Gerald v. State

Alpert, J., delivered the opinion of the Court. Stephen Eugene Gerald, the appellant, was convicted by a jury in the Criminal Court of Baltimore of common law assault and was sentenced to fifteen years imprisonment. He filed a Motion to Correct an Illegal Sentence, which was denied, and on appeal questions the propriety of that denial. Appellant’s argument is bottomed upon the fact that, in addition to assault, he was also charged, inter alia, with robbery with a dangerous and deadly weapon and robbery, which carry maximum sentences of 20 and 10 years respectively.

See, Md. Ann. Code art. 27 §§486, 488. He claims that had he been convicted on the robbery count, the assault conviction would have merged into the robbery count as a lesser included offense. See, Beard v. State, 42 Md. App. 276 , 399 A.2d 1383 (1979). Inasmuch as the maximum sentence for robbery is 10 years imprisonment, he claims, citing Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980) and Walker v. State, 53 Md. App. 171 , 452 A.2d 1234 (1982) that "the court had no power to impose a sentence on the assault conviction greater than the maximum sentence permitted upon conviction of simple robbery.” In denying (by way of a letter) appellant’s motion, the trial judge found: Having considered the Motion to Correct the Illegal Sentence, filed by counsel, and the points and authorities therein cited, I do not believe the sentence I imposed to be illegal under Simms v. State, 288 Md. 712 (1980), as the greater charge was robbery with a dangerous and deadly weapon carrying a maximum sentence of twenty years.

(emphasis supplied). Thus, the issue boils down to whether the greater (robbery) or greatest (robbery with a dangerous and deadly ⁴⁸⁵ weapon) possible offense for which appellant had been tried and into which his assault conviction would have merged should have been considered in determining the maximum permissible sentence. 1 We hold that the trial judge did not err in imposing a fifteen year sentence and accordingly shall affirm the judgment of the lower court. Simms, supra, involved two defendants who were tried for assault with intent to rob, carrying a ten year maximum sentence, and common law assault, for which no maximum penalty is proscribed other than a constitutional prohibition against cruel and unusual punishment. The two charges were based upon the same acts.

While acquitted on the assault with intent to rob charge, they were convicted of assault and sentenced to twelve years imprisonment. The Court of Appeals held that: [W]hen 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 which could have been imposed had he been convicted of the greater charge. Simms, supra, 288 Md. at 724 , 421 A.2d at 964 . Underlying the Court’s decision in Simms was a concern that the defendant not receive a sentence greater than that which he should have anticipated receiving had the prosecution been wholly successful.

In relevant part the Court reasoned: ⁴⁸⁶ To uphold the twelve year sentences 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.... Furthermore, Simms and Thomas each received something more severe than the maximum for which he was prosecuted.

When the State decided to charge assault with intent to rob as well as simple assault based on the same acts, and to proceed to trial on both charges, the State was, as a matter of legal necessity under Johnson v. State, supra, 283 Md. at