Garner v. State , 442 Md. 226 ( 2015 )

Terance Garner v. State of Maryland, No. 41, September Term, 2014
USE OF A HANDGUN IN THE COMMISSION OF A CRIME OF VIOLENCE OR
ANY FELONY – UNIT OF PROSECUTION – MERGER – SENTENCING – Court
of Appeals held that, under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (“CR”) §
4-204, imposition of separate consecutive sentences for two convictions of use of handgun
in commission of crime of violence or any felony is permissible where defendant uses one
handgun to commit two separate crimes of violence or felonies against one victim in one
criminal transaction because unit of prosecution is crime of violence, not victim or criminal
transaction. Court of Appeals also held that case should be remanded for re-sentencing
because trial court did not impose sentence consistent with CR § 4-204.
Circuit Court for Baltimore City
Case Nos. 111031032 & 111031033
Argued: February 10, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 41
September Term, 2014
______________________________________
TERANCE GARNER
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: March 27, 2015
We decide: (I) whether, under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.)
(“CR”) § 4-204, imposition of separate consecutive sentences for two convictions of use
of a handgun in the commission of a crime of violence or any felony is permissible where
a defendant uses one handgun to commit two separate crimes of violence or felonies against
one victim in one criminal transaction; and (II) whether this case should be remanded for
re-sentencing on the ground that the trial court imposed a sentence that was inconsistent
with CR § 4-204.
We hold that: (I) under CR § 4-204, imposition of separate consecutive sentences
for two convictions for use of a handgun in the commission of a crime of violence or any
felony is permissible where a defendant uses one handgun to commit two separate crimes
of violence or felonies against one victim in one criminal transaction because the unit of
prosecution is the crime of violence, not the victim or criminal transaction; and (II) this
case should be remanded for re-sentencing because the trial court did not impose a sentence
that was consistent with CR § 4-204.
BACKGROUND
The State, Respondent/Cross-Petitioner, charged Terance Garner (“Garner”),
Petitioner/Cross-Respondent, in the Circuit Court for Baltimore City (“the circuit court”),
in Case Numbers 111031032 and 111031033, with various crimes, including attempted
first-degree murder and attempted robbery with a dangerous weapon. In the circuit court,
a jury tried Garner and his co-defendant, Davon Butler (“Butler”).
Trial
At trial, as a witness for the State, Baltimore Police Officer Jacob Reed (“Officer
Reed”), who worked in the Southeastern District, testified as follows. On December 18,
2010, he was on patrol at approximately 6:00 a.m. when he received a call “for shots fired”
in the 100 block of North Ellwood Avenue in Baltimore City. Officer Reed drove to that
location and saw a man lying between two vehicles. The man appeared to be suffering
from several gunshot wounds to the neck, stomach, and right leg. The man told Officer
Reed: “[T]hey tried to rob me.” After Officer Reed asked the man who shot him, the man
said “black guys” and “point[ed] northbound.” Officer Reed saw seven shell casings on
the ground approximately six or seven feet away from the man. Officer Reed also saw a
winter coat, a cellular telephone, a set of keys, a flash drive, and one shoe on the ground
near the man. Officer Reed secured the scene; no suspects were apprehended on the day
of the shooting.
As a witness for the State, Detective Frank Miller with the Baltimore City Homicide
Unit testified that, on December 27, 2010, the man identified Garner from a photographic
array.
As a witness for the State, the man, Ben Baya WaBeya (“WaBeya”) testified as
follows. WaBeya is a native of the Democratic Republic of Congo, who fled his native
country and was granted asylum in the United States. WaBeya lived in the Highlandtown
neighborhood of Baltimore City and worked at Casa de Maryland, which was located four
blocks from his residence.
On December 18, 2010, WaBeya decided to walk to work in the morning rather than
wait for the bus. As he was walking, two men, whom WaBeya identified as Garner and
Butler, stopped him. Garner and Butler asked WaBeya: “[C]an we get the weed? Can you
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give us the weed?” WaBeya saw one of the men move his hands, and feared that the man
might be armed with a knife, so WaBeya turned and ran from East Fayette Street to North
Ellwood Avenue. As WaBeya ran, he was hit by two bullets and felt pain in his right leg.
WaBeya could not continue running and sat down on North Ellwood Avenue between two
vehicles. Garner and Butler chased after WaBeya and caught up with him. The following
occurred:
[Garner] came to me with a gun, he point me a gun, give me your
money. This one was there with him. I look at them when I was sitting
down. The first thing -- I say, brothers, I don’t have money. I tried to talk
to them politely, I say, brothers, I don’t have money.
[Garner] talk to this guy, he tell him to go and check the movement of
the police. [Butler] left where he was, he go to the corner of [East] Fayette
and [N]orth El[l]wood trying to see the movement of the police and people
coming.
So, I remember this guy face to face pointing me a gun. He start
shooting me over and over. When he shot me four bullets on my leg, I feel
very pain, I say I don’t have money. I remove all my clothes that I have at
that time, I remove the jacket, everything. I let them, I said you can check,
if you see the money, take the money, leave me. The man say, where is the
money? Check your underwear, he thought I was having the money in the
underwear, something like that.
The man start again, he shoot me again, four bullets this side. He
repeat again, he shoot me a bullet here. So, I feel like it was very serious and
the man doesn’t have compassion for human beings.
I cry in my heart, I’m going to die now. So, I say, my brother, can
you take whatever you want? And the last thing it was, take even my shoes.
The man didn’t want, he shoot me four bullets in my stomach here, shot me
like this. Suddenly I see myself, my inside come like this on me and I see
that it was over for me.
What happened to me is I remember that -- this before they want to
take my life now, I tried to protect myself. There was a truck -- because I
was between the cars where I was sitting. Suddenly I jump on the truck to
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protect this part and my head.
