Testerman v. State

KRAUSER, J. Appellant David Allen Testerman was convicted by a jury in the Circuit Court for Harford County of eluding a uniformed police officer as well as driving while impaired, driving while his license was suspended, and making an unsafe lane change. Having been previously convicted of both driving while impaired and driving while his license was suspended, he was thereafter sentenced as a subsequent offender under §§ 27-101(f)(1) and 27-101(h)(2) of the Transportation Article. On appeal, he presents two questions for review, which are set forth below largely as they appear in his brief: 1. Was [appellant] improperly sentenced as a subsequent offender? 2.

Is the evidence insufficient to sustain the conviction for fleeing and eluding a police officer, and was [appellant] denied his constitutional right to the effective assistance of counsel because his trial attorney failed to preserve the sufficiency issue for appellate review? For the reasons that follow, we hold that the evidence did not support appellant’s conviction for eluding. Although his counsel failed to raise this issue below and thus preserve it for appellate review, we shall nonetheless reverse his conviction for that offense on the ground that, in faffing to do so, his attorney did not provide effective assistance of counsel for that offense. Notwithstanding our reversal of this conviction, we hold that appellant was properly sentenced as a subsequent offender. ³²⁹ TRIAL The State’s case began with the parties stipulating that, on the date of appellant’s arrest, his license was suspended.

A single witness, Officer James McGarvey of the Aberdeen Police Department, then testified for the State. He stated that, at about 7:00 p.m., on November 28, 2003, he was driving a marked patrol car on Rogers Street in Aberdeen when a gray Ford truck briefly swerved into his lane. After braking to avoid being struck by that vehicle, he moved into the truck’s lane. When he was directly behind the truck, he turned on his lights and siren, radioed the truck’s license plate number to the dispatcher, and followed the truck onto Route 40.

After traveling for approximately a quarter of a mile, the truck pulled over. Pulling up directly behind the truck, Officer McGarvey shined the spotlight of his patrol car on the back of the vehicle. As he got out of his patrol car, the officer observed appellant, who was sitting in the driver’s seat, switch seats with the front seat passenger. After radioing for another officer, he walked over to the passenger’s side of the truck and asked appellant, now ensconced in the front passenger seat, for his driver’s license.

Appellant responded by declaring that he “wasn’t driving,” and, in so doing, orally emitted an “overwhelming smell” of alcohol. The officer then opened the passenger side door of the truck and asked appellant to get out. When he did, the officer observed that appellant had “poor balance;” “couldn’t stand on his own;” and “had to put his hands up against the truck for support.” The officer further noted that appellant’s eyes were “glassy and bloodshot.” Officer McGarvey then asked appellant to perform three field sobriety tests. He refused and again insisted that he had not been driving the truck.

The officer placed appellant under arrest and transported him to the Aberdeen Police Department. Walking from the patrol car to the police station, appellant was “unsteady,” had “very poor balance,” and, ac ³³⁰ cording to the officer, needed help walking up the steps. In the station, he refused to take a Breathalyzer test. The State’s case was followed by a defense motion to dismiss all of the charges against appellant.

In making that motion, defense counsel offered no argument but simply stated, “Your Honor, I would make a motion as to all the charges and I would submit.” It was denied. Defense Appellant called one witness to testify, David Druyor, before testifying himself. Druyor stated that, on November 28, 2003, he had driven appellant, as he often did, to and from appellant’s place of work. When they arrived at appellant’s home, appellant took a shower and asked Druyor to take him to WalMart to buy a television set.

But Druyor’s car was too small to accommodate such a large item, so they took the truck that belonged to appellant’s mother. Appellant drove, with Druyor in the passenger seat and appellant’s small dog between them. While appellant was driving, the dog jumped on his arm, Druyor claimed, causing the truck to swerve towards Officer McGarvey’s vehicle. When, in response, the officer turned on his emergency lights, appellant asked Druyor to switch seats with him.

He agreed and, after appellant stopped the truck, they changed seats. Appellant had not consumed any alcohol, Druyor asserted, either before or after getting into the truck. The defense concluded with appellant’s testimony. He admitted that he was driving the truck at the time he was pulled over by Officer McGarvey.

But, he claimed that his dog caused him to swerve his truck. When, a few seconds later, the officer turned on his emergency lights, appellant insisted that he pulled over as soon as it was safe to do so. After stopping, he and his passenger switched seats, appellant admitted. But he denied that he had any alcohol to drink that day or that his eyes were glassy or that he needed help walking.

