Triggs v. State

BATTAGLIA, J. We are called upon in this case to determine whether it was error for the trial judge to impose eighteen consecutive sentences when the defendant was convicted for making eighteen ³⁰ threatening calls to his wife in violation of a protective order requiring that he have “no contact” with his wife. We find no error in the sentence. I. Introduction A. Facts On Sunday morning, September 16, 2001, David Triggs (hereinafter “Petitioner”) made the first of dozens 1 of calls to his ex-wife, Pamela Triggs (hereinafter “Mrs. Triggs”), who lived in Montgomery County, in violation of a protective order prohibiting him from having any contact with her. When he made many of the calls, which continued over a four-day period, Petitioner threatened to rape and murder his ex-wife and murder their three children, who were with him during a scheduled visitation when he called.

Petitioner and Mrs. Triggs were married for almost seven and a half years when they divorced on March 1, 2002. They had three children together, who were eight, six, and four at the time of their divorce. Petitioner’s four-day “reign of terror,” as Judge Ann S. Harrington, Circuit Court for Montgomery County, called it, was the culmination of a long history of a troubled relationship filled with domestic abuse. In her victim impact statement, Mrs. Triggs described some of Petitioner’s controlling and abusive behavior that occurred over the course of their marriage and during the period at issue during this case.

According to Mrs. Triggs, Petitioner, in the past, had held electric hedge clippers to her throat, pointed a gun to her head, fired a gun at her, and raped her four times. In 1996, she obtained her first protective order after Petitioner shot at her. ³¹ When Mrs. Triggs attempted to leave her husband, Petitioner harassed her friends who were helping her, causing them to get peace orders against him. Petitioner also harassed Mrs. Triggs at work and threatened to kill her co-workers, which resulted in her place of work closing for two days and hiring security for three weeks. Mrs. Triggs claims she “lost [her] job because of him.” In addition, the couple lost their home and Mrs. Triggs’s credit record was ruined when Petitioner refused to sign the papers to sell their home, telling the realtor he preferred to have the home foreclosed so as to “destroy” Mrs. Triggs.

Mrs. Triggs also described how Petitioner verbally abused her and attempted to control her every move and thought. He dictated the types of clothes she could wear (“no sweatpants or baggy clothes allowed”), taped her telephone calls, removed her car radio, and disabled her car on several occasions. During the month before they separated, he would wake her up every time she 'fell asleep, “allowing only one hour a night.” After they separated, Mrs. Triggs related how Petitioner would tell the children to “tell mommy her cement shoes are coming,” “tell mommy I am going to cut her head off,” “tell mommy she doesn’t have long to live,” and “tell mommy I’m watching.” On September 26, 2000, Mrs. Triggs obtained her second order of protection from the District Court of Maryland sitting in Montgomery County. She stated she was afraid for her life because her husband had shot at her in the past and sought the order because he “wanted her to get an apartment and prostitute herself to support the family” and threatened to “burn her like a witch on a stick” if she did not comply.

The court issued an order, effective for one year, requiring Petitioner to refrain from threatening or abusing Mrs. Triggs and to begin counseling immediately. On March 28, 2001, the court amended the September 26 protective order pursuant to Mrs. Triggs’s emergency motion to modify the order, ordering, among other things, that Petitioner have “no contact” with Mrs. Triggs, that he could not ³² take the children out of the state or out of school “if it was not his scheduled time,” and that he must abide by a two-week visitation schedule requiring him to pick up his children from school on Friday and drop them off at school on Monday. One month later, in April 2001, Petitioner violated the protective order by banging on Mrs. Triggs’s door in the middle of the night. Mrs. Triggs called the police, who arrested Petitioner when he tried to flee the apartment complex in his car.

While he was in jail awaiting trial, Petitioner sent numerous letters to his children containing disturbing references to Mrs. Triggs and their marriage. Mrs. Triggs filed a complaint about the letters with the police commissioner because she feared for her and her children’s personal safety. On July 28, 2001, Petitioner was convicted for violating the March 28 amended protective order. He was sentenced to 90 days in the Montgomery County Detention Center, with 36 days suspended and credit for 54 days, and one year of supervised probation.

He was ordered, again, to have no contact with Mrs. Triggs. In mid-September 2001, a bench warrant was issued from the Circuit Court for Petitioner’s arrest because Petitioner was telling his children that he wanted to put his wife in “cement shoes.” Because of a technical problem with the warrant, however, the Sheriffs Office for Montgomery County could not arrest Petitioner before he picked up his children on September 14, 2001, for his scheduled two-week visitation. On September 16, 2001, at approximately 11:45 on Sunday morning, Petitioner made the first of more than fifty calls occurring over a four-day period to Mrs. Triggs. 2 Petitioner ³³ called Mrs. Triggs while she was at home alone in her apartment in Gaithersburg. After Mrs. Triggs reminded Petitioner that he should not be calling her because of the protective order, he said, “I don’t give a fuck about a piece of paper, are you going to talk to me, you need to talk to me.” When she did not respond, he continued saying, “God dammit, Pamela, these children are dead by the end of this weekend.

