Johnson v. State

248 Md.App. 348

241 A.3d 955

Nathan Joseph JOHNSON

v.STATE of Maryland

No. 109, Sept. Term, 2018

Court of Special Appeals of Maryland.

November 18, 2020

Argued by: Matthew W. Lachman Assigned Public Defender (Williams & Connolly, LLC, Washington, D.C. & Paul B. DeWolfe, Public Defender, Baltimore, MD), on the brief for Appellant

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

Graeff, Nazarian, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

ON MOTION FOR RECONSIDERATION

Nazarian, J.

By Order dated November 10, 2020, the Court of Appeals remanded this case to this Court, without affirming or reversing, in order that we might "clarify the basis of [our] decision on April 14, 2020 denying Petitioner's motion for reconsideration." This Opinion explains that decision.

I. BACKGROUND

A. The Appeal

After a bench trial in the Circuit Court for Queen Anne's County, Nathan Joseph Johnson was convicted of involuntary manslaughter, reckless endangerment, possession with intent to distribute heroin and fentanyl, and possession of heroin and fentanyl. The circuit court sentenced him to ten years of incarceration (all but seven years suspended) for involuntary manslaughter and a consecutive twenty years (all but five suspended) for distribution. The court also stated at sentencing that it would "generally suspend and [run] concurrently"

sentences for reckless endangerment and possession with intent to distribute fentanyl.

On appeal, Mr. Johnson raised four contentions. First , relying on State v. Thomas , 464 Md. 133, 211 A.3d 274 (2019), he argued that the evidence was insufficient as a matter of law to sustain his conviction for involuntary manslaughter under a theory of gross negligence. Second , he argued that the (circumstantial) evidence was not sufficient to support his conviction for distribution of a controlled substance. Third , he contended that the circuit court erred in admitting text messages from a cell phone. And fourth , he argued that the trial court had erred in imposing separate sentences for distribution and involuntary manslaughter. The State opposed these contentions.

B. The Merits Opinion

We held oral argument on December 3, 2019 and issued a reported opinion on January 31, 2020. Johnson v. State , 245 Md. App. 46, 225 A.3d 769 (2020). We won't recount the entire opinion here, but a few points bear on the motion for reconsideration and our decision to deny it.

First , this was the first overdose-related involuntary manslaughter case to reach our Court after the Court of Appeals issued Thomas , 464 Md. at 169–72, 211 A.3d 274, and the first opportunity to identify situations that would or wouldn't satisfy Thomas's new standard.¹ After analyzing the facts of this case against the Thomas factors, we concluded that "[i]nterpreting Thomas to assume knowledge of a drug's contents with its riskiness on the part of all low-level, infrequent dealers would lead to the per se rule Thomas warned against[,]" and that "if this drug sale qualifies as grossly negligent, we struggle to imagine a transaction that wouldn't." Johnson , 245 Md. App. at 64, 225 A.3d 769. Accordingly, we

held that the evidence was insufficient to support a finding that he had acted with gross negligence, and we reversed the conviction for involuntary manslaughter. Id. at 69, 225 A.3d 769.

Second and third , we agreed with the State that the evidence was sufficient to support the conviction for possession with intent to distribute, id. at 65–68, 225 A.3d 769, and that the trial court had not erred in admitting the available text messages between Mr. Johnson and the victim. Id. at 68–69, 225 A.3d 769.

As a result, we affirmed the judgments except the conviction for involuntary manslaughter. During the recent argument in the Court of Appeals, there were several references to the involuntary manslaughter conviction being vacated. It wasn't. The judgment of conviction was reversed , as we stated in the order at the conclusion of our opinion:

JUDGMENT OF THE CIRCUIT COURT QUEEN ANNE'S COUNTY FOR INVOLUNTARY MANSLAUGHTER COUNT REVERSED. JUDGMENTS AFFIRMED IN ALL OTHER RESPECTS. APPELLANT AND QUEEN ANNE'S COUNTY TO SPLIT COSTS.

Id. at 69, 225 A.3d 769. Indeed, our holding that the evidence was insufficient to support a finding of gross negligence would have precluded re-trial on that charge had we reversed on other grounds.

Finally , our resolution of the involuntary manslaughter conviction left no occasion for us to reach the one sentencing issue that was raised in the appeal, i.e. , Mr. Johnson's contention that the sentences for involuntary manslaughter or distribution should merge. Id. At the very end of its brief, the State argued that if we were to determine that Mr. Johnson's sentences for involuntary manslaughter and distribution merged, we should remand the case for resentencing under the principles enunciated in Twigg v. State , 447 Md. 1, 133 A.3d 1125 (2016). Neither side raised, in their briefs or at argument, any issues regarding resentencing, or not, in the event a conviction was reversed.

