Maryland State Police v. McLean

KENNEY, J. In 2008, Anthony McLean, appellee, applied for a renewal of a permit issued to him by appellant, Maryland State Police (“MSP”) to carry a concealed weapon. 1 MSP denied that application on the grounds that appellee had been convicted in 1983 of a misdemeanor that, at the time of the application for renewal, carried a maximum sentence of more than two years, thus disqualifying him, under Md.Code 2003, § 5-133(b)(l) 2 and § 5-101(g)(3) 3 of the Public Safety Article (“PS”), from possessing a regulated firearm. Appellee appealed MSP’s denial of the renewal application to the Handgun Review Board (“the Board”), which issued a decision in favor of appellee. MSP sought judicial review in the Circuit Court for Baltimore County, which issued an opinion affirming the decision of the Board. MSP now appeals the decision of the circuit court, presenting one question for our review that we have rephrased as follows: For purposes of PS § 5-101(g)(3), is the statutory penalty to be considered the penalty in effect at the time of conviction, or the penalty in effect at the time of the application for a permit or renewal application to carry or otherwise possess a regulated firearm? 4 ⁴³³ For the following reasons, we are persuaded that the statutory penalty to be considered is the penalty that exists for the crime, or its current equivalent, at the time of the application for a permit or renewal application to carry or otherwise possess a regulated firearm.

Accordingly, we shall reverse the judgment of the circuit court which affirmed the ruling of the Board. FACTUAL AND PROCEDURAL BACKGROUND In 1983, appellee, then 19 years old, 5 was convicted of breaking and entering a storehouse, under Art. 27, § 31B of the Maryland Annotated Code (1957, 1982 RepLVol.). 6 At the time of his conviction, the maximum sentence of incarceration for that crime was imprisonment of not more than six months. Appellee was sentenced to six months incarceration, suspended, in favor of three years probation. In 1994, the General Assembly repealed Art. 27 § 31B, and enacted new legislation consolidating the crime of breaking and entering a storehouse with other crimes against property, under the heading “Burglary in the fourth degree.” A succinct history of the statutory crime of fourth degree burglary was provided by the Court of Appeals in McKenzie v. State, 407 Md. 120 , 962 A.2d 998 (2008): ⁴³⁴ In its first iteration as a statutory offense, burglary in the fourth degree was part of the General Assembly’s 1994 codification of what previously were common law burglary and the statutory burglary-related offenses.

See 1994 Laws of Maryland, ch. 712, § 2. Re-codified without substantive change in 2002 as [Md.Code (2002) § 6-205 of the Criminal Law Article (“Crim. Law”) ], burglary in the fourth degree embraces four varieties of proscribed behavior. Id. at 124, 962 A.2d 998 .

The provisions of Crim. Law § 6-205 are as follows: Burglary in the fourth degree. (a) Prohibited—Breaking and entering dwelling.—A person may not break and enter the dwelling of another. (b) Same—Breaking and entering storehouse.—A person may not break and enter the storehouse of another.

(c) Same—Being in or on dwelling, storehouse, or environs.—A person, with the intent to commit theft, may not be in or on: (1) the dwelling or storehouse of another; or (2) a yard, garden, or other area belonging to the dwelling or storehouse of another. (d) Same—Possession of burglar’s tool.—A person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a violation of this subtitle. (e) Penalty.—A person who violates this section is guilty of the misdemeanor of burglary in the fourth degree and on conviction is subject to imprisonment not exceeding 3 years. * * * (Emphasis supplied.) Thus, in addition to recodifying the crime of breaking and entering the storehouse of another as a variety of fourth degree burglary, the legislature increased the statutory penalty for that crime from a maximum of six months to a maximum of three years. ⁴³⁵ In 1996, the General Assembly enacted the Maryland Gun Violence Act of 1996, 7 presently codified as PS §§ 5-101 et seq. Among other changes to the gun control laws, the legislature added to the crimes disqualifying an individual from possessing a regulated firearm “a violation classified as a misdemean- or in the State that carries a statutory penalty of more than 2 years.” PS § 5-101(g)(3).

