Ware v. State

Powers, J., delivered the opinion of the Court. Appellant, John A. Ware, III, chose to be tried by his peers in the Criminal Court of Baltimore on two indictments returned there against him. No. 1897 charged that on March 17, 1970, he kept and maintained as a common nuisance, a dwelling house at 1230 Division Street, Baltimore, (1) resorted to by narcotic drug addicts, for the purpose of using narcotic drugs, (2) used for the illegal keeping of narcotic drugs, and (3) used for the illegal selling of narcotic drugs. No. 1899 charged him with (1) possession of heroin and (2) control of heroin, also on March 17, 1970.

To No. 1899 was attached an addendum warning appellant that the State intended to prosecute him as a second offender, by reason of a prior conviction of a violation of the narcotic laws. He elected a “consecutive and separate” trial by the court on the addendum. Trial was held on October 7, 8 and 9, 1970. The jury found appellant not guilty on the first count of each indictment, but guilty on each of the other counts.

After the verdict was received Judge Charles D. Harris, who was presiding, indicated, and both counsel acquiesced, that the hearing on the addendum and the proposed stetting of a third indictment should be deferred until after a motion for new trial was heard and decided. Appellant’s motion was heard and denied on October 23, 1970. At that time the judge indicated that it would be preferable to withhold imposition of sentence until the addendum had been tried, and the State agreed, but appellant’s counsel requested immediate sentencing. Judge Harris proceeded to impose sentences, including a sentence of three years for control of heroin, consecutive to two concurrent three year sentences on the nuisance house indictment.

Thereafter, on December 9, 1970, the trial judge heard the addendum, entered a finding of ³⁰⁵ “guilty”, and held sentence sub curia until December 29, 1970, when he imposed a sentence of five years “on the addendum”, consecutive to the nuisance house sentences, and concurrent with the three year sentence for control of heroin. Timely appeals were taken after the sentencing of October 23rd and after the sentencing of December 29th. The appeals were docketed separately here, but were briefed and argued together. The Separate Sentence For Being a Second Offender Appellant does not question his conviction for control of heroin as charged in indictment No. 1899, but contends that the court erred in imposing a second sentence, after trial on the addendum, on that conviction.

We are persuaded that this contention of appellant is correct. An addendum, even though it is contained in an attachment rather than in the body of the indictment, is no more than a warning to a defendant that the State intends, upon conviction of the offense charged in the indictment, to seek the imposition of a more severe punishment because of his previous conviction of the same or a related offense. Maryland Code, Art. 27, § 300, 1 prescribed the penalties for the offense charged against appellant in indictment No. 1899. The penalty was greater for a second offense (5 to 10 years) than for a first offense (2 to 5 years).

The sentences were alternative; either one, as appropriate, could be imposed, but by no interpretation could § 300 be said to authorize the imposition of two sentences for conviction of one offense. The punishment (greater or lesser) is for the new crime only. Garrigan v. Superintendent, 218 Md. 662 , 146 A. 2d 431 . The Court of Appeals dealt fully with the subsequent offense aspect of a criminal charge in Beard v. State, 216 Md. 302 , 140 A. 2d 672 , a case which led to the adop ³⁰⁶ tion of Maryland Rule 713, effective January 1, 1962.

Torres v. Warden, 227 Md. 649 , 175 A. 2d 594 . Rule 713 prescribes the procedure to be followed in a case where a greater punishment is prescribed for a second or subsequent conviction. The accused may elect that the issue of whether or not he is a second or subsequent offender be tried concurrently with the trial for the current offense, or that the issue be determined separately after the verdict on the current offense. Also, he may waive a jury for determination of that separate issue, even though the current offense is tried before a jury.

The second proceeding is not a trial of guilt, but the determination of an issue. That issue is simply the historical fact of a prior conviction and the identity of the defendant as the person so convicted. In Simmons v. State, 8 Md. App. 355 , 259 A. 2d 814 , where the trial judge had found Simmons guilty of the current offense and subsequently had found him “guilty” as a second offender, and had imposed two concurrent five year sentences, we said, at page 369: “It is clear that Md. Code, Art. 27, § 300 authorizes only one sentence. The punishment is not for being a subsequent offender.

It is for the new crime only, but is heavier if the defendant has theretofore been convicted as designated. * * * However, as the sentences were imposed