State v. Stowe

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State v. Stowe, No. 136, September Term, 2000 HEADNOTE: CRIMINAL; PENITENTIARY LIMITATIONS MISDEMEANORS; STATUTE OF Circuit Co urt for M ontgom ery County Case No. 88276 IN THE COURT OF APPEALS OF MARYLAND No. 136 September Term, 2000 STATE OF MARYLAND v. DAVID ERWIN STOWE Bell, C. J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Bell, C. J. Filed: August 7, 2003 In Massey v. S tate, 320 Md. 605, 579 A. 2d 265 (1990), this Court considered, in the context of a pro secutio n for w elfare p erjury, the appropriate limitations period for misdemeanor prosecutio ns, and, in particular, those involving penite ntiary misd emean ors. When that case was decided, the general statute of limitations for misdemeanors was contained in Md. Code (1974, 1989 Repl. Vol.), § 5-106 of the Courts and Judicial Proceedings Article. Purs uant to that section, except as it otherwise provided, a prosecution for a misdemeanor not made punishab le by confine ment in the penitentiary by statute shall be instituted within one year after the offense was committed. Therefore, the statute of limitations for a misd emeano r was one year, unless ano ther period o f limitations was specifically provided or the misdemeanor was made punishable by confinement in the peniten tiary. Id. at 611, 579 A. 2d at 268.1 As this Court put it, [m]isdemeanors punished 1 By way of historical background, this Court explained: At common law, there was no general period of limitations applica ble to cri minal p roceed ings. 1 C hitty, A Practical Treatise On The Criminal Law 160 (1 819); H ochhe imer, The Law Of Crimes And Criminal Procedure 78 (2d Ed.190 4). In Maryland, many criminal of fenses are subjec t to spec ific limita tions pe riods by sta tute. See, e.g., Code (1974, 1989 Repl.Vol.), § § 5-106(b)(1) of the Courts and Judicial Proceedings Article (two year limitations period for prosecutions under the vehicle code for unlawfully using a driver's license), 5-106(e)(3) (two year limitations period for criminal malfeasance, misfeasance, or nonfeasance in office by State officers), and 5-106 (g) (three year limitations period for welfare fraud). In the absence of a specific statutory limitations period for a particular offense, the State may institute a prosecution for a felony at any time. Greco v . State, 307 Md. 470, 478, 515 A.2d 220, 224 (1986). As to misdem eanors, the General A ssembly over one hun dred years ago mandated: "No prosecution . . . shall be commenced for . . . any misd eme anor exc ept th ose p unis hed by confin eme nt in the p enite ntiar y, unless within one year from the time of the offence committed." Code by confinem ent in the penitentiary are excluded from the [one year limitation] provisions of this section of the statute, and are pla ced along with felonies. Id., (quoting Schaumloeffel v. State, 102 Md. 470, 472, 62 A. 803, 804 (1906) and citing Archer v. State, 145 Md. 128, 137-138, 125 A. 744, 747 (1924) (no ting that these misdeme anors are class[ed] . . . w ith felonies ). Moreover, the Court noted that it was the fact that imprisonment in the penitentiary was statu torily a uthorized, rather than the sentence actually imposed, that determined whether limitations was unlimited or one year. Id. at 611-12, 579 A. 2d at 268, (citing, inter alia, Archer, 145 M d.. at 136 , 138, 12 5 A. at 7 47-74 8). Pursua nt to (19 57, 198 5 Rep l. Vol., 1989 Cum . Supp.), Art. 88 A, § 62 (a), welfare perjury was defined by reference to the offense of perjury, and a person committing the offense, upon conviction therefor is subject to the penalties provided by law for perjury. Md. Code (1 957, 198 7 Repl. Vol.) A rticle 27 , § 439 prescribed, a s the penalty fo r per jury, imprisonment in the jail or penitentiary for not more than ten years. Consequently, the Court of Special Appeals, to which the State appealed the trial court s dismissal of the (1860), Art. 57, § 10. At that time, and for many years thereafter, it was common for criminal statutes to designate not only the length of incarceration for a criminal conviction but also the place where the defendant would serve the sentence. Trial judges would sentence convicted defendants to the pa rticular institutions in accordance with the statuto ry authorization. Presumably, what the Legislature considered to be the most serious misd emeano rs were m ade punis hable by con finemen t in the state penitentiary. Sentences for misdemeanors apparently deemed less serious were by statute to be served in the county jails or state institutions such as the hou se of co rrection . Massey v. S tate, 320 Md. 605 , 610-11, 579 A . 2d 265, 267 (199 0). 