Bowman v. State, No. 61

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, and BLACKWELL, JJ., and CHARLES E. ORTH, Jr.; CHARLES E. ORTH, Jr.
Citation314 Md. 725,552 A.2d 1303
PartiesRandolph Lewis BOWMAN v. STATE of Maryland. ,
Decision Date01 September 1988
Docket NumberNo. 61

Page 725

314 Md. 725
552 A.2d 1303
Randolph Lewis BOWMAN
v.
STATE of Maryland.
No. 61, Sept. Term, 1988.
Court of Appeals of Maryland.
Feb. 10, 1989.
Motion for Reconsideration Denied March 23, 1989.

Page 726

Julia Doyle Bernhardt, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Page 727

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

CHARLES E. ORTH, Jr., Judge (retired), Specially Assigned.

The issue on this appeal is the legality of a sentence of twenty-five years without eligibility for parole imposed on Randolph Lewis Bowman upon his conviction by a jury in the Circuit Court for Prince George's County of robbery with a deadly weapon. 1 We hold that the sentence was illegal.

The maximum term of imprisonment authorized upon conviction of robbery with a deadly weapon is twenty years. Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 488. However, as a tactic in the continuing battle against crime, the legislature of Maryland has called for enhanced punishment [552 A.2d 1304] and curtailment of parole with respect to individuals who persist in engaging in certain criminal activities. Art. 27, § 643B(c) provides:

Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance

Page 728

with the provisions of Article 31B, § 11.[ 2 A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.

A "crime of violence" in this context includes robbery and robbery with a deadly weapon. Id., subsection (a). It does not include assault with a deadly weapon.

Bowman claims that the trial court erred in sentencing him on the robbery with a deadly weapon conviction under the mandatory provisions of Art. 27, § 643B(c). He argues that the State did not meet its burden of proving that he had been convicted twice before of a crime of violence. The State informed Bowman pursuant to Art. 27, § 643B(d) and Maryland Rule 4-245 that it intended to seek enhanced punishment of him as a subsequent offender. At the penalty stage of the trial, the State offered into evidence what it referred to as "the certified copy of Mr. Bowman's record from Washington, D.C.--his adult record." The document was admitted in evidence over objection, but its receipt is not questioned on appeal. The prosecutor told the court:

The record we have offered is Mr. Bowman's record. It indicates that he has two prior convictions for robbery with a deadly weapon.... They are both in Washington, D.C. ...

It is apparent from the transcript of the proceedings at the penalty stage of the trial that the judge imposed the mandatory sentence in the belief that Bowman had two prior convictions for robbery with a deadly weapon in the District of Columbia. See Md. Rule 4-245(e). At first the Court of Special Appeals followed the same primrose path on which the prosecutor had led the trial judge. In affirming the armed robbery judgment in an opinion filed 19 February 1988, State v. Bowman, No. 905, September Term, 1988, per curiam, unreported, the intermediate appellate court said: "[T]he certified docket entries reveal two other convictions

Page 729

for armed robbery apart from [a] conviction of simple robbery...." Slip opinion at 6. The Court of Special Appeals deemed the document received in evidence which contained the historical facts of Bowman's criminal career to be a copy of docket entries. The document was a computer printout, headed "DC Superior Court Criminal Inquiry," and was certified as a "True Copy" by the Clerk of the Superior Court of the District of Columbia over the signature of the Deputy Clerk. Contrary to the assertion of the prosecutor, the belief of the trial judge, and the understanding of the Court of Special Appeals, the document reflected only one conviction and incarceration for robbery with a deadly weapon. This offense was committed in 1974. The document showed a conviction and incarceration for simple robbery committed in 1980 and a conviction and sentence for assault with a deadly weapon committed on the same date. Bowman filed a Motion for Reconsideration in which he pointed this out. The Court of Special Appeals recalled the opinion of 19 February 1988 and issued a new opinion on 21 April 1988. The judgments were again affirmed.

As we have seen, robbery with a deadly weapon and robbery are included in the [552 A.2d 1305] definition of a crime of violence under the Maryland statute.

Robbery retains its common law definition in Maryland, though the penalty for this crime is fixed by statute. See Md.Code (1957, 1987 Repl.Vol.) Art. 27, § 486. We have defined the offense as the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear, ...; or, more succinctly, as larceny from the person, accompanied by violence or putting in fear,....

West v. State,312 Md. 197, 202, 539 A.2d 231 (1988) (citations omitted). In the light of pertinent cases reaching back to at least 1690, we adhered to the view that "the mere snatching or sudden taking away of the property from the person of another does not constitute sufficient force, violence, or putting in fear to support a robbery conviction."

Page 730

Id. at 206, 539 A.2d 231. In this State, both robbery and robbery with a deadly weapon constitute the same common law felony of robbery. The statutes concerning these crimes, Art. 27, §§ 486 and 488, do not create separate statutory offenses but merely fix the penalties for one crime of robbery, aggravated if committed with a deadly weapon. Whack v. State, 288 Md. 137, 140, 416 A.2d 265 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981). The use of a deadly weapon, however, may supply the necessary element of force or violence or putting in fear sufficient to raise the taking of property from the person from larceny to robbery. But see Wright v. State, 72 Md.App. 215, 528 A.2d 498 (1987).

Bowman now concedes that the District of Columbia conviction in 1974 serves as a predicate crime for the imposition of a mandatory sentence under Art. 27, § 643B. But he contends that the conviction of robbery in 1980 does not supply the necessary second predicate conviction. He looks to Temoney v. State, 290 Md. 251, 429 A.2d 1018 (1981).

