Rudder v. State

CHARLES E. MOYLAN, JR., J., (retired, specially assigned). One of the law’s ironies is that sometimes the solution to a problem begets a dozen new and unforeseen problems, that sometimes the answer to a question begets a dozen new and unforeseen questions. Thus it may have been with the Legislature’s effort in 1961 to fashion a rational sentencing cap for those convicted of criminal conspiracy. The appellant, Isiah Michael Rudder, was convicted by a Prince George’s County jury, presided over by Judge Graydon S. McKee, III, of 1) robbery, 2) automobile theft, 3) theft of over $500 in value, 4) carrying a handgun, 5) transporting a handgun, and 6) conspiracy to commit carjacking and other lesser included crimes.

On this appeal, he raises the five contentions 1. that Judge McKee erroneously imposed too high a sentence for the appellant’s conviction on the conspiracy count; 2. that Judge McKee erred in seating a juror whose ability • to be fair and impartial was arguably in doubt; 3. that Judge McKee erroneously failed to merge the conviction for automobile theft into the conviction for theft generally; 4. that Judge McKee erroneously failed to merge the theft conviction into the robbery conviction; and ⁴³¹ 5. that Judge McKee’s sentencing was based on impermissible considerations. How Specific Must the Conspiratorial Purpose Be? The appellant’s first contention is a perplexing one, although it involves only sentencing. It raises some questions to which there may be no satisfactory answers.

Is there a fundamental incompatibility between a lesser specificity required to try and to convict someone of criminal conspiracy and a greater specificity required to sentence the convicted conspirator? In all cases? No. In many cases? Yes.

The appellant contends that when the jury convicted him, under Count Ten, of conspiracy, it did not convict him of conspiracy to commit carjacking, with which he had been charged, but only of conspiracy to commit theft. For guilt purposes, they are, at least in the circumstances of this case, one and the same. For purposes of establishing the maximum sentence, on the other hand, they are not. The contention is a bit strained but it is plausible, and it will entail significant further analysis.

As far as the conviction for criminal conspiracy itself is concerned, whether the appellant’s argument is right or wrong makes no difference. Either way, the appellant was guilty of conspiracy to commit a crime, to wit, to steal Mr. and Mrs. Nicknadavich’s car on the night of February 24, 2006. Whatever particular crime or crimes were embraced within that generic conspiratorial purpose was surplusage and does not adversely affect the validity of the conspiracy conviction itself. When it comes to sentencing the appellant for the conspiracy conviction, however, the appellant’s contention makes a great deal of difference.

A conspiracy to commit carjacking (armed or unarmed) carries a maximum penalty of 30 years. The appellant was sentenced to 30 years (with all but 15 years suspended). A conspiracy to commit the theft of property of the value of $500 or more (the Cadillac unquestionably was worth more than $500), by contrast, carries a maximum sentence of 15 years. Language that is mere surplusage in terms ⁴³² of the validity of the conviction itself may ironically determine whether the sentencing cap is one of 80 years or one of 15 years.

Sentencing a Convicted Conspirator The aberrational quirk that this contention brings to light is that far less by way of specificity is required to charge one with criminal conspiracy and then to convict one of that conspiracy than is then required to sentence the defendant for the conviction. Some explanation is appropriate. The sentencing law for conspiracy was reformed in 1961. It would appear that 1961’s solution to an earlier sentencing problem, however, has created a new sentencing problem.

Time was when the degree of specificity required to charge and to convict one of conspiracy would also suffice to sentence one for conspiracy. That may no longer be the case. Conspiracy is a common law crime. It arrived in our then proprietary colony as part of the unseen cargo of the Ark and the Dove.

As a common law crime, it carried with it the common law penalty of anything in the discretion of the sentencing judge that was not, according to later constitutional scrutiny, cruel and unusual. Gary v. State, 341 Md. 513 , 518 n. 5, 671 A.2d 495 (1996); Archer v. State, 145 Md. 128, 136 , 125 A. 744 (1924). That open-ended penalty provision remained unchanged for 300 years, until Chapter 651 of the Acts of 1927 established that “Every person convicted of the crime of conspiracy shall be liable to be punished by ... imprisonment ... for not more than ten years. That sentencing provision, in effect for the next 34 years, did nothing to affect the parity between the specificity required to convict one of conspiracy and the specificity required to sentence someone for conspiracy.

If the defendant was convicted of conspiracy, that was all the sentencing judge needed to know. No further fine-tuning or tweaking of the verdict was required. The obvious flaw with the 1927 sentencing provision, however, was that a defendant could, and some ⁴³³ times did, receive a much harsher sentence for the inchoate conspiracy than for the consummated crime he conspired to commit. A conspiracy to scribble graffiti on a fence exposed one to the same maximum sentence of ten years as did a conspiracy to kill the king.

There was a felt need for greater proportionality, necessitating some adjustment of the permissible sentence both upward and downward. Chapter 691 of the Acts of 1961 was intended to be the solution, replacing the 1927 sentencing provision, which was repealed. As a side effect, however, it injected a specificity into the sentencing provision beyond that required to convict one of conspiracy. Codified for almost four decades as Art. 27, § 38, it is now Criminal Law Article, § 1-202.

It is entitled “Conspiracy — Limitation on Punishment.” (Emphasis supplied). The punishment of a person who is convicted of conspiracy may not exceed the maximum punishment for the crime that the person conspired to commit. (Emphasis supplied). See Gary v. State, 341 Md. 513, 517-18 , 671 A.2d 495 (1996); DeLeon v. State, 102 Md.App. 58, 62-63 , 648 A.2d 1053 (1994); Mills v. State, 12 Md.App. 449, 465-66 , 279 A.2d 473 (1971).

The express purpose of the new sentencing provision was to insure that a convicted conspirator did not receive a harsher sentence for the inchoate conspiracy than he could have received for the substantive offense he conspired to commit. Walker v. State, 53 Md.App. 171 , 187 n. 5, 452 A.2d 1234 (1982). In that regard the change did its job well. Problems, however, were inadvertently created.

It must be remembered that a criminal conspiracy may consist not only of a combination to commit a crime but also of a combination to do a lawful act by criminal or unlawful means. Pearlman v. State, 232 Md. 251, 257 , 192 A.2d 767 (1963); Garland v. State, 112 Md. 83, 86 , 75 A. 631 (1910) (“The agreement may be to commit a crime ... or to do a lawful act by a criminal or unlawful means.”); State v. Buchanan, 5 H. & J. 317, 352 (1821); Quaglione v. State, 15 Md.App. 571, 578 , 292 A.2d 785 (1972); Wilson, Valentine and ⁴³⁴ Nutter v. State, 8 Md.App. 653, 671, 262 A.2d 91 (1970); Jones v. State, 8 Md.App. 370, 375, 259 A.2d 807 (1969) (“Simply stated, conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.”). This variety of conspiracy is admittedly a rare bird, but it is out there, peering at the sentencing provision like a demon in the night. The penalty provision of § 1-202 cannot apply in such a case for the direct objective of the conspiracy is not the commission of a crime.

At first blush, one might conclude that such a conspiracy, therefore, could not be punished. The answer to that dilemma may be to remember that § 1-202 is only a limiting provision and not an authorizing provision. In Jones v. State, 8 Md.App. at 375-76, 259 A.2d 807 , Judge Orth explained that when the limiting statute does not apply, the sentencing judge may fall back on the discretionary common law sentencing procedure. Today punishment is prescribed by statute, but only by way of limitation and applicable only when the object of the conspiracy is an “offense. ” ...

Thus it is when the object of the conspiracy is an indictable crime that the punishment for conspiracy to commit such crime may not exceed the punishment permitted for the object crime. If the object of the conspiracy is some other act with regard to which it is unlawful to conspire, the punishment is under the common law and the length of the sentence is left to the discretion of the trial court. (Emphasis supplied). As this Court’s opinion in DeLeon further elucidated, the new sentencing provision of 1961 did not authorize sentencing for convicted conspirators.

With the repeal of the 1927 sentencing law, the sentencing prerogative reverted to what it had been at common law, subject only to the limitation that is the subject of what is now § 1-202. DeLeon, 102 Md.App. at 62-63 , 648 A.2d 1053 , characterized both the new sentencing limitation for conspiracy and an analogous sentencing limitation for the inchoate crime of attempt. ⁴³⁵ There are now several sentencing provisions for conspiracy [and attempt] that have been provided by the Legislature. As their very wording reveals, however, they are not authorizing 'provisions creating in the trial court the authority to impose sentence. They are, quite to the contrary, limiting provisions, restraining, to the extent spelled out, the otherwise free-wheeling authority of the trial court to impose any sentence subject only to the constraints of its sound discretion and the constitutional inhibitions----[The new provision], by its very terms, is a limiting provision, not an authorizing provision.

(Emphasis supplied). See also Gary v. State, 341 Md. 513, 517 , 671 A.2d 495 (1996); Jones v. State, 8 Md.App. 370, 375, 259 A.2d 807 (1969) (“Today punishment is prescribed by statute, but only by way of limitation and applicable only when the object of the conspiracy is an ‘offense.’ ”). The problem is that, notwithstanding Jones v. State and DeLeon v. State, there is a widespread and almost reflexive tendency to look to § 1-202 as an authorizing provision and not simply as a limiting provision. Such a Pavlovian reflex., however, could lead to sentencing paralysis.

Even in the more familiar world of conspiracy to commit a crime, moreover, a recurring problem is that many a valid conviction for conspiracy to commit a criminal act or acts never formally presumes to designate “the crime that the person conspired to commit.” There is a world of difference between “crime” and “THE crime.” Sometimes there is only one particular crime contemplated by the conspirators and its identity is self-evident. If the conspiracy involves a large and ongoing criminal syndicate for commercial gain, on the other hand, it may have no such simple objective readily identifiable as “THE crime” conspired at. If the conspiracy charge is an appendage to a multi-count indictment, placement on the sentencing ladder might seem to involve the establishment of an additional element, not required for the conspiracy conviction itself. In many conspiracies, there may be no such object as “THE crime.” In other conspiracies, “the crime” may not ⁴³⁶ always be easy to identify.

