Scott v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2412

September Term, 2014

______________________________________

THEODORE SCOTT

v.

STATE OF MARYLAND

______________________________________

Eyler, Deborah S.,
Wright,
Rodowsky, Lawrence F.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Eyler, Deborah S., J.
______________________________________

Filed: October 26, 2016
 In this case we must decide whether, when a mandatory enhanced sentence for a

third crime of violence is vacated on appeal because the evidence was legally insufficient

to support a finding that one of the prior convictions was for a crime of violence, double

jeopardy bars the State from introducing new evidence at resentencing on remand to show

that the same prior conviction was for a crime of violence. We hold that it does not. Our

holding is at odds with the Court of Appeals decision in Bowman v. State, 314 Md. 725

(1989). As we shall explain, the holding in Bowman was based solely on an analysis of

federal constitutional double jeopardy law that the United States Supreme Court has since

rejected.

FACTS AND PROCEEDINGS

A jury in the Circuit Court for Prince George’s County convicted Theodore Scott,

the appellant, of attempted robbery with a deadly weapon, use of a handgun in the

commission of a crime of violence, and conspiracy to commit robbery with a deadly

weapon. Scott committed the crimes on December 24, 2011, at a convenience store in Mt.

Rainier.

For Scott’s attempted armed robbery conviction, the State sought a mandatory

minimum sentence of 25 years, without parole, for a third crime of violence, under Md.

Code (2002, 2012 Repl. Vol.), section 14-101(d) of the Criminal Law Article (“CL”). The

two predicate convictions for crimes of violence were Scott’s prior conviction for first

degree assault in Maryland1 and his prior conviction for aggravated assault in the Superior

1
First degree assault is a crime of violence under Md. Code (2002, 2012 Repl. Vol.),
section 14-101(a)(19) of the Criminal Law Article.
Court for the District of Columbia (“the D.C. conviction”). The D.C. conviction resulted

from a guilty plea.

Under the D.C. aggravated assault statute, there are two modalities by which that

crime may be committed. First, a person commits the crime if “(1) By any means, that

person knowingly or purposely causes serious bodily injury to another person[.]” Second,

a person commits the crime if “(2) Under circumstances manifesting extreme indifference

to human life, that person intentionally or knowingly engages in conduct which creates a

grave risk of serious bodily injury to another person, and thereby causes serious bodily

injury.” D.C. Code 22-404.01(a)(1)–(2). The first modality of aggravated assault is

virtually identical to the Maryland crime of first degree assault, which, as noted, is a “crime

of violence” under CL section 14-101(a)(19). The second modality is similar to the

Maryland crime of reckless endangerment, which is not a “crime of violence” under that

statute.

At the sentencing hearing, the State introduced a certified copy of Scott’s D.C.

conviction. When defense counsel argued that the document was inadequate to prove the

modality of the crime, and therefore that it was a crime of violence, the court postponed

the sentencing hearing. At the reconvened sentencing hearing, the State introduced the

statement of charges in the D.C. case. From that evidence, the sentencing court found that

Scott’s D.C. conviction was for a crime of violence and that his attempted armed robbery

conviction was his third conviction for a crime of violence, under CL section 14-101(d).

On that basis, it imposed the mandatory minimum sentence of 25 years’ imprisonment,

without parole, for attempted armed robbery. In addition, it sentenced Scott to 10 years,

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with all but 5 years suspended, for use of a handgun, to be served consecutively to the

sentence for attempted armed robbery, and 10 years, all but 5 years suspended, for

conspiracy, to be served consecutively to the sentence for use of a handgun.

Scott noted an appeal to this Court in which he argued, among other things¸ that the

State’s evidence at sentencing was legally insufficient to prove that his D.C. conviction

was for a crime of violence, as defined in CL section 14-101(a), and therefore to establish

that his attempted armed robbery conviction was for a third crime of violence. We agreed

and vacated the sentence for attempted armed robbery, explaining:

[T]he transcript of the D.C. plea hearing was not produced at [Scott’s]
Maryland sentencing hearing. We are unable to tell “whether the statement
of facts in support of the guilty plea tracked the Statement of Charges or
whether other facts were subsequently developed or ignored for purposes of
securing the plea.”

* * *

Furthermore, the D.C. indictment alleged, in the alternative, conduct that the
State concedes would have amounted to the Maryland crime of reckless
endangerment, a crime not included as a “crime of violence” under C.L. §
14-101[a].

In the absence of evidence of a clear judicial admission by [Scott], we are
persuaded that the State failed to meet its burden of proving the necessary
predicates to support imposition of the mandatory sentence on Count 1
[attempted armed robbery] in this case.

Theodore Scott v. State of Maryland, No. 2491, September Term, 2012 (filed September

3, 2014), slip op. at 61. Citing Rule 8-604(d)(2), we remanded the case “for resentencing.”

At the resentencing hearing on remand, the State again sought to have Scott

sentenced to a mandatory term of 25 years’ imprisonment, without parole, for attempted

armed robbery, under CL section 14-101(d), based on the same two prior convictions. This

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time, the State moved into evidence the transcript of the guilty plea hearing that led to

Scott’s D.C. conviction. Scott objected, arguing that, having failed to introduce legally

sufficient evidence to prove that the D.C. conviction was for a crime of violence at the

original sentencing, the State was prohibited, by principles of double jeopardy, from

introducing evidence to prove the same thing on remand.

The sentencing court overruled Scott’s objection and, based on the guilty plea

transcript, found that his D.C. conviction was for a crime of violence under CL section 14-

101(a) and imposed the mandatory sentence of 25 years’ imprisonment, without parole, for

attempted armed robbery, under CL section 14-101(d). The court did not resentence Scott

on the use of a handgun and conspiracy convictions.

Scott noted this appeal, presenting four questions, which we have rephrased:

I. Did the resentencing court violate his double jeopardy rights by
imposing a mandatory twenty-five year sentence for attempted armed
robbery, under CL section 14-101(d), based on prior convictions that
included the D.C. conviction?

II. Did the resentencing court exceed the scope of its authority under this
Court’s remand order?

III. Did the resentencing court err by ruling the evidence legally sufficient
to prove that the D.C. conviction was for a crime of violence?

IV. Did the resentencing court err by refusing to consider making the
sentences for use of a handgun and conspiracy concurrent with the
mandatory twenty-five year sentence for attempted armed robbery?

For the following reasons, we shall affirm the judgments.

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 DISCUSSION

I.

A. Federal Constitutional Law of Double Jeopardy

Because the evidence adduced at his original sentencing hearing was legally

insufficient to prove that his D.C. conviction was for a crime of violence, Scott contends

the State was barred by the Double Jeopardy Clause of the Fifth Amendment from

introducing new evidence at resentencing to prove that the D.C. conviction was for a crime

of violence. He relies primarily on Bowman v. State, 314 Md. 725 (1989).

The State responds that double jeopardy principles did not bar it from introducing

the new evidence on resentencing because the evidence was being used to prove

“sentencing factors,” not to prove the elements of an offense. It relies on Almendarez-

Torres v. United States, 523 U.S. 224 (1998), and Monge v. California, 524 U.S. 721

(1998), and argues that the precedential effect of Bowman must be re-evaluated in light of

those Supreme Court cases.

The Double Jeopardy Clause guarantees that no person shall “be subject for the

same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend V. That

right, applicable to the states through the Fourteenth Amendment, see Benton v. Maryland,

395 U.S. 784 (1969), protects criminal defendants from successive prosecution for the

same offense and cumulative punishment for the same offense. Farrell v. State, 364 Md.

