McGhie v. State

GRAEFF, J. In 1994, following a jury trial in the Circuit Court for Montgomery County, Robert Anthony McGhie, appellant, was convicted of murder, attempted murder, two counts of use of a handgun in the commission of a crime of violence or felony, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. The court imposed a sentence of life imprisonment on the murder conviction and concurrent sentences on the other convictions. 1 Appellant subsequently filed a motion seeking “some type of reconsideration and reduction” relating to the life sentence imposed on the conviction for murder, arguing that the jury, ⁴⁵⁵ in announcing its verdict on the murder count, failed to state whether it found him guilty of murder in the first degree or murder in the second degree. Although he styled his pro se motion as a Motion to Revise Sentence, we shall treat it as a motion to correct an illegal sentence. The circuit court denied the motion.

On appeal, appellant, still proceeding pro se, presents three questions for our review, 2 3 which we have consolidated and rephrased as follows: Where the jury finds the defendant guilty of murder without specifying the degree of murder as required by statute, is the conviction for first-degree murder a nullity if the evidence and instructions supported a verdict only with respect to first-degree felony murder? For the reasons set forth below, we answer that question in the negative, and we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND I. Trial We need not recite in detail the evidence adduced at trial in support of appellant’s convictions. Those facts are set out in ⁴⁵⁶ our recently reported opinion affirming the circuit court’s denial of appellant’s petition for a writ of actual innocence.

See McGhie v. State, 224 Md.App. 286 , 120 A.3d 828 (2015). For the purpose of this appeal, it is sufficient to note that the evidence supported a finding that appellant conspired with several others to rob a store in Montgomery County, and during the attempted robbery, one of appellant’s co-conspirators shot and killed one store owner and shot and wounded another person. Appellant was not in the store when the attempted robbery and shootings took place. 3 The State argued that appellant was an accomplice and proceeded on the murder charge under the theory of felony murder. Appellant’s defense, as made clear in his counsel’s opening remarks, was that he was not involved in the robbery plan, and the shooter acted without appellant’s knowledge or assistance.

At the conclusion of the evidence, the court discussed jury instructions with counsel. The transcript reflects that the proposed verdict sheet initially had two options for the murder charge, felony murder and premeditated murder, both of which constitute first-degree murder. 4 After defense counsel objected to the verdict sheet referring to premeditated murder and stated that there was no evidence to support “any degrees of murder other than felony murder,” the State agreed to withdraw its request to have premeditated murder appear on the verdict sheet. Defense counsel then stated that, “if this verdict sheet goes in ... count one should say murder, period, without the word ‘felony.’ ” 5 The prosecution did not oppose this request. ⁴⁵⁷ At the conclusion of the discussion, the court instructed the jury as follows: [I]t is the State’s allegation that the defendant was what they call a principal in the second degree, not the one who actually committed the offense, but an aider and abettor, and with that in mind, let me first then go through—count one is the charge of murder, and that, in effect, alleges a first degree felony murder. In order for the defendant to be convicted of first degree murder or felony murder, the State must prove, one, that the defendant or another participating in a crime with the defendant committed the offense of robbery or armed robbery, that the defendant—or, actually, the defendant Or another participating in this crime killed Randy Covington, the victim, and that the act resulting in the death of Randy Covington occurred during the commission of that crime of robbery or armed robbery.

Felony murder does not require the State to prove that the defendant or [the shooter] intended to actually kill him. It does not require premeditation of first degree murder; it is that a death or homicide occurs during the course of a felony, and the felony alleged is the armed robbery of the [store]. (Emphasis added). In closing argument, the prosecutor noted that accomplice liability was the heart of the State’s case.

He stated that there was no doubt that there was a “felony murder” that occurred in the midst of a robbery, and the only real issue was appellant’s involvement in planning the robbery. The prosecutor told the jury that intent to kill was not required for felony murder, but rather, “the law says if you take someone’s life during the execution of a felony, you are liable for felony murder.” Defense counsel 'argued in closing that the State had failed to prove beyond a reasonable doubt that appellant conspired with the shooter (and others) to rob the store. When the jury completed their deliberations, they returned to the courtroom and announced their verdict as follows: ⁴⁵⁸ THE CLERK: Ladies and gentlemen of the jury, have you agreed upon your verdict? THE JURY: We have.

THE CLERK: Who shall say for you? THE JURY: Our foreman. THE CLERK: Mr. [Fjoreman, please stand. How do you find the defendant as to Count One, Murder?

THE FOREMAN: Guilty. THE CLERK: Count Two, Use of a Handgun in a Crime of Violence or a Felony? THE FOREMAN: Guilty. THE CLERK: Count Three, Attempted Murder?

THE FOREMAN: Guilty THE CLERK: Count Four, Attempted Robbery with a Dangerous Weapon? THE FOREMAN: Guilty. THE CLERK: Count Five, Use of a Handgun in a Crime of Violence or Felony? THE FOREMAN: Guilty.

THE CLERK: Count Six, Conspiracy to Commit Robbery with a Dangerous Weapon? THE FOREMAN: Guilty. (Emphasis added). The jury was then polled, but the polling was not transcribed for the record. 6 The court then directed that the verdict be recorded, stating that there was “no need to hearken” the verdict.

