Scott v. State

Watts, J. Both the Fifth Amendment to the Constitution of the United States and the common law of Maryland provide for a prohibition on double jeopardy. A plea of autrefois acquit is a common-law plea in which a defendant alleges to have been previously acquitted of an offense, and, as a result, that he or she may not be tried again. See Scriber v. State, 437 Md. 399, 403 , 86 A.3d 1260, 1262 (2014). 1 Under a valid plea of autrefois acquit, the State cannot reprosecute a defendant after an acquittal. The doctrine of collateral estoppel is a common-law doctrine that, in a criminal case, prohibits “the relitigation of an issue of ultimate fact that has been decided in a defendant’s favor.” Scriber, 437 Md. at 403 , 86 A.3d at 1262 .

Under the doctrine of collateral estoppel, the State cannot relitigate an issue of fact that has been decided in a defendant’s favor. This case requires us to determine whether a plea of autrefois acquit or the doctrine of collateral estoppel bars a trial court from imposing at resentencing an enhanced sentence based on a prior conviction for a crime of violence after the trial court has previously imposed an enhanced sentence based on the same prior conviction, and an appellate court vacated the enhanced sentence due to insufficient evidence of the prior conviction. In the Circuit Court for Prince George’s County (“the circuit court”), a jury found Theodore Scott (“Scott”), Petitioner, guilty of, among other crimes, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit robbery with a dangerous weapon. The State contended that Scott was subject to Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol.) (“CR”) § 14—101(d), which provided for an enhanced sentence for a defendant who was convicted of a third crime of violence ¹⁵³ after having been convicted of two crimes of violence. 2 At sentencing, the prosecutor offered certified copies of two prior convictions pertaining to Scott, a first-degree assault in Maryland and an aggravated assault in the District of Columbia, as well as the statement of charges for the aggravated assault. The circuit court found that Scott had two prior convictions for crimes of violence, and imposed an enhanced sentence of twenty-five years of imprisonment, without the possibility of parole, for attempted robbery with a dangerous weapon. The circuit court imposed a sentence of ten years of imprisonment, with all but five years suspended, followed by five years of supervised probation, for use of a handgun in the commission of a crime of violence, consecutive to the sentence for attempted robbery with a dangerous weapon, and a sentence of ten years of imprisonment, -with all but five years suspended, for conspiracy to commit robbery with a dangerous weapon, consecutive to the other two sentences. ¹⁵⁴ The Court of Special Appeals vacated the twenty-five-year sentence for attempted robbery with a dangerous weapon and remanded for resentencing, concluding that the evidence was insufficient to support the circuit court’s determination that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under CR § 14-101(a).

The Court of Special Appeals did not vacate the sentences for use of a handgun in the commission of a crime of violence and conspiracy to commit robbery with a dangerous weapon, which the circuit court had imposed consecutively. On remand, the State sought to have the circuit court reimpose the enhanced sentence for attempted robbery with a dangerous weapon. Scott opposed the State’s attempt to seek an enhanced sentence, contending that the imposition of such a sentence would violate the prohibition on double jeopardy. At the resentencing proceeding, the circuit court admitted into evidence a transcript of Scott’s guilty plea for aggravated assault in the District of Columbia, and again found that Scott had two prior convictions for crimes of violence.

The circuit court again sentenced Scott to twenty-five years of imprisonment for attempted robbery with a dangerous weapon. Scott’s counsel requested that the circuit court make the new sentence for attempted robbery with a dangerous weapon concurrent with the two existing sentences. The circuit court responded that it lacked the discretion to do so. As such, the circuit court reimposed the enhanced sentence for attempted robbery with a dangerous weapon, with the sentences for use of a handgun in the commission of a crime of violence and conspiracy to commit robbery with a dangerous weapon remaining ordered to be served consecutively.

Before us, Scott contends that the circuit court violated the principles of autrefois acquit and collateral estoppel by read-judicating the issue of whether he had the requisite prior convictions for an enhanced sentence. Additionally, Scott argues that the circuit court erred in concluding that it lacked the discretion to impose the new sentence for attempted ¹⁵⁵ robbery with a dangerous weapon to be concurrent with the two existing sentences. An examination of the Supreme Court’s and this Court’s case law leads to the conclusion that, where an appellate court determines that the evidence was insufficient to establish a requisite prior conviction as a basis for an enhanced sentence and vacates the enhanced sentence, the appellate court’s determination does not preclude a trial court from determining at resentencing that the same prior conviction satisfies the requirement for an enhanced sentence. We hold that: (I) where an appellate court vacates an enhanced sentence due to insufficient evidence of a requisite prior conviction, neither the plea of autrefois acquit nor the doctrine of collateral estoppel bars a trial court from imposing an enhanced sentence at resentencing based on the same prior conviction; and (II) where an appellate court vacates a sentence to which another sentence has been ordered to be consecutive and remands for resentencing without vacating the consecutive sentence, the trial court may not make the new sentence concurrent with the non-vacated consecutive sentence.

BACKGROUND Charges and Trial The State charged Scott with attempted robbery with a dangerous weapon, attempted robbery, first- and second-degree assault, use of a handgun in the commission of a crime of violence, wearing or carrying a handgun, and conspiracy to commit robbery with a dangerous weapon. At trial, as a witness for the State, Detective Stephen Johnson of the Prince George’s County Police Department testified that, on December 23, 2011, at approximately 8 p.m., he and another detective began surveilling the 7-Eleven at 2310 Varnum Street in Mount Rainier from an unmarked police vehicle in an adjacent parking lot. Shortly after 2 a.m. on December 24, 2011, two men walked to the side of the 7- ¹⁵⁶ Eleven, spoke to each other, and pulled ski masks over their heads. The taller of the two men pulled out a silver handgun, and the shorter man pulled out a black handgun.

