Jones v. State

BATTAGLIA, J. In the aftermath of Evans v. State, 420 Md. 391 , 23 A.3d 223 (2011), we now address whether the statutory provision criminalizing the unlawful possession of a regulated firearm by a convicted felon has a related penalty provision. Petitioner, Troy A. Jones, Jr., seeks to overturn his conviction on Count Five of a criminal information filed against him which charged him with the unlawful possession of a regulated firearm after having been convicted of a felony, pursuant to Section 5-133(b) of the Public Safety Article, Maryland Code (2003), 1 asserting that Section 5-133(b) does not contain a ⁴⁴⁰ penalty provision and that the penalty provisions in Sections 5-133(c) and 5-143 of the Public Safety Article do not apply. 2 ⁴⁴¹ He also asserts, alternatively, that an out-of-state conviction cannot serve as a predicate conviction for a violation of Section 5—133(b) and that the trial judge erred in imposing a mandatory minimum five-year sentence for the violation. The Court of Special Appeals affirmed Jones’s conviction and sentence for Count Five, 3 45and we granted certiorari, Jones v. State, 416 Md. 272 , 6 A.3d 904 (2010), to answer the following questions: 1. Is there a penalty provision applicable to a violation of Public Safety Article § 5—133(b), and if not, is a violation of that subsection a crime and does a court have jurisdiction over the charge? 2.

Can a prior out-of-state conviction serve as the predicate conviction where the State has charged a defendant with possessing a regulated firearm after having been convicted of “a violation classified as a felony in the State” in violation of Public Safety Article § 5—133(b)? 3. Having found that the trial court erred in imposing the mandatory-minimum, five-year, no-parole penalty applicable to violations of § 5-133(c) for a violation of § 5—133(b), did the Court of Special Appeals err by only striking the no-parole condition and failing to vacate the sentence and remand the case for a new sentencing so that the judge could consider imposing a sentence of less than five years? We shall hold that Section 5-143 of the Public Safety Article serves as the penalty provision for a violation of Section 5- ⁴⁴² 133(b) of that Article. We shall further hold that an out-of-state conviction can serve as a predicate conviction for the purposes of Section 5-133(b).

Finally, although we affirm the conviction, we shall hold that the trial judge erred in imposing a mandatory five-year sentence for a violation of Section 5-133(b) and shall remand for a new sentencing. Jones was charged in a criminal information in Case # 207270027 with two drug crimes. 4 He also was accused in another criminal information in Case #207270028 with five firearm-related crimes, one of which was Count Five, involving his possession, as a felon, of a handgun. 5 Jones and the State agreed to proceed on an Agreed Statement of Facts as to ⁴⁴³ Count Two, in which he was charged with illegal possession of marijuana in Case # 207270027; Count Four, in which he was charged with illegal possession of a regulated firearm having been convicted of a crime of violence in Case #207270028; and Count Five, the charge with which we are concerned, from Case #207270028, in which the information alleged that: “[Troy A. Jones, Jr.] unlawfully did possess a regulated firearm, to wit: A .25 caliber Lorcin handgun-serial # LT043282 after having been convicted of a disqualifying crime, to wit: 2003-Fairfax County, VA-case # 102485 a violation classified as a felony in this State, in violation of Public Safety Article, Section 5-133(b) of the Annotated Code of Maryland.” The Agreed Statement of Facts reflected that Jones admitted he had purchased a handgun after having been convicted of manufacturing cocaine in the Commonwealth of Virginia: [ASSISTANT STATE’S ATTORNEY]: Your Honor, on July 30, 2007, at approximately 0630 hours in the morning, the Warrant Apprehension Task Force responded to 4200 Eldone Road in Baltimore City, State of Maryland, looking for a wanted person. On arrival, Detective D. Koenigberg, from the Baltimore County Police Department, and other members of the Warrant Apprehension Task—Task Force, knocked on the door and was met by a black female. Detective Koenigberg said that the police were looking for a wanted person and was invited in by the female.

