McGrath v. State

ELDRIDGE, Judge. This is another criminal case where the defendant was convicted of and sentenced for multiple offenses based upon the same act. We are asked to decide whether separate sentences for the same act were proper and, if they were not, to decide which offense merged for sentencing purposes. Steven Scott McGrath was convicted by a jury in the Circuit Court for Talbot County of battery, theft under $300 in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 342, and the unlawful taking of a motor vehicle in violation of Art. 27, § 342A.

The theft conviction and unlawful taking of a motor vehicle conviction resulted from the same incident. Both convictions were based on McGrath’s taking of his former girlfriend’s automobile on the evening of December 23, 1995, after she had told McGrath that he could never use her car again. McGrath was sentenced to imprisonment for ten years for battery, with five of the ten years suspended in favor of probation for five years. He was sentenced to a consecutive term of five years imprisonment for the unlawful taking of a motor vehicle in violation of Art. 27, § 342A.

Finally, he was sentenced to eighteen months imprisonment for the theft conviction under Art. 27, § 342, with the sentence to be consecutive to the battery sentence but concurrent with the sentence under § 342A. Upon McGrath’s appeal to the Court of Special Appeals, he argued, inter alia, that he should not have been separately sentenced for the same act under both § 342 and § 342A, and that the sentence under § 342A should merge into the sentence under § 342. The Court of Special Appeals, in an ²³ unreported opinion, affirmed the judgments of the circuit court. The intermediate appellate court held that the sentences for violations of §§ 342 and 342A, even though based upon the same act, should not merge under either the required evidence test or the rule of lenity.

Thereafter, we granted McGrath’s petition for a writ of certiorari, McGrath v. State, 350 Md. 280 , 711 A.2d 871 (1998), which presented a single issue: “Whether a person may be separately punished for convictions of theft of a motor vehicle under ... Art. 27, § 342A and theft under ... Art. 27, § 342 where both convictions and sentences are based on the single act of taking a car.” Under Maryland common law principles, “the normal standard for determining whether one offense merges into another is what is usually called the ‘required evidence test.’ ” Miles v. State, 349 Md. 215, 219 , 707 A.2d 841, 843 (1998). See, e.g., State v. Lancaster, 332 Md. 385, 391 , 631 A.2d 453, 456 (1993); Eldridge v. State, 329 Md. 307, 319 , 619 A.2d 531, 537 (1993); In re Montrail M., 325 Md. 527, 531 , 601 A.2d 1102, 1104 (1992); Biggus v. State, 323 Md. 339, 350 , 593 A.2d 1060, 1065 (1991); Williams v. State, 323 Md. 312, 316 , 593 A.2d 671, 673 (1991); Snowden v. State, 321 Md. 612, 616 , 583 A.2d 1056, 1058 (1991).

We have explained the required evidence test as follows (State v. Lancaster, supra, 332 Md. at 391-392 , 631 A.2d at 456-457 ): “The required evidence test ‘ “focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.” ’ Snowden v. State, supra, 321 Md. at 617 , 583 A.2d at 1059 , quoting State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465, 473 (1986). Stated another way, the ‘ “required evidence is that which is minimally necessary to secure a conviction for each ... 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 ²⁴ does not,” ’ there is no merger under the required evidence test even though both offenses are based upon the same act or acts. ‘ “But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other,” ’ and where both ‘offenses are based on the same act or acts, ... merger follows.... ’ Williams v. State, supra, 323 Md. at 317-318, 593 A.2d at 673, quoting in part Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240, 246-247 (1976). “When there is a merger under the required evidence test, separate sentences are normally precluded. Instead, a sentence may be imposed only for the offense having the additional element or elements. * * * “When applying the required evidence test to multipurpose offenses, ie, offenses having alternative elements, a court must ‘examin[e] the alternative elements relevant to the case at issue.’ Snowden v. State, supra, 321 Md. at 618 , 583 A.2d at 1059 .” And later in Lancaster we stated ( 332 Md. at 409-410 , 631 A.2d at 466 ): “Under this Court’s decisions, the required evidence test is not simply another rule of statutory construction.

Instead, it is a long-standing rule of law to determine whether one offense is included within another when both are based on the same act or acts. See Hagans v. State, 316 Md. 429, 445-453 , 559 A.2d 792, 799-804 (1989).... [T]he test if fully applicable to determine merger issues involving common law crimes, including common law crimes for which there is no statutorily prescribed penalty. See, e.g., In re Montrail, supra, 325 Md. at 532 , 601 A.2d at 1104 (‘The required evidence test “applies to both common law and statutory offenses” ’)____” See also Miles v. State, supra, 349 Md. at 219 , 707 A.2d at 843-844 ; Spitzinger v. State, 340 Md. 114, 131-132 , 665 A.2d 685, 693 (1995) (Raker, J., dissenting). Moreover, the required evidence test is not the exclusive standard under Maryland law for determining ques ²⁵ tions of merger, and even “where two offenses are separate under the required evidence test, there still may be a merger for sentencing purposes based on considerations such as the rule of lenity, historical treatment, judicial decisions which generally hold that the offenses merge, and fairness.” Miles v. State, supra, 349 Md. at 221 , 707 A.2d at 844 , and cases there cited.

The rule of lenity, applicable to statutory offenses only, provides that where there is no indication that the legislature intended multiple punishments for the same act, a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other. Miles, 349 Md. at 227 , 707 A.2d at 847 ; Williams v. State, supra, 323 Md. at 321-322, 593 A.2d at 675; Monoker v. State, 321 Md. 214 , 582 A.2d 525 (1990); White v. State, 318 Md. 740 , 569 A.2d at 1271 (1990). When “there is merger under the rule of lenity, the offense carrying the lesser maximum penalty ordinarily merges into the offense carrying the greater maximum penalty.” Miles, 349 Md. at 229 , 707 A.2d at 848 . The Maryland “Theft” statute, Art. 27, §§ 340-342, and 343-344, which was first enacted by Ch. 849 of the Acts of 1978, provides in pertinent part as follows: “§ 342.

Theft. “(a) Obtaining or exerting unauthorized control.—A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and: (1) Has the purpose of depriving the owner of the property; or (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or (3) Uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property....” * * * “(f) Penalty.—(1) A person convicted of theft where the property or services that was the subject of the theft has a ²⁶ value of $300 or greater is guilty of a felony and shall restore the property taken to the owner or pay him the value of the property or services, and be fined not more than $1,000, or be imprisoned for not more than 15 years, or be both fined and imprisoned in the discretion of the court. (2) A person convicted of theft where the property or services that was the subject of the theft has a value of less than $300 is guilty of a misdemeanor and shall restore the property taken to the owner or pay him the value of the property or services, and be fined not more than $500, or be imprisoned for not more than 18 months, or be both fined and imprisoned in the discretion of the court; however, all actions or prosecutions for theft where the property or services that was the subject of the theft has a value of less than $300 shall be commenced within 2 years after the commission of the offense.” 1 Art. 27, § 342A, first enacted by Ch. 268 of the Acts of 1995, states as follows: “§ 342A. Unlawful taking of motor vehicle. (a) Owner defined.—In this section, ‘owner’ means any person who has a lawful interest in or is in lawful possession ²⁷ of a motor vehicle by consent or chain of consent of the actual title owner.

(b) Prohibited conduct.—A person, or the person’s aiders or abettors, may not knowingly and willfully