Pye v. State

BELL, Chief Judge. In this opinion, we will resolve three cases, Teel v. State, (No. 123), Womack v. State, (No. 114), and Pye v. State, (No. 113). With one exception, all three cases address essentially the same legal issue and involve essentially the same argument with respect to the merger of certain handgun related offenses. The issue that the three cases have in common, as we have restated it, is: Whether our holding in Frazier v. State, 318 Md. 597 , 569 A.2d 684 (1990), that the offenses of carrying a handgun and possession of a firearm by a convicted person do not merge, is still viable, even though, subsequent to that decision, the ⁶²⁹ General Assembly increased the penalties associated with the crime of possession of a firearm by a convicted person.

Because the General Assembly is presumed to have been aware of our holding in Frazier when it enacted legislation to increase penalties for possession of a firearm by a convicted person, we conclude that it is still viable. The exception is the second issue, presented only in Pye, supra: “Did the trial judge err in denying [Pye’s] motions to dismiss and acquit by sentencing him to a five year no parole sentence for possession of a firearm by a person with a prior conviction under Article 27, § 449(e) where [Pye] previously had been convicted of a felony[,] but not a crime of violence?” Concluding that § 449(e) requires an individual to have been previously convicted of a crime or crimes that were both a felony and a crime of violence, see Stanley v. State, 390 Md. 175 , 887 A.2d 1078 (2005), we answer that question in the affirmative. Accordingly, we shall hold that the trial judge erred as a matter of law by denying Pye’s motion for judgment of acquittal. I. In Teel, Womack, and Pye, the petitioners were convicted of wearing, carrying, or transporting a handgun in violation of Maryland Code (1957, 1996 Repl.

Vol., 2001 Cum. Supp.) Article 27, § 36B 1 and of possession of a firearm in violation ⁶³⁰ of Maryland Code (1957, 1996 Repl. Vol., 2001 Cum. Supp.), Article 27, § 445(d). 2 II.

The facts in these cases are not in dispute. Thus, the issues we address are purely legal questions. Therefore, we shall review the judgments de novo, Cox v. State, 397 Md. 200, 210-11 , 916 A.2d 311, 317 (2007); State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 444 (2003); Carter v. State, 367 Md. 447, 457 , 788 A.2d 646, 651 (2002); the trial courts’ express interpretation of the law enjoys no presumption of correctness.

III

Teel v. State 3 In Frazier v. State, 318 Md. 597 , 569 A.2d 684 (1990), officers assigned to the Drug Enforcement Unit of the Balti ⁶³¹ more City Police Department, while proceeding to execute a warrant for an apartment on the second floor of an apartment building, encountered Frazier sitting on the front stoop of the building. When they approached, Frazier “jumped up[,]” reached into his waistband, produced a revolver, and began moving back into the building. Id. at 602 , 569 A.2d at 686-687 . The officers wrestled the gun away from Frazier and arrested him.

Because he previously had been convicted of attempted robbery with a deadly weapon, a crime of violence, see § 441(e), 4 Frazier was charged with wearing, carrying, and transporting a handgun, in violation of Maryland Code (1957, 1987 Repl. Vol.) Article 27, § 36B (b), and possession of a handgun after being convicted of a crime of violence, in violation of § 445(c). 5 He was convicted of both offenses and sentenced. On certiorari to this Court, Frazier presented, inter alia, the following issue: “Must the convictions and sentences for wearing, carrying, or transporting a handgun and for possessing a pistol or ⁶³² revolver by a person who has been convicted of a crime of violence be merged?” Frazier, 318 Md. at 604 , 569 A.2d at 688 . We answered that question in the negative, holding: “It is significant that the Legislature did not amend or supersede Article 27, § 445(c).

So, even if offenses are deemed the same under the required evidence test, the Legislature may punish certain conduct more severely if particular aggravating circumstances are present, by imposing punishment under two separate statutory offenses. See Newton v. State, 280 Md. 260 , 274 n. 4, 373 A.2d 262 [, 270 n. 4] (1977). The Legislature’s concern about the possession of a handgun, and its additional concern about the aggravating circumstance of the handgun being possessed by a person who has been convicted of a crime of violence, is not unreasonable____We hold that the two offenses of which Frazier was convicted do not merge.” Id. at 614-615, 569 A.2d at 693 . More significant for our purposes, however, is the reasoning underlying that holding.

