Minor v. State

ELDRIDGE, Judge,

concurring:

I concur in the Court’s judgment but not in its opinion.

The majority, following the lead of some other courts,1 approaches sentence proportionality review under the Eighth Amendment as if the controlling principles are those set forth in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), and as if Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is of extremely limited applicability. The majority seems to view *587all cases as falling within either of two well-defined categories. The first of the majority’s categories appears to encompass the vast majority of cases as to which no proportionality analysis under Solem v. Helm is appropriate and Rummel v. Estelle is controlling. The second category embraces a few cases governed by the principles of Solem v. Helm, and subjected to an “extended analysis” based on “three criteria.” I disagree entirely with this approach.

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

Furthermore, I do not believe that the Supreme Court’s opinions require that we classify all criminal sentences into two categories, one involving no proportionality analysis and the other involving a particular form of extended proportionality analysis utilizing three, and only three, criteria. As Justice Powell indicated for the Court in Solem, all criminal sentences are subject to Eighth Amendment proportionality review but only rarely will an extensive review be required. Solem v. Helm, supra, 463 U.S. at 289-290, 103 S.Ct. at 3009-3010. Common sense and experience teach that, in a vast majority of cases, an appellate court, faced with an Eighth Amendment contention, can quickly reach the conclusion that the sentence is not constitutionally disproportionate to the crime. Beyond those cases, the degree of review required may vary from case to case; one case may require much more extensive analysis than another.

Moreover, proportionality review need not always consider, and always be limited to, the three factors discussed in Part III A of Justice Powell’s Solem opinion. It is noteworthy that the second and third factors were set forth as mere *588suggestions or possibilities.2 In some cases, an examination into the sentences imposed in other jurisdictions may be unnecessary and not very fruitful; in other cases, it may be quite helpful. Considerations apart from the three factors mentioned in Part III A of the Solem opinion are also pertinent, including deference to the legislative judgment, the particular facts concerning the commission of the crime, information in a pre-sentence investigation report, etc. I think that it would be unfortunate if Eighth Amendment proportionality review of sentences were frozen in the form of a “three criteria” review.

Applying the principles of Solem v. Helm to the instant case, however, leads me to the conclusion that the defendant’s sentence is not constitutionally disproportionate to the crime. Breaking into a dwelling house, whether done in the day or night, is a most heinous offense. Not only has the Legislature classified it as a crime ,of violence, but it is in fact a crime of violence against the occupants of the dwelling. Few rights are more precious to Americans than the right “to be secure in their ... houses.”3 I am in complete agreement with the discussion in State v. Davis, 310 Md. 611, 628-629, 530 A.2d 1223 (1987), concerning the gravity of this offense under Maryland law. In addition, the actual facts concerning the defendant’s several offenses present no circumstances which render the present sentence disproportionate. The defendant Minor is a career burglar who has repeatedly embarked upon a course of conduct endangering persons in their homes.

Consequently I agree with the Court that, under Solem v. Helm, the defendant’s sentence violated neither the Eighth *589Amendment to the United States Constitution nor Articles 16 and 25 of the Maryland Declaration of Rights.4

. See, e.g., United States v. Rhodes, 779 F.2d 1019, 1027-1029 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Moreno v. Estelle, 717 F.2d 171, 179-181 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).

. The Court thus stated (463 U.S. at 291-292, 103 S.Ct. at 3010, emphasis added):

“Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. * * *
"Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions."

. United States Constitution, Amendment IV.

. The majority opinion does not separately discuss the defendant’s reliance upon Articles 16 and 25 of the Maryland Declaration of Rights. Thus, the majority apparently views the Maryland constitutional provisions as being in pari materia with the Eighth Amendment. This approach, with which I agree, seems to be reflected in many of our prior cases. See, e.g., Tichnell v. State, 287 Md. 695, 720-729, 415 A.2d 830 (1980); Delnegro v. State, 198 Md. 80, 88-89, 81 A.2d 241 (1951), Lanasa v. State, 109 Md. 602, 611-612, 71 A. 1058 (1909); Foote v. State, 59 Md. 264, 268 (1883). See also Mitchell v. State, 82 Md. 527, 532-534, 34 A. 246 (1896).