Gardner v. State

GARDNER, Lee Robert Maryland. STATE Term, Sept. No. Maryland. Appeals

Court 21, 1997. Feb. Harris, E. (Stephen Colvin, Public Defender Assistant

Mark Baltimore, brief), Defender, petitioner. on Public (J. Jo- Attorney General Davis, Assistant Anderson Celia Baltimore, brief), General, Curran, Jr., on Attorney seph respondent. ELDRIDGE, C.J.*, MURPHY,

Argued before KARWACKI, BELL and CHASANOW, RODOWSKY, RAKER, JJ.

BELL, Judge. Chief was not issue1 that case, to decide an we are asked

In this answered, in and, thus, Whack was not presented, (1995): single on a a sentence whether 659 A.2d 1347 pursu may be enhanced or information indictment count of an Volume) (1957, Replacement Maryland Code ant to both Balti- 286(c)2 The Circuit Court 27, § 293.3 Article * retired, C.J., hearing conference of in the participated Murphy, now Court; being recаlled after of this an active member this case while 3A, Constitution, IV, participated he also Article Section pursuant to the opinion. adoption of this decision and the in the issue, namely, whether presents a second Certiorari 1. The Petition for holding did not that the State Special Appeals erred in the Court Penalties,” notifying petitioner of "Notice of Additional withdraw its penalties. view of our In pursue additional intent the State's statutes, address this issue. we do not applicable interpretation of the part, pertinent that: provides, in 2. That section (b)(1) or subsection (1) subsection convicted under person A who is (b)(1) section, or (b)(2) subsection conspiracy to violate or of of this section, (b)(2) imprisonment for not less shall be sentenced of this previously been convicted: person years if the than 10 section; (b)(2) (b)(1) (i) of this or subsection under subsection tion these than or subsection in accordance (b)(1) offenses, prison sentence of years, or subsection (b)(2) with Article as a second ^[*] of this person may be ^[*] (b)(2) a section, IB, § person offender ^[*] of this section 11 of or of sentenced ^[*] paroled during that may not be the Code. conspiracy to violate subsec- Sí! under subsection any combination of ^[*] suspended to less period only (b)(1) relevant, that: provides, as section 3. That Viewing in the affirmative. City query more answered constructiоn, statutory Special the issue as one of the Court judg- unpublished opinion affirming issued an Appeals Lee Having petitioner ment. issued certiorari at Robert judgment we shall reverse the request, Gardner’s appellate intermediate court.

I. Although presents complex, the issue it the facts of this petitioner case are not. The was convicted jury possession possession of heroin and of heroin with the intent served, in Having previously to distribute. been accordance 4-2454, Maryland with Rule with both a “Notice of Additional Penalties,”5 Penalties,”6 and a Mandatory “Notice of he was (a) Any person [the convicted of оffense under Health—Con- is, Dangerous subheading trolled if Substances] the offense is a offense, subsequent punishable by imprisonment second or term authorized, by

