Court for Somerset County Case No. 19-K-83-004010
Woodward, C.J., Leahy, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
1983, Anthony Grandison, appellant, for a fee of $9, 000,
hired his friend, Vernon Lee Evans, to murder Scott
Piechowicz and his wife, Cheryl Piechowicz, to prevent them
from testifying against him in a then-pending criminal trial
in the United States District Court for the District of
Maryland. Grandison v. State, 305 Md. 685, 697,
cert. denied, 479 U.S. 873, and reh'g
denied, 479 U.S. 1001 (1986). Pursuant to their unlawful
agreement, Evans succeeded in murdering Scott Piechowicz but
failed in killing Cheryl Piechowicz, instead murdering her
sister, Susan Kennedy, by mistake. Id.
that year, Grandison, Evans, and two others were tried in the
United States District Court for the District of Maryland on
charges of conspiracy to violate civil rights resulting in
death, in violation of 18 U.S.C. § 241, and witness
tampering, in violation of 18 U.S.C. § 1512. United
States v. Grandison, 780 F.2d 425, 428 (4th Cir. 1985),
vacated sub nom. Kelly v. United States, 479 U.S.
1076 (1987), aff'd on remand, 885 F.2d 143 (4th
Cir. 1989), cert. denied, 495 U.S. 934 (1990). All
four defendants were convicted of both charges, id.,
and Grandison, in particular, was sentenced to life
imprisonment and a consecutive term of ten years'
imprisonment. Grandison, 305 Md. at 698.
following year, after removal of the Maryland case to
Somerset County at Grandison's request,  he was convicted, by a
jury sitting in the Circuit Court for Somerset County, of
conspiracy to murder, two counts of first-degree murder, and
use of a handgun in the commission of a crime of violence.
Id. He was thereafter sentenced, by the jury, to
death sentences for both first-degree murders, and the court
imposed a sentence of "life imprisonment for the
conspiracy conviction and twenty years for the handgun
violation consecutive to the life sentence."
Id. Both of the latter sentences "were imposed
to run consecutively to the life plus ten years sentence
previously imposed in the federal case." Id.
subsequently filed a post-conviction petition, in the Circuit
Court for Somerset County, and, in 1992, that court, relying
upon the Supreme Court's decision in Mills v.
Maryland, 486 U.S. 367 (1988),  vacated his death sentences but
otherwise denied his claims. Grandison v. State, 341
Md. 175, 194 (1995), cert. denied, 519 U.S. 1027
(1996), and reh'g denied, 519 U.S. 1143 (1997).
At resentencing, a jury in Somerset County reimposed the two
death sentences for the murders of Scott Piechowicz and Susan
thereafter lodged repeated challenges, in both state and
federal court, to those sentences, finally gaining a
temporary reprieve when, in 2006, the Court of Appeals
enjoined the State from carrying out the death penalty
against his co-defendant, Evans, because the protocols
governing the method of administering that penalty, lethal
injection, had been adopted, held the Court, in a manner that
violated the Maryland Administrative Procedure Act. Evans
v. State, 396 Md. 256, 344-46, 350 (2006), cert.
denied, 552 U.S. 835 (2007).
injunction was to remain in effect until new protocols were
promulgated in accordance with the Maryland Administrative
Procedure Act, id. at 350, but such new protocols
were never promulgated. See Fiscal and Policy Note
(Revised), S.B. 276, at 3-5 (2013). Instead, the General
Assembly repealed the death penalty in 2013. 2013 Md. Laws,
ch. 156, § 3. Meanwhile, on June 6, 2013, Grandison
filed, in the Circuit Court for Somerset County, the first of
two motions to correct an illegal sentence (which he
supplemented several times) that are the subject of the
present appeals. Following two hearings, the circuit court,
on November 13, 2014, issued a memorandum opinion and order
granting relief, at the State's own concession, on a
single claim-that the twenty-year sentence imposed for use of
a handgun in the commission of a crime of violence was
illegal, because, at the time Grandison committed that
offense, its maximum penalty was fifteen years'
Accordingly, the circuit court vacated Grandison's
twenty-year sentence for that crime and imposed a
fifteen-year term of imprisonment, consecutive to his life
sentence for conspiracy as well as to Grandison's federal
sentences. But it denied all of his other claims. Grandison
noted a timely appeal from that order, raising the following
I. Did the circuit court abuse its discretion in ruling
appellant's convictions for first degree murder did not
merge with his conviction for use of a handgun in the
commission of [ ] a felony or crime of violence under the
required evidence test?