He refused to take a Breathalyzer test because he was, in his words, “upset” and “mad” at Officer McGarvey. ³³¹ At the close of all the evidence, defense counsel said, “I would make the motion [for judgment] at this time.” That motion was also denied. SENTENCING HEARING At sentencing, the prosecutor offered into evidence State’s Exhibits 1 and 2, the “Subsequent Offender Notices.” The exhibits were received into evidence, without objection. The two exhibits recited that “The following offense(s) will be relied on in requesting subsequent offender treatment.” Together, they presented the following information: [[Image here]] The circuit court thereafter sentenced appellant to a term of one year’s imprisonment and fined him $500 as a subsequent offender for driving while impaired; to a term of two years’ imprisonment and fined him $500 as a subsequent offender for driving while his license was suspended; and to a term of one year’s imprisonment and fined him $500 for eluding a uniformed police officer. After suspending the fines for both driving while his license was suspended and eluding a uniformed police officer and then ordering that all terms of imprisonment were to run consecutively, the court suspended the term of one year’s imprisonment for eluding and imposed a five-year term of probation to commence with appellant’s release from incarceration.

DISCUSSION I. Appellant contends that the court erred in sentencing him as a subsequent offender because the State, he claims, ³³² failed to prove the existence of the requisite prior convictions. The court, he argues, should not have relied on the Subsequent Offender Notices introduced by the State because they were not competent evidence of his prior convictions. Appellant was sentenced as a subsequent offender under § 27-101 of the Transportation Article of the Maryland Code, which provides, in part: § 27-101 Penalties for misdemeanor. (c) [Penalties ] — $500 and 2 months. — Any person who is convicted of a violation of any of the provisions of the following sections of this article is subject to a fine of not more than $500 or imprisonment for not more than 2 months or both: (23) Except as provided in subsections (f) and (q) of this section, § 21-902(b) (“Driving while impaired by alcohol”); (f) Same — $500 and 1 year; prior conviction of § 21-902(a) — (1) A person is subject to a fíne not exceeding $500 or imprisonment not exceeding 1 year or both, if the person is convicted of: (ii) A second or subsequent violation of: 2.

Except as provided in subsection (q) of this section: A. § 21-902(b) of this article (“Driving while impaired by alcohol”); (h) Same — $1,000 and 1 year; $1,000 and 2 years. — Any person who is convicted of a violation of any of the provisions of § 16-303(a), (b), (c), (d), (e), (f), or (g) of ³³³ this article (“Driving while license is canceled, suspended, refused, or revoked”), § 17-107 of this article (“Prohibitions”), or § 17-110 of this article (“Providing false evidence of required security”) is subject to: (1) For a first offense, a fine of not more than $1,000, or imprisonment for not more than 1 year, or both; and (2) For any subsequent offense, a fine of not more than $1,000, or imprisonment for not more than 2 years, or both. “[T]he burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all the statutory conditions precedent for the imposition of enhanced punishment.” Jones v. State, 324 Md. 32, 37 , 595 A.2d 463 (1991). Thus, in the instant case, the State had the burden of proving, beyond a reasonable doubt, the existence of appellant’s prior convictions. Beverly v. State, 349 Md. 106, 124 , 707 A.2d 91 (1998). See also Sutton v. State, 128 Md.App. 308, 327 , 738 A.2d 286 (1999); Ford v. State, 73 Md.App. 391, 400-03 , 534 A.2d 992 (1988); Sullivan v. State, 29 Md.App. 622, 631 , 349 A.2d 663 (1976).

Relying on two cases, Sullivan v. State, 29 Md.App. 622, 349 A.2d 663 (1976) and Ford v. State, 73 Md.App. 391 , 534 A.2d 992 (1988), appellant claims that the State failed to meet its burden of proof. But that reliance is misplaced. In Sullivan , the defendant was convicted of unlawfully carrying a handgun. During sentencing, the prosecutor told the court that the defendant’s “record reveal[ed]” that he was currently on probation for a handgun violation. 29 Md.App. at 625 , 349 A.2d 663 .

The trial court then sentenced the defendant as a subsequent offender. Id. at 628 , 349 A.2d 663 . Vacating that sentence, this Court held that the State failed to establish that the defendant had been previously convicted of a handgun crime, having “offered no evidence whatsoever on the matter.” Id. at 631 , 349 A.2d 663 . In Ford , the defendant was also charged with unlawfully carrying a handgun.

As in Sullivan , the prosecutor, at sentencing, offered nothing more than unsubstantiated allegations ³³⁴ that the defendant had been previously convicted of offenses, which he claimed rendered the defendant a “subsequent offender” under former Article 27, § 36B. 73 Md App. at 402, 534 A.2d 992 . Certified copies of the prior convictions, which the prosecutor claimed to have, were never offered into evidence. Id. Vacating that sentence, too, we explained that, “[i]n those cases where we have found evidence of a prior conviction beyond a reasonable doubt, the State ha[d] substantiated that fact with some documentation or overt admission.” Id. at 404 , 534 A.2d 992 .