The man -- after I jump on the truck, this man come to me, he look on
me on the truck, he shoot me this bullet here, the last one, on the side of the
neck. For me everything was over and I left where I was hanging, they ran
away. After they ran away I see myself sitting on my blood.
WaBeya emptied his pockets to show Garner and Butler that he did not have any money.
WaBeya identified various items found on the street as his belongings, including a jacket,
a shoe, and a flash drive. WaBeya incurred injuries to his right femur, chest, left hand, and
neck. As a result of the shooting, WaBeya was hospitalized for four months, and suffered
permanent injuries;1 three bullets were unable to be removed.
At the conclusion of the trial, the jury convicted Garner, in Case Number
111031032, of attempted robbery with a dangerous weapon, first-degree assault, use of a
handgun in the commission of a crime of violence,2 and unlawfully wearing, carrying, or
transporting a handgun, and, in Case Number 111031033, of attempted first-degree murder,
use of a handgun in the commission of a crime of violence, and unlawfully wearing,
carrying, or transporting a handgun.3
Sentencing
On June 29, 2012, the circuit court sentenced Garner to thirty years’ imprisonment
1
WaBeya testified that bullets to his right leg shattered his femur and that, even after
surgery, he is unable to put weight on the leg “because it [is] so swollen and [he has] a pain
on th[e] ankle every time when [he] want[s] to make this movement.”
2
Although CR § 4-204(b) prohibits the use of a handgun in the commission of a
crime of violence or any felony, for brevity, we refer to the offense as “use of a handgun
in the commission of a crime of violence.”
3
In a related case, Case Number 111031031, the jury acquitted Garner of conspiracy
to commit robbery with a dangerous weapon and conspiracy to commit robbery.
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for attempted first-degree murder; twenty years’ imprisonment consecutive for use of a
handgun in the commission of a crime of violence, the first five years to be served without
the possibility of parole; fifteen years’ imprisonment concurrent for attempted robbery with
a dangerous weapon; and one year imprisonment consecutive for the second conviction for
use of a handgun in the commission of a crime of violence. For sentencing purposes, the
conviction for first-degree assault merged with the conviction for attempted robbery with
a dangerous weapon, and the two convictions for unlawfully wearing, carrying, or
transporting a handgun merged with the two convictions for use of a handgun in the
commission of a crime of violence.
Other Procedural History
Garner appealed, and, in an unreported opinion, the Court of Special Appeals
affirmed, holding that the circuit court was correct in sentencing Garner to separate
consecutive sentences for the two convictions for use of a handgun in the commission of a
crime of violence. The Court of Special Appeals observed that, under CR § 4-204(c)(1), a
sentencing court is required to impose a minimum sentence of five years’ imprisonment,
but, “[f]or some reason, the [circuit] court in this case only imposed a one-year sentence[.]”
The Court of Special Appeals reasoned, however, that, under the plain language of CR §
4-204(c)(2), the circuit court “did not impose an illegal sentence[.]”4
4
The Court of Special Appeals provided the following explanation: “[CR] § 4-
204(c)(2) requires that ‘[f]or each subsequent violation, the sentence shall be consecutive
to and not concurrent with any other sentence imposed for the crime of violence or felony.’
Under the plain language of the statute, we conclude the [circuit] court did not impose an
illegal sentence.” (Second alteration in original).
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Garner petitioned for a writ of certiorari, raising one issue: “Are separate
consecutive sentences for use of a handgun in the commission of a crime of violence
prohibited when a single handgun is used in committing two crimes against a single victim
in one transaction?” The State conditionally cross-petitioned for a writ of certiorari,
raising one issue: “Where the Court of Special Appeals correctly determined that the
[circuit] court imposed an illegal sentence, but failed to correct that illegal sentence, should
this Court correct the illegal nature of the sentence?” This Court granted the petition and
the conditional cross-petition. See Garner v. State, 438 Md. 739, 93 A.3d 288 (2014).
DISCUSSION
I.
Garner contends that separate consecutive sentences for two convictions for use of
a handgun in the commission of a crime of violence are prohibited where one handgun is
used to commit two crimes against one victim in one criminal transaction.5 Garner argues
that the victim, not the underlying crime of violence, is the unit of prosecution for the crime
of use of a handgun in the commission of a crime of violence; Garner asserts that, in this
case, because there was only one victim, two convictions and sentences are impermissible.
Alternatively, Garner maintains that, even if the unit of prosecution is the underlying crime
of violence, the second conviction for use of a handgun in the commission of a crime of
5
Interestingly, later in his brief, Garner argues that the two convictions for use of a
handgun in the commission of a crime of violence “stem[] from the same attempt to rob”
WaBeya. Garner implicitly asserts that there was only one underlying crime of violence,
contending that he was improperly sentenced to separate sentences “for the two convictions
of use of a handgun in the commission of a crime of violence.”
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violence must merge for sentencing purposes with the first conviction under the required
evidence test, the rule of lenity, and the principle of fundamental fairness.
The State responds that the circuit court was correct in imposing separate
consecutive sentences for the two convictions for use of a handgun in the commission of a
crime of violence. The State contends that the unit of prosecution for the crime of use of a
handgun in the commission of a crime of violence is the underlying, “distinct crime of
violence[.]” The State argues that each use of a handgun to commit a crime of violence is
“a distinct wrong that warrant[s] separate punishment.” The State asserts that the General
Assembly intended each violation of CR § 4-204 to be subject to a separate penalty.
In a reply brief, Garner contends that this Court has interpreted CR § 4-204 to permit
separate convictions and sentences only where there are multiple victims. Garner argues
that the General Assembly has not evinced a clear intent to authorize multiple convictions
for use of a handgun in the commission of a crime of violence where there is one victim
and one criminal transaction.
