Hamrick v. State

Ancil Tony Hamrick v. State of Maryland

No. 1780, Sept. Term, 2022

Opinion by Leahy, J.

Criminal Law > Nature and Elements of Crime > Redundant convictions and

sentences

A theory of felony murder is superfluous when a jury also finds that a defendant committed

the same murder with premeditation because, in a murder trial, the “units of prosecution

are dead bodies, not theories of aggravation.” Burroughs v. State, 88 Md. App. 229, 247

(1991). It is therefore “redundant” to sentence a defendant twice for the same killing—no

merger of offenses or penalties is required. See id.

By contrast, as instructed by the Supreme Court in State v. Frye, if a defendant is convicted

of first-degree murder, and that conviction could be premised on either premeditation or

the felony murder rule as codified by CR § 2-201(a)(4), but the record provides no means

to determine how the jury reached its verdict, then we will resolve the ambiguity in favor

of the defendant by assuming that the murder conviction arose from a theory of felony

murder (and not a finding that the killing was premeditated). See State v. Frye, 283 Md.

709, 723-25 (1978).

To avoid the problem described by Frye, “the trial judge should instruct the jury to indicate

whether the basis for a murder verdict is felony murder or . . . premeditated murder, but

. . . the jury [should] render a verdict on the felony count in any event.” Frye, 283 Md. at

724. This way, if a verdict of first-degree murder is based on “premeditated homicide”

rather than felony murder, then “guilty verdicts” on any “felony counts” underlying the

felony murder charge may “properly . . . result[] in sentences.” Id.

In the instant case, the jury was instructed on both first-degree premeditated murder and

first-degree felony murder, and Appellant was convicted of both. Appellant was also found

guilty of first-degree burglary. In Appellant’s previous direct appeal, the Appellate Court

correctly found that Appellant’s sentence on the felony-murder conviction was redundant,

and properly vacated that sentence without vacating Appellant’s conviction (or sentence)

for first-degree burglary.

Criminal Law > Nature and Elements of Crime > Redundant convictions and

sentences

Because the jury found that Appellant had a specific intent to kill that is deliberate,

premeditated, and willful—a more culpable mens rea than that required to establish felony

murder, the sentence imposed for Appellant’s first-degree murder conviction is

appropriately based on premeditated murder and not Appellant’s redundant felony murder

conviction. Cf. Jones v. State, 357 Md. 141, 167 (1999) (indicating, in the context of the

rule of lenity, that where the rule applies to two offenses with identical maximum penalties,

the sentence for the “more serious offense” should survive).

Criminal Law > Nature and Elements of Crime > Merger of offenses

The rule of lenity is normally a “standard for determining merger for sentencing purposes.”

State v. Johnson, 442 Md. 211, 218 (2015) (emphasis added) (citation omitted). We glean

from our decisional law, however, that in the narrow context of “redundant” sentences, the

rule of lenity may also apply when the court is “unable to state which of the permissible

inferences the jury drew in arriving at its verdict[.]” Frye, 283 Md. at 719 (quotation

omitted).

Circuit Court for Calvert County

Case No. 04-K-00-000272

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 1780

September Term, 2022

______________________________________

ANCIL TONY HAMRICK

v.

STATE OF MARYLAND

______________________________________

Berger,

Leahy,

Wilner, Alan M.,

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Leahy, J.

______________________________________

Filed: September 4, 2024

* Wells, CJ., did not participate in the Court’s

decision to designate this opinion for publication

pursuant to Md. Rule 8-605.1.

Pursuant to the Maryland Uniform Electronic Legal

Materials Act (§§ 10-1601 et seq. of the State

Government Article) this document is authentic.

2024.09.04

13:07:23

-04'00'

Gregory Hilton, Clerk

In this appeal we consider whether the Circuit Court for Calvert County erred when

it denied the underlying motion filed under Maryland Rule 4-345(a) to correct an allegedly

illegal sentence for first-degree burglary.

The facts of the case leading to the verdict are straightforward and undisputed. In

early December 2000, Mr. Ancil Hamrick, (“Appellant”) broke into the home of Darlene

Turney and killed her. Following a jury trial in June 2001, Appellant was convicted of

first-degree premeditated murder, first-degree felony murder, and first-degree burglary.

The mazy sentencing history, however, set the stage for the issue on appeal,

beginning when the sentencing court sentenced Appellant improperly for both the

premeditated murder and felony murder convictions. Because a defendant may not be

sentenced twice for the same murder, as pointed out by the State in Appellant’s direct

appeal in Hamrick v. State, No. 1106, Sept. Term, 2001 (Md. App. Ct. filed Aug. 14, 2002),

we vacated Appellant’s sentence for first-degree felony murder. Hamrick, slip op. at 16-

17. On post-conviction relief, Hamrick was granted a new sentencing hearing, during

which the circuit court reduced his sentence for first-degree premeditated murder to life

imprisonment with the possibility of parole, but left his consecutive sentence for first-

degree burglary undisturbed. Accordingly, today Appellant retains only the sentences he

received for the premeditated murder and burglary convictions.

In June 2022, Appellant filed a “Motion to Correct Illegal Sentence” in the Circuit

Court for Calvert County. He alleged that the sentence he received for the burglary

conviction was an inherently illegal sentence that must be “corrected or vacated” because

his burglary conviction should have merged with his felony murder conviction. The circuit

court held a hearing on the motion and, in November 2022, denied the motion. Appellant

noted a timely appeal and assigns error to the circuit court’s decision. 1

We hold that the trial court did not err in denying Appellant’s Motion to Correct

Illegal Sentence. As indicated in Newton v. State, 280 Md. 260 (1977), when a jury finds

a defendant guilty of both premeditated murder and a separate felony, the convictions do

not merge. Here, the jury convicted Appellant twice for the murder of Darlene Turner—

which was aggravated to first-degree murder by two alternative theories: premeditation

under Maryland Code (2002, 2021 Repl. Vol.), Criminal Law Article (“CR”), § 2-

201(a)(1), and the commission of an enumerated felony under § 2-201(a)(4). It was

“redundant” for the circuit court to impose two murder sentences for a single offense.

Burroughs v. State, 88 Md. App. 229, 247 (1991) (Moylan, J.). That is why this Court

vacated the redundant sentence for felony murder on direct appeal. Hamrick, slip op. at

17. The rule of lenity did not require this Court on direct appeal, nor the circuit court at

the resentencing hearing, to vacate Appellant’s premeditated murder sentence, rather than

his redundant felony murder sentence, because a finding that the murder was “deliberate,

premeditated, and willful[,]” CR § 2-201(a)(1), represents a more culpable mens rea than

that which is required to establish felony murder. 2 See Brooks v. State, 104 Md. App. 203,

224-25 (1995) (comparing the mens rea required for felony murder and premeditated

Appellant’s brief frames the issue simply: “Did the Circuit Court err in denying

1

the Appellant’s Motion to Correct Illegal Sentence?” (emphasis removed).

2

As we explain below, any argument that merger of Appellant’s burglary conviction

with his murder conviction is required under principles of fundamental fairness is not

preserved. Koushall v. State, 479 Md. 124, 163-64 (2022).

