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Scott v. State

Court of Appeals of Maryland

July 10, 2017

THEODORE SCOTT
v.
STATE OF MARYLAND

          Argued: May 5, 2017

         Circuit Court for Prince George's County Case No. CT120132A

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Watts, J.

         Both the Fifth Amendment to the Constitution of the United States and the common law of Maryland provide for a prohibition on double jeopardy. A plea of autrefois acquit is a common-law plea in which a defendant alleges to have been previously acquitted of an offense, and, as a result, that he or she may not be tried again. See Scriber v. State, 437 Md. 399, 403, 86 A.3d 1260, 1262 (2014).[1] Under a valid plea of autrefois acquit, the State cannot reprosecute a defendant after an acquittal. The doctrine of collateral estoppel is a common-law doctrine that, in a criminal case, prohibits "the relitigation of an issue of ultimate fact that has been decided in a defendant's favor." Scriber, 437 Md. at 403, 86 A.3d at 1262. Under the doctrine of collateral estoppel, the State cannot relitigate an issue of fact that has been decided in a defendant's favor.

         This case requires us to determine whether a plea of autrefois acquit or the doctrine of collateral estoppel bars a trial court from imposing at resentencing an enhanced sentence based on a prior conviction for a crime of violence after the trial court has previously imposed an enhanced sentence based on the same prior conviction, and an appellate court vacated the enhanced sentence due to insufficient evidence of the prior conviction.

         In the Circuit Court for Prince George's County ("the circuit court"), a jury found Theodore Scott ("Scott"), Petitioner, guilty of, among other crimes, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit robbery with a dangerous weapon. The State contended that Scott was subject to Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) ("CR") § 14-101(d), which provided for an enhanced sentence for a defendant who was convicted of a third crime of violence after having been convicted of two crimes of violence.[2] At sentencing, the prosecutor offered certified copies of two prior convictions pertaining to Scott, a first-degree assault in Maryland and an aggravated assault in the District of Columbia, as well as the statement of charges for the aggravated assault. The circuit court found that Scott had two prior convictions for crimes of violence, and imposed an enhanced sentence of twenty-five years of imprisonment, without the possibility of parole, for attempted robbery with a dangerous weapon. The circuit court imposed a sentence of ten years of imprisonment, with all but five years suspended, followed by five years of supervised probation, for use of a handgun in the commission of a crime of violence, consecutive to the sentence for attempted robbery with a dangerous weapon, and a sentence of ten years of imprisonment, with all but five years suspended, for conspiracy to commit robbery with a dangerous weapon, consecutive to the other two sentences.

         The Court of Special Appeals vacated the twenty-five-year sentence for attempted robbery with a dangerous weapon and remanded for resentencing, concluding that the evidence was insufficient to support the circuit court's determination that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under CR § 14-101(a). The Court of Special Appeals did not vacate the sentences for use of a handgun in the commission of a crime of violence and conspiracy to commit robbery with a dangerous weapon, which the circuit court had imposed consecutively.

         On remand, the State sought to have the circuit court reimpose the enhanced sentence for attempted robbery with a dangerous weapon. Scott opposed the State's attempt to seek an enhanced sentence, contending that the imposition of such a sentence would violate the prohibition on double jeopardy. At the resentencing proceeding, the circuit court admitted into evidence a transcript of Scott's guilty plea for aggravated assault in the District of Columbia, and again found that Scott had two prior convictions for crimes of violence. The circuit court again sentenced Scott to twenty-five years of imprisonment for attempted robbery with a dangerous weapon.

         Scott's counsel requested that the circuit court make the new sentence for attempted robbery with a dangerous weapon concurrent with the two existing sentences. The circuit court responded that it lacked the discretion to do so. As such, the circuit court reimposed the enhanced sentence for attempted robbery with a dangerous weapon, with the sentences for use of a handgun in the commission of a crime of violence and conspiracy to commit robbery with a dangerous weapon remaining ordered to be served consecutively.

         Before us, Scott contends that the circuit court violated the principles of autrefois acquit and collateral estoppel by readjudicating the issue of whether he had the requisite prior convictions for an enhanced sentence. Additionally, Scott argues that the circuit court erred in concluding that it lacked the discretion to impose the new sentence for attempted robbery with a dangerous weapon to be concurrent with the two existing sentences.

         An examination of the Supreme Court's and this Court's case law leads to the conclusion that, where an appellate court determines that the evidence was insufficient to establish a requisite prior conviction as a basis for an enhanced sentence and vacates the enhanced sentence, the appellate court's determination does not preclude a trial court from determining at resentencing that the same prior conviction satisfies the requirement for an enhanced sentence.

