DeLeon v. State

MOYLAN, Judge. When a statutory sentencing provision for an inchoate crime, such as attempt or conspiracy, expressly sets as the maximum sentence for such inchoate crime the maximum sentence that has been provided for the substantive “target” crime, to what extent, if any, does that sentencing ceiling embrace any mandatory minimum sentencing requirements that have been imposed on the punishment for the substantive offense? Analytically, the answer should be the same whether the mandatory minima have been established across the board for the substantive offense or whether they apply only to ⁶¹ certain violators of the substantive offense who qualify for enhanced punishment. A closely related question is whether increasing the maximum punishment for the substantive crime, either by lengthening the term of imprisonment or by making the conditions thereof more severe, not across the board generally but only for certain violators who qualify for enhanced punishment will correspondingly increase the maximum available penalty for those special perpetrators of the inchoate crimes who meet the same qualifications.

These are problems with a number of permutations. The appellants, Robert DeLeon, Thomas Foster, and Rosa Rodriguez, were all found to be guilty upon their pleas of guilty in the Circuit Court for Howard County. They each entered a guilty plea to the charge of conspiracy to distribute heroin, as well as to other charged conspiracies to violate the Controlled Dangerous Substances Act in various ways. The Enhanced Sentencing in this Case At the time of sentencing, the convictions for the other conspiracies were either merged into the convictions for conspiring to distribute heroin or, in two instances, the sentences were made concurrent with the sentences for conspiring to distribute heroin.

For conspiracy to distribute heroin, the three appellants were given sentences, respectively, of fifteen years, twenty years, and twenty years, with various provisions dealing with the suspension of part of the sentences and with probation to follow. The common denominator sentencing provision, and all that concerns us here, was that, pursuant to Art. 27, § 286(f)(3), the first five years of each sentence was ordered to be served without the possibility of parole. The single contention now raised is that that no-parole provision was beyond the trial court’s authority to impose. The appellants, accordingly, filed Applications for Leave to Appeal, which were granted by this Court. ⁶² Sentencing for Conspiracy The modern crime of conspiracy is essentially a product of the English Court of Star Chamber and especially its 1611 decision in The Poulterer’s Case, 77 Eng.Rep. 813.

As a common law crime brought into Maryland with the first settlement and guaranteed by Article 5 of the Maryland Declaration of Rights, it carried with it the common law penalty of any sentence deemed appropriate in the sound discretion of the trial court, unless some other sentencing provision has been enacted by the Legislature. 1 The one minimal limitation early placed on such discretionary sentencing was that the sentence could not be cruel or unusual within the contemplation of the Eighth Amendment of the United States Constitution or Article 25 of the Maryland Declaration of Rights. There are now several sentencing provisions for conspiracy that have been provided by the Legislature. As their very wording reveals, however, they are not authorizing provisions creating in the trial court the authority to impose sentence. They are, quite to the contrary, hmiting provisions, restraining, to the extent spelled out, the otherwise freewheeling authority of the trial court to impose any sentence subject only to the constraints of its sound'discretion and the constitutional inhibitions.

The general restraining provision is that now spelled out by Article 27, § 38: ⁶³ The punishment of every person convicted of the crime of conspiracy shall not exceed the maximum punishment provided for the offense he or she conspired to commit, (emphasis supplied). That, by its very terms, is a limiting provision, not an authorizing provision. Implicitly, however, a sentencing provision setting an upper limit confirms that the common law’s discretion as to sentencing is free to operate up to that limit. With respect to the doctrinally indistinguishable statutory limit imposed on sentencing for the inchoate crime of attempt, we observed in Walker v. State, 53 Md.App. 171, 187 , 452 A.2d 1234 (1982): We read into that explicit legislative prohibition against exceeding certain limits, an implicit legislative approval of going up to those limits.

See also State v. Hardy, 53 Md.App. 313, 315 , 452 A.2d 1299 (1982), aff'd, 301 Md. 124 , 482 A.2d 474 (1983). For violations of the Controlled Dangerous Substances Subtitle, § 290 provides an indistinguishable sentencing limitation as far as those particular conspiracies are concerned. It does embrace as well, however, a sentencing “cap” for another inchoate crime, attempt, 2 and for attempt’s seemingly indistinguishable clone of “endeavoring.” 3 Section 290 provides: ⁶⁴ Except as provided otherwise under this subheading, any person who attempts, endeavors or conspires to commit any offense defined in this subheading is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt, endeavor or conspiracy, (emphasis supplied). The Sentencing Labyrinth of § 286 The underlying crime toward which the appellants conspired was that spelled out by § 286(a)(1), which provides, in pertinent part: [I]t is unlawful for any person: to ... distribute ... a controlled dangerous substance ...

