Minor v. State

546 A. 2d 1028 Kevin Claude MINOR Maryland. STATE of Term, 98, Sept. No. 1986. Appeals Maryland.

Court of Sept. Braudes, (Alan

Michael R. Asst. Public Defender H. Mur- rell, Defender, brief), Baltimore, Public on the appellant. for Barbera, Sachs,

Mary Atty. (Stephen Ellen Asst. Gen. H. Baltimore, Gen., brief), on the for Atty. appellee. ELDRIDGE, COLE, RODOWSKY,* Argued before COUCH, ADKINS, JJ., McAULIFFE and and ORTH, Jr., E. Judge CHARLES Associate (retired), Appeals Court of of Maryland Specially Assigned.

COLE, Judge. At issue in this case is the of constitutionality Kevin Claude Minor’s sentence of twenty-five years prison without the of possibility Maryland’s habitual * Couch, J., retired, participated hearing now in the conference Court; being this case while an active member of this after recalled Constitution, IV, 3A, pursuant participated Art. Sec. he also adoption opinion. the decision and of this criminal statute. Minor was Md. pursuant sentenced (1957, Code Repl.Vol., Cum.Supp.) Art. 643B(c), provides: which §

Third violence.—Any person conviction of crime of (1) has on separate who been convicted two occasions a crime violence where the convictions do not from arise incident, single (2) a has one served least term of in a confinement correctional institution as result of a violence, sentenced, conviction a crime of shall be on being violence, convicted third time of a crime of law, but, for imprisonment the term allowed any event, not less than 25 years. Neither the sentence nor be any part may suspended, it and the person shall eligible parole except provi- accordance with the 31B, sions Article 11. A separate occasion shall be in considered one which the or succeeding second offense is committed has a charging after there been document for preceding filed occasion. daytime

Minor’s current conviction for housebreaking repre sents his fourth conviction a “crime of violence” in the last years.1 ten The sentencing judge found that Minor previously had of burglary been convicted and two separate acts housebreaking. addition, of Minor had served least one term of confinement in prison system. the State 643B(a) provides: § Art. section, Crime of in Violence.—As used this term of "crime arson; abduction; burglary; daytime housebreaking violence” means article; 30(b) kidnapping; manslaughter, except under of this § invol- 384, 385, untary manslaughter; mayhem maiming §§ article; murder; rape; robbery; robbery deadly 386 of this with a weapon; degree; sexual offense the first sexual offense in the degree; handgun of a felony second use in the of a commission or violence; attempt any other crime of an to commit aforesaid offenses; murder; rape; assault with intent to assault with intent to rob; with to assault intent assault with intent to commit sexual degree; in the offense first and assault intent to commit a sexual degree. offense the second The term "correctional institution” includes Patuxent Institution regional jail and a local or or detention center. his to the appealed Special

Minor and, court affirmed the lower court in an Appeals, that granted per opinion. subsequently curiam We unreported important question presented. to address the certiorari unique qualities Maryland We discussed the habit- State, ual offender statute Montone v. Md. we comment- (1987). Although A.2d 720 that case were 643B(b), operation our remarks are ing equally on § 643B(c). said: applicable We more Maryland requires merely “pre- The statute than convictions; requires separate it convictions. vious” Moreover, is scope the statute’s narrowed fact shall only it that an individual have received requires convictions, that he shall have been sen- separate but served, actually to, tenced and shall have [a term] jurisdiction confinement under the the correctional system. (Emphasis supplied). A.2d at 723.

Id. 643B(c) designed prosecutor is allow the Section against punishment seek an enhanced individuals who have on three distinct propensities demonstrated violent occa-. in- penological behind the extended objectives sions. our protect are to citizens carceration these individuals expose these criminals to from crime and to violent State, process. See Hawkins prolonged rehabilitative (1985). 143, 148, 486 302 Md. A.2d twenty-five years his with argues Minor sentence of in violation of punishment out and unusual cruel the to the United States Constitution2 Eighth Amendment the Declaration of Maryland and Articles 16 and 25 of has that he never Rights.3 particular, In Minor asserts provides; "Excessivebail shall not be 2. Amend. VIII U.S. Constitution punish- imposed, cruel unusual required, nor fines nor and excessive inflicted.” ments Rights Maryland provides as follows: 16 of the Declaration Article sanguinary ought as as it is consistent laws to be avoided far That State; safety inflict cruel and unusual and no Law to with the of the threatened nor harmed any person during perpetration the any Thus, past his crimes. Minor reasons legislature in housebreaking has erred rigidly classifying purposes a crime of violence for of the punish enhanced ment statute. Minor maintains that a sentence of twenty- parole five without is disproportionate light in of all the circumstances and should pursuant be vacated to the Helm, dictates of Solem v. U.S. (1983). Helm,

L.Ed.2d 637 Supreme vacated life sentence without the possibility parole imposed under the South Dakota habitual criminal Supreme statute. The Court concluded sentence was significantly dispro portionate to the defendant’s crime uttering a “no ac count” check for $100.00.

The State contends that a review of Minor’s sentence is unnecessary inappropriate in light Supreme ruling Estelle, Court’s Rummel v. (1980). U.S. 100 S.Ct. 63 L.Ed.2d 382 In Rum- mel, the defendant was convicted of obtaining by $120.75 false pretenses, his third felony, given and was a life possibility Texas habitual criminal statute. The Supreme Court decided that this sentence was not cruel and unusual and Rum- rejected request mel’s for a proportionality review. In the alterna- tive, the State contends that Minor’s sentence would be upheld under the Helm proportionality analysis.

