Williams v. State

KENNEY, J. On December 6, 2012, a jury in the Circuit Court for Baltimore County convicted Montray Eugene Williams, appellant, of two counts of robbery. He was sentenced to serve two concurrent terms of life in prison without the possibility of parole. In this timely filed appeal, appellant presents two questions for our consideration: 1. Did the trial court err in sentencing Appellant to two life without parole sentences pursuant to § 14-101 of the [Maryland Code (2002, 2012 Repl.Vol.), Criminal Law Article (“C.L.”) ]? 2.

Did the trial court err in allowing improper and prejudicial other crimes evidence at trial? Discerning no error in appellant’s convictions, we shall affirm the judgments of the circuit court. But, because we conclude that the circuit court imposed an illegal sentence, we shall vacate appellant’s sentence for the second count of robbery and remand for re-sentencing on that count. FACTUAL AND PROCEDURAL HISTORY On the morning of January 10, 2012, an African-American man, about five foot, four inches tall, wearing a skull cap, a beige or khaki colored jacket, and a distinctive silver ring, entered the M & T Bank in Woodlawn, Maryland.

He pushed his way to the front of the line and demanded money from the two tellers who were servicing customers. Taking approximately $516.00 from the two tellers, the man ran out of the bank. The robbery was recorded on the bank’s video surveillance system. Later that day, appellant was arrested while he was walking toward his residence at 5406 Gwyndale Avenue.

When approached by the police officers, he ran towards the back of the residence, discarding his jacket, cell phone, and wallet as he ran. Some of the discarded money matched the serial num ³¹ bers of the money that had been taken from the bank. Appellant’s former girlfriend confirmed that appellant sometimes wore a beige parka and a silver ring. The State also produced surveillance images from a police camera near appellant’s residence that show appellant leaving his house about fifteen minutes prior to the robbery, wearing a hat, pants, and beige parka that were similar to those worn by the bank robber.

DISCUSSION The Application of C.L. § l4-101 Appellant was previously convicted for armed robbery in 1991 and 1995, and for robbery in 2001. He served three separate terms of incarceration for these convictions. Months prior to appellant’s trial in the instant case, the State filed notice of its intent to proceed against appellant as a repeat violent offender under Md. Rule 4-245. Appellant does not challenge the adequacy of the notice provided by the State or the sufficiency of the evidence produced by the State to prove his prior convictions.

He asserts that the circuit court erred by imposing enhanced sentences for both of his robbery convictions in this case. This is because his previous robbery and armed robbery convictions are not enumerated crimes of violence under C.L. § 14-101 (a), and therefore, the circuit court erred as a matter of law by sentencing him as a fourth-time offender. Appellant further contends that, even if the circuit court was correct in concluding that the enhanced penalty statute was applicable, the court erred by imposing two enhanced sentences for his convictions, which arose from the same robbery. The State rejects appellant’s interpretation of C.L. § 14-101(a)(9), asserting that it ignores the clear legislative purpose of the statute and would lead to an absurd result.

As to appellant’s second argument, the State contends that, because appellant failed to raise any objection to his sentences at the time they were imposed by the court, he has waived the argument for the purposes of his appeal. ³² Whether the circuit court correctly interpreted and applied the relevant sentencing statute is a question of law, which we shall review de novo. See e.g. Pitts v. State, 205 Md.App. 477, 486 , 45 A.3d 872 (2012) (“Where a trial court’s determination requires the interpretation and application of Maryland’s constitutional, statutory or case law, we must determine whether the trial court’s legal conclusions are correct utilizing a de novo standard of review.” (Citation omitted)). The offense of robbery, for which appellant was convicted, is proscribed by C.L. § 3-402. 1 Appellant was sentenced as a repeat violent offender pursuant to C.L. § 14-101, which provides, in pertinent part: (b) Fourth conviction of crime of violence.

