Gilbert v. State

1

SAMUEL B. GILBERT v. STATE OF MARYLAND

No. 670-2023

Court of Special Appeals of Maryland

July 12, 2024

UNREPORTED ^[*]

Circuit Court for Baltimore County Case No: C-03-CR-22-005488

Graeff, Friedman, Beachley, JJ.

OPINION

Friedman, J.

After a jury trial in the Circuit Court for Baltimore County appellant Samuel B. Gilbert, was found guilty of illegal possession of a firearm. Md. Code, Public Safety Article ("PS") § 5-133(c).^[1] The parties stipulated that Gilbert had a prior conviction for a crime of violence that prohibited him from possessing a regulated firearm in the State of Maryland, and there was no dispute that the prior conviction was for first-degree assault. The court imposed a mandatory sentence of five years without the possibility of parole. The two issues presented for our consideration are (1) whether the conviction and sentence for illegal possession of a firearm must be vacated because they were illegal, and (2) whether failure to preserve this issue constitutes ineffective assistance of counsel. For the reasons set forth below, we shall dismiss the appeal.

DISCUSSION

Gilbert argues that both his conviction and sentence must be vacated because they violated the Second Amendment to the United States Constitution,^[2] specifically, the test set forth in New York Rifle & Pistol Association, Inc. v Bruen, 597 U.S. 1 (2022). Gilbert acknowledges that he failed to raise this contention in the trial court, but he maintains that he can raise it here for the first time because his sentence was illegal under Maryland Rule 4-345(a), which provides that "[t]he court may correct an illegal sentence at any time."

According to Gilbert, because, under Bruen, he never should have been convicted of violating PS § 5-133(c), the trial court should not have imposed a sentence. Alternatively, Gilbert argues that his trial counsel was constitutionally ineffective for failing to raise this issue below and asks us to address his claim of ineffective assistance of counsel in this direct appeal.

I. Pertinent Second Amendment Case Law

We pause briefly to review a line of cases that led to the United States Supreme Court's decision in Bruen, the case relied upon by Gilbert, and subsequent cases arising out of it. In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court considered whether a District of Columbia prohibition on the possession of usable handguns in the home violated the Second Amendment.^[3] Heller, 554 U.S. at 573. The Court held that the Second Amendment conferred "an individual right to keep and bear arms" for the purpose of self-defense. Id. at 595. The Court wrote that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Id. at 625. The Court explained that:

the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family," …, would fail constitutional muster.

Id. at 628-29.

The Court recognized, however, that this right "is not unlimited" and that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626-627 (footnote omitted).

Two years after Heller, the United States Supreme Court held "that the Second Amendment right is fully applicable to the States." McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). In its plurality opinion, the Court emphasized its prior holding in Heller, writing:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here.

Id. at 786 (internal citations omitted).

More recently, in Bruen, the Supreme Court held that the Second Amendment protected the rights of “ordinary, law-abiding citizens” to “carry a handgun for self-defense outside the home.” Bruen, 597 U.S. at 10. The Court set forth a test for analyzing Second Amendment challenges to firearm restrictions that required an analysis of whether the Second Amendment's plain text covered an individual's conduct. Id. at 17, 24. If so, the conduct is presumptively protected and “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 24. The government can satisfy its burden by identifying “a well-established and representative historical analogue, not a historical twin.” Id. at 30 (emphasis in original). Two important considerations are “how and why the regulations burden a law-abiding citizen's right to armed self-defense.” Id. at 29. Three of the six justices in the Bruen majority wrote that the majority opinion did not disturb prior comments in Heller and McDonald about possession restrictions for individuals previously convicted of a felony. See Bruen, 597 U.S. at 72 (Alito, J., concurring) and 597 U.S. at 80-81 (Kavanaugh, J. concurring, joined by Roberts, C.J.).

Shortly after the Supreme Court's decision in Bruen, we issued our opinion in Fooks v. State, 255 Md.App. 75, cert. granted, 482 Md. 141 (2022). In that case, Fooks raised both facial and as-applied Second Amendment challenges to his conviction under PS § 5-133(b)(2), which prohibited the possession of a regulated firearm after a conviction for a common-law crime that resulted in a sentence of more than two years' imprisonment. Fooks had been convicted of constructive criminal contempt and sentenced to more than four years' imprisonment. Fooks, 255 Md.App. at 81-82 and n.3. In rejecting Fooks's challenges, we recognized that "Bruen didn't deal at all with limitations grounded in prior criminal behavior[,]" and determined that the statute was presumptively lawful under Heller, given the seriousness of the prior offenses involved. Id. at 96-97, 102-03. Further, in rejecting Fooks's as-applied challenge, we held that his prior conviction for criminal contempt resulted in him not being a law-abiding citizen such that his firearm possession "fell outside the scope protected by the Second Amendment." Id. at 106. Maryland's Supreme Court granted a writ of certiorari in Fooks. See 482 Md. 141 (2022). Thereafter, that appeal was stayed pending the decision of the United States Supreme Court in United States v. Rahimi, Docket No. 22-915. See Fooks v. State, 485 Md. 52 (2023).

On June 21, 2024, the Supreme Court issued its decision in Rahimi. See Rahimi, 602 U.S. ___, 2024 WL 3074728 (June 21, 2024). In that case, Rahimi was convicted of violating a federal statute that prohibited the possession of a firearm after having been subject to a domestic violence restraining order. Rahimi, 602 U.S. ___, 2024 WL 3074728 at *1. Rahimi conceded that the restraining order against him satisfied the statutory criteria, but asserted that, on its face, the statute violated the Second Amendment.^[4] Id. The Supreme Court recognized that since the Nation's founding, firearm laws included regulations to stop individuals who threaten physical harm to others from misusing firearms. Id. at *5-9. Relying in part on historical surety and "going armed" laws, to which the statute was "relevantly similar," as well as Heller, McDonald, and Bruen, the Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may at least be temporarily^[5] disarmed consistent with the Second Amendment. Id. at *11.

II. Illegal Sentence Claim

"[I]t is well established that a court may correct an illegal sentence on its own initiative and at any time, even upon appeal." Mateen v. Saar, 376 Md. 385, 405 (2003); see also Garner v. State, 442 Md. 226 250-51 (2015) ("The power of the court to correct an illegal sentence exists on appeal even where the illegality of the sentence was not raised in the trial court."). As a preliminary matter, we must determine whether Gilbert's claim is cognizable under Rule 4-345(a). "An illegal sentence, for purposes of Rule 4-345(a), is one in which the illegality 'inheres in the sentence itself[.]'" Colvin v. State, 450 Md. 718, 725 (2016) (quoting Chaney v. State, 397 Md. 460, 466 (2007)). In other words, the Rule permits the correction of "'inherently illegal' sentences, not sentences resulting from 'procedural error[s].'" State v. Bustillo, 480 Md. 650, 665 (2022) (alteration in original) (quoting Bailey v. State, 464 Md. 685, 696 (2019)). A sentence is "inherently illegal" if "'there has either been no conviction warranting any sentence for the particular offense or the...