State v. Stowe

BELL, Chief Judge. In Massey v. State, 320 Md. 605 , 579 A.2d 265 (1990), this Court considered, in the context of a prosecution for welfare perjury, the appropriate limitations period for misdemeanor prosecutions, and, in particular, those involving “penitentiary misdemeanors.” When that case was decided, the general statute of limitations for misdemeanors was contained in Md.Code (1974, 1989 RepLVol.), § 5-106 of the Courts and Judicial Proceedings Article. Pursuant to that section, except ⁴³⁹ as it otherwise provided, “a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.” Therefore, the statute of limitations for a misdemeanor was one year, unless another period of limitations was specifically provided or the misdemeanor was “made punishable by confinement in the penitentiary.” Id. at 611, 579 A.2d at 268 . 1 As this Court put it, “[misdemeanors punished by confinement in the penitentiary are excluded from the [one year limitation] provisions of this section of the statute, and are placed along with felonies.” Id., (quoting Schaumloeffel v. State, 102 Md. 470, 472 , 62 A. 803, 804 (1906) and citing Archer v. State, 145 Md. 128, 137-138 , 125 A. 744, 747 (1924) (noting that these misdemeanors are “class[ed] ... with felonies”). ⁴⁴⁰ Moreover, the Court noted that it was the fact that imprisonment in the penitentiary was statutorily authorized, rather than the sentence actually imposed, that determined whether limitations was unlimited or one year. Id. at 611-12, 579 A.2d at 268 , (citing, inter alia, Archer, 145 Md. at 136, 138 , 125 A. at 747-748 ).

Pursuant to (1957, 1985 Repl.Vol., 1989 Cum.Supp.), Art. 88 A, § 62(a), welfare perjury was defined by reference to the offense of perjury, and a person committing the offense, “upon conviction therefor is subject to the penalties provided by law for perjury.” Md.Code (1957, 1987 ReplVol.) Article 27, § 439 prescribed, as the penalty for perjury, “imprisonment in the jail or penitentiary for not more than ten years.” Consequently, the Court of Special Appeals, to which the State appealed the trial court’s dismissal of the welfare perjury charge against Massey, concluded that welfare perjury was a penitentiary misdemeanor and, for that reason, excluded from the one year limitation for misdemeanors generally. Massey, 320 Md. at 609 , 579 A.2d at 267 . And because there was not otherwise provided in § 5-106 a specified period of limitations applicable to that offense, a prosecution for welfare perjury was not subject to any limitations period. Id.

We granted Massey’s petition for writ of certiorari challenging the propriety of an unlimited period of limitations for welfare perjury when allegedly greater offenses arising out of the same acts were subject to a specified, and therefore shorter, limitations period. We added two questions, one of which addressed the meaning of the phrase, “not made punishable by confinement in the penitentiary by statute” in light of Article 27, § 690, governing the sentencing and confinement of persons convicted of crime. Id. at 609-10, 579 A.2d at 267 . As enacted by Ch. 556 of the Acts of 1916, Article 27, § 654, the predecessor of § 690, provided: “When any person is convicted, before any Circuit Court of any County, or the Criminal Court of Baltimore, of any crime ... punishable by any imprisonment whatsoever ... said Court may, in its discretion, sentence such person to ⁴⁴¹ imprisonment in jail or in the Maryland House of Correction or in the Maryland Penitentiary. “It is expressly provided, however, that nothing in this Section shall be construed to add to, alter or change the class of crimes, as they existed before this Act takes effect, with respect to the right of challenge or with respect to the fees in criminal cases, or to make any crime infamous, by reason of any sentence to the Maryland Penitentiary, or transfer thereto, which would not have been an infamous crime before this Act takes effect....” We explained that the first paragraph gave trial judges discretion in the sentencing of a defendant convicted of a crime for which imprisonment was an option, to specify the institution in which the defendant would be confined, thus, permitting a defendant convicted of a crime for which the statute specified confinement in the penitentiary, to be sentenced to imprisonment elsewhere.

