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Opinions – Maryland Court of Special Appeals:1/24/11

MARYLAND COURT OF SPECIAL APPEALS

Criminal Law

Deposits on New Homes subtitle

BOTTOM LINE: The evidence was insufficient to support the defendant’s conviction for failing to deposit money into escrow in violation of the Deposits on New Homes subtitle, because that subtitle does not include construction loan transactions where the land and the new residential unit were not conveyed simultaneously.

CASE: Coleman v. State, No. 1559, Sept. Term, 2009 (filed Dec. 28, 2010) (Judges Eyler, D., Woodward & DAVIS (retired, specially assigned)). RecordFax No. 12-1228-01, 27 pages.

FACTS: Opportunities Investment Group (OIG), a corporation formed by Leon Thomas Coleman, acquired the right to purchase a plot of land known as Kings Grant Court. Kings Grant Court had been subdivided into 11 lots in 1978. A plat from that time indicated that some of the lots were in a flood plain.

From mid-February through mid-June of 2004, Coleman, on behalf of OIG, contracted with 10 buyers to build homes on 10 of the property’s lots. Coleman met with each of the lot purchasers; he claimed to have been building homes for years and that he had only a small number of lots remaining in the development.

Coleman showed the purchasers drawings and floor plans. He also told some of the purchasers that they could expect their homes to be built within nine months. Coleman did not tell any of the purchasers that he had difficulties in obtaining required permits, nor did he say anything about the property being in a flood plain. He told some of the purchasers that he had already applied for some permits and would receive them within two months.

Each buyer executed a contract obligating OIG to convey a lot to the buyer and construct a house on it. All of the buyers paid between $2,250 and $3,500 for blueprints and some made down payments or remitted deposits for their lots. The deposit of $2,500 remitted by one purchaser was placed in OIG’s escrow account, but the funds received from the other buyers were placed in OIG’s operating account.

Each of the buyers obtained a construction loan in amounts ranging from $256,000 to $381,000 to cover the purchase of the lots, construction of the homes, closing costs, and interest payments. At the time of settlement, the borrowers received an initial advance on the loan. After the initial advance was made, the bank held the remaining funds in a construction escrow account. OIG was to be paid pursuant to a draw schedule as construction progressed. However, after the initial advances were made, no more requests for first draws were made under the construction draw schedules.

Early in the process, Coleman also hired to convert conceptual drawings into blueprints and for site work planning. On June 30, 2004, Coleman notified the purchasers that home construction was progressing and that he had initiated water and sewer permits, and preconstruction and individual site plans for the subdivision. The only filing made by on behalf of OIG, however, was the application to Prince George’s County for approval of a storm water management concept plan that was never approved.

In December 2004, First Mariner Bank notified its borrowers that no funds had been disbursed from their construction loans, aside from payments made at settlement, and that no draws would be allowed after the maturity date, sometime in early 2005. At that time, the loans would be considered immediately due and payable.

The buyers, in late 2004, hired a consultant, to conduct a feasibility study and advise them as to how to proceed. After receiving the study, most of the purchasers concluded that their homes could not be constructed without much remediation work. Of the eight purchasers who testified at trial, four had their property foreclosed upon, and three refinanced their loans as lot loans and owned their lots at the time of trial, although one of those owners had defaulted on his loan and one couple filed for bankruptcy.

A jury found Coleman guilty of eight counts of theft over $500, and eight counts of failure to deposit money in an escrow account. Coleman was sentenced to fifteen years incarceration, with all but eighteen months suspended, for each count, and was given credit for time served. The court also ordered restitution as to each victim, totaling $502,178.

Coleman appealed to the Court of Special Appeals, which reversed.

LAW: The Deposits on New Homes subtitle, RP §10-301, provides: “If in connection with the sale and purchase of a new single-family residential unit which is not completed at the time of contracting the sale, the vendor or builder obligates the purchaser to pay and the vender or builder receives any sum of money before completion of the unit and grant of the realty to the purchaser, the builder or vendor shall: (1) Deposit or hold the sum in an escrow account segregated from all other funds of the vendor or builder.”

Furthermore, under subsection (b), the vendor or builder must maintain the escrow account until the earlier of: “(1) The granting of a deed to the property on which the residential unit is located to the purchaser; (2) The return of the sum of money to the purchaser; or (3) The forfeiture of the sum by the purchaser, under the terms of the contract of sale relating to the purchase of the residential unit.”

The plain language of the statute clearly shows that the legislature intended to protect purchasers in certain transactions involving new residential units from unscrupulous vendors and builders who might take payments, such as deposits, made prior to a conveyance. The type of conveyance covered by the statute is ambiguous. In the transactions involved here, the new single-family residential units were not completed at the time the sales were contracted and, therefore, the transactions arguably fall within the statutory provisions.

However, the statute’s reference to a new single-family residential unit which is not completed at the time of contracting the sale and, to a purchaser’s payment of money “before completion of the unit and grant of the realty,” arguably suggests that the statute applies to instances where construction of the unit has, in some way, begun at the time the parties enter into the contract.

