Britton v. State

• Decision Date: 27 October 2011
• Docket Number: 2009.,Sept. Term,No. 2645,2645
• Citation: 30 A.3d 236,201 Md.App. 589
• Parties: Adrian A. BRITTONv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

201 Md.App. 589

30 A.3d 236

Adrian A. BRITTON

v.STATE of Maryland.

No. 2645

Sept. Term

2009.

Court of Special Appeals of Maryland.

Oct. 27, 2011.

Geraldine K. Sweeney (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: KRAUSER, C.J., GRAEFF, and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.KRAUSER, C.J.

Adrian Antonio Britton, appellant, pleaded guilty in the Circuit Court for Montgomery County to one count of resisting arrest and two counts of second-degree assault for assaulting two different police officers: Officer Kenneth Moreau and Officer Harley Schwarz. He was thereafter sentenced to the following consecutive terms of imprisonment: two years for assaulting Officer Moreau, eighteen months for assaulting Officer Schwarz, and eighteen months for resisting arrest.

After his appeal was dismissed, as improper, appellant filed a motion to correct an illegal sentence, asking the circuit court to merge, for sentencing purposes, his convictions for assault into his conviction for resisting arrest. When the circuit court denied that motion, he noted this appeal. Finding no error by the court below, we affirm.

Plea Hearing

At appellant's guilty plea hearing, the State proffered that, on January 22, 2008, Officer A. Siegelbaum ¹ observed appellant's car approach a red light “at a high rate of speed,” “swerve[ ] around” another vehicle, and then race through the red light. After pulling appellant over, the officer got out of his patrol car and walked towards appellant's vehicle. As the officer approached appellant's car, appellant backed his vehicle towards the officer, “trying,” in the words of the circuit court, “to run [the officer] over.” After a passenger in appellant's car jumped out, declaring that he did not “want to be any part of this,” appellant “took off at a high rate of speed,” followed by the officer in his patrol car.

During the ensuing chase, appellant drove at nearly double the posted speed limit, “erratically crossing the double yellow divider” and “driving on the shoulder” and on unpaved portions of the road. Officer Moreau, responding to a radio broadcast from Officer Siegelbaum, positioned his vehicle near an intersection, but on the side of the road. Appellant drove off the roadway and rammed Moreau's car, striking it “broadside in the rear passenger door” and causing it to spin “about 180 degrees” into the intersection. As a result of the collision, Officer Moreau suffered “soft tissue damage” and “neck and back trauma.”

Appellant's vehicle then crashed through a residential front yard, struck down a neighborhood-watch sign, “went through several shrubs, and ultimately struck two trees,” where it “became wedged” and “caught fire.” At that point, appellant “jumped out of the car and fled on foot” into the backyard of that residence.

Officer Siegelbaum pursued appellant on foot, at one point tasering him, but to no apparent effect, as appellant continued his flight. When Officers Siegelbaum and Moreau, joined by Officer Schwarz and Sergeant Fergus Sugrue, were finally able to grab appellant, he “violently resisted,” “punching and kicking the officers.” Though tasered two more times, appellant continued to struggle.

During the melee, appellant hit Officer Schwarz in the right eye, causing bruising and swelling. For that injury, the officer was later treated at the Germantown Emergency Center. Appellant also injured Sergeant Sugrue's left shoulder and Officer Siegelbaum's hand, for which Siegelbaum was transported from the scene to the Germantown Emergency Center.² Eventually, the officers were able to subdue appellant. ³

Appellant was charged with one count of resisting arrest and four counts of assault, one for each of the four officers he had struck or kicked or both. He was also charged with four counts of fleeing and eluding police and one count of attempting to disarm a police officer. After the State reduced the assault count relating to Officer Moreau from first to second degree, appellant pleaded guilty to that assault, as well as to second-degree assault as to Officer Schwarz,⁴ and resisting arrest. The State then entered a nolle prosequi as to each of the remaining counts.

