Middleton v. State

ROBERT M. BELL, Judge. Douglas Lindsay Middleton, Jr., appellant, was convicted by a jury in the Circuit Court for Baltimore County of attempted daytime housebreaking and malicious destruction of property. 1 The State elected to proceed against appellant as a subsequent offender pursuant to Md.Code Ann. art. 27, 643B(c); consequently, following a sentencing hearing at which the proof required by the statute was presented, appellant was sentenced to twenty-five years imprisonment without benefit of parole. Appellant attacks the judgment thus entered on six grounds, contending: ¹⁶⁴ 1. Insufficient evidence was presented to sustain appellant’s conviction; 2.

Article 27 § 643B is unconstitutional; 3. His sentence is unconstitutional; 4. The trial court applied the wrong burden of proof in determining that appellant qualified as a subsequent offender; 5. The prosecution exercised sentencing discretion on an improper basis; 6.

He could not be tried for the offenses of which he was convicted because the prosecution nolle prossed in the District Court a charge of housebreaking and entering arising from the same offense. We will consider each contention in the order presented and, as each issue is discussed, set forth such facts as are necessary for its resolution. I. The State’s case consisted of the testimony of the victim, the victim’s neighbor, and a police officer. Their testimony tended to prove the following: On the morning of the offense, the victim left her home secure, having locked all exterior doors, including the subject screen door, and having given no one permission to enter.

During that afternoon, the victim’s neighbor observed two men, one of whom was identified later as appellant, enter the victim’s backyard. He later saw one of the two men ascend the stairs to the victim’s sun deck, peek into the window and then, approaching the glass sliding door, appear to “jimmy” that door. The two men walked away when the neighbor yelled, “Are you looking for someone?”, whereupon, the neighbor called the police and reported the incident, giving a description of the men he had observed. Two Baltimore County police officers responded to the call and while cruising the area, observed appellant and another Black male fitting the description given.

After they had voluntarily accompanied the officers to the victim’s home, where they were identified ¹⁶⁵ by the neighbor, the men were placed under arrest. Investigation revealed that the screen door was unlocked and fresh pry marks were on the sliding glass door, conditions which did not exist at the time that the victim last left her home. Appellant neither testified nor offered a defense in the case. At the end of the State’s case and without argument, he made “a motion” (presumably for a judgment of acquittal), which was denied.

Appellant was then advised of his right to testify or remain silent and, having elected to remain silent, rested and presented no witnesses. He did not move for judgment of acquittal at that time; however, after the trial judge had instructed the jury, his counsel, at the bench, stated: MR. HILL: [Appellant’s counsel] Fine with me. For the record, we will make a motion for judgment of acquittal, since we closed our case; and just by way of argument, would indicate to the court that the defendant is charged with attempted breaking and entering.

The State has put into evidence that the screen door was, in fact, open. I think the opening of the screen door is, in fact, a breaking in of the house, and it is a breaking, and he could not be found guilty of attempted breaking because, in fact, a breaking took place. The court denied the motion. Appellant contends, relying on Felkner v. State, 218 Md. 300, 307 , 146 A.2d 424 (1958) and Reed v. State, 7 Md.App. 200, 204 , 253 A.2d 774 (1969), 2 that the State did not produce sufficient evidence from which the jury could find an intent to steal.

Aside from the noting that the proof in this case was, at most, that a “mere breaking” had occurred, without injury, appellant does not attempt to argue the ground ¹⁶⁶ advanced by counsel below, i.e., that the proof of a completed act prohibits conviction of an attempt to commit that act. Since the argument made on appeal was neither raised nor decided by the court below, it is not properly before us and we will not address it. Md.Rule 1085. The State suggests that the appellant’s failure to present the basis for his motion for judgment of acquittal at the time the motion was made waives appellant’s right to raise, on this appeal, any ground which he could have or should have raised at that time.

Md.Rule 1085; Lyles v. State, 63 Md.App. 376, 379-382 , 492 A.2d 959 , cert. granted, 304 Md. 362 , 499 A.2d 191 (1985). While we agree with the proposition, we disagree that it applies to the case sub judice. Appellant did preserve for review the ground presented to the court without objection after the jury had been instructed. We see no impropriety in making a motion for judgment of acquittal after the jury has been instructed, where the State does not object and the court rules on that motion.

