Grandison v. State

Woodward, C.J. In 1983, Anthony Grandison, appellant, for a fee of $9,000, hired his friend, Vernon Lee Evans, to murder Scott Piechow-icz and his wife, Cheryl Pieehowicz, to prevent them from testifying against him in a then-pending criminal trial in the United States District Court for the District of Maryland. Grandison v. State, 305 Md. 685, 697 , 506 A.2d 580 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 , and reh’g denied, 479 U.S. 1001 , 107 S.Ct. 611 , 93 L.Ed.2d 609 (1986). Pursuant to their unlawful agreement, Evans succeeded in murdering Scott Pieehowicz but failed in killing Cheryl Pie-ehowicz, instead murdering her sister, Susan Kennedy, by mistake. 1 Id. Later that year, Grandison, Evans, and two others 2 were tried in the United States District Court for the District of Maryland on charges of conspiracy to violate civil rights resulting in death, in violation of 18 U.S.C. § 241 , and witness tampering, in violation of 18 U.S.C. § 1512 .

United States v. Grandison, 780 F.2d 425, 428 (4th Cir. 1985), vacated sub nom. Kelly v. United States, 479 U.S. 1076 , 107 S.Ct. 1270 , 94 L.Ed.2d 132 (1987), aff'd on remand, 885 F.2d 143 (4th Cir. 1989), cert. denied, 495 U.S. 934 , 110 S.Ct. 2178 , 109 L.Ed.2d 507 (1990). All four defendants were convicted of both charges, id., and Grandison, in particular, was sentenced to life imprisonment and a consecutive term of ten years’ imprisonment. Grandison, 305 Md. at 698 , 506 A.2d 580 .

The following year, after removal of the Maryland case to Somerset County at Grandison’s request, 3 he was convicted, by a jury sitting in the Circuit Court for Somerset County, of conspiracy to murder, two counts of first-degree murder, and use of a handgun in the commission of a crime of violence. Id. He was thereafter sentenced, by the jury, to death sentences for both first-degree murders, and the court imposed a sentence of “life imprisonment for the conspiracy conviction and twenty years for the handgun violation consecutive to the life sentence.” Id. Both of the latter sentences “were imposed to run consecutively to the life plus ten years sentence previously imposed in the federal case.” Id.

Grandison subsequently filed a post-conviction petition, in the Circuit Court for Somerset County, and, in 1992, that court, relying upon the Supreme Court’s decision in Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), 4 vacated his death sentences but otherwise denied his claims. Grandison v. State, 341 Md. 175, 194 , 670 A.2d 398 (1995), cert. denied, 519 U.S. 1027 , 117 S.Ct. 581 , 136 L.Ed.2d 512 (1996), and reh’g denied, 519 U.S. 1143 , 117 S.Ct. 1021 , 136 L.Ed.2d 897 (1997). At resentencing, a jury in Somerset County reimposed the two death sentences for the murders of Scott Piechowicz and Susan Kennedy. Id.

Grandison thereafter lodged repeated challenges, in both state and federal court, to those sentences, finally gaining a temporary reprieve when, in 2006, the Court of Appeals enjoined the State from carrying out the death penalty against his co-defendant, Evans, because the protocols governing the method of administering that penalty, lethal injection, had been adopted, held the Court, in a manner that violated the Maryland Administrative Procedure Act. Evans v. State, 396 Md. 256, 344-46, 350 , 914 A.2d 25 (2006), cert. denied, 552 U.S. 835 , 128 S.Ct. 65 , 169 L.Ed.2d 53 (2007). 5 That injunction was to remain in effect until new protocols were promulgated in accordance with the Maryland Administrative Procedure Act, id. at 350, 914 A.2d 25 , but such new protocols were never promulgated. See Fiscal and Policy Note (Revised), S.B. 276, at 3-5 (2013), Instead, the General Assembly repealed the death penalty in 2013. 2013 Md. Laws, eh. 156, § 3. Meanwhile, on June 6, 2013, Grandison filed, in the Circuit Court for Somerset County, the first of two motions to correct an illegal sentence (which he supplemented several times) that are the subject of the present appeals.

