Wright v. State

Gregg Lamonn Wright v. State of Maryland, No. 3146, September Term, 2018. Opinion
by Nazarian, J.

CRIMINAL LAW – NATURE AND ELEMENTS OF CRIME – MERGER OF
OFFENSES

Record was unclear as to whether conviction for first-degree assault was based on the first-
degree assault in the firearm modality or first-degree assault with intent to cause serious
bodily injury, and therefore ambiguity required deeming the conviction based on the first-
degree assault in the firearm modality.

INDICTMENTS AND CHARGING DOCUMENTS – INCLUDED OFFENSES

First-degree assault in the firearm modality is not a lesser-included offense of second-
degree murder because the elements of first-degree assault in the firearm modality include
the use of a firearm, while second-degree murder can be committed without the use of a
firearm.

CRIMINAL LAW – DETERMINATION AND DISPOSITION OF CAUSE

After conviction of first-degree assault was vacated, appropriate remedy was to vacate
remaining sentences and for case to be remanded for resentencing as to those charges; trial
court imposed aggregate sentence as a package, and it was appropriate to give trial court
an opportunity to redefine package’s size and shape.
Circuit Court for Baltimore City
Case Nos. 100126052, 100126053, 100126054

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3146

September Term, 2018
______________________________________

GREGG LAMONN WRIGHT

v.

STATE OF MARYLAND
______________________________________

Nazarian,
Zic,
Tang,

JJ.
______________________________________

Opinion by Nazarian, J.
______________________________________

Filed: August 30, 2022

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-08-31
08:56-04:00

Suzanne C. Johnson, Clerk
Gregg Lamonn Wright was convicted in 2001 in the Circuit Court for Baltimore

City of, among other things, first-degree assault and the use of a handgun. Mr. Wright filed

a supplemental motion to correct an illegal sentence on October 1, 2018, arguing that his

twenty-five-year sentence for first-degree assault is illegal because he was never charged

with that crime. At a hearing on November 14, 2018, the motions court denied the motion.

After attempts to supplement the record and a hearing on the authenticity of the original

charging document, there is an ambiguity about which modality of first-degree assault

underlies Mr. Wright’s conviction. Therefore, we hold that Mr. Wright’s sentence for the

first-degree assault is illegal. We reverse and remand for resentencing.

I. BACKGROUND

The underlying facts don’t bear on this appeal, but for context, Mr. Wright was

accused of participating in a 1998 shooting that involved three victims. He was charged in

a separate short-form indictment for each; we’ll refer to them by case number. In case

no. 052, Mr. Wright was charged with murder, using a handgun in the commission of a

felony or crime of violence, and unlawfully wearing, carrying, and transporting a handgun.

In cases nos. 053 and 054, Mr. Wright was charged with murder, first-degree assault,

second-degree assault, using a handgun in the commission of a felony or crime of violence,

and unlawfully wearing, carrying and transporting a handgun.

He was tried before a jury on all three indictments on April 12-24, 2001, and the

original transcript from that proceeding has been lost in the interim. The record that is

available reveals that at the end of trial, the trial court ruled that in case no. 052, it would
not send manslaughter to the jury.1 The court deleted manslaughter from the verdict sheet

for that case but, sua sponte, added first-degree assault in its place (which had been

included in the other two indictments).2 The jury then was instructed on both modalities of

first-degree assault: second-degree assault enhanced by the use of a firearm and assault

with intent to cause serious bodily injury. The jury acquitted Mr. Wright of first-degree

murder and convicted him of three counts each of first-degree assault, second-degree

assault, use of a handgun in the commission of a crime of violence, and wearing, carrying

and transporting a handgun. On July 2, 2001, the trial court imposed the following

sentences:

Case ending in 052:
First-degree assault: 25 years
Use of handgun: 20 years, consecutive
Case ending in 053:
First-degree assault: 18 years, consecutive
Case ending in 054:
First-degree assault: 15 years, consecutive.

The jury was not asked to specify, and did not specify, which modality of

first-degree assault underlay its convictions. Because the original circuit court transcript

and part of the record from the 2001 trial have been misplaced, the motions court was

1
Manslaughter was not one of the charges listed in the short-form indictment, but
because manslaughter is a lesser-included offense of murder, it was included on the jury
form. See Baker v. State, 367 Md. 648, 688 (2002).
2
During the motions hearing, the motions court stated that the trial court “decided that
manslaughter wouldn’t go to the jury . . . and deleted that from the verdict form, [the
trial court] then said and explained at least on the record I saw, ‘I’m adding first degree
assault.’”

