Scott v. StateScott v. State
In this case we must decide whether, when a mandatory enhanced sentence for a third crime of violence is vacated on appeal because the evidence was legally insufficient to support a finding that one of the prior convictions was for a crime of violence, double jeopardy bars the State from introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. We hold that it does not. Our holding is at odds with the Court of Appeals decision in Bowman v. State, 314 Md. 725, 552 A.2d 1303 (1989). As we shall explain, the holding in Bowman was based solely on an analysis of federal constitutional double jeopardy law that the United States Supreme Court has since rejected.
FACTS AND PROCEEDINGS
A jury in the Circuit Court for Prince George‘s County convicted Theodore Scott, the appellant, of attempted robbery with a deadly weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit robbery with a deadly weapon. Scott committed the crimes on December 24, 2011, at a convenience store in Mt. Rainier.
Under the D.C. aggravated assault statute, there are two modalities by which that crime may be committed. First, a person commits the crime if “(1) By any means, that person knowingly or purposely causes serious bodily injury to another person[.]” Second, a person commits the crime if “(2) Under circumstances manifesting extreme indifference to human life, that person intentionally or knowingly engages in conduct which creates a grave risk of serious bodily injury to another person, and thereby causes serious bodily injury.”
At the sentencing hearing, the State introduced a certified copy of Scott‘s D.C. conviction. When defense counsel argued that the document was inadequate to prove the modality of the crime, and therefore that it was a crime of violence, the court postponed the sentencing hearing. At the reconvened sentencing hearing, the State introduced the statement of charges in the D.C. case. From that evidence, the sentencing court found that Scott‘s D.C. conviction was for a crime of violence and that his attempted armed robbery conviction was his third conviction for a crime of violence, under
Scott noted an appeal to this Court in which he argued, among other things, that the State‘s evidence at sentencing was legally insufficient to prove that his D.C. conviction was for a crime of violence, as defined in
[T]he transcript of the D.C. plea hearing was not produced at [Scott‘s] Maryland sentencing hearing. We are unable to tell “whether the statement of facts in support of the guilty plea tracked the Statement of Charges or whether other facts were subsequently developed or ignored for purposes of securing the plea.”
* * *
Furthermore, the D.C. indictment alleged, in the alternative, conduct that the State concedes would have amounted to the Maryland crime of reckless endangerment, a crime not included as a “crime of violence” under
C.L. § 14-101[a] .In the absence of evidence of a clear judicial admission by [Scott], we are persuaded that the State failed to meet its burden of proving the necessary predicates to support imposition of the mandatory sentence on Count 1 [attempted armed robbery] in this case.
Theodore Scott v. State of Maryland, No. 2491, September Term, 2012 (filed September 3, 2014), slip op. at 61. Citing
At the resentencing hearing on remand, the State again sought to have Scott sentenced to a mandatory term of 25 years’ imprisonment, without parole, for attempted armed robbery, under
The sentencing court overruled Scott‘s objection and, based on the guilty plea transcript, found that his D.C. conviction was for a crime of violence under
Scott noted this appeal, presenting four questions, which we have rephrased:
- Did the resentencing court violate his double jeopardy rights by imposing a mandatory twenty-five year sentence for attempted armed robbery, under
CL section 14-101(d) , based on prior convictions that included the D.C. conviction? - Did the resentencing court exceed the scope of its authority under this Court‘s remand order?
- Did the resentencing court err by ruling the evidence legally sufficient to prove that the D.C. conviction was for a crime of violence?
- Did the resentencing court err by refusing to consider making the sentences for use of a handgun and conspiracy concurrent with the mandatory twenty-five year sentence for attempted armed robbery?
For the following reasons, we shall affirm the judgments.
DISCUSSION
I.
A. Federal Constitutional Law of Double Jeopardy
Because the evidence adduced at his original sentencing hearing was legally insufficient to prove that his D.C. convic
The State responds that double jeopardy principles did not bar it from introducing the new evidence on resentencing because the evidence was being used to prove “sentencing factors,” not to prove the elements of an offense. It relies on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), and argues that the precedential effect of Bowman must be re-evaluated in light of those Supreme Court cases.