Although Minor’s sentence is similar some respects both of the sentences reviewed Rummel and we conclude that underlying facts in this case are more analogous presented those Accordingly, Rummel. an case, pains penalties time, ought any any to be made in or at hereafter. Maryland Rights provides Article 25 of the Declaration of as fol- lows: ought required, That excessive bail not to be nor excessive fines inflicted, imposed, punishment nor cruel or unusual the Courts of Law. 578 under Helm is review unneces- proportionality

extensive explain. sary. We Rummel, Supreme Eighth

In stated that the Court “the a is prohibits imposition gross- Amendment of sentence that crime.” Id. at 271, to the disproportionate severity the of ly However, (Citations omitted). 100 S.Ct. at 1138 “[o]utside punishment, challenges of to capital the context successful particular sentences have ex- the been 272, Id. rare.” at 100 S.Ct. at 1138. ceedingly The noted that before Rummel could Supreme Court statute, life the Texas the State receive a sentence under had prove previously had that Rummel been convicted a separate and had actually period two felonies served Id. 15, offenses. at nn. incarceration for each of those 278 15, procedural nn. 16. These require- at 1141 S.Ct. the statute in very Maryland ments are similar to those of The criminal statute was found to Texas habitual question. interest “in legitimate dealing the State’s promote criminal acts by repeated harsher manner those who simply incapable conforming they have are shown criminal law.” Id. its society the norms of established sentence, In the the upholding at 100 S.Ct. at 1140. length indicated that the of sentences Supreme Court within discretion of the largely recidivist statutes are the Id. at at 1145. S.Ct. punishing jurisdiction. Rummel, upheld a Following Supreme forty Court for the sale of Virginia law imposed year Davis, Hutto v. U.S. marijuana. nine ounces curiam). (1982) The (per L.Ed.2d 556 S.Ct. length of legislatively reiterated that Supreme Court judicial prison rarely subjected mandated terms should Id. at 374, review. S.Ct. at decided the following Supreme Court year defendant's life sentence without overturning case. stated that “no Supreme possibility parole, day prison per se single constitutional ... penalty Helm in some may be unconstitutional circumstances.” Court, Supreme U.S. 3009-10. The however, did not overrule Rummel. It made unmistakably clear that

[c]ontrary suggestions to the dissent’s ... we do not or a adopt imply approval general of rule appellate of of sentences. specific review Absent is authority, it not of the role an court to appellate substitute its judgment of sentencing for that the court as to the appropriateness sentence; rather, of a particular applying Eighth the Amendment the appellate court decides only whether the sentence under review is within In constitutional limits. of the view substantial deference must that be accorded legislatures courts, and sentencing a reviewing court will be to rarely required engage analysis extended determine that a sentence is not dispro- constitutionally portionate.

Id. at 290 n. 103 S.Ct. at 3009-10 n. 16. The Supreme distinguished Court on holding Rummel the grounds that the defendant that case likely would eligible have been within a reasonable of amount (twelve sentence, time years), while Helm’s life without parole, required he spend that of his days rest in the state penitentiary. Id. The Supreme implied Court that its holding in Helm was limited the particular facts of that case.4

This recently had the opportunity consider the a constitutionality of sentence imposed under Art. 643B(b) which criminals subjects who have three served § separate terms and prison have been of convicted a fourth crime of mandatory violence to a life sentence without the of possibility parole. Davis, See State 310 Md. (1987). Davis,

A.2d 1223 In the defendant was convicted of question general validity "We no as raise to the of sentences without whether, possibility parole. only of issue before us in the light principle circumstances of this case and in of the constitutional proportionality, imposed respondent of the sentence on this violates Eighth Amendment." U.S. at n. 103 S.Ct. at 3013 n. 24. conviction, daytime housebreaking. This combined of con- long burglary housebreaking list prior daytime in mandatory victions resulted sentence of life without parole. argued Davis that his sentence cruel benefit was Eighth and unusual in violation Amendment and that required that sentence be vacated. controlling This Court held Helm was factually crimes particular, in Davis. In we noted while Helm’s minor,” “relatively Davis’s crimes were classified were 643B(a). light seri “crimes violence” § strin daytime housebreaking, ousness the crime requirements 643B(b), espoused and the gent principle reviewing courts should accord Helm that substantial schemes, legislative sentencing deference to we concluded an extended was proportionality analysis unnecessary that 629, However, in 530 at 1233. as an Davis. Id. at A.2d Davis, applied in we the out objective analysis alternative in Davis’s lined Helm and concluded that sentence was Butler, 820 sound. See also Terrebonne v. constitutionally (5th Cir.1987); Alabama, F.2d 728 F.2d 156 Seritt v. 1062, (11th Cir.), denied, 545, 469 U.S. S.Ct. cert. 321, Fernandez, (1984); People L.Ed.2d 433 v. 427 Mich. (1986). 398 N.W.2d 311

Our in pertinent analysis discussion Davis is to our Davis, case in like respect. Specifically, in this another minor, Minor, housebreaking is non argued daytime argument rejected stating: violent offense. We Assembly The classified house- daytime General has murder, offenses such breaking Maryland in with manslaughter, in rape, robbery deadly weapon with of under 643B. Al- the class of “crimes violence” § is not though an assault and an element battery housebreaking, legislature recognized the daytime potential 643B the for violence inherent substantial if housebreaking. Even the housebreak- daytime acts encountering seeks another in the person er to avoid dwelling, believing mistaken in may the housebreaker be temporarily unoccupied or the housebreak- dwelling the er be may surprised by the return of an We occupant. beyond not look need our recent cases for examples crimes which started as housebreakings and which ended as murders for which the death was penalty imposed. State, 487, (1985), See Johnson v. 303 Md. A.2d 1 denied, 1093, cert. 474 U.S. L.Ed.2d 907 (1986); State, (1984). Colvin v. 299 Md. 472 A.2d 953 Davis, 310 Md. at 530 A.2d at 1233. We reaffirm this position. legislature recognized the potential and likeli- hood of violence in certain As kinds criminal behavior. it, recognition we see this the necessity obviates State to demonstrate that there was actual violence in commission of a crime predicate punish- before enhanced However, ment be imposed can statute. we hasten to make clear that we do not suggest that under constitutional review the of the predicate facts crimes are ignored. immaterial or We simply must conclude that under the case circumstances this no constitutional re- Thus, legislative view is order. determination that housebreaking is a violent crime will not be disturbed.

