* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Opinion by GRAEFF, J.
A jury in the Circuit Court for Prince George's County convicted Ernest Dangelo Cleveland, appellant, of the following crimes: first and second-degree assault; first, third, and fourth-degree burglary; conspiracy to commit burglary; conspiracy to commit armed robbery; possession of a firearm by a disqualified person; and use of a firearm in a crime of violence. The court imposed a sentence of 25 years for the first-degree assault conviction, all but ten years suspended. For the other convictions, the court imposed concurrent sentences or merged the convictions for sentencing purposes.
On appeal, appellant presents the following questions for our review, which we have reordered and rephrased slightly, as follows:
For the reasons set forth below, we answer questions 1 and 2 in the negative and question 3 in the affirmative. Accordingly, we vacate the court's sentence on first-degree assault and remand the case to the court for resentencing in accordance with this opinion. We otherwise affirm the judgments of the circuit court.
FACTUAL AND PROCEDUREL BACKGROUND
This case arises from a robbery that occurred at the home of Ebony Boston on April 5, 2014. That evening, Ms. Boston answered a knock at her door. A man, later identified as appellant, pointed a shotgun at her and told her to get on the ground. Appellant and five or six other individuals then entered the apartment and began searching it. The individuals left a short time later with $200 and Ms. Boston's flat-screen television.
On the second day of appellant's trial, near the close of the State's case, appellant asked to address the court:
At this point, the trial resumed, the State finished presenting its case, the court ruled on defense counsel's motion for judgment of acquittal, instructed the jury, and the parties gave closing arguments. As indicated, appellant ultimately was found guilty of multiple offenses. This appeal followed.
Appellant first argues that the trial court abused its discretion in denying his motion to discharge defense counsel. The State contends that the court did not abuse its discretion "in refusing to allow [appellant] to fire his attorney with the trial nearly completed, and any claim of error was waived when [appellant] agreed he did not wish to proceed pro se."
"A defendant's request to dismiss appointed counsel implicates two rights that are fundamental to our system of criminal justice: the defendant's right to counsel, and the defendant's right to self-representation." State v. Brown, 342 Md. 404, 412-13 (1996). "When a defendant indicates a desire to dismiss counsel, the defendant must request permission to obtain substitute counsel or to proceed pro se." Id. at 413.
Generally, such requests are governed by Maryland Rule 4-215(e), which outlines the process the court must follow in the event that a defendant indicates a desire to dismiss counsel.
The trial court's broad discretion once trial has begun, however, is not limitless. Id. at 428. The Court of Appeals has suggested that a court consider the following factors when deciding whether to permit a mid-trial discharge of counsel:
Id. "In evaluating trial court decisions on motions to dismiss counsel during trial, we shall apply an abuse of discretion standard." Id. at 429.
Here, the trial court did not abuse its discretion in denying appellant's mid-trial request to discharge counsel. As soon as appellant indicated a desire to discharge counsel, the trial court allowed appellant the opportunity to explain his reasons for requesting a discharge. The court then indicated that appellant's reason for discharge, that defense counsel was not asking certain questions during cross-examination, was not meritorious. The court further noted that defense counsel was "doing an outstanding job," and it explained that the proceedings were "one witness away from finishing [the] case and doing instructions and argument," and if appellant did discharge counsel, he would have to conduct the rest of the trial, including closing argument, himself. When appellant responded that he did not want to do that, the court denied appellant's motion, again noting that defense counsel was doing "a fabulous job."
To be sure, as appellant points out, the court did not make specific on the record findings with respect to each factor. Appellant cites no case, however, indicating that the court must do so. See State v. Chaney, 375 Md. 168, 181 (2003) (judges are presumed to know the law and apply it properly); Jackson v. State, 340 Md. 705, 717 (1995) ("trial judges are not obliged to detail every step of their logic").
Under the circumstances of this case, we perceive no abuse of discretion by the circuit court in denying appellant's request to discharge counsel near the close of the State's case. Appellant states no claim for relief in this regard.
Appellant next argues that the trial court erred by imposing separate sentences for first-degree burglary and first-degree assault. He contends that, because both convictions "arose out of a single transaction and there is no indication by the General Assembly of an intent to punish a defendant separately for the offenses in such a situation," the convictions should have merged for sentencing purposes under the rule of lenity.
The State contends that "the court correctly imposed separate sentences for first-degree burglary and first-degree assault." It asserts that the rule of lenity does not apply here because the two crimes, burglary and assault, arose from two distinct acts. We agree with the State.
