Wright v. State

255 Md.App. 407

282 A.3d 284

Gregg Lamonn WRIGHT

v.STATE of Maryland

No. 3146, Sept. Term, 2018

Court of Special Appeals of Maryland.

August 30, 2022

Submitted by: Michael R. Braudes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Gary E. O'Connor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore City, for Appellee.

Panel: Nazarian, Zic, Tang, JJ.

Nazarian, J. Gregg Lamonn Wright was convicted in 2001 in the Circuit Court for Baltimore City of, among other things, first-degree assault and the use of a handgun. Mr. Wright filed a supplemental motion to correct an illegal sentence on October 1, 2018, arguing that his twenty-five-year sentence for first-degree assault is illegal because he was never charged with that crime. At a hearing on November 14, 2018, the motions court denied the motion. After attempts to supplement the record and a hearing on the authenticity of the original charging document, there is an ambiguity about which modality of first-degree assault underlies Mr. Wright's conviction. Therefore, we hold that Mr. Wright's sentence for the first-degree assault is illegal. We reverse and remand for resentencing.

I. BACKGROUND

The underlying facts don't bear on this appeal, but for context, Mr. Wright was accused of participating in a 1998 shooting that involved three victims. He was charged in a separate short-form indictment for each; we'll refer to them by case number. In case no. 052, Mr. Wright was charged with murder, using a handgun in the commission of a felony or crime of violence, and unlawfully wearing, carrying, and transporting a handgun. In cases nos. 053 and 054, Mr. Wright was charged with murder, first-degree assault, second-degree assault, using a handgun in the commission of a felony or crime of violence, and unlawfully wearing, carrying and transporting a handgun.

He was tried before a jury on all three indictments on April 12-24, 2001, and the original transcript from that proceeding has been lost in the interim. The record that is available reveals that at the end of trial, the trial court ruled that in case no. 052, it would not send manslaughter to the jury.¹ The court deleted manslaughter from the verdict sheet for that case but, sua sponte , added first-degree assault in its place (which had been included in the other two indictments).² The jury then was instructed on both modalities of first-degree assault: second-degree assault enhanced by the use of a firearm and assault with intent to cause serious bodily injury. The jury acquitted Mr. Wright of first-degree murder and convicted him of three counts each of first-degree assault, second-degree assault, use of a handgun in the commission of a crime of violence, and wearing, carrying and transporting a handgun. On July 2, 2001, the trial court imposed the following sentences:

Case ending in 052:First-degree assault: 25 yearsUse of handgun: 20 years, consecutive

Case ending in 053:First-degree assault: 18 years, consecutive

Case ending in 054:First-degree assault: 15 years, consecutive.

The jury was not asked to specify, and did not specify, which modality of first-degree assault underlay its convictions. Because the original circuit court transcript and part of the record from the 2001 trial have been misplaced, the motions court was unable to determine which modality the jury had accepted, or whether it had unanimously agreed upon either. The motions court reasoned, however, that it was more likely that the jury relied on the use of a firearm modality because Mr. Wright was convicted of the use of a handgun and wearing, carrying or transporting a handgun.

On January 17, 2019, Mr. Wright filed a timely notice of appeal.³ We supply additional facts below as needed.

II. DISCUSSION

On appeal, Mr. Wright challenges the circuit court's decision to deny his motion to correct an illegal sentence, specifically his sentence for first-degree assault in case no. 052.⁴ This is because, he argues, he was never charged with first-degree assault in that case: the short-form indictment included manslaughter as a lesser-included offense, but not the firearm modality of first-degree assault (which, again, was included in his other two indictments). As such, he says, he was neither expressly nor impliedly charged with first-degree assault and any sentence on that charge is illegal. The State responds that first-degree assault is a lesser-included of murder, and therefore Mr. Wright's sentence is legal. The State asserts as well that if we find the sentence for first-degree assault illegal, we should remand the case for resentencing.⁵ We agree with Mr. Wright that his sentence for first-degree assault in case no. 052 is illegal, vacate his sentences, and remand for resentencing.

Maryland Rule 4-345(a) provides that "[t]he court may correct an illegal sentence at any time." In other words, illegal sentences may be corrected even if "(1) no objection was made when the sentence was imposed, (2) the defendant purported to consent to it, or (3) the sentence was not challenged in a timely-filed direct appeal." Chaney v. State , 397 Md. 460, 466, 918 A.2d 506 (2007). If the circuit court denies a motion to correct an illegal sentence, it can be appealed immediately. Carlini v. State , 215 Md. App. 415, 425, 81 A.3d 560 (2013).