I don’t want them, I want you, but I will kill them.” Mrs. Triggs hung up and called the police immediately. Three Gaithersburg police officers arrived at Mrs. Triggs’s house in response to her call. While she waited for the police, the phone rang about six times with the “Caller-ID” showing ³⁴ Petitioner’s name and number. When the police arrived, she handed her phone to Officer Chris Vance, who listened to the messages that Petitioner had left.

Officer Vance testified that the messages contained, threats that “if she [didn’t] call him back, he [would] kill the kids.” After being advised by the police that it was not safe for her to remain at home, Mrs. Triggs went to a friend’s house. Officer Vance subsequently requested a warrant for Petitioner’s arrest, which was issued late that afternoon. Petitioner continued to call Mrs. Triggs’s phone and leave messages, making a total of fourteen calls that day. On Monday morning, September 17, 2001, Mrs. Triggs met with the Fugitive Division of the Sheriffs Office to assist them in their efforts to find Petitioner.

Petitioner made four calls to Mrs. Triggs on Monday. On Tuesday, September 18, 2001, Petitioner made a total of twelve calls to Mrs. Triggs. At one point, he claimed he was giving one of their sons “Ambient,” a sleeping pill. He also asked Mrs. Triggs, who is a nurse, “what does it mean when your respirations only get to one ... when your breathing, respirations are only one a minute.” He also threatened to “break [the children’s] arms and their legs and then their neck.” In another recorded call, he stated, “In about two hours I’m going to call you with an interstate number or an exit number off of 270 where I’m going to leave something for you, or somebody.” In yet another recorded call, he told her that she was “down by one” child and “that will leave only two.” He also told her that he was “getting a very itchy trigger finger.” In still yet another recorded call, he said “Unfortunately, I don’t care what [the] court orders, what laws or whatever you’ve got.

It makes no difference to me ... I’m either going to be dead or in jail, and that’s fine with me.” At approximately nine or ten at night on September 18, while several sheriffs deputies waited with Mrs. Triggs at her home, Petitioner called and demanded that she meet him at a designated location. Petitioner said that Mrs. Triggs “had to ³⁵ jump through hoops of fire to get to [her] kids and [her] first hoop was going to be this place, Good Time Auto.” He told her to be at the auto shop by 11:00 p.m. Mrs. Triggs decided to meet him as he requested as part of a plan with the Sheriffs Office to locate Petitioner and the children.

Mrs. Triggs, however, did not meet Petitioner at the auto shop because the officers decided it was unsafe for her to do so because “the buildings were dark and there were two men standing outside.” When she did not meet him there, he called again, after midnight. When Mrs. Triggs told Petitioner she was afraid of meeting him, he said, “I’m not going to kill you yet.” Petitioner then told Mrs. Triggs that, waiting for her at Good Time Auto, were “four men ... and they are there to rape you while I listen on the other phone to you scream.” Mrs. Triggs then testified: He said that he was going to beat me, and he was going to torture me, and then he was going to rape me and then he would kill me, and then he was going to shove his cock in my mouth. And he said that if I didn’t do it, he said I would never see my children while I was alive, he kept telling me, “Make no bones about it, you are dead tonight, you will die tonight, it’s up to you whether or not you see your children before you do.” Petitioner then called again, telling Mrs. Triggs that he still wanted her to go to Good Time Auto. When she told him that she was in a “safe place,” Petitioner became “very upset” and his voice went “flat.” He then said, “Well, now you need to pick one.” “Pick one child to die, it is time for another one to die, you need to pick one.” Mrs. Triggs, who now was being encouraged by the deputies to continue talking with Petitioner because they had been able to trace his cell phone to Ocean City, said that she could not pick a child and tried to get him to talk about other things.

Mrs. Triggs testified: He kept saying, “Oh, well, if you can’t pick one, I will.” And he got my daughter on the phone and she was kind of real sleepy, she is like, “Mommy?” And I am like, “Hi, baby.” And she is like, “Mommy?” And I am like, “Are ³⁶ you okay?” And he goes, “Uh, uh, uh, say goodbye to mommy forever.” And I heard her scream. Mrs. Triggs testified that she was so hysterical that she could not get back on the phone with Petitioner anymore. Petitioner called again, leaving a message. Sargent Maxwell Uy listened to the message and testified that Petitioner said, “I hope you know a good orthopaedic surgeon.” At this point, Petitioner had been located in Ocean City, and officers there were negotiating with him to try to get him to release the children.

