Booze v. State

⁴⁰⁴ KENNEY, Judge. Appellant, Dewayne A. Booze, 1 was convicted at a bench trial in the Circuit Court for Baltimore County of possession with intent to distribute cocaine. He was also convicted of solicitation for prostitution, malicious destruction of property, simple possession of cocaine, and two counts of first degree assault. We are concerned only with the charge of possession with intent to distribute and its corresponding sentence.

The facts of the incident leading to the charges against appellant, which can be found in the opinion resulting from appellant’s first appeal, Booze v. State, No. 247, Sept. Term, 1998, 128 Md.App. 796 (Oct. 16, 1998), are not relevant to our decision in the instant appeal. Appellant presents one question on appeal: Did the trial court err in denying [appellant’s] motion to correct an illegal sentence? We hold that his sentence was not illegal and that the trial court did not err in denying the motion. FACTUAL AND PROCEDURAL BACKGROUND Appellant, in an unrelated matter, had pled guilty in the Circuit Court for Anne Arundel County on August 23, 1994, to possession with intent to distribute cocaine, a violation of Md.Code Ann. (1957, 1996 Repl.

Vol, 1997 Supp.), Article 27, § 286(b)(1). Prior to trial in this case, the State served appellant with notice in accordance with Maryland Rule 4-245, that it intended to proceed against him as a subsequent offender under Article 27, § 286, and that, if convicted, he would be sentenced to a term of incarceration of not less than ten years without the possibility of parole. Appellant was convicted and received a mandatory ten year sentence, in accordance with Maryland Code, Article 27, § 286(c). ⁴⁰⁵ On August 17, 2000, appellant filed a Motion to Correct an Illegal Sentence, alleging that the sentence imposed was illegal because he had not been warned at the time of his 1994 plea that a subsequent conviction would result in a mandatory minimum sentence. Appellant’s motion was denied on August 24, 2000, and, on September 1, 2000, appellant noted this appeal.

DISCUSSION Maryland Code, Article 27, § 286(c) provides, in pertinent part: (c)(1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imprisonment for not less than 10 years if the person previously has been convicted: (1) Under subsection (b)(1) or subsection (b)(2) of this section; (ii) Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section; or (iii) Of an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection (b)(1) or subsection (b)(2) of this section if committed in this State. (2) The prison sentence of a person sentenced under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section or any combination of these offenses, as a second offender may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with Article 31B, § 11 of the Code. Appellant contends that, “in fairness,” he should not be subject to the enhanced sentencing provision of Article 27, § 286(c) because the legislature intended that an enhanced penalty be imposed only after a defendant had been explicitly warned of the potential consequences of a subsequent conviction and that he was not so warned when he pled guilty in ⁴⁰⁶ 1994. The State contends that it had no legal obligation to inform appellant “of the contents of Maryland’s criminal code.” Neither the Court of Appeals nor this Court has dealt with this issue in the context of Article 27, § 286(c).

The cardinal rule of statutory construction is to ascertain and effectuate the intention of the legislature. Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675 (1994); Hawkins v. State, 302 Md. 143, 147 , 486 A.2d 179 (1985). To determine legislative intent, we look primarily to the language of the statute itself. Hawkins v. State, 302 Md. at 147 , 486 A.2d 179 .

Where the statutory provisions are unambiguous, no construction is required. Id. “We consider the goals or purpose to be served by the statute and the evils or mischief that the General Assembly sought to remedy and construe the statute in accordance with its general purposes and policies.” Gargliano, 334 Md. at 435 , 639 A.2d 675 . In addition, we read the words of the statute “in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence.” Id. (quoting Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126 (1989)).

This requires that § 286(c) be read in conjunction with other subsections of the statute in order to give effect to the whole statute and harmonize its provisions. See Gargliano, 334 Md. at 436 , 639 A.2d 675 . There is nothing in the language of § 286(c) that limits the application of the enhanced penalty provisions to defendants that have been warned expressly of them at the time of a prior conviction. Moreover, the statute, read as a whole, indicates that the General Assembly intended no such limitation.

For example, subsection (c)(l)(iii) states that the enhanced penalty provision is applicable to a person who previously has been convicted “[o]f an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection (b)(1) or subsection (b)(2) of this section if committed in this State.” Certainly, the legislature would have no reason to believe that a person convicted of a similar crime in another jurisdiction would be ⁴⁰⁷ warned of the enhanced penalty provisions of the Maryland statute. Appellant cites Gargliano , a case that is factually different and in which the Court of Appeals considered whether the prior conviction must precede the commission of the principal offense. In Gargliano , the defendant sold cocaine to an undercover police officer in December 1989, January 1990, and on December 21,1990. He was arrested for the first two sales on December 21, 1990, and subsequently convicted of two counts of distribution of cocaine.

Before the defendant went to trial for the December 21,1990 sale, the State advised of its intent to seek an enhanced sentence based on the two earlier cocaine sales. As the Court noted, the defendant “committed the December 1990 offense before he was convicted — indeed, before he was even arrested — for either of the two prior sales.” Gargliano, 334 Md. at 432 , 639 A.2d 675 . In interpreting § 286(c), the Court followed the majority rule among the states that “the prior conviction fused to enhance a sentence] must precede the commission of the principal offense.” Id . at 445-46, 639 A.2d 675 (emphasis in original). Because the defendant’s convictions on the December 1989 and January 1990 sales did not occur prior to December 21, 1990, sentencing enhancement was improper.

Appellant uses as a springboard to his fairness argument the Court’s observation in Gargliano, 334 Md. at 444 , 639 A.2d 675 , that the deterrence purpose of statutes such as § 286(c) is achieved by fair warning to previous offenders that if they continue to commit criminal acts after having had the opportunity to reform after one or more prior contacts with the criminal justice system, they will be imprisoned for a considerably longer period of time than they were subject to as first offenders. The Gargliano Court went on to say, however: Where, as here, the defendant has not been convicted of an earlier offense, and thereby warned about the enhanced consequences of future criminal conduct, prior to the com ⁴⁰⁸ mission of the principal offense, the imposition of an enhanced penalty is