State v. Davis

RODOWSKY, Judge. In Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983), the Supreme Court held that the sentence of life imprisonment, without parole, imposed under the facts of that case, violated the principle of proportionality embraced within the eighth amendment’s prohibition against cruel and unusual punishments. In the case before us Drexel Otto Davis (Davis) was sentenced to life imprisonment, without parole, after having been convicted of housebreaking for at least the fourth, separate time. On appeal to the Court of Special Appeals Davis invoked Helm , in addition to questioning whether the State proved the predicate convictions for enhanced punishment.

That court vacated Davis’s sentence for want of proportionality. Davis v. State, 68 Md.App. 581 , 514 A.2d 1229 (1986). We granted the State’s petition for certiorari, as well as Davis’s conditional cross-petition which reasserted his challenges to the predicate convictions. For the reasons set forth below we shall reinstate the sentence.

Davis was sentenced pursuant to Md.Code (1957, 1982 Repl. Vol., 1986 Cum.Supp.), § 643B(b). 1 At the time of Davis’s fourth offense, § 643B provided in relevant part: ⁶¹⁴ (a) “Crime of violence".—As used in this section, the term “crime of violence” means abduction; arson; burglary; daytime housebreaking under § 30(b) of this article; kidnapping; manslaughter, except involuntary manslaughter; mayhem and maiming under §§ 384, 385, and 386 of this article; murder; rape; robbery; robbery with a deadly weapon; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; and assault with intent to rape. The term “correctional institution” includes Patuxent Institution and a local or regional jail or detention center. (b) Mandatory life sentence.—Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole.

Regardless of any other law to the contrary, the provisions of this section are mandatory. (c) Third conviction of crime of violence.—Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11. A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.

We explained the purpose and operation of § 643B(b) in Montone v. State, 308 Md. 599 , 521 A.2d 720 (1987), saying: ⁶¹⁵ Section 643B(b) is unlike any other habitual offender statute in the country. The Maryland statute requires more than merely “previous” convictions; it requires separate convictions. Moreover, the statute’s scope is narrowed by the fact that it requires not only that an individual shall have received separate convictions, but that he shall have been sentenced to, and shall have actually served, three separate terms of confinement under the jurisdiction of the correctional system. Thus, the picture that emerges is one of a statute specifically designed to identify and target a unique class of people so that they may be permanently exiled from our free society.

These are the violent criminals who have been exposed to the correctional system three distinct times, who have refused to conform their conduct to societal standards, and who, instead, have demonstrated violent criminal behavior after each encounter with the correctional system, thus evidencing the futility of any hope for their rehabilitation. [Id. at 606, 521 A.2d at 723 (footnote omitted).] A sentence of life imprisonment without parole cannot be imposed under § 643B unless the sequence of commission of a crime of violence, as defined, conviction for that crime, sentence to imprisonment, and service of some part of the term of imprisonment has occurred three times before the fourth conviction for a crime of violence. When a jury sitting in the Circuit Court for Baltimore County in January 1985 found Davis guilty of daytime housebreaking, the State filed an addendum to the indictment seeking life without parole. The State specified the following prior convictions in Maryland courts: ⁶¹⁶ May 31, 1966 - four cases of “[b]urglary” in Baltimore City, to which Davis pleaded guilty and for which he was sentenced to five years each, with the first three sentences consecutive and the fourth concurrent with the third. October 18, 1966 - one case of “[b]urglary” in Baltimore County for which Davis, upon a guilty plea, was sentenced to fifteen years to be served concurrently with the sentences for the Baltimore City offenses.

August 11, 1975 - one case of daytime housebreaking in Anne Arundel County for which Davis was sentenced to five years, with service of the last three years suspended. October 28, 1981 - two cases of daytime housebreaking in Baltimore City for each of which Davis was sentenced to three years, to be served concurrently. At the sentencing hearing in the instant case the court concluded that the 1966 convictions in the then Criminal Court of Baltimore (Joseph R. Byrnes, J.) would not be considered as qualifying crimes because the proof did not satisfy the court that Judge Byrnes had sentenced Davis on a count in the indictment which charged a § 643B crime of violence. The trial judge, however, found that the State proved that the 1966 conviction before the Circuit Court for Baltimore County (John E. Raine, Jr., J.) had been for “burglary,” a § 643B crime.

