State v. Broadwater

RODOWSKY, Judge. Md.Code (1957, 1986 Repl.Vol.), Art. 33, Title, “Election Code,” § 3-4(c) provides: “No person shall be registered as a qualified voter if he has been convicted of theft or other infamous crime, unless he has been pardoned, or, in connection with his first such conviction only, he has completed any sentence ³⁴⁴ imposed pursuant to that conviction, including any period of probation imposed by virtue of parole or otherwise in lieu of a sentence or part of a sentence.” [ 1 ] At issue here is how § 3-4(c) applies where there were guilty verdicts and sentences on multiple counts charging infamous crimes in a single indictment against a person never previously convicted of an infamous crime. Appellants are the State of Maryland and the Board of Supervisors of Elections for Prince George’s County (Board), collectively, the State. The State, approaching the statute’s construction from a technical, double jeopardy standpoint, contends that each separate guilty finding on a count charging an infamous crime for which a separate sentence could be imposed is a “conviction” for purposes of § 3-4(c).

Appellee, Tommie Broadwater, Jr. (Broadwater), emphasizing rehabilitation of first time offenders as the legislative purpose, contends that the criminal proceeding in which there is adjudication of guilt and sentencing is the “conviction” for purposes of § 3-4(c). Based primarily on ³⁴⁵ the legislative history of the section and on the social history immediately surrounding its enactment, we hold that Broadwater’s construction is correct. The federal grand jury for the District of Maryland in April 1983 charged Broadwater jointly with one or more other co-conspirators in five counts of a six count indictment. Count I alleged that the conspiracy operated from January 1983 until March 6, 1983, that co-defendants would illegally acquire United States food stamp coupons, paying approximately forty percent of their face value, that the stamps would be delivered to Broadwater who paid approximately sixty percent of the face value, and that Broadwater would cause the coupons to be processed through certain businesses, wholly or partially owned by him, for redemption by the United States and the Department of Agriculture at face value.

Overt acts alleged in furtherance of the conspiracy were illegal transfers of specified face value amounts of food stamps to Broadwater on specified occasions, namely, $10,000 in face value of stamps on January 21, $15,035 on February 1, $20,000 on February 20, and $25,000 on March 6. Counts II through V of the indictment alleged that Broadwater, as to each overt act, unlawfully, acquired, possessed and used food stamp coupons in a manner not authorized under the laws of the United States in violation of 7 U.S.C. § 2024 (b) (1982). A jury found Broadwater guilty on each of the five counts against him. The court in October 1983 imposed split, concurrent sentences on each of the five counts, i.e., six months confinement, two and one-half years imprisonment suspended, and four years probation, with fines of $10,000 on each of Counts I and II.

The court further ordered restitution of $18,420 and 1,000 hours of community service. 2 “JUDGMENT AS TO DEF. T. BROADWATER: The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three (3) years as to each of Count Nos. 1, 2, 3, 4, and 5, and fined the ³⁴⁶ sum of Ten Thousand Dollars ($10,000.00) as to Counts No. 1 and 2, and on condition that the defendant be committed and confined in an appropriate institution for a period of six (6) months. Said period of imprisonment to run concurrently with each other, making a total period of three (3) years imprisonment and a total of six (6) months confinement. Said fine is to be cumulative as to each of Counts Nos. 1 and 2, making a total fine of Twenty Thousand Dollars ($20,000.00).

"IT IS FURTHER ORDERED that the execution of the remainder of the sentence of imprisonment only is hereby suspended and defendant placed on probation for a period of four (4) years as to each of Counts No. 1, 2, 3, 4, and 5, to commence upon the defendant’s release from confinement upon the following terms and conditions: (1) That defendant comply with all local, state, and federal laws; (2) that defendant comply with the rules and regulations of the Probation Office; (3) that restitution in the amount of Eighteen Thousand Four Hundred and Twenty Dollars ($18,420.00) to be paid to the U.S. Department of Agriculture; (4) that defendant complete One Thousand (1,000) hours of community service at such times and in such manner as is prescribed by the Probation Office." As a result of the outcome of the federal prosecution Broadwater’s name was stricken from the registry of qualified voters in Prince George’s County, Maryland. Broadwater had previously been a member of the Maryland Senate, elected from a district within that county. After Broadwater had served his period of confinement and while he was on probation, he unsuccessfully challenged under the Equal Protection Clause of the Federal Constitution, Maryland Constitution art. 1, § 12 under which registration as a voter is a condition of initial and continued eligibility for seeking or holding elective office, as therein more particularly set forth. Broadwater v. State, 306 Md. 597 , 510 A.2d 583 (1986); Broadwater v. State, 303 Md. 461 , 494 A.2d 934 (1985).

After having fully completed his period of probation, Broadwater attempted to register again as a voter in Prince George’s County. The Board refused his application because of his “CONVICTION OF DISQUALIFYING CRIMES.” Broadwater then filed a complaint against the Board in the Circuit Court for Prince George’s County. The Attorney General’s Office joined with counsel for the Board ³⁴⁷ in defense of the action by having the State of Maryland intervene as a defendant. The circuit court ordered the Board to reinstate Broadwater as a registered voter and this appeal was noted.

