Elick v. State

Nelson Lewis Elick v. State of Maryland, No. 2345, Sept. Term, 2024. Opinion by Leahy, J. HEADNOTES CRIMINAL LAW – SENTENCING – MERGER Mr. Elick was convicted of two crimes related to the possession of a large quantity of illegal drugs, both arising from the same cache of drugs. His first conviction was under Maryland Code (2002, 2012 Repl. Vol.), Criminal Law Article (“CR”) § 5-612(a)(5), which makes it a crime to “possess … 28 grams or more of morphine or opium or any derivative … of opium.” His second conviction was under CR § 5-602(a)(2), which makes it a crime to “possess a controlled dangerous substance … in sufficient quantity reasonably to indicate … an intent to distribute or dispense a controlled dangerous substance.” Mr. Elick was sentenced to the mandatory minimum of 5 years for the first crime, to be followed by (or “consecutive” with) 10 years for the second crime, for a total of 15 years. In Kyler v. State, 218 Md. App. 196 (2014), we held that convictions under these two statutes should merge under the rule of lenity, such that someone in Mr. Elick’s position would serve one sentence, not two sentences, for these two convictions. The circuit court imposed two sentences, reasoning that our holding in Kyler was impliedly overruled in Carter v. State, 236 Md. App. 456 (2018). We hold that Kyler remains good law, and that Mr. Elick’s lesser sentence should have merged into his greater sentence. CRIMINAL LAW – SENTENCING – RESENTENCING ON REMAND When two convictions merge under the rule of lenity (rather than under the required elements test), the one with the lesser maximum penalty ordinarily merges into the one with the greater maximum penalty. Miles v. State, 349 Md. 215, 229 (1998). When both convictions carry the same maximum penalty, the circuit court should rely on its actual sentences rather than the maximum sentences, so that “the lower penalty merges into the higher penalty.” Spitzinger v. State, 340 Md. 114, 129 (1995). Circuit Court for Carroll County Case No.: 06-K-15-046651 REPORTED IN THE APPELLATE COURT OF MARYLAND No. 2345 September Term, 2024 ______________________________________ NELSON LEWIS ELICK v. STATE OF MARYLAND ______________________________________ Graeff, Leahy, Tang, JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: October 6, 2026 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2026.10.06 15:29:12 -04'00' Gregory Hilton, Clerk  On December 3, 2015, appellant Nelson Lewis Elick pleaded guilty to ten counts of violating Maryland’s narcotics laws in the Circuit Court for Carroll County. That same day, the court sentenced him to an aggregate of 15 years’ imprisonment without parole. Key to this appeal, the court sentenced Elick to five years’ imprisonment without the possibility of parole for possessing 28 grams or more of heroin in violation of Maryland Code (2002, 2012 Repl. Vol.), Criminal Law Article (“CR”) § 5-612(a)(5) (Count 1), plus a consecutive term of ten years’ imprisonment without the possibility of parole for possessing heroin “in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense” it in violation of CR § 5-602(a)(2) (Count 2).1 On December 9, 2024, nine years into his 15-year sentence, Elick filed an amended petition for postconviction relief contending, among other things, that his five-year sentence under Count 1 for possession of heroin should have merged into his ten-year sentence under Count 2 for possession of heroin with the intent to distribute it. The court held a hearing on Elick’s petition and then denied the petition from the bench.2 Elick appealed, presenting the following question for our review: Did the post-conviction court err in holding that these two sentences do not merge? We hold that the postconviction court erred in refusing to merge Elick’s sentences under the rule of lenity. We therefore remand the case to the circuit court with instructions 1 All of Elick’s convictions and sentences in the underlying case are shown on a table attached to this opinion as an appendix. 