In the Special case judice, Appeals sub summarily upheld Minor’s previ accord its ous decision in State, Bryan Md.App. 492 A.2d denied, (1985). cert. 304 Md. A.2d 1183 Bryan, appellate intermediate court was faced with the precise issue this today. which Court decides defendant, Bryan,

The to twenty-five was sentenced 643B(c) years pursuant without the possibility parole § following a third a conviction for crime of violence. Bryan argued that a Helm review was required. rejected The court this contention found Rummel to be controlling.

The appellate supported position by intermediate court its examining 643B(c) the differences between and the South § Dakota provisions habitual criminal which the Supreme Court dealt with in Helm. The court on poten- focused the tial for serious harm associated with the crimes of violence 643B(a) lengthy the terms even prison

listed which upon The a first offender would face conviction. South hand, statute, applied Dakota on the other to felonies which harm. necessarily would involve violence or risk of Further, emphasized Maryland the court the statute years term for a requires imprisonment parole. without Thus, the has some of an release “[ajppellant hope eventual Id. In prison.” comparison, from 492 A.2d at 648. Dakota mandated a sentence the South statute without life the court relied on numerous decisions of parole. Finally, jurisdictions upholding mandatory other sentences similar criminal statutes. We find these cases habitual be instructive. Estelle, cert. (5th Cir.1983), v.

In 717 F.2d 171 Moreno denied, (1984), L.Ed.2d 466 U.S. 104 S.Ct. offender, defendant, a repeat given was life sentence had parole twenty years. for after Moreno eligibility with his previous for non-violent while two convictions felonies assault. The aggravated appellate third conviction was for similar substantially court found the facts of the case to be Rummel validity to the facts in and affirmed Helm analysis. in a engaging sentence without Appeals The United States for Fourth Cir lengthy cuit also sentence for a term of upheld v. without an extended Helm United States analysis. Rhodes, denied, cert. (4th Cir.1985), 476 U.S. 779 F.2d (1986), a L.Ed.2d 545 106 S.Ct. upheld simple after a seventy-five years parole without was Helm case matching principles. facts of that Helm “requires proportion held that an extensive court involving cases life sentences ality analysis only those Jones, Id. at 1028. See also Chandler without parole.” Cir.1987) (habitual (6th 813 F.2d criminal’s life sentence was eligibility thirty years upheld after Rummel; provided factually analysis similar to v. Rosenberg, 806 F.2d 1169 United States alternative); — denied, -, (3rd Cir.), cert. U.S. (1986) (defendants’ fifty-eight

L.Ed.2d sentences

583 were after an years upheld abbreviated re proportionality Moreno); view accord with and Rhodes Stevens Ar v. montrout, (8th Cir.1986) (two 787 F.2d 1282 hundred year eligibility parole sentence with for serving after twelve years upheld as within limits statutory distinguishable and Helm)] Stead, (8th from United States v. 740 F.2d 657 Cir.), denied, cert. 469 U.S. 105 S.Ct. 83 L.Ed.2d (1984) (twenty year upheld; 709 is Helm distin on grounds guished question that sentence in is for a term available); and years parole is v. Zylstra, United States Cir.), (7th denied, F.2d cert. 464 U.S. 104 S.Ct. (1983)(sentence L.Ed.2d of two hundred and ten years parole with after eligibility serving ten years up analysis); held without Helm Arizona v. 142 Ariz. Noriega, (1984) (life 690 P.2d 775 sentence with possibility parole serving after twenty-five years upheld without ex analysis); State, tended Helm Thomas v. 471 N.E.2d 681 (Ind.1984) (sentence rape forty for eligibility parole for twenty after years upheld without extended analysis); State, (Miss.1984) Helm Seely 451 So.2d 213 (sentence of fifteen years possibility without third felony upheld Rummel); non-violent under State v. O’Connor, (S.D.1987) (sentence 408 N.W.2d 754 of three year concurrent terms for fifty upheld habitual offender without extended analysis). But United States v. cf. (11th Cir.1984), denied, Darby, F.2d 1508 cert. 471 U.S. 1100, 105 (1985) L.Ed.2d (applying extend ed Helm analysis sixty year parole); sentence with Whit (5th Cir.1984) (sentences more v. 742 F.2d Maggio, fifty seventy-five years without benefit of parole must receive Helm proportionality analysis).

We conclude that an extended Helm analysis is mandatory In light under these facts. seriousness of past present conduct, Minor’s criminal deference regard due the legislature di- sentencing rectives, and the unique function and particular require- ments for punishment 643B(c), enhanced we hold is sentence within constitutional limits. Ac-

that Minor’s Davis, supra. cord State v.

However, if a is re proportionality analysis even sentence is valid. The Helm we believe the quired, criteria to be examined in cases objective court outlined sentencing review. The court requiring proportionality “(i) of gravity consider: the the offense and the should (ii) on imposed the the sentences penalty; harshness of (iii) in jurisdiction; the the sen other criminals same for commission of the same crime in other imposed tences 463 U.S. at at 3011. jurisdictions.” Davis, criterion, recognized in supra, to the first we As house- Assembly daytime that the General views Maryland a due for breaking potential serious offense accompanies illegal such conduct. The fact violence which Fur- violence is is determinative. physical absent thermore, although a sentence without twenty-five years harsh for a first offense may be considered parole conclude that the sentence is housebreaking, we daytime history case Minor’s criminal in this because appropriate in is criminal need of extend- professional reveals that he a ed rehabilitation. the sentence in compares criterion

The second Helm jurisdiction. in the sentences for other crimes question with most life is the severe Davis, As in without noted law, and Maryland appropriate in is non-capital punishment for crime separate has convictions a when a defendant four terms of confine- separate served three of violence and has here, in a twen- ment correctional institution. sentence if defendant mandatory is parole, without ty-five years separate crime violence has committed third under subsec- 643B(c). imposed sentences to be Since the § (c) crimes of listed (b) to all violence apply tions are that the sentences 643B(a) question there is little for crimes. to sentences similar proportionate relation level, of- sentences for first more On a fundamental for lengthy provide of violence fenses these crimes prison ranging terms from minimum of ten life daytime housebreaking for first degree rape. See Md.App. Bryan, 492 A.2d at 647-48. Accord- ingly, question proportionate to the sen- imposed tences for other crimes in Maryland.

