State v. Griffiths

McAuliffe, Judge.

As a result of a police raid that occurred on 26 June 1990, Dorin Griffiths was charged with five offenses by a criminal information filed in the Circuit Court for Baltimore City.¹ On 10 January 1991, a jury found the defendant guilty of possession of cocaine (count 2) and possession of controlled paraphernalia (count 3), and not guilty of the use of a firearm in the commission of a felony (count 5). The jurors were unable to reach a verdict on the charges of possession of cocaine with intent to distribute (count 1) and maintaining a common nuisance (count 4). Judge John Carroll Byrnes declared a mistrial as to those counts, and scheduled a date for sentencing on the two counts of which the defendant had been convicted. It does not appear from the record that either the defendant or the State interposed an objection, then or thereafter, to proceeding with sentencing on those counts. On 1 March 1991, after denying defendant’s motion for a new trial ■ and for the entry of a verdict of not guilty on count 1, Judge Byrnes imposed concurrent sentences of four years imprisonment, with all except 18 months suspended, and three years probation, on the two counts.

On 23 April 1991, the parties appeared before Judge Marvin B. Steinberg for retrial of counts 1 and 4. At that time the defendant moved to dismiss count 1, which charged possession of cocaine with intent to distribute. The defendant argued that “jeopardy in this particular case attached after the jury made its finding of guilty as to possession____” Judge Stein-berg denied the motion, after which the parties advised the judge they had agreed that the matter would proceed to trial on count 1 on an agreed statement of facts,² and if the defendant were found guilty Judge Steinberg would impose a sentence identical to that previously imposed by Judge Byrnes, to run concurrently with that sentence, and the State would nol pros count 4. After the State read the agreed statement of facts into evidence, Judge Steinberg found the defendant guilty of the charge of possession with intent to distribute and sentenced him accordingly.

The defendant appealed to the Court of Special Appeals, contending that constitutional and common law protections against double jeopardy barred his subsequent prosecution and sentencing for the greater offense of possession of cocaine with intent to distribute after he had been convicted and sentenced on the lesser included offense of simple possession of the same cocaine. The Court of Special Appeals reversed the conviction of the greater offense, holding that 1) the Fifth Amendment protection against double jeopardy, applicable to the states through the Fourteenth Amendment, does not bar the conviction and sentence in this case, but that 2) this Court’s decision in Middleton v. State, 318 Md. 749, 569 A.2d 1276 (1990), established a rule of common law double jeopardy that was applicable to the instant case and that precluded the subsequent prosecution. Griffiths v. State, 93 Md.App. 125, 133-34, 611 A.2d 1025 (1992). We granted the State’s petition for certiorari, and we reverse.

I.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause prohibits successive prosecution as well as cumulative punishment. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977). Under the Maryland common law of double jeopardy, a defendant cannot be “put in jeopardy again for the same offense — in jeopardy of being convicted of a crime for which he had been acquitted; in jeopardy of being twice convicted and punished for the same crime.” Gianiny v. State, 320 Md. 337, 347, 577 A.2d 795 (1990). A “greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Brovm v. Ohio, supra, 432 U.S. at 168, 97 S.Ct. at 2227.

The defendant’s argument has several prongs. First, he contends that because he has already been placed in jeopardy and subjected to one full trial on the charge of possession of cocaine with the intent to distribute, he may not again be tried for that offense. The well-established law is to the contrary. Ordinarily, when a mistrial has been declared as the result of a manifest necessity or with the consent of the defendant, retrial of the same charge is not prohibited by the Double Jeopardy Clause.³ Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416 (1982). A hung jury is the “prototypical example” of manifest necessity for a mistrial. Id. at 672, 102 S.Ct. at 2088.

