Simms v. State

Eldridge, J., delivered the opinion of the Court. In Maryland, assault is a common law crime for which the Legislature has not prescribed a penalty. Consequently, the only limitation upon the number of years of imprisonment to which one may be sentenced for assault is, ordinarily, the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and Articles 16 and 25 of the Maryland Declaration of Rights. Gleaton v. State, 235 Md. 271, 277-278 , 201 A.2d 353 (1964); Duff v. State, 229 Md. 126, 127 , 182 A.2d 349 , cert. denied, 371 U.S. 898 , 83 S. Ct. 199 , 9 L. Ed. 2d 130 (1962); Burley v. State, 226 Md. 94, 96-97 , 172 A.2d 394 (1961).

On the- other hand, the Legislature has prescribed ⁷¹⁵ maximum penalties for different specified types of aggravated assaults. Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 12.

Under that section, the maximum penalty for assault with intent to rob is ten years’ imprisonment. In the two criminal cases before us the defendants were, inter alia, charged with assault with intent to rob and assault (hereinafter sometimes referred to as "simple assault”). The defendants were tried on both charges, with jeopardy attaching. Furthermore, in each proceeding, under the prosecution’s evidence and theory of the case, the two charges were based upon the same acts.

In each case, the assault with intent to rob charge was disposed of in the defendant’s favor, and the defendant was convicted of simple assault. Each defendant was sentenced to twelve years’ imprisonment. The issue before us concerns the propriety, under these particular circumstances, of a sentence exceeding ten years. I. Simms v. State The petitioner James Simms was tried before a jury in the Criminal Court of Baltimore on a three count criminal information.

Count one charged assault with intent to rob, count two charged simple assault, and count three charged attempted larceny. At the trial the victim, Floyd Munden, testified that at about 8:00 p.m. on February 9,1978, he was walking home and passed the defendant Simms who "mumbled” that Munden "owed him.” Munden testified that he began to walk faster and that Simms began chasing him. According to Munden, as he reached the front of a firehouse Simms threw a wine bottle at him which missed and shattered a window of the firehouse, resulting in Munden being cut by some of the flying glass. Munden stated that Simms then knocked him to the ground, went through his pockets and removed his wallet.

The victim further stated that when a bystander shouted "police,” Simms dropped the wallet and fled. Simms, testifying in his own behalf, gave an ⁷¹⁶ entirely different version of the incident, saying that Munden had attacked him. At the close of the evidence, the State’s theory of the case, presented to the jury in the prosecuting attorney’s final argument, was that Simms’s actions in throwing a bottle at Munden, attacking Munden and going through his pockets, constituted the "assault” under count one of the information, and that Simms’s intention "clearly was to rob.” The prosecuting attorney indicated to the jury that the first count was the only reason for the criminal proceeding and that "we’re really not interested in the second and third counts ....” After final arguments to the jury, and out of the jury’s presence, the prosecuting attorney represented to the court that "the case was either assault with intent to rob or nothing.” Because of this, the court urged the State to proceed on the first count only. Nevertheless, the State wanted all counts to go to the jury, although the prosecuting attorney specifically requested an instruction that if the jury reached a guilty verdict on the first count, it should not consider the second and third counts.

The trial court then instructed the jury as follows: "If you find that the defendant is guilty under the first count, you need not consider the second or third count.... If you find that the defendant is not guilty under the first count, then you should consider the second count of the assault. If you find that the defendant is not guilty under the first count, but guilty under the second count, you need not consider the third count.” Counsel for each side indicated satisfaction with this instruction. Thereafter, the jury returned a verdict of "not guilty” on count one and "guilty” on count two. 1 ⁷¹⁷ Following receipt of a presentence report, the court imposed a sentence of twelve years’ imprisonment for the conviction on count two, simple assault.

Simms appealed to the Court of Special Appeals, challenging his conviction on several grounds. In addition, Simms contended that because the maximum punishment for assault with intent to rob is ten years, a sentence of twelve years for the lesser included offense of simple assault was improper. The Court of Special Appeals, in an unreported opinion, upheld the conviction and the sentence. Thomas v. State Two separate criminal informations were filed against petitioner Richard A. Thomas in the Criminal Court of Baltimore.

