Nelson v. State

HOLLANDER, Judge. Michael Andrew Nelson, appellant, pro se, has noted an appeal from the denial of his motion to correct an illegal sentence. In particular, in 2002 appellant was sentenced by the Circuit Court for Washington County to an enhanced penalty of 25 years without parole, pursuant to Article 27, ³ § 286(d) of the Maryland Code (1996 Repl.Vol., 2001 Supp.). 1 He contends here, as he did below, that he was illegally sentenced as a three-time felony drug offender, because he had never been sentenced as a second-time offender under Article 27, § 286(c). As we shall see, appellant facially satisfies the predicates for imposition of sentence under Article 27, § 286(d).

The question we must resolve is whether the 25-year sentencing enhancement under § 286(d) is reserved only for repeat drug offenders who were previously sentenced, as second offenders, to the 10-year, no parole enhancement under § 286(c). 2 For the reasons that follow, we hold that appellant was legally sentenced under Article 27, § 286(d). Accordingly, we shall affirm the circuit court’s denial of appellant’s motion to correct an illegal sentence. FACTUAL BACKGROUND Appellant was arrested in Washington County on December 11, 2001, and charged with possession of cocaine with intent to distribute and simple possession. Following a bench trial on September 10, 2002, appellant was convicted of those offenses.

At a sentencing hearing held on October 15, 2002, the court confirmed that the State had timely filed the “subsequent offender notice” advising appellant that it intended to seek imposition of sentence as a three-time offender under Article 27, § 286(d). 3 Appellant did not protest his status as a third-time offender. ⁴ The sentencing judge made the following findings: The court has, having looked at all the documents, found beyond a reasonable doubt that, indeed, the defendant has been convicted on two previous occasions, at least two previous occasions, with possession with intent to distribute cocaine, that is the Frederick [County] case number 23644, possession with intent to distribute cocaine, in which the defendant was found guilty on August 14, 1999, given 12 years Department of Correction, with all but 4 years suspended. In [Washington] County, case number 24459, which the court has looked at the file itself, and taken judicial notice of, where the defendant was found guilty on September 9, 1999, with possession with intent to distribute cocaine. He received 12 years DOC, all but three years suspended. And, also the Carroll County case. [4] The court is convinced that the defendant is the person indicated in that case, which is a possession with intent to distribute cocaine.

The tracking number is exactly the same [ ], in which the defendant received three years Department of Correction, all suspended, at that time. The court is, also, convinced, and find[s] beyond a reasonable doubt, by the testimony of the probation officer in this case, Ms. Talbert, that the defendant for the Frederick County case and the Washington County case served time beginning August 18, 1999, and was released November 1, 2000. In fact, she said that was for the Frederick County case alone. He was then placed on probation, [ ] and he paroled out, I believe, on the Washington County case, but he has served, the court finds, beyond a reasonable doubt, at least 180 days in the Depart ⁵ ment of Corrections as a result of the Frederick County case.

So, all the predicates have been found beyond a reasonable doubt, that is the two prior, in fact, three prior convictions; the serving of at least 180 days in a correctional institution as a result of a conviction. The court finds that the convictions that I’ve just noted were not as a result of a single event, but as a result of separate events because they, simply put, occurred on different dates, occurred in different counties, so all the predicates have been found beyond a reasonable doubt. After concluding, without objection, that appellant qualified as a third-time offender under Article 27, § 286(d), the sentencing judge merged the simple possession count into the distribution count and imposed a sentence of 25 years without parole. 5 Appellant filed his “Motion To Correct An Illegal Sentence” on May 14, 2008. The State opposed the Motion.

The court denied the Motion by “Order of Court” issued on June 2, 2008. It did not specify its reasons for the ruling. This appeal followed. We shall include additional facts in our discussion.