499, 504 (2001); see also Randall Book Corp. v. State, 316 Md. 315, 323 (1989) (“The

Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for

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the same offense after acquittal, a second prosecution for the same offense after conviction

and multiple punishments for the same offense.”).

As long ago as United States v. Ball, 163 U.S. 662 (1896), the Supreme Court

recognized that a defendant who successfully challenges his conviction for an offense on

direct appeal can be retried for the same offense, without double jeopardy acting as a bar.

United States v. Tateo, 377 U.S. 463, 465 (1964) (allowing retrial of an offense after

conviction was reversed on collateral attack). In Ball, the reversal on appeal was for trial

court error. As the Court later explained in Burks v. United States, 437 U.S. 1, 14–15

(1978), however, the cases that arose after Ball “generally do not distinguish between

reversals due to trial error and those resulting from evidentiary insufficiency.”

The Burks Court was presented with the question whether the Double Jeopardy

Clause bars a retrial of a defendant for an offense after his conviction was reversed on

appeal not for trial court error but for “the evidence [being] insufficient to sustain the

verdict of the jury.” Id. at 5 (footnote omitted). The defense argued that, for double

jeopardy purposes, no rational distinction could be drawn between an acquittal by the trial

court for legally insufficient evidence and a reversal by a reviewing court for legally

insufficient evidence. In the former situation, a retrial for the offense plainly is prohibited

because the defendant was acquitted. In the latter situation, the only trial court error was

to have not granted a judgment of acquittal, and therefore a retrial also should be prohibited.

Recognizing that in some of its previous decisions it had permitted a retrial after a

reversal for legally insufficient evidence, when the defendant had sought a new trial as one

form of relief, the Court characterized its holdings in those cases as inconsistent and unclear

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and rejected them, adopting the defense’s argument. It gave the following rationale for

allowing a retrial after reversal for trial court error:

[The reversal] does not constitute a decision to the effect that the government
has failed to prove its case. As such, it implies nothing with respect to the
guilt or innocence of the defendant. Rather, it is a determination that a
defendant had been convicted through a judicial process which is defective
in some fundamental respect . . . . When this occurs, the accused has a strong
interest in obtaining a fair readjudication of his guilt free from error, just as
society maintains a valid concern for insuring that the guilty are punished.

Burks, 437 U.S. at 15. By contrast, “when a defendant’s conviction has been overturned

due to a failure of proof at trial . . . the prosecution cannot complain of prejudice for, it has

been given one fair opportunity to offer whatever proof it could assemble.” Id. at 16

(footnote omitted). The Court emphasized that a reversal for legally insufficient evidence

“means that the government’s case was so lacking that it should not have even been

submitted to the jury.” Id. (emphasis in original).

Since we necessarily afford absolute finality to a jury’s verdict of acquittal—
no matter how erroneous its decision—it is difficult to conceive how society
has any greater interest in retrying a defendant when, on review, it is decided
as a matter of law that the jury could not properly have returned a verdict of
guilty.

Id.
Ten years later, in Lockhart v. Nelson, 488 U.S. 33, 40 (1988), the question before

the Supreme Court was whether a defendant could be retried after his conviction was

reversed for trial court error in admitting evidence without which the evidence would have

been legally insufficient to support the conviction. The Court characterized as the “general

rule” the settled law that the Double Jeopardy Clause does not bar the retrial of a defendant

for an offense after a reversal of a conviction of that offense for trial court error. Lockhart,

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488 U.S. at 39. The Court explained that the Burks holding is an exception to that general

rule: “Burks was based on the view that an appellate court’s reversal for insufficiency of

the evidence is in effect a determination that the government’s case against the defendant

was so lacking that the trial court should have entered a judgment of acquittal[.]” Id.

In Lockhart, the defendant was convicted of burglary and theft and was given an

enhanced sentence under a state habitual criminal statute. That statute required the state to

prove, beyond a reasonable doubt, to a trier of fact (in his case a jury), that the defendant

had a certain number of prior convictions (in his case, four). The state introduced evidence

of four prior convictions and the jury imposed an enhanced sentence. During that

proceeding, the defendant testified that he had been pardoned for one of his prior

convictions, but then agreed that his sentence on that conviction merely had been

commuted.

In a later habeas corpus proceeding, the defendant introduced evidence that he had

in fact been pardoned for the conviction. The district court ruled that the enhanced sentence

was invalid and further ruled that the Double Jeopardy Clause barred the government from

using another fourth prior conviction to obtain an enhanced sentence.

After an affirmance by the Eighth Circuit Court of Appeals, 828 F.2d 446 (8th Cir.

1987), the Supreme Court took the case and reversed. It held that the Burks exception did

not apply, because the case involved an error by the trial court in admitting the evidence of

a conviction for which, as was later revealed, the defendant was pardoned. As admitted,

the evidence was legally sufficient to support the jury’s finding of four prior convictions.

The Court held that the fact that the evidence would not have been legally sufficient to

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support the jury’s finding if the evidence that should not have been admitted had been

excluded did not put the case within the Burks exception. Accordingly, a “retrial” on the

habitual offender sentencing was permissible under the Double Jeopardy Clause. Lockhart,

488 U.S. at 42.

Such was the state of federal double jeopardy law in 1989, when the Court of

Appeals decided Bowman. There, a jury found the defendant guilty of armed robbery and

related crimes. The State sought a mandatory sentence of 25 years’ imprisonment without

parole for the armed robbery conviction, as a third crime of violence, under section 643B(c)

of Article 27 of the Maryland Code, the predecessor statute to CL section 14-101(d). It

relied upon two D.C. convictions for the predicate crimes of violence. The prosecutor and

the sentencing judge were under the mistaken belief that the D.C. convictions both were

for armed robbery. In fact, one was for armed robbery and the other was for robbery. In

D.C., robbery is a statutory offense that can be committed a number of ways, some of which

would be a crime of violence within the meaning of CL section 14-101(a) and others of

which would not (for example, pickpocketing). Although the prior robbery conviction

could have resulted from a modality of perpetration that was a crime of violence, there was

no evidence introduced at sentencing to show that it was. The Court of Appeals concluded

that the evidence presented at sentencing was legally insufficient to support a finding that

the defendant had committed two prior crimes of violence, and therefore the trial court had

erred by imposing the mandatory 25 year sentence without parole under section 643(c).

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 The Court then turned to the issue of resentencing. Reasoning that, for Fifth

Amendment Double Jeopardy purposes, there is no distinction between a retrial of an

offense and resentencing for a conviction, the Court stated:

It is apparent that the case at hand does not fall within the holding of
[Lockhart]. There was never evidence erroneously admitted legally
sufficient to establish the necessary proof that Bowman was a subsequent
offender within the contemplation of § 643B. The trial judge simply
completely misinterpreted the evidence. Only one qualifying predicate
conviction was shown and there was no competent evidence to establish the
second. . . . [T]he Burks exception to the general rule [as stated in Lockhart]
is applicable.

