Jones v. State

RAYMOND G. THIEME, Jr., Judge (Retired, Specially Assigned). In this case, we are called upon to review the constitutionality of the finding of facts necessary to invoke an enhanced sentence by the sentencing judge instead of by the jury. Ronald G. Jones appeals from his conviction by a jury in the Circuit Court for Baltimore City of possession with intent to distribute cocaine and possession of cocaine, and his sentence, as a third-time offender, of twenty-five years in prison without the possibility of parole for his conviction of possession with intent to distribute cocaine. Appellant presents two questions on appeal: 1.

Was the evidence sufficient to sustain his conviction for possession with intent to distribute cocaine? 2. Did the trial court err in sentencing appellant as a third-time offender to twenty-five years in prison without the possibility of parole? FACTS Police Officer Morgan Jones testified that, at approximately 11:45 a.m., he was driving an unmarked patrol car down “a little path,” behind the 500 block of Edgewood Street, leading to the 500 block of Dennison Street. Officer Jones was with Officers Todd Ring and Nicole Monroe.

Officer Jones described the area of the “rear even side” of 500 Dennison Street as having row houses, then a small alley that’s running east to west. Right next to the alley is a ... basketball court, playground. And if you keep going westbound ... one side is a little parking pad, and south of the parking pad is an open field with grass there.... [Tjhere’s two trees in that little field. Officer Jones explained that “cutting through the field is a little pathway that [the officers] go down sometimes” to get to ¹⁶ the 500 block of Dennison Street.

He testified that he drove there because he knew that “drug dealers stash drugs” in the area, and because the 500 block of Dennison Street is a “high narcotic area.” Officer Jones and Officer Ring both testified that they saw appellant running in the grass area toward a tree. They testified that, when appellant reached the tree, he stopped, bent over, and picked up a clear plastic bag. According to the officers, while appellant was bent over, he looked in their direction, then put the bag back down, stood up, turned around, walked several feet, and picked up a little stick. Both officers stated that the incident took “seconds.” Officer Jones stopped his vehicle.

Officer Ring got out, went to the tree, and found a clear plastic bag containing twenty-six small ziplock bags. The smaller bags each contained a white rock substance that the officers believed to be crack cocaine. Officer Jones testified that each piece was worth approximately $10, and that the entire bag was worth about $260. Officer Jones stopped appellant and arrested him.

The substance was subsequently tested and proved to be cocaine. Appellant was searched after his arrest. The officers recovered a total of $200 in currency, consisting of seven $20 bills, five $10 bills, one $5 bill, and five $1 bills. Officer Ring also testified that the bills were “crammed into” appellant’s pocket “all in these separate little amounts all shoved in there individually” and that having currency in small denominations suggested that “they were profits from these little bags that he had already sold that morning.” Officer Jones qualified as an expert in the field of packaging, identification, and distribution techniques of street-level narcotics.

He testified that twenty-six bags of cocaine indicated street level distribution. He explained that drug dealers do not place their “stashes” in areas accessible to purchasers of narcotics. Buyers usually stayed on the street or on the corner. ¹⁷ Both officers testified that they had not seen anyone selling drugs on the street or waiting to purchase drugs. Officer Ring explained, however, that from his location he would not have seen people on the corner of Edmondson and Dennison or in the 500 block of Dennison Street, both of which are high drug areas.

Appellant introduced into evidence photographs of the area. He did not testify, but presented evidence from Tina Allen, a resident of Dennison Street. Ms. Allen testified that she was on her way to the corner store on the morning in question and saw appellant walking past her house. She testified that she had not met appellant prior to that day.

She explained that she noticed him because he was “crouched over,” as if in pain. Ms. Allen stated that she asked appellant if he was okay, and he told her that he had Crone’s Disease. Ms. Allen further testified that she walked with him until he crossed the street to walk up the lot. She stated that he was still walking crouched over when one of the police officers “ran over to [appellant] and grabbed him.” She stated that she did not see him pick up a bag under a tree.

DISCUSSION I. Sufficiency of the Evidence Appellant’s initial contention is that the evidence was insufficient to establish that he had dominion or control over the cocaine or that he was aware of the presence and general character of the substance in the bag. The standard for our review of the sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Bloodsworth v. State, 307 Md. 164, 167 , 512 A.2d 1056 (1986). In assessing the sufficiency of the evidence presented at trial, we consider not “whether the ¹⁸ evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.” Fraidin v. State, 85 Md.App. 231, 241 , 583 A.2d 1065 (1991) (emphasis in original).

It was the jury’s province to decide whether a sufficient nexus existed between appellant and the items seized. The jury believed that there was and returned a verdict of several convictions against appellant. It suffices to say that we are fully convinced that the admissible evidence adduced at trial either supported a rational inference of, or demonstrated directly or circumstantially, the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of appellant’s possession of the evidence seized, and, therefore, of his guilt for the offenses charged. Thus, it was proper for the trial court to submit the case to the jury for its appraisal.

Shoemaker, 52 Md.App. at 486, 451 A.2d 127 ; Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970); Williams v. State, 5 Md.App. 450, 459 , 247 A.2d 731 (1968). In the present case, Officer Jones testified that the 500 block of Dennison Street was a “high narcotics area.” There was evidence at trial that appellant had been running to the tree under which the bag was located when he turned around, saw the officers’ vehicle, and then dropped the clear plastic bag that contained twenty-six smaller bags inside. The jury could infer that the contents of the bag could have been immediately observable, that appellant was aware of the illicit nature of the bag’s contents, and that he was not merely a passerby who saw a bag, examined it briefly, and decided he did not want it. In addition, Officer Jones explained to the jury that “stashes” were kept away from the place where sales were made.