The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]”
As long ago as United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court recognized that a defendant who successfully challenges his conviction for an offense on direct appeal can be retried for the same offense, without double jeopardy acting as a bar. United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (allowing retrial of an offense after conviction was reversed on collateral attack). In Ball, the reversal on appeal was for trial
The Burks Court was presented with the question whether the Double Jeopardy Clause bars a retrial of a defendant for an offense after his conviction was reversed on appeal not for trial court error but for “the evidence [being] insufficient to sustain the verdict of the jury.” Id. at 5, 98 S.Ct. 2141 (footnote omitted). The defense argued that, for double jeopardy purposes, no rational distinction could be drawn between an acquittal by the trial court for legally insufficient evidence and a reversal by a reviewing court for legally insufficient evidence. In the former situation, a retrial for the offense plainly is prohibited because the defendant was acquitted. In the latter situation, the only trial court error was to have not granted a judgment of acquittal, and therefore a retrial also should be prohibited.
Recognizing that in some of its previous decisions it had permitted a retrial after a reversal for legally insufficient evidence, when the defendant had sought a new trial as one form of relief, the Court characterized its holdings in those cases as inconsistent and unclear and rejected them, adopting the defense‘s argument. It gave the following rationale for allowing a retrial after reversal for trial court error:
[The reversal] does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant had been convicted through a judicial process which is defective in some fundamental respect .... When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
Since we necessarily afford absolute finality to a jury‘s verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
Ten years later, in Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the question before the Supreme Court was whether a defendant could be retried after his conviction was reversed for trial court error in admitting evidence without which the evidence would have been legally insufficient to support the conviction. The Court characterized as the “general rule” the settled law that the Double Jeopardy Clause does not bar the retrial of a defendant for an offense after a reversal of a conviction of that offense for trial court error. Lockhart, 488 U.S. at 39, 109 S.Ct. 285. The Court explained that the Burks holding is an exception to that general rule: ”Burks was based on the view that an appellate court‘s reversal for insufficiency of the evidence is in effect a determination that the government‘s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal[.]” Id.
In Lockhart, the defendant was convicted of burglary and theft and was given an enhanced sentence under a state habitual criminal statute. That statute required the state to prove, beyond a reasonable doubt, to a trier of fact (in his case a jury), that the defendant had a certain number of prior
In a later habeas corpus proceeding, the defendant introduced evidence that he had in fact been pardoned for the conviction. The district court ruled that the enhanced sentence was invalid and further ruled that the Double Jeopardy Clause barred the government from using another fourth prior conviction to obtain an enhanced sentence.
After an affirmance by the Eighth Circuit Court of Appeals, 828 F.2d 446 (8th Cir. 1987), the Supreme Court took the case and reversed. It held that the Burks exception did not apply, because the case involved an error by the trial court in admitting the evidence of a conviction for which, as was later revealed, the defendant was pardoned. As admitted, the evidence was legally sufficient to support the jury‘s finding of four prior convictions. The Court held that the fact that the evidence would not have been legally sufficient to support the jury‘s finding if the evidence that should not have been admitted had been excluded did not put the case within the Burks exception. Accordingly, a “retrial” on the habitual offender sentencing was permissible under the Double Jeopardy Clause. Lockhart, 488 U.S. at 42, 109 S.Ct. 285.
Such was the state of federal double jeopardy law in 1989, when the Court of Appeals decided Bowman. There, a jury found the defendant guilty of armed robbery and related crimes. The State sought a mandatory sentence of 25 years’ imprisonment without parole for the armed robbery conviction, as a third crime of violence, under
The Court then turned to the issue of resentencing. Reasoning that, for Fifth Amendment Double Jeopardy purposes, there is no distinction between a retrial of an offense and resentencing for a conviction, the Court stated:
It is apparent that the case at hand does not fall within the holding of [Lockhart]. There was never evidence erroneously admitted legally sufficient to establish the necessary proof that Bowman was a subsequent offender within the contemplation of § 643B. The trial judge simply completely misinterpreted the evidence. Only one qualifying predicate conviction was shown and there was no competent evidence to establish the second. ... [T]he Burks exception to the general rule [as stated in Lockhart] is applicable.
314 Md. at 740, 552 A.2d 1303 (first emphasis in original). It held that the Double Jeopardy Clause prohibited the State “from attempting to resentence [the defendant] as a subsequent offender either on the basis that the District of Columbia robbery conviction in fact met the definition of a crime of violence under Maryland law or on the basis of another qualifying conviction not offered or admitted at the initial sentencing hearing.” Id. at 740, 552 A.2d 1303.2
Scott argues that Bowman controls and cannot be distinguished from his case. He maintains that, under Bowman, the resentencing court violated his federal double jeopardy rights by sentencing him to a mandatory 25 year sentence without parole for a third crime of violence, based on newly introduced evidence that the D.C. conviction was for a crime of violence, when the evidence at the original sentencing hearing was legally insufficient to prove that the D.C. conviction was for a crime of violence.
