Moore v. State

THIEME, J. A jury sitting in the Circuit Court for Wicomico County convicted Ronald C. Moore, appellant, of theft of less than $500; receiving a stolen credit card; and stealing a credit card belonging to another. The court merged the credit card convictions and sentenced appellant to two consecutive 18 month terms of imprisonment. On appeal, Moore presents one question, which we have rewritten as follows: 1 Did the circuit court err by failing to merge the credit card convictions with the theft conviction? For the following reasons, we vacate the sentence and remand.

FACTUAL AND PROCEDURAL HISTORY At approximately 6:20 a.m. on October 11, 2003, the Salisbury Police Department received a report of a robbery at the Thrift Travel Inn in room 208. Several officers reported to the scene. Officer Timothy Shearin testified that upon arrival he learned that room 208 was registered to Mike Lee Ivey, who alleged that he had been assaulted and robbed of his wallet that contained several credit cards and $7.00. Ivey described three suspects: a black male, approximately 38 years old, 6 foot to 6 foot 2 inches in height, wearing all black clothing; a ³¹⁰ white female with the first name “Robin,” approximately 40 years old, wearing red clothing; and another black male, approximately 26 years old, also wearing black clothing.

Corporal Jason Yankalunas interviewed Ivey after responding to the scene. Corporal Yankalunas testified that when he arrived, Ivey was bleeding from his mouth and had some teeth missing. Ivey indicated that he had been hit several times in the face, but could not identify who had punched him. Corporal Yankalunas smelled alcohol on Ivey, but could not determine if he was intoxicated because of his mouth injuries.

While he was interviewing Ivey, a second victim, David Lowe, stated that he had also been robbed. Upon learning the descriptions of the suspects, Officer Milton Rodriguez went to the neighboring Baker Street area to begin the search. Initially, he did not locate anyone matching the descriptions, but when he “responded back,” he identified the female suspect, later identified as Robin Capper, and one of the male suspects, later identified as appellant. 2 Officer Rodriguez stopped appellant and asked for some identification. From his front jacket pocket, appellant pulled out a Department of Corrections I.D. bearing appellant’s name and several credit cards: a Taylor Bank Cashing Card, a PNC Bank Debit Card, and a Bank of America Gold Credit Card, all bearing the name Mike L. Ivey or Mike Ivey.

Appellant was detained and Lowe, because he did not appear to be injured, was taken to the Baker Street location for a show up to determine whether he could identify appellant as one of the suspects, which he did. Ivey never identified appellant. Subsequently, after interviewing Lowe more carefully, the officers learned that he was not a victim, but, in fact, a suspect in the case. Around this time, Officer Jason Harrington went to a nearby convenience store, Royal Farms, to try to locate the suspects.

Initially, Officer Harrington did not identify any ³¹¹ one, but when he went back to talk to management, he spoke with a clerk named Josh and gave him the description of the suspects. Josh replied that two men had come in and attempted to use the ATM, and that he had a surveillance videotape of the incident. Officer Harrington and Detective Tanya Ehrisman viewed the tape and saw a white male and a taller black male enter the business. The black male in the tape was later identified as appellant, and the white male was later identified as Lowe.

Officer Harrington testified that when viewing the tape he saw “[t]he black male immediately goes to his left which is where the ATM is located. The white male goes to the front counter. When the white man goes to the front counter he goes off camera a little bit, you can’t see what he’s doing.” Josh told Officer Harrington that the white male had attempted to use a credit card to purchase cigarettes. On cross-examination, Officer Harrington said that he could not see from the videotape whether appellant actually used the ATM.

Ivey testified that he has lived in Ocean City, Maryland for the past 10 years. On October 11, 2003, at approximately 2:30 or 3:00 a.m., he left a bar in Ocean City and took a cab to Salisbury. He recalls someone else being inside the cab with him, and, although he could not specifically identify who it was, he believed that it was probably Lowe. Ivey fell asleep in the cab, but awoke when they arrived at the Thrift Travel Inn.

Ivey paid for the room, signed himself in, and went to his room to sleep. He remembers a knock at the door, a white man, probably Lowe, opening it, and then a white woman and “two black guys came in and they robbed me.” He explained that the men asked him for his money, and then pulled out a knife. At some point he was hit in the mouth and bleeding “pretty bad.” Ivey testified that he was “scared and panicked.” Once the suspects took his wallet, they made Ivey take his clothes off. While they were searching the room for more money, Ivey ran into the next room, “grabbed the phone and said call the police, call the police.” Thereafter, the suspects ³¹² “busted in and hit me and then they left.” Ivey testified that he did not give anyone permission to use his credit cards.

Moreover, he denied giving Robin Capper permission to be in his room or giving Lowe his credit cards to “try to get out some more money ... [to] buy ... crack cocaine.” Appellant was the final person to testify. He stated that he was living at 705 Baker Street with his girlfriend at the time. He had been released from prison just two weeks earlier and had a criminal record. On the day of the incident, appellant was outside smoking a cigarette, waiting for his boss to pick him up.

His friend, Tyrone Hunter, asked him to go to the Thrift Travel Inn with him because someone owed Hunter money. Appellant told Hunter that he did not want to get into any trouble. Hunter assured him that everything would be fine. When they got to the Inn, Hunter knocked on the door, and Capper answered.

