State Ex Rel. Sonner v. Shearin

Smith, J., delivered the opinion of the Court. We shall here hold that a trial judge (Shearin, J.) imposed an improper condition on an otherwise legal sentence when he suspended a portion of a five-year prison sentence for the use of a handgun in the commission of a felony. This suspension rendered the sentence illegal, since Maryland Code (1957, 1971 Repl. Vol., 1973 Cum.

Supp.) Art. 27, § 36B (d) makes mandatory in such case the imposition of “no less than the minimum sentence of five years.” Subsection (e) provides that “[n]otwithstanding any other provision of the law to the contrary, including the provisions of § 643 of [Art. 27, with exceptions not here pertinent,] no court shall enter a judgment for less than the mandatory minimum sentence prescribed in [that] subheading in those cases for which a mandatory minimum sentence is specified . . . [and] no court shall suspend a mandatory minimum sentence prescribed in [that] subheading . . . .” We shall also hold that the trial judge’s refusal to correct the illegal sentence was properly appealed by the State. However, we shall find it unnecessary to decide the issue ⁵⁰⁵ presented by a petition to us for the writ of mandamus directed to the trial judge. Jerome Mercer Schools (Schools) entered guilty pleas to charges of assault with intent to rape, armed robbery (two separate charges), assault and battery (two separate charges), larceny of goods having a value of more than $100, use of a handgun in the commission of a felony, and illegal possession of a handgun. This was not his first experience with our criminal courts since the trial judge stated that Schools had been previously convicted of manslaughter, “sentenced as of March 16, 1970, to seven years in the Maryland penal system by the Anne Arundel County Circuit Court and paroled on November 23, 1971, after serving approximately 20 months of that term.” In this case his sentences, all concurrent and all dating from February 14, 1973, ranged from seven years down to one year.

However, for all practical purposes the sentences were for but two years since the trial judge suspended the balance of all sentences that had not expired by February 14, 1975. 1 An assistant state’s attorney suggested to the trial judge that it was his understanding that the sentence in this case could not be suspended. The following then took place: “JUDGE SHEARIN: Well, I do not read the law that way. “The reasoning which applies to Section 36B, Subsection (e) is in apparent conflict with another section of Article 27.1 will read it again. “MR. LEAR: You are speaking of 643, Your Honor? “JUDGE SHEARIN: 643 is specifically referred ⁵⁰⁶ to but there is another provision of Article 27 which the Court had in mind aside from that. “641 and 641A likewise purport to confer upon the courts of this State the power to suspend sentences.[ 2 ] “I think, with all due regard to the General Assembly of Maryland as a separate and co-equal branch of the Government, that the courts of this State have inherent power, unencumbered by legislative prerogative or fiat, to impose such sentences as they may see fit within the máximums otherwise provided by law and to suspend all or part of such sentences. This Court does not intend to be bound by — until it is so held by a court of higher jurisdiction — the apparent intent of Subsection (e) of Section 36B of Article 27. “If the Legislature wishes, by constitutional amendment approved by the voters, to deprive the courts of this State of the power to deal with the sentencing process, that the people can do. “The Court believes that it has dealt with all of the charges now which require action by the Court, and the defendant is remanded to custody for execution of the sentence.” On March 27, 1974, in an attempt to compel the revision of the sentence as to the handgun violation, the State’s Attorney for Montgomery County filed a petition with us for the writ of mandamus, the writ of certiorari, “or other appropriate relief.” Judge Shearin was named as defendant in that petition.

We passed an order on April 4 directing that this petition should be held in “abeyance, pending ⁵⁰⁷ application by the State’s Attorney for Montgomery County to the respondent judge pursuant to Maryland Rule 764 a, for an order nullifying the suspension of three years of the sentence.” The State then filed a motion in the trial court for correction of the sentence. The motion was denied. The State appealed this denial to the Court of Special Appeals. Before that court considered the appeal, we granted the petition of the State for the writ of certiorari in order that we might consider the refusal of the trial judge to correct the allegedly illegal sentence (known here as No. 86, September Term, 1974) along with the petition for the writ of mandamus, etc. (known in this Court as Mise.

No. 3, September Term, 1974). An answer was duly filed by the trial judge in the mandamus case. Leave was granted to Schools to intervene in that matter. He has filed an answer opposing the grant of the writ of mandamus, the motion for which has been renewed by the State.