Following two hearings, the circuit court, on November 13, 2014, issued a memorandum opinion and order granting relief, at the State’s own concession, on a single claim—that the twenty-year sentence imposed for use of a handgun in the commission of a crime of violence was illegal, because, at the time Grandison committed that offense, its maximum penalty was fifteen years’ imprisonment. 6 Accordingly, the circuit court vacated Grandison’s twenty-year sentence for that crime and imposed a fifteen-year term of imprisonment, consecutive to his life sentence for conspiracy as well as to Grandison’s federal sentences. But it denied all of his other claims. Grandison noted a timely appeal from that order, raising the following questions: I. Did the circuit court abuse its discretion in ruling appellant’s convictions for first degree murder did not merge with his conviction for use of a handgun in the commission of [ ] a felony or crime of violence under the required evidence test?

II

Did the circuit court abuse its discretion in holding a motion to correct illegal sentence is not the appropriate forum to consider appellant’s allegations his sentences are illegal under the Bartkus exception to dual sovereignty?

III

Did the circuit court abuse its discretion in holding the jury was properly hearkened since a mere hearkening of counts of an indictment without specifying the offense does not constitute a hearkening of the verdict as to first degree murder or any other offense?

IV

Did the circuit court abuse its discretion in ruling after vacating sentence under Mills the court had the authority to resentence and there was no legal requirement the resentencing jury announce their findings in open court or requirement to poll or hearken their findings? V. Did the circuit court abuse its discretion in imposing the fifteen year sentence for use of a handgun in the commission of a felony or crime of violence consecutive to Grandison’s federal sentences of life plus ten years after the federal authorities made those sentences run concurrent with the State sentences? Then, in 2015, Governor Martin O’Malley, exercising his pardon power, commuted Grandison’s death sentences to sentences of life imprisonment without the possibility of parole. Executive Order 01.01.2015.05 (Jan. 20, 2015).

Thereafter, Grandison filed, in the Circuit Court for Somerset County, a second motion to correct an illegal sentence. The circuit court subsequently issued a written memorandum opinion and order denying that motion. Grandison noted a timely appeal from that order, raising two question for review, which we have slightly rephrased as follows: I. Did the circuit court abuse its discretion in denying appellant’s motion to correct illegal sentence in holding that the former Governor had authority under Maryland Constitution, Art, II, § 20 to sua sponte exercise executive powers to commute Grandison’s death sentences to life imprisonment without the possibility of parole without an application having been made seeking commutation? II, Did the circuit court abuse its discretion in holding that the former Governor’s commutation of his sentences of death to life imprisonment without the possibility of parole did not violate Art, 17 of the Maryland Declaration of Rights, which prohibits ex post facto laws in criminal cases?

On this Court’s own motion, we consolidated these appeals. DISCUSSION I, Appeal No. 2039 A. Grandison claims that the circuit abused its discretion in ruling that his convictions for first-degree murder did not merge with his conviction for use of a handgun in the commission of a felony or crime of violence under the required evidence test. This claim is without merit. Although the Court of Appeals held, in State v. Ferrell, 313 Md. 291, 297 , 545 A.2d 653 (1988), that use of a handgun in the commission of a felony or crime of violence and the predicate felony or crime of violence are the same offense under the required evidence test, that holding addressed a different circumstance—-whether the predicate offense and the handgun offense could be tried in successive prosecutions.

Ferrell held that they could not be tried in successive prosecutions. Id. Ferrell said nothing about whether separate sentences may be imposed for those crimes if they are brought in the same trial. The question before us was squarely addressed by the Supreme Court in Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).

There, the Court held: Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger,[ 7 ] a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. Id. at 368-39 , 103 S.Ct. 673 . At the time the offenses at issue were committed, the statute proscribing unlawful use of a handgun stated as follows: Unlawful use of handgun in commission of crime.—Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor ... be sentenced to the Maryland Division of Correction[.] Md. Code (1957, 1982 Repl. Vol., Supp. 1982), Art. 27, § 36B(d). 8 It is manifest that the General Assembly intended that a separate sentence be imposed upon any person convicted of a violation of Section 36B(d), “in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor.” Id.; see, e.g., Whack v. State, 288 Md. 137, 145-49 , 416 A.2d 265 (1980) (holding that separate sentences may be imposed for a violation of Section 36B(d) and the predicate offense, where both convictions were the result of the same act, so long as the charges are brought in a single trial), cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981).