The State responds that two Supreme Court cases decided in 1998, after Bowman, undercut that decision‘s foundation. In Almendarez-Torres, supra, the Supreme Court held that when the fact of a prior conviction is being used for sentence enhancement purposes, it is not an “element of [the] offense” or a separate crime; therefore, its existence need not be decided by a jury and proven beyond a reasonable doubt. 523 U.S. at 244, 118 S.Ct. 1219. “To hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner‘s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.‘” Id. (citation omitted). The “prior commission of a serious crime—is as typical a sentencing factor as one might imagine.” Id. at 230, 118 S.Ct. 1219.
At the sentencing hearing, the court considered the evidence relevant to whether the defendant‘s prior assault conviction was for a “serious felony” under the sentence enhancement statute and found that it was. It imposed an enhanced sentence. When the defendant challenged that finding on appeal, the government conceded that it had not introduced legally sufficient evidence to prove that the prior assault conviction was for a “serious felony.” The government argued that on remand for resentencing it should have another opportunity to prove that the prior assault conviction was for a “serious felony.”
Ultimately, the case reached the Supreme Court on the question of whether the Double Jeopardy Clause barred the government from having a second chance to prove that the prior assault conviction was for a “serious felony.” The defendant argued that Burks controlled and prohibited the government from doing so. The government countered that Burks did not apply because failure of proof of a sentencing enhancement factor is not tantamount or even comparable to an acquittal. It maintained that only when the evidence of criminal liability for an offense was legally insufficient, which should have produced an acquittal, is a retrial prohibited by the Double Jeopardy Clause.
In a 5-to-4 decision, the Supreme Court held that, except in death penalty cases, for which it already had carved out an
Contrasting Burks, the Court explained that “[s]entencing decisions favorable to the defendant ... cannot generally be analogized to an acquittal[,]” as is the case when there is “insufficient evidence of guilt[.]” Id. at 729, 118 S.Ct. 2246. The pronouncement of sentence simply does not “have the qualities of constitutional finality that attend an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Bullington, supra, at 438, 101 S.Ct. 1852 (“The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed.“).
The Double Jeopardy Clause “does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” DiFrancesco, 449 U.S. at 137, 101 S.Ct. 426. Consequently, it is a “well-established part of our constitutional jurisprudence” that the guarantee against double jeopardy neither
Id. at 729-30, 118 S.Ct. 2246.
We return to the case at bar. The question is whether Bowman still controls the outcome of the Double Jeopardy Clause issue before us, given that its double jeopardy analysis later was rejected by the Supreme Court in Monge (except in death penalty cases).4 As the State notes, other state appellate courts that once held that federal double jeopardy protections apply to sentencing enhancement proceedings have changed their positions under the authority of Monge. For example, in People v. Porter, 348 P.3d 922, 928 (Colo. 2015), the Supreme Court of Colorado overruled its holding in People v. Quintana, 634 P.2d 413 (Colo. 1981), that double jeopardy principles applied to recidivist sentencing laws, concluding, based on Monge, that there was “no sound reason for maintaining” that holding. Id. at 927. The court pointed out that recidivist sentencing statutes concern “‘a status rather than a substantive offense.‘” Id. at 928 (quoting People ex rel. Faulk v. District Court, 673 P.2d 998, 1000 (Colo. 1983) (emphasis in Porter)). “Thus, enhancing a penalty based on prior convictions does not put the defendant in jeopardy for an ‘offense.‘” Id. It observed that the recidivist sentencing phase of a trial
The holding in Monge, that the Burks exception does not bar the government from proving a sentencing enhancement on resentencing when its proof of the same sentencing enhancement in the original sentencing was not supported by legally sufficient evidence, is inconsistent with the holding in Bowman. On federal constitutional issues, we are bound by United States Supreme Court precedent.