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[.]”6 “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
6
The Double Jeopardy Clause applies to the States through the Fourteenth
Amendment. See Hubbard v. State, 395 Md. 73, 88, 909 A.2d 270, 279 (2006) (“In Benton
v. Maryland, 395 U.S. 784, [796] (1969), the United States Supreme Court held that the
Double Jeopardy Clause of the Fifth Amendment . . . was applicable to state criminal
proceedings through the Fourteenth Amendment.”).
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(1988) (citations omitted). “Multiple punishment challenges generally arise” where 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).
Here, the question is whether the unit of prosecution for use of a handgun in the
commission of a crime of violence is the victim or the underlying crime of violence.
“[W]hether a particular course of conduct constitutes one or more violations of a single
statutory offense . . . turn[s] on the unit of prosecution of the offense[, which] is ordinarily
determined by reference to legislative intent.” Purnell v. State, 375 Md. 678, 692, 827
A.2d 68, 76 (2003) (citation and internal quotation marks omitted); see also Moore v. State,
198 Md. App. 655, 680, 18 A.3d 981, 995 (2011) (“The key to the determination of the
unit of prosecution is legislative intent.” (Citations omitted)); Triggs v. State, 382 Md. 27,
43, 852 A.2d 114, 124 (2004) (“[T]he unit of prosecution reflected in the statute controls
whether multiple sentences ultimately may be imposed.”). Legislative intent, in turn, is
determined by “look[ing] first to the words of the statute, read in the light of the full context
in which they appear, and in light of external manifestations of intent or general purpose
available through other evidence.” Davis v. State, 319 Md. 56, 60, 570 A.2d 855, 857
(1990) (citation and internal quotation marks omitted).
In State v. Weems, 429 Md. 329, 337, 55 A.3d 921, 926 (2012), we reiterated the
general rules of statutory interpretation, stating:
To ascertain the intent of the General Assembly, we begin with the
normal, plain meaning of the statute. If the language of the statute is
unambiguous and clearly consistent with the statute’s apparent purpose, our
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inquiry as to the legislative intent ends ordinarily and we apply the statute as
written without resort to other rules of construction.
***
We, however, do not read statutory language in a vacuum, nor do we
confine strictly our interpretation of a statute’s plain language to the isolated
section alone. Rather, the plain language must be viewed within the context
of the statutory scheme to which it belongs, considering the purpose, aim, or
policy of the [General Assembly] in enacting the statute.
(Citation omitted) (asterisks in original).
We begin by setting forth the pertinent statute’s language. CR § 4-204, entitled
“Use of a handgun or antique firearm in commission of crime,” provides, in its entirety, as
follows:
(a) “Firearm” defined. — (1) In this section, “firearm” means:
(i) a weapon that expels, is designed to expel, or may readily be
converted to expel a projectile by the action of an explosive; or
(ii) the frame or receiver of such a weapon.
(2) “Firearm” includes an antique firearm, handgun, rifle, shotgun, short-
barreled rifle, short-barreled shotgun, starter gun, or any other firearm,
whether loaded or unloaded.
(b) Prohibited. — A person may not use a firearm in the commission of a
crime of violence, as defined in § 5-101 of the Public Safety Article,[7] or
any felony, whether the firearm is operable or inoperable at the time of the
crime.
(c) Penalty. — (1) (i) A person who violates this section is guilty of a
misdemeanor and, in addition to any other penalty imposed for the crime of
violence or felony, shall be sentenced to imprisonment for not less than 5
years and not exceeding 20 years.
(ii) The court may not impose less than the minimum sentence of 5
years and, except as otherwise provided in § 4-305 of the Correctional
7
Md. Code Ann., Pub. Safety (2003, 2011 Repl. Vol.) § 5-101(c) defines “crime of
violence” as, among other crimes, “assault in the first or second degree[,]” “murder in the
first or second degree[,]” “robbery[,]” “robbery with a dangerous weapon[,]” and “an
attempt to commit any of the crimes listed” in that subsection.
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Services Article, the person is not eligible for parole in less than 5 years.
(2) For each subsequent violation, the sentence shall be consecutive to
and not concurrent with any other sentence imposed for the crime of
violence or felony.
In Brown, 311 Md. at 434-35, 535 A.2d at 489, this Court held that the unit of
prosecution for use of a handgun in the commission of a crime of violence, as set forth in
Art. 27, § 36B(d)—CR § 4-204’s predecessor8—was the crime of violence. In Brown, 311
Md. at 429, 535 A.2d at 486, in two cases, the defendant was convicted of, and separately
sentenced for, six counts of use of the handgun in the commission of a crime of violence.
In the first case, “the crimes of violence were two armed robberies arising from a single
criminal transaction involving two victims”; and, in the second case, “the crimes of
violence were four armed robberies arising from a single criminal transaction involving
four victims.” Id. at 433, 535 A.2d at 488. Before this Court, the defendant contended that
the unit of prosecution under Art. 27, § 36B(d) was the criminal transaction. Id. at 434,
535 A.2d at 488. We disagreed with the defendant, and instead agreed with the State that
the unit of prosecution under Art. 27, § 36B(d) was the crime of violence. Id. at 434, 535
A.2d at 489. We concluded that Art. 27, § 36B(d)’s language “plainly indicate[d] that the
prohibited act is the use of a handgun in the commission of a felony or violent
misdemeanor[,]” and explained:
[Art. 27, §] 36B(d) states, with emphasis added, that “[a]ny person who shall
8
Art. 27, § 36B(d) provided, in pertinent part: “Any person who shall use a handgun
. . . in the commission of any felony or any crime of violence as defined in § 441 of this
article, shall be guilty of a separate misdemeanor[.]” Brown, 311 Md. at 433 n.7, 535 A.2d
at 488 n.7.