II

At the sentencing procedure, appellant challenged the legality of the imposition of a mandatory sentence in his case, contending that the absence, in the various jurisdictions in the State of Maryland, of a uniform policy governing when mandatory sentencing should be pursued renders a sentence imposed pursuant to § 643B(c) arbitrary and capricious. To support the argument, he presented testimony as to the policies, or lack thereof, of eighteen of Maryland’s jurisdictions. That testimony showed that: nine counties had not been presented with qualifying cases, of which two had no policy; of the seven that did, the policy in six was to automatically file in a qualified case and the other to proceed on a case by case basis; and nine jurisdictions had had experience with mandatory sentencing cases; four of which had a policy of filing automatically and the remainder either proceeded on a case by case basis or ¹⁶⁷ considered mitigating factors in each case prior to filing. Baltimore County’s policy was reported to be to seek the mandatory sentence in all “provable” cases, unless the prosecutor deemed a substantial injustice would result.

The testimony was that no “substantial injustice” case had yet arisen in Baltimore County. Appellant presents two bases for his argument that § 643B(c) is unconstitutional. First, he contends that it does not provide for or permit consideration of, the individualized circumstances of particular defendants and, further, that it permits the imposition of “disporportionate sentences” in violation of the Eighth and Fourteenth Amendments of the Federal Constitution. Secondly, he asserts that it is arbitrarily applied.

Specifically, he posits: [Sentencing involves an appropriate exercise of discretion. Article 27, § 643B places this discretion in the hands of the prosecutor rather than the trial court, but provides no means for determining how this discretion should be exercised. Because of this, a situation radically different from that which exists in ordinary sentencing has evolved: Some defendants have their cases reviewed to determine if a mandatory sentence is appropriate, while others do not. This interjects a form of arbitrariness into sentencing which is wholly inappropriate, and which renders sentencing under this statute unconstitutional.

Individualized Sentencing Very recently, in Bryan v. State, 63 Md.App. 210 , 492 A.2d 644 (1985) and Teeter v. State, 65 Md.App. 105, 117-119 , 499 A.2d 503 (1985), this Court rejected attacks on § 643B(c) identical to that sub judice. We have been provided with no basis, and we have found none, which causes us to abandon so recent a precedent. Therefore, for the reasons set forth in Bryan and Teeter , we again reject this argument. ¹⁶⁸ Arbitrariness and Capriciousness We do not share the State’s belief that Teeter is dispositive of this issue. In Teeter , the issue was whether the lack of judicial discretion in the mandatory sentence context rendered § 643B(c) unconstitutional; here, however, the focus of appellant’s argument is the lack of a uniform standard for the exercise of prosecutorial discretion to initiate the mandatory sentencing process, which appellant contends, unconstitutionally denies a defendant sentenced pursuant to § 643B(c) equal protection of the law, a contention not heretofore considered.

Section 643B(c) and (d) provides: (c) Third conviction of crime of violence. —Any person who (1) has been convicted of two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than twenty-five years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11. (d) Compliance with Maryland Rules. —If the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender. Although § 643B(c) speaks in mandatory terms, subsection (d) makes clear beyond peradventure that whether to pursue a mandatory sentence is discretionary with the prosecutor.

See Teeter, 65 Md.App. at 119 , 499 A.2d 503 . It is this discretion as to which there is no uniform standard for its exercise and as to which appellant objects. ¹⁶⁹ At the outset, it is important to understand the nature of the decision to pursue a mandatory sentence. We think it is part of the prosecutorial function, rather than a sentencing function. It is true that the decision has significant, and perhaps paramount, implications as to sentencing since the judge has no discretion as to the sentence once the prosecutor has initiated the process, See Md.Rule 4-245, and the statutory predicate has been proven.

