Mason v. State

COLE, Judge. The issue we must decide in this case is whether the double jeopardy protection against successive prosecutions for the same offense bars the appellant’s conviction of conspiracy to distribute controlled dangerous substances (CDS). The facts are not in dispute. On September 16, 1982, Cornelius B. Mason was charged in Baltimore County under two criminal informations (82-CR-3029 and 82-CR-3030) with various CDS offenses that occurred on August 13 and 14, 1982.

Criminal information 82-CR-3029, which contained four counts, charged Mason with the following offenses that allegedly occurred on August 14, 1982: (1) possession with intent to distribute a CDS, to wit, cocaine; (2) possession of a CDS, to wit, cocaine; (3) conspiracy to ⁴³⁷ distribute a CDS, to wit, cocaine; and (4) a handgun offense in violation of Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 36B. The other criminal information (82-CR-3030) charged him with other violations that allegedly occurred on the preceding day, August 13, 1982. This particular three count information charged Mason with: (1) unlawful distribution of a CDS, to wit, cocaine; (2) possession with intent to distribute a CDS, to wit, cocaine; and (3) possession of a CDS, to wit, cocaine. On November 17, 1982, the Circuit Court for Baltimore County accepted Mason’s guilty plea to count one under criminal information 82-CR-3029 (possession with intent to distribute a CDS, to wit, cocaine).

In exchange for his guilty plea, the State agreed to enter a nolle prosequi on the remaining counts under the two criminal informations, including count three of criminal information 82-CR-3029 (conspiracy to distribute a CDS, to wit, cocaine). The trial court subsequently sentenced Mason to three years’ imprisonment. Approximately four months later, Mason was tried in the Circuit Court for Baltimore City on a nine-count conspiracy indictment charging him with offenses allegedly stemming from the same purchasing and transporting of controlled dangerous substances between Baltimore County and Baltimore City on August 13-14, 1982. This indictment charged Mason with three heroin related offenses, three marijuana related offenses, and three cocaine related offenses.

The trial court denied Mason’s motion to dismiss the Baltimore City indictment on double jeopardy grounds. Mason then entered a guilty plea on count one (conspiracy with intent to distribute a CDS, to wit, heroin) and count seven (conspiracy to distribute a CDS, to wit, cocaine). The trial court accepted the pleas and imposed a three year sentence on count one, which was to run concurrent to the three year sentence he received in Baltimore County. The trial court imposed no sentence on count seven. ⁴³⁸ The Court of Special Appeals vacated Mason’s Baltimore City conviction on count seven (conspiracy to distribute a CDS, to wit, cocaine) on the basis of double jeopardy in an unreported per curiam opinion filed January 19, 1984.

That court, however, refused to vacate Mason’s conviction on count one (conspiracy with intent to distribute a CDS, to wit, heroin), reasoning that “[conspiracy to distribute heroin and conspiracy to distribute cocaine are different offenses since 'each offense requires proof of a fact which the other does not.’ ” (Citation omitted.) We granted certiorari to consider the issue presented. I The fifth and fourteenth amendments to the United States Constitution, 1 as well as the common law of this State, prohibit placing an accused twice in jeopardy for the same offense. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969); Parks v. State, 287 Md. 11 , 410 A.2d 597 (1980); Block v. State, 286 Md. 266 , 407 A.2d 320 (1979). In Parks v. State, supra, we discussed the rationale and the three major constitutional protections associated with double jeopardy: The basic premise for enforcing the prohibition is to prevent the State from making repeated attempts to convict an individual, thereby subjecting him to the hazards of trial, embarrassment, expense, and anxiety as well as enhancing the possibility that even if innocent, he may still be found guilty.

In accordance with this premise the United States Supreme Court and this Court have applied certain constitutional guarantees protecting the accused against unwarranted retrial. These guarantees consist of constitutional protection against (1) a second prosecution for the same offense ⁴³⁹ after acquittal; (2) a second prosecution for the same offense after conviction; (3) and multiple punishment for the same offense. Id. 287 Md. at 14 , 410 A.2d at 600 ; see Ohio v. Johnson, — U.S.-, 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984); Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); State v. Shaw, 282 Md. 231 , 383 A.2d 1104 (1978); Cousins v. State, 277 Md. 383 , 354 A.2d 825 , cert. denied, 429 U.S. 1027 , 97 S.Ct. 652 , 50 L.Ed.2d 631 (1976); Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976). The second constitutional protection enumerated in the above passage “serves 'a constitutional policy of finality for the defendant’s benefit[,]’ ” Brown v. Ohio, supra, 432 U.S. at 165 , 97 S.Ct. at 2225 , 53 L.Ed.2d at 194 (quoting United States v. Jorn, 400 U.S. 470, 479 , 91 S.Ct. 547, 554 , 27 L.Ed.2d 543, 553 (1971) (plurality opinion), and protects the accused “from attempts to secure additional punishment after a prior conviction and sentence[.]” Brown v. Ohio, supra, 432 U.S. at 166 , 97 S.Ct. at 2225 , 53 L.Ed.2d at 194 .

