Johnson v. State

ADKINS, J. In this case, we consider the remedies available to a defendant 16 years after his conviction and sentence for a crime not charged in the indictment. Following his arrest in 1992, Petitioner Jarmal Johnson was convicted of assault with intent to murder and other crimes, even though the indictment returned by the Grand Jury did not charge assault with intent to murder. Petitioner did not raise this issue at trial, at sentencing, or on direct appeal. Not until 16 years after his conviction did Petitioner file a motion to correct an illegal sentence, claiming that the trial court lacked the power to convict and sentence him for assault with intent to murder because that charge was not contained in the indictment.

The Circuit Court for Baltimore City denied Petitioner’s motion, and he appealed. The Court of Special Appeals affirmed in a reported opinion, Johnson v. State, 199 Md.App. 331 , 22 A.3d 909 (2011), and Petitioner filed a petition for certiorari, asking: ³⁶¹ 1. Did the trial court have jurisdiction to convict Petitioner of a crime that was not contained in the indictment and was not a lesser included offense of any charge contained in the indictment? 2. Is the “constructive amendment” of an indictment recognized in Maryland and did the Court of Special Appeals properly apply it in this case? 1 The State filed a conditional cross-petition for certiorari, asking: 1.

Was Petitioner’s appeal from the denial of his motion to correct an illegal sentence untimely? 2. Did Petitioner knowingly consent to the constructive amendment of the indictment? 3. Did Petitioner provide a record sufficient for review of his appellate contention? 4. Should Petitioner’s appeal be dismissed on grounds of laches? 2 ³⁶² We granted certiorari on both petitions, Johnson v. State, 423 Md. 450 , 31 A.3d 919 (2011), and shall reverse the judgment of the Court of Special Appeals.

Petitioner’s sentence for assault with intent to murder was illegal because that crime was not contained in the indictment returned by the Grand Jury. Petitioner’s motion to correct an illegal sentence was timely because Maryland Rule 4-345(a) allows the trial court to correct an illegal sentence “at any time.” Such a motion is not waived by the defendant’s acquiescence at trial or sentencing, and we shall not apply the doctrine of laches because the State has failed to allege any prejudice arising from Petitioner’s delay. Therefore, we shall vacate Petitioner’s conviction and sentence for assault with intent to murder. We need not decide whether the “constructive amendment” of an indictment may be valid in some circumstances, as it is clear that no proper amendment occurred in this case.

Moreover, because Rule 4-345(a) resolves the case, we need not decide whether Petitioner’s claim is “jurisdictional” in any sense of that word. FACTS AND LEGAL PROCEEDINGS On March 6, 1992, police officers executed a search warrant at 630 Baker Street in Baltimore City. When the officers entered the apartment, gunfire erupted, and they saw Petitioner firing an automatic weapon in the direction of the officers. They also found large amounts of cocaine and heroin.

Petitioner was arrested, and the arresting officer prepared a “statement of charges” that listed assault with intent to murder along with approximately ten other charges. That charge was not included in the indictment returned by the Grand Jury, however. Rather, the indictment charged four crimes: (1) attempted murder, (2) common law assault, (3) unlawful wearing, carrying, or transporting of a handgun, and (4) unlawful use of a handgun in the commission of a felony or crime of violence. 3 ³⁶³ Before hearing Petitioner’s plea, the trial court asked the attorneys to “go over what the offenses are and what the maximum penalties are[.]” In the discussion that followed, the attorneys did not mention assault with intent to murder. Similarly, in opening statements, the attorneys mentioned attempted murder and other crimes, but did not mention assault with intent to murder.

The verdict sheet prepared for the jury at the close of evidence, however, included assault with intent to murder. 4 The trial court also instructed the jury about the crimes on the verdict sheet, including assault with intent to murder. On September 22, 1992, the jury acquitted Petitioner of attempted murder, but found him guilty of (1) assault with intent to murder, (2) common law assault, (3) unlawful use of a handgun in the commission of a felony or crime of violence, and (4) unlawful wearing, carrying, or transporting of a handgun. Petitioner admits that he did not object, at trial, to the jury instructions or guilty verdict for assault with intent to murder. At sentencing, the trial court imposed a 30-year prison sentence for assault with intent to murder, merging common law assault into that conviction.

The court also imposed a 20-year consecutive sentence for the use of a handgun in a felony or crime of violence, merging unlawful wearing, carrying, or transporting a handgun into that conviction. Petitioner filed a direct appeal but did not argue that his conviction or sentence for assault with intent to murder was illegal. In January 2008, Petitioner filed a motion to correct an illegal sentence, arguing that his sentence for assault with intent to murder was illegal because the indictment did not charge that crime. The Circuit Court denied Petitioner’s ³⁶⁴ motion, and he appealed.

