Johnson v. State

Nazarian, J. On February 9, 2017, Dana T. Johnson led police on a car chase that ended in a nearly catastrophic accident. Mr. Johnson was arrested and taken to the hospital. As medical personnel removed his clothing, police discovered a large quantity of heroin in his underwear. He was charged and ultimately convicted in the Circuit Court for Baltimore County of possession of heroin, volume possession of heroin, and attempting to elude a police officer.

The court sentenced him to fourteen years' imprisonment, the first five without the possibility of parole under Maryland Code (2002, 2012 Repl. Vol. 2018 Cum. Supp.), § 5-612 of the Criminal Law Article ("CR"), which mandates a minimum sentence of five years without the possibility of parole for a volume heroin conviction. Mr. Johnson appeals on two grounds.

First , he argues that his sentence was illegal, and second , that the heroin found in his clothing was admitted improperly at trial because the State failed to establish the chain of custody sufficiently. We find the trial court properly exercised its discretion on both issues and affirm. I. BACKGROUND Officers Vicarini 1 and Brian Trussell were conducting a routine patrol when they noticed a silver Acura that had unusually darkly tinted windows. The officers stopped the Acura with lights and sirens, but as they began to exit their patrol car to approach, it sped off.

The officers pursued the vehicle until they determined they could no longer do so safely, then abandoned the chase. When they saw the Acura again some time later, the officers followed the vehicle, this time without activating their lights or sirens. As they followed, though, the Acura crashed into another vehicle at an intersection. Both vehicles were crushed badly; the Acura was torn literally in half.

The officers approached the scene of the crash and found Mr. Johnson, the Acura's sole occupant, trapped inside and injured. Emergency responders extracted Mr. Johnson from the vehicle and transported him to a local hospital. Officer Sean Daley, who had responded to the crash site, accompanied Mr. Johnson to the hospital and was in the room as medical personnel removed Mr. Johnson's clothing, and searched the clothes 2 as they were removed. In Mr. Johnson's undergarments, Officer Daley found a "large plastic bag containing an off while [sic] powder substance." Officer Daley held onto the bag, packaged it according to police evidence procedures, and returned to the precinct.

Mr. Johnson was charged with volume possession of heroin, possession of heroin with intent to distribute, simple possession of heroin, attempting to elude a police officer; failure to give insurance information to another driver after an accident, and failure to exhibit his license to a police officer after an accident. At the close of the bench trial, the court granted a motion for judgment of acquittal as to the possession with intent to distribute, failure to give his insurance information, and failure to exhibit his license charges. The court convicted Mr. Johnson of simple possession of heroin, volume possession of heroin, and attempting to elude an officer, merged his conviction for simple possession into the volume possession conviction, and sentenced him to fourteen years' imprisonment, the first five without the possibility of parole.

II

DISCUSSION Mr. Johnson argues first on appeal that his fourteen-year sentence is illegal because although CR § 5-612 provides for a mandatory minimum sentence, it does not state a maximum sentence and, therefore, failed to give him notice of a potential sentence beyond five years. We review this question of statutory interpretation de novo. Gorge v. State , 386 Md. 600 , 610, 873 A.2d 1171 (2005). Second , he contends that the trial court erred in admitting the heroin found in his underwear into evidence because the State failed to establish the chain of custody.

That decision is committed to the discretion of the trial court. Wheeler v. State , 459 Md. 555 , 645, 187 A.3d 641 (2018). A. Mr. Johnson's Sentence Is Legal Mr. Johnson's argument that his sentence is illegal hinges on a threshold finding that the statute under which he was convicted, CR § 5-612, is ambiguous. If statutory language is "clear and unambiguous when construed in accordance with its ordinary and everyday meaning, then this Court will give effect to the statute as it is written." Alston v. State , 433 Md. 275 , 295-96, 71 A.3d 13 (2013) (cleaned up).