In either event, the application of § 1-202 may be perplexingly problematic. The Nature of a Conspiratorial Agreement Putting sentencing considerations on a back burner for the moment, let us turn to the essential nature of the conspiratorial agreement itself. Historically, the crime of conspiracy never demanded the degree of specificity demanded for the trial of a consummated crime. The meeting of the minds, frequently informal and unspoken, that produced a criminal conspiracy was seldom, if ever, a meeting of the minds among criminal law professors, carefully calibrating which crime or crimes, with which precise sets of elements, was to constitute their conspiratorial purpose.

The pleading requirements of the conspiracy law did not evolve to deal with conspirators as nuanced in their thinking as a Professor Moriarty. Albeit having arrived in Maryland in 1634, conspiracy made its formal debut with the landmark opinion of the Court of Appeals in State v. Buchanan, 5 H. & J. 317 (1821). Conspiracy is still the common law misdemeanor that it was there recognized to be. With respect to conspiracy to commit a criminal act, the Buchanan Court announced: [A] conspiracy to do any act that is criminal per se is an indictable offence at common law, for which it can scarcely be necessary to offer any authority. 5 H. & J. at 351 .

Buchanan further made clear that the crime of conspiracy is complete without any overt act and that the particular means by which the criminal purpose is to be achieved need be neither alleged nor proved. [Efvery conspiracy to do an unlawful act, or to do a lawful act for an illegal, fraudulent, malicious or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general, is at common law an indictable offence, though nothing be done in execution of it, and no matter by what means the conspiracy was intended to be effected; which may be perfectly indifferent, and makes no ingredient ⁴³⁷ of the crime, and therefore 'need not be stated in the indictment. 5 H. & J. at 352 (emphasis supplied) A century later, Lanasa v. State, 109 Md. 602 , 71 A. 1058 (1909), addressed a defendant’s complaint that his conviction for conspiracy was fatally inconsistent with his acquittal for the consummated crime conspired at. The conspirators in that case had simply failed to do the thing they had set out to do. At his sentencing hearing in the present case, the appellant made just such a claim. “I could not have conspired to commit a carjacking because the jury acquitted me of carjacking.” The Court of Appeals, in rejecting such a contention in Lanasa, pointed out that conspiracy is a fait accompli without any overt act being done to carry out its purpose. Criminals sometimes fail.

A failure successfully to carry out the plot, however, does not require the courts to go back and rewrite the plot. The conspiracy law’s concern is with the plot as formed, not with the plot as executed. A conspiracy may be described in general terms, as a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose.... The essence of the offense consists in the unlawful agreement and combination of the parties; and, therefore, it is completed whenever such combination is formed, although no act be done towards carrying the main design into effect. 109 Md. at 607 , 71 A. 1058 (emphasis supplied).

In terms of conspiratorial non-specificity, Lanasa noted the general nature of a criminal meeting of the minds and disdained any notion that greater specificity in charging is required. Nor is it necessary to the completion of the crime that the conspirators should determine in adva,nce what particular property should be injured or destroyed. To hold that the law cannot interpose and arrest by criminal procedure the malicious purposes of the conspirators, unless they had agreed upon the destruction of some particular property would strip it of its most beneficent preventive powers and ⁴³⁸ leave the confederates at liberty to consummate their wicked purposes. The law is not so impotent and ineffective.

As it is not essential to the completion of the offense that any particular property should be destroyed, it is, therefore, not required that the object of the unexecuted conspiracy should be set out with great particularity and certainty in the indictment, because only such facts need to be stated as shall fairly and reasonably inform the accused of the offense with which he is charged. To require more in such a case would be to put an unnecessary burden upon .the State, and make it impossible in many cases to secure the conviction of the guilty. Id. at 608, 71 A. 1058 (emphasis supplied). Lanasa, of course, could not foresee Criminal Law Article, § 1-202 and the possible impact that non-specificity might have on the 1961 sentencing cap for conspiracy.

Garland v. State, 112 Md. 83, 86-87 , 75 A. 631 (1910), firmly established that an indictment for criminal conspiracy need not set out the crime conspired at with the specificity required of an indictment for such a consummated crime itself. In an indictment charging the common law offense, the means by which an unlawful or criminal object is to be accomplished need not be stated, and in stating the object it is only necessary for the indictment to show that the purpose of the conspiracy is criminal or unlawful. When the agreement is to commit an offense known to the common law or created by statute, it is not necessary, in stating the object of the conspiracy, to set out the offense with the accuracy or detail required in an indictment for that offense. The reason for the rule is that the crime of conspiracy does not consist in the accomplishment of the unlawful object, or in doing the acts by means of which the desired end is to be attained, but the essence of the offense is, as we have stated, the unlawful combination and agreement for any purpose that is unlawful or criminal.