Davis has never disputed that his 1975 conviction in Anne Arundel County qualified to enhance punishment. The trial judge also held that the two convictions in 1981 by the Criminal Court of Baltimore (John R. Hargrove, J.) qualified. The Court of Special Appeals, ruling before Montone was decided, did not reach Davis’s arguments against the use of the conviction before Judge Raine, because it treated each of the two convictions before Judge Hargrove as predicate offenses. Davis v. State, supra, 68 Md.App. at 586-87 , 514 A.2d at 1232 .

Under Montone concurrent sentences are but one period of confinement so that Davis’s convictions before Judge Hargrove are but one conviction for § 643B purposes. We shall, therefore, address in part I Davis’s arguments concerning the predicate convictions and in part II his claim of unconstitutional disproportionality. ⁶¹⁷ I In order to bring into focus the attacks on the prior convictions, we synopsize burglary and related crimes in Maryland. The breaking and entering of a dwelling house of another by night with the intent to commit a felony is the felony of burglary under Maryland common law. See Reagan v. State, 4 Md.App. 590 , 244 A.2d 623 (1968).

The penalty, as set by § 29, is up to twenty years. Theft of property or services of the value of $300 or more is a felony and, if the value is less than $300, a misdemeanor. § 342(f). Common law burglary has been enlarged by § 30(a) to include in the felony of statutory burglary an intent to steal goods of less than $300. 2 Daytime housebreaking is proscribed by § 30(b) in the following terms: Any person ... who shall be convicted of the crime of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony, and upon conviction thereof, shall be sentenced to the penitentiary for not more than ten years. A As to the convictions before Judge Hargrove in 1981, the State demonstrated through criminal informations and docket entries that Davis had pleaded guilty to the third counts in both informations charging that Davis, on a specified date and at a specified place unlawfully did break the dwelling house of the said Complainant, at the aforesaid location, with intent to steal ... contrary to the form of the Act of Assembly in such case made and provided ...

(Art. 27, Sec. 30b). ⁶¹⁸ The first counts of the informations charged that Davis had “unlawfully committed burglary, in the night time.” Davis submits that count III did not charge any crime because it failed expressly to state that the breaking had occurred in the daytime. Relying on Ayre v. State, 291 Md. 155 , 433 A.2d 1150 (1981), Davis argues that the alleged defect is jurisdictional so that the convictions before Judge Hargrove cannot qualify for § 643B purposes. The Court of Special Appeals held that the time of day of the offense is not an element of the crime under § 30(b), but merely distinguishes it from burglary. There is no jurisdictional defect.

In Williams v. State, 302 Md. 787 , 490 A.2d 1277 (1985), we reviewed the Ayre line of cases and we emphasized that every criminal charge must, first, characterize the crime; and, second, it must provide such description of the criminal act alleged to have been committed as will inform the accused of the specific conduct with which he is charged, thereby enabling him to defend against the accusation and avoid a second prosecution for the same criminal offense. [Id. at 791, 490 A.2d at 1279 .] These fundamentals were satisfied in the informations before Judge Hargrove. Count I, the form of burglary indictment spelled out in § 31, is legally sufficient to charge either common law or statutory burglary. See Reagan v. State, supra. Even if we assume, arguendo, that an averment of breaking in the daytime is an element of the crime under § 30(b), an element may be implied.

See Jones v. State, 303 Md. 323 , 493 A.2d 1062 (1985); Williams v. State, supra. Count III, construed within the information as a whole and in comparison to count I, charges commission of the crime proscribed by § 30(b); otherwise, count III would be surplusage. If Davis had stood trial before Judge Hargrove and had been acquitted on all counts of the informations, and if the State thereafter had attempted to charge Davis for the same breaking by specifying that it was in the daytime, it is clear that that later charging document would be subject to dismissal on double jeopardy ⁶¹⁹ grounds. Moreover, count III parenthetically advised that § 30(b) was the Act of Assembly to which the breaking was contrary.

B With respect to the conviction before Judge Raine, Davis submits (1) that the State failed to prove that the conviction was for a crime of violence and (2) that his guilty plea was not knowing and voluntary. 1 The record available concerning the conviction before Judge Raine consists of the docket entries and the transcript of arraignment, but does not include the charging document. Davis was represented by counsel who had represented Davis before Judge Byrnes in Baltimore City. There were eleven cases pending against Davis in Baltimore County and the State elected to proceed with No. 29854. After determining that Davis and his counsel had received a copy of the charges, Judge Raine described them as follows: 29854 says that on October 23, 1965 you broke into the dwelling house of Margaret E. and Raymond Lee Grace, whose address is given as 2523 Windsor Road.