II. Did the circuit court abuse its discretion in holding a
motion to correct illegal sentence is not the appropriate
forum to consider appellant's allegations his sentences
are illegal under the Bartkus exception to dual
III. Did the circuit court abuse its discretion in holding
the jury was properly hearkened since a mere hearkening of
counts of an indictment without specifying the offense does
not constitute a hearkening of the verdict as to first degree
murder or any other offense?
IV. Did the circuit court abuse its discretion in ruling
after vacating sentence under Mills the court had
the authority to resentence and there was no legal
requirement the resentencing jury announce their findings in
open court or requirement to poll or hearken their findings?
V. Did the circuit court abuse its discretion in imposing the
fifteen year sentence for use of a handgun in the commission
of a felony or crime of violence consecutive to
Grandison's federal sentences of life plus ten years
after the federal authorities made those sentences run
concurrent with the State sentences?
in 2015, Governor Martin O'Malley, exercising his pardon
power, commuted Grandison's death sentences to sentences
of life imprisonment without the possibility of parole.
Executive Order 01.01.2015.05 (Jan. 20, 2015). Thereafter,
Grandison filed, in the Circuit Court for Somerset County, a
second motion to correct an illegal sentence. The circuit
court subsequently issued a written memorandum opinion and
order denying that motion. Grandison noted a timely appeal
from that order, raising two question for review, which we
have slightly rephrased as follows:
I. Did the circuit court abuse its discretion in denying
appellant's motion to correct illegal sentence in holding
that the former Governor had authority under Maryland
Constitution, Art. II, § 20 to sua sponte
exercise executive powers to commute Grandison's death
sentences to life imprisonment without the possibility of
parole without an application having been made seeking
II. Did the circuit court abuse its discretion in holding
that the former Governor's commutation of his sentences
of death to life imprisonment without the possibility of
parole did not violate Art. 17 of the Maryland Declaration of
Rights, which prohibits ex post facto laws in
Court's own motion, we consolidated these appeals.
Appeal No. 2039
claims that the circuit abused its discretion in ruling that
his convictions for first-degree murder did not merge with
his conviction for use of a handgun in the commission of a
felony or crime of violence under the required evidence test.
This claim is without merit.
the Court of Appeals held, in State v. Ferrell, 313
Md. 291, 297 (1988), that use of a handgun in the commission
of a felony or crime of violence and the predicate felony or
crime of violence are the same offense under the required
evidence test, that holding addressed a different
circumstance-whether the predicate offense and the handgun
offense could be tried in successive prosecutions.
Ferrell held that they could not be tried in
successive prosecutions. Id. Ferrell said nothing
about whether separate sentences may be imposed for those
crimes if they are brought in the same trial.
question before us was squarely addressed by the Supreme
Court in Missouri v. Hunter, 459 U.S. 359
(1983). There, the Court held:
Where, as here, a legislature specifically authorizes
cumulative punishment under two statutes, regardless of
whether those two statutes proscribe the "same"
conduct under Blockburger,  a court's task of statutory
construction is at an end and the prosecutor may seek and the
trial court or jury may impose cumulative punishment under
such statutes in a single trial.