CR § 4-204’s Revisor’s Note states: “This section is new language derived without
substantive change from former Art. 27, § 36B(d).”
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use a handgun in the commission of any felony or any crime of violence” is
guilty of a handgun use offense. According to Webster’s New International
Dictionary (unabr. ed. 1959), “any” is defined as
“[i]ndicating a person, thing, etc., as one selected without
restriction or limitation of choice, with the implication that
everyone is open to selection without exception; one, no matter
what one; all, taken distributively; every.”
To like effect, see Black’s Law Dictionary (5th ed. 1979). . . . “Any” appears
not only before the words “felony” and “crime of violence” but also before
the word “person.” We find that the [General Assembly]’s use of the term
“any” before “person” imparts a clear and unambiguous meaning to its use
of “any” before “felony” and “crime of violence” and the meaning imparted
is one which is consistent with the ordinary meaning of “any.” It means
“every.” At least in the context of multiple victims, nothing in the language
of [Art. 27,] § 36B(d) suggests, as argued by [the defendant], that there can
be only one handgun use offense per criminal transaction.
Brown, 311 Md. at 435-36, 535 A.2d at 489 (emphasis and some alterations in original).
We concluded, after review of the legislative history of Art. 27, § 36B(d), that there was
“no support for the position advanced by” the defendant—that the unit of prosecution was
the criminal transaction—and, accordingly, this Court enforced the statute “as written” and
affirmed the convictions for use of a handgun in the commission of a crime of violence.
Id. at 436, 535 A.2d at 490.9
9
Even before Brown, the Court of Special Appeals stated that the unit of prosecution
for use of a handgun in the commission of a crime of violence under Art. 27, § 36B(d) was
the crime of violence. See, e.g., Battle v. State, 65 Md. App. 38, 50-51, 499 A.2d 200,
206-07 (1985), cert. denied, 305 Md. 243, 503 A.2d 252 (1986) (“In order for us properly
to affirm the convictions in the handgun counts in the case sub judice, we need only find
sufficient evidence that there were two separate underlying crimes of violence, and that a
handgun was used in each. That both of the underlying crimes evolved from one act of the
[defendant]—the use of the handgun—does not preclude such a finding.”); Manigault v.
State, 61 Md. App. 271, 283, 486 A.2d 240, 246 (1985) (“A defendant might well be guilty
of premeditated first-degree murder perpetrated in the course of an armed robbery. The
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After Brown, both this Court and the Court of Special Appeals continued to
recognize that the unit of prosecution for use of a handgun in the commission of a crime of
violence is the crime of violence. For example, in Webb v. State, 311 Md. 610, 617, 536
A.2d 1161, 1165 (1988), in discussing Art. 27, § 36B(d), we explained:
This is not a possession crime and is not a continuing offense. It consists of
a definite act or a definite result of some act. If the circumstances involving
the use of the prohibited weapon put two persons at risk or concern two
distinct incidents, there are two separate and distinct violations of the statute,
permitting two convictions and two punishments. The unit of prosecution is
the crime of violence. This is so because the act prohibited by [Art. 27,] §
36B(d) is the use of a handgun in the commission of a felony or violent
misdemeanor.
(Citations and internal quotation marks omitted).10 And, in Curtin v. State, 165 Md. App.
60, 75-76, 884 A.2d 758, 767 (2005), aff’d, 393 Md. 593, 903 A.2d 922 (2006), the Court
of Special Appeals rejected the defendant’s argument that CR § 4-204 somehow mandated
identifying a different unit of prosecution than Art. 27, § 36B(d), stating:
In Brown v. State, 311 Md. 426, 535 A.2d 485 (1988), the Court of
Appeals made clear that, under former [Art. 27, §] 36B(d), the unit of
prosecution for use of a handgun in the commission of a crime of violence
was the number of crimes of violence against each victim. . . . [The
defendant] does not attempt to distinguish his case from Brown, but asks us
fact of premeditation would preclude a merger of the robbery into the murder; there would
be two separate crimes of violence—murder and robbery. Each could support a separate
conviction for the use of a handgun to commit a crime of violence.”).
10
In Webb, 311 Md. at 618-19, 536 A.2d at 1165-66, we held that a defendant could
not be twice convicted and sentenced for wearing, carrying, or transporting a handgun
where the defendant continuously and unlawfully carried the same handgun for a period of
three hours. We held that “[t]he unit of prosecution of that continuing crime is the wearing,
carrying or transporting of any handgun, whether concealed or open, upon or about the
person. There is no requirement as to time, use, person at risk or incident. We cannot read
into the plain language of the section the intent that a lapse of time or more than one person
put at risk or multiple incidents would initiate separate offenses.” Id. at 617-18, 536 A.2d
at 1165 (footnote omitted).
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to interpret recodified [CR §] 4-204 as now precluding the imposition of
multiple sentences in situations like his own. . . . After considering [the
defendant]’s arguments, we are unpersuaded. . . . We find no support for the
position advanced by [the defendant] that [CR §] 4-204 now requires
reaching a different conclusion than that advanced by the Court of Appeals
when interpreting [Art. 27, §] 36B(d) in Brown.
(Paragraph breaks omitted).
Here, we hold that, under CR § 4-204, imposition of separate consecutive sentences
for two convictions for use of a handgun in the commission of a crime of violence is
permissible where a defendant uses one handgun to commit two separate crimes of violence
against one victim in one criminal transaction because the unit of prosecution is the crime
of violence, not the victim or criminal transaction.
