Ingram v. State

MEREDITH, Judge. Anton Sherrod Ingram appeals from the denial of a motion he filed pursuant to Maryland Rule 4-345(a), which is the rule that provides: “The court may correct an illegal sentence at any time.” Ingram asserted in his motion that his sentence is illegal because he had previously been tried and convicted of a lesser included offense arising out of the same course of conduct which gave rise to his current sentence. As a consequence of the prior prosecution, Ingram contends that the sentence he is currently serving is based upon a conviction that should have been barred by the legal protections against double jeopardy. Based upon the limited record before us, it appears that Ingram’s contention that his second trial may have been barred by the law’s constitutional and common law protection against double jeopardy is supported by the decision of the Court of Appeals in Anderson v. State, 385 Md. 123 , 867 A.2d 1040 (2005).

Notwithstanding this conclusion, we will affirm the denial of his motion to correct his sentence. We hold that an argument that challenges the merits of a conviction is not properly raised by way of a motion to correct an illegal sentence. We leave open the possibility that Ingram may have a right to challenge the merits of his conviction pursuant to the Maryland Uniform Postconviction Procedure Act, codified in Maryland Code (2001), Criminal Procedure Article (“CriimPro.”), Title 7. Our conclusion that a motion to correct an illegal sentence is not the proper vehicle for raising an argument attacking the underlying conviction is supported by recent cases in which the Court of Appeals has emphasized that Rule 4-345(a) is not ⁴⁸⁹ a substitute for an appeal.

Chaney v. State, 397 Md. 460, 466-67 , 918 A.2d 506 (2007); Pollard v. State, 394 Md. 40, 47 , 904 A.2d 500 (2006); State v. Wilkins, 393 Md. 269, 273 , 900 A.2d 765 (2006). In Pollard, supra, 394 Md. at 47 , 904 A.2d 500 , Judge Clayton Greene wrote: “A motion to correct an illegal sentence ... may not be used as an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.” Accord Wilkins, supra, 393 Md. at 273 , 900 A.2d 765 . Because the claim Ingram makes arises out of his prosecution, rather than the sentence itself, the issue is not properly raised by way of a motion to correct an illegal sentence. Background Ingram was prosecuted twice in Baltimore County for charges arising out of his conduct on June 11, 2003.

On January 14, 2004, Ingram was found guilty and sentenced for having possessed cocaine on June 11, 2003. Then, on June 1, 2004, Ingram was found guilty of having distributed cocaine on June 11, 2003. It is the sentence he received for this second conviction that Ingram claims is illegal. Ingram has not provided us with any transcripts of proceedings, but we glean the following facts from documents in the record. 1 ⁴⁹⁰ In a memorandum filed in support of his motion to correct, Ingram summarizes the facts that led to his prosecutions as follows: In the instant case, Petitioner [ie., Ingram] sold an undercover detective one baggie of cocaine from a “stash” in his boxer shorts.

As in Anderson , the part of the [police officers’] plan for identification of Petitioner went awry when, before he could be approached and questioned, he got into a vehicle belonging to a relative to leave the area. However, a prior check of the MVA records on the vehicle, while waiting to move in to identify Petitioner, revealed a legitimate ground for a stop, to wit: suspended registration. Officer Sean Salisbury[,] the “identifier” for the undercover team, stopped and ultimately arrested Petitioner for falsely identifying himself and driving on a suspended license and registration. During a search, while being processed, the remainder of Petitioner’s package of cocaine was discovered [concealed in the hem of his boxer shorts]----Petitioner was charged with possession with intent to distribute, as well as possession.

Thus, the case became a Circuit Court matter, calling for the State’s Attorney’s attention---- In the circuit court’s memorandum opinion denying Ingram’s motion to correct the allegedly illegal sentence, the court summarized its analysis of the pertinent facts as follows: The Petitioner[, Ingram,] argues that he was subjected to double-jeopardy, in violation of his Constitutional rights, by having been convicted of and sentenced for the crimes of Possession of Cocaine, and Distribution of Cocaine. He argues further that if he was subjected to double-jeopardy, then any sentence given for such a conviction would be an illegal sentence. ⁴⁹¹ Having reviewed the case file and the petition, this Court is not satisfied that the Petitioner was ever subjected to double-jeopardy and was, therefore, never given an illegal sentence. The crimes of Possession of Cocaine and Distribution of Cocaine are separate and distinct. While it is true that the two charges for which the Petitioner was convicted ... stem from the same evening, the incidents are different.

The Petitioner concedes that he sold an undercover police officer a bag of cocaine that he had on his person. This is certainly the distribution of cocaine. But before the Petitioner was identified at the scene and arrested, he got into his car [and] left. He was pulled over and arrested on the unrelated offense of driving on a suspended license.