Finally, requires that compare we the sentence imposed under the Maryland habitual criminal statute with imposed sentences for the commission the same Davis, crime other jurisdictions. atMd.

A.2d if we commented that “four six states comparable sentencing, authorize we would have no hesitan- incy finding that the third Helm criterion indicates that Davis’s sentence is However, constitutional.” if even this State’s sentence was found be the most severe of the states, several that fact alone would necessarily not taint Rummel, validity 281-82, the sentence. 445 U.S. at 100 at 1143. Barring S.Ct. strict uniformity, one state will generally enforcing have the distinction of the most punishment; severe to strike solely down a statute on these grounds is absurd. Davis,

As in indicated a life sentence without the benefit can imposed for a third housebreaking convic tion in Delaware.5 The same third conviction would expose the defendant a life Columbia, sentence the District of Idaho, York, Carolina, New South Virginia.6 and West A life sentence can be imposed following Utah7 a second housebreaking, conviction for while same life sentence (1979 5. Repl.Vol. Del.Code Ann. tit. 11 4214 §§ & 1986 Cum. Supp.). 22-1801(b), 22-104(a) (1981); 6. D.C.Code Ann. §§ Idaho Code 18- §§ 1401, 18-1402, (1987); 140.20, 19-2514 N.Y.Penal Laws 70.10 §§ 16-11-312, (McKinney Cum.Supp.); &1975 1988 S.C.Code §§ Ann. (1976, (without parole); Cum.Supp.) 17-25-45 W.Va.Code 61- §§ (1966, Repl.Vol.). 61-11-18 76-6-202, (1953, Repl.Vol., 7. Utah Code Ann. §§ 76-8-1001 Cum.Supp.). for a permitted housebreaking. in Texas8 first offense of also face lengthy impris Habitual housebreakers terms states.9 many onment within Maryland clearly general

As sentence is range imposed jurisdictions sentences other for the crime, Minor’s uncon- same we conclude that sentence is not disproportionate. stitutionally THE OF SPECIAL APPEALS JUDGMENT OF COURT AFFIRMED; APPELLANT PAY THE TO COSTS.

ELDRIDGE, Judge, concurring: opinion. I concur in Court’s but in its judgment courts,1 following The the lead of some other majority, approaches review controlling as if the those Eighth principles Amendment are Estelle, set forth in Rummel v. U.S. 100 S.Ct. Davis, Hutto v. 370, 102 (1980), and 63 L.Ed.2d 382 U.S. Solem v. (1982), as if L.Ed.2d 556 (1983), L.Ed.2d 637 is of 463 U.S. 103 S.Ct. seems to view extremely applicability. majority limited 30.02, (Vernon Texas Ann. 12.32 1974 & 1988 Cum. Penal Code Supp.). 13A-7-7, (1975, 13A-5-9(b), Repl.Vol., Ala.Code 13A-5-6 1982 9. §§ (10 years years); Cum.Supp.) Ark.Stat.Ann. 5-4- §§ 1987 to 99 (10 501(a)(3), (1987) years); years to 30 5-39-201 Colo.Rev.Stat. 18-4-202.1(2); (1986 16-13-101(1), Repl.Vol., Cum. 18-4-203 1987 §§ (25 775.084(4)(a), Supp.) years); years to 50 Fla.Stat.Ann. 810.02 §§ (1976, (up years); Cum.Supp.) to Ind.Code Ann. 35-50-2- §§ 30 1988 8(e), (Burns (up Repl.Vol., Cum.Supp.) to 35 1985 1987 35-43-2-1 15:529.1(A)(2)(a), (1986, years); 14:62 1988 Cum. §§ La.Rev.Stat.Ann. 769.11(1)(a), (6 Supp.) years years); Mich.Comp.Laws -1 §§ 24 to 750. (1982, Cum.Supp.) (up years); Mont.Code Ann. 46- §§ 10 18-501, to 30 (10 46-18-502(2), (1987) years years); to S.D.Co 45-6-204 22-7-7, (1988 ed.) (25 22-6-1(4), 22-32-3 Rev. dified Laws Ann. §§ 205.060(1) 207.010(1), (1986, years); Cum. §§ Nev.Rev.Stat.Ann. (10 Supp.) years). to 20 See, Rhodes, (4th e.g., v. United States 779 F.2d 1027-1029 denied, Cir.1985), cert. U.S. 106 S.Ct. L.Ed.2d 545 Estelle, (5th Cir.1983), cert. (1986); v. 179-181 Moreno 717 F.2d denied, (1984). L.Ed.2d 104 S.Ct. 466 U.S. all cases as falling within either two well-defined catego- ries. The first the majority’s categories appears to encompass vast of cases as which majority propor- no tionality analysis under Solem v. appropriate Helm is and v. is controlling. Rummel Estelle The second category governed embraces a few principles cases of Solem Helm, v. and to an subjected analysis” “extended based on “three disagree criteria.” I entirely with this approach.

Whether or not Solem v. Helm effect overruled Rum- Estelle, mel v. argued by Judge dissent, Adkins his is a matter which need not concern us very much until arewe faced with a case which not distinguishable substantially Nevertheless, from Rummel. largely for reasons set in Judge dissent, out Adkins’s I believe the controlling principles Eighth under the Amendment are those contained and not Solem Rummel.

