Melton v. State

CATHELL, Judge. On October 4, 2001, petitioner was tried in the Circuit Court for Baltimore County and convicted, in a bench trial, of the unlawful possession of a firearm by a person previously convicted of a crime of violence, the unlawful possession of a firearm by a person previously convicted of a felony, and the unlawful possession of a firearm by a person previously convicted of a misdemeanor with a penalty of over two years of incarceration. On December 14, 2001, petitioner was sentenced to five years of incarceration without parole for the conviction based on the unlawful possession of a firearm by a person previously convicted of a crime of violence and to a concurrent sentence of five years of incarceration without parole for the conviction based on the unlawful possession of a firearm by a person previously convicted of a felony. The trial judge suspended the sentence “generally” for the conviction for unlawful possession of a firearm by a person previously convicted of a misdemeanor with a penalty of over two years of incarceration.

Petitioner filed an appeal to the Court of Special Appeals. On June 3, 2003, in an unreported opinion, the Court of Special Appeals affirmed the trial judge’s decision. The Court of Special Appeals held that: “separate criminal offenses have been committed. For each offense, the Legislature has provided a separate punishment.

Moreover, the Legislature has not indicated in any ⁴⁷⁴ way that it intended to prohibit the imposition of separate sentences for the crimes at issue. For these reasons, the rule of lenity does not require a merger of the separate offenses proscribed by Article 27, §§ 445(d)(l)(i) and (ii).” [Footnote omitted.] Petitioner then filed a Petition for Writ of Certiorari to this Court and on September 10, 2003, this Court granted the petition. Melton v. State, 377 Md. 111 , 832 A.2d 204 (2003). In his brief, petitioner presents one question for our review: “Under Md. Ann Code, Art. 27, § 449(e), may a court impose separate sentences on an individual who has been convicted under a count alleging a violation of § 445(d)(l)(i) (unlawful possession of a regulated firearm by a person with a prior conviction of a crime of violence), a count alleging a violation of § 445(d)(1)(h) (unlawful possession of a regulated firearm by a person with a prior conviction of a felony), and a count alleging a violation of § 445(d)(l)(ih) (unlawful possession of a regulated firearm by a person with a prior conviction of a misdemeanor with a statutory penalty of more than two years), where all of the charges are based on one act of unlawful possession of a regulated firearm?” We answer petitioner’s question in the negative and hold that the Legislature did not intend for a court to render separate multiple verdicts of convictions on an individual for illegal possession of a regulated firearm pursuant to Md.Code (1957, 1996 Repl.Vol.2001 Supp.), Art. 27 § 445(d)(l)(i), (h) and (hi) and § 449(e) and (f) where that individual fits within several categories of prior qualifying convictions, but only possessed a single regulated firearm on a single occasion.

Further, an interpretation to the contrary would be barred by the rule of lenity. I. Facts Petitioner’s convictions arose out of a January 2001 incident involving a dispute between neighbors in an apartment building in the Essex area of Baltimore County, Maryland. Around 6:30 p.m. on the evening of January 23, 2001, two sets of neighbors arrived in the parking lot of their apartment ⁴⁷⁵ complex at approximately the same time. Pursuant to the testimony of the first couple, Shikera Bibb and her fiancee, Duane David, the two had a confrontation with petitioner and his wife after Ms. Bibb and Mr. David approached the Mel-tons.

Mr. David asked to speak to petitioner and petitioner’s wife sprayed both Ms. Bibb and Mr. David in the face with mace. 1 Mr. David then threatened reprisal against petitioner’s wife. Ms. Bibb and Mr. David testified that petitioner pulled out a gun and pointed it at them in response to Mr. David’s actions. 2 While pointing the gun back and forth at Ms. Bibb and Mr. David, petitioner told them that they were not going to touch his wife. Ms. Bibb and Mr. David then walked away from the Mel-tons and entered their apartment building. Soon thereafter, they again encountered the Meltons and another heated argument ensued.

Ms. Bibb and Mr. David testified that petitioner again displayed a handgun before the confrontation ended. At trial, the State presented certified copies of petitioner’s prior convictions, including his convictions for possession of marijuana with intent to distribute, possession of controlled dangerous substances (not marijuana), second degree assault and resisting arrest. While testifying in his own defense, petitioner admitted to a prior conviction for felony theft. The State also presented evidence that the handgun brandished by petitioner during the January 23rd incident with his neighbors was a regulated firearm.

