*1 years preceding three discipline the effective date of and each thereafter,” year as well as financial information regarding the income, attorney’s monthly assets, creditors, financial obli- then, gations, and restitution paid. Worthy, should he petition reinstatement, would have demonstrate more attentive- ness his obligations publicans to the than he has on the record before us.
We, therefore, determine that imposition on Michael Worthy of suspension Ron an indefinite right with the to apply for reinstatement after six months is the appropriate sanction. ORDERED;
IT SO IS RESPONDENT SHALL PAY ALL AS TAXED BY COSTS THE CLERK OF THIS COURT, INCLUDING THE ALL COSTS OF TRAN- SCRIPTS, PURSUANT TO MARYLAND RULE FOR WHICH SUM JUDGMENT IS ENTERED IN FA- VOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST MICHAEL RON WORTHY.
Tyrone BRYANT Maryland. STATE of 37, Sept. Term, No. 2013. Appeals Maryland.
Court of
Feb. *3 (Paul B. De- Zavin, Defender L. Assistant Public Brian brief, MD), Wolfe, Defender, Baltimore, on for Petition- Public er. Gansler, F. Prucka, (Douglas Gen. Atty. E. Asst.
Susannah MD), brief, Baltimore, Maryland, Attorney General Respondent. HARRELL, GREENE, BARBERA, C.J.,
Argued before McDonald, WATTS, F. ADKINS, and LAWRENCE (Retired, Assigned), JJ. Specially RODOWSKY GREENE, J. sentencing judge’s imposi- of a involves the review
This case for a series of mandatory, enhanced sentence year of a tion offender subsequent drug pursuant Maryland’s convictions 5-608(c) (2002), Arti- statute, § of the Criminal Law Md.Code 5-608(c)). (hereinafter sen- alleges Petitioner § cle Maryland Rule 4- is an under imposed illegal sentence tence 345(a). challenge to the en- *4 hold that Petitioner’s We shall Court, and there- properly is not before hanced sentence fore, appellate of the intermediate judgment affirm the we Further, if to that the issue even we were determine court. imposed the sentence we would not invalidate preserved, was alleged. the grounds on AND PROCEDURAL HISTORY
FACTS trial, Tyrone Bryant jury Petitioner day a three After “Petitioner”) of convicted of distribution was (“Bryant” conspiracy cocaine and to distribute cocaine. Pursuant 5-608(c), § filed a of intent State notice to seek mandato- ry, years enhanced sentence of 25 without possibility based on parole alleged prior drug Petitioner’s convictions. general, requires the statute the defendant to have served at one term of days least confinement at least 180 have separate qualifying two At prior sentencing, convictions. convictions, order qualifying prior copies submitted certified involving docket entries two separate entry, cases. The first docket submitted as exhibit one, 20, contained the information 1995, that on October Tyrone Bryant, 23, 1971, L. date of birth April was sentenced Baltimore No. City Case years three possession with intent to distribute heroin with credit time served accounting from June 1995. The State Identifica- (“SID number”)1 tion number this defendant was 000992305. The second docket entry, submitted as exhibit two, July indicated Tyrone Bryant, date 23, 1971, birth April years sentenced to ten in Baltimore City Case No. for possession with intent to distrib- ute heroin with for time credit accounting served from Octo- ber 2000. The SID number for this defendant was also 000992305. Correctional Management Case Specialist Bibika Institution, Cash from Patuxent after review of the for an file inmate ID with DOC number testified that the file contained a photograph of a man Tyrone named Bryant with unique 1. "The SID number is a Maryland identifier issued (CJIS) System Criminal Justice Information Repository. Central A SID assigned every number is individual who is arrested or otherwise acquires history Maryland, a criminal record in also used as an Department identifier in the Safety of Public and Correctional Services (DPSCS) management systems. information The SID number can be easily page located on Maryland Rap each Sheet above Policy, offender's name.” Md. State Sentencing Comm’n on Criminal 15, 2013), Maryland Sentencing (April Guidelines Manual 10 available http://msccsp.org/Files/Guidelines/guidelinesmanual.pdf. This Court previously explained unique has . "[a] SID . . number is number directly link, linked to fingerprints. an individual’s Because of that no number; nor, persons two should have the proper same SID if the followed, procedures person are should a ever have more than one SID Dett, (2006). number.” State v. *5 as a black described date of birth of November Tyrone eyes. The file further indicated that male with brown from No. 200271002 October Bryant was incarcerated Case September with the Next, fingerprint technician Campbell, Agnes to two regards testified City Department, Police Baltimore cards, evidence. also offered into which were fingerprint contained the two cards Campbell fingerprint testified that June Bryant up” was “locked prints Tyrone from who then asked 2000. The on November again 1995 and them compare fingerprints to take Petitioner’s the witness convictions. prior connected to the two fingerprint cards unneces- steps that these were judge stated sentencing The offenses, judge asked and when the sary prior were arguing if that the convictions counsel he was defense Petitioner’s, say [the that he “can’t counsel stated The court then right Mr. now.” Bryant’s] offenses are not Campbell’s motion to strike Ms. defense counsel’s denied The expert. was not an testimony grounds on the that she out, however, Campbell’s testimony that Ms. pointed court in the determination. “play sentencing a role” would “All sentencing stated: colloquy, judge Following I in this case State’s exhibits right[,] having reviewed] so under Criminal Law qualifications am satisfied 568(c) Bryant That Mr. has been convict- met. [§ ] have been statute and he was requisite previously ed twice under longer one term confinement [sic] incarcerated at least The days than in a correctional institution.” of 25 mandatory, then enhanced judge imposed offense, to for each parole years possibility -without concurrently. served Special timely appeal. Court
Petitioner noted judgment affirmed the unreported opinion, in an Appeals, in imposing trial erred two—albeit part, holding that the sentences, but affirmed offender subsequent concurrent — This offender sentences. subsequent of one of the imposition certiorari, Bryant granted Court (2013), following questions: A.3d 47 answer *6 (1) a claim that the failed Is to sufficient present imposition evidence for the a subsequent offender sen- tence reviewable on as an appeal challenge illegal to sentence, or, alternative, in the of the trial judgment 131(c)? court under Rule 8—
(2) Did the trial court err in imposing an enhanced sentence of 25 years parole without where the to prove State failed that the convictions belonged to Petitioner?
