Griffin v. State

769 A.2d 259, 137 Md. App. 575, 2001 Md. App. LEXIS 61
Court of Special Appeals of Maryland·Decided March 29, 2001·No. No. 1964·Published·Cited by 1 cases

Opinion

KRAUSER, Judge.

Appellant, John Henry Griffin, Jr., was convicted by a jury in the Circuit Court for Baltimore City of two counts of first degree assault and two counts of possession of a firearm by a felon. He was subsequently sentenced to a term of ten years’ imprisonment on each of the assault counts and to a term of five years’ imprisonment on each of the possession counts; all sentences were to run concurrently.

The only issue before us is whether the trial court erred in sentencing appellant on two counts of possession of a firearm based on a single instance of possession.1

[577] FACTS

After learning that appellant, a convicted felon,2 had purchased a .22 caliber rifle in violation of Maryland Code Ann. (1957, 1996 RepLVol., 1998 Supp.), Article 27, § 291A, Detective William Ryan of the Baltimore County Police Department obtained an arrest warrant for appellant and a search and seizure warrant for his home in Baltimore City. The search warrant specifically permitted the police to make a “no knock” entry.

On September 28, 1998, a team of Baltimore City and Baltimore County police officers executed the warrant. Using a battering ram, Detective Christopher Cooper “breached the front door.” Detective Cooper and Detective Michael Hennlein entered first, followed by other officers. Upon entering, they began yelling, “Police, Search Warrant.” As they approached a closed bedroom door, they heard a noise that sounded like a rifle shot. As Detective Hennlein again yelled, “Police, Search Warrant,” Detective Cooper kicked in the bedroom door. Detective Cooper stepped back and as Detective Hennlein started to enter the room, two shots were fired. In the bedroom, appellant was standing naked with a rifle pointed in the officers’ direction. Ducking around a corner, the officers drew their weapons. They then entered the room and demanded that appellant put down his weapon, which he did.

Appellant testified at trial that he did not hear anyone say “police” until after he had fired two shots. He stated that his [578] wife woke him when she heard people coming up the stairs. He grabbed the rifle and when he heard someone “messing with the doorknob,” he fired two shots to “scare” them off. When he realized it was the police, he put down his weapon.

Appellant was subsequently charged in Criminal Information 598322034 with the attempted murder of Detective Michael Hennlein; first degree assault on Hennlein; and unlawful possession of a firearm by a felon, and in Criminal Information 598322035 with the attempted murder of Detective Christopher Cooper; first degree assault on Cooper; and unlawful possession of a firearm by a felon. These two cases were then consolidated for trial. After a jury trial in the Circuit Court for Baltimore City, appellant was found not guilty of both counts of attempted murder but guilty of both counts of assault and, more relevant to our analysis, both counts of possession of a firearm by a felon.

On September 10, 1999, after sentencing appellant on the convictions for assault, the trial court stated that “[f]or Count V of 598322035 and 598322034 the Possession of a firearm by a convicted felon, I am sentencing you to five years, the statutory maximum.” Notwithstanding the ambiguity of this statement, the docket entry from that proceeding indicates that the court sentenced appellant to a term of five years’ imprisonment on both counts of possession, to run concurrently.

DISCUSSION

Before addressing the merits of appellant’s claim, we are asked by the State to consider first whether it has been preserved for appellate review. Although, as noted by the State, appellant did not object at sentencing to the imposition of concurrent sentences for possession of a firearm by a felon [or to the submission of both counts of possession to the jury], this Court may review allegedly illegal sentences regardless of whether such an objection was ever made. Jordan v. State, 323 Md. 151, 591 A.2d 875 (1991); Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985).

As the Court of Appeals stated in Jordan v. State:

[579] “[W]hen the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a) ... provides that ‘[t]he court may correct an illegal sentence at any time.’ Thus, a defendant who fails to object to the imposition of the illegal sentence does not waive forever his right to challenge that sentence.”

Jordan, 323 Md. at 161, 591 A.2d 875 (quoting Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985)).

Appellant was convicted of possession of a firearm by a felon under Maryland Code Ann. (1957, 1996 RepLVol., 1998 Supp.), Article 27, § 291A. That statute provides:

(a) Definition.—In this section “firearm” includes:
(1) Handgun, antique firearm, rifle, shotgun, short-barreled shotgun, and short-barreled rifle, as those are defined in § 36F of this article;
(2) Machine gun, as defined in § 372 of this article; and
(3) Regulated firearm, as defined in § 441 of this article.
(b) Prohibited acts.—a person may not possess, own, carry, or transport a firearm if the person has been convicted of:
(1) A felony under this subheading;
(2) An offense under the laws of the United States, another state, or the District of Columbia that would be a felony under this subheading if committed in this State; or
(3) Conspiracy or attempt to commit any of the offenses listed in paragraphs (1) and (2) of this subsection.
(c) Penalty.—A person who violates this section is guilty of a felony and shall, on conviction, be fined not more than $10,000 or imprisoned for not more than 5 years or both. (1991, ch. 613; 1997, ch. 14, § 1.)

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Griffin v. State, 769 A.2d 259, 137 Md. App. 575, 2001 Md. App. LEXIS 61 (Md. Ct. App. 2001).

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