Townes v. State

McAULIFFE, Judge. In 1980, Lewis Townes negotiated a plea agreement. In return for his plea of guilty to the second count of a two-count indictment, the State agreed to enter a nolle prosequi as to the first count, as well as to related charges in separate indictments, and to recommend a suspended sentence with probation. A judge of the Circuit Court for Baltimore City accepted the plea and the recommendation, and suspended the execution of a three and one-half year sentence upon condition of a three-year probation.

Within 18 months, Townes was thrice haled into court on charges of violation of probation. On each of those occasions the court found a violation, but declined to strike the suspension of sentence. However, a fourth allegation of violation of probation followed and, after finding a violation had been proven, the trial judge struck the suspension and sentenced Townes to serve two years of the original sentence. 1 Unhappy with this turn of events, Townes appealed to the Court of Special Appeals, contending for the first time that his original conviction was invalid because the count to which he had pled guilty did not charge a cognizable crime. We issued a writ of certiorari before consideration of the appeal by the intermediate appellate court.

The facts underlying the charges against Townes are these. Townes learned that the owner of a 1975 Lincoln automobile was in arrears on his payments and wished to ⁷⁴ have the car “stolen” so that he could collect its fair market value from Government Employees Insurance Company (GEICO) pursuant to his insurance coverage for theft. Townes conspired with the owner and others to carry out this plan, and to thereby defraud GEICO. Additionally, Townes was to profit by dismantling the Lincoln and selling its various parts, with the assistance of the co-conspirators.

Pursuant to the plan, the owner left the Lincoln in a designated parking lot from which it was taken by Townes. The owner reported the car stolen and filed a claim with GEICO. Aided by a tip from an informant, the Baltimore City Police Department exposed the scheme and arrested the conspirators before GEICO made payment. Various charges of conspiracy and theft were brought against Townes in four indictments.

In the indictment with which we are concerned, the first count charged conspiracy to obtain money from GEICO by false pretenses, and the second count, to which Townes pled guilty, charged conspiracy to attempt to obtain money from GEICO by false pretenses. As a preliminary matter, we note that the issue of whether the second count charged a cognizable crime is properly before us, notwithstanding Townes’ failure to raise the issue at the time of his initial sentencing or during the probation revocation proceedings below. A claim that a charging document does not charge an offense may be raised at any time. Maryland Rule 4-252(c).

As Chief Judge Murphy recently pointed out for the Court: Manifestly, where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense. Williams v. State, 302 Md. 787, 792 , 490 A.2d 1277 (1985). Townes argues that people ordinarily do not conspire merely to attempt to commit a crime, and therefore the law does not recognize as a crime a conspiracy to attempt to ⁷⁵ commit a criminal offense. In addressing the related question of whether there may be an attempt to attempt a crime, the Supreme Court of Colorado cogently stated the rationale underlying Townes’ argument: Perhaps philosophers or metaphysicians can intend to attempt to act, but ordinary people intend to act, not to attempt to act.

Allen v. People, 175 Colo. 113 , 485 P.2d 886, 888 (1971). We had occasion to outline the elements and characteristics of the crime of conspiracy in Mason v. State, 302 Md. 434, 444-45 , 488 A.2d 955 (1985). A criminal conspiracy consists of the combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. In Maryland, the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown. A