Montrail M., In re

• Decision Date: 01 September 1991
• Docket Number: No. 80,80
• Citation: 325 Md. 527,601 A.2d 1102
• Parties: In re MONTRAIL M., Harold S., Jr., and Matio C. ,
• Court: Maryland Court of Appeals

Page 527

325 Md. 527

601 A.2d 1102

In re MONTRAIL M., Harold S., Jr., and Matio C.

No. 80, Sept. Term, 1991.

Court of Appeals of Maryland.

Feb. 24, 1992.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioners.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., David P. Kennedy, Asst. Atty. Gen., all on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ., and CHARLES E. ORTH, Judge of the Court of Appeals (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

This appeal concerns the Maryland Juvenile Causes Act, Maryland Code (1973, 1989 Repl.Vol.) § 3-801 et seq. of the Courts and Judicial Proceedings Article (CJ). We hold:

1) The doctrine of merger is applicable to juvenile delinquency proceedings.

2) Under the doctrine of merger, an adjudication that a child is delinquent ¹ because of the commission of the delinquent act ² of the unlawful possession of a controlled dangerous substance and a further adjudication that a child is delinquent because of the commission of the delinquent act of the unlawful possession of that substance with the intent to distribute it, both acts arising out of the same incident, are deemed to be one adjudication in the contemplation of double jeopardy principles.

3) The principles of merger ordinarily preclude multiple sanctions for one delinquent act.

4) In the case at hand, only one sanction was imposed as to each child adjudicated to be delinquent by reason of the commission of two delinquent acts--the unlawful simple possession of a controlled dangerous substance and the unlawful possession of that substance with intent to distribute.

5) In such circumstances, the principles of merger were not violated.

We flesh out our holdings.

I

Montrail M., Harold S., Jr. and Matio C., hereinafter the "Petitioners," were the subjects of a proceeding under the Juvenile Causes Act heard in the Circuit Court for Kent County, sitting as a juvenile court. The court conducted an adjudicatory hearing, and found that they were delinquent children because they had committed delinquent acts and required guidance, treatment, and rehabilitation. The delinquent acts which the court determined they had committed consisted of two victimless crimes arising out of one incident. When the Petitioners were apprehended, the police discovered that they had in their mutual possession crack cocaine, a controlled dangerous substance, contained in nine vials and a plastic packet. This discovery led to the court's findings, not now challenged, that each of the Petitioners not only possessed a controlled dangerous substance, proscribed by Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 287(a), but also, that they possessed the substance with intent to distribute it, proscribed by Art. 27, § 286(a)(1). The court further found that Montrail had violated the motor vehicle laws by operating an automobile without a driver's license. Upon a disposition hearing, the court committed each Petitioner to the jurisdiction of the Department of Juvenile Services with direction to place Montrail and Harold in Hickey School and Matio in Hurlock Home.

The Petitioners appealed. The Court of Special Appeals delivered an opinion, In re Montrail M., 87 Md.App. 420, 589 A.2d 1318 (1991), in which it affirmed the judgments of the circuit court with respect to Harold and Matio. As to Montrail, it affirmed the adjudications based on unlawful possession of a controlled dangerous substance and based on his unlawful possession of that substance with an intent to distribute, but reversed the adjudication that he violated the motor vehicle laws. The disposition of Montrail was vacated because "that disposition was based, in part, on the improper adjudication...." Id. at 427, 589 A.2d 1318. Montrail's case was remanded to the circuit court for further proceedings regarding his disposition. Id. at 438, 589 A.2d 1318.

Montrail, Harold and Matio joined in a petition for the issuance of a writ of certiorari. We granted the petition. Their position is capsuled in the heading of their argument in their brief:

The finding of "simple possession" of cocaine must be vacated under the doctrine of merger.

They conclude their argument with the "request that the trial court's judgment and that of the Court of Special Appeals be reversed," which we take to mean from the tenor of their argument that they seek new adjudicatory and disposition hearings. The objective of the Petitioners founders on the shoals of their erroneous concept of the effect of the application of the doctrine of merger.

II

A

The doctrine of merger was long known at the common law, and applied in criminal causes. Although a proceeding under the Juvenile Causes Act is deemed to be a civil action rather than a criminal cause, ³ we declared in Parojinog v. State, 282 Md. 256, 260, 384 A.2d 86 (1978), citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), that the provisions against being twice placed in jeopardy, contained in the Fifth Amendment to the Constitution of the United States and as a part of the common law of Maryland, are "fully applicable to juvenile adjudicatory proceedings."

B

The Fifth Amendment to the Constitution of the United States includes the clause "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." The Clause is enforceable in state criminal prosecutions through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the Maryland Constitution does not contain a provision prohibiting double jeopardy, the right was recognized in the common law long before the adoption of the Fifth Amendment, and was applied by our courts for many years before the decision in Benton. See Thomas v. State, 277 Md. 257, 353 A.2d 240 (1976). See also Middleton v. State, 318 Md. 749, 756, 569 A.2d 1276 (1990).

Under settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, as well as the usual rule for determining whether two offenses are deemed the same for double jeopardy purposes, when both offenses are based on the same act or acts, is the so-called "required evidence test."

Williams v. State, 323 Md. 312, 316, 593 A.2d 671 (1991). The required evidence test "applies to both common law and statutory offenses." Williams at 317, 593 A.2d 671. The test

"focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter."

Snowden v. State, 321 Md. 612, 617, 583 A.2d 1056 (1991), quoting from State v. Jenkins, 307 Md. 501, 517, 515 A.2d 465 (1986). The test was explained in Thomas v. State, 277 Md. 257, 267, 353 A.2d 240 (1976):

The required evidence is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy [and merger] purposes, even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy [and merger] purposes.

Judge Eldridge, speaking for the Court in Williams, at 318, 593 A.2d 671, observed:

Where two offenses are based on the same act or acts, and the two offenses are deemed to be the same under the required evidence test, merger follows as a matter of course.

"Where there is merger based upon the required evidence test, the offense not having a distinct element merges into the offense having a distinct element." Id. at 322, 593 A.2d 671.

III

A

In the case at hand, the required evidence test calls for the application of the doctrine of merger. The two victimless offenses, being based on the same act, are deemed to be the same under the required evidence test, and merger follows as a matter of course. As it is commonly phrased, the lesser offense merged into the greater offense. The merger, however, does not affect the adjudications of the circuit court based on the findings that the Petitioners had committed the two delinquent acts. The two adjudications are not inconsistent nor are they the result of successive prosecutions. We see no besmirching of the integrity of the determination that the Petitioners had committed the delinquent act of simple possession of cocaine as well as the delinquent act of possession of that substance with intent to distribute. The two adjudications stand inviolate, unaffected by the merger.

In a criminal prosecution a judgment consists of the conviction and the punishment imposed thereon; a conviction does not ripen into a judgment until amercement or a sentence of imprisonment is imposed. When this is translated into the language of juvenile proceedings, a judgment consists of an adjudication that a child is delinquent because of the commission of a delinquent act, and the disposition made of the child on that adjudication. The adjudication does not ripen into a judgment until disposition.

In a criminal prosecution, a merger does not serve to wipe out a conviction of the merged offense. The conviction simply flows into the judgment entered on the conviction into which it was merged. As we have seen, if the merger was prompted by the required evidence test, the lesser offense is merged into the greater offense. So here, the adjudication that each of the Petitioners was a delinquent child by reason of committing the delinquent act of the unlawful simple...