State v. Smoot

J. FREDERICK SHARER (Retired, Specially Assigned), J. Scott Smoot was indicted in the Circuit Court for Baltimore City for possession of a regulated firearm after having been previously convicted of a disqualifying crime, in violation of Md.Code (2003, 2010 Supp.) Public Safety (P.S.) § S-lSSfb). 1 He pleaded guilty to that offense, and the trial court afforded him probation before judgment. The trial court also imposed a two-year period of probation with “[m]inimal supervision.” The State filed a timely appeal and presents one question for our review, which we have distilled: ¹⁶² Did the trial court improperly fail to impose the mandatory five-year sentence and, instead, afford Smoot probation before judgment? We conclude that the trial court was without authority to afford probation before judgment upon Smoot’s plea of guilty to a violation of P.S. § 5-133. But, because Smoot relied on the trial court’s agreement to bind itself to the grant of the probation before judgment in exchange for his guilty plea, we vacate the plea and remand to the circuit court for a new trial.

FACTUAL BACKGROUND and PROCEEDINGS The facts underlying the charges against Smoot are not challenged, and are not relevant to the issues before us. Nonetheless, we present a summary to provide context. Smoot, then 41 years of age, was employed as a clerk in a convenience store on Washington Boulevard in Baltimore City. 2 He was observed, while on duty, by two Baltimore City Police officers to be in possession of a .40 caliber Glock handgun. The officers’ observations were casual, while they were customers in the store, not in the investigation of a complaint.

In response to the officers’ questions, he told them that the gun belonged to the store owner, that he did not have a “carry permit,” and that he kept the gun in his pocket while on duty. He later told the trial court that the store had been robbed several times. The owner conceded that the gun was his and that he, too, lacked a “carry permit.” At the start of the proceedings, the trial court commented that there had been “some fairly extensive conversations in chambers” concerning the case and that it had seen the written statement of facts prepared by the prosecutor. The Court stated that because Smoot was employed and had only a “recent '06 assault in the second degree, nothing since an earlier assault,” the court “was inclined to offer probation before judgment with two years probation.” The trial court ¹⁶³ recognized that this was “a little problematical because” P.S. § 5-133 “does call for a mandatory five-year without parole sentence.” Nonetheless, the court stated that it had reviewed the case law, read Md.Code (2008 RepLVol., 2010 Supp.), Criminal Procedure (C.P.) § 6-220, which allows for probation before judgment, considered the prosecutor’s objections, and concluded that “[tjhere is no prohibition against a PBJ [probation before judgment].” The court then stated: “So, ... if he [Smoot] entered the plea of guilty, I will accept it, and put it aside, and grant probation before judgment....” The prosecutor again objected.

The trial court explained that it did not believe that Smoot should be incarcerated and that Smoot “certainly should not be incarcerated for anything like five years without parole.” The court noted that Smoot was employed and that he had not possessed the regulated firearm while “on the street....” Rather, he had possessed it “in his place of business.” Thus, “from an equitable point of view,” the trial court believed that it was “doing the right thing.” After Smoot waived his trial rights, and the prosecutor presented the statement of facts in support of the guilty plea, the trial court found the evidence sufficient to find Smoot guilty of possession of a regulated firearm after having been convicted of a disqualifying crime. The trial court then granted Smoot probation before judgment with two year’s probation. DISCUSSION I. Was the trial court required to impose a minimum mandatory ñve-year sentence? We begin by setting forth the portions of the statutes that are fundamental to a resolution of the question before us.

Section 5-133 of the Public Safety Article provides in part: (b) Possession of regulated firearm prohibited. — A person may not possess a regulated firearm if the person: (1) has been convicted of a disqualifying crime: ¹⁶⁴ (c) Penalty ... (2) A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years, no part of which may be suspended. Section 6-220 of the Criminal Procedure Article provides in part: (b) In general. — (1) When a defendant pleads guilty or nolo contendere or is found guilty of a crime, a court may stay the entering of judgment, defer further proceedings, and place the defendant on probation subject to reasonable conditions if: (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea. (2) Subject to paragraphs (3) and (4) of this subsection, the conditions may include an order that the defendant: (i) pay a fíne or monetary penalty to the State or make restitution; or (ii) participate in a rehabilitation program, the parks program, or a voluntary hospital program.

