State v. Lancaster

McAULIFFE, Judge,

dissenting.

In my view, the two convictions in this case are for the “same offense” within the meaning of the Double Jeopardy Clause of the Fifth Amendment. The Fifth Amendment is satisfied, however, if either of the convictions is vacated, and *423 does not require that the conviction left standing be of the offense having the greatest number of elements. Under the circumstances of this case, I would vacate the judgment of conviction of fourth degree sexual offense, and affirm the judgment for the more serious offense of committing an unnatural or perverted sexual practice.

I.

In order not to be considered the same offense for double jeopardy purposes, each offense much require proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). Although the fourth degree sexual offense (§ 464C offense) contains at least one element that the unnatural and perverted sexual offense (§ 554 offense) does not, the converse is not true. Under the facts of this case, nothing more was needed to prove a § 554 offense than was required to prove a § 464C offense.

As the majority points out, when applying the Blockburger test to offenses having alternative elements, a court must examine the alternative elements relevant to the case at issue. In his dissent, Judge Chasanow concludes that a § 554 offense could require proof of a fact not required to establish a § 464C offense (penetration of the mouth by a sexual organ), and therefore the Blockburger test is satisfied and the two offenses are not the same. I do not agree with that analysis. The inquiry should be case specific, rather than based on theoretical scenarios. In the instant case, the single fact relied on by the State to establish both offenses was that the defendant took the penis of the complainant into his mouth. Judge Chasanow contends that a non-penetrating contact between the complainant’s penis and the defendant’s mouth would have satisfied the “fellatio” element of § 464C, but not the oral sex element of § 554. Assuming the accuracy of that statement, it is of no consequence here, because it is to the facts required to prove the § 464C violation in this case that we look, and not to what might occur in some other case.

In Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977), the defendant challenged, on double *424 jeopardy grounds, a conviction of robbery with firearms following a conviction of felony murder. He argued that the predicate felony relied on by the State to establish felony murder was the same robbery with firearms for which he was subsequently convicted. Although it is perfectly obvious that the felony element of felony murder may be established by proof of any number of violent felonies, and thus successive prosecutions for felony murder and for robbery with firearms would not offend the Double Jeopardy Clause if the underlying felony relied on to establish the felony murder were anything other than robbery with firearms, those were not the facts of the Hams case. Focusing on the particular facts of that ease, and the facts relied on by the State to prove the felony murder, the Supreme Court held that a successive prosecution for robbery with firearms was barred. To the same effect, see Newton v. State, 280 Md. 260, 265-68 , 373 A.2d 262 (1977).

II.

Multiple punishments may be permitted for offenses that are the same within the meaning of the Double Jeopardy Clause, but only when the legislature specifically intends that result.

The Blockburger rule does not provide the final answer in cases involving, multiple punishment because, when specifically authorized by the legislature, cumulative sentences for the same offense may under some circumstances be imposed after a single trial. Missouri v. Hunter, 459 U.S. 359, 368-69 , 103 S.Ct. 673, 679-80 , 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 343-44 , 101 S.Ct. 1137, 1144-45 , 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980). Accordingly, when dealing with the question of multiple punishments imposed after a single trial, and based on the same conduct, a critical question is one of legislative intent. The Block-burger test is helpful in such cases as an aid in determining legislative intent, but is not dispositive.

Randall Book Corp. v. State, 316 Md. 315, 323-24 , 558 A.2d 715 (1989). I find no indication that the legislature intended *425 to permit multiple punishments when the same conduct resulted in violations of § 464C and § 554. Accordingly, I agree with the majority that one of the convictions must be vacated.

III.

I do not agree that the proper remedy in this case is to vacate the § 554 conviction and the accompanying sentence of 10 years imprisonment 1 and a fíne of $1,000, and to leave standing the § 464C conviction and its sentence of one year imprisonment (suspended) and a fine of $1,000. The Double Jeopardy Clause is fully satisfied if one of the convictions is vacated and the defendant is given a sentence no greater than was intended by the legislature. As Justice Kennedy pointed out for the Supreme Court, “neither the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls.” Jones v. Thomas, 491 U.S. 376, 387 , 109 S.Ct. 2522 , 105 L.Ed.2d 322 (1989). Unless the legislature intended that § 464C entirely supplant § 554 when the described age differential was present, 2 a result not suggested by the majority nor supported by the facts, the penalty imposed for the violation of § 554 is entirely proper. Vacating the conviction for § 464C and allowing the more serious conviction and sentence to stand would provide complete relief from the violation of the Double Jeopardy Clause, be fair, and be logical.

. Five years of the prison term were suspended in favor of five years probation.

. See State v. Gibson, 254 Md. 399, 401 , 254 A.2d 691 (1969) (by creating offense of manslaughter by automobile, legislature intended to encompass entire field of unintentional criminal homicides resulting from the operation of a motor vehicle).