We directed that the cases be consolidated for argument and, because of the importance of the matter, advanced them and heard them on July 25. I Supension of Sentence We shall first consider the propriety of the suspension of sentence. In so doing, it must be remembered that under the Constitution and laws of the State of Maryland this Court has no power to determine the punishment which shall be imposed for any violation of law. It is not fdr us to say whether a given punishment is or is not that most likely to effectively reform the convicted criminal.

Our examination of such a matter must be confined to ascertaining whether the judgment of a trial court is within the limits permitted and prescribed by law. The trial judge, in refusing to alter the sentence he had previously imposed, took the view that the combination of the inherent power of the courts and the doctrine of separation of powers, as expressed in Art. 8 of the Maryland Declaration of Rights, in his view “mandates a government of three separate and co-equal branches,” thus vesting him ⁵⁰⁸ with the power to do that which he did. He further stated, however, “that, if the Court of Appeals should conclude that Section 36B (e) is a valid exercise of the legislative power of the General Assembly, a serious question of statutory construction remains for ultimate decision by that Court.” We shall consider those points in inverse order. (a) Statutory Construction The trial judge pointed out that Chapter 13 of the Acts of 1972 added § 36B to Art. 27, that this was approved on March 27, 1972, and that this took effect from the date of its passage as emergency legislation.

Subsection (e) of § 36B provided that sentence under it should not be suspended “[notwithstanding any other provision of law to the contrary, including the provisions of § 643 of [that] article,” with certain exceptions not here pertinent. Then by Chapter 181 of the Acts of 1972, effective July 1 of that year, the General Assembly repealed and re-enacted § 643 of Art. 27, the amendment making it applicable to the District Court of Maryland in addition to the other courts to which it had previously applied. It is § 643 which has permitted judges in Maryland since its enactment by Chapter 563 of the Acts of 1906 “in lieu of the minimum penalty . . . prescribed [by statute to] impose a less penalty of the same character . . . .” Judge Shearin cited our holding in Hensley v. Bethesda Metal Co., 230 Md. 556 , 188 A. 2d 290 (1963), and 1A C. D. Sands, Sutherland Statutory Construction § 23.29 (4th ed. 1972). He then said: “[W]e must conclude that, notwithstanding whatever decision may ultimately be rendered on the constitutional issue dealt with earlier in this opinion, Section 643 of Article 27 of the Maryland Code is no less viable and effective today than it was prior to the 1972 session of the General Assembly.

In short, the authority, purportedly conferred by that section, to suspend sentences still survives.” The short answer to this contention is found in § 75 of Chapter 181 of the Acts of 1972. It states: ⁵⁰⁹ “Section 75. And be it further enacted, That any law enacted by the 1972 regular session of the General Assembly to amend, repeal, or add any provision of law which is amended, repealed, or added by this Act shall be construed and codified together with this Act, and each shall be given effect, if possible, and with due regard to the title of each. If the Acts are irreconcilable and cannot be construed together, then the other Act shall prevail over anything inconsistent therewith in this Act.” Accordingly, if there is a conflict between Art. 27, § 36B as enacted by Chapter 13 of the Acts of 1972 and Art. 27, § 643 as repealed and re-enacted by Chapter 181 of the Acts of 1972, the General Assembly has mandated that § 36B prevails, thus disposing of the contention relative to statutory construction.

(b) Inherent Power and Separation of Powers Judge Shearin, in his opinion, quoted from Art. 8 of the Declaration of Rights which states: “That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” The only difference between that provision and Art. 6 of the Declaration of Rights in the Constitution of 1776, to which we shall later allude, is the prohibition against a person’s exercising the functions of one of those departments assuming or discharging the duties of any other. This clause was added in the Constitution of 1851 and left unchanged in the Constitutions of 1864 and 1867. See Constitutional Convention Commission, Constitutional Revision Study Documents 604-605 (1968). After referring to the provisions of Maryland Constitution art.

IV, § 1 relative to judicial power, the statement of this Court in Board of Zoning Appeals v. Meyer, 207 Md. 389, 400-01 , 114 A. 2d 626 (1955), “that the Legislature is without ⁵¹⁰ authority to divest the courts of their inherent power to review the actions of administrative boards in order to determine whether they impair personal or property rights by reason of an unlawful or arbitrary exercise of discretion,” and cases in which “[l]egislative attempts to cross this line of demarcation have consistently been stricken down as unconstitutional,” the trial judge cited a number of cases in support of his conclusion that the General Assembly crossed into forbidden territory when it denied the right to the courts to suspend a sentence in cases such as this. One of the cases cited by Judge Shearin was People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288 , 36 N. E. 386 (1894), where the New York court concluded that at common law courts had the right to suspend sentences. A contrary conclusion was reached by the Supreme Court of the United States in Ex parte United States, 242 U. S. 27 , 37 S. Ct. 72 , 61 L. Ed. 129 (1916), after a careful examination of the authorities and cases, including Forsyth.