Given that unambiguous expression of legislative intent, and the Supreme Court’s instruction in Missouri v. Hunter, it is clear that Grandison’s claim fails. 9 B. As noted earlier, Grandison was prosecuted in both federal and Maryland courts, in the former for conspiracy to murder the witnesses in a prior federal narcotics trial and in the latter for, among other things, first-degree murder of those same witnesses. He now complains that the Maryland prosecution was a “sham,” essentially indistinguishable from the federal prosecution, and that, therefore, his Maryland sentences are illegal, under the purported Bartkus 10 exception to the dual sovereignty doctrine. From that premise, Grandi-son concludes that the circuit court abused its discretion in ruling that this claim was not cognizable in a motion to correct an illegal sentence. To understand this claim requires a brief digression into the Supreme Court decision upon which Grandison relies, Bartkus v. Illinois, 359 U.S. 121 , 79 S.Ct. 676 , 3 L.Ed.2d 684 , reh’g denied, 360 U.S. 907 , 79 S.Ct. 1283 , 3 L.Ed.2d 1258 (1959).

In Bartkus, the defendant had been acquitted, in the United States District Court for the Northern District of Illinois, of robbery of a federally insured savings and loan association. Id. at 121-22, 79 S.Ct. 676 . Bartkus was thereafter charged, in the Criminal Court of Cook County, Illinois, with violation of a state robbery statute. Id. at 122 , 79 S.Ct. 676 . “The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment.” Id.

Bartkus moved to dismiss based upon double jeopardy, but the Illinois court rejected that claim. Id. He was thereafter convicted and sentenced to life imprisonment as a repeat offender. Id.

The Supreme Court of Illinois affirmed, as did the United States Supreme Court, the latter holding that a defendant may be prosecuted in both federal and state courts for the same act without violating the Due Process Clause of the Fourteenth Amendment, because, under the “dual sovereignty” doctrine, 11 an act may be an offense against both the state where it was committed as well as against the federal government. 12 Id. at 122, 136-39 , 79 S.Ct. 676 . In dictum, the Court observed that the record did not “sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution[,]” id. at 124 , 79 S.Ct. 676 , which would have been barred under the Double Jeopardy Clause of the Fifth Amendment. See id. at 123 , 79 S.Ct. 676 . Thereafter, some courts interpreted that statement as expressing a narrow so-called “Bartkus exception” to the dual sovereignty doctrine, which bars a successive “sham prosecution.” See, e.g., United States v. Guzman, 85 F.3d 823, 826 (1st Cir.) (observing that “under very limited circumstances[,] successive prosecutions by separate sovereigns might transgress the Double Jeopardy Clause”), cert. denied, 619 U.S. 1020 , 117 S.Ct. 537 , 136 L.Ed.2d 422 (1996); In re Kunstler, 914 F.2d 505, 517 (4th Cir. 1990) (noting that “a ‘tool of the same authorities’ exception is possible in some circumstances,” which “may only be established by proof that State officials had little or no independent volition in their proceedings”), cert. denied, 499 U.S. 969 , 111 S.Ct, 1607 , 113 L.Ed.2d 669 (1991); United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984) (noting that “a narrow exception to the ‘dual sovereignty’ doctrine, carved out in Bartkus v. Illinois, bars a second prosecution where one prosecuting sovereign can be said to be acting as a ‘tool’ of the other, or where the second prosecution amounts to a ‘sham and a cover’ for the first” (internal citations omitted)).

Other courts, however, have questioned whether there even is such an exception. See, e.g., United States v. Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir. 1994) (declining to decide whether the “sham prosecution” exception exists); United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir.) (stating that “[w]e have questioned whether Bartkus truly meant to create such an exception, and we have uniformly rejected such claims”), cert. denied, 510 U.S. 999 , 114 S.Ct. 569 , 126 L.Ed.2d 468 (1993), and reh’g denied, 510 U.S. 1159 , 114 S.Ct. 1143 , 127 L.Ed.2d 452 (1994); United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir. 1991) (observing that “[a] possible exception might exist”); United States v. Harrison, 918 F.2d 469, 474 (5th Cir. 1990) (noting that, although “Bartkus does suggest that a state prosecution may not be used as a cover and a tool for a federal prosecution[,]” the Court “did not define a clear exception in that ease”). In any event, even if we assume, arguendo, that the Bart-kus exception to the dual sovereignty doctrine exists, the circuit court correctly concluded that such a claim may not be raised in a Rule 4-345(a) motion. In United States v. Liddy, 542 F.2d 76, 79 (D.C. Cir. 1976), the United States Court of Appeals for the District of Columbia Circuit observed that the defendant’s burden “of establishing that federal officials are controlling or manipulating the state processes is substantial[,]” namely, that he “must demonstrate that the state officials had little or no independent volition in the state proceedings.” To prevail on such a claim would likely require far more than Grandison’s bald allegation and, in the absence of an affidavit from the prosecution admitting to such a scheme (a most unlikely occurrence), would require an eviden-tiary hearing.

