             REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND

               No. 1387

        September Term, 2014


        OCTAVIUS SAVAGE

                   v.

      STATE OF MARYLAND



  Kehoe,
  Leahy,
  Raker, Irma S.
     (Retired, specially assigned),

                  JJ.


         Opinion by Raker, J.


   Filed: December 15, 2015
       Octavius Savage was convicted in the Circuit Court for Baltimore City on April 10,

2008, of conspiracy to commit murder in case number 106166006, and second degree murder

in case number 106166004. In 2011, on direct appeal, this Court affirmed his convictions.

This appeal involves appellant’s third motion to correct an illegal sentence. He presents the

following question for our review:

              “Did the lower court abuse its discretion by imposing an Illegal
              sentence when it sentenced Petitioner to life for conspiracy to
              commit first degree murder?”

After reviewing appellant’s brief, we re-framed appellant’s question as follows:

              “Is a conviction for conspiracy to commit murder a legally
              inconsistent verdict with a conviction of second degree murder,
              following an acquittal of first degree murder, and if the answer
              is in the affirmative what effect does such verdict have, if any,
              on appellant’s sentence of life imprisonment?”

       We shall hold that the court did not err nor abuse its discretion in imposing a sentence

of life imprisonment for the conviction of conspiracy to commit murder. We shall hold that

a conviction for conspiracy to commit murder is not legally inconsistent with the conviction

for second degree murder and acquittal of first degree murder.



                                              I.

       Appellant was charged in several separate indictments, charging felony murder of

Donald Russell, murder of Donald Russell, and conspiracy with Tiffany Brown to murder

Donald Russell, and to commit robbery, assault, and theft of a vehicle, currency and drugs.

The indictments were consolidated for trial. The only judgments before this Court in this
appeal are the convictions for second degree murder and conspiracy to commit murder. The

State used the statutory short form for the murder indictment.1 Md. Code Ann., Crim. Law

§§ 2-201, -204, -207, -208 (2012 Repl. Vol.).2

       At sentencing, the court addressed the conspiracy conviction and the murder

conviction, noting:

                 “[That appellant] was convicted in count one of 10616606,
                 conspiracy to murder, which has to be conspiracy first-
                 degree—there’s no such thing as conspiracy second-degree— .
                 . . .”

The court sentenced appellant to a term of incarceration of thirty years on the second degree

murder conviction, and a term of life imprisonment on the conspiracy to commit murder

conviction. The maximum statutory penalty for second degree murder is thirty years. § 2-

204(b). The penalty for first degree murder is life imprisonment. § 2-201(b). The statutory

penalty for conspiracy “may not exceed the maximum punishment for the crime that the

person conspired to commit.” § 1-202.

       Although not contained in this record, it is clear that appellant’s two prior motions to

correct an illegal sentence were denied. He tries again.



       1
        “(a) Contents. — 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.’.”
Md. Code, Crim. Law § 2-208.
       2
           All subsequent statutory references herein shall be to the Criminal Law Article.

                                               -2-
-3-
                                              II.

       Inasmuch as appellant is self-represented, we will read his brief liberally. He presents

several arguments. First, he argues that the underlying crime of the conspiracy to commit

murder is second degree murder. Appellant posits that the trial judge had the discretion to

merge for sentencing purposes the conspiracy conviction, and failed to do so. Second,

appellant argues that the trial judge “abused his discretion” in finding that the conspiracy was

to commit first degree murder because the jury acquitted him of first degree and only

convicted him of second degree murder. He recognizes that, in Maryland, there is no crime

of conspiracy to commit second degree murder. See Mitchell v. State, 363 Md. 130, 767

A.2d 844 (2001). He concludes as follows:

              “This sentence should not have been imposed. The trial court
              abused it’s discretion, sentencing the Petitioner in violation of
              the Maryland Declaration of Rights to life for conspiracy to
              commit murder when the underlying crime of second degree
              murder carries a maximum penalty of 30 years imprisonment.”