Be that as it may, Judge Henderson declared for this Court in Heath v. State, 198 Md. 455, 464 , 85 A. 2d 43 (1951), that “common law rights, unlike constitutional rights, are subject to change by the legislature,” a statement which echoed that of Chief Judge Chase for our predecessors in Coomes et al. v. Clements, 4 Har. & John. 480, 481 (1819), that “[t]he common law of England is the common law of this State, excepting such changes as have been made by the Acts of the Legislature.” When the common law and a statute collide, the statute, if constitutional, controls. Thus, any contention that the common law represents authority, in contravention of the clear proscription of Art. 27, § 36B (e), to suspend execution of a portion of the trial court’s judgment so as to relieve the accused in part from suffering the sentence imposed is untenable. Of the conclusion in Miller v. United States, 41 App. D.C. 52 (Ct. App. D.C. 1913), cited by Judge Shearin, Mr. Chief Justice White said for the Supreme Court in Ex Parte United States: “It is true that in the District of Columbia the existence of the power was maintained. Miller v. ⁵¹¹ United States, 41 App. D.C. 52 (1913).

But the unsoundness of the grounds upon which the conclusion was based is demonstrated by what we have previously said; and aside from this, as the subject was covered by an Act of Congress conferring power of parole (Act of July 25, 1910, 36 Stat. 864 ), the case requires no further consideration.” Id. at 242 U. S. 50 . In Spencer v. State, 125 Tenn. 64 , 140 S. W. 597 (1911), cited by the trial judge, the court said: “[W]e have never recognized the common law practice of an indefinite suspension of judgment — and rightly. The reasons assigned for the practice by Lord Hale do not exist here.” Id. at 70. “The case of Daniel Allen v. State, Fulls v. State, Whitney v. State, James Allen v. State, and Crane v. State, recognize the right of the trial judge indeed to suspend the execution by proper reservation made at the trial term, but only for purposes connected with the termination of the cause, and Fulls v. State strongly intimates, which we hold the only correct and true practice, that the order should state the cause or reason for the delay, and, we add, should specify the length of time for which it is to continue. “In the present case it is apparent from the record that the trial judge granted the stay of execution solely as a reformatory measure, to secure future good behavior on the part of the prisoner. His motives, it is apparent, were of the highest character, based wholly upon a desire to subserve the public welfare.

However, he exceeded his powers. We therefore hold that the stay of execution was . . . void.” (Emphasis added.) Id. at 78-79. Judge Shearin referred to the concurring opinion of Judge ⁵¹² McCormick in State v. Wright, 202 N.W.2d 72 (Iowa 1972). It must be noted that the Iowa court’s majority opinion said, however: “The State does not dispute the principle of law that the authority to suspend sentences and grant probation is purely statutory, the court having no inherent power to do so.” Id. at 77 .

The trial judge also cited Weber v. State, 58 Ohio St. 616 , 51 N. E. 116 (1898). It must be read in the light of the much later case of State v. Zangerle, 136 Ohio St. 371 , 26 N.E.2d 190 (1940), where the court said: “The agreed statement of facts shows that the Court of Common Pleas of Cuyahoga county in many instances has imposed sentence for a felony committed, then suspended execution of sentence and placed the defendant on probation under the supervision of a probation officer. The statutes do not authorize such procedure and the power to suspend the execution of sentence as a basis for probation does not exist in the absence of an empowering statute.” Id. at 384-85 . State v. McCoy, 94 Idaho 236 , 486 P. 2d 247 (1971), is the only case cited by Judge Shearin which rested its conclusion upon the doctrine of separation of powers.

That was a 3-2 decision in which the dissenters pointed out that in McCoy the court reached a result contrary to that in In re Jennings, 46 Idaho 142 , 267 P. 227 (1928), and In re Peterson, 19 Idaho 433 , 113 P. 729 (1911), neither of which was mentioned in the majority opinion. Moreover, if there exists in Idaho an equivalent to Maryland Constitution art. Ill, § 60, to which we shall later allude, it does not appear in the opinion in McCoy . Thus we conclude that McCoy is clearly distinguishable on the basis of that constitutional provision.