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unable to determine which modality the jury had accepted, or whether it had unanimously

agreed upon either. The motions court reasoned, however, that it was more likely that the

jury relied on the use of a firearm modality because Mr. Wright was convicted of the use

of a handgun and wearing, carrying or transporting a handgun.

On January 17, 2019, Mr. Wright filed a timely notice of appeal.3 We supply

additional facts below as needed.

II. DISCUSSION

On appeal, Mr. Wright challenges the circuit court’s decision to deny his motion to

correct an illegal sentence, specifically his sentence for first-degree assault in case no. 052.4

This is because, he argues, he was never charged with first-degree assault in that case: the

short-form indictment included manslaughter as a lesser-included offense, but not the

firearm modality of first-degree assault (which, again, was included in his other two

indictments). As such, he says, he was neither expressly nor impliedly charged with first-

degree assault and any sentence on that charge is illegal. The State responds that first-

degree assault is a lesser-included of murder, and therefore Mr. Wright’s sentence is legal.

The State asserts as well that if we find the sentence for first-degree assault illegal, we

3
The appeal was stayed while the parties attempted to supplement the record with the
trial transcript and original charging documents.
4
Mr. Wright framed his Question Presented as follows, “Did the trial court err in
denying Appellant’s Motion To Correct Illegal Sentence?”
The State framed its Question Presented as follows, “If the record is sufficient for this
Court’s review, did the circuit court properly deny Wright’s motion to correct illegal
sentence?”

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should remand the case for resentencing.5 We agree with Mr. Wright that his sentence for

first-degree assault in case no. 052 is illegal, vacate his sentences, and remand for

resentencing.

Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence

at any time.” In other words, illegal sentences may be corrected even if “(1) no objection

was made when the sentence was imposed, (2) the defendant purported to consent to it, or

(3) the sentence was not challenged in a timely-filed direct appeal.” Chaney v. State, 397

Md. 460, 466 (2007). If the circuit court denies a motion to correct an illegal sentence, it

can be appealed immediately. Carlini v. State, 215 Md. App. 415, 425 (2013).

Even so, the scope of Rule 4-345(a) is narrow. Chaney, 397 Md. at 466. “Rule

4-345(a) appellate review deals only with legal questions, not factual or procedural

questions.” Carlini, 215 Md. App. at 443. “Deference as to factfinding or to discretionary

decisions is not involved.” Id. “Once the outer boundary markers for a sentence are

objectively established, the only question is whether the ultimate sentence itself is or is not

inherently illegal.” Id. And to qualify as an illegal sentence under Rule 4-345(a), “the

illegality must inhere in the sentence itself, rather than stem from trial court error during

the sentencing proceeding.” Johnson v. State, 427 Md. 356, 367 (2012) (quoting Matthews

5
The State also asserts that we should decline to address Mr. Wright’s claim because
he had not provided a copy of the key charging document and the evidence in the record
did not otherwise capture the content of the 2000 indictment. In the time since the State
filed its brief, though, the circuit court held a hearing and ruled that the five-page
indictment provided by Mr. Wright was authentic and could be submitted for review. It
is now a part of the circuit court record in this case and before us on appeal.

4
v. State, 424 Md. 503, 512 (2012)).

A. The Circuit Court Erred In Denying The Motion To Correct Illegal
Sentence.

Maryland courts have “‘looked with favor upon the general trend of relaxing the

formal requirements of indictments to avoid the [laborious] and often overly technical rules

of common law pleading in favor of the shorter and simpler forms,’” so long as a defendant

is not “‘misled, or in any way deprived of his constitutional right to fair notice.’” Baker,

367 Md. at 688–89 (quoting Ross v. State, 308 Md. 337, 342–47 (1987)). In Ross, for

example, the defendant, who was charged in the statutory language of a short-form

indictment for murder in the first degree, was “clearly apprised that he [was] being charged

with the crime of murder,” and therefore “that he may be convicted of murder in either

degree, or manslaughter.” 308 Md. at 345. Similarly, in Middleton v. State, an indictment

charged the defendant with, among other things, murder in the first degree, using language

in the short-form indictment set forth in Maryland Code (2002, 2021 Repl. Vol.), Section

2-208 of the Criminal Law Article (“CR”).6 238 Md. App. 295, 309 (2018). This Court

found that “‘[u]nder this statutory formula, even though it spells out murder in the first

degree, the accused may be convicted of murder in the first degree, of murder in the second

6
CR § 2-208, provides in relevant part:

(a) An indictment for murder or manslaughter is sufficient if it
substantially states:
“(name of defendant) on (date) in (county) feloniously
(willfully and with deliberately premeditated malice) killed
(and murdered) (name of victim) against the peace,
government, and dignity of the State.”.