DISCUSSION I. Article 27, § 286, and its successor, C.L. § 5-608, mandate enhanced penalties for subsequent offenders convicted of certain felony drug offenses. In particular, the penalty provisions for repeat drug offenders “create!] a tiered sentencing scheme for first, second, third, and fourth offenders, ⁶ with mandatory minimum terms of sentencing for each succeeding conviction.” Taylor v. State, 175 Md.App. 153, 162 , 926 A.2d 805 , cert. denied, 401 Md. 174 , 931 A.2d 1096 (2007). As the Court of Appeals has said, “The clear import of the language used throughout [Art. 27], § 286 is that the Legislature sought to impose more stringent penalties on certain offenders who repeatedly persist in a pattern of criminal conduct.” Gargliano v. State, 334 Md. 428, 442 , 639 A.2d 675 (1994); see also State v. Stewart, 368 Md. 26 , 35 n. 10, 791 A.2d 143 (2002). To that end, Article 27, § 286 established “benchmarks” for ' the imposition of enhanced penalties.

Taylor, 175 Md.App. at 168 , 926 A.2d 805 . It provided, in part: (a) Prohibited conduct.—Except as authorized by this subheading, it is unlawful for any person: (1) To ... possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance; (b) Penalty.—Any person who violates any of the provisions of subsection (a) of this section with respect to: (1) A substance classified in Schedules I or II which is a narcotic drug is guilty of a felony and is subject to imprisonment for not more than 20 years, 'or a fine of not more than $25,000, or both. (c) Sentencing.—(1) A person who is convicted under subsection (b)(1) ... of this section shall be sentenced to imprisonment for not less than 10 years and subject to a fíne not exceeding $100,000 if the person previously has been convicted: (i) Under subsection (b)(1) ... of this section;.... (2) The prison sentence of a person sentenced under subsection (b)(1) ... of this section ..., as a second offend ⁷ er may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with § 4-305 of the Correctional Services Article.

Thus, a second-time offender is subject to a mandatory 10-year, essentially nonparolable term of incarceration upon a finding that he or she had been previously convicted under Article 27, § 286(b)(1), regardless of whether the offender served time for the prior conviction. For a “third-time offender,” the statute provided: (d) Additional penalty for one or two previmos of fenses.—(1) A person who is convicted under subsection (b)(1) ... of this section ... shall be sentenced to imprisonment for the term allowed by law, but, in any event, not less than 25 years and subject to a fine not exceeding $ 100,000 if the person previously: (i) 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.... (2) Neither the sentence 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 § 4-305 of the Correctional Services Article. Accordingly, a third time offender is subject to a mandatory 25-year, essentially non-parolable term of incarceration, upon a finding that he was twice previously convicted under Article 27, § 286(b)(1), for separate incidents, and served at least one term of post-conviction incarceration lasting a minimum of 180 days in a correctional institution. “[B]y imposing the 180 day minimum, the legislature was ensuring that those who received the enhanced punishment had been accorded a fair chance at rehabilitation in the prison system and had not responded.” Jones v. State, 324 Md. 32, 38 , 595 A.2d 463 (1991).

See also Melgar v. State, 355 Md. 339, 353 , 734 A.2d 712 (1999) (stating that time spent in pre-trial detention is not ⁸ counted toward the statutory 180-day predicate under § 286(d)(1)(f)). For a so called “fourth-time offender,” the statute provided: (e) Additional Penalty for three or more previous of fenses.—(1) A person who is convicted under subsection (b)(1) ... of this section ... shall be sentenced to imprisonment for the term allowed by law, but in any event, not less than 40 years and subject to a fine not exceeding $100,000 if the person previously has served 3 separate terms of confinement as a result of 3 separate convictions: (i) Under subsection (b)(1) ... of this section; (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 § 4-305 of the Correctional Services Article. Therefore, to be sentenced as a fourth-time offender, a defendant must have served three separate terms of confinement as a result of three separate qualifying drug convictions. As best we can determine, 6 appellant was arrested on felony drug charges in Carroll County on October 15, 1997, and was subsequently convicted on June 29, 1998.