       The State maintains that appellant’s sentence was not illegal. First, the State suggests,

albeit only in a footnote, that we should not consider this appeal as it does not fall within

those properly appealable sentences under Maryland Rule 4-345(a),3 because it is not

“inherently illegal.” On the merits, the State argues that the trial court was correct in

concluding that appellant was convicted of conspiracy to commit first degree murder; that


       3
         Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any
time.” Inasmuch as appellant claims that this sentence is legally inconsistent, we will find
that his appeal is cognizable.

                                              -4-
the maximum penalty for the underlying offense was life imprisonment; and that the flagship

count in the indictment was first degree murder.

       On our own initiative, we address whether a conviction for conspiracy to commit

murder in light of a conviction for second degree murder is a legally inconsistent verdict. If

it is so, it is invalid and cannot stand. We issued an Order requesting the State to address the

question of whether the two convictions were inconsistent. The State responded that

appellant did not preserve or otherwise waived an inconsistent verdict argument, that such

an argument is not cognizable as an illegal sentence claim as an inconsistent verdict has

nothing to do with sentencing, and is otherwise without merit because the verdicts were not

inconsistent.



                                              III.

       Appellant, charged in the statutory short form indictment, stood charged with the

crimes of first degree murder, second degree murder and manslaughter. He noted no

exception or objection to the form of the indictment. Hence, the State is correct that the

flagship count was first degree murder. The State and appellant agree that there is no crime

in Maryland of conspiracy to commit second degree murder. Thus, appellant was charged

with conspiracy to commit first degree murder and convicted of that charge, the only valid

conspiracy charge before the jury.

       The trial court did not err in concluding that appellant was convicted of conspiracy

                                              -5-
to commit first degree murder. And the trial court did not err nor abuse its discretion in

failing to merge the two convictions for sentencing purposes. Each of those crimes are

separate ones, with separate elements, and they do not merge. Bishop v. State, 218 Md. App.

472, 508, 98 A.3d 317, 338 (2014) cert. denied, 441 Md. 218, 107 A.3d 1141 (2015)

(sentence for conspiracy does not merge with murder sentence). Although the trial judge

sentenced appellant to terms of incarceration beyond the suggested sentencing guidelines,

the trial court properly exercised its discretion in so doing. We have not been directed to any

improper consideration by the trial court, other than appellant’s argument that the convictions

should have been merged.

       We turn now to the question of whether the two convictions are legally inconsistent.

We hold that they are not.

       Maryland has long held that legally inconsistent verdicts of guilt cannot stand. In

Price v. State, 405 Md. 10, 949 A.2d 619 (2008), the Court of Appeals stated as follows:

              “Even with regard to inconsistent jury verdicts in criminal cases,
              Maryland cases have from time to time narrowed the area of
              toleration. Thus, inconsistent jury verdicts of guilty have long
              been held to be invalid. See, e.g., Shell v. State, supra, 307 Md.
              at 55, 512 A.2d at 362 (‘[N]ot all inconsistent verdicts are
              permitted to stand . . . [, such as] “inconsistent verdicts of guilty
              under different counts of the same indictment,” ’ quoting
              Johnson v. State, supra, 238 Md. at 541, 209 A.2d at 771); Mack
              v. State, supra, 300 Md. at 601, 479 A.2d at 1353 (Inconsistent
              jury ‘finding[s] of guilt on two inconsistent counts [are]
              invalid’); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963);
              Leet v. State, 203 Md. 285, 293, 100 A.2d 789, 793 (1953) (‘[I]t
              is true that a [jury] finding of guilt on two inconsistent counts
              will be declared invalid in Maryland’).”

                                              -6-
-7-
Id. at 20. Inconsistent verdicts of guilty under different counts of the same indictment, when

both counts depended upon the same alleged acts, cannot stand. Shell v. State, 307 Md. 46,

55, 512 A.2d 358, 362 (1986) abrogated on other grounds by Price v. State, 405 Md. 10, 949

A.2d 619 (2008) (quoting Johnson v. State, 238 Md. 528, 541, 209 A.2d 765, 771 (1965)).

