State v. Glass

BELL, C.J. The issue this case presents for resolution is whether defendants convicted of violating Maryland Code (1957, 1996 Repl. Volume, 2001 Cum.Supp.) Article 27, § 291A, 1 are eligible to receive the benefit of probation before judgment 2 pursuant to Maryland Code (2002) § 6-220(d)(2) of the Criminal Procedure ⁴⁰⁴ Article. 3 The trial court, the Circuit Court for Baltimore County, which imposed the disposition, and, subsequently, on appeal, the Court of Special Appeals, concluded that the defendants were, in fact, eligible to receive probation before judgment. We shall affirm. I It is undisputed that the respondents, Benjamin Glass and Timothy Glass, (“the defendants”) were convicted in the mid-1980’s of felonies under the Maryland controlled dangerous substance laws and that they subsequently were convicted of possessing, in September 2001, firearms in violation of Article 27, § 291A.

At sentencing, the defendants requested a probation before judgment disposition, pursuant to § 6-220(d)(2). The State, objecting to that disposition, argued that the defendants were ineligible for probation before judgment, the § 291A conviction being a “second or subsequent controlled dangerous substance crime.” It reasoned: ⁴⁰⁵ “Your Honor, my understanding is that ... 291 A, because it is under the controlled dangerous substance section, that qualifies into those-that range of sections, counts as a controlled dangerous violations because it is a prior conviction. Because of a prior conviction, [§ 291A] falls under the purview of that section, thus prohibiting a probation before judgment.” The trial court disagreed. It sentenced both defendants to probation before judgment, waived supervision, and ordered the defendants to pay court costs.

The State timely noted an appeal to the Court of Special Appeals, and, in addition, filed a motion to correct an illegal sentence, which was denied after the appeal was noted. 4 In an unreported opinion, the intermediate appellate court held that defendants convicted of violating Article 27, § 291A are nevertheless eligible to receive a probation before judgment disposition. This is so, that court reasoned, because “a firearm crime under Art. 27, § 291A that does not have as a component, conduct that involves a controlled dangerous substance ... is not a controlled dangerous substance crime. The ordinary and natural meaning [of] ‘controlled dangerous substance ⁴⁰⁶ crime’ does not, in our opinion, include firearm crimes. Section 291A, therefore, only makes firearm possession a derivative crime of a prior controlled dangerous substance crime.” In a footnote, the court referenced Maryland Code (2002) § 5-101(f) of the Criminal Law Article, the successor, without substantive change, to Maryland Code (1957, 1996 Repl.

Volume) Article 27, § 277(f) and (v), which defines “controlled dangerous substance” as follows: “(f)(1) ‘Controlled dangerous substance’ means: (i) a drug or substance listed in Schedule I through Schedule V; or “(ii) an immediate precursor to a drug or substance listed in Schedule I through Schedule V that: “1. by regulation the Department designates as being the principal compound commonly used or produced primarily for use to manufacture a drug or substance listed in Schedule I through Schedule V; “2. is an immediate chemical intermediary used or likely to be used to manufacture a drug or substance listed in Schedule I through Schedule V; and “3. must be controlled to prevent or limit the manufacture of a drug or substance listed in Schedule I through Schedule V. “(2) ‘Controlled dangerous substance’ does not include distilled spirits, wine, malt beverages, or tobacco.” The court also made clear that the decision whether to grant probation before judgment is solely within the discretion of the trial court. We granted the State’s petition for writ of certiorari. State v. Glass, 376 Md. 543 , 831 A.2d 3 (2003). II Both sides agree that § 6-220(d)(2) is facially unambiguous.

From that conclusion, however, they draw different inferences and, thus, reach different interpretations of the statute. The State proffers that what § 6-220(d)(2) clearly proscribes is a ⁴⁰⁷ probation before judgment disposition when there have been multiple convictions of controlled dangerous substance crimes, the second or subsequent one being preclusive of that disposition. That statute, it submits, specifies clearly the crimes to which the preclusion applies, those enumerated in sections “276 through 303” of Article 27. Continuing, the State asserts that the crime of which the defendants were convicted, possessing a firearm after conviction of a felony, being codified, at the time, at § 291A, “is included in the category of crimes for which probation before judgment is prohibited, i.e., Sections 276 through 303.” The State concludes: “By its plain language, this statute precluded a disposition of probation before judgment where, as here, the second crime is a violation of Article 27, Section 291 A.” The State rejects the rationale used by the trial court to justify imposing the probation before judgment disposition, that § 291A, prohibiting felons from possessing firearms is “different” from the controlled dangerous substance crimes specified in § 6-220(d)(2).