It’s charged in the second count that you committed the crime of grand larceny by stealing a masonic ring with diamond worth $300, a woman’s imitation white gold ring worth a dollar, a zircon ring worth $50, and $836 in cash. The fourth count charges receiving stolen goods, describing those same items, and the third count charges breaking and entry of that dwelling house with the intent to steal goods of any value. We interpret that description to mean that count I charged daytime housebreaking (§ 30(b)) and count III charged statutory burglary (§ 30(a)). 3 Davis entered a gen ⁶²⁰ eral plea of guilty. During Judge Raine’s examination of Davis, the latter said that he understood he could get twenty years as a result of his guilty plea.

After the prosecutor’s statement of facts concerning the offense, the following colloquy took place: THE COURT: Entry was gained by breaking a basement door in the daytime, Mr. [State’s Attorney]? [STATE’S ATTORNEY]: Well, it was between the hours of 7:30 a.m. and 10:15 p.m. The exact time— THE COURT: Presumably in the daytime. Is that the story? DREXEL 0.

DAVIS: Yes, sir. THE COURT: This man is now under sentence from Judge Joseph Byrnes in Baltimore City. [STATE’S ATTORNEY]: Baltimore City. THE COURT: Well, Judge Byrnes is a man of very excellent judgment. The crimes for which he was convicted and sentenced by Judge Byrnes, ... did they happen about the time of these? [DEFENSE COUNSEL]: Yes, sir.

They were all a series or pattern within the series. The ones for which Judge Byrnes sentenced him actually happened a few weeks prior to the one that he’s pleaded guilty to today, and the others that are here today. THE COURT: How long a span of time did these crimes encompass? [DEFENSE COUNSEL]: Several months, sir. Prior to that time he had worked steady, not having missed a day of that work for a firm in East Baltimore.

He had been in trouble when he was younger with the law as an accessory to a burglary, but for a period of some five to seven years, no trouble at all. THE COURT: And then all of a sudden— ⁶²¹ [DEFENSE COUNSEL]: Went on a rash of burglaries and— THE COURT: All of a sudden in the fall of ’65 it’s a rash of burglaries. How many cases was he involved in in Baltimore City? [DEFENSE COUNSEL]: Ten. Judge Raine sentenced Davis to “one sentence of fifteen years” to the Maryland House of Correction commencing April 20,1966 “so it will be exactly coincidental and concurrent with the sentence imposed by Judge Byrnes.” The question is whether this sentence was for a § 643B crime of violence.

For Davis to prevail we would have to conclude that Davis was sentenced for larceny or receiving and not for burglary or daytime housebreaking. The trial judge concluded that Davis had been sentenced for statutory burglary based on the single sentence of fifteen years, inasmuch as statutory burglary carried up to twenty years under § 30(a). Statutory burglary is a crime of violence. On the other hand Judge Raine commented that the breaking was “presumably” in the daytime.

Daytime housebreaking was charged in count I. Although a fifteen year sentence was excessive in relation to the ten year maximum for statutory housebreaking, that excess made no practical difference at the time because Judge Raine did not sentence Davis for any period in addition to the incarceration previously imposed by Judge Byrnes. Nor is it presently material that a fifteen year sentence for housebreaking was excessive. What is presently material is that daytime housebreaking is a § 643B crime of violence. The transcript of the sentencing does not support an interpretation that Judge Raine sentenced Davis for either larceny or receiving. 4 The colloquy between court and ⁶²² defense counsel characterized Davis’s crimes in Baltimore City and in Baltimore County as a “rash of burglaries” which were “all a series or pattern within the series.” At the time not even the defense viewed the sentencing simply to be for theft. 2 Davis further submits that the conviction before Judge Raine cannot be a § 643B predicate because the transcript does not affirmatively reflect that the court advised him of his rights to confrontation and against compulsory self-incrimination.