(1) Except as provided in subsection (f) of this section, on conviction for a fourth time of a crime of violence, a person who has served three separate terms of confinement in a correctional facility as a result of three separate convictions of any crime of violence shall be sentenced to life imprisonment without the possibility of parole. (2) Notwithstanding any other law, the provisions of this subsection are mandatory. C.L. § 14-101(b). Among the enumerated crimes of violence that form the basis for an enhanced penalty, the statute includes “robbery under § 3-402 or § 3-403 of this article^]” C.L. § 14-101(a)(9).

Prior to 2000, robbery was a common law offense with a statutory penalty. See Md.Code (1957, 1996 Repl.Vol.) §§ 486, 488 of Article 27 (setting the maximum penalties for the crimes of robbery and robbery with a deadly weapon, but not defining those offenses). The General Assembly codified the crimes of robbery and armed robbery as Art. 27 § 486 and ³³ Art. 27 § 487, respectively, effective October 1, 2000. 2 When the Criminal Law Article was subsequently adopted on October 1, 2002, the statutes proscribing robbery and armed robbery were recodified as C.L. § 3-402 and C.L. § 3-403, “without any substantive change” from Art. 27 § 486 and Art. 27 § 487. Revisor’s Notes, C.L. §§ 3-402, 3-403.

The current version of the enhanced penalty statute, C.L. § 14-101, was derived without substantive change from Art. 27 § 643B, which was originally enacted in 1975. Revisor’s Notes, C.L. § 14-101; Art. 27 § 643B. For as long as there has been an enhanced penalty statute in Maryland, robbery and armed robbery have been included in the enumerated list of violent crimes that form the basis for the imposition of a more severe sanction against repeat violent offenders. C.L. § 14-101; Art. 27 § 643B.

Prior to October 1, 2000, Art. 27 § 643B(a) included robbery and armed robbery in the list of offenses constituting crimes of violence, without any modifications, limitations, restrictions, or accompanying references. 3 Committee Notes, Art. 27 ³⁴ § 643B. In 2000, when robbery and armed robbery were codified, the legislature also amended Art. 27 § 643B to reference the new statutes, replacing the reference to “robbery” and “robbery with a weapon” with “robbery under § 486 or § 487 of this article[.]” 4 When the Criminal Law Article was adopted in 2002, the recodified enhanced penalty statute, C.L. § 14-101, adopted the statutory references to the sections of the Article that defined robbery and armed robbery. 5 C.L. § 14-101. Appellant contends that his previous convictions for robbery and armed robbery occurred before the adoption of the Criminal Law Article on October 1, 2002, and therefore, they were not convictions under C.L. § 3-402 (robbery) or § 3-403 (armed robbery). His 2001 robbery conviction arose under Art. 27 § 486, which was in effect from October 1, 2000 to September 30, 2002, and his 1991 and 1995 convictions for armed robbery arose under the common law.

See Art. 27 § 486 Coles v. State, 374 Md. 114, 123-25 , 821 A.2d 389 (2003) (discussing development of robbery from common law to codi ³⁵ fication). Therefore, he argues that his previous convictions for robbery and armed robbery did not arise under C.L. § 3-402 and § 3-403, as required by the plain language of C.L. § 14-101(a)(9), and those previous convictions cannot be the basis for imposing an enhanced penalty under C.L. § 14-101(b). When a case requires this Court to interpret the language of a statute, we employ a well-established set of principles, which we recently reiterated, stating: [T]he primary goal of statutory construction is “ ‘to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision[.]’ ” Barbre v. Pope, 402 Md. 157, 172 [ 935 A.2d 699 ] (2007) (quoting Dep't of Health & Mental Hygiene v. Kelly, 397 Md. 399, 419-20 [ 918 A.2d 470 ] (2007)). The necessary first step is to look to the “normal, plain meaning of the language of the statute,” which we read in its entirety to ensure that “ ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’ ” Doe v. Montgomery Cnty.

Bd. of Elections, 406 Md. 697, 712 [ 962 A.2d 342 ] (2008) (quoting Barbre, 402 Md. at 172 [ 935 A.2d 699 ]). If we conclude that the language of a statute is clear and unambiguous, we stop there. Barbre, 402 Md. at 173 [ 935 A.2d 699 ]. But we stay within the bounds of common sense: “If persuasive evidence exists outside the plain text of the statute, we do not turn a blind eye to it....