2 On January 24, 2025, the court filed a written order denying Elick’s postconviction petition for the reasons it had earlier explained from the bench. to correct Elick’s illegal sentence consistent with this opinion. BACKGROUND Because the facts underlying Elick’s various convictions for illegal narcotics are largely immaterial to the resolution of this appeal, we discuss them only briefly. Police executed a search warrant on a house they believed Elick was using to distribute narcotics. They recovered, among other things, heroin, cocaine, oxycodone, drug paraphernalia, and over $2,300 in cash. Elick pleaded guilty to various narcotics offenses including Counts 1 and 2.3 The court sentenced him to five years’ imprisonment without parole for Count 1 and to a consecutive ten years’ imprisonment without parole for Count 2. In the postconviction court, and now before this Court, Elick seeks to correct his sentences, contending that his five-year sentence for Count 1 should have merged into his ten-year sentence for Count 2. His argument relies on our holding in Kyler v. State, 218 Md. App. 196 (2014), that under the rule of lenity, these two offenses merge for sentencing. Id. at 229-230. The postconviction court thought Elick’s reliance on Kyler was misplaced, concluding Kyler was effectively overruled by our later decision in Carter v. State, 236 Md. App. 456 (2018). DISCUSSION Motion to Transfer As an initial matter, the State has moved to transfer this appeal to our application for leave to appeal (“AFLA”) docket. The State contends that because Elick’s merger 3 Police found 52.1 grams of heroin during their search. 2 argument was made in a petition for postconviction relief, not in a motion to correct an illegal sentence, Elick must file an application for leave to appeal under the Uniform Postconviction Procedure Act,4 rather than a notice of appeal. We grant the State’s motion, and as the State commendably suggests, we construe Elick’s notice of appeal and his opening brief “as a properly filed application for leave to appeal” and grant the application. See Resper v. Sec’y, Dept. of Pub. Saf. & Corr. Servs., Pet. No. 315, Sept. Term, 2023 (May 31, 2024) (per curiam) (the court “properly treated” a notice of appeal “as an application for leave to appeal” and was “amended”); Martin v. Dir., Patuxent Inst., 18 Md. App. 505, 507 (1973) (notice of appeal “was treated as an application for leave to appeal”); Rule 8-204(b)(3) (requiring that an application contain “a concise statement of the reasons why the judgment should be reversed”). Standard of Review “Whether a conviction merges for sentencing purposes is a question of law that is assessed under a de novo standard of review.” Koushall v. State, 479 Md. 124, 148 (2022). Sentencing Merger The merger of sentences, which is derived from both federal constitutional and Maryland common law double jeopardy principles, “provides the criminally accused with protection from … multiple punishment stemming from the same offense.” Purnell v. Under Maryland Code (2001, 2025 Rep. Vol.), Criminal Procedure Article (“CP”) 4 § 7-109(a), “[w]ithin 30 days after the court passes an order [resolving a petition for postconviction relief], a person aggrieved by the order, … may apply to the Appellate Court of Maryland for leave to appeal the order.” 3 State, 375 Md. 678, 691 (2003). To figure out whether two punishments stem from the same offense, we usually apply the “required evidence test.” Dixon v. State, 364 Md. 209, 236-37 (2001). That test, first announced in Blockburger v. United States, 284 U.S. 299, 304 (1932), “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.” State v. Jenkins, 307 Md. 501, 517 (1986). When there is a merger under the required evidence test, separate sentences are normally precluded, and the offense with fewer elements merges into the offense with the greater number of elements. State v. Lancaster, 332 Md. 385, 392 (1993); see also State v. Frazier, 469 Md. 627, 653-54 (2020) (applying the Lancaster rule and holding that “[o]nce there has been a merger of a conviction under the required evidence test, the sentence for the lesser included offense is no longer available to the sentencing judge.”). But even when the required evidence test does not require merger, sentences may still merge under the rule of lenity. McGrath v. State, 356 Md. 20, 24-25 (1999). “The rule of lenity is a common law doctrine that directs courts to construe ambiguous criminal statutes in favor of criminal defendants.” Alexis v. State, 437 Md. 457, 484-85 (2014). In deciding whether to merge sentences under the rule of lenity, we look first to whether the charges arose out of the same act or transaction, then to whether