DISCUSSION The principal State’s contention is that Petitioner has any challenge imposition waived to his sentence because he to object during failed the sentencing proceeding. Peti- urges tioner this Court to review his enhanced despite below, no objection an illegal as pursuant 4-345(a), or, Md. Rule in alternative, pursuant to the 131(c). scope Court’s of review under Md. Rule Before 8— turning to each Petitioner’s arguments proffered and review, grounds this Court’s we procedural address the rules regarding preservation generally. of issues 131(a)2
Md. Rule provides ordinarily courts appellate 8— will not decide an issue not raised in or by decided the trial words, court. In other only will appellate courts address review, issues that are properly preserved for and issues that are not preserved are deemed The purpose waived. behind preservation principles and waiver well is established: 8-131(a) purpose of Md. Rule is to ensure fairness for
all parties in case to promote orderly and administra- tion of law. Fairness and orderly administration of justice by requiring advanced bring counsel to the posi- tion of their client to the attention of the lower court at the trial so that the trial court «can pass upon, possibly and any reasons, correct in proceedings. errors For those 8-131(a) provides pertinent part Md. Rule “[o]rdinarily, appellate any plainly court will not appears decide other issue unless it by court, the record to have been raised in or decided the trial but may the Court decide necessary guide such an issue if or desirable to expense trial court or to delay appeal.” avoid and of another (a) appellant who desires 8-131 requires Md. Rule to have error on appeal or other ruling contest a court’s so The failure to do bars objection at trial. timely made a error, of the claimed obtaining from review the appellant of right. a matter
Robinson v. omitted). (citations provisions, these Despite and quotations circumstances, “if necessary may limited courts appellate expense the trial court or to avoid guide desirable an issue that appeal[,]” decide delay of another 8-131(a).3 circumstances, howev- Md. Rule Such preserved. er, case. present are not 4-323(c), rulings *7 applicable
Additionally, Rule
objec
that an
evidentiary rulings, provides
other than
orders
is
or
“at
time the
or order made
ruling
be made
tion must
for
review. See
appellate
to be
sought”
preserved
order
4-323(c).
object
“If
no
to
to
opportunity
a
has
party
Md. Rule
made,
objection
it is
the absence
an
a
or order when
ruling
if
is
a waiver....
there
[but]
that
does not constitute
at
time
made, the
ruling
an
or
when
object
to
to
order
opportunity
an
(and
request
to
court of the relief
do so
inform the
failure to
State,
219,
ed)
206,
v.
355 Md.
a waiver.” Hill
may constitute
(1999)
199,
(emphasis
original).
734 A.2d
206
sentencing pro
to
trial and
applies
Rule
both
4-323
910,
State,
132, 149, 729 A.2d
v.
354 Md.
ceedings. Conyers
(1999).
sentencing
challenges
It
to
919
is well settled
if
during
not raised
generally
are
waived
determinations
State,
v.
Brecker
sentencing proceeding. See
132, 150-51,
State,
Conyers
Md.
729 A.2d
919-20
3. See
v.
also
(1999) ("While
appellate
address and
an
court has some discretion to
issues,
be exer-
unpreserved
ordinarily this
will not
decide
discretion
salutary purpose
preservation
of issues have
cised.
rules
requiring
preventing
that all issues be raised in
unfairness and
court,
in all cases
by
these rules must be followed
decided
the trial
unpreserved
capital
usually
We
elect
review an
including
cases....
argued,
thoroughly
and where a
only after
been
briefed and
issue
it has
error, (2)
(1)
provide guidance
help
recurring
decision would
correct
trial,
likely
if there is
to be a new
offer assistance
when there
conviction.”).
subsequent
on the
collateral attack
(1985);
Inst.,
Director,
497 A.2d
v.