Furthermore, I Supreme do believe that the Court’s opinions require we all criminal into classify sentences two categories, one no involving proportionality analysis involving the other particular pro- form extended portionality three, three, analysis utilizing only criteria. As Solem, Justice Powell indicated for the Court all criminal sentences are subject Eighth pro- Amendment portionality only rarely review but will an extensive review be required. supra, Solem 463 U.S. at 3009-3010. and experience Common sense that, in cases, teach appellate court, vast majority an contention, faced with an Eighth Amendment can quickly reach the conclusion that the sentence is not constitutionally disproportionate cases, crime. Beyond those degree of required vary case; review from may case to one require case may much more extensive analysis than anoth- er.

Moreover, proportionality always review need not consid- er, and always to, be limited the three factors discussed in III Part A of Justice It is opinion. Powell’s Solem notewor- thy that the second and were forth third factors set as mere cases, In some an

suggestions possibilities.2 or examination be jurisdictions may into the sentences other imposed fruitful; cases, in other be unnecessary very may it apart from the three factors quite helpful. Considerations Solem opinion in Part III A of the are also mentioned including legislative deference to the pertinent, judgment, crime, the particular concerning the facts commission the I pre-sentence report, in a etc. investigation information Eighth think it be unfortunate if Amendment that would of sentences frozen in the form proportionality review were of a “three criteria” review. Solem v. Helm the to instant

Applying principles the case, however, leads me to the conclusion that the defend the disproportionate ant’s is not constitutionally sentence house, in the Breaking dwelling crime. into a whether done the or is a heinous offense. Not has day night, only most ,of violence, is in as a crime but it Legislature classified it against occupants fact a the of the dwell crime violence precious are more to Americans than ing. rights Few I am in right complete “to secure their ... houses.” be State v. Davis, 310 Md. agreement with discussion 628-629, (1987), concerning gravity A.2d addition, of this under law. In the actual Maryland offense concerning present facts several defendant’s offenses dispro no which render the present circumstances burglar Minor is career who portionate. defendant upon a course of conduct endan repeatedly has embarked gering their homes. persons that, I agree Solem the Court Consequently neither Eighth sentence violated the defendant’s (463 2. The thus U.S. at 103 S.Ct. at stated added): emphasis “Second, compare imposed may helpful on it the sentences * * * jurisdiction. criminals in same other "Third, compare may the sentences im- courts it useful find jurisdictions." posed for the same crime in other commission of Constitution, 3. United States Amendment IV.

589 Articles to the States Constitution nor Amendment United 4 Declaration of Maryland and 25 of the 16 Rights. ADKINS, Judge, dissenting. Prince sentenced George’s County

The Circuit Court for years prison Minor to 25 without Kevin Claude imposed pursuant The sentence was possibility parole. (1957, Repl. of Md.Code mandatory provisions to the VoL, 643B(c).1 Cum.Supp.) Art. §

This Court now holds that review of state required by sentence is not federal and constitu- of cruel and un- against imposition tional prohibitions alternative, In holds that usual the Court punishment. constitutionally dispro- event Minor’s sentence is not any I disagree holdings respectfully with both and portionate. dissent.

I. briefly Minor’s sentence may The facts that led to be 1985, Minor, old, then 26V2 September recounted. housebreaking intent to steal. He was convicted of with two previously burglary had been convicted 4. majority opinion separately does not discuss the defendant’s Maryland upon Declaration reliance Articles 16 and 25 of the Thus, Maryland Rights. majority apparently constitu views the Eighth provisions being pari tional materia with the Amend approach, agree, This which I seems to be reflected in ment. See, State, many 720-729, prior e.g., Md. of our cases. Tichnell v. (1980); State, Delnegro v. Md. 415 A.2d 830 602, 611-612, State, (1951), 71 A. A.2d 241 Lanasa v. 109 Md. (1909); State, (1883). Md. See also Mitchell v. Foote v. 527, 532-534, State, (1896). 82 Md. 34 A. 246 (1) person separate Any convicted on two occasions who has been crime of the convictions do not arise from a violence where incident, (2) single one term of confinement has served at least of a conviction of a crime of in a correctional institution as result violence, sentenced, being convicted a third time of a shall be on violence, years. imprisonment crime of for ... not less than 25 any part may suspended, of it and the Neither the sentence nor person eligible parole____ shall not be He had served “at least housebreaking. acts of

separate in a correctional institution as a one term of confinement ” All the result of a conviction of a crime violence.... for “crimes of as defined convictions were violence” them, 643B(a). None of so far as the record Article reveals, weapon, actual violence or the use of a involved tell, nor, possession I was Minor in of a so far as can crimes were committed. any when weapon

II. no review of The Court’s conclusion that on the notion required largely sentence is based Minor’s Court’s decisions governed by Supreme that this case is Estelle, 263, 1133, 63 in Rummel v. 445 U.S. 100 S.Ct. Davis, 370, 102 Hutto (1980), and 454 U.S. L.Ed.2d 382 denied, curiam), reh. 556, (per 70 L.Ed.2d S.Ct. (1982), not 72 L.Ed.2d 156 and 102 S.Ct. U.S. Solem v. decision U.S. subsequent its read (1983). I as 3001, 77 L.Ed.2d 637 Because S.Ct. Hutto, overriding Rummel accept and I cannot effectively this conclusion. called for life

Rummel a Texas statute that involved felony “three times convicted of a anyone for imprisonment 264, 100 at than 445 U.S. at S.Ct. capital____” less (1) of a Rummel was convicted use L.Ed.2d at 385. (2) forgery of a goods, credit card to worth of obtain $80 to $28.36, (3) pretenses use of false obtain check for and life The imprisonment. He was sentenced to $120.75. unexceptionable that sentence Court found Supreme eighth clause of the punishment the cruel and unusual 265-267, 1134-1135, Id. at at amendment. S.Ct. L.Ed.2d at 385-386. Burger and Justices opinion joined by