the crimes charged are the same offense, and then, if the offenses are separate, to whether the Legislature intended multiple punishment for conduct arising out of a single act or transaction which violates two or more statutes. Clark v. State, 218 Md. App. 230, 255 (2014) (cleaned up). Then, “if we are unsure” whether the legislature intended for two offenses to be “a single merged crime,” we “give 4 the defendant the benefit of the doubt.” Alexis, 437 Md. at 485. Under the rule of lenity, ordinarily, the offense carrying the lesser maximum penalty merges into the offense carrying the greater maximum penalty. Miles v. State, 349 Md. 215, 229 (1998). Applicable Statutes At the time of Elick’s sentencing, the statute that made it unlawful to possess controlled dangerous substances (“CDS”) with the intent to distribute provided: Except as otherwise provided in this title, a person may not: (1) distribute or dispense a controlled dangerous substance; or (2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance. CR § 5-602.5 In 2015, the statute governing the manufacture, distribution, or possession of large amounts of CDS provided, in relevant part: (a) A person may not manufacture, distribute, dispense, or possess: *** (5) 28 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium: 5 The statute has been amended several times since 2015, most notably in 2022 to designate the existing text as subsection “a” and to add a new subsection “(b)” providing, among other things, that possession of a civil use amount of cannabis or the personal use amount of cannabis without other evidence of an intent to distribute does not constitute a violation of paragraph (a)(1). 2022 Md. Laws Ch. 26 (H.B. 837). The 2022 amendment came as a result of Maryland voters approving a constitutional amendment that permitted, as of July 1, 2023, the use and possession of cannabis by individuals aged twenty-one or older. 2022 Md. Laws ch. 45 (H.B. 1) (ratified Nov. 8, 2022); see Md. Const., art. XX, § 1 (effective December 14, 2022). 5  *** (c) (1) A person who is convicted of a violation of subsection (a) of this section shall be sentenced to imprisonment for not less than 5 years and is subject to a fine not exceeding $100,000. (2) The court may not suspend any part of the mandatory minimum sentence of 5 years. (3) Except as provided in § 4–305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence. CR § 5-612(a)(5) and (c).6 Our Precedents In Kyler, the defendant was separately sentenced for both possession of narcotics with the intent to distribute under CR § 5-602(2) and volume possession of the same narcotics under CR § 5-612(a)(5). 218 Md. App. at 225-30. We decided that although the offenses did not merge under the required evidence test, they merged under the rule of 6 Since 2015, the statute has been amended as follows: In 2016, the Maryland General Assembly enacted the Justice Reinvestment Act which, among other things, amended CR § 5-612(a)(4) to increase, from 50 to 448 grams, the amount of cocaine base, commonly known as “crack,” required for prosecution under that subsection. 2016 Md. Laws Ch. 515 (S.B. 1005). In 2018, the statute was amended to add standardized language across multiple subsections of § 5-612(a) clarifying that, for certain compound mixtures, the presence of the specified drug in the mixture must be “scientifically measured using representative sampling methodology.” The amendment also added fentanyl to the list of drugs coming within the ambit of the statute. 2018 Maryland Laws Ch. 145 (S.B. 1137). In 2022, the General Assembly replaced all references to “marijuana” in the Maryland Annotated Code with “cannabis.” 2022 Md. Laws Ch. 26 § 13 (H.B. 837). In 2025, the General Assembly reduced the penalties for cannabis-related violations of the statute. 2025 Md. Laws Ch. 136 § 1, eff. Oct 1, 2025. 