Patrick v. State

DAVID GERARD PATRICK v. STATE OF MARLAND

No. 118

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

February 28, 2017

UNREPORTED

Leahy, Shaw Geter, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, 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.

David Gerard Patrick,¹ appellant, pleaded guilty to first-degree assault and robbery with a dangerous weapon.² The Circuit Court for Baltimore County sentenced Patrick to consecutive sentences of 25 years of incarceration for the first-degree assault conviction and 20 years of incarceration for the robbery with a dangerous weapon conviction on February 24, 2005. Patrick did not file a direct appeal. Exactly ten years later, on February 24, 2015, he filed a petition for post-conviction relief and a motion to correct an illegal sentence which the circuit court heard and ultimately denied.³

Appellant presents two issues for our review:

1. "Whether the Circuit Court for Baltimore County erred in holding that sentences for First Degree Assault and Robbery with a Dangerous and Deadly Weapon do not merge under the rule of lenity."

2. "Whether the Circuit Court for Baltimore County erred in refusing to consider whether the failure to merge sentences under the doctrine of fundamental fairness resulted in an illegal sentence, subject to review at any time under Maryland Rule [4-345(a)]."

We hold that the circuit court correctly denied Patrick's motion to correct illegal sentence because the first-degree assault and robbery with a dangerous weapon convictions in this case arose out of separate acts and, therefore, do not merge. We do not reachPatrick's second issue because it is not before us. For the reasons that follow, we affirm.

BACKGROUND

A. The Assault and Robbery

In conjunction with the plea agreement presented to the court at a motions hearing on December 9, 2004, the parties submitted an agreed-upon statement of facts of the assault and robbery. The following account is based on that statement, which was read into the record by the State's attorney.

On July 6, 2004, Philip Mortenson, who was then 18 years old, met up with Darrel McNair at Howard County Community College. Mortenson related that his parents were out of town and no one else was home, so they left the campus at approximately 6:00 p.m. to smoke marijuana and hang out at Mortenson's home in Baltimore County. McNair invited four other people to Mortenson's house—Patrick, Jacqueline Helms, Terry Cox, and Gary Graham. Mortenson and his six guests "spent a number of hours there, in effect, relaxing[,] playing basketball, [and] playing pool." The assault began when:

Darrell McNair broke into the liquor cabinet of Mr. Mortenson's father[.] . . . At approximately 2:00 in the morning, Philip decided that things were getting a little bit out of hand and indicated that he wanted everyone to leave. After he had indicated to everyone that he wanted them to leave, he was then attacked. He was in the basement[.] . . . He could specifically identify that Terry Cox, Darrell McNair and David Patrick were the three that he knew for sure had attacked him. The other two he was uncertain as to their participation, [he] knew that they were somewhere within the same room at the time the attack initiated. . . . [Mortenson] was struck with a pool cue which was broken during the course of this. During the course of the entire incident, he also was struck with a golf club [and with] metal chains. Eventually, at one point he was actually stabbed to [sic] the left flank. While being attacked in the basement level, [Mortenson] managed at one point tofree himself from them. He ran up the stairs and ran to the bathroom on the first floor of the home. He locked himself in the bathroom. The three individuals, in particular, then broke down the door of the bathroom, and continued to attack him and beat him. [Mortenson] again managed to free himself from them, he ran up the next flight of stairs to the second and the top level of the home, and locked himself in his mother's office. Those three individuals then again broke down the door breaking the doorframe of the office and again continued to attack [Mortenson]. He managed to free himself again from them and got to the master bedroom of the home where he was attacked again, and that is actually when he was stabbed. He was also struck over the head with several bottles, they're actually memorabilia Coca Cola bottles from Cal Ripken . . . that were in the master bedroom. There was a fight that went on within the master bedroom. [The three individuals] then had pulled [phone] cords . . . from the walls, they also used some chains to then tie up [Mortenson] and leave him . . . there[,] in fact[,] had been comments we believe also made by Darrell McNair directing to kill [Mortenson]. [Mortenson] was left bleeding significantly on the floor of the master bedroom of his parents' home.⁴

Patrick and the other four individuals also stole numerous items—including jewelry, personal property, and two cars —from Philip's house.⁵

At that point and also it had initiated before, a number of the people that were involved in this started collecting up property to steal from the home. There was a significant amount of jewelry and personal property that the list goes on in effect forever, the extreme amount of personal property was stolen fromthe home. In addition, the 2000 Dodge Intrepid belonged to Philip's parents . . . was stolen. . . . [A] 2002 Ford Mustang which technically belonged to Philip's parents but was for his use, was also stolen. All five of the individuals then departed from the residence stealing . . . a lot of property.