In the back bedroom of the residence, Detective Koenigberg made contact with a black male, later identified as Defendant, Troy A. Smith, Jr. [Troy A. Jones, Jr.][ 6 ] Detective Koenigberg looked under the bed (indiscernible) a wanted subject and there was a magazine for a firearm. Mr. Smith [Jones] was in the bed—was in the bed—Mr. Smith [Jones] was in the bed of the room with no clothes. Mr. Smith [Jones] attempted to put his shorts on when Detective ⁴⁴⁴ Koenigberg observed a bulge in the right front pocket of his shorts. Detective Koenigberg grabbed the bulge with his hand and immediately knew it was a gun.

Mr. Smith [Jones] stated to Detective Koenigberg that, somebody must have put the gun in my shorts while I slept. Also in the right front pocket of his shorts was a Maryland identification card with a picture of the Defendant and the information of Troy A. Smith [Jones], with a date of birth of 9-13-1982. In the left front pocket of those same shorts, was a plastic sandwich baggie, with 10 smaller zip-loc—zip-loc (indiscernible) red devil baggies, containing a greenish, brown vegetable matter, suspect marijuana. Mr. Smith [Jones] was placed under arrest and transported to the Warrant Apprehension Task Force Office.

The gun was described as a .25 caliber, Lucerne handgun, with a serial number of LT043202. The handgun is considered a regulated firearm in the State of Maryland. Also, on July 30th, 2007, Sergeant Steve Gabis of the Baltimore County Police Department assigned Sergeant John Carhart of the Maryland State Police, who are assigned to the joint Baltimore City, Baltimore County, Maryland State Police Gun Tracing Unit, responded to the—to interview Mr. Smith [Jones]. At approximately 0820 hours, Mr. Smith [Jones] was read his Miranda warnings by Sergeant Gabis.

Mr. Smith [Jones] stated that he understood his rights and agreed to be interviewed by the sergeants. Mr. Smith [Jones] stated that he was arrested and convicted for manufacturing cocaine in the State of Virginia in the year 2002 and 2000. Sergeant Gabis reviewed Mr. Smith’s [Jones’s] criminal record and found he was convicted of manufacturing, sale and possession of a cultivated substance in Fairfax County, Virginia on 3-24-2003. Mr. Smith [Jones] continued by stating that the handgun that was found, was his and he purchased the handgun from a person—a person in—driving a black Navigator in a bar called, Sedonia Inn.

Mr. Smith [Jones] further stated he paid $70 for the firearm. Mr. Smith [Jones] admitted that ⁴⁴⁵ the marijuana in his shorts was also his, that he bought wholesale from another person. He said the marijuana was for personal use. The Statement of Facts also reflected that the handgun Jones possessed was inoperable and that conviction records from Virginia from 2008 showed that Jones had been convicted of possession of a controlled substance with intent to distribute in Virginia. [ASSISTANT STATE’S ATTORNEY]: The State’s Exhibit No. 2, the State will introduce into evidence [an] Operability Report for the firearm.

It is a pistol, semi-automatic, LT25, gray in color, with a barrel length of 2.38 inches and that the firearm was inoperable. [COUNSEL FOR JONES]: No objection [] as to the report itself, as whether it qualifies as a firearm (indiscernible). [ASSISTANT STATE’S ATTORNEY]: State’s Exhibit No. 3, the State will also enter into evidence, a Sentencing Order from the Commonwealth of Virginia, Criminal Case Number 102485, that on March 21st, 2003, Mr. Jones was convicted of possession of a controlled substance—a controlled drug, with intent to distribute and it is certified, two test copies by the Clerk of Virginia—the Clerk of the Court of Virginia, excuse me. The State will admit that as State’s Exhibit No. 3. If called to testify, the Officers would identify Mr. Smith [Jones] as the person in possession of the gun and the drugs on that date (indiscernible) in Baltimore City, State of Maryland. Jones’s counsel moved for a judgment of acquittal on Count Five arguing that Jones’s out-of-state conviction could not serve as a predicate felony in Maryland, among other issues not relevant here.