2

murder), abrogated on other grounds by Winters v. State, 434 Md. 527 (2013). Therefore,

as it stands, Appellant’s sentence for first-degree burglary is not an illegal sentence under

Maryland Rule 4-345(a) because he was convicted of both first-degree premeditated

murder and first-degree burglary. We shall affirm the judgment of the circuit court.

BACKGROUND

We summarized the factual background of Appellant’s case in our prior unreported

decision authored by Judge James Salmon in Hamrick v. State, No. 1106, Sept. Term, 2001

(Md. App. Ct. filed Aug. 14, 2002):

On June 8, 2001, Ancil Hamrick was convicted by a jury in the Circuit Court

for Calvert County of first[-]degree premeditated murder, first[-]degree

felony murder, and first[-]degree burglary. He was sentenced to two

concurrent terms of life imprisonment without the possibility of parole for

the two murder convictions and to a consecutive term of twenty years for the

burglary conviction.

* * *

In the trial court, appellant admitted killing Darlene Turney in the early

morning hours of December 3, 2000. . . . Appellant’s defense was that at the

time of the murder he was voluntarily intoxicated and therefore could not

have formed the intent necessary for a conviction of either first[-]degree

murder or first[-]degree burglary.

* * *

Appellant said that he consumed approximately twelve to thirteen

beers . . . . During the late evening hours of December 2, or early hours of

December 3, [A]ppellant drove to Ms. Turney’s house in Calvert County, but

parked his car several blocks away . . . . [H]e cut the phone lines to her

house . . . . He then entered the basement . . . by way of a sliding glass door.

. . . Appellant woke Ms. Turney, and they immediately began

arguing. . . . [Appellant said] the following transpired:

3

. . . I hit her once and she fell to the floor. Then she snapped right

back up and came towards me. . . . And that’s when I hit her and I put

my hand over her mouth while she was on the ground and rendered

her unconscious. The last thing I remember was her leg

kicking . . . that’s the last I remember until I was climbing over the

fence going to my car.

. . . [Appellant] threw away the knife that he had used to kill the

victim. . . . [A]ppellant acknowledged that, although he had no recollection

of cutting the victim, he must have been the one responsible[.]

Hamrick, slip op. at 1-3. As accurately summarized in the State’s brief in this appeal:

The verdict sheet in Hamrick’s trial asked four questions. First, it asked “[i]s

the defendant guilty or not guilty of First Degree Premeditated Murder?”

The jury answered “[g]uilty.” Second, it asked, “[i]s the defendant guilty or

not guilty of First[-]Degree Felony Murder?[”] The jury answered,

“[g]uilty.” Between questions two and three, the verdict sheet instructed,

“[i]f you find the defendant guilty of counts 1 or 2 or both, then skip question

3 and continue to question 4.” Question three asked, “[i]s the defendant

guilty or not guilty of Second[-]Degree Murder?” Pursuant to the instruction,

the jury did not render a verdict on question three. Finally, question four

asked, “[i]s the defendant guilty or not guilty of First[-]Degree Burglary?”

The jury responded, “[g]uilty.”

(Citations to the record omitted).

In his direct appeal to this Court, Hamrick did not contest whether it was improper

for him to have “received a sentence for both first[-]degree premeditated murder and first

[-]degree felony murder.” 3 Hamrick, slip op. at 16-17. However, in its brief the State

3

Appellant presented three issues for our review in his previous direct appeal to this

Court:

1. Whether the trial court erred in excluding testimony by a licensed clinical

professional counselor.

2. Whether the trial court’s instruction to the jury concerning voluntary

intoxication was adequate.

(Footnote continued)

4

“implied” that under Burroughs v. State, 88 Md. App. 229 (1991), Hamrick should not

have received two sentences for the same killing. Hamrick, slip op. at 17. We agreed, and,

accordingly, determined that:

[U]nder Burroughs, [A]ppellant should not have received a sentence for both

first[-]degree premeditated murder and first[-]degree felony murder.

Therefore, the sentence for first[-]degree felony murder shall be vacated.

Hamrick, slip op. at 17. 4

Appellant filed a petition for postconviction relief in February 2003, as well as an

amended and supplemental petition in November 2004 and November 2005, respectively.

As explained in a memorandum opinion entered June 28, 2007, the circuit court found that

Hamrick established that his counsel was deficient at his sentencing hearing for failure to

call a particular witness and that this prejudiced Hamrick. Accordingly, the court granted

Hamrick a new sentencing hearing. At that sentencing hearing, the court modified

Hamrick’s sentence for first-degree premeditated murder from life imprisonment without

the possibility of parole to life imprisonment with the possibility of parole, but left his

consecutive sentence for first-degree burglary undisturbed.

In June 2022, Appellant filed the underlying Motion to Correct Illegal Sentence in

which he asserted that his sentence for the burglary conviction was an “inherently illegal

3. Whether the court erred in not providing written copies of the voluntary

intoxication instruction to the jury.

Hamrick, slip op. at 1.

4

Subsequently, the Circuit Court for Calvert County, “[b]ased on” our decision in

Hamrick v. State, No. 1106, Sept. Term, 2001 (Md. App. Ct. filed Aug. 14, 2002), vacated

“the sentence imposed for first[-]degree felony murder of life without the possibility of

parole[.]”

5

sentence” and, therefore, must be “corrected or vacated[.]” (We discuss Appellant’s

contentions in greater detail below.) A hearing was held on October 24, 2022, and, by

memorandum opinion and order entered November 9, 2022, the circuit court denied

Appellant’s motion. Appellant noted a timely appeal to this Court on December 9, 2022.

DISCUSSION

I.

Motion to Correct Illegal Sentence

A. Standard of Review

“Whether a sentence is illegal is a question of law – as is the question whether an

alleged defect relating to a sentence is cognizable in a motion to correct an illegal

sentence.” Farmer v. State, 481 Md. 203, 222 (2022). “Accordingly, an appellate court

reviews a denial of a motion to correct an illegal sentence de novo.” Id. at 222-23 (citing

Johnson v. State, 467 Md. 362, 389 (2020), and State v. Crawley, 455 Md. 52, 66 (2017)).

B. Legal Framework

Before this Court, Appellant offers several arguments in support of his contention

that his first-degree burglary sentence is illegal because it should have merged into his

felony murder conviction. The State refutes them all. To better understand the parties’

contentions on appeal, we first examine the applicable law.

As explained by the Supreme Court of Maryland in Farmer:

Maryland Rule 4-345(a) authorizes a court to “correct an illegal sentence at

any time.” That means that a defendant may ask a trial court to “correct” a

sentence “notwithstanding that (1) no objection was made when the sentence

was imposed, (2) the defendant purported to consent to it, and (3) the

sentence was not challenged in a timely-filed direct appeal.” Chaney v. State,

6

397 Md. 460, 466[] (2007). Because Rule 4-345(a) allows collateral and

belated attacks on a sentence and is not subject to waiver, it is well-

established that its scope is narrow. Otherwise, it would swallow the general

rule of finality and allow repeated attacks on the underlying conviction. It is

limited to situations where there is some illegality inherent in the sentence

itself or where no sentence should have been imposed in the first place.

