State v. Shilling

GILBERT, Chief Judge. A judge in the Circuit Court for Carroll County on successive days imposed probation before judgment in different cases on two persons charged with driving while intoxicated, a violation of Md.Transp.Code Ann. § 21-902(a). For each of the two accused, it was the second violation of § 21-902(a) or (b) within a four year time span. Each defendant had submitted under an agreed statement of facts, and each was found guilty of “operating a motor vehicle while intoxicated.” Md.Ann.Code art. 27, § 641(a)(2) provides: “Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a second or subsequent violation ²³⁶ 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 supplied.) The trial court, after observing that the defendants had been previously placed on probation for similar offenses within the time delineated in the statute, nevertheless imposed probation before judgment. At the disposition of David Wayne Lewis, the second of the two offenders, the trial judge commented: “Course you realize, you know, if the State decides to appeal, ... [this] will be reversed.” Patently, the State did appeal. We conclude that the judge’s prophecy was right, but his judgment was wrong. State’s Right to Appeal Before addressing the applicability of art. 27, § 641 to the facts of the case, we shall first surmount the hurdle Jeffrey Todd Shilling, one of the appellees and a beneficiary of the trial judge’s largess, has interposed—a motion to dismiss the appeal.

Shilling argues that, because his first offense was for violating Transp. Art. § 21-902(6)—driving while under the influence of alcohol—as distinguished from § 21-902(a)—driving while intoxicated, he did not commit a second violation of either a or b but rather a and b. That legal nicety, Shilling contends, precludes the automatic application of the mandatory sentence required by Md.Ann. Code art. 27, § 641(a)(2). There, as we have seen, it is declared that “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.” (Emphasis supplied.) The italicized phrase “may not” has a “mandatory negative effect.” Md.Ann. Code art. 2, § 26.

Whenever a defendant falls within the ambit of Md.Ann.Code art. 27, § 641(a)(2), the trial court must sentence that defendant, and it is devoid of authority ²³⁷ to enter probation before judgment. The Legislature has “specifically mandated” that probation before judgment is not an option available to the trial judge when Md.Ann.Code art. 27, § 641(a)(2) is applicable. The State avers that in the instant case the trial judge failed to impose a sentence, despite the pellucid command of Md.Ann.Code art. 27, § 641(a)(2). Instead the judge ignored the legislative mandate and imposed probation before judgment, irrespective of the fact that the statute proscribed that disposition.

The result is that the imposition of probation is a nullity since the court was devoid of authority to impose it. The “sentence” of probation before judgment was illegal, and the State may appeal to this Court pursuant to State ex rel. Sonner v. Shearin, 272 Md. 502, 526 , 325 A.2d 573 (1974), where it is said: “[The State may] appeal from the imposition of an illegal sentence, since the issue of the trial court’s jurisdiction is involved in the sense of whether it exceeded the powers vested in it by prescribing a penalty contrary to law. A lower court which thus exceeds its power must be bridled by [an appellate court].

Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error.” See also State v. Thurmond, 73 Md.App. 686 , 536 A.2d 128 (1988). Furthermore, the State may appeal under the authority of Cts. & Jud.Proc. Art. § 12-302(c)(2), which provides: “The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.” That is precisely what the State did in the