On June 2, 1998, i.e., while the Carroll County case was pending but before appellant was convicted in that case, appellant was arrested on felony drug charges in Frederick County. He was convicted of those charges on August 14, 1999, and sentenced to twelve years, with all but four years suspended. At that time, ⁹ however, appellant did not qualify as a second offender, because the Frederick County offense occurred before the conviction in the Carroll County case. See Gargliano, 334 Md. at 446 , 639 A.2d 675 (stating that second offender enhancement may not be imposed for an offense that occurred prior to the first conviction); see also Thomas v. State, 104 Md.App. 461, 468-69 , 656 A.2d 799 (1995).

On March 4, 1999, while the Frederick County drug charges were still pending, appellant was arrested in Washington County on felony drug charges. He was convicted of those charges on or about September 9, 1999, and received a sentence of twelve years, with all but three years suspended. 7 We do not know why appellant was not sentenced as a “second-time offender” under Article 27, § 286(c)(1). But, he did not yet qualify as a third-time offender. See Taylor, 175 Md.App. at 168-69 , 926 A.2d 805 ; see also Calhoun v. State, 46 Md.App. 478, 488-90 , 418 A.2d 1241 (1980) (stating that only one enhanced penalty for a “third” conviction for a crime of violence is allowed by statute; the court may not impose that sentence for every conviction beyond the second one), aff'd, 290 Md. 1 , 425 A.2d 1361 (1981).

As noted, the sentencing judge in the case at issue found “beyond a reasonable doubt” that appellant had at least two prior, unrelated convictions for possession of cocaine with intent to distribute, and that he had served more than .180 days in a correctional institution as a result of one of them. Although appellant does not dispute those findings, he contends that the sentencing enhancement provisions of Article 27, § 286 are “ambiguous because of internal inconsistencies,” and he should not have been sentenced as a third-time offender under § 286(d). Nelson asserts: fl]t is absurd for one subsection of the statute to require a defendant to have served one term of confinement and have one prior conviction to qualify as a two-time subsequent offender, and in the next subsection require a defendant to have served one term of confinement and have two ¹⁰ prior convictions to qualify as a three-time subsequent offender, and in the last subsection require a defendant to have served three separate terms of confinement and have three separate prior convictions to qualify as a four-time subsequent offender. In the case sub judice, appellant falls squarely into the above-mentioned inconsistency.

Appellant argues that he should have been sentenced as a two-time subsequent offender because had the State sought sentence enhancement for a two-time subsequent offender for the conviction that occurred on September 17, 1999, appellant would not have qualified even as a two-time subsequent offender because he had never served a term of confinement for any of the previous offenses. Appellant argues that sentencing him under the above-mentioned inconsistency would thwart the intent of the statute because a defendant would never qualify as a two-time subsequent offender. Appellant further argues that if he was released from custody and the State sought sentence enhancement as a four-time subsequent offender, he would not qualify because he only served two terms of confinement. Appellant would only qualify as a three-time subsequent offender.

Therefore, the rule of lenity applies. Appellant appears to claim that, because he had not previously been sentenced as a second-time offender, he should not have been sentenced as a third-time offender. In support of his contention, appellant points out that, if he were released from prison and committed another “qualifying drug crime,” he will not be subject to incarceration as a fourth-time offender under C.L. § 5-608(d) (formerly Article 27, § 286(e)) because he will not have served three separate terms of confinement. The State summarily argues that appellant clearly met the requirements for punishment as a third-time offender and, therefore, the sentence was “patently lawful.” Accordingly, it urges this Court to uphold the denial of the motion to correct an illegal sentence.

The State does not otherwise address appellant’s contentions. ¹¹ II. Appellant has lodged his challenge as a motion to correct an illegal sentence. Pursuant to Md. Rule 4—345(a), “[t]he court may correct an illegal sentence at any time.” See Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985). To be sure, “an enhanced penalty imposed improperly is an illegal sentence.” Veney v. State, 130 Md.App. 135, 145 , 744 A.2d 1094 , cert. denied 358 Md. 610 , 751 A.2d 472 (2000).