There is no indication that Davis sought either direct appellate or post-conviction review. Davis’s position apparently is that the State’s proof, i.e., the transcript of the taking of the guilty plea and sentencing, demonstrates on its face that the plea was not knowing and voluntary under Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969). In State v. Priet, 289 Md. 267, 276 , 424 A.2d 349, 353 (1981), we concluded that Boykin did not, as a matter of due process, require trial judges to enumerate and obtain a specific on-the-record waiver of the[ ] constitutional rights [against compulsory incrimination, to have a jury, and to confront accusers] “or go through any particular litany, before accepting a defendant’s guilty plea.” [Davis v. State, 278 Md. 103, 114 , 361 A.2d 113, 119 (1976).] We said [in Davis ] that Boykin required only that the record disclose that the plea was entered voluntarily and understanding^ in order to accord with due process requirements. Here, Davis was represented by counsel, who, in the era before overt plea bargaining, got eleven cases against Davis in Baltimore County resolved without Davis’s getting any additional prison time.

Earlier, with the assistance of counsel, Davis pleaded guilty in four cases before Judge Byrnes. Davis was twenty-eight years old at his 1966 sentencings. According to the probation report in the bl ⁶²³ stant matter Davis’s experience with the criminal justice system prior to his guilty plea before Judge Byrnes was as follows: Date of Offense Place of Offense Offense Date and Disposition 12/5/53 Balto, MD Larceny-3d count—4 cases Maximum 4 years— paroled 3/28/55 8/15/57 Balto, MD Burglary (2) 9/17/57 Not more than 1 year from 9/15/57; Maximum 2 years 4/21/58 Balto, MD Larceny— 4 counts NMT 4 years 9/19/60 Balto, MD Burglary Guilty 3 years MAC from 11/17/60 5/16/63 Balto, MD RSG Probation Before Verdict The record does not demonstrate that Davis’s guilty plea before Judge Raine was involuntary. II In this part we consider the eighth amendment dis-proportionality argument.

The legal positions of the parties present conflicting analyses of the effect of Helm on prior Supreme Court holdings, and particularly on Rummel v. Estelle, 445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980). Rummel had been sentenced to life imprisonment under the Texas recidivist statute upon conviction of obtaining $120.75 by false pretenses, his third felony. He had previously been convicted of obtaining $80 by fraudulent use of a credit card and of passing a forged check in the amount of ⁶²⁴ $28.36. The Court held (5-4) that the sentence was constitutional.

Writing for the dissenters Justice Powell said that the eighth amendment included a proportionality principle, the violation of which could be determined by objective factors including “(i) the nature of the offense ... (ii) the sentence imposed for commission of the same crime in other jurisdictions ... and (iii) the sentence imposed upon other criminals in the same jurisdiction.” Rummel v. Estelle, supra, 445 U.S. at 295 , 100 S.Ct. at 1150 . In order to demonstrate that courts “can identify and apply objective criteria that reflect constitutional standards of punishment and minimize the risk of judicial subjectivity,” the dissent pointed out that its suggested objective factors had been applied in a line of decisions in the United States Court of Appeals for the Fourth Circuit led by Hart v. Coiner, 483 F.2d 136 (1973), cert. denied, 415 U.S. 983 , 94 S.Ct. 1577 , 39 L.Ed.2d 881 (1974). Rummel v. Estelle, supra, 445 U.S. at 304 , 100 S.Ct. at 1154-55 .

One of the Hart v. Coiner line referred to in the Rummel dissent was Davis v. Davis, 601 F.2d 153 (4th Cir.1979) (Davis I). Davis had been sentenced in Virginia by a jury to forty years imprisonment for possession of less than nine ounces of marijuana. The Fourth Circuit in Davis I held that sentence to be unconstitutional. The Supreme Court vacated the judgment in Davis I and remanded for reconsideration in light of Rummel .

In Davis v. Davis, 646 F.2d 123 (1981) (Davis II) the Fourth Circuit, by an equally divided vote, left intact the District Court judgment which had vacated the state sentence. Davis II reached the Supreme Court sub nom. Hutto v. Davis, 454 U.S. 370 , 102 S.Ct. 703 , 70 L.Ed.2d 556 (1982). In a per curiam opinion the Court held the Virginia sentence was constitutional, with three justices, speaking through Justice Brennan, dissenting.