CR § 4-204(b)’s plain language provides, in pertinent part, that “[a] person may not
use a firearm in the commission of a crime of violence, as defined in § 5-101 of the Public
Safety Article, or any felony[.]” CR § 4-204(b)’s language is clear and unambiguous—a
person may not use a handgun to commit a statutorily defined crime of violence or any
felony. In other words, CR § 4-204(b) criminalizes the use of a handgun in any felony
(without limitation on which felony) or in one of the statutorily defined crimes of violence
(limiting the crime of violence to those defined by statute). It is the crime of violence or
felony, not the victim or the criminal transaction, that forms the basis for the handgun
conviction; indeed, CR § 4-204 makes no mention whatsoever of the victim or the criminal
transaction. Thus, CR § 4-204 criminalizes the use of a handgun in each felony or crime
of violence committed by a defendant; stated otherwise, a defendant may be convicted of,
and sentenced for, use of a handgun in the commission of a crime of violence corresponding
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to each underlying felony or crime of violence of which the defendant is convicted. CR §
4-204(b)’s plain language demonstrates the General Assembly’s intent to permit multiple
convictions and sentences for each violation of CR § 4-204; in other words, CR § 4-
204(b)’s plain language leads to the inescapable conclusion that CR § 4-204 authorizes a
separate conviction and sentence for each felony or crime of violence.
Because we conclude that CR § 4-204(b)’s language is unambiguous and clearly
consistent with CR § 4-204’s apparent purpose—to criminalize the use of a handgun in
each felony or crime of violence—we need not delve into the General Assembly’s intent.
Lest there be any doubt, however, that the unit of prosecution for use of a handgun in the
commission of a crime of violence is the crime of violence, we note that our conclusion is
bolstered by the long history of this Court and the Court of Special Appeals of reaching the
same conclusion as to both CR § 4-204 and its predecessor. See, e.g., Webb, 311 Md. at
617, 536 A.2d at 1165 (“The unit of prosecution is the crime of violence. This is so because
the act prohibited by [the statute] is the use of a handgun in the commission of a felony or
violent misdemeanor.” (Citation and internal quotation marks omitted)); Brown, 311 Md.
at 435-36, 535 A.2d at 489 (The statute “plainly indicate[d] that the prohibited act is the
use of a handgun in the commission of a felony or violent misdemeanor . . . . At least in
the context of multiple victims, nothing in the language of [the statute] suggests . . . that
there can be only one handgun use offense per criminal transaction.”); Curtin, 165 Md.
App. at 75-76, 884 A.2d at 767 (“[T]he Court of Appeals made clear that . . . the unit of
prosecution . . . was the number of crimes of violence against each victim. . . . We find no
support for the position advanced by [the defendant] that [the statute] now requires
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reaching a different conclusion than that advanced by the Court of Appeals . . . in Brown.”);
Battle v. State, 65 Md. App. 38, 50-51, 499 A.2d 200, 206-07 (1985), cert. denied, 305 Md.
243, 503 A.2d 252 (1986) (“[W]e need only find sufficient evidence that there were two
separate underlying crimes of violence, and that a handgun was used in each. That both of
the underlying crimes evolved from one act of the [defendant]—the use of the handgun—
does not preclude such a finding.”); Manigault v. State, 61 Md. App. 271, 283, 486 A.2d
240, 246 (1985) (“[T]here would be two separate crimes of violence—murder and robbery.
Each could support a separate conviction for the use of a handgun to commit a crime of
violence.”).
We reject Garner’s contention that, in Brown, we held that the statute permits
separate convictions and sentences only where there are multiple victims. To be sure,
Brown, 311 Md. at 429, 433, 535 A.2d at 486, 488, involved the circumstance that there
were two armed robberies, each involving multiple victims, and thus, our analysis was
guided by that circumstance. Nevertheless, nothing in Brown mandates that the unit of
prosecution for use of a handgun in the commission of a crime of violence is the victim.
Obviously, where there are multiple victims, multiple convictions and sentences for use of
a handgun in the commission of a crime of violence are permissible. Whether there are
multiple victims or only one victim, however, the unit of prosecution—the crime of
violence—does not change. Stated otherwise, the unit of prosecution for the crime of use
of a handgun in the commission of a crime of violence is the crime of violence, be there
one victim, two victims, or a hundred victims. As a corollary, because the unit of
prosecution is the crime of violence, it follows that, if more than one crime of violence is
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committed against one victim, there may be multiple convictions and sentences for use of
a handgun in the commission of a crime of violence for each separate crime of violence or
felony committed against the victim.
As we did in Webb, 311 Md. at 617-18, 536 A.2d at 1165, we note that there is a
difference between use of a handgun in the commission of a crime of violence and wearing,
carrying, or transporting a handgun. The former is “a definite act or a definite result of
some act[,]” i.e., an affirmative act; by contrast, the latter is a “continuing crime” of
possession with “no requirement as to time, use, person at risk or incident.” Id. at 617-18,
536 A.2d at 1165. Thus, so long as there is sufficient evidence to support the conviction
for each underlying crime of violence, and a handgun was used in each, it is not dispositive
that the crimes of violence occurred during one criminal transaction or against one victim.
See Battle, 65 Md. App. at 50-51, 499 A.2d at 206-07 (“[W]e need only find sufficient
evidence that there were two separate underlying crimes of violence, and that a handgun
was used in each. That both of the underlying crimes evolved from one act of the
[defendant]—the use of the handgun—does not preclude such a finding.”).
