Jones v. Maryland

RAKER, Judge. The common question we must decide in these two consolidated cases is whether multiple punishments may be imposed for the single criminal act of driving a motor vehicle while the operator’s driving privileges were both suspended and revoked in violation of Maryland Code (1977, 1999 Repl.Vol, 1999 Supp.) § 16-303 of the Transportation Article 1 In Jones v. ¹⁴⁶ State, the Court of Special Appeals affirmed the judgments of the Circuit Court for Harford County, thereby answering the question in the affirmative. In State v. Tederick, the Court of Special Appeals reversed the Circuit Court for Washington County, thereby answering the same question in the negative. We granted the petitions for certiorari in both cases and consolidated them for review to resolve the issue.

In Teder-ick, we shall affirm; in Jones, we shall reverse. I. A. Jones v. State, No. 12. Petitioner Jerry Cornelius Jones was charged in the District Court of Maryland, sitting in Harford County, with multiple traffic violations arising from a single incident of driving while his privilege to drive was suspended in violation of § 16-303(c) and revoked in violation of § 16 — 303(d). He was sentenced on count three, attempting to elude police by willfully failing to stop a vehicle when signaled to do so by an official police vehicle, to a term of imprisonment of one year, all but six months suspended; on count four, exceeding the speed limit, a fine of $500, all suspended; on count seven, driving on a suspended license, to a term of imprisonment of one year, consecutive to count three; on count eight, driving on a revoked license, to a term of imprisonment of one year, suspended, consecutive to counts three and seven; on count nine, fleeing police on foot, to a term of imprisonment of one year, suspended, consecutive to counts three, seven and eight; and on count ten, driving without a license, to a term of imprisonment of one year, suspended, consecutive to counts three, seven, eight and nine. 2 The court placed Jones on probation for the suspended portions of the sentences. ¹⁴⁷ The events which led to the suspension and revocation of Petitioner’s driving privileges in Maryland are as follows.

At age 16, Jones was convicted of attempting to drive on a highway without a license. At age 17, he was convicted for driving on a highway without a license. He did not pay the fine imposed by the District Court for that offense and the Motor Vehicle Administration (hereinafter MVA) suspended his privilege to drive for failure to pay the fine. See § 27-103(a)(2).

At age 18, he was convicted of driving while his privilege to drive was suspended, in violation of § 16-303(h). As a result of these convictions, he had accumulated a total of 13 points within a two-year period; pursuant to § 16-404(a)(3)(ii), on May 30, 1997, the MVA revoked his privilege to drive. Consequently, on August 12, 1997, the date of the offense in this case, Jones’s privilege to operate a motor vehicle in this State was both suspended and revoked. On August 12, 1997, Jones was operating a motor vehicle on the public roads in Harford County.

The police attempted to stop Jones’s vehicle to investigate what appeared to them to be a faulty braking mechanism. Jones stopped the car at the side of the road, but immediately sped away. He stopped the car a minute later, and then took off on foot. The officer caught up with him, and determined that Jones had no license to drive in the State of Maryland, and that his privilege to drive was also suspended and revoked.

The officer issued citations for attempting to elude a police officer by failing to stop the vehicle, exceeding the permissible maximum speed limit, negligent driving, reckless driving, attempting to elude a police officer, driving while one’s privilege is suspended, driving while one’s privilege is revoked, and driving without a license. Jones prayed a jury trial and the cases were transferred from the District Court to the circuit court. He was convicted on all counts. Jones noted a timely appeal to the Court of Special Appeals.

Before that court, he argued, inter alia, that the trial court ¹⁴⁸ erred by imposing separate convictions and separate sentences for driving without a license or privilege to drive, driving while one’s license or privilege to drive is revoked, and driving while one’s privilege to drive is suspended. His primary argument was that his convictions for driving suspended and driving revoked should merge under the required evidence test — the driving while suspended being the lesser included offense of driving while revoked. He reasoned that suspension is the temporary counterpart to revocation, the permanent measure. Because the permanent measure necessarily included the temporary measure, driving while suspended is a lesser included offense of driving while revoked.

Thus, the legislature must have intended that the two restrictions be treated as one. In the alternative, he argued the rule of lenity. The Court of Special Appeals rejected his arguments and affirmed the judgments. The court noted that “suspend” is defined in the Transportation Article as “to withdraw temporarily, by formal action of the Administration, an individual’s license to drive a motor vehicle on highways in this State” for a period specifically designated by the Administration.