Id. at 612, 579 A.2d at 268 . The second paragraph, the Court pointed out, indicated that the sentencing flexibility given the judges “should not affect the classification of crimes based upon the statutorily prescribed place of confinement,” id., and “was largely the reason for this Court’s holding in Archer v. State, supra, 145 Md. at 137 , 125 A. at 747 . In that case, the Court held that the 1916 statute was not intended to change the operation of Art. 57, § 11 [the predecessor of § 5 — 106(a)], concerning the periods of limitations for misdemeanor prosecutions.” Id. Specifically, the Court said ( 145 Md. at 137-38 , 125 A. at 747 ): “There is certainly nothing in either the titles or the bodies of the Acts of 1916 and 1918 to indicate that in passing those Acts the Legislature meant to practically repeal section 11 of article 57 of the Code, which would be the result of the construction contended for by the State.

On the contrary, it is perfectly obvious that its purpose was to create a new agency to deal with the State’s penal institutions, and to provide for the convenient shifting of convicts from one to the other without regard to the grade of the crime. “Section 654 expressly provides ⁴⁴² ‘that nothing in this section shall be construed to add to, alter or change the class of crimes as they existed before this act takes effect, with respect to the right of challenge or with respect to the fees in criminal cases, or to make any crime infamous by reason of any sentence to the Maryland Penitentiary, or transfer thereto, which would not have been an infamous crime before the act takes effect.’ “The words, ‘and punishable by any imprisonment whatsoever or by fine and imprisonment (other than imprisonment in default of fine)’ show that it was not intended to change the grade of any crime, but to leave that as it was already fixed by existing law or might be fixed by future legislation. “Article 57, section 11, in excepting from the amnesty given after one year to ordinary misdemeanors those punished by confinement in the penitentiary, clearly meant to class these with felonies; and in Schaumloeffel v. State, 102 Md. 470 , 62 A. 803 , that intention was recognized. But the provisions of section 654 of article 27 expressly negative the idea that that section was intended to ‘place along with felonies’ misdemeanors not so classed by the then existing law or by subsequent legislation.” Although there were amendments to § 654 over the years, and the section was renumbered § 690, the changes were rather minor and, in any event, the second paragraph remained unchanged. 320 Md. at 613 , 579 A.2d at 269 . A constant was “the concept of sentences to and confinement in specific state institutions. Id.

Major changes in § 690 occurred in 1967 with the passage of Ch. 695 of the Acts of 1967. Id. Section (b) of new § 690 provided: “(b) Notwithstanding any of the provisions of this Article or any other law to the contrary, on and after June 1, 1967, judges, in the sentencing of convicted persons (a) for any offense for which the provisions of this Article or any other law requires the imprisonment to be served at any one of those institutions enumerated in Section 689 of this Article ⁴⁴³ or (b) any offense for which prior to June 1, 1967, the sentence was made for whatever reason to one of those institutions in Section 689, shall in all such cases sentence such persons to the jurisdiction of the Department of Correction. All such persons shall be committed to the custody of the Commissioner of Correction and delivered to him for imprisonment.

Thereafter all such persons shall be held, confined in, assigned to or transferred to such of the institutions and facilities under the jurisdiction of the Department as the Department from time to time may order. “Any person sentenced prior to June 1, 1967 to any one of the institutions and facilities under the jurisdiction of the Department may, after such date, and not withstanding such sentence, be held, confined in, assigned to or transferred to such of these institutions and facilities as the Department may from time to time order.” In addition to limiting the length of sentences permitted to be made to the Department of Correction, the legislation amended sections of Article 27 relating to the Department of Correction by deleting references to the various state institutions and replacing them with “Jurisdiction of the Department of Correction,” “Department of Correction,” etc. Id at 614-15, 579 A.2d at 269-70 . Having repealed the second paragraph of former § 690, no similar language was included in the new section. Id. “[P]erhaps the most significant change,” id., was the enactment of new § 690(d), employing a commonly used drafting device to amend every statutory provision relating to the sentencing and confinement options. Id. at 615, 579 A.2d at 270 .