We granted appellants’ petition for certiorari prior to consideration of the matter by the Court of Special Appeals. The ultimate dispute is whether § 3-4(c) should be read on a micro scale, as the State contends, or on a macro scale, as Broadwater contends. From the textual standpoint, the State argues that for purposes of assessing guilt and, ultimately, of imposing sentence on conviction “each count of an indictment is regarded as if it were a separate indictment and the jury is required to determine whether to make a finding of guilt on .each count____” Mack v. State, 300 Md. 583, 595 , 479 A.2d 1344, 1349 (1984). Broadwater points out that conviction has also been said to mean “that legal proceeding which ascertains the guilt of the party____” State v. Brantley, 1 Ohio St.2d 139, 141 , 205 N.E.2d 391, 393 (1965), and that “convicted” has been said to “involve[ ] all the necessary proceedings from the charge to the sentence inclusive.” Smith v. State, 75 Fla. 468, 473 , 78 So. 530, 532 (1918).

Not surprisingly, this Court has said that “[i]n today’s usage, however, the meaning of ‘convicted’ and ‘conviction’ turns upon the context and purpose with which those terms are used.” Myers v. State, 303 Md. 639, 642 , 496 A.2d 312, 313 (1985). The parties also find support for their respective positions in the history of § 3-4(c). Prior to the general election of November 7, 1972, Maryland Constitution art. 1, § 2 had provided in part that “[n]o person above the age of twenty-one years, convicted of larceny, or other infamous crime, unless pardoned by the Governor, shall ever thereafter be entitled to vote at any election in this State[.]” The provision first appeared in the Constitution of 1851. See Constitutional Convention Commission of Maryland, Constitutional Revision Study Documents at 642-43 (1968).

The proposed constitution which was rejected in 1968 would have authorized the General Assembly to prescribe by law ³⁴⁸ disqualifications from voting by reason of conviction of serious crime. See Constitutional Commission of Maryland, Comparison of Constitutions, § 2.06 (1968). The substance of that proposal was separately presented to the voters by a constitutional amendment proposed by Ch. 368 of the Acts of 1972 and ratified that year. 1973-1974 Maryland Manual at 575. Chapter 368 amended Md. Const, art. 1, former § 2 to read in relevant part: “The General Assembly by law may regulate or prohibit the right to vote of a person convicted of infamous or other serious crime____” The provision is now Md. Const, art. 1, § 4.

Md.Code, Art. 33, § 3-4(c) implements the constitutional authorization. Pointing to the long-standing constitutional requirement for lifetime disfranchisement (in the absence of gubernatorial pardon), the State views § 3-4(c)’s legislative implementation of the constitutional change as a careful modification by which “the General Assembly plainly contemplated a narrow and grudging relinquishment of its unqualified power to deny the right to vote to all convicted felons.” Brief for Appellants at 13. Broadwater sees the constitutional amendment and the enactment of § 3-4(c) as part of a broad, national trend favoring rehabilitation and opposing lifetime disfranchisement of felons. He reads “in connection with his first such conviction only” to distinguish between first time offenders and repeat offenders so that the premise underlying § 3-4(c) is assumed rehabilitation after confinement and completion, without violation of condition, of any period of probation.

Close review of the available legislative history supports Broadwater’s analysis. At the 1972 legislative session then Senator J. Joseph Curran, Jr. introduced Senate Bill 239 which, conditioned on adoption of the amendment to Md. Gonst. art. 1, § 2, would have amended § 3-4(b) of the Election Code to list as a qualification that the voter was “[n]ot twice convicted of an infamous crime, unless pardoned by the Governor.” See 1972 Md. Laws 1722 -24; see also 1972 Maryland Senate Journal at 141. Amendments to ³⁴⁹ the bill were proposed in committee. 3 One committee proposal changed subsection (b) and added subsection (c) providing that “[n]o person shall be registered as a qualified voter if he has been twice convicted of an infamous crime, unless pardoned by the Governor.” 1972 Md. Sen. J. at 595.

An amendment was offered from the floor to strike the word “twice” and to insert “larceny or other” before “infamous.” Id. at 628 . The floor amendment to proposed subsection (c) initially failed by one vote, id. at 657 , but, on reconsideration, was adopted, id. at 727-28 , and the bill was enacted in that form. Consequently, from the effective date of the constitutional amendment in 1972 until July 1, 1974, § 3-4(c) produced the same result as former § 2 of art. 1 of the Constitution in that the statute read: “No person shall be registered as a qualified voter if he has been convicted of larceny or other infamous crime, unless pardoned by the Governor.” Md. Code (1957, 1973 Cum.Supp.), Art. 33, § 3-4(c). In the 1974 legislative session Senator Blount introduced Senate Bill 57 to amend, inter alia, § 3-4(c).

See 1974 Md.SenJ. at 41. Senate Bill 57 was amended in committee and, as amended, enacted. See 1974 Md.Laws 1353-54. Set forth below in columns for comparison purposes is § 3-4(e) as introduced and as amended.

The comparison should also be made in light of Md.Code (1957, 1987 Repl.Vol.), Art.