Johnson v. State

• Decision Date: 10 July 2012
• Docket Number: No. 84,Sept. Term, 2011.,84
• Parties: Jarmal JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

427 Md. 356

47 A.3d 1002

Jarmal JOHNSON

v.STATE of Maryland.

No. 84, Sept. Term, 2011.

Court of Appeals of Maryland.

July 10, 2012.

Juan P. Reyes, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner/cross-respondent.

Mary Ann Ince, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

ADKINS, J.

In this case, we consider the remedies available to a defendant 16 years after his conviction and sentence for a crime not charged in the indictment. Following his arrest in 1992, Petitioner Jarmal Johnson was convicted of assault with intent to murder and other crimes, even though the indictment returned by the Grand Jury did not charge assault with intent to murder. Petitioner did not raise this issue at trial, at sentencing, or on direct appeal. Not until 16 years after his conviction did Petitioner file a motion to correct an illegal sentence, claiming that the trial court lacked the power to convict and sentence him for assault with intent to murder because that charge was not contained in the indictment. The Circuit Court for Baltimore City denied Petitioner's motion, and he appealed. The Court of Special Appeals affirmed in a reported opinion, Johnson v. State, 199 Md.App. 331, 22 A.3d 909 (2011), and Petitioner filed a petition for certiorari, asking:

[427 Md. 361]1. Did the trial court have jurisdiction to convict Petitioner of a crime that was not contained in the indictment and was not a lesser included offense of any charge contained in the indictment?

2. Is the “constructive amendment” of an indictment recognized in Maryland and did the Court of Special Appeals properly apply it in this case? ¹

The State filed a conditional cross-petition for certiorari, asking:

1. Was Petitioner's appeal from the denial of his motion to correct an illegal sentence untimely?

2. Did Petitioner knowingly consent to the constructive amendment of the indictment?

3. Did Petitioner provide a record sufficient for review of his appellate contention?

4. Should Petitioner's appeal be dismissed on grounds of laches? ²

We granted certiorari on both petitions, Johnson v. State, 423 Md. 450, 31 A.3d 919 (2011), and shall reverse the judgment of the Court of Special Appeals. Petitioner's sentence for assault with intent to murder was illegal because that crime was not contained in the indictment returned by the Grand Jury. Petitioner's motion to correct an illegal sentence was timely because Maryland Rule 4–345(a) allows the trial court to correct an illegal sentence “at any time.” Such a motion is not waived by the defendant's acquiescence at trial or sentencing, and we shall not apply the doctrine of laches because the State has failed to allege any prejudice arising from Petitioner's delay. Therefore, we shall vacate Petitioner's conviction and sentence for assault with intent to murder. We need not decide whether the “constructive amendment” of an indictment may be valid in some circumstances, as it is clear that no proper amendment occurred in this case. Moreover, because Rule 4–345(a) resolves the case, we need not decide whether Petitioner's claim is “jurisdictional” in any sense of that word.

FACTS AND LEGAL PROCEEDINGS

On March 6, 1992, police officers executed a search warrant at 630 Baker Street in Baltimore City. When the officers entered the apartment, gunfire erupted, and they saw Petitioner firing an automatic weapon in the direction of the officers. They also found large amounts of cocaine and heroin. Petitioner was arrested, and the arresting officer prepared a “statement of charges” that listed assault with intent to murder along with approximately ten other charges. That charge was not included in the indictment returned by the Grand Jury, however. Rather, the indictment charged four crimes: (1) attempted murder, (2) common law assault, (3) unlawful wearing, carrying, or transporting of a handgun, and (4) unlawful use of a handgun in the commission of a felony or crime of violence.³

Before hearing Petitioner's plea, the trial court asked the attorneys to “go over what the offenses are and what the maximum penalties are [.]” In the discussion that followed, the attorneys did not mention assault with intent to murder. Similarly, in opening statements, the attorneys mentioned attempted murder and other crimes, but did not mention assault with intent to murder. The verdict sheet prepared for the jury at the close of evidence, however, included assault with intent to murder.⁴ The trial court also instructed the jury about the crimes on the verdict sheet, including assault with intent to murder.