As a result of this incident, 3 petitioner was charged with three separate violations of Md.Code (1957, 1996 Repl.Vol., ⁴⁷⁶ 2001 Supp.), Art. 27 § 445(d)(1)©, (ii) and (in), 4 because he possessed a firearm and: 1-had been previously convicted of a crime of violence (second degree assault); 2-had been previously convicted of a violation classified as a felony (felony convictions for possession of controlled dangerous substances and a felony theft conviction); and 3-had been previously convicted of a violation classified as a misdemeanor that carries a penalty of more than 2 years (second degree assault). Although his possession of the firearm on January 23rd was treated as a single act of possession, petitioner was nonetheless charged with three separate criminal offenses solely because of his prior history of convictions. Petitioner was convicted on all three charges. As mentioned previously, the trial judge sentenced petitioner to five years of incarceration on the (d)(i) count and a concurrent five years of incarceration for the (d)(ii) count, while his sentence for the (d)(iii) conviction was suspended generally.

II

Discussion A. Standard of Review The three counts relating to the illegal possession of a firearm by a prohibited person pursuant to which petitioner was convicted are crimes that are purely statutory in nature. In interpreting statutes, this Court has said that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Holbrook v. State, 364 Md. 354, 364 , 772 A.2d 1240, 1245-46 (2001) (quoting In re Anthony R., 362 Md. 51, 57 , 763 A.2d 136, 139 (2000) (internal citation omitted)). A court should first examine the plain language of the statute when attempting to ascertain the ⁴⁷⁷ legislative intent. Holbrook, 364 Md. at 364 , 772 A.2d at 1246 ; In re Anthony R., 362 Md. at 57 , 763 A.2d at 139 .

If the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then this Court “will give effect to the statute as it is written,” Pak v. Hoang, 378 Md. 315, 323 , 835 A.2d 1185, 1189 (2003) (quoting Moore v. Miley, 372 Md. 663, 677 , 814 A.2d 557, 566 (2003) (quoting Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204, 1206-07 (1994))), and we will not add or delete words from the statute, Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426, 427 (2002). Only if the statutory language is ambiguous will this Court look “beyond the statute’s plain language in discerning the legislative intent.” Comptroller of the Treasury v. Clyde’s of Chevy Chase, Inc., 377 Md. 471, 483 , 833 A.2d 1014, 1021 (2003). We have said that ambiguity exists within a statute when there are “two or more reasonable alternative interpretations of the statute.” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003). Once a statutory provision is found to be ambiguous, then we may look to other relevant factors that may reveal the statute’s intent or general purpose, such as “a bill’s title and function paragraphs, amendments ... and other material that fairly bears on the fundamental issue of legislative purpose or goal.” Clyde’s, 377 Md. at 483 , 833 A.2d at 1021 (quoting Moore, 372 Md. at 677 , 814 A.2d at 566 (quoting In re Anthony R., 362 Md. at 58 , 763 A.2d at 140 (internal citation omitted))).

Any “[construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided.” Degren v. State, 352 Md. 400, 417 , 722 A.2d 887, 895 (1999) (alteration added) (quoting Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992))); see also Moore, 372 Md. at 677-78 , 814 A.2d at 566 . In the case sub judice, the language of § 445(d)(1) appears clear and unambiguous on its face. It is a mere enumeration of the classifications of persons prohibited from possessing regulated firearms in Maryland. Petitioner does not now dispute the fact that he was in violation of § 445(d)(1) because of his previous convictions coupled with his being found guilty ⁴⁷⁸ of possession of a single firearm during the January 23, 2001 incident.

Petitioner does, however, challenge his multiple convictions under § 445(d)(l)(i), (ii) and (iii) of the statute. The question is thus whether the language of § 449(e) and (f), the subsections instituting penalties for petitioner’s three convictions under § 445(d)(l)(i), (ii) and (iii), stating that “Each violation shall be considered a separate offense,” allows for multiple convictions based not on multiple firearm possessions or multiple incidents of firearm possession, but solely on petitioner’s single firearm possession with several prior qualifying convictions under § 445(d)(1). This essential issue turns on which unit of prosecution the Legislature intended for § 449(e) to trigger its mandatory minimum sentences: the number of separate acts of illegal firearm possession or the number of convictions of prior qualifying crimes. Although it included the language mandating that “Each violation shall be considered a separate offense,” the Legislature failed to define the term “violation” for the purposes of this statute.

