Scott v. State
| Decision Date | 26 October 2016 |
| Docket Number | No. 2412,2412 |
| Parties | THEODORE SCOTT v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
REPORTED
Eyler, Deborah S., Wright, Rodowsky, Lawrence F. (Senior Judge, Specially Assigned), JJ.
Opinion by Eyler, Deborah S., 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 (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.
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 SuperiorCourt 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:
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. Thistime, 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:
For the following reasons, we shall affirm the judgments.
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 (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 (1998), and Monge v. California, 524 U.S. 721 (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 (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 (2001); see also Randall Book Corp. v. State, 316 Md. 315, 323 (1989) ().
As long ago as United States v. Ball, 163 U.S. 662 (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 (1964) (). 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 (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 defendant for an offense after his conviction was reversed on appeal not for trial court error but for "the evidence [being] insufficient to sustain the verdict of the jury." Id. at 5 (footnote omitted). The defense argued that, for double jeopardy purposes, no rational distinction could be drawn between an acquittal by the trial court for legally insufficient evidence and a reversal by a reviewing court for legally insufficient evidence. In the former situation, a retrial for...
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