Whack v. State

• Decision Date: 07 July 1980
• Docket Number: No. 97,97
• Citation: 288 Md. 137,416 A.2d 265
• Parties: Tommy WHACK v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 137

288 Md. 137

416 A.2d 265

Tommy WHACK v. STATE of Maryland.

No. 97.

Court of Appeals of Maryland.

July 7, 1980.

Geraldine Kenney Sweeney, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Bonnie A. Travieso, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

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

ELDRIDGE, Judge.

The issue in this criminal case is whether separate sentences may be imposed for robbery with a deadly weapon in violation of Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 488, and use of a handgun in the commission of a felony in violation of Art. 27, § 36B(d), where both convictions are based upon a single act of robbery with a handgun.

The petitioner Tommy Whack was convicted by a jury in the Circuit Court for Prince George's County on two counts of robbery with a deadly weapon, one count of use of a handgun in the commission of a felony (i. e., robbery), and two counts of assault. All charges grew out of the same incident, namely the robbery of a Safeway grocery store in Landover, Maryland, on January 17, 1978. Moreover, the handgun charge was based on the same act of robbery as one of the armed robbery counts. Whack was sentenced to twenty years' imprisonment on each of the robbery counts, and five years on each of the assault counts, all of these sentences to run concurrently. He was sentenced to five years' imprisonment on the handgun count, to run consecutively to the armed robbery sentences. On appeal to the Court of Special Appeals, Whack, inter alia, challenged the imposition of separate consecutive sentences for robbery with a deadly weapon and use of a handgun in the commission of that robbery. The intermediate appellate court rejected this contention on the basis of its earlier opinion in Stevenson v. State, 43 Md.App. 120, 403 A.2d 812 (1979), aff'd on other grounds, 287 Md. 504, 413 A.2d 1340 (1980) and, in an unreported opinion, upheld Whack's convictions and sentences. ¹

Whack filed a petition for a writ of certiorari, presenting one question: "Did the Court of Special Appeals err in holding that it was permissible to impose consecutive sentences for robbery with a deadly weapon and use of a handgun in the commission of that crime?" The State filed a conditional cross-petition for a writ of certiorari, arguing that, because the propriety of the consecutive sentences had not been challenged in the trial court, the Court of Special Appeals abused its discretion under Maryland Rule 1085 in considering the matter on its merits. We granted both the petition and the cross-petition. Because we shall hold that the Court of Special Appeals did not err in upholding the consecutive sentences, it is unnecessary to consider the issue raised in the State's cross-petition.

In Maryland, robbery is a single common law offense. Art. 27, §§ 486 and 488, do not create separate statutory offenses but merely fix the penalties for the one crime of robbery. Section 486 provides for not less than three and not more than ten years' imprisonment. If the robbery, however, is committed "with a dangerous or deadly weapon," § 488 prescribes twenty years' imprisonment as the maximum penalty for robbery. See generally, e.g., Bynum v. State, 277 Md. 703, 707, 357 A.2d 339, 341, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976); Bennett and Flynn v. State, 237 Md. 212, 214-216, 205 A.2d 393 (1964); Jackson v. State, 231 Md. 591, 593-595, 191 A.2d 432 (1963); Hayes v. State 211 Md. 111, 126 A.2d 576 (1956). On the other hand, the use of a handgun in the commission of any felony and in the commission of certain violent misdemeanors is entirely a creature of statute, being part of the handgun control act of 1972, Ch. 13 of the Acts of 1972, codified as Art. 27, §§ 36B-36F. The use of a handgun in the commission of any felony, or any of the designated violent misdemeanors, is punishable by imprisonment of from five to fifteen years, with the five years being a non-suspendable mandatory minimum sentence. Article 27, § 36B (d) and (e); State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974).

The principal thrust of petitioner's argument is that the Legislature did not intend, in enacting §§ 488 and 36B(d) of Art. 27, to authorize the imposition of both the enhanced penalty of up to ten additional years under § 488 for the use of a dangerous or deadly weapon, and the enhanced penalty of from five to fifteen years under § 36B(d) for use of a handgun, where there is a single act of robbery committed with only a handgun. In petitioner's view, only one offense is committed under these facts. The petitioner also suggests in his brief that if the Legislature did intend to authorize the imposition of both enhanced penalties under such circumstances, it would violate the Fifth Amendment's prohibition against double jeopardy, citing State v. Hudson, 562 S.W.2d 416, 418 (Tenn.1978).