6 lenity. Id. We premised our conclusion on the history of the statutes. Before Maryland recodified its criminal laws from Article 27 to the Criminal Law Article, these statutes were not two separate offenses; they were parts of the same statute that provided for an enhanced penalty—mandatory five years imprisonment—when the violation involved listed CDS in certain amounts. Kyler, 218 Md. App. at 223-24 (citing Anderson v. State, 89 Md. App. 712, 727 (1991) and Wadlow v. State, 335 Md. 122, 125, 131-32 (1994)). Consequently, a conviction for possession with the intent to distribute would have merged, under the Blockberger required evidence test, into a conviction for possession of CDS in a designated amount. Id. at 223. This changed in the early 2000s, following rulings by the Supreme Court of the United States in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), about when facts related to a sentencing enhancement must be found by the jury at trial, rather than by a judge at sentencing. Kyler, 218 Md. App. at 224. To avoid these new constitutional problems related to sentencing enhancements, the General Assembly turned the enhancement into its own separate offense, “repealing the factual penalty enhancement” and making volume possession “its own, separate, new offense.” Id. (quoting S.B. 429, Fiscal and Policy Note (Feb. 15, 2005)) (emphasis in Kyler). We then considered whether, in light of the statutory revision, the two offenses still merged under the required evidence test. We noted that, pursuant to CR § 5-602, the elements of possession with intent to distribute narcotics are: (1) possession of narcotics; and (2) circumstances indicating an intent to distribute them. We also noted that, pursuant 7 to CR § 5-612, the elements of volume possession are: (1) manufacturing, distributing, dispensing or possessing narcotics; and (2) in the requisite quantity. Because each of those offenses has an element that the other one does not, we determined that they no longer merged under the required evidence test. Id. at 226-27. Although this new formulation no longer merged under the required evidence test, id. at 226-27, we concluded that the offenses should merge under the rule of lenity. Id. at 229-30. It appeared to us that “the General Assembly did not intend that volume dealing be punished separately from the offense of possession with intent to distribute,” in part because CR § 5-612 “continues to refer to [its] penalty as an ‘[e]nhanced penalty.’” Id. at 229. “At the very least, the intent is ambiguous.” Id. Four years later in Carter, a defendant charged with volume possession under CR § 5-612 argued that an “intent to distribute” was an element of the offense, and that the trial court had erred by not instructing the jury on that element. 236 Md. App. at 474-75. We disagreed. Id. at 476-77. First, relying on Kyler, we found that the plain language of the statute did not contain any indication that an “intent to distribute” was an element of the offense. Id. at 476. Next, we responded to Carter’s arguments that were based “partly in legislative history and partly in the headings that publishers have added to or left in the statute.” Id. at 477. We explained, as we did in Kyler, that, in 2005, the Legislature repealed and reenacted CR § 5-612, which “unambiguously” made “[w]hat had previously been a penalty enhancement” a “stand-alone crime.” Id. at 479. We explained that, in so doing, the Legislature entirely removed an “intent to distribute” from the statute. Id. at 479-80. We noted that, to accept 8 Carter’s argument that CR § 5-612 remained a penalty enhancement for CR § 5-602, we would have to read back into the statute the portions that the Legislature deleted in 2005 which we are prohibited from doing. Id. at 480-81. Finally, we addressed the “potentially unfortunate role of the headings added to— or at least not properly deleted from—the statute by publishers in assembling and reporting their versions of the Maryland Code.” Id. at 481. We explained that even though the version of CR § 5-612 enacted by the Legislature in 2005 (and reenacted in 2016) did not include either the Section title “Volume Dealer” or the heading “Enhanced penalty[,]” “the printed volumes and online versions of the Maryland Annotated Code compiled by both LexisNexis (2012 Repl. & 2017 Supp.) and West (2002 & 2017 Supp.) continue to include both the title and the heading.”7 Id. at 481. In sum, we were not persuaded that the clear text of CR § 5-612 could be overcome by either the historical relationship between this statute and the possession-with-intent statute or the failure by publishers to delete the titles to the statute. Id. at 479-80. We concluded: In this case, the statutory changes made in 2005 rendered “Volume Dealer” an inaccurate title for the offense described in § 5–612(a), and “Enhanced penalty” an inaccurate descriptor of the penalty established by § 5–612(c). The offense is the manufacture, distribution, dispensing, or possession of a specified quantity of controlled dangerous substances, and the penalty provided in subsection (c) is simply the penalty for that crime, not an enhancement of any other penalty. 