twice that otherwise rized, twice the fine otherwise autho- byor both. 4-245, Maryland pertinent part, provides: Rule (b) Required permits Notice of Additional Penalties. When the law specified but does not mandate additional because of a conviction, previous the court shall not sentence defendant as a Attorney offender unless ‍​‌​‌‌​‌​‌​​​​‌​​​​​​‌​‌​​​​​​​​​‌‌‌​​‌​​​​‌​​‌‌‌‍the State’s serves notice of the alleged prior conviction on the defendant or counsel before the acceptance plea guilty days of a or nolo contendere or at least 15 Court, days before trial in circuit court or five before trial in District whichever is earlier. (c) Required Mandatory pre- Notice of Penalties. When the law specified previous scribes a sentence because of a convic- tion, Attorney prior alleged the State’s shall serve a notice of the days conviction on the defendant or counsel at least 15 before sentencing days sentencing in circuit court or five before in District notice, Attorney give timely Court. If the State’s fails to the court postpone days sentencing shаll at unless least the defendant requirement. waives the notice petitioner exposure, 5. That notice advised the of his as a result of convictions, prior imprisonment certain a enumerated to for twice the term otherwise authorized. notice, petitioner In that the was informed that the State intended to years parole. seek a sentence of 10 count7, distribute for the with intent to possession sentenced 293, imprisonment, §§ to to both pursuant benefit of 10 of which were to be served without the first the sent appeal challenging The noted an petitioner parole.8 petitioner’s the Special Appeals rejected The Court of ence.9 indicated, circuit we and affirmed the court. As arguments important this issue. certiorari to address granted merged, possession for sen- petitioner’s conviction for of heroin 7. The possession with the intent tencing purposes, count for of heroin into the to distribute. recidivism, growing problem of States across the combat the 8. To nation, including government federal enacted stat Maryland, and the i.e., calling punishments, for harsher maximum and utes enhanced imposed upon those first time offenders. See minimum than 517, 521-22, 391, Raley, 113 S.Ct. 121 L.Ed.2d 506 U.S. Parke v. (1992). designed were be legislative acts deterrents 401-03 Such protеct public recidivist A criminal defen from behavior. punishment Maryland is one who a dant to enhanced subsequent prior conviction a related offense. The offender with rather, offense; previous punishment it enhanced is not to the offense and a result of defendant’s is incident 143, 302 Md. persistent course of conduct. Hawkins v. criminal exist, (1985). Although prior must conviction necessary imposition predicate to the of an enhanced it is not a appeals concerning previously have been ex all that conviction Whack hausted. adopted provisions Maryland Legislature substantial In Act, including § in furtherance the Uniform Controlled Substances dangerous objective preventing the abuse of "controlled sub- of its ... which in a serious paraphernalia and related results health stances represents danger to problem a serious individual Code, Maryland people Maryland.” of the State welfare 276(a). (1957, Vol.), Repl. Assembly General Art. ”[t)he provisions provided Health-Controlled Dan- th[e further subheading liberally interpreted and con- gerous Substances] shall be 276(b). general purpose....” so as to effectuate its Art. strued see, subsequently enacted the at issue in this we shall other statute As case, 286(c). and, thus, petitioner dispute does his does not recidivist status 9. The authority impose challenge the an enhanced sentence. He court’s only argues only once and in simply that the sentence way. one

647 II. petitioner argues single may that a count not be 286(c) 293(a). Therefore, § §

enhanced under both not Whack, 682, 1355, that in ing 338 Md. at 659 at A.2d we did not address issue of “whether a sentence enhanced by the 286(c) provision § second offender may also be enhanced 293,”10 by § the second or provision offender he that the urges judgment the intermediate court appellate reversed. hand,

theOn other the State argues the trial court 286(c) correctly petitioner, § sentenced the pursuant 293(a), years, 25 parole years. the first ten It urges this Court to apply the reasoning employed Whack to affirm the judgment of the circuit court.

III. is, The matter before us Special the Court of Appeals recognized, one of statutory construction. We have said that an imposed not be unless that Calhoun, clearly the intent of Legislature. State v. 290 (1981), Md. 425 A.2d 1361 46 aff'g Md.App. 418 A.2d (1980). Thus, 1241 we are called upon to ascertain and State, effectuate the legislature, intent of the Parrison v. (1994), Md. 644 A.2d whether, to determine when the General Assembly §§ enacted Article 293(a), it intended that both applied statutes should be enhance the sentence by single the court on a count. intent, “To legislative determine Ve look first to the words of statute[s], read in light of the full they context which and in the appear, light of external intent or manifestations of general purpose through available other evidence’.” Dicker State, 163, 170-171, 651-52(1991) son v. 324 Md. Writing majority, Judge explained: important for the Raker "It is remember as a result by [Whack’s] reduction panel, sentence review Whack’s sentence on one count is not enhanced as a second offender both 293....” Whack v. 659 A.2d added) Cunningham v. (quoting