We have examined all of the cases cited by Judge Shearin, not all of which, as we have pointed out, support his conclusion. We think the better and majority view is that in the absence of statutory authority a court does not possess ⁵¹³ any power, after sentence has been pronounced, to suspend the execution of its judgment so as to relieve an accused, either in whole or in part, from suffering the sentence imposed. We further believe that the General Assembly is possessed of the right to specify the penalties to be imposed by a court for the commission of a given crime. The right to prescribe a penalty includes the right to prescribe the minimum and maximum punishment to be imposed.

It goes without saying that such penalties may not infringe upon constitutional rights and privileges. Within those limits, courts exercise judicial discretion in fitting a proper penalty to a specific defendant. Of course, in the case of common law crimes where no penalty has been prescribed by statute, courts are limited in the imposition of penalties only by the constitutional prohibition against cruel and unusual punishment. The right of the General Assembly to prescribe penalties is a part of the sovereign power of the State.

Support for these views is found in 24 C.J.S. Criminal Law § 1618(1) (1961); 24B C.J.S. Criminal Law § 1975 a (1962); 21 Am.Jur.2d Criminal Law §§ 558, 577 (1965); 5 R. Anderson, Wharton’s Criminal Law and Procedure § 2192 (1957); L. Orfield, Criminal Procedure from Arrest to Appeal 548-49 (1947); and 1 W. Burdick, The Law of Crime § 70 (1946). Cases cited in one or more of the above works or otherwise found to support the above views and the view we here take today include Ex parte United States, 242 U. S. 27 , 37 S. Ct. 72 , 61 L. Ed. 129 (1916); Morgan v. Devine, 237 U. S. 632 , 35 S. Ct. 712 , 59 L. Ed. 1153 (1915), quoting United States v. Wiltberger, 18 U. S. (5 Wheat.) 76, 95 , 5 L. Ed. 37 (1820); United States v. Fultz, 482 F. 2d 1, 2 (8th Cir. 1973); United States v. Sidella, 469 F. 2d 1079, 1081 (4th Cir. 1972); United States v. Ellenbogen, 390 F. 2d 537, 541 (2d Cir. 1968); Munich v. United States, 337 F. 2d 356, 361 (9th Cir. 1964); United States v. Lane, 284 F. 2d 935, 939 (9th Cir. 1960); Cook v. United States, 171 F. 2d 567, 570 (1st Cir. 1948); Hunter v. United States, 149 F. 2d 710, 711 (6th Cir. 1945); Lewis v. State of Oklahoma, 304,F. Supp. 116, 122 (W. D. Okla. 1969); Montgomery v. State, 231 Ala. 1, 3 , 163 So. 365 , 101 A.L.R. 1394 (1935); Pete v. State, 379 P. 2d 625, 626 (Alas. 1963); State v. Edge, 96 Ariz. 302, 304 , 394 P. 2d 418 ⁵¹⁴ (1964); Davis v. State, 169 Ark. 932, 934-36 , 277 S. W. 5 (1925); Wilson v. State, 124 Ark. 477, 479-80 , 187 S. W. 440 (1916); People v. Alotis, 60 Cal. 2d 698 , 388 P. 2d 675 , 36 Cal. Rptr. 443, 448, 450 (1964); Oster v. Municipal Court, 45 Cal. 2d 134, 139 , 287 P. 2d 755 (1955); People v. Burke, Colo., 521 P. 2d 783, 785 (1974); In re Nottingham, 84 Colo. 123, 125 , 268 P. 587 (1928); Ziegler v. District of Columbia, 71 A. 2d 618, 619 (D. C. Mun.

App. 1950); McMahon v. Mayo, 92 So. 2d 806, 810 (Fla. 1957); Ragland v. State, 55 Fla. 157, 163 , 46 So. 724 (1908); Tanner v. Wiggins, 54 Fla. 203 , 45 So. 459 (1907); People ex rel. Hanrahan v. Wilson, 48 Ill. 2d 30, 35 , 268 N.E.2d 23 (1971); Village of Park Forest v. Bragg, 38 Ill. 2d 225, 230 , 230 N.E.2d 868 (1967); People v. Burnett, 394 Ill. 420, 425 , 68 N.E.2d 733 (1946); People v. Wright, 296 Ill. 455, 461-62 , 129 N. E. 819 (1921); State v. Wright, 202 N.W.2d 72, 76 (Iowa 1972); Bax v. Fletcher, 261 S.W.2d 662, 664 (Ky. 1953); State v. Blanchard, 156 Me. 30, 46-51 , 159 A. 2d 304 (1960); State v. Meyer, 228 Minn. 286, 293-94 , 37 N.W.2d 3 (1949); Freeman v. State, 220 Miss. 777, 782 , 72 So. 2d 139 (1954); State ex rel. Browning v. Kelly, 309 Mo. 465, 470 , 274 S. W. 731 (1925); State v. Owen, 80 N. H. 426, 427, 117 A. 814 (1922); State v. Eighth Jud. Dist.

