Scott v. State, No. 2412, Sept. Term, 2014

CourtCourt of Special Appeals of Maryland
Writing for the CourtDeborah S. Eyler, J.
Citation230 Md.App. 411,148 A.3d 72
Parties Theodore Scott v. State of Maryland
Decision Date26 October 2016
Docket NumberNo. 2412, Sept. Term, 2014

230 Md.App. 411
148 A.3d 72

Theodore Scott
v.
State of Maryland

No. 2412, Sept. Term, 2014

Court of Special Appeals of Maryland.

October 26, 2016


Submitted by: Jeffrey M. Ross (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.

Submitted by: Brenda Gruss (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Deborah S. Eyler, Wright, Lawrence F. Rodowsky, (Senior Judge, Specially Assigned), JJ.

Deborah S. Eyler, J.

230 Md.App. 416

In this case we must decide whether, when a mandatory enhanced sentence for a third crime of violence is vacated on appeal because the evidence was legally insufficient to support a finding that one of the prior convictions was for a crime of violence, double jeopardy bars the State from introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. We hold that it does not. Our holding is at odds with the Court of Appeals decision in Bowman v. State , 314 Md. 725, 552 A.2d 1303 (1989). As we shall explain, the holding in Bowman was based solely on an analysis of federal constitutional double jeopardy law that the United States Supreme Court has since rejected.

FACTS AND PROCEEDINGS

A jury in the Circuit Court for Prince George's County convicted Theodore Scott, the appellant, of attempted robbery with a deadly weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit robbery with a deadly weapon. Scott committed the crimes on December 24, 2011, at a convenience store in Mt. Rainier.

230 Md.App. 417

For Scott's attempted armed robbery conviction, the State sought a mandatory minimum sentence of 25 years, without parole, for a third crime of violence, under Md. Code (2002, 2012 Repl. Vol.), section 14–101(d) of the Criminal Law Article (“CL”). The two predicate convictions for crimes of violence were Scott's prior conviction for first degree assault in Maryland1 and his prior conviction for aggravated assault in the Superior Court for the District of Columbia (“the D.C. conviction”). The D.C. conviction resulted from a guilty plea.

Under the D.C. aggravated assault statute, there are two modalities by which that

148 A.3d 76

crime may be committed. First, a person commits the crime if “(1) By any means, that person knowingly or purposely causes serious bodily injury to another person[.]” Second, a person commits the crime if “(2) Under circumstances manifesting extreme indifference to human life, that person intentionally or knowingly engages in conduct which creates a grave risk of serious bodily injury to another person, and thereby causes serious bodily injury.” D.C. Code 22–404.01(a)(1)–(2). The first modality of aggravated assault is virtually identical to the Maryland crime of first degree assault, which, as noted, is a “crime of violence” under CL section 14–101(a)(19). The second modality is similar to the Maryland crime of reckless endangerment, which is not a “crime of violence” under that statute.

At the sentencing hearing, the State introduced a certified copy of Scott's D.C. conviction. When defense counsel argued that the document was inadequate to prove the modality of the crime, and therefore that it was a crime of violence, the court postponed the sentencing hearing. At the reconvened sentencing hearing, the State introduced the statement of charges in the D.C. case. From that evidence, the sentencing court found that Scott's D.C. conviction was for a crime of violence and that his attempted armed robbery conviction was his third conviction for a crime of violence, under CL section 14–101(d). On that basis, it imposed the mandatory minimum sentence of

230 Md.App. 418

25 years' imprisonment, without parole, for attempted armed robbery. In addition, it sentenced Scott to 10 years, with all but 5 years suspended, for use of a handgun, to be served consecutively to the sentence for attempted armed robbery, and 10 years, all but 5 years suspended, for conspiracy, to be served consecutively to the sentence for use of a handgun.

Scott noted an appeal to this Court in which he argued, among other things, that the State's evidence at sentencing was legally insufficient to prove that his D.C. conviction was for a crime of violence, as defined in CL section 14–101(a), and therefore to establish that his attempted armed robbery conviction was for a third crime of violence. We agreed and vacated the sentence for attempted armed robbery, explaining:

[T]he transcript of the D.C. plea hearing was not produced at [Scott's] Maryland sentencing hearing. We are unable to tell “whether the statement of facts in support of the guilty plea tracked the Statement of Charges or whether other facts were subsequently developed or ignored for purposes of securing the plea.”

* * *

Furthermore, the D.C. indictment alleged, in the alternative, conduct that the State concedes would have amounted to the Maryland crime of reckless endangerment, a crime not included as a “crime of violence” under C.L. § 14–101 [a].

In the absence of evidence of a clear judicial admission by [Scott], we are persuaded that the State failed to meet its burden of proving the necessary predicates to support imposition of the mandatory sentence on Count 1 [attempted armed robbery] in this case.

Theodore Scott v. State of Maryland, No. 2491, September Term, 2012 (filed September 3, 2014), slip op. at 61. Citing Rule 8-604(d)(2), we remanded the case “for resentencing.”

At the resentencing hearing on remand, the State again sought to have Scott sentenced to a mandatory term of 25 years' imprisonment, without parole, for attempted armed robbery, under CL section 14–101(d), based on the same two

230 Md.App. 419

prior convictions.