(emphasis Bricker, (1989)). See also State State, v. 9, (1990); 56, Davis 86, 92, 12 319 Md. 581 A.2d Md. Balti City v. Kaczorowski 60, 855, (1990); A.2d 857 570 (1987). 628, is the more, 505, 513, This Md. 525 A.2d 632 309 is which intent determined. primary legislative source from Poоl, (1994); 351, 359, 906, Fox Md. A.2d 910 Rose v. 335 643 State, (1996). Thus, v. 38, 221 Armstead 342 Md. 673 A.2d statutes, plain used their give these we words construe State, v. Calhoun import. Md.App. 46 and natural meaning Fabritz, (1980) State v. 1241, 478, 488, (quoting 418 A.2d 1248 (1975)). 416, 275, Ordinarily, 421, 278 276 348 A.2d Md. legislative itself is evidence statutory language sufficient Jameson, 723, 732-33, v. 332 633 Comptroller Md. intent. (1993). look elsewhere 93, Only it is not do we A.2d 94 when v. Condon intent. Assembly’s of the General evidence (1993); Motor 492, 753, 481, A.2d 755 Md. 632 332 Mohler, 225-27, 929, Admin. v. 219, 567 A.2d Vehicle 318 Md. 932-33 offend repeat drug and 293 enhance a

Sections in enhancement is ways. er’s sentence different year minimum ten by of a way imposition 293 enhances parole. to be “Section served imposi permitting maximum sentence permissible for those who tion twice the otherwise allowable sentence Whack, 683, atMd. 659 A.2d are offenders.” 338 face, independently, provision each at On their viewed dispositive. Stat But is not unambiguous. is clear and well separately may are when viewed be utes that clear situation, or given their in a ambiguous application where See v. Sullins operate together, clear. they when (1995)(a Allstate, 503, 617, A.2d 619 term 340 Md. 667 in in may ambiguous one context be unambiguous which is Co., 69, 74, Fund Tucker v. Fireman’s Ins. another); 308 Md. (1986)(“That from may term be free 517 A.2d 732 application in doubtful when used one context but of ambiguity v. settled.”); Bernhardt context is well another Hartford Co., 45, 54, Fire Ins. Md.App. 648 A.2d Cablevision, Country Town & v. Comcast (quoting 70 Md.App. 1132, cert. denied, 310 Md. 526 A.2d (1987)) (“Language regarded can be in two ambiguous 1) ...; respects: may intrinsically different be unclear 2) clear, its meaning may fairly intrinsic be but its application uncertain.”). particular object to a or circumstance Because being applied single both statutes are to a count, must be they together construed context. Whack, State v. (citing Md. at 659 A.2d at 1350 (1993))(“[w]hen Thompson, we called upon interpret are two statutes that involve the same matter, have a common and form purpose, part we read them materia and construe pari system, same harmoniously.”); Gargliano them (1994); Jones v. 398, 405, A.2d

639 679 311 Md. 535 Loscomb, v. (1988); State A.2d 474 435 291 Md. (1981). “Full given A.2d effect is to each statute to possible, the extent and we will not add or delete words to meaning statutory obtain a otherwise evident from the Accord, Comm’r, GEICO v. Insurance language.” 332 Md. 286(c) Moreover, § is but a § (g) subsection of section of which also addresses sen statutory tence enhancements.11 Because it is that imperative 286(g) provides, part: § 11. Art. in relevant manufacture, distribute, (2) drug kingpin conspires A who dis- into, pense, bring transport dangerous in the State controlled in substances one or more of the amounts described under subsection (f) guilty felony of this section is of a to: and on conviction is (i) Imprisonment years for not less than 20 nor more than 40 possibility parole, mandatory without the of it is on the court impose years’ imprisonment, part no less than 20 no of which be suspended; and $1,000,000. (ii) A ‍​‌​‌‌​‌​‌​​​​‌​​​​​​‌​‌​​​​​​​​​‌‌‌​​‌​​​​‌​​‌‌‌‍fine of not more than (3) provisions §§ applica- of this article are not ble to a under this subsection. conviction (4) Notwithstanding any provision subheading, other of this merge conviction under this subsection does not with the conviction object conspiracy. offense the which is the (5) Nothing prohibits from contained this subsection court imposing § an enhanced under this article. This context, that full in its follows interpreted be language the other subsec- conjunction must read with “be the whole statute may give § 286 we effect to tions of so that State, 334 v. provisions.” Gargliano of its and harmonize all (1994)(citing A.2d 678-79 Williams 1, 15-16, 1275, 1282 from intent “legislative that a court must discern proposition scheme, scrutinizing parts statutory opposed the entire added)). Consequently, (emphasis a statute isolation.” 293(a) together with §§ must be construed § 286(g). in the done, it that application that is clear their is

