source: Caselaw Access Project

author: HARRELL, J. FRIEDMAN, J., concurring.

license: Public Domain

text:
    139 A.3d 1113
    Douglas Ford BEY II v. STATE of Maryland.
    No. 413,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 29, 2016.

      Rachel Simmonsen (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.
    Sarah Page Pritzlaff (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.
    Panel: GRAEFF, FRIEDMAN, and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
   HARRELL, J.

Appellant, Douglas Ford Bey, II, stood before the Circuit Court for Frederick County accused of sexual abuse of a minor. He was convicted, after a jury trial, on seventeen various counts, resulting in a cumulative sentence of 390 years in prison. Bey argues in this appeal that he is entitled to a new trial because of procedural errors, including the implicit denial of an alleged request to discharge his counsel and the admission of certain demonstrative evidence and testimony regarding DNA, and, in any event, his sentence was improper in significant regard. We disagree with Bey on the first two contentions, but agree that his sentence was improper. Therefore, he shall not receive a new trial, but rather is entitled to a new sentencing proceeding.

FACTS AND LEGAL PROCEEDINGS

The female victim, a minor at the time of the sexual abuse and at trial, testified that the abuse, all of which occurred in the family home, began in 2010 and continued until about February 2014. She recalled that the first instance of abuse was in the summer of 2010 (when she was ten years old) when Bey, the victim’s putative father, performed cunnilingus on her. After this initial incident, the sex acts continued multiple times a week during the ensuing four year span.

In 2013, the victim, believing she was pregnant, told some friends that she had been molested. Following revelation to Bey of her pregnancy concern, he took her to a doctor, who confirmed the pregnancy. Ultimately, she had the fetus aborted at the University of Maryland Medical Center. Donna Young, a nurse from the hospital, testified that the abortion was performed on 3 February 2014, when the victim was 14 years old.

After this procedure, the victim saw a therapist on 12 February 2014, whom she told about the abuse. The therapist reported the abuse to appropriate governmental and law enforcement authorities. An investigation ensued by the Frederick County Department of Social Services and the Frederick County Sheriffs Office. Detective Ronald Dement, a member of the Sheriffs Office, and Shannon Pulsipher, an investigator for Social Services, were responsible principally for the investigation by their respective agencies.

The victim was brought to the Sheriffs offices to make a statement regarding the abuse. After recording her statement, including a representation that Bey forced her to perform oral sex on him earlier that very day, Detective Dement obtained promptly a search warrant to conduct a forensic sexual assault exam on Bey. Oral and genital swabs were taken from both Bey and the victim. Julie Kempton, a forensic scientist, concluded from testing of the swabs that, to a reasonable degree of scientific certainty, the victim’s DNA was present on Bey’s penis, according to her testimony at trial.

Also analyzed for DNA evidence was the eleven week old aborted fetus. The fetal tissue was obtained by Detective Dement from Melissa Sheriff, a pathologist assistant for the pathology lab at the University of Maryland Medical Center, and delivered subsequently by him to the Sheriffs Office’s property department. Sarah Shields, a DNA analyst, testified that, after conducting genetic tests, she was able to conclude, to a reasonable degree of scientific certainty, that Bey was the biological father of the fetus.

The State introduced also a recorded jail telephone call in which an inmate, referring to himself as “Speedy,” admitted to having his daughter perform oral sex on him. During this same phone call, the inmate requested the other party to the call to cause his backpack to be brought to him. When the law enforcement authorities intercepted Bey’s backpack, additional evidence was uncovered from a cell phone found within. Detective Gene Alston testified that the cell phone contained data showing Bey’s web history, which included visits to “about 65 pornography web sites, more than a thousand times,” between May 2013 and March 2014. Finally, Detective Dement testified that Bey asked him to tell the victim that he “was sorry for everything that he had done.”

A jury convicted Bey of seventeen of eighteen charged counts: five counts of sexual abuse of a minor, ten counts of a continuing course of conduct against a child, and two counts of third degree sexual offense. The court sentenced Bey cumulatively to 390 years in prison. Bey filed a self-represented Motion for a New Trial, received by the circuit court on 16 September 2014, asserting ineffective assistance of counsel. The Public Defender’s office, which represented Bey at trial, appealed to this Court on 4 May 2015. Additional facts will be provided as necessary to our analysis of Bey’s appellate questions.

QUESTIONS PRESENTED

Appellant presents three questions for our consideration, which we rephrase here:

1. Did the circuit court err in not granting Bey’s request, made during trial, to discharge his counsel?
2. Was a proper chain of custody established to allow the circuit court to admit properly the fetal tissue DNA evidence against Bey?
3. Was Bey sentenced properly on multiple counts of continuing course of conduct with a child?

For the following reasons, we hold that the circuit court did not err with regard to the questions directed to the conduct of Bey’s trial, but hold that its sentencing of Bey, as challenged in his third question, was in error. Thus, we affirm the judgments of conviction, but vacate the sentence and remand for a new sentencing proceeding.

DISCUSSION

I. Request to Discharge Counsel

a. Contentions

Bey contends that the circuit court erred in not granting his implicit trial request to discharge counsel when he stated that he and his attorney had a fundamental disagreement about the scope of cross-examination of the victim and that Bey believed his attorney was “winging it” generally during the trial to that point. The State responds that “Bey did not make any statement from which the trial court reasonably could have concluded that he wanted to discharge his counsel.” Moreover, because the alleged disagreement was over a matter of trial strategy, there was insufficient meritorious basis given by Bey for his complaint to be worthy of relief. Additionally, the State maintains that, due to the timing of any perceived discharge request, it was within the circuit court’s soundly exercised discretion to deny such during trial.

b. Analysis

How trial judges are obliged to address a defendant’s request to discharge counsel made before trial commences is regulated by Maryland Rule 4-215(e). The Rule explains what mandatory action is to be taken by the circuit court when such a request is made and how appellate review is to be conducted. State v. Hardy, 415 Md. 612, 621, 4 A.3d 908, 913 (2010) (citing Williams v. State, 321 Md. 266, 272, 582 A.2d 803, 806 (1990)). When the request for discharge is made after voir dire and during the trial, however, this rule does not apply and we are asked instead to “evaluate the trial court’s ruling on a motion to discharge counsel under the far more lenient abuse of discretion standard.” Hardy, 415 Md. at 621, 4 A.3d at 913 (citing State v. Brown, 342 Md. 404, 429, 676 A.2d 513, 525 (1996)). Thus, we afford deference to the circuit court’s judgment and will “find an abuse of discretion only when the court’s act is so untenable as to place it beyond the fringe of what the [appellate] court deems minimally acceptable.” Hardy, 415 Md. at 621-22, 4 A.3d at 913 (citation and internal quotation marks omitted).

To constitute a request to discharge counsel, “ ‘any statement by the defendant from which the court could reasonably conclude that the defendant desire[s to discharge his counsel is] sufficient’ for the court to consider that statement as a request to discharge counsel.” Hardy, 415 Md. at 622, 4 A.3d at 914 (quoting Snead v. State, 286 Md. 122, 127, 406 A.2d 98, 101 (1979)). Such a request will be sufficient “even when [the defendant’s] statement constitutes more a declaration of dissatisfaction with counsel than an explicit request to discharge.” Hardy, 415 Md. at 623, 4 A.3d at 914.

