Shannon v. State

241 Md.App. 233

209 A.3d 786

Teddy SHANNON

v.STATE of Maryland

No. 2378, Sept. Term, 2017

Court of Special Appeals of Maryland.

June 4, 2019

Submitted by: Jeffrey Mark Ross (Paul B. DeWolfe, Public Defender on the brief) of Baltimore, MD, for Appellant

Submitted by: Jessica Veree Carter (Brian E. Frosh, Attorney General on the brief) of Baltimore, MD, for Appellee

Nazarian, Arthur, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Thieme, J.

As the Cannon family was moving into a new home in Baltimore, they were fired upon, then threatened by an armed neighbor who vowed to burn the residence. A jury in the Circuit Court for Baltimore City acquitted Teddy Shannon, appellant, of charges in the shooting but convicted him of threatening arson and illegally possessing a firearm after a disqualifying conviction.

Appellant was sentenced to a total of seventeen years and ordered to pay restitution of $ 2,400, as reimbursement for the Cannons' security deposit and first month's rent under the lease they abandoned after this altercation.

Appellant presents the following issues for our review:

1. Must Appellant's conviction and sentence for possession of a regulated firearm be vacated because it is based upon an indictment that fails to charge an offense?

2. Did the trial court err in ordering restitution?

For reasons that follow, we conclude there are no grounds to vacate appellant's convictions or the restitution order. In resolving the restitution challenge, we apply lessons from the Court of Appeals' recent holding in In re G.R ., 463 Md. 207, 205 A.3d 917(2019), considering the "direct result" standard for restitution under Md. Code, § 11-603(a) of the Criminal Procedure Article ("CP") as it relates to costs incurred "to restore and maintain the sanctity and security" of a household made insecure by criminal activity. In the circumstances presented here, we conclude that the trial court did not err or abuse its discretion in ordering restitution for a lease payment for premises abandoned by the victims after appellant threatened to burn down the building.

BACKGROUND

On December 10, 2016, Jason Cannon and his family "were moving into the house on the corner" at 1738 East 30th Street in Baltimore. Before taking possession of the premises, Latonya Coleman-Cannon paid their landlord $ 2,400, representing a security deposit and the first month's rent. Appellant lived across the street, at 1735 East 30th Street.

That evening, Mr. Cannon and a friend had just parked on the street in front of the new residence when Cannon "heard multiple shots" and "tires screeching." As Cannon got out of his car, "a guy from across the street approached" them, carrying a gun, "and said, what's up with you all, yo?" Cannon also heard someone say, "pick up all the shells, yo."

While Cannon was walking up the steps into the new house, he heard conversation among the crowd gathered in the street, concerning a distinctive white Lexus SUV targeted in the shooting. Cannon knew his stepson had been driving to the new house with a friend, in his mother's white "old school" Lexus SUV. Cannon turned around and confronted the group, asking "why were they shooting at us." Appellant, who was carrying a gun, answered, "[T]his is my block. I protect my block. We shoot first, ask questions second."

After his friend pulled him into the house, Cannon was able to contact his stepson and his companion, who were "up the block[.]" When Cannon drove to them, he discovered that the Lexus had shattered windows and was "riddled with bullets." He called 911, then returned to the new house.

While they waited for police, Ms. Coleman-Cannon arrived in a separate vehicle. "[I]rate" over the shooting, she confronted individuals in the street. Cannon, attempting to de-escalate the situation, pulled her "around the back of the house[.]"

Appellant followed and approached them. Lifting his jacket to display a gun, he stated

that if any shots were fired off that night that he was going to blow the house up. He was going to burn the house down. He was going to kill the kids in my house. Call the police if I want. They're not welcomed on my block.

Afraid for their lives, the Cannons went inside the house and "slammed the door."

When police officers arrived on the block, it "was extremely hectic" and "chaotic." Outside in the street, there were "[a] lot of people" "yelling, screaming." They were upset with the Cannons, calling them "snitches and stuff like that[.]" Appellant, who was saying "vulgar things ... a lot of negative things[,]" was arrested because he met "the description of the person who was shooting a weapon[.]"