When This is especially count is not at all clear. single context pre- (g)(2)(i) 286(g) case when considered. Subsection drug com- kingpin maximum sentence for a scribes both the years without imprisonment the acts mitting proscribed—40 im- minimum parole—and sentence—20 súspended. and not prisonment parole—to that enhancement of (g)(5) expressly authorizes the Subsection 293(a). If the state were correct pursuant language clear both in their enhancement statutes are have unnec- would been provision inclusion application, essary. from histories. legislative flow their enlightenment

Nor does out, absolutely in the nothing, As there is petitioner points Legisla suggests that even history of these statutes 293(a) penalties. stacking intended a of enhanced Section ture existed, since change, and has enacted in 1970 was 1970, ch. The two-time Maryland that time. See Laws later, see § 12 was enaсted provision loser 1982, 770, relettering, see Maryland and for except Laws of ch. 439, As 1988, Maryland changed.12 ch. not been Laws of preclude any prosecution be construed to or limit subsection any other offense. criminal 1982, of- mandatory penalties for two-time 12. When first enacted (b)(3). 286(b)(1), (b)(2) were Subsections fenders codified

651 seen, only 286(g) provides any discerning basis we have on the issue here Assembly present- the intent of the General ed. 293(a) §§ apparent highly

It is are statutes, and, seen, have their penal application as we An on a count is single ambiguous. enhance ambiguous penal lenity,” statute is to the “rule that such requires strictly against which statutes be construed State, and in favor of the defendant. Harris v. State See 145, 950; 331 Md. at 626 A.2d at State v. Kennedy, 749, 754, 193, (1990); State, Wynn 580 A.2d 195 313 supra, v. 533, 539-40, 465, (1988); Singer, Md. 546 A.2d 468-69 N. (5th Construction, 59.03, on Statutory Sutherland at 102-03 “ 1992). ed. This it so ‘strictly means that must construed only punishment contemplated by language ” 437, A.2d Gargliano, statute is meted out.’ 334 Md. at 639 at 679 324 (quoting Dickerson v. Md. 596 (1991)). Lenity expressly prohibits a court from interpreting a criminal statute to increase the penalty places “ interpretation on a defendant “whensuch an can be based on ” guess Legislature] no more than a as to what intended.’ [the v. Monoker Md. 582 A.2d States, Ladner (quoting v. United U.S. 79 S.Ct. (1958)). Lee, 3 L.Ed.2d In Robinson 371, 379-80, (1989), this Court stated: Fundamental fairness dictatеs the defendant under- clearly stand what debt he must for his pay society If doubt as to the then the transgressions. penalty, there is punishment law directs that his must be construed to favor a milder over a one. harsher lenity rule of a fact application pattern under sub judice Supreme similar to that was addressed States, Simpson Court of the United States in v. United (c) (b)(1) (b)(2) were recodified as subsection with the (d) (e) § 286. addition of subsection 652 case, 6, In that a 909, 55 70 98 S.Ct. L.Ed.2d