In an Chief Justice Stewart, White, Blackmun, Rehnquist rejected Justice disproportionality the references to argument that cases that sort required found in certain death analysis nature “unique He noted the analysis noncapital cases. Amendment purposes Eighth for penalty of the death L.Ed.2d at 272, Id. at analysis....” of defer- importance Additionally, emphasized he as to the form of policy legislatively ence to established offenders. upon repeat inflicted punishment be statutes, Rehnquist Justice of recidivist “primary goals” reasoned, and, in the life point offenders at some repeat

are to deter commits criminal offenses serious repeatedly of one who felonies, segregate enough punished period extended society from the rest of an person not and its duration are based segregation time. This offense also on on that most recent but merely person’s period has demonstrated over a propensities he of and sentenced during which he has been convicted time theft from dividing felony Like the line for other crimes. a recidivist will be point at which petty larceny, propensities necessary to have demonstrated the deemed recidivist will be isolated the amount of time that the within the discretion of largely are matters society from punishing jurisdiction. 1144-1145, 63 L.Ed.2d at 397. 100 S.Ct. at Id. at the view expressed Justice Stewart concurring opinion, undesirable recidivist statute was although the Texas it Id. policy, as a matter of was unconstitutional. 1145, 285, L.Ed.2d at 398. 100 S.Ct. at Thus, any analogy disclaimed to majority the Rummel cases and concluded that capital review proportionality to a habitual length imposed pursuant of sentence eighth amend- immune from virtually offender statute was (e.g., could crimes scrutiny: legislature classify ment a mini- misdemeanors) ranges and set sentence or felonies or to achieve the appropriate as it deemed order mums The did not society. majority from isolation recidivists it held that Rummel’s analysis; in a engage proportionality punishment. not constitute cruel and unusual sentence did Brennan, Marshall, and Powell, joined by Justices Justice 285,100 L.Ed.2d Stevens, S.Ct. at dissented. Id. at minority: of the at 398. the view scope The of the Cruel and Unusual Punishments not to only punish- Clause extends barbarous methods of ment, punishments to grossly dispropor- but also that are rela- Disproportionality tionate. measures the analysis tionship between the nature and number of offenses inflicted on severity punishment committed and whether, The focuses on a inquiry person offender. such on punishment, simply punish- deserves whether goal. A ment serve utilitarian statute that levied would life mandatory parking might sentence overtime lawlessness, it our deter but would offend well vehicular justice. felt sense of Moreover, 1146, 63

Id. at 100 S.Ct. at L.Ed.2d at 400. argued, proportionality analy- the notion that Justice Powell “may applicable noncapital less when a sis no challenged” support history is one “finds Id. at at 100 S.Ct. Eighth jurisprudence.” Amendment 1147, 63 at “The principle disproportionali- L.Ed.2d acknowledged capital has to to both ty apply been 1149, 63 Id. at 100 S.Ct. at noncapital sentences.” L.Ed.2d at 403. opinion objective went on to three minority propose analysis, apply applied

factors to be case, of Rummel’s and to conclude those factors to facts dispropor- unconstitutionally that Rummel’s sentence was 1150-1156, 63 L.Ed.2d Id. tionate. at S.Ct. at at 404-412. drawn, Supreme lines thus clearly

With the battle Davis, supra, Hutto in which confronted Court was Virginia the Rummel again prevailed. Under a majority statute, upon for 40 prison Hutto was sentenced possession marijuana his of nine ounces conviction A United States District Court with intent distribute. aside. and set the sentence applied proportionality analysis affirmed. 454 evenly an divided Fourth Circuit Eventually, In a per 70 L.Ed.2d at 559. U.S. relied on curiam Court reversed. It opinion, Supreme Rummel, that propositions it stood for the which said federal courts should be reluctant legisla- review state mandated terms of tively imprisonment and that successful challenges particular to the proportionality sentences Rummel should rare. It exceedingly insisted that must Id. at 374-375, be followed. at L.Ed.2d at 560-561. thought

Justice Powell the sentence grossly dispropor tionate, but concurred the judgment because he believed Rummel Id. controlling. to be at S.Ct. at Rummel dissenters L.Ed.2d at 561. The other (through Brennan) expressed continuing Justice their disagreement with Rummel. Id. 102 S.Ct. at 70 L.Ed.2d at Hutto, Rum 565. They thought also by applying mel doctrine one who had not been sentenced as an offender, habitual had worked “a and improper serious Rummel." Id. 382-383, 102 expansion S.Ct. at L.Ed.2d at 566. revolution,

Then came the in by ushered the somewhat unlikely person of Jerry through Helm. From 1964 convicted, Helm Dakota, was in South of third degree burglary (thrice), false pretenses, grand and drunk larceny, driving. In 1979 his uttering conviction of “no $100 account” check yielded a life sentence without That, South Dakota’s habitual offender statute. the Su- Solem v. supra, violated the preme held in eighth amendment. written the Rummel Powell, dissent,

Justice had who now for majority. wrote He was joined by other Rummel The dissenters, plus Justice Blackmun. majority opinion essentially adopts the Rummel dissent. First, adopts it that the of proportionali- view discussion ty analysis capital cases can be—indeed should be—ap- plied other cases:

There is no for basis the State’s gener- assertion al principle does not apply felony prison sentences. The constitutional language sug- itself gests no exception imprisonment. 288-289, at 103 S.Ct. at L.Ed.2d at 648 U.S. challenges The fact that successful omitted].

[footnote seldom occur outside the context of may the principle inapplicable does not mean that is capital cases 289-290, at 103 S.Ct. at noncapital in cases. Id. L.Ed.2d at 649.