2 welfare perjury ch arge agai nst M asse y, con clud ed th at welfa re pe rjury was a penitentiary misdemeanor and, for that reason, exclud ed from the one year limitation for misdemeano rs generall y. Massey, 320 Md. at 609, 579 A. 2d at 267. And because there was not otherwise provided in § 5-106 a specified period of limitations applicable to that offen se, a prosec ution fo r welfa re perju ry was no t subjec t to any lim itations p eriod. Id. We granted Massey s petition for writ of certiorari challenging the propriety of an unlimited period of limitations for welfare perjury when allegedly greater offenses arising out of the same acts were subject to a specified, and therefore shorter, limitations period. We added two questions, one of which addressed the meaning of the phrase, not made punishab le by confinement in the penitentiary by statute in light of Article 27, § 690, governing the sentencing and confinement of persons convicted of crim e. Id. at 609-10, 579 A. 2d at 26 7. As enacted by Ch. 556 of the Acts of 1916, Article 27, § 654, the predecessor of § 690, provided: When any person is convic ted, b efor e any C ircuit Co urt of any C ounty, or the Criminal Court of Baltimore, of any crime . . . punishable by any imprisonment whatsoever . . . said Court m ay, in its discretion, sen tence such person to imprisonment in jail or in the Maryland House of Correction or in the Maryland Peniten tiary. It is expressly provided, however, that nothing in this Section shall be construed to add to, alter or change the class of crim es, as they existed before this Act takes effect, with respect to the right of c hallenge o r with respe ct to the fees in criminal cases, or to make any crime infamous, by reason of any sentence to the Ma ryland Peniten tiary, or transfer thereto, which would not have b een an infam ous crim e befo re this A ct takes e ffect. . . . We explained that the first par agraph g ave trial judge s discretion in the sentencing of a 3 defendant convicted of a crime for which imprisonment was an option, to specify the institution in which the defendant would be confined, thus, permitting a defendant convicted of a crime for which the statute specified confinement in the penitentiary, to be sentenced to impriso nmen t elsew here. Id. at 612, 5 79 A. 2 d at 268 . The second paragraph, the Court pointed out, indicated tha t the sentenc ing flexibility given the judges should not affect the classification of c rimes base d upon th e statutorily prescribed place of confinement, id., and was largely the reason for this Court's holding in Archer v . State, supra, 145 M d. at 137 , 125 A . at 747. In that case, the Court held that the 1916 s tatute was n ot intended to change the operation of Art. 57, § 11 [the predecessor of § 5-106 (a)], concerning the periods of limitations for misdemeanor prosecutions. Id. Specifically, the Court said (145 M d. at 137-38, 125 A . at 747): There is certainly nothing in either the titles or the bodies of the Acts of 1916 and 1918 to indicate that in passing tho se Acts the Legislature meant to practically repeal section 11 of article 57 of the Code, which would be the result of the construction contended for by the State. O n the contra ry, it is perfectly obvious that its purpose w as to create a n ew agen cy to deal with the State's penal institutions, and to provide for the convenient shifting of convicts from one to the other without regard to the grade of the crime. Section 654 expressly provides that nothing in this section shall be construed to add to, alter or change the class of crimes as they existed before this act takes effect, with respe ct to the right o f challeng e or with res pect to the fees in criminal cases, or to make any crime infamous by reason of any senten ce to the Maryland Penitentiary, or transfer thereto, which would not have been an infa mous crime bef ore the act ta kes eff ect. 4 The words, an d punisha ble by any imprisonment whatsoever or by fine and imprisonment (other than imprisonment in default of fine) show that it was not intended to change the grade of any crime, but to leave that as it was already fixed by existing law or might be fixed by future legislation. Article 57, section 1 1, in excep ting from th e amnesty giv en after on e year to ordinary misd eme anors tho se pu nish ed by confine men t in th e pen itent iary, clearly meant to class these with felonies; and in Schaum loeffel v. S tate, 102 Md. 470, 62 A. 803, that intention was recognized. But the provisions of section 654 of article 27 exp ressly negative th e idea that that section was intended to place along with felonies misdemeanors not so classed by the then ex isting law or by sub sequen t legislatio n. Although there w ere amendments to § 654 over the years, and the section was renumbered § 690, the changes w ere rather minor and, in any event, the second paragraph remained uncha nged. 320 Md. at 613, 5 79 A. 2 d at 269 . A