Officer Ring testified that appellant’s money was in small denominations, and “crammed into his pocket” and that “all these separate little amounts [were] all shoved in there individually,” suggesting that they were the fruits of previous sales. The evidence was clearly sufficient to sustain appellant’s convictions. ¹⁹ II. (a) Enhanced Punishment Appellant’s next contention is that the trial court erred in sentencing him to a term of twenty-five years’ incarceration without the possibility of parole pursuant to Md.Code, Article 27, § 286(d)(1). 1 He contends that the evidence was insufficient to establish that he met the requirements of Section 286(d)(1) because the testimony at his sentencing hearing was ²⁰ that his prior sentence was imposed “as a result of a violation of probation.” He further contends that his prior convictions and sentence should have been determined by a jury. Pursuant to Maryland Code, Article 27, § 286(d)(1) and (2), an individual who has been convicted of possession with intent to distribute cocaine, who has been convicted of that offense twice previously, and who “[h]as served at least 1 term of confinement of at least 180 days in a correctional institution as a result of a [previous] conviction” of possession with intent to distribute cocaine, must, upon being convicted for a third time of the crime, be sentenced to a term of not less than twenty-five years’ incarceration without the possibility of parole.

At appellant’s sentencing hearing, the State sought to prove that appellant was subject to the enhanced penalty. Rochelle McQueen, an expert in the area of fingerprint identification, testified that appellant was the same individual who had been convicted in prior cases nos. 291080037 and 291269007. The parties stipulated “to Case Nos. 291080037 and 291269007 and the commitment record for 291080037.” Those cases involved possession with intent to distribute controlled dangerous substances. Susan Bauer, an agent of the Division of Parole and Probation, testified that she had reviewed appellant’s record and that there had been a period of incarceration “for a violation of probation” which was imposed on June 8,1992.

Appellant had been paroled on July 23,1997. After the witnesses testified, the prosecutor stated that she had proved “beyond any doubt” the prior convictions and incarceration. Appellant did not comment. The prosecutor told the trial court that the State was invoking the twenty-five year no-parole sentence.

The following occurred: THE COURT: Twenty-five, no parole, that’s your recommendation? [PROSECUTOR]: Your Honor— THE COURT: Mandatory? ²¹ [PROSECUTOR]: — it’s mandatory. Defense counsel stated that he had told appellant that it was mandatory. He asked that appellant be given credit for the home detention served prior to trial. In pronouncing the sentence, the court stated, “25 years, credit for time served, the entire time served as articulated by your counsel.” He then asked, “I have to say without parole?” and, when told that he did, said, “Twenty-five years without parole, credit for time served.” Appellant contends that “the trial court did not find the necessary two prior qualifying convictions and the necessary actual service of 180 days under one of those convictions.” He argues that the trial court simply imposed a sentence of “25 years, credit for time served,” and, when prompted, changed the sentence to include the no-parole provision.

We disagree. Absent an indication to the contrary, trial courts are presumed to know the law and apply it correctly. Howard v. State, 112 Md.App. 148, 160 , 684 A.2d 491 (1996); Hebb v. State, 31 Md.App. 493, 499 , 356 A.2d 583 (1976). Accordingly, we presume that the trial court found the necessary prerequisites beyond a reasonable doubt.

See id. It was unnecessary for the trial court to enunciate its findings, especially in a case such as the present one, where there was no dispute about appellant’s prior convictions or incarceration. Moreover, we believe that the trial court’s inquiry referred not to whether it had to impose the sentence, but only to whether it specifically had to articulate the “no parole” provision. Appellant further contends that his incarceration was not “a result of a conviction of a previous violation” because Ms. Bauer testified that the sentence was for a violation of probation.

As appellant himself notes, however, when a sentence is executed as a result of a violation of probation, the “original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment ²² previously accorded the defendant.” Clipper v. State, 295 Md. 303, 313 , 455 A.2d 973 (1983). This point was again emphasized in Moats v. Scott, 358 Md. 593, 596-97 , 751 A.2d 462 (2000). Judge Wilner, writing for the Court of Appeals, stated: When a court imposes a sentence and then, acting under either § 641A(a)(l) or (3), suspends execution of all or part of that sentence in favor of probation, and later strikes the probation and directs execution of all or part of the previously suspended part of the sentence, the court does not, at that time reimpose all or any part of the sentence. The full sentence has already been imposed and does not need any reimposition.

The effect of the court’s action is simply to lift the previously ordered suspension and direct execution of the now unsuspended part. In those rather rare situations in which the court, acting under § 641A (a)(1), has deferred imposition of sentence in favor of probation and later revokes the probation, it proceeds then to impose sentence for the first time. The trial court further correctly awarded the appellant credit for his home detention prior to trial. In Dedo v. State, 343 Md. 2 , 680 A.2d 464 (1996), the question before the court was whether Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.) Art. 27, § 638C(a), 2 requires that a defendant be granted credit toward his sentence for the time he spent in home detention between his conviction and sentencing.

Speaking for the Court, Judge Raker stated: ²³ In the instant case, the restraints placed upon Dedo while in home detention clearly were sufficiently incarcerative to satisfy the custody requirement of Art. 27, § 638C(a). Id. at 12-13, 680 A.2d 464 .

II

(b) Apprendi v. New Jersey Appellant’s final challenge to his sentence is that the issue of whether he qualified for the enhanced, mandatory sentence should have been determined by his jury. Appellant recognizes that under Maryland Rule 4-245(d) the issue is reserved to the sentencing court, but he suggests that the validity of that procedure is brought into question by the recent United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). In Apprendi v. New Jersey, the appellant fired several shots into the home of an African-American family and made a statement — which he later retracted — that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with, inter alia, second degree possession of a firearm for an unlawful purpose, which carries a prison term of five to ten years.

The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After appellant pleaded guilty, the