Evans v. State, 382 Md. 248, 278-79[] (2004)).

Farmer, 481 Md. at 223. The Court went on to describe what constitutes an “inherent

error” in a sentence:

An inherent error occurs when the alleged error relates to the trial court’s

fundamental power or authority and the sentence should have never been

imposed or the particular sentence was beyond the limits prescribed by

statute or rule. See, e.g., Matthews v. State, 424 Md. 503, 514-15[]

(2012) (motion to correct an illegal sentence appropriate when the trial court

had unlawfully imposed a sentence that exceeded the penalty provided in a

binding plea agreement in accordance with a Maryland Rule); Alston v. State,

425 Md. 326, 339, 341-42[] (2012) (motion appropriate when trial court had

unlawfully reopened a terminated postconviction proceeding); Ridgeway v.

State, 369 Md. 165, 171[] (2002) (motion granted when the defendant

was erroneously sentenced on three counts on which he was

acquitted); Holmes v. State, 362 Md. 190, 195-96[] (2000) (motion

appropriate when trial court imposed a sentence of probation with home

detention even though it lacked authority to do so); Moosavi v. State, 355

Md. 651, 662[] (1999) (motion appropriate when the defendant had been

charged, convicted, and sentenced under “an entirely inapplicable statute”).

Id. at 223-24. The Court further explained that a motion under Rule 4-345(a) may not be

used as a “vehicle for belatedly raising any alleged error in the trial or proceedings that

resulted in the sentence, for challenging the administration of the sentence, or for generally

litigating the procedures that may govern a future reduction of the sentence or the

defendant’s release from custody.” Id. at 225.

Maryland’s appellate courts have recognized three categories of “inherently illegal”

sentences under Rule 4-345(a):

7

[I]nherently illegal sentences generally come in three varieties: (1) a sentence

that exceeds the statutory maximum, or is less than the required minimum;

(2) a sentence that never should have been imposed; or (3) a sentence that

exceeds the cap imposed by a binding plea agreement[.]

State v. Bustillo, 480 Md. 650, 658-59 (2022) (cleaned up; internal citations omitted). In

this case, the issue is whether Appellant’s sentence for burglary “never should have been

imposed.” Id. (quotation omitted).

In Maryland, there are “three grounds for merging a defendant’s convictions for

sentencing purposes: ‘(1) the required evidence test; (2) the rule of lenity; and (3) the

principle of fundamental fairness.’” Koushall v. State, 479 Md. 124, 156 (2022) (quoting

Carroll v. State, 428 Md. 679, 694 (2012)).

The required evidence test 5 is “a long-standing rule of law to determine whether one

offense is included within another when both are based on the same act or acts.” State v.

Johnson, 442 Md. 211, 218 (2015) (quoting McGrath v. State, 356 Md. 20, 24 (1999)).

More specifically:

Sentences for two convictions must be merged when: (1) the convictions are

based on the same acts or acts, and (2) under the required evidence test, the

two offenses are deemed to be the same, or one offense is deemed to be the

lesser included offense of the other.

Id. at 217 (quoting Brooks v. State, 439 Md. 698, 737 (2014)).

The test “derives from the protection against double jeopardy afforded by the Fifth

Amendment of the federal Constitution and . . . Maryland common law.” Id. (quoting

5

We note that the terms “required evidence test” and “elements test” are

interchangeable in Maryland. See Williams v. State, 200 Md. App. 73, 86-87 (2011) (citing

Hagans v. State, 316 Md. 429, 449 (1989)).

8

Brooks, 439 Md. at 737); see also Rainey v. State, 236 Md. App. 368, 375 n.5 (2018)

(“Where there is a claimed violation of [the Double Jeopardy Clause of the Fifth

Amendment to the Constitution of the United States] by the imposition of multiple

sentences for the same crime, the alleged illegality occurs at the imposition of the sentence,

and therefore inheres in the sentence and is cognizable under Rule 4-345(a).” (citation

omitted)). If the test is satisfied, the offenses will merge for sentencing purposes. See,

e.g., Johnson, 442 Md. at 217. As the Johnson Court explained:

The required evidence test focuses upon the elements of each offense; if all

of the elements of one offense are included in the other offense, so that only

the latter offense contains a distinct element or distinct elements, the former

merges into the latter. Stated another way, the required evidence is that

which is minimally necessary to secure a conviction for each offense. If each

offense requires proof of a fact which the other does not, or in other words,

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. 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. at 218 (alteration in original) (quotation omitted).

The “rule of lenity provides another standard for determining merger for sentencing

purposes.” Id. (citing McGrath, 356 Md. at 24-25); see also Koushall, 479 Md. at 156.

The Supreme Court of Maryland recently summarized the rule as follows:

“If . . . the required evidence test is not fulfilled . . . we move to a separate

inquiry: whether the principle of statutory construction known as the rule of

lenity requires merger.” Khalifa v. State, 382 Md. 400, 433[] (2004)[.]

“As it is a principle of statutory construction, the rule of lenity applies where

both offenses are statutory in nature or where one offense is statutory and the

other is a derivative of common law.” Khalifa, 382 Md. at 434[.] “[I]f we

are unsure of the legislative intent in punishing offenses as a single merged

crime or as distinct offenses, we, in effect, give the defendant the benefit of

9

the doubt and hold that the crimes do merge.” Monoker [v. State, 321 Md.

214, 222 (1990)]; Jones v. State, 357 Md. 141, 156[] (1999) (“Under the

Double Jeopardy Clause, a defendant is protected against multiple

punishment for the same conduct, unless the [General Assembly] clearly

intended to impose multiple punishments.”).

Koushall, 479 Md. at 161 (fourth and seventh alterations in original); see also Johnson,

442 Md. at 218-19 (“The rule of lenity . . . provides that where there is no indication that

the [General Assembly] intended multiple punishments for the same act, a court will not

impose multiple punishments but will, for sentencing purposes, merge one offense into the

other. . . . The rule . . . allows [a court] to avoid interpreting a criminal statute so as to

increase the penalty that it places on an individual when such an interpretation can be based

on no more than a guess as to what [the General Assembly] intended.” (alterations in

original) (quotations omitted)). As cautioned by the Court in Oglesby v. State, the rule of

lenity is “not a means for determining—or defeating—legislative intent[,]” but is instead

“a tool of last resort, to be rarely deployed and applied only when all other tools of statutory

construction fail to resolve an ambiguity.” 441 Md. 673, 681 (2015) (citation omitted).

Principles of fundamental fairness may also result in merger; however, our caselaw

is clear that “[u]nlike the required evidence test or the rule of lenity” the “failure to merge

a sentence based on fundamental fairness does not render the sentence illegal.” Koushall,

479 Md. at 163 (citations omitted). This is because “[f]undamental fairness does not merge

sentences because of any inherent flaw in the sentences; rather, it is a ‘fact-driven’ inquiry

that considers whether a defendant should not receive separate, but otherwise legal,

criminal punishments under the circumstances.” Id. at 164 (citing Carroll, 428 Md. at

10

695). Thus, any alleged error that is premised on principles of fundamental fairness can

not be cured through a motion to correct an illegal sentence. See id.