In addition, the statute’s mandate that the escrow account be maintained until the “granting of the deed to the property on which the residential unit is located” suggests that the statute anticipates a transaction where the deed to the land is conveyed after the residential unit is constructed, and that the land and the residential unit would be conveyed simultaneously to a purchaser.

That interpretation is supported by the fact that the Deposits on New Homes subtitle does not address the payments for labor and materials that are made in accordance with a draw schedule in construction loan transactions case.

In addition, RP §10-304 provides an exemption from the provisions of the Deposits on New Homes subtitle for “a sale by or through a licensed real estate broker in connection with which all sums of money in the nature of deposits, escrow money, or binder money are paid to a broker to be held in the escrow account of the broker.” This exemption makes sense because, when money in the nature of deposits, escrow money, or binder money are paid to a licensed real estate broker, the risk that an unscrupulous vendor or builder might take it is eliminated.

Noticeably absent from this provision, however, is any reference to construction loan situations, where construction loan amounts might be available to a builder through a draw schedule. Such issues are specifically in the Maryland Custom Home Protection Act (MCHPA), RP §10-501.

As with the Deposits on New Homes subtitle, the intent of the legislature in enacting the MCHPA was clearly to protect custom home purchasers from unscrupulous custom home contractors. See Schwartz v. State, 103 Md.App. 378 (1995). Nevertheless, under the MCHPA, a custom home builder is only obligated to deposit funds in an escrow account “to the extent that the consideration is a payment in advance of the completion of the labor or the receipt of the materials for which the consideration is paid” see RP §10-501(a). That is the money that the statute was designed to protect.

Furthermore, under the MCHPA, the escrow requirements do not apply to custom home contracts where the funds of the custom home purchaser are already protected. See RP §10-504(e).

In this case, the transactions did not involve situations in which the land and a new single-family residential unit would be conveyed simultaneously to each purchaser, such as was contemplated by the legislature in RP §10-301. Rather, the contracts specifically identified the portion of the purchase price allocated to the purchase of the lot and, at the settlement on the construction loans, each purchaser received the deed to the lot, with construction of the homes in the subdivision to occur at a later date.

In the underlying transactions, once the land was conveyed to the purchasers, they were not in need of the protections afforded by an escrow account maintained by the vendor or builder because each purchaser had obtained a construction loan that provided for a construction escrow and draw schedule. As no construction work was ever done, no draws were made against any of the purchasers’ construction escrow accounts. If construction work had been done and OIG received a draw from the construction escrow, it would have been able to use those funds to pay its subcontractors, suppliers and the like.

This involved considerable evidence of underlying contracts and breaches thereof. However, this was a criminal matter and the Deposits on New Homes subtitle includes a penal provision. See Farris v. State, 351 Md. 24, 36 (1998). Because it was ambiguous as to whether the Deposits on New Homes subtitle applied to the type of transactions at issue here, the rule of strict construction required that that ambiguity be resolved against the State and in favor of Coleman.

Furthermore, this result is consistent with the legislative intent. The purpose of the subtitle, the structure of the statutes and other similar statutory provisions all indicate that the General Assembly did not intend to include within the coverage of the Deposits on New Homes subtitle construction loan transactions where the land and the new residential unit are not conveyed simultaneously. Therefore, the evidence was insufficient to sustain Coleman’s convictions under the Deposits on New Homes subtitle.

Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: In Schwartz v. State, 103 Md.App. 378 (1995), Lisa Schwartz managed the day-to-day affairs of Adams Homes, Inc. Adams Homes, Inc. contracted with two couples, the Blakes and the Romans, for the construction of two single-family modular homes to be built on property owned by each couple. Schwartz failed to deposit the funds paid to Adams Homes, Inc. by the couples in an escrow account, as required by RP §10-502. As a result of continued delays in the completion of their home, the Romans did not pay their final draw, terminated their contract and completed the construction of their home themselves. They did not, however, complete the construction of their garage. Id. at 384. The Blakes also terminated their contract and completed the construction themselves. However, Adams Homes, Inc. failed to provide a chimney, basement windows and an exterior door. Id.

Schwartz was convicted of theft of goods over $300, under Art. 27, §342, for failure to deliver and construct the items identified by the Romans and Blakes or otherwise hold the money for those items in escrow. Id. at 385.

The Court of Special Appeals reversed, concluding: “Principles of criminal law are inapplicable to the problems arising out of these contractual disputes. Any failure on the parts of Adams Homes or appellant to perform under the Blake and Roman contracts resulted in breaches of those contracts and possible violations of the MCHPA. Such failures to perform contractual obligations, however, should not have resulted in appellant’s conviction for theft.” Id. at 393.

Here, the record contained ample evidence of Coleman’s incompetence as a builder and his failure to perform contractual obligations adequately. Any failure on the part of Coleman to perform under the contracts resulted in breaches of those contracts, but those breaches did not warrant Coleman’s conviction for theft.

