Whack v. State

BELL, Judge,

dissenting, in which ELDRIDGE, Judge, joins.

The majority holds that a judge may predicate a defendant’s enhanced sentence, imposed pursuant to Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Article 27, § 286(c) and § 293, on a prior conviction pending on direct or certiorari review. It reasons that, since neither § 286(c) nor § 293 expressly requires that convictions be final, presumptively, they need not be. I dissent. Where a statute is silent as to a prerequisite to its application and the legislative intent is unclear on the matter, the rule of lenity applies. Because that rule requires that the defendant be given the benefit of the doubt, the statute will be interpreted most favorably to the defendant.

Section 286(c)(1) prescribes an enhanced sentence to be imposed on any person with a prior conviction of certain offenses. It provides:

A person who is convicted under subsection (b)(1) [distribution of Schedule I and II narcotic drugs] of this section or *684subsection (b)(2) [distribution of Schedules l and II nonnarcotic drugs] of this section, or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imprisonment for not less than 10 years if the person previously has been convicted:
(i) Under subsection (b)(1) or subsection (b)(2) of this section;

Section 293 provides for twice the fines and/or imprisonment term for any person convicted of any offense under the Controlled Dangerous Substances Section of Article 27, “if the offense is a second or subsequent offense.” Section 293(a). For purposes of § 293(b), “an offense shall be considered a second or subsequent offense, if, prior to the conviction of the offense, the offender has at any time been convicted of any offense or offenses.”

When there is a question as to the meaning of a statute, the words of the statute are the starting, and, ordinarily, also the ending point, for interpretation. See Tidewater/Havre de Grace, Inc. v. Mayor and City Council of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995); Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994); Thanos v. State, 332 Md. 511, 522, 632 A.2d 768, 773 (1993); Harris v. State, 331 Md. 137, 145-46, 626 A.2d 946, 950 (1993). Where, however, the meaning of the Legislature cannot be ascertained from the express words of the statute, the legislative intent must be sought from other sources, see State v. Thompson, 332 Md. 1, 6-7, 629 A.2d 731, 734 (1993); Harris v. State, 331 Md. at 146, 626 A.2d at 950, quoting Wynn v. State, 313 Md. 533, 539, 546 A.2d 465, 468 (1988), quoting Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628, 632 (1987); thus, we examine a statute “in light of external manifestations of intent or general purpose available through other evidence.” Gargliano v. State, 334 Md. at 436, 639 A.2d at 678 (quoting Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989)). The other sources to be consulted include the legislative history of the statute. See Rose v. Fox Pool Corp., 335 Md. 351, 360, 643 A.2d 906, 910 (1994); Harris, 331 Md. at 146, 626 A.2d at 950; Morris v. Prince George’s County, 319 *685Md. 597, 604, 573 A.2d 1346, 1349 (1990); Scott v. State, 297 Md. 235, 246, 465 A.2d 1126, 1132 (1983), appeal after remand, 310 Md. 277, 529 A.2d 340 (1987).

No where in either § 286(c)(1) or § 293 are the terms “conviction,” “prior conviction,” or “previously has been convicted” defined. As the majority correctly and astutely observes, in that regard, “[t]he statutes are simply silent as to the necessity for or the degree of finality that must attach to the prior conviction before it may be considered as a predicate offense for sentence enhancement.” Majority Op. at 672. The statutes, therefore, do not expressly provide guidance as to the Legislature’s intent with respect to predicating an enhanced penalty upon a conviction then pending review. The legislative intent is not apparent from the legislative history of the statutes either. In Gargliano v. State, 334 Md. at 441-42, 639 A.2d at 681, interpreting the phrase “previously has been convicted,” as used in § 286, this Court observed:

We have reviewed the entire legislative history of § 286 and have not discovered any discussion of the meaning of the phrase, ‘previously has been convicted,’ in either the House Judiciary Committee or the Senate Judicial Proceedings Committee or on the floor of either body of the legislature during the enactment of any of the relevant amendments to § 286. The clear import of the language used throughout § 286 is that the Legislature sought to impose more stringent penalties on certain offenders who repeatedly persist in a pattern of criminal conduct.

A similar dearth of enlightenment follows review of the legislative history of § 293. Since the Legislature’s intended meaning cannot be ascertained from either the express words of the statutes or their legislative histories, it is apparent that the statutes are ambiguous on this point.