Pursuant to that section, “Whenever in this Article or any other law reference is made to the sentencing or confinement of prisoners to any of the institutions enumerated in Section 689, such reference shall after June 1, 1967, be construed to mean sentencing or confinement to the jurisdiction of the Department rather than to any particular institution or facility of the Department.” The Court described the effect of the legislation as follows: ⁴⁴⁴ “Ch. 695 repealed old Art. 27, § 690, and enacted an entirely new Art. 27, § 690. The new statute largely removed from judges a role in deciding where a person sentenced to imprisonment should be confined. Moreover, in place of the concept of a sentence to a particular state institution, or a confinement in a particular state institution, the new statute substituted the concepts of sentence to and confinement under ‘the jurisdiction of the Department of Correction’ or ‘the custody of the Commissioner of Correction.’ ” Id. at 614, 579 A.2d at 269 . Also: “The conclusion is inescapable that Ch. 695 of the Acts of 1967 effected a substantial change with respect to the appropriate period of limitations for misdemeanor prosecutions.

As previously discussed, under former Art. 57, § 11, and present § 5-106(a) of the Courts and Judicial Proceedings Article, a misdemeanor is subject to a one year limitations period unless it is ‘punishable by confinement in the penitentiary by statute.’ After Ch. 695 of the Acts of 1967 became effective on June 1, 1967, no misdemeanors were ‘punishable by confinement in the penitentiary by statute.’ Although persons could and still can be confined in the penitentiary as a matter of fact, the sentence and confinement ‘by statute’ was to the ‘jurisdiction of the Department of Correction’ after June 1, 1967. This was the thrust of Ch. 695 as a whole. More importantly, new Art. 27, § 690(d), now § 690(e), had the effect of amending every statute referring ‘to the sentencing ... of prisoners to’ the penitentiary and substituting for ‘the penitentiary’ the words ‘jurisdiction of the Department of Correction.’ ” Id. at 617, 579 A.2d at 271 . The State argued that the limitations statute and § 690 serve different and distinct functions, the former dealing with the time for initiating a prosecution and the latter with sentencing and confinement.

We rejected that argument, noting their significant interrelationship in one respect: ⁴⁴⁵ “The operation of the exception to the one year period of limitations for misdemeanor prosecutions, contained in § 5-106(a), is entirely dependent upon the sentencing provisions in criminal statutes. There is no statute, and never has been one, classifying offenses as ‘penitentiary misdemeanors’ for limitations purposes, which is independent of the statutory sentencing provisions associated with particular offenses.” Id. at 618, 579 A.2d at 271 . The Court held that welfare perjury, like perjury, also a misdemeanor, has no specific limitations period and, therefore, is subject to the one year period of limitations prescribed by § 5-106. Id. at 621, 579 A.2d at 273 .

We explained: “The statutory provision concerning perjury, as presently set forth in Art. 27, § 439, of the 1957 edition of the Annotated Code of Maryland, literally reads that one convicted of perjury is subject ‘to imprisonment in the ... penitentiary for not more than ten years.’ If that codified provision had literally read that one convicted of perjury is subject ‘to imprisonment ... under the jurisdiction of the Division of Correction for not more than ten years,’ this case would likely not be here. It is doubtful that the State would have appealed from the circuit court’s dismissal of the welfare perjury charges. Nevertheless, as a matter of law, the statute punishing perjury does provide that one convicted of the offense is subject ‘to imprisonment ... under the jurisdiction of the Division of Correction for not more than ten years.’ The former reference to the “penitentiary” is not simply unamended language which has become obsolete for sentencing purposes. Rather, the word ‘penitentiary’ has been amended out of the statute.