Although based on the same transaction, each information related to a different victim, and each contained the same four counts. Count one charged attempted robbery with a dangerous or deadly weapon in violation of Art. 27, §§ 488 and 489; count two charged assault with intent to rob in violation of Art. 27, § 12; count three charged simple assault; and count four charged Thomas with use of a handgun in the commission of a crime of violence. The two informations were tried together. The State’s evidence at the trial disclosed the following facts.

Earl Knight and his girlfriend, Theresa Hartloff, were walking along a street in Baltimore City when they noticed Thomas and a companion following them. After a block or so, three or four other persons, not including Thomas, accosted Hartloff and Knight and attempted to take Hartloff s purse. A scuffle ensued whereupon Thomas, coming from behind the couple, drew a gun on Knight and threatened to shoot him. A police officer, on routine patrol, saw Knight being threatened, immediately pulled his cruiser to the curb and arrested Thomas.

It is clear from the opening and closing arguments of the prosecuting attorney that the single action of Thomas in threatening Knight with a gun, while alleged ⁷¹⁸ confederates were attempting to take Hartloff s purse, was the factual basis for every count in both informations. At the close of all of the evidence, the State abandoned all but count three, charging simple assault, in the information relating to Knight. The abandonment of the first two counts was, apparently, due to the lack of evidence indicating an attempt or intent to rob Knight. In the information relating to Hartloff, the State abandoned only count two.

Because jeopardy had attached, the State’s action operated as an acquittal on each of the abandoned counts. Bynum v. State, 277 Md. 703, 705 , 357 A.2d 339 , cert. denied, 429 U.S. 899 , 97 S. Ct. 264 , 50 L. Ed. 2d 183 (1976). The jury rendered a "not guilty” verdict in the criminal information relating to Hartloff. With regard to the other information, the jury found Thomas guilty under the only count submitted to it, namely simple assault upon Knight.

After receiving a presentence report, the court sentenced Thomas to twelve years’ imprisonment. As in Simms, the Court of Special Appeals, in an unreported opinion, rejected Thomas’s argument that the maximum permissible sentence was ten years’ imprisonment, and the intermediate appellate court affirmed the conviction and sentence. Proceedings In This Court The Office of the Public Defender, representing Simms and Thomas, filed one petition for a writ of certiorari encompassing both cases, and presenting a single question concerning the propriety of the twelve year sentences for simple assault under the circumstances. Because this sentencing issue apparently occurs with some frequency in criminal cases in Maryland, we granted the petition.

II

Since all of the elements of simple assault are present in the offense of assault with intent to rob, both offenses, if based upon the same acts of the defendant, are deemed the same for merger and double jeopardy purposes. Where the two offenses are charged, and both charges are based on the same acts, simple assault is a lesser included offense of ⁷¹⁹ assault with intent to rob. See Sweetwine v. State, 288 Md. 199 , 201 n. 1, 421 A.2d 60 (1980); Bynum v. State, supra, 277 Md. at 707 . In these circumstances, if a defendant were found guilty of both, he could not receive a separate sentence for each offense.

Instead, a sentence could be imposed only for the greater offense of assault with intent to rob. Johnson v. State, 283 Md. 196, 203-204 , 388 A.2d 926 (1978). See also State v. Frye, 283 Md. 709, 723-724 , 393 A.2d 1372 (1978); Marks v. State, 230 Md. 108, 112 , 185 A.2d 909 (1962), cert. denied, 373 U.S. 918 , 83 S. Ct. 1308 , 10 L. Ed. 2d 417 (1963). The exact question before us in the present case is whether, when a defendant is charged with a greater offense and a lesser included offense which carries a higher maximum penalty, and when he is acquitted of the greater and convicted of the lesser, can he properly receive a more severe sentence than could have been imposed had he been convicted of the greater charge.

