Melgar v. State

³⁴² RAKER, J. José Armando Melgar challenges his sentence of incarceration for twenty-five years without parole, imposed by the Circuit Court for Prince George’s County pursuant to the enhanced penalty provision contained in Article 27, § 286(d) of the Maryland Code. He asserts that the State did not satisfy its burden of proving one of the statutory predicates for imposing the enhanced penalty, that is, that he had served at least 180 days of a term of confinement in a correctional institution imposed as a result of a previous conviction under § 286 or § 286A. We must decide whether the required 180-day term of prior confinement may include time spent by a defendant in pretrial detention stemming from the charges upon which the previous conviction rested. We shall hold that because the time a defendant spends in pretrial detention ordinarily is not as “a result of a conviction,” such time may not be included to satisfy the statutory requirement under § 286(d) of a term of confinement of at least 180 days.

Accordingly, we shall reverse the judgment of the Court of Special Appeals upholding Melgar’s mandatory, enhanced sentence. I. In July of 1997, the Grand Jury for Prince George’s County indicted Petitioner, Jose Armando Melgar, on four counts: possession of cocaine with intent to distribute, in violation of Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.), Article 27, § 286(a)(1); 1 possession of cocaine, in violation of § 287(a); making a false statement to a police officer, in violation of § 150(b); and resisting arrest, in violation of the common law. On October 16, 1997, following a two-day jury trial in the circuit court, Petitioner was found guilty on all four counts. The State served Petitioner with notice of intent to seek mandatory sentencing under § 286(d) based upon two previous drug convictions under § 286(b) and the concomitant, ³⁴³ concurrent term of incarceration he had served for those convictions.

Section 286(d) is an enhanced penalty provision for three-time, or so-called “third-strike,” drug offenders; it reads, in pertinent part, as follows: § 286. Unlawful manufacture, distribution, etc.; counterfeiting, etc.; manufacture, possession, etc., of certain equipment for illegal use; keeping common nuisance. (d)(1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section shall be sentenced to imprisonment for the term allowed by law, but, in any event, not less than 25 years if the person previously: (1) Has served at least 1 term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation of this section or § 286A of this article; and (ii) Has been convicted twice, where the convictions do not arise from a single incident: 1. Under subsection (b)(1) or subsection (b)(2) of this section; 2.

Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section; 3. Of an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection (b)(1) or subsection (b)(2) of this section if committed in this State; or 4. Of any combination of these offenses. (2) Neither the sentence required under paragraph (1) of this subsection nor any part of it may be suspended, and the person may not be eligible for parole except in accordance with Article 31B, § 11 of the Code.

Thus, in order to invoke the mandatory penalty of twenty-five years in prison without parole for a three-time drug offender under § 286, the State must establish three predi ³⁴⁴ cates, namely, that the defendant about to be sentenced: first, is presently convicted of violating or conspiring to violate § 286(b)(1) or (b)(2); second, has two prior convictions, not arising out of a single incident, for violating or conspiring to violate § 286(b)(1) or (b)(2)—or like offenses within another American jurisdiction; and third, has served at least one term of confinement of at least 180 days in a correctional institution as a result of conviction of a previous violation of § 286 or § 286A. Petitioner did not dispute before the sentencing court, nor has he contested on appeal, the State’s satisfaction of the first two predicates that we have outlined above as necessary for imposition of the three-time drug offender enhanced penalty. As to the third prerequisite, the State averred at the sentencing hearing in the present case that Petitioner had served a single term of confinement of 248 days as a result of his earlier drug convictions. Petitioner rebutted neither the State’s presentation of evidence nor its argument at that time.

The sentencing court found that the State had satisfactorily demonstrated fulfillment of all three predicates under the enhanced penalty provision of § 286(d). Stating that she had “no discretion but to impose the sentence the State requests,” the court sentenced Petitioner to twenty-five years of imprisonment without the possibility of parole. Petitioner noted a timely appeal to the Court of Special Appeals, contending for the first time that he did not qualify for the mandatory, three-time drug offender enhanced sentencing because the State had failed to demonstrate that he had served the 180-day term of confinement required by § 286(d)(l)(i). 2 When Petitioner was sentenced in 1996 on the ³⁴⁵ earlier drug offenses, the court gave him credit for 107 days he had spent in pretrial detention at the Prince George’s County Detention Center because of his inability to post the required bond. As it turned out, Petitioner served a total of 248 days concurrently on the prior two convictions before being released on probation.

Petitioner argued that, because he had served 107 days as a result of his failure to post bond, he had served only 141 days “as a result of’ a previous conviction under § 286, not the requisite 180 days. Therefore, Petitioner asserted, he did not qualify for the mandatory, enhanced penalty under § 286(d). In an unreported opinion, the Court of Special Appeals affirmed the judgment of the circuit court, holding that the 180-day term of confinement mandated by § 286(d)(l)(i) implicitly includes pretrial detention served in relation to the same underlying, qualifying offense. We granted Melgar’s petition for writ of certiorari to consider whether the Court of Special Appeals erred in concluding that the time Petitioner spent in pretrial detention may properly be considered in computing the statutory predicate that he must have served “at least 1 term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation” of § 286 or § 286A before the mandatory, enhanced penalty under § 286(d) could be imposed upon him.

