Rudder v. State, No. 0286, September Term, 2007.

CourtCourt of Special Appeals of Maryland
Writing for the CourtCharles E. Moylan, Jr.
Citation181 Md. App. 426,956 A.2d 791
Docket NumberNo. 0286, September Term, 2007.
Decision Date09 September 2008
PartiesIsiah Michael RUDDER v. STATE of Maryland.
956 A.2d 791
181 Md. App. 426
Isiah Michael RUDDER
v.
STATE of Maryland.
No. 0286, September Term, 2007.
Court of Special Appeals of Maryland.
September 9, 2008.

[956 A.2d 793]

Rachel M. Kamins (Gary E. Bair, Bennett & Bair, LLP, on the brief), Greenbelt, for appellant.

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

Panel: KRAUSER, C.J., HOLLANDER, and CHARLES E. MOYLAN, JR., (Retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., J., (retired, specially assigned).


One of the law's ironies is that sometimes the solution to a problem begets a dozen new and unforeseen problems, that sometimes the answer to a question begets a dozen new and unforeseen questions. Thus it may have been with the Legislature's effort in 1961 to fashion a rational sentencing cap for those convicted of criminal conspiracy.

The appellant, Isiah Michael Rudder, was convicted by a Prince George's County jury, presided over by Judge Graydon S. McKee, III, of 1) robbery, 2) automobile theft, 3) theft of over $500 in value, 4) carrying a handgun, 5) transporting a handgun, and 6) conspiracy to commit carjacking and other lesser included crimes. On this appeal, he raises the five contentions

1. that Judge McKee erroneously imposed too high a sentence for the appellant's conviction on the conspiracy count;

2. that Judge McKee erred in seating a juror whose ability to be fair and impartial was arguably in doubt;

3. that Judge McKee erroneously failed to merge the conviction for automobile theft into the conviction for theft generally;

4. that Judge McKee erroneously failed to merge the theft conviction into the robbery conviction; and

5. that Judge McKee's sentencing was based on impermissible considerations.

How Specific Must the Conspiratorial Purpose Be?

The appellant's first contention is a perplexing one, although it involves only sentencing. It raises some questions to which there may be no satisfactory answers. Is there a fundamental incompatibility between a lesser specificity required to try and to convict someone of criminal conspiracy and a greater specificity required to sentence the convicted conspirator? In all cases? No. In many cases? Yes.

The appellant contends that when the jury convicted him, under Count Ten, of conspiracy, it did not convict him of conspiracy to commit carjacking, with which he had been charged, but only of conspiracy to commit theft. For guilt purposes, they are, at least in the circumstances of this case, one and the same. For purposes of establishing the maximum sentence, on the other hand, they are not. The contention is a bit strained but it is plausible, and it will entail significant further analysis.

956 A.2d 794

As far as the conviction for criminal conspiracy itself is concerned, whether the appellant's argument is right or wrong makes no difference. Either way, the appellant was guilty of conspiracy to commit a crime, to wit, to steal Mr. and Mrs. Nicknadavich's car on the night of February 24, 2006. Whatever particular crime or crimes were embraced within that generic conspiratorial purpose was surplusage and does not adversely affect the validity of the conspiracy conviction itself.

When it comes to sentencing the appellant for the conspiracy conviction, however, the appellant's contention makes a great deal of difference. A conspiracy to commit carjacking (armed or unarmed) carries a maximum penalty of 30 years. The appellant was sentenced to 30 years (with all but 15 years suspended). A conspiracy to commit the theft of property of the value of $500 or more (the Cadillac unquestionably was worth more than $500), by contrast, carries a maximum sentence of 15 years. Language that is mere surplusage in terms of the validity of the conviction itself may ironically determine whether the sentencing cap is one of 30 years or one of 15 years.

Sentencing a Convicted Conspirator

The aberrational quirk that this contention brings to light is that far less by way of specificity is required to charge one with criminal conspiracy and then to convict one of that conspiracy than is then required to sentence the defendant for the conviction. Some explanation is appropriate. The sentencing law for conspiracy was reformed in 1961. It would appear that 1961's solution to an earlier sentencing problem, however, has created a new sentencing problem. Time was when the degree of specificity required to charge and to convict one of conspiracy would also suffice to sentence one for conspiracy. That may no longer be the case.

