148 A.3d 72
Md. Ct. Spec. App.2016Background
- Theodore Scott was convicted of attempted armed robbery, use of a handgun, and conspiracy; the State sought a mandatory 25-year no-parole term for attempted armed robbery as a third “crime of violence” under Md. Code, Crim. Law § 14-101(d).
- The State relied on two prior predicates: a Maryland first-degree assault conviction and a D.C. aggravated assault conviction (based on a guilty plea to an indictment that alleged two modalities, one of which might not qualify as a Maryland "crime of violence").
- At the original Maryland sentencing the State introduced a certified copy and a statement of charges for the D.C. conviction; the court found it was a qualifying crime of violence and imposed the 25-year mandatory term.
- This Court vacated the 25-year sentence on direct appeal, holding the sentencing evidence was legally insufficient to prove the D.C. conviction was a crime of violence, and remanded for resentencing on Count 1 only.
- At resentencing the State introduced the D.C. guilty plea transcript (new evidence); the court found the plea facts established intent to cause serious bodily injury and reimposed the 25-year mandatory term. Scott appealed, arguing double jeopardy, excess of remand scope, insufficiency of the resentencing evidence, and that the court refused to consider making other sentences concurrent.
- The Court of Special Appeals affirmed, holding federal and Maryland common-law double jeopardy did not bar the State from introducing new sentencing evidence on remand; the D.C. plea transcript supplied legally sufficient facts; and the resentencing court lacked authority to alter counts/sentences that were not vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy barred State from introducing new evidence at resentencing to prove a prior conviction qualified as a predicate crime of violence | Scott: Burks/Bowman mean failure of proof at original sentencing is tantamount to acquittal; State may not retry that sentencing issue | State: Predicate-prior is a sentencing factor (Almendarez-Torres/Monge); Burks exception inapplicable—State may retry enhancement facts | Court: Double jeopardy does not bar State from introducing new evidence at resentencing; Monge controls, Bowman would yield to Supreme Court precedent |
| Whether the appellate remand limited the trial court from considering new evidence on resentencing | Scott: Mandate and Temoney preclude introducing new evidence on remand absent express permission | State: Rule 8-604(d)(2) remand for resentencing does not preclude additional evidence relevant to sentencing | Court: Remand for resentencing did not preclude the State from presenting new evidence; Southern/Temoney inapposite |
| Sufficiency of the guilty-plea transcript to show the D.C. conviction was a crime of violence | Scott: He did not admit the requisite intent; plea transcript insufficient to establish first-degree-assault equivalent | State: Scott agreed to facts showing stomping with boots causing serious injury—intent can be inferred from conduct | Court: Transcript furnished sufficient facts and Scott’s acceptance permitted inference of intent; predicate established |
| Whether resentencing court could reconsider or make concurrent sentences on counts not vacated | Scott: Court should have considered making Counts 5 and 7 concurrent with resentenced Count 1; allocution claim | State: Those sentences were not before the court; allocution waived | Court: Defendant waived allocution; sentencing court lacked authority to alter counts/sentences not vacated by appellate court; consecutive sentences remain |
Key Cases Cited
- Burks v. United States, 437 U.S. 1 (appellate reversal for insufficiency bars retrial)
- Lockhart v. Nelson, 488 U.S. 33 (general rule that retrial after reversal for trial error is permissible)
- Almendarez-Torres v. United States, 523 U.S. 224 (prior convictions are sentencing factors, not elements)
- Monge v. California, 524 U.S. 721 (Double Jeopardy does not bar retrying sentencing enhancement facts on remand)
- Bowman v. State, 314 Md. 725 (Maryland Court of Appeals: double jeopardy barred resentencing to prove a prior qualified as a predicate)
- Ashe v. Swenson, 397 U.S. 436 (collateral estoppel form of double jeopardy)
- Twigg v. State, 447 Md. 1 (sentencing-package approach; appellate discretion to vacate more sentences to permit full reconfiguration on remand)