Stevenson v. State

WOODWARD, J. Appellant, Shantee Norena Stevenson, a.k.a, Shantese Norena Stevenson, was charged with two counts of robbery and related offenses. In the Circuit Court for Baltimore County, she pleaded guilty to one count of robbery and the State entered a nolle prosequi on the remaining charges. The circuit court sentenced appellant to a mandatory term of ten years’ incarceration in accordance with Maryland Code (2002, 2007 Cum.Supp.), § 14-101(e) of the Criminal Law Article. Appellant subsequently filed a Motion to Correct an Illegal Sentence, which the circuit court denied.

Appellant noted a timely appeal from that denial and presents one question for our review: Did the circuit court err in denying appellant’s Motion to Correct an Illegal Sentence when appellant had not previously been sentenced to a term of incarceration for a crime of violence? We conclude that the circuit court erred in denying appellant’s motion; therefore, we vacate her sentence and remand the case for a new sentencing hearing. BACKGROUND On May 3, 2004, the date appellant entered her guilty plea to robbery in this case, the State filed a notice in accordance with Maryland Rule 4-245 1 that it intended to proceed against ⁴⁴⁴ appellant as a repeat violent offender under § 14-101 of the Criminal Law Article (hereinafter “C.L.”). The State’s notice provided, in part: The Defendant has been convicted of an offense defined as a crime of violence pursuant to Maryland Annotated Code, Article 14-101, and has served a term of confinement in [a] correctional institution, for that conviction, namely: On 4/3/92, Defendant was convicted in Baltimore City, before the Honorable Judge J. Bothe of Bobbery.

Defendant was sentenced to the Baltimore City Detention Center for a period of two (2) months. The Defendant, if convicted, in case 03CE4405 [the robbery case to which appellant entered the guilty plea], of a crime of violence, will receive imprisonment for the term allowed by law, but not less than ten (10) years, none of which may be suspended. When appellant entered her guilty plea, she did not contest that she had been convicted in 1992 of robbery in Baltimore City. She also understood that she would be sentenced as a repeat offender to a mandatory ten-year term.

Following acceptance of the plea, the trial court imposed the mandatory ten-year sentence under C.L. § 14-101(e), which states, in relevant part: (e) Second conviction of crime of violence. — (1) On conviction for a second time of a crime of violence committed on or after October 1, 1994, a person shall be sentenced to imprisonment for the term allowed by law, but not less than 10 years, if the person: ⁴⁴⁵ (1) has been convicted on a prior occasion of a crime of violence, including a conviction for a crime committed before October 1,1994; and (ii) served a term of confinement in a correctional facility for that conviction. (2) The court may not suspend all or part of the mandatory 10-year sentence required under this subsection. In C.L. § 14 — 101(a)(9), robbery is defined as a crime of violence. In appellant’s Motion to Correct an Illegal Sentence, she again agreed that she had been “convicted on a prior occasion” within the meaning of C.L. § 14 — 101 (e)(1)(i).

Appellant also indicated that in the 2004 Baltimore County case, she had pleaded guilty “to one count of robbery with the understanding that she would be sentenced as a subsequent offender for a second crime of violence, pursuant to [C.L.] § 14 — 101(e)(1).” Appellant claimed, however, that her 1992 Baltimore City conviction resulted in a suspended sentence and not a sentence of two months, as alleged by the State in its notice and at her plea hearing. According to appellant, the only time she served in relation to the 1992 Baltimore City conviction was the forty-five days she spent on pretrial detention. Appellant thus claimed that she had not served “a term of confinement in a correctional facility for that conviction” as required by C.L. § 14 — 101(e)(l)(ii). She referred the circuit court to Mel-gar v. State, 355 Md. 339 , 734 A.2d 712 (1999), in support of her position.