Art. 27, § 690(e), formerly § 690(d), states that ‘[wjhenever in this article or any other law reference is made to the sentencing or confinement of prisoners to [the penitentiary] ..., such reference shall be construed to mean sentencing or confinement to the jurisdiction of the Division [of Correction]----’ As previously discussed, this is a drafting technique regularly used by the General Assembly to change statutes. Re ⁴⁴⁶ fusal to give effect to this drafting technique could have grave consequences in the application of a multitude of statutory provisions.” Id. at 620-21, 579 A.2d at 272-73 . The General Assembly at its 1991 session, being dissatisfied with the Court’s interpretation of its action in amending the provisions pertaining to the sentencing and confinement of persons convicted of crimes, enacted Ch. 371 Acts 1991, “[for] the purpose of ... establishing that notwithstanding Article 27, § 690(e) of the Code or the decision of the court in Massey v. State, 320 Md. 605 , 579 A.2d 265 (1990), if a statute provides that a misdemeanor is punishable by imprisonment in the penitentiary, the State may institute a prosecution for the offense at any time.” Section 2 of that Chapter, provided that “there is no statute of limitations for a misdemeanor punishable by imprisonment in the penitentiary, notwithstanding any holding or dictum to the contrary in Massey v. State, 320 Md. 605 , 579 A.2d 265 (1990).” To accomplish that result, § 1 of Chapter 371 repealed each of the statutes which Massey said had effectively been amended to excise the word “penitentiary” and re-enacted each of them with the word “penitentiary” put back in. It also provided that “this Act shall take effect July 1,1991.” I. David Erwin Stowe, the appellee, on March 13, 2000, was charged, pursuant to Maryland Code (1957, 1998 Repl.Vol.), Article 27,'§ 554, 2 with one count of unnatural and perverted ⁴⁴⁷ sexual practices. 3 He moved to dismiss the criminal information 4 arguing that it “is barred by the Statute of Limitations.” The trial court granted the motion and dismissed the criminal information, ruling that, the crime charged having occurred over forty years ago, its prosecution was precluded by limitations, which, for that offense and under the circumstances, was one year.

It explained: “At the time the events [charged] occurred, there was no statute of limitations for this penitentiary misdemeanor; In 1967, legislative action resulted in the creation of a one-year statute of limitations for penitentiary misdemeanors (see Massey v. State, 320 Md. 605 , 579 A.2d 265 (1990)); Curative legislative action in 1991 removing the one-year statute of limitations on penitentiary misdemeanors cannot support prosecution of this case because it would violate ex post facto prohibitions. The one-year statute of limitations applicable to this charge has run.” The State timely noted an appeal to the Court of Special Appeals and also filed, pursuant to Maryland Rule 8-301, 5 a ⁴⁴⁸ petition for writ of certiorari with this Court. Before any proceedings in the intermediate appellate court, this Court granted the petition, State v. Stowe, 362 Md. 624 , 766 A.2d 147 (2001), to consider whether “the crime of unnatural and perverted sexual practices [is] subject to a one-year statute of limitations where the crime occurred between March 1, 1958 and July 31,1960?” We shall affirm.

II

In this Court, the appellant, the State, notes that, between 1958 and 1960, when the appellee’s conduct, the alleged criminal acts occurred, no limitations period was applicable to the misdemeanor crime of unnatural and perverted sexual practice. Moreover, in 2000, when the appellee was charged, there likewise was no applicable statute of limitations. Thus, the State argues, to apply either the law in force when the alleged crime was committed or the current law puts the appellee in no different position than he was in some forty years ago. In refutation of the applicability of the ex post facto principle, it asserts: “To try Stowe today does not subject him to criminal liability for something that was not criminal at the time of his conduct, the crime has not been aggravated, the punishment has not increased, and no less evidence is required to convict him now than would have been required in 1960.” The appellee, on the other hand, relies on Massey, supra, 320 Md. 605 , 579 A.2d 265 .

As a result of that case, he argues that, after 1967, and until the Legislature amended the statutory scheme effecting that result, all misdemeanors, whether penitentiary misdemeanors or not, were subject to a one-year ⁴⁴⁹ statute of limitations. Moreover, he contends, the Legislature applied that one-year limitations period retrospectively to all sentences imposed prior to June 1,1967. Therefore, as of that date, 1967, the crime of unnatural and perverted practice was subject to a one-year period of limitations. Accordingly, as of that date, the State had one year to prosecute him for the acts he allegedly committed between 1958 and 1960. “As neither the complainant nor the State came forward to charge [respondent] within that one year, they are now barred from initiating a prosecution 32 years later, he concludes.” III.