See § 11-164. “Revoke,” as defined in the Transportation Article, means “to terminate, by formal action of the Administration, an individual’s license to drive a motor vehicle on highways in this State.” See § 11-150. Nonetheless, because Jones’s suspension and revocation restrictions were each imposed for distinct reasons, i.e., suspension for failure to pay District Court fines, and revocation for point accumulation, the court held that they are each different statutory offenses. The court determined that the two charges, that is, those leading to the license restrictions, did not arise from the same criminal act, and therefore it was proper for the trial court to maintain separate convictions. As for the multiple punishments, the Court of Special Appeals rejected Jones’s lenity argument.

In doing so, the court focused on the nature of the traffic violation that led to the suspension and the revocation and noted that there are certain instances, as in the present case, where one’s suspension and revocation could result from distinct and unrelated ¹⁴⁹ conduct. On the other hand, there may also be circumstances in which the behavior leading to one’s suspension might also result in revocation. The court concluded that [a]s a result, no single conclusion may be established regarding whether the legislature intended that the convictions for these two criminal acts merge. Rather, it seems that the proper approach is to determine the merger question on a case-by-case basis, reviewing the circumstances and underlying reasons for each driving restriction and then evaluating whether maintaining distinct convictions for each infringes upon one’s right against double jeopardy.

The court held that because the conduct leading to Jones’s suspension is distinct from the action resulting in his revocation, the rule of lenity does not require merger of the two offenses. Accordingly, it was not plain error for the trial court to maintain separate convictions and sentences for the two offenses. B. State v. Tederick, No. 29 Respondent Douglas C. Tederick was convicted in the Circuit Court for Washington County of driving while his license was revoked, driving while his license was suspended, fleeing and eluding a police officer, driving through a red signal, negligent driving, speeding, and consuming alcohol while driving. The court sentenced him on the driving while revoked charge to a term of imprisonment of one year, consecutive to the one-year sentence the court imposed for the fleeing and eluding conviction.

On the driving while suspended charge, the court sentenced Tederick to a term of incarceration of one year, to be served concurrently with the sentence imposed on the driving while revoked charge. The events which led to Tederick’s suspension and revocation are as follows. Tederick’s license was revoked in December of 1990 due to accumulation of points. His privilege to drive was suspended in June of 1997 for non-compliance with ¹⁵⁰ the terms of his child support order.

See § 16-203(b). 3 On November 2, 1997, Tederick was driving a motor vehicle in West Virginia when a West Virginia state trooper, responding to an unrelated emergency call, engaged his emergency lights in an attempt merely to pass Tederick. Instead of pulling over, Tederick sped up, and as a result, the trooper pursued Tederick’s vehicle. Tederick drove into Maryland, where he was stopped by deputies of the Washington County Sheriffs Department and placed under arrest. Tederick was charged by citation and he prayed a jury trial in the District Court.

The cases were transferred to the Circuit Court for Washington County, where he was convicted of fleeing and eluding, driving through a red signal, negligent driving, driving while suspended, driving while revoked, speeding and consuming alcohol while driving. Tederick noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the court reversed. Ted-erick argued that the trial court erred in imposing separate sentences for driving while his license was suspended and driving while it was revoked.

The court held that driving while suspended is a lesser included offense of driving while revoked; thus, the offenses should have merged. The court reasoned that-Tederick’s offense was simply driving an automobile when not licensed or privileged to do so, and that the original violations that led either to the revocation of a license or the suspension of a license are no longer material comparative elements. The court merged the driving while suspended ¹⁵¹ into the judgment of conviction for driving after license has been revoked. The State filed a Motion for Reconsideration, advising the court that the Tederick opinion was contrary to the unreported opinion in Jones v. State, No. 503, Sept. Term, 1998, (Md.Ct.Spec.App. Dec. 8, 1998), by a different panel of the Court of Special Appeals.

The court granted the State’s motion, recalled the earlier Tederick opinion and substituted in its place Tederick v. State, 125 Md.App. 37 , 723 A.2d 917 (1999). In a footnote, the court allowed that “[i]n rethinking the issue for publication, ... we concluded that ... the rationale now offered is more correct than the one we advanced in the unpublished opinion of December, 2, 1998.” Id. at 39-40 n. 1, 723 A.2d at 918 n. 1. The Court of Special Appeals agreed with Tederick that he should not have been convicted twice and vacated one of the two convictions, albeit for a reason other than that argued by Tederick. The court concluded that Tederick was convicted and sentenced twice for the same offense in violation of both the Double Jeopardy Clause of the United States Constitution as well as Maryland’s common law against double jeopardy, id. at 41 , 723 A.2d at 919 , not because one offense is a lesser included offense of the other but because driving while suspended is “redundant.” 4 The essence of the court’s conclusion was that § 16-303(a) through (g) creates one offense making it unlawful to drive while one’s license or privilege is suspended ¹⁵² or revoked and those subsections are simply different modalities whereby one might be without a license or privilege to drive. 5 Id. at 43, 728 A.2d at 920.