But that would be entirely contrary to the nature of a Rule 4-345(a) motion, which is focused on the “narrow” category of sentences that are “intrinsically and substantively unlawful,” not those that may be beset by “some arguable procedural flaw.” Colvin v. State, 450 Md. 718, 725 , 150 A.3d 850 (2016) (internal quotation marks and citation omitted). Indeed, “a motion to correct an illegal sentence is not[,]” as Grandison would have it, “an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.” State v. Wilkins, 393 Md. 269, 273 , 900 A.2d 765 (2006). Even if such a claim were cognizable in a Rule 4-345(a) motion, we would conclude that it is barred by the law of the case doctrine. Prior to Evans’s and Grandison’s separate 1984 trials, both defendants filed motions to dismiss, contending that Benton v. Maryland, 895 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), which held that the Double Jeopardy Clause of the Fifth Amendment was applicable to the states by virtue of the Fourteenth Amendment, had effectively abrogated the dual sovereignty doctrine, as articulated in Bartkus.

Evans v. State, 301 Md. 45, 49-50 , 481 A.2d 1135 (1984), cert. denied, 470 U.S. 1034 , 105 S.Ct. 1411 , 84 L.Ed.2d 795 (1985). The Court of Appeals rejected that assertion and remanded for trials, which resulted in convictions and sentences, which Grandison now challenges. See id. at 51, 58, 481 A.2d 1135 . Here, however, instead of disparaging Bartkus, Grandison relies upon it as the basis for his claim.

Under the law of the case doctrine, “once an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case.” Scott v. State, 379 Md. 170, 183 , 840 A.2d 715 (2004). Moreover, “ ‘[decisions rendered by a prior appellate panel will generally govern the second appeal’ at the same appellate level as well, unless the previous decision is incorrect because it is out of keeping with controlling principles announced by a higher court and following the decision would result in manifest injustice.” Id. at 184 , 840 A.2d 715 (quoting Hawes v. Liberty Homes, 100 Md.App. 222, 231 , 640 A.2d 743 (1994)). And, more recently, in Holloway v. State, 232 Md.App. 272, 282 , 157 A.3d 356 (2017), we observed that the law of the case doctrine applies, not only to a claim that was actually decided in a prior appeal, but also to any claim “that could have been raised and decided.” Furthermore, the Court of Appeals has expressly rejected the notion that “the doctrine of law of the case [is] inapplicable to motions to correct an illegal sentence.” Scott, 379 Md. at 183 , 840 A.2d 715 . Nothing prevented Grandison, in his 1984 double jeopardy challenge, from raising the same claim that he raises before us now.

Were this issue properly before us, we would hold that, as it “could have been raised and decided,” it is barred by the law of the case doctrine. See Holloway, 232 Md.App. at 282 , 157 A.3d 356 . C. Grandison contends that the circuit court abused its discretion in holding that the jury was properly hearkened. Not only is this claim utterly without merit, it is foreclosed by Colvin v. State, 450 Md. 718, 727 , 150 A.3d 850 (2016).

There, the Court of Appeals held that a claim, alleging that the jury had not been properly polled, thereby rendering the sentences imposed on its verdict illegal, was not cognizable under Rule 4-345(a). Id. The Court stated: Under Maryland law, procedural challenges to a verdict ought be done by contemporaneous objection and, if not corrected, presented through the direct appeal process. Such claims do not come within the purview of Rule 4-345(a).

Id. at 728 , 150 A.3d 850 . Likewise, Grandison’s claim of an improperly hearkened jury is a procedural challenge to his verdict and is therefore not cognizable in a motion to correct an illegal sentence. We note that Grandison does not claim that the jury was not polled or hearkened at all, a defect that, if proven, would fall outside of the holding of Colvin. See id at 727-28, 150 A.3d 850 .