Towers
Patuxent
678, 682-83,
(1973).
16 Md.App.
299 A.2d
In Brecker
State,
v.
example,
objected
the defendant
to the amount of
restitution ordered
court
by
during
sentencing
trial
his
but
proceeding,
argued
the first time
appeal
that the
trial judge
considering
erred
ability
defendant’s
pay
Brecker,
ordering
before
restitution.
(2006) (involving challenge to a upon sentence based a claim of impermissible sentencing considerations, objection no where had been made during sentencing proceedings). In Reiger Special the Court of Appeals noted that:
When,
inas
a judge’s
from
statement
the bench
about the reasons for the
gives
sentence
rise to the claim of
impermissible
considerations,
defense counsel
has good
speak
reason to
Aup.
timely objection
serves
important
in this
purpose
Specifically,
context.
gives
it
court opportunity in light
reconsider
complaint
defendant’s
it is premised upon improper
*8
factors,
clarify
or otherwise to
the reasons for the sentence
to
such
stated,
order
alleviate
concerns.... Simply
when
object,
there is time to
there is opportunity to correct.
(footnote
701,
170
at
Md.App.
counsel made no at the time of Petitioner’s sentenc- Indeed, ing. during the sentencing trial proceeding, when the judge prosecutor asked the he why having the witness take Petitioner’s fingerprints for an comparison, in-court the prosecutor that my commented is that “[i]t understand [sic] going [defense is to challenging authenticity!!,]” counsel] be the to which replied defense counsel not I “[t]hat’s correct.
662 wanted briefly Bryant to the State that Mr. simply indicated twenty- looking because he’s every potential road blocked to object counsel also failed parole.” five without Defense the by judge. Specifically, the trial prompted even when you telling “are that these defense counsel me judge asked to counsel re- convictions are not his?” which defense two I Now on say right “I can’t can’t that now.” sponded speak, “Bryant’s had good contends that counsel the State appeal, argue that the convictions speak proffered up reason evidence did Bryant not the State’s belong did and/or and those Bryant a nexus convic- properly prove between points out that “had defense counsel tions.” The State further that the State had not nexus between argued establish[ed] convictions, court would Bryant and the two introduced ... or an opportunity have had the reconsider evidence the court specify why to otherwise reasons opportunity nexus had been established.” believed may be grounds There are limited which sentence despite object this Court failure by reviewed properly review, One such avenue proceedings. time 4-345(a), is Md. Rule which provides relevant to this time.” any sentence at See may illegal a “court correct (1985) State, A.2d Md. Walczak v. allegedly imposed the trial court has (holding that “when law, ordinarily should issue permitted objection if no was made appeal reviewed on direct even court”). one, only exception applies This is limited trial v. “inherently” illegal. Chaney See to sentences are (“The (2007) 509-10 Md. allowing collateral and belated attacks scope privilege, this relief, excluding waiver as bar to on the sentence and however.”) narrow, Griffiths, (emphasis original); State (“Rule [4-345(a) ] Md. finality[.]”).4 rule general limited exception creates a ‘illegal sen- consistently category defined “We have excep- Additionally, we of this limited have reiterated narrowness specifically declining exception finality, to extend the tion to the rule of
663 limited illegality tence’ as to those situations in which the itself; e., in the i. inheres sentence there either has been no particular sentence warranting any conviction for offense or is not permitted upon the sentence one for conviction and, reason, imposed intrinsically which it was either is 466, 397 substantively Chaney, and unlawful.” Md. at 918 42, State, A.2d at 510. See also Pollard v. 394 Md. 904 (2006) (holding A.2d imposed 501 sentence “[t]he neither in illegal, prescribed excess of the offense for convicted, which Petitioner was nor were terms invalid”). constitutionally statutorily sentence itself The distinction those between sentences are “ille sense, gal” in commonly subject ordinary understood limitations, procedural review and and those that “inher are ently” subject any illegal, correction “at time” under Rule 4-345(a), been has described the difference between a itself, error in procedural substantive the sentence and a error State, in proceedings. See Tshiwala v. 424 Md. (2012) (“[Wjhere 612, 619, A.3d the sentence imposed not inherently illegal, and where the com matter plained error, is a procedural complaint does illegal 345(a).”); concern an purposes sentence Rule 4 — Wilkins, 269, 284, State v. 393 Md. 900 A.2d (“[A]ny in in illegality must inhere judge’s In defining actions. an illegal sentence the focus is not on whether the judge’s per ‘actions’ are se but illegal whether is illegal.”). the sentence itself As aptly by stated Judge Jr., E. Moylan, speaking Charles for the Court Special State, Appeals the recent Carlini v. “[tjhere Md.App. (2013), are illegal countless sentences sense ... simple [and] are, contrast, illegal [t]here sentences the pluperfect critically sense ... there is a dispositive difference between procedurally illegal sentencing process inherently ille itself,” mill gal “only is grist ] the latter for the [ alleged impermissible sentencing to circumstances of considerations. (2012). See Abdul-Maleek v. *10 664 4-345(a)[.]” our Accordingly, inquiry Maryland
of Rule inherently illegal. itself is case is whether Petitioner’s sentence illegal, his contention that his sentence is To support State, A.2d 314 Md. 552 Petitioner on Bowman v. relies (1989). case, 25 was In that the defendant sentenced 1303 an enhanced parole the of under years possibility without of a sentencing for a third conviction crime of violence. statute to the pursuant trial the defendant judge sentenced twice relevant statute on the belief that defendant had been a “crime of robbery, qualifies of armed which as convicted subsequent the offender sentenc purposes violence” the Bowman, 731, 552 Both statute. 314 Md. at A.2d at 1305. ing occurred in the District of predicate convictions Columbia. fact, of the convictions for armed although one two robbery. robbery, appeal, the other conviction was Id. On for “simple conviction was determined robbery not under of Columbia law did robbery,”5 which District of a violent crime for necessarily meet definition Maryland enhanced statute. purposes Therefore, not support impo conviction could predicate of an and this Court vacated sition enhanced Bowman, at A.2d at 314 Md. illegal. sentence as 1309. however, Bowman, from distinguishable
The conclusion in
In that
predicate
case.