The judge denied the motion, explaining that the predicate conviction in Virginia met the statute’s requirement: [COURT]: [T]he conviction in Virginia is for that which would have been a felony here in Maryland, had the Defen ⁴⁴⁶ dant been tried here in Maryland. And it would have been the companion or equal charge in Virginia as to the specific possession with intent to distribute charge listed in the statute in Maryland. For those reasons, the Court is going to deny your Motion for Judgment of Acquittal as to the—the charge of possession of a regulated firearm, having been convicted of a disqualifying crime under Public Safety Act 5—138(c)(i). As to Count Five, the court sentenced Jones to five years’ imprisonment without parole, explaining “[tjhis is a mandatory sentence.” 7 Jones noted an appeal to the Court of Special Appeals and argued that the Circuit Court erred by convicting him of a crime with which he was not charged, convicting him on insufficient evidence, convicting him of a violation which was not a crime, and by giving him an illegal sentence.

The Court of Special Appeals affirmed Jones’s conviction and sentence in an unreported opinion, reasoning that Jones’s Virginia conviction, coupled with his admission regarding that conviction in the Agreed Statement of Facts, provided sufficient evidence to “support a finding that he was convicted of manufacturing cocaine in Virginia,” a violation which would constitute a felony in Maryland under Section 5-133(b). The Court of Special Appeals vacated the no-parole condition of Jones’s five-year sentence on Count Five, however, reasoning that “a no-parole penalty is mandated only for a violation of PS § 5-133(c), not for a violation of PS § 5—133(b).” Jones, thereafter, filed a Motion for Reconsideration, arguing that vacatur of the no-parole condition was insufficient to remedy the misapplication of a mandatory sentencing provision, which the intermediate appellate court denied. We very recently in Evans v. State, 420 Md. 391 , 23 A.3d 223 (2011), acknowledged the mandatory relationship ⁴⁴⁷ between language in a statute criminalizing behavior and a related penalty provision: [Generally, criminal statutes must contain language that criminalizes the forbidden act, as well as a provision that penalizes the behavior. 7 This proposition, as hornbook law, is succinctly stated by Wayne R. LaFave in the 2010 edition of one of our oft-quoted tomes: “[A] crime is made up of two parts, forbidden conduct and a prescribed penalty. The former without the latter is no crime.

The modern criminal penalties are: the death penalty, imprisonment with or without hard labor, and the fine. In many cases the section of the statute that describes the forbidden conduct concludes with a statement of the punishment; or perhaps one section sets forth the forbidden conduct and the next section the punishment.” See Gargliano v. State, 334 Md. 428, 438, 450 , 639 A.2d 675, 680, 685 (1994), in which we reversed a trial court’s application of a mandatory ten-year penalty for drug offenders that “previously [have] been convicted” of similar offenses to an offender who had been convicted of a drug offense after the conviction of the principal offense. In so doing, we relied on the fundamental principle that “criminal statutes [must] be sufficiently clear and definite to inform a person of ordinary intelligence what conduct is punishable and what the penalty for such conduct might be before the criminal conduct is committed.” When a statute, as the instant one, fails to internally contain a penalty provision, its ability to criminalize conduct becomes more complicated. LaFave is of assistance in identifying the spectrum of issues in this regard, including in the first instance, those about which there is “little difficulty” for a court to determine criminality: “Sometimes, however, the statute forbidding the conduct may refer to another statute for the punishment, such as the rather common ⁴⁴⁸ statute providing that whoever commits embezzlement (defining it) shall be punishable as if he committed larceny, with the larceny statute providing for a certain penalty of fine or imprisonment.

Another method sometimes encountered is for the statute, after forbidding certain conduct, to conclude “shall be guilty of a felony” (or “misdemeanor”), without setting forth the penalty; but another catch-all statute provides that one who commits a felony (or a misdemeanor) not otherwise punishable shall be punished in a prescribed way. Similarly, the statute defining certain conduct as criminal may say that this crime is a felony or misdemeanor of a certain classification; another statute then indicates the permissible punishment for each classification. In all of these cases there is little difficulty in concluding that, since the statutes set forth both forbidden conduct and criminal penalty, the legislature has created a crime.” For example, in Chen v. State, 370 Md. 99 , 803 A.2d 518 (2002), we were faced with a penalty provision that, due to a recodification, appeared in a different title of the Tax-General Article than the forbidden conduct it punished, namely the possession of unstamped cigarettes. 8 We determined that the two sections in issue could be read in para materia in a plain meaning analysis to warrant application of the penalty provision in what was a separate statutory provision. Evans v. State, 420 Md. 391 , 23 A.3d 223 (2011) (citations omitted). ⁴⁴⁹ Faced with a question similar to that before us in the instant case, regarding whether a statute, without a penalty provision, was criminalized by the association with a separate penalty provision, we again turned to LaFave: In the more difficult situation, however, the omission of a penalty provision in or related to a statute cannot support a criminal conviction for its violation: “But sometimes the legislature forbids conduct and then omits (in most cases unintentionally) to provide for a penalty; and there is no catchall statute of the type mentioned above.