7 The Editor’s Note to CR § 5-612 in the 2022 supplement to the LexisNexis printed volume of the Criminal Law Article notes that the heading “has been changed to more closely reflect the text of the statute.” The heading now reads: “Manufacture, distribution, dispensing, or possessing specified amounts.” 9 Id. at 482. (Emphasis added). Analysis Here, the postconviction court thought that Carter’s discussion of the “Volume Dealer” heading had undermined Kyler. We went to some length in Carter to explain why headings—especially those added during the recodification of statutes—are a bad guide to statutory meaning. 236 Md. App. at 481-82. That seemed to the postconviction court to undermine our work in Kyler, where we had used the same headings in historical statutes to trace statutory history.8 The court also believed that Carter’s recognition that CR § 5- 612 became a separate offense pursuant to the 2005 legislative change served to abrogate our application of the rule of lenity in Kyler. On appeal, Elick asserts that Kyler is binding precedent that the circuit court was not free to disregard. According to Elick, given Kyler’s thorough examination of, and reliance on, the statutory history in arriving at its conclusion that the legislature’s intent was unclear regarding separate sentences for CR § 5-602 and CR § 5-612, the post- conviction court misread Kyler when it concluded that the source of the ambiguity found in Kyler was based solely on its interpretation of headings. In a nutshell, appellant argues that Carter did not undermine Kyler as drastically as the circuit court believed it did, and certainly not enough to totally disregard it as binding precedent. The State responds that Carter “effectively undid the Kyler Court’s rationale for 8 For a summary of the proper uses of statutory history, see Gateway Terry, LLC v. Prince George’s Cnty., 253 Md. App. 457, 471-73 (2022). 10 finding merger under the rule of lenity.” The State argues that, in 2005, when the Legislature changed CR § 5-612 from an enhanced penalty provision of CR § 5-602 into a standalone crime, the Legislature sought to “punish differently those who possess [narcotics] in uniquely and exceedingly high amounts.” The State asserts that the Maryland Supreme Court’s decision in Johnson v. State, 467 Md. 362 (2020), supports Carter’s conclusion that CR § 5-612 “is viewed as an entirely separate and different animal from section 5-602 – because they are intended to address different crimes.” We disagree with the State. Although in Carter we rejected any argument resting on the publisher’s headings and underscored that CR § 5-612 was established as a separate crime from CR § 5-602 with its own separate penalty, we were addressing a different issue in Carter. We emphasized that we were not addressing the rule of lenity when we noted that in Kyler we explored “the historical relationship between those two crimes for the purpose of determining whether the General Assembly intended that they be punished separately.” Carter, 236 Md. App. at 480 (emphasis in original). We then rejected the idea that Kyler “in any way undermine[d] our holding that § 5-612(a) does not require an intent to distribute.” Carter, 236 Md. App. at 480. In Carter we reinforced Kyler’s holding that the required evidence test does not require merger of the sentences; we did not address Kyler’s holding that the rule of lenity requires merger. Any view that Carter suggested Kyler was on shaky ground should have been extinguished after Johnson v. State. There, the criminal defendant argued that his 14-year sentence for a violation of CR § 5-612 was illegal because the statute provides a mandatory minimum of five years’ imprisonment but no maximum penalty. 467 Md. at 367. 