In light of the Supreme Court‘s express rejection in Monge of the application of the Burks exception to resentencing under the Fifth Amendment Double Jeopardy Clause, in particular for sentencing enhancement findings, we conclude that in a case such as this, which presents a scenario that is not substantively distinguishable from Bowman, the Court of Appeals would depart from its resentencing holding in Bowman and follow Monge. Accordingly, federal double jeopardy principles did not bar the State from presenting new evidence, at resentencing, to prove that Scott‘s D.C. conviction was for a crime of violence, within the meaning of
B. Maryland Common Law of Double Jeopardy
Although there is no guarantee against double jeopardy in the Maryland Constitution or Declaration of Rights, “Maryland common law provides well-established protections
Before the Supreme Court’s 1969 decision in Benton v. Maryland, double jeopardy applied to Maryland prosecutions “only as a common law principle.” Cornish v. State, 272 Md. 312, 316 n. 2, 322 A.2d 880 (1974). Bowman was decided on federal constitutional double jeopardy grounds alone; the opinion makes no reference to the Maryland common law of double jeopardy. Our examination of the common law of double jeopardy leads us to conclude that it also did not preclude the State from attempting to prove a second time, on resentencing on remand, that Scott’s D.C. conviction was for a crime of violence, for purposes of sentence enhancement under
“Under the Maryland common law of double jeopardy, a defendant cannot be ‘put in jeopardy again for the same offense—in jeopardy of being convicted of a crime for which he had been acquitted; in jeopardy of being twice convicted and punished for the same crime.’” State v. Griffiths, 338 Md. 485, 489, 659 A.2d 876 (1995) (quoting Gianiny v. State, 320 Md. 337, 347, 577 A.2d 795 (1990)). These principles derive from the English common law “pleas of former jeopardy (autrefois acquit, autrefois convict, and pardon)” that protect a defendant from being retried for an offense when he previously was acquitted, convicted, or pardoned for the same offense. Ward v. State, 290 Md. 76, 85, 427 A.2d 1008 (1981) (emphasis in Ward). With some exceptions, the Maryland common law of double jeopardy also precludes multiple sentences for the same offense. Middleton v. State, 318 Md. 749, 757, 569 A.2d 1276 (1990) (additional citations omitted).
The plea in bar of autrefois convict (already convicted), which “generally means that ‘where there had been a final [judgment] ... of ... conviction, ... the defendant could not be a second time placed in jeopardy for the particular offense[,]’” Middleton, supra, at 756-57, 569 A.2d 1276 (quoting Hoffman v. State, 20 Md. 425, 434 (1863)) (alterations in
The plea in bar of autrefois acquit (already acquitted) protects a defendant who has been acquitted of an offense from being retried for the same offense. Copsey v. State, 67 Md.App. 223, 225-26, 507 A.2d 186 (1986) (stating that the plea of former acquittal is designed to prevent a defendant “who has once survived his initial jeopardy from being ‘twice vexed’ by a fresh exposure to the hazard of conviction for that same offense”). More than a century ago, the Court of Appeals explained:
It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside[.]
State v. Shields, 49 Md. 301, 303 (1878).
As discussed, the Bowman decision was based on a parity of reasoning to Burks: Just as a failure of evidence necessary to prove an offense is tantamount to an acquittal, and therefore bars a retrial upon reversal, a failure of evidence to prove a prior conviction for a crime of violence, in order to support a mandatory enhanced sentence, is tantamount to an acquittal of that enhanced sentence, and therefore bars resentencing based on the same (or even an additional new) prior conviction. The Supreme Court rejected that analogy in Monge. The question is whether the common law principle of autrefois acquit supports it. It does not.
The Court of Appeals has recognized that a ruling by a trial court that is not an outright acquittal can be the functional
The Court of Appeals held that the trial courts in both cases erred by granting the motions to dismiss, but the rulings “were the equivalent of granting acquittals,” under the common law principle of autrefois acquit, and therefore had to “be treated as such for jeopardy purposes.” 371 Md. at 654, 810 A.2d 964. It dismissed the appeal in Taylor because autrefois acquit barred the State from appealing from an acquittal, or its equivalent; and it reversed the judgment in Bledsoe, because autrefois acquit barred the State from prosecuting the defendant when he had been granted the equivalent of an acquittal.
A few years later, in Giddins v. State, 393 Md. 1, 899 A.2d 139 (2006), the Court once again was faced with a disposition by the trial court that the defendant contended was tantamount to an acquittal. The defendant was charged with two counts of possession of controlled dangerous substances with intent to distribute. The drugs were found in his residence. After the trial court ruled that the officers who had obtained the search warrant for the defendant’s residence could not testify about the evidence on which they had based their warrant application, the prosecutor asked one of them to identify the “target of that investigation.” 393 Md. at 11, 899 A.2d 139. The defense moved for a mistrial. The judge granted the motion, explaining that he was doing so because by asking that question the prosecutor was bringing to the fore all the
When the State sought to retry the defendant, he moved to dismiss. Raising the common law plea in bar of autrefois acquit, he argued that the trial judge’s remarks in granting the mistrial were a rejection of critical evidence against him and therefore amounted to an acquittal. The court denied the motion, and the defendant noted an immediate appeal. Eventually, the case came before the Court of Appeals.