On August 2, 2006, a hearing was held on appellant’s motion, and counsel reiterated the arguments presented in the written motion and supporting memorandum of law. Counsel thus asserted that appellant had a prior conviction for robbery, but that she had not served a term of confinement resulting from that conviction because all of the five-year sentence had been suspended. Counsel conceded that appellant had served forty-five days of pretrial incarceration, but claimed that under Melgar, that period of incarceration was ⁴⁴⁶ not served in a correctional facility for the 1992 Baltimore City conviction. Counsel presented the court with several exhibits concerning the 1992 Baltimore City conviction, including: (1) the docket entries; (2) the sentencing guidelines worksheet; (3) the order of probation; and (4) the Division of Parole and Probation Supervision Summary.

All these documents indicated that, for the 1992 Baltimore City conviction, appellant had received a five-year sentence, all of which was suspended. As a result, counsel asserted, the second prong of C.L. § 14-101(e)(1) had not been satisfied. The prosecutor responded that Melgar addressed repeat drug offenders under Art. 27, § 286, now codified at C.L. § 5-609, and that it did not apply to repeat offenders under C.L. § 14-101. The prosecutor agreed, however, that for the 1992 Baltimore City conviction, appellant had been “given a sentence of suspend all but time served____” In denying appellant’s motion, the circuit court stated: I’m sure we have a judge at the Court of Special Appeals who can assign a law clerk down there that can spend copious amounts of time researching this problem and make a determination.

But I’m not going to do it. Because I think the sentence was fair and reasonable under all of the circumstances, given the fact that this defendant served a prior conviction for robbery, then goes out and commits another one. The motion to correct an illegal sentence is going to be denied, which would put it in the appropriate position for appeal to the Court of Special Appeals. DISCUSSION Appellant claims that the circuit court erred in failing to determine whether she had served a term of confinement in a correctional facility for her 1992 Baltimore City conviction.

She refers us to the evidence presented at the hearing on the motion to assert that she was not sentenced to any term of confinement in that case and that she was merely credited for time spent in pretrial custody. Appellant also cites to Melgar ⁴⁴⁷ and contends that her case falls squarely within its holding, i.e., that credit for pretrial incarceration cannot constitute a term of confinement for her 1992 Baltimore City conviction. Here, the circuit court denied appellant’s motion, but declined to address the merits of her claim. Before this Court, appellant raises the same issue that she presented to the circuit court; therefore, despite the circuit court’s avoidance of that issue, it is properly before us.

See Md. Rule 8-131(a) (generally, an appellate court will not decide issues not “raised in or decided by the trial court”); Curry v. Dept. of Pub. Safety & Corr. Servs., 102 Md.App. 620, 632 , 651 A.2d 390 (1994) (addressing issue raised in the circuit court but not decided by the circuit court), cert. granted, 338 Md. 252 , 657 A.2d 1182 cert. dismissed as improvidently granted, 340 Md. 175 , 665 A.2d 1038 (1995); Supervisor of Assessments of Howard County v. Scheidt, 85 Md.App. 154 , 158 n. 1, 582 A.2d 563 (1990) (issue not discussed or determined in the Tax Court or circuit court was properly before appellate court because the argument had been made in the pleadings before the circuit court and, thus, in accordance with Maryland Rule 8-131(a), had been raised in the circuit court). “Where the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment.” Jones v. State, 324 Md. 32, 37 , 595 A.2d 463 (1991). An erroneously imposed mandatory sentence is an illegal sentence.

See Bowman v. State, 314 Md. 725, 738 , 552 A.2d 1303 (1989); see also Sutton v. State, 128 Md.App. 308, 327-28 , 738 A.2d 286 (1999) (although no objection raised at sentencing, allegation that mandatory sentence was illegal due to State’s failure to establish prior conviction beyond a reasonable doubt was addressed on appeal). Further, the fact that appellant was sentenced to the mandatory term of incarceration pursuant to a guilty plea would not alter the illegality of the sentence imposed. See Holmes v. State, 362 Md. 190 , 195- ⁴⁴⁸ 96, 763 A.2d 737 (2000) (per curiam) (stating that “[a] defendant cannot consent to an illegal sentence”). In this case, we are asked to construe the meaning of C.L. § 14-101(e)(l)(ii). “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Collins v. State, 383 Md. 684, 688 , 861 A.2d 727 (2004). “The legislative intent of a statute primarily reveals itself, through its very own words.” Derry v. State, 358 Md. 325, 335 , 748 A.2d 478 (2000) (citations omitted). “[W]e view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.” Id.; see also Deville v. State, 383 Md. 217, 223 , 858 A.2d 484 (2004) (“Ordinary and popular understanding of the English language dictates interpretation of terminology within legislation.”). “If the words of a statute are clear and unambiguous, our inquiry ordinarily ends and we need investigate no further, but simply apply the statute as it reads.” Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426 (2002).