Nevertheless, the State argued that this case differed from Schwartz because Coleman was not charged with theft of construction materials, but rather theft by deception, pursuant to CL §7-104(b). Theft by deception requires proof of the offender’s intent to mislead, but not proof that the victim was misled. Fraiden v. State, 85 Md.App. 231, 259 (1991).

Under the facts here, the State failed to prove beyond a reasonable doubt that Coleman had the intent to deceive the purchasers necessary to sustain a conviction for theft by deception.

PRACTICE TIPS: As the legislature provided a comprehensive remedial scheme for MCHPA violations, which it intended to be an exclusive remedy and a specific penalty for custom home builders who violate the statutorily created trust relationship between the builder and the purchaser, a custom home builder may not be punished for misappropriation of funds by a fiduciary under Art. 27, §132 merely because the builder disobeyed certain provisions of the MCHPA. See Schwartz, 103 Md.App. at 389.

Criminal Law

Indecent exposure

BOTTOM LINE: Because the indecent exposure statute did not preempt the field of cases concerning indecent exposure committed by inmates in the correctional system, the defendant was properly charged with both common law indecent exposure and the statutory offense of indecent exposure by an inmate in the presence of a correctional officer.

CASE: Genies v. State, No. 753, Sept. Term, 2009 (filed Dec. 28, 2010) (Judges Eyler, J., Woodward & SHARER (retired specially assigned)). RecordFax No. 12-1228-03, 29 pages.

FACTS: While Daniel Genies was being detained in the medical unit of the Montgomery County Correctional Facility, he exposed himself in the presence of Corporal Goodridge, a female correctional officer. Genies was charged with both common law indecent exposure in a public place and indecent exposure by an inmate in the presence of a correctional officer in violation of CS §8-803.

Prior to jury selection, Genies moved to dismiss the count charging common law indecent exposure on the grounds that, if any prohibition applied to Genies’ conduct, the specific statutory offense was applicable. The court denied the motion.

Goodridge testified that while she was working in the medical facility, she observed Genies laying on his bed with his penis exposed while he was masturbating at about 10:45 a.m. Goodridge told Genies to stop twice. When he did not, Goodridge called for assistance.

Goodridge further testified that civilians work in the medical unit as nurses and maintenance staff. Furthermore, non-uniform staff and counselors come through there, in addition to tours.

On cross-examination, Goodridge agreed that Genies was incarcerated as an inmate, that he was alone in the room, was not free to leave, and that the room was locked. The room contained a bed, a shower with a shower curtain, a television, a chair, a wheelchair, and a toilet and a sink. Goodridge also confirmed that there were no blinds on the window into the room.

After the State rested its case-in-chief, defense counsel moved for judgment of acquittal. The court denied the motion as to both counts.

Genies testified that he was familiar with the schedule of the guard’s rounds, and believed there would be a count taken at 11:00 a.m. He did not expect to see any officers at 10:45 a.m. because the officer had already been by, and he thought the next round would be at 11:00 a.m.

Genies admitted that he was masturbating, but that he did not try to get anyone’s attention, nor did he want anyone to see him. Genies did not see Goodridge while he was masturbating, nor did he hear her.

On cross-examination, Genies agreed that the window into the room was large. He also knew that nurses walk in the area, that they did not come by on a regular schedule every 30 minutes, and that they would come into the area whenever another inmate called for them. Genies also knew he was not the only person in the area.

The State presented no rebuttal evidence. Genies’ counsel renewed her motion for a judgment of acquittal, which was denied.

Genies was convicted by a jury of common law indecent exposure and acquitted of statutory indecent exposure by an inmate in the presence of a correctional officer.

Genies appealed to the Court of Special Appeals, which affirmed.

LAW: Prior to the enactment of CS §8-803, indecent exposure was defined in Maryland under the common law as follows: “The authorities … are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one’s body in a public place in the presence of an assembly. Thus, its main elements were the wilful exposure, the public place in which it was performed, and the presence of persons who saw it.” Wisneski v. State, 398 Md. 578, 591 (2007).

In 2002, the Legislature enacted CS §8-803, which provides: “(a) Definitions.-Words or phrases in this section that describe the common-law crime of indecent exposure shall retain their judicially determined meanings except to the extent expressly or implicitly changed in this section. (b) Prohibited conduct.-An inmate may not, with intent to annoy, abuse, torment, harass, or embarrass a correctional officer or authorized personnel, lewdly, lasciviously, and indecently expose private parts of the inmate’s body in the presence of the correctional officer or authorized personnel.”

Genies posited that, by enacting CS §8-803, the Legislature intended to preempt the field with respect to such offenses and that, therefore, he could not be charged with common law indecent exposure.

“It is a generally accepted rule of law that statutes are not presumed to repeal the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law.” Robinson v. State, 353 Md. 683, (1999).

While there is no express provision in CS §8-803 stating that the Legislature meant to repeal the common law, subsection (a) generally retains the common law definition of indecent exposure, except as changed by the section. That express or implicit change applies to the specific conduct prohibited by subsection (b), i.e., indecent exposure with a specific intent in the presence of a correctional officer or authorized personnel. While it is arguable that the Legislature intended such specific conduct to be charged under CS §8-803, it is not clear that the Legislature also intended that other types of indecent exposure by inmates could not be charged.