As this Court has said on several occasions recently, the general rule for determining whether two criminal violations, treated separately under the statutory provisions, should be deemed the same when both violations are based on the same transaction, is the so-called "same evidence" or "required evidence" test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct 180, 76 L.Ed. 306 (1932); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911); and originally formulated in Morey v. Commonwealth, 108 Mass. 433 (1871). Under this test, the violations are separate if each " 'requires proof of an additional fact which the other does not,' " Gavieres, 220 U.S. at 342, 31 S.Ct. at 422, or, stated another way, if "(e)ach of the offenses created requires proof of a different element." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. However, if only one has a distinctive element, they are deemed to be the same offense under the required evidence test. ² We have generally applied this standard to decide the permissibility of successive trials, as well as multiple punishment, under the double jeopardy clause of the Fifth Amendment, under Maryland common law double jeopardy principles, and as a matter of Maryland merger law. See, e.g., Lewis v. State, 285 Md. 705, 722-723, 404 A.2d 1073 (1979); Brooks v. State, 284 Md. 416, 419-421, 397 A.2d 596 (1979); State v. Frye, 283 Md. 709, 713-715, 393 A.2d 1372 (1978); Johnson v. State, 283 Md. 196, 203-204, 388 A.2d 926 (1978); Newton v. State, 280 Md. 260, 266-268, 373 A.2d 262 (1977); Bynum v. State, supra, 277 Md. at 706, 357 A.2d 339; Cousins v. State, 277 Md. 383, 388-389, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976); Thomas v. State, 277 Md. 257, 266-267, 353 A.2d 240 (1976). The required evidence test has also been called a rule of statutory construction, Whalen v. United States, --- U.S. ---, ---, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980).

In addition, we have recognized that the required evidence test is not the only standard for determining when two statutory violations, based on the same transaction, will be treated as one. With regard primarily to successive trials, we have stated that " 'there may be situations where the required evidence test . . . might not be adequate to afford the protection against undue harassment embodied in the purpose of the prohibition against double jeopardy.' " Brooks v. State, supra, 284 Md. at 423, 397 A.2d at 599; Cousins v. State, supra, 277 Md. at 397, 354 A.2d 825.

The imposition of multiple punishment, however, is often particularly dependent upon the intent of the Legislature. Just last year in Brooks v. State, supra, 284 Md. at 423, 397 A.2d 596, it was pointed out that, although the required evidence test is the normal standard for deciding the allowability of separate sentences, the Legislature may not in certain circumstances intend that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test. On the other hand, as recognized in Newton v. State, supra, 280 Md. at 274 n.4, 373 A.2d 262, even though two offenses may be deemed the same under the required evidence test, separate sentences may be permissible, at least where one offense involves a particularly aggravating factor, if the Legislature expresses such an intent. ³

The petitioner, in arguing that the General Assembly of Maryland did not intend to authorize separate sentences under both § 488 and § 36B(d) for the same act of robbery with a handgun, relies chiefly upon Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). In Simpson, according to the petitioner, the Supreme Court "answered the identical question now before this Court." (Petitioner's brief, p. 5.) Simpson held that when a person was convicted of robbing a bank "by the use of a dangerous weapon or device" in violation of 18 U.S.C. § 2113(d) (providing an enhanced penalty beyond that for simple bank robbery under 18 U.S.C. § 2113(a)), Congress did not also intend to authorize for the same act the imposition of an additional penalty for using "a firearm to commit any felony" proscribed by 18 U.S.C. § 924(c).

The Supreme Court in Simpson first noted that §§ 924(c) and 2113(d) were "addressed to the same concern and designed to combat the same problem: the use of dangerous weapons most particularly firearms to commit federal felonies." 435 U.S. at 10, 98 S.Ct. at 911. The Court then pointed out (id. at 11, 98 S.Ct. at 912), quoting Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), that ordinarily the "test for determining 'whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment,' " is the required evidence test of Blockburger v. United States, supra. The...