(Emphasis supplied). See also Apostoledes v. State, 323 Md. 456, 461-62 , 593 A.2d 1117 (1991); Monoker v. State, 321 Md. ⁴³⁹ 214, 221, 582 A.2d 525 (1990); Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988). In Jones v. State, 8 Md.App. 370, 375-76 , 259 A.2d 807 (1969), Judge Orth provided a classic definition of conspiracy: Simply stated, conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. In Maryland it is a common law misdemeanor. ...

In the context of the act to be accomplished, conspiracy is a broad crime. Nothing is better settled in the criminal law than the doctrine that a conspiracy to commit any crime, either as the end or as the means of accomplishing an end not criminal, is a misdemeanor at common law; and it is immaterial whether the intended crime be a felony or merely a misdemeanor, and whether it be criminal at common law or by statute only. (Emphasis supplied). See also DeLeon v. State, 102 Md.App. 58, 62 , 648 A.2d 1053 (1994); Silbert v. State, 12 Md.App. 516, 528 , 280 A.2d 55 , cert. denied, 263 Md. 720 (1971); Randolph v. State, 10 Md.App. 89, 92 , 267 A.2d 767 (1970); Regie v. State, 9 Md.App. 346, 350-51 , 264 A.2d 119 (1970).

The Conspiracy In This Case Against this backdrop of caselaw, the present case is an illuminating example. The evidence was legally sufficient to permit a finding that at approximately 9:25 P.M. on the night of February 24, 2006, the appellant, Arian Dorsey, and Charles Wright entered into their apartment in Bladensburg. The meeting of the minds on the part of his assailants was far from a textbook model of precise negotiation among them or of precise ideation on the part of any one of them. It sprang to life randomly and spontaneously when the three unexpectedly observed an attractive looking Cadillac being driven onto the parking lot.

It was triggered by a single statement, as Charles Wright blurted out, “Let’s go get that car,” and the ⁴⁴⁰ other two, by their actions, enlisted in the enterprise. 1 Did the conspirators realize that they had joined a conspiracy? Did they appreciate the far-flung legal implications of the thing they had agreed to do? Of course not! Conspirators seldom do.

They agreed to steal a car at gunpoint, and that’s about it. That is all, moreover, that a conviction for the inchoate crime of conspiracy ever required. In the universe of conspiracies, this one has to be at just about the outer edge. Far though it may be from the core concern that conspiracy law evolved to counteract, however, it does satisfy, even if just barely, the controlling definitions.

In any event, no challenge to the conviction in this regard has been mounted. Conspiracy to Commit Generic Crime: No Charging Problem In terms of the absence of any requirement that a charge of criminal conspiracy state with specificity some particular crime conspired at, Hurwitz v. State, 200 Md. 578 , 92 A.2d 575 (1952), is the benchmark. The charge in that case alleged broadly that the defendant did conspire “to violate the lottery laws of the State.” Id. at 581 , 92 A.2d 575 . Seven attendant counts then charged seven substantive lottery law violations. 2 Although pointing out that the subtitle “Lotteries” was comprised of sixteen separate code sections, the opinion nonetheless concluded that no further specificity was required. ⁴⁴¹ The wards “to violate the lottery laws of the State” have a promiscuous sound, but mean in substance, to participate in the conduct of a lottery, as broadly defined.

Id. at 588 , 92 A.2d 575 (emphasis supplied). Robinson v. State, 229 Md. 503 , 184 A.2d 814 (1962); Rouse v. State, 202 Md. 481, 484 , 97 A.2d 285 (1953); Adams v. State, 202 Md. 455 , 97 A.2d 281 (1953); Scarlett v. State, 201 Md. 310, 315 , 93 A.2d 753 (1953); McGuire v. State, 200 Md. 601, 603-04 , 92 A.2d 582 (1952); Gillespie v. State, 147 Md. 45, 59-60 , 127 A. 727 (1924); Blum v. State, 94 Md. 375, 378-79, 51 A. 26 (1902). Hurwitz recognized that such broad and general language could present problems, 200 Md. at 582, 92 A.2d 575 : It must be admitted that ordinarily the words “unlawfully violate the lottery laws of the State” do not so definitely describe acts done as to charge an offense; they even seem too indefinite to charge acts contemplated as the object of a conspiracy. (Emphasis supplied).

The Hurwitz opinion nonetheless made clear that greater specificity in identifying a criminal purpose is not only not required but is sometimes in such a context not even possible. Though in som,e respects these principles and rules seems to permit loosely drawn indictments, in other respects they express only the logic and common sense (and sometimes the sheer necessity) of the case. An indictment for robbery or larceny must ordinarily state the property stolen and the name (if known) of the owner. If, however, pickpockets conspire to ply their trade in a public place it is manifestly impossible to state what property they conspire to steal or whom they conspire to rob.

Id. at 585 , 92 A.2d 575 (emphasis supplied). The Court of Appeals stated, however, that it would never “approve as a general formula for the statement of the object of a conspiracy” such an open-ended charge as a conspiracy “to violate the .... laws of the State.” Id. at 588-89 , 92 A.2d 575 . It might, of course, be argued that Hurwitz v. State was decided prior to the 1961 passage of the current conspiracy ⁴⁴² sentencing provision and that it has, therefore, been superseded by implication. No such contention can be made, however, with respect to Quaglione v. State, 15 Md.App. 571 , 292 A.2d 785 (1972), decided nine years after the new sentencing provision took effect.