Second, the defendant contends there is an additional factor present in his case that takes it out of the ordinary rule governing retrial after a mistrial, and that is the fact of his conviction and sentencing for the offense of simple possession of cocaine. He argues that the sentence imposed by Judge Byrnes, superimposed on the jury’s verdict of guilt, constitutes a judgment of conviction of a lesser included offense, thereby barring a subsequent prosecution, conviction, or sentence for the greater offense of possession of cocaine with intent to distribute. He bases his argument on the constitutional protection of the Double Jeopardy Clause, and on the Maryland common law doctrine, originally raised by the plea of autrefois convict, that prohibits placing a defendant in jeopardy a second time when there has been a final judgment of conviction for the same offense.

There are at least two quite different ways in which a defendant may be convicted of a lesser included offense and thereafter face trial for a greater offense. The first involves separate proceedings resulting from charging documents filed at different times. We addressed just such a problem in Gianiny v. State, supra, 320 Md. at 339, 577 A.2d 795, where the defendant sought to bar the State from proceeding against him on a charge of manslaughter by automobile because he previously had a final judgment of conviction of negligent driving entered against him in a separate proceeding, and both charges related to the same occurrence. We held that negligent driving is a lesser included offense within the greater offense of manslaughter by automobile, id. at 343, 577 A.2d 795, and that as a result of the earlier final judgment of conviction of the lesser offense, arising from a separate proceeding and involving charges brought at an earlier time, the Double Jeopardy Clause of the Fifth Amendment and Maryland common law barred a subsequent prosecution for the greater offense. Id. at 347-48, 577 A.2d 795.

A second possible scenario involves a conviction of a lesser included offense that is one of several charges which were filed at the same time.⁴ We recently addressed double jeopardy issues arising in that type of continuing prosecution case in Middleton v. State, supra, 318 Md. 749, 569 A.2d 1276, and in Huff v. State, 325 Md. 55, 599 A.2d 428, 599 A.2d 428 (1991).⁵ We considered closely related double jeopardy issues in Apostoledes v. State, 323 Md. 456, 593 A.2d 1117 (1991).

A set of facts analytically similar to those of the instant case was presented by Huff v. State, supra. In Huff, the defendant was charged with multiple offenses arising out of a fatal motor vehicle accident. Although the charges were contained in two different charging documents, they were issued at one time and pursuant to a single application for charges. The defendant secured a final judgment of conviction on a lesser charge of negligent driving by paying a preset fine, and then moved to dismiss the greater charges of manslaughter by automobile and homicide by motor vehicle while intoxicated. The motion was denied. Although the procedural posture of the case prevented us from ruling directly on the correctness of this holding, we expressed our views because of the importance of the question and the recurring nature of the issue.

When sentence was imposed on the lesser included offense in Huff, no disposition, implicit or otherwise, had been made of the greater charges. The judgment of conviction on the lesser count did not dispose of the open counts. A subsequent trial of the greater counts involved no more than a permitted step in a continuous prosecution that had not been completed. Drawing on the teachings of the Supreme Court in Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), we concluded that the continued prosecution of the greater charges offended neither the constitutional nor the common law prohibitions against double jeopardy. Huff v. State, supra, 325 Md. at 76-77, 599 A.2d 428.

The Supreme Court, in rejecting the defendant’s claim of double jeopardy in Ohio v. Johnson, supra, pointed out that the charges were embraced within a single prosecution. The Court said:

The grand jury returned a single indictment, and all four charges were embraced within a single prosecution. Respondent’s argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded.’ We have never held that, and decline to hold it now.

Id., 467 U.S. at 501, 104 S.Ct. at 2541-42. Drawing on an earlier case, the Supreme Court said:

We think this is an even clearer case than Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), where we rejected a defendant’s claim of double jeopardy based upon a guilty verdict in the first of two successive prosecutions, when the defendant had been responsible for insisting that there be separate rather than consolidated trials.

Id. at 502. The Court in Jeffers concluded that:

Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial.

Jeffers v. United States, 432 U.S. 137, 152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168 (1977).