Only then was cocaine discovered in the Petitioner’s car, thus satisfying the elements of possession [of] cocaine. While all occurring in the same evening, these charges stem from two separate incidents. It is true that in order to distribute cocaine, one must, at some point, possess cocaine, making possession of cocaine a lesser-included offense of distribution of cocaine. The distinction here is that the possession of cocaine the Petitioner was tried and convicted of was in the cocaine found in his car subsequent to the traffic stop, not the possession for cocaine as it was being handed to the undercover officer in the distribution charge.

Thus, the Petitioner was convicted of two separate crime[s] and received appropriate sentences for each. We are unable to ascertain the basis for the motion court’s statements that a separate quantity of cocaine was “discovered in the Petitioner’s car,” and that the initial conviction was for “the cocaine found in [Ingram’s] car subsequent to the traffic stop.” The statement of probable cause prepared by the arresting officer makes no reference to any cocaine being found in Ingram’s vehicle. To the contrary, the statement of probable cause corroborates Ingram’s contention that his only stash on June 11, 2003, was concealed in the hem of his boxer shorts. ⁴⁹² As the Court of Appeals explained in Anderson, 385 Md. at 140-41 , 867 A.2d 1040 , the question of whether offenses are separate for double jeopardy purposes is generally determined by reviewing the charging documents rather than the actual trial evidence. The Court there explained, id.: One may never know, unless a transcript is prepared, what evidence was presented, and one could never be certain in any event what evidence a trier of fact (or the court on motion) credited in reaching its verdict.

The Supreme Court, for Constitutional purposes, and we, as a matter of common law, have rejected an “actual evidence” test to determine sameness in law, and we see no profit, absent special circumstances not present here, in adopting that test to determine sameness in fact. In most cases, the only sensible and workable criterion for determining the nature and scope of the prior offense is the effective charging document. That states the offense for which the defendant was tried. Following Ingram’s arrest on June 11, 2003, he was initially charged, by way of a District Court Statement of Charges, with driving a vehicle with suspended registration, as well as possession of cocaine, and possession of cocaine with intent to distribute.

On July 7, 2003, Ingram was indicted in the Circuit Court for Baltimore County. Indictment No. 03CR2487 charged Ingram with the following five counts based upon conduct on June 11, 2003: COUNT ONE The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON S. INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did possess a controlled dangerous substance of Schedule II of the Criminal Law Article Sec. 5-602 of the Annotated Code of Maryland, which is a narcotic drug, in sufficient quantity reasonably to indicate under all circumstances an intent to ⁴⁹³ distribute a controlled dangerous substance, to wit: COCAINE; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (CDS POSS W/INT TO DIST-CR 5-602) COUNT TWO The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON S. INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did possess a controlled dangerous substance of Schedule II, to wit: COCAINE; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE-CR 5-601) COUNT THREE The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON S. INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully and knowingly did make a false statement to OFF.

SALISBURY # 3819, knowing the same to be false, with the intent to deceive and with the intent to cause an investigation or other action to be taken; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (FALSE STATEMENT-CR 9-501) COUNT FOUR The Jurors of the State of Maryland, for the body o f Baltimore County, do on their oath present that ANTON S. ⁴⁹⁴ INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did drive a motor vehicle with a suspended registration on a highway in this State of Maryland; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (DRIVING VEHICLE WITH SUSPENDED REGISTRATION—Transportation Article § 13-401(h)) CITATION NO: 0BY97536 COUNT FIVE The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON S. INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did drive a motor vehicle on any highway or on any property specified in Section 21-101.1 of the Transportation Article while his license or privilege to drive was suspended. (LICENSES SUSPENDED UNDER CERTAIN PROVISIONS—Transportation Article, Sec. 16-303(h)) CITATION NO: 0BY97537 As previously mentioned, Ingram did not provide us with a transcript of any circuit court proceedings, but the docket entries from the Circuit Court for Baltimore County reflect that on January 14, 2004, Ingram waived a jury trial and pled not guilty to Count 2 (simple possession of cocaine on June 11, 2003).

The prosecutor nolle prossed the other four counts of the indictment, and the court tried the case upon an agreed statement of facts. The court found Ingram guilty of possession, and sentenced him to one year in prison. The court gave Ingram credit for the 217 days he had been incarcerated since his arrest. Within a month after the first conviction, on February 2, 2004, Ingram was indicted a second time for conduct that ⁴⁹⁵ occurred on June 11, 2003.