In Chow v. State, 393 Md. 431, 443 , 903 A.2d 388 (2006), the Court of Appeals explained: “In construing the plain language, ‘[a] court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application.’ ” Price v. State, 378 Md. 378, 387 [, 835 A.2d 1221 ] (2003); County Council v. Dutcher, 365 Md. 399, 416-17 [, 780 A.2d 1137 ] (2001). Statutory text ‘should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.’ Collins [v. State], 383 Md. 684, 691 [, 861 A.2d 727 ] (2004) (quoting James v. Butler, 378 Md. 683, 696 [, 838 A.2d 1180 ] (2003)). The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.

Deville, 383 Md. at 223 [, 858 A.2d 484 ]; Navarro-Monzo v. Washington Adventist, 380 Md. 195, 204 [, 844 A.2d 406 ] (2004). ⁴⁴⁹ (Quoting Kushell v. Dept. of Natural Res., 385 Md. 563, 576-77 , 870 A.2d 186 (2005)). “If a statute has more than one reasonable interpretation, it is ambiguous.” Twine v. State, 395 Md. 539, 550 , 910 A.2d 1132 (2006); see also Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003) (“[B]efore judges may look to other sources for interpretation, first there must exist an ambiguity within the statute, i.e., two or more reasonable alternative interpretations of the statute.”) When “the statutory language is ambiguous, we resolve that ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose.” Moore v. State, 388 Md. 446, 453 , 879 A.2d 1111 (2005). Further, “[a]n ambiguity in a criminal penal statute, in accordance with the rule of lenity, ordinarily is to be construed against the State and in favor of the defendant.” Webster v. State, 359 Md. 465, 481 , 754 A.2d 1004 (2000). With these principles in mind, we have no difficulty concluding that the plain language of C.L. § 14 — 101(e)(l)(ii) requires the same conclusion as that reached by the Court of Appeals in Melgar v. State, 355 Md. 339 , 734 A.2d 712 (1999). In that case, Melgar was convicted of possession of cocaine with intent to distribute and related offenses.

Id. at 342 , 734 A.2d 712 . The trial court sentenced him to twenty-five years’ incarceration without the possibility of parole pursuant to the enhanced penalty provision contained in Article 27, § 286(d) of the Maryland Code, id., which then provided in relevant part: (d)(1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section or of conspiracy to violate 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: ⁴⁵⁰ 1. Under subsection (b)(1) or subsection (b)(2) of this section; 2. Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section; 3.

Of an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection (b)(1) or subsection (b)(2) of this section if committed in this State; or 4. Of any combination of these offenses. (2) Neither the sentence required under paragraph (1) of this subsection nor any part of it may be suspended, and the person may not be eligible for parole except in accordance with Article 31B, § 11 of the Code. On appeal, Melgar argued that the State had not established one of the statutory predicates for imposing the enhanced penalty, i.e., that he had served at least one 180-day term of confinement in a correctional institution as a result of a conviction for a previous violation of Art. 27, § 286 or § 286A. 355 Md. at 342 , 734 A.2d 712 .

Melgar had served 248 days concurrently for two prior convictions before he was released on probation. Id. at 345 , 734 A.2d 712 . When he was sentenced for those offenses, however, the trial court gave him credit for 107 days that he had spent in pretrial detention because he had been unable to post bond. Id. at 344-45 , 734 A.2d 712 .

As a result, Melgar alleged that he had served only 141 days “as a result of’ a previous conviction and not the 180 days required under § 286(d)(1)®. Id. at 345, 734 A.2d 712 . The Court of