Accordingly, finding an apparent ambiguity in this statute, the legislative history was examined. A significant factor informing the legislative process was a memorandum opinion issued by the circuit court for Anne Arundel County, Maryland. See Testimony of Richard J. Baker, Superintendent of Anne Arundel County Department of Detention Facilities on SB 429 (Feb. 12, 2002). According to written testimony in the history, at some point prior to consideration of the bill that would enact CS §8-803, Senate Bill 429, the circuit court had reversed indecent exposure convictions of two inmates “on the grounds that a correctional facility is not a public place and therefore, the law against indecent exposure does not apply.” Id. at 2.

Apparently in response to that ruling, several legislators proposed Senate Bill 429 in order to make clear that such conduct amounted to criminal behavior. However, that does not mean that the Legislature also intended to preempt the common law in this specific area.

In Anderson v. State, 61 Md.App. 436 (1985), the Court of Special Appeals considered “whether the Child Abuse Statute has preempted the field and, therefore, repealed common law assault and battery within a factual situation where one in loco parentis is guilty of using immoderate force in the course of exercising domestic authority over a child.” Id. at 448-49. The Court held that the new statute did not preempt the common law of assault and battery. Id. at 449.

By way of analogy, in Anderson the Court discussed State v. Gibson, 4 Md.App. 236 (1968), where the Court of Appeals concluded that, in enacting the statutory offense of manslaughter by automobile, the Legislature meant to preempt a charge of involuntary manslaughter where the instrumentality of that type of homicide was an automobile. Gibson, 4 Md.App. at 247.

In discussing Gibson, the Court observed in Anderson that the enactment of manslaughter by automobile was “intended to provide a more lenient treatment for that broad and easily identifiable category of cases where death had resulted from the negligent operation of a motor vehicle.” Anderson, 61 Md.App. at 455. “When the direction from the common law crime to the statutory crime is downward in terms of available punishment, what emerges is a clearly identifiable legislative intent to mitigate the harshness of the common law and to deal with the proscribed conduct in a more lenient fashion.” Id. at 456.

In contrast to Gibson, in Anderson, in enacting the statutory offense of child abuse, “the direction from the common law to the statutory crime is unmistakably upward.” Anderson, 61 Md.App. at 456. Further, “[w]hen the Legislature singles out conduct which is directly, or in significant measure, an aggravated form of already proscribed behavior, the direction is upward in terms of harshness.” Id. Accordingly, “[w]hen the obvious legislative intent is to deal more harshly with aggravated forms of already criminal behavior, there is no inherent incompatibility between the greater and lesser crimes; there is no preempting of the field and no repeal of the lesser, common law crime.” Id. at 457.

Based on the legislative history, by enacting CS §8-803, the Legislature did not intend to ameliorate any possible consequences of a charge of indecent exposure by an inmate. Instead, the legislative history suggests that the Legislature enacted CS §8-803 to make clear that such conduct, committed with a specific intent against certain individuals in the correctional system, was, indeed, proscribed conduct. Thus, the direction of the law is to make available harsher treatment, which includes the possibility that prosecutors may, in their discretion, choose to charge both common law indecent exposure and indecent exposure by an inmate pursuant to CS § 8-803.

This conclusion is also supported by Wisneski, the case relied upon by the trial court. Eugene Wisneski was a visitor in the home of Bridgette Penfield, when Wisneski exposed himself to a visitor in Penfield’s home. Wisneski was charged with indecent exposure. Wisneski, 398 Md. at 579.

Wisneski moved for judgment of acquittal on the grounds that Penfield’s home did not constitute a “public place,” as required by the definition of indecent exposure. The trial court denied the motion. Id. at 586. The Court of Special Appeals affirmed.

The Court of Appeals affirmed, concluding: “Therefore, … the common law offense of indecent exposure requires wilfulness and observation by one or more casual observers who did not expect, plan or foresee the exposure and who were offended by it. This definition of ‘public’ not only incorporates and reflects the historical antecedents from England for criminalizing the offense..to prohibit unexpected offensive conduct, but it also compliments the “public” nature of all of the elements of indecent exposure.” Id. at 602.

Accordingly, the enactment of CS §8-803 did not preempt the field concerning cases of indecent exposure committed by inmates in the correctional system. The trial court correctly denied Genies’ motions when it decided to submit both common law indecent exposure and the statutory offense of indecent exposure by an inmate in the presence of a correctional officer to the jury. Moreover, the evidence was sufficient to support Genies’ conviction for common law indecent exposure.

The judgment of the circuit court was affirmed.

COMMENTARY: Genies filed a motion for new trial on eight days after the verdict. The trial court denied the motion without a hearing.

Rule 4-331 provides: “On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (e) Disposition. The court may hold a hearing on any motion filed under this Rule and shall hold a hearing on a motion filed under section (c) if the motion satisfies the requirements of section (d) and a hearing was requested.” The rule is discretionary with respect to motions filed under subsection (a).