constant was the concept of sentences to and c onfine ment in specifi c state in stitutions . Id. Major changes in § 690 o ccurred in 1 967 with the passage of Ch. 695 of the Acts of 1967. Id. Section (b) of new § 690 provided: (b) Notwithstanding any of the provisio ns of this A rticle or any other la w to the contrary, on and after June 1, 1967, judges, in the sentencing of convicted persons (a) for any offense for which the provisions of this Article or any other law requires the im prisonme nt to be serv ed at any one of those in stitutions enumerated in Section 689 of this Article or (b) any offense for which prior to June 1, 1967, the sentence was made for whatever reason to one of those institutions in Section 6 89, shall in all such cases sentence such persons to the jurisdiction of the Department of Correction. All such persons shall be committed to the custody of the Com missioner o f Correctio n and deliv ered to him for imprisonment. Thereafter all such persons shall be held, confined in, assigned to or transfer red to such of the institutions and facilities under the jurisdiction of the Department as the Department from time to time may order. Any person sentenced prior to June 1, 1967 to any one of the institutions and 5 facilities under the jurisdiction of the Department may, after such date, and not withstanding such sentence, be held, confined in, assigned to or transferre d to such of these institutions and facilities as the Depa rtment ma y from time to time ord er. In addition to limiting the length of sentences permitted to be made to the Department of Correction, the legislation amended se ctions of Article 27 relating to the D epartment of Correction by deleting refe rences to the various state in stitutions and r eplacing them w ith Jurisdiction of the Department of Correction, Department of Correc tion, etc . Id at 61415, 579 A. 2d a t 269-7 0. Having repealed the second paragraph of former § 690, no similar language was include d in the n ew sec tion. Id. [P]erhaps the most significant change, id., was the enactment of new § 690 (d), employing a commonly used drafting device to amend every statutory provisio n relating to the sentencing and confinement options. Id. at 615, 579 A. 2d at 270. Pursuant to that section, Whenever in this Article or any other law reference is made to the sentencing or confinement of prisoners to any of the institutions enumerated in Section 689, such reference shall after June 1, 1967, be c onstrued to mean sentencing or confinement to the jurisdiction of the Department rather than to any particul ar institut ion or f acility of th e Dep artmen t. The Court described the effect of the legislation as follows: Ch. 695 repealed old Art. 27, § 690, and enacted an entirely new Art. 27, § 690. The new statu te largely remov ed from ju dges a role in deciding where a person sentenced to imprisonment should be confined. Moreover, in place of the concept of a sentence to a particular state institution, or a co nfineme nt in a particular state institution, the new statute substituted the concepts of sentence to and confinement under the jurisdiction of the Department of Correction or the custody of the Commissione r of Correction. 6 Id. at 614, 579 A. 2d at 269. Also: The conclusion is inescapable that Ch. 695 of the Acts of 1967 effected a substantial change with respect to the appropriate period of limitations for misdemeanor prosecutio ns. As prev iously discussed, under former Art. 57 , § 11, and present § 5-10 6(a) of the Co urts and Judicia l Proce edings Article, a misdemeanor is subject to a o ne year limitation s period un less it is punisha ble by confinem ent in the pe nitentiary by statute. A fter Ch. 69 5 of the A cts of 1967 became effective on June 1, 1967, no misdemeanors were punishable by confinement in the penitentiary by statute. Although persons could and still can be confin ed in the pe nitentiary as a ma tter of fact, the sentence and confinement by statute was to the jurisdiction of the Department of Correction after June 1, 1967. This was the thrust of Ch. 695 as a whole. More importantly, new Art. 27, § 690 (d), now § 690 (e), had the effect of amending every statute referring to the sentencing . . . of prisoners to the penitentiary and substituting for the penitentiary the words jurisdiction of the Departmen t of Correction. Id. at 617, 579 A. 2d at 271. The State argued that the limitations statute and § 690 serve different and distinct functions, the forme r dealing w ith the time fo r initiating a pros ecution an d the latter w ith sentencing and conf inemen t. We rejected that argument, noting their significant interrelationsh ip in one res pect: The operation of the exception to the one year period of limitations for misdemeanor prosecutions, contained in § 5-106(a), is entirely dependent upon the sen tencing provisio ns in crim inal statu tes. The re is no s tatute, and never has been one, classifying offenses as penitentiary misdemeanors for limitations purposes, which is independent of the statutory sentencing provisio ns asso ciated w ith partic ular off enses. Id. at 618, 579 A. 2d at 271. 