The Court observed that “[i]n determining whether the defendant can successfully plead autrefois acquit, the essential inquiry is whether there has been a ruling on the evidence[.]” Id. at 20, 899 A.2d 139. Using the consolidated cases in State v. Taylor as examples, it explained that “where the trial judge has taken action based upon the evidence, that action, despite its characterization, constitutes an acquittal for double jeopardy purposes.” Id. at 22, 899 A.2d 139. The Court held that the trial judge’s comments about the evidence underlying the search warrant were not a substantive ruling on the evidence, however. They were observations about the admissibility, or more precisely, the inadmissibility, of that evidence. Accordingly, the mistrial motion ruling was not the functional equivalent of an acquittal, and a second prosecution for the same offense was not barred by autrefois acquit.
The rulings in question in State v. Taylor and Giddins all concerned criminal liability for the offenses the defendants were being tried for—not sentence impositions. That is the context in which the Court analyzed whether a ruling that is not expressly an acquittal may be equivalent to one. This is not surprising because, as noted, the plea in bar of autrefois acquit applies to a verdict of acquittal, or the equivalent of a verdict of acquittal, i.e., an acquittal of the offense for which
The common law plea of autrefois acquit is designed to protect a defendant against criminal liability for the “same offense” for which he was acquitted, a protection later incorporated in the Fifth Amendment Double Jeopardy Clause. Indeed, the Fifth Amendment double jeopardy protections embody several common law pleas, including autrefois convict and autrefois acquit. See Ex Parte Lange, 85 U.S. (18 Wall.) 163, 168-69, 21 L.Ed. 872 (1873); Hoffman v. State, 20 Md. 425, 432 (1863) (“[A]lthough handed down by common law for centuries ... it was thought proper to embody it in the Constitutions of several of the States, and engraft [double jeopardy], by way of amendment, on that of the United States”).
Although the Maryland common law of double jeopardy is not coextensive with the Fifth Amendment Double Jeopardy Clause in every way,7 the Maryland appellate courts never have interpreted autrefois acquit to extend beyond an acquittal of an offense (or a functional equivalent of an acquittal of an offense) to the sentencing for a conviction of an offense. For the same reason the Monge Court held that, under the Fifth Amendment Double Jeopardy Clause, a failure of proof on sentencing is not an “acquittal” of the sentence imposed or any greater sentence, a failure of proof on sentencing is also not an acquittal (or the functional equivalent of an acquittal) of the sentence that was imposed or any greater sentence under
[T]he guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. ... [A] corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.
395 U.S. at 719-720, 89 S.Ct. 2089 (footnote omitted).8 See also Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) (upholding against a double jeopardy challenge the defendant’s death sentence for murder on retrial after his original murder conviction, for which he had been sentenced to life in prison, was reversed on appeal). The principle of autrefois acquit in the common law and as incorporated in the Fifth Amendment does not effectively “acquit” the defendant of a greater sentence on resentencing.9
C. Collateral Estoppel Form of Double Jeopardy
Scott also argues that the collateral estoppel form of double jeopardy, first recognized by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), barred the State from relitigating the issue whether his D.C. conviction was for a crime of violence.10 The State responds that the collateral estoppel form of double jeopardy does not apply here.
Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. 1189. “If the fact previously litigated is a key component in later offenses, then a subsequent finding in favor of the defendant in the first trial naturally will compel an acquittal in the latter trial.” Long, 405 Md. at 539, 954 A.2d 1083.
In Ashe, six men playing poker in one room were robbed by several masked men. Soon thereafter, four armed men, including Ashe, were arrested and charged. Ashe was tried in a Missouri state court for the armed robbery of one of the poker players. The testimony of the state’s witnesses was extremely weak on criminal agency, and the jury acquitted him. The state then convened a new jury and tried Ashe for the armed robbery of one of the other poker players. At that trial, the same state’s witnesses gave stronger testimony on criminal agency, and Ashe was convicted.
Scott does not cite any case holding that the collateral estoppel form of double jeopardy would apply to resentencing, and he acknowledges that the one case he cites does not support his position. In Simms v. State, 83 Md.App. 204, 574 A.2d 12 (1990), the trial court sentenced the defendant to a mandatory term of life in prison without parole for daytime housebreaking, under section 643B(b) of former Article 27, based on his having committed three prior crimes of violence, including a 1970 conviction. In another case against the defendant that was tried shortly before his trial in the case on appeal, he was found guilty in another county of another offense. The sentencing judge in that case ruled that the State’s evidence about the 1970 conviction was insufficient to support a finding that it was for a crime of violence, for purposes of statutory sentence enhancement.