After noting the “general rule for determining whether two criminal violations, treated separately under the statutory provisions, should be deemed the same when both violations are based on the same transaction,” i.e. the “required evidence” test, see Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), and discussing its application, id. at 612-13, 569 A.2d at 692 , the Court pointed out that it was not the only test, that “ ‘[t]he imposition of multiple punishment ... is often particularly dependent upon the intent of the Legislature.’ ” Id. at 613 , 569 A.2d at 692 , quoting Whack v. State, 288 Md. 137, 143 , 416 A.2d 265, 268 (1980), appeal dismissed and cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981). Turning to the statutes then at issue, the Court observed: “When it enacted the handgun control statute, Ch. 13 of the Acts of 1972, Art. 27, §§ 36B-36F, the Legislature specifically addressed the matter of other statutes encompassing handguns, and it indicated its intent as to which of those ⁶³³ other statutes should no longer cover the use of handguns. Thus, prior to 1972, Art. 27, § 36, had proscribed the carrying of concealed weapons and the carrying or wearing of weapons openly with intent to injure, including handguns. Also prior to 1972, Art. 27, § 36A, had provided a maximum penalty of three years’ imprisonment for carrying ‘any ... deadly weapon of any kind’ on public school property.

Finally, prior to 1972, there was local legislation regulating and penalizing certain uses of handguns. In the handgun control act of 1972, the Legislature dealt with the above-described statutory provisions, so as to prohibit the pyramiding of penalties under both the existing law and the new law for the unlawful use of a handgun. It amended Art. 27, § 36, to expressly delete handguns from the coverage of the concealed weapons statute (Ch. 13, § 1, of the Acts of 1972). It further amended Art. 27, § 36A, to provide that where the weapon carried on public school property is a handgun, the penalty provisions of § 36A do not apply, but instead, the offender shall be sentenced in accordance with the penalty provisions of the new statute (Ch. 13, § 2, of the Acts of 1972).

Lastly, with respect to local legislation regulating handguns, the Legislature stated (Ch. 13, § 6, of the Acts of 1972): ‘[A]ll restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby preempts the right of the political subdivisions to regulate said matters.’ ” Id. at 613-14, 569 A.2d at 692-93 , citing Whack, 288 Md. at 145-46 , 416 A.2d at 269 (footnote omitted). Emphasizing the point, the Court concluded: “ ‘in enacting the handgun act,[ 6 ] the Legislature was concerned with the matter of duplicative legislation. Where it desired no duplication, it specifically amended or superseded those other statutes.’ ” Id., quoting Whack, 288 Md. at 147 , 416 A.2d at 270 . ⁶³⁴ Teel argues that the present case is different from Frazier . He relies primarily on the fact that, since Frazier , the General Assembly has greatly “increased the penalty for possession of a firearm by a convicted person.” Pointing to the Maryland Gun Violence Act of 1996 7 and the Responsible Gun Safety Act of 2000, 8 Teel submits that “the amendments to the firearms statute since 1990 have drastically altered the landscape upon which the issue of merger must be examined____ Merger of carrying a handgun and possession of a firearm by a convicted person should now be required as a matter of course.” More particularly, he argues: “With respect to the amendments to Article 27, § 449, however, the Legislature did not include language specifically authorizing cumulative sentences for possession of a firearm by a convicted person and the lesser offense of carrying a handgun. “At best, the failure of the General Assembly to expressly address the issue of merger when it increased the punishment for possession of a firearm by a convicted person makes its intentions unclear.

But this would weigh in favor of merger, not against it.... ” We disagree. The legislative acts on which the petitioner relies were re-codifications of the relevant general provisions relating to the illegal use of weapons. We said in Pack Shack v. Howard County, 371 Md. 243, 257 , 808 A.2d 795, 803 (2002), that “ ‘a change in a statute as part of a general re-codification will ordinarily not be deemed to modify the law unless the change is such that the intention of the Legislature to modify the law is unmistakable’ ” (quoting Duffy v. Conaway, 295 Md. 242, 257 , 455 A.2d 955, 962 (1983)). ⁶³⁵ There is no indication in the Acts that the General Assembly intended to modify the holding in Frazier when it enacted the 1996 and 2000 Acts relating to the use of weapons. The contrary would appear to be more likely.