Id. at 368-39.
time the offenses at issue were committed, the statute
proscribing unlawful use of a handgun stated as follows:
Unlawful use of handgun in commission of crime. -
Any person who shall use a handgun in the commission of any
felony or any crime of violence as defined in § 441 of
this article, shall be guilty of a separate misdemeanor and
on conviction thereof shall, in addition to any other
sentence imposed by virtue of commission of said felony or
misdemeanor . . . be sentenced to the Maryland Division of
Md. Code (1957, 1982 Repl. Vol., Supp. 1982), Art. 27, §
manifest that the General Assembly intended that a separate
sentence be imposed upon any person convicted of a violation
of Section 36B(d), "in addition to any other sentence
imposed by virtue of commission of said felony or
misdemeanor." Id.; see, e.g.,
Whack v. State, 288 Md. 137, 145-49 (1980) (holding
that separate sentences may be imposed for a violation of
Section 36B(d) and the predicate offense, where both
convictions were the result of the same act, so long as the
charges are brought in a single trial), cert.
denied, 450 U.S. 990 (1981). Given that unambiguous
expression of legislative intent, and the Supreme Court's
instruction in Missouri v. Hunter, it is clear that
Grandison's claim fails.
noted earlier, Grandison was prosecuted in both federal and
Maryland courts, in the former for conspiracy to murder the
witnesses in a prior federal narcotics trial and in the
latter for, among other things, first-degree murder of those
same witnesses. He now complains that the Maryland
prosecution was a "sham, " essentially
indistinguishable from the federal prosecution, and that,
therefore, his Maryland sentences are illegal, under the
purported Bartkus exception to the dual sovereignty doctrine.
From that premise, Grandison concludes that the circuit court
abused its discretion in ruling that this claim was not
cognizable in a motion to correct an illegal sentence. To
understand this claim requires a brief digression into the
Supreme Court decision upon which Grandison relies,
Bartkus v. Illinois, 359 U.S. 121, reh'g
denied, 360 U.S. 907 (1959).
Bartkus, the defendant had been acquitted, in the
United States District Court for the Northern District of
Illinois, of robbery of a federally insured savings and loan
association. Id. at 121-22. Bartkus was thereafter
charged, in the Criminal Court of Cook County, Illinois, with
violation of a state robbery statute. Id. at 122.
"The facts recited in the Illinois indictment were
substantially identical to those contained in the prior
federal indictment." Id. Bartkus moved to
dismiss based upon double jeopardy, but the Illinois court
rejected that claim. Id. He was thereafter convicted
and sentenced to life imprisonment as a repeat offender.
Id. The Supreme Court of Illinois affirmed, as did
the United States Supreme Court, the latter holding that a
defendant may be prosecuted in both federal and state courts
for the same act without violating the Due Process Clause of
the Fourteenth Amendment, because, under the "dual
sovereignty" doctrine,  an act may be an offense against both the
state where it was committed as well as against the federal
Id. at 122, 136-39.
dictum, the Court observed that the record did not
"sustain a conclusion that the state prosecution was a
sham and a cover for a federal prosecution, and thereby in
essential fact another federal prosecution[, ]"
id. at 124, which would have been barred under the
Double Jeopardy Clause of the Fifth Amendment. See
id. at 123. Thereafter, some courts interpreted that
statement as expressing a narrow so-called
"Bartkus exception" to the dual
sovereignty doctrine, which bars a successive "sham
prosecution." See, e.g., United
States v. Guzman, 85 F.3d 823, 826 (1st Cir.) (observing
that "under very limited circumstances[, ] successive
prosecutions by separate sovereigns might transgress the
Double Jeopardy Clause"), cert. denied, 519
U.S. 1020 (1996); In re Kunstler, 914 F.2d 505, 517
(4th Cir. 1990) (noting that "a 'tool of the same
authorities' exception is possible in some circumstances,
" which "may only be established by proof that
State officials had little or no independent volition in
their proceedings"), cert. denied, 499 U.S. 969
(1991); United States v. Aboumoussallem, 726 F.2d
906, 910 (2d Cir. 1984) (noting that "a narrow exception
to the 'dual sovereignty' doctrine, carved out in
Bartkus v. Illinois, bars a second prosecution where
one prosecuting sovereign can be said to be acting as a
'tool' of the other, or where the second prosecution
amounts to a 'sham and a cover' for the first"
(internal citations omitted)).
courts, however, have questioned whether there even is such
an exception. See, e.g., United States
v. Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir.
