Randall Book Corp. v. State

McAULIFFE, Judge. Eight years ago, Baltimore County detectives executed a search warrant at the Rye Book Store in Reisterstown, Maryland. They seized 733 items that the detectives believed fell within the search warrant’s description of “all books, magazines, photographs, films and posters that are displayed for advertising purposes which depict sadomasochistic abuse, sexual conduct, and sexual excitement.” Appellant, as owner and operator of the book store, was thereafter charged with a total of 252 offenses, based upon 126 different magazines which had been seized. At trial, 1 the State abandoned half the charges, leaving one charge of a violation of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, ³¹⁹ § 416D(a) for each of the 126 magazines.

That statute provided: Any person, firm or corporation is guilty of a misdemeanor if it knowingly displays for advertising purposes any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts sadomasochistic abuse, sexual conduct or sexual excitement, or any verbal description or narrative account of these activities or items. The jury found appellant guilty on 116 counts, and not guilty on the remaining 10 counts. Judge Cullen M. Hormes imposed a fine of $500 for each conviction. All convictions were affirmed on appeal.

Randall Book Corp. v. State, 64 Md.App. 589 , 497 A.2d 1174 (1985), cert. denied, 305 Md. 175 , 501 A.2d 1323 (1986), cert. denied, 480 U.S. 940 , 107 S.Ct. 1589 , 94 L.Ed.2d 778 reh. denied, 481 U.S. 1060 , 107 S.Ct. 2204 , 95 L.Ed.2d 859 (1987). Having exhausted all avenues of direct appeal, appellant mounted a collateral attack by filing a motion to correct an illegal sentence. 2 This motion was denied and appellant again appealed. We issued a writ of certiorari before consideration by the Court of Special Appeals: Appellant contends that the aggregate of sentences on the 116 counts for which it was convicted are illegal because: 1) the sentences constitute multiple punishment for the same offense in violation of double jeopardy protections; 2) the sentences are cruel, unusual, and disproportionate; and 3) the sentences were imposed for the improper purpose of putting appellant out of business. The State has filed a motion to dismiss the appeal, and additionally argues that the sentences were legal.

I. Initially, we consider the State’s contention that appellant has no right to appeal from the denial of its motion ³²⁰ to correct the allegedly illegal sentences. The authority advanced by the State in support of this argument is Valentine v. State, 305 Md. 108 , 501 A.2d 847 (1985). In Valentine , this Court held that although the defendant could have attacked his sentence by way of direct appeal taken within 30 days of the imposition of the sentence, and thereafter could have challenged his sentence by a motion to correct an illegal sentence, he could not appeal from a denial of that motion. Valentine is not controlling here, however, because the factor that dictated the result in that case—the applicability of the Post-Conviction Procedure Act (PCPA) 3 —is not present.

As Valentine made clear, before the adoption of the PCPA in 1958, a defendant enjoyed the right of appeal from a denial of a motion to correct an illegal sentence, even though the motion may have been brought long after the right of direct appeal had expired. Id. at 115 , 501 A.2d 847 . See also Roberts v. Warden, 206 Md. 246, 255 , 111 A.2d 597 (1955). In language that has changed little since its original adoption, the PCPA provides that [n]o appeals to the Court of Appeals or the Court of Special Appeals in habeas corpus or coram nobis cases, or from other common-law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment shall be permitted or entertained____ Art. 27, § 645A(e).

Citing Wilson v. State, 227 Md. 99, 101 , 175 A.2d 775 (1961), the Valentine Court said that the motion to correct an illegal sentence authorized by Maryland Rule 4-345 (then Rule 774a) must be considered a “statutory remedy” within the meaning of the PCPA, and that as a result “[t]he refusal of a trial judge to correct an illegal sentence can only reach the appellate courts when the procedures of the [PCPA] are followed.” Valentine, supra, 305 Md. at 120 , 501 A.2d 847 . ³²¹ In the instant case, the PCPA has no application. That act applies only to persons who are “either incarcerated under sentence of death or imprisonment or on parole or probation.” Art. 27, § 645A(a). See McMannis v. State, 311 Md. 534 , 536 A.2d 652 (1988); Tomlinson, Post-Conviction in Maryland: Past, Present and Future, 45 Md.L.Rev. 927, 932-35 (1986). Appellant has been sentenced only to the payment of fines.

It cannot avail itself of the alternative remedy provided by the PCPA. We hold that the language of subsection (e) of the PCPA which prohibits appeals “from ... statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment” has no application to this appellant, and that the right of appeal from the denial of a motion to correct an illegal sentence continues to exist in favor of a defendant who has never enjoyed the right to proceed under the PCPA. 4 The appeal is properly before us.

II

We next consider whether each of appellant’s contentions may be considered pursuant to a motion to correct an illegal sentence. The State argues that each sentence is within the allowable statutory penalty for the offense and is therefore not illegal. It contends that appellant seeks to use Rule 4-345 to accomplish a second appeal, and to raise issues that could and should have been raised and decided on direct appeal. The State is partially correct.

The observation of the United States Supreme Court in a case involving the proper interpretation of Fed.R.Crim.P. 35, which then permitted a district court to correct an illegal sentence at any time, is instructive: [A]s the Rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at any ³²² time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence, (emphasis in original) (footnote omitted). Hill v. United States, 368 U.S. 424, 430 , 82 S.Ct. 468 , 7 L.Ed.2d 417 (1962). The Court noted that the failure of the trial judge to permit the defendant to make a statement in his own behalf constituted a violation of Fed.R.Crim.P. 32(a), but concluded that the error was not of the type that would permit a collateral attack under Rule 35: The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.