In Quaglione , the challenged indictment alleged generally that the defendant had “unlawfully conspired ... to violate the Narcotic Laws of the State of Maryland.” The defendant’s contention in that case was that the trial judge “incorrectly interpreted the jury’s verdict as a finding of guilt of a conspiracy to violate the narcotic laws prohibiting the sale of controlled narcotics rather than the lesser crime of a conspiracy to unlawfully possess narcotics.” Id. at 578 , 292 A.2d 785 . He objected to the greater sentence for conspiracy to sell as opposed to a lessor sentence for conspiracy to possess. Both, of course, would be embraced within a conspiracy to violate the narcotics laws. When one conspires to violate the “narcotic laws of the State,” what precisely is “the crime” conspired at?

Is it to sell or to possess? What is the maximum sentence following such a general conviction? Relying on Hurwitz , this Court found no fault with the lack of further specificity or with the decision of the trial court to impose the heavier sentence. The meaning of the phrase “narcotic laws of the State of Maryland” is evident and apparent to the appellant to the same extent that the meaning of “the lottery laws of the State” were held to be evident and apparent to the accused in Hurwitz .

Id. at 582 , 92 A.2d 575 . See also Haina v. State, 30 Md.App. 295, 314 , 352 A.2d 874 , cert. denied, 278 Md. 723 (1976). In Quaglione the jury’s verdict was arguably ambiguous in that it did not explicitly identify “the crime” that was the object of the conspiracy. This Court nonetheless placed its imprimatur on the trial judge’s interpretation of the jury’s verdict.

On the basis of the evidence in the case and the jury instructions, the judge concluded that the jury had identified the object of the conspiracy as the selling of narcotics. In imposing sentence the trial judge stated in effect that the evidence showed the basis of the jury’s verdict was the ⁴⁴³ sale of marijuana .... He therefore interpreted the verdict as a finding of guilt of a conspiracy to unlawfully sell marijuana. Considering the evidence in the light of the court’s instructions together with the wording of the charge, we hold that the trial judge did not clearly err in his interpretation of the jury’s verdict. 15 Md.App. at 579-80 , 292 A.2d 785 (emphasis supplied).

There would be, incidentally, no problem under Apprendi v. New Jersey, 580 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), with such a resolution of ambiguity, because the judge was not making findings as to ultimate facts but was only interpreting what the jury’s findings had been. Although McMorris v. State, 277 Md. 62 , 355 A.2d 438 (1976), focused primarily on an issue involving limitations, it also gave implicit approval to a count in an indictment charging the defendant generally with conspiracy “to violate the controlled dangerous substance laws of the State of Maryland.” The significance of the Court’s action, moreover, was highlighted by the dissenting opinion of Judge O’Donnell, Id. at 79-91 , 355 A.2d 438 , as he complained that [a]ll that it alleges is that a conspiracy was entered into to violate at least 28 different statutory proscriptions included within the embrace of the generic term used. Id. at 80 , 355 A.2d 438 (emphasis supplied). The majority had no problem with that.

In Winters v. State, 301 Md. 214 , 482 A.2d 886 (1984), the broad and generic criminal purpose alleged was that the defendant and others “did unlawfully conspire together to violate the Maryland Income Tax Laws.” Id. at 233 n. 2, 482 A.2d 886 . The defendant contended that “the count was defective” because “although the language ... stated the conspiracy, it did not properly allege the object of the conspiracy.” Id. at 234 , 482 A.2d 886 . The Court of Appeals held that nothing more specific was required. Appellant contends that since the income tax laws can be violated in a variety of ways, the indictment should set out ⁴⁴⁴ the particular means by which he and Osborn conspired together to violate those laws.

We disagree. It is well settled in Maryland that so long as the object of the conspiracy is set forth in the indictment there is no necessity to also set forth the means by which the conspiracy was intended to be accomplished. See Pearlman v. State, 232 Md. 251 , 192 A.2d 767 (1963) (conspiracy to cheat and defraud customers by wrongful and indirect means and false pretenses, etc. sufficient), Piracci v. State, 207 Md. 499 , 115 A.2d 262 (955) (conspiracy to defraud City of Baltimore — means to accomplish object of conspiracy need not be set out); Scarlett v. State, 201 Md. 310 , 93 A.2d 753 (1953) (conspiracy to violate lottery laws sufficient to charge a crime); Quaglione v. State, 15 Md.App. 571 , 292 A.2d 785 (1972) (conspiracy to violate the narcotic laws of the state held sufficient). All of these cases demonstrate a consistent holding on the issue dating back to State v. Buchanan, 5 H. & J. 317 (1821), where our predecessors first held that in a prosecution for conspiracy, it is sufficient to state in the indictment the conspiracy and the object of it; the means by which it was intended to be accomplished need not be set forth.

