Grandison v. State, No. 2039, Sept. Term, 2014

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Woodward, C.J.
• Citation: 234 Md.App. 564,174 A.3d 388
• Docket Number: No. 2039, Sept. Term, 2014,No. 2822, Sept. Term, 2015
• Decision Date: 29 November 2017
• Parties: Anthony GRANDISON v. STATE of Maryland Anthony Grandison v. State of Maryland

234 Md.App. 564
174 A.3d 388

Anthony GRANDISON
v.
STATE of Maryland

Anthony Grandison
v.
State of Maryland

No. 2039, Sept. Term, 2014
No. 2822, Sept. Term, 2015

Court of Special Appeals of Maryland.

November 29, 2017

Argued by Pro Se (in Prison), for Appellant.

Argued by Ryan R. Dietrich (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

Panel: Woodward, C.J., Leahy, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.^*

Woodward, C.J.

234 Md.App. 569

In 1983, Anthony Grandison, appellant, for a fee of $9,000, hired his friend, Vernon

174 A.3d 392

Lee Evans, to murder Scott Piechowicz and his wife, Cheryl Piechowicz, to prevent them from testifying against him in a then-pending criminal trial in the United States District Court for the District of Maryland. Grandison v. State , 305 Md. 685, 697, 506 A.2d 580, cert. denied , 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174, and reh'g denied , 479 U.S. 1001, 107 S.Ct. 611, 93 L.Ed.2d 609 (1986). Pursuant to their unlawful agreement, Evans succeeded in murdering Scott Piechowicz but failed in killing Cheryl Piechowicz, instead murdering her sister, Susan Kennedy, by mistake.¹ Id.

234 Md.App. 570

Later that year, Grandison, Evans, and two others² were tried in the United States District Court for the District of Maryland on charges of conspiracy to violate civil rights resulting in death, in violation of 18 U.S.C. § 241, and witness tampering, in violation of 18 U.S.C. § 1512. United States v. Grandison , 780 F.2d 425, 428 (4th Cir. 1985), vacated sub nom. Kelly v. United States , 479 U.S. 1076, 107 S.Ct. 1270, 94 L.Ed.2d 132 (1987), aff'd on remand , 885 F.2d 143 (4th Cir. 1989), cert. denied , 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990). All four defendants were convicted of both charges, id. , and Grandison, in particular, was sentenced to life imprisonment and a consecutive term of ten years' imprisonment. Grandison , 305 Md. at 698, 506 A.2d 580.

The following year, after removal of the Maryland case to Somerset County at Grandison's request,³ he was convicted, by a jury sitting in the Circuit Court for Somerset County, of conspiracy to murder, two counts of first-degree murder, and use of a handgun in the commission of a crime of violence. Id. He was thereafter sentenced, by the jury, to death sentences for both first-degree murders, and the court imposed a sentence of "life imprisonment for the conspiracy conviction and twenty years for the handgun violation consecutive to the life sentence." Id. Both of the latter sentences "were imposed to run consecutively to the life plus ten years sentence previously imposed in the federal case." Id.

234 Md.App. 571

Grandison subsequently filed a post-conviction petition, in the Circuit Court for Somerset County, and, in 1992, that court, relying upon the Supreme Court's decision in Mills v. Maryland , 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988),⁴ vacated his death sentences but otherwise denied his claims. Grandison v. State , 341 Md. 175, 194, 670 A.2d 398 (1995), cert.

174 A.3d 393

denied , 519 U.S. 1027, 117 S.Ct. 581, 136 L.Ed.2d 512 (1996), and reh'g denied , 519 U.S. 1143, 117 S.Ct. 1021, 136 L.Ed.2d 897 (1997). At resentencing, a jury in Somerset County reimposed the two death sentences for the murders of Scott Piechowicz and Susan Kennedy. Id.