Although the State in the case before us did not object to the sentencing of the defendant on the lesser offense before retrial of the greater, neither did it initiate or request that procedure. The sentencing occurred because the trial judge, apparently acting reflexively upon the receipt of some verdicts of guilt, scheduled a sentencing proceeding. Neither party objected to proceeding in this manner. Although the Supreme Court in Ohio v. Johnson commented on the State’s objection in that case to the imposition of sentences before adjudication of all charges, we observed in Huff that “[t]he opposition of the State, however, to the guilty plea in Ohio v. Johnson was coincidental, and not critical, to the Court’s rationale.... ” Huff v. State, supra, 325 Md. at 76, 599 A.2d 428. We persist in that belief.

II.

In determining that the conviction of a lesser offense and imposition of sentence thereon did not bar continued prosecution for the greater offense, the Supreme Court acknowledged the potential for improper imposition of multiple punishments if a conviction resulted. The Court assumed, however, that subsequent curative action could be taken by the state trial court to remedy that problem.

Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have' to confront the question of cumulative punishments as a matter of state law, but because of that court’s ruling preventing even the trial of the more serious offenses, that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishment for convictions for the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.

Ohio v. Johnson, supra, 467 U.S. at 500, 104 S.Ct. at 2541.

We must now address the problem of cumulative punishment that was mentioned in Ohio v. Johnson, because a subsequent conviction has occurred in this case and a separate sentence has been imposed in connection with the greater offense. This defendant stands convicted of the lesser offense of possession of cocaine and the greater offense of possession of the same cocaine with intent to distribute, and separate sentences have been imposed on each conviction. Although the sentences are identical and concurrent, we have held that the imposition of concurrent sentences may constitute cumulative punishment.⁶ Newton v. State, 280 Md. 260, 265, 373 A.2d 262 (1977).

As the Supreme Court has noted, the Double Jeopardy Clause affords a defendant three basic protections.

‘[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’

Brown v. Ohio, supra, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). We have previously determined that under the circumstances of this case there was no constitutional or common law prohibition against a second prosecution, unless that procedure results in multiple sentences for .the same offense. The defendant argues that the prohibition against multiple punishments should have served as a bar to the prosecution of the greater offense. He posits that the earlier sentence imposed on the lesser offense resulted in a final judgment of conviction; that the time had expired for any further action with respect to that judgment of conviction; and that as a result, neither the trial court nor this Court has any authority to vacate the judgment of conviction on that count. Because this is so, the defendant argues, any sentence imposed on the greater offense necessarily results in multiple punishments and multiple convictions for the same offense, and that is prohibited.

We considered a similar argument in Middleton v. State, supra. The facts of Middleton were unusual; indeed we described the case as involving “peculiar circumstances.” 318 Md. at 761, 569 A.2d 1276. In that ease a jury convicted the defendant of four of seven offenses submitted to it, including convictions of first degree rape and second degree rape. The jury found the defendant not guilty of the remaining three charges, which included a charge of use of a handgun in the commission of a felony. The defendant filed timely motions for a new trial, and to strike the finding of guilt of first degree rape contending, among other things, that the finding of guilt of first degree rape was inconsistent with the not guilty finding rendered on the use of a handgun charge. The trial judge granted the motion to strike the verdict of guilt as to first degree rape, and denied the motion for a new trial. A dispute later arose as to whether the trial judge intended to deny the' motion for a new trial entirely, or to grant a new trial as to the first degree rape charge. The trial judge proceeded to sentence the defendant on the second degree rape conviction, and on a related charge. He declared that the remaining counts of which the defendant had been found guilty merged for the purpose of sentencing. Five days after sentencing, the State filed a motion for reconsideration, which sought reinstatement of the original guilty verdict for the first degree rape. While that motion was pending, the defendant appealed from the judgments of conviction earlier entered by the court. Those judgments were eventually affirmed by the Court of Special Appeals.