In Hardy, the Court of Appeals concluded that a defendant’s “declaration that he was ‘thinking about changing the attorney or something’ reasonably should have led a trial judge to conclude that Hardy wanted, or at the very least was inclined, to discharge his counsel.” Hardy, 415 Md. at 623, 4 A.3d at 914. Even though Hardy’s statement was conclusory, Maryland law required the “court to consider his statement a request to discharge counsel and address the matter accordingly.” Hardy, 415 Md. at 623, 4 A.3d at 914. Thus, the statement made by a defendant does not need to be an “explicit request to discharge” in order to be understood as a request to do so.

The timing of a request, however, is rather important in the appellate analysis of the circuit court’s eventual decision as to whether the request should be granted. In Hardy, it was made clear that the timing of the request determined whether “the trial judge’s consideration of that request is governed purely by its discretion, or whether it should be circumscribed by the procedural demands of Rule 4-215(e).” Hardy, 415 Md. at 624, 4 A.3d at 915. The Court of Appeals concluded in Hardy that Rule 4-215(e) “does not apply literally once voir dire begins, and, therefore, the trial judge was not obliged necessarily to adhere to the Rule’s strict procedural requirements in considering [the defendant’s] request.” Hardy, 415 Md. at 624, 4 A.3d at 915. To prevent confusion on the part of a jury as to why a defense lawyer was first “in” the case and then “out,” and to reduce the potential for a mistrial, “the right to substitute counsel and the right to self-representation are, of necessity, curtailed once trial begins.” Brown, 342 Md. at 426, 676 A.2d at 524.

Assuming for the sake of argument Bey’s comments could be understood as a request to discharge counsel, they occurred well into the trial proceedings. His comments about disagreeing with his attorney as to questions to put to the victim during cross-examination came between conclusion of the direct examination and before potential cross-examination of her. At this point, disposition of any request to discharge counsel would be within the circuit court’s sound exercise of its discretion. The established rule in Maryland is “[generally, the longer the defendant waits to request discharge of counsel, the stronger the rationale must be to warrant counsel’s dismissal.” Brown, 342 Md. at 429, 676 A.2d at 525. The Court of Appeals in Brown provided a non-exhaustive list of factors to be used by a circuit court judge in determining whether discharge is warranted in the course of a trial:

Therefore, in future proceedings, we suggest that the trial judge consider the following factors in deciding whether to permit discharge of counsel during trial: (1) the merit of the reason for discharge; (2) the quality of counsel’s representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel.

Brown, 342 Md. at 428, 676 A.2d at 525.

In reviewing the circuit court’s handling of the assumed implied request by Bey, we shall not hold that the circuit court abused its discretion. Bey’s counsel brought his client’s concern to the attention of the circuit court and explained why he was choosing not to cross-examine the victim. He believed principally that to do as his client wished might destroy any possible sympathy for Bey (by risking being perceived as “attacking” anew the young victim) and that it was his strategy to focus on challenges to the DNA evidence linking Bey to the asserted sexual misconduct:

COUNSEL: Your Honor, pursuant to our discussion Mr. Bey and I are having a fundamental disagreement on how the strategy of the case should proceed, particularly at this point of the, ah, trial about the cross examination of the witness that is still on the stand ... Practically speaking, um ... it is my opinion that cross examining [the victim] could have a detrimental effect.

Bey’s trial counsel explained that he had two main reasons for electing not to cross-examine the young victim:

[T]wo main reasons, one would be that it would give the State quite frankly an opportunity to perhaps clean up some of the testimony that [ ] I believe as we sit here was not fully elicited for some of the charges. Furthermore, there is going to be a recording of Mr. Bey from one of the jailhouse calls where he [ ] stated that he is going to break the witness down, meaning [the victim]. To the extent that there is a strain of sympathy or hope as we can relate our defense to the jury in this case, um [...] doing exactly what Mr. Bey had alluded to or said in the tape I think would do more harm than good in cross-examining [the victim].

On the record, the circuit court listened to Bey’s explanation for his objection to the decision made by his attorney not to cross-examine the victim:

THE DEFENDANT: He said character or, or reputation and that’s what he said and that’s not what my intention was. It was specifically regarding the, um, Ju — June 2010 incident as well as the, ah, area space that was in the upstairs floor where she said this incident happened at[sic], far as the space-wise. It was also, um, far as who was in the household, far as if [the victim] needed assistance or anything of that nature, um, did I prevent [the victim] by any way from, ah, making commotion, kicking, screaming, yelling or saying she needed assistance or did I refuse in any way by stopping her.
[A]ll my questions is solely regarding the evidence that they had gaven (sic) me. Nothing out of the way and I actually would like you to even take a look at the questions to find out if they are disrespectful, inappropriate, or by any nature like, um, you know, would not, would, would, would be irrelevant. That, that I would, I would actually ask you to look over that because I feel as though just because [the victim] did not state a specific date that still does not, ah, ah, ah, um without a reasonable doubt or say that the ah, what the State is trying to prove course of conduct and the time period that she’s trying to say that all this has happened. So due to the fact that, you know, the, the, the, the State got to prove their case and I feel as though the questions that regarding strictly to what they gave me is irr — is irrelevant. But [the victim], I understand he, he, ah, the testimony that the State gave regarding [the victim]. So I would like you to look it over to see if they are disrespectful, trying to, ah, um, a, a dis, destroy her any way.

The court heard further from Bey:

THE COURT: All right. Have you reviewed those questions with [your counsel]?
THE DEFENDANT: Actually yes I did and none of those questions—
THE COURT: Well, and [he is] your attorney
THE DEFENDANT: He’s been winging it, sir, the whole time.
THE DEFENDANT: So at any time is it possible that, ah, I, ah, I asked [my counsel] to ask these questions is that he should ask these questions.
THE COURT: It’s—
THE DEFENDANT: Because if he’s here to work for me, Your Honor, I mean, and if I got good concerns and it’s not inappropriate.
THE COURT: Some issues are for you to decide such as whether you plead guilty or not guilty, whether you have a jury, court trial, whether you testify or not and other matters. Trial strategy and tactics are [your counsel’s].

It is clear from the record that Bey was given a reasonable opportunity to air his grievances regarding his attorney and that he did not request explicitly for his counsel to be replaced. Even assuming, as we do, that Bey’s comments could be understood as a request to discharge counsel, the timing of Bey’s comments placed the decision within the sound discretion of the circuit court of what, if any, action to take. The circuit court believed that Bey’s concerns went only to his attorney’s trial strategy (which strategy appears to have a rational basis for not cross-examining the victim, especially in light of the State’s other evidence inculpating Bey, with questions that could be perceived by the jury as attacking her credibility as to whether the sexual abuse occurred wholly or in part as she testified on direct examination). Bey’s tag-along generic and unsubstantiated description of his counsel as “winging it” generally is, without more, not a rational basis to discharge counsel in mid-trial, especially when counsel indicated he intended to focus ultimately on the scientific evidence linking Bey to the alleged misconduct. We cannot conclude on the record before us that the circuit court abused its discretion in not granting an implied request to discharge counsel for the reasons offered by Bey.