The Court described its holding in Rummel , saying: [W]e distinguished between punishments—such as the death penalty—which by their very nature differ from all other forms of conventionally accepted punishment, and ⁶²⁵ punishments which differ from others only in duration. This distinction was based upon two factors. First, this “Court’s Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices.” [445 U.S.] at 275 [ 100 S.Ct. at 1140 ]. And second, the excessiveness of one prison term as compared to another is invariably a subjective determination, there being no clear way to make “any constitutional distinction between one term of years and a shorter or longer term of years.” Ibid.

Thus, we concluded that “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, ... the length of the sentence actually imposed is purely a matter of legislative prerogative.” [445 U.S.] at 274 [101 S.Ct. at 1139]. Accordingly, we held that Rummel’s life sentence did not violate the constitutional ban on cruel and unusual punishment. [Hutto v. Davis, supra, 454 U.S. at 373 , 102 S.Ct. at 705 .] The dissenters in Hutto accused the majority of overstating the holding in Rummel and of using a per curiam opinion to decide a substantial constitutional issue. Id. at 382-83 , 102 S.Ct. at 710 . In the term immediately following Hutto, Helm was decided by a 5-4 vote.

Helm had been sentenced to life imprisonment without parole under the South Dakota recidivist statute which required four felony convictions. Helm had been convicted in 1964, 1966, and 1969 of third degree burglary; in 1972 of obtaining money under false pretenses; in 1973 of grand larceny; and in 1975 of driving while intoxicated for the third time. In 1979 life without parole was imposed when Helm was convicted of uttering a “no account” check for $100. The Court, through Justice Powell, stated the principle to be that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.

Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily ⁶²⁶ possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. [660], 667, [ 82 S.Ct. 1417, 1420-21 , 8 L.Ed.2d 758 ] a single day in prison may be unconstitutional in some circumstances. [Solem v. Helm, supra, 463 U.S. at 290 , 103 S.Ct. at 3010 (footnote omitted).] Applying the “objective” factors articulated in his dissent in Rummel , Justice Powell for the Helm majority called passing a $100 “no account” check “ ‘one of the most passive felonies a person could commit.’ ” Id. at 296 , 103 S.Ct. at 3012 (quoting State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting)). Helm’s “prior offenses, although classified as felonies, were all relatively minor,” said the Court, and “[a]ll were nonviolent and none was a crime against a person.” Solem v. Helm, supra, 463 U.S. at 296-97 , 103 S.Ct. at 3013 .

In a footnote the Court explained: As suggested at oral argument, the third-degree burglary statute covered entering a building with the intent to steal a loaf of bread____ It appears that the grand larceny statute would have covered the theft of a chicken. [Id. at 297 n. 23, 103 S.Ct. at 3013 n. 23.] The South Dakota recidivist statute “authorized life imprisonment after three prior convictions, regardless of the crimes.” Id. at 298 , 103 S.Ct. at 3014 . It appeared that “ ‘Helm could have received a life sentence without parole for his offense in only one other state, Nevada.’ ” Id. at 299 , 103 S.Ct. at 3014 (quoting Helm v. Solem, 684 F.2d 582, 586 (8th Cir.1982)). The Court further concluded “that the South Dakota commutation system [was] fundamentally different from the [Texas] parole system” in Rummel. 463 U.S. at 300 , 103 S.Ct. at 3015 . “Parole is a regular part of the rehabilitative process,” id., while “[t]he possibility of commutation is nothing more than a hope for ‘an ad hoc ⁶²⁷ exercise of clemency.’ ” Id. at 303 , 103 S.Ct. at 3016 . The Court noted that the liberal policy of good time credits in Texas permitted one serving a life sentence there to become eligible for parole in as little as ten years but that in South Dakota no life sentence had been commuted in over eight years. 5 Id. at 302 , 103 S.Ct. at 3016 .

Four justices dissented for whom Chief Justice Burger wrote. The majority, they said, had ignored Rummel which taught that “the Eighth Amendment did not authorize courts to review sentences of imprisonment to determine whether they were ‘proportional’ to the crime,” id. at 307 , 103 S.Ct. at 3018 , and which had “categorically rejected the very analysis adopted by the” majority. Id. at 308 , 103 S.Ct. at 3019 . Footnotes in the majority opinion address the dissenters’ criticism.

The Helm holding was not inconsistent with Rummel because Rummel was eligible for a reasonably early