After laying on the floor chained, tied up, and bleeding for an unknown amount of time, Mortenson was able to untie himself. He then climbed onto the roof through the master bathroom window and escaped from the house. Mortenson, bleeding profusely at this point, sought assistance from a neighbor, who called the police. The police were dispatched at 2:40 a.m. Mortenson was transported to the hospital to receive treatment of his injuries which included a fracture to the occipital orbit (eye-socket), a ruptured eardrum, a stab wound to his abdomen, and other significant injuries to his body.⁶

After identifying the individuals involved in this gruesome incident, on July 12, 2004, the detectives obtained and executed a search warrant for Patrick's residence. Patrick had the car key to the 2000 Dodge Intrepid in his possession. The detectives found the Dodge Intrepid parked in a commercial parking lot near Patrick's house. The Dodge Intrepid contained stolen personal property from Mortenson's house including a safe. The detectives then advised Patrick of his Miranda rights, which he waived. Patrick admitted that he was present at Mortenson's house at the time of the assault and robbery and that he stole the property. Patrick was then placed under arrest.⁷

A grand jury indicted Patrick on thirteen charges: attempted first-degree murder Maryland Code (2002, 2012 Repl. Vol., 2016 Supp.), Criminal Law Article ("CL"), § 2-205); first-degree assault (CL § 3-202); robbery with a dangerous weapon (CL § 3-403); robbery (CL § 3-402); false imprisonment (common law); four counts of carrying a weapon openly with the intent to injure (CL § 4-101(d)(2)); three counts of theft (CL § 7-104); and malicious destruction of property (CL § 6-301).

B. The Plea Hearing, Plea Agreement, and Sentencing

At a motions hearing⁸—which became a plea hearing—on December 9, 2004, Patrick entered into a plea agreement in which he pleaded guilty to first-degree assault (CL § 3-202) and robbery with a dangerous weapon (CL § 3-403).⁹ At the hearing, his counsel walked Patrick through all of his rights and the consequences of pleading guilty including his right to a jury or bench trial, his right to call witnesses and cross-examine the State's witnesses, his right to testify in his defense, his automatic right to appeal from trial, and the maximum penalties for each conviction. In exchange for Patrick's guilty plea, the State entered a nolle prosequi to the remaining eleven charges.

After the pre-sentence report was prepared,¹⁰ the circuit court held a sentencing hearing on February 24, 2005. The court sentenced Patrick to consecutive sentences of twenty-five years for the first-degree assault conviction and twenty years for the robbery with a dangerous weapon conviction on February 24, 2005.¹¹ Patrick filed a motion to reconsider the sentence on March 11, 2005, which the trial court denied on March 17, 2005. On the same day, Patrick filed an application for review of his sentence by a three-judge panel, which the trial court granted. The three judge panel unanimously found the sentence "was appropriate and w[ould] make no change in the sentence" on June 16, 2005. Patrick did not apply for leave to appeal the conviction.

C. Petition for Post-Conviction Relief and Motion to Correct an Illegal Sentence

Patrick, through his counsel, filed a petition for post-conviction relief and a motion to correct an illegal sentence on February 24, 2015. Patrick asserted three arguments in his petition and motion; only one is relevant to this appeal.¹² Patrick contended that hereceived an illegal sentence because first-degree assault and armed robbery merged either under the required evidence test or under the rule of lenity. In response, the State argued that Patrick waived his arguments because, pursuant to CP § 7-106(b)(i)(4), Patrick could have raised the arguments by filing an application for leave to appeal a conviction based on a guilty plea and he failed to do so.¹³ Assuming Patrick's illegal sentence argument was raised under the motion to correct an illegal sentence and, therefore, not waived, the State...