II. Admission of DNA Evidence

a. Contentions

Bey contends that the State failed to establish a proper chain of custody for the fetal tissue DNA evidence and, therefore, the circuit court erred by admitting this evidence (and related testimony) over his trial counsel’s objection. Bey maintains that the lack of recollection by Melissa Sheriff, the pathology assistant, as to the name of the law enforcement officer to whom she gave the tissue sample does not satisfy the State’s burden under the Maryland rules. The State responds that it established a chain of custody for the evidence because the container was marked and sealed. Regardless of Sheriffs inability to recall the officer’s name to whom she gave the evidence container, the State argues that “there was no reasonable probability that any tampering [with] the tissue occurred.”

b. Analysis

As a general proposition, admission of evidence “ordinarily is left to the sound discretion of the trial court.” Moreland v. State, 207 Md.App. 563, 568, 53 A.3d 449, 453 (2012) (citing Md. Rule 5-104(a)). On appellate review, we will “not disturb a trial court’s evidentiary ruling unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion.” Moreland, 207 Md.App. at 568-69, 53 A.3d at 453 (internal quotation marks omitted) (citing Decker v. State, 408 Md. 631, 649, 971 A.2d 268, 279 (2009)).

Maryland Rule 5-901 (a) requires that demonstrative evidence be authenticated “as a condition precedent to admissibilityt, which] is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” A chain of custody is required for such items of evidence “in order to assure that the particular item is in substantially the same condition as it was when it was seized.” Wagner v. State, 160 Md.App. 531, 552, 864 A.2d 1037, 1049 (2005) (citing Lester v. State, 82 Md.App. 391, 394, 571 A.2d 897, 899 (1990)). The party offering the evidence is required to “account for its handling from the time it was seized until it is offered in evidence.” Wagner, 160 Md.App. at 552, 864 A.2d at 1049 (citing Lester, 82 Md.App. at 394, 571 A.2d at 899). Establishing this chain of custody allows a court to admit the evidence without concern about tampering: “The circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability ... and in most instances is established ... by responsible parties who can negate a possibility of ‘tampering’ ... and thus preclude a likelihood that the thing’s condition was changed.” Wagner, 160 Md.App. at 552, 864 A.2d at 1049-50 (quoting Best v. State, 79 Md.App. 241, 250, 556 A.2d 701, 705 (1989)).

Here, we find that it was within the circuit court’s discretion to admit the evidence in question. The State set forth a chain of custody for the fetal tissue DNA evidence, based on the testimony of Detective Dement and Melissa Sheriff. Detective Dement testified that all of the forensic evidence, including the Sexual Assault Forensic Exams (“SAFE”) and the fetal tissue were placed in sealed packages, with his initials and an identification number on it. When asked to authenticate the fetal tissue at trial, Detective Dement explained this chain:

Q: Okay. And from where did you receive it?
A: Um, from pathology down at the University of Maryland Medical Center.
Q: On what date did you receive it?
A: On the 18th of February.
Q: All right. And from whom did you receive it?
A: Last name Sheriff. I think it’s, is it Melissa? Yeah, Melissa Sheriff.
Q: All right. I’m gonna ask you to look inside basically just to say that does it appear to be what you received from Ms. Sheriff that day?
A: Correct.
Q: All right. And when you received it, um, it was, ah, a plastic container with contents in it packaged in a, in a plastic bag.
A: Correct.
Q: All right. And then when was this evidence tape placed on it and when was it initially sealed?
A: Um, the same day that I received it, transported from pathology back to the sheriffs office and put it on property.
Q: Placed on property? All right.
A: Which is evidence, right—
Q: Okay
A: Evidence unit.

After Detective Dement secured the container, it was transported to Bode Technology by Camille Moore, a forensic services analyst employed by the Frederick County Sheriffs Office. When Sarah Shields, a DNA analyst at Bode Technology, received the container, the seal was still intact. It is clear from this testimony that there was no reasonable opportunity for tampering to occur and that the State established properly a chain of custody sufficient to allow for the admission of the fetal tissue DNA evidence.

Bey argues that Sheriffs inability to recall the officer’s name is sufficient standing alone to disrupt the State’s chain of custody. We disagree with this proposition because the State was able to provide testimony which showed that the container was labeled and sealed the entire time it was being transported between the tissue collection point at the University of Maryland Medical Center and the penultimate resting place in the evidence locker at the Frederick County Sheriffs Department. There is no evidence that tampering occurred. A tangential lapse in a witness’s memory is not enough to discount the chain of custody established by the State. The circuit court did not abuse its discretion by allowing receipt of this demonstrative evidence and the related testimony to be introduced at trial.

III. Continuing Course of Conduct with a Minor a. Contentions

Applying Maryland Code (2002, 2012 Repl Vol.), Criminal Law Article § 3-315 (“Crim. Law”), Bey contends that the evidence presented by the State only permits a sentence for one conviction for continuing course of conduct against a minor. He maintains that the General Assembly “intended the unit of prosecution under [Crim. Law] § 3-315 to be the course of conduct, not each specific type of sexual act, and not each 90-day period or calendar year for which the course of conduct continued.”

The State responds that Bey did not preserve this question for our review, but that even if he did, his contentions are without merit. The State stands by its approach in essentially indicting Bey in one year increments, distinguished by the specific sexual act committed during each period, and the resultant multiple convictions and sentences. The State asserts that the language of Crim. Law § 3-315 does not prevent the State from charging Bey for multiple continuing courses of conduct during the four year span, based on its interpretation of the plain language of the statute..

b. Analysis

1.

When the circuit court’s judgment “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a [non-deferential] standard of review.” Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72, 854 A.2d 879, 883 (2004). It is our assignment to “ascertain and effectuate the intent of the Legislature.” Mayor & Town Council of Oakland v. Mayor & Town Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). This analysis starts with consideration of the amenability of a plain meaning interpretation, in which we seek to give the language of the statute “its natural and ordinary meaning.” Stoddard v. State, 395 Md. 653, 661, 911 A.2d 1245, 1249 (2006). When construing the statute, the court must “avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Stoddard, 395 Md. at 663, 911 A.2d at 1250 (citation omitted).

The statute in question here was enacted in response to confusion in the legal community regarding how to charge individuals suspected of a continuing course of conduct with a minor, and not create a duplicitous verdict. The Court of Appeals explained that “the object of all pleading, civil and criminal, is to present a single issue in regard to the same subject-matter, and it would be against this fundamental rule to permit two or more distinct offenses to be joined in the same count.” Cooksey v. State, 359 Md. 1, 7, 752 A.2d 606, 609 (2000) (citing State v. Warren, 77 Md. 121, 121-22, 26 A. 500, 500 (1893)). A pleading under Maryland Rule 2-303(a) requires that each cause of action be set forth separately to reduce “the prospect of uncertainty as to whether the jury unanimously found guilt as to all offenses, at least one but less than all, or none, and, if at least one but less than all, which ones.” Cooksey, 359 Md. at 9, 752 A.2d at 610.