Ct. In & For County of Clark, 85 Nev. 485 , 457 P. 2d 217 , 218 (1969); Delaney v. State, 507 P. 2d 564, 567 (Okla. Crim. 1973); Ex Parte Swain, 88 Okla. Crim. 235, 239-41 , 202 P. 2d 223 (1949); Rightnour v. Gladden, 219 Ore. 342, 348-50 , 347 P. 2d 103 (1959); Commonwealth v. Sweeney, 281 Pa. 550, 559 , 127 A. 226 (1924); Ex Parte: Moore v. Patterson, 203 S. C. 90, 94-95, 26 S.E.2d 319 (1942); Cason v. State, 160 Tenn. 267, 268 , 23 S.W.2d 665 (1930); Walker v. State, 440 S.W.2d 653, 657-58 (Tex. Crim. 1969); State v. Zolantakis, 70 Utah 296, 303 , 259 P. 1044 , 54 A.L.R. 1463 (1927); State ex rel.

Woodhouse v. Dore, 69 Wash. 2d 64, 69 , 416 P. 2d 670 (1966); State ex rel. Schock v. Barnett, 42 Wash. 2d 929, 931 , 259 P. 2d 404 (1953); State ex rel. Zbinden v. Superior Court, 135 Wash. 458, 463 , 238 P. 9 , 240 P. 565 (1925); State ex rel. Lundin v. Sup’r Ct, 102 Wash. 600 , 174 P. 473 (1918); Calandros v. Gore, 126 W. Va. 614, 617 , 29 S.E.2d 476 (1944); and Ex parte Fisher, 95 W. Va. 397 , 121 S.E. 287 (1924).

The keystone of the arch supporting the holding of many of ⁵¹⁵ these cases is Ex parte United States, 242 U. S. 27 , supra. In that case the Government sought the writ of mandamus against a United States district judge to compel him to sentence an individual, convicted of embezzling the money of a national bank of which he was an officer, to a five-year prison term, the shortest term which under the statute could have been imposed upon the defendant. “[T]he execution of the sentence [had been] suspended during the good behavior of the defendant, and for the purpose of [the] case [the] term of [that] court [was] kept open for five years.” Mr. Chief Justice White examined and rejected for the Court contentions that courts were possessed of inherent judicial power to suspend sentence, that there was support for that proposition at common law, that support for the power asserted could be derived from the adjudication of state and federal courts, and that the Court should recognize the power as lawful because of its exertion in practice by the state and federal courts and the implications arising therefrom. The Court suggested the need for legislation authorizing such action. This did not come, however, until the passage of the Probation Act of 1925.

Statutes prescribing a heavier punishment for habitual criminals or successive offenders than for those convicted of crime for the first time have been upheld. See, e.g., 39 Am.Jur.2d Habitual Criminals, etc. §§ 1, 2, 5 (1968), and Oyler v. Boles, 368 U. S. 448, 449 , 82 S. Ct. 501 , 7 L.Ed.2d 446 (1962). In the latter case the Court upheld a sentence which it said “provide[d] for a mandatory life sentence upon the third conviction ‘of a crime punishable by confinement in a penitentiary.’ ” In this State Judge Horney said for the Court in Greenwald v. State, 221 Md. 235 , 155 A. 2d 894 (1959), appeal dismissed, 363 U. S. 719 , 80 S. Ct. 1596 , 4 L.Ed.2d 1521 (1960): “Furthermore, there is not the slightest doubt that the Legislature had the power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders, the only limitation being that such enactments shall not ⁵¹⁶ infringe on constitutional rights and privileges. Glickfield v. State, 203 Md. 400, 404 , 101 A. 2d 229, 231 (1953); State v. Seney Company, 134 Md. 437 , 107 A. 189 (1919); 14 Am.

Jur., Criminal Law, § 16.” Id. at 240. In Kirschgessner v. State, 174 Md. 195 , 198 A. 271 (1938), Judge Sloan said for the Court: “It is the province of the Legislature to fix the penalty for the commission of crimes and offenses, and thus limit the power of the courts to impose penalties, and, prior to the year 1906, courts were restrained by the limits, high and low, imposed by statute. By the Acts of 1906, ch. 536 (Code, art. 27, sec. 578): ‘In all cases where the law