Butcher v. State, 0620, Sept. Term, 2009.

• Decision Date: 22 December 2010
• Docket Number: No. 0620, Sept. Term, 2009.,0620, Sept. Term, 2009.
• Parties: Edward BUTCHER a.k.a. Eddie N. Butcher, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

10 A.3d 201

196 Md.App. 477

Edward BUTCHER a.k.a. Eddie N. Butcher, Jr.

v.STATE of Maryland.

No. 0620, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Dec. 22, 2010.

David P. Kennedy (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Gary E. O'Connor (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, ZARNOCH, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

RODOWSKY, J.

Here, a series of sentences was imposed at the same time. Each successive sentence was expressly consecutive to the sentence imposed before it. We must decide the effect on the total sentence when one of the sentences that has not yet been served is invalidated.

Background Facts and Procedure

Appellant, Edward Butcher (Butcher), was convicted on multiple charges in the Circuit Court for Baltimore City. On April 17, 1996, the court (Ward, J.) sentenced him as follows:

"With respect to Case No. 195102053, Count 1, robbery with a deadly weapon, the verdict of the jury was guilty, the sentence of the Court is 20 years to the Department of Correction. With respect to Count 4, carrying a dangerous weapon openly with intent to injure, the knife, the verdict of the jury was guilty, the sentence of the Court is 3 years to Department of Correction to run consecutive to Count 1.

"With respect to Case No. 195102055, Count 3, assault and battery, which, of course, applies to the running of the car into the victim, and injuring severely, the verdict of the jury was guilty, the sentence of the Court is 10 years Department of Correction to run consecutive to Count 4, 195102053.

"With respect to the Case No. 195102091, Count 1, car jacking, the jury's verdict was guilty, the sentence of the Court is 30 years to the Department of Correction to run consecutive to Count 3 of 195102055."

In this opinion, to simplify the analysis in our discussion, we shall use letters to designate the sequence of sentences. Thus, Butcher's sentences were:

A—twenty years;

B—three years, consecutive to A;

C—ten years, consecutive to B; and

D—thirty years, consecutive to C.

The convictions were affirmed by this Court in an unreported opinion. Butcher v. State, No. 0899, Sept. Term, 1996 (filed Mar. 27, 1997).

In 1999, Butcher petitioned the Circuit Court for Baltimore City for post-conviction relief, contending, inter alia, that sentence B merged with sentence A. The court (Cannon, J.) agreed, and, on November 30, 1999, entered judgment vacating B. All other claims in the petition were denied. A Commitment Record reflecting the modification made to Judge Ward's sentence of April 17, 1996, stated that sentence C was consecutive to sentence A and that the total time to be served was sixty years, a reduction of the three years imposed by B.

The proceedings resulting in the instant appeal were initiated by Butcher's pro se motion to correct an illegal sentence, filed February 25, 2008, in the Circuit Court for Baltimore City. The motion was heard by the court (Nance, J.) on May 6, 2009. The Office of the Public Defender representedButcher. Butcher contended that, after sentence B was eliminated, there was no relationship stated in Judge Ward's pronouncement of sentences between sentence A, then being served, and sentence C, so that sentences C and D must be deemed concurrent with A. The result would be an additional reduction of twenty years, resulting in a total sentence of forty years. This argument was based on language appearing in a footnote in Smith v. State, 23 Md.App. 177, 325 A.2d 902 (1974), that is discussed, infra. The court undertook to distinguish Smith and denied the motion.

From that denial, this appeal was noted. The only question presented is, "Did the lower court err in denying Mr. Butcher's motion to correct an illegal sentence?"

Discussion

I. Scope of a Motion to Correct an Illegal Sentence

The State suggests that the motion to correct an illegal sentence under Maryland Rule 4-345(a) (2010) does not embraceButcher's contention because the alleged illegality does not "inhere in the sentence itself," citing Pollard v. State, 394 Md. 40, 47, 904 A.2d 500, 504 (2006). Here, however, if Butcher is correct, the failure to give full effect to the merger of B into A is that the court has illegally increased his total sentence. In State v. Griffiths, 338 Md. 485, 659 A.2d 876 (1995), the Court of Appeals stated that "the imposition of sentence on the greater offense had the effect of rendering the sentence on the lesser offense illegal as a cumulative sentence prohibited by double jeopardy protections." Id. at 496-97, 659 A.2d at 882. The Court of Appeals held that, under those circumstances, the trial court should have vacated the sentence on the lesser charge by applying Rule 4-345(a) on its own motion. Griffiths is sufficiently analogous to the instant matter to permit Butcher to proceed under Rule 4-345(a).