This enables us to put the statute in controversy in its proper context and thereby avoid unreasonable or illogical results that defy common sense.” Adamson v. Corr. Med. Servs., 359 Md. 238, 251-52 [ 753 A.2d 501 ] (2000) (citations omitted). If there is ambiguity or the language is susceptible to more than one meaning, then we look further: to “legislative history, case law, purpose, structure, and overarching statutory scheme in aid of searching for the intention of the Legislature.” Whitley v. Md. State Bd. of Elections, 429 Md. 132, 149 [ 55 A.3d 37 ] (2012).

We don’t go out of our way to find ambiguity, and “[i]f a specific term is not defined in the statute, the Court ‘will give that term its ³⁶ ordinary and natural meaning and will not resort to subtle or forced interpretations for the purpose of extending or limiting the operation of the statute.’ ” F.D.R. Srour P’ship v. Montgomery County, 179 Md.App. 109, 123 [ 944 A.2d 1149 ] (2008) (quoting Md.-Nat'l Capital Park & Planning Comm’n v. State Dep’t of Assessments & Taxation, 110 Md.App. 677, 689 [ 678 A.2d 602 ] (1996), aff'd, 348 Md. 2 [ 702 A.2d 690 ] (1997)), aff'd, 407 Md. 233 [ 964 A.2d 650 ] (2009). Butler v. State, 214 Md.App. 635, 669-70 , 78 A.3d 887 (2013) (parallel citations omitted). Resolution of the question now before us requires a determination of whether the General Assembly intended that only robberies and armed robberies committed after the adoption of C.L. § 3-402 and § 3-403 may result in an enhanced sentence under C.L. § 14-101(a)(9). 6 We shall assume for the purposes of this analysis that the plain language of C.L. § 14-101(a)(9) may be susceptible to more than one meaning. We begin with the observation that appellant does not assert that there is a substantive difference between a robbery committed before October 1, 2002, and a robbery after that date, and we perceive no substantive difference. 7 Therefore, because the interpretation of the statute advanced by appellant is, in our view, illogical and contrary to both common sense and code revision principles, we will look beyond the language and consult other sources to discern the intent of the legislature. ³⁷ Nevertheless, we will consider appellant’s interpretation of C.L. § 14 — 101(a)(9) in light of the other provisions of the enhanced sentencing statute.

Of all the offenses that have consistently been included in the list of crimes of violence, the only other crime that is identified by reference to the section of the Maryland Code proscribing it is maiming. 8 C.L. § 14-101(a). Under appellant’s interpretation of C.L. § 14-101(a)(9), courts would be obligated to analyze prior convictions for robbery or armed robbery differently than they analyze prior convictions for other common law crimes identified in C.L. § 14-101(a). For example, prior convictions for murder, kidnapping, rape, and assault would be the basis for an enhanced sentence no matter when those convictions occurred. C.L. § 14-101(a).

But, only prior robbery convictions would be time limited to the period after the adoption of the Criminal Law Article. We see, and appellant identifies, nothing about the crimes of robbery or armed robbery, which maintain their common law definition, that make them different from other common law offenses enumerated in C.L. § 14-101(a), such that prior convictions for robbery or armed robbery would be eliminated from enhanced sentence consideration. Looking at the enhanced sentencing statute as a whole, we find additional indications that it was not the legislature’s intent to do so. The offenses of mayhem, maiming, assault with intent to murder, assault with intent to rape, assault with intent to rob, assault with intent to commit a sexual offense in ³⁸ the first degree, and assault with intent to commit a sexual offense in the second degree, no longer exist as statutory offenses in Maryland.