The parties agree that, in the years between 2001 and 2008, MSP renewed appellee’s carry permit in addition to issuing to appellee other firearms licenses or permits. 8 It appears that the permit at issue in this case was last renewed in 2005. 9 In March 2006, in response to a request from the Superintendent of the Maryland State Police, the Maryland Attorney General issued an opinion concerning the application of PS §§ 5—133(b)(1) and 5-101(g)(3). The Attorney General opined that: Because firearms law regulates the current possession or reception of a firearm, the determination as to whether a ⁴³⁶ particular misdemeanor “carries” a penalty in excess of two years should be made with reference to the penalty at the time of possession, if it is different from the potential penalty at the time of conviction. 91 Op. Atty. Gen.

Md. 68 (2006) (hereinafter referred to as “the Attorney General’s opinion”). On April 7, 2008, appellee applied to MSP for a renewal of his handgun carry permit. Relying on the Attorney General’s opinion, MSP denied the renewal application based on Appel-lee’s 1988 conviction for breaking and entering. Because, at the time of the renewal application, the maximum penalty for the offense for which appellant had been convicted exceeded two years, MSP concluded that he had been convicted of a disqualifying crime that prohibited his possession of a regulated firearm.

Appellee appealed MSP’s denial of the renewal application to the Handgun Permit Review Board. Following a hearing, the Board issued a written decision which contained as findings of fact that appellee was convicted in 1983 for “Breaking and Entering Storehouse etc.” and “at the time of the conviction the penalty was imprisonment for not more than 6 months or a fine of not more than $500 or both.” Its legal conclusion was, without explanation, “that the Attorney General’s opinion does not apply to this situation.” The Board overturned MSP’s denial of appellee’s renewal application, and directed MSP to “issue [appellee] his handgun permit.” MSP sought judicial review of the Board’s decision in the Circuit Court for Baltimore County. The circuit court affirmed the decision of the Board. DISCUSSION MSP contends that the Board erred as a matter of law in failing to apply the current equivalent Maryland offense and its current statutory penalty to appellee’s prior conviction when determining, under PS § 5-101(g)(3), whether the conviction disqualifies appellee from possessing a handgun. ⁴³⁷ Appellee responds that the Board correctly concluded that the “disqualifying crime” provision of the Gun Violence Act of 1996 did not apply to his situation.

According to appellee, he was not convicted of fourth degree burglary, but rather, its statutory predecessor, and therefore, the penalties associated with fourth degree burglary cannot be considered when determining if his 1983 conviction for breaking and entering a storehouse disqualifies him from legally possessing a firearm. Appellee further argues that the legislature never intended to make the crime he was convicted of a disqualifying crime under PS § 5—101(g)(3), and that to conclude otherwise would produce an “illogical” and unfair result. Finally, appellee avers that MSP’s denial of his renewal application constitutes entrapment by estoppel, and that the rule of lenity should be applied in his favor. As we shall explain, we conclude that the Board erred as a matter of law in its interpretation of PS § 5—101(g)(3) and the statute’s application to the facts of this case.

In Brown v. Handgun Permit Review Board, 188 Md.App. 455 , 982 A.2d 830 (2009), cert. denied, 412 Md. 495 , 988 A.2d 1008 (2010), a case that also involved a review of a ruling by the Handgun Review Board, we summarized the standard of appellate review as follows: When reviewing the decision of an administrative agency, ... we review the agency’s decision directly, not the decision of the circuit court. A reviewing court will affirm the decision of the [agency] when it is supported by substantial evidence appearing in the record and it is not erroneous as a matter of law. Because an agency’s decision is presumed prima facie correct, we review the evidence in the light most favorable to the agency. Indeed, it is the agency’s province to resolve conflicting evidence and where inconsistent inferences can be drawn from the same evidence it is for the agency to draw the inferences.