Significantly, the rules are different for factually inconsistent verdicts as opposed to legally

inconsistent verdicts. McNealy v. State, 426 Md. 455, 44 A.3d 982 (2012).

       Judge Glenn T. Harrell, Jr., cogently described the difference between legally

inconsistent verdicts and factually inconsistent verdicts in his concurring opinion in Price.

Pointing out that Price only applies to legally inconsistent verdicts, he described a factually

inconsistent verdict as follows:

              “A factually inconsistent verdict is one where a jury renders
              ‘different verdicts on crimes with distinct elements when there
              was only one set of proof at a given trial, which makes the
              verdict illogical.’ Ashlee Smith, Comment, Vice–AVerdict:
              Legally Inconsistent Jury Verdicts Should Not Stand in
              Maryland, 35 U.BALT. L.REV. 395, 397 n. 16 (2006). The
              feature distinguishing a factually inconsistent verdict from a
              legally inconsistent verdict is that a factually inconsistent verdict
              is merely illogical. By contrast, a legally inconsistent verdict
              occurs where a jury acts contrary to a trial judge’s proper
              instructions regarding the law.”

405 Md. at 35. He explained a legally inconsistent verdict as follows:

              “A legal inconsistency, by contrast, occurs when ‘an acquittal on
              one charge is conclusive as to an element which is necessary to
              and inherent in a charge on which a conviction has occurred . .
              . . ’ Stephen T. Wax, Inconsistent and Repugnant Verdicts in
              Criminal Trials, 24 N.Y.L. SCH. L. REV. 713, 740 (1979).

                                               -8-
                Similarly, the Supreme Court of Rhode Island stated that ‘if the
                essential elements of the count[s] of which the defendant is
                acquitted are identical and necessary to prove the count of which
                the defendant is convicted, then the verdicts are inconsistent.’
                State v. Arroyo, 844 A.2d 163, 171 (R.I.2004) (internal
                quotation omitted). ‘Verdicts of guilty of crime A but not guilty
                of crime B, where both crimes arise out of the same set of facts,
                are legally inconsistent when they necessarily involve the
                conclusion that the same essential element or elements of each
                crime were found both to exist and not to exist.’ People v.
                Frias, 99 Ill.2d 193, 75 Ill.Dec. 674, 457 N.E.2d 1233, 1235
                (1983).”

Id. at 37-38.

       An example of a legally inconsistent verdict is where a defendant is charged with

armed robbery and use of a handgun in the commission of a crime of violence. Defendant

is acquitted of the armed robbery. Conviction on the use of the handgun charge, arising out

of the same facts, is legally inconsistent. Similarly, defendant is charged with distribution

of drugs and possession of drugs. Defendant is acquitted of possession of drugs. Conviction

for the distribution, arising out of the same facts, is legally inconsistent. Defendant is

convicted of receiving stolen property and theft of the same property. Those convictions are

legally inconsistent as one cannot be both the thief and the receiver of the same property.

Bell v. State, 220 Md. 75, 80-81, 150 A.2d 908, 911 (1959). On the other hand, conviction

for conspiracy to commit murder and murder are not legally inconsistent. To establish a

conspiracy, the State must prove that two or more persons combined or agreed to accomplish

some unlawful purpose, or to accomplish a lawful purpose by unlawful means. Mitchell, 363


                                               -9-
Md. at 145, 767 A.2d at 852 (quoting Townes v. State, 314 Md. 71, 75, 548 A.2d 832, 834

(1988)). The essence of a criminal conspiracy is an unlawful agreement. Id. The necessary

proof elements for first degree murder are as follows: a murder that is a deliberate,

premeditated, and willful killing. § 2-201. Each crime has an element different from the

other; they do not merge. Bishop v. State, 218 Md. App. 472, 503-08, 98 A.3d 317, 335-38

(2014) cert. denied, 441 Md. 218, 107 A.3d 1141 (2015). The crime of conspiracy is

complete when the agreement to undertake the illegal act is formed. Alston v. State, 414 Md.