See State v. Santiago, 412 Md. 28, 37 , 985 A.2d 556 (2009) (“ ‘A poll of the jury serves the same purpose as that of hearkening.’ ”) (quoting Smith v. State, 299 Md. 158,166 , 472 A.2d 988 (1984)). ⁴⁵⁹ II. Motion To Revise Sentence In November 2011, after appellant was sentenced to life imprisonment on the murder conviction, he filed a Motion to Revise Sentence, pursuant to Maryland Rule 4-345(b), arguing that there was an “irregularity” in the verdict because “the jury failed to pronounce the degree of murder in their verdict” as required by law. 7 Appellant argued that “the jury’s failure to ascertain in their verdict the degree of murder is a deviation from proper ‘process or procedure’ set by the General Assembly of Maryland,” and therefore, it “constitutes an irregularity within the meaning of Maryland Rule 4-345(b).” Appellant requested that the circuit court “look beyond the label” of his pro se motion and “make a determination based on ... substance.” On December 14, 2011, the circuit court denied the motion. It stated that the “remedy for the error [appellant] alleges was by way of direct appeal.” DISCUSSION Appellant contends that his life sentence for murder should be vacated because it is an “illegal” sentence. In support, he argues that the guilty verdict was a nullity because the jury failed to announce whether it found him guilty of murder in the first degree or in the second degree.

He notes that, in 1994, when appellant was convicted, Md. Code (1992 Repl. Vol.) Art. 27 § 412(a) provided: “If a person is found guilty of murder, the court or jury that determined the person’s guilt shall state in the verdict whether the person is guilty of murder in the first degree or murder in the second degree.” 8 ⁴⁶⁰ The State responds in two ways. First, it contends that a denial of a motion to modify a sentence is not an appealable order, and therefore, we should dismiss this appeal. Second, the State argues that, if we consider appellant’s contention, it should be rejected.

It asserts that the concern underlying the requirement that the jury state with specificity the degree of murder for which they are convicting the defendant is unanimity in the verdict, and here, because the jury was instructed on the murder charge only with respect to first degree felony murder, the jury’s only choice was to find appellant “guilty or not guilty of first degree felony murder.” 9 Under these circumstances, it argues, the announcement of “guilty” on the count of murder undoubtedly was a unanimous verdict of first degree murder. We address first the State’s motion to dismiss the appeal. Appellant acknowledges that he “inartfully titled the motion to revise sentence pursuant to Maryland Rule 4-345(b) arguing irregularity,” as opposed to arguing, as he does on appeal, that his life sentence for murder was “illegal” under Rule 4-345(a). He nonetheless urges this Court to consider the illegal sentence argument he raises on appeal, noting that the court may correct an illegal sentence at any time.

The State responds that appellant “cannot transform an unappealable motion into an appealable one by renaming it,” and accordingly, it asserts that this appeal should be dismissed. Maryland Rule 4-345 provides, in relevant part, as follows: (a) Illegal sentence. The court may correct an illegal sentence at any time. ⁴⁶¹ (b) Fraud, Mistake, or Irregularity. The court has revisory power over a sentence in case of fraud, mistake, or irregularity.

To be sure, appellant sought to “revise” his sentence pursuant to Rule 4-345(b), based on an “irregularity” in the jury’s announcement of the verdict. He also requested, however, that the circuit court “look beyond the label” of his pro se motion and “make a determination based on ... substance.” Given the Court of Appeals’ decision “to construe liberally filings by pro se inmates,” Douglas v. State, 423 Md. 156, 182 , 31 A.3d 250 (2011), and because an illegal sentence may be corrected “at any time,” Rule 4-345(a), we deny the State’s motion to dismiss this appeal. We thus turn to the merits of appellant’s contention, that his life sentence for murder was illegal. A sentence is “illegal” and subject to correction under Rule 4-345(a) only in limited circumstances.

A sentence is illegal in this regard where there is no conviction warranting any sentence or where the sentence imposed is not a permitted one. Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506 (2007). Accord Garner v. State, 442 Md. 226, 251 , 112 A.3d 392 (2015) (A sentence is “illegal” for purposes of Maryland Rule 4-345(a) where “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.”). Here, appellant contends that there was no valid conviction on which a life sentence could have been imposed.

In support, he asserts that his murder conviction was null and void because the jury did not, as statutorily required, announce the degree of murder on which it was convicting appellant. The Court of Appeals first addressed the statutory requirement that a guilty verdict of murder include the degree of murder more than 150 years ago. In Ford v. State, 12 Md. 514 (1859), the defendant was charged with “wilful murder” of another man “by shooting him with a pistol.” Id. at 515 . ⁴⁶² When the jury was asked to give its verdict, the foreman stated that the verdict was “Guilty.” Id. at 547 . Defense counsel asked that the jury be polled.

Id. The court then directed the clerk to ask the jury, when he polled them, “Whether they found the prisoner guilty of murder in the first degree, or murder in the second degree?” To which question, when it was put to the jury, the foreman answered for the jury, in the words, “Guilty of murder in the first degree,” in an audible voice; and each of the remaining eleven jurors, when polled, responded, “Guilty,” without specifying the degree of murder in words. Id. at 548 . Ford argued that there was no unanimity in the verdict regarding the degree of murder on which he was found guilty.

Id. at 534 . The Court of Appeals agreed, stating that Article 19 (now 21) of the Maryland Declaration of Rights provides that, in all