But, in marked contrast to Sullivan and Ford , the prosecutor in the instant case provided the court with more than just his personal assurances that the accused had been previously convicted of the requisite prior offenses. As previously noted, he introduced confirming Subsequent Offender Notices, which were then admitted into evidence without objection. Lest any doubt remains as to the propriety of the circuit court’s reliance on subsequent offender notices, Sutton v. State, 128 Md.App. 308 , 738 A.2d 286 (1999), provides a dispositive analogue. In Sutton , Andre Sutton was convicted of possession of cocaine base and possession of cocaine base with the intent to distribute it.

Seeking to have Sutton sentenced as a subsequent offender under former Article 27, § 286(c)(1), the State brought to the attention of the trial court a “presentence investigation report” that listed Sutton’s prior convictions. 1 After considering that report without objection, the trial court sentenced Sutton as a subsequent offender. Id. at 327-28, 738 A.2d 286 . Challenging that sentence on appeal, Sutton claimed that the State, by failing to introduce certified copies of his convictions, had not met its burden of proving their existence beyond a reasonable doubt. Finding no error, we stated that “the unchallenged presentence investigation report was sufficient in itself to sustain the State’s burden of proving [Sut ³³⁵ ton’s] prior conviction beyond a reasonable doubt.” Id. at 330 , 738 A.2d 286 .

As in Sutton , here, the trial court considered documentation other than certified copies of appellant’s prior convictions. And, as in Sutton , at no time did appellant 2 or his counsel object to that consideration or suggest to the court that the information in the Subsequent Offender Notices was erroneous. Hence, the State satisfied its burden of proving beyond a reasonable doubt appellant’s prior convictions.

II

Appellant contends that the evidence did not support his conviction for eluding because the factual predicates of that conviction — switching seats with his passenger — did not constitute eluding under § 21-904(d). That being so, he maintains that his counsel’s failure to raise this issue below and thereby preserve it for appeal constituted ineffective assistance of counsel. In addressing appellant’s ineffective assistance claim, the first question is whether we may address this issue on direct appeal. In that regard, we note that generally a post-conviction proceeding is the “most appropriate” way to raise a claim of ineffective assistance of counsel, Mosley v. State, 378 Md. 548, 558-59 , 836 A.2d 678 (2003), because “ordinarily, the trial record does not illuminate the basis for the challenged acts or omissions of counsel.” In re Parris W., 363 Md. 717, 726 , 770 A.2d 202 (2001).

But, we may nonetheless do so, “where the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of the claim, there is no need for a collateral fact-finding proceeding, and review on direct appeal may be appropriate and desirable.” Id.; see Mosley, 378 Md. at 566 , 836 A.2d 678 ; Lettley v. State, 358 Md. 26, 32 , 746 A.2d 392 (2000). ³³⁶ The “critical facts are not in dispute” here: Appellant changed seats with his front seat passenger after complying with a request by a police officer to stop his vehicle. And, since this issue was fully aired at trial, “the record is sufficiently developed to permit a fair evaluation of [appellant’s] claim.” Hence, we conclude that “there is no need for a collateral fact-finding proceeding, and review [of appellant’s claim]” by this Court would “be appropriate and desirable.” Appellant was convicted of eluding a uniformed police officer_under former § 21-904, which provided: (a) “Visual or audible signal” defined. — In this section “visual or audible signal” includes a signal by hand, voice, emergency light or siren. (b) Failing to stop vehicle. — If a police officer gives a visual or audible signal to stop and the police officer is in uniform, prominently displaying the police officer’s badge or other insignia of office, a driver of a vehicle may not attempt to elude the police officer by willfully failing to stop the driver’s vehicle. (c) Fleeing on foot. — If a police officer gives a visual or audible signal to stop and the police officer is in uniform, prominently displaying the police officer’s badge or other insignia of office, a driver may not attempt to elude the police officer by fleeing on foot.

(d) Attempting to elude police by other means. — If a police officer gives a visual or audible signal to stop and the police officer is in uniform, prominently displaying the police officer’s badge or other insignia of office, a driver may not attempt to elude the police officer by any other means. (e) Attempting to elude police in official police vehicles. — If a police officer gives a visual or audible signal to stop and the police officer, whether or not in uniform, is in a vehicle appropriately marked as an official police vehicle, a driver of a vehicle may not attempt to elude the police officer by willfully failing to stop the driver’s vehicle. (f)