If a defendant is convicted of murder under a theory of felony murder under CR §

2-201(a)(4), the doctrine of merger will apply to merge the predicate felony with the

murder conviction. See Newton v. State, 280 Md. 260, 268-69 (1977); Johnson, 442 Md.

at 214, 221. The Supreme Court of Maryland in Newton held that under “the required

evidence test, . . . the felony murder and the underlying felony must be deemed the same

for double jeopardy purposes.” Newton, 280 Md. at 268. The Court explained that:

[U]nder [CR § 2–201’s predecessor], murder committed in the perpetration

of certain enumerated felonies, . . . is first[-]degree murder. . . . By proving

every element of the underlying felony, the element of malice necessary for

murder is established. [Citations omitted]. And having established murder

by proving a homicide during the perpetration or attempted perpetration of a

felony, [CR § 2–201’s predecessor] provides that the murder shall be murder

in the first degree. . . .

Therefore, to secure a conviction for first[-]degree murder under the felony

murder doctrine, the State is required to prove the underlying felony and the

death occurring in the perpetration of the felony. The felony is an essential

ingredient of the murder conviction. The only additional fact necessary to

secure the first[-]degree murder conviction, which is not necessary to secure

a conviction for the underlying felony, is proof of the death. The evidence

required to secure a first[-]degree murder conviction is, absent the proof of

death, the same evidence required to establish the underlying

felony. Therefore, as only one offense requires proof of a fact which the

other does not, under the required evidence test the underlying felony and the

murder merge.

Id. at 268-69; see also State v. Frye, 283 Md. 709, 712 (1978) (“This Court in [Newton],

held that when a defendant is charged with both murder and a felony arising from the same

transaction, and is convicted of murder based upon the felony murder doctrine, the

underlying felony merges into the murder conviction.”). The Court reiterated this rule in

11

Johnson and clarified how the rule will apply in instances where a defendant is convicted

of multiple predicate felonies:

[W]here a defendant is convicted of felony murder and multiple predicate

felonies, only one predicate felony conviction merges for sentencing

purposes with the felony murder conviction; and, absent an unambiguous

designation that the trier of fact intended a specific felony to serve as the

predicate felony, the conviction for the felony with the greatest maximum

sentence merges for sentencing purposes.

Johnson, 442 Md. at 214.

A defendant may not be sentenced twice—under theories of premeditated and

felony murder—for the murder of the same victim. See Burroughs v. State, 88 Md. App.

229, 246-47 (1991). However, this result is not the product of a merger. Judge Charles

Moylan explains in his renowned treatise, CRIMINAL HOMICIDE LAW,6 when, in the context

of felony murder, merger is required:

With many felony-murder convictions, there arise special double

jeopardy problems requiring mandatory merger to avoid unconstitutional

multiple punishment for the same offense. The ground-breaking analysis in

this regard was done by Judge Eldridge in Newton v. State. [280 Md. 260

(1977).] To determine whether two related and overlapping offenses are

actually the “same offense” within the contemplation of the Double Jeopardy

Clause, one must compare their respective sets of elements . . . . The

question in Newton was whether the perpetration of the felony was a unique

element or was a required element of the felony-murder.

. . . Newton incisively pointed out that the only set of elements

pertinent for comparison purposes on the felony-murder side of the balance

sheet would be that set involved in the particular felony-murder on

trial . . . . In such a comparison, the underlying felony or its attempt would

inevitably be an integral part of the particular felony-murder based upon it.

Ergo, the felony-murder and the underlying felony would be the “same

offense” for double jeopardy purposes.

6

See State v. Thomas, 464 Md. 133, 153 (2019) (recognizing Judge Moylan as “a

venerated scholar of Maryland criminal law”).

12

By parity of reasoning, if a felony-murder were charged alleging two

underlying felonies and if verdicts of guilty were returned on the felony-

murder and on both of the underlying felonies, one of the two felonies would

self-evidently be superfluous to the murder conviction, to wit, not a required

element. The superfluous felony would not merge and could serve as the

basis for a separate conviction and a separate sentence. . . . If the fact finder

failed . . . to designate[] [which felony served as the basis for the felony-

murder conviction] the sentencing judge should, under the rule of lenity, give

the defendant the benefit of the doubt, merging the felony with the greater

possible sentence and leaving as the basis for separate punishment the one

with the lesser possible sentence.

A . . . selection problem arises when the murder verdict in the first

degree 1) could have been on the basis of felony-murder; 2) could have been

on the basis of a wilful, deliberate, and premeditated killing; or 3) could have

been based on both. State v. Frye[, 283 Md. 709 (1978)] held that in such a

situation, a jury should be instructed to render separate verdicts on each

theory of first-degree murder and also on the underlying felony, if charged.

If there is a verdict of first-degree murder on 1) the premeditated killing

theory exclusively or 2) both first-degree theories, no merger of a

conviction of the underlying felony would be required. In the case of the

doubly guilty verdict, the alternative theory of felony-murder would

turn out to be superfluous, to wit, not required to support the verdict of

murder in the first degree.

The Frye case also tells us how to resolve the ambiguity when a fact

finder simply pronounces a verdict of guilty of first-degree murder generally

and does not render separate findings as to each possible theory of guilt. In

such a case, again by operation of the rule of lenity, the defendant gets the

benefit of the doubt and merger is required.

CHARLES E. MOYLAN, JR., CRIMINAL HOMICIDE LAW § 5.6, at 126-27 (2002) (bold

emphasis added) (footnotes omitted). The Frye case is discussed in greater detail below.

Judge Moylan’s conclusion that a theory of felony murder is superfluous when a

jury also finds that a defendant committed the same murder with premeditation, see id.,

naturally flows from the fact that, in a murder trial, the “units of prosecution are dead

bodies, not theories of aggravation.” Burroughs, 88 Md. App. at 247. It is therefore

“redundant” to sentence a defendant twice for the same killing—no merger of offenses or

13

penalties is required. See id. Three cases are particularly instructive on this point,

including State v. Frye, supra; Burroughs, supra; and Wagner v. State, 160 Md. App. 531

(2005).

In Frye, the Supreme Court of Maryland concurrently considered two cases that

involved different defendants—Eugene Shaw Frye and Willie Lee Jones, Jr. See Frye, 283

Md. at 717-21. In both cases, the defendants were charged with (among other things) at

least one murder and a felony that could serve as a predicate for felony murder. 7 See id.

In each case, the State proceeded on theories of both felony murder and willful, deliberate

and premeditated murder. See id. The juries were instructed on both theories. Id. at 717,

719. However, the trial judge in each case failed to provide the jury with instructions

“designed to reveal the basis of a murder verdict[,]” i.e., whether the verdict was premised

on felony murder or premeditation. Id. at 719. Thus, when both Frye and Jones were

convicted of first-degree murder and at least one predicate felony 8 that the jury may have

relied on to satisfy the felony murder rule, there was “no foundation” in the record “to

7

As was “relevant” to the Court’s analysis, Frye was charged, “[i]n one indictment,”

“in the first count with murder and in the second count with using a handgun in the

commission of a crime of violence (I.e., the murder).” Frye, 283 Md. at 717. In another

indictment, Frye was charged with “one count of robbery with a dangerous and deadly

weapon and in another count of using a handgun in the commission of a crime of violence

(I.e., the robbery).” Id. Jones was charged with “three counts of murder, four counts of

kidnapping, and four counts of unlawful use of a handgun in the commission of a felony.”