The men ran to the front of the 7-Eleven and pulled on the front door handles, but the front door was locked. The men pointed the handguns at the employees inside the 7-Eleven, but the employees did not unlock the front door. The shorter man ran toward the back of the 7-Eleven, and the taller man ran through the parking lot, turned onto Russell Avenue, and got into the front passenger seat of a vehicle whose engine was running. The detectives and other law enforcement officers chased the vehicle until it ultimately crashed in the District of Columbia.

Detective Johnson provided a description of the shorter man to another detective. Later, Detective Johnson learned that a patrol unit had stopped someone who matched the shorter man’s description at 2208 Queens Chapel Road, which is on the street that is directly behind the 7-Eleven. At trial, Detective Johnson identified Scott as the shorter man who had attempted to enter the 7-Eleven with a black handgun. A jury found Scott guilty of all charges. 3 Original Sentencing Proceeding After trial, but before the sentencing proceeding, the State filed a Notice of Enhanced Penalty (Crime of Violence), contending that Scott was subject to a mandatory minimum sentence of twenty-five years of imprisonment, without the possibility of parole, under CR § 14-101(d).

According to the State, Scott had been convicted of two prior crimes of violence: first-degree assault in Maryland, and aggravated assault in the District of Columbia. 4 The District of Columbia conviction resulted from a guilty plea. ¹⁵⁷ Scott filed a motion to strike the notice of enhanced penalties, contending that the conviction for aggravated assault in the District of Columbia did not constitute a conviction for a crime of violence under CR § 14-101(a). Specifically, Scott argued that the elements of aggravated assault under District of Columbia law were not the same as the elements of first-degree assault under Maryland law. Scott pointed out that, although first-degree assault is identified as a crime of violence under CR § 14-101(a)(19), CR § 14-101(a) does not include aggravated assault in its list of crimes of violence. Additionally, Scott maintained that CR § 14-101(a) does not provide that a conviction in another jurisdiction is to be considered a qualifying conviction if it is based on conduct that would have been a crime of violence if the defendant had committed it in Maryland.

Scott did not dispute that he had been convicted of a separate first-degree assault offense in Maryland. At the sentencing proceeding, after the State offered certified copies of Scott’s prior convictions, the circuit court continued the sentencing proceeding to engage in additional research. When the sentencing proceeding resumed, the prosecutor argued that, contrary to Scott’s position, a conviction in another jurisdiction is a qualifying prior conviction under CR § 14—101(d) if the conviction is based on conduct that would have been a crime of violence if the defendant had committed it in Maryland. To establish that the conviction for aggravated assault in the District of Columbia was based on conduct that would have been first-degree assault if Scott had committed the offense in Maryland, the prosecutor advised that the statement of charges from the District of Columbia indicated that Scott had stomped on a person’s head until the person lost consciousness.

The prosecutor ar ¹⁵⁸ gued that, by stomping a person into unconsciousness, Scott had caused serious physical injury, and engaged in conduct that would have been first-degree assault if it had occurred in Maryland. The circuit court determined that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under OR § 14-101(d). The circuit court sentenced Scott to: twenty-five years of imprisonment, without the possibility of parole, for attempted robbery with a dangerous weapon; ten years of imprisonment, with all but five years suspended, followed by five years of supervised probation, for use of a handgun in the commission of a crime of violence, consecutive to the sentence for attempted robbery with a dangerous weapon; and ten years of imprisonment, with all but five years suspended, for conspiracy to commit robbery with a dangerous weapon, consecutive to the other two sentences. The circuit court merged the remaining convictions for sentencing purposes.

First Opinion of the Court of Special Appeals Scott noted an appeal. In an unreported opinion, the Court of Special Appeals affirmed the convictions, but vacated the sentence for attempted robbery with a dangerous weapon and remanded for resentencing. The Court of Special Appeals held that the State had failed to prove that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under CR § 14-101(d). The Court of Special Appeals concluded that the statement of charges for the aggravated assault did not constitute proof of the conduct that was the basis for the conviction because the facts given in support of the guilty plea may have been different from the facts in the statement of charges.

The Court of Special Appeals determined that a remand for resen-tencing was warranted, relying on Maryland Rule 8-604(d)(2), which states: “In a criminal case, if the appellate court reverses the judgment for error in the sentence or sentencing proceeding, the Court shall remand the case for resentencing.” The Court of Special Appeals’s mandate stated, in pertinent ¹⁵⁹ part: “SENTENCE ON COUNT 1 [(ATTEMPTED ROBBERY WITH A DANGEROUS WEAPON)] VACATED AND THE CASE IS REMANDED FOR RESENTENCING. ALL JUDGMENTS OTHERWISE AFFIRMED.” Resentencing Proceeding On remand, in a letter to Scott’s counsel that was filed with the circuit court, the prosecutor advised that the State again intended to request an enhanced sentence, and attached the transcript of Scott’s guilty plea proceeding in the District of Columbia. 5 Scott filed a Response to Notice of Enhanced Penalties, contending that the conviction for aggravated assault in the District of Columbia did not constitute a conviction for a crime of violence under CR § 14-101(d) because the statement of facts at Scott’s guilty plea proceeding did not establish that Scott intentionally caused injury to the victim. Scott also argued that the Double Jeopardy Clause and the prohibition on double jeopardy under the common law of Maryland barred the State from seeking an enhanced sentence on remand. At the resentencing proceeding, the circuit court admitted into evidence the transcript of Scott’s guilty plea proceeding in the District of Columbia, and determined that the conviction for'aggravated assault was the equivalent of a conviction for first-degree assault under CR § 14-101(a), i.e., a crime of violence.

