and the conditional cross-petition. See Garner v. State, 438 Md. 739 , 93 A.3d 288 (2014).

DISCUSSION I. Garner contends that separate consecutive sentences for two convictions for use of a handgun in the commission of a crime of violence are prohibited where one handgun is used to commit two crimes against one victim in one criminal transaction. 5 Garner argues that the victim, not the underlying crime of violence, is the unit of prosecution for the crime of use of a handgun in the commission of a crime of violence; Garner asserts that, in this case, because there was only one victim, two convictions and sentences are impermissible. Alternatively, Garner maintains that, even if the unit of prosecution is the underlying crime of violence, the second conviction for use of a handgun in the commission of a crime of violence must merge for sentencing purposes with the first conviction under the required evidence test, the rule of lenity, and the principle of fundamental fairness. The State responds that the circuit court was correct in imposing separate consecutive sentences for the two convictions for use of a handgun in the commission of a crime of violence. The State contends that the unit of prosecution for the crime of use of a handgun in the commission of a crime of violence is the underlying, “distinct crime of violence[.]” The State argues that each use of a handgun to commit a crime of violence is “a distinct wrong that warrant[s] separate punishment.” The State asserts that the General Assembly intended each violation of CR § 4-204 to be subject to a separate penalty. ²³⁶ In a reply brief, Garner contends that this Court has interpreted CR § 4-204 to permit separate convictions and sentences only where there are multiple victims.

Garner argues that the General Assembly has not evinced a clear intent to authorize multiple convictions for use of a handgun in the commission of a crime of violence where there is one victim and one criminal transaction. The Fifth Amendment to the United States Constitution provides, in relevant part: “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb[.]” 6 “The Double Jeopardy Clause protects a criminal defendant against ... multiple punishment for the same offense.” Brown, v. State, 311 Md. 426, 431 , 535 A.2d 485, 487 (1988) (citations omitted). “Multiple punishment challenges generally arise” where a statute “proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription.” Id. at 431 , 535 A.2d at 487 (citation omitted). Here, the question is whether the unit of prosecution for use of a handgun in the commission of a crime of violence is the victim or the underlying crime of violence. “[Wjhether a particular course of conduct constitutes one or more violations of a single statutory offense ... turn[s] on the unit of prosecution of the offense[, which] is ordinarily determined by reference to legislative intent.” Purnell v. State, 375 Md. 678, 692 , 827 A.2d 68, 76 (2003) (citation and internal quotation marks omitted); see also Moore v. State, 198 Md.App. 655, 680 , 18 A.3d 981, 995 (2011) (“The key to the determination of the unit of prosecution is legislative intent.”' (Citations omitted)); Triggs v. State, 382 Md. 27, 43 , 852 A.2d 114, 124 (2004) (“[T]he unit of prosecution reflected in the statute controls ²³⁷ whether multiple sentences ultimately may be imposed.”). Legislative intent, in turn, is determined by “looking] first to the words of the statute, read in the light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence.” Davis v. State, 319 Md. 56, 60 , 570 A.2d 855, 857 (1990) (citation and internal quotation marks omitted).

In State v. Weems, 429 Md. 329, 337 , 55 A.3d 921, 926 (2012), we reiterated the general rules of statutory interpretation, stating: To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction. We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the [General Assembly] in enacting the statute.

(Citation omitted) (asterisks in original). We begin by setting forth the pertinent statute’s language. CR § 4-204, entitled “Use of a handgun or antique firearm in commission of crime,” provides, in its entirety, as follows: (a) “Firearm” defined. — (1) In this section, “firearm” means: (i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon. (2) “Firearm” includes an antique firearm, handgun, rifle, shotgun, short-barreled rifle, short-barreled shotgun, starter gun, or any other firearm, whether loaded or unloaded. ²³⁸ (b) Prohibited. — A person may not use a firearm in the commission of a crime of violence, as defined in § 5-101 of the Public Safety Article, [ 7 ] or any felony, whether the firearm is operable or inoperable at the time of the crime.

(c) Penalty. — (l)(i) A person who violates this section is guilty of a misdemeanor and, in addition to any other penalty imposed for the crime of violence or felony, shall be sentenced to imprisonment for not less than 5 years and not exceeding 20 years. (ii) The court may not impose less than the minimum sentence of 5 years and, except as otherwise provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole in less than 5 years. (2) For each subsequent violation, the sentence shall be consecutive to and not concurrent with any other sentence imposed for the crime of violence or felony. In Brown, 311 Md. at 434-35 , 535 A.2d at 489 , this Court held that the unit of prosecution for use of a handgun in the commission of a crime of violence, as set forth in Art. 27, § 36B(d) — CR § 4-204’s predecessor 8 — was the crime of violence.

