Jones v. State

RAKER, Judge.

In this appeal, we are again called upon to construe the mandatory sentencing provisions of Maryland Code (1957, 1992 Repl. Vol.) Article 27, § 643B. Subsection (c) of that statute mandates the imposition of a sentence of not less than 25 years upon a defendant who, after having been convicted of a crime of violence on two prior occasions and having served a term of incarceration as a result thereof, is “convicted a third time of a crime of violence.” The issue raised in this appeal concerns the application of § 643B(e) to a defendant who, having otherwise satisfied the statutory prerequisites for imposition of the § 643B(c) penalty, is thereafter convicted, as the result of a single incident, of more than one crime of violence which could serve as the defendant’s “third” crime of violence conviction. The precise question we face is whether a sentencing judge may select any one of the defendant’s crime of violence convictions to serve as the third conviction for the purposes of § 643B(c). We hold that a sentencing judge has the discretion to impose the § 643B(c) penalty upon any one of the qualifying convictions, and, accordingly, we affirm the judgment of the Court of Special Appeals.

*258I.

Petitioner Duane Thomas Jones was found guilty of the crimes of second degree rape, second degree sexual offense, and robbery after a trial by jury in the Circuit Court for Baltimore County (Smith, J., presiding). All three convictions arose out of a single incident which occurred on March 15, 1991.

Prior to sentencing on the 1991 offense, the State served Jones with notice of intention to seek a § 643B(c) mandatory minimum penalty. Section 643B(c) provides:

(c) Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.

Jones had previously been convicted, in two separate criminal cases brought in 1989, of the crimes of robbery and burglary and he had consequently served a term of confinement in a correctional institution. Jones thereby satisfied the statutory prerequisites for imposition of sentence pursuant to § 643B(c).

At sentencing on the 1991 offenses, Jones did not contest the fact that he had previously been convicted of two crimes of violence and that he had served a period of confinement in a correctional institution. Jones also did not contest the fact that the three crimes for which he faced sentencing on this occasion—second degree rape, second degree sexual offense, and robbery—are all identified as crimes of violence in § 643B(a), and that he therefore had been convicted of a third crime of violence. Given these admissions, there was no debate at Jones’ sentencing hearing as to whether the statute*259ry prerequisites for imposition of the § 643B(c) penalty were met.

Jones contended, however, that § 643B(c) is ambiguous in that the statute does not specify upon which crime of violence conviction the mandatory 25-year penalty should be imposed when a defendant is convicted of multiple qualifying crimes of violence as the result of a single incident. Jones maintained that, pursuant to the rule of lenity, the statute must be construed so as to require that the § 643B(c) penalty is imposed on the conviction that bears the greatest statutory penalty, thereby minimizing the maximum sentence to which the defendant is exposed.

Absent the invocation of the § 643B(c) penalty, Jones would have been subject to a maximum total sentence of fifty years for the three crimes he committed: twenty years for the second degree rape, see Article 27, § 463, twenty years for the second degree sexual offense, see Article 27, § 464A, and ten years for the robbery, see Article 27, § 486. Once the statutory prerequisites for imposition of the § 643B(c) penalty were met, and if the mandatory, § 643B(c) sentence was imposed upon either the second degree rape or second degree sexual offense convictions, Jones would have been exposed to a maximum sentence of fifty-five years. In contrast, if the § 643B(c) penalty was imposed upon the robbery conviction, Jones would have been exposed to a maximum sentence of sixty-five years. Seeking to minimize the term to which he could be sentenced, at his sentencing proceeding Jones argued that he was entitled to have the § 643B(c) penalty imposed upon either the second degree rape or the second degree sexual offense conviction.

The trial judge rejected Jones’ argument that the § 643B(c) penalty could not be imposed upon the robbery conviction and sentenced Jones to twenty years on the second degree rape conviction, twenty years on the second degree sexual offense conviction, to run concurrent with the rape sentence, and twenty-five years, pursuant to § 643B(c), on the robbery conviction, to run consecutive to the rape sentence.

*260Jones appealed, arguing that the sentencing judge erred in imposing the § 643B(c) penalty upon his robbery conviction. In an unreported opinion, the Court of Special Appeals upheld Jones’ sentence, holding “that when more than one conviction qualifies as the third conviction of a crime of violence, the determination of the crime to which the mandatory sentence will be imposed rests within the discretion of the trial court.” The Court of Special Appeals explained:

In the case subjudice, Article 27, § 643B(c) required only that the judge impose a minimum of twenty-five years because appellant was for the third time convicted of a crime of violence. The robbery conviction qualified as a third conviction of a crime of violence. The judge, in selecting to impose the § 643B(c) mandatory twenty-five year sentence on the robbery conviction and normal sentences on the rape and sexual offenses convictions, did not exceed the statutory maximum sentences allowable under the law for the crimes committed by appellant during the single episode. We hold that the trial judge did not abuse his discretion in sentencing appellant.