Next, makes clear that deference to the the Helm Court not end the legislature inquiry: does sum, as a matter of that a criminal principle In we hold must to the crime for which the proportionate be courts, of Reviewing has been convicted. defendant course, to the grant should substantial deference broad in deter- authority legislatures necessarily possess crimes, punishments the and limits of mining types courts in sentenc- possess the discretion that trial well as no consti- penalty per convicted criminals. But se ing in California, As the Court noted Robinson v. tutional. 1417, 1420, 8 L.Ed.2d 758 at 667 S.Ct. U.S. [660] [82 in in unconstitutional (1962) single day prison may ], some circumstances. 77 L.Ed.2d at 649. 103 S.Ct. at

463 U.S. at go the new on to majority Justice Powell and Finally, by analysis proposed the three-factor that was adopt same They in Rummel.2 rejected by majority dissent but punish of Helms’s case and hold his it to the facts apply 290-300, 103 at 3010- Id. at ment unconstitutional. 3015, 77 L.Ed.2d at 649-655. then, of Rummel and Hutto.

Helm, is the converse the earlier neither of Although expressly Helm overrules on cases, reasoning which both simply rejects it two that is inconsistent with holding and comes to a them rest composition those facts and the that of Rummel. Given it minority and the Rummel majority longer former is no viable enough seems clear that the by does the doctrine established view of the latter. Nor majority applies these holding, in this case its alternative They forth at 597. same factors. are set depend upon the difference between a life sentence (.Helm) parole without and a life possibili- sentence with the (Rummel). If ty further demonstration is re- quired, one has to turn to only Burger’s Chief Justice angry White, (joined O’Connor) dissent Justices Rehnquist and Helm: “The controlling governing this is crystal law case clear, today but the Court blithely any concept discards stare decisis Rummel Id. [by rejecting 103 S.Ct. ].” Moreover, L.Ed.2d at 658. analysis Court’s in Helm is at odds “completely reasoning with the of our Rummel____” Id. at holding 305, recent in 103 S.Ct. at 3017, “Rummel, Court, 77 L.Ed.2d at 659. And in this precisely advanced the same arguments respondent here; advances we rejected arguments those [Helm] [but Id. now the majority accepts them]____” 306, 103 S.Ct. 3018, C.J., 77 L.Ed.2d (Burger, at 659 dissenting). There effect; is much more to same what I quoted have is sufficient to make point.

Many scholarly commentators have taken the viewpoint See, that Helm Rummel. e.g., overruled effectively Baker Baldwin, & “Eighth Challenges Amendment to the Length of a Criminal Following Supreme Sentence: From Court ” Precedent,’ 25, (1985); ‘Precedent 27 Ariz.L.Rev. 46-49 Bradley, in “Proportionality Capital Non-Capital Sen- An tencing: Eighth Enigma,” Amendment 23 Idaho L.Rev. (1986) (“Solem 195, 211 important because the ... Court effectively wrote Rummel out of body eighth amend- ”); Cover, ment case law ... Supreme “The Foreword: Nomos Term, Narrative,” 97 Harv.L.Rev. Solem v. (1983) (In “the Court refrained from Rummel, explicitly overruling but much repudiated “Solem v. reasoning relied”); Note, on which that decision Helm: The Courts’ Continued Struggle to Define Cruel and Punishment,” Unusual (1985) 21 Cal.W.L.Rev. (“Solem does not technically overrule Rummel. However, overrule Rummel and its in theory it must practical conse- “Solem v. Helm: quences inimical”); Note, are Extending Judicial Review Under the Cruel and Unusual Punishments Require ‘Proportionality’ Sentences,”

Clause to of Prison (1984) (“An 509-514 Cath.U.L.Rev. Undeclared Overrul ...”); Note, ing of Rummel Estelle “Constitutional Law —Prison Grossly Disproportionate Sentences to the Crime Punishment,” Committed as Cruel and Unusual 30 Wayne (1984) (“The Helm are L.Rev. dissenters [in ] correct in that the noting Supreme prac Court has for all Rummel”)) purposes tical overruled its decision in Com ment, Requirement “The Proportionality Criminal Sen Helm," Solem v. tencing: Eng.J.Crim. & New Civ. Solem (1985) (“The 251-252 majority Confinement Rummel____ court, however, does not re overrule Hutto”)) Rummel and in reasoning verses the used v. Helm: Extension of Comment, “Solem Eighth Amend Punishment,” ment Review to Proportionality Noncapital (1984) Rummel limiting L.Rev. to its (“[B]y Iowa facts and reinterpreting holding, suggested Rummel’s ..., Helm restricted majority may have it, Rummel to such an extent as to overruled have even so”). not to do purporting while At least courts have characterized the similarly two Hernandez, People Helm!Rummel See v. dichotomy. (Colo.1984) (en banc) (“Since Solem P.2d ... Court,” pronouncement Supreme the last the [was] “compelled grant proportionality court was to review when possibility a life sentence ... [with was] statute”); imposed under the Colorado criminal habitual State, (Del.1988) (The Williams v. 539 A.2d court that Rummel persuaded by” argument was “not the State’s Solem did not controlled; “[although go so far as to Rummel, repudiate reasoning overrule it did much of the upon which Rummel relied”).

Since Helm is now the decision, governing eighth amendment to requires apply proportionality analysis us in very least in case which a any mandatory substantial the possibility parole, sentence is under imposed, without an habitual offender statute. I dissent from the Court’s holding that it is not constitutionally required to do so.3

III. I disagree also with the Court’s alternative holding that Minor’s not constitutionally disproportionate. The analytical underlying holding flaw this also infected Davis, v. supra. State It is and was the failure to Court’s look at the actual in facts involved the several offenses. This approach would have been Rummel. under appropriate Helm. permitted It is not Nor is the majority’s look mitigated refusal to at those facts its by disclaimer that “we do not suggest under constitutional review predicate the facts of the crime or are immaterial must be that, ignored.” Having written majority proceeds ignore the predicate facts of the crimes in this case.