As to whether the enhanced sentence for attempted robbery with a dangerous weapon would be imposed consecutive to or ¹⁶⁰ concurrent with the two existing sentences, the following exchange occurred: [PROSECUTOR]: Your Honor, just before you hear from [Scott], Counts 5 [ (use of a handgun in the commission of a crime of violence) ] and 7 [ (conspiracy to commit robbery with a dangerous weapon) ] can’t—those aren’t here for re-sentencing, so those cannot be changed. I think that the only thing that you can sentence on is the [twenty-five] mandatory without parole[, which was for Count 1 (attempted robbery with a dangerous weapon) ]. The reason I brought the Count 5 up was because that was, in fact, consecutive. We’re not here to change that sentence.

I just wanted to make sure that was on the record because those two counts—those two sentences that the Court issued remain the same, so the only thing that we’re here for is the Count 1. [SCOTT’S COUNSEL]: The Court is here sentencing—the Court can make Count 1 consecutive [to] or concurrent [with] the already existing sentences. [PROSECUTOR]: But those sentences, Count 5 actually says— THE COURT: The problem is, is that I didn’t make Count 1 consecutive to the other sentences. I made the gun charge [Count 5] consecutive. And so if I did have the discretion to make this concurrent, that would change, in effect, the sentence on the other counts, which are not before the Court. [SCOTT’S COUNSEL]: At the moment they’re consecutive to a sentence that doesn’t exist. So the Court does have the power to make Count 1, which you’re sentencing on, concurrent [with] all other sentences which already exist in this case, and that’s what we ask the Court to do.

THE COURT: All right. Well, I disagree with you, [Scott’s counsel], but I’ll hear from [ ] Scott as to how he feels or what he wants to say at this point. ¹⁶¹ [SCOTT’S COUNSEL]: Given the Court’s rulings, the fact that the Court is ruling it has essentially no discretion in the sentence it’s going to impose, [ ] Scott has nothing to add. Following this exchange, the circuit court reimposed the original enhanced sentence for attempted robbery with a dangerous weapon—twenty-five years of imprisonment without the possibility of parole. The circuit court noted that the other “sentence[s] remain[ed] the same.” Second Opinion of the Court of Special Appeals Scott noted an appeal.

The Court of Special Appeals affirmed the circuit court’s judgment, holding that, when a mandatory enhanced sentence for a third crime of violence is vacated on appeal because the evidence was legally insufficient to support a finding that one of the prior convictions was for a crime of violence, double jeopardy [does not] bar[ ] the State from introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. Scott v. State, 230 Md.App. 411, 450, 416 , 148 A.3d 72, 95, 75 (2016). The Court acknowledged that its “holding [wa]s at odds with” Bowman v. State, 314 Md. 725, 740 , 552 A.2d 1303, 1310 (1989), in which this Court held that the State could not seek an enhanced sentence on remand where an enhanced sentence was vacated due to insufficient evidence of qualifying prior convictions. Scott, 230 Md.App. at 416 , 148 A.3d at 75 .

The Court of Special Appeals concluded that “Bowman was based solely on an analysis of federal constitutional double jeopardy law that the [ ] Supreme Court has since rejected” in Monge v. California, 524 U.S. 721, 734 , 118 S.Ct. 2246 , 141 L.Ed.2d 615 (1998), in which the Court held “that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” Scott, 230 Md.App. at 416, 430 , 148 A.3d at 75, 83 . The Court of Special Appeals explained that, in Monge, the Supreme Court extended the holding of Almendarez-Torres v. United States, 523 U.S. 224, 226-27 , 118 S.Ct. 1219 , 140 ¹⁶² L.Ed.2d 350 (1998), to resentencing proceedings. See Scott, 230 Md.App. at 426 , 148 A.3d at 81 . The Court of Special Appeals noted that, in Almendarez-Torres, 523 U.S. at 226-27 , 118 S.Ct. 1219 , the Supreme Court held that the Constitution did not require the government to charge a defendant with being subject to an enhanced sentence due to a qualifying prior conviction because the use of a prior conviction for sentence enhancement purposes is not the same as establishing an element of an offense.

See Scott, 230 Md.App. at 425 , 148 A.3d at 80-81 . The Court of Special Appeals concluded that, in light of Monge, “a failure of proof on sentencing is [ ] not an acquittal (or the functional equivalent of an acquittal) of the sentence that was imposed or any greater sentence under the principle of autrefois acquit.” Scott, 230 Md.App. at 435-36 , 148 A.3d at 86-87 . Before the Court of Special Appeals, Scott contended that, in the case of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the Supreme Court indicated that it would someday overrule Almendarez-Torres and Monge. See Scott, 230 Md.App. at 428 n.4, 148 A.3d at 82 n.4.