one
the two
present
qualify
subsequent
convictions
under the statute for
did
sentencing.
only one of
offender status and enhanced
Where
prior
proven
satisfy
require-
the two
convictions was
statute,
“permit-
the enhanced sentence was not
ments
1309;
Bowman,
at
at
ted
law.”
314 Md.
A.2d
Walczak,
is,
there
Md. at
A.2d
951. That
robbery
We
definition
under
of Columbia
stated that the
District
acts,
interpreted
pickpocketing
such
"ha[d]
law
include
been
example,
putting
involve stealth
violence or
in fear”
which
but not
hand,
pickpocketing
Maryland,
mere
would be
that "in
on the other
Bowman,
larceny[,]
a crime of
314 Md. at
violence[.]”
Temoney
(citing
This Court’s
in
holding
Chaney,
hand,
on the other
case,
In
instructive.
that
Chaney challenged
imposition
restitution and employment conditions of his probation. Spe-
cifically, Chaney argued that his
illegal
sentence was
“in large
part because no evidentiary foundation was laid to support”
those conditions of probation.
The Court of
properly
was not
regard
punishment
to his enhanced
with
conviction,
review, stating
“[u]pon Bryant’s
preserved
sentencing;
for enhanced
thus the sentence
eligible
he became
substantively unlawful.
intrinsically
was not
imposed
itself, but the sufficien
is not the sentence
challenged
What is
sentence, which, if not raised
support
of the evidence to
cy
court,
first time on direct
cannot be raised for the
at the trial
convictions both
agree.
Where
appeal.” We
and the trial
the enhanced
statute
qualified under
met,”
that the
... have been
qualifications
court was “satisfied
Therefore,
“inherently illegal.”8
was not
Petitioner’s sentence
See
complaint
properly
is not
before
Court.
Petitioner’s
that the
Chaney, (holding
A.2d at 510
“any
and that
other defi
illegal
sentence was not
challenged
for an
may
grounds
appellate
be
ciency
the sentence
it,
impermissible
imposing
court to vacate
considerations
it—
raised in or decided
ordinarily
example-must
timely-filed
in a
appellate
trial court and
review
presented
Wilkins,
Moreover, we
stated
appeal”).
direct
*12
an
sentence is not an alternative
illegal
“a motion to correct
of the
obtaining
appellate
proceed
of
belated
review
method
in a
judgment
to the
or
and sentence
ings
imposition
that led
at 768.
criminal case.”
667 action a jury, appellate has been tried without the When on court will review the case both the law and the evidence. judgment set of the trial It will not aside the the erroneous, unless will clearly give regard evidence due to the of the trial opportunity judge credibility court to of the witnesses. 8-131(c)
Rule “clearly embodies the erroneous” standard applied by appellate courts in of review bench trials. See Davis, (1977) 119, 122, Davis v. 280 Md. 372 A.2d 232 [8-131(c), 1086,] (“Maryland Rule Rules 886 previously provide[s] the standard of review of actions tried without a jury.... The ‘clearly erroneous’ no concept newcomer Maryland State, See procedure!.]”). also Lambert v. (1950) (“That 332 rule was adopted
purpose preventing possible miscarriage justice by permitting the determination of judge away one take liberty life or of an by any accused without a review other tribunal.”); State, 450, 456-60, Md.App. Williams v. A.2d (providing thorough 735-38 discussion 131(c)). history of what is now Rule 8— In arguing 8-131(c), that is proper review under Rule Petitioner relies on Md.App. Ford A.2d (1988), which also involved the of a subsequent appeal offender. On the defendant argued the State failed to prove conviction his Ford, enhanced sentence beyond reasonable doubt. Md.App. countered that issue was before properly the appellate court because did object defendant at the time the sentence was imposed. fact, The Court of Special Appeals noted that “[i]n appellant to object failed twice” but apparently then concluded no there was opportunity reasonable defendant object, stating that:
At the time the prosecutor making his proffer record, appellant’s no appellant obligation was under to say Until anything. prosecutor placed copy certified *13 the conviction into or produced competent evidence other evidence, there nothing was to A proffer controvert. is not the that a will parties stipulate proffer
evidence unless
silence; hence,
his
there was
Appellant
suffice.