U.S. for bank provided penalty enhanced a statute an federal weapon a or de- robbery “by dangerous use of committed 7, 910, 55 L.Ed.2d at 73. Another at 98 S.Ct. at vice.” Id. a to commit who “uses firearm subjected statute a defendant in a court of prosecuted which he any felony of in to a sentence addition United States” was be consecutive. required which sentence felony, 910-11, Having 55 L.Ed.2d at 73-74. 7-8, at 98 S.Ct. at Id. de- of the latter statute and legislative history reviewed the to limit cu- Congressional a intent termined that reflected held, “to alternatively, mulative the Court punishment, autho- the additional sentence construe the statute allow already pyramided a upon rized to be sentence 2113(d) rule violate the established under would of crimi- concerning the ambit ‘ambiguity construction that lenity’.” 435 U.S. resolved favor nal statutes should be 14, 914, States (citing at 55 L.Ed.2d at 78 United at S.Ct. Bass, 515, 522, 30 L.Ed.2d U.S. 92 S.Ct. States, 808, 812, 401 U.S. 91 S.Ct. and Rewis v. United (1971)). also The Court 28 L.Ed.2d history legislative [is] “Even when relevant observed: this, has this Court to the defendant as nearly so favorable against turn- that ‘doubt will be resolved steadfastly insisted ” 15, 98 Id. at multiple transaction into offenses.’ ing single a States, at Bell (quoting at 55 L.Ed.2d v. United S.Ct. L.Ed. 910-11 ‍​‌​‌‌​‌​‌​​​​‌​​​​​​‌​‌​​​​​​​​​‌‌‌​​‌​​​​‌​​‌‌‌‍75 S.Ct. 349 U.S. (1955)). had previously also what it said It reiterated Ladner, justify a requires guess more than lenity otherwise penalty so as to increase the interpreting a statute at at 78. 55 L.Ed.2d Id. at S.Ct. prescribed. to increase Legislature both wanted Finally, when the minimum penalty impose maximum and to offense, so it has done second E.g. unambiguous terms. clear and unequivocally, 286D(b)(1)13, prescribing the enhanced for the felo ny distributing, dispensing, possessing of or with intent substance, a dangerous conspiring distribute controlled or (b)(ii) school, (iii)14, so, a do within 1000 feet of 36B and unlawful punishment provision applicable Mary or of a wearing, carrying, transporting handgun, (1977, § 27-lOKj) RepLVol, Cum.Supp.) land Code (k)15, Article, Transportation prescribing penal driving ties for while intoxicated. section, (b)(1) person provisions

13. A who violates the of this on convic- tion, following penalties: shall be to the 4: 4* 4* 4* 4* 4* offense, (ii) imprisonment a or For second for not less $40,000 years than 5 or more than 40 or a fine of not more than or mandatory impose both. It is for the court to a minimum sentence of years, may suspended, person eligible which not be and a is not 3IB, parole during period, except in accordance with Article § 11 of the Code. A sentence under this subsection shall be served consec- utively imposed. other sentence law, (c) Notwithstanding any provision arising other a conviction merge under this section with a conviction for a violation subheading. 286 or 286C of this (b)(ii) person previously unlawfully 14. If the has been convicted of wearing, carrying, transporting handgun or a ... he shall be sentenced Maryland year to the of Correction for Division a term of not less than years, upon impose mandatory nor more than 10 and it is the court to however, year; provided, no less than the minimum sentence of 1 worn, carried, appear handgun if it shall from the evidence that the was transported any public property or on school in this the court imprisonment impose years. shall than three of not less (iii) person previously If the been convicted more than once of wearing, carrying, unlawfully transporting handgun or ... shall be he Maryland sentenced to the Division of Correction for a term of not less years, upon than three nor more than 10 impose years; court to no less than the minimum sentence of three however, appear provided, that if it shall from the evidence that the worn, carried, handgun transported any public was on school property impose imprison- in this the court shall a sentence added). years, (emphasis ment of not less than 5 (1977, Vol., Repl. Supp.) § Maryland 27- Code 1996 Cum. (k) 101(j) provides: subsection, (j) Mandatory penalty.—(1) "imprison- minimum In this inpatient confinement in an rehabilitation or treat- ment” includes ment center. APPEALS THE OF SPECIAL