         We hold that: (I) where an appellate court vacates an enhanced sentence due to insufficient evidence of a requisite prior conviction, neither the plea of autrefois acquit nor the doctrine of collateral estoppel bars a trial court from imposing an enhanced sentence at resentencing based on the same prior conviction; and (II) where an appellate court vacates a sentence to which another sentence has been ordered to be consecutive and remands for resentencing without vacating the consecutive sentence, the trial court may not make the new sentence concurrent with the non-vacated consecutive sentence.

         BACKGROUND

         Charges and Trial

         The State charged Scott with attempted robbery with a dangerous weapon, attempted robbery, first- and second-degree assault, use of a handgun in the commission of a crime of violence, wearing or carrying a handgun, and conspiracy to commit robbery with a dangerous weapon.

         At trial, as a witness for the State, Detective Stephen Johnson of the Prince George's County Police Department testified that, on December 23, 2011, at approximately 8 p.m., he and another detective began surveilling the 7-Eleven at 2310 Varnum Street in Mount Rainier from an unmarked police vehicle in an adjacent parking lot. Shortly after 2 a.m. on December 24, 2011, two men walked to the side of the 7-Eleven, spoke to each other, and pulled ski masks over their heads. The taller of the two men pulled out a silver handgun, and the shorter man pulled out a black handgun. The men ran to the front of the 7-Eleven and pulled on the front door handles, but the front door was locked. The men pointed the handguns at the employees inside the 7-Eleven, but the employees did not unlock the front door. The shorter man ran toward the back of the 7-Eleven, and the taller man ran through the parking lot, turned onto Russell Avenue, and got into the front passenger seat of a vehicle whose engine was running. The detectives and other law enforcement officers chased the vehicle until it ultimately crashed in the District of Columbia.

         Detective Johnson provided a description of the shorter man to another detective. Later, Detective Johnson learned that a patrol unit had stopped someone who matched the shorter man's description at 2208 Queens Chapel Road, which is on the street that is directly behind the 7-Eleven. At trial, Detective Johnson identified Scott as the shorter man who had attempted to enter the 7-Eleven with a black handgun.

         A jury found Scott guilty of all charges.[3]

         Original Sentencing Proceeding

         After trial, but before the sentencing proceeding, the State filed a Notice of Enhanced Penalty (Crime of Violence), contending that Scott was subject to a mandatory minimum sentence of twenty-five years of imprisonment, without the possibility of parole, under CR § 14-101(d). According to the State, Scott had been convicted of two prior crimes of violence: first-degree assault in Maryland, and aggravated assault in the District of Columbia.[4] The District of Columbia conviction resulted from a guilty plea.

         Scott filed a motion to strike the notice of enhanced penalties, contending that the conviction for aggravated assault in the District of Columbia did not constitute a conviction for a crime of violence under CR § 14-101(a). Specifically, Scott argued that the elements of aggravated assault under District of Columbia law were not the same as the elements of first-degree assault under Maryland law. Scott pointed out that, although first-degree assault is identified as a crime of violence under CR § 14-101(a)(19), CR § 14-101(a) does not include aggravated assault in its list of crimes of violence. Additionally, Scott maintained that CR § 14-101(a) does not provide that a conviction in another jurisdiction is to be considered a qualifying conviction if it is based on conduct that would have been a crime of violence if the defendant had committed it in Maryland. Scott did not dispute that he had been convicted of a separate first-degree assault offense in Maryland.

         At the sentencing proceeding, after the State offered certified copies of Scott's prior convictions, the circuit court continued the sentencing proceeding to engage in additional research. When the sentencing proceeding resumed, the prosecutor argued that, contrary to Scott's position, a conviction in another jurisdiction is a qualifying prior conviction under CR § 14-101(d) if the conviction is based on conduct that would have been a crime of violence if the defendant had committed it in Maryland. To establish that the conviction for aggravated assault in the District of Columbia was based on conduct that would have been first-degree assault if Scott had committed the offense in Maryland, the prosecutor advised that the statement of charges from the District of Columbia indicated that Scott had stomped on a person's head until the person lost consciousness. The prosecutor argued that, by stomping a person into unconsciousness, Scott had caused serious physical injury, and engaged in conduct that would have been first-degree assault if it had occurred in Maryland.

