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Top court: Lack of charge in indictment dooms 1992 conviction

It’s never too late to challenge a conviction for an unindicted crime, Maryland’s top court has held.

In a unanimous decision Tuesday, the Court of Appeals vacated Jarmal Johnson’s 1992 conviction for assault-with-intent-to-murder that had gone unchallenged for 16 years.

Lower courts had decided that Johnson’s long silence — beginning with his trial attorney’s failure to object to jury instructions or the resulting verdict — constituted an implied acquiescence to the charge, even in the absence of an indictment.

The high court said Johnson’s challenge to his conviction without prior indictment could “be raised at any time” under Maryland procedural rules and the state’s Declaration of Rights, which requires that criminal defendants be informed of the accusations against them.

Juan P. Reyes, Johnson’s appellate attorney, said the decision makes clear that silence is not assent to an unindicted charge.

“The indictment puts the defendant on notice with what he is charged with,” said Reyes, an assistant Maryland public defender. “Allowing the amendment of an indictment by implication is problematic to say the least.”

Allowing amendment by implication “would create an unfair guessing game for defendants, in which they would be required to defend not only the charges in the indictment, but also any other crimes discussed on the record or argued to the jury,” Judge Sally D. Adkins wrote for the court. “Such a procedure would eviscerate the constitutional and procedural reasons for indicting defendants.”

Brian S. Kleinbord, of the Office of the Maryland Attorney General, said the decision “will have a very limited impact beyond the particular facts of this case.”

“The challenge in this case came much too late,” added Kleinbord, who heads the office’s criminal appeals division. “This is something that had to be raised at the time of trial.”

The high court, though overturning the assault conviction and 30-year sentence, upheld Johnson’s convictions on other felonies by the same Baltimore jury. Those convictions, yielding about 80 years in prison, included gun crimes and possession with intent to distribute heroin and cocaine.

Johnson is being held at the maximum security North Branch Correctional Institution in Cumberland, according to Maryland Department of Public Safety and Correctional Services records.

He was arrested on March 6, 1992, and accused of firing an automatic weapon in the direction of police officers who had come to execute a search warrant at 630 Baker St. in Baltimore. The officers found cocaine and heroin in the apartment.

The arresting officer filled out a statement of charges that listed assault with intent to murder and 10 other charges.

However, assault with intent to murder was not included in the subsequent grand jury indictment, nor was it raised during Johnson’s arraignment, in opening statements at trial or in his attorney’s closing arguments

But the charge reappeared — without objection from defense counsel — on the verdict sheet prepared for the jury and in the judge’s instructions to the jurors, who convicted Johnson, now 40, on Sept. 22, 1992.

Inherently illegal

In January 2008, Johnson filed a pro se motion to correct an illegal sentence based on the argument that his assault-with-intent-to-murder conviction was invalid because he had never been indicted for the crime.

Reyes, who represented Johnson on appeal, said he did not know why Johnson filed the motion in 2008.

The motion was denied, and the Court of Special Appeals upheld the denial last year, saying his challenge to the conviction had to have been raised on his direct appeal.

The top court, though, noted that Maryland Rule 4-345(a) permits courts to “correct an illegal sentence at any time” and held that a sentence is “inherently illegal” if it is based on a conviction for which the defendant was never indicted.

Johnson “was prejudiced here by not having proper notice of how to prepare his defense,” Adkins wrote. “He was not properly on notice of the charge of assault with intent to murder, which prevented him from properly defending against it…and in any event should not have devoted time and resources to defending a charge not contained in the indictment.”



Jarmal Johnson v. State of Maryland, CA No. 84, Sept. Term 2011. Reported. Opinion by Adkins, J. Argued March 1, 2012. Filed July 10, 2012.


Did the judge properly dismiss as untimely the defendant’s motion to void an illegal sentence based on a conviction for which there was no indictment?


No; a challenge to a conviction without a prior indictment can “be raised at any time.”


Juan P. Reyes for Petitioner; Mary Ann Ince for Respondent.

RecordFax # 12-0710-21 (26 pages).