White v. State

250 Md.App. 604

252 A.3d 37

Sheldon Duke WHITE

v.STATE of Maryland

No. 1232, Sept. Term, 2019

Court of Special Appeals of Maryland.

May 26, 2021

Argued by: Jake Elijah Struebing (Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Washington, D.C., Paul B. DeWolfe, Public Defender, Baltimore, MD), on the brief, for Appellant.

Argued by: Peter R. Naugle (Brian E. Frosh, Atty. Gen., Baltimore, MD), on the brief, for Appellee.

Panel: Fader, C.J., Graeff, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Graeff, J.

On September 18, 2018, a grand jury in the Circuit Court for Frederick County returned a 25-count indictment against Sheldon Duke White, appellant, for various CDS and firearm offenses. In January 2019, after forensic testing revealed the presence of fentanyl in the seized contraband, the grand jury returned a second indictment against appellant, charging identical counts for the same events, plus an additional four counts related to the fentanyl. The State then entered a nolle prosequi ("nol pros ") of the charges in the first indictment.¹

On June 4, 2019, appellant pleaded not guilty to the charges, pursuant to an agreed statement of facts, and the court convicted him of possession with intent to distribute heroin (count 12), possession with intent to distribute heroin with a detectable amount of fentanyl (count 16), and possession of a firearm during a drug trafficking crime (count 25). The court sentenced appellant to 20 years’ imprisonment on count 25, the first five years without parole, 20 years’ imprisonment on count 12, to be served consecutively, but all suspended, and 10 years’ imprisonment on count 16, to be served consecutively, but all suspended.

On appeal, appellant presents several questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err by denying appellant's motion to dismiss on speedy trial grounds?

2. Did the circuit court lack jurisdiction to convict appellant of possession with intent to distribute heroin with a detectable amount of fentanyl pursuant to Md. Code Ann., Criminal Law Article ("CR") § 5-608.1 (2018 Supp.), because it is a sentencing enhancement, not a stand-alone crime?

3. Did the circuit court err by failing to merge appellant's two possession convictions, which both related to possession of a single compound mixture containing heroin and fentanyl?

4. Did the circuit court abuse its discretion in denying appellant's motion to exclude his post-arrest statement?

5. Did the circuit court err in denying appellant's motion to withdraw his hybrid plea because the proffered evidence contained a dispute of material fact?

6. Was there sufficient evidence to sustain appellant's CDS convictions?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2019, appellant pleaded not guilty to three drug trafficking and firearms charges based on an agreed statement of facts, preserving his right to appeal.² The prosecutor began by explaining the posture of the case:

[PROSECUTOR]: [We] will be proceeding in the manner of a not guilty agreed statement of facts, but it's my understanding that there's no argument to be made with respect to the sufficiency of the evidence, so this is not one where the Defense will be arguing that the facts don't support the charges.

It's simply, we have an agreed statement of facts. The Defense is going, wants to proceed this way, is my understanding, to preserve certain appellate rights; namely with respect to pretrial motions that have adverse rulings to them for motion to dismiss, motion to suppress, [and] motion regarding admissibility.

Appellant did not object to these statements, and defense counsel subsequently affirmed that the defense would not contest the statement of facts.

The prosecutor stated that, if the court found appellant guilty of the three charges, there was a joint recommendation regarding sentencing, which included 20 years on count 25, possession of a firearm with a nexus to drug trafficking, and five years of probation. The prosecutor continued:

Count 12, possession with the intent to distribute heroin, he would receive a 20-year sentence. That would be all suspended consecutive to Count 25.

Count 16, he would receive a 10-year sentence. That would be, and is required to be, consecutive under the statute. That would be consecutive to Counts 12 and 25, all suspended.

So for a total of 50 years, suspend all but 20 years to serve.

The defendant would be placed on five years of supervised probation. It's my understanding, this being a joint recommendation, there's no disagreement with respect to these terms.

After defense counsel and the court questioned appellant to make sure he understood the rights he was waiving by proceeding with an agreed statement of facts, the State set forth the agreed statement of facts as follows:

Detective Scott Grigsby, with Frederick Police Department, would testify. He would have been offered and accepted by the Court as an expert in drug narcotics investigations, and the common practices of those engaged in drug distribution. The State submits, as State's Exhibit 1, his curriculum vitae, stating his training and experience.

The testimony would have been that he, in May of 2018, he, a detective with the Frederick Police Department's Drug Enforcement Unit, began an investigation into an individual known as, quote, Major, unquote, suspected of supplying cocaine, heroin, and fentanyl in the Frederick area.

Detective Grigsby had received information from confidential sources. He was able to identify the suspect as [appellant], who he would identify as the individual before you in court today.

Over the course of the investigation, the detective conducted surveillance of the defendant and his associates in the Frederick area. A confidential informant was utilized to conduct a controlled purchase of heroin and fentanyl from [appellant] on July 24th, 2018.

After conducting surveillance and identifying a hotel room believed to be utilized by [appellant] for the storage and distribution of narcotics, Detective Grigsby applied for, and was granted a search warrant for 7310 Executive Way. This is Frederick, Maryland, Room 303 of the Mainstay Suites Hotel. He was able to secure that on August 20th, 2018.

* * *

On August 21st, 2018, at approximately 6:45 a.m., members of the Frederick Police Department and the SWAT Team executed a search and seizure warrant located at 7310 Executive Way, Room 303. Inside the hotel room, [appellant] and a female, Sarah Nelson, were located and arrested.

Detective Grigsby verbally read [appellant] his Miranda rights, which he stated, yes, that he understood then [sic] in the presence with Detective Ray Bednar.

Detective Grigsby advised [appellant] that he had a search warrant for the room. Detective Grigsby [asked appellant] if there was anything illegal in the room.

[Appellant] stated, there is a lot of drugs in the nightstand, they are all mine, and there are things under the bed, there are things under the bed.

Detective Grigsby stated, what is under the bed?

[Appellant] replied, there is a handgun under the bed. [Appellant] replied that everything in the room was his.

The following evidence was recovered with respect to this, these particular counts. There were additional items recovered, but with respect to these counts, in a plastic bag in the nightstand drawer in the bedroom, a clear bag containing 17 gelcaps of suspected heroin, which is approximately 6.9 grams at the time of processing; and a clear bag containing 25 gelcaps that was approximately 9.6 grams. These were suspected to be heroin and/or heroin and fentanyl.

Detective Grigsby would have testified that the street, that gelcaps of heroin sell for approximately 20 to $40 in Frederick.

Detective Grigsby also would have testified that the evidence in the bag in the nightstand is an indication of possession with the intent to distribute, because of the large amount, the packaging materials and the -- Court's indulgence -- the amount of the caps, and the packaging material, and the location.

Directly next to the nightstand was a pair of blue jean shorts on the floor, and inside those shorts was [appellant's] Pennsylvania driver's license. Inside [appellant's] pants pocket was $1365 in U.S. currency, along with $10 that was sitting on the nightstand, so a total of $1375 was seized.

Directly next to the pants with [appellant's] driver's license and the large amount of CDS located on the nightstand, there was a black Pietro Beretta [9mm] handgun located under the mattress of the bed. The handgun was loaded and had 13 live rounds in the magazine. There was an extra magazine with 13 live rounds along with 50 loose live 9mm rounds in a black bag next to the handgun.

The State then explained the photographs the State would have introduced, including: (1) photographs showing that this was a small hotel suite with three rooms; (2) photographs depicting where the mattress was lifted and the gun was located; and (3) a photograph showing the nightstand with the drawer open with a plastic bag in the bottom of the drawer.

The State asked the court to take judicial notice of the testimony of the three officers at the suppression hearing, stating that "they would testify that the defendant knowingly and voluntarily waived his right to remain silent and right to counsel, and no threats, promises, coercion, or inducements were used to elicit his statements."

The prosecutor continued:

Additionally, Detective Grigsby would have testified as an expert witness, that often, those involved in the drug trade maintain firearms to protect their stash of CDS and large amounts of money from robbery or theft, and for protection when dealing with other individuals involved in the drug trade.

The gun's location, in this case, within a few feet of the large amount of CDS in the nightstand, as well as the presence of ... $1375 in the same area as the gun and the

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