In any event, the circuit court, as it did not have the benefit of Colvin at the time it rendered its decision, painstakingly examined the record and, at pages 16-19 of its memorandum opinion, demonstrated the falsity of Grandison’s claim as to whether the jury had been properly hearkened. We need not repeat here what the circuit court wrote, except to point out that it was correct. Thus, even if Grandison’s claim were cognizable in a Rule 4-345(a) motion, it would fail nonetheless. D. Grandison maintains that the circuit court abused its discretion in denying his claims that the resentencing court lacked the authority to impose sentence and that the resen-teneing violated the prohibition against double jeopardy, because both the original sentencing jury and the resentencing jury failed to announce their findings in open court, nor were they polled or hearkened to their findings.

These claims are utterly without merit. When the post-conviction court vacated Grandison’s original death sentences, under Mills v. Maryland, it is obvious that resentencing, with the possibility of new death sentences, was permitted and did not violate the prohibition against double jeopardy. See Twigg v. State, 447 Md. 1, 21 , 133 A.3d 1125 (2016) (noting that “[t]he Supreme Court has made clear that resentencing does not offend double jeopardy principles”). As for Grandison’s complaints regarding the procedures followed during the resentencing, those matters are not cognizable in a Rule 4-345(a) motion.

See Colvin, 450 Md. at 728 , 150 A.3d 850 . But, in any event, as the circuit court explained in its memorandum opinion, the procedures followed fully comported with the then-extant applicable Maryland rule. E. Finally, Grandison complains that the circuit court abused its discretion in imposing the (new) fifteen-year sentence for use of a handgun in the commission of a felony or crime of violence consecutive to his federal sentences. He does not (and cannot) complain that the newly imposed sentence constituted an illegal increase in his sentence, as it merely replaced a former twenty-year sentence that had also been made consecutive to his state and federal sentences.

The short answer to this complaint is that it is not cognizable in a motion to correct an illegal sentence, which encompasses only claims of substantively illegal sentences. Colvin, 450 Md. at 728 , 150 A.3d 850 . “An illegal sentence, for purposes of Rule 4-345(a), is one in which the illegality ‘inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.’ ” Id. at 725 , 150 A.3d 850 (quoting Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506 (2007)). Here, the fifteen-year sentence was provided by statute, see Md. Code (1957, 1982 Repl. Vol., 1982 Supp.), Art. 27, § 36B(d), and is not “intrinsically and substantively unlawful[,]” whether imposed concurrently with or consecutively to any other sentence Grandison may be serving, so long as the resulting sentence does not constitute an increase of his previous sentence (which it does not).

See id.

II

Appeal No. 2822 In Appeal No. 2822, Grandison, apparently ungrateful that he has been spared from the death penalty, challenges the legality of former Governor O’Malley’s commutation of his death sentences to sentences of life imprisonment without the possibility of parole. We shall first address the constitutional basis for a governor’s pardon power and then address Grandi-son’s claims, concluding that none of them has any merit. A. The Governor of Maryland has had the power to grant reprieves and pardons under every version of the Maryland Constitution, dating back to 1776. See Md. Const., Art. XXXIII (1776) (providing that the Governor “may alone exercise all other [of] the executive powers of government,” including the power to “grant reprieves or pardons for any crime, except in such cases where the law shall otherwise direct”).

Under the present 1867 Maryland Constitution, the Governor possesses the power to “grant reprieves and pardons,” as provided under Article II, § 20: He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases, in which he is prohibited by other Articles of this Constitution; and to remit fines and forfeitures for offences against the State; but shall not remit the principal or interest of any debt due the State, except, in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on, or after which, his decision will be given; and in every case, in which he exercises this power, he shall report to either Branch of the Legislature, whenever required, the petitions, recommendations and reasons, which influenced his decision. Alfred S. Niles, the author of a treatise on Maryland constitutional law, stated that “there is practically no restriction upon” a Governor’s “pardoning any offence against the state, except in the case of an impeachment.” Alfred S. Niles, Maryland Constitutional Law 122 (1915). More recently, Judge Dan Friedman, a member of this Court and the author of another treatise on the subject, wrote that “the pardon power is broad” and