State v. Stewart

²⁸ RAKER, Judge. The Circuit Court for Calvert County held that twenty-five years imprisonment without the possibility of parole, the mandatory sentence under Maryland Code (1970, 1996 Repl. Vol., 2001 Supp.) Article 27, § 286(d) 1 was cruel and unusual as applied to Charles B. Stewart. The court sentenced Stewart to ten years without parole.

The State of Maryland appeals. In a cross-appeal, Stewart argues that, according to the rule announced in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the trial judge erred in denying him a jury trial on the issue of sentencing. We shall hold that the trial court erred in failing to impose the mandatory sentence and that Apprendi is inapplicable. I. Charles B. Stewart, appellee, was indicted by the Grand Jury for Calvert County for possession and distribution of crack cocaine.

After Stewart was convicted by a jury, the State argued that Stewart should-be sentenced as a subsequent offender under Article 27, § 286(d), which provides as follows: “(1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section ... shall be sentenced to imprisonment for the term allowed by law, but, in any event, not less than 25 years if the person previously: (i) Has served at least 1 term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation of this section or § 286A of this article; and (ii) Has been convicted twice, where the convictions do not arise from a single incident.... ” Id. The trial court found that the State proved beyond a reasonable doubt the predicate facts necessary to support the mandatory sentence under § 286(d). The court also found ²⁹ that the conviction in this case was Stewart’s third conviction for distribution of a controlled dangerous substance or possession with intent to distribute, and that Stewart served a term of confinement over 180 days following one of his prior convictions. In fact, the court observed that he had served three- and-a-half years in prison.

The court stated: “Therefore, having found that the State — the notice was done properly, the convictions were authenticated properly beyond a reasonable doubt, the Court is satisfied beyond a reasonable doubt that you served more than one hundred and eighty days after one of the two previous convictions. The Court is satisfied that the State has met their burden. And that their request to seek mandatory sentencing of twenty-five years without parole has been met.” Before the trial court imposed the sentence set out in § 286(d), defense counsel argued that the mandatory sentence was unconstitutional as applied to Stewart because “[t]here is nothing in this case to aggravate the nature of the distribution, no large quantity was involved. There was no violence, no weapons, none of that stuff, no large amounts of cash.

It simply involves the distribution of one hundred and fifty dollars worth of cocaine.” Defense counsel concluded that the sentence of twenty-five years without parole was grossly disproportionate to appellee’s crime and thus “cruel and unusual.” The State countered that the trial court lacked discretion to impose any sentence below the mandatory minimum sentence of twenty-five years without parole. The trial court agreed with defense counsel. The court stated: “I find . .. that [defense counsel’s] argument of cruel and unusual, and I’m sure he is shocked and astounded to hear me say it, that the argument of cruel and unusual punishment in this case based on these facts that I listened to as the Judge in your trial, and having been a prosecutor before and having been a Judge now for almost six years, and I hope a sense of fairness as to what is appropriate in cases, find that his argument, and it is a constitutional one, in this case I find that the statutory legislative scheme in your ³⁰ case, Mr. Stewart, and not in all others, but in your case under these facts, I find that the legislative scheme of requiring me to give you a twenty-five years sentence without parole would under these facts represent cruel and unusual punishment.” The State noted a timely appeal to the Court of Special Appeals, pursuant to Maryland Code (1957, 1998 Repl.Vol., 2001 Supp.) § 12-302(c)(2) of the Courts and Judicial Proceedings Article. 2 We granted certiorari on our own motion prior to consideration by that court. State v. Stewart, 365 Md. 266 , 778 A.2d 382 (2001).

II

Appellee argues that the trial court correctly found that under the facts of this case, the sentence mandated by § 286(d) was cruel and unusual punishment. More specifically, he claims that the mandatory sentence is unconstitutionally disproportionate to his crime. Appellee relies on the Eighth Amendment to the United States Constitution, 3 Article 25 of the Maryland Declaration of Rights, 4 and Article 16 of the Maryland Declaration of Rights. 5 The State argues that this Court has held that whenever the statutory requirements are met and notice given, a trial court ³¹ must impose the sentence prescribed in the mandatory sentencing statute. Thus, the State concludes that the trial court erred in declining to sentence appellee to the mandatory sentence under § 286(d): twenty-five years without parole.

We agree with the State. ³⁰ "The State may appeal from a final judgment if the State alleges that 1 the trial judge failed to impose the sentence specifically mandated by the Code.” ³¹ III. The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” 6 Similarly, Article 25 of the Maryland Declaration of Rights provides “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.” Finally, Article 16 of the Maryland Declaration of Rights provides “[tjhat sanguinary Laws ought to be avoided as far as is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.” The Eighth Amendment encompasses a narrow proportionality principle prohibiting “grossly disproportionate” sentences. Harmelin v. Michigan, 501 U.S. 957, 997 , 111 S.Ct. 2680, 2702 , 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). In Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983), the Supreme Court held a sentence of life imprisonment without the possibility of parole for a seven-time non-violent felony recidivist unconstitutionally disproportionate.

In so finding, the Court emphasized that successful challenges to the proportionality of a particular sentence are exceedingly rare. Id. at 289-90 , 103 S.Ct. at 3009 , 77 L.Ed.2d ³² 637. The Court stated that appellate courts’ proportionality review should be guided by objective criteria, including: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 292 , 103 S.Ct. at 3011 , 77 L.Ed.2d 637 . In Harmelin v. Michigan, the Supreme Court revisited its decision in Solem .