As the Court said in Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506 (2007): “We have consistently defined this category of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the sentence itself; ie., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one.... ” See also Hoile v. State, 404 Md. 591, 621 , 948 A.2d 30 (2008); Evans v. Slate, 382 Md. 248, 278 , 855 A.2d 291 (2004), cert. denied, 543 U.S. 1150 , 125 S.Ct. 1325 , 161 L.Ed.2d 113 (2005). Moreover, a claim of an illegal sentence “ ‘should ordinarily be reviewed ... even if no objection was made in the trial court.’ ” Montgomery v. State, 405 Md. 67, 75 , 950 A.2d 77 (2008) (quoting Walczak, 302 Md. at 427 , 488 A.2d 949 ). “ ‘Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.’ ” Id. Appellant’s contention requires us to construe the enhanced penalty provisions of Article 27, § 286, which is a judicial function. Johnson v. Mayor of Baltimore, 387 Md. 1, 5-6 , 874 A.2d 439 (2005); Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004) ; Salamon v. Progressive Classic Ins.

Co., 379 Md. 301, 307 , 841 A.2d 858 (2004). In our de novo review of the circuit court’s ruling, Moore v. Stale, 388 Md. 446, 452 , 879 A.2d 1111 (2005) , we aim to ascertain and effectuate the Legislature’s intent. Melton v. State, 379 Md. 471, 476 , 842 A.2d 743 (2004); Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003); Hackley v. State, 161 Md.App. 1, 11 , 866 A.2d 906 , aff'd, 387 Md. 462 , 875 A.2d 767 (2005). We are guided in this endeavor by the statutory text, and accord the words of the statute their ordinary and usual meaning.

Huffman v. State, 356 Md. 622, 627-28 , 741 A.2d 1088 (1999); State v. Pagano, 341 Md. 129 , ¹² 133, 669 A.2d 1339 (1996); Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128 (1998). If the statute is not ambiguous, we generally will not look beyond its language to determine legislative intent. Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 , 525 A.2d 628 (1987). Conversely, if a provision is ambiguous, we consider the language “in light of the ... objectives and purpose of the enactment.” Tucker v. Fireman’s Fund Ins.

Co., 308 Md. 69, 75 , 517 A.2d 730 (1986); see Deville v. State, 383 Md. 217, 223 , 858 A.2d 484 (2004); Maryland Div. of Labor & Indus. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 425 , 784 A.2d 534 (2001). In this regard, “we may ... consider the particular problem or problems the legislature was addressing, and the objectives it sought to attain.” Sinai Hosp. of Balt., Inc. v. Dep’t of Employment & Training, 309 Md. 28, 40 , 522 A.2d 382 (1987). Of import here, we are obligated to construe the statute as a whole, so that all provisions are considered together and, to the extent possible, reconciled and harmonized.

Breitenbach v. N.B. Handy Co., 366 Md. 467, 472 , 784 A.2d 569 (2001); Curran v. Price, 334 Md. 149, 172 , 638 A.2d 93 (1994). When “appropriate,” we interpret a provision “in the context of the statutory scheme of which it is a part.” Gordon Family P’ship v. Gar on Jer, 348 Md. 129, 138 , 702 A.2d 753 (1997). Put another way, when a provision “is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature.” Mazor v. Maryland Dep’t of Corr., 279 Md. 355, 361 , 369 A.2d 82 (1977); see Vest v. Giant Food Stores, Inc., 329 Md. 461, 466-67 , 620 A.2d 340 (1993). In our effort to effectuate the Legislature’s intent, we may consider “ ‘the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent ■with common sense.’ ” Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129, 135 , 747 A.2d 625 (2000) (citation omitted); see Mayor of Rockville v. Rylyns ¹³ Enters., Inc., 372 Md. 514, 550 , 814 A.2d 469 (2002).