Petitioner was apprehended on September 19, 2001, and Mrs. Triggs’s children were returned to her physically unharmed later that day. During the period of September 16 to September 19, while Petitioner was calling Mrs. Triggs, he also called and threatened his mother, grandmother, sisters, and nieces and nephews, who, because they lived near Ocean City, were escorted to the police department for their own safety. While he was in jail for the second time awaiting trial, Petitioner sent numerous letters to his children and to his sister that contained disturbing references about Mrs. Triggs. 3 B. Procedural History On October 18, 2001, Petitioner was indicted by the State on the following forty-three charges: one count of telephone misuse, 4 thirty counts of violating a protective ³⁷ order, 5 four counts of harassment, 6 and eight counts of telephone threats. 7 See supra note 2 for a chart of the calls that were charged. ³⁸ During a pre-trial hearing, Judge Harrington of the Circuit Court for Montgomery County, heard, among other things, Petitioner’s motion to strike duplicitous counts. Petitioner argued that the telephone misuse charge and the harassment charges were the same and that the thirty counts of violating a protective order were duplicitous because they constituted a course of conduct instead of “separate incidents.” The court denied his motion, noting that the “State in its assertion has some technical or record procedure to identify each and every call, there is a time when a connection occurs, there is a time when a connection disconnects____If it constitutes a violation of law, regardless of how brief it is, if it can be verified and proven, so be it.” Following a jury trial, Petitioner was convicted of thirty of the forty-three counts: one count of telephone misuse, four counts of harassment, seven counts of telephone threats, and eighteen counts of violating a protective order.

At the sentencing hearing, conducted about two months after the trial, the court sentenced Petitioner to three-years imprisonment for the telephone misuse conviction, consecutive six month sentences for each of the harassment and telephone threat convictions, and consecutive one-year sentences totaling eighteen years for each violation of a protective order conviction. The sentences resulted in a term of imprisonment totaling twenty-six years and six months. When she imposed the sentence, Judge Harrington stated: It is ... extremely significant to me that these offenses occurred when you were already on probation for violating a protective order. There is evidence before me that you have said that you have no regard for any court order that the Court might put in place and no regard for any law that might be enacted because you are simply not going to adhere to it. ³⁹ I don’t know how you got the information as to where Ms. Triggs was now located but I think it’s apparent in letters you sent even after being convicted of these offenses, that you had that information and you were using your knowledge of it when everybody had gone to great lengths on the State’s side to try to keep you from knowing that, to further torment her with your ability to control where she goes and what she does even when you are confined....

I think clearly there is an obsession there that nothing that the Court or the laws ... have been able to dislodge.... the concern for me in formulating a sentence in this case is really the aspect of protection, not rehabilitation, not general deterrence, but protection for the family involved in this particular case. In an unreported opinion, the Court of Special Appeals vacated the sentences for harassment and telephone threats and affirmed the eighteen convictions and sentences for violating a protective order. With respect to the harassment and telephone threats, the court concluded that Petitioner was punished for the same conduct under Section 32-19A of the Montgomery County Code, regarding harassment, and Section 555A of Article 27 of the Maryland Code, regarding telephone threats. Applying Miles v. State, 349 Md. 215 , 707 A.2d 841 (1998), the intermediate appellate court determined that the sentences for harassment and telephone threats merged under the rule of lenity because the county ordinance did not “clearly indicate an intent of cumulative punishment when the conduct also violated another statute.” 8 With respect to the eighteen counts of violating a protective order, the Court of Special Appeals observed that Section 4-509 of the Family Law Article provides penalties “for each offense” of violating a protective order. “Because each call ⁴⁰ constituted a separate ‘offense,’ ” the court affirmed Petitioner’s eighteen convictions for violating a protective order.

We granted Petitioner’s petition for a writ of certiorari, Triggs v. State, 379 Md. 225 , 841 A.2d 340 (2004), which presented the following question for our review: Where Petitioner was convicted of harassing and threatening his wife, by telephone, over a period of two days, was it error to impose separate, one-year, consecutive sentences as to each of eighteen convictions under the Family Law statute? Although Petitioner frames his question in terms of the multiple sentences only and does not address the multiple offenses and convictions, he maintained at oral argument, and the State likewise conceded this point, that his argument necessarily implicates what we have called the “unit of prosecution,” which arises in the context of determining whether the charging of multiple offenses is appropriate. Our focus in this opinion, thus, is the unit of prosecution the General Assembly intended in order to trigger the penalty provisions for violating a protective order. When a protective order requires an abuser to have “no contact” with a victim, we conclude that repeated calls constitute separate acts and therefore separate offenses for the purposes of the sentencing provisions requiring penalties “for each offense” in Section 4-509 of the Family Law Article.