In such a situation one who engages in the forbidden conduct is not guilty of a crime.” Id. (citations omitted), quoting Wayne R. LaFave, Criminal Law § 1.2(d), at 12-13 (5th ed.2010). In Evans , we determined that the penalty provision of Section 5-143(b) of the Public Safety Article, which also is in issue in the present case, did not relate to Section 5-142 of the same Article, which criminalized the obliteration of a manufacturer’s identification mark or number on a firearm, thereby reversing Evans’s conviction for that offense. Section 5-133(b) of the Public Safety Article, under which Jones was convicted, provides in pertinent part: (b) Possession of regulated firearm prohibited.—A person may not possess a regulated firearm if the person: (1) has been convicted of a disqualifying crime.... “Disqualifying crime” has been defined as: (1) a crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.

Section 5-101(g) of the Public Safety Article. Section 5-143 of the Public Safety Article, according to the State, supplies the penalty for Jones’s conviction: (a) Prohibited.—Except as otherwise provided in this subtitle, a dealer or other person may not knowingly participate ⁴⁵⁰ in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle. (b) Penalty.—A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both. (c) Separate crime.—Each violation of this section is a separate crime.

There is no internal penalty provision in Section 5-133(b). Section 5-143(b), which the State asserts applies, does not explicitly refer to Section 5-133(b). Section 5-143(a) explicitly refers, however, to “violation[s] of this subtitle,” and generally criminalizes the “illegal ... possession ... of a regulated firearm,” “[ejxcept as otherwise provided in this subtitle.” Section 5—133(b), from the same Subtitle as Section 5-143(a), prohibits the act of “possess[ing] a regulated firearm,” and does not “otherwise provide[ ]” a penalty. The term “possession” appears in both provisions, as well as does the phrase “regulated firearm” which, facially, distinguishes the plain meaning analysis in this case from that of Evans in which reconciliation of the terms was impossible between the two statutes.

Although the language appears facially reconcilable, Section 5—133(b) prohibits possession by a convicted felon of a regulated firearm, a status crime, while Section 5-143(a) embraces the illegal possession of a regulated firearm for any reason, not just for being a convicted felon. It is this distinction upon which Jones rests his assertion that the two provisions are irreconcilable, relying on the cases of United States v. Evans, 333 U.S. 483 , 68 S.Ct. 634 , 92 L.Ed. 823 (1948), and Keller v. State, 11 Md. 525 (1857). In Evans, the Supreme Court of the United States determined that the acts of “concealing or harboring” an alien could not be reconciled with the acts of “landing] or bringing] in” an alien, id. at 493-94, 68 S.Ct. at 640 , 92 L.Ed. at 830, while in Keller , we determined, in a plain meaning analysis, that the Legislature had placed the act of ⁴⁵¹ selling lager beer without a license “on the same footing” as selling liquor without a license. 8 11 Md. at 536 . We explained the legislative history of Section 5-143 in Evans, and opined that it had evolved over time as a catch-all penalty provision, but not one encompassing the conduct of obliteration, removal, change or alteration of the manufacturer’s identification mark or number on a firearm with which Evans was charged.