We see no need to depart from this well settled law. Id. (emphasis supplied). All of this caselaw clearly treats the more specific crimes that might be perpetrated by the conspirators simply as “the means by which the conspiracy was intended to be accomplished.” That reading of the term “means” was fully confirmed by the Court of Appeals in Campbell v. State, 325 Md. 488, 500 , 601 A.2d 667 (1992): In context and especially in view of the arguments made by Winters, “means” was used by both Winters and the Court to refer to the “acts”, i.e., crimes, proscribed by the applicable sections of Article 81.

None of those cases, however, was called upon to deal with the sentencing provision. A Question At Least Obliquely Raised; An Answer Deferred The issue of how to apply § 1-202’s sentencing cap was at least obliquely raised in 1991. First this Court and then the ⁴⁴⁵ Court of Appeals, however, resorted to “tunnel vision” in narrowly answering the literal question before the court as to the validity of a non-specific indictment and in deftly sidestepping the problem alluded to of how to determine the sentencing range for a non-specific verdict. In Campbell v. State, 86 Md.App. 158 , 586 A.2d 32 (1991), which first came to this Court, the defendant was convicted of “conspiracy to violate the controlled dangerous substance laws.” Id. at 159 , 586 A.2d 32 .

The defendant contended that he could not properly be sentenced pursuant to such an omnibus charge. Appellant first contends that the indictment charging him, in pertinent part, with conspiracy to “violate the controlled dangerous substances law of the State of Maryland,” failed to state a cognizable offense. He argues that, because it failed to specify the crime which was the object of the conspiracy, the conspiracy charge failed to give him notice of the precise nature of the charge against him, and that the charge was not specific enough to allow him to determine the maximum penalty he would face if convicted. Id. at 160 , 586 A.2d 32 (emphasis supplied).

This Court treated the literal issue before it as an attack on the charging document. In terms of its failure to give the defendant notice of the maximum sentence he might be facing, we found it unnecessary to address the question. The appellant did not object to the charging document in the court below. As to his complaint that the indictment failed to give him notice [of the maximum penalty he faced], he has waived our review of it.

Md. Rule 4-252(a). Id. at 161 , 586 A.2d 32 (emphasis supplied). In then turning to the unwaivable jurisdictional challenge to the facial validity of the indictment itself, our opinion looked to both Quaglione v. State and the opinion of the Court of Appeals in McMorris v. State, as it then concluded: Thus, we conclude that our holding in Quaglione remains the law and is determinative of this question. Therefore, we hold that neither the controlled dangerous substances, i.e., cocaine, heroin, etc., nor the activity, i.e., possession, ⁴⁴⁶ selling, distributing, etc., need be specified when the short form conspiracy indictment is utilized.

Id. at 165-66, 586 A.2d 32 (emphasis supplied). The trial judge was left forlornly to figure out the possible maximum sentence for himself. Our decision in Campbell was affirmed in that regard by the Court of Appeals in its Campbell v. State. The Court of Appeals posed the issue before it as one challenging the adequacy of a generalized conspiracy charge to support not only the conviction but also the punishment.

The issue for us to determine is whether that count of the indictment charging “conspiracy to violate the controlled dangerous substances law of the State of Maryland,” sufficiently characterized the crime lodged against the petitioner; does it contain sufficient “essential elements” of the crime of conspiracy to invest the circuit court with jurisdiction to try the petitioner and, if convicted, punish him? 325 Md. at 495 , 601 A.2d 667 (emphasis supplied). In terms of the notice that must be given to a defendant, the opinion expressly pointed out that although a defendant must be informed of the fact that he is charged with conspiracy, he need not be informed of the precise crime that is the object of the conspiracy. [Bjecause it is not essential to the proof of conspiracy that its object be attained, the crime need not be alleged with such specificity as to render an indictment for it sufficient. This is consistent with the fact that the offense of which the accused is required to be informed is the conspiracy, rather than the crime which is its object. Id. at 496-97 , 601 A.2d 667 (emphasis supplied).

The crime that is the object of the conspiracy need not be spelled out with great specificity. To hold as the petitioner would have us do would be to require that, in a conspiracy indictment, when the commission of a crime is the object of the indictment, that crime ⁴⁴⁷ must be charged with the same specificity as if it were the substantive charge. That clearly is not the law. Id. at 501 , 601 A.2d 667 (emphasis supplied).

The Court of Appeals concluded that a conspiracy “to violate the controlled dangerous substance law of the State of Maryland” was adequately particularized, notwithstanding the breadth of the subject matter that was covered. The charge, conspiracy “to violate the controlled dangerous substances law of the State of Maryland,” sufficiently characterizes the crime of conspiracy so as to invest the circuit court with jurisdiction. Sections 276-304 of Article 27 are codified under the subheading, “Health-Controlled Dangerous Substances.... ” That the subheading applies to numerous substances, having legitimate and illegitimate uses, and prohibits numerous acts when done in connection with those substances, cannot be doubted, but all those substances and prohibited acts (including the definitions critical to the proper understanding and interpretation of the subheading) are grouped together in one place for easy reference. Moreover, they share, as we have seen, a, common element: their abuse is inimical to the health and welfare of the citizenry.