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degree, or of manslaughter.’” Id. at 309–10 (quoting Hook v. State, 315 Md. 25, 32 n.11

(1989)).

Here, in the case ending in 052, Mr. Wright was charged via short-form indictment

with three different counts: first-degree murder (Count I), unlawfully using a handgun in

the commission of a felony (Count II), and unlawfully wearing, carrying, and transporting

a handgun (Count III). First-degree assault was not included in this particular indictment.

Although a short-form indictment charges all forms of homicide, and thus the first-

degree murder charge meant that he could be convicted of either degree of murder or

manslaughter, the absence of a first-degree assault charge requires us to determine whether

first-degree assault is a lesser-included offense of murder.

1. The serious bodily harm modality of first-degree assault is a lesser
included offense of murder, but the firearm modality of first-degree
assault is not.

“Merger is the common law principle that derives from the protections afforded by

the Double Jeopardy Clause.” State v. Frazier, 469 Md. 627, 641 (2020) (citing Brooks v.

State, 439 Md. 698, 737 (2014). “It is the mechanism used to protect a convicted defendant

from multiple punishments for the same offense.” Id. (cleaned up). “The principle that a

defendant, charged with a greater offense, can be convicted of an uncharged lesser-

included offense, has been adopted by virtually every jurisdiction in the United States . . . .”

Hagans v. State, 316 Md. 429, 447 (1989) (citations omitted).

“The principal test for determining whether offenses stemming from the same

transaction must merge for sentencing purposes is the ‘required evidence’ test.” Tolen v.

State, 242 Md. App. 288, 305 (2019). Under that test, “courts look at the elements of the

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two offenses in the abstract.” Hagans, 316 Md. at 449. “All of the elements of the lesser-

included offense must be included in the greater offense.” Id. “Therefore, it must be

impossible to commit the greater without also having committed the lesser.” Id. Put another

way, “‘if each offense contains an element which the other does not, there is no merger

under the required evidence test even though both offenses are based upon the same act or

acts.’” Nicolas v. State, 426 Md. 385, 402 (2012) (quoting State v. Lancaster, 332 Md. 385,

391–92 (1993)). “‘But, where only one offense requires proof of an additional fact, so that

all elements of one offense are present in the other, and where both offenses are based on

the same act or acts . . . merger follows.’” Id. (quoting Lancaster, 332 Md. at 391–92).

Whether first-degree assault merges into murder (either first- or second-degree will

work, since the latter merges into the former) depends on the modality of assault underlying

the conviction, and Middleton answers half of the question. In that case, Mr. Middleton

was found guilty of robbery, conspiracy to commit robbery, and first-degree assault. 238

Md. App. at 302. He asserted that under CR § 3-202(a)(1),7 assault in the first degree was

not a lesser-included offense of murder under the required evidence test because it is

possible to commit murder without committing an assault. Id. at 303. We disagreed.

Because Mr. Middleton was charged with murder under the language in the short-form

indictment, he was charged, among other things, with murder in the second degree based

on the specific intent to inflict grievous bodily harm. Id. at 310. We pointed out that “assault

7
CR § 3-202(a)(1) provides that “[a] person may not intentionally cause or attempt to
cause serious physical injury to another.”

7
in the first degree, under C[R] § 3-202(a)(1) is, under the required evidence test, a

lesser-included offense of murder in the second degree, based upon the specific intent to

inflict grievous bodily harm.” Id. But we confined our analysis to a single type of mens rea

in holding “that this variety of first-degree assault is, under the required evidence test, a

lesser-included offense of second-degree murder based upon the specific intent to inflict

grievous bodily harm.” Id. at 308–09.