Here, there is sufficient evidence to support Garner’s convictions for attempted first-
degree murder and attempted robbery with a dangerous weapon. WaBeya’s testimony
demonstrates the following. Garner and Butler approached WaBeya in the early morning
hours asking for “weed[.]” WaBeya feared the two men might have been armed; WaBeya
ran and was hit by two bullets. Garner and Butler chased WaBeya, and Garner pointed a
gun at WaBeya and demanded money. After WaBeya stated that he did not have any
money, Garner shot WaBeya multiple times in the leg. WaBeya removed his jacket and
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emptied his pockets to show Garner that he did not have any money, but Garner asked:
“[W]here is the money?” Garner shot WaBeya several more times, despite WaBeya’s
insistence that he did not have money. After WaBeya attempted to escape by jumping
toward a truck, Garner approached WaBeya and shot WaBeya in the neck. These facts
lead to the conclusion that Garner, while using a handgun, attempted to rob WaBeya by
pointing the gun at WaBeya and shooting him while demanding money; and that Garner,
while using a handgun, attempted to murder WaBeya by taking a final shot at WaBeya,
wounding him in the neck, while WaBeya was hiding near the truck. These facts
demonstrate that the conduct supporting the conviction for attempted first-degree murder,
although committed against the same victim and in the same criminal transaction, was
separate and distinct from the conduct supporting the conviction for attempted robbery with
a dangerous weapon. Because there was sufficient evidence to support Garner’s
convictions for attempted first-degree murder and attempted robbery with a dangerous
weapon, both involving use of a handgun, there was sufficient evidence to support two
convictions for use of a handgun in the commission of a crime of violence.11
11
We are unconvinced by Garner’s reliance on cases from Illinois, Iowa, and
Georgia for the contention that the appropriate unit of prosecution under CR § 4-204 is the
victim and not the crime of violence. Significantly, none of the cases on which Garner
relies involves CR § 4-204’s language. In any event, the cases are factually and legally
distinguishable.
For example, in People v. Mimes, 13 N.E.3d 222, 225, 227 (Ill. App. Ct. 2014), the
defendant was convicted of attempted first-degree murder, aggravated battery with a
firearm, and two counts of aggravated unlawful use of a weapon (one count stemming from
knowingly carrying “on his person an uncased, loaded and accessible firearm while not on
his own land or in his own abode or fixed place of business” and one count stemming from
possessing “an uncased, loaded and accessible firearm upon public land”). On appeal, the
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We are unpersuaded by Garner’s reliance on Johnson v. State, 56 Md. App. 205,
219, 467 A.2d 544, 550-51 (1983), cert. denied, 299 Md. 136, 472 A.2d 999 (1984), in
which the Court of Special Appeals held that, under the rule of lenity, “use of a single
handgun against a single victim in a single transaction does not permit the imposition of
consecutive handgun sentences.” At the time, Art. 27, § 36B(d) made “it a ‘separate
misdemeanor for a person to use a handgun in the commission of any felony or crime of
violence’ and call[ed] for a sentence for that use ‘in addition to any other sentence imposed
by virtue of the commission of said felony[.]’” Id. at 218, 467 A.2d at 550 (emphasis
omitted). The Court of Special Appeals acknowledged that the General Assembly
defendant contended that his convictions for aggravated battery and aggravated unlawful
use of a weapon violated the “one-act, one-crime rule[,]” which, in Illinois, is the rule that
“prohibits multiple convictions when (1) the convictions are carved from precisely the
same physical act, or (2) one of the offenses is a lesser-included offense of the other.” Id.
at 225, 234 (citation omitted). Based on that rule, the Appellate Court of Illinois
determined that the defendant’s conviction for aggravated battery needed to be vacated
“because it was predicated on the same act as his attempted murder conviction”; in other
words, “[b]ecause the two relevant counts of the indictment charged [the] defendant with
the same physical act, i.e., shooting the victim with a firearm, the lesser felony, aggravated
battery with a firearm, must be vacated.” Id. at 234 (citation omitted). The Appellate Court
of Illinois concluded that one of the two aggravated unlawful use convictions needed to be
vacated because the two convictions “stem[med] from the same physical act of carrying an
uncased, loaded and accessible firearm in public[.]” Id. (citation omitted). Thus, in Mimes,
the Appellate Court of Illinois addressed the relevance of the physical acts underlying the
convictions, and whether the same physical act formed the basis for more than one
conviction.
Under CR § 4-204, the focus is on the underlying crimes of violence, not the
physical acts involved in those crimes of violence. In this case, there were two separate
crimes of violence—attempted first-degree murder and attempted robbery with a
dangerous weapon. In any event, even if the focus were on the physical acts involved,
there was sufficient evidence to establish that two distinct physical acts occurred during
the criminal transaction: (1) shooting WaBeya in the leg, chest, and hand in an attempt to
rob him; and (2) shooting WaBeya in the neck after no money was produced and WaBeya
attempted to escape.
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“intended to authorize multiple punishments for the underlying felony or crime of violence
and for the separate misdemeanor of using a handgun to commit that felony or crime of
violence.” Id. at 218, 467 A.2d at 550. The Court of Special Appeals determined, however,
that the statutory language was ambiguous and subject to multiple interpretations,
including “that the legislative purpose of discouraging handgun use is achieved when one
handgun sentence is imposed consecutive to the sentence imposed for one (‘said’) felony.”
Id. at 218, 467 A.2d at 550.
Significantly, Johnson was decided before this Court’s decision in Brown, 311 Md.
426, 535 A.2d 485, and concerned an earlier version of Art. 27, § 36B(d). In Johnson, 56
Md. App. at 209, 467 A.2d at 545, the defendant was charged with offenses that occurred
on October 29, 1981. After the defendant was charged, in 1982, the General Assembly
amended Art. 27, § 36B(d) to add a new subsection “for the purpose of requiring a sentence
for a second or subsequent conviction for use of a handgun in the commission of certain
crimes to be served consecutively with the sentence imposed for those certain crimes[.]”