If the controlled dangerous substance that the appellants conspired to distribute, moreover, was a narcotic drug, such as the heroin in this case, subsection (b)(1) then provides that the violator “is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both.” For conspiring to violate the combination of subsections (a)(1) and (b)(1), § 290 would thus seem to provide the corresponding limitation that the sentence not exceed imprisonment for twenty years or a fine of $25,000 or both, unless some greater sentencing possibility has been “provided otherwise under this subheading.” From this point on in this opinion and simply for the sake of linguistic simplicity, we are going to discuss the sentencing question only in terms of its imprisonment aspect. That is the only variable that concerns us in this case. Our failure to mention the alternative or additional possibility of a monetary fine is nothing more than an avoidance of a needless repetition of an alternative and/or additional sentencing possibility that does not affect this decision. ⁶⁵ The substantive crime toward which the appellants conspired carries a presumptive maximum term of imprisonment of twenty years. The presumptive maximum sentence for the inchoate conspiracy is, thereby, also twenty years.

If the maximum for the substantive crime were to be raised to forty years, the maximum for the conspiracy would correspondingly rise with it. If the maximum for the substantive crime were reduced to ten years, the maximum for the conspiracy would ipso facto fall with it. That simple correlation, however, does not begin to resolve more subtle questions such as what, if any, impact there might be on the sentencing range for conspiracy when special sentence-enhancing provisions are enacted for its underlying substantive offense, such as 1) a mandatory minimum, either generally or for some special offenders under certain special circumstances; 2) a mandatory no-parole provision; 3) a mandatory no-suspension-of-sentence provision; or 4) a higher maximum sentence not for the crime generally but for certain special offenders, such as recidivists. For the substantive crime of violating subsection (a), subsection (b) provides the normal, non-enhanced penalties. 4 Subsections (c), (d), (e), and (f) of § 286 then provide four sentence-enhancing provisions for four respective sets of aggravating circumstances.

Subsection (c) provides that if the convicted defendant has been convicted under subsections (b)(1) or (b)(2) and has previously been convicted of a similar substantive offense under the laws of this State or any other American jurisdiction or has been convicted of conspiracy to commit such an offense, the following sentence-enhancing provisions shall apply: 1) there will be a mandatory minimum of ten years imprisonment, 2) the sentence may not be suspended to less than ten years, and 3) there can be no parole during that ten-year period. ⁶⁶ Subsection (d) deals with similarly convicted defendants who, inter alia, have two qualifying prior convictions. The sentence-enhancing provisions in such a case include 1) a mandatory minimum sentence of not less than twenty-five years, 2) a mandatory non-suspension-of-sentence provision for the entire twenty-five years, and 3) a mandatory no-parole provision for the entire twenty-five years. Subsection (e) deals with a similarly convicted defendant with, inter alia, three or more such qualifying prior convictions and provides, by way of sentence enhancement: 1) a mandatory minimum of forty years, 2) mandatory non-suspension for the entire forty years, and 3) mandatory no-parole for the entire forty years. Subsection (f), of immediate concern to us on this appeal, deals with a sentence-enhancing qualifier other than recidivism.

It treats as the aggravating factor for a conviction under subsection (a)(1) the respective quantities of various controlled dangerous substances involved in the illicit manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense. Upon the showing of such a requisite quantity of the requisite substance, 1) the convicted defendant will be subject to a mandatory minimum of five years imprisonment, 2) none of that five-year term of imprisonment may be suspended, and 3) the prisoner will not be eligible for parole during such five-year period. The Setting, By Reference, of a Maximum Does Not Incorporate, By Reference, a Mandatory Minimum Turning from these sentence-enhancing provisions for the substantive crimes to the sentencing possibilities for conspiracy to commit such substantive crimes, to what extent, if any, does § 290, providing that the conspiracy punishment “may not exceed the maximum punishment prescribed for” the substantive offense, also embrace the statutory, sentence-enhancing provisions provided for the substantive offense? The answer is little, if any.

There are a number of reasons for such an answer. ⁶⁷ In a very fundamental sense, neither § 290 nor § 38 do anything to the possible sentence for conspiracy other than impose a ceiling on the trial judge’s otherwise open-ended common law sentencing discretion. The conspiracy sentencing provisions and the substantive crime sentencing provisions are linked only at their upper ends, not at their lower ends. To legislate as to the ceiling is not to legislate as to the floor. A sentencing provision that provides only that a sentence “may not exceed the maximum ” provided for something else clearly does not incorporate any minimum or mandatory provisions provided for that something else.

