Garner v. State

TERANCE GARNER v. STATE OF MARYLAND

No. 41

COURT OF APPEALS OF MARYLAND

Argued: February 10, 2015

September Term, 2014

March 27, 2015

USE OF A HANDGUN IN THE COMMISSION OF A CRIME OF VIOLENCE OR ANY FELONY - UNIT OF PROSECUTION - MERGER - SENTENCING - Court of Appeals held that, under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) ("CR") § 4-204, imposition of separate consecutive sentences for two convictions of use of handgun in commission of crime of violence or any felony is permissible where defendant uses one handgun to commit two separate crimes of violence or felonies against one victim in one criminal transaction because unit of prosecution is crime of violence, not victim or criminal transaction. Court of Appeals also held that case should be remanded for re-sentencing because trial court did not impose sentence consistent with CR § 4-204.

Circuit Court for Baltimore City

Case Nos. 111031032 & 111031033

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ.

Opinion by Watts, J.

We decide: (I) whether, under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) ("CR") § 4-204, imposition of separate consecutive sentences for two convictions of use of a handgun in the commission of a crime of violence or any felony is permissible where a defendant uses one handgun to commit two separate crimes of violence or felonies against one victim in one criminal transaction; and (II) whether this case should be remanded for re-sentencing on the ground that the trial court imposed a sentence that was inconsistent with CR § 4-204.

We hold that: (I) under CR § 4-204, imposition of separate consecutive sentences for two convictions for use of a handgun in the commission of a crime of violence or any felony is permissible where a defendant uses one handgun to commit two separate crimes of violence or felonies against one victim in one criminal transaction because the unit of prosecution is the crime of violence, not the victim or criminal transaction; and (II) this case should be remanded for re-sentencing because the trial court did not impose a sentence that was consistent with CR § 4-204.

BACKGROUND

The State, Respondent/Cross-Petitioner, charged Terance Garner ("Garner"), Petitioner/Cross-Respondent, in the Circuit Court for Baltimore City ("the circuit court"), in Case Numbers 111031032 and 111031033, with various crimes, including attempted first-degree murder and attempted robbery with a dangerous weapon. In the circuit court, a jury tried Garner and his co-defendant, Davon Butler ("Butler").

Trial

At trial, as a witness for the State, Baltimore Police Officer Jacob Reed ("OfficerReed"), who worked in the Southeastern District, testified as follows. On December 18, 2010, he was on patrol at approximately 6:00 a.m. when he received a call "for shots fired" in the 100 block of North Ellwood Avenue in Baltimore City. Officer Reed drove to that location and saw a man lying between two vehicles. The man appeared to be suffering from several gunshot wounds to the neck, stomach, and right leg. The man told Officer Reed: "[T]hey tried to rob me." After Officer Reed asked the man who shot him, the man said "black guys" and "point[ed] northbound." Officer Reed saw seven shell casings on the ground approximately six or seven feet away from the man. Officer Reed also saw a winter coat, a cellular telephone, a set of keys, a flash drive, and one shoe on the ground near the man. Officer Reed secured the scene; no suspects were apprehended on the day of the shooting.

As a witness for the State, Detective Frank Miller with the Baltimore City Homicide Unit testified that, on December 27, 2010, the man identified Garner from a photographic array.

As a witness for the State, the man, Ben Baya WaBeya ("WaBeya") testified as follows. WaBeya is a native of the Democratic Republic of Congo, who fled his native country and was granted asylum in the United States. WaBeya lived in the Highlandtown neighborhood of Baltimore City and worked at Casa de Maryland, which was located four blocks from his residence.

On December 18, 2010, WaBeya decided to walk to work in the morning rather than wait for the bus. As he was walking, two men, whom WaBeya identified as Garner and Butler, stopped him. Garner and Butler asked WaBeya: "[C]an we get the weed? Can yougive us the weed?" WaBeya saw one of the men move his hands, and feared that the man might be armed with a knife, so WaBeya turned and ran from East Fayette Street to North Ellwood Avenue. As WaBeya ran, he was hit by two bullets and felt pain in his right leg. WaBeya could not continue running and sat down on North Ellwood Avenue between two vehicles. Garner and Butler chased after WaBeya and caught up with him. The following occurred:

[Garner] came to me with a gun, he point me a gun, give me your money. This one was there with him. I look at them when I was sitting down. The first thing -- I say, brothers, I don't have money. I tried to talk to them politely, I say, brothers, I don't have money.