Id. at 719.

8

Frye was found guilty of “first[-]degree murder and robbery with a dangerous and

deadly weapon.” Frye, 283 Md. at 717. Jones was found guilty “on three counts of first

[-] degree murder, four counts of kidnapping, and all four handgun counts” that he had

been charged with. Id. at 720.

14

determine whether the conviction[s] w[ere] based on felony murder or on wil[lful],

deliberate and premeditated murder.” Id. at 720.

Frye and Jones each appealed 9 to this Court but, in their respective cases, we reached

contrary holdings. In Frye’s case we were “unable to state which of the permissible

inferences the jury drew in arriving at its verdict”; we “resolve[d] th[is] doubt in favor of

the appellant” by “vacat[ing] the judgments entered on the robbery with a deadly weapon

and the related handgun charge.” Frye, 283 Md. at 719 (quoting Frye v. State, 37 Md. App.

476, 480 (1977), aff’d, 283 Md. 709 (1978)). In Jones’ case, however, we “reached a

conclusion exactly opposite” the “conclusion in Frye” by “affirm[ing] the felony and

associated handgun convictions[.]” Id. at 720 (construing Jones v. State, 38 Md. App. 288,

304 (1977), rev’d sub nom. State v. Frye, 283 Md. 709 (1978)). The Supreme Court of

Maryland granted the State’s petition for certiorari in Frye’s case, and Jones’ petition for

certiorari in his case, and consolidated the two cases. See id. at 719, 721.

Ultimately, the Court determined that our reasoning in Frye’s case was correct. In

pertinent part, the Court explained:

In cases like the present ones, the [trial] court should, in advising the jurors

as to the form of their verdict, give them appropriate instructions so that the

basis of a first[-]degree murder verdict will be revealed.

In the normal situation where a defendant is charged both with a greater

crime and with a lesser included offense, and where a guilty verdict with

regard to the greater crime will result in a merger, the proper method of

9

Frye “argu[ed] that Newton v. State [280 Md. 260 (1977)], . . . required merger of

the underlying felony into the murder conviction.” Frye, 283 Md. at 718. Jones “argu[ed],

among other things, that under Newton v. State, . . . the kidnapping and murder convictions

merged.” Id. at 720. In both cases, we exercised our discretionary authority to consider

these issues despite the defendant’s failure to raise the issue at trial. Id. at 718, 720.

15

instructing the jurors is to advise them that if the verdict on the count

charging the greater crime is guilty, then they should not consider the count

charging the lesser crime. However, the [Appellate Court of Maryland] in

Frye suggested a somewhat different type of instruction. It said that the trial

judge should instruct the jury to indicate whether the basis for a murder

verdict is felony murder or is wilful, deliberate and premeditated murder, but

that the judge should tell the jury to render a verdict on the felony count in

any event. Then, if the basis of the murder verdict is felony murder,

the . . . trial judge should not impose a sentence on the felony count. Because

of the peculiar nature of the problem presented in cases like Frye and Jones,

where one basis for a guilty verdict on the murder count will preclude a

sentence on the felony count, but another basis for a guilty verdict on the

same murder will not have this effect, we agree with the type of

instruction suggested by the [Appellate Court of Maryland].

The [Appellate Court of Maryland] in Frye, because of the ambiguity in the

jury’s verdict due to the absence of adequate instructions, “resolve(d) the

doubt in favor of the appellant, and . . . vacate(d) the judgments entered on

the robbery with a deadly weapon and the related handgun charge.”[10] 37

Md. App. at 480[.] Although we agree with this result in Frye because of an

unusual aspect of the appeal in that case, we believe that the relief in Jones

should be somewhat different.

If there had been appropriate jury instructions in Jones, the jury might

have based its murder verdicts on a finding of wilful, deliberate and

premeditated homicide. It would have considered the underlying felony

charges and the associated handgun charges, and guilty verdicts on those

felony counts could properly have resulted in sentences. It was not in any

manner the State’s fault that such instructions were not given. Under these

circumstances, we believe that the State may, . . . elect to re-try Jones on the

10

In Frye’s case, this Court did not expressly state whether we relied on the rule of

lenity, principles of fundamental fairness, or something else to conclude that we must

“resolve the doubt in favor of” Frye by “vacat[ing] the judgments entered on the robbery

with a deadly weapon and . . . related handgun charge.” See Frye v. State, 37 Md. App.

476, 480 (1977), aff’d, 283 Md. 709 (1978). On appeal, the Supreme Court of Maryland’s

discussion was equally ambiguous. See Frye, 283 Md. at 722-25. However, as indicated

by Judge Moylan, where “a fact finder simply pronounces a verdict of guilty of first-degree

murder generally and does not render separate findings as to each possible theory of

guilt[,]” “by operation of the rule of lenity, the defendant gets the benefit of the doubt and

merger is required.” MOYLAN, supra, at § 5.6 (emphasis added).

16

murder, underlying felony and associated handgun charges.[11] . . . But

if . . . the State fails to elect a new trial in the Jones case, the judgments

on the three underlying felony and related handgun counts should be

vacated.

Frye, 283 Md. at 723-25 (bold and underlined emphasis added) (footnote omitted).

The takeaway from Frye is that if a defendant is convicted of first-degree murder,

and that conviction could be premised on either premeditation or the felony murder rule as

codified by CR § 2-201(a)(4), but the record provides no means to determine how the jury

reached its verdict, then we will resolve the ambiguity in favor of the defendant by

assuming that the murder conviction arose from a theory of felony murder (and not a

finding that the killing was premeditated). See id. at 723-25. However, nothing in Frye

bars concurrent convictions (and sentences) for first-degree murder under CR § 2-

201(a)(1)-(3) and a predicate felony listed under subsection (a)(4) if the record is clear that

a theory of felony murder is not required to support the verdict of murder in the first degree.

See id. 724-25; see also MOYLAN, supra, at § 5.6.

Our decision in Burroughs is in accord with these principles. One of the appellants

in that case, Chris Lamont Burroughs, was convicted of “murder aggravated to the first

11

The Frye Court explained why Frye and Jones were entitled to differing relief as

follows:

[T]he State may not . . . elect[] [to re-try Frye] in the Frye case because the

defendant Frye, unlike Jones, did not take an appeal from the murder

conviction. For the State to try him again for murder would violate the

prohibition against double jeopardy.

Frye, 283 Md. at 725 (citations omitted).

17

degree by virtue of a premeditated intent to kill” and “of the same murder alternatively

aggravated to the first degree by virtue of its having been committed during the attempted

perpetration of an enumerated felony[.]” Burroughs, 88 Md. App. at 232-33 (emphasis

added). Burroughs received two sentences of life in prison—one for each theory of murder.

See id. at 246-47. He was also convicted of two counts of attempted armed robbery, and

of use of a handgun in the perpetration of a crime of violence. Id. at 232-33.