Indeed, mandatory minima, mandatory non-suspension provisions, and mandatory no-parole provisions are antithetical to the wide-open discretion that is the salient characteristic of common law sentencing. The common law, in this or in any other regard, may not be repealed by implication. Unless expressly abrogated, common law sentencing discretion for conspiracy would include the options of imposing less than the statutory minimum provided for the target substantive offense, imposing no sentence of imprisonment at all, suspending all or any part of any sentence imposed, and refraining from any attempt to interfere with the normal operation of parole procedures. To legislate that an otherwise discretionary sentence may not go above some designated maximal point does not even imply, let alone unequivocally state, that such discretion may not go below some designated minimal point.

To engraft, by implication, a mandatory minimum—be it a minimum sentence or a minimum on eligibility for a suspended sentence or a minimum on eligibility for parole— onto a conspiracy sentencing statute that has no such express minima would be to repeal common law sentencing discretion by implication. In terms of an arguably mandatory provision that all or part of a sentence not be suspended, § 643 would control where applicable: In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the several judges of the circuit courts of the counties and of the ⁶⁸ District Court of Maryland may, in lieu of the minimum penalty so prescribed, impose a lesser penalty of the same character ... Both State v. Fisher, 204 Md. 307, 313-315 , 104 A.2d 403 (1954) and Woodfork v. State, 3 Md.App. 622, 624-625 , 240 A.2d 314 (1968) have held that § 643’s bar on mandatory minimum sentences applies only to sentencing provisions in effect prior to the time of its enactment by ch. 536 of the Acts of 1906. If subsequently enacted sentencing provisions expressly authorize mandatory minimum sentences, those subsequent expressions of legislative intent will, of course, be controlling.

The common law sentencing for both attempt and conspiracy, however, antedate ch. 536 of the Acts of 1906 by at least three hundred years and are, therefore, controlled by it in the absence of any post-1906 express command to the contrary. With respect to the arguably mandatory provision that the trial judge sentence the appellants to no less than five years of non-suspended imprisonment and that those five years be served without possibility of parole, we find the recent decision of the Court of Appeals in Taylor v. State, 333 Md. 229 , 634 A.2d 1322 (1993), to be highly persuasive. That case, as this, dealt with an arguably mandatory no-parole provision. It dealt with it in the context of § 643B(c), providing for mandatory enhanced sentences for habitual perpetrators of certain enumerated crimes of violence.

The defendant there was sentenced to a term of life imprisonment for first-degree murder. Three qualifying prior convictions for crimes of violence were proved against him. A reading of § 643B(c), however, gave rise to a question of whether the no-suspension and no-parole provisions of that subsection necessarily applied to the entire term of life imprisonment or only to the mandatory minimum term of twenty-five years. In terms of statutory construction, the Court looked to its own earlier decision of Malcolm v. State, 314 Md. 221 , 550 A.2d 670 (1988) and concluded: ⁶⁹ We found the language of that statute to be ambiguous with respect to whether the limitation on parole eligibility applied only to the 10-year minimum sentence, or whether the limitation could be applied as well to any longer sentence that might be imposed.

Malcolm v. State, 314 Md. at 234 , 550 A.2d at 676 . We relied on the long-standing rule that “where, as here, a penal statute is ambiguous, the provision should be construed in favor of the defendant.... ” (emphasis supplied). 333 Md. at 235 , 634 A.2d 1322 . Judge Karwacki’s analysis, 333 Md. at 234 , 634 A.2d 1322 , recognized that it is within the total discretion of the sentencing judge to suspend all or part of a sentence and similarly within his discretion, under § 412(d), whether to order that the sentence be served with or without the possibility of parole, except to the extent that that discretion has been cabined by some express legislative provision to the contrary: We begin our analysis with the recognition that first degree murder which does not meet the criteria for the death penalty ... is punishable by life imprisonment, which may be ordered to be with or without parole in the discretion of the sentencing judge. It is also within the discretion of the judge to suspend all or part of a sentence of life imprisonment pursuant to Md.Code (1957, 1992 Repl.Vol.) Article 27, § 641A, unless the power of the trial court to do so is limited by some other provision of law.