C.L. § 14 — 101(a); Art. 27 § 12, § 384, § 385, § 386 (repealed in 1996). Including these offenses in the list of crimes of violence reflects the legislative intent to impose enhanced sentences on the basis of convictions that occurred before the adoption of the Criminal Law Article. C.L. § 14 — 101(a)(5)—(6), (20)-(26). Indeed, as the Committee Note accompanying the 1996 revision of the statute expressly states, “reference to these repealed sections ... must be retained under this section of law to ensure that they may be used as predicate offenses for the subsequent offender provisions of this statute.” Committee Note (Committee to Revise Article 27), Art. 27 § 643B.

The express language of C.L. § 14-101(d), imposing a mandatory minimum sentence of 10 years for a second conviction of a crime of violence, allows the imposition of an enhanced sentence for crimes committed before October 1, 1994, long before the Criminal Article was adopted. C.L. § 14-101(d). Thus, to interpret C.L. § 14-101(a)(9) in the manner appellant suggests, would be contrary to the express legislative intent embedded in other provisions of the enhanced penalty statute. Examining the Maryland Code more broadly, we see that the definition of “crime of violence” as set forth in C.L. § 14-101(a) is incorporated and referenced in many other statutes. 9 For example, the commission or intent to commit a crime of violence is an element of several other offenses proscribed by the Maryland Code, potentially exposing individuals who commit any of the enumerated offenses to additional charges ³⁹ based on the circumstances of the crime. 10 The fact that an individual has been charged with a crime of violence, empowers the State to collect the individual’s DNA for inclusion in a State-wide database, 11 may affect the individual’s eligibility for pre-trial release, 12 reduces the options available to the individual as part of a plea bargain, 13 and potentially impacts the evidence that may be admitted against him or her at trial. 14 After conviction, an individual who committed a crime of violence is less likely to be released on parole.

C.S. § 7-301(a)(3)(i). The good conduct credits of incarcerated violent offenders accrue at half the rate of non-violent offenders. C.S. § 3 — 704(b)(2). Individuals serving sentences for violent offenses or those previously convicted for a violent offense are ⁴⁰ also prohibited from participating in most home detention or work release programs.

C.S. § 3 — 404(2); C.S. § 11-723(1)(4)(i). Even after a violent offender has served his or her sentence, an individual’s status as a violent offender may impact his or her rights in family law cases, 15 may affect his or her ability to obtain a job, 16 a professional license, or a certification, 17 and prevents the individual from legally owning certain items of property under penalty of law. 18 Limiting the definition of “crime of violence” by adopting appellant’s preferred interpretation of C.L. § 14-101(a)(9) could potentially impact the application of many other statutes implemented to protect the citizens of Maryland. When the General Assembly codified the offenses of robbery and armed robbery and passed the pertinent amendment to Art. 27 § 643B, it also amended the language of several other statutes that referenced robbery and/or armed robbery in the same way by adding language that referred to the new ⁴¹ sections of the Code. 19 Acts 2000, Ch. 288 (effective October 1, 2000); see also Art. 27 § 372 (Uniform Machine Gun Act); Art. 27 § 410 (First Degree Murder); Art. 27 § 413 (Sentencing in Capital Murder Cases); Art. 27 § 441 (Regulated Firearms); Art. 88B § 12A (Statewide DNA Database System); C.J.P. § 3-804 (Jurisdiction of Juvenile Court); C.J.P. § 10-402 (Wiretapping and Electronic Surveillance); C.J.P. § 10-406 (Wiretapping and Electronic Surveillance). Neither the legislative history of the act that effectuated the amendments, nor the committee notes for the individual statutes directly address why the legislature felt it necessary to amend these statutes to include the statutory references, but neither is there any indication of a legislative intent to effect a substantive change.