314 Md. at 740 (first emphasis in original). It held that the Double Jeopardy Clause

prohibited the State “from attempting to resentence [the defendant] as a subsequent

offender either on the basis that the District of Columbia robbery conviction in fact met the

definition of a crime of violence under Maryland law or on the basis of another qualifying

conviction not offered or admitted at the initial sentencing hearing.” Id. at 740.2

2
Before the Court of Appeals decided Bowman, this Court on two occasions had
held that, under Burks, federal double jeopardy principles prohibited the State from
attempting to prove, on remand for resentencing, the existence of prior crimes of violence
to support an enhanced sentence when the State’s evidence in the original sentencing
hearing was legally insufficient to support such a finding. In Butler v. State, 46 Md. App.
317 (1980), we vacated an enhanced sentence, imposed under section 643B(c), based on
two prior convictions for crimes of violence, because one conviction was not final and the
other conviction, for robbery in the District of Columbia, may have been for a crime of
violence but the evidence at sentencing was insufficient to prove that it was. We held that
federal double jeopardy principles protected the defendant from being “subjected to two
hearings to determine an[] enhanced mandatory sentence under § 643B(c)[.]” Id. at 324.
See also Ford v. State, 73 Md. App. 391 (1988) (relying upon Butler to hold that when the
State failed to introduce any competent evidence of a prior weapons conviction to support
an enhanced sentence for a subsequent weapons conviction, double jeopardy principles
precluded the State from introducing evidence on remand to support imposition of the same
enhanced sentence).
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 Scott argues that Bowman controls and cannot be distinguished from his case. He

maintains that, under Bowman, the resentencing court violated his federal double jeopardy

rights by sentencing him to a mandatory 25 year sentence without parole for a third crime

of violence, based on newly introduced evidence that the D.C. conviction was for a crime

of violence, when the evidence at the original sentencing hearing was legally insufficient

to prove that the D.C. conviction was for a crime of violence.

The State responds that two Supreme Court cases decided in 1998, after Bowman,

undercut that decision’s foundation. In Almendarez-Torres, supra, the Supreme Court held

that when the fact of a prior conviction is being used for sentence enhancement purposes,

it is not an “element of [the] offense” or a separate crime; therefore, its existence need not

be decided by a jury and proven beyond a reasonable doubt. 523 U.S. at 244. “To hold

that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s

offense would mark an abrupt departure from a longstanding tradition of treating

recidivism as ‘go[ing] to the punishment only.’” Id. (citation omitted). The “prior

commission of a serious crime—is as typical a sentencing factor as one might imagine.”

Id. at 230.

A few months later, the Supreme Court decided Monge, supra, which extended its

holding in Almendarez-Torres, and is especially pertinent here. After the defendant was

found guilty of three drug-related felonies, the government sought to have the court impose

a statutory enhanced penalty based on his having committed a prior “serious felony.”

Monge, 524 U.S. at 724. The defendant’s prior conviction was for assault and, under the

enhanced penalty statute, an assault qualified as a “serious felony” “if the defendant either

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inflicted great bodily injury on another person or personally used a dangerous or deadly

weapon during the assault.” Id. at 724–25.

At the sentencing hearing, the court considered the evidence relevant to whether the

defendant’s prior assault conviction was for a “serious felony” under the sentence

enhancement statute and found that it was. It imposed an enhanced sentence. When the

defendant challenged that finding on appeal, the government conceded that it had not

introduced legally sufficient evidence to prove that the prior assault conviction was for a

“serious felony.” The government argued that on remand for resentencing it should have

another opportunity to prove that the prior assault conviction was for a “serious felony.”

Ultimately, the case reached the Supreme Court on the question of whether the

Double Jeopardy Clause barred the government from having a second chance to prove that

the prior assault conviction was for a “serious felony.” The defendant argued that Burks

controlled and prohibited the government from doing so. The government countered that

Burks did not apply because failure of proof of a sentencing enhancement factor is not

tantamount or even comparable to an acquittal. It maintained that only when the evidence

of criminal liability for an offense was legally insufficient, which should have produced an

acquittal, is a retrial prohibited by the Double Jeopardy Clause.

In a 5-to-4 decision, the Supreme Court held that, except in death penalty cases, for

which it already had carved out an exception, the Double Jeopardy Clause does not apply

to sentencing, and therefore on remand the government could attempt, a second time, to

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prove that the defendant’s prior assault conviction was for a “serious felony.”3 The Court

reasoned that because a sentence enhancement is not part of the “offense,” a second

decision on sentencing does “not place a defendant in jeopardy for an ‘offense.’” 524 U.S.

at 728 (citations omitted). Nor is a sentence enhancement an “additional punishment for

the previous offense; rather,” it is an increased punishment “imposed on a persistent

offender.” Id. It is not a “‘new jeopardy or additional penalty for the earlier crimes’ but .

. . ‘a stiffened penalty for a latest crime[.]’” Id. (quoting Gryger v. Burke, 334 U.S. 728,

732 (1948)).

Contrasting Burks, the Court explained that “[s]entencing decisions favorable to the

defendant . . . cannot generally be analogized to an acquittal[,]” as is the case when there

is “insufficient evidence of guilt[.]” Id. at 729.

The pronouncement of sentence simply does not “have the qualities of
constitutional finality that attend an acquittal.” United States v. DiFrancesco,
449 U.S. 117, 134, (1980); see also Bullington, supra, at 438 (“The
imposition of a particular sentence usually is not regarded as an ‘acquittal’
of any more severe sentence that could have been imposed.”).

The Double Jeopardy Clause “does not provide the defendant with the right
to know at any specific moment in time what the exact limit of his
punishment will turn out to be.” DiFrancesco, 449 U.S., at 137.
Consequently, it is a “well-established part of our constitutional
jurisprudence” that the guarantee against double jeopardy neither prevents
the prosecution from seeking review of a sentence nor restricts the length of
a sentence imposed upon retrial after a defendant’s successful appeal. See id.,
at 135; [North Carolina v.] Pearce, [395 U.S. 711,] 720 (1969); see also

3
In Bullington v. Missouri, 451 U.S. 430 (1981), the Supreme Court held that the
Double Jeopardy Clause barred a retrial of the penalty phase of a capital case, when the
penalty phase was tried before a jury, in a process identical to a trial on criminal liability.
The Court reasoned that in that circumstance, the jury’s decision not to impose the death
penalty bears the hallmarks of an acquittal. The Monge Court maintained that exception.

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 Stroud v. United States, 251 U.S. 15, 18 (1919)(despite a harsher sentence
on retrial, the defendant was not “placed in second jeopardy within the
meaning of the Constitution”).

Id. at 729–30.

We return to the case at bar. The question is whether Bowman still controls the

outcome of the Double Jeopardy Clause issue before us, given that its double jeopardy

analysis later was rejected by the Supreme Court in Monge (except in death penalty cases).4

As the State notes, other state appellate courts that once held that federal double jeopardy

protections apply to sentencing enhancement proceedings have changed their positions

under the authority of Monge. For example, in People v. Porter, 348 P.3d 922, 928 (Colo.

2015), the Supreme Court of Colorado overruled its holding in People v. Quintana, 634

P.2d 413 (Colo. 1981), that double jeopardy principles applied to recidivist sentencing

laws, concluding, based on Monge, that there was “no sound reason for maintaining” that

holding. Id. at 927. The court pointed out that recidivist sentencing statutes concern “‘a

status rather than a substantive offense.’” Id. at 928 (quoting People ex rel. Faulk v.

District Court, 673 P.2d 998, 1000 (Colo. 1983) (emphasis in Porter)). “Thus, enhancing

a penalty based on prior convictions does not put the defendant in jeopardy for an

‘offense.’” Id. It observed that the recidivist sentencing phase of a trial “does not generate

4
Scott asserts that Almendarez-Torres and Monge are no longer good law because
the “writing is on the wall” that they will someday be overruled. He makes this
prognostication based on Apprendi v. New Jersey, 530 U.S. 466, 521 (2000). Quite apart
from the fact that we must take Supreme Court law as it is, not as it might become, we note
that the Apprendi Court acknowledged the continued validity of Monge and Almendarez-
Torres as applied to subsequent offender sentencing statutes. 530 U.S. at 488 n. 14.