JUDGMENT OF COURT THE OF REMANDED TO COURT CASE REVERSED. DIRECTIONS TO VACATE APPEALS WITH SPECIAL TO THE THE CASE AND REMAND THE SENTENCE RESEN- BALTIMORE CITY FOR COURT FOR CIRCUIT COSTS WITH THIS OPINION. TENCING CONSISTENT IN THE SPECIAL AND COURT OF IN THIS COURT THE AND CITY BE PAID BY MAYOR APPEALS TO OF BALTIMORE. COUNCIL RODOWSKY, RAKER, Judge, dissenting, in which Judge, joins. Special Ap- judgment affirm the Court of

I would correct appellate court was I the intermediate peals. believe of for distribution heroin Petitioner’s sentence finding in that 298(a) 286(c) § § and of Article under may be enhanced unlikely Legisla- it is highly Gardner reasons that to apply under both sections penalties ture intended enhanced history explicit language in of or a count the absence single to 21-902(a) (2) of of person is convicted of a violation Sec. A who prior years a under that after conviction this article within 3 mandatory penalty of: subject minimum to a subsection is hours; (i) or Imprisonment for not less than consecutive (ii) Community for not less than 80 hours. service (3) provided by mandatory and penalties this subsection are The suspension probation. subject not or are 21-902(a).—(1) (k) Except provided § in subsection Violation of section, any any a of of (q) person is convicted of violation of this who 21-902(a) ("Driving while this article intoxi- provisions of Sec. of the cated”): offense, subject to a fine of not more than a shall be For first both; $1,000, year, imprisonment or for not more than I or offense, (ii) fine not more than shall be to a of For a second both; $2,000, years, or imprisonment or for not more than offense, (iii) subject to a of subsequent shall be fine For a third or $3,000, years, imprisonment not more than 3 or not more than or both. (2) penalties purpose or offender For the of second 21-902(a) provided this under Sec. of this article violation of subsection, 21-902(b), (d) (c), or of this prior conviction of Sec. a article, a of Sec. 21- years of the conviction for violation within 5 article, 902(a) 21- a conviction Sec. shall considered this 902(a) of this article. 286(c) Relying § such an intent. indicating § in either strictly must be con- penal statutes proposition on strued, in his favor. this to resolve doubt urges he Court 286(c) makes argument his as follows: Section He constructs § 286(g)(5), part drug no reference to 293. Section statute, §to 293 and authorizes kingpin specifically refers both Since penalties of enhanced under statutes. imposition 286(c) § did Legislature § not does refer under both sections. intend authorize enhancеd logic policy. on reject argument grounds I this would in no specific language either section The absence enhance the bearing judge properly on whether count, and, § under on the same repeat for a offender prison ten years minimum sentence of apply 286(c). fact argument § overlooks the under Petitioner’s on limits that can be 286(g)(2)(i) § the sentence years.1 forty for not more than drug imprisonment kingpin 286(g)(5), § specific reference to Without § 286(g)(2)(i) arguably would forty-year maximum term with, have construed to might been been have inconsistent over, § 293. precedence take repeat enhance a prоvisions 293 each ways. in different Section

drug offender’s sentence repeat that a by requiring minimum sentence enhances the possibility no ten without the less than offender receive 27, kingpin” Article "drug are set out The for 1. 27, provides, pertinent part: 286(g)(2)(i). 286(g) § § Article distribute, manufacture, (2) kingpin conspires drugA who dis- into, dangerous pense, transport State controlled bring the under subsection in one or more of the amounts described substances (f) guilty felony is and on conviction is to: of this section of (i) years than 40 Imprisonment less than 20 nor more parole, on the court to possibility of and it without the may impose imprisonment, part no of which no lеss than suspended.... prohibits court the from Nothing contained in this subsection § 293 of article. This imposing under this an enhanced prosecution any preclude or limit subsection not be construed criminal offense. other hand, addresses on the other parole.

of Section imposition permitting maximum sentence permissible are sentence for those who otherwise allowable of twice the found no Special Appeals offenders. The Court 286(c) § to read § and 293 and refused inconsistency between application intent that the any legislative either section into agree. other. I of the thereby precludes application one of both of these in the inconsistency application There is no to the same count. sections face, indepen- that “on their viewed majority