148 A.3d 77

This time, the State moved into evidence the transcript of the guilty plea hearing that led to Scott's D.C. conviction. Scott objected, arguing that, having failed to introduce legally sufficient evidence to prove that the D.C. conviction was for a crime of violence at the original sentencing, the State was prohibited, by principles of double jeopardy, from introducing evidence to prove the same thing on remand.

The sentencing court overruled Scott's objection and, based on the guilty plea transcript, found that his D.C. conviction was for a crime of violence under CL section 14–101(a) and imposed the mandatory sentence of 25 years' imprisonment, without parole, for attempted armed robbery, under CL section 14–101(d). The court did not resentence Scott on the use of a handgun and conspiracy convictions.

Scott noted this appeal, presenting four questions, which we have rephrased:

I. Did the resentencing court violate his double jeopardy rights by imposing a mandatory twenty-five year sentence for attempted armed robbery, under CL section 14–101(d), based on prior convictions that included the D.C. conviction?

II. Did the resentencing court exceed the scope of its authority under this Court's remand order?

III. Did the resentencing court err by ruling the evidence legally sufficient to prove that the D.C. conviction was for a crime of violence?

IV. Did the resentencing court err by refusing to consider making the sentences for use of a handgun and conspiracy concurrent with the mandatory twenty-five year sentence for attempted armed robbery?

For the following reasons, we shall affirm the judgments.

DISCUSSION

I.

A. Federal Constitutional Law of Double Jeopardy

Because the evidence adduced at his original sentencing hearing was legally insufficient to prove that his D.C. conviction

230 Md.App. 420

was for a crime of violence, Scott contends the State was barred by the Double Jeopardy Clause of the Fifth Amendment from introducing new evidence at resentencing to prove that the D.C. conviction was for a crime of violence. He relies primarily on Bowman v. State , 314 Md. 725, 552 A.2d 1303 (1989).

The State responds that double jeopardy principles did not bar it from introducing the new evidence on resentencing because the evidence was being used to prove “sentencing factors,” not to prove the elements of an offense. It relies on Almendarez Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), and argues that the precedential effect of Bowman must be re-evaluated in light of those Supreme Court cases.

The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend V. That right, applicable to the states through the Fourteenth Amendment, see Benton v. Maryland , 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), protects criminal defendants from successive prosecution for the same offense and cumulative punishment for the same offense. Farrell v. State ,...

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9 practice notes
  • State v. Salas, 34,146
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2017
    ...(1989) (holding, post- Lockhart , that insufficient evidence prohibits retrial in a habitual offender proceeding), with Scott v. State , 230 Md.App. 411, 148 A.3d 72, 83-84 (2016) (departing from Bowman and holding, post- Monge , that insufficient evidence does not prohibit retrial in a hab......
  • Scott v. State, No. 91, Sept. Term, 2016
    • United States
    • Court of Special Appeals of Maryland
    • July 10, 2017
    ...introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. Scott v. State , 230 Md.App. 411, 450, 416, 148 A.3d 72, 95, 75 (2016). The Court acknowledged that its "holding [wa]s at odds with" Bowman v. State , 314 Md. 725, 740, 552......
  • Morris v. Goodwin, No. 749, Sept. Term, 2014
    • United States
    • Court of Special Appeals of Maryland
    • October 26, 2016
    ...to appellee is based on fraud, a voidable ground, we conclude that appellant, as personal representative of Katherine's estate, does 148 A.3d 72not have standing to bring an action challenging Katherine's marriage to appellee on Katherine's behalf. Accordingly, the trial court did not err b......
  • Antoine v. State, No. 2880, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • April 14, 2020
    ...double jeopardy.14 The latter "is not coextensive with the Fifth Amendment Double Jeopardy Clause in every way." Scott v. State , 230 Md. App. 411, 436, 148 A.3d 72 (2016), aff'd , 454 Md. 146, 164 A.3d 177 (2017). Indeed, the common law right is, in some instances, more protective of crimi......
  • Request a trial to view additional results
9 cases
  • State v. Salas, 34,146
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2017
    ...(1989) (holding, post- Lockhart , that insufficient evidence prohibits retrial in a habitual offender proceeding), with Scott v. State , 230 Md.App. 411, 148 A.3d 72, 83-84 (2016) (departing from Bowman and holding, post- Monge , that insufficient evidence does not prohibit retrial in a hab......
  • Scott v. State, No. 91, Sept. Term, 2016
    • United States
    • Court of Special Appeals of Maryland
    • July 10, 2017
    ...introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. Scott v. State , 230 Md.App. 411, 450, 416, 148 A.3d 72, 95, 75 (2016). The Court acknowledged that its "holding [wa]s at odds with" Bowman v. State , 314 Md. 725, 740, 552......
  • Morris v. Goodwin, No. 749, Sept. Term, 2014
    • United States
    • Court of Special Appeals of Maryland
    • October 26, 2016
    ...to appellee is based on fraud, a voidable ground, we conclude that appellant, as personal representative of Katherine's estate, does 148 A.3d 72not have standing to bring an action challenging Katherine's marriage to appellee on Katherine's behalf. Accordingly, the trial court did not err b......
  • Antoine v. State, No. 2880, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • April 14, 2020
    ...double jeopardy.14 The latter "is not coextensive with the Fifth Amendment Double Jeopardy Clause in every way." Scott v. State , 230 Md. App. 411, 436, 148 A.3d 72 (2016), aff'd , 454 Md. 146, 164 A.3d 177 (2017). Indeed, the common law right is, in some instances, more protective of crimi......
  • Request a trial to view additional results

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