Garcia v. State

253 Md.App. 50

263 A.3d 175

Roger GARCIA

v.STATE of Maryland

No. 2355, Sept. Term, 2019

Court of Special Appeals of Maryland.

November 3, 2021

Argued by: John N. Sharifi, Assigned Public Defender (Law Offices of John N. Sharifi, LLC, on the brief), Rockville, MD, for Appellant.

Argued by: Daniel J. Jawor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Berger, Gould,^* Zic, JJ.

Zic, J.

In this criminal appeal, Roger Garcia, appellant, challenges the viability of a theory of murder: second-degree intent-to-kill murder based on accessory-before-the-fact accomplice liability. Following a jury trial, Mr. Garcia was convicted in the Circuit Court for Montgomery County of two counts of second-degree murder and two corresponding use of a firearm counts. He was sentenced to a total of 100 years of incarceration. Mr. Garcia then filed this appeal.

QUESTION PRESENTED

Mr. Garcia presents the following question for our consideration, which we have slightly rephrased¹ :

Is second-degree intent-to-kill murder based on accessory-before-the-fact accomplice liability a legally viable theory of murder?

For the reasons that follow, we answer that question in the affirmative and affirm the judgments of the circuit court.

BACKGROUND²

Mr. Garcia, along with three other individuals,³ were each charged in the murder of Shadi Najjar and Artem Ziberov. More specifically, Mr. Garcia was charged by indictment with two counts of first-degree murder (Counts 1 and 2), conspiracy to commit murder (Count 3), four counts of use of a firearm in the commission of a felony or crime of violence (Counts 4-7), and armed robbery (Count 8). On December 4, 2019, a jury trial commenced in the Circuit Court for Montgomery County.

After the close of evidence, the circuit court instructed the jury on, among other offenses, first-degree premeditated murder, second-degree intent-to-kill murder, second-degree grievous bodily harm murder, and accomplice liability. When providing the jury instruction on accomplice liability, the court specifically noted that Mr. Garcia could be found guilty of first-degree murder, second-degree murder, and use of a firearm as an accomplice.

The State entered a nolle prosequi on Count 7 of the indictment on December 11, 2019. Subsequently, the jury rendered its verdict. Mr. Garcia was acquitted of both counts of first-degree premeditated murder and first-degree felony murder, conspiracy to commit murder, armed robbery, and the corresponding use of a firearm count. He was convicted of two counts of second-degree murder and the corresponding firearm counts. The verdict sheet did not specify the type of second-degree murder on which he was convicted.

On January 10, 2020, Mr. Garcia was sentenced to 30 years of incarceration for each murder count and 20 years for each corresponding firearm count, each to be served consecutively. This appeal followed.

DISCUSSION

Mr. Garcia argues that his murder sentences are illegal under Rule 4-345(a), which is discussed below, because the underlying convictions may have been based on a legally impossible theory of murder—second-degree intent-to-kill murder based on accessory-before-the-fact accomplice liability. More specifically, he argues that an accessory before the fact who personally harbors an intent to kill and provides aid before the killing is necessarily guilty of deliberation and premeditation and thus cannot be convicted of "second degree unpremeditated intent to kill murder." Rather, an "accessory before the fact to an intent to kill murder ... is guilty of first degree premeditated murder." Consequently, Mr. Garcia claims that his murder convictions and the resulting sentences must be vacated because the jury was asked to consider this legally impossible theory of murder, even though the jury was also presented with legally viable theories. He similarly argues that the corresponding firearm convictions and the resulting sentences must be vacated as they are predicated on the invalid murder convictions. Mr. Garcia urges this Court to remand the case to the circuit court for a new trial "with instructions that second degree unpremeditated intent to kill murder based on accessory-before-the-fact accomplice liability is not a viable legal theory of murder and cannot be presented to or considered by the jury."

Conversely, the State argues that Mr. Garcia "has failed to show that his convictions and sentence rest on a legally impossible theory of the type ... that the Court of Appeals held could be remedied without a contemporaneous objection at trial under Maryland Rule 4-345(a)." The State claims that Mr. Garcia's argument on appeal "is, at best, an unpreserved and meritless claim of legally inconsistent verdicts." While we disagree with the State's characterization of Mr. Garcia's contention as a claim of verdict inconsistency, we do not believe that Mr. Garcia's convictions are based on a legally impossible theory of murder. We hold that second-degree murder of the intent-to-kill variety based on accessory-before-the-fact accomplice liability is a legally viable theory.

