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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 856

SEPTEMBER TERM, 1996

MONTRO LORELL TILGHMAN v. STATE OF MARYLAND

Harrell, Salmon, Byrnes, JJ.

Opinion by Byrnes, J.

Filed: October 29, 1997

HEADNOTE: Montro Lorell Tilghman v. State of Maryland No. 856, September Term 1996

CONSTITUTIONAL LAW-CRIMINAL PROCEDURE-WAIVER OF RIGHT TO TESTIFYATTORNEY AND CLIENT-EVIDENCE-IMPEACHMENT WITH PRIOR CONVICTIONSSENTENCING-MERGER-BATTERY-ROBBERY-RULE OF LENITY-HANDGUN VIOLATION: Requirement that court take steps to assure that represented defendant is knowingly and intelligently waiving right to testify or to remain silent when court is put on clear notice that defendant is making choice based on erroneous advice of counsel; court is on clear notice if, without reference or resort to extrinsic information, advice of counsel about ramification of election to testify is overtly and facially erroneous; fact that erroneous advice is given by counsel does not rebut presumption of correct advice by counsel unless court is on clear notice that advice being given is incorrect; court did not err in failing to intervene where it was not evident without resort to extrinsic information that counsel was incorrectly advising defendant of potential for impeachment on cross-examination; court did not err in imposing sentences for battery and for robbery, as battery conviction arose out of a separate, subsequent incident and could not have been a lesser included offense of robbery conviction; rule of lenity required merger of conviction for carrying and wearing handgun into conviction for use of handgun in commission of a crime of violence.

A jury in Dorchester County convicted appellant Montro Lorell Tilghman of robbery with a deadly weapon, robbery, carrying and wearing a handgun, use of a handgun in the commission of a robbery, theft, assault, and battery. be the lesser included After merging what it determined to the trial court sentenced

offenses,

appellant to fifteen years imprisonment for robbery with a deadly weapon, a consecutive ten years for use of a handgun in the commission of a robbery, and concurrent terms of ten and three years for battery and carrying and wearing a handgun, respectively. Appellant presents three questions for review, which we have combined and reworded for clarity: I. Did the trial court err in not taking action to assure that appellant was properly advised of the risk of impeachment attendant to exercising his constitutional right to testify, before appellant waived that right? Did the trial court err in sentencing by a) failing to merge appellant's conviction of battery into his conviction for robbery with a deadly weapon? and b) failing to merge appellant's conviction for carrying and wearing a handgun into his conviction for use of a handgun in the commission of a crime of violence? With

II.

We answer "no" to question one and affirm the judgments.

respect to question two, we find that the trial court did not err in imposing the sentence for battery but did err in sentencing appellant for carrying and wearing a handgun; accordingly, we vacate that sentence.

FACTS
In the early morning hours of July 23, 1995, Dwayne T. Batson was sitting on the wall of the Pine Street amphitheater in the town of Cambridge, taking a break from riding his mountain bike.

Appellant approached Batson with a handgun and demanded that he turn over the bicycle. Batson resisted at first, but then

complied.

Appellant took the bike and left.

Batson walked to the next street, where he encountered a woman whom he recognized to be a friend of appellant. As Batson and the woman were engaged in conversation, appellant suddenly reappeared, holding a wooden board in one hand and the handgun in the other. Appellant charged after Batson, who ran. Appellant gave chase,

eventually catching up to Batson, who then hit appellant with his fist. Appellant dropped the board, fell to his knees, and shot Batson in the right thigh with the handgun. appellant still shooting at him. Batson fled, with

He found his bicycle in some His girlfriend

bushes, and rode it to his girlfriend's house.

called the police and an ambulance, which transported Batson to the hospital, where he was admitted for treatment. The police

interviewed Batson at the hospital.

Batson told them that he had The police identified

been robbed and shot by a person named "Montro." compiled a photographic array, from which Batson

appellant as his assailant.

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On September 20, 1995, appellant was charged by information with robbery with a deadly weapon; robbery; assault with intent to rob; assault with intent to murder; two counts of carrying and wearing a handgun; two counts of use of a handgun in the commission of a crime of violence (one each for the robbery and assault with intent to murder charges); theft under $300.00; reckless

endangerment; assault; and battery.

Counsel entered her appearance

on appellant's behalf on October 24, 1995 and, the following month, filed a motion challenging appellant's competency to stand trial. On December 22, 1995, Donald W. Nachand, Ph.D., of Clifton T. Perkins Hospital Center, examined appellant and determined that he was competent to stand trial under the standards set forth in Health General

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