Jackson v. State, 358 Md. 612, 625 (2000), did not support Genies’ contention that a hearing was required on his motion because that case involved a claim as to whether the trial court erred in denying petitioner’s motion for new trial, based on newly discovered evidence under Rule 4-331(c), without conducting a hearing. Id. at 614.

Moreover, the basis of Genies’ motion was an allegation that one juror changed her vote during deliberations because she felt threatened by another juror. “The law in Maryland is well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake.” Eades v. State, 75 Md.App. 411.

Accordingly, the trial court properly exercised its discretion in denying Genies’ motion under Rule 4-331(a) without conducting a hearing.

PRACTICE TIPS: “An abrogation of the common law will be implied … where a statute is enacted which undertakes to cover the entire subject treated and was clearly designed as a substitute for the common law.” Irvine v. Rare Feline Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind.Ct.App. 1997).

Criminal Procedure

Sentencing

BOTTOM LINE: Where one of the consecutive sentences imposed for multiple convictions was invalidated, the next valid consecutive sentence began at the time set for the commencement of the invalidated consecutive sentence.

CASE: Butcher v. State, No. 0620, Sept. Term, 2009 (filed Dec. 22, 2010) (Judges Hollander, Zarnoch & RODOWSKY (retired, specially assigned)). RecordFax No. 10-1222-01, 18 pages.

FACTS: Edward Butcher was convicted and sentenced on multiple charges in the circuit court. Each successive sentence was expressly consecutive to the sentence imposed before it. Sentence A, for robbery with a deadly weapon, was 20 years; sentence B, for carrying a dangerous weapon openly with intent to injure, the sentence was three years to run consecutive to sentence A; sentence C, for assault and battery, was 10 years to run consecutive to sentence B; and sentence D, for carjacking, was 30 years to run consecutive to sentence C.

Three years later Butcher petitioned the circuit court for post-conviction relief, contending that sentence B merged with sentence A. The court agreed, and entered judgment vacating sentence B. All other claims in the petition were denied. A Commitment Record reflecting the modification made to the original sentence stated that sentence C was consecutive to sentence A and that the total time to be served was 60 years, a reduction of the three years imposed by B.

Butcher filed a pro se motion to correct an illegal sentence. Butcher contended that, after sentence B was eliminated, there was no relationship between sentence A, then being served, and sentence C, so that sentences C and D must be deemed concurrent with A. The result would be an additional reduction of 20 years, resulting in a total sentence of 40 years. The court denied the motion.

Butcher appealed to the Court of Special Appeals, which affirmed.

LAW: The State suggested that the motion to correct an illegal sentence under Rule 4-345(a) does not embrace Butcher’s contention because the alleged illegality does not “inhere in the sentence itself.” See Pollard v. State, 394 Md. 40, 47 (2006).

“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.” State v. Griffiths, 338 Md. 485, 496-97 (1995). Under those circumstances, the trial court should have vacated the sentence on the lesser charge by applying Rule 4-345(a) on its own motion. Id. Griffiths is sufficiently analogous to the instant matter to permit Butcher to proceed under Rule 4-345(a).

Butcher argued that “if two sentences are not expressly made consecutive, they are concurrent.” See Gatewood v. State, 158 Md.App. 458, 482 (2004); Nelson v. State, 66 Md.App. 304, 312-13 (1986). Butcher relied on Smith v. State, 23 Md.App. 177 (1974), which involved four appellants who had committed an armed robbery in which there were 26 victims. The indictment presented the charges in 117 counts. Smith was sentenced (A) to 20 years for the robbery of one victim; (B) to 15 years, consecutive to A, for assault with intent to murder a second victim; (C) to 10 years, consecutive to B, for the false imprisonment of a third victim; and (D) to 15 years, consecutive to C, for use of a handgun. All appellants argued that the sentences on their convictions for false imprisonment should merge into their sentences for robbery. The Court of Special Appeals rejected that contention out of hand because, as to each appellant, the two crimes involved separate victims.

In footnote 4, the Court noted that, in the sentencing of all appellants, the sentence upon additional convictions was made consecutive only to the sentence immediately preceding it. In all cases but Smith’s, the sentence immediately preceding that for false imprisonment was for an armed robbery. In Smith’s case, however, the sentence for false imprisonment was consecutive to his sentence for assault with intent to murder.

The Court then ruminated on the effect on the total sentence if the judgment in Smith’s case on that assault conviction were reversed or vacated. “[T]he sentence on the robbery conviction and the sentence on the false imprisonment conviction would run concurrently with each other, there being no existing sentence to which the false imprisonment sentence was designated to run consecutively. The rule of the common law was that, in the absence of any statute, if it is not stated in either of two sentences imposed at the same time that one of them shall take effect at the expiration of the other, the two periods of time will run concurrently, and the two punishments executed simultaneously.” Id. at 184 n. 4.

Clearly, the language relied upon by Butcher is dictum in the Smith opinion. The language forms no part of the reasoning for the holding that sentences do not merge where they are imposed for crimes against separate victims. The language addresses hypothetical facts that were not presented in Smith.