When we review an agency decision that is a mixed question of law and fact, we apply the substantial evidence test, that is, the same standard of review [we] would apply to an agency factual finding. ⁴³⁸ Id. at 466-67, 982 A.2d 830 (citations and internal quotation marks omitted.) In the present case, there are no relevant factual matters in dispute. The Board’s rejection of the Attorney General’s opinion is obviously based on its interpretation of PS § 5-101(g)(3). That is a question of law that we review de novo. Generally, we give weight to an agency’s interpretation of a statute if such interpretation is longstanding and falls within the agency’s area of expertise.

Brown, 188 Md.App. at 467 , 982 A.2d 830 . But, “when statutory language is unambiguous, administrative constructions, no matter how well entrenched, are not given weight.” Falik v. Prince George’s Hosp., 322 Md. 409, 416 , 588 A.2d 324 (1991). This is because an agency’s construction of a statute “cannot override the plain meaning of a statute or extend its provisions beyond the clear import of the language employed.” Id. (citing St. Dept. of A. & T. v. Greyhound Comp., 271 Md. 575, 589 , 320 A.2d 40 (1974)).

As we shall explain, we find PS § 5-101(g)(3) to be unambiguous. Therefore, we do not afford weight to the Board’s interpretation of the statute. Md.Code (2002), Crim. Law § 4-203 generally prohibits persons from wearing, carrying or transporting a handgun on their person or in a vehicle. 10 But, subsection (b)(2) permits “the wearing, carrying or transporting of a handgun by a person to whom a permit to wear, carry or transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety Article[.]” 11 General qualifications that must be met ⁴³⁹ for a handgun permit are set forth in PS § 5-306. 12 In addition, PS § 5-133(b)(l) 13 prohibits possession of a regulated firearm by a person who has been convicted of a disqualifying crime.

Under PS § 5-101(g)(3), 14 the term disqualifying crime includes “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” 15 ⁴⁴⁰ Statutory interpretation is guided by the following principles: Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself. If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written and in a commonsense manner. We do not add words or ignore those that are there. If there is any ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created.

Downes v. Downes, 388 Md. 561, 571 , 880 A.2d 343 (2005). In our view, the language of PS § 5-101(g)(3), read together with PS § 5-133(b)(l) is clear and unambiguous with respect to the issue presented in this case: a person who has been convicted of a violation classified as a misdemeanor in the State that carries a statutory penalty of more than two years may not possess a regulated firearm. The word “carries” expresses the present tense—i.e., that the statutory penalty to be considered is the penalty in effect at the time that qualification is being considered. If it was the intent of the legislature to exempt from the provisions of § 5-101 (g)(3) an individual who was legally permitted to possess or carry a handgun prior to October 1, 1996 when the law took effect, it is reasonable to presume that the legislature would have used operative language to express that intent.

For example, “disqualifying crime” could have been defined in PS § 5-101(g)(3) as a misdemeanor that, at the time of conviction, carried a statutory penalty of more than two years. Alterna ⁴⁴¹ tively, the legislature could have included a “grandfather clause” exempting individuals who were legally permitted to possess a regulated firearm prior to the enactment of the new law. Nothing in the language of the statute evidences such an intent, and it is not the function of this Court to supply one by interpretation. See Pappas v. Pappas, 287 Md. 455, 465 , 413 A.2d 549 (1980) (“A court may not under the guise of interpretation insert or omit words to make a statute express an intention not evidenced in its original form.”) See also, Fisher v. State, 367 Md. 218, 292 , 786 A.2d 706 (2001) (courts may not “supply missing language when there is a casus omissus in the legislative scheme by judicially creating a statutory provision that the legislature would probably have added if it had given any thought to the problem it had not addressed.”) 16 Even if we were persuaded to accept appellee’s argument that the statutory language is “inexact and imprecise,” and, thus, ambiguous, an examination of the legislative history reveals nothing that contradicts our reading of the plain language of the statute.