It points out that included in the enumerated range, §§ 276-303, are, in addition to statutes that define crimes, statutes that do not, but rather regulate the persons and businesses handling controlled dangerous substances, i.e., § 294, governing inspections of factories and warehouses, § 297, addressing forfeiture of personal and real property, and § 298A, involving notification of licensing authorities when a person holding certain licenses is convicted of a controlled dangerous substance offense. Therefore, the State concludes: “Section 291A was included within the controlled dangerous substance’s subheading because it defined a crime and because it applied to a person ‘convicted of [ ] [a] felony under this subheading’ (or equivalent offense from out-of-state); the subheading is ‘Health — Controlled Dangerous Substances.’ “ It is also important, the State believes, that § 6-220’s prohibition of probation before judgment for repeat felony convictions of controlled dangerous substance crimes was enacted prior to the enactment of § 291A, thus pre-dating the ⁴⁰⁸ creation of that crime. Prior to its amendment in 1990, see 1990 Md. Laws, ch. 410, § 6-220’s predecessor, Article 27, § 641, identified the second or subsequent controlled dangerous substance offense to which it applied as that “defined in Section 298.” The amendment broadened the objects of the prohibition to include a second or subsequent controlled dangerous offense “under Sections 276 through 308 of this Article.” Section 291A, the State points out, was not enacted until 1991, “FOR the purpose of prohibiting a person convicted of certain controlled dangerous substance felonies or conspiracy or attempt to commit certain controlled dangerous substance felonies from possessing, owning, carrying, or transporting a firearm[.]” See 1991 Md. Laws, ch. 613. From this chronology, the State maintains: “While the bill file contains no explicit reference to an intent to limit dispositions of probation before judgment, it is clear that the new crime was designated Article 27, Section 291A before the bill was passed....

This Court may presume that the Maryland General Assembly acted with knowledge of its prior legislation. State v. Bricker, 321 Md. 86, 93 [, 581 A.2d 9, 14 ] (1990); Cicoria v. State, 332 Md. 21, 43 [, 629 A.2d 742, 752 ] (1993).” (Citing “Mark Up” of House Bill 978, prepared after second reading, contained in bill file for 1991 House Bill 978). As indicated, the defendants also argue that § 6-220(d)(2) is clear and unambiguous. They reach the opposite conclusion to that reached by the State, however, that § 6-220(d)(2) does not prohibit a probation before judgment disposition to one convicted of a violation of § 291A, after having been convicted of a felony controlled dangerous substance crime.

Focusing on the words, “controlled dangerous substance crime,” the defendants assert that “[t]he plain language of the statute clearly indicates that it is intended only to apply to those crimes under Title 5 of the Criminal Law Article which are crimes involving controlled dangerous substances.... ” The interpretation urged by the State, that the prohibition applies to every crime codified in Title 5, whether a controlled dangerous substance crime or not, would, they submit, render the ⁴⁰⁹ words, “controlled dangerous substance crime,” meaningless and mere surplusage, thus violating a cardinal canon of statutory construction. Noting that the crime of possessing a firearm after conviction of a felony does not require the use, sale or possession of a controlled dangerous substance, and can be committed without ever coming into contact with any such substance, the defendants conclude that their convictions of § 291A were not second or subsequent controlled dangerous substance crimes.

III

The issue presented by this case is, as the parties and the Court of Special Appeals recognize, one of statutory interpretation. Our task, then, is to determine the Legislature’s intent in enacting § 6—220(d)(2) and, more specifically, whether this subsection precludes the granting of probation before judgment to defendants who have been convicted of a felony under the controlled dangerous substance subheading and subsequently are convicted, pursuant to Art. 27, § 291A, of