I. STANDARD OF REVIEW

This appeal presents a question of law. As such, we apply a de novo standard of review. Shannon v. State , 468 Md. 322, 335, 227 A.3d 220 (2020) ; see also Schisler v. State , 394 Md. 519, 535, 907 A.2d 175 (2006) (explaining that when the question presented on appeal "involves an interpretation and application of Maryland constitutional, statutory[,] or case law," the case is reviewed de novo).

II. PRESERVATION

As a threshold matter, we first turn to Mr. Garcia's assertion that even though the illegality of his sentences and underlying convictions for second-degree murder was not raised at trial, this Court can properly consider it for the first time on appeal pursuant to Rule 4-345(a). Under that Rule, "[t]he court may correct an illegal sentence at any time," even if no objection was made in the circuit court. Md. Rule 4-345(a) ; see Bailey v. State , 464 Md. 685, 696, 212 A.3d 912 (2019). An "illegal sentence" is defined as one "in which the illegality inheres in the sentence itself." Chaney v. State , 397 Md. 460, 466, 918 A.2d 506 (2007) ; see Colvin v. State , 450 Md. 718, 728, 150 A.3d 850 (2016) ("[W]e reaffirm the rule that only claims sounding in substantive law, not procedural law, may be raised through a Rule 4-345(a) motion.").

Maryland courts have stressed that the scope of Rule 4-345(a) is narrow and generally limited to circumstances where "there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed." Rainey v. State , 236 Md. App. 368, 381, 182 A.3d 184 (2018) (quoting Colvin , 450 Md. at 725, 150 A.3d 850 ). Additionally, an "illegal sentence" may arise when "the illegality of a sentence stems from the illegality of the conviction itself." Johnson v. State , 427 Md. 356, 378, 380, 47 A.3d 1002 (2012) (holding that the imposition of a sentence for a crime with which the defendant was not charged is the type of sentence illegality that is cognizable under Rule 4-345(a) ). Importantly, this type of illegality has been "limited to situations in which the illegality of the conviction exists because the trial court lacked the ‘power or authority’ to convict." Rainey , 236 Md. App. at 380-81, 182 A.3d 184 (quoting Johnson , 427 Md. at 371, 47 A.3d 1002 ) (explaining that the Court's holding in Johnson that the defendant's sentence was illegal was based on the circuit court's lack of power or authority to impose a conviction for an uncharged offense).

Mr. Garcia claims that his sentences are illegal under Rule 4-345(a) "because they [may be] based on convictions of a legally impossible theory of murder." As support, he cites to Fisher v. State , 367 Md. 218, 786 A.2d 706 (2001), for the proposition that "a sentence is illegal if it is based on a conviction of a legally impossible crime or theory of a crime." In that case, three defendants were convicted of second-degree murder, more specifically felony murder as expressly indicated on the jury verdict sheets, child abuse, and conspiracy to commit child abuse. Id. at 226, 786 A.2d 706. They argued that Maryland law does not recognize the offense of second-degree felony murder predicated on the felony of child abuse. Id. at 225, 237, 786 A.2d 706. Although not raised in the trial court, the Court decided to reach the merits of the defendants’ argument. Id. at 237-40, 786 A.2d 706. As one reason for that decision, the Court explained that their murder sentences would be illegal under Rule 4-345(a) if it was determined, as alleged by the defendants, that second-degree felony murder premised on the felony of child abuse was not a cognizable offense. Id . at 239-40, 786 A.2d 706. More specifically, it stated "that a sentence imposed under an entirely inapplicable statute ‘is an illegal sentence which may be challenged at any time.’ " Id. (quoting Moosavi v. State , 355 Md. 651, 662, 736 A.2d 285 (1999) ). The Court then explained:

[I]f the felony murder doctrine has no application to a homicide resulting from child abuse, then the thirty year sentences for murder in the second degree imposed on the petitioners would be similarly illegal, because, by the special jury verdict, the findings of guilty of murder were based solely on felony murder.

Fisher , 367 Md. at 240, 786 A.2d 706.

Unlike the murder convictions at issue in Fisher , which were indisputably based on the purported non-cognizable offense as indicated on the special verdict forms, Mr. Garcia's second-degree murder convictions were not necessarily based on the allegedly illegal theory of murder—second-degree intent-to-kill murder premised on accessory-before-the-fact accomplice liability. Mr. Garcia recognizes this in his brief when stating that "the jury ... could have convicted [him] based on [the challenged murder] theory." (emphasis added). The...