In Temoney the mandatory sentence prescribed by § 643B was imposed in reliance on prior convictions in the District of Columbia for robbery and attempted robbery. Under the District of Columbia law, robbery goes beyond the common law concept followed in Maryland. The District of Columbia Code (1981) § 22-2901 sets forth the statutory definition of robbery as follows (emphasis supplied):

Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery....

We noted in Temoney at 263, 429 A.2d 1018 that "[t]he terms of this section have been interpreted to include acts, such as pickpocketing for example, which involve stealth but not violence or putting in fear" (citations omitted). We observed, as recently confirmed in West, that "[i]n Maryland,

Page 731

on the other hand, mere pickpocketing would be larceny (not a '[c]rime of violence') as enumerated by Code, Art. 27, § 643B), rather than robbery." Temoney, 290 Md. at 263, 429 A.2d 1018 (citations omitted). Bowman points to the reasoning in Temoney:

While the defendant's District of Columbia convictions may in fact have been violent crimes, this is not necessarily so, nor is it discernible from the docket entries received into evidence.

Id. We concluded that the State had "thus failed to introduce evidence that the District of Columbia convictions were '[c]rimes of violence' within the meaning of Art. 27, § 643B." Id.

As we have noted, the trial judge in the case before us proceeded to sentence on the judge's understanding that Bowman had twice been convicted of armed robbery in the District of Columbia. In fact, however, the evidence adduced by the State showed only one conviction for armed robbery. The other conviction was for robbery, which due to the difference between Maryland and the District of Columbia as to the nature of that offense, was not necessarily a qualifying conviction under the mandatory statute. The Court of Special Appeals, upon realizing this, and faced with the hurdle raised thereby, attempted to [552 A.2d 1306] leap the obstacle in its opinion of 21 April 1988 by rationalizing that the robbery was, in fact, perpetrated with a deadly weapon. 3 The court observed that there was "no question" that the conviction in 1974 of armed robbery served "as the indisputable first predicate of the two predicates required for

Page 732

enhanced sentencing." Slip opinion at 6. With regard to the second predicate crime, the court resorted to a gaggle of inferences. It said:

The second predicate offense on which the State relies is an offense for which the appellant was arrested on May 21, 1980, the offense having been committed on May 20, 1980. On September 28, 1981,...

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36 practice notes
  • State v. Stewart, No. 53
    • United States
    • Court of Special Appeals of Maryland
    • June 25, 2019
    ...488 A.2d 962, 970 (1985)], and the presence of a deadly weapon may satisfy the constructive violence element of robbery. Bowman v. State, [314 Md. 725, 730, 552 A.2d 1303, 1305 (1989)]. Thus, we hold that the evidence of Coles's conduct was sufficient for a rational fact finder to conclude ......
  • State v. Salas, 34,146
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2017
    ...to the retrial of a defendant's status as a habitual offender, Monge resolved the issue left open in Lockhart . Compare Bowman v. State , 314 Md. 725, 552 A.2d 1303, 1310 (1989) (holding, post- Lockhart , that insufficient evidence prohibits retrial in a habitual offender proceeding), with ......
  • Fetrow v. State, No. 00425
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2004
    ...or deadly weapon." Couplin v. State, 37 Md.App. 567, 582, 378 A.2d 197 (1977), cert. denied, 281 Md. 735 (1977). See Bowman v. State, 314 Md. 725, 730, 552 A.2d 1303 (1989); Facon, 144 Md.App. at 31, 796 A.2d 101; Md.Code (2002), Criminal Law Article § As appellant observes, robbery is a sp......
  • State v. Gray, No. A-99-120.
    • United States
    • Court of Appeals of Nebraska
    • February 1, 2000
    ...the allegation that he is a habitual criminal. There are cases from other jurisdictions which support our holding. See, Bowman v. State, 314 Md. 725, 552 A.2d 1303 (1989) (analyzing Nelson and Burks and finding that insufficiency of habitual criminal evidence invokes Double Jeopardy Clause)......
  • Request a trial to view additional results
36 cases
  • State v. Stewart, No. 53
    • United States
    • Court of Special Appeals of Maryland
    • June 25, 2019
    ...488 A.2d 962, 970 (1985)], and the presence of a deadly weapon may satisfy the constructive violence element of robbery. Bowman v. State, [314 Md. 725, 730, 552 A.2d 1303, 1305 (1989)]. Thus, we hold that the evidence of Coles's conduct was sufficient for a rational fact finder to conclude ......
  • State v. Salas, 34,146
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2017
    ...to the retrial of a defendant's status as a habitual offender, Monge resolved the issue left open in Lockhart . Compare Bowman v. State , 314 Md. 725, 552 A.2d 1303, 1310 (1989) (holding, post- Lockhart , that insufficient evidence prohibits retrial in a habitual offender proceeding), with ......
  • Fetrow v. State, No. 00425
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2004
    ...or deadly weapon." Couplin v. State, 37 Md.App. 567, 582, 378 A.2d 197 (1977), cert. denied, 281 Md. 735 (1977). See Bowman v. State, 314 Md. 725, 730, 552 A.2d 1303 (1989); Facon, 144 Md.App. at 31, 796 A.2d 101; Md.Code (2002), Criminal Law Article § As appellant observes, robbery is a sp......
  • State v. Gray, No. A-99-120.
    • United States
    • Court of Appeals of Nebraska
    • February 1, 2000
    ...the allegation that he is a habitual criminal. There are cases from other jurisdictions which support our holding. See, Bowman v. State, 314 Md. 725, 552 A.2d 1303 (1989) (analyzing Nelson and Burks and finding that insufficiency of habitual criminal evidence invokes Double Jeopardy Clause)......
  • Request a trial to view additional results

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