92, 114, 994 A.2d 896, 909 (2010). The crime is unaffected by the performance of the act.

Not only is the offense of conspiracy complete when the unlawful agreement is reached, but

a conspiracy to commit a crime is entirely separate from the substantive crime. As the Court

of Appeals explained in Grandison v. State, 305 Md. 685, 759, 506 A.2d 580, 617 (1986),

regarding conspiracy to murder:

              “[O]nce the agreement to murder has been made, the crime is
              complete without any further action. . . . Conspiracy to murder
              requires an agreement, while murder, regardless of whether one
              is convicted as an accessory or a principal, requires the
              completed crime. Thus it is apparent that the conspiracy to
              murder is a separate and distinct crime from the substantive
              crime itself.”


       Mitchell v. State, 363 Md. 130, 767 A.2d 844 (2001) is dispositive of the issue before

us. In Mitchell, the Court of Appeals considered the question of whether conspiracy to

commit second degree murder is a crime in Maryland. In addressing that issue, the Court


                                            -10-
considered State v. Arnold, 393 S.E.2d 140 (N.C. Ct. App. 1990). There, the defendant was

`convicted of second degree murder and conspiracy to commit first degree murder. Id. On

appeal, she argued that the conspiracy charge should have been dismissed because it is

legally impossible to conspire to commit second degree murder. Id. The Court of Appeals

interpreted her argument to include “an asserted inconsistency between the conspiracy

charge, alleging an agreement to commit first degree murder, and the actual murder

conviction, which was for second degree murder.” Mitchell, 363 Md. at 138, 767 A.2d at

848. The significant reasoning follows:

              “The court concluded that, as the conspiracy occurs when the
              agreement is made, it is not affected by the degree of the
              substantive crime actually committed, and that the verdicts were
              therefore not inconsistent. Implicitly, and quite correctly, the
              court necessarily concluded that it was legally possible for one
              to conspire to commit first degree murder even though the crime
              actually committed amounts only to second degree murder. See
              also State v. Leonardo, 119 R.I. 7, 375 A.2d 1388 (1977), to the
              same effect.”

       The guilty verdicts for conspiracy to commit murder and second degree murder in the

case at bar are not legally inconsistent.4


       4
       Steven T. Wax, in his insightful law review article, Inconsistent and Repugnant
Verdicts in Criminal Trials, N.Y.L. SCH. L. REV. Vol. 24, 713, set out a proposed rule for
inconsistent verdicts. Under his proposed rule, the verdicts in the instant case are not
inconsistent or repugnant. His rule is as follows:
              “When acquittal on one charge is conclusive as to an element
              which is necessary to and inherent in a charge on which a
              conviction has occurred, the conviction should be reversed.
              Whether such verdicts are labeled ‘inconsistent’ or ‘repugnant’

                                             -11-
                                                         JUDGMENTS OF THE
                                                         CIRCUIT COURT FOR
                                                         BALTIMORE        CITY
                                                         AFFIRMED. COSTS WAIVED.




              is unimportant. A corollary to the basic rule is that all other
              verdicts which have heretofore been characterized as
              inconsistent may stand.
              Under the proposed rule, the determinant would be legal rather
              than factual inconsistency. An illogical application of the facts
              of a given case would not result in a reversal. Thus, differing
              verdicts on crimes with separate elements in cases where only
              one set of proof was offered at trial and the proof appeared to
              make out both crimes would nevertheless be permitted to stand.
              The existence of illogic on the facts would be countenanced so
              long as it does not give rise to contradiction with respect to
              statutory elements.”
Id. at 740.
        In the case at bar, appellant’s acquittal on first degree murder and theoretically an
acquittal as to premeditation and deliberation element, is not one which is necessary and
inherent to the conviction for conspiracy to commit first degree murder. This is so because
the conspiratorial agreement itself provides the necessary element of premeditation and
deliberation and once the parties agree to commit the murder, that element is supplied. As
Mr. Wax notes above, an illogical result on the facts is permitted to stand.

                                            -12-
