Stickney v. State

SONNER, Judge. On September 3, 1996, appellants, Kerwin Stickney and Scott Fisher, orchestrated an armed robbery of Crown Designs, a barber shop located in the 5000 block of Belair Road in Baltimore City. At approximately 7:30 p.m., appellants entered the barbershop and directed its barbers and patrons to turn over all their money. Appellant Stickney brandished a gun and threatened the occupants of the barber shop, while appellant Fisher gathered the money.

John Mims, a barber at Crown Designs, testified that appellants took over $300 in cash from him alone. Mims also testified that he had seen the robbers in the barber shop approximately one week earlier. After collecting a total of $580 from the barbers and custom ⁶⁴⁵ ers, appellants destroyed the store’s telephone and fled the scene in an automobile. On the day following the robbery, an anonymous neighborhood resident contacted the barber shop and informed Ashwin Ferguson, another Crown Designs barber, of the names of the robbers.

The anonymous informant gave to Ferguson the names of four persons, two of whom turned out to be appellants. Three Crown Designs barbers later made pre-trial identifications of both Stickney and Fisher, who were arrested shortly thereafter. Appellants were charged with robbery with a dangerous and deadly weapon, assault with intent to rob, use of a handgun in the commission of a felony or crime of violence, and wearing or carrying a handgun. They were tried before a jury in the Circuit Court for Baltimore City from January 29 through February 3, 1998.

At the close of all the evidence, the court made the following comments to the parties’ respective counsel regarding jury instructions: [T]hen, obviously, the offenses of robbery with a dangerous and deadly weapon, robbery. Now, in these cases with respect to the testimony against — theft is not specifically charged, but it’s certainly a lesser included of the robbery with the deadly weapon or robbery. With respect to only one of the witnesses, according to my recollection, that would have been Mr. Mims, was there any testimony to suggest that the value of the property taken was three hundred dollars or greater. On February 3, 1998, the jury convicted both appellants of one count of felony theft and four counts of misdemeanor theft.

The court imposed five consecutive one-year sentences for each of appellant Fisher’s five theft convictions, and five consecutive eighteen-month sentences for each of appellant Stickney’s five theft convictions. Appellants, on March 10, 1998, noted this timely appeal. On appeal, it is appellants’ contention that the trial court did not have jurisdiction to try them for felony theft, because the charging documents failed expressly to charge them with such ⁶⁴⁶ an offense. We concur and, accordingly, reverse and remand the judgment of the lower court.

Article 21 of the Maryland Declaration of Rights provides that each person charged with a crime must be informed of the accusation against him. State v. Morton, 295 Md. 487, 490 , 456 A.2d 909 (1983). “It is fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute.” Williams v. State, 302 Md. 787, 791 , 490 A.2d 1277 (1985). Specifically, when no crime is charged, a court does not have the power to inquire into the facts, to apply the law, and to impose punishment for an offense. Pulley v. State, 287 Md. 406, 415-16 , 412 A.2d 1244 (1980)(quoting Urciolo v. State, 272 Md. 607, 616 , 325 A.2d 878 (1974)).

The Supreme Court has also recognized that a “[cjonviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362 , 57 S.Ct. 255 , 81 L.Ed. 278 (1937). In Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989), however, the Court of Appeals held that a defendant who is charged with a greater offense can be convicted of a lesser included offense that was.not specifically charged. In doing so, the Court decided to employ the “required evidence” or “elements test” to determine precisely what constitutes a lesser included offense. Hagans, 316 Md. at 450 , 559 A.2d 792 .

Under the required evidence test, 1 two offenses are not the same if each requires proof of an additional fact that the other does not. Blockburger v. U.S., 284 U.S. 299, 304 , 52