On direct appeal to this Court, Burroughs and the State agreed that he “should not

have received two sentences of life imprisonment for one murder” and that “the cure for

this multiple sentence [issue was] the solution of merger.” Id. at 246-47. We agreed that

Burroughs should not have received two sentences for the same killing; however, Judge

Moylan, writing for the Court, explained that merger was not the proper cure:

This is simply not a problem calling for merger. Merger is a phenomenon

that involves two or more convictions for two or more separate, albeit related,

crimes. A conviction for a lesser included offense, for instance, is sometimes

subsumed into a conviction for a greater, inclusive offense.

That is not the situation here. Burroughs only killed one person, James

“Boo” Carter. Having killed only one person, Burroughs committed only

one murder. That murder, to be sure, may be found to have been an

aggravated one for punishment purposes. There are various ways in which

murder can be aggravated upward to the first degree. The modes of

aggravation, moreover, are not mutually exclusive. When a jury finds that

more than one theory of aggravation has been established, that is

nothing more than an insight into the jury’s decisional process for

determining the appropriate level of blameworthiness and does not

double the number of convictions. In homicide cases, the units of

prosecution are dead bodies, not theories of aggravation.

Burroughs did not murder James “Boo” Carter twice and there are not,

therefore, two convictions capable of merging into each other. It is rather the

case that a second sentence for a single crime is redundant.

18

Id. at 247 (emphasis added). Accordingly, we “vacated as redundant” Burroughs’ second

sentence of life imprisonment. Id. (emphasis removed). We did not vacate any of

Burroughs’s convictions for armed robbery or use of a handgun in the perpetration of a

crime of violence. See id.

The Wagner case is to like effect. In that case, Russel Wagner was convicted of

“two counts of first[-]degree premeditated murder, two counts of first[-]degree felony

murder, and one count of burglary.” Wagner, 160 Md. App. at 536. He was sentenced:

to three consecutive sentences of life imprisonment: one for the premeditated

murder of Daniel Davis, one for the premeditated murder of Wilda Davis,

and one for the felony murder of Wilda Davis. The trial court further

imposed a concurrent sentence of life imprisonment for the felony murder of

Daniel Davis and a concurrent sentence of twenty years imprisonment for

burglary.

Id. at 536 n.1. Among other things, Wagner presented the following question for our

review on direct appeal:

Did the trial court err in imposing a life sentence for Appellant’s conviction

of first[-]degree felony murder of Wilda Davis given that Appellant was also

sentenced to a life sentence for the premeditated murder of Wilda Davis?

Id. at 537 (emphasis removed). The State “concede[d] that the trial court erred in imposing

a life sentence for both the first[-]degree felony murder and the first[-]degree premeditated

murder of Wilda Davis” and “[w]e agree[d].” Id. at 566. Importantly, Chief Judge Joseph

Murphy, writing for the Court, instructed:

We must . . . vacate the sentences imposed on both felony murder

convictions. We shall not, however, vacate the sentence imposed on the

[underlying] burglary conviction.

Id. (emphasis added). In a footnote, we explained:

19

Although we shall vacate appellant’s sentences for the felony murder

convictions, we do so only because upholding two first[-]degree murder

convictions for the killing of the same victim(s) is redundant. Burroughs

v. State, 88 Md. App. 229, 247[] (1991).

Id. at 559 n.21 (bold emphasis added).

Having summarized the law applicable to the issue raised in this appeal, we turn to

address the parties’ arguments.

C. Parties’ Contentions

Appellant’s arguments in support of his claim that the circuit court erred in denying

his motion to correct illegal sentence are “threefold”:

(1) The Honorable Marjorie L. Clagett, over trial counsel’s objection, did

not merge the underlying felony of burglary into the felony murder

conviction, (2) The Appellate Court [of Maryland] did not apply the Rule

of Lenity in determining which of the murder convictions should be

vacated, and (3) The Honorable Marjorie L. Clagett should have

corrected the potential illegal sentence and merged the burglary into the

felony murder conviction.

Appellant correctly distinguishes the facts of his case from State v. Frye, 283 Md.

709 (1978), by noting that, in Frye, it was “uncertain” whether the defendants had been

convicted of felony murder, whereas here, Appellant “was definitely convicted of felony

murder[.]” From here, Appellant appears to argue that the sentence he received pursuant

to his burglary conviction constitutes an illegal sentence because, under two alternative

theories of how the rule of lenity should have been applied to his case, his burglary

conviction should have merged with his felony murder conviction. First, he asserts that,

by operation of the rule, the “burglary should have merged into the conviction for felony

murder, which was later vacated, thus resulting in the burglary conviction being vacated as

20

well[.]” Alternatively, he asserts that the rule “dictate[s] that the first[-]degree

premeditated murder conviction, not the felony murder, should have been . . . vacated[.]”

Under this latter scenario, Appellant’s burglary conviction would merge with the felony

murder conviction. See Newton, 280 Md. at 268-69; Johnson, 442 Md. at 214, 221.

The State counters that Appellant’s sentence for burglary is not illegal because,

under the required evidence test, the “crimes of first-degree murder and first-degree

burglary do not merge for sentencing purposes[.]” (Citation omitted). The State concedes

that Appellant “should never have been convicted of felony murder” since the jury had

already “determined that he killed the victim with premeditation”; however, the State

explains that this Court “corrected that error on direct appeal” when we vacated his

sentence for first-degree felony murder. See Hamrick v. State, No. 1106, Sept. Term, 2001,

slip op. at 17 (Md. App. Ct. filed August 14, 2002).

The State agrees that the instant case is distinguished from Frye. But the State urges

that the more critical distinction from Frye is the fact that “[t]he jury unequivocally

convicted Hamrick of premeditated murder, separate from its convictions for felony

murder and the underlying felony.” Citing to Newton v. State, 280 Md. 260 (1977), the

State asserts that murder and felony offenses do “not merge” where a “murder conviction

is premised upon independent proof of wil[lfulness], premeditation and deliberation”

because “[e]ach offense . . . require[s] proof of facts which the other did not,” and therefore

“convictions on both would be proper.” (quoting Newton, 280 Md. at 269).

21

D. Analysis

We will affirm the decision of the circuit court because Appellant’s sentences for

first-degree murder and first-degree burglary, as they exist today, are legal.

As we previously recognized in Hamrick v. State, No. 1106, Sept. Term, 2001, slip

op. at 17 (Md. App. Ct. filed August 14, 2002), Appellant should never have received a

sentence for both first-degree premeditated murder and first-degree felony murder.

Hamrick, slip op. at 16-17 (citing Burroughs, 88 Md. App. at 247). That is why, although

Appellant did not raise these issues in his direct appeal to this Court, we relied on

Burroughs to hold that Appellant’s “sentence for first[-]degree felony murder shall be

vacated.” Id. at 17. As a result, today Appellant is no longer burdened by a second (illegal)

sentence for the same murder.

Assigning error at various stages of his case, Appellant asserts that, following his

direct appeal, the sentencing judge should have merged his conviction for burglary with

his conviction for felony murder. He also claims that, on direct appeal to this Court, the

rule of lenity required this Court to dispose of his second (illegal) sentence for the same

murder in such a manner that his burglary conviction (and sentence)—which served as the

predicate for his felony murder conviction—would also disappear. Appellant is incorrect.