In respect to the particular issue of repeated child sexual abuse, the Court of Appeals noted:

All of the courts are sympathetic to the plight of both the young victims, often unable to state except in the most general terms when the acts were committed, and of prosecutors, either hampered by the lack of specific information or, when it is reported that the conduct occurred dozens or hundreds of times over a significant period, faced with the practical problem of how to deal with such a multitude of offenses. The courts are all also properly concerned with the rights of defendants, who go to trial with a presumption of innocence, and with the ramifications to them of duplicitous pleading. Some have struck the balance in favor of easier prosecution by allowing some bundling of offenses, especially if committed within a reasonably brief period.

Cooksey, 359 Md. at 18-19, 752 A.2d at 615. The Court of Appeals in Cooksey, persuaded by the reasoning in State v. Saluter, 715 A.2d 1250, 1255 (R.I.1998), explained that “ ‘re-conceptualization of child sexual assault as a continuing course of conduct crime would eliminate duplicity problems in charging these offenses’ and recognized that some States had done that, but it concluded that the creation of such a crime was for the legislature, not the court.” Cooksey, 359 Md. at 19, 752 A.2d at 616.

In apparent response to Cooksey, the General Assembly created Crim. Law. § 3-315. This statute, under subsection (a), created a single felony where:

(a) A person may not engage in a continuing course of conduct which includes three or more acts that would constitute violations of § 3-303, § 3-304, § 3-305, § 3-306, or § 3-307 of this subtitle over a period of 90 days or more, with a victim who is under the age of 14 years at any time during the course of conduct.

A benefit accruing to the State of charging a defendant under Crim. Law § 3-315 is that the prosecutor is not required to prove specifically the occurrence of each act included under subsection (a). Crim. Law § 3-315(c) provides that the trier of fact: “(1) must determine only that the required number of acts occurred; and (2) need not determine which acts constitute the required number of acts.” This provision appears to be in response to the issues surrounding jury verdict unanimity when specific acts are charged. Under Crim. Law § 3-315, the trier of fact need only find that at least three acts of the kind included in subsection (a) occurred over a span of 90 days or more with a victim who was under the age of 14 at some point during the charged timeframe. Thus, when charging a defendant under Crim. Law § 3-315, the State may attain only one conviction for a continuing course of conduct per victim.

Here, Bey’s sentence was based, in part, on convictions of ten counts of continuing course under Crim. Law § 3-315. The State charged him with ten separate charges of a continuing course of conduct with a child. Nine of the charges were divided into individual years and by the discrete types of sexual act misconduct alleged to have occurred in each year. By electing to charge Bey under Crim. Law § 3-315, the State could only obtain at most a single conviction of one continuing course of conduct with a singular victim, and thus, Bey may be sentenced for only one conviction of a continuing course nature. Therefore, we vacate Bey’s multiple sentences under Crim. Law § 3-315, and remand to the circuit court for a new sentencing in accordance with this opinion.

2.

Alternatively, if the foregoing reasoning were deemed unpersuasive, we would reach the same conclusion nonetheless, albeit by a different route. As the Court of Appeals stated, “when we are faced with multiple punishments deriving from a single statutory provision,” we should “analyze the unit of prosecution.” Triggs v. State, 382 Md. 27, 43, 852 A.2d 114, 124 (2004). Furthermore, the unit of prosecution is “ ‘ordinarily determined by reference to legislative intent.’ ” Id. (quoting Purnell v. State, 375 Md. 678, 692, 827 A.2d 68, 76 (2003)).

The State argues that the Legislature intended for prosecutors to determine the unit of prosecution, so long as the course of conduct exceeded the 90-day minimum. According to the State’s theory, the Legislature intended that so long as the State can prove three illegal acts within a period of 90 or more days (and the victim is under the age of 14 for some of the period), that constitutes a course of conduct and a unit of prosecution. Theoretically then, assuming the victim’s memory was sufficient, the State could have proven four units of prosecution per year for as long as the conduct continued, or until the victim turned 14 years old.

Even if the State’s reasoning could be deemed plausible and persuasive, the result we would reach would not change. At best, that reasoning highlights that the Legislature’s intent with regard to the unit of prosecution is capable of at least two contradictory interpretations and the statute is therefore ambiguous: “ ‘[A]mbiguous units of prosecution ..., pursuant to the rule of lenity, must normally be construed in favor of the defendant,’ effectively merging the offenses.” Triggs, 382 Md. at 43, 852 A.2d at 124 (quoting Melton v. State, 379 Md. 471, 488, 842 A.2d 743, 753 (2004)). As such, the sentences must be merged pursuant to the rule of lenity, even though neither party argued ambiguity here, apparently because of the certitude each possessed in their respective arguments regarding dueling “reasonable” constructions of the statute.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED IN PART AND VACATED IN PART. CASE REMANDED TO THE CIRCUIT COURT FOR A NEW SENTENCING PROCEEDING CONSISTENT WITH THIS OPINION. COSTS TO BE SPLIT EVENLY BETWEEN BEY AND FREDERICK COUNTY.

Concurring Opinion by FRIEDMAN, J.

FRIEDMAN, J., concurring.

I concur. I join Sections I and II of the Court’s Opinion without reservation. With respect to Section III, however, I conclude that Section 111(b)(1) is but one possible interpretation of Criminal Law § 3-315, while n.14 argues for another (to me, more plausible) interpretation. Thus, I am persuaded that the statute is ambiguous and, therefore, subject to the rule of lenity. As such, I would rely exclusively on the reasoning stated in Section 111(b)(2).

      . Because the State accepts generally the Statement of Facts provided in Bey’s brief, our recitation of the facts is based on that brief and the transcripts from Bey's September 2014 trial.

      . The array of sex acts included that Bey "would perform oral sex on her, masturbate while he made her touch herself, force [her] to perform oral sex on him, show her pornography and force her to have vaginal intercourse.”

      . Evidence was also presented to show that Bey was known by the nickname "Speedy.”

      . Bey was found only not guilty of one charge: Count 18, for Third Degree Sexual Offense occurring between 21 December 2013 and 12 February 2014.

      . Appellant’s original questions were:
      1. Did the lower court err in failing to recognize and grant Mr. Bey’s request to discharge counsel?
      2. Did the lower court err in admitting DNA evidence without a proper chain of custody?
      3. Does the evidence support only one conviction for continuing course of conduct against a child?

      . A recent case decided by the Court of Appeals, State of Maryland v. Jeriko Graves, 447 Md. 230, 135 A.3d 376 (2016), discusses a similar issue. That case, however, applies specifically to the application of Maryland Rule 4-215(e). The Court of Appeals remanded that case to the trial court (affirming of the Court of Special Appeals’s judgment) because the circuit court failed to ask the proper questions of the defendant to determine if there was a meritorious reason for dismissal or discharge of his attorney in a pre-trial context. The facts of the case before us are quite different, due to the timing of any "request,” as well as the circuit court’s on-the-record discussion with Bey about the basis of his disconcert with his counsel. Therefore, Graves does not bear directly on our decision here.

