Temoney v. State

• Decision Date: 05 May 1981
• Docket Number: No. 52,52
• Citation: 429 A.2d 1018,290 Md. 251
• Parties: James Tony TEMONEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 251

290 Md. 251

429 A.2d 1018

James Tony TEMONEY v. STATE of Maryland.

No. 52.

Court of Appeals of Maryland.

May 5, 1981.

Gary Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Thomas J. Saunders, Asst. Public Defender, Baltimore, on brief), for appellant.

Michael A. Anselmi, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

The defendant in this criminal case was charged in the Circuit Court for Prince George's County with rape, various other sexual offenses, armed robbery, burglary, false imprisonment, unlawful shooting with intent to maim, and carrying a dangerous weapon openly with intent to injure. All of these charges were based upon the same course of conduct occurring on May 16, 1978 in Prince George's County, Maryland.

Prior to trial, the State filed a notice that, if the defendant were convicted, it would seek a mandatory maximum sentence pursuant to Maryland Code (1957, 1976 Repl.Vol., 1980 Cum.Supp.), Art. 27, § 643B(c), providing a mandatory maximum sentence without the possibility of parole for persons convicted of a crime of violence who have previously been convicted on two separate occasions of crimes of violence. ¹ The prior convictions of crimes of violence were alleged in the State's notice as follows:

"1. Attempt to commit robbery on October 18, 1974 in the District of Columbia. Case # 73794-74A. Sentenced on December 17, 1974 under Federal Youth Correction Act.

"2. Robbery on March 26, 1976 in the District of Columbia. Case # 82645-75; sentenced to 18 months on May 7, 1976.

"3. Two counts of first degree rape on November 16, 1978 in Montgomery County, Maryland. Criminal Trial # 21238. Defendant was sentenced to life plus fifteen years."

At the conclusion of the trial, the jury found Temoney guilty on four counts: first degree rape, first degree sexual offense, robbery with a deadly weapon, and carrying a dangerous weapon openly with intent to injure. During the subsequent sentencing hearing, the State introduced certified copies of the docket entries in the prior cases and urged that the court sentence the defendant under § 643B(c), as one who has been convicted on two separate prior occasions of crimes of violence. ² The defendant argued that the State's evidence was insufficient, in several respects, to bring the case within § 643B(c).

The sentencing hearing concluded with the trial court saying that it was "taking into consideration those three prior offenses" in imposing sentences in the present case. However, the court stated that it would not decide whether Art. 27, § 643B(c), applied under the circumstances, and the court expressly refused to impose a sentence, without eligibility for parole, under that statutory provision. The court imposed a life sentence for rape, a consecutive life sentence for the first degree sexual offense, a consecutive twenty year sentence for armed robbery, and a three year sentence, to run concurrently with the robbery sentence, for carrying a dangerous weapon openly with intent to injure.

The State appealed to the Court of Special Appeals, contending that the trial court erred in not sentencing under the mandatory provisions of Art. 27, § 643B(c). ³ In its appeal, the State conceded that, in order to bring the case within § 643B(c), it had the burden of proving that Temoney was previously convicted twice of separate crimes of violence and had served one term of confinement for a crime of violence. The State relied exclusively on the two District of Columbia robbery convictions as the predicate for the application of § 643B(c), claiming that the docket entries and the presentence investigation report conclusively showed that these two robbery convictions qualified under § 643B(c). Since, in the State's view, it had met the burden of proving that the case came within § 643B(c), it sought a remand for the imposition of a mandatory sentence under that statute.

The defendant, in his appellee's brief addressed to the sentencing issue, argued to the Court of Special Appeals that the trial court's ultimate refusal to sentence under § 643B(c) should be upheld. Although not defending the trial court's unwillingness to rule on the applicability of § 643B(c), the defendant argued that the refusal to sentence under § 643B(c) was correct for a different reason, namely the insufficiency of the State's evidence to make a prima facie case under the mandatory sentencing statute. The principal asserted deficiency in the evidence was the State's alleged failure to prove that the District of Columbia convictions constituted "crimes of violence" within the meaning of the Maryland statute. The defendant argued that the statutory crime of robbery under District of Columbia law is broader than the common law crime of robbery applicable in Maryland, and that the District of Columbia offense encompasses activity which would not amount to robbery or any other crime of violence within the meaning of § 643B(c). The defendant claimed that nothing before the trial judge disclosed the underlying nature of the District of Columbia robbery convictions. The defendant further maintained that, in several other respects, the State's evidence was insufficient to bring the case within § 643B(c).