According to Detective Marcus Sanders, appellant made "threats of ... violence and arson ... not only to the officers that were on the scene, but initially, as well as to the residents that were actually right across the street." Video from the detective's body camera, which recorded the encounter with appellant, was played for the jury.

Police secured appellant's house until a search warrant was executed. In that search, police recovered the leather jacket worn by appellant that evening, which later tested positive for gunshot residue. In addition, officers recovered a "silver Ruger handgun," a "30 round magazine for a Glock," a "40 caliber" shell casing, and ammunition for different weapons.

Based on statements made by appellant during a phone call recorded on December 11, while he was incarcerated, police obtained a warrant to search a house at 1645 Abbotston Street, where the name "Teddy" was written on the living room wall. In the recorded call, appellant, referring to "Chris" as the person who "do got it[,]" agreed that "he had it he walked out wit it[.]" At the Abbotston Street residence, police recovered a "black Glock 27, which is a 40 caliber[,]" "on the top floor outside roof," "inside of a black trash bag" and "wrapped up." Firearms examination established that the shell casing recovered at appellant's residence was from a cartridge fired from the Glock recovered at 1645 Abbotston Street.

We shall add material from the record in our discussion of the issues raised by appellant.

DISCUSSION

I. Indictment

Appellant contends that his firearm conviction must be vacated because it is premised on an indictment that did not allege a criminal offense. This challenge arises from the following portion of the indictment, which states in pertinent part:

FIFTH COUNT

... DEFENDANT, Teddy SHANNON, late of said City, heretofore on or about December 10, 2016, at the 1700 block of East 30th Street, in the City of Baltimore, State of Maryland, having been convicted of a crime of violence, as defined in Public Safety Article, Section 5-101(c), to wit: 05/09/2008, Possession with Intent to Distribute, Case No.: 107312013 , did possess a regulated firearm, to wit: Ruger P90DC, .45 Caliber Handgun, in violation of Public Safety Article, Section 5-133(c) of the Annotated Code of Maryland; against the peace, government and dignity of the State.

[ PS 5-101 ; PS 5-133(c) ] 1 1609

(Underlining in original; boldface added.)

The crime charged in this count of the indictment is a violation of § 5-133(c) of the Public Safety Article ("PS"), which provides in pertinent part:

Penalty for possession by convicted felon

(c)(1) A person may not possess a regulated firearm if the person was previously convicted of:

(i) a crime of violence ; (ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, § 5-614, § 5-621, or § 5-622 of the Criminal Law Article ; or

(iii) an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) or (ii) of this paragraph if committed in this State.

(Emphasis added.)

The problem presented by Count Five is not a matter of dispute. Although Public Safety § 5-101(c) defines a "crime of violence" as one of eighteen enumerated offenses, none of those predicate offenses is possession of a controlled dangerous substance with intent to distribute, which is the offense appellant was convicted of on May 9, 2008, in Case No. 1073122013. Count Five mistakenly identifies the predicate conviction for this charge under PS § 5-133(c), by mislabeling "Possession with Intent to Distribute" as a "crime of violence."

Appellant contends that because the predicate offense identified in Count Five was not a crime of violence as alleged in the indictment, "the trial court was deprived of jurisdiction to render a verdict or impose a sentence" on that count. In support, appellant cites precedent establishing that "where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." Williams v. State , 302 Md. 787, 792, 490 A.2d 1277 (1985) (citing Pulley v. State , 287 Md. 406, 415-16, 412 A.2d 1244 (1980) ; Urciolo v. State , 272 Md. 607, 616, 325 A.2d 878 (1974) ). See also Md. Rule 4-252(d) ("A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time."). Alternatively, appellant argues that "an additional basis for vacating [his] conviction and sentence for possession of a regulated firearm" is Md. Rule 4-345(a), providing that "[t]he court may correct an illegal sentence at any time." See, e.g., Johnson v. State , 427 Md. 356, 362, 47 A.3d 1002 (2012) (vacating conviction and sentence on ground that "sentence for assault with intent to murder was illegal because that crime was not contained in the indictment returned by the Grand Jury").

The State, acknowledging the "drafting error" in the indictment, points out that appellant failed to complain about the mistake when it "could have been corrected by a simple amendment to the indictment at any time prior to entry of the verdict." Moreover, the State continues, "this drafting error had...