continued
the
agreement
proffered
no
facts were
when
imposed.
was
Ford,
Then,
at
We
the above
mean
evidence;
to
thus
opportunity
object
was no reasonable
to
Hill,
at
not at issue on
See
preservation
appeal.
(“If
object
no
party
opportunity
669 8-131(c) an provides with Petitioner that Rule avenue agree exercise an authority for this Court to its review otherwise 8-131(c) unpreserved or expressly waived issue. Rule neither nor an implicitly provides exception general preserva- our objection Rather, tion rules or contemporaneous rule. (c) merely subsection defines the standard of review to be by applied appellate sitting court in of nonjury review Davis, 122, trials. See 280 372 Md. at A.2d at 232.
Footnote 9 at the end of the Ford decision further clarifies
point.
this
The footnote states that
recognize
“[w]e
this
might
a premium
seem to
on a
put
defendant’s silence
so;
detriment of the
This
State.
need
the State need
State,
317,
only
ruling
follow the
of Butler
46 Md.App.
416
[v.
(1980)
State,
],
105,
A.2d 773
Teeter
65
499
Md.App.
[v.
A.2d
State,
(1985),]
622,
503
29 Md.App.
[v.
Sullivan
349 A.2d
(1976).]” Ford,
663
73
at 406 n.
A.2d at
Md.App.
534
999 n.
Butler, Teeter,
A9.
review of
Sullivan
that in
reveals
each
cases,
preservation
of those
issue
by
was not addressed
8-131(c).
Butler,
review under Rule
in
Specifically,
Court
Special
reached
merits of
Appeals
the enhanced sen
tencing
injustice
issue because “manifest
possibly
would
result
Butler,
if
[the
review the issue.”
46 Md.App.
court] d[id]
at
at
416 A.2d
Court of Special Appeals
Teeter reviewed the merits of the
challenge
defendant’s
as an
illegal sentence under this
holding
Court’s
See
Walczak.
Teeter,
(“[Defendant]
at
Md.App.
at 508
preserve
review,
concedes that he failed to
this
our
issue for
but reminds us that an assertion of an unauthorized sentence
may
for
be considered
time on appeal.”). Similarly,
first
Special
the Court of
in Sullivan
Appeals
only addressed the
legality of the
discussing
without
preservation. Sul
livan,
(“The
at
Md.App.
No appears other to apply case Rule as providing enhanced of review. In appellate scope Sutton v. (1999), Md.App. 738 A.2d the intermedi- Ford, Md.App. court cited appellate ate to raise failure proposition “[the defendant’s] produced sufficient evidence the issue of whether the State seeking does not his review prior preclude conviction Ford, language tribunal.” From this Sutton the, it merits of the defendant’s concluded that would address the predi- claim that there was insufficient evidence offender, subsequent cate convictions sentencing. to object during failure despite the defendant’s *15 court, 328, A.2d at 128 at 738 297. Sutton Md.App. 131(c) however, rely not Rule to demonstrate did 8— matter, an of of but reviewed the issue as scope its review the Walczak, 427, 302 at A.2d at illegal citing Md. 488 Therefore, argument that Rule reject 951. we Petitioner’s 8-131(c) of an alternate basis for this Court’s review provides sentencing. Petitioner’s imposed illegal an summary, allegation 4-345(a) may Rule be raised meaning
sentence within 4-345(a) is not under Rule any illegal If the sentence time. allegation and the not is waived allegation preserved, court, appellate the court. The properly before (a) however, of its under 8-131 in the exercise discretion Rule so here. may unpreserved an issue. decline to do review We that, objection hold where there was no below Accordingly, we so, his challenge to do despite opportunity Petitioner’s appellate is for the court’s preserved enhanced sentence review.