Even so, the scope of Rule 4-345(a) is narrow. Chaney , 397 Md. at 466, 918 A.2d 506. " Rule 4-345(a) appellate review deals only with legal questions, not factual or procedural questions." Carlini , 215 Md. App. at 443, 81 A.3d 560. "Deference as to factfinding or to discretionary decisions is not involved." Id. "Once the outer boundary markers for a sentence are objectively established, the only question is whether the ultimate sentence itself is or is not inherently illegal." Id. And to qualify as an illegal sentence under Rule 4-345(a), "the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding." Johnson v. State , 427 Md. 356, 367, 47 A.3d 1002 (2012) (quoting Matthews v. State , 424 Md. 503, 512, 36 A.3d 499 (2012) ).

A. The Circuit Court Erred In Denying The Motion To Correct Illegal Sentence.

Maryland courts have " ‘looked with favor upon the general trend of relaxing the formal requirements of indictments to avoid the [laborious] and often overly technical rules of common law pleading in favor of the shorter and simpler forms,’ " so long as a defendant is not " ‘misled, or in any way deprived of his constitutional right to fair notice.’ " Baker , 367 Md. at 688–89, 790 A.2d 629 (quoting Ross v. State , 308 Md. 337, 342–47, 519 A.2d 735 (1987) ). In Ross , for example, the defendant, who was charged in the statutory language of a short-form indictment for murder in the first degree, was "clearly apprised that he [was] being charged with the crime of murder," and therefore "that he may be convicted of murder in either degree, or manslaughter." 308 Md. at 345, 519 A.2d 735. Similarly, in Middleton v. State , an indictment charged the defendant with, among other things, murder in the first degree, using language in the short-form indictment set forth in Maryland Code (2002, 2021 Repl. Vol.), Section 2-208 of the Criminal Law Article ("CR").⁶ 238 Md. App. 295, 309, 192 A.3d 777 (2018). This Court found that " ‘[u]nder this statutory formula, even though it spells out murder in the first degree, the accused may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter.’ " Id. at 309–10, 192 A.3d 777 (quoting Hook v. State , 315 Md. 25, 32 n.11, 553 A.2d 233 (1989) ).

Here, in the case ending in 052, Mr. Wright was charged via short-form indictment with three different counts: first-degree murder (Count I), unlawfully using a handgun in the commission of a felony (Count II), and unlawfully wearing, carrying, and transporting a handgun (Count III). First-degree assault was not included in this particular indictment.

Although a short-form indictment charges all forms of homicide, and thus the first-degree murder charge meant that he could be convicted of either degree of murder or manslaughter, the absence of a first-degree assault charge requires us to determine whether first-degree assault is a lesser-included offense of murder.

1. The serious bodily harm modality of first-degree assault is a lesser included offense of murder, but the firearm modality of first-degree assault is not.

"Merger is the common law principle that derives from the protections afforded by the Double Jeopardy Clause."

State v. Frazier , 469 Md. 627, 641, 231 A.3d 482 (2020) (citing Brooks v. State , 439 Md. 698, 737, 98 A.3d 236 (2014) ). "It is the mechanism used to protect a convicted defendant from multiple punishments for the same offense." Id. (cleaned up). "The principle that a defendant, charged with a greater offense, can be convicted of an uncharged lesser-included offense, has been adopted by virtually every jurisdiction in the United States ...." Hagans v. State , 316 Md. 429, 447, 559 A.2d 792 (1989) (citations omitted).

"The principal test for determining whether offenses stemming from the same transaction must merge for sentencing purposes is the ‘required evidence’ test." Tolen v. State , 242 Md. App. 288, 305, 215 A.3d 363 (2019). Under that test, "courts look at the elements of the two offenses in the abstract." Hagans , 316 Md. at 449, 559 A.2d 792. "All of the elements of the lesser-included offense must be included in the greater offense." Id. "Therefore, it must be impossible to commit the greater without also having committed the lesser." Id. Put another way, " ‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’ " Nicolas v. State , 426 Md. 385, 402, 44 A.3d 396 (2012) (quoting State v. Lancaster , 332 Md. 385, 391–92, 631 A.2d 453 (1993) ). " ‘But, where only one...