Testerman v. State, 2781, September Term, 2004.
| Citation | 907 A.2d 294,170 Md. App. 324 |
| Decision Date | 13 September 2006 |
| Docket Number | No. 2781, September Term, 2004.,2781, September Term, 2004. |
| Parties | David Allen TESTERMAN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Mark Colvin (Nancy S. Forster, Public Defender, on brief), for appellant.
Robert Taylor, Jr. (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel DAVIS, EYLER, JAMES R. and KRAUSER, JJ.
Appellant David Allen Testerman was convicted by a jury in the Circuit Court for Harford County of eluding a uniformed police officer as well as driving while impaired, driving while his license was suspended, and making an unsafe lane change. Having been previously convicted of both driving while impaired and driving while his license was suspended, he was thereafter sentenced as a subsequent offender under §§ 27-101(f)(1) and 27-101(h)(2) of the Transportation Article.
On appeal, he presents two questions for review, which are set forth below largely as they appear in his brief:
1. Was [appellant] improperly sentenced as a subsequent offender?
2. Is the evidence insufficient to sustain the conviction for fleeing and eluding a police officer, and was [appellant] denied his constitutional right to the effective assistance of counsel because his trial attorney failed to preserve the sufficiency issue for appellate review?
For the reasons that follow, we hold that the evidence did not support appellant's conviction for eluding. Although his counsel failed to raise this issue below and thus preserve it for appellate review, we shall nonetheless reverse his conviction for that offense on the ground that, in failing to do so, his attorney did not provide effective assistance of counsel for that offense. Notwithstanding our reversal of this conviction, we hold that appellant was properly sentenced as a subsequent offender.
The State's case began with the parties stipulating that, on the date of appellant's arrest, his license was suspended. A single witness, Officer James McGarvey of the Aberdeen Police Department, then testified for the State. He stated that, at about 7:00 p.m., on November 28, 2003, he was driving a marked patrol car on Rogers Street in Aberdeen when a gray Ford truck briefly swerved into his lane. After braking to avoid being struck by that vehicle, he moved into the truck's lane. When he was directly behind the truck, he turned on his lights and siren, radioed the truck's license plate number to the dispatcher, and followed the truck onto Route 40. After traveling for approximately a quarter of a mile, the truck pulled over.
Pulling up directly behind the truck, Officer McGarvey shined the spotlight of his patrol car on the back of the vehicle. As he got out of his patrol car, the officer observed appellant, who was sitting in the driver's seat, switch seats with the front seat passenger. After radioing for another officer, he walked over to the passenger's side of the truck and asked appellant, now ensconced in the front passenger seat, for his driver's license. Appellant responded by declaring that he "wasn't driving," and, in so doing, orally emitted an "overwhelming smell" of alcohol.
The officer then opened the passenger side door of the truck and asked appellant to get out. When he did, the officer observed that appellant had "poor balance;" "couldn't stand on his own;" and "had to put his hands up against the truck for support." The officer further noted that appellant's eyes were "glassy and bloodshot."
Officer McGarvey then asked appellant to perform three field sobriety tests. He refused and again insisted that he had not been driving the truck. The officer placed appellant under arrest and transported him to the Aberdeen Police Department. Walking from the patrol car to the police station, appellant was "unsteady," had "very poor balance," and, according to the officer, needed help walking up the steps. In the station, he refused to take a Breathalyzer test.
The State's case was followed by a defense motion to dismiss all of the charges against appellant. In making that motion, defense counsel offered no argument but simply stated, "Your Honor, I would make a motion as to all the charges and I would submit." It was denied.
Appellant called one witness to testify, David Druyor, before testifying himself. Druyor stated that, on November 28, 2003, he had driven appellant, as he often did, to and from appellant's place of work. When they arrived at appellant's home, appellant took a shower and asked Druyor to take him to Wal-Mart to buy a television set. But Druyor's car was too small to accommodate such a large item, so they took the truck that belonged to appellant's mother. Appellant drove, with Druyor in the passenger seat and appellant's small dog between them.
While appellant was driving, the dog jumped on his arm, Druyor claimed, causing the truck to swerve towards Officer McGarvey's vehicle. When, in response, the officer turned on his emergency lights, appellant asked Druyor to switch seats with him. He agreed and, after appellant stopped the truck, they changed seats. Appellant had not consumed any alcohol, Druyor asserted, either before or after getting into the truck.