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the same concerns that drive protecting a defendant against double jeopardy at the

substantive trial.” Id. Furthermore, “when the prosecution fails to proffer evidence of prior

convictions in a sentencing proceeding, the analogy to an acquittal is ‘inapt.’. . . The

pronouncement of sentence simply does not have the qualities of a constitutional finality

that attend an acquittal.” Id. (quoting Monge, 524 U.S. at 729).5

The holding in Monge, that the Burks exception does not bar the government from

proving a sentencing enhancement on resentencing when its proof of the same sentencing

enhancement in the original sentencing was not supported by legally sufficient evidence,

is inconsistent with the holding in Bowman. On federal constitutional issues, we are bound

by United States Supreme Court precedent. U.S.C.A. Const. Art. VI, cl. 2; Baker, Whitfield

5
See also Jaramillo v. State, 823 N.E.2d 1187, 1188–90 (Ind. 2005) (overruling,
based on Monge, Bell v. State, 622 N.E.2d 450, 456 (Ind. 1993), and other prior cases
holding that double jeopardy bars retrial of habitual offender sentencing enhancements);
State v. Nelson, 262 Neb. 896, 905 (2001) (holding, based on “the rationale of Monge,”
that double jeopardy principles do not apply to habitual criminal sentencing enhancement
proceedings, overruling State v. Gray, 8 Neb. App. 973 (2000) (which had relied upon
Bowman)); State v. Eggleston, 164 Wn.2d 61 (2008) (holding that, under Monge, double
jeopardy does not prevent retrial of an aggravating factor for sentencing purposes),
implicitly overruling State v. Hennings, 100 Wn.2d 379 (1983)); Bell v. State, 994 S.W.2d
173 (Tex. Crim. App. 1999) (overruling Carter v. State, 676 S.W.2d 353 (Tex. Crim. App.
1984), based on Monge). In addition, appellate courts addressing for the first time whether
resentencing is governed by double jeopardy principles have held that it is not. See State
v. Collins, 985 So.2d 985, 993 (Fla. 2008) (holding, based on Monge, that Florida's
“Double Jeopardy Clause does not preclude granting the State a second opportunity to
demonstrate that [the defendant] meets the criteria for habitualization”); State v. McLellan,
149 N.H. 237, 243 (2003) (“While we recognize that we have found New Hampshire's
Double Jeopardy Clause to provide greater protection than its federal counterpart in certain
circumstances . . . we are not persuaded that we should interpret the State Constitution
differently than the Federal Constitution in this context.”) (citation omitted);
Commonwealth v. Wilson, 594 Pa. 106, 116 n.6 (2007) (holding that double jeopardy
protections did not prevent the State from presenting evidence of youth/school sentencing
enhancement when the original sentence was overturned on appeal).
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& Wilson v. State, 15 Md. App. 73, 77–78 (1973) (citing Wilson v. Turpin, 5 Gill 56 (1847);

Howell v. State, 3 Gill 14 (1845)). In the past, we have departed from a decision of the

Court of Appeals when it was based on Supreme Court federal constitutional precedent

that had been supplanted by more recent Supreme Court precedent to the contrary, when

we expected that the Court of Appeals, if presented with an indistinguishable scenario,

would do the same. For example, in Morgan v. State, 79 Md. App. 699, 703 (1989), we

declined to follow Allen v. State, 183 Md. 603 (1944), in which the Court of Appeals held

that a court order requiring the defendant to don a hat found near the crime scene in front

of the jury amounted to compelled self-incrimination. We did so because in the intervening

years the Supreme Court had decided Schmerber v. California, 384 U.S. 757 (1966),

holding that an accused’s compelled submission to a blood alcohol test did not violate his

privilege against compelled self-incrimination, and Allen and Schmerber could not be

reconciled.

In light of the Supreme Court’s express rejection in Monge of the application of the

Burks exception to resentencing under the Fifth Amendment Double Jeopardy Clause, in

particular for sentencing enhancement findings, we conclude that in a case such as this,

which presents a scenario that is not substantively distinguishable from Bowman, the Court

of Appeals would depart from its resentencing holding in Bowman and follow Monge.

Accordingly, federal double jeopardy principles did not bar the State from presenting new

evidence, at resentencing, to prove that Scott’s D.C. conviction was for a crime of violence,

within the meaning of CL section 14-101(a)(19), and therefore was a proper predicate for

the mandatory enhanced sentence under CL section 14-101(d).

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 B. Maryland Common Law of Double Jeopardy

Although there is no guarantee against double jeopardy in the Maryland

Constitution or Declaration of Rights, “Maryland common law provides well-established

protections for individuals against being twice put in jeopardy.” State v. Long, 405 Md.

527, 536 (2008) (citing Taylor v. State, 381 Md. 602, 610 (2004)).

Before the Supreme Court’s 1969 decision in Benton v. Maryland, double jeopardy

applied to Maryland prosecutions “only as a common law principle.” Cornish v. State, 272

Md. 312, 316 n. 2 (1974). Bowman was decided on federal constitutional double jeopardy

grounds alone; the opinion makes no reference to the Maryland common law of double

jeopardy. Our examination of the common law of double jeopardy leads us to conclude

that it also did not preclude the State from attempting to prove a second time, on

resentencing on remand, that Scott’s D.C. conviction was for a crime of violence, for

purposes of sentence enhancement under CL section 14-101(a) and (d).

“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.’” State v. Griffiths, 338 Md. 485, 489 (1995) (quoting Gianiny v. State, 320

Md. 337, 347 (1990)). These principles derive from the English common law “pleas of

former jeopardy (autrefois acquit, autrefois convict, and pardon)” that protect a defendant

from being retried for an offense when he previously was acquitted, convicted, or pardoned

for the same offense. Ward v. State, 290 Md. 76, 85 (1981) (emphasis in Ward). With

some exceptions, the Maryland common law of double jeopardy also precludes multiple

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sentences for the same offense. Middleton v. State, 318 Md. 749, 757 (1990) (additional

citations omitted).

The plea in bar of autrefois convict (already convicted), which “generally means

that ‘where there had been a final [judgment] . . . of . . . conviction, . . . the defendant could

not be a second time placed in jeopardy for the particular offense[,]’” Middleton, supra, at

756-57 (quoting Hoffman v. State, 20 Md. 425, 434 (1863)) (alterations in Middleton), is

not relevant to the resentencing issue before us because resentencing did not expose Scott

to the risk of being convicted twice for the offense of attempted armed robbery. Nor would

the double jeopardy principle against multiple punishments for the same offense apply, as

Scott’s sentence for attempted armed robbery was vacated in the first appeal and on remand

he simply was being resentenced for the same conviction. The only possibly relevant

common law double jeopardy principle is autrefois acquit.

The plea in bar of autrefois acquit (already acquitted) protects a defendant who has

been acquitted of an offense from being retried for the same offense. Copsey v. State, 67

Md. App. 223, 225–26 (1986) (stating that the plea of former acquittal is designed to

prevent a defendant “who has once survived his initial jeopardy from being ‘twice vexed’

by a fresh exposure to the hazard of conviction for that same offense”). More than a century

ago, the Court of Appeals explained:

It has always been a settled rule of the common law that after an acquittal of
a party upon a regular trial on an indictment for either a felony or a
misdemeanor, the verdict of acquittal can never afterward, on the application
of the prosecutor, in any form of proceeding, be set aside[.]

State v. Shields, 49 Md. 301, 303 (1878).

-18-
 As discussed, the Bowman decision was based on a parity of reasoning to Burks:

Just as a failure of evidence necessary to prove an offense is tantamount to an acquittal,

and therefore bars a retrial upon reversal, a failure of evidence to prove a prior conviction

for a crime of violence, in order to support a mandatory enhanced sentence, is tantamount

to an acquittal of that enhanced sentence, and therefore bars resentencing based on the same

(or even an additional new) prior conviction. The Supreme Court rejected that analogy in

Monge. The question is whether the common law principle of autrefois acquit supports it.