[Garner] talk to this guy, he tell him to go and check the movement of the police. [Butler] left where he was, he go to the corner of [East] Fayette and [N]orth El[l]wood trying to see the movement of the police and people coming.

So, I remember this guy face to face pointing me a gun. He start shooting me over and over. When he shot me four bullets on my leg, I feel very pain, I say I don't have money. I remove all my clothes that I have at that time, I remove the jacket, everything. I let them, I said you can check, if you see the money, take the money, leave me. The man say, where is the money? Check your underwear, he thought I was having the money in the underwear, something like that.

The man start again, he shoot me again, four bullets this side. He repeat again, he shoot me a bullet here. So, I feel like it was very serious and the man doesn't have compassion for human beings.

I cry in my heart, I'm going to die now. So, I say, my brother, can you take whatever you want? And the last thing it was, take even my shoes. The man didn't want, he shoot me four bullets in my stomach here, shot me like this. Suddenly I see myself, my inside come like this on me and I see that it was over for me.

What happened to me is I remember that -- this before they want to take my life now, I tried to protect myself. There was a truck -- because I was between the cars where I was sitting. Suddenly I jump on the truck to

protect this part and my head.

The man -- after I jump on the truck, this man come to me, he look on me on the truck, he shoot me this bullet here, the last one, on the side of the neck. For me everything was over and I left where I was hanging, they ran away. After they ran away I see myself sitting on my blood.

WaBeya emptied his pockets to show Garner and Butler that he did not have any money. WaBeya identified various items found on the street as his belongings, including a jacket, a shoe, and a flash drive. WaBeya incurred injuries to his right femur, chest, left hand, and neck. As a result of the shooting, WaBeya was hospitalized for four months, and suffered permanent injuries;¹ three bullets were unable to be removed.

At the conclusion of the trial, the jury convicted Garner, in Case Number 111031032, of attempted robbery with a dangerous weapon, first-degree assault, use of a handgun in the commission of a crime of violence,² and unlawfully wearing, carrying, or transporting a handgun, and, in Case Number 111031033, of attempted first-degree murder, use of a handgun in the commission of a crime of violence, and unlawfully wearing, carrying, or transporting a handgun.³

Sentencing

On June 29, 2012, the circuit court sentenced Garner to thirty years' imprisonmentfor attempted first-degree murder; twenty years' imprisonment consecutive for use of a handgun in the commission of a crime of violence, the first five years to be served without the possibility of parole; fifteen years' imprisonment concurrent for attempted robbery with a dangerous weapon; and one year imprisonment consecutive for the second conviction for use of a handgun in the commission of a crime of violence. For sentencing purposes, the conviction for first-degree assault merged with the conviction for attempted robbery with a dangerous weapon, and the two convictions for unlawfully wearing, carrying, or transporting a handgun merged with the two convictions for use of a handgun in the commission of a crime of violence.

Other Procedural History

Garner appealed, and, in an unreported opinion, the Court of Special Appeals affirmed, holding that the circuit court was correct in sentencing Garner to separate consecutive sentences for the two convictions for use of a handgun in the commission of a crime of violence. The Court of Special Appeals observed that, under CR § 4-204(c)(1), a sentencing court is required to impose a minimum sentence of five years' imprisonment, but, "[f]or some reason, the [circuit] court in this case only imposed a one-year sentence[.]" The Court of Special Appeals reasoned, however, that, under the plain language of CR § 4-204(c)(2), the circuit court "did not impose an illegal sentence[.]"⁴

Garner petitioned for a writ of certiorari, raising one issue: "Are separate consecutive sentences for use of a handgun in the commission of a crime of violence prohibited when a single handgun is used in committing two crimes against a single victim in one transaction?" The State conditionally cross-petitioned for a writ of certiorari, raising one issue: "Where the Court of Special Appeals correctly determined that the [circuit] court imposed an illegal sentence, but failed to correct that illegal sentence, should this Court correct the illegal nature of the sentence?" This Court granted the petition and the conditional cross-petition. See Garner v. State, 438 Md. 739, 93 A.3d 288 (2014).

DISCUSSION

I.

Garner contends that separate consecutive sentences for two convictions for use of a handgun in the commission of a...