Thus, though numerous, the substances, and the proscribed acts pertaining to them, comprise, not an unlimited range of possibilities, but only a finite one. Id. at 501-02 , 601 A.2d 667 (emphasis supplied). With specific reference to a conspiracy defendant’s entitlement to know what precise crime was being alleged as the object of the conspiracy in order “to determine the maximum penalty he faced,” id. at 503 , 601 A.2d 667 , the opinion observed that a defendant could “challenge those omissions by motion filed pursuant to Maryland Rule 4-252(a)” id., and that by failing to have filed such motion, “the defects were waived.” Id. To be sure, count 2 of the indictment did not inform the petitioner of the substance involved, how the conspirators intended to use it, or what they planned to do with it. ⁴⁴⁸ Without that information, he did not have sufficient information to determine, as he alleges, the precise nature of the crime which was the object of the conspiracy and, therefore, to determine the maximum penalty he faced.

The indictment might well have been, on that account, defective, enabling the petitioner to challenge those omissions by motion filed pursuant to Maryland Rule 4-252(a). As we have seen, no timely motion was made in that regard and accordingly, the defects were waived. Id. at 503 , 601 A.2d 667 (emphasis supplied). The question of how to apply the sentencing cap remained unanswered.

The Dilemma Remains From the point of view of § 1-202’s sentencing cap, the best of all worlds is that wherein there is the prosecution of a single crime with a perfectly symmetrical and clearly identifiable antecedent conspiracy. That pristine world does not always abide, however, and the problems for the sentencing cap generally appear in either of two classic configurations. The one we have discussed is the Hurwitz-Quaglione-McMorris-Winters configuration of conspiracy to commit generic crime. In that configuration, the charge of conspiracy is almost always no mere attendant count but is the flagship count of the indictment itself.

In such a setting there is frequently, to the utter dismay of the sentencing cap, no such thing as “THE crime” the conspirators conspired to commit. The other troubling configuration is that wherein the conspiracy charge is simply an attendant count at the end of, or in the course of, a multi-count indictment. In that setting there is, reassuringly, such a thing as “the crime” conspired at. The problem is that sometimes, as is the present case, there is difficulty, or at least disagreement, in identifying it.

Both configurations warrant some comment. Conspiracy and Criminal Syndicates Conspiracies to violate “the lottery laws of the State,” “the narcotics laws of the State,” “the income tax laws of the State,” etc., by their very nature cover a “wide range of potentially included crimes. They are examples of ongoing ⁴⁴⁹ criminal enterprises with sometimes avaricious commercial appetites. The substantive crimes conspired at are varied and they are many.

Criminal statutes frequently attack such targets as a gambling syndicate, Adams v. State, 202 Md. 455 , 97 A.2d 281 (1953); the narcotics traffic, Haina v. State, 30 Md.App. 295 , 352 A.2d 874 (1976); the pornography industry; or a prostitution ring, Seidman v. State, 230 Md. 305 , 187 A.2d 109 (1962); on a broad front with a matrix of greater and lesser crimes with greater and lesser penalties. Some of those conspiracies go on for months, or even years. Some of them employ dozens, if not hundreds, of operatives. Over the life of a conspiracy, individual conspirators move in and out.

Individual conspirators play a variety of greater and lesser roles. A conspiracy to sell narcotics, for instance, contemplates not a single sale but countless sales, the more the better. What then is the maximum sentence for a conviction for conspiracy to sell narcotics? Is it the same penalty as that available for a single consummated sale of narcotics?

Or is it that times fifty? Are plural objects of a conspiracy necessarily reduced to the singular? Tracy v. State, 319 Md. 452, 459-60 , 573 A.2d 38 (1990), and Mason v. State, 302 Md. 434, 444-47 , 488 A.2d 955 (1985), clearly establish that there is in this situation but one conspiracy. The problem with § 1-202, however, is that it calculates the sentencing cap not on the basis of the conspiracy but on the basis of the crime conspired at, which theoretically might be in the plural even if the conspiracy itself be in the singular.

There is a difference between many conspiracies to commit many crimes and a single conspiracy to commit many crimes. Reducing the number of conspiracies does not reduce the number of crimes conspired at. The question is not how many conspiracies the defendant may be punished for (which is one), but what is the maximum penalty for that single conspiracy. That might arguably depend on the number of crimes he intended to commit.

Section 1-202, on the other hand, uses “the crime” in the singular. Although each conspirator may somehow have been involved in “the conspiracy,” it is sometimes vexingly problematic as to ⁴⁵⁰ what precisely was “the crime that the person conspired to commit.” Does the conspiracy itself have a specific crime as its purpose? Is that necessarily the purpose of each and every conspirator? For large and ongoing conspiracies, and even for some smaller ad hoc conspiracies, the very nature of “the crime” conspired at may be nothing more than a legal fiction.

