State v. Johnson
| Decision Date | 27 March 2015 |
| Docket Number | No. 53, Sept. Term, 2014.,53, Sept. Term, 2014. |
| Citation | 112 A.3d 383,442 Md. 211 |
| Parties | STATE of Maryland v. Derrell JOHNSON. |
| Court | Court of Special Appeals of Maryland |
442 Md. 211
112 A.3d 383
STATE of Maryland
v.
Derrell JOHNSON.
No. 53, Sept. Term, 2014.
Court of Appeals of Maryland.
March 27, 2015.
Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.
Piedad Gomez, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.
Opinion
WATTS, J.
We decide whether the convictions for one or all predicate felonies merge for sentencing purposes with a felony murder conviction1 where a defendant is convicted
of felony murder and multiple predicate felonies.
We hold that, where a defendant is convicted of felony murder and multiple predicate felonies, only one predicate felony conviction merges for sentencing purposes with the felony murder conviction; and, absent an unambiguous designation that the trier of fact intended a specific felony to serve as the predicate felony, the conviction for the felony with the greatest maximum sentence merges for sentencing purposes.
BACKGROUND
The State, Petitioner, charged Derrell Johnson (“Johnson”), Respondent, and three other people with various crimes, including first-degree murder, kidnapping, robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence or felony, and unlawfully wearing, carrying, or transporting a handgun. In the Circuit Court for Baltimore City (“the circuit court”), a jury tried Johnson and his three co-defendants. At trial, the State's theory of the case was that, on April 21, 2009, Johnson, the three codefendants, and possibly another person kidnapped Qonta Charles Waddell (“Waddell”), put Waddell in a truck, and tried to get money from him. While the truck was parked in an alley in
the 3100 block of Windsor Avenue, Waddell attempted to escape, and one of Johnson's co-defendants shot and killed Waddell. The jury convicted Johnson of, among other crimes, felony murder, kidnapping, and robbery.2
On January 18, 2012, the circuit court sentenced Johnson, in relevant part, to life imprisonment for felony murder, twenty years' imprisonment concurrent for kidnapping, and ten years' imprisonment concurrent for robbery.3 Johnson appealed and, in an unreported opinion, the Court of Special Appeals vacated the sentences for the convictions for kidnapping and robbery, determining that the rule of lenity required merger for sentencing purposes of the convictions for kidnapping and robbery with the felony murder conviction because it was unclear which felony was the predicate felony for the felony murder conviction. The Court of Special Appeals
also vacated the sentences for the convictions for conspiracy to commit kidnapping and conspiracy to commit robbery with a dangerous weapon, and affirmed in all other respects.
The State petitioned for a writ of certiorari, raising one issue: “Did the Court of Special Appeals err in merging both
the kidnapping and robbery sentences into the felony murder sentence, rather than merging only one of them?” On August 27, 2014, we granted the petition. See State v. Johnson, 439 Md. 694, 98 A.3d 233 (2014).
DISCUSSION
The State contends that the Court of Special Appeals erred in merging for sentencing purposes the kidnapping and robbery convictions with the felony murder conviction. The State argues that, because Maryland law requires one predicate felony for a felony murder conviction, where a defendant is convicted of multiple predicate felonies, only one predicate felony conviction—not all of them—merges for sentencing purposes with the felony murder conviction. The State asserts that the conviction for the predicate felony with the greatest maximum sentence (here, kidnapping) merges for sentencing purposes.
Johnson responds that the Court of Special Appeals was correct in holding that the kidnapping and robbery convictions both merged for sentencing purposes with the felony murder conviction. Johnson contends that it is unclear whether kidnapping, robbery, or both crimes formed the basis for the felony murder conviction, and thus, the required evidence test and Maryland case law require that any ambiguity be resolved in his favor and that the convictions for both kidnapping and robbery merge for sentencing purposes with the felony murder conviction. In addition, Johnson argues that the rule of lenity requires that the convictions for both kidnapping and robbery merge for sentencing purposes with the felony murder conviction, and asserts that the General Assembly has not indicated an intent to permit separate sentences where felony murder is based on multiple predicate felonies. Johnson agrees with the State that, should this Court conclude that the conviction for one predicate felony merges for sentencing purposes with the felony murder conviction, then the conviction for the predicate felony with the greatest maximum sentence (here, kidnapping) should merge for sentencing purposes.
In a reply brief, the State contends that the General Assembly has expressed the view that, although multiple crimes may be predicate felonies, only one predicate felony is required for a felony murder conviction, and thus separate sentences are permissible for additional predicate felonies.
The Fifth Amendment to the United States Constitution provides, in relevant part: “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb[.]”4 “The Double Jeopardy Clause protects a criminal defendant against ... multiple punishment for the same offense.” Brown v. State, 311 Md. 426, 431, 535 A.2d 485, 487 (1988) (citations omitted). “Multiple punishment challenges generally arise” where, for example, a statute “proscribes designated conduct, and the question is whether the defendant's conduct constitutes more than
one violation of this proscription.” Id. at 431, 535 A.2d at 487 (citation omitted).
Recently, in Brooks v. State, 439 Md. 698, 737, 98 A.3d 236, 258 (2014), we discussed merger for sentencing purposes, explaining:
The merger of convictions for purposes of sentencing derives from the protection against double jeopardy afforded by the Fifth Amendment of the federal Constitution and by Maryland common law. Merger protects a convicted defendant from multiple punishments for the same offense. Sentences for two convictions must be merged when: (1) the convictions are based on the same act or acts, and (2) under the required evidence test, the two offenses are deemed to be the same, or one offense is deemed to be the lesser included offense of the other.
(Citations omitted). As to the required evidence test, in Nicolas v. State, 426 Md. 385, 401–02, 44 A.3d 396, 405–06 (2012), we stated:
The required evidence 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. Stated another way, 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, there is no merger under the required evidence test even though both offenses are based upon the same act or acts. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts[,] merger follows.
(Citations and ellipses omitted); see also McGrath v. State, 356 Md. 20, 24, 736 A.2d 1067, 1069 (1999) (The required evidence test “is a long-standing rule of law to determine whether one offense is included within another when both are based on the same act or acts.” (Citation omitted)).
The rule of lenity provides another standard for determining merger for sentencing purposes. See McGrath, 356 Md. at 24–25, 736 A.2d at 1069 (“[T]he required evidence test is not the exclusive standard under Maryland law for determining questions of merger, and even where two offenses are separate under the required evidence test, there still may be a merger for sentencing purposes based on considerations such as the rule of lenity [.]” (Citation and internal quotation marks omitted)). “The rule of lenity, applicable to statutory offenses only, provides that where there is no indication that the [General Assembly] intended multiple...
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