In addition to defending as an appellee the sentences imposed, the defendant took a cross-appeal claiming that there were several errors contributing to the guilty verdicts. None of these asserted errors, however, related to the propriety of the sentences imposed. The defendant's position in the Court of Special Appeals was that if the guilty verdicts were to be upheld, then the sentences imposed should be affirmed.

The Court of Special Appeals, with regard to Temoney's cross-appeal, found no reversible error relating to the guilty verdicts. State v. Temoney, 45 Md.App. 569, 572-580, 414 A.2d 240 (1980). As to the State's appeal from the sentences, however, the intermediate appellate court did not rule on the issue presented by both sides, i. e., the sufficiency of the evidence to bring the case within § 643B(c). Instead, after pointing out that the trial court erred in not deciding the applicability of § 643B(c), the Court of Special Appeals remanded the case "for the trial court's reconsideration of the facts under the provisions of article 27, section 643B(c)" and "for resentencing." 45 Md.App. at 585, 414 A.2d 240. The reason given for not deciding whether the State had made a prima facie case was that the "Court is limited to appellate review and is not empowered to make original factual findings." Id. at 584, 414 A.2d 240.

Thereafter, this Court granted Temoney's petition for a writ of certiorari, which challenged only that portion of the judgment of the Court of Special Appeals remanding the case for resentencing. The precise question presented in the petition for certiorari is, "Did the Court of Special Appeals err in remanding for a new sentencing hearing without determining whether the evidence was sufficient to find Petitioner a subsequent offender under Art. 27, § 643B?" The State filed no cross-petition for a writ of certiorari.

Temoney's position in this Court, as it was in the Court of Special Appeals, is that there was insufficient evidence to make a prima facie case for mandatory sentencing under Art. 27, § 643B(c), and that for this reason, the sentences imposed by the trial court should have been affirmed. In addition, Temoney argues that because the evidence was insufficient, a remand giving the State an opportunity to relitigate the issues violates that principle of double jeopardy law set forth in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). ⁴ In making this latter argument, Temoney seems to construe the opinion and judgment of the Court of Special Appeals as authorizing on remand the presentation of additional facts relating to the applicability of Art. 27, § 643B(c).

In response, the State in its brief initially asserts that the case involves no issue concerning the applicability of the double jeopardy principle announced in Burks v. United States, supra, because the "limited remand" by the Court of Special Appeals does not contemplate "further proceedings to allow the State another opportunity to prove his (the defendant's) status as a subsequent violent offender." (Respondent's brief, p. 6.) Instead, the State contends that the trial court's determination on remand is limited to considering "the facts adduced by the State at the original sentencing" (id. at p. 9, 98 S.Ct. at 2146). The State goes on, however, to agree with the defendant that robbery in the District of Columbia is a statutory crime encompassing conduct which would not amount to a "crime of violence" under Art. 27, § 643B. (Id. at p. 10, 98 S.Ct. at 2146.) Next, contrary to the basis for its appeal to the Court of Special Appeals, the State now concedes that its proof at the sentencing hearing concerning the nature of the District of Columbia convictions was "legally defective." (Ibid.) The State contends, however, that despite the limited nature of the remand order or the principle of Burks v. United States, supra, the State may properly remedy the defect on remand by introducing transcripts of the evidence, or transcripts of the factual bases for the guilty pleas, in the two District of Columbia cases. (Id. at p. 11, 98 S.Ct. at 2147.) At oral argument, the State clarified somewhat its seemingly contradictory positions by adopting the view that neither the Court of Special Appeals' remand order nor the Burks principle would preclude the presentation of additional evidence if judicial notice could be taken of that additional evidence.

I.

Much of the discussion by both sides before this Court has concerned...