(3) Before the court orders a fine, monetary penalty, or restitution, the defendant is entitled to notice and a hearing to determine the amount of the fine, monetary penalty, or restitution, what payment will be required, and how payment will be made. (4) Any fine or monetary penalty imposed as a condition of probation shall be within the amount set by law for a violation resulting in conviction. (5) As a condition of probation, the court may order a person to a term of custodial confinement or imprisonment. The State contends that the trial court’s grant of probation before judgment for Smoot’s possession of a regulated firearm does not constitute a permissible penalty for that offense.

The State argues further that the trial court’s grant of probation before judgment did not comport with the statutory ¹⁶⁵ requirements of P.S. § 5-133(c); therefore, the trial court’s impermissible sentence should be reversed and the case remanded for a resentencing. The State refers us to State v. Hannah, 307 Md. 390 , 514 A.2d 16 (1986), and its progeny in support of its position. Smoot responds that P.S. § 5-133 did not preclude the trial court from granting probation before judgment. According to Smoot, Hannah addressed a probation before judgment imposed under then Art. 27, § 36B which, in subsection (e)(3), expressly prohibited entry of a probation before judgment.

He also notes that all the other cases cited by the State address crimes other than firearm violations. While Smoot recognizes that P.S. § 5-133 requires the imposition of “imprisonment for not less than 5 years, no part of which may be suspended[,]” he asserts that it does not specifically preclude entry of a probation before judgment. He alleges that if entry of a probation before judgment is precluded, it leads to the untenable conclusion that every individual convicted under P.S. § 5-133 must serve five years’ imprisonment even if the trial court acknowledges that such a sentence would be inappropriate. In Hannah , the defendant pleaded guilty to common law robbery and use of a handgun in commission of a felony, in violation of then Art. 27, § 36B. 307 Md. at 392 , 514 A.2d 16 .

At sentencing, the trial court struck its finding of guilty on the handgun charge and placed Hannah on five years probation before judgment. Id. at 393, 514 A.2d 16 . The State appealed and asserted that the trial court was required to impose a minimum five-year sentence. Id. at 394 , 514 A.2d 16 .

The Court of Appeals agreed. Id. at 403 , 514 A.2d 16 . Under Art. 27, § 36B(d), the trial court was required to impose “a mandatory minimum penalty for a first offense ... for a term of not less than 5 nor more than 20 years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.” In addition, Art. 27, § 36B(e)(3) provided that “no court shall enter a judgment of probation ¹⁶⁶ before or without verdict with respect to any case arising under this subheading[.]” The Court of Appeals concluded: Hannah pled guilty to the use of a handgun in the commission of a felony, his first such offense. Under those circumstances Art. 27, § 36B(d)(l) specifies that “it is mandatory upon the court to impose no less than the minimum sentence of 5 years.” Hannah nevertheless says that this result does not obtain because it arises only “on conviction” of the handgun offense and the probation before judgment disposition of his handgun offense is not a “conviction.” This sophistry is demolished by § 36B(e).