1994) (declining to decide whether the "sham
prosecution" exception exists); United States v.
Brocksmith, 991 F.2d 1363, 1366 (7th Cir.) (stating that
"[w]e have questioned whether Bartkus truly
meant to create such an exception, and we have uniformly
rejected such claims"), cert. denied, 510 U.S.
999 (1993), and reh'g denied, 510 U.S. 1159
(1994); United States v. Raymer, 941 F.2d 1031, 1037
(10th Cir. 1991) (observing that "[a] possible exception
might exist"); United States v. Harrison, 918
F.2d 469, 474 (5th Cir. 1990) (noting that, although
"Bartkus does suggest that a state prosecution
may not be used as a cover and a tool for a federal
prosecution[, ]" the Court "did not define a clear
exception in that case").
event, even if we assume, arguendo, that the
Bartkus exception to the dual sovereignty doctrine
exists, the circuit court correctly concluded that such a
claim may not be raised in a Rule 4-345(a) motion. In
United States v. Liddy, 542 F.2d 76, 79 (D.C. Cir.
1976), the United States Court of Appeals for the District of
Columbia Circuit observed that the defendant's burden
"of establishing that federal officials are controlling
or manipulating the state processes is substantial[, ]"
namely, that he "must demonstrate that the state
officials had little or no independent volition in the state
proceedings." To prevail on such a claim would likely
require far more than Grandison's bald allegation and, in
the absence of an affidavit from the prosecution admitting to
such a scheme (a most unlikely occurrence), would require an
evidentiary hearing. But that would be entirely contrary to
the nature of a Rule 4-345(a) motion, which is focused on the
"narrow" category of sentences that are
"intrinsically and substantively unlawful, " not
those that may be beset by "some arguable procedural
flaw." Colvin v. State, 450 Md. 718, 725 (2016)
(internal quotation marks and citation omitted). Indeed,
"a motion to correct an illegal sentence is not[,
]" as Grandison would have it, "an alternative
method of obtaining belated appellate review of the
proceedings that led to the imposition of judgment and
sentence in a criminal case." State v. Wilkins,
393 Md. 269, 273 (2006).
such a claim were cognizable in a Rule 4-345(a) motion, we
would conclude that it is barred by the law of the case
doctrine. Prior to Evans's and Grandison's separate
1984 trials, both defendants filed motions to dismiss,
contending that Benton v. Maryland, 395 U.S. 784
(1969), which held that the Double Jeopardy Clause of the
Fifth Amendment was applicable to the states by virtue of the
Fourteenth Amendment, had effectively abrogated the dual
sovereignty doctrine, as articulated in Bartkus.
Evans v. State, 301 Md. 45, 49-50 (1984), cert.
denied, 470 U.S. 1034 (1985). The Court of Appeals
rejected that assertion and remanded for trials, which
resulted in convictions and sentences, which Grandison now
challenges. See id. at 51, 58. Here, however,
instead of disparaging Bartkus, Grandison relies
upon it as the basis for his claim.
the law of the case doctrine, "once an appellate court
rules upon a question presented on appeal, litigants and
lower courts become bound by the ruling, which is considered
to be the law of the case." Scott v. State, 379
Md. 170, 183 (2004). Moreover, "'[d]ecisions
rendered by a prior appellate panel will generally govern the
second appeal' at the same appellate level as well,
unless the previous decision is incorrect because it is out
of keeping with controlling principles announced by a higher
court and following the decision would result in manifest
injustice." Id. at 184 (quoting Hawes v.
Liberty Homes, 100 Md.App. 222, 231 (1994)). And, more
recently, in Holloway v. State, 232 Md.App. 272, 282
(2017), we observed that the law of the case doctrine
applies, not only to a claim that was actually decided in a
prior appeal, but also to any claim "that could have
been raised and ...