Gary v. State

PATRICK MICHAEL GARY v. STATE OF MARYLAND

No. 1852

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

October 10, 2017

Circuit Court for Garrett County

Case No. 11-K-15-5223

UNREPORTED

Beachley, Shaw Geter, Thieme, Raymond, G., Jr., (Senior Judge, Specially Assigned) JJ.

Opinion by Shaw Geter, J.

Concurring & Dissenting Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Patrick Michael Gary, was charged in the Circuit Court for Garrett County with sexual abuse of a minor, attempted second degree rape, second degree sexual offense, perverted sexual practice, fourth degree sexual offense, and second degree assault. Appellant waived his right to a jury trial and was tried by the court, and the court found him guilty on all charges. Appellant received the following sentence: twelve years for sexual abuse of a minor, with the charge of attempted second degree rape merged; ten years consecutive for second degree sexual offense; five years consecutive for perverted practices; one year concurrent for fourth degree sexual offense, and five years, all suspended, for second degree assault. He was ordered to serve five years supervised probation and to register as a sex offender upon release. Appellant timely appealed and presents the following questions for our review:

1. Must the period of probation be stricken in the absence of the imposition of a suspended portion of any sentence?

2. Did the trial court err in denying Appellant's motion to suppress the fruits of two unlawful wiretaps?

3. Did the trial court err in imposing separate sentences for second degree sexual offense, fourth degree sexual offense, and perverted practice?

We shall remand this case for resentencing so that the court may correct the illegal sentence as alleged in appellant's first question presented, and to vacate appellant's sentence for unnatural and perverted practice. Otherwise, the judgments are affirmed.

BACKGROUND

In view of the issues presented, and because appellant does not challenge the sufficiency of the evidence, "[i]t is unnecessary to recite the underlying facts in any but asummary fashion because for the most part they [otherwise] do not bear on the issues we are asked to consider." Teixeira v. State, 213 Md. App. 664, 666 (2013) (citations and internal quotation marks omitted); see also Hill v. State, 418 Md. 62, 66-67 (2011) (recognizing that, when the issue concerns a pre-trial motion to suppress, "it is unnecessary to discuss in detail the evidence that was developed at trial").

Here, S.G., 18-years-old at the time of trial, testified that her father, appellant, had been sexually abusing her since she was 12-years-old. The first incident she remembered occurred when she was sleeping in her parent's bed, and she woke to see appellant masturbating beside her. She also remembered other occasions where appellant would "rub his foot against my crotch," "rub down at my vaginal area with his hand," "be licking my vagina," and would "take my foot and move it" to his crotch area. She testified that he rubbed his foot on her crotch area approximately ten or more times, and that "[t]he oral was around four or five." S.G. also recounted that appellant placed his fingers inside her vagina approximately two to three times.

One time, after appellant told her that "I want your mouth around my head or around my cock," she testified that she "started to put my mouth on his penis" and then "freak[ed] out, and I left the room, and I was crying and everything." There was another incident when S.G. was in the kitchen and appellant hugged her from behind, pressing up against her so that she "could feel his penis pressing against my back." S.G. did not report any of these incidents, which she indicated occurred between the ages of 12 and 14, until approximately June 18, 2015, when she reported the abuse to the Garrett County Sheriff's Office.

S.G. also testified to one specific assault when she was 14-years-old. On that occasion, and because her back was hurting, appellant directed her to lay down to give her a massage. As S.G. was on her stomach and appellant was sitting on her back, "he shifted my waist and pulled my shorts and underwear aside and was trying to insert his penis, and if he were a little - a little bit harder, he would have been able to." S.G. yelled at appellant and told him to leave her room.

In addition to these incidents of direct physical contact, S.G. testified that appellant drilled holes in the walls in their home, including one from the hallway leading into the bathroom. The hole was positioned such that, if she was seated on the toilet, a person could see in and "see between someone's legs." Other holes let someone see her "either going to the bathroom or taking a shower, even changing in my room." And, S.G. testified that she had seen appellant looking through the holes at her.