      . We disagree with the State’s contention that this question was not preserved for our review. Bey’s argument relates to the verdict on the ten counts of continuing course of conduct and his sentences. It does not go to the accuracy or duplicity of his indictment; rather it goes specifically to the convictions that were rendered at trial. The question of an illegal sentence is reviewable by this Court with or without an objection on the record. See Montgomery v. State, 206 Md.App. 357, 410, 47 A.3d 1140, 1170-71 (2012).

      . Maryland Code (2002, 2012 Repl Vol.), Criminal Law Article § 3-315 ("Crim. Law”) provides in its entirety that:
      In general
      (a) A person may not engage in a continuing course of conduct which includes three or more acts that would constitute violations of § 3-303, § 3-304, § 3-305, § 3-306, or § 3-307 of this subtitle over a period of 90 days or more, with a victim who is under the age of 14 years at any time during the course of conduct.
      Penalty
      (b)(1) A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 30 years.
      (2) A sentence imposed under this section may be separate from and consecutive to or concurrent with a sentence under § 3-602 of this title.
      Required number of acts
      (c) In determining whether the required number of acts occurred in violation of this section, the trier of fact:
      (1) must determine only that the required number of acts occurred; and
      (2) need not determine which acts constitute the required number of acts.
      Merger of offenses

        (d)(1) A person may not be charged with a violation of § 3-303, § 3-304, § 3-305, § 3-306, or § 3-307 of this subtitle involving the same victim in the same proceeding as a violation of this section unless the other violation charged occurred outside the time period charged under this section.
      (2) A person may not be charged with a violation of § 3-303, § 3-304, § 3-305, § 3-306, or § 3-307 of this subtitle involving the same victim unless the violation charged occurred outside the time period charged under this section.

      9. The specific crimes associated with each of these sections are first degree rape (Crim. Law § 3-303); second degree rape (Crim. Law § 3-304); first degree sexual offense (Crim. Law § 3-305); second degree sexual offense (Crim. Law § 3-306); and third degree sexual offense (Crim. Law § 3-307).

      . The charges under Crim. Law § 3-315, as depicted in his indictment, included specifically:
      Count 2: May 3, 2010 — December 20, 2010 (second degree rape, second and third degree sexual offense)
      Count 4: December 21, 2010 — December 20, 2011 (second degree rape)
      Count 5: December 21, 2010 — December 20, 2011 (fellatio)
      Count 6: December 21, 2010 — December 20, 2011 (cunnilingus)
      Count 8: December 21, 2011 — December 20, 2012 (second degree rape)
      Count 9: December 21, 2011 — December 20, 2012 (fellatio)
      Count 10: December 21, 2011 — December 20, 2012 (cunnilingus)
      Count 12: December 21, 2012 — December 20, 2013 (second degree rape)
      Count 13: December 21, 2012 — December 20, 2013 (fellatio)
      Count 14: December 21, 2012 — December 20, 2013 (cunnilingus)

      . Charging a defendant under Crim. Law § 3-315 is a choice that the prosecution elects to make; it is not a requirement under Maryland law. The State could choose to charge each individual sexual act and be burdened with the responsibility of proving specifically every occurrence of each sexual act alleged during the time frame. This statute provides relief to the prosecution from this challenging burden, made difficult inherently with younger victims who struggle with articulating exactly what sexual act occurred and with remembering the exact details and dates of each incident.

      . At this hearing, because no issues with Bey’s other convictions (for five counts of sexual abuse of a minor and two counts of third degree sexual offense) were raised before this Court, those convictions and one conviction for a continuing course of conduct under Crim. Law § 3-315 may be considered in fashioning a new sentence for Bey.

      . The State argues also that each type of prohibited sexual activity may constitute a separate course of conduct. Thus, Bey was convicted of courses of conduct related to each rape, cunnilingus, and fellatio, even during overlapping time periods. The State supports this argument by reference to the disjunctive "or,” rather than the conjunctive "and,” in Crim. Law § 3-315(a). We do not think this argument floats the State’s boat grammatically. Moreover, we find it implausible that the Legislature intended to treat the separate types of illegal sex acts as separate units of prosecution. Bey’s convictions of course of conduct for each act must merge for sentencing purposes.

      . Either because (1) one might read Crim. Law § 3-315(d)(1) as not requiring a prosecutor to charge all events as one course of conduct, but as allowing a continuation to charge and prove individual acts as separate crimes, so long as the acts fall outside a period charged; (2) one might attribute significance to the Legislature's apparent declination to include in Crim. Law § 3-315 an express limitation on charging more than one count of continuing course of conduct, despite its consideration during the relevant legislative session of model legislation from California and Arizona that contained such a prohibition (see Lynn McLain, Reforming the Criminal Law: University of Baltimore School of Law Group Goes to Annapolis, 34 U. Balt. L. F. 2, 9 & n.99-100 (2003)); (3) one might question the Legislature's purpose in establishing the 90-day minimum if the entire period of a defendant’s conduct determines the course of conduct context; and/or (4) one were to conclude that it is more likely than not that the Legislature intended for prosecutors to determine the unit of prosecution, so long as the time period exceeded the statutory minimum.


author: HARRELL, J.

text:
    140 A.3d 489
    BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY v. James BRADY.
    No. 781,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 30, 2016.

      Wayne B. Wiseman (Thatcher Law Firm, LLC, on the brief), Greenbelt, MD, for appellant.
    Alan B. Gross (Berman, Sobin, Gross, Feldman & Darby, LLP, on the brief), Gaithersburg, MD, for appellee.
    Panel: DEBORAH S. EYLER, WRIGHT, GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
   HARRELL, J.

In 2011, Appellee James T. Brady, a mechanic employed by Appellant, the Board of Education of Prince George’s County (the “Board of Education”), was injured on the job. He remained absent from his position for sixteen and a half months before he retired on accidental disability retirement. During his absence, Brady elected to use his accrued paid personal and sick leave, rather than seek temporary total disability (“TTD”) payments afforded under the Workers’ Compensation Act. After a proceeding in front of the Workers’ Compensation Commission on Brady’s claim for permanent partial disability payments, where Brady was awarded a permanent partial disability award, the Commission granted the Board of Education an offset against the award for the Board’s prior leave payments to Brady based on its interpretation of Maryland Code (1991, 2008 Repl Vol), Labor and Employment Article, § 9-610 (“L & E”). The Circuit Court for Prince George’s County reversed this offset, leading to this appeal. The question before us is whether the Board of Education is entitled to an offset under L & E § 9-610 because Brady elected to use his personal and sick leave rather than avail himself of Workers’ Compensation TTD benefits. For the following reasons, we hold the Board of Education is entitled to the offset and reverse the judgment of the circuit court.

FACTS AND LEGAL PROCEEDINGS

On 8 April 2011, Brady injured his neck and right shoulder in a workplace accident. The diagnosis was that he suffered two herniated cervical discs. The initial treatment did not alleviate Brady’s injuries. He was referred to a neurosurgeon, who performed a two-level, anterior cervical fusion. Following this surgery, Brady was unable to return to his position because he could not perform physically the duties of a mechanic. He retired on service-connected disability on 1 July 2013.