(footnote omitted). Hill, supra, 368 U.S. at 430 , 82 S.Ct. at 472 . Appellant’s argument that the sentences violate the Double Jeopardy Clause of the Fifth Amendment because multiple sentences were imposed for the same offense does allege an illegal sentence within the meaning of Rule 4-345. Similarly, we conclude that appellant’s allegation that the aggregate of 116 sentences imposed constitutes cruel and unusual punishment prohibited by the Eighth Amendment is cognizable under a claim of an illegal sentence.

Although these claims could have been raised under direct appeal, the failure to do so will not ordinarily constitute a waiver that will bar a collateral attack upon an illegal sentence. Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985); Carbaugh v. State, 294 Md. 323, 327-28 , 449 A.2d 1153 (1982); Coles v. State, 290 Md. 296, 303 , 429 A.2d 1029 (1981). Appellant’s remaining contention, that the sentencing judge was motivated by impermissible considerations, does not fall into the same category. It is true, as Chief Judge Murphy recently pointed out for the Court in Teasley v. State, 298 Md. 364, 370 , 470 A.2d 337 (1984), that ³²³ whether the trial judge was motivated by ill-will, prejudice, or other impermissible considerations in imposing sentence will be considered on direct appeal.

See also Clark v. State, 284 Md. 260, 278-76 , 396 A.2d 248 , cert. denied, 444 U.S. 858 , 100 S.Ct. 119 , 62 L.Ed.2d 77 (1979). However, while improper motivation may justify vacation of the sentence, it does not render the sentence illegal within the meaning of Rule 4-845. Appellant did not raise this contention on direct appeal and may not do so here. We add that we have reviewed the record on this point, and would find the argument without substance if it were before us.

III

The Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Halper, — U.S. ——, 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989); North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969). There has been but one prosecution in this case, and thus we are concerned only with the third of these protections—the prohibition against multiple punishments for the same offense. In determining what constitutes the “same offense” for double jeopardy purposes, we are accustomed to employing the test announced in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932): [T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

The Blockburger rule does not provide the final answer in cases involving multiple punishment because, when specifically authorized by the legislature, cumulative sentences for the same offense may under some circumstances be imposed after a single trial. Missouri v. Hunter, 459 U.S. 359, 368-69 , 103 S.Ct. 673, 679-80 , 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 343-44 , 101 S.Ct. ³²⁴ 1137, 1144-45, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980). Accordingly, when dealing with the question of multiple punishments imposed after a single trial, and based on the same conduct, a critical question is one of legislative intent. The Blockburger test is helpful in such cases as an aid in determining legislative intent, but is not dispositive.

The multiple punishment-same trial problems arise from two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct,, and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction. Illustrative of the two-statute cases are United States v. Halper, supra; Missouri v. Hunter, supra; Albernaz v. United States, supra; Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); State v. Ferrell, 313 Md. 291 , 545 A.2d 653 (1988); Dillsworth v. State, 308 Md. 354 , 519 A.2d 1269 (1987); Whack v. State, 288 Md. 137 , 416 A.2d 265 (1980), cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981); Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977); and Nance v. State, 77 Md.App. 259 , 549 A.2d 1182 (1988). The multiple sentence-single statute problems, with which we are concerned here, embrace a wide range of factual situations and statutory provisions. The key, of course, is legislative intent.

As helpful as the various rules of statutory construction may be in determining legislative intent, perhaps the soundest guidance comes from the Supreme Court’s admonition that we give the language of a statute a “commonsensical meaning.” United States v. Universal Corp., 344 U.S. 218, 221 , 73 S.Ct. 227, 229 , 97 L.Ed. 260 (1952). The cases in this area are not always easy to reconcile. One court will hold that the transportation of two females across state lines for immoral purposes may be punished only as a single offense when both women were transported at the same time and in a single vehicle, Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955), while another will hold that every hand dealt in a ³²⁵ stud poker game may be separately punished as a gaming offense, Johnson v. Commonwealth, 201 Ky. 314 , 256 S.W. 388 (1923). Consistent with its approach in Bell , the Supreme Court held in Ladner v. United States, 358 U.S. 169 , 79 S.Ct. 209 , 3 L.Ed.2d 199 (1958), that the shooting of two federal officers was punishable under the federal statute only as a single assault when the act involved the single discharge of a shotgun.

Compare Cousins v. State, 277 Md. 383, 397 , 354 A.2d 825 (1976) (defendant wielding a knife against two detectives while escaping may be punished for two assaults), and Jackson v. State, 63 Md.App. 149 , 492 A.2d 346 (1985), rev’d on other grounds, 305 Md. 631 , 506 A.2d 228 (1986) (defendant firing one shotgun blast at vehicle containing two officers may be punished for two assaults). However, the Supreme Court has also held that under a statute making it a crime to “cut ... any mail bag ... with the intent to rob or steal ... mail,” the defendant could be given consecutive sentences for the cutting of each of three mail bags on a single occasion within a single railway ear. Ebeling v. Morgan, 237 U.S. 625 , 35 S.Ct. 710 , 59 L.Ed. 1151 (1915). The Court said that “[although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged.” Id. at 629 , 35 S.Ct. at 711 .

The Court distinguished the cutting of the mail bags-from “continuous offenses where the crime is necessarily, and because of its nature, a single one, though committed over a period of time.” Id. at 629-30 , 35 S.Ct. at 711 . As examples of true continuous offense cases, the Court cited Crepps v. Durden, 2 Cowper, 640, 98 Eng.Rep. 1283 (K.B. 1777) and In re Snow, 120 U.S. 274 , 7 S.Ct. 556 , 30 L.Ed. 658 (1887). In Crepps, the defendant, a baker, was charged with four counts of “exercising Ms ordinary trade upon the Lord's Day,” and given four cumulative