Appellant testified that Ivey, Lowe, and Capper were inside and he observed some crack pipes on the night stand. Appellant remembered Ivey stating, “we’re getting ready to go to the store now to get some money.” Appellant decided to go with Hunter and Lowe to Royal Farms so that he could get “something to eat to take to work.” They went in the store and Lowe unsuccessfully attempted to use the ATM. Thereafter, appellant told Hunter, “I’m going back to the house.” Appellant returned to his waiting spot on Baker Street, when Hunter got a call from Capper. Hunter left, and then returned with some credit cards and asked appellant to “hold” them until he came back.

Hunter explained that there was “something[ ] wrong at the hotel.” Appellant testified that he did not see Ivey’s wallet nor did he ever hit Ivey. Furthermore, he stated that he did not try to use the credit cards at Royal Farms and was only in possession of them because Hunter had asked him to hold them. Appellant was charged with robbery; theft of less than $500; receiving a stolen credit card; and stealing a credit card. The jury returned a verdict of not guilty on the first count, and guilty on the remaining three.

During sentencing, ³¹³ the court asked the prosecutor, “What’s your position as to merger?” She answered, and the defense counsel agreed, that the credit card offenses would merge, but that the theft of less than $500 was a separate offense and would not merge. The court merged the stealing a credit card conviction with the receiving a stolen credit card conviction and sentenced appellant to 18 months imprisonment. A consecutive 18 month term for the theft of less than $500 conviction was also imposed. Thereafter, appellant filed this timely appeal.

DISCUSSION Appellant contends that the circuit court erred by not merging all three of his convictions under either the required evidence test or the rule of lenity. The State counters that appellant’s arguments are not preserved because appellant “took the opposite position at sentencing,” and agreed to separate sentences. Therefore, the circuit court did not rule on the present issue. Nevertheless, Maryland Rule 4-345(a) states, “The court may correct an illegal sentence at any time.” In Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985), abrogation recognized by Savoy v. State, 336 Md. 355 , 648 A.2d 683 (1994), the Court of Appeals explained, “when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court.” “A sentence is ‘illegal’ within the contemplation of Walczak if it is beyond the statutory power of the court to impose.” Chilcoat v. State, 155 Md.App. 394 , 413 n. 4, 843 A.2d 240 , cert. denied, 381 Md. 675 , 851 A.2d 594 (2004) (citations omitted).

More recently, the Court of Appeals in Fisher v. State, 367 Md. 218, 292-93 , 786 A.2d 706 (2001) (citations omitted), stated that “an illegal sentence can, and should be addressed even if not preserved or properly raised.” In fact, appellate courts should correct an illegal sentence on direct appeal, “if for no other reason than the avoidance of additional litigation in the ³¹⁴ form of petitions for post conviction relief.” Id. at 293 , 786 A.2d 706 . I. Required Evidence Test Appellant contends that because his “convictions were based on the same act, the theft of the credit cards,” that the conviction for theft should have merged into the conviction for receiving a stolen credit card, just as the conviction for stealing a credit card had merged into the conviction for receiving a stolen credit card. We agree. The doctrine of merger arises in part from the Fifth Amendment Double Jeopardy Clause, which “prohibits both successive prosecutions for the same offense as well as multiple punishment for the offense.” Dixon v. State, 364 Md. 209, 236 , 772 A.2d 283 (2001) (footnote omitted) (citing Newton v. State, 280 Md. 260, 262-63 , 373 A.2d 262 (1977)). “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.” ’ ” McGrath v. State, 356 Md. 20, 23 , 736 A.2d 1067 (1999) (citations omitted).

The test is also known as the “same evidence test,” the “Bloekburger test,” or the “elements test.” Dixon, 364 Md. at 237 , 772 A.2d 283 . This 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.” McGrath, 356 Md. at 23 , 736 A.2d 1067 (quoting State v. Lancaster, 332 Md. 385, 391-92 , 631 A.2d 453 (1993)). Stated differently, 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, “there is no merger under the required evidence test even though both offense 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 ³¹⁵ ‘offenses are based on the same act or acts, ... merger follows____” Id. at 23-24, 736 A.2d 1067 . (quoting Lancaster, 332 Md. at 391-92 , 631 A.2d 453 ) (quoting Williams v. State, 323 Md. 312, 317-18 , 593 A.2d 671 (1991); Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240 (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.” Id. (quoting Lancaster, 332 Md. at 391-92 , 631 A.2d 453 ). The required evidence test equally applies to statutory and common law offenses. Dixon, 364 Md. at 237 , 772 A.2d 283 .

Additionally, the test applies to multi-purpose offenses, i.e., offenses having alternative elements. 3 “[A] court must ‘examinfe] the alternative elements relevant to the case at issue.’ ” McGrath, 356 Md. at 23 , 736 A.2d 1067 (quoting Lancaster, 332 Md. at 391-92 , 631 A.2d 453 ) (quoting Snowden v. State, 321 Md. 612, 618 , 583 A.2d 1056 (1991)). Pursuant to Maryland Code (2002), § 8-204 of the Criminal Law Article (“CL”), appellant was charged and convicted of two credit card theft counts: stealing a credit card and receiving a stolen credit card. That section states in relevant portion: (a) Taking credit card from another; receiving credit card taken from another 'with intent to sell. — (1) A person may