7 The Cou rt held that welfa re pe rjury, like perjury, also a m isdemean or, has no sp ecific limitations period and, therefore, is subject to the one year period of limitations prescribed by § 5-10 6. Id. at 621, 579 A. 2d at 273. We explained: The statu tory provision concern ing p erjury, as presently set fo rth in Art. 27, § 439, of the 1957 edition of the Annotated Code of Maryland, literally reads that one convicted of perjury is subjec t to imprisonment in the . . . penitentiary for not more than ten years. If that codified provision had literally read that one convicted of perjury is subject to imprisonment . . . under the jurisdiction of the Division of Correction for not more than ten years, this case w ould likely not be here. It is doubtful that the State would have appealed from the circuit court's d ismissa l of the w elfare p erjury cha rges. N everthe less, as a matter of law, the statute punishing perjury does provide that one convicted of the offense is subject to im prisonme nt . . . under the ju risdiction of the Division of Correction for n ot more than ten years. The fo rmer refere nce to the "penitentiary" is not simply unamended language which has become obsolete for sentencing purposes. Rather, the word penitentiary has been amended out of the statute . Art. 27, § 69 0(e), forme rly § 690(d), states that [w]henever in this article or any other law reference is made to the sentencing or confinement of prisoners to [the penitentiary] . . ., such reference shall be construed to mean sentencing or confinement to the jurisdiction of the Division [of C orrectio n]. . . . As previously discussed, this is a drafting technique regularly used b y the Genera l Assemb ly to change statutes. Refusal to give effe ct to this draftin g techniqu e could have grave consequences in the applica tion of a multitud e of stat utory pro visions . Id. at 620-21, 579 A. 2d at 272-73. The General Assembly at its 1991 session, being dissatisfied with the Court s interpretation of its action in amending the provisions pertaining to the sentencing and confinement of persons convicted of crimes, e nacted C h. 371 A cts 1991, [for] the purpose of ... establishing that notwit hstand ing Ar ticle 27, § 690 (e) of the Code or the decision of the court in Massey v. State, 320 M d. 605, 579 A. 2d 26 5 (1990), if a statute provid es that a 8 misdemeanor is punishab le by imprisonm ent in the pe nitentiary, the State may institute a prosecution for the offense at any time. Section 2 of that Chapter, provided that there is no statu te of limit ation s for a mis dem eano r pun ishable b y imprison men t in th e pen itent iary, notwithstanding any holding or dictum to the contrary in Massey v. S tate, 320 Md. 605, 579 A.2d 265 (1990). To accomplish that result, § 1 of C hapter 371 repealed each of the statutes which Massey said had effectively been ame nded to e xcise the wor d penite ntiar y and re-enacted each of them with the word penitentiary put back in. It also provided that this A ct shall ta ke eff ect July 1, 1 991. I. David Erwin Stow e, the appellee, on Ma rch 13, 2000, wa s charged, pursuant to Maryland Code (1 957, 199 8 Repl. V ol.), Article 27, § 554,2 with one count of unnatural and 2 Maryland Code (1957, 1998 Repl. Vol.), Article 27, § 554 provides: Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be con victed of p lacing his or her sexu al organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction o r in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretio n of the court. This provision was initially re-codified at Maryland Code (2002) § 3-320 of the Criminal Law Article. Ch. 26 of the Acts of 2002. As a result of subsequent amendments, see Ch. 266, § 1 of the Acts of 2002 and Ch. 278, § 1 of the Acts of 2002, it is now codified as § 3322. 