II

Petitioner contends that the trial court erred in finding that he had served at least one term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation of § 286. While acknowledging that he had the two prior convictions necessary to support the imposition of the mandatory sentence pursuant to § 286(d) and likewise ³⁴⁶ that he had served more than 180 days of confinement, he nonetheless points to the undisputed facts that he had served a total of 141 days in the Maryland Division of Correction and had received credit for the 107 days that he had spent in pretrial incarceration in the Prince George’s County Detention Center. Petitioner insists that the 107 days spent at the detention center awaiting trial cannot be counted toward the statutory 180-day period: he was not detained “as a result of conviction”—as is required under § 286(d)—but simply because he was unable to post bail. He argues that the mere fact that the trial court gave him credit for the 107 days of pretrial incarceration cannot convert those 107 days into time served as a result of a conviction.

The State’s counter-argument essentially mirrors the rationale expressed by the Court of Special Appeals in affirming Petitioner’s sentence under § 286(d). The State explains that after his conviction on the prior offenses, Petitioner was sentenced by the court to a term of confinement of one year and a day, with credit toward that sentence for the 107 days he had served in pretrial detention. Because the total concurrent term of confinement Petitioner actually served for the previous offenses was 248 days, it satisfied the statutory predicate of a 180-day term of confinement as prescribed by § 286(d)(1)®. Under the State’s interpretation, § 286(d) does not preclude cumulating the entire period of confinement with respect to a single charge and conviction.

The State suggests that it is disingenuous for Petitioner to argue that his 107 days of pretrial confinement should not count toward the statutory 180-day requirement given that he has already benefitted from having that time credited toward his sentence. See Maryland Code § 638C(a). 3 ³⁴⁷ III. In construing a statute, the objective is to ascertain and give effect to the intent of the Legislature. Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128, 1130 (1998).

To discern legislative intent, we look first to the plain language of the statute, “as the words of the statute, given their ordinary and popularly understood meaning, are the primary source of legislative intent.” Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675, 678 (1994). If the language of the statute is plain and clear, and expresses a meaning consistent with the statute’s goals and apparent purpose, our inquiry is ordinarily at an end. Id,., 639 A.2d at 678 . If the language is ambiguous or unclear, we then examine the surrounding circumstances, including legislative history, prior case law and the statute’s purpose to discern legislative intent.

Lewis, 348 Md. at 653 , 705 A.2d at 1131 . Furthermore, § 286(d), an enhanced penalty statute, is highly penal and must be strictly construed so that the defendant is only subject to punishment contemplated by the statute. Jones v. State, 324 Md. 32, 38 , 595 A.2d 463, 466 (1991); see also Dickerson v. State, 324 Md. 163, 172 , 596 A.2d 648, 652 (1991); Wynn v. State, 313 Md. 533, 539-40 , 546 A.2d 465, 468 (1988). When doubt exists regarding the punishment imposed by a statute, the rule of lenity instructs that a court “not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended.” White v. State, 318 Md. 740, 744 , 569 A.2d 1271, 1273 (1990) (quoting Simpson v. United States, 435 U.S. 6, 15 , 98 S.Ct. 909, 914 , 55 L.Ed.2d 70 (1978) (in turn quoting Ladner v. United States, 358 U.S. 169, 178 , 79 S.Ct. 209, 214 , 3 L.Ed.2d 199 (1958))); Gargliano, 334 Md. at 437 , 639 A.2d at 679 ; ³⁴⁸ Monoker v. State, 321 Md. 214, 222-23 , 582 A.2d 525, 529 (1990).

We have many times stated the rule that “[w]here the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment.” Jones, 324 Md. at 37 , 595 A.2d at 465 (citing several cases). Applying all the aforementioned principles to the facts and circumstances of the present case, we conclude that the 180-day previous term of confinement required under § 286(d) as a statutory predicate for imposing a twenty-five year mandatory sentence without parole may not be satisfied by cumulating a term of confinement of less than 180 days served post-conviction under the Division of Correction along with however many days have been credited for time spent in pretrial detention. This is true even though all time was served in relation to the same offense for which a defendant was previously charged and sentenced under § 286. The plain language of the statute “as a result of a conviction” is clear and unambiguous.

Time spent in pretrial detention does not come within the 180-day requirement mandated by § 286(d) because such time is not “as a result of a conviction” but merely the consequence of a defendant’s not posting bail. Indeed, as Petitioner points out, the language in § 638C’s provision of credit against a sentence for time