Justice Kennedy, concurring in the judgment, and writing for himself and three other justices, clarified that “the Eighth Amendment does not require strict proportionality between crime and sentence. Rather it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001 , 111 S.Ct. at 2705 , 115 L.Ed.2d 836 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. at 288 , 103 S.Ct. at 3008 , 77 L.Ed.2d 637 ). 7 Therefore, a detailed proportionality review based on the criteria set out in Solem is “appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispropor-tionality.” Harmelin, 501 U.S. at 1005 , 111 S.Ct. at 2707 , 115 L.Ed.2d 836 (Kennedy, J., concurring). 8 This Court, has found Justice Kennedy’s approach to be cohsistent with our holdings in State v. Davis, 310 Md. 611 , ³³ 530 A.2d 1223 (1987), and Minor v. State, 313 Md. 573 , 546 A.2d 1028 (1988). See State v. Bolden, 356 Md. 160, 166 , 737 A.2d 1086, 1089 (1999); Thomas v. State, 333 Md. 84, 94 , 634 A.2d 1, 6 (1993). In Thomas , we harmonized our conclusions concerning the breadth and depth of Eighth Amendment proportionality review with Justice Kennedy’s concurrence in Harmelin .

Judge McAuliffe, speaking for the court, stated: “In considering a proportionality challenge, a reviewing court must first determine whether the sentence appears to be grossly disproportionate. In so doing, the court should look to the seriousness of the conduct involved, the seriousness of any relevant past conduct as in the recidivist cases, any articulated purpose supporting the sentence, and the importance of deferring to the legislature and to the sentencing court.” Thomas, 333 Md. at 95 , 634 A.2d at 6 . We emphasized that “challenges based on proportionality will be seriously entertained only where the punishment is truly egregious.” Id. at 97 , 634 A.2d at 7 . We concluded as follows: “If these considerations do not lead to a suggestion of gross disproportionality, the review is at an end.

If the sentence does appear to be grossly disproportionate, the court should engage in a more detailed Solem,-type analysis.... In order to be unconstitutional, a punishment must be more than very harsh; it must be grossly disproportionate. This standard will not be easily met.” Id. at 95-96 , 634 A.2d at 6 . 9 Finally, we noted that the sentencing judge is “virtually always better informed of the ³⁴ particular circumstances.” Id. at 97 , 634 A.2d at 7 . The trial judge has the unique ability to find the facts and to evaluate the individuals before the court.

IV

Turning to the case before us, and applying the principles set out by the Supreme Court and the test laid out in Thomas , we conclude that the punishment of twenty-five years imprisonment without parole is not unconstitutionally disproportionate to the crime committed by appellee. A. Under Thomas , we look first at the seriousness of the defendant’s conduct. We consider the “specific facts of the case, not only as to the crime but also as to the criminal.” Thomas, 333 Md. at 96 , 634 A.2d at 7 . Appellee’s conviction in this case is for possession and distribution of 3.5 grams of cocaine, commonly referred to as an “eightball.” In Harmelin , Justice Kennedy summarized the danger created by illegal drugs as follows: “Possession, use, and distribution of illegal drugs represent one of the greatest problems affecting the health and welfare of our population.

Petitioner’s suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity. To the contrary, petitioner’s crime threatened to cause grave harm to society. Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at ³⁵ least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture.” Harmelin, 501 U.S. at 1002 , 111 S.Ct. at 2705-06 , 115 L.Ed.2d 836 (internal quotation marks and citations omitted). Appellee argues that his conduct is not serious enough to justify the punishment mandated by § 286(d) because he did not possess or distribute a large amount of drugs.

He contends that: “There is nothing in this case to aggravate the nature of distribution, no large quantity was involved. There was no violence, no weapons, none of that stuff, no large amounts of cash. It simply involves the distribution of one hundred and fifty dollars worth of cocaine.” The basic flaw in appellee’s argument is his failure to acknowledge that the gravity of this offense is aggravated by the fact that it is a repeat offense. 10 The Legislature has ³⁶ determined that recidivism in the arena of controlled dangerous substances poses a grave danger to society and justifies the imposition of longer sentences, including sentences without possibility of parole. Appellee also fails to recognize that this Court has upheld harsh punishments in cases involving small amounts of drugs.

In State v. Bolden, 356 Md. 160 , 737 A.2d 1086 (1999), we upheld consecutive prison sentences of 25 years and 32 years for a defendant who sold sixty dollars worth of crack cocaine to an undercover police officer. We reasoned as follows: “Applying the teachings of our prior cases, we hold that the consecutive sentences imposed ... were not grossly disproportionate in length to the crimes being punished. Each consecutive sentence was based upon a very serious crime, the distribution of crack cocaine. The sentences were imposed upon him as a recidivist who was guilty of prior violations of our controlled dangerous substance laws.

In imposing the sentences the trial judge based his decision upon the serious threat to the community posed by dealers in crack cocaine and Bolden’s escalating pattern of violations of the laws prohibiting the possession and distribution of controlled dangerous substances. The sentences imposed were within the maximum terms prescribed by the Legislature for the criminal conduct of which Bolden had been ' convicted. Under these circumstances an extended proportionality analysis directed by Solem v. Helm, is not required.” Bolden, 356 Md. at 168-69 , 737 A.2d at 1090 . As demonstrated by the cases above, the crime of possession of cocaine with intent to distribute is a serious crime that poses a significant threat to society.

Considered in the context of the factors discussed below, the fact that appellee did not sell a large quantity of drugs does not render his sentence unconstitutionally disproportionate. B. We now turn to appellee’s past crimes. Appellee has been convicted of distribution of a controlled substance, or posses ³⁷ sion with intent to distribute, on three separate occasions. He served three and a half years in prison before his most recent conviction.

These facts weigh heavily against a finding that the mandatory sentence under § 286(d) is grossly disproportionate to his crime. The Legislature has made it clear that