In Apprendi, 530 U.S. at 490, 489 , 120 S.Ct. 2348 , the Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[,]” and stated that “it is arguable that Almendarez-Torres was incorrectly decided[.]” (Footnote omitted). In response to Scott’s contention concerning Apprendi, the Court of Special Appeals stated: “Quite apart from the fact that we must take Supreme Court law as it is, not as it might become, we note that the Apprendi Court acknowledged the continued validity of Monge and Almendarez-Torres as applied to subsequent offender sentencing statutes.” Scott, 230 Md.App. at 428 n.4, 148 A.3d at 82 n.4 (citing Apprendi, 630 U.S. at 488 n.14, 120 S.Ct. 2348 ). Concerning the doctrine of collateral estoppel, the Court of Special Appeals concluded that the doctrine “applies when there has been a factual finding favorable to the defendant that is central to his [or her] criminal liability for an offense[,]” ¹⁶³ and that “[t]he doctrine has never been extended to apply to sentencing.” Scott, 230 Md.App. at 439 , 148 A.3d at 89 . The Court of Special Appeals explained that, even if the doctrine of collateral estoppel applied to sentencing, the circuit court had not made a final adjudication, as a matter of fact, that the aggravated assault in the District of Columbia was not a crime of violence.

See id. at 439 , 148 A.3d at 89 . The Court of Special Appeals held that Scott had failed to preserve for appellate review his contention that the circuit court erred in not making the two existing sentences concurrent with the new sentence for attempted robbery with a dangerous weapon. See id. at 444-46 , 148 A.3d at 92-93 . Specifically, the Court of Special Appeals observed that, in the circuit court, Scott had asked that the new sentence for attempted robbery with a dangerous weapon be imposed concurrent with the two existing sentences, as opposed to having requested that the two existing sentences be made concurrent with the new sentence.

See id. at 444-46 , 148 A.3d at 92-93 . The Court of Special Appeals concluded that the propriety of the two existing sentences having been imposed consecutively was not before the circuit court on remand because those sentences had not been vacated. See id. at 450 , 148 A.3d at 95 . 6 Petition for a Writ of Certiorari Scott petitioned for a writ of certiorari, which this Court granted, see Scott v. State, 451 Md. 579 , 155 A.3d 434 (2017), raising the following four issues: 1. Where the State fails to prove the existence of a prior conviction for purposes of imposing a mandatory sentence pursuant to [CR] § 14-101, is the State barred from at ¹⁶⁴ tempting to prove the prior conviction on remand for resen-tencing under the Double Jeopardy Clause of the Fifth Amendment and/or the Maryland common law prohibition against double jeopardy? 2.

If the answer to Question 1 is yes, did the Court of Special Appeals err in holding that the State was not barred from attempting to prove the existence of a prior conviction of [Scott] on remand for resentencing? 3. Where [Scott] was originally sentenced to a mandatory term of twenty-five years without parole on Count 1 [ (attempted robbery with a dangerous weapon) ], to ten years with all but five years suspended on Count 5 [ (use of a handgun in the commission of a crime of violence) ], consecutive to Count 1, and to ten years with all but five years suspended on Count 7 [ (conspiracy to commit robbery with a dangerous weapon) ], consecutive to Count 5, and the Court of Special Appeals vacated Count 1 and remanded for resentencing, did the [circuit] court err at resentencing in concluding that it did not have discretion to make the sentence on Count 1 run concurrent with the sentences on Count 5 and Count 7 (without changing the consecutive nature of Counts 5 and 7 to each other)? 4. Did the Court of Special Appeals err in holding that the issue in Question 3 was not preserved? DISCUSSION I. Double Jeopardy The Parties’ Contentions Scott contends that the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States and the prohibition on double jeopardy under the common law of Maryland barred the State on remand from attempting to prove that his conviction for aggravated assault in the District of Columbia constituted a crime of violence under CR § 14-101(a).

Scott argues that the plea of autrefois acquit applies to the determination of whether the State has established a ¹⁶⁵ qualifying prior conviction for purposes of an enhanced sentence. Scott asserts that Bowman, 314 Md. at 740 , 552 A.2d at 1310—in which this Court held that the prohibition on double jeopardy barred the State from seeking an enhanced sentence on remand after an enhanced sentence was vacated on appeal due to insufficient evidence of qualifying prior convictions— remains good law. Scott maintains that this Court’s holding in Bowman was based on both the Double Jeopardy Clause and the prohibition on double jeopardy under the common law of Maryland, which this Court may interpret to grant more protection than that given under federal law. Scott asserts that Monge, 524 U.S. at 734 , 118 S.Ct. 2246—in which the Supreme Court held that, at resentencing in a noncapital case, the Double Jeopardy Clause does not bar a readjudication, for purposes of an enhanced sentence, of the existence of a prior conviction—is no longer good law in light of Apprendi, 530 U.S. at 490 , 120 S.Ct. 2348 .

Specifically, Scott maintains that, as a result of the Supreme Court’s holding in Apprendi, “the holding in Monge hangs only by the thread of an exception.” Scott argues that the constitutional prohibition on double jeopardy applies to the determination of a requisite prior conviction for an enhanced sentence because the existence of the prior conviction is essential to justifying the punishment in question. Scott points out that, if the circuit court had found that the State failed to meet the burden of establishing a necessary prior conviction, the State would have been unable to note an appeal of that determination in an attempt to secure a new sentencing proceeding. Scott asserts that the holding of the Court of Special Appeals in this case essentially gives the State unlimited attempts to secure an enhanced sentence. Scott maintains that the doctrine of collateral estoppel bars the State from proving his prior conviction on remand because establishing the existence of a qualifying prior conviction involves a factual determination.