It does not.

The Court of Appeals has recognized that a ruling by a trial court that is not an

outright acquittal can be the functional equivalent of an acquittal under autrefois acquit.

In State v. Taylor, 371 Md. 617 (2002), the Court held in two consolidated cases that

erroneous trial court rulings were tantamount to acquittals. The defendant in Taylor filed

a motion to dismiss the information charging him with a statutory crime, and in granting

the motion, the trial court ruled that the conduct alleged in the information was not

prohibited by the statute. The State noted an appeal. In Bledsoe v. State, after the charges

against the defendant were dismissed by the District Court, the State appealed to the circuit

court, which reinstated the charges and remanded the case to the District Court for trial.

The defendant appealed.

The Court of Appeals held that the trial courts in both cases erred by granting the

motions to dismiss, but the rulings “were the equivalent of granting acquittals,” under the

common law principle of autrefois acquit, and therefore had to “be treated as such for

jeopardy purposes.” 371 Md. at 654. It dismissed the appeal in Taylor because autrefois

-19-
acquit barred the State from appealing from an acquittal, or its equivalent; and it reversed

the judgment in Bledsoe, because autrefois acquit barred the State from prosecuting the

defendant when he had been granted the equivalent of an acquittal.

A few years later, in Giddins v. State, 393 Md. 1 (2006), the Court once again was

faced with a disposition by the trial court that the defendant contended was tantamount to

an acquittal. The defendant was charged with two counts of possession of controlled

dangerous substances with intent to distribute. The drugs were found in his residence.

After the trial court ruled that the officers who had obtained the search warrant for the

defendant’s residence could not testify about the evidence on which they had based their

warrant application, the prosecutor asked one of them to identify the “target of that

investigation.” 393 Md. at 11. The defense moved for a mistrial. The judge granted the

motion, explaining that he was doing so because by asking that question the prosecutor was

bringing to the fore all the evidence in the search warrant application, none of which would

be admissible.6

When the State sought to retry the defendant, he moved to dismiss. Raising the

common law plea in bar of autrefois acquit, he argued that the trial judge’s remarks in

granting the mistrial were a rejection of critical evidence against him and therefore

amounted to an acquittal. The court denied the motion, and the defendant noted an

immediate appeal. Eventually, the case came before the Court of Appeals.

6
The defense maintained that the prosecution had engaged in misconduct by asking
the question in order to goad the defense into moving for a mistrial. A hearing before
another judge was held on the issue of prosecutorial misconduct, and that judge found that
the prosecutor had not engaged in misconduct.
-20-
 The Court observed that “[i]n determining whether the defendant can successfully

plead autrefois acquit, the essential inquiry is whether there has been a ruling on the

evidence[.]” Id., at 20. Using the consolidated cases in State v. Taylor as examples, it

explained that “where the trial judge has taken action based upon the evidence, that action,

despite its characterization, constitutes an acquittal for double jeopardy purposes.” Id. at

22. The Court held that the trial judge’s comments about the evidence underlying the

search warrant were not a substantive ruling on the evidence, however. They were

observations about the admissibility, or more precisely, the inadmissibility, of that

evidence. Accordingly, the mistrial motion ruling was not the functional equivalent of an

acquittal, and a second prosecution for the same offense was not barred by autrefois acquit.

The rulings in question in State v. Taylor and Giddins all concerned criminal

liability for the offenses the defendants were being tried for—not sentence impositions.

That is the context in which the Court analyzed whether a ruling that is not expressly an

acquittal may be equivalent to one. This is not surprising because, as noted, the plea in bar

of autrefois acquit applies to a verdict of acquittal, or the equivalent of a verdict of

acquittal, i.e., an acquittal of the offense for which the defendant is on trial. See Pugh v.

State, 271 Md. 701, 705 (1974) (observing with respect to the common law principle of

autrefois acquit, “[f]rom the earliest days, it has been clear that once a verdict of not guilty

has been rendered at the conclusion of a criminal trial, that verdict is final and cannot be

set aside.”) (emphasis added)).

The common law plea of autrefois acquit is designed to protect a defendant against

criminal liability for the “same offense” for which he was acquitted, a protection later

-21-
incorporated in the Fifth Amendment Double Jeopardy Clause. Indeed, the Fifth

Amendment double jeopardy protections embody several common law pleas, including

autrefois convict and autrefois acquit. See Ex Parte Lange, 85 U.S. 163, 168–69 (1873);

Hoffman v. State, 20 Md. 425, 432 (1863) (“[A]lthough handed down by common law for

centuries . . . it was thought proper to embody it in the Constitutions of several of the States,

and engraft [double jeopardy], by way of amendment, on that of the United States.”).

Although the Maryland common law of double jeopardy is not coextensive with the

Fifth Amendment Double Jeopardy Clause in every way,7 the Maryland appellate courts

never have interpreted autrefois acquit to extend beyond an acquittal of an offense (or a

functional equivalent of an acquittal of an offense) to the sentencing for a conviction of an

offense. For the same reason the Monge Court held that, under the Fifth Amendment

Double Jeopardy Clause, a failure of proof on sentencing is not an “acquittal” of the

sentence imposed or any greater sentence, a failure of proof on sentencing is also not an

acquittal (or the functional equivalent of an acquittal) of the sentence that was imposed or

any greater sentence under the principle of autrefois acquit. One of the bases for Monge

was North Carolina v. Pearce, 395 U.S. 711 (1969), in which the Supreme Court

explained:

[T]he guarantee against double jeopardy imposes no restrictions upon the
length of a sentence imposed upon reconviction. . . . [A] corollary of the

7
See e.g., Fields v. State, 96 Md. App. 722, 728–729 (1993), explaining that under
common law double jeopardy principles, as followed in Maryland, jeopardy does not attach
until the verdict is rendered; but the Supreme Court, in interpreting the Double Jeopardy
Clause, has altered the time of attachment to when the jurors are sworn.

-22-
 power to retry a defendant is the power, upon the defendant’s reconviction,
to impose whatever sentence may be legally authorized, whether or not it is
greater than the sentence imposed after the first conviction.

395 U.S. at 719–720 (footnote omitted).8 See also Stroud v. United States, 251 U.S. 15

(1919) (upholding against a double jeopardy challenge the defendant’s death sentence for

murder on retrial after his original murder conviction, for which he had been sentenced to

life in prison, was reversed on appeal). The principle of autrefois acquit in the common

law and as incorporated in the Fifth Amendment does not effectively “acquit” the defendant

of a greater sentence on resentencing.9

On resentencing on remand, the State was not barred by the Maryland common law

of double jeopardy from presenting additional information to prove that Scott’s D.C.

8
In Pearce, and as later refined in Texas v. McCullough, 475 U.S. 134 (1986), and
Alabama v. Smith, 490 U.S. 794 (1989), the Supreme Court held that when a defendant’s
trial conviction is reversed and he is retried and found guilty of the same offense, it is a
violation of his due process right for the court to impose for a vindictive purpose a greater
sentence than originally was imposed. “[V]indictiveness is not to be presumed from the
imposition of a more severe sentence on remand following the defendant’s successful
appeal.” Twigg v. State, 447 Md. 1, 23 (2016).
9
In Maryland, what remains of the Pearce doctrine is codified at Maryland Code
(1974, 2013 Repl. Vol.), § 12-702(b) of the Courts and Judicial Proceedings Article.
Twigg, 447 Md. at 23. That statute provides that “[i]f an appellate court remands a criminal
case to a lower court in order that the lower court may pronounce the proper judgment or
sentence . . . the lower court may impose any sentence authorized by law to be imposed for
the offense.” It may not impose a more serious sentence than originally imposed unless
“(1) The reasons for the increased sentence affirmatively appear; (2) The reasons are based
upon additional objective information concerning identifiable conduct on the part of the
defendant; and (3) The factual data upon which the increased sentence is based appears as
part of the record.”