The Court of Special Appeals affirmed, holding that Petitioner’s claim was not jurisdictional, and therefore could not be raised after the time for direct appeal. Johnson, 199 Md.App. at 344, 351 , 22 A.3d at 917, 920-21 . Sufficiency of the Record As a preliminary matter, we address the State’s contention that the record is insufficient for appellate review of Petitioner’s motion because Petitioner failed to include a transcript of his arraignment. The State argues that the transcript is necessary to show that Petitioner did not learn at the arraignment that the State intended to charge him with assault with intent to murder.

Without such a showing, the State contends, Petitioner cannot rebut the “presumption of regularity” that attaches to criminal cases. See Skok v. State, 361 Md. 52, 78-80 , 760 A.2d 647, 661-62 (2000). Petitioner responds that the transcript is not necessary because, regardless of what may have occurred at the arraignment, his sentence for assault with intent to murder is illegal given that the indictment did not charge that crime. Maryland Rule 8-501 provides, in pertinent part: Unless otherwise ordered by the appellate court or provided by this Rule, the appellant shall prepare and file a record extract in every case in the Court of Appeals....

The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal. Maryland Rule 8-501(a), (c). See also Mora v. State, 355 Md. 639, 650 , 735 A.2d 1122, 1128 (1999) (“It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed[.]”). Whatever may have occurred at the arraignment is irrelevant to Petitioner’s argument, which is that his sentence was illegal simply because assault with intent to murder was not included in the indictment.

Therefore, we agree with the ³⁶⁵ Court of Special Appeals that Petitioner’s failure to include a transcript of the arraignment does not prevent us from reviewing his contention. The record is “sufficient ... to determine whether error was committed[.]” See Mora, 355 Md. at 650 , 735 A.2d at 1128 . Timeliness of a Motion to Correct an Illegal Sentence The Court of Special Appeals held that Petitioner’s motion was untimely because it was made after the time for direct appeal. Johnson, 199 Md.App. at 348 , 22 A.3d at 919 .

The court explained that, although a defendant may assert a lack of subject matter jurisdiction at any time, Petitioner’s motion did not properly put forth such an assertion. Id. at 345-46 , 22 A.3d at 917-18 . Rather, the court opined, Petitioner’s motion challenged the trial court’s “exercise of jurisdiction,” ie., “the authority of the court to decide a particular ease within the class of cases that is encompassed by the court’s subject matter jurisdiction.” Id. at 345 , 22 A.3d at 917 . Thus, the court held that Petitioner’s motion was untimely because, unlike a motion asserting a lack of subject matter jurisdiction, Petitioner’s “remedy for an improper exercise of jurisdiction was a direct and timely appealf,]” which he failed to make.

Id. at 346 , 22 A.3d at 917-18 . Petitioner contends that his motion did show a lack of subject matter jurisdiction, and thus could be brought at any time. Under Maryland Rule 4-252(d), he argues, “a claim that a charging document fails to charge or characterize an offense is jurisdictional and may be raised at any time[.]” Additionally, Petitioner argues that, under Rule 4-345(a), “[t]he court may correct an illegal sentence at any time.” The State responds that the Court of Special Appeals was correct to hold that Petitioner’s motion did not challenge the trial court’s jurisdiction, but rather the exercise of that jurisdiction, and therefore was untimely. The State also argues that the doctrine of laches should prevent us from addressing Petitioner’s claim. ³⁶⁶ Concerning laches, the State has failed to assert a necessary prong of that doctrine.

The State quotes Liddy v. Lamone, 398 Md. 233, 244 , 919 A.2d 1276, 1283 (2007), which held that laches “applies when there is an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to the opposing party.” Yet the State fails to assert any prejudice resulting from Petitioner’s delay. Thus, the State has failed to show that laches should apply. See Howell v. Brummell, 293 Md. 646, 649-50 , 446 A.2d 1149, 1151 (1982) (“[Mjere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another.... Prejudice or injury to the party raising laches is an essential element.” (citations and quotation marks omitted)).