II

Standard of Review When sentencing criminal defendants, “[i]t is well settled that ‘[a] judge is vested with very broad discretion.’ ” Jackson v. State, 364 Md. 192, 199 , 772 A.2d 273, 277 (2001)(quoting Poe v. State, 341 Md. 523, 531 , 671 A.2d 501, 505 (1996)). “The judge is accorded this broad latitude to best accomplish the objectives of sentencing — punishment, deterrence and rehabilitation.” Id. at 199-200, 772 A.2d at 277 (quoting State v. Dopkowski, 325 Md. 671, 679 , 602 A.2d 1185, 1189 (1992)). Maryland recognizes three grounds for appellate review of sentences: “(1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional ⁴¹ requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits.” Id. at 200, 772 A.2d at 277 (quoting Gary v. State, 341 Md. 513, 516 , 671 A.2d 495, 496 (1996)); see also Jennings v. State, 339 Md. 675, 682-84 , 664 A.2d 903, 907 (1995). In this case, in order to determine whether Petitioner’s sentence was legal we must determine what unit of prosecution the Legislature intended when it established the crime of violating a protective order. We apply “our normal rules of statutory construction in determinating the legislative intent regarding the proper unit of prosecution and the appropriate unit of punishment in respect to violations of any criminal statute.” Melton v. State, 379 Md. 471, 478 , 842 A.2d 743, 747 (2004).

III

Discussion Petitioner does not maintain that his sentence is unconstitutional or that Judge Harrington was motivated by ill-will or prejudice; rather, he contends that it was error to impose separate, one-year sentences under the Family Law Article because the penalty provisions for violating a protective order under the statute are ambiguous. In such an instance, he maintains, merging the offenses is required under the rule of lenity, a rule of statutory construction that turns multiple offenses into a single course of conduct when it is uncertain as to whether the legislature intended multiple punishments for the same act or transaction. Describing the calls as occurring in “flurries” or “clusters” because some of the calls occurred within minutes of each other, Petitioner also urges that the phone calls should be punished in the aggregate rather than as separate calls. He notes that, under the telephone misuse statute, “harassing or threatening telephone calls are punished in the aggregate.” He maintains that the legislative history of the domestic violence statute, which includes the protective order procedure, reflects a focus on protecting victims from domestic abuse and “not on lengthy incarceration for each one in a flurry of telephone calls.” ⁴² The State argues that the protective order statute is plain and unambiguous, noting that the statute states that a person who violates a protective order is subject to conviction and sentence, “for each offense.” Because there is no ambiguity, the State maintains that the eighteen separate offenses do not merge under the rule of lenity.

If there is ambiguity in the statute, the State contends, separate sentences are permissible given the statute’s legislative history. Because the purpose of the statute is to protect victims of domestic violence from further abuse, the State maintains that punishing an abuser for each call he makes in violation of the statute is appropriate. 9 The State also argues that treating separate calls as a “flurry” would undermine the purpose of the statute because such an interpretation would give an abuser a “pass” to “call ... 15, 20, 100 more times in the day and say whatever [he wants].” A. Section 4-509 of the Family Law Article establishes the crime of violating a protective order: (a) A person who fails to comply with the relief granted in an ex parte order under § 4 — 505(a)(2)(i), (ii), (iii), (iv), or (v) of this subtitle, or in a protective order under § 4-506(d)(l), (2), (3), (4), or (5) of this subtitle, is guilty of a misdemeanor and on conviction is subject, for each offense, to: (1) for a first offense, a fine not exceeding $1,000 or imprisonment not exceeding 90 days or both; and (2) for a second or subsequent offense, a fine not exceeding $2,500 or imprisonment not exceeding 1 year or both. Code, § 4-509 of the Family Law Article. Petitioner argues that the rule of lenity applies because it is not clear the General Assembly intended in Section 4-509 to ⁴³ allow courts to impose consecutive one-year sentences for violating a protective order when the violations consisted of separate calls occurring within relatively close periods of time.