If a statute is ambiguous, we look beyond the plain language and "consider[ ], in addition to the literal or usual meaning of the words used, their meaning and effect in light of the setting, the objectives and purpose of the subject enactment." Id. at 296 , 71 A.3d 13 . Criminal Law Article § 5-612 defines the crime of volume possession and the mandatory minimum sentence: (a) A person may not manufacture, distribute, dispense, or possess: * * * (5) 28 grams or more of morphine or opium or any derivative salt, isomer, or salt of an isomer of morphine or opium; (6) 28 grams or more of any mixture containing a detectable amount, as scientifically measured using representative sampling methodology, of morphine or opium or any derivative salt, isomer, or salt of an isomer of morphine or opium; * * * (c) (1) A person who is convicted of a violation of subsection (a) of this section shall be sentenced to imprisonment for not less than 5 years and is subject to a fine not exceeding $ 100,000. (2) The court may not suspend any part of the mandatory minimum sentence of 5 years. (3) Except as provided in § 4-305 of the Correctional Services Article, [ 3 ] the person is not eligible for parole during the mandatory minimum sentence.

Mr. Johnson keys less on what CR § 5-612 says and more on what it doesn't. Although it establishes a mandatory minimum sentence (and removes the court's discretion to suspend any portion of it), § 5-612 does not establish a maximum sentence. Mr. Johnson contends that absence of a maximum sentence renders § 5-612 ambiguous and, from there, that its legislative history suggests that the sole intended penalty for a violation is five years' imprisonment without the possibility of parole. In other words, he argues that the minimum and maximum sentences for violating CR § 5-612 are one and the same.

To find otherwise, he claims, would violate Mr. Johnson's Fourteenth Amendment Due Process rights and the rule of lenity. At the time Mr. Johnson filed his opening brief, we had not yet decided Carter v. State , 236 Md. App. 456 , 182 A.3d 236 (2018), which analyzed the history of CR § 5-612 in depth. As Carter explained, section 5-612 first appeared not as a stand-alone offense, but rather as a sentence enhancement designed to "punish more severely persons who engage in the manufacture or distribution of a high volume of drugs." State v. Wheeler , 118 Md. App. 142 , 148, 701 A.2d 1221 (1997). At that time, a defendant who was convicted of possession with intent to distribute a controlled dangerous substance ("CDS") would be sentenced in accordance with the enhancement provision if he possessed the specified threshold quantity or more.

This threshold distinguished kingpins from smaller scale drug dealers by both creating a mandatory minimum sentence for high-volume possessors and eliminating the possibility of parole for the first five years of his total term of imprisonment. In its original 1989 form, the statute, then codified at Maryland Code Article 27, § 286, provided that if a person possessed CDS in "sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense," it was "mandatory upon the court to impose no less than 5 years' imprisonment, and neither that term of imprisonment nor any part of it could be suspended." In the 2002 codification of the Criminal Law Article, the text remained substantively the same and was re-codified at CR § 5-612. 4 In 2005, "to avoid running afoul" of the Supreme Court's decision in Blakely v. Washington , 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), which prohibited sentence enhancements based on facts not decided by the jury, the General Assembly repealed and revised CR § 5-612. Kyler v. State , 218 Md. App. 196 , 224, 96 A.3d 881 (2014). The 2005 amended statute made the possession of a threshold quantity of a CDS a stand-alone offense rather than a sentence enhancement that still carried a mandatory minimum sentence of five years' imprisonment without the possibility of parole.

Id. at 224 , 96 A.3d 881 . ("[T]he Committee to Revise Article 27 recommended repealing the factual penalty enhancement in the penalty provisions and to place the factual circumstances that leads to the increased penalty into the factual elements of the underlying offense to be charged as its own, separate, new offense ." Id. (internal quotations omitted) (emphasis in original) ). Our decision in Carter disposes of Mr. Johnson's contention that the General Assembly, "perhaps inadvertently," created a new offense making mere possession of a threshold quantity of CDS punishable under CR § 5-612.

Carter explained that "the General Assembly made clear that its intent was not to alter the elements of an existing crime, but to establish a new crime: the manufacture, distribution, dispensing, or possession of certain quantities of [CDS]." 236 Md. App. at 479 , 182 A.3d 236 (emphasis added). And, moreover, the historical language of the statute did include mere possession of a threshold quantity of CDS as a trigger to the mandatory minimum sentence: "it is unlawful for any person ... [t]o manufacture, distribute, or dispense, or to possess a [CDS] in sufficient quantity to indicate under all circumstances an intent to manufacture, distribute, or dispense, a [CDS]." Maryland Code Article 27, § 286(a)(1) (1989) (emphasis added). There has never been a requirement to find a subjective intent to distribute independently, and we do not read in such a requirement now. 5 Nor does anything in CR § 5-612's origins as a sentence enhancement provision indicate that the mandatory minimum is also the sentencing cap. Had that been the General Assembly's intention, it