Subsection (e) lists a variety of prohibited dispositions in handgun cases and completely dispels any notion that the minimum sentence requirement can be satisfied by any form of probation. In particular § 36B(e)(3) prohibits entry of “a judgment of probation before or without verdict,” a disposition in which there is no “conviction.” An illegal disposition cannot take this case out from under the operation of the handgun statute’s sentencing mínimums. Hannah, 307 Md. at 402 , 514 A.2d 16 . Although the Court of Appeals relied on subsection (e), an equivalent of which P.S. § 5-133 is lacking, in response to an argument from Hannah that subsection (e) did not specifically include probation before judgment as it refers to probation before or without verdict, the Court of Appeals wrote: [Wjhether or not Hannah’s probation before judgment violated the negative prohibitions of the handgun act concerning probation, the circuit court’s disposition violated the affirmative requirement of § 36B(d)(l) that a person who is guilty of a first offense under the handgun statute “be sentenced ... for a term of not less than 5 ... years, and it is mandatory upon the court to impose no less than the minimum sentence of 5 years.” Id. at 403, 514 A.2d 16 ; see also State v. Griswold, 374 Md. 184, 187-93 , 821 A.2d 430 (2003) (probation before judgment not permitted following defendant’s conviction for third degree sexual offense where victim was under the age of 14 because ¹⁶⁷ C.P. § 6-220(d)(3) expressly prohibited entry of probation before judgement for third degree sexual offense when victim was under the age of 16); State v. Green, 367 Md. 61 , 785 A.2d 1275 (2001) (circuit court erred in modifying defendant’s mandatory sentence as a repeat offender imposed under Art. 27, § 643B(c) to commitment to Department of Health and Mental Hygiene because § 643B(c) provided that the sentence was “mandatoryU” repeat violent offenders “shall” be sentenced as provided, and the courts may not suspend “all or part” of such sentences; nor did § 643B(c) make any reference to alternate sentencing or commitment pursuant to the Health-General Article); Shilling v. State, 320 Md. 288, 295-96 , 577 A.2d 83 (1990) (trial court erred in sentencing defendant to probation before judgment for driving while intoxicated because he had also received probation before judgment in a prior driving under the influence case and Art. 27, § 641(a)(2) provided 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[, which prohibits driving while intoxicated and driving while under the influence of alcohol,] if the second or subsequent violation occurred within five years of the previous violation.

A person is in violation of § 21-902(a) or (b) if that person receives probation under this section”; circuit court was required to impose a sentence). Directly on point is State v. Kennedy, 320 Md. 749 , 580 A.2d 193 (1990). There, Kennedy was convicted of escape under Art. 27, § 139, which stated in relevant part: If any individual who is legally detained in the State penitentiary or a jail, house of correction, reformatory, station house, or other place of confinement in this State or who is committed to the Alcohol and Drug Abuse Administration for examination or inpatient treatment escapes, the individual is guilty of a felony and on conviction by the circuit court for the county in which the escape takes place, is subject to confinement in the State penitentiary or a jail or house of correction for an additional period not exceeding 10 years. The sentence imposed under this subsection shall ¹⁶⁸ be consecutive to any sentence which was being served at the time of the escape, or any sentence which had been imposed but was not yet being served at the time of sentencing on the escape.

A sentence imposed under this subsection may not be suspended. [Emphasis added.] The trial court granted Kennedy a probation before judgment. Kennedy, 320 Md. at 751 , 580 A.2d 193 .' The State appealed. Id. at 752 , 580 A.2d 193 . This Court affirmed the trial court and upheld entry of the probation before judgment.

Id. The Court of Appeals reversed, holding that Art. 27, § 641, 3 which allowed the trial court to enter a probation before judgment, “applies to all persons found guilty of crimes except those who are subject to a mandatory prison sentence under a specific section of the [Maryland] Code such as § 139.” 320 Md. at 756, 580 A.2d 193 . The Court of Appeals explained: Section 641(a) is a general provision that applies to anyone found guilty of a crime; it authorizes probation before judgment. Section 139 is a specific provision that applies only to convicted escapees; it implicitly prohibits probation before judgment.

It is clear that when there is a conflict between general and specific provisions in the same statute or in two different statutes, the more specific is usually viewed as an exception to the general. 320 Md. at 755, 580 A.2d 193 (citations omitted). Here, as in Kennedy , two statutes must be construed in tandem. Section 6-220 of the Criminal Procedure Article, which allows for probation before judgment, is a general ¹⁶⁹ provision. Indeed, it applies to a broad range of individuals convicted of crimes.

Section 5-183 of the Public Safety Article, which requires that the sentence is mandatory and a minimum of five years, none of which may be suspended, applies to only that class of persons who have been convicted of a disqualifying crime and who possess a