In this case, Mason claims that he was denied the benefit of this particular constitutional protection. In support of his claim, Mason contends that the nolle prosequi of the conspiracy count in return for his guilty plea in Baltimore County barred any further prosecution of that offense. We agree. Our cases make clear that a nolle prosequi is a bar to any further prosecution under that charging document or count.

A nolle prosequi, however, is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or different count. Curley v. State, 299 Md. 449, 459-60 , 474 A.2d 502, 507 (1984); Hooper v. State, 293 Md. 162, 167-68 , 443 A.2d 86, 89-90 (1982); State v. Moulden, 292 Md. 666, 673 , 441 A.2d 699, 702-03 (1982); Ward v. State, 290 Md. 76, 84 , 427 A.2d 1008, 1012 (1981). As Judge Eldridge explained in Curley v. State, supra, “ \n\ormally ⁴⁴⁰ the effect of a nol pros is as if the charge had never been brought in the first place.” Id. 299 Md. at 460 , 474 A.2d at 507 (emphasis supplied). Thus, the State may in some circumstances reinstitute the prosecutions under a new charging document after the entry of a nolle prosequi on the former charging document or count.

The nolle prosequi has a different effect, however, when the prosecutor and defendant enter into a binding plea agreement under which the defendant enters a guilty plea in exchange for the entry of nolle prosequi on the remaining charges. Once the court accepts the defendant’s guilty plea and the defendant complies with the terms of that agreement, the State is barred from any further prosecution on the charges so nol-prossed. In these circumstances the State cannot recharge the defendant under a new charging document or new count with any offense it previously nol-prossed. We therefore consider the nolle prosequi, under these circumstances, as tantamount to a dismissal of that charge.

See Fleeger v. State, 301 Md. 155, 162 , 482 A.2d 490, 494 (1984); State v. Brockman, 277 Md. 687, 700 , 357 A.2d 376, 384 (1976) (State precluded from withdrawing plea bargain where withdrawal is unfair or inequitable to the defendant; consequently, State cannot prosecute defendant on charges nol-prossed in accordance with plea agreement); Magrogan v. State, 56 Md.App. 289, 292-93 , 467 A.2d 784, 785 (1983) {nolle prosequi entered on housebreaking indictment as part of a plea agreement is effectively tantamount to dismissal because the State cannot reinstitute the charges as long as the defendant complies with the terms of the agreement). In the case sub judice, Mason and the State entered into a plea agreement that was accepted by the Circuit Court for Baltimore County. In accordance with this agreement Mason entered a guilty plea to the first count under 82-GR-3029 (possession with intent to distribute a CDS, to wit, cocaine) in return for the State’s promise to nol-pros the remaining counts under the two criminal informations, ⁴⁴¹ one of which charged him with conspiracy to distribute cocaine. Mason complied with his obligation under the plea agreement by pleading guilty, and he began to serve his three year sentence.

Consequently, the State was thereafter barred from recharging him on the offenses it nolprossed in a new charging document. Simply put, any further prosecution under those nol-prossed counts violated the rule against double jeopardy. II Despite the above, the State insists that conspiracy to distribute cocaine and conspiracy to distribute heroin constitute separate offenses and thus may be separately prosecuted without contravening the double jeopardy clause. In support of its argument, the State places heavy reliance upon the Supreme Court’s decisions in Albernaz v. United States, 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981) and Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

Based on these cases the State concludes that the double jeopardy clause acts as no impediment to these successive prosecutions. Because of the State’s heavy reliance upon Albernaz and Blockburger it is necessary to examine those cases in detail. The “required evidence” or “Blockburger” test is the established test for determining whether two offenses are sufficiently distinguishable to permit successive prosecutions. Brown v. Ohio, supra, 432 U.S. at 166 , 97 S.Ct. at 2225 , 53 L.Ed.2d at 194 ; Whack v. State, 288 Md. 137, 141-42 , 416 A.2d 265, 267 (1980), cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981); Brooks v. State, 284 Md. 416, 419-21 , 397 A.2d 596, 597-98 (1979); Newton v. State, 280 Md. 260, 266-68 , 373 A.2d 262, 265-66 (1977); Cousins v. State, 277 Md. 383, 388-89 , 354 A.2d 825, 829 , cert. denied, 429 U.S. 1027 , 97 S.Ct. 652 , 50 L.Ed.2d 631 (1976); Thomas v. State, 277 Md. 257, 266-67 , 353 A.2d 240, 246-47 (1976).

We articulated this test in Thomas in the following language: ⁴⁴² The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. And of course if