(citations and footnote omitted) (emphasis supplied). In Taylor , there was genuine doubt as to whether the no-suspension and no-parole provisions applied to all of the sentence imposed. Judge Karwacki explained why such doubt had to be resolved in favor of the defendant: It is, in the very least, ambiguous with respect to the limitation on parole eligibility and the limitation on a judge’s ability to suspend the sentence. Because an enhanced punishment statute is “highly penal, [it] must be strictly construed.” (“[WJhere there is doubt concerning the severity of the penalty prescribed by a statute, a milder penalty ⁷⁰ over a harsher one will be favored.”) Because the language of § 643B(c) is ambiguous with respect to the harshness of the penalty to be imposed, the reasoning this Court applied in Malcolm, supra, is equally applicable here, (citations omitted) (emphasis supplied). 333 Md. at 237 , 634 A.2d 1322 .

In terms of the applicability of the mandatory no-parole provision of § 286(f)(3) to the convicted conspirators in this case, the State has not generated so much as a state of doubt. Even had it done so, however, under the authority of Taylor we would resolve that doubt in favor of the appellants. See also Malcolm v. State, 314 Md. 221, 234 , 550 A.2d 670 (1988); Gargliano v. State, 334 Md. 428 , 639 A.2d 675 (1994). Enhancing the Available Maximum Sentence What happens, however, at the other end of the sentence-enhancing spectrum, where the effect of the enhancing provision is not to provide mandatory minima but, rather, to raise the available maximum sentence for those qualifying for enhanced punishment?

When the sentence enhancement is not a mandatory minimum on the sentence or on the suspension thereof or on parole but is instead an “upping of the ante” on the maximum term of imprisonment, the question of the linkage between sentence enhancement for certain perpetrators of the substantive crime and similarly situated conspirators is more problematic. Subsections (d) and (e), for instance, raise an ordinary twenty-year maximum to maxima of twenty-five years and forty years, respectively, for “three time” and “four time losers.” 5 Would § 290 similarly permit ⁷¹ convicted conspirators who are “three time” or “four time losers” to be sentenced to as much as twenty-five years or forty years? The question is not literally before us for subsection (f), here pertinent, has no such enhancing provision. Indeed, as a practical matter, the question can never arise.

A conspirator meeting the profile described either by subsection (d) or subsection (e) will never be sentenced under § 290. Both of those sentence-enhancing provisions expressly include as a qualifying predicate crime either the substantive violations there spelled out or the conspiracy to commit such substantive violations. The enhanced sentencing for such conspirators, therefore, both in terms of higher maximum sentences and in terms of the whole panoply of mandatory minima, is done directly pursuant to the sentencing provisions of subsections (d) and (e). Section 290 is in no way involved.

For reasons to be more fully discussed as we address the last sub-issue, it is logically compelling that when a sentencing provision such as § 290 states that the punishment for an inchoate crime shall not exceed the maximum punishment provided for the target crime, such a provision contemplates the ordinary maximum available for all who perpetrate the target crime and does not incorporate the enhanced penalty provisions available only for certain of those perpetrators. Section 648B, by way of analogy, provides significantly enhanced sentencing for recidivist perpetrators of designated crimes of violence. It would strain credulity to argue that under § 38, providing generally that a sentence for conspiracy may not exceed the maximum sentence tor the target crime, a conspirator to commit armed robbery, appropriately recidivistic, could be subjected to the enhanced sentences available under § 643B. A reference to another inchoate crime, attempt, would clinch that argument.

Rather than rely upon the strained argument that an attempted armed robber could, ⁷² under § 644A, be subjected to the same enhanced penalties as the perpetrator of a consummated armed robbery, § 643B expressly included “an attempt to commit any of the aforesaid offenses” within its direct substantive coverage. Even doubt in this regard, of course, would be resolved in a defendant’s favor by virtue of the Rule of Lenity. Even If A Judge Is Not Required To Order No-Parole, May He Do So? The problem is slightly more involved when it comes to the possibly secondary or indirect effects of sentence-enhancing provisions of the mandatory-minimum variety.

There are three common provisions of this type. They are 1) a mandatory minimum sentence, 2) a mandatory provision that none of a sentence be suspended or that a designated part of it not be suspended, and 3) a mandatory provision that for all or for a designated part of a sentence the possibility of parole will be forbidden. Even granting that the mandatory aspect of such a provision for the substantive offense shall have no effect on a provision limiting only the maximum sentencing available for conspiracy, to what extent might such a provision, even if non-mandatory, nonetheless create a permissive possibility for the conspiracy sentence to be made more severe? If it might create such a penalty enhancing possibility, would that not be an instance of raising the maximum allowable punishment?

