Scott v. State

• Citation: 230 Md.App. 411,148 A.3d 72
• Decision Date: 26 October 2016
• Docket Number: No. 2412, Sept. Term, 2014,2412, Sept. Term, 2014
• Parties: Theodore Scott v. State of Maryland
• Court: Court of Special Appeals of Maryland

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.

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.

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 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 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 prior convictions.

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 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 , 364 Md. 499, 504, 774 A.2d 387 (2001) ; see also Randall Book Corp. v. State , 316 Md. 315, 323, 558 A.2d 715 (1989) (“The Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense.”).

As long ago as United States v. Ball , 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court recognized that a defendant who successfully challenges his conviction for an offense on direct appeal can be retried for the same offense, without double jeopardy acting as a bar. United States v. Tateo , 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (allowing retrial of an offense after conviction was reversed on collateral attack). In Ball , the reversal on appeal was for trial court error. As the Court later explained in Burks v. United States , 437 U.S. 1, 14–15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), however, the cases that arose after Ball “generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency.”

The Burks Court was presented with the question whether the Double Jeopardy Clause bars a retrial of a...