Assuming, properly that the matter were arguendo, Court, we hold the evi before this would nevertheless presented sentencing judge dence was sufficient conclude that Petitioner committed the qualifying 5-608(c) § beyond offenses a reasonable doubt.10 under must penalty, “When the State seeks enhanced the State (2002), 5-608(c) § of the Criminal Law Article states: Md.Code 10. (a) person A or of who is convicted under subsection this section (a) conspiracy to commit included in subsection of this section crime years is imprisonment less than shall be sentenced for not $100,000 person subject exceeding previously: to a fine not if the each element of the enhanced penalty beyond statute doubt, reasonable including identity defendant’s in the State, v. 727, Dove previous qualifying convictions.” Md. (2010). 746, 976, 4 A.3d proven This is by competent State, Jones v. evidence all the statutory elements. 324 Md. (1991). 595 A.2d It should be noted “[t]he strict rules of not apply evidence do proceed- ing[.]” Smith 162, 166, (1986). A sentencing “task judge’s statutory within fixed constitutional limits is to type determine the and extent of punishment guilt after the issue of has been determined. Highly relevant —if not essential —to of an his selection appro- priate possession of the fullest information possible concerning the defendant’s life and characteristics.” Smith, 308 Md. at Williams v. 517 A.2d at (quoting York, New 337 U.S. 69 S.Ct. 93 L.Ed. (1949)). 1337, 1342 (i) has served at least one term of days confinement of at least 180 a correctional institution as a result of a conviction: (a) § § under subsection section or 5-609 or 5-614 of *16 subtitle; this conspiracy (a) of 2. to a commit crime included in subsection of subtitle; § this section or 5-609 of this or 3. of a crime under of the laws another state or United States (a) a would be crime included in subsection of this or section State; § 5-609 of this subtitle if committed in this twice, (ii) has been if separate convicted the convictions arise from occasions: (a) subtitle; § 1. under subsection of this or section 5-609 of this conspiracy (a) of 2. to commit a crime included in subsection of subtitle; § this section or 5-609 of this of 3. under crime the laws of state or another the United States (a) that would be crime included in subsection of this section or State; § 5-609 of this subtitle if committed in this or any 4. of combination of these crimes. (2) may suspend any part The court mandatory of minimum years. sentence of 25 (3) Except provided Article, § as in of 4-305 the Correctional Services person eligible parole during mandatory for minimum sentence. separate A occasion succeeding is one in which the second crime is committed charging after there has been a document filed for the
preceding crime. sufficiency of the evidence challenges
Petitioner convictions, name- prior qualifying in the identity establish his of heroin with intent to distrib- ly possession a conviction for with intent distribute ute in 1995 and heroin possession in the existence 2001. order first sentencing, convictions at Petitioner’s State qualifying two involving docket copies submitted certified entries as one entry cases. docket submitted exhibit separate The 1995, 20, L. Tyrone the information that on October contained 23, 1971, in Balti- sentenced Bryant, April date birth was for years to three City possession more Case No. with for served heroin credit time with intent distribute num- from The Identification accounting 1995. June (“SID number”) The for defendant was 000992305. ber two, as exhibit indicated that entry, docket submitted second 23, 1971, Bryant, April date of birth July Tyrone on City No. years ten Baltimore Case was sentenced to intent to with possession with distribute heroin from The accounting credit for time served October 2000.11 also number this defendant was 000992305. SID from Management Specialist Case Bibika Cash Correctional Institution, inmate after review of case file Patuxent file ID testified that the contained with DOC number with Tyrone Bryant of a man named a date photograph 22, 1969, with described as black male birth of November five. was submitted exhibit eyes. photograph brown This was incarcerat- Tyrone Bryant The file further indicated that September ed No. 200271002 from October Case 12, 2007. (“PSI investigation report report”), which pre-sentence sentencing,”12 conjunction [Petitioner’s]
was with “prepared namely confirmed additional documents in the It is file— report underlying probable for the and the statement of cause PSI arrested June conviction —that Petitioner was *17 July was 2001 on October and convicted incarcerated listed Case No. 200271002. All of for the offense sentencing judge. readily was available to the information pur- report prepared that the PSI was 12. Petitioner concedes opinion poses sentencing proceeding. dissenting asserts that 673 part was of the case file before the sentencing judge. The report PSI contained Tyrone extensive information about Bryant, with a date of birth of November and SID report number 992305. The also catalogue PSI contained a Tyrone Bryant’s criminal that history included the convictions 295243003 and Case Nos. 200271002. Besides listed date, birth all of in report the information the PSI concerning these convictions was consistent with the information con- in tained the docket entries introduced one as exhibits and two. discrepancies clearly present
While there are a few
in the
record,
disparate birth
namely
dates and incarceration dates
conjunction
Tyrone Bryant,
review the PSI
report13
with the docket entries reveals that
has
the defendant
same SID number
in all three cases. As this Court has
previously explained,
SID ... number is a unique
“[a]
number
directly
linked
an individual’s
fingerprints. Because
link,
number;
no two persons
nor,
should have the
SID
same
followed,
if
proper
procedures are
should a person ever
Dett,
have more than one SID number.” See State v.
sentencing judge
report
did
imposing
not consider the PSI
when
report
enhanced sentence because the PSI
was
identified as an
Here,
"exhibit” that the Circuit Court
judge
reviewed.
clearly
report
her
exercised
discretion to order a PSI
under Md.Code
(1999,
Vol.),
Repl.