Brady worked under a collective bargaining agreement between the Board of Education and his union, Local 2250 of ACE/AFSCME. Article four of the contract contained specific provisions on leave benefits, including accrued leave and workers’ compensation benefits. The contract included a provision that entitled Brady to full pay (in the form of TTD leave) for an initial period of ninety working days. This leave was in lieu of any other benefits, including his accrued personal sick leave.

He received this disability pay for the requisite ninety days and, on 14 February 2012, when it expired, Brady was obliged to select how he would proceed as he was still unable to perform his job. He was presented with two options: remain on leave with pay status, which would grant him his full wages and current benefits, or pursue TTD benefits under the Maryland Workers’ Compensation Act. In a letter from Diane Mullin-Fines, on behalf of the Board of Education, Brady was informed that if he opted for the “on leave with pay” status, “[i]n return for the ability to maintain the benefits ... [he] waive[d his] right to receive direct payment of [TTD] benefits from the Third Party Administrator.”

He elected to remain on leave with pay status, which afforded him his full salary, but this option required him to use his accrued sick leave. As explained by Brady’s counsel, Brady “had accrued a good amount of leave ... [a]nd up until the time of his retirement on July 1, 2018, he was paid essentially out of his own leave pocket.” Being unable to perform physically his job, Brady applied subsequently for Accidental Disability Retirement. He began to receive Accidental Disability Retirement benefits on 1 July 2013 at the rate of $865.65 per week after he retired formally from his position as a mechanic for the Board of Education.

On 1 April 2014, the Workers’ Compensation Commission considered the employer’s issue regarding the offset provision in L & E § 9-610. After a hearing, a Commissioner granted to the Board of Education the right under L & E § 9-610 to offset the payment of Brady’s full wages under his accrued sick leave that he received between 15 February 2012 and 1 July 2013 (the “gap period”). On 22 April 2014, the Workers’ Compensation Commission issued its order finding that “as a result of the accidental injury sustained on April 8, 2011 the claimant was paid disability leave (in lieu of temporary total benefits) from September 26, 2011 to February 14, 2012 inclusive, and paid sick leave (in lieu of temporary total benefits) from February 15, 2012 to June 27, 2013.” The Commission provided further:

Ordered that the above named employer [Board of Education for Prince George’s County] and above named insurer pay unto the above named claimant [James T. Brady], compensation for permanent partial disability ... beginning February 15, 2012, for a period of 333 weeks pursuant to the provisions of Section 9-630 of the Labor and Employment Article; subject to a complete set-[o]ff in accordance with Section 9-610. It is further ORDERED that from the Subsequent Injury Fund the claimant shall be paid compensation for permanent partial disability ... pursuant to the provisions of Sections 9-802 and 9-804 of the Labor Article; subject to a complete set-off in accordance with Section 9-610.

The award of $705 per week for 333 weeks was a permanent partial disability award.

Brady appealed to the Circuit Court for Prince George’s County. A hearing was held on 29 May 2015 to consider cross-motions for summary judgment filed by the litigants. Brady argued that his earned leave was “proprietary” and his decision to use it should not be considered as receiving benefits similar to the benefits under Workers’ Compensation laws. During the circuit court’s hearing, he observed that the Board of Education “saved more than $23,500” because it did not have to pay him upon retirement for his unused sick leave and annual leave.

The Board of Education argued that it was settled “that when there’s a single cause such as the workplace accident here, which is the basis of the compensation such as an accidental disability retirement, the County, in this case the Board of Education or whatever governmental entity is involved, is entitled to an offset for the period of payment of those benefits.” Further, the Board maintained that, had no accident occurred and Brady retired without a workplace disability, he would have received only payment for thirty days of accrued sick and personal leave, under the collective bargaining agreement.

The parties waived further proceedings in the circuit court and preserved their right to appeal, but agreed that the decision on the summary judgment motions would constitute a final order in the circuit court. On 2 June 2015, the circuit court entered an order granting judgment in favor of Brady, offering no elaboration as to its reasoning for this conclusion. The Board of Education appealed timely to this Court.

QUESTION PRESENTED

Appellant presents one question for our consideration, which we have rephrased for the sake of clarity:

Did the circuit court err by granting Brady’s motion for summary judgment, thus overruling the Commission’s decision that the Board of Education, was entitled to an offset for benefits paid from 15 February 2012 to 1 July 2013 pursuant to Maryland Code (1991, 2008 Repl Vol), Labor and Employment Article, § 9-610 (“L & E”)?

For the following reasons, we hold that it was error for the circuit court to give judgment to Brady and overrule the Workers’ Compensation Commission’s Order as to the off-set. We reverse its judgment.

STANDARD OF REVIEW

The “purpose of summary judgment is to determine whether there are facts in dispute that must be resolved through a more formal resolution process, such as a trial on the merits.” Hines v. French, 157 Md.App. 536, 549, 852 A.2d 1047, 1054 (2004) (citation omitted). Under Maryland Rule 2 — 501(f), a circuit court shall grant summary judgment “in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.”

Viewing the facts in the light most favorable to the non-moving party, we “ ‘are first concerned with whether a genuine dispute of material fact exists’ and then whether the movant is entitled to summary judgment as a matter of law.” Hines, 157 Md.App. at 549, 852 A.2d at 1054 (citation omitted). If, however, “there is no dispute of material facts, then our role is to determine whether the trial court was correct in granting summary judgment as a matter of law. Whether summary judgment is properly granted as a matter of law is a question of law and therefore review of the granting of summary judgment is de novo.” Montgomery Cnty. v. Soleimanzadeh, 436 Md. 377, 398, 82 A.3d 187, 200 (2013) (citation omitted).

In the present case, there being no genuine dispute as to a material fact, we review the circuit court’s judgment for its legal correctness, with no deference paid as a matter of course.

DISCUSSION

I. Contentions

The Board of Education contends that L & E § 9-610 entitles it to a complete offset of the sick leave it paid to Brady (treating it as the equivalent of TTD payments made under the Workers’ Compensation statute) against the permanent partial disability award granted him by the Commission. Additionally, the Board of Education argues that the Commission finding of a “Permanent Partial Disability” as of 15 February 2012 should not affect the offset or credit due to the Board. Brady responds that the Board of Education was not entitled to an offset because his right to leave benefits for the permanent loss of wage earning capacity is “patently dissimilar” to temporary total disability benefits. He states that “this case is not about an excessive or duplicative payment ... rather it is about the differences in temporary total disability and permanent partial disability benefits under the law.”

II. L & E § 9-610: Offset against other benefits

It is not disputed that the Board of Education is subject to the provisions of the Labor and Employment Article of the Maryland Code or that Brady is a protected employee. Thus, the question for this Court is whether the Board of Education is entitled to an offset for the monies paid to Brady while he was on disability sick leave. Under traditional “wage-loss” legislation, the prevailing view was:

Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit.

Newman v. Subsequent Injury Fund, 311 Md. 721, 726-27, 537 A.2d 274, 276-77 (1988). This appeal involves specifically L & E § 9-610, which provides in pertinent part:

(a)(1) Except for benefits subject to an offset under § 29-118 of the State Personnel and Pensions Article, if a statute, charter, ordinance, resolution, regulation, or policy, regardless of whether part of a pension system, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under § 9-201(2) of this title or, in case of death, to the dependents of the covered employee, payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title.