We must decide, therefore, whether convicting and sentencing a defendant on a charge not contained in the indictment is the type of error that may be “raised and determined at any time” under Maryland Rule 4-252(d) or corrected “at any time” under Rule 4-345(a). We begin with Rule 4-252(d), which provides: A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time. Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial. Petitioner cites Williams v. State, 302 Md. 787, 792 , 490 A.2d 1277, 1280 (1985), which held that, under Rule 4-252(d), “[a] claim that a charging document fails to charge or characterize an offense is jurisdictional and may be raised, as here, for the first time on appeal.” Yet Williams and the other cases Petitioner cites dealt with claims that the indictment did not charge any offense, thus depriving the court of jurisdiction.

See id. at 790 , 490 A.2d at 1279 (appellant “contended that the information faded to state an offense and hence was fatally defective for lack of jurisdiction in the circuit court”); see also Charles E. Torcía, Wharton’s Criminal Procedure (13th ed.1990), § 236 (explaining that an indictment “must be legally sufficient, i.e., it must contain facts which in law ³⁶⁷ amount to an offense, and which, if proved, would establish prima facie the accused’s guilt of such offense”). We are uncertain whether these cases should apply in Petitioner’s situation, where the indictment charged several cognizable offenses. In any event, we need not decide this issue, because Rule 4-345(a) resolves the case. Rule 4-345(a) provides: “The court may correct an illegal sentence at any time.” As we explained in Chaney v. State, Rule 4-345(a) is designed to accommodate postconviction motions filed after the time for direct appeal has expired: If a sentence is “illegal” within the meaning of [Rule 4-345(a) 1, the defendant may file a motion in the trial correct to “correct” it, notwithstanding that ... the sentence was not challenged in a timely-filed direct appeal....

The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly, and, if the trial court denies relief in response to such a challenge, the defendant may appeal from that denial and obtain relief in an appellate court. (Citations and quotation marks omitted.) Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506, 509 (2007); see also State v. Griffiths, 338 Md. 485, 496 , 659 A.2d 876, 882 (1995) (“This Rule creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.”). The “scope of this privilege ... is narrow, however.” Chaney, 397 Md. at 466-67 , 918 A.2d at 509 . To constitute an illegal sentence under Rule 4-345(a), “the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.” Matthews v. State, 424 Md. 503, 512 , 36 A.3d 499, 505 (2012).

Accordingly, “we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.” Id. at 513 , 36 A.3d at 505 . For example, a motion alleging consideration of improper factors by the sentencing court 5 or illegal conduct by the ³⁶⁸ Parole Commission, 6 without more, is not cognizable under Rule 4-345(a). See Montgomery v. State, 405 Md. 67, 74-75 , 950 A.2d 77, 82 (2008) (“[A] trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful.” (citations and quotation marks omitted)). There is no simple formula to determine which sentences are “inherently illegal” within the meaning of Rule 4-345(a), but as we recently explained in Alston v. State: There is one type of illegal sentence which this Court has consistently held should be corrected under Rule 4-345(a).

Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief under Rule 4-345(a). (Emphasis added.) Alston v. State, 425 Md. 326, 339 , 40 A.3d 1028, 1036 (2012). In Alston , we provided several examples of sentences that fell within this category: Several cases in this Court have involved situations where no sentence or sanction should have been imposed, and this Court has held that relief under Rule 4-345(a) was appropriate. Judge Harrell for the Court in Hoile v. State, [ 404 Md. 591, 621 , 948 A.2d 30, 48 (2008),] described three of these cases as follows: See Ridgeway v. State, 369 Md. 165, 171 , 797 A.2d 1287, 1290 (2002) (no sentence should have been imposed on the defendant for certain assault charges because the defendant was acquitted of those charges); Holmes v. State, 362 Md. 190, 195-96 , 763 A.2d 737, 740 (2000) (sentence of probation with home detention as a condition of probation was illegal because the trial court lacked statutory authority to impose such a condition); Moosavi v. State, 355 Md. 651, 662 , 736 A.2d 285, 291 (1999) (sentence was illegal ³⁶⁹ because the defendant was convicted under an inapplicable statute).

(Quotation marks omitted.) Id. at 340, 40 A.3d at 1036-37 . We also discussed two other cases in which Rule 4-345(a) relief was appropriate because the trial court had not been authorized to impose the sentences in question: A seminal case with regard to Rule 4-345(a) is Walczak v. State, 302 Md. 422 , 488 A.2d 949 (1985). In that case, the trial court ordered the defendant Walczak, as a condition of probation, to pay restitution to a victim of a crime (armed robbery) of which Walczak had not been convicted. Walczak failed to object in the trial court to the restitution, and the Court of Special Appeals held that Walczak had waived the issue.