         The circuit court determined that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under CR § 14-101(d). The circuit court sentenced Scott to: twenty-five years of imprisonment, without the possibility of parole, for attempted robbery with a dangerous weapon; ten years of imprisonment, with all but five years suspended, followed by five years of supervised probation, for use of a handgun in the commission of a crime of violence, consecutive to the sentence for attempted robbery with a dangerous weapon; and ten years of imprisonment, with all but five years suspended, for conspiracy to commit robbery with a dangerous weapon, consecutive to the other two sentences. The circuit court merged the remaining convictions for sentencing purposes.

         First Opinion of the Court of Special Appeals

         Scott noted an appeal. In an unreported opinion, the Court of Special Appeals affirmed the convictions, but vacated the sentence for attempted robbery with a dangerous weapon and remanded for resentencing. The Court of Special Appeals held that the State had failed to prove that the conviction for aggravated assault in the District of Columbia constituted a conviction for a crime of violence under CR § 14-101(d). The Court of Special Appeals concluded that the statement of charges for the aggravated assault did not constitute proof of the conduct that was the basis for the conviction because the facts given in support of the guilty plea may have been different from the facts in the statement of charges. The Court of Special Appeals determined that a remand for resentencing was warranted, relying on Maryland Rule 8-604(d)(2), which states: "In a criminal case, if the appellate court reverses the judgment for error in the sentence or sentencing proceeding, the Court shall remand the case for resentencing." The Court of Special Appeals's mandate stated, in pertinent part: "SENTENCE ON COUNT 1 [(ATTEMPTED ROBBERY WITH A DANGEROUS WEAPON)] VACATED AND THE CASE IS REMANDED FOR RESENTENCING. ALL JUDGMENTS OTHERWISE AFFIRMED."

         Resentencing Proceeding

         On remand, in a letter to Scott's counsel that was filed with the circuit court, the prosecutor advised that the State again intended to request an enhanced sentence, and attached the transcript of Scott's guilty plea proceeding in the District of Columbia.[5]

         Scott filed a Response to Notice of Enhanced Penalties, contending that the conviction for aggravated assault in the District of Columbia did not constitute a conviction for a crime of violence under CR § 14-101(d) because the statement of facts at Scott's guilty plea proceeding did not establish that Scott intentionally caused injury to the victim. Scott also argued that the Double Jeopardy Clause and the prohibition on double jeopardy under the common law of Maryland barred the State from seeking an enhanced sentence on remand.

         At the resentencing proceeding, the circuit court admitted into evidence the transcript of Scott's guilty plea proceeding in the District of Columbia, and determined that the conviction for aggravated assault was the equivalent of a conviction for first-degree assault under CR § 14-101(a), i.e., a crime of violence.

         As to whether the enhanced sentence for attempted robbery with a dangerous weapon would be imposed consecutive to or concurrent with the two existing sentences, the following exchange occurred:

[PROSECUTOR]: Your Honor, just before you hear from [Scott], Counts 5 [(use of a handgun in the commission of a crime of violence)] and 7 [(conspiracy to commit robbery with a dangerous weapon)] 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 [twenty-five] mandatory without parole[, which was for Count 1 (attempted robbery with a dangerous weapon)].
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 the Count 1.
[SCOTT'S COUNSEL]: The Court is here sentencing -- the Court can make Count 1 consecutive [to] or concurrent [with] 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.
[SCOTT'S 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, concur rent [with] 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, [Scott's counsel], but I'll hear from [] Scott as to how he feels or what he wants to say at this point.
[SCOTT'S 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.

         Following this exchange, the circuit court reimposed the original enhanced sentence for attempted robbery with a dangerous weapon-twenty-five years of imprisonment without the possibility of parole. The circuit court noted that the other "sentence[s] remain[ed] the same."

         Second Opinion of the Court of Special Appeals

         Scott noted an appeal. The Court of Special Appeals affirmed the circuit court's judgment, holding that,

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 [does not] bar[] the State from introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence.

Scott v. State, 230 Md.App. 411, 450, 416, 148 A.3d 72, 95, 75 (2016). The Court acknowledged that its "holding [wa]s at odds with" Bowman v. State, 314 Md. 725, 740, 552 A.2d 1303, 1310 (1989), in which this Court held that the State could not seek an enhanced sentence on remand where an enhanced sentence was vacated due to insufficient evidence of qualifying prior convictions. Scott, 230 Md.App. at 416, 148 A.3d at 75. The Court of Special Appeals concluded that "Bowman was based solely on an analysis of federal constitutional double jeopardy law that the [] Supreme Court has since rejected" in Monge v. California, 524 U.S. 721, 734 (1998), in which the Court held "that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context." Scott, 230 Md.App. at 416, 430, 148 A.3d at 75, 83.

