Shannon v. State

Teddy Shannon v. State of Maryland No. 46, September Term 2019 Criminal Procedure – Charging Document – Firearms Offense – Effect of Drafting Error. A count of the indictment alleged a violation of Maryland Code, Public Safety Article (“PS”), §5-133(c), which prohibits a person from possessing a regulated firearm after having been convicted of certain enumerated crimes – a list that is tabulated in three subparts. In describing a predicate conviction, that count of the indictment provided specific identifying information concerning the defendant’s prior conviction for possession with intent to distribute a controlled substance, one of the enumerated offenses under PS §5-133(c)(1)(ii), but also included the phrase “crime of violence,” a collective phrase that includes 19 other enumerated offenses under PS §5-133(c)(1)(i) but not possession with intent to distribute a controlled substance. At trial, the defendant stipulated that he had been previously convicted of an offense that prohibited him from possessing a regulated firearm and, accordingly, that element of the offense was not at issue before the jury.

The drafting error in that count of the indictment did not mean that the count failed to allege a cognizable offense or to show jurisdiction in the circuit court. Neither Article 21 of the Maryland Declaration of Rights nor Maryland Rule 4-202(a) concerning the content of charging documents in criminal cases required reversal of the defendant’s conviction. Nor was it necessary to amend the indictment with the consent of the defendant pursuant to Maryland Rule 4-204. To the extent that the defendant otherwise objected to the drafting error in the indictment, that objection was waived because the defendant failed to raise it in the trial court.

IN THE COURT OF APPEALS Circuit Court for Baltimore City OF MARYLAND Case No. 117013002 Argument: February 7, 2020 No. 46 September Term, 2019 ______________________________________ TEDDY SHANNON V. STATE OF MARYLAND _____________________________________ McDonald Watts Hotten Getty Booth Biran Greene, Jr., Clayton (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: April 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-20 09:25-04:00 Suzanne C. Johnson, Clerk A charging document in a criminal case establishes the field of play. Among other things, it must provide adequate notice of the offense charged. That requirement functions both prospectively – allowing a defendant to understand what must be defended, to challenge the legal sufficiency of the charges, and to prepare for trial – and retrospectively – to allow a court to impose an appropriate sentence upon conviction and to protect the defendant from a second prosecution for the same offense.

A charging document that fails to give adequate notice can be akin to moving the goal posts after the game has begun. This case is about whether a drafting error in an indictment resulted in inadequate notice of the alleged offense that deprived the trial court of jurisdiction. Petitioner Teddy Shannon was charged in the Circuit Court for Baltimore City with, among other offenses, unlawful possession of a regulated firearm by a person who had previously been convicted of a predicate offense. While the pertinent count of the indictment accurately stated detailed information about a prior conviction that prohibited Mr. Shannon from possessing a firearm – namely, the specific offense (possession with intent to distribute a controlled substance), the case number, and the date of that conviction – it also inaccurately referred to that conviction as a “crime of violence.” That error went unnoticed in the Circuit Court, perhaps because Mr. Shannon stipulated before the jury that he was prohibited by a prior conviction from possessing a regulated firearm and disputed only whether he had possessed the firearm specified in the indictment.

The jury found Mr. Shannon guilty of the firearms offense. On appeal, Mr. Shannon has sought to overturn his conviction on the firearms count, arguing that the additional language in that count meant that the count failed to charge him with a crime and that the trial court lacked jurisdiction to adjudicate that count. The Court of Special Appeals declined to vacate his firearms conviction on that basis – and so do we, although with somewhat different reasoning. I Background A. Content and Amendment of a Charging Document Standards for Charging Documents Under Article 21 of the Maryland Declaration of Rights, a defendant in a criminal case is entitled to be informed in the charging document of the offenses that the defendant allegedly committed.1 This requirement serves several purposes: (1) to notify the defendant as to what is to be defended; (2) to enable the defendant to prepare for trial; (3) to allow the court to consider the legal sufficiency of the charging document; (4) upon a conviction, to allow the court to impose an appropriate sentence; and (5) to protect the defendant against multiple prosecutions for the same offense and thereby vindicate the proscription against double jeopardy.

