State v. Armstrong

GILBERT, Chief Judge. We have consolidated these two appeals, State v. Armstrong, No. 1756, and State v. Jones, No. 1770, both September Term, 1983, into one opinion because both cases involve the same law, i. e., the subsequent offender statute. Md.Ann.Code art. 27, § 643B. See also former Md.Rule 734.

Each case originated in the Circuit Court for Baltimore County; one is concerned with the notice to the defendant of the State’s intent to seek increased punishment of the defendant, and the other concerns the prior incarceration requirement. Failing in its efforts, the State has appealed to this Court. Before we discuss the applicable law, we shall set forth briefly the factual pattern from which each case arose. Deborah Ann Armstrong pleaded guilty to the crimes of daytime housebreaking and malicious destruction of property.

A notice of intention to seek a mandatory penalty under § 643B was served by the State on the same day that the guilty pleas were entered. Five months later at the sentencing proceeding, the trial judge determined that the State had failed to provide the timely notice of its intent to proceed under § 643B. He declined to impose the sentence legislatively dictated by § 643B. Francis Xavier Jones was convicted of robbery with a dangerous and deadly weapon.

The State, having given proper notice of its intent to proceed to sentencing under § 643B, established that Jones had twice before been convicted of breaking and entering. Suspended sentences had been imposed in each prior offense and he had been placed on probation. Jones, however, was subsequently incarcerated for violating the conditions of probation. At the sentencing hearing in the instant case, the judge refused to sentence Jones under § 643B.

The trial court opined that Jones’s prior incarceration was the result of a ²⁴⁸ probation violation and not a consequence of the underlying conviction. The law Whenever an accused is charged with a crime of violence and he or she has previously been convicted of two other crimes of violence not arising from the same incident, the State’s attorney may seek a mandatory lengthy sentence. If the prosecutor utilizes the power conferred upon him or her by the law, Md.Ann. Code art. 27, § 643B, the trial court must impose the statutorily prescribed penalty. The State is not required to ask that the strictures of § 643B be applied to a defendant, inasmuch as subsection (d) implicitly confers discretionary power in the prosecution.

The only prerequisites to the imposition of § 643B’s mandatory provisions are: 1. a charge of committing a crime of violence; 2. at least two prior convictions of crimes of violence, provided they arise from separate incidents; 3. service in a penal institution for at least part of one of the sentences imposed in the prior convictions; 4. the State’s attorney opts to seek the imposition of the mandatory sentence; 5. the notice under former Rule 734(c) by the prosecutor to the defendant or his counsel of the prosecution’s intent to seek imposition of the mandatory sentence. The statute has legislatively reversed the historical roles of court and prosecutor. Although the State’s attorney may elect whether to proceed against an accused on the basis of the enhanced punishment statute, a trial judge has no choice in the matter. If the State charges an accused under the so-called habitual offender statute and the evidence shows that the accused has been previously convicted of crimes of violence, and the statute is otherwise satisfied, the judge must impose the statutorily mandated penalty. ²⁴⁹ State v. ArmstrongNo. 1756 Md.Rule 734(c), applicable at the time of the proceeding in the trial court, provided: “If a mandatory sentence is prescribed by law because of a specified previous conviction, the State’s Attorney, at least 15 days prior to sentencing, shall serve upon the defendant or his counsel a notice of the alleged prior conviction which would require imposition of the mandatory sentence.” 1 The record shows that the assistant State’s attorney served notice under Rule 734(c) after Ms. Armstrong had entered a guilty plea.

Nevertheless, defense counsel announced that Ms. Armstrong was ready for immediate sentencing. After an exchange between counsel and the bench, the prosecutor asked for a presentence investigation. The defendant objected. Although the judge said that he agreed with the defense that the State had not complied with the notice requirements of Rule 734(c), he granted the State’s request for a presentence report.

Sentencing did not occur until five months after the acceptance of the plea. Had the judge sentenced on the day the plea was tendered and accepted under Rule 734(c) then in effect, he would have been correct in holding that the State had failed to furnish timely the necessary notice. He did not, however, sentence on that date and, patently, the notice was served more than 15 days before sentencing. Thus, the State inadvertently backed into compliance with the rule because of the judge’s apparent reluctant acquiescence in granting ²⁵⁰ the request for a presentence report.

Since the notice was timely under the peculiar circumstances of this case, the trial judge erred in not sentencing Armstrong to the term mandated by the statute, i.e., imprisonment for not less than 25 years. Md.Ann.Code art. 27, § 643B(c). We observe that former Rule 734 seemed to permit an accused to spring a surprise on the