-23-
conviction was for a crime of violence, in an effort to have the court impose the mandatory

enhanced sentence under CL section 14-101(d).

C. Collateral Estoppel Form of Double Jeopardy

Scott also argues that the collateral estoppel form of double jeopardy, first

recognized by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 445

(1970), barred the State from relitigating the issue whether his D.C. conviction was for a

crime of violence.10 The State responds that the collateral estoppel form of double jeopardy

does not apply here.

Collateral estoppel “means simply that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated between the

same parties in any future lawsuit.” Ashe, 397 U.S. at 443. “If the fact previously litigated

is a key component in later offenses, then a subsequent finding in favor of the defendant in

the first trial naturally will compel an acquittal in the latter trial.” Long, 405 Md. at 539.

In Ashe, six men playing poker in one room were robbed by several masked men.

Soon thereafter, four armed men, including Ashe, were arrested and charged. Ashe was

tried in a Missouri state court for the armed robbery of one of the poker players. The

testimony of the state’s witnesses was extremely weak on criminal agency, and the jury

acquitted him. The state then convened a new jury and tried Ashe for the armed robbery

of one of the other poker players. At that trial, the same state’s witnesses gave stronger

testimony on criminal agency, and Ashe was convicted.

10
The Court of Appeals has recognized the collateral estoppel form of double
jeopardy as part of the Maryland common law of double jeopardy. Long, 405 Md. at 538.
-24-
 The case came before the Supreme Court on the denial of a petition for writ of

habeas corpus. The Court reversed. It held that the doctrine of collateral estoppel as

recognized in federal criminal law “is embodied in the Fifth Amendment guarantee against

double jeopardy.” Ashe, 397 U.S. at 445. “Once a jury had determined upon conflicting

testimony that there was at least a reasonable doubt that [Ashe] was one of the robbers, the

State could not present the same or different identification evidence in a second prosecution

for the robbery of” either the same victim or any of the other five victims. Id. at 446. “For

the name of the victim, in the circumstances of this case, had no bearing whatever upon the

issue of whether the petitioner was one of the robbers.” Id.

Scott does not cite any case holding that the collateral estoppel form of double

jeopardy would apply to resentencing, and he acknowledges that the one case he cites does

not support his position. In Simms v. State, 83 Md. App. 204 (1990), the trial court

sentenced the defendant to a mandatory term of life in prison without parole for daytime

housebreaking, under section 643B(b) of former Article 27, based on his having committed

three prior crimes of violence, including a 1970 conviction. In another case against the

defendant that was tried shortly before his trial in the case on appeal, he was found guilty

in another county of another offense. The sentencing judge in that case ruled that the

State’s evidence about the 1970 conviction was insufficient to support a finding that it was

for a crime of violence, for purposes of statutory sentence enhancement.

On appeal, the defendant argued that the collateral estoppel form of double jeopardy

precluded the sentencing judge from finding that the 1970 conviction was for a crime of

violence because that issue had been finally decided to the contrary in the prior case. We

-25-
disagreed, stating that “the issue of the sufficiency of the State’s evidence of a predicate

offense in support of enhanced punishment” was not, as the defendant was arguing, a “valid

and final judgment[.]” Id. at 213–14 (emphasis in original). We noted that the defendant’s

position was inconsistent with the Court of Appeals holding in State v. Tichnell, 306 Md.

428 (1986), that the sentencing jury in a capital case was not collaterally estopped to find

fewer mitigating circumstances than those found by a previous sentencing jury in the same

case. See also Johnson v. State, 303 Md. 487, 519–22 (1985) (same). It also was

inconsistent with the Supreme Court’s holding in Poland v. Arizona, 476 U.S. 147 (1986),

that the trial judge’s rejection of a particular aggravating circumstance in a death penalty

case did not amount to a death penalty “acquittal” for purposes of double jeopardy.

The collateral estoppel form of double jeopardy has no application here. First, it is

clear from the holding in Ashe that collateral estoppel applies when there has been a factual

finding favorable to the defendant that is central to his criminal liability for an offense. The

doctrine has never been extended to apply to sentencing. Second, even if it applied to

sentencing, the original sentencing court in this case found on the evidence submitted that

the D.C. conviction was for a crime of violence, and on appeal this Court found that the

evidence before the sentencing court was not sufficient to support that finding. There was

no “final adjudication” by a court that, as a matter of fact, the D.C. conviction was not for

a crime of violence. The collateral estoppel form of double jeopardy did not prohibit the

State from proving Scott’s prior conviction at resentencing.

-26-
 II.

Court’s Authority on Remand

Scott contends the resentencing court exceeded the scope of its authority on remand,

in violation of Rule 8-604(d)(2) and our opinion and mandate in his prior appeal, by

considering the guilty plea transcript of his D.C. conviction.

Rule 8-604(d)(2) provides that, “[i]n a criminal case, if the appellate court reverses

the judgment for error in the sentence or sentencing proceeding, the Court shall remand the

case for resentencing.” Scott argues that Southern v. State, 371 Md. 93 (2002), supports

the proposition that this rule does not permit a remand for the purpose of introducing new

evidence at resentencing. Southern is inapposite. It did not concern resentencing under

Rule 8-604(d)(2), and indeed did not concern sentencing at all. Rather, the issue there was

whether, when the State failed to meet its burden to prove that the initial stop of the

defendant was constitutional, but the trial court denied the defendant’s motion to suppress

evidence obtained by virtue of the stop, this Court could dispose of the defendant’s appeal

by a limited remand, under Rule 8-604(d)(1), for a new suppression hearing at which the

State could introduce additional evidence that the stop was constitutional.

The Court of Appeals held that we could not. The limited remand rule “does not

afford parties who fail to meet their burdens on issues raised in a completed suppression

hearing an opportunity to reopen the suppression proceeding for the taking of additional

evidence after the appellate court has held the party has failed to meet its evidentiary

burden.” Southern, 371 Md. at 105. This holding has no effect upon an appellate court’s

authority to remand a criminal case for resentencing, under Rule 8-604(d)(2).

-27-
 In our opinion in Scott’s first appeal, we stated:

In the absence of evidence of a clear judicial admission by [Scott], we are
persuaded that the State failed to meet its burden of proving the necessary
predicates to support imposition of the mandatory sentence on Count 1 in this
case. Accordingly, we shall vacate the sentence on Count 1 and remand this
case for resentencing. See Md. Rule 8-604(d)(2). . . .

Scott, slip op. at 61. The mandate read:

SENTENCE ON COUNT 1 VACATED AND THE CASE IS REMANDED
FOR RESENTENCING. ALL JUDGMENTS OTHERWISE AFFIRMED.

Scott argues that our opinion and mandate did not permit the State to introduce

additional evidence at resentencing because we would have said so if that was our intention

and because, under Temoney v. State, 290 Md. 251, 260 (1981), unless an appellate court’s

mandate expressly permits additional evidence to be taken on remand, that is prohibited.

The absence of any statement in our opinion as to whether new evidence could be

introduced on resentencing does not suggest that we were prohibiting any such evidence.