We also “avoid construing a statute in a way which would lead to absurd results.” Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195 (1985). But, courts may “ ‘not invade the function of the legislature’ by reading missing language into a statute,” even to correct “ ‘an omission [that is the result of] obvious ... inadvertence.’ ” Graves v. State, 364 Md. 329, 351 , 772 A.2d 1225 (2001) (citation omitted). Nor may we read a meaning into the statute that is not expressly stated or clearly implied, so as to expand its meaning. See Johnson, 387 Md. at 14 , 874 A.2d 439 (“We may not read language into a statute that is not there, even if we are not satisfied with the outcome of the case.”) We have found no Maryland cases that directly speak to the precise issue before us.

However, we are mindful that the Court of Appeals has recognized that § 286 “is a highly penal statute that must be interpreted in light of the rule of lenity.” Deville, 383 Md. at 231 , 858 A.2d 484 . 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, 355 Md. at 347 , 734 A.2d 712 (citation omitted); see Deville, 383 Md. at 231-32 , 858 A.2d 484 (declining to “read § 286(d) to include home detention within the definition of ‘confinement ... in a correctional institution’ ” and stating: “Where the Legislature has not specifically instructed the courts of Maryland to expand the scope of a penal statute, the rule of lenity dictates that we limit such laws to that which can be construed clearly from the statute.”). Therefore, “we construe any ambiguity of the subsequent offender statute in favor of the accused, and against the State.” Cantine v. State, 160 Md.App. 391, 413 , 864 A.2d 226 (2004), cert. denied, 386 Md. 181 , 872 A.2d 46 (2005). Gargliano, supra, 334 Md. 428 , 639 A.2d 675 , is instructive.

There, a State trooper purchased cocaine from Gargliano in December 1989 and again in January 1990. Id. at 431 , 639 ¹⁴ A.2d 675. After yet a third transaction in December 1990, he arrested Gargliano, who was then charged with all three sales. Id. at 431-32, 639 A.2d 675 .

The State initially brought Gargliano to trial on charges arising from the first two sales; Gargliano was convicted in April 1991 of two counts of drug distribution. Id. at 432 , 639 A.2d 675 . Thereafter, in June 1991, prior to Gargliano’s trial for the third offense, the State notified him of its intent to seek enhanced punishment with regard to the December 1990 offense, based on his two convictions in April 1991. Id.

Gargliano was subsequently convicted in September 1991 for the third drug distribution offense. Id. Noting that he had committed the third offense before he was arrested or convicted for either of the two prior incidents, Gargliano argued at sentencing that the enhanced penalty mandated by Article 27, § 286(c) should not apply to a defendant “who had neither been charged with nor convicted of a prior offense at the time the principal offense was committed.” Id. The trial court disagreed.

It ruled that § 286(c) applied “whenever a prior conviction exists at the time of sentencing on the principal offense.” Id. Therefore, it imposed a mandatory term of ten years, without parole. Id. On appeal, the Court was asked “to determine whether the enhanced penalty mandated by § 286(c) is triggered when a defendant is convicted of a prior offense after the commission of, but before sentencing on, the principal offense upon which the enhanced penalty is sought.” Id. at 431, 639 A.2d 675 (footnote omitted).

It held that “the mandatory sentence prescribed by § 286(c) may be imposed only where the conviction for a prior offense precedes the commission of the principal offense.... ” Id. The Court said: “[W]e hold today that a conviction obtained after the commission of the principal offense does not trigger the imposition of a statutory enhanced penalty....” Id. at 449, 639 A.2d 675 . In reaching its conclusion, the Court of Appeals discussed the structure of § 286, noting that subsections (c), (d), and (e) “form a comprehensive scheme of graduated mandatory penal ¹⁵ ties for repeat offenders.” Id. at 440, 639 A.2d 675 (citing Senate Judicial Proceedings Committee, Bill Analysis, H.B. 606 (1988)). But, with respect to whether a conviction for the predicate offense must precede the commission of the principal offense, the Court regarded as ambiguous the statutory phrase “previously has been convicted.” Id. at 438 , 639 A.2d 675 .

Reviewing the legislative history of § 286, it noted that “the phrase ‘has previously been convicted’ was not defined in § 286 as it existed in 1982,” when the legislation was