As previously discussed, where “there is a verdict of first-degree murder

on . . . both” theories of premeditated and felony murder, “no merger of a conviction of the

underlying felony” is required and “the alternative theory of felony-murder [is]

superfluous, to wit, not required to support the verdict of murder in the first degree.”

MOYLAN, supra, at § 5.6; see also Wagner, 160 Md. App. at 559 n.21 (“Although we shall

22

vacate appellant’s sentences for the felony murder convictions, we do so only because

upholding two first[-]degree murder convictions for the killing of the same victim(s) is

redundant.” (citing Burroughs, 88 Md. App. at 247)). There is no impetus to ‘merge’

convictions for first-degree murder (predicated on premeditation) and first-degree murder

(predicated on felony murder) because, despite how a verdict sheet may be written, there

is only a single “verdict of murder in the first degree.” MOYLAN, supra, at § 5.6; see also

Richmond v. State, 326 Md. 257, 261 (1992) (“Whether a particular course of conduct

constitutes one or more violations of a single statutory offense depends upon the

appropriate unit of prosecution[.]” (citations omitted)); Burroughs, 88 Md. App. at 246-47

(stating, under the heading “On Counting Convictions[,]” that “[i]n homicide cases, the

units of prosecution are dead bodies, not theories of aggravation[,]” and that because

“Burroughs did not murder [the victim] twice . . . there are not, therefore, two convictions

capable of merging into each other” and “[i]t is rather the case that a second sentence for

a single crime is redundant” (italic emphasis added)).

This conclusion becomes more intuitive with the understanding that, when the

Maryland General Assembly divided murder into degrees in 1809, no new statutory offense

was created:

When by Ch. 138 of the Acts of 1809 the Legislature divided the crime of

murder as it was known at common law into first and second degrees and

attached penalties therefor, no new statutory offense was created. [Citations

omitted].

In Stansbury v. State, [218 Md. 255, 260 (1958)], Judge Henderson, who

delivered the opinion of the Court, stated:

23

‘We have held that the [predecessor to CL § 2-201 et seq.] do[es] not

create any new crime, but merely classif[ies] murder, as it was known

at common law, into degrees. [Citations omitted]. As used in the

statute, the ‘common law sense (of murder) is left unimpaired; the

measure of punishment only is ought to be graduated according to the

circumstances under which it was committed.’ [Citation omitted].

Gladden v. State, 273 Md. 383, 390 (1974). More recently, the Maryland Supreme Court

explained that:

Although murder is still a common law crime in Maryland, the General

Assembly has, by statute, separated it into degrees, with the express purpose

of mitigating punishment. See 1809 Md. Law, ch. CXXXVIII; Davis v.

State, 39 Md. 355, 375 (1874) (holding that “[t]he express object of the

statute in dividing the crime into degrees, was the mitigation of the

punishment in cases of the second degree”); Weighorst v. State, 7 Md. 442,

451 (1855) (noting that “[t]he act of the Assembly does not create a new

offence in distinguishing between murder of the first and second degrees.

The design was to discriminate in awarding the punishment”). CR 2-204

defines second-degree murder as “[m]urder that is not in the first-degree

under [CR] § 2-201.” CR § 2-204(a).

Since 1809, the murder statutes have remained relatively true to their original

drafting and enactment. Maryland Code (“Md. Code”) (1957, 2021 Repl.

Vol., 2021 Supp.), Criminal Law Article (“CR”) §§ 2-201, 2-204, maintain

the first- and second-degree distinction first codified in 1809. Accordingly,

first-degree murder is:

(a) A murder is in the first degree if it is:

(1) a deliberate, premeditated, and willful killing;

(2) committed by lying in wait;

(3) committed by poison; or

(4) committed in perpetration of or an attempt to perpetrate [an

enumerated felony].

CR § 2-201.

In essence, CR § 2-201(a)(1)–(4) describe the various mens rea (states of

mind) “and circumstantial modalities that will qualify murder as murder in

24

the first degree, [they] do not represent separate crimes but only establish

alternative ways of finding the requisite aggravation.” Jeffries v. State, 113

Md. App. 322, 335[] (1997) (citing Wood v. State, 191 Md. 658, 666-67[]

(1948)).

Garcia v. State, 480 Md. 467, 475-76 (2022) (first through sixth alterations in original)

(footnote omitted). 12

As instructed by the Frye Court, where “one basis for a guilty verdict on the murder

count will preclude a sentence on the felony count,” i.e., the basis of felony murder, “but

another basis . . . will not have this effect,” i.e., the basis of premeditated murder, then “the

trial judge should instruct the jury to indicate whether the basis for a murder verdict is

felony murder or . . . premeditated murder, but . . . the jury [should] render a verdict on the

felony count in any event.” Frye, 283 Md. at 724. If “appropriate” instructions are given,

and a verdict of first-degree murder is based on “premeditated homicide” rather than felony

murder, then “guilty verdicts” on any “felony counts” underlying the felony murder charge

12

See Newton, 280 Md. at 268 (“All murder not provided for in [the predecessor to

CL § 2-201 et seq.] is murder in the second degree[.] These sections do not create any new

statutory crimes, but rather divide the crime of murder, as known at common law, into

degrees.” (citations omitted)). See also Huffington v. State, 302 Md. 184, 188 (1983) (“It

is true that historically, and for some purposes today, all murder is regarded as a single

crime.” (citing Newton, supra, at 268; and Gladden, 273 Md. at 389-90)); Jeffries v. State,

113 Md. App. 322, 335 (1997) (“[S]etting out various mentes reae and circumstantial

modalities that will qualify as murder in the first degree[] do not represent separate crimes

but only establish alternative ways of finding the requisite aggravation.” (emphasis added)

(citation omitted)); Evans v. State, 28 Md. App. 640, 683 (1975) (stating that “Chapter 138

of the Acts of 1809, which for the first time separated murder in Maryland into degrees[,]”

did “not create a new crime but simply divided murder into two degrees for punishment

purposes, leaving the common law definition of murder undisturbed” (citation omitted)),

aff’d, 278 Md. 197 (1976), superseded by statute on other grounds, 1984 Md. Laws, ch.

501 (SB 645), as recognized in Bazzle v. State, 426 Md. 541, 551 & n.3 (2012); MOYLAN,

supra, at § 2.14 (collecting cases).

25

may “properly . . . result[] in sentences.” Id. Indeed, the Frye Court noted that, in Newton,

the “reason . . . the underlying felony merged into the murder was” “because the trier of

facts [b]ased the verdict on felony murder instead of . . . premeditated murder[.]” Id. at

722 (construing Newton v. State, 280 Md. 260 (1977)).

Moreover, in contrast to felony murder, the theory of premeditated murder required

each juror to find that Appellant “possess[ed] the intent to kill (willful), that the [Appellant]

ha[d] conscious knowledge of that intent (deliberate), and that there [was] time enough for

[Appellant] to deliberate, i.e., time enough to have thought about that intent (premeditate).”