Moreover, Temoney is inapposite. There, the sentencing court refused to decide whether

evidence of prior convictions supported the imposition of a mandatory sentence. The Court

of Appeals upheld the sentence imposed, even though the sentencing judge should have

considered the evidence before it, because, by the sentencing court’s own analysis, the

evidence was not legally sufficient to support imposition of the mandatory sentence. The

Court did not decide whether, under Burks, additional evidence could be introduced on

resentencing (the issue later decided in Bowman), because the State did not propose to

introduce additional evidence on resentencing.

-28-
 Here, the issue of the introduction of new evidence at resentencing is squarely before

this Court. As we already have held, the introduction of new evidence does not violate

double jeopardy protections.

III.

Sufficiency of the Evidence that the D.C. Conviction was for a Crime of Violence

Scott contends the evidence at resentencing on remand was legally insufficient to

prove that his prior D.C. conviction for aggravated assault was for a crime of violence,

under CL section 14-101(a).

The transcript of the guilty plea hearing in D.C. Superior Court on the offense of

aggravated assault shows that the government proffered that Scott and two other men

(Calvin Mason and Jeffrey Mason) got into a dispute with the victim over a North Face

jacket. They surrounded the victim and the following events took place:

At this point the [victim] retreated to a wall, and was covering his face in
order to avoid being hit in the face and body by [Scott] and Calvin Mason.
[Scott] and Calvin Mason continued to hit the [victim] until the [victim] fell
to the ground, at which point Jeffrey Mason told [Calvin] Mason to stomp on
the [victim].

Calvin Mason and [Scott] then began to stomp on the [victim’s] face and
body while [Scott] was wearing boots.

[A]t approximately this point the [victim] lost consciousness and began to
suffer bruising, subdural bleeding and a fracture of the left orbital bone, the
bone surrounding the eye.

At the conclusion of this proffer, the judge asked Scott, “So, . . . that’s the evidence the

Government had in your case. Do you agree or disagree, sir?” Scott replied, “I agree.”

-29-
 At the resentencing hearing on remand, the court observed that “[s]tomping

somebody around the face and the eye with boots on while he’s on the ground obviously

is an intent, obviously expresses an intent to cause serious bodily harm. I mean that’s the

whole purpose of doing it.” The court found that the facts proffered by the government

and accepted by Scott in support of the aggravated assault guilty plea would support a

conviction for first degree assault, under CL section 3-202, and therefore the aggravated

assault was a crime of violence under CL section 14-101(a)(19).

Scott argues that because he did not admit at the plea hearing that he had the intent

to cause serious physical injury, the evidence was insufficient to establish the elements of

the offense of first degree assault. He relies on Bowman. There, despite efforts by the

prosecutor on cross-examination, Bowman refused to admit that he had committed robbery

with a deadly weapon, which would have qualified the D.C. robbery offense as a crime of

violence under the Maryland predecessor statute to CL section 14-101.

The State points out that here, in contrast to Bowman, Scott agreed to facts proffered

by the government that would constitute a crime of violence under CL section 14-

101(a)(19). It maintains that Scott’s agreement, without reservation, to these facts was

sufficient for the sentencing court to infer that he had an intent to cause serious physical

injury.

A factfinder “may infer the necessary intent from an individual’s conduct and the

surrounding circumstances[.]” Chilcoat v. State, 155 Md. App. 394, 403 (2004). See also

In re Lavar D., 189 Md. App. 526, 590 (2009) (holding that the court, as the factfinder,

was permitted to draw the inference that a group of juveniles intended to inflict serious

-30-
physical injury by repeatedly hitting, punching, and kicking the victim). As such, the facts

underlying Scott’s D.C. conviction for aggravated assault, as agreed to by Scott, offered

sufficient evidence to establish that that conviction was for a “crime of violence” under CL

section 14-101(a)(19), so as to trigger the mandatory enhanced sentencing provision of CL

section 14-101(d).

IV.

Resentencing on Counts 5 and 7

As noted above, at the original sentencing the court imposed a 10 year sentence,

with all but 5 years suspended, for use of a handgun (Count 5), to be served consecutively

to the 25 years without parole sentence for attempted armed robbery (Count 1); and a 10

year sentence, with all but 5 years suspended, for conspiracy (Count 7), to be served

consecutively to the sentence for Count 5 and Count 1. This Court vacated the sentence

for attempted armed robbery (Count 1). We otherwise affirmed the judgments, i.e., the

convictions and sentences on Counts 5 and 7.

At the resentencing hearing on remand, counsel for the parties argued as follows

regarding the sentences for Counts 5 and 7:

[PROSECUTOR]: Your Honor, just before you hear from the defendant,
Counts 5 and 7 can’t ‒ those aren’t here for re-sentencing, so those cannot be
changed. I think that the only thing that you can sentence on is the 25
mandatory without parole [Count 1].

The reason I brought the Count 5 up was because that was, in fact,
consecutive. We’re not here to change that sentence. I just wanted to make
sure that was on the record because those two counts ‒ those two sentences
that the Court issued remain the same, so the only thing that we’re here for
is Count 1.

-31-
 [DEFENSE COUNSEL]: The Court is here sentencing – the Court can make
Count 1 consecutive or concurrent to the already existing sentences.

[PROSECUTOR]: But those sentences, Count 5 actually says –

[THE COURT]: The problem is, is that I didn’t make Count 1 consecutive
to the other sentences. I made the gun charge [Count 5] consecutive. And so
if I did have the discretion to make this concurrent, that would change, in
effect, the sentence on the other counts, which are not before the Court.

[DEFENSE COUNSEL]: At the moment they’re consecutive to a sentence
that doesn’t exist. So the Court does have the power to make Count 1, which
you’re sentencing on, concurrent to all other sentences which already exist
in this case, and that’s what we ask the Court to do.

[THE COURT]: All right. Well, I disagree with you, [defense counsel], but
I’ll hear from [Scott] as to how he feels or what he wants to say at this point.

[DEFENSE COUNSEL]: Given the Court’s rulings, the fact that the Court is
ruling it has essentially no discretion in the sentence it’s going to impose,
[Scott] has nothing to add.

[THE COURT]: All right. Very well.

(Emphasis added.) The court imposed the mandatory 25 years without parole sentence on

Count 1. The consecutive sentences on Counts 5 and 7 remained.

Scott’s final contention is that, on resentencing, the court erred by “refus[ing] to

consider making the sentences under Counts 5 and 7 run concurrently with the mandatory

sentence under Count 1” and that its doing so “was effectively a refusal to consider [his]

allocution and evidence in mitigation.” He relies upon Rule 4-342(f), which states that

“[b]efore imposing sentence, the court shall afford the defendant the opportunity,

personally and through counsel, to make a statement and to present information in

mitigation of punishment[,]” and Jones v. State, 414 Md. 686 (2010), which holds that a

defendant has a right of allocution at resentencing. He also maintains that Bowman

-32-
supports his position that the resentencing judge had discretion to revise the sentences on

Counts 5 and 7.

The State responds that we should not address Scott’s allocution argument because

he waived allocution, and we should not address his argument that the court should have

exercised discretion to make the sentences for Counts 5 and 7 concurrent with the sentence

for Count 1 because it is not preserved, as it is not the argument he made below.

Alternatively, the State argues that the resentencing court did not have the authority to

make the sentences on Counts 5 and 7 concurrent with the reimposed sentence on Count 1.

In his reply brief, Scott asserts that the recent decision in Twigg v. State, 447 Md. 1

(2016), supports his position.

We find merit in the State’s waiver and preservation arguments. The record

discloses that the resentencing judge expressly recognized that Scott had the right to

allocution and gave him the opportunity to allocute and present mitigating information.

Through counsel, Scott declined, thereby waiving any right to complain on appeal that the

court violated Rule 4-342(f).