Would § 290 permit that? Two of the mandatory minimum provisions do not even lend themselves to this analysis because as non-mandatory, permissive possibilities, they are meaningless redundancies. A mere permissive option to impose for conspiracy the statutory minimum for the target offense is subsumed in the greater option to impose an even longer sentence. A mere permissive option not to suspend all or part of the conspiracy sentence is self-evidently available whether a no-suspension provision for the substantive offense had ever been enacted or not.

This is not so, however, when it comes to a no-parole provision. Even if such a provision is not mandatory for a conspiracy sentence, the question remains of whether the ⁷³ conspiracy sentencing judge has now been given the option of imposing this additional penal sanction that would not otherwise have been in his arsenal. On the one hand, a term of imprisonment of twenty years without the possibility of parole is no longer and no greater than a term of imprisonment for twenty years without such a condition. On the other hand, the conditions under which that term of twenty years will be served have been made, in a very significant regard, more severe.

What precisely does the phrase “maximum punishment” connote and what precisely does an upper limit on such “maximum punishment” forbid? Even if the trial judge was not required to impose on the three appellants in this case the condition that five years of their respective sentences would be served without possibility of parole, would he have been permitted to do so in the exercise of his sentencing discretion? If a no-parole condition is not generally available as a sentencing option but is available (indeed, mandatory) for a violation of § 286(a)(1) by virtue of § 286(f)(8), does it thereby also become an available option (even if not mandated) for those convicted of conspiring to violate § 286(a)(1) who satisfy the additional requirements of § 286(f)(3)? The answer is, “No.” No Inherent Judicial Power To Restrict Parole It is not an inherent part of the judicial sentencing function to regulate in any fashion the eligibility of a convicted prisoner for parole.

Except in those limited circumstances when the Legislature has expressly empowered the courts to impose no-parole provisions under certain very specifically designated circumstances, the parole function is exclusively within the control of the executive branch of government. The best analysis we have found of this basic separation-of-powers issue is that by Judge Alpert in Simms v. State, 65 Md.App. 685, 689-690 , 501 A.2d 1338 (1986): Parole ... is a purely executive function, the exercise of which must be, and by statute is, committed to an executive agency—the Maryland Parole Commission. See Md.Code Ann. art. 41, § 110(a): “The Commission has the exclusive ⁷⁴ power to ... ‘[authorize the parole of individuals sentenced under the laws of this State to any penal or correctional institution, jail, or other place of confinement or detention within this State____’ A parole is an act of executive clemency. It does not involve the sentencing function or any other judicial function.

It is a conditional release (rather than exemption) from imprisonment granted by the Parole Commission which “entitles the recipient thereof to leave the institution in which he was imprisoned, and to serve the remainder of his term outside the confines thereof if he shall satisfactorily comply with all the terms and conditions in the parole order.” Art. 41, § 107(e) (emphasis added); Murray v. Swenson, 196 Md. 222 , 76 A.2d 150 (1950). A judicial order of restitution as a condition of parole is not binding on the Parole Commission. The Commission may, if it chooses, exercise its discretion in light of such comments or recommendations of a sentencing judge, or it may ignore them. COMAR 12.08.01.18A so provides: (1) The commission shall have the exclusive power of parole release.” (emphasis in original).

In the Simms case, the sentencing judge had attempted to make restitution to the victim a condition of the defendant’s parole eligibility. We held, 65 Md.App. at 690-691 , 501 A.2d 1338 , that although a judge might condition probation eligibility on the making of restitution, because probation is under the inherent control of the judicial branch of government, the judiciary, absent some express grant of authority by the Legislature, may not impose conditions on parole eligibility: If, indeed, as we indicated earlier, the granting of parole is an executive function to be exercised exclusively by the Parole Commission, it necessarily follows that only the Parole Commission can determine the conditions to be attached to a parole. For a court to attempt to do so would involve the exercise of a non-judicial function and would necessarily intrude upon the discretion committed to the Parole Commission. We do not believe that the legislature ⁷⁵ ever intended to violate the “Separation of Powers” doctrine and therefore the statute must be construed so as to preclude the imposition of parole conditions by a court.

In Collins v. State, 318 Md. 269 , 568 A.2d 1 (1990), the Court of Appeals held that there is no inherent power in the judicial branch of government to order that a sentence be served without possibility of parole, except in those limited circumstances where the Legislature has specifically authorized the judicial branch to do so. 6 Prior to July 1, 1987, the only penalties available for a convicted first-degree murderer were death or imprisonment for life. Chapter 237 of the Acts of 1987 added the third