On appeal, the defendant argued that the collateral estoppel form of double jeopardy precluded the sentencing judge from finding that the 1970 conviction was for a crime of violence because that issue had been finally decided to the contrary in the prior case. We disagreed, stating that “the issue of the sufficiency of the State’s evidence of a predicate offense in support of enhanced punishment” was not, as the defendant was arguing, a “valid and final judgment[.]” Id. at 213-14, 574 A.2d 12 (emphasis in original). We noted that the defendant’s position was inconsistent with the Court of Appeals holding in
The collateral estoppel form of double jeopardy has no application here. First, it is clear from the holding in Ashe that collateral estoppel applies when there has been a factual finding favorable to the defendant that is central to his criminal liability for an offense. The doctrine has never been extended to apply to sentencing. Second, even if it applied to sentencing, the original sentencing court in this case found on the evidence submitted that the D.C. conviction was for a crime of violence, and on appeal this Court found that the evidence before the sentencing court was not sufficient to support that finding. There was no “final adjudication” by a court that, as a matter of fact, the D.C. conviction was not for a crime of violence. The collateral estoppel form of double jeopardy did not prohibit the State from proving Scott’s prior conviction at resentencing.
II.
Court‘s Authority on Remand
Scott contends the resentencing court exceeded the scope of its authority on remand, in violation of
The Court of Appeals held that we could not. The limited remand rule “does not afford parties who fail to meet their burdens on issues raised in a completed suppression hearing an opportunity to reopen the suppression proceeding for the taking of additional evidence after the appellate court has held the party has failed to meet its evidentiary burden.” Southern, 371 Md. at 105, 807 A.2d 13. This holding has no effect upon an appellate court’s authority to remand a criminal case for resentencing, under
In our opinion in Scott’s first appeal, we stated:
In the absence of evidence of a clear judicial admission by [Scott], we are persuaded that the State failed to meet its burden of proving the necessary predicates to support imposition of the mandatory sentence on Count 1 in this case. Accordingly, we shall vacate the sentence on Count 1 and remand this case for resentencing. See
Md. Rule 8-604(d)(2) ....
Scott, slip op. at 61. The mandate read:
SENTENCE ON COUNT 1 VACATED AND THE CASE IS REMANDED FOR RESENTENCING. ALL JUDGMENTS OTHERWISE AFFIRMED.
Scott argues that our opinion and mandate did not permit the State to introduce additional evidence at resentencing because we would have said so if that was our intention and because, under Temoney v. State, 290 Md. 251, 260, 429 A.2d 1018 (1981), unless an appellate court’s mandate expressly permits additional evidence to be taken on remand, that is prohibited.
The absence of any statement in our opinion as to whether new evidence could be introduced on resentencing does not suggest that we were prohibiting any such evidence. Moreover, Temoney is inapposite. There, the sentencing court refused to decide whether evidence of prior convictions supported the imposition of a mandatory sentence. The Court of Appeals upheld the sentence imposed, even though the sentencing judge should have considered the evidence before it, because, by the sentencing court’s own analysis, the evidence was not legally sufficient to support imposition of the mandatory sentence. The Court did not decide whether, under Burks, additional evidence could be introduced on resentencing (the issue later decided in Bowman), because the State did not propose to introduce additional evidence on resentencing.
Here, the issue of the introduction of new evidence at resentencing is squarely before this Court. As we already have held, the introduction of new evidence does not violate double jeopardy protections.
III.
Sufficiency of the Evidence that the D.C. Conviction was for a Crime of Violence
Scott contends the evidence at resentencing on remand was legally insufficient to prove that his prior D.C. conviction for aggravated assault was for a crime of violence, under
The transcript of the guilty plea hearing in D.C. Superior Court on the offense of aggravated assault shows that the government proffered that Scott and two other men (Calvin Mason and Jeffrey Mason) got into a dispute with the victim over a North Face jacket. They surrounded the victim and the following events took place:
Calvin Mason and [Scott] then began to stomp on the [victim’s] face and body while [Scott] was wearing boots. [A]t approximately this point the [victim] lost consciousness and began to suffer bruising, subdural bleeding and a fracture of the left orbital bone, the bone surrounding the eye.