The legislative history indicates that adding misdemeanors carrying a maximum sentence in excess of two years to the list of disqualifying crimes was to bring Maryland law in line with federal law 17 and to further restrict individuals who had been convicted of crimes from lawfully possessing regulated firearms. The introductory paragraph of the Gun Violence Act of 1996, which was introduced in the legislature as companion bills Senate Bill 215 and House Bill 297, states, inter alia, that the purpose was “.. . revising, reorganizing, and clarifying certain laws pertaining to the sale, rental, or transfer of ⁴⁴² certain regulated firearms by certain individuals;” and “providing that certain sales, transfers, and possessions of firearms prohibited under federal law are prohibited under State law .... ” (Emphasis supplied.) Similarly, the Fiscal Note to House Bill 297, prepared by the Department of Fiscal Services, analyzing the fiscal impact of the proposed changes on the State and local governments, states, in relevant part: “This administrative bill ... expands penalties for use and possession of a regulated firearm to include more offenses____” (Emphasis supplied.) The report of the Governor’s Commission on Gun Violence, 18 upon which, according to the Attorney General’s opinion, the 1996 amendments were “largely based,” 19 recommended that Maryland “[incorporate federal law ‘reasons to deny a handgun’ into State law.” As the Commission explained: Under federal law, if a person is convicted of any misdemeanor that carries more than a two year term of imprisonment, they are prohibited from owning a firearm. There are approximately 90 misdemeanors in the State of Maryland that trigger this prohibition. Once an individual is convicted of such a misdemeanor, under federal law, she or he may no longer purchase or possess a firearm.

Id. at 20. In sum, it appears that the motivating rationale for adding certain misdemeanors, including fourth degree burglary, to the list of disqualifying crimes was to mirror federal law and expand the number of disqualifying crimes. Nothing in the legislative history suggests an intent to exempt from the amendment an individual who was legally permitted to possess or carry a gun prior to October 1, 1996 when the law took effect. Additionally, we see nothing in the statute or legislative history that eclipses the plain meaning of the word “carries” and suggests that the penalty to be considered is the ⁴⁴³ penalty that existed at the time of the conviction rather than the penalty in effect at the time of the application for a permit for a regulated firearm.

Nor are we persuaded by appellee’s argument that the penalties associated with fourth degree burglary should not apply to his situation because he was not convicted of that crime. He asserts that because the crime of which he was convicted is now categorized along with other crimes that already carried a more serious maximum penalty, it is “entirely inappropriate” to equate his 1983 offense with the offense of burglary in the fourth degree and its penalties. Contrary to appellee’s assertion that the current statutory scheme for burglary offenses “bears no resemblance to what was on the books a quarter century ago,” fourth degree burglary does not differ substantively from the statutory crime of which appellee was convicted. See McKenzie, supra.

See also, Comptroller v. Blanton, 390 Md. 528, 538 , 890 A.2d 279 (2006) (recodification of statutes is presumed to be for the purpose of clarity rather than change of meaning unless there is a radical change in phraseology.) Article 27, § 31B of the Maryland Code, under which appellee was convicted in 1983, provided that “any person who breaks and enters a storehouse ... of another ... shall be guilty of a misdemeanor.” Crim. Law § 6-205(b), the current equivalent, provides that “[a] person may not break and enter the storehouse of another.” The elements of the crime did not change in the recodification. The only substantive change was the increase in the maximum penalty. 20 ⁴⁴⁴ The fact that storehouse breaking carried the least serious penalty among the crimes consolidated into the fourth degree burglary statute in 1994 in no way suggests, as appellee posits, that the legislature did not intend to make breaking and entering a storehouse a disqualifying crime in 1996. What is relevant, as it pertains to the application of § 5—101(g)(3), is that the General Assembly, in 1994, for reasons unexplained in the legislative history, expressly increased the statutory penalty for breaking and entering a storehouse from a maximum of six months to a maximum of three years.

Presumably the General Assembly was aware of that legislation when it expanded the category of disqualifying crime to any misdemean- or “that carries a statutory penalty of more than 2 years.” Appellee also urges that if the stated purpose of the Maryland Gun Violence Act of 1996