1982 Md. Laws 3055 (Ch. 475, S.B. 541) (capitalization omitted). Although Art. 27, §
36B(d)’s prior version was ambiguous as to whether the General Assembly intended to
permit multiple punishments for use of a handgun in circumstances involving multiple
crimes committed against one victim with one handgun in one criminal transaction, the
amendment to Art. 27, § 36B(d) eliminated the ambiguity and expressly authorized
consecutive punishment for a “second or subsequent offense[.]” Thus, Johnson was
superseded by the amendment to Art. 27, § 36B(d), which then required the imposition of
separate consecutive sentences for each conviction for use of a handgun in the commission
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of a crime of violence.12
We reject Garner’s contention that merger is required under the required evidence
test, the rule of lenity, or the principle of fundamental fairness. In Nicolas v. State, 426
Md. 385, 401-02, 44 A.3d 396, 405-06 (2012), we described the required evidence test as
follows:
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, on the other hand, “applicable to statutory
offenses only, provides that where there is no indication that the [General Assembly]
12
It is not dispositive that the Court of Special Appeals seemingly reaffirmed its
holding in Johnson in Billups v. State, 135 Md. App. 345, 361-62, 762 A.2d 609, 618-19
(2000), cert. denied, 363 Md. 207, 768 A.2d 55 (2001). In Billups, 135 Md. App. at 361-
62, 762 A.2d at 618-19, the Court of Special Appeals failed to examine or mention the
controlling statutory language or acknowledge that Art. 27, § 36B(d) had been amended to
include a new penalty provision. Instead, in Billups, the Court of Special Appeals simply
accepted its prior analysis in Johnson without conducting its own analysis or mentioning
our holding in Brown.
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intended multiple punishments for the same act, a court will not impose multiple
punishments but will, for sentencing purposes, merge one offense into the other.”
McGrath, 356 Md. at 25, 736 A.2d at 1069 (citations omitted). We have described the
principle of fundamental fairness as follows:
Fundamental fairness is one of the most basic considerations in all our
decisions in meting out punishment for a crime. In deciding whether
fundamental fairness requires merger, we have looked to whether the two
crimes are part and parcel of one another, such that one crime is an integral
component of the other. This inquiry is fact-driven because it depends on
the considering the circumstances surrounding a defendant’s convictions, not
solely the mere elements of the crimes. Rare are the circumstances in which
fundamental fairness requires merger of separate convictions or sentences.
Carroll v. State, 428 Md. 679, 695, 53 A.3d 1159, 1168 (2012) (citations, brackets, ellipsis,
footnotes, internal quotation marks, and paragraph break omitted). None of these three
principles serves as a basis for merging for sentencing purposes Garner’s two convictions
for use of a handgun in the commission of a crime of violence.
Merger is not required under the required evidence test. To be sure, the elements of
each conviction for use of a handgun in the commission of a crime of violence are, on their
face, the same. Each conviction, however, is predicated on a different crime of violence,
such that each conviction requires proof of an element which the other does not. In Case
Number 111031032, use of a handgun in the commission of a crime of violence required
proof of the underlying crime of violence—attempted robbery with a dangerous weapon.
And, in Case Number 111031033, use of a handgun in the commission of a crime of
violence required poof of a different underlying crime of violence at issue—attempted first-
degree murder. The acts supporting the convictions for attempted robbery with a
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dangerous weapon and attempted first-degree murder are separate and distinct.
The rule of lenity does not apply, as the General Assembly, through unambiguous
language in CR § 4-204, demonstrated an intent to permit—and, indeed, require—multiple
sentences for subsequent convictions for use of a handgun in the commission of a crime of
violence. See CR § 4-204(c)(2) (“For each subsequent violation, the sentence shall be
consecutive to and not concurrent with any other sentence imposed for the crime of
violence or felony.”).
The principle of fundamental fairness does not require merger. Although the two
crimes took place against one victim during one criminal transaction, the crimes cannot be
said to be part and parcel of one another because they are predicated upon separate distinct
underlying crimes of violence.
As a final point, we note that, in Brown, we did not merge for sentencing purposes,
under the required evidence test, the rule of lenity, or the principle of fundamental fairness,
the convictions for the six counts of use of a handgun in the commission of a crime of
violence. See Brown, 311 Md. at 436, 535 A.2d at 490 (“[M]ultiple handgun use
convictions and sentences are appropriate[.]”). Accordingly, under CR § 4-204’s plain
language and under this case’s circumstances, merger for sentencing purposes of the two
convictions for use of a handgun in the commission of a crime of violence is not warranted.
II.
The State contends that the circuit court imposed a sentence not permitted by CR §
4-204 and that, accordingly, we should remand this case for re-sentencing consistent with
CR § 4-204. The State argues that CR § 4-204 mandates imposition of a separate
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consecutive sentence of not less than five years’ imprisonment for a second conviction for
use of a handgun in the commission of a crime of violence; thus, here, the circuit court
erred in imposing a sentence of only one year of imprisonment. The State asserts that this
Court may correct an illegal sentence at any time, even if the matter was not raised in the
trial court.
Garner responds that a remand for re-sentencing is inappropriate because the
prosecutor did not request, and the circuit court did not impose, a sentence pursuant to the
“subsequent offender provision.” Garner points out that the State did not cross-appeal
concerning the sentence for the second conviction for use of a handgun in the commission
of a crime of violence, and contends that the State “should not now receive the benefit of
re-sentencing” under the circumstances.
Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence
at any time.” The power of the court to correct an illegal sentence exists on appeal even
where the illegality of the sentence was not raised in the trial court. See, e.g., Mateen v.
Saar, 376 Md. 385, 405, 829 A.2d 1007, 1018 (2003) (“[I]t is well established that a court
may correct an illegal sentence on its own initiative and at any time, even upon appeal.”