"The merger of convictions for purposes of sentencing derives from the protection against double jeopardy afforded by the Fifth Amendment of the federal Constitution and by Maryland common law." Brooks v. State, 439 Md. 698, 737 (2014). "Merger protects a convicted defendant from multiple punishments for the same offense." Id. "[T]he general rule for determining whether two criminal violations . . . should be deemed the same . . . is the so-called `same evidence' or `required evidence' test." Whack v. State, 288 Md. 137, 141 (1980), cert. denied, 450 U.S. 990 (1981). Under this test, two criminal violations are separate, and thus multiple punishments are permitted, when each violation "requires proof of an additional fact which the other does not." Id. at 142 (citations and quotations omitted). On the other hand, if one of the offenses contains all of the elements of the other offense, that is, if only one of the offenses has a distinct element, the two offenses are deemed to be the same under the required evidence test, and multiple punishments are prohibited. Id.
Here, appellant was convicted of first-degree assault pursuant to Md. Code (2012 Repl. Vol.) § 3-202(a)(2) of the Criminal Law Article ("CR"), which states that "[a] person may not commit an assault with a firearm." Appellant was convicted of first-degree burglary under CR § 6-202(a), which states that "[a] person may not break and enter the dwelling of another with the intent to commit theft." Clearly, as appellant concedes, the two offenses in question do not meet the required evidence test, as each contains an element that the other does not. See Williams v. State, 187 Md.App. 470, 479, cert. denied, 411 Md. 602 (2009).
Thus, we turn to appellant's argument that the convictions should merge under the "rule of lenity." "The `rule of lenity,' a rule of statutory construction, `provides that doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction will be resolved against turning a single transaction into multiple offenses.'" Pryor v. State, 195 Md.App. 311, 338 (2010) (citations and quotations omitted). In short, "[i]f we are uncertain as to what the Legislature intended . . . we give the defendant the benefit of the doubt." Id. (citations and quotations omitted).
Here, we are not persuaded that merger under the rule of lenity is warranted. The two offenses at issue, burglary and assault, did not arise out of the same act. Appellant committed burglary when he entered Ms. Boston's apartment with the intent of committing a theft. Appellant committed assault when he pointed a shotgun at Ms. Boston and ordered her to get on the ground. That both of these acts occurred during the same criminal episode is immaterial: "[S]eparate acts resulting in distinct harms may be charged and punished separately." Latray v. State, 221 Md.App. 544, 562 (2015). Accord State v. Boozer, 304 Md. 98, 105 (1985) ("[S]eparate acts resulting in separate insults to the person of the victim may be separately charged and punished even though they occur in very close proximity to each other and
Appellant's final contention is that the trial court erred in imposing a sentence of 25 years for first-degree assault. He asserts that the charge of first-degree assault was a lesser-included offense of the charge of robbery with a dangerous weapon, and therefore, if he had been convicted of robbery with a dangerous weapon, the conviction for first-degree assault would have merged for sentencing purposes, and the trial court would have been constrained by the 20-year maximum sentence for the robbery conviction. Although appellant was acquitted of the robbery charges, he asserts that this should not be "to his detriment," and therefore, the 20-year maximum sentence for robbery with a deadly weapon should have acted as a sentence cap. Accordingly, he asserts that his 25-year sentence should be vacated. The State agrees and so do we.
As noted, offenses that meet the required evidence test generally merge for sentencing purposes. In such instances, the offense with fewer elements (the "lesser offense") merges with the offense that has additional elements (the "greater offense"). See Gerald v. State, 299 Md. 138, 140-41 (1984).
Here, appellant was charged with armed robbery pursuant to CR § 3-403, which proscribes obtaining the property of another by force or threat of force using a dangerous weapon. Because the "force" used to sustain the armed robbery conviction was the assault on Ms. Boston, the charge of first-degree assault, "assault by firearm," was a lesser-included offense to the charge of armed robbery. See Williams, 187 Md. App. at 478. Accordingly, had appellant been convicted of armed robbery, his conviction for first-degree assault would have merged for sentencing purposes into the greater offense, and the court would have been constrained by the 20-year statutory maximum for armed robbery. See Gerald v. State, 137 Md.App. 295, 312, cert. denied, 364 Md. 462 (2001).
As indicated, however, appellant was acquitted of the charge of robbery with a dangerous weapon. Where a defendant is acquitted of the greater offense, it is "unfair to permit the State to exact a more severe and unanticipated penalty . . . than that which could have been imposed if the State had been wholly successful." Williams, 187 Md. App. at 476. Accordingly, as requested by the parties, we vacate appellant's sentence for first-degree assault and remand for resentencing, with instructions that appellant's sentence not exceed 20-years' imprisonment.