Simply put, no explanation of the intended unit of prosecution was put forth by the General Assembly. Thus, we must decide whether “Each violation” occurs only on every separate illegal act of possession or whether “Each violation” occurs where there is a single possession coupled with several qualifying prior convictions. This Court applies our normal rules of statutory construction in determinating the legislative intent regarding the proper unit of prosecution and the appropriate unit of punishment in respect to violations of any criminal statute. In Huffman v. State, 356 Md. 622, 627-28 , 741 A.2d 1088, 1091 (1999), we stated: “In determining the appropriate unit of punishment for violations of statutory provisions, the central question is one of legislative intent.

Randall Book Corp. v. State, 316 Md. 315, 324 , 558 A.2d 715, 720 (1989). We have explained that ‘whether a particular course of conduct constitutes one or more violations of a single statutory offense depends upon the appropriate unit of prosecution of the offense and this is ⁴⁷⁹ ordinarily determined by reference to the legislative intent.’ Richmond v. State, 326 Md. 257, 261 , 604 A.2d 483, 485 (1992); Brown v. State, 311 Md. 426, 432 , 535 A.2d 485, 488 (1988). Every quest to discover and give effect to the objectives of the legislature begins with the text of the statute. In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994).

If the intent of the legislature is clear from the words of the statute, our inquiry normally ends and we apply the plain meaning of the statute. State v. Montgomery, 334 Md. 20, 24 , 637 A.2d 1193, 1195 (1994). In other words, we will approach our analysis from a common sense perspective, seeking to give the statutory language its ordinary meaning. See United States v. Universal Corp., 344 U.S. 218, 221 , 73 S.Ct. 227, 229 , 97 L.Ed. 260, 264 (1952).

In furthering the identified legislative objectives, we avoid giving the statute a strained interpretation or one that reaches an absurd result. Briggs v. State, 348 Md. 470, 477 , 704 A.2d 904, 908 (1998).” See also Bane v. State, 327 Md. 305, 308 , 609 A.2d 313, 314 (1992) (stating that a question of the proper unit of prosecution exists where “multiple sentences for conduct proscribed by a single statute, which, though occurring in a single transaction, gives rise to multiple prosecutions”). B. Felony and Crimes of Violence Qualifiers The offenses of which petitioner was convicted were located, at the time of petitioner’s conduct and trial, within the “Regulated Firearms” subheading of Article 27 of the Maryland Code. Section 445(d), which specifically enumerates the persons prohibited from possessing regulated firearms under Article 27, stated: 5 “ § 445.

Restrictions on sale, transfer and possession of regulated firearms. ⁴⁸⁰ (d) Restrictions on possession — In general — A person may not possess a regulated firearm if the person: (1) Has been convicted of: (1) A crime of violence; (ii) Any violation classified as a felony in this State; (iii) Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years; 'or (iv) Any violation classified as a common law offense where the person received a term of imprisonment of more than 2 years. (2) Is: (i) A fugitive from justice; (ii) A habitual drunkard; (iii) Addicted to or a habitual user of any controlled dangerous substances; (iv) Suffering from a mental disorder as defined in § 10-101(f)(2) of the Health-General Article and has a history of violent behavior against another person or self, or has been confined for more than 30 consecutive days to a facility as defined in § 10-101 of the Health-General Article, unless the person possess a physician’s certification that the person is capable of possessing a regulated firearm without undue danger to the person or to others; or (v) A respondent against whom a current non ex parte civil protective order has been entered under § 4-506 of the Family Law Article. (3) Is less than 30 years of age at the time of possession and has been adjudicated delinquent by a juvenile court for committing: (i) A crime of violence; (ii) Any violation classified as a felony in this State; or (iii) Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years.” The felony/misdemeanor classification and subsequent penalties for violations involving regulated firearms under § 445 ⁴⁸¹ are found in § 449. The mandatory minimum provision providing penalties for violations of § 445(d)(l)(i) and (ii) was first enacted by Chapter 2 of the Laws of Maryland of 2000 and it states: “ § 449.