Evans, 420 Md. at 449-50 , 23 A.3d at 887 , 2011 WL 2572749 . Whether Section 5—133(b) is “saved” by its historical relationship to Section 5-143, or whether it, too, is an “orphan” provision, is the issue. In Evans, we acknowledged that each of Section 5-143’s predecessor provisions from 1941 until 1996 acted as a catchall provision “at the end of a series of’ prohibited acts, to punish violations of “any of the provisions” of the Subtitle: [The] penalty provision was also enacted in 1941 at the end of a series of four prohibited acts, which included the obliteration, removal, change or alteration of a manufactur ⁴⁵² er’s identification mark or number on a firearm and read: “Any person violating any of the provisions of this sub-title shall upon conviction thereof be fined not more than Three Hundred Dollars ($300) or imprisonment for not more than one (1) year, or both.” The other prohibited acts in the list included proscriptions on selling or transferring a pistol or revolver to persons convicted of a crime of violence or who were fugitives from justice, possessing a pistol or revolver if a person had been convicted of a crime of violence or who were fugitives from justice, and possessing, selling, transferring, or disposing of a stolen pistol or revolver. The latter two sections explicitly dealt with a “pistol or revolver,” a term which was defined as “any firearm with barrel less than twelve inches in length.” Evans, 420 Md. at 453-54 , 23 A.3d at 889 , 2011 WL 2572749 (citations omitted).

The original catch-all penalty of one year and $300 in Section 531E of Article 27 applied to a limited number of possessory offenses, those being of a pistol or revolver by a person previously convicted of a “crime of violence” or a “fugitive from justice”: It shall be unlawful for any person who has been convicted of a “crime of violence” or who is a “fugitive from justice” to possess a pistol or revolver. Maryland Code (1939, 1943 Supp.), Article 27, Section 531E. By 1996, the possessory offenses had multiplied and they, among other offenses, also were followed by a successor to the original catch-all penalty provision: § 444. Obliterating, etc., identification mark or number.

It shall be unlawful for anyone to obliterate, remove, change or alter the manufacturer’s identification mark or number on any firearms. Whenever on trial for a violation of this section the defendant is shown to have or have had possession of any such firearms, such fact shall be presumptive evidence that the defendant obliterated, removed, changed or altered the manufacturer’s identification mark or number. ⁴⁵³ § 444. Restrictions on sale, transfer and possession of pistols and revolvers. (b) Sale or transfer to criminal, fugitive, etc.—A dealer or person may not sell or transfer a pistol or revolver to a person whom he knows or has reasonable cause to believe has been convicted of a crime of violence, or of a violation of any of the provisions of § 286, § 286A, or § 286C of this article, or any conspiracy to commit any crimes established by those sections or of any of the provisions of this subtitle, or is a fugitive from justice, or is a habitual drunkard, or is addicted to or a habitual user of narcotics, barbiturates or amphetamines, or is of unsound mind, or to any person visibly under the influence of alcohol or drugs, or to any person under 21 years of age as required by federal law.

(c) Possession by criminal, fugitive, etc.—A Person may not possess a pistol or revolver if the person: (1) Has been convicted of: (1) A crime of violence; or (ii) Any provisions of this subtitle; or (2) Is: (i) A fugitive from justice; (ii) A habitual drunkard; (iii) A habitual abuser of narcotics, barbiturates, or amphetamines; or (iv) Suffering from a mental disorder.... § 446. Sale, transfer, etc., of stolen pistol. It shall be unlawful for any person to possess, sell, transfer or otherwise dispose of any stolen pistol or revolver, knowing or having reasonable cause to believe same to have been stolen. § 448. Penalties.

Any person violating any of the provisions of this subtitle unless otherwise stated herein is guilty of a misdemeanor and shall upon conviction be fined not more than $5,000 or imprisoned for not more than three years, or both. ⁴⁵⁴ Maryland Code (1957,1992 Repl.Vol.), Article 27, Sections 444, 445, 446, and 448. In 1996, Governor Parris N. Glendening proposed the adoption of Senate Bill 215 and House Bill 297, known as the “Maryland Gun Violence Act of 1996,” as a part of a “comprehensive proposal aimed at reducing the epidemic of gun violence” in Maryland by generally “reducing the availability of handguns and assault weapons” and “get[ting] guns out of the hands of ... criminals.” Briefing Statement Before the Senate Judicial Proceeding Committee and the House Judiciary Committee (1996) (joint statement of Bonnie A. Kirkland, Chief Legislative