According to Scott, the Court of Special Appeals made such a determination in his favor by concluding in the first appeal that the evidence was insuffi- ¹⁶⁶ eient to support the circuit court’s finding that he had two prior convictions for crimes of violence. The State responds that the constitutional prohibition on double jeopardy does not extend to resentencing proceedings involving a sentencing enhancement under CR § 14-101(d). The State contends that the Supreme Court’s holding in Monge, 524 U.S. at 734 , 118 S.Ct. 2246—i.e., that, at resen-tencing in a noncapital case, the Double Jeopardy Clause does not bar a trial court from readjudicating whether a defendant has a prior conviction—unequivocally precludes application of the prohibition against double jeopardy to resentencing, and is dispositive here. The State points out that the prohibition against double jeopardy applies where there has been an acquittal based on insufficient evidence, but does not apply where a reversal is based on an erroneous legal decision by a trial court.

The State argues that this Court’s holding in Bowman has been effectively superseded by the Supreme Court’s holdings in Monge and Almendarez-Torres. The State asserts that, more recently, in Twigg v. State, 447 Md. 1 , 133 A.3d 1125 (2016), this Court essentially followed Monge by holding that, where a sentence for a lesser-included crime was vacated, resentencing for a greater-inclusive crime would not violate the Double Jeopardy Clause. The State maintains that, even if Bowman remains good law, it is not applicable here because, in Bowman, this Court concluded there was no evidence, either admissible or not, that was sufficient to support the enhanced sentence—whereas, in this case, the Court of Special Appeals held only that the statement of charges did not provide the factual basis that was used for Scott’s guilty plea to aggravated assault in the District of Columbia. The State contends that the plea of autrefois acquit applies to a determination as to whether a defendant has previously been acquitted of a crime.

The State argues that the plea of autrefois acquit does not apply to the reimposition of an enhanced sentence on remand because this is a legal determination that is made by a judge. The State asserts that the doctrine of collateral estoppel does not apply in this case ¹⁶⁷ because the circuit eourt did not find, as a matter of fact, that the conviction for aggravated assault in the District of Columbia was not a conviction for a crime of violence. Standard of Review An appellate court reviews without deference a trial court’s conclusion as to whether the prohibition on double jeopardy applies. See Giddins v. State, 393 Md. 1,15 , 899 A.2d 139, 147 (2006).

The Prohibition on Double Jeopardy The Double Jeopardy Clause states: “No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. Although the Constitution of Maryland does not contain a counterpart to the Double Jeopardy Clause, the common law of Maryland provides for a prohibition on double jeopardy. See Scriber, 437 Md. at 408 , 86 A.3d at 1265 . Under the prohibition on double jeopardy, a court cannot subject a defendant to multiple trials and sentences for the same offense.

See id. at 408 , 86 A.3d at 1265 . The Plea of Autrefois Acquit Generally, the Double Jeopardy Clause does not bar a second prosecution for the same offense after an appellate court reverses a conviction. See Winder v. State, 362 Md. 275, 324 , 765 A.2d 97, 124 (2001). An exception to this general rule applies where the ground for the reversal of a conviction is insufficiency of the evidence.

See id. at 325 , 765 A.2d at 124 . The Supreme Court created this exception in Burks v. United States, 437 U.S. 1, 18 , 98 S.Ct. 2141 , 57 L.Ed,2d 1 (1978), in which the Court held that “the Double Jeopardy Clause precludes a second trial once [a] reviewing court has found the evidence legally insufficient[.]” In Burks, id at 3-4, 98 S.Ct. 2141 , a Court of Appeals reversed a conviction on the ground that the evidence was insufficient, and remanded to a District Court with instructions to determine whether to issue a directed verdict of acquittal or order a new trial. The ¹⁶⁸ Supreme Court concluded that the decision of the Court of Appeals functioned as an acquittal because the decision “represented a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 10 , 98 S.Ct. 2141 (brackets, citation, and internal quotation marks omitted). The Supreme Court concluded that the Court of Appeals erred in remanding because, if the District Court had determined that the evidence was insufficient, the District Court would have entered a judgment of acquittal, and the defendant could not have been retried; and “it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient[.]” Id. at 10-11 , 98 S.Ct. 2141 (citation and emphasis omitted).

The Supreme Court explained that its decision furthered the Double Jeopardy Clause’s purpose, which is to deny “the [government] another opportunity to supply evidence [that] it failed to muster in the first proceeding”—ie., “to make repeated attempts to convict an individual for an alleged offense[.]” Id. at 11 , 98 S.Ct. 2141 (citation and internal quotation marks omitted). The Court noted that its holding did not undermine the general rule that the Double Jeopardy Clause does not bar a second prosecution for the same offense after a reviewing court reverses a conviction; “reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.” Id. at 15 , 98 S.Ct. 2141 . In United States v. DiFrancesco, 449 U.S. 117, 189, 118-21 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980), the Supreme Court held that the Double Jeopardy Clause was not violated by a statute that authorized an enhanced sentence for “dangerous special offenders” and authorized the United States to appeal from an imposition of a sentence under certain circumstances in cases in which the United States had sought the enhanced sentence. In DiFrancesco, id. at 122 , 101 S.Ct. 426 , a District Court sentenced a defendant to concurrent terms of imprisonment as a dangerous special offender.

The defendant appealed from the convictions, and the United States appealed from the sentences. See id at 123, 101 S.Ct. 426 . A Court of Appeals ¹⁶⁹ affirmed the convictions, but dismissed the United States’s appeal on double jeopardy grounds. See id.