The record also discloses that the argument Scott made below about the sentences

on Counts 5 and 7 is not the argument he is advancing on appeal. At resentencing, Scott’s

counsel asked the judge to make the sentence it was imposing on Count 1, i.e., the

mandatory 25 years’ imprisonment without parole, concurrent with the sentences

previously imposed on Counts 5 and 7. The judge declined to do so on the ground that the

effect would be to alter the sentences on Counts 5 and 7, which had been imposed

consecutive to Count 1 (for Count 5) and consecutive to Count 5 (for Count 7). The judge

-33-
was of the view that because this Court had not vacated the sentences on Counts 5 and 7,

he could not alter them. Defense counsel argued that doing so would not alter those

sentences because the sentence on Count 1 no longer existed, having been vacated on

appeal, and therefore there was no sentence for the sentences on Counts 5 and 7 to run

consecutively to.11

On appeal, Scott mischaracterizes his request of the resentencing judge, stating that

he asked him to reconsider the sentences on Counts 5 and 7 to make them run concurrently

with the newly imposed sentence on Count 1, but the judge refused. That plainly is not

what happened below.

Even if the issue whether the resentencing court had the authority to reconsider the

sentences imposed on Counts 5 and 7 to make them run concurrently with the newly

imposed sentence on Count 1 were properly preserved, we would not find merit in it. The

cases Scott relies upon—Jones, Bowman, and Twigg—are inapposite.

In Jones, the defendant was convicted of first degree assault and robbery with a

deadly weapon. This Court vacated both sentences on the ground that the convictions

should have merged for sentencing, and remanded for resentencing. The trial court did not

allow the defendant to allocute and present mitigating evidence on resentencing. The case

reached the Court of Appeals, which held that on resentencing the defendant had a right to

allocution and present mitigating evidence. Jones did not concern a situation in which the

defendant was seeking to have sentences that had not been vacated reconsidered.

11
This could not be accurate as to Count 7, which was imposed to run consecutively
to the sentence on Count 5.
-34-
 In Bowman, after holding that the mandatory 25 year sentence without parole was

not supported by sufficient evidence and the State could not offer otherwise sufficient

evidence on resentencing, the Court of Appeals vacated that sentence and two sentences

that had been imposed to run consecutively to it and directed that on remand there be

resentencing on all those convictions. In the case at bar, this Court did not vacate the

sentences on Counts 5 and 7. We only vacated the sentence on Count 1 and remanded for

resentencing on that count alone.

Finally, Twigg does not lend support to Scott’s contention. In that case, the

defendant was convicted of child sexual abuse and three sex offenses (second degree rape,

third degree sexual offense, and incest), “any one of [which] could have provided the basis

for the child abuse conviction.” Twigg, 447 Md. at 5. The trial court sentenced him to

consecutive terms of 20 years for second degree rape, 10 years for third degree sexual

offense, and 10 years for incest. It imposed a 15 year sentence for child sexual abuse and

suspended all of it in favor of 5 years’ probation.

On appeal to this Court, the defendant maintained that, under Blockburger v. United

States, 284 U.S. 299 (1932), he was entitled to have the convictions “and/or” sentences for

the three sexual offenses vacated because they were lesser included offenses of the crime

of child sexual abuse. Twigg v. State, 219 Md. App. 259, 266 (2014). We held that the

three sex offense convictions had to be vacated, and we also vacated the sentence for the

child sexual abuse and remanded for resentencing on that conviction.

The Court of Appeals took the case on certiorari. It held that only one sexual

offense conviction would be the necessary predicate for the child sexual abuse conviction,

-35-
and because the verdict did not specify which one, it would be the one carrying the greatest

sentence. It further held that resentencing on the child sexual abuse conviction would not

violate the Double Jeopardy Clause because “‘the pronouncement of sentence has never

carried the finality that attaches to an acquittal,’” Twigg, 447 Md. at 21 (quoting United

States v. DiFrancesco, 449 U.S. 117, 133 (1980)); “resentencing following an appeal does

not subject the defendant to ‘multiple’ sentences,” id. (quoting DiFrancesco, 449 U.S. at

138–39); and the Supreme Court in Pearce made plain that the Double Jeopardy Clause

“does not bar the imposition of a longer sentence after a retrial and reconviction than was

imposed in the original vacated proceeding.” Id.

The Court further rejected the defendant’s argument that allowing the trial court to

resentence him to a potentially greater sentence for the child sexual abuse conviction on

remand would violate his due process rights. Its analysis focused on CJP section 12-

702(b), see footnote 9, supra, in particular the provision that on remand, the court “may

not impose a sentence more severe than the sentence previously imposed for the offense[.]”

Id. at 23. The Court concluded that the word “offense” “means not simply one count in a

multicount charging document, but rather the entirety of the sentencing package that takes

into account each of the individual crimes of which the defendant was found guilty.” 447

Md. at 26–27. The Court agreed that, “‘[a]fter an appellate court unwraps the [sentencing]

package and removes one or more charges from its confines, the sentencing judge, herself,

is in the best position to assess the effect of the withdrawal and to redefine the package’s

size and shape (if, indeed, redefinition seems appropriate).’” Id. at 28 (quoting United

States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989)).

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 The Court held that under the sentencing package approach, the “sentence” in

multicount cases is the aggregate of the sentences on the individual counts. Thus, “a

defendant’s sentence will be considered to have increased under § 12-702(b) only if the

total sentence imposed after retrial or on remand is greater than the originally imposed

sentence.” 447 Md. at 30. Therefore, so long as the sentence for child sexual abuse

imposed on remand did not result in a total executed sentence of more than 40 years—the

total executed sentence originally imposed—there would be no increase in sentence within

the meaning of CJP section 12-702.

For our purposes, a comment made by the Court in a footnote is pertinent. The

Court noted that its construction of CJP section 12-702(b) “does not result in unfair

prejudice to a defendant who has been successful on appeal in having one or more, but not

all, convictions and/or sentences vacated.” Twigg, 447 Md. at 29 n.13. It cited Greenlaw

v. United States, 554 U.S. 237 (2008), in which the Supreme Court explained that in

multicount “sentencing package cases,” the appellate court “may vacate the entire sentence

on all counts so that, on remand, the trial court can reconfigure the sentencing plan to ensure

that it remains adequate to satisfy the [federal sentencing factors].” 554 U.S. at 253

(emphasis added). When that happens, the trial court can impose longer sentences on the

counts where the original sentences were vacated solely for sentencing package purposes,

“but yielding an aggregate sentence no longer than the aggregate sentence initially

imposed.” Id.

This comment makes clear that it is within the discretion of the appellate court in an

appeal in a multicount case to vacate all the sentences when less than all of the

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convictions/sentences must be vacated. The appellate court is not required to vacate all the

sentences. Twigg, 447 Md. at 30 n.14 (stating that in an appropriate case the appellate

court may vacate “all sentences originally imposed on those convictions and sentences left

undisturbed on appeal, so as to provide the court maximum flexibility on remand to fashion

a proper sentence that takes into account all of the relevant facts and circumstances”).

In the case at bar, this Court vacated the mandatory minimum sentence of 25 years’

imprisonment without parole for attempted armed robbery (Count I) but did not vacate the

consecutive 10 year sentence, with all but 5 years suspended, for use of a handgun (Count

5) and the consecutive sentence of 10 years, with all but 5 years suspended, for conspiracy

(Count 7). It was within this Court’s discretion not to vacate those sentences, and their

consecutive nature was a part of them. Because those sentences were not vacated on

appeal, they were not before the resentencing court to reconsider on remand.

JUDGMENTS AFFIRMED. COSTS TO BE
PAID BY THE APPELLANT.

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