An ambiguous penal statute must be “strictly construed so that only punishment contemplated by the language of the statute is meted out.” Gargliano v. State, 334 Md. at 437, 639 A.2d at 679 (quoting Dickerson v. State, 324 Md. 163, 172, 596 A.2d 648, 652 (1991)). This “rule of lenity” requires that *686highly penal statutes be strictly construed against the State and in favor of the defendant. See Harris v. State, 331 Md. at 145, 626 A.2d at 950; State v. Kennedy, 320 Md. 749, 754, 580 A.2d 193, 195 (1990); Wynn v. State, supra, 313 Md. at 539-40, 546 A.2d at 468-69; N. Singer, Sutherland on Statutory Construction, § 59.03, at 102-03 (5th ed. 1992). The rule expressly prohibits a court from interpreting a criminal statute so as to increase the penalty it places on a defendant “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)). In Robinson v. Lee, 317 Md. 371, 379-80, 564 A.2d 395, 399 (1989), this Court stated:

Fundamental fairness dictates that the defendant understand clearly what debt he must pay to society for his transgressions. If there is doubt as to the penalty, then the law directs that his punishment must be construed to favor a milder penalty over a harsher one.

The majority acknowledges that § 286(c) and § 293 are ambiguous — it notes their silence as to the degree of finality that must attach to the prior conviction, the absence of a clarifying legislative history, and the fact that “convicted” can be interpreted in one of three ways. As to the latter point, it observes:

in its general and popular sense, to mean establishment of guilt pursuant to a verdict or plea of guilty; in its legal and technical sense, to mean following judgment or sentence; or in its ‘final’ sense, to mean establishment of guilt, judgment, or sentence, and absence or resolution of any appeal.

Majority op. at 675. Nevertheless, the majority asserts that it is up to this Court to make the critical determination of whether an enhanced penalty can be predicated upon a conviction pending on appeal, thus rejecting the application of the rule of lenity to the case sub judice:

[w]hile penal statutes are strictly construed, the construction given them ultimately depends upon ascertaining the *687intention of the Legislature when it drafted and enacted the statutes in question. The rule of lenity may not be invoked to subvert the purpose of a statute. It is reserved for eases where, ‘[a]fter “seizing] everything from which aid can be derived,” the Court is “left with an ambiguous statute’ “containing a ‘grievous ambiguity or uncertainty.’

Majority op. at 672-674 (citations omitted). Speculating as to how the Legislature intended “convicted” to be defined, the majority reasons:

In Myers[ v. State, 303 Md. 639, 642, 496 A.2d 312, 313 (1985) ], following a review of our cases in which we analyzed the meaning of the word, we found that ‘it is inescapable that we have consistently equated a “conviction” with the judgment of the court on the verdict and not with the mere determination of guilt.’ Id. at 645, 496 A.2d at 315. We held that ‘unless the context in which the word is used indicates otherwise, a “conviction” is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty.’ Id. Consistent with this interpretation, we hold that prior convictions pending on appeal may be used to impose enhanced sentences under § 286(c) and § 293.

Majority Op. at 674.

I do not disagree with the majority that a conviction contemplated by §§ 286(c) and 293 must be defined in light of the statutes’ purpose. In that regard, the majority is correct that the purpose of §§ 286(c) and 293 is to “deter the future commission of criminal offenses by persons who have previously been convicted and subject to the threat of punishment.” Majority op. at 675. As explained in Gargliano v. State, supra, 334 Md. at 444, 639 A.2d at 682-83,

In construing Maryland’s enhanced penalty statutes similar to § 286(c), we have found that such statutes were enacted with the purpose of identifying defendants who have not reformed their behavior after prior convictions and incarcerating such defendants for a longer period than would otherwise be applicable in order to protect the community and deter others from similar behavior. The means for achiev*688ing such deterrence is the provision of fair warning to previous offenders that if they continue to commit criminal acts after having had the opportunity to reform after one or more prior contacts with the criminal justice system, they will be imprisoned for a considerably longer period of time than they were subject to as first offenders. (Citations omitted).

See 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); Montone v. State, 308 Md. 599, 606, 521 A.2d 720, 723 (1987); Hawkins v. State, 302 Md. 143, 148, 486 A.2d 179, 182 (1985); Garrett v. State, 59 Md.App. 97, 118, 474 A.2d 931, 941, cert. denied, 300 Md. 483, 479 A.2d 372 (1984).