This Court, however, held that the restitution order was not authorized by statute and that it should not have been imposed. The Court further held that it was an illegal sentence, and, under Rule 4~345(a), it should be corrected despite the failure to object in the trial court. See also Jones v. State, 384 Md. 669 , 866 A.2d 151 (2005) (holding that, when the jury’s verdict of guilty on a count was not orally announced in open court, and the jury was not polled and harkened to the verdict on that count, no sentence should have been imposed on that count, and the sentence on the count was illegal within the meaning of Rule 4-345(a)). (Footnote omitted.) Id. at 340-41, 40 A.3d at 1037 .

Following this line of cases, we held that Alston’s sentence never should have been imposed because the trial court handed it down only after “unlawfully reopen[ing] the postconviction proceeding that had terminated!.]” Id. at 341-42 , 40 A.3d at 1037-38 . We therefore granted relief under Rule 4-345(a). Id. at 342 , 40 A.3d at 1038 ; see also Baker v. State, 389 Md. 127, 133-34 , 883 A.2d 916, 919-20 (2005) (holding that a Rule 4-345(a) motion is proper if “the sentence ³⁷⁰ never should have been imposed”). 7 In each of these cases, the movants did not merely allege “a trial court error,” see Montgomery, 405 Md. at 74-75 , 950 A.2d at 82 , but instead asserted that the trial court, for various reasons, lacked the power or authority to impose the contested sentence. See Alston, 425 Md. at 331-32 , 40 A.3d at 1032 (petitioner contended that the resolution of a postconviction proceeding in his favor removed the court’s power to reopen it to convict and sentence him); Jones v. State, 384 Md. 669, 679 , 866 A.2d 151, 157 (2005) (petitioner argued that the failure to orally announce the verdict or hearken the jury removed the court’s power to convict and sentence him on that count); Holmes v. State, 362 Md. 190, 192, 196 , 763 A.2d 737, 738, 740 (2000) (movant contended that the relevant statutes stripped the trial court of the “authority to order home detention”); Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949, 951 (1985) (movant contended that the trial court lacked the power to “order restitution to a victim of a crime of which he was not convicted”); Ridgeway v. State, 369 Md. 165, 170-71 , 797 A.2d 1287, 1290 (2002) (petitioner contended that the trial court was “prohibited” from increasing his sentence after he had left the courtroom following his initial sentencing proceeding); Moosavi v. State, 355 Md. 651, 666-67 , 736 A.2d 285, 293 (1999) (petitioner contended that the trial court convicted him under a statute that the Legislature specifically declined to apply to his situation).

Here, Petitioner’s contention is in the same mold, as he argues that the trial court “did not have the power to render a ³⁷¹ verdict and impose a sentence on the uncharged offense of assault with intent to murder.” As in the cases above, Petitioner’s claim goes to the trial court’s power or authority, and thus may be raised “at any time” under Rule 4-345(a). Waiver by Consent The Court of Special Appeals held that Petitioner’s “silence, acquiescence, and perhaps even request for [a] jury instruction” on assault with intent to murder constituted consent to the addition of that charge, by constructive amendment, to the indictment. Johnson, 199 Md.App. at 347 , 22 A.3d at 918 . Thus, the court held: Given his failure to object at trial, his only recourse would have been to argue plain error in his direct appeal.

This claim is not preserved for our review. [A]ny complaint appellant has to the amendment has been waived by his failure to raise it on direct appeal. Id. at 348-49 , 22 A.3d at 919-20 . The State agrees with the Court of Special Appeals, arguing that Petitioner waived any objection to the insufficiency of the indictment by his “acquiescence, at trial and afterward, in the propriety of his conviction for assault with intent to murderf.]” Thus, the State contends that “both fairness and judicial efficiency” support finding Petitioner’s motion untimely, as he failed to object at trial, at sentencing, or on direct appeal. Petitioner responds that his claim is not subject to any preservation requirement.

As stated above, he argues that his claim is not waived because it may be raised “at any time” under Rules 4-252(d) and 4-345(a). Because Petitioner’s claim is cognizable under Rule 4-845(a), it is not subject to waiver. As we said in Chaney , a motion to correct an illegal sentence under Rule 4-345(a) is not waived even if “no objection was made when the sentence was imposed” or “the defendant purported to consent to it[.]” Chaney, 397 Md. at 466 , 918 A.2d at 509 ; see also Walczak, 302 Md. at 427 , 488 A.2d at 951 (“[A] defendant who fails to ³⁷² object to the imposition of an illegal sentence does not waive forever his right to