         The Court of Special Appeals explained that, in Monge, the Supreme Court extended the holding of Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), to resentencing proceedings. See Scott, 230 Md.App. at 426, 148 A.3d at 81. The Court of Special Appeals noted that, in Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held that the Constitution did not require the government to charge a defendant with being subject to an enhanced sentence due to a qualifying prior conviction because the use of a prior conviction for sentence enhancement purposes is not the same as establishing an element of an offense. See Scott, 230 Md.App. at 425, 148 A.3d at 80-81. The Court of Special Appeals concluded that, in light of Monge, "a failure of proof on sentencing is [] not an acquittal (or the functional equivalent of an acquittal) of the sentence that was imposed or any greater sentence under the principle of autrefois acquit." Scott, 230 Md.App. at 435-36, 148 A.3d at 86-87. Before the Court of Special Appeals, Scott contended that, in the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court indicated that it would someday overrule Almendarez-Torres and Monge. See Scott, 230 Md.App. at 428 n.4, 148 A.3d at 82 n.4. In Apprendi, 530 U.S. at 490, 489, the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[, ]" and stated that "it is arguable that Almendarez-Torres was incorrectly decided[.]" (Footnote omitted). In response to Scott's contention concerning Apprendi, the Court of Special Appeals stated: "Quite apart from the fact that we must take Supreme Court law as it is, not as it might become, we note that the Apprendi Court acknowledged the continued validity of Monge and Almendarez-Torres as applied to subsequent offender sentencing statutes." Scott, 230 Md.App. at 428 n.4, 148 A.3d at 82 n.4 (citing Apprendi, 530 U.S. at 488 n.14).

         Concerning the doctrine of collateral estoppel, the Court of Special Appeals concluded that the doctrine "applies when there has been a factual finding favorable to the defendant that is central to his [or her] criminal liability for an offense[, ]" and that "[t]he doctrine has never been extended to apply to sentencing." Scott, 230 Md.App. at 439, 148 A.3d at 89. The Court of Special Appeals explained that, even if the doctrine of collateral estoppel applied to sentencing, the circuit court had not made a final adjudication, as a matter of fact, that the aggravated assault in the District of Columbia was not a crime of violence. See id. at 439, 148 A.3d at 89.

         The Court of Special Appeals held that Scott had failed to preserve for appellate review his contention that the circuit court erred in not making the two existing sentences concurrent with the new sentence for attempted robbery with a dangerous weapon. See id. at 444-46, 148 A.3d at 92-93. Specifically, the Court of Special Appeals observed that, in the circuit court, Scott had asked that the new sentence for attempted robbery with a dangerous weapon be imposed concurrent with the two existing sentences, as opposed to having requested that the two existing sentences be made concurrent with the new sentence. See id. at 444-46, 148 A.3d at 92-93. The Court of Special Appeals concluded that the propriety of the two existing sentences having been imposed consecutively was not before the circuit court on remand because those sentences had not been vacated. See id. at 450, 148 A.3d at 95.[6]

         Petition for a Writ of Certiorari

         Scott petitioned for a writ of certiorari, which this Court granted, see Scott v. State, 451 Md. 579, 155 A.3d 434 (2017), raising the following four issues:

1. Where the State fails to prove the existence of a prior conviction for purposes of imposing a mandatory sentence pursuant to [CR] § 14-101, is the State barred from attempting to prove the prior conviction on remand for resentencing under the Double Jeopardy Clause of the Fifth Amendment and/or the Maryland common law prohibition against double jeopardy?
2. If the answer to Question 1 is yes, did the Court of Special Appeals err in holding that the State was not barred from attempting to prove the existence of a prior conviction of [Scott] on remand for resentencing?
3. Where [Scott] was originally sentenced to a mandatory term of twenty-five years without parole on Count 1 [(attempted robbery with a dangerous weapon)], to ten years with all but five years suspended on Count 5 [(use of a handgun in the commission of a crime of violence)], consecutive to Count 1, and to ten years with all but five years suspended on Count 7 [(conspiracy to commit robbery with a dangerous weapon)], consecutive to Count 5, and the Court of Special Appeals vacated Count 1 and remanded for resentencing, did the [circuit] court err at resentencing in concluding that it did not have discretion to make the sentence on Count 1 run concurrent with the sentences on Count 5 and Count 7 (without changing the consecutive nature of Counts 5 and 7 to each other)?
4. Did the Court of Special Appeals err in holding that the issue in Question 3 was not preserved?

         DISCUSSION

         I. ...


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