11 Rejecting Johnson’s argument, the Supreme Court held that the maximum penalty “is, and has always been, twenty years.” Id. at 389. To reach that result, the Supreme Court had to trace the history of CR § 5-612 even farther back than we did in Kyler and Carter to the Drug Kingpin Act of 1989. Id. at 380-81; see 1989 Md. Laws, ch. 287, at 2409-2418, available at https://perma.cc/YW6E-2JZH. Under the Drug Kingpin Act, possession with intent to distribute carried a maximum potential sentence of 20 years and, if the narcotics were in sufficient quantity to violate the volume enhancement, the person was also subject to a mandatory minimum sentence of 5 years. Johnson, 467 Md. at 380-81. When the General Assembly later split this into two offenses, CR § 5-602 kept the 20-year maximum and CR § 5-612 kept the five-year mandatory minimum. Id. at 387-89. The Court explained that “in amending the statute, the General Assembly did not seek to change the penalty underlying CR § 5-612.” Id. at 367. However, the Court observed, the legislation “had the unintended effect of severing the mandatory minimum penalty in CR § 5-612 from the base penalty for possession of a narcotic drug in CR § 5-602.” Id. at 367. The Supreme Court gave the legislature the benefit of the doubt, holding that the legislature had intended to keep the 20-year maximum for both offenses. Id. at 389. The analysis in Johnson, clarifying that the penalty provisions of CR § 5-602 and CR § 5-612 are linked, reaffirms our holding in Kyler that the legislature never intended violations of the two statutes to be punished separately. That the statutes keep the same maximum sentence because of their shared history is yet more evidence that the General Assembly considers them essentially versions of the same offense that do not carry stackable consecutive penalties. Like the Supreme Court in Johnson, we “presume that the 12 Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope.” Id. (citing State v. Johnson, 415 Md. 413, 421 (2010)). Read in historical context, our best estimation of the Legislature’s intent here is that these two offenses should merge. We are all the more confident in this conclusion about the General Assembly’s intent because in twelve years since Kyler, the General Assembly has amended CR § 5-612 four times without adopting an anti-merger provision. Acts 2016, c. 515, § 2, eff. Oct. 1, 2017; Acts 2018, c. 145, § 1, eff. June 1, 2018; Acts 2022, c. 135, § 5; Acts 2025, c. 136, § 1, eff. Oct. 1, 2025. The legislature knows how to enact an anti-merger provision—it did so in the neighboring section, CR § 5-613(d)—and it has not done so here. Kyler remains good law. The postconviction court erred in concluding otherwise. How to Merge As we explained above, when two convictions merge under the rule of lenity, the one with the lesser maximum penalty ordinarily merges into the one with the greater maximum penalty. Miles v. State, 349 Md. 215, 229 (1998). Because both of the convictions here carry the same maximum penalty under Johnson, this ordinary rule is not helpful. In this situation, we conclude that the circuit court should rely on its actual sentences rather than the maximum sentences, so that “the lower penalty merges into the higher penalty.” Spitzinger v. State, 340 Md. 114, 129 (1995). Applying this rule on remand, Elick’s conviction on Count 1, for which he received a five-year sentence, should 13 merge into his conviction on Count 2, for which he received a ten-year sentence.9 JUDGMENTS OF THE CIRCUIT COURT FOR CARROLL COUNTY REVERSED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY CARROLL COUNTY. 9 The circuit court may decide how, or whether, to otherwise resentence Elick on remand under Twigg v. State, 447 Md. 1 (2016). 14  APPENDIX Count Offense Statute Sentence 1 Volume possession of heroin CR 5-612(a)(5) Five years without parole 2 Possession of heroin with the CR 5-602(a)(2) Ten years without parole intent to distribute it consecutive to Count 1 3 Possession of cocaine with CR 5-602(a)(2) Five years all suspended, the intent to distribute it consecutive to Count 2 4 Possession of ethylone with CR 5-602(a)(2) Five years all suspended, the intent to distribute it consecutive to Count 3 5 Possession of oxycodone CR 5-602(a)(2) Five years all suspended, with the intent to distribute it consecutive to Count 4 6 Possession of heroin CR 5-601(a)(1) Five years all suspended, consecutive to Count 5 (later merged into Count 2) 7 Possession of cocaine CR 5-601(a)(1) No sentence imposed 8 Possession of ethylone CR 5-601(a)(1) No sentence imposed 9 Possession of oxycodone CR 5-601(a)(1) No sentence imposed 10 Possession of clonazepam CR 5-601(a)(1) No sentence imposed 15