II. Consecutive or Concurrent?

A. The Maryland Cases

Butcher contends in his brief that "the sentences purportedly made consecutive to the sentence imposed on the dismissed charge were by operation of law concurrent to the armed robbery sentence," that is, that C and D became concurrent with A. Butcher's brief presents the purported result of the merger of B into A as: " 'A, concurrent with (C + (D, consecutive to C)),' " that is, that C, began to run when A commenced. This produces a total sentence of forty years (the ten years of C and the first ten years of the thirty years of D overlap the twenty years of A). At oral argument, Butcher compared the interrelationships of the sentences to cantilever construction in which A is the base block, and B, C, and D, in that order, are blocks that build upon A. Thus, when B was removed, C, and its attachment D, dropped down to be concurrent with A, producing a total sentence of forty years. The State contends that the result of vacating B is that C became consecutive to A, and that D remained consecutive to C, producing a total sentence of sixty years.

Butcher articulates the broad principle on which he relies to be that, "if two sentences are not expressly made consecutive, they are concurrent." In support he cites Gatewood v. State, 158 Md.App. 458, 482, 857 A.2d 590, 603 (2004), aff'd, 388 Md. 526, 880 A.2d 322 (2005), and Nelson v. State, 66 Md.App. 304, 312-13, 503 A.2d 1357, 1361 (1986). A similar argument, based on Gatewood and Nelson, was presented to this Court in Palmer v. State, 193 Md.App. 522, 998 A.2d 361, cert. denied, 416 Md. 274, 6 A.3d 905 (2010). We said that Palmer " misconstrue[d] the holdings" in those two decisions because " thosecases turned on the fact that their pronouncements failed to specify how the sentence in question related to any other sentence, at all." ¹Id. at 529, 998 A.2d at 366. In the case before us, the interrelationships of the sentences were specified when they were pronounced.

More particularly, Butcher relies on language in Smith v. State, 23 Md.App. 177, 325 A.2d 902. Smith involved four appellants who had committed an armed robbery in which there were twenty-six victims. The indictment presented the charges in 117 counts. The sentences imposed on appellant Smith illustrate Butcher's point. Smith was sentenced (A) to twenty years for the robbery of one victim; (B) to fifteen years, consecutive to A, for assault with intent to murder a second victim; (C) to ten years, consecutive to B, for the false imprisonment of a third victim; and (D) to fifteen years, consecutive to C, for use of a handgun. All appellants argued that the sentences on their convictions for false imprisonment should merge into their sentences for robbery. This Courtrejected that contention out of hand because, as to each appellant, the two crimes involved separate victims.

In footnote 4, following an initial presentation of the appellants' merger contention, the Court noted that, in the sentencing of all appellants, the sentence upon additional convictions was made consecutive only to the sentence immediately preceding it. In all cases but Smith's, the sentence immediately preceding that for false imprisonment was for an armed robbery. In Smith's case, however, the sentence for false imprisonment was consecutive to his sentence for assault with intent to murder.² The Court then ruminated on the effect on the total sentence if the judgment in Smith's case on that assault conviction were reversed or vacated. In that context, the Court made the following statement, on which Butcher relies.

"[T]he sentence on the robbery conviction and the sentence on the false imprisonment conviction would run concurrently with each other, there being no existing sentence to which the false imprisonment sentence was designated to run consecutively. The rule of the common law was that, in the absence of any statute, if it is not stated in either of two sentences imposed at the same time that one of them shall take effect at the expiration of the other, the two periods of time will run concurrently, and the two punishments executed simultaneously. 5 Wharton's Criminal Law and Procedure, § 2214 (Anderson, 1957); Annotation: When sentences imposed by same court run concurrently or consecutively; and definiteness of direction with respect thereto, 70 A.L.R. 1511. Compare Code, Art. 41, § 123. See Annotation: Effect of invalidation of sentence upon separate sentence which runs consecutively, 68 A.L.R.2d 712."

Id. at 184 n. 4, 325 A.2d at 906 n. 4.

Clearly, the language relied upon by Butcher is dictum in the Smith opinion.The language forms no part of the reasoningfor the holding that sentences do not merge where they are imposed for crimes against separate victims. The language addresses hypothetical facts that were not presented in the Smith case.

Further, 5 Wharton's Criminal Law & Procedure § 2214, at 429 (Anderson 1957), cited in support of the dictum, states in relevant part:

"In the absence of a statute to the contrary, if accused is convicted of more than one

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