Further, 5 Wharton’s Criminal Law & Procedure §2214, at 429 (Anderson 1957), cited in support of the dictum, states: “In the absence of a statute to the contrary, if accused is convicted of more than one offense or under more than one count, sentences of imprisonment imposed under the different counts, or for different offenses, if by the same court, will be construed as running concurrently, and the accused will be discharged at the expiration of the longest term, unless the sentences expressly state otherwise[.]” Wharton’s does not address the vacating of one of multiple sentences, each of which is consecutive only to the immediately preceding sentence.

The Annotation, “Effect of invalidation of sentence upon separate sentence which runs consecutively,” 68 A.L.R.2d 712, 716 (1959), summarized the decisions in cases analogous to this one: “Where separate, consecutive sentences have been imposed at the same time-for example, under a multiple count indictment-and the conviction for which the earlier sentence was imposed is reversed, or the earlier sentence is otherwise invalidated, it has been held that the later sentence runs from the date on which imprisonment under the earlier sentence was commenced.”

In Wilson v. Simms, 157 Md.App. 82 (2004), on Jan. 20, 1979, the circuit court for Talbot County sentenced Wilson to 50 years, consecutive to sentences previously imposed in other jurisdictions. At that time, Wilson was serving a sentence in Delaware. On Feb. 8, 1979, the circuit court for Carroll County sentenced Wilson to 36 years “‘consecutive with the sentence received in Talbot County[.]’” Id. at 85.

Wilson was paroled by Delaware, to a Maryland detainer only, on Jan. 23, 1990. Maryland did not take Wilson into custody until May 2, 1990. At some point thereafter, Wilson sought post-conviction relief in the circuit court for Talbot County, claiming prosecutorial misconduct. That relief was granted, and the Talbot County sentence was vacated on March 26, 1999.

In calculating Wilson’s diminution credits, DOC considered that the Carroll County sentence started when the Talbot County sentence was vacated on March 26, 1999. Wilson contended that the Carroll County sentence started on Feb. 8, 1979, when it was imposed. Id. at 92.

The Court of Special Appeals held that the habeas corpus court erred in concluding that the Carroll County sentence did not commence until the Talbot County sentence was vacated. That analysis, in violation of CP §6-218, denied Wilson credit for the period spent in Maryland custody from May 2, 1990, to March 26, 1999. The Court of Special Appeals, however, ruled: “[T]he Carroll County sentencing court clearly and unambiguously made the sentence consecutive to the Talbot County sentence, which was clearly and unambiguously consecutive to the sentence being served in Delaware. Consequently, the Carroll County sentence clearly and unambiguously was consecutive to the sentence being served in Delaware.” Id. at 97-98. Applying the rule of lenity to the construction of CP §6-218, the Court of Special Appeals concluded that Wilson’s diminution credits should be computed with a starting date of May 2, 1990, when he came into Maryland’s custody. Thus, Wilson held that when B was vacated, C began when B was to begin.

Both Butcher and the State relied on Palmer v. State, 193 Md.App. 522 (2010). However, the opinion in Palmer expressly recognizes that its philosophizing over the effect of the nullification of one in a series of consecutive sentences is dictum. Palmer does not cite Wilson, which held that the next valid consecutive sentence takes effect when the invalid consecutive sentence was to commence. Wilson, 157 Md.App. at 97-9.

The majority rule of the decisions of courts other than those of Maryland is that, when one of a series of consecutive sentences is nullified, the next valid sentence begins on the date set for the commencement of the invalidated sentence. See, e.g., Jackson v. Jones, 327 S.E.2d 206 (Ga.1985); Blitz v. United States,153 U.S. 308 (1894); Tucker v. Peyton, 357 F.2d 115 (4th Cir.1966).

Butcher received credit for the invalidated sentence, B, because his total sentence was reduced by the three year length of B when C was moved up and considered to commence when B was to commence, i.e. to run consecutively to A. The sentencing court clearly intended to impose a total sentence of 63 years.

Other than the dicta in Smith and Palmer, Butcher presented no authority in support of his position. Indeed, the dicta in Smith and Palmer are contrary to the substance of the holding in Wilson, which was applied here.

Under the facts and the interrelationships of the sentences, the next valid consecutive sentence began at the time set for the commencement of the invalidated consecutive sentence.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Butcher argued that when the trial judge later reissued the current commitment order for 60 years, without the hearing required by Rule 4-345, she unlawfully raised the sentence. The State treated this comment as if it were an argument based on Rule 4-345(f).

Rule 4-345(f) reads: “The court may modify, reduce, correct, or vacate a sentence only on the record in open court, after hearing from the defendant, the State, and from each victim or victim’s representative who requests an opportunity to be heard. The defendant may waive the right to be present at the hearing. No hearing shall be held on a motion to modify or reduce the sentence until the court determines that the notice requirements in subsection (e)(2) of this Rule have been satisfied. If the court grants the motion, the court ordinarily shall prepare and file or dictate into the record a statement setting forth the reasons on which the ruling is based.”