§
6-112 of the Correctional Services Article.
report
prior
The PSI
contains the record of Petitioner’s
convictions and
that,
prior
history.
his
institutional
highly unlikely
It would seem
in a
involving
imposition
case
mandatory
of a
enhanced
Moreover,
sentencing judge
ignored
report.
would have
the PSI
we are
any
requires
judge
not aware of
rule that
to announce on the record
piece
every
of evidence or the source of evidence considered
imposing
a sentence.
13. There have been several
appel-
instances which the intermediate
upheld
late court has
an enhanced sentence
based on evidence
State,
report.
in a
Md.App.
found
308,
defendant’s PSI
v.
See Sutton
(1999) (holding
report
A.2d 286
PSI
was sufficient
prior
long
object
evidence of
convictions so
as counsel does not
to its
State,
accuracy);
(1991) (same);
Md.App.
Collins v.
A.2d 8
Md.App.
(holding
Hall
arrestee’s order, the warrant and commitment on the arrest number detained). no made unjustifiably Petitioner has arrestee was accuracy number this case. as to of the SID challenge the Tyrone a photograph record was Also included the of his predicate was of the case file one Bryant part Petitioner was likeness the image’s convictions. Moreover, challenged never the State’s Petitioner contested. the qualifying to commit person assertion that he was sentencing directly when asked offenses even predicate Therefore, sentencing judge exercised judge. properly that sufficient evidence her when she determined discretion her conclude that Petitioner committed before a reasonable doubt. beyond offenses predicate THE OF APPEALS JUDGMENT OF COURT SPECIAL TO PAY AFFIRMED. PETITIONER COSTS. WATTS, JJ., dissent.
J. MCDONALD McDONALD, J., WATTS, J., joins. dissenting, which I Respectfully, dissent. I would find that the circumstances of
Under discretion, pursuant Maryland its Court should exercise 8-131(a), I of the legality Rule to review the two prove failed to predicate would hold the State beyond a reasonable doubt. offenses (2010), 727, 746, 4 Md. Dove penalty, an enhanced “When the State seeks we held: penalty of the enhanced stat- must each element doubt, the defendant’s including ute beyond reasonable (Citations qualifying in the convictions.” identity previous omitted). 21, 2010, approxi- September Dove was issued on case in the instant weeks before the mately two Thus, time Petitioner’s on October occurred identity Petitioner was the defen- sentencing, proof —that required. offenses—was dant in the Here, prove beyond State failed reasonable doubt that Petitioner was two predicate the defendant of- At sentencing, fenses. State introduced into evidence copies certified docket entries two convictions: a 1995 a 2001 copy conviction and conviction. The certified docket entries the 1995 conviction indicated Octo- *19 20, 1995, a Tyrone Bryant, 23, 1971, ber April born was sentenced to three years’ imprisonment possession for of a distribute, controlled dangerous substance with intent to with for beginning credit time served 1995. The June certified of copy the docket entries for the 2001 conviction reflected 13, 2001, 23, 1971, that on July Tyrone Bryant, a April born was sentenced to ten years’ imprisonment of possession a distribute, controlled dangerous substance with to intent with credit time served beginning October Oddly, the fingerprint State’s expert examinations admitted on cross-examination at that she had no “scientific training” in making fingerprint comparisons agreed and she was “a in layperson regard!.]” Defense counsel and, moved strike the expert’s testimony, although denying motion, the circuit court stated that expert’s testimony would not a “play role” the circuit court’s sentencing decision. produced witness, Cash,
The State a Bibika who testified that she a 301637,1 reviewed file for inmate number and according file, inmate, to the Tyrone Bryant, was born November incarcerated, had been under case number from October to September 2007. When asked how she was identify able to inmate Tyrone number 301637 as Bryant, responded Cash that the file ID “photo contained a picture” with the Tyrone name Bryant and the identification number it.2 Cash thus identi- Majority 1. The refers to this as number “DOC ID number 301-637.” 657-58, 672, Majority Op. See 136-37.