At the conclusion of this proffer, the judge asked Scott, “So, ... that’s the evidence the Government had in your case. Do you agree or disagree, sir?” Scott replied, “I agree.”
At the resentencing hearing on remand, the court observed that “[s]tomping somebody around the face and the eye with boots on while he’s on the ground obviously is an intent, obviously expresses an intent to cause serious bodily harm. I mean that’s the whole purpose of doing it.” The court found that the facts proffered by the government and accepted by Scott in support of the aggravated assault guilty plea would support a conviction for first degree assault, under
Scott argues that because he did not admit at the plea hearing that he had the intent to cause serious physical injury, the evidence was insufficient to establish the elements of the offense of first degree assault. He relies on Bowman. There, despite efforts by the prosecutor on cross-examination, Bowman refused to admit that he had committed robbery with a deadly weapon, which would have qualified the D.C. robbery offense as a crime of violence under the Maryland predecessor statute to
The State points out that here, in contrast to Bowman, Scott agreed to facts proffered by the government that would constitute a crime of violence under
A factfinder “may infer the necessary intent from an individual’s conduct and the surrounding circumstances[.]” Chilcoat v. State, 155 Md.App. 394, 403, 843 A.2d 240 (2004). See also In re Lavar D., 189 Md.App. 526, 590, 985 A.2d 102 (2009) (holding that the court, as the factfinder, was permitted to draw the inference that a group of juveniles intended to inflict serious physical injury by repeatedly hitting, punching, and kicking the victim). As such, the facts underlying Scott’s D.C. conviction for aggravated assault, as agreed to by Scott, offered sufficient evidence to establish that that conviction was for a “crime of violence” under
IV.
Resentencing on Counts 5 and 7
As noted above, at the original sentencing the court imposed a 10 year sentence, with all but 5 years suspended, for use of a handgun (Count 5), to be served consecutively to the 25 years without parole sentence for attempted armed robbery (Count 1); and a 10 year sentence, with all but 5 years suspended, for conspiracy (Count 7), to be served consecutively to the sentence for Count 5 and Count 1. This Court vacated the sentence for attempted armed robbery (Count 1). We otherwise affirmed the judgments, i.e., the convictions and sentences on Counts 5 and 7.
At the resentencing hearing on remand, counsel for the parties argued as follows regarding the sentences for Counts 5 and 7:
[PROSECUTOR]: Your Honor, just before you hear from the defendant, Counts 5 and 7 can’t—those aren’t here for re-sentencing, so those cannot be changed. I think that the
only thing that you can sentence on is the 25 mandatory without parole [Count 1]. The reason I brought the Count 5 up was because that was, in fact, consecutive. We’re not here to change that sentence. I just wanted to make sure that was on the record because those two counts—those two sentences that the Court issued remain the same, so the only thing that we’re here for is Count 1.
[DEFENSE COUNSEL]: The Court is here sentencing—the Court can make Count 1 consecutive or concurrent to the already existing sentences.
[PROSECUTOR]: But those sentences, Count 5 actually says—
[THE COURT]: The problem is, is that I didn’t make Count 1 consecutive to the other sentences. I made the gun charge [Count 5] consecutive. And so if I did have the discretion to make this concurrent, that would change, in effect, the sentence on the other counts, which are not before the Court.
[DEFENSE COUNSEL]: At the moment they’re consecutive to a sentence that doesn’t exist. So the Court does have the power to make Count 1, which you’re sentencing on, concurrent to all other sentences which already exist in this case, and that’s what we ask the Court to do.
[THE COURT]: All right. Well, I disagree with you, [defense counsel], but I’ll hear from [Scott] as to how he feels or what he wants to say at this point.
[DEFENSE COUNSEL]: Given the Court’s rulings, the fact that the Court is ruling it has essentially no discretion in the sentence it’s going to impose, [Scott] has nothing to add.
[THE COURT]: All right. Very well.
(Emphasis added.) The court imposed the mandatory 25 years without parole sentence on Count 1. The consecutive sentences on Counts 5 and 7 remained.
Scott’s final contention is that, on resentencing, the court erred by “refus[ing] to consider making the sentences under
The State responds that we should not address Scott’s allocution argument because he waived allocution, and we should not address his argument that the court should have exercised discretion to make the sentences for Counts 5 and 7 concurrent with the sentence for Count 1 because it is not preserved, as it is not the argument he made below. Alternatively, the State argues that the resentencing court did not have the authority to make the sentences on Counts 5 and 7 concurrent with the reimposed sentence on Count 1.