The concludes unambiguous.” § 293 clear and dently, are] and [§ reasons, however, that because majority The Maj. op. at 648. 293(a) § § must be § that section part is a majority § The then con- 286(g). with together construed en- authorizes 286(g) expressly that because cludes 293(a), pursuant of that sentence hancement 286(c), ambiguous statute is from language is absent Maj. op. at 650. to the intent. Legislature’s lenity. is the rule of majority’s opinion The foundation statutory construction which lenity principle is a The rule of penalties. prohibitions of criminal applies interpretations States, v. United 101 S.Ct. Alb ernaz U.S. (1981). rule 1137, 1144, applies 283-84 67 L.Ed.2d when, statutory canons of consulting traditional “only after United construction, ambiguous left with an statute.” we are Shabani, 382, 386, v. 513 U.S. 115 S.Ct. States States, v. (1994); see also Lewis United L.Ed.2d (1980). 915, 920-21, 63 L.Ed.2d 100 S.Ct. U.S. and is resolving ambiguity, an aid for an The rule serves as where none exists. ambiguity used to create an not to be has no lenity the rule unambiguous, the statute is When Lewis, at 100 S.Ct. at application. See 445 U.S. case, statutory language is clear In this L.Ed.2d at therefore, no lenity applica the rule of unambiguous; 1204, 1208 255, 263, 647 A.2d tion. See Jones in pеnalties provided enhanced argues that Petitioner 293(a) 286(c) mandatory all Admittedly, § harsh. § and are Nonetheless, the Legisla- are harsh. enhanced sentences and Court, appropri- ture, proper body is determine not this the em- Assembly The for crimes. General ate sentences will deter the the that proposition braced v. Gargliano commission of criminal offenses. See future (1994); State, v. 443, 639 Jones 334 Md. A.2d (1991); v. Montone 324 Md. 521 A.2d § 293 is consistent with meaning given have we Legislature punish repeat drug offenders the intent of the Kennedy, in As we stated State severely. more (1990): “A rule [of construction] the purposes ... be the of should not invoked subvert 293 to Prohibiting of both application statute.” in- sentence subverts the subsequent determine a offender’s of the Legislature. tent presented issue granted certiorari to address a second

We Petitioner, namely, Special Appeals whether the Court in its holding that the State did not withdraw “Notice erred Penalties,” notifying Petitioner the State’s intent Additional question I that penalties. ‍​‌​‌‌​‌​‌​​​​‌​​​​​​‌​‌​​​​​​​​​‌‌‌​​‌​​​​‌​​‌‌‌‍additional would answer pursue negative Special Appeals that the was in the hold Court prosecutor did not the concluding correct withdraw penalties. notice of additional requisite notice of additional

Petitioner received the mandatory Assuming, deciding, penalties. 4-245, I notice Rule may required withdraw the under

State before the court find it was withdrawn sentence.2 4-245, Offenders, Subsequent Rule a defendant Maryland

2. Under Attorney as a offender unless the State's not be sentenced prior or alleged conviction on defendant counsel selves notice of the acceptance plea guilty least of a or nolo contendere at before days days trial the circuit court or five before trial fifteen before court, prescribes a When the law district whichever earlier. conviction, previous specified because of the not withdraw prosecutor In that the did concluding Judge before Prevas Notice of Additional Penalties sentence, stated: Special Appeals the the Court the Notice of prosecutor that the did not withdraw find [W]e of sentence. imposition to the prior Additional Penalties said, I “Judge, prosecution that when the Appellant argues an mandatory. I believe that’s just going am to call the was withdraw- this case” State appropriate contends, therefore, was that the court ing its notice. He 293(a). authority to sentence him under of with- The exhibited no intention disagree. We State When penalties. its notices of additional drawing either of he received as to whether questioned appellant the court sentence, and mandatory enhanced and timely notice of the it, support was sufficient evidence to concluded that there court found that did not withdraw its notice. The the State was a proved appellant had that State mandatory of both enhancement and purposes offender for as comments interpret prosecutor’s We penalties. statutory than the merely recommending a sentence less maximum; of the subse- not constitute a withdrawal did quent offender notice. Appeals was correct. Sрecial