This case raises the same issue as Middleton but with a question about the relevant

modality of first-degree assault. The State characterizes Middleton as holding that

first-degree assault is a lesser-included offense of a short-form indictment murder charge

generally, regardless of the modality. But that reads Middleton too far: it specified only

that first-degree assault is a lesser-included offense of the serious bodily harm modality of

second-degree murder. Id. Middleton didn’t address at all whether first-degree assault in

the firearm modality is a lesser-included offense of second-degree murder, nor does any

other case.

And now, with a chance to consider the question, we hold that the firearm modality

of first-degree assault is not a lesser-included offense of second-degree murder. First-

degree assault with the use of a firearm includes the element of possessing a firearm. CR

§ 3-202(b)(2). But a homicide, whether in the form of murder in either degree or

manslaughter, can be committed without a firearm. CR §§ 2-201, 2-204, and 2-207. And

“‘if each offense contains an element which the other does not, there is no merger under

the required evidence test even though both offenses are based upon the same act or acts.’”

Nicolas, 426 Md. at 402 (quoting Lancaster, 332 Md. at 391–92). So if Mr. Wright was

8
convicted of first-degree assault in the firearm modality, which is not a lesser-included

offense of murder, his sentence for first-degree assault is illegal because it was neither

charged expressly nor a lesser-included of an offense that was.

2. Mr. Wright was likely convicted of the firearm modality of first-degree
assault.

And this brings us to a factual question: which modality of first-degree assault

underlies Mr. Wright’s conviction in this case? We know that the jury found Mr. Wright

guilty of first-degree assault, but the record does not reveal which modality of first-degree

assault the jury accepted or whether the jury unanimously agreed upon a modality at all.

Although we don’t have the transcripts or records from the original 2001 trial, the motions

court believed the jury was instructed on both modalities of first-degree assault. But

because Mr. Wright also was found guilty of the firearm charges, the firearm modality of

first-degree assault seems the more likely basis for the jury’s guilty verdict.

We don’t have to resolve that issue definitively, though. Ambiguities as to the

factual basis for a conviction get resolved in the defendant’s favor. Brooks, 439 Md. at 739.

“We look to the record for other indications that might resolve the ambiguity in favor of

non-merger.” Id. at 741. The record doesn’t provide any clarity, but the connection between

Mr. Wright’s conviction on the firearm charges and the nature of the homicides at issue

creates ambiguity about whether, if not a distinct likelihood that, the jury found him guilty

of assault in the first-degree with a firearm. And that ambiguity is enough for these

purposes: since first-degree assault with a firearm was neither included in the charging

document nor qualifies as a lesser-included offense of murder that can merge under the

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required evidence test, Mr. Wright’s sentence for first-degree assault in case 052 is illegal.

B. The Circuit Court Should Be Allowed To Reconsider The
Sentencing Package.

In light of our decision above, the State asks us, based upon Twigg v. State, 447 Md.

1, 28 (2016), to vacate the sentences in the case ending in 052 and remand to the circuit

court for resentencing. In Twigg, Mr. Twigg was found guilty of second-degree rape, third-

degree sexual offense, and child sexual abuse. Id. at 1. The circuit court imposed

consecutive sentences. Id. at 5. The Court of Appeals, joining the view of the federal

appellate courts, recognized that sentencing on multiple counts is a package:

In imposing sentences for multiple convictions in a single case,
a trial judge considers not only the sentence for each
conviction, but also the total sentence for all of the convictions
together. Indeed, the Maryland Sentencing Guidelines are
structured to reflect such dual consideration. The sentencing
guidelines provide a guideline range for each conviction, and
then an overall guideline for all of the convictions, viewed as a
whole.

Id. at 27 (cleaned up). And “after an appellate court unwraps the 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 (cleaned up).

Because Mr. Wright was convicted of multiple offenses and the circuit court

imposed multiple sentences, we agree with the State that the sentences imposed as an

inter-related scheme in case no. 052 constitute a package. Our reversal of Mr. Wright’s

first-degree assault sentence disturbs the trial court’s intended overall sentence, and the

trial court should be allowed to reconsider the overall sentence in the context of the counts

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that remain. Accordingly, we vacate the sentences in case no. 052 and remand for

resentencing on all counts other than first-degree assault. See Johnson v. State, 248 Md.

App. 348, 357 (2020).

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY REVERSED AND
REMANDED TO THE CIRCUIT COURT
FOR RE-SENTENCING CONSISTENT
WITH THIS OPINION. COSTS TO BE
PAID BY MAYOR AND CITY COUNCIL
OF BALTIMORE.

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The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/3146s18cn.pdf