Indictment No. 04CR0337 charged Ingram with the following three counts: COUNT ONE The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON SHERROD INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did distribute a controlled dangerous substance of Schedule II, to wit: COCAINE; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (CDS MANUF/DIST-OTHER-CR 5-602(1)) COUNT TWO The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that ANTON SHERROD INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did possess a controlled dangerous substance of Schedule II, to wit: COCAINE; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE-CR 5-601) COUNT THREE The Jurors of the State of Maryland, for the body o f Baltimore County, do on their oath present that ANTON SHERROD INGRAM late of Baltimore County aforesaid, on the 11th day of JUNE, in the year of our Lord Two Thousand Three at Baltimore County aforesaid, unlawfully did drive a motor vehicle with a suspended registration on a highway in this State of Maryland; contrary to the form of ⁴⁹⁶ the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (DRIVING VEHICLE WITH SUSPENDED REGISTRATION—Transportation Article § 13-401 (h)) CITATION NO: 0BY97536 The circuit court’s file pertaining to the second indictment includes an omnibus pretrial motion filed by Ingram’s attorney pursuant to Maryland Rule 4-252, asserting, among other things, that “this prosecution is barred because of ... double jeopardy.” The docket indicates that the defendant’s motion to dismiss the indictment was denied on June 1, 2004, the day of trial.

We discern from the docket entries that on June 1, 2004, Ingram waived a jury trial and pled not guilty to Count One (distribution of cocaine on June 11, 2003). The prosecutor nolle prossed Counts Two and Three, and the court tried the case upon an agreed statement of facts. The court convicted Ingram of distribution of cocaine, and, on August 24, 2004, the court sentenced Ingram to twenty years, the first ten of which are to be served without parole. Motion to Correct An Illegal Sentence After being sentenced on August 24, 2004, Ingram did not file any appeal.

Nor did he pursue any other postconviction relief until February 9, 2007, when he filed the motion to correct an illegal sentence. In his motion and supporting memorandum, Ingram argued that his second prosecution was barred by the double jeopardy principles set forth in the Court of Appeals’ opinion in Anderson, supra, 385 Md. 123 , 867 A.2d 1040 , which was filed on February 9, 2005, i.e., approximately six months after Ingram was sentenced. The underlying facts of the Anderson case are indeed similar to the facts presented by Ingram. They are set forth as follows by Judge Alan Wilner, writing for the Court of Appeals: Anderson was the target of a sting operation conducted by Detectives Clasing, Barnes, and Butler.

The operational ⁴⁹⁷ scenario, as described by Detective Clasing, was to send one or more undercover detectives to purchase drugs from the target, to wait until those detectives, after purchasing the drugs, left the area, and then to have another detective accost the target in order to ascertain his identity. So as not to compromise the continued effectiveness of the undercover officers, charges against the target are normally delayed for a time. In furtherance of that scheme, at 1:55 p.m. on October 1, 2002, Detective Barnes approached Anderson in the 1500 block of Myrtle Avenue and purchased two capsules of heroin from him for $20. Anderson removed the capsules from a cigarette pack he was holding.

With the purchase complete, Barnes left the area. Five minutes later, Detective Butler approached Anderson, in the same place, and he, too, purchased two capsules containing heroin for $20 and then left the area. Those capsules also were removed from the cigarette pack. After making their respective purchases, Barnes and Butler called Detective Clasing and gave him a description of Anderson.

At about 2:30 p.m., Detective Clasing approached Anderson in order to conduct what he referred to as a “field interview.” After directing Anderson to sit down on the curb, Clasing saw him throw a red object under a parked car. Clasing retrieved the object and found it to be a cigarette pack containing 25 capsules of suspected heroin. Clasing arrested Anderson and, the next day—October 2, 2002—filed a Statement of Charges against him in the District Court. The Statement of Charges accused Anderson of one count of possession of heroin on October 1, 2002, at 1500 Myrtle Avenue.

Eight days later, October 10, Anderson appeared in District Court and, either on a plea of guilty or a plea of not guilty with an agreed statement of facts—which of the two is not entirely clear—he was found guilty and sentenced to a term of nine months in the Baltimore City Jail, which he began serving immediately. On November 4, 2002, nearly four weeks after the District Court proceeding, the State obtained an indictment based ⁴⁹⁸ on the sale to Detective Butler. The indictment charged Anderson with possession with intent to distribute heroin and with distribution of heroin to Butler. The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue.

On November 12, the State obtained a second indictment, based on the sale to Detective Barnes. That indictment charged Anderson with possession of heroin, possession with intent to distribute heroin, and distribution of heroin to Detective Barnes. The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue. Anderson moved to dismiss the two indictments on the ground of double jeopardy.