After the notice of appeal was filed, the circuit court granted the State’s motion for reinstatement of the guilty verdict on the count charging first degree rape. The defendant moved to dismiss the first degree rape charge, but that motion was denied and the defendant was sentenced on the reinstated verdict. The defendant appealed from that judgment, and the Court of Special Appeals, by a divided court, affirmed. Middleton v. State, 76 Md.App. 402, 545 A.2d 103 (1988). This Court reversed, holding that the finality of the earlier judgment of conviction of the lesser offense precluded any possibility of vacating the sentence imposed on that offense, and that as a result no additional sentence could lawfully be imposed on the greater offense, and therefore no retrial could be had as to the greater offense.

In Middleton, this Court was not asked to, and did not, consider the possibility that the sentence on the earlier judgment of conviction might properly be vacated by the trial judge under the authority of Maryland Rule 4-345(a), thereby eliminating the problem of multiple convictions and punishments for the same offense. We now consider, and accept, that argument.

Rule 4-345(a) provides that “The court may correct an illegal sentence at any time.” This Rule creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court. Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985); Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981). Rule 4-345(a) does not preclude action by the trial court on its own initiative,⁷ and we have in the past ex mero motu directed the trial court to correct an illegal sentence upon remand. Boyd v. State, 321 Md. 69, 73-74 n. 2, 581 A.2d 1 (1990).

In the instant ease, the imposition of sentence on the greater offense had the effect of rendering the sentence on the lesser offense illegal as a cumulative sentence prohibited by double jeopardy protections. The trial judge had the authority to vacate, and should have vacated, the sentence on the lesser offense immediately after imposing sentence on the greater offense, thereby avoiding multiple punishments for the same offense. Vacating the sentence imposed on the lesser offense also operates to vacate the judgment of conviction, thereby relieving the defendant of what would otherwise constitute multiple convictions for the same offense. Because the illegal sentence can be corrected at any time, the trial judge continues to have the authority to take that action upon remand, and we direct that he do so.⁸

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY ON COUNT ONE, AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR THE PURPOSE OF VACATING THE SENTENCE AS TO COUNT TWO; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE DEFENDANT, DORIN GRIFFITHS.

Dissenting Opinion by ELDRIDGE, J., in which BELL, J., joins.

1 . By separate charging documents, consolidated for trial with the five-count bill of information, the defendant was also charged with obliterating the serial number of a pistol and unlawful importation of cocaine into the State. The jury found the defendant not guilty of both these offenses.

2 . The parties initially agreed to disposition by way of an "Alford” plea of guilty, but modified their agreement when the trial judge pointed out that the defendant could not preserve his right to appeal if he pled guilty.

3 . An exception, not applicable to this case, exists when the conduct giving rise to a successful motion by a defendant for a mistrial "was intended to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2085, 72 L.Ed.2d 416 (1982).

4 . We need not here address additional similar factual scenarios such as multiple charges arising out of the same criminal transaction that are filed at separate times but consolidated for trial prior to disposition of any of the charges.

5 . See also Schrimsher v. State, 325 Md. 88, 599 A.2d 444 (1991).

6 . We need not here consider whether under Maryland law a second conviction for a greater offense resulting only in the imposition of a fine that when added to a fine earlier imposed for a lesser offense does not exceed the maximum fine permitted by law would constitute impermissible cumulative punishment. The Supreme Court has held that under federal law it would not. Jeffers v. United States, 432 U.S. 137, 157-58, 97 S.Ct. 2207, 2219-20, 53 L.Ed.2d 168 (1977).

7 . Compare the language of Maryland Rule 2-501(a), requiring a motion by a party as a condition to the granting of relief under the Rule. See Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994).

8 . In view of our holding that Maryland Rule 4-345 (a) provides an adequate existing procedure for vacating the sentence imposed on the lesser offense, we need not consider whether the constitutional imperative to prevent multiple punishments would mandate vacatur of the sentence even in the absence of a state procedure specifically authorizing that action. Cf. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (state rules in some instances must give way to greater constitutional requirements).