But, it is incumbent upon the prosecutor to prove the predicate and only then do the sentencing implications, previously only a possibility, become a reality. Moreover, notwithstanding his or her lack of discretion in that regard, the judge, not the prosecutor, must impose the sentence that the legislature prescribed. See Teeter, supra, 65 Md.App. at 119 , 499 A.2d 503 . We believe further that when appellant complains about the lack of a uniform standard by which this discretion is to be exercised and the fortuity of place, personality, and philosophy that is thus introduced into the sentencing process, he is really arguing that a system of selective enforcement of § 643B(c) is fostered and that it is this selective enforcement that denies one sentenced as a repeat offender equal protection of the law.

In Oyler v. Boles, 368 U.S. 448 , 82 S.Ct. 501 , 7 L.Ed.2d 446 (1962), a West Virginia habitual criminal statute providing for a mandatory life sentence upon a third conviction “of a crime punishable by confinement in a penitentiary” was attacked as denying equal protection of the law to persons sentenced under it because, although the statute imposed a mandatory duty on prosecutors to seek the severer penalty against all persons coming within its terms, prosecutors sought such penalties only in a minority of cases. The petitioners supported their argument with statistical data. The Court rejected the argument. After noting that the statistics did not establish selective enforcement, it said: Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.

Even though the statistics in this case might imply ¹⁷⁰ a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged, (citations omitted) Id. at 456 , 82 S.Ct. at 505 . The Court, in Wayte v. U.S., — U.S. -, 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985), was faced with the issue of whether passive enforcement 3 of the President’s Proclamation requiring certain male citizens to register with the Selective Service System comported with equal protection. Recognizing that prosecutorial discretion, though broad, is not unfettered, and, further, that such claims are to be measured by ordinary equal protection standards, id. 105 S.Ct. at 1531 , the Court said: ... [TJhese standards require petitioner to show both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose.

(Citations omitted) Id. To like effect, see Moss v. Hornig, 314 F.2d 89, 92 (2d Cir.1963), citing Snowden v. Hughes, 321 U.S. 1, 8 , 64 S.Ct. 397, 401 , 88 L.Ed. 497 (1944) (“To show that unequal administration of a state statute offends the equal protection clause one must show an intentional or purposeful discrimination.” ); Shaw v. Martin, 733 F.2d 304, 312-13 (4th Cir.1984); Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, 267 Md. 501, 517 , 298 A.2d 427 (1973); Drews v. State, 236 Md. 349, 354 , 204 A.2d 64 (1964). Implicit in this standard are the recognition that the prosecutor necessarily must have broad discretion and the policy of not unduly restricting its exercise. Although directed specifically to the discretion to initiate a prosecu ¹⁷¹ tion, the comments of the Court in Wayte are particularly pertinent: This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.

Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the Courts properly hesitant to examine the decision whether to prosecute.

Id. at 105 S.Ct. at 1531 . Our courts have recognized the prosecutor’s “broad” discretion, In Re Robert G., 296 Md. 175, 177 , 461 A.2d 1 (1983), Murphy v. Yates, 276 Md. 475, 489 , 348 A.2d 837 (1975), both in the context of the initiation of a prosecution, Giant of Md., supra; Drews, supra, and in the mandatory sentencing context. Teeter, supra. And our courts have recognized that the propriety of a prosecution does not depend upon the prosecution or lack of prosecution of others who may qualify for prosecution for the same acts.

Giant of Md., supra, 267 Md. at 517 , 298 A.2d 1427 ; Drews, supra, 236 Md. at 354 , 204 A.2d 64 . Turning to the instant case, appellant’s evidence certainly tended to show an absence, in Maryland, of a uniform policy for pursuing mandatory sentencing and, thus, by inference, perhaps the discriminatory effect of that lack of policy; however, it did not, indeed, it did not purport to, prove, either that the lack of uniformity was motivated by a discriminatory purpose, Wayte, supra, or that pursuing mandatory sentencing in appellant’s case was based on an ¹⁷² unjustifiable standard. Boles, supra. In the absence of such a showing, appellant has failed to prove, as he must, Wayte, supra, 105 S.Ct. at 1531 , that he was denied equal protection of the law.

III

Appellant next argues that his sentence is unconstitutional because not “reviewed to determine whether it is disporportionate.” This argument was considered and rejected in Bryan, supra, 63 Md.App. at 217-19, 492 A.2d 644 . We do