The defense concluded with appellant's testimony. He admitted that he was driving the truck at the time he was pulled over by Officer McGarvey. But, he claimed that his dog caused him to swerve his truck. When, a few seconds later, the officer turned on his emergency lights, appellant insisted that he pulled over as soon as it was safe to do so. After stopping, he and his passenger switched seats, appellant admitted. But he denied that he had any alcohol to drink that day or that his eyes were glassy or that he needed help walking. He refused to take a Breathalyzer test because he was, in his words, "upset" and "mad" at Officer McGarvey.
At the close of all the evidence, defense counsel said, "I would make the motion [for judgment] at this time." That motion was also denied.
At sentencing, the prosecutor offered into evidence State's Exhibits 1 and 2, the "Subsequent Offender Notices." The exhibits were received into evidence, without objection.
The two exhibits recited that "The following offense(s) will be relied on in requesting subsequent offender treatment." Together, they presented the following information:
OFFENSE DATE CONVICTION DATE OFFENSE TRANSPORTATION SECTION
11/11/91 10/15/92 DRIVE WHILE REF/CAN/SUSP/REVOKE LICENSE 16-303
02/27/92 12/02/92 DRIVE WHILE REF/CAN/SUSP/REVOKE LICENSE 16-303
OFFENSE DATE CONVICTION DATE OFFENSE TA-SECTION
06/11/84 DRIVE WHILE INTOXICATED 21-902-A
09/12/91 06/18/92 DRIVE WHILE INTOXICATED 21-902-A
12/25/91 10/15/92 DRIVE UNDER THE INFLUENCE 21-902-B
01/16/92 10/15/92 DRIVE UNDER THE INFLUENCE 21-902-B
02/17/94 10/19/94 DRIVE WHILE INTOXICATED 21-902-A
11/13/95 04/03/97 DRIVE WHILE INTOXICATED 21-902-A
The circuit court thereafter sentenced appellant to a term of one year's imprisonment and fined him $500 as a subsequent offender for driving while impaired; to a term of two years' imprisonment and fined him $500 as a subsequent offender for driving while his license was suspended; and to a term of one year's imprisonment and fined him $500 for eluding a uniformed police officer. After suspending the fines for both driving while his license was suspended and eluding a uniformed police officer and then ordering that all terms of imprisonment were to run consecutively, the court suspended the term of one year's imprisonment for eluding and imposed a five-year term of probation to commence with appellant's release from incarceration.
Appellant contends that the court erred in sentencing him as a subsequent offender because the State, he claims, failed to prove the existence of the requisite prior convictions. The court, he argues, should not have relied on the Subsequent Offender Notices introduced by the State because they were not competent evidence of his prior convictions.
Appellant was sentenced as a subsequent offender under § 27-101 of the Transportation Article of the Maryland Code, which provides, in part:
§ 27-101 Penalties for misdemeanor.
* * *
(c) [Penalties] — $500 and 2 months. — Any person who is convicted of a violation of any of the provisions of the following sections of this article is subject to a fine of not more than $500 or imprisonment for not more than 2 months or both:
* * *
(23) Except as provided in subsections (f) and (q) of this section, § 21-902(b) ();
* * *
(f) Same — $500 and 1 year; prior conviction of § 21-902(a). —
* * *
(ii) A second or subsequent violation of:
* * *
A. § 21-902(b) of this article ("Driving while impaired by alcohol");
* * *
(h) Same — $1,000 and 1 year; $1,000 and 2 years. — Any person who is convicted of a violation of any of the provisions of § 16-303(a), (b), (c), (d), (e), (f), or (g) of this article ("Driving while license is canceled, suspended, refused, or revoked"), § 17-107 of this article ("Prohibitions"), or § 17-110 of this article ("Providing false evidence of required security") is subject to:
(1) For a first offense, a fine of not more than $1,000, or imprisonment for not more than 1 year, or both; and
(2) For any subsequent offense, a fine of not more than $1,000, or imprisonment for not more than 2 years, or both.
"[T]he burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all the statutory conditions precedent for the imposition of enhanced...
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