Ayre v. State, 291 Md. 155, 163 (1981). To carry out these purposes, a charging document must (1) adequately characterize the crime Article 21 states “[t]hat in all criminal prosecutions, every man hath a right to be 1 informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence ….” 2 charged and (2) describe the specific conduct on which that charge is based. Id. at 163-64 ; see also Counts v. State, 444 Md. 52, 57-58 (2015). To further the constitutional guarantee, the Maryland Rules set standards for the content and amendment of a charging document.

In particular, Maryland Rule 4-202(a) requires, among other things, that a charging document “contain a concise and definite statement of the essential facts of the offense with which the defendant is charged and, with reasonable particularity, the time and place the offense occurred.” See, e.g., Edmund v. State, 398 Md. 562, 575-76 (2007) (charging document that complied with Rule 4-202(a) satisfied purpose of Article 21); State v. Mulkey, 316 Md. 475, 480-82 (1989) (analyzing “reasonable particularity” standard of Rule 4-202(a) in relation to Article 21). The Rules allow for amendment of a charging document as follows: On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. If amendment of a charging document reasonably so requires, the court shall grant the defendant an extension of time or continuance. Maryland Rule 4-204 (emphasis added).

As is evident, an amendment that is a matter of form can be accomplished by the State with the permission of the trial court. In contrast, if an amendment affects a matter of substance and would “change the character of the offense charged” – for example, a substantive change to an element of the crime charged in an indictment – the amendment may be made only with the defendant’s consent. See Johnson v. State, 358 Md. 384, 387-92 (2000) (tracing history of Rule 4-204); see also Thompson v. State, 412 Md. 497, 516-17 (2010) (holding that amendment that corrected 3 precise date and location of the charged offense did not change character of the offense); Counts, 444 Md. at 65-66 (listing examples of cases in which an amendment changed the character of the offense charged). This rule allows only for “changes, alterations, or modifications to an existing charge”; if the State intends to charge a defendant with additional offenses, it must file a new or additional charging document.

Johnson v. State, 427 Md. 356, 375 (2012) (emphasis in original; citation and quotation marks omitted). Challenges to Sufficiency of Charging Document As a general rule, if a defendant wishes to raise a defect in the charging document, the defendant must file a motion based on that defect “within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court”; otherwise, the defect is waived. Maryland Rule 4-252(a)(2), (b). There is an exception to this requirement if, as a result of the defect, the charging document fails “to show jurisdiction in the court or … to charge an offense”; in that case, the defect may be raised “at any time.” Maryland Rule 4-252(a)(2), (d).

To a certain extent, these two exceptions amount to the same thing, for if a charging document fails to charge a cognizable crime, a court “lacks fundamental subject matter jurisdiction to render a judgment of conviction….” Williams v. State, 302 Md. 787, 792 (1985); see also Townes v. State, 314 Md. 71, 74 (1988). B. The Offense of Possession of a Firearm by a Prohibited Person Title 5 of the Public Safety Article defines a category of “regulated firearms” – essentially handguns and certain assault weapons – and regulates the possession, sale, and transfer of such firearms. Maryland Code, Public Safety Article (“PS”), §5-101 et seq. 4 The statute prohibits the possession of a regulated firearm by various categories of individuals. PS §5-133(b).2 It is a criminal offense for an individual who has previously been convicted of certain crimes to violate that prohibition.

PS §5-133(c). As a shorthand, we will refer to an individual subject to that prohibition as a “prohibited person.” The statute groups predicate convictions into three categories. Those categories are as follows: (1) Conviction of a “crime of violence,” defined to include 19 offenses under State law.3 PS §5-133(c)(1)(i). 2 The history of these provisions, as well as certain other firearms laws, is recounted in some detail in Oglesby v. State, 441 Md. 673, 689-94 (2015). 3 Section 5-101 defines “crime of violence” as: (1) abduction; (2) arson in the first degree; (3) assault in the first or second degree; (4) burglary in the first, second, or third degree; (5) carjacking and armed carjacking; (6) escape in the first degree; (7) kidnapping; (8) voluntary manslaughter; (9) maiming as previously proscribed under former Article 27, §386 of the Code; (10) mayhem as previously proscribed under former Article 27, §384 of the Code; (11) murder in the first or second degree; (12) rape in the first or second degree; (13) robbery; (14) robbery with a dangerous weapon; (15) sexual offense in the first, second, or third degree; (16) home invasion under §6-202(b) of the Criminal Law Article; (17) a felony offense under Title 3, Subtitle 11 of the Criminal Law Article; 5 (2) Conviction of certain drug offenses. PS §5-133(c)(1)(ii).