Penalties. (e) Illegal possession of firearm with certain previous convictions. — A person who was previously convicted of a crime of violence as defined in § 441(e) of this article or convicted of a violation of § 286 or § 286A of this article, and who is in illegal possession of a firearm as defined in § 445(d)(1)® and (ii) of this article, is guilty of a felony and upon conviction shall be imprisoned for not less than 5 years, no part of which may be suspended and the person may not be eligible for parole. Each violation shall be considered a separate offense.” The outcome in the case sub judice rests upon the interpretation of the last sentence of § 449(e). The Legislature did not provide any definition for the term “violation.” The insertion of that language, however clear on its face, without definition, creates an ambiguity as the sentence, as written, is “reasonably capable of more than one meaning.” Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128, 1131 (1998) (quoting Greco v. State, 347 Md. 423, 429 , 701 A.2d 419, 421 (1997)).

Petitioner argues that this Court should determine that the proper unit of prosecution is not “an individual’s [qualifying] prior convictions (or each [qualifying] class of which [petitioner] is a member),” but “each unlawful act of possession” (alterations added). 6 Petitioner contends that common sense ⁴⁸² precludes multiple convictions based solely on the number of prior convictions where only one act of possession of an illegal firearm occurred. He argues that § 449 is ambiguous as a result of not defining the term “violation” and that the rule of lenity requires the ambiguity to be construed in favor of petitioner. The State counters petitioner’s arguments by asserting that the statutory language of § 445(d)(1) and § 449 is “plain and unambiguous,” thus precluding the applicability of the rule of lenity. The State also proffers that the legislative history of the statute “indicates that separate sentences are permissible.” The State argues that this is so “because of the strong intent manifested in the legislative history making it apparent that the conduct here was to be dealt with as severely as possible.” C. Misdemeanor Qualifier Petitioner’s conviction under § 445(d)(l)(ni), for possession of a firearm with a prior “violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years,” subjected him to the penalty stated in § 449(f), which provides for a penalty for illegal possession of a regulated firearm for persons not fitting into the other categories of § 449, as it does not fall into the purview of § 449(e).

Section 449(f) states: “(f) Knowing participants in sale, rental, etc. — Except as otherwise provided in this section, any dealer or person who knowingly participates in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subheading shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10,000 or imprisoned for not more than 5 years, or both. Each violation shall be considered a separate offense.” ⁴⁸³ Petitioner’s conviction under § 445(d)(l)(iii) was suspended “generally” by the trial judge. As the language in question in this subsection, stating that “Each violation shall be considered a separate offense,” is identical to the questioned language in § 449(e) and as this subsection, including its identical “violation” phrase, was enacted prior to the 2000 version of § 449(e), its construction is one key to our interpretation of § 449(e). While the mandatory minimum sentences of § 449(e) first appeared in the Code in 2000, the words, “Each violation shall be considered a separate offense,” first appeared in Article 27 when it was added by the Maryland Gun Violence Act of 1996. 1996 Md. Laws, Ch. 561, Ch. 562.

Identical to the current § 449(f), supra, the 1996 version of § 449(e) stated: “(e) Except as otherwise provided in this section, any dealer or person who knowingly participates in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subheading shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10,000 or imprisoned for not more than 5 years, or both. Each violation shall be considered a separate offense.” Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 449(e). The “Each violation” clause in the above subsection follows a listing of individual violations of § 445 (“illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm”). The placement of this language strongly suggests that the term “violation” refers to each individual illegal act within the list of enumerated violations of § 445, which, in turn, illustrates that the unit of prosecution is the illegal act violating § 445, ie., the prohibited act of possession, sale, transfer, etc., of the firearm and not the number of prior qualifying convictions.

This section of the prior statute was amended by the Responsible Gun Safety Act of 2000, 2000 Md. Laws, Ch. 2, and it was placed into what is now § 449(f). 7 Thus, § 449(f)’s language ⁴⁸⁴ may - support petitioner’s argument that only one conviction under § 445(d) (and a single penalty under § 449) can be sustained for each violation of § 445. 8 D. General Discussion The Responsible Gun Safety Act of 2000 created new subsections and crimes, one of which was the version of § 449(e) ■with which petitioner was charged. In its brief, the State offered several accurate descriptions of the bill’s purpose, which illustrate the community’s concern about felons having firearms. One letter, from the Mayor of Baltimore City, described this public sentiment in saying that “this bill will make our communities safer by removing violent felons from our streets,” while a letter from the Maryland Chiefs of Police Association stated that “[f]irearms do not belong in the hands of individuals who have previously demonstrated a propensity for criminal conduct or violent behavior” (alteration added). While letters such as these illustrate the strong desire to keep firearms away from felons and potentially violent persons, they do not provide any guidance as to the particular unit of prosecution on which the Legislature intended § 449(e) to operate.