The court focused on the appropriate unit of prosecution. Judge Moylan, writing for the court, asked: what is the fundamental criminal act the appellant was charged with having committed? The court concluded that the prohibited act is the driving on the public highway when one is not permitted to do so. Id. at 41-42, 723 A.2d at 919 .

It is the lack of the license, and not the reason for the lack of the license, that is the gravamen of the offense. The court said: The common denominator to all of the forms the offense may take is that a defendant drove a motor vehicle on a Maryland highway after his privilege to drive had been invalidated. The unit of prosecution is the act of driving. Id. at 45 , 723 A.2d at 921 .

We granted the State’s petition for writ of certiorari to consider the merger question. The common issues we must decide in these consolidated cases are whether the General Assembly in § 16-303 intended to create a single offense which can be committed in different ways or instead, intended to create several distinct offenses. If the General Assembly created distinct offenses, we must decide whether for sentencing purposes, the convictions merge.

II

Transportation Article § 16-303 (“Driving while privilege is canceled, suspended, refused, or revoked”) reads as follows: (a) Refused licenses. — A person may not drive a motor vehicle on any highway or on any property specified in ¹⁵³ § 21-101.1 of this article while his license or privilege to drive is refused in this State or any other state. (b) Canceled licenses. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while his license or privilege to drive is canceled in this State or any other state. (c) Suspended licenses generally. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license or privilege to drive is suspended in this State. (d) Revoked licenses. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license or privilege to drive is revoked in this State.

(e) Licenses canceled by other states. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license issued by any other state is canceled. (f) Licenses suspended by other states. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license issued by any other state is suspended. (g) Licenses revoked by other states. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license issued by any other state is revoked. (h) Licenses suspended under certain provisions of article. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while his license or privilege to drive is suspended under § 17-106, § 26-204, § 26-206, or § 27-103 of this article.

(i) License suspended by another state for failure to appear or pay fine. — (1) This subsection applies only to a person whose license or privilege to drive is suspended under the traffic laws or regulations of another state for: ¹⁵⁴ (1) Failure to comply with a notice to appear in a court of that state contained in a traffic citation issued to the person; or (ii) Failure to pay a fine for a violation of any traffic laws or regulations of that state. (2) A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license or privilege to drive is suspended under the traffic laws or regulations of any other state as described in paragraph (1) of this subsection, (j) Assessment of Points. — (1) Except as provided in paragraph (2) of this subsection, any individual who violates a provision of this section shall be assessed the points as provided for in § 16 — 402(a)(28) of this title. (2) Any individual who violates a provision of subsection (h) or subsection (i) of this section shall be assessed the points as provided for in § 16-402(a)(10) of this title. Tederick and Jones make the same argument before this Court: that the gravamen of the crime is the act of driving.

They argue that the Legislature intended to create a single offense, driving without a license or privilege to drive, which can be committed in alternate ways, not multiple offenses subject to cumulative punishments. In essence, their argument is that each separate driving episode while revoked and suspended may yield but one conviction, no matter how many times and how many ways the license or privilege to drive has been suspended. Their position before this Court is that one offense is not a lesser included offense of the other, 6 but ¹⁵⁵ rather, that they are two alternate means of committing the same offense. In the alternative, they argue the offenses are separate offenses arising out of the same transaction for which the legislature did not intend multiple punishment.

Jones and Tederick obviously recognize that whether the proscriptions are single or multiple offenses is a close question, and accordingly, they argue that where legislative intent is ambiguous or doubtful as to whether there may be multiple punishments for the same act, it will be resolved against turning a single transaction into multiple offenses. Finally, they argue that even if driving while suspended and driving while revoked are separate offenses, the statute itself, as well as the legislative history, give no indication that the Legislature intended multiple punishments for a single act of driving. At the very least, they suggest, the intent of the Legislature is ambiguous at best, and therefore, the rule of lenity operates to resolve the ambiguity in their favor. The State argues, on the other hand, that for each separate traffic stop, a person may be charged with, and convicted of, separate charges for every active suspension and revocation.