Nine offenses are listed in the statute.4 Pertinent to this case, possession with intent to distribute a controlled substance, in violation of Maryland Code, Criminal Law Article (“CR”), §5-602, is among those offenses. (3) Conviction of an out-of-state or federal offense equivalent to an offense in the first two categories. PS §5-133(c)(1)(iii). The gravamen of the offense defined in PS §5-133(c)(1) is the possession of a regulated firearm.

The unit of prosecution is the firearm. Thus, a prohibited person may be charged with a separate count of that offense for each regulated firearm that the person possesses, even if the person has only one predicate conviction. See Snyder v. State, 210 Md. App. 370, 395-98 (2013), cert. denied, 432 Md. 470 (2013). On the other hand, if the prohibited person possesses only one regulated firearm, he or she has committed only one violation of the statute, regardless of whether the prohibited person was previously convicted of one predicate offense or a dozen predicate offenses.

See Melton v. State, 379 Md. 471, 484-502 (2004). (18) an attempt to commit any of the crimes listed in items (1) through (17) of this subsection; or (19) assault with intent to commit any of the crimes listed in items (1) through (17) of this subsection or a crime punishable by imprisonment for more than 1 year. 4 At the time of the offense alleged in the indictment in this case, PS §5-133(c)(1)(ii) listed seven offenses. A 2018 amendment of the statute added two others. Chapter 143, Laws of Maryland 2018.

That amendment does not affect the issues before us or our analysis of those issues. 6 A person who possesses a regulated firearm following a conviction of any of the offenses listed in PS §5-133(c)(1) is guilty of a felony and may be sentenced to up to 15 years’ imprisonment and may be subject to a mandatory minimum sentence of five years’ imprisonment. PS §5-133(c)(2)-(3). C. The Prosecution of Mr. Shannon At a trial in the Circuit Court for Baltimore City, Mr. Shannon was convicted of two offenses – threatening arson and a firearms offense – related to an altercation near his residence on December 10, 2016. The issue in this appeal concerns an undisputed error in the drafting of the firearms count and does not depend on the sufficiency of the evidence or the particular facts of the case.

The underlying facts, as established at trial, are summarized in the opinion of the Court of Special Appeals and there is no need to repeat that discussion here. See Shannon v. State, 241 Md. App. 233, 238-40 (2019). The Statement of Charges A Statement of Charges, including a statement of probable cause in support of the charges, was filed in the District Court on December 11, 2016 in connection with Mr. Shannon’s arrest as a result of the altercation. Among other things, the Statement of Charges alleged that Mr. Shannon possessed a regulated firearm in violation of PS §5- 133(c) and referred to two prior convictions: a conviction for second degree assault, which is a “crime of violence” for purposes of PS §5-133(c) and a conviction for violation of CR §5-602 (possession with intent to distribute).

Either of those convictions would have supported the firearms charge under PS §5-133(c). 7 The Firearms Count of the Indictment On January 13, 2017, Mr. Shannon was charged in a six-count indictment with various offenses related to the altercation. Two counts of the indictment charged Mr. Shannon with illegal possession of a regulated firearm by a prohibited person; each count referred to a different firearm. The count of which he was ultimately convicted read, in pertinent part, as follows: FIFTH COUNT . . . DEFENDANT, Teddy SHANNON . . . on or about December 10, 2016, in the 1700 block of East 30th Street, in the City of Baltimore, State of Maryland, having been convicted of a crime of violence, as defined in Public Safety Article, Section 5-101(c), to wit: 05/09/2008, Possession with Intent to Distribute, Case No.: 107312013, did possess a regulated firearm, to wit: Ruger P90DC, .45 Caliber Handgun, in violation of Public Safety Article, Section 5-133(c) of the Annotated Code of Maryland; against the peace, government and dignity of the State.

Indictment at 2