In Brown, 311 Md. at 429 , 535 A.2d at 486 , in two cases, the defendant was convicted of, and separately sentenced for, six counts of use of the handgun in the commission of a crime of violence. In the first case, “the crimes of violence were two armed robberies arising from a single ²³⁹ criminal transaction involving two victims”; and, in the second case, “the crimes of violence were four armed robberies arising from a single criminal transaction involving four victims.” Id. at 433 , 535 A.2d at 488 . Before this Court, the defendant contended that the unit of prosecution under Art. 27, § 36B(d) was the criminal transaction. Id. at 434, 535 A.2d at 488 .

We disagreed with the defendant, and instead agreed with the State that the unit of prosecution under Art. 27, § 36B(d) was the crime of violence. Id. at 434, 535 A.2d at 489 . We concluded that Art. 27, § 36B(d)’s language “plainly indicate[d] that the prohibited act is the use of a handgun in the commission of a felony or violent misdemeanor[,]” and explained: [Art. 27, §] 36B(d) states, with emphasis added, that “[a]ny person who shall use a handgun in the commission of any felony or any crime of violence” is guilty of a handgun use offense. According to Webster’s New International Dictionary (unabr. ed. 1959), “any” is defined as “[[Indicating a person, thing, etc., as one selected without restriction or limitation of choice, with the implication that everyone is open to selection without exception; one, no matter what one; all, taken distributively; every.” To like effect, see Black’s Law Dictionary (5th ed. 1979).... “Any” appears not only before the words “felony” and “crime of violence” but also before the word “person.” We find that the [General Assembly]^ use of the term “any” before “person” imparts a clear and unambiguous meaning to its use of “any” before “felony” and “crime of violence” and the meaning imparted is one which is consistent with the ordinary meaning of “any.” It means “every.” At least in the context of multiple victims, nothing in the language of [Art. 27,] § 36B(d) suggests, as argued by [the defendant], that there can be only one handgun use offense per criminal transaction.

Brown, 311 Md. at 435-36 , 535 A.2d at 489 (emphasis and some alterations in original). We concluded, after review of the legislative history of Art. 27, § 36B(d), that there was “no support for the position advanced by” the defendant — that the ²⁴⁰ unit of prosecution was the criminal transaction — and, accordingly, this Court enforced the statute “as written” and affirmed the convictions for use of a handgun in the commission of a crime of violence. Id. at 436, 535 A.2d at 490 . 9 After Brown , both this Court and the Court of Special Appeals continued to recognize that the unit of prosecution for use of a handgun in the commission of a crime of violence is the crime of violence. For example, in Webb v. State, 311 Md. 610, 617 , 536 A.2d 1161, 1165 (1988), in discussing Art. 27, § 36B(d), we explained: This is not a possession crime and is not a continuing offense.

It consists of a definite act or a definite result of some act. If the circumstances involving the use of the prohibited weapon put two persons at risk or concern two distinct incidents, there are two separate and distinct violations of the statute, permitting two convictions and two punishments. The unit of prosecution is the crime of violence. This is so because the act prohibited by [Art. 27,] § 36B(d) is the use of a handgun in the commission of a felony or violent misdemeanor.

(Citations and internal quotation marks omitted). 10 And, in Curtin v. State, 165 Md.App. 60, 75-76 , 884 A.2d 758 , 767 ²⁴¹ (2005), aff'd, 393 Md. 593 , 903 A.2d 922 (2006), the Court of Special Appeals rejected the defendant’s argument that CR § 4-204 somehow mandated identifying a different unit of prosecution than Art. 27, § 36B(d), stating: In Brown v. State, 311 Md. 426 , 535 A.2d 485 (1988), the Court of Appeals made clear that, under former [Art. 27, §] 36B(d), the unit of prosecution for use of a handgun in the commission of a crime of violence was the number of crimes of violence against each victim.... [The defendant] does not attempt to distinguish his case from Brown , but asks us to interpret recodified [CR §] 4-204 as now precluding the imposition of multiple sentences in situations like his own.... After considering [the defendant’s arguments, we are unpersuaded.... We find no support for the position advanced by [the defendant] that [CR §] 4-204 now requires reaching a different conclusion than that advanced by the Court of Appeals when interpreting [Art. 27, §] 36B(d) in Brown . (Paragraph breaks omitted).

Here, we hold that, under CR § 4-204, imposition of separate consecutive sentences for two convictions for use of a handgun in the commission of a crime of violence is permissible where a defendant uses one handgun to commit two separate crimes of violence against one victim in one criminal transaction because the unit of prosecution is the crime of violence, not the victim or criminal transaction. CR § 4-204(b)’s plain language provides, in pertinent part, that “[a] person may not use a firearm in the commission of a crime of violence, as defined in § 5-101 of the Public Safety ²⁴² Article, or any felony[.]” CR § 4-204(b)’s language is clear and unambiguous — a person may not use a handgun to commit a statutorily defined crime of violence or any felony. In other words, CR § 4-204(b) criminalizes the use of a handgun in any felony (without limitation on which felony) or in one of the statutorily defined crimes of violence (limiting the crime of violence to those defined by statute). It is the crime of violence or felony, not the victim or the criminal transaction, that forms the basis for the handgun conviction; indeed, CR § 4-204 makes no mention whatsoever of the victim or the criminal transaction.