He averred that the offenses charged in the indictments and that charged in the District Court case all arose at about the same time and place and involved the same cigarette pack, and he argued that his conviction in the District Court barred further prosecution. The court indicated that the argument may have had merit under the holding in Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), but observed that the Supreme Court had later overruled that decision. See United States v. Dixon, 509 U.S. 688 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993). The applicable test for double jeopardy purposes, the court found, remained that enunciated in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

To constitute double jeopardy under that test, the court declared, the multiple offenses must arise from incidents that occur at the same time and place, but it found that the charges embodied in the two indictments arose from incidents that occurred at a different time than the incident underlying the District Court charge. For that reason, the motion was denied. 385 Md. at 125-28 , 867 A.2d 1040 (footnote omitted). Unlike Ingram, Anderson filed an immediate interlocutory appeal of the denial of his motion to dismiss based on double jeopardy grounds. See Bunting v. State, 312 Md. 472, 477-78 , 540 A.2d 805 (1988) (“This Court has ... recognized that, under the collateral order doctrine, a defendant may take an ⁴⁹⁹ immediate appeal from the denial of a motion to dismiss on the ground of double jeopardy.”).

Relying on Hawkins v. State, 77 Md.App. 338 , 550 A.2d 416 (1988), this Court affirmed the denial of Anderson’s motion to dismiss, concluding that the distribution offenses had been already completed by the time Anderson was arrested and found to be in possession of the drugs remaining in the cigarette pack. The Court of Appeals, however, after analyzing the charging documents, concluded that Anderson’s first conviction was for a charge that, because of the broad wording of the charging document, could have included the possession necessary for the distribution earlier in the day. Consequently, the Court of Appeals ruled that the second prosecution was barred on double jeopardy grounds. The Court of Appeals explained in Anderson, supra, 385 Md. at 130-31 , 867 A.2d 1040 , that the double jeopardy prohibitions of the United States Constitution and the Maryland common law protect against two separate actions: (a) successive prosecutions for the same offense, and (b) multiple punishments for the same offense: Both the Federal Constitution, through the Fifth and Fourteenth Amendments, and Maryland common law prohibit the State from placing a person twice in jeopardy for the same offense.

That prohibition provides a dual protection—against prosecuting a person for an offense after that person has already been prosecuted for, and either convicted or acquitted of, the “same offense,” and against imposing multiple punishments for the “same offense.” See Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Purnell v. State, 375 Md. 678 , 827 A.2d 68 (2003). With respect to both protections, the issue most often raised is whether the second prosecution or additional punishment is, in fact, for the “same offense.” To answer the question of whether the subsequent prosecution or multiple punishment is for the same offense requires consideration of whether the charges are the same ⁵⁰⁰ either in fact or in law. The Court explained in Anderson, supra, 385 Md. at 131 , 867 A.2d 1040 : Depending on the context, the issue can turn on whether (1) the two or more offenses charged, in fact, arise from the same incident or course of conduct and thus are the same in fact, or (2) if so, despite a facial distinction between the offenses, as defined in the statutes or- by the common law, the relationship between them is such that they are the same in law for double jeopardy purposes. See Jones v. State, 357 Md. 141, 158 , 742 A.2d 493, 502 (1999).

Both questions—sameness in fact and sameness in law—are relevant here. The question of sameness in law is analyzed using the “required evidence” test set forth in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). The Court of Appeals described the Blockburger test in Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240 (1976): “[W]here only one offense requires proof of an additional fact, so that all of the elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.” Applying this analysis to the offenses of possession of a controlled dangerous substance and distribution of a controlled dangerous substance, the Anderson Court noted that every element of the crime of possession is also an element of the crime of distribution. As a consequence, “the two offenses ‘are deemed the same offense for double jeopardy purposes.’ ” 385 Md. at 132 , 867 A.2d 1040 (quoting State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272 (1995)).

See Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (The sequence of prosecution “is immaterial.” “The greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.”); Middleton v. State, 318 Md. 749, 758 , 569 A.2d 1276 (1990) (because first degree rape requires proof of only one additional fact beyond the elements of second degree rape, “the two offenses were the same for double jeopardy purposes,” and defendant could not be sentenced for both offenses). ⁵⁰¹ Having concluded that a charge of possession is generally a lesser included offense of the distribution charges as a matter of lav?, the Anderson Court turned its analysis to “whether the possession offense” for which Anderson was first convicted “arose as part of the same course of conduct” for which he was subsequently prosecuted under the distribution charges—i.e., whether the offenses were “the same in fact.” Anderson, supra, 385 Md. at 133 , 867 A.2d 1040 . At the outset, the Court noted that, “absent a clear statutory direction to the contrary, the uninterrupted possession of an item of contraband is ordinarily regarded as one continuing offense under Maryland law.” Id. at 134 , 867 A.2d 1040 . The Court