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Johnson v. State

Court of Special Appeals of Maryland

July 1, 2015

JARMAL JOHNSON
v.
STATE OF MARYLAND

Meredith, Berger, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

OPINION

BERGER, J.

Jarmal Johnson, appellant, appeals from the denial, by the Circuit Court for Baltimore City, of his motion to revise his sentences under Md. Rule 4-345(b) due to fraud, mistake, or irregularity. For the reasons stated herein, we affirm.

FACTS AND PROCEEDINGS

In March 1992, police officers executed a search and seizure warrant at an apartment on Baker Street in Baltimore City. When the officers entered the premises, Johnson fired an automatic weapon in their direction. After firing several rounds, Johnson's gun jammed. His attempts to clear the jam were unsuccessful, yet Johnson refused to obey a command to put the gun down until the officers fired shots near his feet.

The police seized large amounts of heroin and cocaine from the apartment. Based on this incident, in one indictment (case number 192099061), Johnson was charged with attempted murder, common law assault, unlawful wearing, carrying, or transporting a handgun, and use of a handgun in the commission of a felony or crime of violence. In another indictment (case number 192099071), Johnson was charged with various controlled dangerous substance ("CDS") offenses.

In September 1992, following a jury trial on the above referenced charges, in case number 192099061 Johnson was acquitted of attempted murder, but found guilty of one count of assault with intent to murder, common law assault, and the two handgun offenses. In case number 192099071, the jury found Johnson guilty of possession of heroin with intent to distribute, possession of heroin, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to possess heroin with intent to distribute, conspiracy to possess cocaine with intent to distribute, and wearing, carrying, and transporting a firearm in relation to drug trafficking.

The following month, in an unrelated case (case number 192092011), another jury sitting in the Circuit Court for Baltimore City convicted Johnson of second-degree murder and the use of a handgun in the commission of a crime of violence. The same judge presided over both trials.

On October 28, 1992, Johnson was sentenced in all three cases. In case number 192099061, the court imposed a sentence of thirty years' imprisonment for assault with intent to murder and a consecutive twenty years for use of a handgun in the commission of a felony or crime of violence. The remaining convictions in that case merged for sentencing purposes.

In case number 192099071, Johnson was sentenced to twenty years' of imprisonment for the drug trafficking firearm offense, to run concurrently with the handgun sentence imposed in case number 192099061; sentenced to twenty years for possession of heroin with intent to distribute, to run consecutive to the handgun sentence imposed in case number 192099061; sentenced to twenty years for possession of cocaine with intent to distribute, to run consecutive to the sentence for possession of heroin with intent to distribute; and sentenced to twenty years for the conspiracy counts (which the court merged), to run consecutive to the sentence for possession of cocaine with intent to distribute.

In case number 192092011, Johnson was sentenced to thirty years' of imprisonment for second-degree murder, to run consecutive to all the other sentences imposed, and to twenty years for the handgun conviction, to run consecutive to the sentence for second-degree murder. The total aggregate sentence was 160 years of imprisonment.

In 2008, Johnson filed a motion to correct an illegal sentence under Md. Rule 4-345(a) claiming that his sentence for assault with intent to murder was illegal because that specific offense was not included in the indictment. Ultimately, the Court of Appeals agreed with Johnson and vacated his conviction and sentence for assault with intent to murder. Johnson v. State, 427 Md. 356, 380 (2012). The Court refused, however, to also vacate Johnson's conviction for the use of a handgun in the commission of a felony or crime of violence, observing that "the record shows the factual and legal predicate" for that offense. Id.

In 2014, Johnson filed a pro se motion, pursuant to Md. Rule 4-345(b), requesting that the circuit court exercise it revisory power over his sentences due to fraud, mistake, or irregularity.[1] Specifically, he claimed that his "trial and decision making was impaired" by the "illegal conviction" for assault with intent to murder and that the sentencing court impermissibly relied upon that offense in imposing the balance of his sentences. Johnson requested a new trial, a new sentencing hearing, and "new plea agreement offer." The circuit court denied the motion, prompting this appeal.

DISCUSSION

I. The State's Motion to Dismiss

The State initially asserts that the denial of Johnson's motion to revise his sentences under Rule 4-345(b) is not an appealable order and, therefore, it moves to dismiss this appeal. Specifically, the State contends that a motion to revise a sentence on the ground of fraud, mistake, or irregularity "has a statutory basis" in Md. Code (1974, 2013 Repl. Vol.), § 6-408 of the Courts and Judicial Proceedings Article ("CJP"). Further, Md. Code (2001, 2008 Repl. Vol., 2014 Supp.), § 7-107(b)(1) of the Criminal Procedure Article ("CP"), which is part of the Uniform Postconviction Procedure Act, bars an appeal in "a case in which a person challenges the validity of confinement under a sentence of imprisonment . . . by invoking a common law or statutory remedy other than" the Postconviction Procedure Act. Therefore, the State maintains that "a defendant may appeal from the denial of a claim of 'fraud, mistake, or irregularity' in his sentence only if raised under" that Act. As a result, according to the State, because Johnson did not pursue his claim of "fraud, mistake, or irregularity" in a post-conviction proceeding, the instant appeal is barred by the Postconviction Procedure Act. We disagree.

Contrary to the State's assertion, the subsection of the rule invoked by appellant, Rule 4-345(b), is not a "statutory remedy." The statute cited by the State as a "source" of Rule 4-345(b), that is, CJP § 6-408, was not even enacted until years after the Maryland Rules provided that a court retains revisory power over criminal judgments in case of fraud, mistake, or irregularity. Whereas CJP § 6-408 was first enacted in 1977, [2] see 1977 Md. Laws, ch. 271 at 1940-41, long before then, the Maryland Rules pertaining to criminal cases contained a similar provision:[3]

For a period of ninety (90) days after the imposition of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming part of the proceedings. The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence. After the expiration of such period, the court shall have revisory power and control only in case of fraud, mistake or irregularity.

Md. Rule 764 b (1961).

It is clear, therefore, that CJP § 6-408 was not the "source" of a court's revisory power over a judgment, in either a criminal or a civil case. In Bereska v. State, 194 Md.App. 664, 680-81 (2010), we explained that the source of a court's revisory power over a judgment was its "inherent" power to do so, a power which, at common law, "terminated at the end of the term in which the particular judgment was entered." Id. at 682. Although the time during which a circuit court retains revisory power over its judgments has since been amended by rule, id. at 681-82, the source of a court's revisory power has not changed.

In State v. Kanaras, 357 Md. 170 (1999), the State presented a similar argument in a related context in an appeal taken from the denial of a motion to correct an illegal sentence. The Court of Appeals expressly rejected the State's argument, holding that:

"[A] motion to correct an illegal sentence is not a 'statutory' remedy. Statutes are enacted by the General Assembly of Maryland. The Maryland Rules are adopted by the Court of Appeals. As the Wilson[4] court noted, the Maryland Constitution does provide that rules adopted by the Court 'shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.' Maryland Constitution, Art. IV, ยง ...

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