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Scott v. State

Court of Special Appeals of Maryland

October 26, 2016

THEODORE SCOTT
v.
STATE OF MARYLAND

          Eyler, Deborah S., Wright, Rodowsky, Lawrence F. (Senior Judge, Specially Assigned), JJ.

          OPINION

          EYLER, DEBORAH S., J.

         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 (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.

         For Scott's attempted armed robbery conviction, the State sought a mandatory minimum sentence of 25 years, without parole, for a third crime of violence, under Md. Code (2002, 2012 Repl. Vol.), section 14-101(d) of the Criminal Law Article ("CL"). The two predicate convictions for crimes of violence were Scott's prior conviction for first degree assault in Maryland[1] and his prior conviction for aggravated assault in the Superior Court for the District of Columbia ("the D.C. conviction"). The D.C. conviction resulted from a guilty plea.

         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." D.C. Code 22-404.01(a)(1)-(2). The first modality of aggravated assault is virtually identical to the Maryland crime of first degree assault, which, as noted, is a "crime of violence" under CL section 14-101(a)(19). The second modality is similar to the Maryland crime of reckless endangerment, which is not a "crime of violence" under that statute.

         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 CL section 14-101(d). On that basis, it imposed the mandatory minimum sentence of 25 years' imprisonment, without parole, for attempted armed robbery. In addition, it sentenced Scott to 10 years, with all but 5 years suspended, for use of a handgun, to be served consecutively to the sentence for attempted armed robbery, and 10 years, all but 5 years suspended, for conspiracy, to be served consecutively to the sentence for use of a handgun.

         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 CL section 14-101(a), and therefore to establish that his attempted armed robbery conviction was for a third crime of violence. We agreed and vacated the sentence for attempted armed robbery, explaining:

[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 CL. § 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 Rule 8-604(d)(2), we remanded the case "for resentencing."

         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 CL section 14-101(d), based on the same two prior convictions. This time, the State moved into evidence the transcript of the guilty plea hearing that led to Scott's D.C. conviction. Scott objected, arguing that, having failed to introduce legally sufficient evidence to prove that the D.C. conviction was for a crime of violence at the original sentencing, the State was prohibited, by principles of double jeopardy, from introducing evidence to prove the same thing on remand.

         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 CL section 14-101(a) and imposed the mandatory sentence of 25 years' imprisonment, without parole, for attempted armed robbery, under CL section 14-101(d). The court did not resentence Scott on the use of a handgun and conspiracy convictions.

         Scott noted this appeal, presenting four questions, which we have rephrased:

I. 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?
II. Did the resentencing court exceed the scope of its authority under this Court's remand order?
III. Did the resentencing court err by ruling the evidence legally sufficient to prove that the D.C. conviction was for a crime of violence?
IV. 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. conviction was for a crime of violence, Scott contends the State was barred by the Double Jeopardy Clause of the Fifth Amendment from introducing new evidence at resentencing to prove that the D.C. conviction was for a crime of violence. He relies primarily on Bowman v. State, 314 Md. 725 (1989).

         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 (1998), and Monge v. California, 524 U.S. 721 (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[.]" U.S. Const. amend V. That right, applicable to the states through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784 (1969), protects criminal defendants from successive prosecution for the same offense and cumulative punishment for the same offense. Farrell v. State, 364 Md. 499, 504 (2001); see also Randall Book Corp. v. State, 316 Md. 315, 323 (1989) ("The Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense.").

         As long ago as United States v. Ball, 163 U.S. 662 (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 (1964) (allowing retrial of an offense after conviction was reversed on collateral attack). In Ball, the reversal on appeal was for trial court error. As the Court later explained in Burks v. United States, 437 U.S. 1, 14-15 (1978), however, the cases that arose after Ball "generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency."

         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 (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.

Burks, 437 U.S. at 15. By contrast, "when a defendant's conviction has been overturned due to a failure of proof at trial . . . the prosecution cannot complain of prejudice for, it has been given one fair opportunity to offer whatever proof it could assemble." Id. at 16 (footnote omitted). The Court emphasized that a reversal for legally insufficient evidence "means that the government's case was so lacking that it should not have even been submitted to the jury." Id. (emphasis in original).

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.

Id.

         Ten years later, in Lockhart v. Nelson, 488 U.S. 33, 40 (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. 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 convictions (in his case, four). The state introduced evidence of four prior convictions and the jury imposed an enhanced sentence. During that proceeding, the defendant testified that he had been pardoned for one of his prior convictions, but then agreed that his sentence on that conviction merely had been commuted.

         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.

         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 section 643B(c) of Article 27 of the Maryland Code, the predecessor statute to CL section 14-101(d). It relied upon two D.C. convictions for the predicate crimes of violence. The prosecutor and the sentencing judge were under the mistaken belief that the D.C. convictions both were for armed robbery. In fact, one was for armed robbery and the other was for robbery. In D.C., robbery is a statutory offense that can be committed a number of ways, some of which would be a crime of violence within the meaning of CL section 14-101(a) and others of which would not (for example, pickpocketing). Although the prior robbery conviction could have resulted from a modality of perpetration that was a crime of violence, there was no evidence introduced at sentencing to show that it was. The Court of Appeals concluded that the evidence presented at sentencing was legally insufficient to support a finding that the defendant had committed two prior crimes of violence, and therefore the trial court had erred by imposing the mandatory 25 year sentence without parole under section 643(c).

         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 (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.[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. "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 ...


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