She further testified that, from the time she was 14-years-old until she was 17-years-old, appellant would sometimes come into her room and expose his erect penis to her. On another occasion, approximately sometime in April 2015, S.G. found a note in the car that suggested appellant had "incestual feelings" for her. Thereafter, on or around June 17, 2015, S.G. reported these incidents to her mother, and they both went to the Sheriff's Office the next day and reported the abuse to the police.

S.G. agreed that she consented when the police sought to monitor and record a telephone conversation between herself and appellant. S.G.'s mother, Kimberly G., confirmed that she also consented to the pretext call between S.G. and appellant. Following this consent, S.G. called appellant on her cellphone, and a tape recording and transcriptwere prepared from that call and admitted into evidence at trial. During that phone call, appellant admitted that he knew "there were things that happened in the past." He also stated: "It isn't all your fault [S.G.] but I don't, I honestly do not, I mean I recall things that happened when you were younger or it was a few years ago. I can't remember when it was."

Appellant also claimed he was dreaming when some of these events occurred, including when S.G. walked in on him. When S.G. reminded appellant that he had "been erect" around her, and that, she would "wake up and during the night, and your head would have been between my legs and doing stuff," appellant initially replied that he did not remember, but also stated "[o]bviously it's [sic] happened, but I don't know why it happened and I don't know, you know, what even caused it to happen." The two also engaged in the following exchange during this phone call:

[S.G.]: Do you think I'm imagining this like it didn't happen?

[APPELLANT]: Well I'm not saying you're imagining this. Obviously it did happen. And again it was something that happened in the past for whatever reason, and I just as soon not even talk about it. Like I did bring it up because I just want to find out exactly (unintelligible) in that direction but after you said that stuff ended right then and there. That was it. That ended it. Until now and now it's all coming back up again.

Appellant further acknowledged that, not only "things did happen," but that he could be arrested and charged with "rape and assault of a minor." When asked whether S.G. should discuss appellant's attempt to have sex with her, apparently with a mental health professional, appellant replied that "I wouldn't only because it can really escalate intosomething" and that, if she did, "they'll walk right here in the store at Lowes and they'll arrest me and take me right out of here. That will be the last time you'll see me."

As will be discussed in more detail, Sergeant Robert Zimmerman, of the Garrett County Sheriff's Office, spoke to S.G. and helped arrange this pretext call. Immediately afterwards, Sergeant Zimmerman went to the Lowe's store in Oakland, Maryland, and arrested appellant. After appellant was read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), the officer confronted appellant with some of S.G.'s allegations. According to the officer, appellant responded that "he did not do it intentionally" or "purposefully." Appellant also denied watching S.G. through the holes looking into the bathroom.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant first contends that his supervised probation must be stricken because he did not receive a suspended sentence on any count. The State responds that the appellant misreads his own disposition because appellant was given a suspended sentence on his conviction for second degree assault. The State further suggests we ignore the fact that, after imposing a suspended sentence, the sentencing court then generally merged the second-degree assault sentence with the rest of appellant's sentence. We agree with appellant that the court imposed an illegal sentence, under these circumstances, and that,in accord with Maryland Rule 8-604 (d) and Twigg v. State, 447 Md. 1 (2016), this case should be remanded for resentencing.¹

Here, at disposition, the court imposed the following sentence:

The sentence of the Court is as follows. On Count 1 in this case, which is the sex abuse of a minor, the sentence of the Court is 12 years to the Department of Corrections.

On Count 2, attempted second-degree rape, I am going to merge that into Count 1 in this matter.

With respect to Count 3, second-degree sex offense, the sentence of the Court is ten years to the Department of Corrections. That sentence will be consecutive to any and all other sentences imposed by this or any other court.

Count 4, perverted practices, the sentence of the Court for that charge is five years to the Department of Corrections, consecutive to any and all other sentences

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