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Criminal procedure — Illegal sentence — Use of handgun

In 2008, Sebastian Hernandez, the appellant, fired a handgun at two men – Jose Arnold Palacios and Arnold Ondongo – hitting Palacios, but not Ondongo. A jury sitting in the Circuit Court for Montgomery County convicted him of three offenses relative to Palacios – one count of attempted second-degree murder (Count I); one count of firstdegree assault (Count II); and one count of use of a handgun in the commission of a crime of violence (Count III) (hereinafter “use of a handgun”) – and two offenses relative to Ondongo – one count of first-degree assault (Count IV) and one count of use of a handgun (Count V). Count II merged with Count I for sentencing purposes.

The court sentenced the appellant as follows: 10 years for attempted second-degree murder of Palacios (Count I); 5 years consecutive to Count I for use of handgun against Palacios (Count III); 5 years consecutive to Count III for first-degree assault against Ondongo (Count IV); and 5 years concurrent with Count IV for use of a handgun against Ondongo (Count V), for a total aggregate sentence of 20 years. The appellant’s convictions were affirmed by this Court on direct appeal. See Hernandez v. State, Sept. Term 2009, No. 1256 (filed Aug. 26, 2010). …

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