State v. McGrath

WILNER, Judge. The appeal before us presents a question of statutory interpretation. Md.Ann. Code art. 27, § 641(a)(1)—at the time germane to this appeal—provided, in relevant part, that: “Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate.” Section 641(a)(2), however, precluded a court from entering such a disposition where the defendant, charged with driving while intoxicated (Md.Transp.Code Ann. § 21-902(a)) or driving while under the influence of alcohol (§ 21-902(b)), is found to have violated one of those statutes on an earlier occasion. In particular, § 641(a)(2) provided, in relevant part, that: ³¹³ “a court may not stay the entering of judgment and place a person on probation for a second or subsequent violation of § 21-902(a) or (b) of the Transportation Article if the second or subsequent violation occurred within 5 years of the previous violation.

A person is in violation of § 21-902(a) or (b) if that person receives probation under this section.” (Emphasis added.) 1 The question here is whether, in the context used in § 641(a)(2), “violation” refers to the actual transgression (and the date thereof) or the subsequent adjudication of or conviction for the transgression (and the date thereof). On the evening of February 21, 1987, Montgomery County police officers stopped appellee’s truck, formed the belief that appellee was intoxicated, and charged him with driving while intoxicated and driving under the influence of alcohol. On March 6, 1987, appellee was again stopped in Montgomery County, suspected of being intoxicated, and charged with driving while intoxicated and driving under the influence of alcohol. The February 21 charge was scheduled for trial in the District Court on April 10, 1987, but upon appellee’s request for a jury trial, it was removed to the Circuit Court for Montgomery County.

On June 8, 1987, the March 6 charge came to trial in the District Court; the court accepted appellee’s plea of guilty to driving under the influence of alcohol and, aware that the February 21 charge was still pending in the Circuit Court, denied appellee’s request for probation before judgment and entered a verdict of guilty. ³¹⁴ Appellee moved for reconsideration, and, on September 26, 1987, the District Court relented and entered probation before judgment. 2 In the meanwhile, appellee had attempted to plead guilty to the February 21 charge of driving under the influence, but the Circuit Court initially refused to accept the plea and instead set the case for trial. On March 10, 1988, however, a different Circuit Court judge accepted the plea. Two weeks later, over the State’s objection, the court granted probation before judgment in that case as well. Construing the word “violation,” as used in § 641(a)(2) as though it read “conviction” or “adjudication,” the State argues in this appeal that the court imposed an illegal sentence on the February 21 charge.

That charge, though the first made, was the second adjudicated and, for that reason, says the State, was not subject to disposition by probation before judgment. The issue is clear and easily stated: was the February 21 charge, adjudicated on March 10, 1988, the first or the second “violation”? The alpha and omega of all the various rules of statutory construction is to ascertain and carry out the legislative intent. Kaczorowski v. City of Baltimore, 309 Md. 505 , 525 A.2d 628 (1987).

If the language of the statute “is plain, unambiguous and has a definite and sensible meaning, that meaning is presumed to be that intended by the legislature.” Comm’n on Human Rel. v. Greenbelt Homes, 300 Md. 75, 83 , 475 A.2d 1192 (1984); see also Bledsoe v. Bledsoe, 294 Md. 183 , 448 A.2d 353 (1982). Normally, then, “[t]he search for legislative intent begins with an examination of the statute itself and if the language is of clear import, the inquiry ends.” Crawley v. ³¹⁵ General Motors Corp., 70 Md.App. 100, 105 , 519 A.2d 1348 , cert. denied 310 Md. 147 , 528 A.2d 473 (1987). Occasionally, where the statutory language is not “so clearly consistent with [the legislature’s] apparent purpose” or, if applied literally, would produce an absurd result, other “external manifestations” may be considered. Kaczorowski v. City of Baltimore, supra, 309 Md. at 515 , 525 A.2d 628 .

These include “a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal____” Id. An examination of the statutory language, especially in light of its legislative history and the language used in analogous enactments by the General Assembly, convinces us that the word “violation,” as used in § 641(a)(2), refers to the commission of the act proscribed by Transp. art., § 21-902(a) or (b) and not to the subsequent adjudication that such act was committed. In ascertaining which is first and which is “second or subsequent,” then, we look to the transgression itself and when it was committed and not to the order of adjudication. In its present form, § 641(a)(2) is in the nature of a subsequent offender/enhanced punishment statute; it denies a lenient disposition, otherwise allowable, to one who has previously violated the same law.

Interestingly, the bill that first enacted the statute did not start out as a subsequent offender provision. It would have instead exempted § 21-902(a) or (b) violations entirely from the provisions of § 641(a)(1). In its first reader form, the bill precluded probation before judgment “if the offense is for violation of § 21-902(a) or (b) of the Transportation Article.” See House Bill 161 (1982), 1982 Md. Laws, ch. 98. That was changed during the legislative process, however.

As enacted in 1982, § 641(a)(2) precluded application of § 641(a)(1) “for a second or subsequent finding of guilt of § 21-902(a) or (b)____” (Emphasis added.) ³¹⁶ The substitution of the phrase “finding of guilt” for “violation” was presumably deliberate, as it was part of the amendment converting the bill into a subsequent offender provision. Unfortunately, it created an ambiguity in the statute. Some judges apparently concluded that the term did not embrace probation before judgment and thus held that, if an earlier violation resulted in probation before judgment, the same disposition could be (and in some instances was) given with respect to the second violation, the theory being that there had been no prior “finding of guilt.” Although the Governor’s Office strongly disputed that proposition, calling attention to the fact that, under § 641(a)(1), probation before judgment could be entered only “after determination of guilt or acceptance of a nolo contendere plea,” it nevertheless concluded that the law should be clarified. The result was Senate Bill 515, introduced into the 1983 session as an Administration measure.

See testimony of then Lt. Governor (now Attorney General) Curran before the Senate Judicial Proceedings and House Judiciary Committees on SB 515 and its companion HB 887. The mechanism initially chosen by the Governor’s Office to make this clarification was to revert to the term “violation” in place of “finding of guilt" in § 641(a)(2). As Lt.

Governor Curran explained in his testimony, “In order to resolve the situation and clarify that a person who receives a probation before judgment for an alcohol offense, Senate Bill 515 and House Bill 887 substitute the word ‘violation’ for ‘finding of guilt.’ ” See also Committee Report of Senate Committee on Judicial Proceedings on SB 515, March 16, 1983. The Legislature, it seems, entertained some doubt as to whether the mere substitution of “violation” for “finding of guilt” would resolve the ambiguity, for, although it accepted that change, it also added a new sentence to the bill making clear that probation without judgment would suffice as a predicate prior offense. The new sentence reads: “A person is in violation of § 21-902(a) or (b) if that person receives probation under this section.” ³¹⁷ The 1983 bill had a second purpose as