Thus Frazier , which we decline to overrule, is controlling. In Frazier , as we have indicated, we held that “[wjhere [the General Assembly] desired no duplication, it specifically amended or superseded those other statutes.” 318 Md. at 614 , 569 A.2d at 693 (quoting Whack, 288 Md. at 146 , 416 A.2d at 270 ). Since Frazier only increases in the permissible sentences for certain offenses have been enacted by the General Assembly, which also has further limited the transferability of certain weapons and imposed additional requirements on dealers. In neither of the codifications at issue here was reference specifically made to avoidance of duplication.

In neither of the two statutory modifications, has the General Assembly indicated that duplicative sentences under separate statutory offenses, arising out of one incident involving handguns, are to be avoided. The General Assembly is presumed to be aware of our decisions. We recently stated in Plein v. Department of Labor, 369 Md. 421, 437 , 800 A.2d 757, 767 (2002), that: “On the other hand, consistent with the Legislature’s awareness of our cases, we have been reluctant to overrule our prior decisions where it is likely that the Legislature, by its inaction, indicates its adoption, or at least acceptance, of the interpretation reflected in the opinion announcing the decision....” This principle was also expressed in Jones v. State, 362 Md. 331, 337-38 , 765 A.2d 127, 130-31 (2001), in which this Court observed: “ ‘The General Assembly is presumed to be aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation. This presumption is particularly strong whenever, after statutory language has been interpreted by this Court, the Legislature re-enacts the statute without changing in substance the language at issue.

Un ⁶³⁶ der these circumstances, it is particularly inappropriate to depart from the principle of stare decisis and overrule our prior interpretation of the statute.’ ” (quoting Williams v. State, 292 Md. 201, 210 , 438 A.2d 1301, 1305 (1981) (citations omitted)); Pack Shack, 371 Md. at 257 , 808 A.2d at 803 (General Assembly is presumed to have knowledge of this Court’s interpretation of its enactments). See also Schaeffer v. Anne Arundel County, 338 Md. 75, 87 , 656 A.2d 751, 757 (1995) (General Assembly is presumed to have knowledge of this Court’s cases prior to proposing an amendment to the State Constitution); Maryland Classified Employees Association, Inc. v. Schaefer, 325 Md. 19, 34 , 599 A.2d 91, 98 (1991) (General Assembly is presumed to have knowledge of an agency’s interpretations of its enactments). The General Assembly is presumed to have had full knowledge of our holding in Frazier when it enacted the legislation on which Teel relies. Therefore, had the General Assembly wanted to avoid duplication with respect to handgun sentences arising out of a single incident, it certainly could have, and we believe would have, included in that legislation a provision prohibiting such sentences.

It did not do so. Nothing but the passage of time and the legislation on which the petitioner’s argument depends, which simply increased the penalty, have occurred since Frazier . As Judge Deborah Eyler correctly pointed out for the Court of Special Appeals: “The point of reference for legislative intent in Johnson [v. State, 154 Md.App. 286 , 839 A.2d 769 (2003),] was, as in Frazier and Whack , the 1972 Handgun Control Act and the legislature’s concern with the ‘increased use of handguns in the commission of crimes.’ That point of reference is not changed____” (Citations omitted.) The General Assembly has not seen fit to modify this Court’s interpretation of the statutes at issue in Frazier , even though it has twice addressed similar issues. Rather than inserting a provision prohibiting duplicative sentencing, which it could have done in either of the subject enactments, 1996 or 2000, on which Teel relies, it simply increased the permitted sentences. ⁶³⁷ Moreover, and perhaps as important, it is most unlikely that the General Assembly would promulgate, on the one hand, a statutory scheme designed, in part, to increase sentences, while, on the other hand, and at the same time, intending that the doctrine of merger would apply and, thereby, reduce the total sentences.

The legislature’s actions in enacting the 1996 and 2000 legislation are consistent with our holding in Frazier , which we reaffirm. 9 Accordingly, we affirm the judgment of the Court of Special Appeals. Womack v. State 10 Womack was convicted and sentenced under the same statutory scheme as applied in Teel. One of his convictions was pursuant to § 445(d)(1)(iii), 11 possessing a regulated firearm, having been convicted of a “violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years,” and the other was pursuant to § 36B (c). Lamenting the Court of Special Appeals’ rejection of his “contention that he could not be convicted for both transport ⁶³⁸ ing a handgun and possession of a firearm by a person previously convicted of a misdemeanor,” he presents a single argument to this Court: