Ridgeway v. State

KRAUSER, Judge. Early one morning, three shotgun blasts ripped through a trailer home, wounding two sleeping adults and terrifying three children. Appellant, Darrin Bernard Ridgeway, was accused of firing those shots. He was subsequently charged with, among other things, five counts of first degree assault.

Following a jury trial in the Circuit Court for Howard County, appellant was convicted of two counts of first degree assault, three counts of reckless endangerment, and one count of malicious destruction of property. Although appellant was convicted of only two of the five assault charges, he was mistakenly sentenced by the trial court to a term of ten years’ imprisonment on four of the five assault counts and a term of five years’ imprisonment on the fifth assault count. He received no sentence, however, for any of his three convictions for reckless endangerment; apparently, the trial court erroneously assumed that they merged into the three counts of assault for which he was sentenced but not convicted. Because the court ordered that the sentences on all five counts ,of first degree assault were to run consecutively, appellant received a total sentence of forty-five years’ imprisonment.

His sentence for malicious destruction of property was suspended. When the sentencing error was discovered a few hours after sentencing, the case was recalled, and the trial court, in the presence of appellant and his attorney, vacated appellant’s sentences on three of the five counts of first degree assault and sentenced appellant to a term of five years’ imprisonment for each of his three reckless endangerment convictions. As before, the trial court ordered that all sentences were to run consecutively. Appellant’s total sentence was thus reduced to thirty years’ imprisonment, fifteen years less than his initial sentence.

On appeal, appellant presents two questions, which we have rephrased to more accurately reflect the two issues before us: I. Did the trial court err in recalling appellant’s case several hours after sentencing had ended and imposing ⁵⁵ a sentence for each of his reckless endangerment convictions? I. Did the trial court err in allowing a prosecution witness to testify that appellant had told him that, hours before the trailer shooting, he had fired his shotgun through the door of an apartment, where he believed his assailants were staying? Finding that the trial court did not err in belatedly sentencing appellant for his three reckless endangerment convictions or in admitting evidence of the earlier apartment shooting by appellant, we shall affirm the judgments of the trial court. BACKGROUND On July 22, 1998, at 4 a.m., appellant fired a twelve-gauge shotgun three times into a trailer home, wounding two of the trailer’s five occupants, Morgan Kinney and Beth Ann Hanning, as they lay asleep in the master bedroom.

Kinney received multiple wounds to his legs, and Hanning received a single leg wound. The three other occupants of the trailer home were Kinney’s eleven-year-old daughter, Erica, and her two friends, ten-year-old Danielle Tyler-Thornberg and eleven-year-old Erica Tyler-Thornberg. Fortunately, they were not physically harmed by the shotgun blasts because they were in a bedroom at the other end of the trailer home. When the shooting was over, all three were found huddled in one of the trailer’s closets.

The shooting was the result of events that were set in motion three weeks earlier when appellant was allegedly kidnapped by three men who believed that he had stolen $7000 worth of cocaine from them. According to the statement appellant gave Officer Susan Ensko of the Howard County Police Department, the three men took him at gun point to an apartment, where they tied him up and threatened to put him in a car and set it ablaze. Appellant believed that the men were drug dealers and that a man named “Morgan,” presumably the Morgan Kinney of this case, had lent his car to them ⁵⁶ and allowed two of the three men to use his trailer for drug dealing. Appellant subsequently purchased a twelve-gauge shotgun and told two friends of his, Mark Bell and Cathy Sowers, that he was going to kill the men who had kidnapped and threatened him.

On the morning of July 22, 1998, he went to an apartment, which he believed the three men used, and fired a shotgun through the front door. He then went to Kinney’s trailer, stood at one end of it, and fired three times directly into the trailer. Later, appellant met with his two friends, Bell and Sowers, and told them about both shootings. DISCUSSION I Appellant contends that the trial judge, by imposing sentences for his reckless endangerment convictions after failing to do so at the initial sentencing, violated the prohibition in Maryland Rule 4-345(b) against increasing the sentence of a defendant after he or she has been sentenced and left the courtroom.

That rule provides: The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity, or as provided in section (d) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding (emphasis added). The circumstances of appellant’s initial and subsequent sentencing were as follows.

On April 20, 2000, the trial court ⁵⁷ held a sentencing hearing. After hearing from both sides, the trial court stated: Well, this was a particularly appalling, disgusting, repugnant and repulsive crime, because it involved at least four total strangers and four totally innocent persons. I mean, to lurk around in the middle of the night and pump shotgun shots into a trailer without knowing who’s in there, without caring who is in there, is awfully low. And it is correct that Mr. Ridgeway has a significant prior record.

And according to the psychological evaluation, Patuxent has a feeble, although publicly recognized, purpose and that is rehabilitation. And of course that has a fault major premise (sic). The premise is that there’s something to salvage. And in Mr. Ridgeway’s case, that’s not correct.

The court then imposed sentence as follows: All right, sentence is as follows: As to count one, Mr. Kinney — I’m satisfied that Mr. Kinney was in the drug business. He associated with drug people and, uh, that’s how Mr. Ridgeway knew him and knew about this trailer. But even Mr. Kinney, even Mr. Kinney is entitled to be protected from being shot down in the middle of the night. So as to count one, the sentence is five years in the Department of Correction.

Now we get to all the innocent people. Count five, as to Beth Ann Hanning, the sentence is ten years, that sentence to run consecutive to the count one. As to nine, as to count nine, that’s as to little Erica Kirkbirde, the sentence is ten years in the Department of Correction, that sentence to run consecutive to count five. Sentence is as to count thirteen, count thirteen is little Erica Tyler-Thomburg, the sentence is ten years to run consecutively to the sentence imposed in count nine.

As to count seventeen, that’s little Erica Tyler-Thornburg — or Danielle Tyler-Thomburg, I’m sorry, the sentence is ten years in the Department of Correction, that sentence to run consecutive to the sentence imposed in count thirteen. And as to count twenty-two, the malicious destruction of property, the Court will suspend the imposition of sentence generally. The Court regards the other counts as to second degree and ⁵⁸ reckless endangerment as merged. Total of forty-five years to be served in the Department of Correction.

Unfortunately for the court, appellant had not been convicted of three of the counts of first degree assault for which it had sentenced him, and therefore, the three reckless endangerment counts, for which he had been convicted, could not have merged, as it directed, with those three counts. Consequently, appellant received three illegal sentences on three of the five assault counts and no sentence at all on the three reckless endangerment counts of which he was convicted. A little more than an hour later, the court, in its words, “was notified of the error by the Clerk’s Office, who [sic] was preparing the commitment papers.” Approximately three hours after the initial sentencing, the case was recalled. With appellant and his counsel present, the court informed both sides of the error.

Invoking Rule 4-345(a), the court declared the appellant’s sentence illegal and vacated three of the five assault sentences. It then, over defense counsel’s objection, imposed consecutive terms of five years’ imprisonment for each of appellant’s three reckless endangerment convictions. The court explained its reasoning as follows: Well, for the record, the Court is mindful and has read and re-read and re-read the rule. It is 4-345.

And has read and re-read State versus Sayre, S-A-Y-R-E, 314 Maryland 559 [, 552 A.2d 553 ]. And I think this matter is distinguishable. We’re not talking about subjective intent and all sorts of other things. And we’re not talking about increasing the sentence.

The question is that the Court clearly indicated that it was imposing a separate sentence for the offenses committed against each of these people. And in that regard, that was the intention of the sentence that was imposed this morning. Now obviously with respect to the three young people, the children sleeping in the trailer, Erica Kirkbirde, Erica Tyler-Thomburg and Danielle Tyler-Thomburg, the only offenses for which Mr. Ridgeway was convicted were counts twelve as to Erica Kirkbirde, count sixteen as to Erica Tyler-Thornburg, and count twenty as to Danielle Tyler-Thomburg. And each of those ⁵⁹ counts charged the defendant with reckless endangerment and that’s what he was convicted of.

So in correcting the sentence, this Court does hereby strike the sentences imposed earlier this morning with respect to count nine, count thirteen, and count seventeen. Appellant contends that the trial court, by belatedly sentencing him for the three reckless endangerment convictions, in effect, increased the sentence for each of those convictions from zero to five years’ imprisonment. Appellant further contends that by “increasing” those sentences after he had been sentenced and left the courtroom, the trial court violated Rule 4-345(b), which prohibits a court from “increasing] a sentence after sentence has been imposed,” unless it is to “correct an evident mistake in the announcement of a sentence” and “the correction is made on the record before the defendant leaves the courtroom following the sentencing procedure.” In support of that contention, appellant cites two case: State v. Sayre, 314 Md. 559 , 552 A.2d 553 (1989), which predates the 1992 changes to Rule 4-345(b), and Mendes v. State, 102 Md.App. 246 , 649 A.2d 40 (1994), which post-dates those changes. In Sayre , while sentencing the defendant for assaulting a prison guard, the trial court inadvertently stated that the defendant was to serve his five-year sentence “concurrently” with, rather than “consecutively” to, any sentences he was then serving.

Within moments of having imposed sentence, the trial court was informed by the prosecutor that it had imposed a concurrent and not a consecutive sentence. To correct that mistake, the trial court ordered that the defendant be brought back to the courtroom. When the defendant and his counsel arrived, the judge ordered that the defendant’s sentence be modified so that it would now run “consecutively” to any terms he was then serving. The court explained that it had “meant to say consecutively” when it first imposed sentence.

Id. at 561 , 552 A.2d 553 . The Court of Appeals was not sympathetic. It first noted that “when a sentence is changed from concurrent to consecu ⁶⁰ tive, it is increased in length.” Id. at 562 , 552 A.2d 553 . It further observed that “to permit correction of a slip of the tongue is not necessarily undesirable,” but “to allow a judge who has intentionally made a sentencing decision to change his mind in a manner adverse to the defendant ... carries with it too many possibilities of vindictiveness” because “it is not always easy to distinguish between an inadvertent slip of the tongue and a true change of mind.” Id. at 563-64 , 552 A.2d 553 .

The Court stated that it was “unwilling to allow a procedure that will permit an inquiry of the sentencing judge’s subjective intent under circumstances like those here present.” Id. at 565 , 552 A.2d 553 . The Court therefore held “that under Rule 4 — 345(b), once sentence has been imposed, there can be no inquiry into intention or inadvertence.” Id. Later, Rule 4-345(b) was amended to allow a court to correct a sentencing error, provided that it rectified that error on the record before the defendant left the courtroom, thus creating a limited opportunity to correct a sentencing mistake. A few years later, this Court stated: “Under Sayre and under the amended rule, the Court has allowed a limited opportunity to correct an evident mispronouncement; it has, for that purpose alone, extended the duration of the ‘imposition’ for a brief period beyond the conclusion of the immediate pronouncement until the defendant has left the courtroom.” Mendes, 102 Md.App. at 256 , 649 A.2d 40 .

Neither Sayre , its progeny, nor Rule 4 — 345(b), however, are applicable to the case sub judice. A review of the trial judge’s actions in this case does not require, as in Sayre , an inquiry into his subjective intent. Moreover, appellant’s sentences were not increased by the trial court, as Sayre’s was, which would have brought this matter within the purview of Rule 4-345(b). Indeed, there is no need to probe the thought processes of the trial judge to determine the court’s motive for recalling this case.

The record itself is clear: the trial judge erred in sentencing appellant for crimes he did not commit (or at least was acquitted of) while, at the same time, failing to sentence him for crimes he did commit. Moreover, his inten ⁶¹ tion to impose a sentence in connection with each of the three children who had been endangered by the shotgun blasts is unambiguously set forth in the sentencing transcript. After separately naming each child and identifying the assault count associated with that child, the court imposed a separate" sentence. In imposing sentence, the trial judge made it plain that appellant’s conduct amounted to a criminal act against each of the three children, and he intended to impose a separate and consecutive sentence with respect to each child.

Moreover, the instant case does not involve, as in Sayre , the increase of a sentence after sentencing has concluded. In fact, at the time of the second sentencing, no sentence had yet been imposed for the three reckless endangerment convictions in question. Appellant of course claims otherwise. He contends that the initial failure of the court to sentence appellant for the reckless endangerment convictions was tantamount to the imposition of a sentence of “zero” years for each conviction and that the later imposition of five-year sentences for each conviction increased the sentences for those convictions from zero to five years, in violation of Rule 4-345(b).

We disagree. The trial judge’s failure to sentence appellant did not amount to a sentence of zero years. A sentence is defined as a “fine, probation, or incarceration imposed to punish, rehabilitate, or deter a convicted criminal defendant.” Epps v. Levine, 457 F.Supp. 561, 566 (D.Md. 1978). See also Resper v. State, 354 Md. 611, 620 , 732 A.2d 863 (1999) (adopting the Black’s Law Dictionary (6th ed.1990) definition of the term “sentence” as “the judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation”).

As the inadvertent failure to impose