In his reply brief, Scott asserts that the recent decision in Twigg v. State, 447 Md. 1, 133 A.3d 1125 (2016), supports his position.
We find merit in the State’s waiver and preservation arguments. The record discloses that the resentencing judge expressly recognized that Scott had the right to allocution and gave him the opportunity to allocute and present mitigating information. Through counsel, Scott declined, thereby waiving any right to complain on appeal that the court violated
The record also discloses that the argument Scott made below about the sentences on Counts 5 and 7 is not the argument he is advancing on appeal. At resentencing, Scott’s counsel asked the judge to make the sentence it was imposing on Count 1, i.e., the mandatory 25 years’ imprisonment without parole, concurrent with the sentences previously imposed
On appeal, Scott mischaracterizes his request of the resentencing judge, stating that he asked him to reconsider the sentences on Counts 5 and 7 to make them run concurrently with the newly imposed sentence on Count 1, but the judge refused. That plainly is not what happened below.
Even if the issue whether the resentencing court had the authority to reconsider the sentences imposed on Counts 5 and 7 to make them run concurrently with the newly imposed sentence on Count 1 were properly preserved, we would not find merit in it. The cases Scott relies upon—Jones, Bowman, and Twigg—are inapposite.
In Jones, the defendant was convicted of first degree assault and robbery with a deadly weapon. This Court vacated both sentences on the ground that the convictions should have merged for sentencing, and remanded for resentencing. The trial court did not allow the defendant to allocute and present mitigating evidence on resentencing. The case reached the Court of Appeals, which held that on resentencing the defendant had a right to allocution and present mitigating evidence. Jones did not concern a situation in which the defendant was seeking to have sentences that had not been vacated reconsidered.
In Bowman, after holding that the mandatory 25 year sentence without parole was not supported by sufficient evi
Finally, Twigg does not lend support to Scott’s contention. In that case, the defendant was convicted of child sexual abuse and three sex offenses (second degree rape, third degree sexual offense, and incest), “any one of [which] could have provided the basis for the child abuse conviction.” Twigg, 447 Md. at 5, 133 A.3d 1125. The trial court sentenced him to consecutive terms of 20 years for second degree rape, 10 years for third degree sexual offense, and 10 years for incest. It imposed a 15 year sentence for child sexual abuse and suspended all of it in favor of 5 years’ probation.
On appeal to this Court, the defendant maintained that, under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), he was entitled to have the convictions “and/or” sentences for the three sexual offenses vacated because they were lesser included offenses of the crime of child sexual abuse. Twigg v. State, 219 Md.App. 259, 266, 100 A.3d 1187 (2014). We held that the three sex offense convictions had to be vacated, and we also vacated the sentence for the child sexual abuse and remanded for resentencing on that conviction.
The Court of Appeals took the case on certiorari. It held that only one sexual offense conviction would be the necessary predicate for the child sexual abuse conviction, and because the verdict did not specify which one, it would be the one carrying the greatest sentence. It further held that resentencing on the child sexual abuse conviction would not violate the Double Jeopardy Clause because “‘the pronouncement of sentence has never carried the finality that attaches to an acquittal,’” Twigg, 447 Md. at 21, 133 A.3d 1125 (quoting
The Court further rejected the defendant’s argument that allowing the trial court to resentence him to a potentially greater sentence for the child sexual abuse conviction on remand would violate his due process rights. Its analysis focused on
The Court held that under the sentencing package approach, the “sentence” in multicount cases is the aggregate of the sentences on the individual counts. Thus, “a defendant’s sentence will be considered to have increased under
For our purposes, a comment made by the Court in a footnote is pertinent. The Court noted that its construction of
This comment makes clear that it is within the discretion of the appellate court in an appeal in a multicount case to vacate all the sentences when less than all of the convictions/sentences must be vacated. The appellate court is not required to vacate all the sentences. Twigg, 447 Md. at 30 n.14, 133 A.3d 1125 (stating that in an appropriate case the appellate court may vacate “all sentences originally imposed on those convictions and sentences left undisturbed on appeal, so as to provide the court maximum flexibility on remand to fashion a proper sentence that takes into account all of the relevant facts and circumstances”).
In the case at bar, this Court vacated the mandatory minimum sentence of 25 years’ imprisonment without parole for attempted armed robbery (Count 1) but did not vacate the consecutive 10 year sentence, with all but 5 years suspended, for use of a handgun (Count 5) and the consecutive sentence of 10 years, with all but 5 years suspended, for conspiracy (Count
JUDGMENTS AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.