The Supreme Court reversed and remanded. See id. at 143 , 101 S.Ct. 426 . The Court began its analysis by explaining: “Where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” Id. at 132 , 101 S.Ct. 426 (brackets, citation, and internal quotation marks omitted). The Court explained that the United States’s ability to appeal from a sentence did not necessarily violate the Double Jeopardy Clause “just because its success might deprive [a defendant] of the benefit of a more lenient sentence.” Id.

The Court concluded that a sentence lacks “constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal[,]” and observed that the plea of autrefois acquit was a “protection ] against retrial” rather than resentencing. Id. at 132, 133 , 101 S.Ct. 426 . The Court explained that the Double Jeopardy Clause’s purpose—to avoid “repeated attempts to convict”—has “no significant application” to the United States’s ability to appeal from a sentence, as such an appeal “does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence.” Id. at 136 , 101 S.Ct. 426 . The Court rejected the idea that an imposition of a “sentence is an ‘implied acquittal’ of any greater sentence.” Id. at 133 , 101 S.Ct. 426 (citation omitted).

The Court also explained that “[t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of [the defendant’s] punishment will turn out to be.” Id. at 137 , 101 S.Ct. 426 . In Bullington v. Missouri, 461 U.S. 430 , 444-45, 432, 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981), the Supreme Court held that the Double Jeopardy Clause bars a second capital sentencing proceeding at which the government must prove certain elements before the death penalty may be imposed. In Bullington, id. at 435-36, 101 S.Ct. 1852 , the State of Missouri sought the death penalty, but a jury sentenced the defendant to life imprisonment without the possibility of parole. The defendant moved for a new trial, which the trial court granted ¹⁷⁰ on the ground that the Supreme Court had struck down Missouri’s laws allowing women to be automatically excused from jury duty.

See id. at 436, 101 S.Ct. 1852 . The State of Missouri filed a notice of intent to seek the death penalty again, and the defendant moved to strike the notice on the ground that the Double Jeopardy Clause barred the State from seeking the death penalty again because the jury had not sentenced the defendant to death. See id. at 436, 101 S.Ct, 1852 . The trial court agreed with the defendant and ruled that the State could not seek the death penalty again; the Supreme Court of Missouri ruled that the State could seek the death penalty again; and the Supreme Court of the United States reversed and remanded.

See id. at 436-37, 446—47, 101 S.Ct. 1852 . The Court began its analysis by acknowledging: The imposition of a particular sentence usually is not regarded as an “acquittal” of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having [the defendant’s] original conviction set aside. Id. at 438, 101 S.Ct. 1852 (citations omitted).

The Court distinguished Bullington, the case at hand, from previous cases in which it had held that the Double Jeopardy Clause did not apply to sentencing on the ground that, in Bullington, the sentencing proceeding constituted “a trial on the issue of punishment” because, rather than having “unbounded discretion to select an appropriate punishment from a wide range authorized by statute[,]” the jury had two alternatives (death or life imprisonment without the possibility of parole); additionally, the jury could not impose the death penalty unless the State met its burden of proving certain facts beyond a reasonable doubt. Id. at 438, 101 S.Ct. 1852 . The Court explained that Bullington was subject to Burks’s “insufficient evidence” exception to the general rule that the government may prosecute a defendant a second time after an appellate ¹⁷¹ court reverses a conviction. See Bullington, 451 U.S. at 444-45 , 101 S.Ct. 1852 .

In Lockhart v. Nelson, 488 U.S. 33, 34 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988), the Supreme Court held that the Double Jeopardy Clause did not bar a retrial where an appellate court reversed a conviction on the ground that the trial court erred in admitting certain evidence, and determined that the remaining evidence was insufficient. In Nelson, id. at 34-35 , 109 S.Ct. 285 , the State of Arkansas sought to have a defendant sentenced under a habitual criminal statute, which provided for an enhanced sentence upon a fifth or subsequent conviction for a felony, At a sentencing proceeding, the prosecutor offered certified copies of the defendant’s four prior felony convictions; unbeknownst to the prosecutor and the defendant’s counsel, the Governor had pardoned the defendant as to one of the convictions. See id. at 36 , 109 S.Ct. 285 . A jury found that the State had established four qualifying prior convictions, and imposed an enhanced sentence.

See id. The defendant petitioned for a writ of habeas corpus, contending that the enhanced sentence was invalid because of the pardon. See id. at 37 , 109 S.Ct. 285 . A District Court agreed, and vacated the enhanced sentence.

See id. The State of Arkansas sought to have the defendant resentenced under the habitual criminal statute, relying on a prior conviction that had not been raised at the original sentencing proceeding. See id. The defendant argued that the Double Jeopardy Clause barred such a resentencing.

See id. The District Court agreed; a Court of Appeals affirmed; and the Supreme Court reversed. See id. at 37, 33 , 109 S.Ct. 285 . The Court explained that Burks dictated the result because Burks was careful to point out that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary “trial errors” as the “incorrect receipt or rejection of evidence.” 437 U.S.[] at 14-16 [ 98 S.Ct. 2141 ].

While the former is in effect a finding “that the government has failed to prove its case” against the defendant, the latter “implies nothing with respect to the guilt or ¹⁷² innocence of the defendant,” but is simply “a determination that [the defendant] has been convicted through a judicial process which is defective in some fundamental respect.” Id. at 15 [ 98 S.Ct. 2141 .] Nelson, 488 U.S. at 40 , 109 S.Ct. 285 (emphasis omitted). The Court concluded that the trial court’s error in admitting evidence of the conviction that was the subject of a pardon constituted trial error, as opposed to an issue of insufficient evidence. See id. The Court pointed out that, although the trial court’s admission of evidence of the conviction was error, the evidence—comprised of proof of four prior convictions—was sufficient to support the enhanced sentence.