In his Rummel dissent, Justice Powell observed of the crimes by involved “[n]one [committed Rummel] to one’s injury person, person, threat of to one’s injury violence, violence, the threat of or use of a weapon.” 295, 100 atU.S. S.Ct. at 63 L.Ed.2d at 404. And in his review, application again he emphasized the actual nature of surrounding or events these offenses. Id. 1150-1151, 100 S.Ct. at 63 L.Ed.2d at 404- noted, IAs already have Justice Powell’s dissent Rummel view Helm. majority became the latter case, Justice Powell took all pains point out that nonviolent, Helm’s offenses were “all none was a [and] Davis, 3. The Court’s analysis in State v. 310 Md. 530 A.2d 1223 error, (1987), my position was also view. I believe the taken State, Special Appeals Md.App. Court of in Davis v. 514 A.2d (1986), part, part, rev’d in 310 Md. 530 A.2d 1223 aff’d (1987), to be I correct. am also now constrained to conclude that the Special Appeals apply proportionality analy failure of the Court of State, involving parole, Bryan sis in cases without such as 210, 644, denied, 296, Md.App. A.2d cert. 304 Md. 498 A.2d 1183 (1985), there, wrong. predicate was Given the nature of the offenses however, (robbery deadly weapon robbery) Bryan’s with a sen may constitutionally proportionate. tence well have been against 280, crime a person____” 463 U.S. at 103 S.Ct. at 3005, 77 L.Ed.2d at 643. He looked in detail at the offenses again and their actual nonviolent nature during applica- 296-297, tion of proportionality analysis. Id. at 103 S.Ct. at 3012-3013, 77 L.Ed.2d at 653.

The message through that comes to me is clear: the fact that the has legislature classified offenses as felonies or as violence, crimes of for purposes statute, a recidivist Nor is the fact decisive. that a crime so classified violence; might potentiality involve that was true of predicate at least some of Helm’s crimes. See U.S. 3023, 103 S.Ct. at 77 L.Ed.2d at 665-666 (Burger, C.J., dissenting). applies eighth When court amendment review, it “must by ... be undeterred label ‘crime of violence’ and consider the facts of the crimes State, ... committed.” actually Davis v. [the offender] 514 A.2d at 1234. Md.App. here, I approach

When is taken observe no actual offenses, violence, violence in any of Minor’s no threat of no classification, use of a weapon. Despite legislative these were not “crimes of violence.” terms of the first criterion by established offenses committed this were not serious. inept housebreaker criterion,

As to the Maryland punishes second Helm guilty much less severe fashion offenders of crimes involv- ing the actual use of force or the threat of force. Art. See 1 (prison eight sentence no more than for the years § years); forcible abduction of a child under 16 Art. 7§ (maximum years anyone wilfully for “who barn, stable, and maliciously any sets fire to or burns ... ”); garage building (“person or other ... Art. 12§ convicted of the crime of an assault with intent to rob .. / [may punished for not less than two by] imprisonment (conviction or more than ten years years”); Art. § “assault with intent “not rape” punishable by to commit less than two nor Art. years”); more than 15 (the another individ- stabbing shooting unlawful or prison ual or an assault with intent maim carries a

599 (volun 27, 387 Art. years); not more than sentence of § imprison a punishable by period is tary manslaughter (10- Art. years); not exceed 10 ment does § (rob Art. robbery); sentence for maximum year § by a deadly weapon punishable or dangerous with a bery same máximums years imprisonment). maximum of a for second convicted of these offenses even to those apply under these and sentenced All convicted persons time. for moreover, parole. are eligible statutory provisions, life with the imprisonment a Even murderer sentenced serve as few as 15 before parole may possibility (1957, 1986 paroled. Repl.Vol., Md.Code Cum. being 4-607(b)(1); Md.Regs.Code tit. Supp.), Art. § (1980). 12.08.01.17(3)(a) § criterion, states, in other while those

Turning to the third given often be property may commit nonviolent crimes who statutes, these sentences long sentences under recidivist are, for to the discretion of the part, subject the most three other Only Minor’s Brief. Appendix courts. See offenders, mandato- impose, for nonviolent recidivist states than the one stringent that are more ry minimum sentences in this case. Colo.Rev.Stat. Maryland imposed See minimum (1986 mandatory Repl.Vol.) (25-year 16-13-101 § degree burglary for second upon sentence third conviction 4214(b) house); (1987 Ann. tit. dwelling Del.Code § possibility Repl.Vol.) (mandatory life sentence without degree burglary); third of second parole for conviction (1985 Repl.Vol., Ind.Code Ann. 35-50-2-8 Cum. § upon minimum sentence third Supp.) mandatory (36-year house). dwelling burglary conviction for of a however, Indiana, parole for could sub- provides which its actually recidi- stantially reduce a sentence served ll-13-3-2(b)(2) (1981 Ann. vist statute. See Ind.Code § begins RepLVol.) (eligibility for consideration served). cannot half Its statute after of sentence is mandato- stringent 25-year than 643B’s considered more possibility parole. minimum sentence without ry thus states that treat only Colorado and Delaware are their nonviolent recidivist offenders more harshly than Ma- ryland. Appendix See to Minor’s Brief. I it,

As see three-part analysis weighs heavily in Minor’s I favor. am convinced years without parole for a nonviolent recidivist housebreak er, who has carried no weapon his during forays illicit has nothing, who taken actually dispro unconstitutionally portionate. I find Consequently, that sentence applied Minor to be cruel and unusual in violation of the eighth amendment, I and would reverse.4

546 A.2d 1041 Maryland STATE of Timothy L. WILSON. Term, Sept. No. 1986. of Appeals Maryland. Sept. 1988. and, Obviously, escape punishment Minor should not without view, citizen; my he would not. He is not a model he is a recidivist. 25-year The circuit court sentence should be vacated and case remanded to the imposition proportionate of a sentence to the actual nature his offenses.

Case Details

Case Name: Minor v. State

Court Name: Court of Appeals of Maryland

Date Published: Sep 13, 1988

Citation: 546 A.2d 1028

Docket Number: 98, September Term, 1986

Court Abbreviation: Md.