The issue in this case thus turns on whether repeated calls constitute separate acts for the purposes of the sentencing provisions requiring penalties “for each offense” in Section 4-509 of the Family Law Article. In Purnell v. State, 375 Md. 678, 692 , 827 A.2d 68, 76 (2003), we explained that determining whether the Legislature intended “multiple sentences for the same offense lturn[s] on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent.’ ” See also Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715, 719-20 (1989)(explaining that, in cases involving multiple punishment, “cumulative sentences for the same offense may under some circumstances be imposed” when specifically authorized by the legislature). We analyze the unit of prosecution when we are faced with multiple punishments deriving from a single statutory provision. Purnell, 375 Md. at 692 , 827 A.2d at 76 .

As we explained in Purnell : [WJhether a particular course of conduct constitutes one or more violations of a single statutory offense affects an accused in three distinct, albeit related ways: multiplicity in the indictment or information, multiple convictions for the same offense, and multiple sentences for the same offense. All three turn on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent. Id. (quoting Brawn v. State, 311 Md. 426, 432 , 535 A.2d 485, 488 (1988)).

In other words, whether the defendant is challenging multiple indictments, multiple convictions, or multiple sentences, the unit of prosecution reflected in the statute controls whether multiple sentences ultimately may be imposed. “[AJmbiguous units of prosecution ..., pursuant to the rule of lenity, must normally be construed in favor of the defendant,” effectively merging the offenses. Melton , 379 Md. ⁴⁴ at 488, 842 A.2d at 753 10 ; Randall Book Corp., 316 Md. at 327 , 558 A.2d at 721 . Thus, in order to determine the unit of prosecution, “a critical question is one of legislative intent.” Randall Book, 316 Md. at 324 , 558 A.2d at 720 ; State v. Boozer, 304 Md. 98, 106 , 497 A.2d 1129, 1133 (1985)(stating that “the classic test ... is whether the legislative intent is to punish individual acts separately or to punish only the course of action which they constitute”)(quoting State v. Frazier, 185 Conn. 211 , 440 A.2d 916, 925 (1981), cert. denied, 458 U.S. 1112 , 102 S.Ct. 3496 , 73 L.Ed.2d 1375 (1982)). As we have explained many times, when discerning legislative intent, “we look first to the language of the statute, read in light of the full context of the statute and other external manifestations of intent or general purpose.” Jones v. State, 357 Md. 141, 159 , 742 A.2d 493, 502 (1999). “[W]hen the language is clear and unambiguous, our inquiry ordinarily ends there.” Drew v. First Guar.

Mortgage Corp., 379 Md. 318, 327 , 842 A.2d 1, 6 (2003). Reading the statutory language within the context of the statutory scheme, our approach is a “commonsensical” one designed to effectuate ⁴⁵ the “purpose, aim, or policy of the enacting body.” Id. at 327-28 , 842 A.2d at 6-7. “Remedial statutes,” furthermore, “are to be liberally construed to ‘suppress the evil and advance the remedy/ ” Coburn v. Coburn, 342 Md. 244, 256 , 674 A.2d 951, 957 (1996)(providing a history of the domestic violence statute and determining that it is a remedial statute). 11 B. The Maryland General Assembly first enacted the domestic violence statute in 1980. See 1980 Md. Laws, ch. 887; see also Coburn, 342 Md. at 252-56 , 674 A.2d at 955-57 (providing a history of the domestic violence statute and a detailed explanation of how to file for a protective order); Richard A. DuBose III, Comment, Katsenelenbogen v. Katsenelenbogen: Through the Eyes of the Victim-Maryland’s Civil Protection Order and the Role of the Court, 32 U. Balt. L.Rev. 237 (2003)(de-scribing Maryland’s domestic violence law).

In 1992, Maryland’s domestic violence laws were strengthened. See 1992 Md. Laws, ch. 65. 12 The 1992 changes included extending the ⁴⁶ period of relief from 80 to 200 days, expanding the definition of abuse, expanding the definition of household members eligible for relief, adding forms of relief the court may order such as prohibiting contact between the parties, changing the standard of proof from a preponderance of the evidence to clear and convincing evidence, granting courts the ability to modify a protective order, and establishing penalties “for each offense” of violating a protective order. Id. The legislative bill file includes numerous documents from newspaper articles to testimony from representatives from the Governor’s Office revealing the overarching purpose to strengthen the law and protect victims of domestic abuse.

See, e.g., Letter from Senator Barbara Hoffman, The Women Legislators of Maryland, to the House Judiciary Committee (March 20, 1992)(on file with the Department of Legislative Services); Bonnie A. Kirkland, Deputy Legislative Officer for the Office of the Governor, Briefing Document for Senate Bill 282 before the Senate Judicial Proceedings Committee and House Judiciary Committee; Betha Hill, Violence Against Women: Schaefer wants to Expand Md. Law’s Protections, Wash. Post, Feb.