The Court the hear- immediately followed sentencing proceeding following trial. The on motion for new ing Gardner’s and defense counsel: place took between court colloquy case, honor, your In [the COUNSEL]: [DEFENSE mandatory penalty filed the appropriately prosecutor] major prosecutor] record. My [The this case. client has a trial, prior request to the for said at the end alleged prior on Attorney shall serve a notice of the conviction State’s days sentencing in the at least fifteen before the defendant or counsel days sentencing in the district court. The court or five before circuit implement process purpose rule is to the due obvious behind this fair notice of the he is requirement that a defendant have Lee, 371, 379-80, 564 A.2d facing. See Robinson "[fjundamental (1989) (stating fairness dictates that the defendant transgres- pay society clearly debt he must for his understand what sions.”). ten to ask going that he was report, presentence facing forty technically he’s mandatory, although parole. the first ten without years with recess, continued: the discussion After a short is the State now, proceeding All the next right, COURT: enhanced and filing for an they were advised us verdict sentence, the time of the and I think at those, notice of timely you given had been you indicated that correct? true, your honor. That’s COUNSEL]: [DEFENSE evidence, the State offered right, All then COURT: entry a docket consider, copy certified a you to that that you Do concede document 58934914.... charging subsequent offend- to make him both a evidence is sufficient mandatory a offender? er and Yes, honor. your COUNSEL]:

[DEFENSE Clerk, following dock- make the right, All Madam COURT: fact, to Article pursuant I find as a that et entries: 4-245, that the State Rule Maryland 293 and section offender defendant is a that the proved Is mandatory penalty. of both enhancement purposes in that say prove you that wanted anything there еlse phase ... ‘I No, Judge. COUNSEL]:

[DEFENSE each discussion, counsel and Petitioner defense Following this the State: judge then addressed the court. The addressed from the State? Anything COURT: to call the man- just going I Judge, am [PROSECUTOR]: in this an sentence appropriate I believe that’s datory. case. that. already have done

COURT: We Right. [PROSECUTOR]: I when disposition, proceeding In the before

COURT: timely notice and got he whether counsel] asked [defense evidence, is when we did accepted your he whether that. years ten recommendation is State’s

[PROSECUTOR]: parole. to the Division of Correction without the the argument Petitioner’s State “withdrew” entire comment, “I on аm prosecutor’s Rule 4-245 notice is based the appropri- I believe that’s an just going mandatory. call the supported is not interpretation ate sentence in this case.” His comment in fair of the record and a review of the by reading establishing the prosecutor conduct of the context. The mandatory and enhanced for the predicate caused the courtroom judge silence when the prosecutor’s to the regard ‍​‌​‌‌​‌​‌​​​​‌​​​​​​‌​‌​​​​​​​​​‌‌‌​​‌​​​​‌​​‌‌‌‍docket entries in appropriate clerk to make with an are inconsistent interprets The State intent to withdraw notice. to the the State’s recommendation prоsecutor’s comment than the receive a sentence less trial court that Gardner the defense interpretation supported maximum. This sugges- comment in the court’s response counsel’s earlier Counsel said: presentence investigation. tion for I see in that it is the— Quite point don’t frankly, recommendation, ten going State’s is it. parole, its discretion and recommended a merely

The State exercised maximum. Kohler v. statutory less than See (stating Md.App. 4-245(b) authority requires other Rule nor that “[n]either less the statutory for a sentence than recommendation exposure as withdrawal notice maximum treated sentence.”). risk of an joins he has authorized me state that Judge RODOWSKY dissenting opinion. in this expressed in the views

Case Details

Case Name: Gardner v. State

Court Name: Court of Appeals of Maryland

Date Published: Feb 21, 1997

Citation: 689 A.2d 610

Docket Number: 104, Sept. Term, 1995

Court Abbreviation: Md.