This precise issue has not previously been decided by this Court, although related issues have been presented or discussed in our cases. A somewhat broader issue was raised, although not specifically decided, in a series of cases involving the same defendant and the same convictions: Roberts v. Warden, 206 Md. 246 , 111 A.2d 597 (1955); Roberts v. Warden, 214 Md. 611 , 135 A.2d 446 (1957), cert. denied, 355 U.S. 966 , 78 S. Ct. 556 , 2 L. Ed. 2d 540 (1958); Roberts v. Warden, 221 Md. 576 , 155 A.2d 891 (1959), cert. denied, 362 U.S. 953 , 80 S. Ct. 866 , 4 L. Ed. 2d 871 (1960); and Roberts v. Warden, 242 Md. 459 , 219 A.2d 254 , cert. denied, 385 U.S. 876 , 87 S. Ct. 156 , 17 L. Ed. 2d 104 (1966). Roberts, inter alia, was charged in each of two cases with assault with intent to murder and simple assault. He was not charged with assault with intent to rob or any of the other aggravated assaults carrying a ten year maximum sentence under the criminal code. 2 He pled guilty to each charge of simple assault, and, as a result, there was apparently no disposition of the assault with intent to murder charges.

He received sentences of twenty years on ⁷²⁰ each of the simple assault convictions, to run consecutively. Later, he challenged the convictions and sentences in several post conviction proceedings. The first two of the Roberts cases in this Court were habeas corpus actions and the next two were proceedings under the Post Conviction Procedure Act. Roberts’s argument was that simple assault is a lesser criminal offense than any of the aggravated assaults set forth in the criminal code, and that, therefore, a sentence cannot be imposed for simple assault which exceeds the maximum provided by the Legislature for any of the aggravated assaults.

Roberts v. Warden, supra, 206 Md. at 251-252 . Consequently, Roberts argued, the maximum term of imprisonment which could be imposed for any simple assault, regardless of the facts, was ten years, corresponding to the maximum set forth in the statute for the least serious of the aggravated assaults. Id. at 252-253 . Under Roberts’s argument, it would not matter whether the simple assault charge was based on the same facts as an aggravated assault charge carrying a ten year maximum, or whether there was an acquittal on such aggravated assault charge, or whether such aggravated assault charge was even brought.

Instead, it was claimed that ten years’ imprisonment was the maximum which could be imposed for any simple assault. This Court did not reach the merits of Roberts’s contention in the first case. Instead, because Roberts conceded that ten years of his sentence was valid, and because he had not yet served the concededly valid portion, it was held that he would not be entitled to habeas corpus relief at that time. The appeal was dismissed as premature.

However, the Court did note that the dismissal did not leave Roberts without a remedy, as he could file a motion in the trial court to correct an allegedly illegal sentence, Roberts v. Warden, supra, 206 Md. at 255 . The second Roberts case, also a habeas corpus action, reached the same conclusion as the first, namely that any possible habeas corpus remedy was premature. Roberts v. Warden, supra, 214 Md. at 613 . The Court did note, however, that since the prior case Roberts had filed a motion to correct an allegedly illegal sentence, that the trial court had denied the motion, and that Roberts had failed to take an appeal from this denial, choosing instead to bring another ⁷²¹ habeas corpus action.

In the third case to reach this Court, it was held that because of Roberts’s failure to appeal from the denial of his motion to correct the sentences, "the alleged error in the sentences had been 'previously and finally litigated,’ ” and thus no action would lie under the terms of the Post Conviction Procedure Act. Roberts v. Warden, supra, 221 Md. at 580 . In the last Roberts case before this Court, also an action under the Post Conviction Procedure Act, the Court reiterated that Roberts’s failure to appeal from the adverse ruling on his motion to correct the sentences precluded post conviction relief, Roberts v. Warden, supra, 242 Md. at 460 . Nevertheless, the Court (id. at 460-461) went on to express the opinion that the sentences did not constitute "cruel and unusual punishment,” quoting Gleaton v. State, supra, 235 Md. at 277 .

The Gleaton case involved a slightly different version of the contention made in the Roberts cases. In Gleaton , the defendant was charged with assault with intent to murder, assault and beating with intent to maim, and simple assault. At the time, the statutory maximum penalties for the aggravated assaults were imprisonment for fifteen years and ten years, respectively. Furthermore, at that time as today, the prescribed maximum penalty for no statutory aggravated assault was less than ten years’ imprisonment.

Apparently as a result of an implicit plea arrangement, the defendant pled guilty to the charge of simple assault, and the State nolle prossed the two counts charging aggravated assaults. The defendant was sentenced to ten years’ imprisonment on the simple assault conviction. This did not, of course, exceed the maximum penalty specified for either of the aggravated assaults with which he had been charged. Thus, the Gleaton case did not present the issue before us in the instant cases.

Moreover, since the sentence in