Cox v. State

MURPHY, Chief Judge. In the Circuit Court for Baltimore County, Bryan Walter Cox, appellant, filed an Application for Review of Sentence by Three Judge Panel. Chief Judge Edward A. DeWaters, Jr. dismissed that application, and appellant now presents the following question for our review: ⁴⁶⁷ Does Article 27, § 645JA and § 645JC permit review of a mandatory minimum sentence by a three judge panel if the sentence was imposed prior to the July 1, 1999 effective date of the statute? For the reasons that follow, we shall answer “no” to that question and therefore affirm the judgment of the circuit court.

Background On July 15, 1992, appellant was convicted of daytime housebreaking. On October 29, 1992, pursuant to Article 27, § 643B, he received a “mandatory minimum” sentence of 25 years without the possibility of parole. Appellant filed an appeal to this Court. In an unreported per curiam opinion, we affirmed the judgment of the circuit court.

Appellant then filed a petition for writ of certiorari. The Court of Appeals denied that petition on December 10,1993. On January 13, 2000, appellant filed the application at issue. 1 On February 18, 2000, Chief Judge DeWaters issued the following ruling: The Application for Review of Sentence filed on January 13, 2000 in the above case is hereby dismissed as untimely. The statute [Article 27-645JC(b)(2)(I) & (II) ] effective July 1,1999 resulting from House Bill 602 is held not retroactive.

This appeal followed. Discussion When appellant was sentenced, Md.Code Ann., Article 27 645JA provided, in pertinent part: Unless no different sentence could have been imposed or unless the sentence was imposed by more than one trial judge, every person convicted of a crime by any trial court ⁴⁶⁸ of this State and sentenced to serve, with or without suspension, a total of more than two years imprisonment in any penal or correctional institution in this State shall be entitled to have the sentence reviewed by a panel of three or more trial judges of the judicial circuit in which the sentencing court is located. However, a person has no right to have any sentence reviewed more than once pursuant to this section. Notwithstanding any rule of the Court of Appeals to the contrary, the judge who sentenced the convicted person shall not be one of the members of the panel, but if he so desires he may sit with the panel in an advisory capacity only.

(Emphasis added). In 1999, House Bill 602 (1999 regular session) modified §§ 645JA and 645JC. 2 As stated in the Synopsis of House Bill 602, it would modify the applicable statutes so as to “authorize a criminal sentence review panel to order a de ⁴⁶⁹ crease in a mandatory minimum sentence under specified circumstances.” The Bill was passed and the new versions of §§ 645JA and 645JC took effect on July 1, 1999. 3 Neither statute provided for retroactive application. “The cardinal rule in construing statutes is, of course, to ascertain and effectuate the legislative intention.” Mason v. State, 309 Md. 215, 219 , 522 A.2d 1844 (1987) (citing Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730 (1986)). If legislative history is “unenlightening,” the courts apply “several well settled rules of statutory interpretation [that] are applicable to ascertaining the actual intention of the legislature,” including the following: (1) A statute is presumed to operate prospectively from its effective date, absent clear language to the contrary, or unless the manifest intention of the Legislature indicates otherwise; (2) Despite the presumption of prospectivity, a statute effecting a change in procedure only, and not in substantive rights, ordinarily applied to all actions whether accrued, pending or future, unless a contrary intention is expressed; and (3) A statute affecting or impairing substantive rights will not operate retrospectively as to transactions, matters, and events not in litigation at the time the statute takes effect unless its language clearly so indicates.

Mason, supra, at 219-20 , 522 A.2d 1344 . The presumption that statutes operate prospectively is discussed in State Commission on Human Relations v. Amecom Division of Litton Systems, Inc., 278 Md. 120, 123-24 , 360 A.2d 1 (1976); Rigger v. Baltimore County, 269 Md. 306, 310, 305 A.2d 128 (1973); Kastendike v. Baltimore Ass’n, 267 ⁴⁷⁰ Md. 389, 395-96 , 297 A.2d 745 (1972); and Ireland v. Shipley, 165 Md. 90, 97-98 , 166 A. 593 (1933). This presumption “is particularly applicable where the statute adversely affects substantive rights, rather than only altering procedural machinery.” Washington Suburban Sanitary Com’n v. Riverdale Heights Volunteer Fire Co., Inc., 308 Md. 556, 561-62 , 520 A.2d 1319 (internal citations omitted). “When the General Assembly intends a statute to have a retroactive application, it knows how to express that intent.” Id. at 568 , 520 A.2d 1319 . “The presumption against retrospectivity is rebutted only where there are clear expressions in the statute to the contrary.” Washington Suburban Sanitary Com’n v. Riverdale Heights Volunteer Fire Co., Inc., 308 Md. 556, 560 , 520 A.2d 1319 (1987). (internal citations omitted). “Moreover, even when permissible, retrospective application is not found except upon the