Garcia v. State, 253 Md. App. 50, 59 (2021) (first, third, and fourth alterations in original)

(quoting Morris v. State, 192 Md. App. 1, 31 (2010)), aff’d, 480 Md. 467 (2022). By

comparison, “a conviction for felony murder requires no specific intent to kill[.]” Bruce v.

State, 317 Md. 642, 646 (1989). A specific intent to kill, coupled with a finding that a

killing was “deliberate, premeditated, and willful[,]” CR § 2-201(a)(1), represents a more

culpable mens rea than that which is required to establish felony murder. See Brooks v.

State, 104 Md. App. 203, 224-25 (1995) (comparing the mens rea required for felony

murder and premeditated murder), abrogated on other grounds by Winters v. State, 434

Md. 527 (2013). 13 Therefore, even if the rule of lenity could apply to this case, application

13

As noted above, to convict a person of the crime of premeditated murder requires

a specific intent to kill, coupled with a finding that a killing was “deliberate, premeditated,

and willful[,]” CR § 2-201(a)(1). The crime of felony murder does not require the jury to

find this mens rea. Indeed, in Brooks v. State, 104 Md. App. 203 (1995), abrogated on

other grounds by Winters v. State, 434 Md. 527 (2013), a case decided at a time when, in

Maryland, “a defendant convicted of felony murder [could] be sentenced to death without

(Footnote continued)

26

of the rule would result in the retention of Appellant’s sentence for premeditated murder

rather than felony murder. Jones v. State, 357 Md. 141, 167 (1999) (indicating that where

the rule of lenity applies to two offenses with identical maximum penalties, the sentence

for the “more serious offense” should survive).

any specific finding regarding the mens rea that accompanied the killing[,]” id. at 217, this

Court acknowledged that:

[T]he imposition of the death penalty for felony murder has been criticized,

in part, because the penalty may be imposed without proof of any particular

mens rea. In [State v.] Middlebrooks, 840 S.W. 2d 317[ (1992)], the Supreme

Court of Tennessee observed:

A simple felony murder unaccompanied by any other aggravating

factor is not worse than a simple, premeditated, and deliberate murder.

If anything, the latter, which by definition involves a killing in cold

blood, involves more culpability.

Id. at 345. In his thoughtful article on felony murder and the Eighth

Amendment, Professor [Richard A.] Rosen explained:

[T]he felony murder rule thrusts an entire undifferentiated mass of

defendants into the category of the supposedly worst murderers

eligible for the death penalty. Some of these defendants indeed may

be among the most culpable offenders—for example, the cold-

blooded executioner of a store clerk during a robbery—but many are

not. The rule makes no distinctions.

The felony murder rule disregards the normal rules of criminal

culpability and provides homicide liability equally for both the

deliberate rapist/killer and the robber whose victim dies of a heart

attack[.]

[Richard A. Rosen, Felony Murder and the Eighth Amendment

Jurisprudence of Death, 31 B.C.L. Rev. 1103, 1115 (1990)] (footnotes

omitted.

Id. at 224-25 (fifth alteration in original).

27

The jury, in this case, was instructed on both first-degree premeditated murder and

first-degree felony murder, Hamrick, slip op. at 14, and Appellant was convicted of both,

id. at 1. The jury also found Appellant guilty of first-degree burglary. This case is therefore

distinguished from Frye, where there was “no foundation” in the record to determine

whether Frye’s conviction for first-degree murder was based on felony murder or on

willful, deliberate and premeditated murder. 283 Md. at 720. Accordingly, our

predecessors correctly found that Appellant’s sentence on the felony-murder conviction

was redundant, and properly vacated that sentence without vacating Appellant’s conviction

(or sentence) for first-degree burglary. Hamrick, slip op. at 17; see also Wagner, 160 Md.

App. at 559 n.21; Burroughs, 88 Md. App. at 247. It follows that the circuit court correctly

denied Appellant’s Motion to Correct Illegal Sentence.

Appellant urges that, “[a]pplying the [r]ule of [l]enity, the burglary should have

merged into the conviction for felony murder, which was later vacated, thus resulting in

the burglary conviction being vacated as well[.]” As previously noted, the rule of lenity is

normally a “standard for determining merger for sentencing purposes.” Johnson, 442 Md.

at 218 (emphasis added) (citation omitted). And, as we have explained, because

premeditated murder under CR § 2-201(a)(1) and felony murder aggravated to the first

degree under subsection (a)(4) constitute only a single offense of first-degree murder

(assuming each is based on the same killing), they are “not . . . two convictions capable of

merging into each other.” Burroughs, 88 Md. App. at 247. We glean from our decisional

law, however, that in the narrow context of “redundant” sentences, the rule of lenity may

also apply when the court is “unable to state which of the permissible inferences the jury

28

drew in arriving at its verdict[.]” Frye, 283 Md. at 719 (quoting Frye, 37 Md. App. at 480).

In other words, as Judge Moylan explains, the rule of lenity applies where “a fact finder

simply pronounces a verdict of guilty of first-degree murder generally and does not render

separate findings as to each possible theory of guilt.” MOYLAN, supra, at § 5.6. The rule

of lenity does not apply in this case because the jury was instructed on first-degree

premeditated murder and first-degree burglary, and found that the evidence against

Appellant satisfied the essential elements of each crime.

In sum, on direct appeal to this Court, we appropriately recognized that Appellant

should never have “received a sentence for both first[-]degree premeditated murder and

first[-]degree felony murder” and, therefore, we vacated his “sentence for first[-]degree

felony murder[.]” Hamrick, slip op. at 17. It was not necessary then or today to merge

Appellant’s first-degree burglary conviction into his conviction for first-degree murder

under the required evidence test because Appellant’s burglary conviction is not a lesser-

included offense of the first-degree murder conviction. See, e.g., Newton, 280 Md. at 269

(“If . . . the murder conviction is premised upon independent proof of wil[lfulness],

premeditation and deliberation” rather than felony murder, then the murder and felony

“offense[s]” would “[e]ach . . . require proof of facts which the other did not, and

convictions on both would be proper” (citation omitted)).

The rule of lenity did not require this Court, on direct appeal, to vacate Appellant’s

premeditated murder sentence instead of his redundant felony murder sentence. The rule

of lenity is a tool used to merge offenses in appropriate circumstances and, in Appellant’s

case, there were not “two convictions capable of merging into each other.” Burroughs, 88

29

Md. App. at 247. Moreover, because the jury found that Appellant had a specific intent to

kill that is deliberate, premeditated, and willful—a more culpable mens rea than that

required to establish felony murder, 14 the sentence imposed for Appellant’s first-degree

murder conviction is appropriately based on premeditated murder. Cf. Jones, 357 Md. at

167 (rule of lenity preserves “more serious offense” where two offenses have identical

maximum penalties).

For the above reasons, we hold that Appellant’s sentence pursuant to his burglary

conviction is not an illegal sentence under Maryland Rule 4-345(a) and, accordingly, we

affirm the decision of the circuit court.

JUDGMENT OF THE CIRCUIT

COURT FOR CALVERT COUNTY

AFFIRMED; COSTS TO BE PAID BY

APPELLANT.

14

See supra n.13.

30