We granted Jones’ petition for a writ of certiorari to consider whether, as Jones suggests, a defendant who is convicted of more than one crime of violence arising out of a single incident is entitled as a matter of law to have the § 643B(c) mandatory minimum sentence imposed upon the conviction that would otherwise carry the most severe statutory penalty. We conclude that the defendant is not so entitled and hold that it is within the sound discretion of the sentencing judge to select any one of the predicate convictions to serve as the “third” conviction for the purposes of § 643B(c).

II.

When called upon to construe the meaning of a particular statute, we have repeatedly stated that the goal of statutory construction is to ascertain and effectuate legislative intent. See, e.g., Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991); Jones v. State, 311 Md. 398, 405, 535 A.2d 471, *261474 (1988). The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. See, e.g., Dickerson v. State, 324 Md. 163, 170—73, 596 A.2d 648, 651 (1991); Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hawkins v. State, 302 Md. 143, 147, 486 A.2d 179, 181 (1985).

When the statute at issue is a penal statute, we are often confronted with the argument that the statute must be construed according to the rule of lenity, which “means that the Court will not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the Legislature] intended.” Monoker v. State, 321 Md. 214, 222, 582 A.2d 525, 529 (1990) (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199, 205 (1958)); see also Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971) (court must construe any “ambiguity concerning the ambit of criminal statutes ... in favor of lenity.”). Jones invokes the rule of lenity in this case.

The rule of lenity, however, is a maxim of statutory construction which serves only as an aid for resolving an ambiguity and it may not be used to create an ambiguity where none exists. Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284 (1981); Dillsworth v. State, 308 Md. 354, 365, 519 A.2d 1269, 1274 (1987). As Justice Frankfurter explained in Callanan v. United States, 364 U.S. 587, 589, 81 S.Ct. 321, 326, 5 L.Ed.2d 312, 319 (1961), the rule of lenity “comes into operation at the end of the process of construing what [the Legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers. That is not the function of the judiciary.” See also Albernaz, 450 U.S. at 342-43, 101 S.Ct. at 1144-45, 67 L.Ed.2d at 284-85; Randall Book Corp. v. State, *262316 Md. 315, 327, 558 A.2d 715, 721 (1989). Simply put, the rule of lenity is reserved for cases where, “[ajfter ‘seizing] everything from which aid can be derived,’ the Court is ‘left with an ambiguous statute’ ” containing a “grievous ambiguity or uncertainty.” Staples v. United States, — U.S.-,n. 17, 114 S.Ct. 1793, 1804 n. 17, 128 L.Ed.2d 608, 625 n. 17 (1994) (citations omitted). When the statute is unambiguous, the rule of lenity “simply has no application.” Albernaz, 450 U.S. at 343, 101 S.Ct. at 1144, 67 L.Ed.2d at 284.

A.

Section § 643B(c) provides that a defendant who has twice before been convicted of crimes of violence and served at least one term of confinement in a correctional institution as a result thereof is subject, upon a conviction a third time of a crime of violence, to the imposition of the mandatory twenty-five year minimum sentence upon that third crime of violence conviction. Once the predicate requirements for imposition of the § 643B(c) penalty have been established, a sentencing judge has no choice but to impose the mandatory minimum penalty upon the third crime of violence conviction. State v. Taylor, 329 Md. 671, 675, 621 A.2d 424, 426 (1993); Loveday v. State, 296 Md. 226, 236-37, 462 A.2d 58, 63 (1983).

We have previously held that where a defendant, like Jones, is convicted of more than one qualifying crime of violence as the result of a single incident, the sentencing judge may impose only one § 643B(c) sentence. State v. Taylor, 329 Md. at 674, 621 A.2d at 425; Calhoun v. State, 46 Md.App. 478, 489, 418 A.2d 1241, 1249 (1980), aff'd, 290 Md. 1, 425 A.2d 1361 (1981). We have not previously had occasion, however, to consider the question raised in the case sub judice—that is, whether the trial judge has any discretion to determine which crime of violence conviction out of several will be treated as the “third” conviction for the purposes of § 643B(c).

Jones contends that the statute is ambiguous because the Legislature did not expressly address the question of whether a sentencing judge may apply the § 643B(c) to any one of *263several qualifying convictions. We find no merit in Jones’ claim of ambiguity: as there exists no ambiguity in the statute, the rule of lenity has no application in this case. Section 643B(c) plainly provides that a third conviction of a crime of violence mandates the imposition of a minimum twenty-five year penalty. Here, there can be no question that each of the crimes of which Jones was convicted—second degree rape, second degree sexual offense, and robbery—is a “crime of violence” conviction within the meaning of § 643B(c). There can also be no question that any one of those crimes could have been considered the defendant’s third crime of violence conviction. Thus, there can be no contention that Jones’ robbery conviction did not qualify as a third conviction of a crime of violence. Significantly, Jones concedes that had he been convicted only of the crime of robbery, the trial court would have been authorized and indeed required to impose the mandatory penalty of § 643B(c) upon that conviction. We cannot agree with Jones’ assertion that, because he was convicted of two additional crimes of violence, the sentencing judge thereby lacked the authority to impose the § 643B(c) penalty upon the robbery conviction. The conviction of additional crimes of violence does not alter the fact that the robbery conviction was a qualifying third conviction of a crime of violence.

