Ogunbowale v. State

MOYLAN, Judge. The appellant, Hakeem Akabi Ogunbowale, was convicted in the Circuit Court for Wicomico County by Judge Sally D. Adkins, sitting without a jury, of both the distribution of cocaine and the distribution of cocaine within 1,000 feet of a school. He was sentenced to a term of twenty years imprisonment, the first ten years of which were to be served without parole pursuant to the provisions of Md. Ann.Code art. 27, § 286(c) (1996). On this appeal, the appellant raises the single contention that Judge Adkins erroneously imposed an enhanced sentence because the notice of intent to seek the enhanced punishment did not specify which of two enhancement sections was being utilized.

On April 16, 1997, the prosecutor sent timely notice of the intent to seek enhanced punishment to Ms. Parkinson, who was then defense counsel for the appellant. Ms. Parkinson subsequently withdrew her appearance. Accordingly, the prosecutor sent a notice of intent to seek enhanced punishment to new defense counsel, Mr. Sullivan, on June 20, 1997. At sentencing, the prosecutor offered evidence that the appellant had been convicted of the possession of cocaine on an earlier occasion, May 23, 1995, and had been sentenced to eighteen months imprisonment.

Defense counsel acknowledged having received timely notice of the State’s intent to seek the enhanced sentence. Defense counsel agreed, moreover, that the prior conviction was valid. The appellant claimed, however, that the notice from the prosecutor failed to particularize whether the enhanced sentence was being sought pursuant to Md. AnmCode art. 27, § 286(c) or pursuant to Md. AnmCode art 27, § 293. Notwithstanding the defense objection, Judge Adkins imposed the ⁶⁵⁰ condition that no parole would be granted for a period of ten years pursuant to § 286(c).

The notice requirement is contained in Md. Rule 4-245(b), which provides: (b) Required Notice of Additional Penalties. — When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State’s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in District Court, whichever is earlier. (Emphasis supplied). We note initially that Md. Rule 4-245(b) does not require notice to a defendant of the precise modality of enhancement the State will seek to impose on the basis of the defendant’s prior conviction. All that is required is notice that the State will, at the time of sentencing, be seeking some type of sentence enhancement on the basis of the defendant’s recidivism and that the State will be relying on “a specified previous conviction.” It is expressly provided that the defendant may not be sentenced as a subsequent offender unless the State “serves notice of the alleged prior conviction.” In this case, the State, as required, served notice of a specific prior conviction and then, at sentencing, adequately proved that prior conviction.

That prior conviction, to be sure, could have supported either of two different types of sentence enhancement. Based on that conviction, the defendant could have been sentenced under § 286(c) to a mandatory minimum term of ten years, essentially without possibility of either probation, suspension, or parole. Based on precisely the same conviction, the defendant could have been sentenced under § 298 to a discretionary maximum sentence of twice the imprisonment and/or twice the fine that could be imposed on a first offender. ⁶⁵¹ The purpose of the required notice is to