Grandison thereafter lodged repeated challenges, in both state and federal court, to those sentences, finally gaining a temporary reprieve when, in 2006, the Court of Appeals enjoined the State from carrying out the death penalty against his co-defendant, Evans, because the protocols governing the method of administering that penalty, lethal injection, had been adopted, held the Court, in a manner that violated the Maryland Administrative Procedure Act. Evans v. State , 396 Md. 256, 344–46, 350, 914 A.2d 25 (2006), cert. denied , 552 U.S. 835, 128 S.Ct. 65, 169 L.Ed.2d 53 (2007).⁵

That injunction was to remain in effect until new protocols were promulgated in accordance with the Maryland Administrative Procedure Act, id. at 350, 914 A.2d 25, but such new protocols were never promulgated. See Fiscal and Policy Note (Revised), S.B. 276, at 3–5 (2013). Instead, the General Assembly

234 Md.App. 572

repealed the death penalty in 2013. 2013 Md. Laws, ch. 156, § 3. Meanwhile, on June 6, 2013, Grandison filed, in the Circuit Court for Somerset County, the first of two motions to correct an illegal sentence (which he supplemented several times) that are the subject of the present appeals. Following two hearings, the circuit court, on November 13, 2014, issued a memorandum opinion and order granting relief, at the State's own concession, on a single claim—that the twenty-year sentence imposed for use of a handgun in the commission of a crime of violence was illegal, because, at the time Grandison committed that offense, its maximum penalty was fifteen years' imprisonment.⁶ Accordingly, the circuit court vacated Grandison's twenty-year sentence for that crime and imposed a fifteen-year term of imprisonment, consecutive to his life sentence for conspiracy as well as to Grandison's

174 A.3d 394

federal sentences. But it denied all of his other claims. Grandison

234 Md.App. 573

noted a timely appeal from that order, raising the following questions:

I. Did the circuit court abuse its discretion in ruling appellant's convictions for first degree murder did not merge with his conviction for use of a handgun in the commission of [ ] a felony or crime of violence under the required evidence test?

II. Did the circuit court abuse its discretion in holding a motion to correct illegal sentence is not the appropriate forum to consider appellant's allegations his sentences are illegal under the Bartkus exception to dual sovereignty?

III. Did the circuit court abuse its discretion in holding the jury was properly hearkened since a mere hearkening of counts of an indictment without specifying the offense does not constitute a hearkening of the verdict as to first degree murder or any other offense?

IV. Did the circuit court abuse its discretion in ruling after vacating sentence under Mills the court had the authority to resentence and there was no legal requirement the resentencing jury announce their findings in open court or requirement to poll or hearken their findings?

V. Did the circuit court abuse its discretion in imposing the fifteen year sentence for use of a handgun in the commission of a felony or

174 A.3d 395

crime of violence consecutive to Grandison's federal sentences of life plus ten years after the federal authorities made those sentences run concurrent with the State sentences?

Then, in 2015, Governor Martin O'Malley, exercising his pardon power, commuted Grandison's death sentences to sentences of life imprisonment without the possibility of parole. Executive Order 01.01.2015.05 (Jan. 20, 2015). Thereafter, Grandison filed, in the Circuit Court for Somerset County, a second motion to correct an illegal sentence. The circuit court subsequently issued a written memorandum opinion and order denying that motion. Grandison noted a timely appeal from

234 Md.App. 574

that order, raising two question for review, which we have slightly rephrased as follows:

I. Did the circuit court abuse its discretion in denying appellant's motion to correct illegal sentence in holding that the former Governor had authority under Maryland Constitution, Art. II, § 20 to sua sponte exercise executive powers to commute Grandison's death sentences to life imprisonment without the possibility of parole without an application having been made seeking commutation?

II. Did the circuit court abuse its discretion in holding that the former Governor's commutation of his sentences of death to life imprisonment without the possibility of parole did not violate Art. 17 of the Maryland Declaration of Rights, which prohibits ex post facto laws in criminal cases?

On this Court's own motion, we consolidated these appeals.

DISCUSSION

I. Appeal No. 2039

A.

Grandison claims that the circuit abused its discretion in ruling that his convictions for first-degree murder did not merge with his conviction for use of a handgun in the commission of a felony or crime of violence under the required evidence test. This claim is without merit.

Although the Court of Appeals held, in State v. Ferrell , 313 Md. 291, 297, 545 A.2d 653 (1988), that use of a handgun in the commission of a felony or crime of violence and the predicate felony or crime of violence are the same offense under the required evidence test, that holding addressed a different circumstance—whether the...