Sentencing

After appellant pleaded guilty, the court imposed three consecutive sentences for the two second-degree assault convictions and resisting arrest. At the sentencing hearing, appellant's counsel requested that the assault conviction relating to Officer Schwarz be merged into the resisting arrest conviction on the ground that the assault occurred during the course of resisting arrest. The court denied that request, ruling that the two charges involved separate actions: “I think based upon the factual predicate there is evidence supporting the resisting arrest different from the evidence supporting the second[-]degree assault.”

Appellant noted an appeal from his conviction. Because appellate review of a guilty plea may only be obtained by an application for leave to appeal and because appellant's notice of appeal lacked sufficient content to be deemed the substantive equivalent of an application for leave to appeal, this Court dismissed his appeal. See Md.Code (1973, 2006 Repl. Vol.), § 12–302(e) of the Courts & Judicial Proceedings Article (“Section 12–301 of this subtitle does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sought by application for leave to appeal.”).

Appellant subsequently filed a motion to correct an illegal sentence under Maryland Rule 4–345(a), which provides that “[t]he court may correct an illegal sentence at any time.” He requested that his two assault convictions be merged into his resisting arrest convictions for sentencing purposes. ⁵ When the circuit court denied appellant's motion, he noted this appeal.

Motion to Dismiss

Moving to dismiss the instant appeal, the State asserts that the circuit court's failure to merge appellant's convictions for sentencing purposes does not render his sentence “illegal” under Rule 4–345(a), as the illegality, if there was one, did not inhere in the court's sentence. And, because the sentence was not illegal under Rule 4–345(a), reasons the State, the circuit court properly denied appellant's collateral attack on his sentence. Therefore, we must, insists the State, dismiss this appeal.

As the Court of Appeals has explained, “[a] criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons,” but only a small subset of those deficiencies render a sentence “illegal” for the purposes of collateral attack under Rule 4–345(a). Chaney v. State, 397 Md. 460, 466, 918 A.2d 506 (2007). Collateral review under Rule 4–345(a) is “limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful.” Id. Only if that definition of illegality is met will a court consider a “collateral and belated attack[ ]” on a sentence under Rule 4–345(a). Id.

It appears that we have not before addressed whether the failure to merge, for sentencing purposes, convictions for different crimes in a single prosecution, results in an illegality that “inheres in the sentence itself” and, consequently, may be addressed in a Rule 4–345(a) motion, rather than on direct appeal. Our appellate courts have, however, considered similar kinds of claims in Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989); Campbell v. State, 65 Md.App. 498, 501 A.2d 111 (1985); and Ingram v. State, 179 Md.App. 485, 947 A.2d 74 (2008).

In Randall, the defendant, a corporate entity, was convicted, after a trial, of multiple counts of displaying obscene materials and received a separate fine for each conviction. 316 Md. at 318–19, 558 A.2d 715. After “exhaust[ing] all avenues of direct appeal,” the defendant collaterally attacked those fines in a motion to correct an illegal sentence that was filed, as in the instant case, pursuant to Rule 4–345(a). Because Randall involved the imposition of multiple sentences for the violation of a single statute, the challenge was couched in terms of double jeopardy, not of merger. But both types of claims involve, what the Court of Appeals called, “multiple punishment-same trial problems,” and the Court's analysis of those problems, as we shall see, sheds light on the merger issue in the instant case. See Randall, 316 Md. at 324, 558 A.2d 715.

In its motion to correct an illegal sentence, Randall alleged that the imposition of separate sentences for multiple violations of a single criminal statute “violate[d] the Double Jeopardy Clause of the Fifth Amendment because multiple sentences were imposed for the same offense.” Id. at 322, 558 A.2d 715. The State contended that, although such a challenge could have been made on direct appeal, the sentences were not “illegal” under Rule 4–345(a) because each was “within the allowable statutory penalty for the offense” and, therefore, that the challenge could not be made in a collateral attack under that rule. Id. at 321, 558 A.2d 715. The Court of Appeals disagreed, holding that the argument that “multiple sentences were imposed for the same offense d[id] allege an illegal sentence within the meaning of Rule 4–345.” Id. at 322, 558 A.2d 715.

In so holding, the Randall Court noted that “multiple punishment-same trial problems arise from two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction.”...