Under a related section, if ordered by the Workers’ Compensation Commission, the Board of Education would be entitled also to an offset or credit “against an award for permanent partial disability benefits for: (1) any vocational rehabilitation benefits previously provided to a covered employee; or (2) any temporary total disability benefits previously paid to a covered employee.” L & E § 9-610.1.

Exploring relevant legislative history, the Court of Appeals explained that the purpose of L & E § 9-610 is “to provide only a single recovery for a single injury for government employees covered by both a pension plan and workmen’s compensation.” Blevins v. Baltimore Cnty., 352 Md. 620, 625, 724 A.2d 22, 24 (1999) (citing Frank v. Baltimore Cnty., 284 Md. 655, 659, 399 A.2d 250, 253 (1979)). The Legislature intended “to minimize the burden on the public treasury that would result from providing duplicate benefits to public employees.” Blevins, 352 Md. at 625, 724 A.2d at 24 (citing Frank, 284 Md. at 661, 399 A.2d at 254). Since enactment of the provision, the meaning of the word “benefit” and the application of “similar benefits” has been applied broadly. See Garrett v. Bd. of Educ. for Prince George’s Cnty., 94 Md.App. 169, 179, 616 A.2d 446, 451 (1992) (explaining that the meaning of “benefit” should be given a broad construction). This broad application is supported by the notion that “all benefits furnished to the employee, both monetary and otherwise, be used in calculating the offset.” Garrett, 94 Md.App. at 176, 616 A.2d at 449 (emphasis in original).

When the respective benefits paid are dissimilar to TTD, the setoff provision under L & E § 9-610 would not apply typically. See Newman, 311 Md. at 728, 537 A.2d at 277 (applying § 33(c)). Because, however, “statutory language changes in Maryland also point out that we will not be bound to one philosophical concept in compensating our injured workers, [we] tend mercurially to move more by a sense of justice than by economic philosophy.” Oros v. City of Baltimore, 56 Md.App. 685, 691, 468 A.2d 693, 696 (1983). The question of whether the second payment was in the nature of the first is important to the analysis, but is not the sole point of examination as we are guided also by this sense of justice.

As with traditional workers’ compensation, the Court of Appeals explained that these benefits in Maryland are:

facets of “an overall system of wage-loss protection,” an underlying principle of which “is to restore to the worker a portion of wages lost by physical disability, unemployment, or old age.” Although two or more causes of wage loss may coincide, the benefits “need not cumulate,” we held, “for the worker experiences but one wage loss.”

Blevins, 352 Md. at 639, 724 A.2d at 31 (internal citation omitted). Thus, “the scheme that unmistakably emerges is that the General Assembly wished to provide only a single recovery for a single injury for [ ] employees covered by both a pension plan and workmen’s compensation.” Blevins, 352 Md. at 639, 724 A.2d at 31 (citing Frank, 284 Md. at 659, 399 A.2d at 253). This is evident in the Court’s conclusion that alternative benefits could fulfill the required payments to be made to an employee:

If the alternative benefit equals or exceeds the workers’ compensation benefit otherwise payable, the set-off is complete, and the employer’s obligation to pay the workers’ compensation benefit is fully discharged. If the workers’ compensation benefit exceeds the alternative benefit, the employer must pay the difference, as determined by the Workers’ Compensation Commission.

Blevins, 352 Md. at 622-23, 724 A.2d at 23.

Blevins confronted the issue of “whether the set-off applies to workers’ compensation benefits awarded after a county employee retired and began receiving disability retirement benefits pursuant to the county’s employee retirement plan but for a period preceding the effective date of the employee’s retirement.” Blevins, 352 Md. at 623, 724 A.2d at 23. After the workplace injury, the employee continued to work full time and suffered no lost wages, which precluded him from receiving TTD, but he did receive accidental disability retirement benefits upon retirement. Prior to retiring, the employee filed for workers’ compensation benefits:

In an order entered on February 23, 1996, the Workers’ Compensation Commission declined to award any benefits for temporary total disability, on the ground that there was “[n]o compensable lost time,” but it did award permanent partial disability benefits, based on a 20% industrial loss of use of the body by reason of the neck and back injuries, in the amount of $170 per week. The Commission’s order specified that the weekly benefit be paid for the period of January 22, 1994 through November 16, 1995 and provided that “thereafter any permanent partial disability due and payable is offset by claimant’s weekly pension benefits of $1,038.25.”

Blevins, 352 Md. at 623-24, 724 A.2d at 23. The county sought to have the entire amount offset, including the permanent partial disability benefits awarded to the employee before his retirement. Permanent partial disability benefits, however, are “lost earning capacity benefits,” not “wage loss” benefits. This distinction makes the two different for purposes of L & E § 9-610. The presented argument in Blevins for the offset relied on Frank v. Baltimore County:

[Bjecause the Commission “awarded [the employee] workers’ compensation benefits from the date of his injury forward, into the period of retirement during which [the employee] receive[d] disability benefits,” there was “a substantial period of overlap of benefits.” Under Frank, it held, “the entire workers’ compensation award should have been compared to the entire disability retirement award, irrespective of time frame.”

Blevins, 352 Md. at 626, 724 A.2d at 25 (citing Frank, 284 Md. at 661-63, 399 A.2d at 254-54). The Court of Appeals disagreed and held that the offset did not apply in Blevins because the employee was not receiving duplicate benefits for one injury:

The workers’ compensation benefits were awarded for a weekly period prior to his retirement, when he was not receiving and was not entitled to receive any offsetting retirement benefits. The fact that the actual award of workers’ compensation benefits or their payment came after his retirement is of no consequence. There was no overlap, as found by the Court of Special Appeals.

Blevins, 352 Md. at 627, 724 A.2d at 25.

That is essentially the same issue that we are confronted with here. Brady was absent from his job for sixteen and a half months before he retired. He was awarded permanent partial disability under L & E § 9-630 from the Workers’ Compensation Commission because his disability had become permanent. Prior to this permanency determination, Brady was receiving his accrued sick leave, which equates to TTD benefits under workers’ compensation laws.

Although Brady’s sick leave, as a form of wage loss protection, was not a benefit similar to permanent partial disability, a lost-earning capacity benefit, an offset should still apply. Because the award for permanent partial disability is to be “paid in addition to and consecutively with compensation for a temporary total disability” pursuant to L & E § 9-631, Brady would not start to receive the permanent partial disability award until after he ceased receiving TTD benefits (or in this case, the similar sick leave benefits). This Court has held that “the period of temporary total incapacity should not include any part of the period wherein the incapacity has become permanent.” Phuonglan Ngo v. CVS, Inc., 214 Md.App. 406, 424, 76 A.3d 499, 509 (2013) (citation omitted).

In its initial award of compensation and the first amended award, the Workers Compensation Commission provided as the effective date for the start of Brady’s permanent partial disability 15 February 2012. If, in fact, his disability had become permanent on 15 February 2012, then he would not be entitled to TTD benefits after that date, a position which Brady conceded in his brief before this Court. Thus, what Brady is asking the Court to allow during the gap period is a double-dipping that was not authorized by the statute or available under Maryland appellate courts’ interpretation of the workers’ compensation laws.