2. The inmate identification number —301637—is distinct from state (“SID”) 000992305—allegedly identification assigned Tyr- number — of of Bryant, with date birth Tyrone as
fíed Petitioner subject 22,1969, inmate number as November incarceration; identify attempt Cash made no of the 2000 conviction. subject as the of the 1995 Petitioner evidenced, And, common name. as “Tyrone Bryant” in the dates of birth of individual discrepancy there subject of the 1995 and 2001 convictions and listed as than as identified Other of birth of Petitioner Cash. date the sub- identifying photograph Tyrone Bryant Cash incarceration, identify- no there was evidence ject the 2000 1995 or 2001 subject as the of either the Petitioner ing varied in And the dates birth Petitioner conviction. and the copies of Corrections records certified Department Thus, view, the my for the 2001 conviction. docket entries beyond a reasonable was insufficient establish evidence subject 1995 or the of either the that Petitioner was doubt sum, I hold that: the State 2001 conviction. would beyond a offenses reasonable failed establishing doubt, testimony no or evidence that there was *20 all, doubt, or that Petitioner was a reasonable even beyond conviction; (2) the failed to prove of the 1995 State subject the conviction; and the subject of the 2001 was the Petitioner pertained failed to the and convictions State common given discrepancy same the name person, in of dates birth. before the
Although Majority states that record included, things, the among pre-sentence other circuit (“the entries with investigation Report”) docket report (“SID”) number, a review of state identification same hearing reveals that circuit transcript of the in finding or the SID number rely Report on the court did a beyond convictions had been established that the doubt, and nor the SID number Report neither reasonable that Petitioner was reasonable doubt beyond establishes añ- circuit court simply of conviction. The subject either any allegedly Bryant. questioned about SID number Cash one assigned to Petitioner. nounced, exhibits,” based on its review of the “State’s that the predicate convictions were beyond two established a reason- numbers, Dett, As to in able doubt. the SID (2006), stated, we SID ... “[a] unique directly number is a number linked to an individual’s link, of that no fingerprints. Because two should have persons number; nor, procedures proper the same SID if the are followed, should a have person ever more than one SID added) (footnote omitted). (Emphasis number.” The critical “if language is the proper procedures are followed.” In circumstances, here, such as discrepancies where there are identifying convictions, information related the prior it matching is critical that the SID numbers were the result of “proper procedures” they if are the sole or primary basis for a finding beyond reasonable doubt. There no information in is regarding the record how the SID number —000992305—was obtained or entered for Petitioner either the 1995 convic- tion the 2001 example, conviction. For had the circuit court chosen to rely the SID number—which record reflects it did not—the circuit court would have no way knowing had whether two defendants with the same name but different dates assigned birth were the same SID number. This Court is confronted with the circumstances that the SID number 000992305 assigned is a defendant two court files name; where the defendant has common a different date of is birth attached to Department Corrections per- records (the case) taining to one the cases and to the Report; and Petitioner has not been in any identified manner as being subject (the case). conviction the second case It impossible conclude beyond reasonable doubt that procedures “proper were followed” and the instant SID num- applies solely ber to Petitioner. *21 Report,
toAs the the State did introduce a of copy the into Report during sentencing i.e., evidence there is no indi- — cation that the was one Report of the State’s exhibits that the circuit court reviewed-and the circuit court neither mentioned in its Report the determination nor otherwise indicated that Report the concerning contained information the predicate the Thus, is no to conclude that there basis
convictions. by available consideration is a evidence Report part doubt determination. the reasonable reviewing this Court confusion, undermining proof of Petitioner’s Adding and the doubt, Report a the identifies identity beyond reasonable 22,1969. date of birth as November Petitioner’s the that Report, the circuit court had and I am aware that circuit court report the after the parties the referred to convictions. predicate determination to the announced its however, short, establishing Report of that the falls far This “exhibit,” or relied or that the circuit reviewed was And, defense coun- making the determination. Report the accuracy Report prior of sel did concede the proving If determination.3 the standard circuit court’s “more than not” or likely prepon- was a predicate convictions standard, Report after discussing then perhaps derance now that the permit holding a the fact would be sufficient exhibit, court likely the circuit considered was an Report for prov- its standard making it determination. prior convictions, however, a proof beyond reason- ing predicate doubt; in this it cannot be from the record able or that the Report part was evidence discerned that Report making court relied on or even saw the before circuit predicate that established the determination its doubt. beyond convictions reasonable Here, mandatory of a minimum imposition we address twenty-five years’ imprisonment possi- without proof beyond under the standard of reason- bility parole not infer evidence as to Petitioner’s able doubt. We should such identity for the 1995 and 2001 convictions where evidence beyond reasonable doubt. proven not exist and was not does resentencing, including I determination remand for would accurately Although Majority asked observes when whether convictions, position were not Petitioner's defense his these now[,]” speak, say right "I can’t responded, counsel can’t I response alleviate the State the burden to did not beyond doubt. a reasonable offenses *22 the circuit court to the establishment the two predicate offenses beyond reasonable doubt.4
Judge McDONALD has authorized joins me state that he in this opinion. “Historically, Supreme protec- [the jeopardy Court] has double found inapplicable sentencing tions proceedings, because the determina- ” place tions at do not jeopardy issue a defendant in ‘offense[.]’ an 721, 728, California, 2246, 2250, Monge v. 524 U.S. 118 S.Ct. (1998) (internal omitted). L.Ed.2d Monge, citations U.S. S.Ct. Supreme Court held that the Missouri, exception Bullington established in 451 U.S. 101 S.Ct. Jeopardy applies L.Ed.2d the Double Clause —that capital proceedings in cases—does extended to non- capital sentencing proceedings because: [sentencing decisions favorable to the generally ] cannot defendant! analogized acquittal. to an appeals We have held where an ground prosecution overturns conviction on the that the proffered guilt, finding insufficient comparable evidence is acquittal, Jeopardy precludes an and the Double Clause a second proof trial. sentencing pro- Where similar failure of occurs however, ceeding, analogy inapt. pronouncement simply qualities does finality not “have the of constitutional acquittal.” attend (Internal omitted). citations