As already established, there are three different ways the term “convicted” can be defined: in its general and popular sense, in its legal and technical sense, or in its “final” sense. As the majority points out, this Court has recognized that the specific definition to be utilized depends upon the context and purpose of the particular statute in which it appears. In the case sub judice, this means that we must consider the term “convicted” in light of the context and purpose of deterring recidivist criminals by warning them of the consequences— harsher sentences — of repeating their crimes. That the purpose of the statutes is to impose more stringent penalties on repeat offenders does not clarify, however, which of the three definitions of “convicted” the Legislature had in mind when it enacted the statutes. Applying any one of them would have the desired result, although whether or when the enhancement would occur would differ; under any one of the definitions, a defendant’s sentence would be enhanced whenever the prescribed prerequisite has been met. Thus, it does not follow, as the majority suggests, that interpreting §§ 286(c) and 293 to require finality would frustrate the legislative intent that repeat offenders receive enhanced sentences. In this regard, I think it significant that this Court has attributed to §§ 286(c) and 293 the same purpose as it has attributed to § 643B. Compare Gargliano, 334 Md. at 442-43, 639 A.2d at 681-82 (§ 286(c)) and Majority op. at 678 (§ 286(c) and § 293) with *689Taylor v. State, 333 Md. 229, 236, 634 A.2d 1322, 1325 (1994) (§ 643B). Albeit by its express terms, under § 643B, the predicate prior conviction must be final. It has never been suggested that the purpose of § 643B has, on that account, been frustrated. Neither of the enhanced penalty statutes now under review details the requirements for enhanced punishment in the same way that § 643B does, neither states precisely when, or under what circumstances, the subsequent conviction must result in an enhanced sentence. They both require, however, that an enhanced penalty be imposed when the prescribed condition — a prior conviction — has been met. Consequently, as in the case of § 643B, their purpose would not be frustrated were the prior conviction requirement to be construed as contemplating a final conviction.

The purpose of enhanced penalty statutes is to be achieved by warning recidivist criminals that

if they continue to commit criminal acts after having had the opportunity to reform after one or more prior contacts with the criminal justice system, they will be imprisoned for a considerably longer period of time than they were subject to as first offenders.

Gargliano v. State, 334 Md. at 444, 639 A.2d at 682-83. Implicitly, therefore, the Legislature recognized that a defendant must be given the opportunity to reform. According to Black’s Law Dictionary 1152 (5th ed. 1979), “to reform” means “to correct, rectify, amend, remodel.” The Legislature recognized in enacting § 643B that if a defendant’s predicate prior conviction has not been finally resolved and, thus, it is pending review when the subsequent offense is committed, the defendant will not have been afforded an opportunity to reform. As we have seen, §§ 286(c) and 293 share the same purpose, and I believe that they should be interpreted the same way. It is quite likely that, in enacting §§ 286(c) and 293, the Legislature chose to use short hand when referring to the predicate conviction, rather than, as was done in § 643B, fully detailing the requirements of that predicate conviction. Thus, even if the majority approach is adopted, the result more logically would be that required by lenity.

*690The majority justifies its rejection of the rule of lenity on the basis that the rule should only be used if, and when, every aid for determining legislative intent has been exhausted, and all that is left is a statute with a “grievous ambiguity or uncertainty.” But that is precisely what we have here— statutes that have a “grievous ambiguity or uncertainty.” Moreover, the majority’s argument that the rule of lenity must be rejected because it would give the defendant a windfall is completely irrelevant. Whoever the majority may posit is the intended beneficiary of the statutes, the rule of lenity applies, or not, depending upon whether the statutes are ambiguous. There is no doubt — indeed, the majority concedes — that both § 286(c) and § 293 are ambiguous. It is not clear, either from the language of the statutes or their legislative histories, which definition of “conviction” the Legislature intended, and the purpose of the statutes is served whichever definition is chosen.

The rule of lenity being applicable, I would reverse the judgment of the Court of Special Appeals and remand the case to that court for further remand to the Circuit Court for Prince George’s County for resentencing.1

Judge ELDRIDGE joins in the views expressed herein.

. Although I would not reach and, therefore, it is unnecessary that I address the second issue the petitioner raises, I do register my reservations, and the reasons therefore, about the propriety of holding that enhancing, albeit in different ways, more than one subsequent conviction arising out of the same incident. Consistent with State v. Calhoun, 290 Md. 1, 425 A.2d 1361 (1981), aff'd 46 Md.App. 478, 418 A.2d 1241 (1980), and as argued by the petitioner, even when there are two enhanced penalty statutes, only one enhanced sentence may be imposed unless it clearly appears, either from the language of the statutes or their legislative histories, that the Legislature intended otherwise.

Section 286(g)(5) provides:

Nothing contained in this subsection prohibits the court from imposing an enhanced penalty under § 293 of this article. This subsection may not be construed to preclude or limit any prosecution for any other criminal offense.

In direct contrast to § 286(g)(5), which expressly authorizes, but does not mandate, a § 286 enhanced sentence, in addition to the enhanced sentence for drug kingpins, mandated by § 286(g)(2)(i), § 286(c) does not mention § 293. I believe that, had the Legislature intended to *691authorize enhanced sentences under both § 286(c) and § 293, it would have so provided, as it did with respect to §§ 286(g) and 293.