The rule was fully complied with when the trial judge, after holding hearings in open court, ruled that Butcher’s sentence for carrying a deadly weapon with intent to injure was vacated but otherwise the conviction and sentence remained the same. Further, Butcher had the opportunity at the hearings to argue the effect on the total sentence if his merger argument prevailed.

PRACTICE TIPS: ABA Standards for Criminal Justice Sentencing, which did not support converting any of the valid sentences imposed here from consecutive to concurrent, reads: “When an individual has been sentenced to consecutive terms of total confinement, credit toward the remaining sentence should be given for time spent in custody under a sentence that has been set aside as a result of appeal or postconviction review without reprosecution or resentence for that offense or for another offense based on the same conduct.” Standard 18-3.21(f).

Criminal Procedure

Waiver of right to counsel

BOTTOM LINE: Defendant waived his right to counsel by inaction because he was adequately advised of the charges against him and he had no meritorious reason for failure to retain counsel by start of trial.

CASE: Peterson v. State, No. 0686, Sept. Term, 2009 (filed Dec. 28, 2010) (Judges Eyler, D., Kehoe & ALPERT (retired, specially assigned)). RecordFax No. 12-1228-10, 28 pages.

FACTS: On July 13, 2008, off-duty Wicomico County Sheriff’s Office Lieutenant Robin Roberts and his wife went to Wal-Mart. As they entered the store, they heard its anti-theft alarm, and Roberts observed an African-American male, later identified as Howard Peterson, running through the lobby while pushing an empty shopping cart.

Roberts watched Peterson exit the store and proceed to a black Cadillac, where he opened his pants and pulled out a large package of what Roberts believed to be stolen meat. Roberts walked to the car and identified himself as a police officer. Howard placed the large package of meat in the shopping cart and slammed the cart into Roberts. He then fled toward the Wal-Mart.

While pushing the shopping cart away, Roberts noticed a second man, later identified at trial as Lionel Peterson, get into the driver’s seat of the Cadillac. Roberts again identified himself as a police officer and advised Peterson to stop the vehicle. Peterson said nothing, but he backed the vehicle up, running over Roberts’ foot. Roberts advised Peterson he was under arrest, but Peterson backed up farther and turned the steering wheel to the left, striking Roberts on his left knee and knocking him to the ground. Peterson then drove away.

Salisbury City Police Department Officer Tom Funk was dispatched to the scene. While en route, Funk saw a vehicle fitting the broadcast description of the suspect vehicle driving in the opposite direction at a high rate of speed. Funk stopped the car. He observed two African-American males in the vehicle and saw one of them reach into the back seat and attempt to cover with a shirt a large pile of meat and shrimp.

Before Funk could ask the driver any questions, Peterson told Funk that “he didn’t hit no one.” When asked to clarify, Peterson told him that “some guy at Wal-Mart tried talking to him,” but that Peterson did not do anything wrong. Peterson told Funk that he believed the man at the Wal-Mart to be a police officer.

After first denying to Funk that he had struck anyone with his vehicle, Peterson admitted that Roberts “had made contact with his vehicle” and that he had seen Roberts fall. To Funk, the vehicle’s passenger, Peterson’s brother, also admitted to having been at the Wal-Mart and to having had contact with a man he believed to be a police officer.

While interviewing the brothers, Funk was alerted to a report of a theft or shoplifting incident from a Food Lion supermarket in Delmar. A witness from Food Lion was transported to the location of the traffic stop and she identified Lionel Peterson, with certainty, as a suspect in the theft. Peterson was then placed under arrest for assault and theft.

A jury convicted Lionel Peterson of second degree assault, second degree assault on a law enforcement officer, theft under $500, failure to stop at the scene of an accident, failure to return or remain at the scene of an accident, failure of a driver involved in an accident to render reasonable assistance, and failure of a driver involved in an accident to report an injury. The trial court sentenced him to a total of three years in prison.

Peterson appealed to the Court of Special Appeals, which affirmed.

LAW: Rule 4-215 sets forth the “mechanisms by which a defendant can waive [his] right to counsel, establishes fixed and stringent procedures governing waiver in order to ensure that this right is protected.” Grant v. State, 414 Md. 483 (2010). The Rule provides a checklist of requirements to be completed before a judge may consider a defendant’s waiver of counsel valid. The requirements of Rule 4-215 are mandatory, and a court’s failure to comply strictly with the Rule constitutes reversible error. State v. Camper, 415 Md. 44, 55, 998 A.2d 352 (2010).

For a criminal defendant to waive his right to counsel effectively, he must “‘knowingly and intelligently’ forgo those relinquished benefits.” Brye v. State, 410 Md. 623, 634 (2009) (quoting Faretta v. California, 422 U.S. 806, 835 (1975).

Rule 4-215(d) provides that a waiver by inaction may be found “[i]f a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial[.]”