Thus, CR § 4-204 criminalizes the use of a handgun in each felony or crime of violence committed by a defendant; stated otherwise, a defendant may be convicted of, and sentenced for, use of a handgun in the commission of a crime of violence corresponding to each underlying felony or crime of violence of which the defendant is convicted. CR § 4-204(b)’s plain language demonstrates the General Assembly’s intent to permit multiple convictions and sentences for each violation of CR § 4-204; in other words, CR § 4-204(b)’s plain language leads to the inescapable conclusion that CR § 4-204 authorizes a separate conviction and sentence for each felony or crime of violence. Because we conclude that CR § 4-204(b)’s language is unambiguous and clearly consistent with CR § 4-204’s apparent purpose — to criminalize the use of a handgun in each felony or crime of violence — we need not delve into the General Assembly’s intent. Lest there be any doubt, however, that the unit of prosecution for use of a handgun in the commission of a crime of violence is the crime of violence, we note that our conclusion is bolstered by the long history of this Court and the Court of Special Appeals of reaching the same conclusion as to both CR § 4-204 and its predecessor.

See, e.g., Webb, 311 Md. at 617 , 536 A.2d at 1165 (“The unit of prosecution is the crime of violence. This is so because the act prohibited by [the statute] is the use of a handgun in the commission of a felony or violent misdemeanor.” (Citation and internal quotation marks omitted)); Brown, 311 Md. at 435-36 , 535 A.2d at 489 (The statute “plainly indicate[d] that ²⁴³ the prohibited act is the use of a handgun in the commission of a felony or violent misdemeanor.... At least in the context of multiple victims, nothing in the language of [the statute] suggests ... that there can be only one handgun use offense per criminal transaction.”); Curtin, 165 Md.App. at 75-76 , 884 A.2d at 767 (“[T]he Court of Appeals made clear that ... the unit of prosecution ... was the number of crimes of violence against each victim.... We find no support for the position advanced by [the defendant] that [the statute] now requires reaching a different conclusion than that advanced by the Court of Appeals ... in Brown.”); Battle v. State, 65 Md.App. 38, 50-51 , 499 A.2d 200, 206-07 (1985), cert. denied, 305 Md. 243 , 503 A.2d 252 (1986) (“[W]e need only find sufficient evidence that there were two separate underlying crimes of violence, and that a handgun was used in each.

That both of the underlying crimes evolved from one act of the [defendant] — the use of the handgun — does not preclude such a finding.”); Manigault v. State, 61 Md.App. 271, 283 , 486 A.2d 240, 246 (1985) (“[T]here would be two separate crimes of violence — murder and robbery. Each could support a separate conviction for the use of a handgun to commit a crime of violence.”). We reject Garner’s contention that, in Brown ,, we held that the statute permits separate convictions and sentences only where there are multiple victims. To be sure, Brown, 311 Md. at 429, 433 , 535 A.2d at 486, 488 , involved the circumstance that there were two armed robberies, each involving multiple victims, and thus, our analysis was guided by that circumstance.

Nevertheless, nothing in Brown mandates that the unit of prosecution for use of a handgun in the commission of a crime of violence is the victim. Obviously, where there are multiple victims, multiple convictions and sentences for use of a handgun in the commission of a crime of violence are permissible. Whether there are multiple victims or only one victim, however, the unit of prosecution — the crime of violence — does not change. Stated otherwise, the unit of prosecution for the crime of use of a handgun in the commission of a crime of violence is the crime of violence, be there one ²⁴⁴ victim, two victims, or a hundred victims.

As a corollary, because the unit of prosecution is the crime of violence, it follows that, if more than one crime of violence is committed against one victim, there may be multiple convictions and sentences for use of a handgun in the commission of a crime of violence for each separate crime of violence or felony committed against the victim. As we did in Webb, 311 Md. at 617-18 , 536 A.2d at 1165 , we note that there is a difference between use of a handgun in the commission of a crime of violence and wearing, carrying, or transporting a handgun. The former is “a definite act or a definite result of some act[,]” ie., an affirmative act; by contrast, the latter is a “continuing crime” of possession with “no requirement as to time, use, person at risk or incident.” Id. at 617-18 , 536 A.2d at 1165 . Thus, so long as there is sufficient evidence to support the conviction for each underlying crime