Fenwick v. State

ADKINS, Judge. A jury in the Circuit Court for St. Mary’s County convicted Roland Louis Fenwick, appellant, of second degree rape and fourth degree burglary, and acquitted him of first degree rape, battery, first degree burglary, and third degree burglary. Appellant received consecutive sentences—twenty years for the second degree rape felony, with ten years suspended in favor of five years probation, plus three years for the fourth degree burglary misdemeanor, with all but one year suspended. Appellant’s sole contention on appeal is that the trial court erred in “imposing separate, consecutive sentences for second degree rape and fourth degree burglary.” We find no error, and affirm the judgments.

FACTS AND LEGAL PROCEEDINGS The prosecuting witness testified that in August 1996, she had broken off her five year relationship with appellant, and ¹⁷¹ changed the locks to her house. In the early morning hours of September 14, 1996, she refused to answer the telephone when the caller ID indicated two calls from appellant. Later, she was awakened from her sleep by appellant standing in her room, pulling off her bedcovers. She told him to leave, picked up the telephone, and said she was going to call the police.

After a struggle, appellant raped her. Appellant admitted the estrangement, but testified that he had maintained daily telephone contact with the victim. He stated that he went to her house that night after she paged him. When she didn’t answer his knocks at the door or bedroom window, appellant removed a window screen and climbed in.

Appellant claimed that although they initially argued, they eventually had consensual intercourse. DISCUSSION Appellant’s challenge to his fourth degree burglary sentence is predicated upon his comparison of the first degree rape statute with the second degree rape and fourth degree burglary statutes. • Maryland Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, 1 section 462 provides that “[a] person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and [inter alia ] ... [t]he person commits the offense in connection with burglary in the first, second, or third degree.” The crime is a felony for which the maximum penalty is life imprisonment. • Section 463 provides that “[a] person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person, [inter alia,] [b]y force or threat of force against the will and without the ¹⁷² consent of the other person.” The crime is a felony with a maximum penalty of 20 years imprisonment. • Section 32 provides that a person is guilty of fourth degree burglary inter alia if the person “break[s] and enter[s] the dwelling of another.” The crime is a misdemeanor with a maximum penalty of three years imprisonment. The difference between burglary in the fourth degree and burglary in the first, second, or third degree is that unlike the latter felony offenses, fourth degree burglary is a misdemeanor that does not require proof, at the time of the breaking and entering, of an intent to commit another crime inside the dwelling. See § 29 (burglary in first degree), § 30C (burglary in second degree), and § 31 (burglary in third degree).

Citing sections 32, 462, and 463 and fairness concerns, but no case law or legislative history, appellant asks us to vacate his sentence on the fourth degree burglary conviction. He notes that for purposes of this case, the only relevant difference between first and second degree rape is that first degree rape is rape committed in connection with burglary in the first, second, or third degree. He argues that the Legislature, by “enhancing” the sentence for second degree rape only in connection with the first three degrees of burglary, expressed its intention not to similarly “enhance” a sentence for second degree rape when the rape is committed in connection with a lesser charge of fourth degree burglary. Thus, appellant reasons, imposing consecutive sentences for second degree rape and fourth degree burglary impermissibly enhances the sentence for second degree rape in a manner that the Legislature did not intend.

Appellant has mischaracterized the burglary sentence as an enhancement of the rape sentence. In a multi-count conviction, a shorter sentence for one offense is not an enhancement of a longer sentence for another offense. Thus, the sentence for fourth degree burglary is not an enhancement ¹⁷³ of the sentence for second degree rape. 2 Rather than challenging improper sentence enhancements, appellant is actually seeking to have his consecutive sentence for fourth degree burglary merged into his second degree rape sentence. The “standard for determining whether one offense merges into another for sentencing purposes is what is referred to as the required evidence test.” Jones v. State, 357 Md. 141, 163-64 , 742 A.2d 493 (1999). “If each offense requires proof of a fact which the other does not, ... there is no merger under the required evidence test even though both offenses are based upon the same act or acts.” State v. Lancaster, 332 Md. 385, 391 , 631 A.2d 453 (1993).

But the required evidence test is not conclusive in sentencing merger cases. “Even where two offenses are separate under the required evidence test, there may still be merger for sentencing purposes based on historical treatment, judicial decisions which hold the offenses merge, fairness, and the rule of lenity.” Jones, 357 Md. at 164 , 742 A.2d 493 . As the Legislature created them, the offenses of fourth degree burglary and second degree rape are two separate crimes under the required evidence test. In contrast to the first degree rape statute, neither section 32 nor section 463 refers to or incorporates any other offense. Each statute addresses different criminal behavior based on distinctly different acts.

Second degree rape requires proof of nonconsensual intercourse. Fourth degree burglary requires proof of ¹⁷⁴ breaking and entering. The two crimes involve completely different criminal acts that do not overlap. Thus, they are clearly separate crimes under the required evidence test.

Having found no Maryland precedent addressing the question presented by this case, we continue our sentencing merger analysis by considering whether merger is required on rule of lenity or fairness grounds. Under the rule of lenity, when “there is no indication that the Legislature intended multiple punishments for the same act, a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other.” McGrath v. State, 356 Md. 20, 25 , 736 A.2d 1067 (1999). In that event, “the offense carrying the lesser maximum penalty ordinarily merges into the offense carrying the greater maximum penalty.” Miles v. State, 349 Md. 215, 229 , 707 A.2d 841 (1998). The rule prevents courts from interpreting criminal statutes “ ‘so as to increase the penalty ... place[d] on an individual when such an interpretation can be based on no more than a guess as to what [the Legislature] intended.’ ” Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525 (1990) (quoting White v. State, 318 Md. 740, 744 , 569 A.2d 1271 (1990)).

A criminal statute can be ambiguous if it is intrinsically unclear or if it's application in a particular circumstance is uncertain. See Webster, 359 Md. at 480-81, 754 A.2d 1004 . Doubts raised by such ambiguities must be resolved against turning a single criminal act or transaction into multiple convictions or multiple sentences. See Miles, 349 Md. at 227 , 707 A.2d 841 .

But the rule of lenity cannot be used to “create an ambiguity where none exists.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994). If there is no ambiguity, “the rule of lenity ‘simply has no application.’ ” Id. at 262 , 647