C. The Motion To Reconsider

On February 18, 2020, the State filed a timely Motion to Reconsider and Remand for Resentencing on Reckless Endangerment and Possession [with Intent to] Distribute Heroin and Fentanyl. See Md. Rule 8-605(a). The State's motion did not take issue with any aspect of the analysis or any conclusion in our merits opinion, nor did it seek any relief or revision relating to our decision to reverse Mr. Johnson's conviction for involuntary manslaughter. Instead, citing Twigg and Maryland Rules 8-604(d)(1) and (d)(2), the State argued that the interests of justice would be served by remanding the case for resentencing in light of the revised "sentencing package" resulting from the reversal of the involuntary manslaughter conviction, Mot. Recons. at 2–5, and that "the sentencing court should be given an opportunity to ‘redefine’ the shape and size of [Mr.] Johnson's sentencing package so it continues to reflect the sentencing judge's intent." Id. at 6, 133 A.3d 1125. The State argued that "[t]he fact that [Mr.] Johnson's case involves reversal based on sufficiency grounds rather than a merger issue does not change the analysis [ ]" under Twigg , id. , but by reversing Mr. Johnson's conviction this Court had unwrapped the sentencing package and that "the sentencing court is entitled to an opportunity to reshape the package so that it continues to reflect the court's intent." Id. at 7, 133 A.3d 1125 (emphasis added).

We asked Mr. Johnson to respond to the State's motion. See Md. Rule 8-605(a). He countered that the State had failed to raise any of the grounds for reconsideration set forth in Maryland Rule 8-605(b) and that Twigg had never been extended to a case in which a count of conviction had been reversed. Resp. at 1. He contended that the merits opinion had not left any issues unaddressed or ruled on any issues the parties hadn't briefed nor did the opinion conflict with any decisions of a superior court. Id. at 4, 133 A.3d 1125. He then distinguished Twigg from this case in two respects. First , he argued that Twigg involved a merger of sentences for convictions left intact and that every case relying on Twigg and remanding for resentencing had involved an illegal sentence or

sentencing defect, not a reversal. Id. at 5–7, 133 A.3d 1125. Second , "even if Twigg could be extended as the State contends to a case in which a count of conviction is reversed, that decision would only grant the discretion to remand, not require it," id. at 7, 133 A.3d 1125, and he argued the circumstances of this case advise against us exercising our discretion to remand for resentencing in this case. Id. at 7–9, 133 A.3d 1125.

D. Our Decision On The Motion

Because the merits opinion was a reported opinion, a motion for reconsideration of that opinion must be submitted to the Court as a whole. The panel, led by the authoring judge, prepares a recommendation for the Court and presents that recommendation at the next monthly Conference. In a typical motion to reconsider a reported opinion, the Court is asked to consider changing some aspect(s) of the opinion itself; because, in deciding to report the case, the Court had decided that the issued opinion was "of substantial interest as precedent," Md. Rule 8-605.1(a), amendments to the original reported opinion might affect whether the opinion still meets that standard or whether the Court remains comfortable with the opinion continuing to serve as binding precedent. The Court normally memorializes its decision on a motion either (a) in a new opinion that reflects the changes the Court decided to make in response to the motion or (b) in an order denying the motion which, even in the absence of any explanation, reveals the Court's decision not to change the opinion.

This motion did not challenge the merits opinion's analysis, conclusions, or language. It asked us to grant a form of relief that had not been addressed in the merits opinion, and the Court could have granted or denied the motion without making any changes. All the same, the panel deliberated and decided (on a 2-1 vote that we will explain further below) to recommend that the Court deny the motion. The Court adopted the panel's recommendation at its March 2020 Conference (held on March 31, 2020). The motion was denied in an

order that described only the disposition of the motion, not the underlying reasoning.

The State filed a petition for writ of certiorari in the Court of Appeals, and the Court granted that petition on June 5, 2020. The Court held oral argument on November 5, 2020, and, on November 10, 2020, remanded the case to this Court, without affirming or reversing, in order that we might "clarify the basis of [our] decision on April 14, 2020 denying Petitioner's motion for reconsideration."

II. DISCUSSION

The circumstances of this motion offer a rare retrospective glimpse into the...