A. It is true, to be sure, that, at the time the conduct, with which the appellee has been charged, allegedly occurred, the statute then in effect permitted the court to sentence a defendant convicted of committing an unnatural or perverted sexual act against a minor to “imprison[ment] in jail or in the House of Correction or in the Penitentiary.” As the Court pointed out in Massey , then, it was the rule that judges would prescribe both the length of the sentence to be served and the place at which that service was to occur, 320 Md. at 610 , 579 A.2d at 267 , and that it was the authorization in the statute for the judge to designate the penitentiary as a place for service of the sentence, not the sentence itself, that determined the nature of the offense; “what the Legislature considered to be the most serious misdemeanors were made punishable by confinement in the state penitentiary.” Id. at 610-11 , 579 A.2d at 267 . It was thus a “penitentiary misdemeanor,” Massey, 320 Md. at 609 , 579 A.2d at 267 ; In re Anthony R., 362 Md. 51, 73, n. 11 , 763 A.2d 136 , 148 n. 11 (2000), as to which there was no statute of limitations. As we have seen, in 1967, the ability of trial judges to designate the place of confinement was terminated and the length of the sentences to the Department of Correction curtailed. And this, without a disclaimer as had accompanied the legislation .that had given them this flexibility.

After June ⁴⁵⁰ 1 of that year, pursuant to the amendments to the sentencing and confinement provisions of § 690, they could only sentence a defendant to the “jurisdiction of the Department of Correction,” Massey, 320 Md. at 614 , 579 A.2d at 269 , and only for a term, since increased, of three (3) months or more. The Department of Correction, therefore, was charged with the sole responsibility of deciding where a particular defendant would be confined, both before June 1, 1967, notwithstanding the designation of the sentencing judge, and after. Id. In addition, using a common drafting technique, id. at 615-16 , 579 A.2d at 269-70 , the Legislature, in effect amended every statutory provision relating to the sentencing to, or confinement of persons in, the penitentiary, house of correction, etc., and substituted the words “jurisdiction of the Department” for the words “penitentiary,” “house of correction,” and the like.

As a result, the Massey Court concluded that since, “[ajfter Ch. 695 of the Acts of 1967 became effective on June 1, 1967, no misdemeanors were ‘punishable by confinement in the penitentiary by statute,’ id. at 617 , 579 A.2d at 271 , there was no longer a distinction between ordinary misdemeanors and penitentiary ones. Id. at 621 , 579 A.2d at 273 . Applying that reasoning to the case sub judice produces the same result. When the Legislature made the amendments detailed in Massey , as in the case of welfare perjury, the unnatural and perverted practices statute no longer authorized punishment by confinement in the penitentiary and the trial judges lost the authority to designate the place of confinement for defendants convicted of unnatural and perverted sex acts.

As a result, as of June 1, 1967, the statute of limitations for the crime of unnatural and perverted sex act was one year, which, in the absence of the initiation of a prosecution, as in this case, expired June 1,1968. Relying on Johnson v. United States, 529 U.S. 694, 701 , 120 S.Ct. 1795 , 1801 146 L.Ed.2d 727, 736 (2000) (“Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests.”), the State argues that the 1967 amendments do not operate retroactively to affect the statute of limitations for acts occurring prior to their ⁴⁵¹ effective date. It notes that § 690(b) stated expressly that “on or after June 1, 1967, judges ... shall in all such cases sentence such persons to the jurisdiction of the Department of Correction.” Aware of the significance that the Massey Court placed on the enactment of § 690(d), a new section, the State calls attention to the fact that, in that section, the substitution of the Department of Correction for the references to the various institutions was made to occur “after June 1, 1967.” The State is wrong. The appellee directs our attention to the second paragraph of § 690(b).

That provision, as we have seen addresses the situation in which the defendant was sentenced prior to the effective date of the statute to “any one of the institutions and facilities under the jurisdiction of the Department.” As to such defendants, “after such date, and notwithstanding such sentence, [they may] be held, confined in, assigned to or transferred to such of these institutions and facilities as the Department may from time to time order.” The appellee thus submits: “Thus, the legislature clearly made the new law retroactively applicable to all sentences imposed prior to June 1, 1967. In other words, to the extent that any sentence of any judge, in the future or in the past, assigns a defendant to a particular institution or penitentiary, such sentence shall now be construed as being to the Division of Correction. The law had to be retroactive for a very practical reason. The judicial system could not have judges and the Division of Correction independently deciding where inmates shall be held.” The State next asserts that the Massey analysis was wrong and that, therefore, at the next legislative session, the General Assembly “overruled” the decision and “re-affirmed that misdemeanors punishable by imprisonment in the penitentiary are not subject to any statute of limitations.” While the Legislature did revisit