On September 22, 1992, the jury acquitted Petitioner of attempted murder, but found him guilty of (1) assault with intent to murder, (2) common law assault, (3) unlawful use of a handgun in the commission of a felony or crime of violence, and (4) unlawful wearing, carrying, or transporting of a handgun. Petitioner admits that he did not object, at trial, to the jury instructions or guilty verdict for assault with intent to murder.

At sentencing, the trial court imposed a 30–year prison sentence for assault with intent to murder, merging common law assault into that conviction. The court also imposed a 20–year consecutive sentence for the use of a handgun in a felony or crime of violence, merging unlawful wearing, carrying, or transporting a handgun into that conviction.

Petitioner filed a direct appeal but did not argue that his conviction or sentence for assault with intent to murder was illegal. In January 2008, Petitioner filed a motion to correct an illegal sentence, arguing that his sentence for assault with intent to murder was illegal because the indictment did not charge that crime. The Circuit Court denied Petitioner's motion, and he appealed. The Court of Special Appeals affirmed, holding that Petitioner's claim was not jurisdictional, and therefore could not be raised after the time for direct appeal. Johnson, 199 Md.App. at 344, 351, 22 A.3d at 917, 920–21.

Sufficiency of the Record

As a preliminary matter, we address the State's contention that the record is insufficient for appellate review of Petitioner's motion because Petitioner failed to include a transcript of his arraignment. The State argues that the transcript is necessary to show that Petitioner did not learn at the arraignment that the State intended to charge him with assault with intent to murder. Without such a showing, the State contends, Petitioner cannot rebut the “presumption of regularity” that attaches to criminal cases. See Skok v. State, 361 Md. 52, 78–80, 760 A.2d 647, 661–62 (2000). Petitioner responds that the transcript is not necessary because, regardless of what may have occurred at the arraignment, his sentence for assault with intent to murder is illegal given that the indictment did not charge that crime.

Maryland Rule 8–501 provides, in pertinent part:

Unless otherwise ordered by the appellate court or provided by this Rule, the appellant shall prepare and file a record extract in every case in the Court of Appeals.... The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal.

Maryland Rule 8–501(a), (c). See also Mora v. State, 355 Md. 639, 650, 735 A.2d 1122, 1128 (1999) (“It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed[.]”).

Whatever may have occurred at the arraignment is irrelevant to Petitioner's argument, which is that his sentence was illegal simply because assault with intent to murder was not included in the indictment. Therefore, we agree with the Court of Special Appeals that Petitioner's failure to include a transcript of the arraignment does not prevent us from reviewing his contention. The record is “sufficient ... to determine whether error was committed[.]” See Mora, 355 Md. at 650, 735 A.2d at 1128.

Timeliness of a Motion to Correct an Illegal Sentence

The Court of Special Appeals held that Petitioner's motion was untimely because it was made after the time for direct appeal. Johnson, 199 Md.App. at 348, 22 A.3d at 919. The court explained that, although a defendant may assert a lack of subject matter jurisdiction at any time, Petitioner's motion did not properly put forth such an assertion. Id. at 345–46, 22 A.3d at 917–18. Rather, the court opined, Petitioner's motion challenged the trial court's “exercise of jurisdiction,” i.e., “the authority of the court to decide a particular case within the class of cases that is encompassed by the court's subject matter jurisdiction.” Id. at 345, 22 A.3d at 917. Thus, the court held that Petitioner's motion was untimely because, unlike a motion asserting a lack of subject matter jurisdiction, Petitioner's “remedy for an improper exercise of jurisdiction was a direct and timely appeal[,]” which he failed to make. Id. at 346, 22 A.3d at 917–18.

Petitioner contends that his motion did show a lack of subject matter jurisdiction, and thus could be brought at any time. Under Maryland Rule 4–252(d), he argues, “a claim that a charging document fails to charge or characterize an offense is jurisdictional and may be raised at any time [.]” Additionally, Petitioner argues that, under Rule 4–345(a), “[t]he court may correct an illegal sentence at any time.”

The State responds that the Court of Special Appeals was correct to hold that Petitioner's motion did not challenge the trial court's jurisdiction, but rather the exercise of that jurisdiction, and therefore was untimely. The State also argues that the doctrine of laches should prevent us from addressing Petitioner's claim.

Concerning laches, the State has failed to assert a necessary prong of that...