This multiple charging, it argues, furthers the Legislature’s purpose in treating a person with multiple suspensions more harshly than a person with a single suspension. The State’s position is that the convictions do not merge under any theory of merger. Rejecting the Court of Special Appeals’ concept of merger because the offenses are merely “redundant,” the State argues that subsections (a) through (g) of § 16-303 are seven separate and distinct offenses establishing a variety of driving violations which may be punished separately. The State summarizes its argument as follows: [T]he fact that driving while revoked and driving while suspended are defined differently, are set forth in different subsections of § 16-303, are punished differently depending upon the reason for the suspension or revocation, and stem from differing policy considerations, compels the conclusion that there is no ambiguity as to the intent of § 16-303, and ¹⁵⁶ that driving while revoked and driving while suspended are separate and distinct offenses which may be separately punished.

III

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits multiple punishments for the same offense as well as multiple trials for the same offense. 7 Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221, 2225 , 58 L.Ed.2d 187 (1977). Under the Double Jeopardy Clause, a defendant is protected against multiple punishment for the same conduct, unless the legislature clearly intended to impose multiple punishments. See Missouri v. Hunter, 459 U.S. 359, 365-69 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 688-89 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980). Where the legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct, cumulative punishment may be imposed under the statutes in a single trial.

See Missouri v. Hunter, 459 U.S. at 368 , 103 S.Ct. 673 . The Supreme Court has said that with respect to cumulative punishments imposed in a single trial, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. at 366 , 103 S.Ct. 673 . The bottom line in resolving “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to impose.” Alb ernaz v. United States, 450 U.S. 333, 344 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981). Maryland common law analysis leads to the same conclusion.

Under common law principles, ¹⁵⁷ merger follows as a matter of course when two offenses are based on the same act and are deemed to be the same under the required evidence test. See Williams v. State, 323 Md. 312, 318 , 593 A.2d 671, 673 (1991). We noted the only exception in Frazier v. State, 318 Md. 597, 614-615 , 569 A.2d 684, 693 (1990): [E]ven if offenses are deemed the same under the required evidence test, the Legislature may punish certain conduct more severely if particular aggravating circumstances are present, by imposing punishment under two separate statutory offenses. We first address the Court of Special Appeals’ conclusion that the convictions for driving suspended and driving revoked subjected them to multiple punishment of the same offense in violation of their double jeopardy rights under the United States Constitution.

Multiple punishment-same trial challenges generally arise in one of two broad contexts: (1) where a statute proscribes designated conduct and the issue is whether the defendant’s conduct constitutes more than one violation of this prohibition, or (2) where two statutes or two portions of a single statute proscribe certain conduct, and the issue is whether the defendant can be punished twice because the particular course of conduct violates both proscriptions. See Randall Book Corp. v. State, 316 Md. 315, 324 , 558 A.2d 715, 720 (1989); Brown v. State, 311 Md. 426, 431 , 535 A.2d 485, 487 (1988) (quoting Gore v. United States, 357 U.S. 386, 393-94 , 78 S.Ct. 1280 , 2 L.Ed.2d 1405 (1958)). “If the statute creates only one offense, double jeopardy principles would require that the same acts of the defendant not be subject to multiple punishments under the statute.” Biggus v. State, 323 Md. 339, 343 , 593 A.2d 1060, 1062 , (1991). This double jeopardy analysis is a two-step process. We determine first whether the charges arose out of the same act or transaction, and second, whether the crimes charged are the same offense.

In these cases, there is no dispute that the charges arose out of the single act of unlawfully driving an automobile. The parties’ points of reference differ, however. ¹⁵⁸ The State focuses on the underlying reasons for the suspension and revocation; Jones and Tederiek focus on the act of driving. The State maintains that because the revocation and the suspensions arose from separate incidents, the charges did not arise out of the same conduct. Jones and Tederiek maintain that there is only one act or transaction because the charges arose from the single act of driving.

In Jones, the State argues that because Jones’s license was suspended for his failure to pay fines imposed for two traffic violations and his license was revoked for point accumulation, driving on August 12, 1997, is the one shared element of his two offenses. We interpret this argument to suggest that the two charges do not arise out of the same transaction. We agree with Jones and Tederiek that the charges arose out of the same act or transaction and that the focus is on the individual’s conduct in driving a motor vehicle while suspended or revoked, and not the reasons underlying the legally operative suspension or revocation. The language of the statute ties the offense to the operation of the vehicle.

We agree with Judge Moylan’s remark in Tederiek that [w]hat we should ask ... is what is the fundamental act the appellant is charged with having committed. It is getting behind the wheel of an automobile, turning on the ignition, and driving onto the roadways of Maryland when one is not licensed to do so. Tederiek, 125 Md.App. at 43 , 723 A.2d at 919 (emphasis added). Although the charges arose from a single act, we nevertheless conclude that the offenses charged were multiple offenses.

In determining whether the violations charged are the same offense, because the parties conceded that