It may be that for many conspiracy convictions, therefore, the sentencing provision of § 1-202 is unworkable. In such a ease, if the limiting provision, to wit, § 1-202, is inapplicable or unworkable, it would seem that sentencing must inevitably revert to the discretionary common law sentencing, as indicated by Judge Orth in Jones v. State, 8 Md.App. 370, 376, 259 A.2d 807 (1969). Sentencing and Multi-Count Indictments The second situation in which the application of § 1-202 to a conspiracy conviction is problematic is that where a blanket conspiracy charge, as in the present case, is added to the end of a multi-count indictment. Although framed as a conspiracy to commit the “flagship” offense, the conspiracy logically embraces all of the lesser purposes represented by the entire descending ladder of lesser charges.

In that sense the greater inclusive conspiracy might be said to embrace a number of lesser included conspiracies, although that is far from the best way of conceptualizing a conspiracy. In such a multi-count context, what necessarily is “the crime” conspired at for purposes of § 1-202? Although presumptively the aspiration of the original conspiracy will have been to “go for broke” no matter how far short of the goal the ultimate consummation may fall, 3 there may, at least theoretically, be cases, such as that which the appellant argues for here, in which the conspiratorial aspiration may have been more modest from the beginning. Even in the smaller world of three young men, as in this case, getting together to steal a car, sentencing problems ⁴⁵¹ remain for a convicted conspirator.

In today’s sophisticated juridical world of multi-count indictments, even so simple a thing as stealing a car may reduce itself to no less than six counts ranging from armed carjacking to petty theft, with maximum sentences ranging from 30 years to 18 months. The prosecution, in the charging process, safeguards itself with half a dozen fall-back positions, anticipating the unreliable caprice of proof. The conspiracy count is not so finely calibrated because it is not so dependent upon what ultimately happens. Ideally, the attendant conspiracy count, when appropriate, should be an omnibus charge, covering the entire spectrum of consummated substantive crimes.

In such a multi-count indictment setting, an omnibus conspiracy charge is infinitely to be preferred over a grab bag of chaotic little conspiracy charges, one shadowing each lesser included substantive count. That sort of thing represents inexcusable pandemonium. In the setting of a multi-count indictment, however, pleading excesses do occasionally occur. Prosecutors are not immune to the tendency of multiplying charges.

Ezenwa v. State, 82 Md.App. 489, 501 , 572 A.2d 1101 (1990), makes it clear, however, that in these situations there is a robust omnibus conspiracy with remarkable elasticity capable of handling the situation and no need for a brood of little conspiracies running about. Judge Robert Bell, wilting for this Court, diagnosed this problem of the promiscuous multiplication of conspiracy charges as a case of multiplicitous pleading, but he further pointed out that it is a non-fatal pleading malady that does not call for the dismissal of an indictment. The issue in this case is multiplicity rather than duplicity. If two counts charging conspiracy are the same, the defect in the indictment is that it contains multiplicitous counts.

Brown [v. State, 311 Md. 426 , 535 A.2d 485 (1988) ], supra. Such a defect is a pleading defect and, consequently, not fatal to the indictment. 82 Md.App. at 501 , 572 A.2d 1101 (emphasis supplied). The saving grace is that no matter how many mini-conspiracies a defendant is convicted of, he will only be sentenced for a ⁴⁵² single maxi-conspiracy. In making the point that multiplicitous pleading is not ipso facto fatal and that all that is required is that all manifestations of a single conspiracy be brought together at sentencing time, Ezenwa quoted with approval from United States v. Maryland State Licensed Beverage Association, 240 F.2d 420, 421 (4th Cir.1957): If the evidence showed that there was only one conspiracy, the judge would impose only one punishment; but this is no reason for requiring dismissal of one of the counts in the early stages of the case; and parties should not be allowed thus to try their case in advance and by piecemeal. 82 Md.App. at 501 , 572 A.2d 1101 (emphasis supplied).

That the existence of multiple objects of a conspiracy does not thereby fragment the conspiracy is settled law. The Court of Appeals made the point very emphatically in Mason v. State, 302 Md. 434, 445 , 488 A.2d 955 (1985): Ordinarily, a single agreement to engage in criminal activity does not become several conspiracies because it has as its purpose the commission of several offenses. Therefore, under Maryland common law, irrespective of the number of criminal goals envisioned by a single criminal agreement, the conspirator is usually subject to but one conspiracy prosecution. (Emphasis supplied).

Mason, 302 Md. at 446 , 488 A.2d 955 , quoted with approval from the opinion of the Supreme Court in Braverman v. United States, 317 U.S. 49, 53 , 63 S.Ct. 99 , 87 L.Ed. 23 (1942). Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. (Emphasis supplied).

See also Henry v. State, 324 Md. 204, 240 , 596 A.2d 1024 (1991); Jordan v. State, 323 Md. 151, 159-62 , 591 A.2d 875 (1991); Tracy v. State, 319 Md. 452, 459-60 , ⁴⁵³ 578 A.2d 38 (1990); Mason v. State, 302 Md. 434, 444-47 , 488 A.2d 955 (1985). Identifying “The Crime” Conspired At Although the case law establishes that there is but a single conspiracy for sentencing purposes no matter how multifarious its objectives, it does not tell us how to identify, in a multi-count