See id. The Court concluded that the Double Jeopardy Clause was not aimed at circumstances like the ones in Nelson because, if the defendant had proven at the original sentencing proceeding that one of the four prior convictions was the subject of a pardon, the trial court presumably would have given the State of Arkansas the opportunity to offer evidence of another prior conviction. See id. at 42 , 109 S.Ct. 285 . In Bowman, 314 Md. at 740 , 552 A.2d at 1310 , this Court distinguished the Supreme Court’s holding in Nelson and held that the State could not seek an enhanced sentence on remand where this Court vacated an enhanced sentence due to insufficient evidence of qualifying prior convictions.

In Bowman, 314 Md. at 728 , 552 A.2d at 1304 , at a sentencing proceeding, a prosecutor alleged, and the trial court found, that the defendant had two prior convictions for robbery with a deadly weapon. The trial court imposed an enhanced sentence under CR § 14-101(d)’s predecessor, Md. Code Ann., Art. 27 (1957, 1987 Repl. Vol.) § 643B(c), and the Court of Special Appeals affirmed. See Bowman, 314 Md. at 728-29 , 552 A.2d at 1304 .

The defendant filed a motion for reconsideration, pointing out that he had only one prior conviction for robbery with a deadly weapon; on a separate date, the defendant had been convicted of robbery and assault with a deadly weapon. See id. at 729 , 552 A.2d at 1304 . The Court of Special Appeals issued a new opinion in which it affirmed again, reasoning that the prior convictions for robbery and assault with a deadly weapon were ¹⁷³ based on conduct that constituted robbery with a deadly weapon. See id. at 729, 731-32 , 552 A.2d at 1304, 1305-06 .

This Court reversed the judgment of the Court of Special Appeals insofar as it affirmed the enhanced sentence, and remanded for resentencing. See id. at 741 , 552 A.2d at 1310 . This Court determined that the evidence was insufficient to support a determination that the defendant had two prior convictions for crimes of violence because the record established only that the defendant had been convicted of one crime of violence (robbery with a deadly weapon). See id. at 733 , 552 A.2d at 1306 .

This Court observed that the only evidence of prior convictions for crimes of violence were the records of the defendant’s convictions for robbery with a deadly weapon, robbery, and assault with a deadly weapon. See id. at 733 , 552 A.2d at 1306 . This Court concluded that the Court of Special Appeals erred in inferring that the defendant had committed a second robbery with a deadly weapon based on the circumstance that the defendant had been convicted of robbery and assault with a deadly weapon. See id. at 733 , 552 A.2d at 1306-07 .

This Court ordered that, on remand, the State would be prohibited from again seeking an enhanced sentence—whether on the theory that the convictions for robbery and assault with a deadly weapon had been based on conduct that constituted robbery with a deadly weapon, or on the basis of another prior conviction that had not been raised at the original sentencing proceeding. See id. at 740 , 552 A.2d at 1310 . This Court distinguished Nelson, 488 U.S. 33 , 109 S.Ct. 285 , on the ground that, in Nelson, the trial court erroneously admitted evidence that was sufficient to prove that the defendant was subject to an enhanced sentence; by contrast, in Bowman, the trial court “simply completely misinterpreted the evidence!!,]” and there was never evidence, whether erroneously admitted or not, that was sufficient to prove that the defendant was subject to an enhanced sentence. Bowman, 314 Md. at 740 , 552 A.2d at 1310 .

This Court concluded that “it [wa]s evident from Nelson that the Burks’ exception to the general rule is applicable”; in other words, this Court applied Burks’s “insufficient ¹⁷⁴ evidence” exception to the general rule that the government may prosecute a defendant a second time after an appellate court reverses a conviction. Bowman, 314 Md. at 740 , 552 A.2d at 1310 . In Almendarez-Torres, 523 U.S. at 226, 235 , 118 S.Ct. 1219 , the Supreme Court held that the enhanced penalty provision of a statute making it a crime for a deported person to return to the United States authorized an enhanced sentence, and, as such, did not create a separate crime that the government was required to independently charge. The Court concluded that neither the statute nor the Constitution required the government to specifically charge a person with being subject to the enhanced penalty provision.

See id. at 226-27 , 118 S.Ct. 1219 . In Almendarez-Torres, id. at 227 , 118 S.Ct. 1219 , a defendant pled guilty to returning to the United States after having been deported due to three convictions for aggravated felonies. At the sentencing proceeding, the defendant contended that the trial court could not sentence him to more than two years of imprisonment because the indictment had not mentioned the convictions for aggravated felonies, which, the defendant argued, constituted elements of a crime. See id.

The District Court disagreed and sentenced the defendant to more than two years of imprisonment; a Court of Appeals affirmed; and the Supreme Court did the same. See id. at 227, 248 , 118 S.Ct, 1219 . As a matter of statutory interpretation, the Court concluded that Congress intended for the subsection in question to be a sentencing provision, not a definition of a separate crime; the Court noted that “prior commission of a serious crime[ ]is as typical a sentencing factor as one might imagine.” See id. at 235, 230 , 118 S.Ct. 1219 . Next, the Court rejected the defendant’s contention that the doctrine of constitutional doubt required the Court to interpret the subsection as a definition of a separate crime.