Conspiracy is a common law crime. It arrived in our then proprietary colony as part of the unseen cargo of the Ark and the Dove. As a common law crime, it carried with it the common law penalty of anything in the discretion of the sentencing judge that was not, according to later constitutional scrutiny, cruel and unusual. Gary v. State, 341 Md. 513, 518 n. 5, 671 A.2d 495 (1996); Archer v. State, 145 Md. 128, 136, 125 A. 744 (1924). That open-ended penalty provision remained unchanged for 300 years, until Chapter 651 of the Acts of 1927 established that

"Every person convicted of the crime of conspiracy shall be liable to be punished by ... imprisonment ... for not more than ten years.

That sentencing provision, in effect for the next 34 years, did nothing to affect the parity between the specificity required to convict one of conspiracy and the specificity required to sentence someone for conspiracy. If the defendant was convicted of conspiracy, that was all the sentencing judge needed to know. No further fine-tuning or tweaking of the verdict was required. The obvious flaw with the 1927 sentencing provision, however, was that a defendant could, and sometimes did, receive a much harsher sentence for the inchoate conspiracy than for the consummated crime he conspired to commit. A conspiracy to scribble graffiti on a fence exposed one to the same maximum sentence of ten years as did a conspiracy to kill the king. There was a felt need for greater proportionality, necessitating some adjustment of the permissible sentence both upward and downward.

Chapter 691 of the Acts of 1961 was intended to be the solution, replacing the 1927 sentencing provision, which was repealed. As a side effect, however, it injected a specificity into the sentencing provision

956 A.2d 795

beyond that required to convict one of conspiracy. Codified for almost four decades as Art. 27, § 38, it is now Criminal Law Article, § 1-202. It is entitled "Conspiracy—Limitation on Punishment." (Emphasis supplied).

The punishment of a person who is convicted of conspiracy may not exceed the maximum punishment for the crime that the person conspired to commit.

(Emphasis supplied). See Gary v. State, 341 Md. 513, 517-18, 671 A.2d 495 (1996); DeLeon v. State, 102 Md.App. 58, 62-63, 648 A.2d 1053 (1994); Mills v. State, 12 Md.App. 449, 465-66, 279 A.2d 473 (1971). The express purpose of the new sentencing provision was to insure that a convicted conspirator did not receive a harsher sentence for the inchoate conspiracy than he could have received for the substantive offense he conspired to commit. Walker v. State, 53 Md.App. 171, 187 n. 5, 452 A.2d 1234 (1982). In that regard the change did its job well. Problems, however, were inadvertently created.

It must be remembered that a criminal conspiracy may consist not only of a combination to commit a crime but also of a combination to do a lawful act by criminal or unlawful means. Pearlman v. State, 232 Md. 251, 257, 192 A.2d 767 (1963); Garland v. State, 112 Md. 83, 86, 75 A. 631 (1910) ("The agreement may be to commit a crime ... or to do a lawful act by a criminal or unlawful means."); State v. Buchanan, 5 H. & J. 317, 352 (1821); Quaglione v. State, 15 Md.App. 571, 578, 292 A.2d 785 (1972); Wilson, Valentine and Nutter v. State, 8 Md.App. 653, 671, 262 A.2d 91 (1970); Jones v. State, 8 Md. App. 370, 375, 259 A.2d 807 (1969) ("Simply stated, conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means."). This variety of conspiracy is admittedly a rare bird, but it is out there, peering at the sentencing provision like a demon in the night. The penalty provision of § 1-202 cannot apply in such a case for the direct objective of the conspiracy is not the commission of a crime. At first blush, one might conclude that such a conspiracy, therefore, could not be punished.

The answer to that dilemma may be to remember that § 1-202 is only a limiting provision and not an authorizing provision. In Jones v. State, 8 Md.App. at 375-76, 259 A.2d 807, Judge Orth explained that when the limiting statute does not apply, the sentencing judge may fall back on the discretionary common law sentencing procedure.

Today punishment is prescribed by statute, but only by way of limitation and applicable only when the object of the conspiracy is an "offense." ... Thus it is when the object of the conspiracy is an indictable crime that the punishment for conspiracy to commit such crime may not exceed the punishment permitted for the object crime. If the object of the conspiracy is some other act with regard to which it is unlawful to conspire, the punishment is under the common law and the length of the sentence is left to the discretion of the trial court.