In fact, the concerns set forth in these letters are satisfied by petitioner’s construction of the statute, as the illegal possessor will still receive a five-year term of imprisonment without the possibility of parole while not being subject to a piling on of sentences resulting from multiple convictions based on a single act of possession. ⁴⁸⁵ Some of the legislative material reveals that the 2000 version of § 449(e) suggests that the unit of prosecution was akin to that of the 1996 version (and later version of § 449(f)), the prohibited act. The Bill Analysis of House Bill 279 9 stated: “The bill creates a new felony and a five-year mandatory minimum term of imprisonment for a person who illegally possesses a firearm and has certain qualifying convictions for crimes of violence or certain controlled dangerous substances. “IX. Mandatory Minimum for Certain Repeat Offenders “The bill creates a new felony and a five year mandatory minimum term of imprisonment for a person who illegally possesses a regulated firearm (Article 27, § 445(d)(1)® and (ii)) if that individual and has been convicted of either: (1) a crime of violence; or (2) unlawful possession, distribution, or importation of a controlled dangerous substance (Article 27, § 286 and § 286A). “Current law provides that violations of the relevant firearms sections are misdemeanors. Article 27, § 449.” [Some emphasis added.] This analysis emphasizes that the new felony is for possession of a firearm by a person with certain qualifying convictions, which suggests that preventing the act of possessing firearms was the true goal of the legislation, not multiple punishments for a single act based upon multiple prior convictions.

The driving force behind the statute, and the evil sought to be remedied, is the act of possessing the regulated firearm. While similar to the ultimate language of § 449(e), the Fiscal Notes for both Senate Bill 211 10 and House Bill 279 ⁴⁸⁶ identified the new felony with emphasis on the possession of the firearm. Both Fiscal Notes state: “If a person who was previously convicted of a crime of violence or serious drug offense illegally possesses a firearm, the person is guilty of a felony and will be imprisoned for a minimum of five years, and is not eligible for a suspended sentence or parole. Each violation is a separate offense.” [Emphasis added.] 11 These documents contemplate what was already evident in the 1996 version of § 449(e) 12 — that the prohibited act, ie., in this case illegal possession of a regulated firearm, not the prior conviction, was the vice sought to be remedied by the Responsible Gun Safety Act of 2000.

It was to elevate the offense of certain possessions from a misdemeanor classification to a felony classification while retaining a misdemeanor classification for illegal rentals, sales, etc. of firearms. Given this legislative background and construction of the statute, it seems to us that the unit of prosecution for § 449(e) is the prohibited act of illegal possession of a firearm and that the statute does not support multiple convictions based on several prior qualifying offenses where there is only a single act of possession. ⁴⁸⁷ We have found no cases in this Court that directly speak to the issue before us. We have, however, recently had cause to discuss sentencing issues under § 449(e) in Price v. State, 378 Md. 378 , 835 A.2d 1221 (2003). 13 In Price , we held that the defendant was not subject to the mandatory minimum sentences of § 449(e) because his prior conviction for daytime housebreaking was not incorporated as a “crime of violence” under § 441. We noted that “Section 449(e), by its plain structure, is divided into two requirements.

The first requirement is that the defendant have a previous conviction of a crime that falls within § 441(e). The second requirement is that the defendant have a current conviction under § 445(d)(1)® and (ii).” Pnce, 378 Md. at 384, 835 A.2d at 1224. In a footnote following that text, we also noted a possible problem in the language of § 449(e) when we said: “Petitioner does not raise, and we do not decide, any question with respect to the second requirement of § 449(e). Therefore, we do not consider whether § 449(e)’s mandatory sentencing imperative requires a conviction under both § 445(d)(1)® and (ii), as the plain language indicates.