It appears that the language was added to call attention to the codification of robbery and armed robbery. Based on a cursory review of published appellate opinions after October 1, 2000, when Art. 27 § 643B was originally amended, it is clear that courts have continued to impose enhanced penalties based on prior convictions for robbery and armed robbery that arose under the common law, not under Art. 27 § 486 and § 487 or under C.L. § 3-402 and § 3-403, as appellant now suggests would be required by the plain language of the enhanced penalty statute. See e.g. Stevenson v. State, 180 Md.App. 440, 443-44 , 951 A.2d 875 (2008) (predicate conviction for robbery in 1992 formed basis for enhanced ⁴² sentence in 2004, pursuant to C.L. § 14-101(e), sentence vacated because defendant had not served the requisite period of incarceration as a result of previous conviction); Coles v. State, 374 Md. 114 , 132 n. 4, 821 A.2d 389 (2003) (predicate conviction for armed robbery in 1991 formed basis for enhanced sentence in 2001, pursuant to Art. 27 § 643B(d), convictions affirmed); Facon v. State, 144 Md.App. 1, 12, 49 , 796 A.2d 101 (2002) rev’d on other grounds, 375 Md. 435 , 825 A.2d 1096 (2003) (predicate convictions for armed robbery in 1989 and 1995 formed the basis for enhanced sentence in 2001, pursuant to Art. 27 § 643B(c)); Gibson v. State, 138 Md.App. 399, 422 , 771 A.2d 536 (2001) (predicate convictions for robbery in 1968 and 1970 formed the basis for enhanced sentence in 2000, pursuant to Art. 27 § 643B(c)); Gerald v. State, 137 Md.App. 295, 313 , 768 A.2d 140 (2001) (predicate conviction for armed robbery in 1994 formed part of basis for enhanced sentence in 2000, pursuant to Art. 27 § 643B).

The question now before us does not appear to have been previously raised or addressed in a published opinion. On the other hand, in no published Maryland opinion of which we are aware has this Court or the Court of Appeals ever questioned that a previous conviction for robbery or armed robbery arising under common law or under an earlier version of the Code, would qualify as a previous conviction for enhanced sentencing purposes upon the defendant’s conviction for a subsequent violent offense. Moreover, the interpretation of C.L. § 14-101(e)(9) advanced by appellant is contrary to the clear purpose of the enhanced penalty statute. As the Court of Appeals opined in Jones v. State, 336 Md. 255, 264 , 647 A.2d 1204 (1994): “the penological objectives of statutes such as § 643B(e) which mandate the extended incarceration of recidivist criminals [are] to provide warning to those persons who have previously been convicted of criminal offenses that the commission of future offenses will be more harshly punished, and to impose the extended period of incarceration upon those who fail to heed that warning so as to protect society from violent recidivist offenders.” ⁴³ See, e.g., Gargliano v. State, 334 Md. 428, 442-45 [ 639 A.2d 675 ] (1994); Jones v. State, 324 Md. 32, 38 [ 595 A.2d 463 ] (1991); Minor v. State, 313 Md. 573, 576 [ 546 A.2d 1028 ] (1988); Hawkins v. State, 302 Md. 143, 148 [ 486 A.2d 179 ] (1985); Garrett v. State, 59 Md.App. 97, 118 [ 474 A.2d 931 ], cert. denied, 300 Md. 483 [ 479 A.2d 372 ] (1984).

Id. (parallel citations omitted). The stated purpose of the statute, to provide a warning to repeat violent offenders that they will be subject to more severe sentences, and to protect the public from those repeat violent offenders who do not heed the warning, would be obstructed if we were to adopt the interpretation of the statute that appellant champions. Robbery and armed robbery have been included as qualifying crimes of violence for as long as Maryland has had an. enhanced penalty statute.

Notwithstanding any asserted ambiguity in C.L. § 14-101(a)(9), we are not persuaded to interpret the enhanced penalty statute in a manner that, in the context of the statutory scheme, is inconsistent with legislative intent. We conclude, therefore, that the trial court did not err in determining that appellant’s previous convictions for robbery and armed robbery qualify as predicate offenses under C.L. § 14 — 101(b), justifying the imposition of a mandatory life sentence for a fourth robbery conviction. Appellant raised no objection to the imposition of two life sentences without the possibility of parole when they were imposed, but we address the circuit court’s application of the enhanced penalty statute. Because “an enhanced penalty imposed improperly is an illegal sentence,” Nelson v. State, 187 Md.App. 1, 11 , 975 A.2d 298 (2009) (quoting Veney v. State, 130 Md.App. 135, 145 ,