In Oros v. City of Baltimore, the employees were “paid full sick leave salary by the City [and t]hose salary-continuation payments served as a full set-off against the awards of temporary total disability.” Blevins, 352 Md. at 640, 724 A.2d at 31 (explaining Oros holding). When the employees sought permanent partial benefits, the City “attempted to set off the additional one-third that it paid during [the TTD] period against the permanent partial disability benefits.” Blevins, 352 Md. at 640, 724 A.2d at 31-32. This argument was based on the legislative intent “to preclude double-dipping into the same pot of comparable benefits.” Blevins, 352 Md. at 640, 724 A.2d at 32 (citing Oros, 56 Md.App. at 694, 468 A.2d at 697).

In Oros, the City was not allowed to offset that additional payment made previously because “sick leave benefits, which were in the nature of wage-loss protection, were not comparable to permanent partial disability benefits, which compensated not for wage loss but for loss of earning capacity.” Blevins, 352 Md. at 640, 724 A.2d at 32 (citing Oros, 56 Md.App. at 694, 468 A.2d at 697).

During the time that Brady was on leave from his position as a mechanic for the Board of Education, under his election, he received his full wages using accrued sick leave instead of available TTD benefits afforded under Workers’ Compensation laws. At the time he made this election, Brady was entitled to TTD benefits. When, however, the Workers’ Compensation Commission determined that his disability became permanent on 15 February 2012, Brady had been paid already TTD benefits in the form of his sick leave during that “gap” period. Additionally, Brady received more money by using his leave than he would have received under any lawful award for permanent partial disability, not unlike the situation present in Oros. The difference here is that the Board of Education is not asking to use the money paid already to offset Brady’s post-retirement permanent partial disability (which is already offset under L & E § 9-610). The Board of Education is asking that it not be required to pay Brady twice for the same injury because the two overlap.

The Court of Appeals concluded previously that when the alternative benefit exceeds what an employee would have received from workers’ compensation benefits, the employer is not obligated to pay additional funds to the employee and the set-off is “complete.” Blevins, 352 Md. at 622-23, 724 A.2d at 23. That is what happened here. The alternative benefit Brady received in the form of his full wages exceeded what he would have received under any workers’ compensation award. To refuse the Board of Education an offset of these funds would go against the Legislature’s intent that an injured employee is entitled to a single recovery for a single injury. The offset pursuant to L & E § 9-610 does not start until 1 July 2013, the date of Brady’s retirement, but we hold that the Board of Education is entitled to a complete offset of the funds paid to Brady for the “gap” period. Thus, we reverse the judgment of the circuit court and remand with instructions to remand the case to the Commission for entry of an amended order consistent with the views expressed in this opinion.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED. CASE REMANDED TO THE CIRCUIT COURT WITH DIRECTION TO ENTER AN ORDER REMANDING THE CASE TO THE WORKERS’ COMPENSATION COMMISSION FOR ENTRY OF AN AMENDED ORDER CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.

      . Section 16 of Article four provides specifically:
      A permanent or probationary employee of the Prince George’s County Public Schools who is temporarily disabled in line of duty shall receive full pay for the period of his disability up to ninety (90) working days without charge against his or her annual or sick leave beginning with the first day of disability [subject to additional conditions not present in Brady's case].

      . The $23,500 was calculated by Brady’s counsel under the terms of the collective bargaining agreement with the County.

      . As noted by Brady's counsel, Delfrieda Hudson, Director of Payroll Services for Prince George’s County Public Schools, in her deposition, stated a different calculation for sick leave upon retirement:
      Q. Now, when an employee retires and has in their account unused sick leave, how, if at all well — -what happens to that leave?
      A. That’s in section six. First paragraph, upon retirement, they shall receive three-tenths of unused sick leave not to exceed their full pay up to a maximum of 80 days for 11-month employees or 102 days for 12-month employees.
      Section six of the collective bargaining agreement states specifically:
      Upon retirement in Prince George's County, a classified employee shall receive payment for three-tenths of his or her unused sick leave, not to exceed full pay for up to a maximum of eighty (80) days for ten-month employees, eighty-six (86) days for eleven-month employees, one hundred two (102) days for twelve-month employees, or thirty (30) days of accumulated annual leave, whichever is greater. If Brady had elected TTD over his accrued leave, he would have been entitled to only 102 days of unused leave upon his retirement.

      . The language of § 33, the provision under analysis in Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979) and the predecessor to L & E § 9-610, provided:
      Whenever by statute ..., whether as part of a pension system or otherwise, any benefit or benefits are furnished employees ..., the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer ... for any benefit under this article. If any benefits so furnished are less than those provided for in this article the employer ... shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.

        Garrett v. Bd. of Educ. for Prince George’s Cnty., 94 Md.App. 169, 173—74, 616 A.2d 446, 448 (1992) (citing Md.Code Art. 101, § 33(d) (Supp. 1990)). Section 33 appears to us to be similar substantially to L & E § 9-610.

      . The sick leave and TTD benefits are of the same nature in that they are similar wage loss protections. See Oros v. City of Baltimore, 56 Md.App. 685, 692, 468 A.2d 693, 696 (1983).

      . In the Workers’ Compensation Commission’s Second Amended Award of Compensation (entered on 13 July 2015, apparently in response to the circuit court’s 2 June 2015 order), the Commission explained that it determined “that due to an administrative error, the first Amended Award of Compensation of the Commission did not specify the date that the offset was to begin.” It continued that sick leave was not a benefit similar to permanent partial disability and that the “offset, therefore, does not begin until [Brady] begins receiving disability retirement benefits on July 1, 2013.” This Second Amended Award was reserved pending our decision in this case.

      . On page 9 of his brief, Brady states "Commissioner Godwin found that permanent partial benefits were to begin on February 15, 2012. That date was therefore the end of the temporary total disability benefit period.” It was further conceded that permanent partial benefits were not payable after 1 July 2013 under L & E § 9-610.
      Once Brady retired on 1 July 2013, he began to receive his accidental disability retirement. Disability pensions and workers’ compensation benefits are considered to be similar benefits under L & E § 9-610. See Newman v. Subsequent Injury Fund, 311 Md. 721, 728, 537 A.2d 274, 277 (1988) (applying § 33(c)); see also Oros v. City of Baltimore, 56 Md.App. 685, 692, 468 A.2d 693, 696 (1983) (explaining that "by reason of [the] disability retirement election[,] the disability compensation benefit is "similar” in every sense to that of a disability pension [and t]he election to retire mooted whatever lost earning capacity purpose the compensation benefit may originally have contemplated”).

      . During the period that he would have been on TTD, Brady elected one of two options provided for in his union-negotiated contract. Brady cannot go back now and attempt to receive the other option as his sick leave and TTD benefits offset under workers' compensation laws. The proprietary interest Brady claims to have in his sick and personal leave does not affect the Board of Education’s entitlement to an offset because he made an apparently tactical decision to elect to take his leave over seeking TTD payments. Additionally, as explained in footnote 3, Brady was not entitled, upon retirement, to the cash value of every day of his accrued sick leave.