(Emphasis supplied).

As this Court's opinion in DeLeon further elucidated, the new sentencing provision of 1961 did not authorize sentencing for convicted conspirators. With the repeal of the 1927 sentencing law, the sentencing prerogative reverted to what it had been at common law, subject only to the limitation that is the subject of what is now § 1-202. DeLeon, 102 Md.App. at 62-63, 648 A.2d 1053, characterized both the new sentencing limitation for conspiracy and an analogous sentencing limitation for the inchoate crime of attempt.

956 A.2d 796

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22 practice notes
  • Savage v. State, No. 1741 Sept. Term 2011.
    • United States
    • Court of Special Appeals of Maryland
    • May 29, 2013
    ...a “common law crime” that “arrived in our then proprietary colony as part of the unseen cargo of the Ark and the Dove.” Rudder v. State, 181 Md.App. 426, 432, 956 A.2d 791 (2008). At common law, conspiracy “is complete without any overt [212 Md.App. 13]act” to advance its goal, Mason, 302 M......
  • Moore v. State , No. 1151
    • United States
    • Court of Special Appeals of Maryland
    • May 2, 2011
    ...resolve this issue in favor of appellant. Analogous Maryland and federal cases support our conclusion. In the case of Rudder v. State, 181 Md.App. 426, 956 A.2d 791 (2008), this [18 A.3d 996] Court addressed the unit of prosecution under the theft statute, C.L. §§ 7–104 and 105. Writing for......
  • Ray v. State, No. 1444
    • United States
    • Court of Special Appeals of Maryland
    • July 2, 2012
    ...2. In Maryland, conspiracy is a common law crime, and thus is not codified in the Annotated Code of Maryland. See Rudder v. State, 181 Md.App. 426, 432–34, 956 A.2d 791 (2008) (This Court defined conspiracy.). 3. Appellant phrased the issues as follows: I. Did the [circuit] court err in den......
  • Barnes v. Barnes, No. 106. September Term 2007.
    • United States
    • Court of Special Appeals of Maryland
    • September 9, 2008
    ...our knowledge, no judgment of absolute divorce has yet been rendered; appellant is in no danger of forfeiting her claim to a valid QDRO. 956 A.2d 791 Moreover, there is another reason why appellant's QDRO argument is not properly presented for appellate review: appellant did not make the ar......
  • Request a trial to view additional results
22 cases
  • Savage v. State, No. 1741 Sept. Term 2011.
    • United States
    • Court of Special Appeals of Maryland
    • May 29, 2013
    ...a “common law crime” that “arrived in our then proprietary colony as part of the unseen cargo of the Ark and the Dove.” Rudder v. State, 181 Md.App. 426, 432, 956 A.2d 791 (2008). At common law, conspiracy “is complete without any overt [212 Md.App. 13]act” to advance its goal, Mason, 302 M......
  • Moore v. State , No. 1151
    • United States
    • Court of Special Appeals of Maryland
    • May 2, 2011
    ...resolve this issue in favor of appellant. Analogous Maryland and federal cases support our conclusion. In the case of Rudder v. State, 181 Md.App. 426, 956 A.2d 791 (2008), this [18 A.3d 996] Court addressed the unit of prosecution under the theft statute, C.L. §§ 7–104 and 105. Writing for......
  • Ray v. State, No. 1444
    • United States
    • Court of Special Appeals of Maryland
    • July 2, 2012
    ...2. In Maryland, conspiracy is a common law crime, and thus is not codified in the Annotated Code of Maryland. See Rudder v. State, 181 Md.App. 426, 432–34, 956 A.2d 791 (2008) (This Court defined conspiracy.). 3. Appellant phrased the issues as follows: I. Did the [circuit] court err in den......
  • Barnes v. Barnes, No. 106. September Term 2007.
    • United States
    • Court of Special Appeals of Maryland
    • September 9, 2008
    ...our knowledge, no judgment of absolute divorce has yet been rendered; appellant is in no danger of forfeiting her claim to a valid QDRO. 956 A.2d 791 Moreover, there is another reason why appellant's QDRO argument is not properly presented for appellate review: appellant did not make the ar......
  • Request a trial to view additional results

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