Although Price was convicted pursuant to only § 445(d)(1)(h), we assume for purposes of this case alone that this was sufficient to satisfy the second requirement of § 449(e), and that the only issue before us is whether the first requirement, that his prior crime fall within § 441(e), was satisfied.” 14 Id. at 384-85 n. 4, 835 A.2d at 1225 n. 4. While admitting that the statute “is not a model of clarity,” the State, quoting the language from the Bill Analysis for Senate Bill 211, contends that Senate Bill 211 was intended to ⁴⁸⁸ require illegal firearm possession coupled with being “ ‘previously convicted of a crime of violence or certain serious controlled dangerous substances violations.’ ” The State refers to the newly codified Md.Code (2003), § 5-133 of the Public Safety Article’s special revisor’s note, which states, in part: “As enacted by Ch. 5, Acts of 2003, this section was new language derived without substantive change from former Art. 27, § 449(e) and § 445(d), (e), and, except as it related to the transfer of regulated firearms, (a). However, Ch. 17, Acts of 2003, amended subsection (c)(1) of this section to correct a technical error. “The Public Safety Article Review Committee noted in Ch. 5, for consideration by the General Assembly, that the meaning of the reference in former Art. 27, § 449(e) to a person “who is in illegal possession of a firearm as defined in § 445(d)(l)(i) and (ii) of [Art. 27]’ was unclear. Former Art. 27, § 445(d)(1)(f) and (if) prohibited a person who has been convicted of a crime of violence or any violation classified as a felony in this State from possessing a regulated firearm.

The General Assembly may wish to clarify the meaning of former Art. 27, § 449(e), which is revised in subsection (c) of this section.” 15 The Senate Analysis and the language of Md.Code (2003), § 5-133 of the Public Safety Article (hereinafter, “§ 5-133”) merely highlight the confusion regarding the wording in § 449(e). The plain language of § 449(e) argument, urged on this Court by the State, appears to be directly at odds with this subsequent history. At best for the State, the language is ambiguous, and ambiguous units of prosecution and penalty provisions in criminal statutes, pursuant to the rule of lenity, must normally be construed in favor of the defendant. ⁴⁸⁹ In discussing what the rule of lenity requires in the context of former Md.Code (1957, 1996 RepLVol., 1998 Supp.), Art. 27 § 286(d), this Court has stated that: “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. 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.’ ” Melgar v. State, 355 Md. 339, 347 , 734 A.2d 712, 716-17 (1999) (quoting White v. State, 318 Md. 740, 744 , 569 A.2d 1271, 1273 (1990)) (citations omitted).

See also Webster v. State, 359 Md. 465, 481 , 754 A.2d 1004, 1012 (2000) (stating that “ambiguity in a criminal penal statute, in accordance with the rule of lenity, ordinarily is to be construed against the State and in favor of the defendant”); McGrath v. State, 356 Md. 20, 25 , 736 A.2d 1067, 1069 (1999). In the case sub judice, there is no doubt that § 449(e), a statute which creates a mandatory minimum five-year sentence without the possibility of parole, fits within the definition of “an enhanced penalty statute.” As § 449(e) provides no definition of the term “violation,” and provides no specific direction as to the proper unit of prosecution, we hold that § 449(e) is ambiguous as to that point and accordingly construe § 449(e) narrowly. The fact that the plain language of § 449(e), as it existed at the time of the offense here at issue, leaves us nothing more than “a guess” as to which violation (the illegal possession or prior felony or both, see Price, supra at 487 , as of the time of convictions in the case at bar) triggers the mandatory minimum sentence, requires that the rule of lenity be applied. Petitioner proffers several cases from our Court to support his argument regarding ascertaining the proper unit of prosecution: Eldridge v. State, 329 Md. 307 , 619 A.2d 531 (1993); ⁴⁹⁰ Satterfield v. State, 325 Md. 148 , 599 A.2d 1165 (1992), Dickerson v. State, 324 Md. 163 , 596 A.2d 648 (1991) and State v. Owens, 320 Md. 682 , 579 A.2d 766 (1990).

While none of these cases are determinative on the issue before us, as they do not deal with the statutory scheme at issue in the case sub judice, 16 they do offer some insight as to how this Court has used a common sense approach to avoid absurd or illogical results in determinations of legislative intent regarding intended units of prosecution. In Eldridge v. State, supra, this Court construed a statute which prohibited both the carrying of a deadly weapon when concealed on the person as well as openly carrying a deadly weapon with intent to injure another. We held that allowing separate convictions of a defendant, one for carrying a concealed weapon and the other for openly carrying the same weapon, where the defendant, in the course of the same incident carried a weapon both concealed and open, was an absurd result. We stated: “We conjure up this scenario.

Eldridge parks his car on the bar’s parking lot. He removes the starter pistol from the glove compartment, gets out of the car and puts the pistol in his pocket. He walks toward the bar and on the way removes the pistol from his pocket, checks it and replaces it in his pocket. He enters the bar.

In the men’s room he again checks the pistol and then pockets it. Entering the barroom, he pulls the pistol from his pocket and at pistol point