Moreover, Jones’ argument that the conviction of additional violent crimes should entitle a defendant to a proportionately more lenient sentence hardly makes sense. As the Court of Special Appeals aptly explained:

[Jones’] robbery conviction qualified as a crime of violence under § 643B(a). Without [Jones’] rape or sexual offense convictions, there would be no question that his robbery conviction was the third conviction of a crime of violence, and under § 643B(c) the mandatory twenty-five year sentence without the possibility of suspension or parole could be sought for that conviction. It makes no sense to limit the application of § 643B(c) to permit robbery to be punished more severely than permissible under § 486 only if it is committed during an incident in which no other more *264serious crimes of violence are committed. A legitimate purpose of § 643B(c) is clearly to enhance punishment for criminals who commit additional crimes. It would be illogical to permit a criminal to reduce proportionally the enhancement of his or her punishment by committing additional and more serious crimes of violence during the incident in which the victim is robbed. Instead of getting an additional fifteen years as enhanced punishment for committing the single crime of robbery, the criminal could get only an additional five years as punishment for the three crimes of robbery, rape, and sexual offense. This would thwart the intent of the statute under these circumstances.

B.

Section 643B(c) was enacted for the purpose of “providing new and different alternatives for dealing with aggressive and violent offenders.” Ch. 678, 1977 Laws of Maryland. As we have repeatedly stated, the penological objectives of statutes such as § 643B(c) which mandate the extended incarceration of recidivist criminals is to provide warning to those persons who have previously been convicted of criminal offenses that the commission of future offenses will be more harshly punished, and to impose the extended period of incarceration upon those who fail to heed that warning so as to protect society from violent recidivist offenders. See, e.g., Gargliano v. State, 334 Md. 428, 442-45, 639 A.2d 675, 682-83 (1994); Jones v. State, 324 Md. 32, 38, 595 A.2d 463, 466 (1991); Minor v. State, 313 Md. 573, 576, 546 A.2d 1028, 1029 (1988); Hawkins v. State, 302 Md. at 148, 486 A.2d at 182; Garrett v. State, 59 Md.App. 97, 118, 474 A.2d 931, 941, cert. denied, 300 Md. 483, 479 A.2d 372 (1984).

Once the predicate requirements for imposition of a § 643B(c) penalty are met, a judge must impose the mandatory minimum penalty. There is nothing in the statute which would indicate that the Legislature intended to prevent sentencing judges from selecting, for example, the conviction which carries the greatest statutory penalty or the conviction *265which the judge believes is most legally secure as the conviction upon which to impose the § 643B(c) penalty. Where the defendant is convicted of more than one crime of violence, we believe the Legislature intended to afford sentencing judges the discretion to make a reasoned consideration of, inter alia, the nature of each conviction and the defendant’s criminal history, in selecting the conviction upon which to impose the enhanced penalty.

In Maryland, trial court judges are vested with broad discretion in the exercise of the “awesome responsibility of imposing sentence” on criminal defendants. Johnson v. State, 274 Md. 536, 538, 336 A.2d 113, 114 (1975); see also State v. Dopkowski, 325 Md. 671, 679, 602 A.2d 1185, 1189 (1992) (“The judge is accorded this broad latitude to best accomplish the objectives of sentencing—punishment, deterrence and rehabilitation.”). To that end, judges have been given great latitude with respect to the evidence they may consider in fashioning a sentence that is responsive to the facts and circumstances of the offenses at issue. Johnson v. State, 274 Md. 536, 540-42, 336 A.2d 113, 115-16 (1975). We find it consistent with the purposes of § 643B(c) that sentencing judges retain the discretion to select the one conviction which shall serve as the defendant’s third crime of violence conviction and upon which the § 643B(c) sentence shall be imposed.

In sum, we find that § 643B(e) is unambiguous and, therefore, that the rule of lenity is inapplicable. See State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993); Monoker v. State, 321 Md. 214, 222-23, 582 A.2d 525, 529 (1990); Robinson v. Lee, 317 Md. 371, 379, 564 A.2d 395, 399 (1989). We hold that where a defendant is convicted of more than one crime of violence as the result of a single incident and has otherwise satisfied the prerequisites for imposition of the § 643B(c) sentence, the sentencing judge, in imposing only one § 643B(c) sentence, may impose the § 643B(e) sentence upon any one of the qualifying crime of violence convictions. Here, the imposition of the § 643B(c) penalty upon Jones’ robbery conviction, which qualified as his third conviction of a *266crime of violence, was proper. Accordingly, the judgment of the Court of Special Appeals is affirmed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.

Dissenting opinion by BELL, J., in which ELDRIDGE, J., joins.