The court must determine whether the defendant’s reasons for appearing in court without an attorney are meritorious. In determining whether the defendant’s reason is meritorious, the court’s inquiry “(1) must be sufficient to permit it to exercise its discretion … (2) must not ignore information relevant to whether the defendant’s inaction constitutes waiver … and (3) must reflect that the court actually considered the defendant’s reasons for appearing without counsel before making a decision.” Broadwater v. State, 401 Md. 175, 204 (2007) (quoting McCracken v. State, 150 Md.App. 330, 356-57 (2003)).

Following a bail review hearing and a preliminary hearing in the district court, Peterson first appeared before the circuit court on Oct. 3, 2008. During that brief appearance, the trial judge asked Peterson whether he had received a copy of the charging document, and Peterson affirmed that he had. Peterson affirmed that he understood the charges and the penalties.

The court advised Peterson that he was entitled to be represented by an attorney. Again, Peterson indicated his understanding. The court warned Peterson that if he were going to hire a lawyer, the lawyer would be required to file an appearance within the next 15 days. Again, Peterson affirmed his understanding of the court’s advice. Finally, the court advised Peterson that “certain things” needed to be filed within 30 days.

Peterson’s next appearance in court occurred on Dec. 1, 2008. He requested a continuance because he said he had contacted an attorney but had recently been laid off from, and then rehired to, his job and wanted to make sure he could pay his lawyer. The court granted him 60 days.

On Feb. 4, 2009, Peterson again appeared in court, still unrepresented by counsel. The court ordered Peterson to go to the Office of the Public Defender (OPD) and make application for an attorney when he left the courthouse that day. The court postponed the trial for 30 more days. The court further told Peterson that in 30 days he was going to trial whether he had a lawyer or not.

Peterson’s trial was called on March 25, 2009, and Peterson again appeared without a lawyer. He told the court that he had gone to the OPD, and they had given him “a paper,” but when he went back on the date he had been told, he was turned away because he had not contacted the office more than 10 days prior to trial or brought in required documents.

The court found that Peterson did not have meritorious reason not to have a lawyer on the day of trial, so it found that he waived his right to a lawyer. The case proceeded to trial.

Rule 4-215(a)(3) requires that a defendant be advised of the “nature of the charges” in the charging document. It does not require a verbatim recitation of those charges. The trial court correctly advised Peterson of the nature of the charges and correctly notified Peterson of potential penalty for each of those counts.

Furthermore, there was nothing in the record to indicate the court abused its discretion in finding that Peterson did not have a meritorious reason for his failure to appear at trial without counsel. The court’s numerous inquiries into, and continuances as a result of, Peterson’s inaction in retaining counsel were certainly sufficient to permit it to exercise its discretion in determining that his reasons for failing to do so were not meritorious. The trial court did hear all relevant information regarding whether Peterson’s inaction constituted waiver, and the trial court did actually consider Peterson’s reasons for appearing without counsel. See e.g., McCracken v. State, 150 Md.App. 330 (2003).

Thus, the trial court did not abuse its discretion in finding that Peterson had waived his right to counsel by inaction.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: During jury voir dire, Peterson advised the court that he intended to call his brother, Howard, as an alibi witness and another brother and his mother as character witnesses. The State objected to the testimony of Howard and any subsequent witnesses on the ground that Peterson had failed to disclose the witnesses prior to the morning of trial.

The court held that Howard could testify only as to what happened at the Wal-Mart and not the Food Lion. The court granted the State’s motion with regard to the purported character witnesses; the court sustained the State’s objection and refused to allow those witnesses to testify.

At the time of Peterson’s March 2009 trial, Rule 4-263(e) governed the required disclosure of witnesses by the defendant to the State’s Attorney. Rule 4-263(n) set forth the sanctions for failing to comply with the Rule: “If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court.”

Disqualification of witnesses is a sanction expressly within the discretion of the court. Therefore, there was no abuse on the part of the trial court in excluding the testimony of Peterson’s alleged character witnesses on the ground of non-disclosure, nor was there an abuse in the trial court’s limitation of Howard’s testimony to only the events that occurred at the Wal-Mart, the only information undisputedly within his personal knowledge.

Even assuming that the trial court erred in disqualifying the purported character and alibi witnesses, any error was harmless. See Dorsey v. State, 276 Md. 638, 659 (1976). The elements of the charged crimes were shown, and testimony of Peterson’s good character prior to the date in question would have been irrelevant, especially in light of the fact that Peterson’s character had not been called into question except with regard to his actions at the specific time in question. In addition, Peterson was not able to proffer the manner in which Howard’s testimony would have exculpated him from the Food Lion theft.

PRACTICE TIPS: Under Rule 4-325(e), a failure to object to the giving or the failure to give a jury instruction at trial ordinarily constitutes a waiver of a claim that the instructions were erroneous, and, although Rule 4-325(e) does grant the court “‘plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court,’” Brown v. State, 169 Md.App. 442, 457 (2006) (quoting Danna v. State, 91 Md.App. 443, 450 (1992), in the context of erroneous jury instructions, the plain error doctrine has been noticed sparingly. Conyers v. State, 354 Md. 132 (1999).