(Citations omitted)); Ridgeway v. State, 369 Md. 165, 171-72, 797 A.2d 1287, 1290 (2002)
(“As we have oft stated, the legality of a sentence may be determined at any time, even on
appeal. . . . [H]ad the trial court not acted to correct the illegal sentence, the Court of Special
Appeals and this Court would have similar authority to correct the [defendant]’s sentence
by vacating and remanding to the trial court for resentencing.” (Citations omitted)). In
Chaney v. State, 397 Md. 460, 466, 918 A.2d 506, 509-10 (2007), we explained that a
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sentence is “illegal” for purposes of Maryland Rule 4-345(a) where “there either has been
no conviction warranting any sentence for the particular offense or the sentence is not a
permitted one for the conviction upon which it was imposed and, for either reason, is
intrinsically and substantively unlawful.” (Citations omitted). Conversely, “any other
deficiency in the sentence that may be grounds for an appellate court to vacate it—
impermissible considerations in imposing it, for example—must ordinarily be raised in or
decided by the trial court and presented for appellate review in a timely-filed direct appeal.”
Id. at 466-67, 918 A.2d at 510.
We are satisfied that this case should be remanded for re-sentencing because the
circuit court imposed a sentence for the second conviction for use of a handgun in the
commission of a crime of violence that was not permitted under CR § 4-204(c), and, thus,
was an illegal sentence under Maryland Rule 4-345(a).
This Court has the authority to correct an illegal sentence, even in the absence of an
appeal or a cross-appeal by the State. The case law providing that an illegal sentence may
be corrected at any time does not indicate that the correction may be made only if it benefits
the defendant. Indeed, in Hoile v. State, 404 Md. 591, 620, 623, 948 A.2d 30, 47-48, 49,
(2008), although we concluded that the sentence of probation at issue in the case was not
an illegal sentence, we recognized that “[t]he correction of an illegal sentence may result
in an increase over the erroneous sentence previously imposed on the defendant.”
(Citations omitted). And, of course, “[t]he State may appeal from a final judgment if the
State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by
the Code[.]” Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol., 2014 Supp.) § 12-
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302(c)(3)(i). An appellate court may correct an illegal sentence regardless of which party
appealed. See, e.g., Md. R. 4-345(a) (“[T]he court may correct an illegal sentence at any
time.” (Emphasis added)); Mateen, 376 Md. at 405, 829 A.2d at 1018 (“[I]t is well
established that a court may correct an illegal sentence on its own initiative and at any
time, even upon appeal.” (Citations omitted) (emphasis added)).
Under CR § 4-204(c)’s plain language, a person who is convicted of use of a
handgun in the commission of a crime of violence “shall be sentenced to imprisonment for
not less than 5 years and not exceeding 20 years” and, for subsequent violations, “the
sentence shall be consecutive to and not concurrent with any other sentence imposed for
the crime of violence or felony.” CR § 4-204(c)(1)(ii) clearly provides that “[t]he court
may not impose less than the minimum sentence of 5 years[.]” In other words, CR § 4-
204(c) does not give a trial court the discretion to impose a sentence that is less than the
mandatory minimum. Cf. State v. Stewart, 368 Md. 26, 30-31, 791 A.2d 143, 146 (2002)
(“The State argues that this Court has held that whenever the statutory requirements are
met and notice given, a trial court must impose the sentence prescribed in the mandatory
sentencing statute. Thus, the State concludes that the trial court erred in declining to
sentence [the defendant] to the mandatory sentence . . . . We agree with the State.”). Here,
the sentence of one year imprisonment consecutive for the second conviction of use of a
handgun in the commission of a crime of violence is below the mandatory minimum of
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“not less than 5 years[,]” and, as such, it is an illegal sentence.13
We reject Garner’s contention that the imposition of a sentence for the second
conviction for use of a handgun in the commission of a crime of violence constitutes
sentencing under a “subsequent offender provision” for which the State failed to provide
notice. To be sure, Maryland Rule 4-245(c) requires the State to file notice where it intends
to seek a mandatory penalty for a subsequent offender. Maryland Rule 4-245(a) defines
“subsequent offender” as “a defendant who, because of a prior conviction, is subject to
additional or mandatory statutory punishment for the offense charged.” The penalty
provision of CR § 4-204, however, is not premised on a “prior conviction,” but instead is
premised on a contemporaneous violation of CR § 4-204 itself (i.e., “each subsequent
violation”). Nothing in Maryland Rule 4-245 suggests that the phrase “prior conviction”
includes a contemporaneous conviction, and nothing in CR § 4-204(c) provides for
enhanced penalties for a “subsequent offender.” Garner’s contention lacks merit.
For the above reasons, the circuit court imposed an illegal sentence for Garner’s
second conviction of use of a handgun in the commission of a crime of violence. That
sentence shall be vacated, and this case shall be remanded for re-sentencing in accordance
with the mandatory minimum under CR § 4-204(c).
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED INSOFAR AS THAT
COURT AFFIRMED ONE-YEAR SENTENCE
Tellingly, at oral argument, Garner conceded that, “technically,” the sentence
13
imposed for the second conviction for use of a handgun in the commission of a crime of
violence “is illegal” because only one year of imprisonment was imposed instead of the
mandatory minimum of five years’ imprisonment.
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FOR SECOND CONVICTION FOR USE OF
HANDGUN IN COMMISSION OF CRIME OF
VIOLENCE OR ANY FELONY. JUDGMENT OF
THE COURT OF SPECIAL APPEALS
AFFIRMED IN ALL OTHER RESPECTS. CASE
REMANDED TO THAT COURT WITH
INSTRUCTIONS TO VACATE ONE-YEAR
SENTENCE FOR SECOND CONVICTION FOR
USE OF HANDGUN IN CRIME OF VIOLENCE
OR ANY FELONY AND TO REMAND TO THE
CIRCUIT COURT FOR BALTIMORE CITY FOR
RE-SENTENCING ONLY AS TO SECOND
CONVICTION FOR USE OF HANDGUN IN
CRIME OF VIOLENCE OR ANY FELONY.
PETITIONER/CROSS-RESPONDENT TO PAY
COSTS IN THIS COURT AND THE COURT OF
SPECIAL APPEALS.
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