See id at 237-38, 118 S.Ct. 1219 . The Court explained that, under the doctrine of constitutional doubt, if fairly possible, a court interprets a statute in a way that avoids not only the conclusion that the statute is unconstitutional, but also doubts about the statute’s constitutionality. ¹⁷⁵ See id. at 237 , 118 S.Ct. 1219 . The Court concluded that the doctrine of constitutional doubt did not apply in Almendarez-Torres because the canons of statutory interpretation weighed heavily in favor of concluding that the subsection was a penalty provision, not a definition of a separate crime; alternatively, even if the defendant’s interpretation of the subsection were fairly possible, “the constitutional questions [that] he raises, while requiring discussion, simply do not lead us to doubt gravely that Congress may authorize courts to impose longer sentences upon recidivists who commit a particular crime.” Id. at 238 , 118 S.Ct. 1219 (emphasis omitted). The Court stated that, if it adopted “a rule that any significant increase in a statutory maximum sentence would trigger a constitutional ‘elements’ requirement^]” the Court would “find it difficult to reconcile any such rule with [the Court’s] precedent holding that the sentencing-related circumstances of recidivism are not part of the definition of the offense for double jeopardy purposes.” Id. at 247 , 118 S.Ct. 1219 (citation omitted).

In Monge, 524 U.S. at 734 , 118 S.Ct. 2246 , the Supreme Court held that “the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” In Monge, id. at 724-25 , 118 S.Ct, 2246 , a defendant was convicted of drug-related crimes, and the State of California sought an enhanced sentence pursuant to a recidivist statute under which a defendant who had been convicted of a “serious felony” for a second time was subject to double the term of imprisonment to which the defendant would have been subject otherwise. Under California law, an assault was a “serious felony” if the defendant either inflicted great bodily injury or personally used a dangerous or deadly weapon. See id. In Monge, id. at 725 , 118 S.Ct. 2246 , at the sentencing proceeding, the only evidence of the defendant’s criminal history was a record that the defendant had been convicted of assault with a deadly weapon.

The trial court found credible the prosecutor’s allegation that the defendant had personally used a dangerous or deadly weapon—namely, a stick—and imposed an enhanced sentence under the recidivist ¹⁷⁶ statute. See id. On appeal, the State of California conceded that the evidence was insufficient to prove that the defendant had personally inflicted great bodily injury or used a deadly weapon—ie., that the defendant had been convicted of a serious felony—but requested the opportunity to prove the same on remand. See id The California Court of Appeal agreed that the evidence was insufficient, and concluded that the Double Jeopardy Clause barred the remand that the State of California had requested.

See id. at 725-26 , 118 S.Ct. 2246 . The Supreme Court of California reversed, and the Supreme Court of the United States affirmed. See id. at 726, 734 , 118 S.Ct. 2246 . The Court observed that Bullington, 451 U.S. at 432, 444-45 , 101 S.Ct. 1852 , in which the Court applied the Double Jeopardy Clause to a capital sentencing proceeding, “established a narrow exception to the general rule that double jeopardy principles have no application in the sentencing context.” Monge, 524 U.S. at 730 , 118 S.Ct. 2246 (citation and internal quotation marks omitted).

In Monge, id. at 731-32 , 118 S.Ct. 2246 , the Court declined to extend Bullington to noncapital sentencing proceedings because “the death penalty is unique in both its severity and its finality,” and there is “acute need for reliability in capital sentencing proceedings.” (Citation and internal quotation marks omitted). The Court “conclude[d] that Bullington 's rationale is confined to the unique circumstances of capital sentencing and that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” Monge, 524 U.S. at 734 , 118 S.Ct. 2246 . In a dissenting opinion, Justice Scalia agreed with the Court that the Double Jeopardy Clause does not apply to noncapital sentencing proceedings, but opined that, in Monge, the prior conviction constituted an element of a crime, not simply a sentencing factor. See id. at 737 , 118 S.Ct. 2246 (Scalia, J., dissenting).

Justice Scalia acknowledged that his position was inconsistent with Almendarez-Torres—which, he opined, was erroneous, consistent with his dissent in that case. See Monge, 524 U.S. at 741 , 118 S.Ct. 2246 (Scalia, J., dissenting); Almen ¹⁷⁷ darez-Torres, 523 U.S. at 249 , 118 S.Ct. 1219 (Scalia, J., dissenting). In Monge, 524 U.S. at 728-29 , 118 S.Ct. 2246 , the Court further explained that, in Almendarez-Torres, the Court “rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed.” The Court stated: Sentencing decisions favorable to the defendant, moreover, cannot generally be analogized to an acquittal. We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial.

See Burks [ ], 437 U.S. [at] 16 [ 98 S.Ct. 2141 ]. Where a similar failure of proof occurs in a sentencing proceeding, however, the analogy is inapt. The pronouncement of sentence simply does not “have the qualities of constitutional finality that attend an acquittal.” [ ] DiFrancesco, 449 U.S. [at] 134 [ 101 S.Ct. 426 ]; see also Bullington, [451 U.S.] at 438 [ 101 S.Ct. 1852 ] (“The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed”). Monge, 524 U.S. at 729 , 118 S.Ct. 2246 .

Subsequently, in Apprendi, 530 U.S. at 469, 490 , 120 S.Ct. 2348 , the Supreme Court held that, under the Due Process Clause of the Fourteenth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Apprendi, id. at 469-70 , 120 S.Ct. 2348 , a defendant and the State of New Jersey entered into a plea agreement under which the defendant would plead guilty to two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an