9 perverted sexual practices.3 He moved to dismiss the criminal information4 arguing tha t it is barred by the Sta tute of L imitation s. The trial court granted the motion and dismissed the criminal information, ruling that, the crime charged having occurred over forty years ago, its prosecution was precluded by limitations, which, for that offense and under the circumstances, was one year. It explained: At the time the e vents [charged] occurred , there was no statute of limitations for this penitentiary misdemeanor; In 1967, legislative action resulted in the creation of a one-year statute of limitations for penitentiary misdem eanors (see Massey v. State, 320 Md. 605 (1990)); Curative legislative action in 1991 removing the one-year statute of limitations on penitentiary misdem eanors cannot support prosecution of this case because it would violate ex post facto prohibitions. The one-year statute of limitations applicable to this charge has run. The State tim ely noted an appeal to the Court of Special Appeals and also filed, pursuant to Maryland Rule 8-301,5 a petition for writ of certiorari with this Co urt . Before 3 The charges were brought by Wellford Thomas Harrison Jr, an adult, fifty three (53) year old man, and the facts on which the charges are based are uncontroverted. The sexual abuse, constituting the perverted practices, consisted of fellatio, either performed on Harrison by the appellee or performed on the appellee by Harrison. These acts of abuse occurred on numerous occasions, beginning while Harrison was a boy scout and the appellee a scout troop lead er and continuing w hen the appellee bec ame Harrison s tutor. 4 After being charg ed in the District Court of M aryland, sitting in Montgomery County, the a ppellee pra yed a jury trial, where upon the c ase was tra nsferred to the Circuit Court for Montgomery County and the appellee was charged by information. In that court, the appellee moved to dismiss the charge, arguing it is barred by the Statute of Limitations. 5 Md. R ule 8-301 provides, in p ertinent part: Method of securing review -- Court of Appeals. (a) Generally. Appellate review by the Court of Appeals may be obtain ed only: 10 any proceedin gs in the intermediate appellate cou rt, this Court granted the petitio n, State v. Stowe, 362 Md. 624, 766 A.2d 147 (2001), to consider whether the crime of unnatural and perverted sexual practices [is] subject to a one-year statute of limitations where the crime occurred between March 1, 1958 and July 31, 1960? We shall affirm. II. In this Court, the appellant, the State, notes that, between 1958 and 1960, when the appellee s conduct, the alleged criminal acts occurred, no limitations period was applicable to the misdemeanor crime of unnatural and perverted sexual practice. Moreover, in 2000, when the appellee was charged, there likewise was no applicable statute of limitations. Thus, the State argues, to apply either the law in force when the alleged crime was committed or the current law puts the appellee in no different position than he was in some forty years ago. In refutation of the applicability of the ex post facto principle, it asserts: To try Stowe today does not subject him to criminal liability for something that was not criminal at the time of his conduct, the crime has not been aggravated, the punishment has not increased, and no less evidence is required to conv ict him n ow tha n wou ld have been re quired in 1960 . The appellee, on the other hand, relies on Massey, supra, 320 Md. 605, 579 A.2d 265. As a result of that case, he argues tha t, after 1967, and until the Legislature amended the (1) by direct appeal or application for leav e to appeal, where allowed b y law;. (2) pursuant to the Maryland Uniform Certification of Questions of L aw Act; or. (3) by writ of certiorari in all other cases. 11 statutory scheme effecting that result, all misdemeanors, wh ether penitentiary misdemeano rs or not, were s ubject to a o ne-year statute o f limitations. M oreover, he contends, the Legislature applied t hat o ne-ye ar lim itatio ns pe riod retro spec tivel y to all sentences imposed prior to June 1, 1967. Therefore, as of that date, 1967, the crime of unnatural and perverted practice was subject to a one-year period of limitations. Accordingly, as of that date, the State had one year to prosecute him for the acts he allegedly committed between 1958 and 1960. As neither the complainant nor the State came forward to charge [ responde nt] within that one year, they are now barred from initiating a prose cution 3 2 years late r, he con cludes . III. A. It is true, to be sure, that, at the time the conduct, with which the appellee has been charged, allegedly occurred, the statute then in effect permitted the court to sentence a defendant convicted of committing an unnatural or perverted sexual act against a minor to imprison [ment] in jail or in the House of Correction or in the Penitentiary. As the Court pointed out in Massey, then, it was the ru le that judges would p rescribe bo th the length of the sentence to be served and the place at which that service was to occur, 320 Md. at 610, 579 A. 2d at 267, and that it was the authorization in the statute for the judge to designate the penitentiary as a place for service of the sentence, not the sentence itself, that determined the nature of the offense; wha t the Legislature considered to b e the most serious misde meanors were made punish able by co nfinem ent in the state pen itentiary. Id. at 610-11, 579 A.2d at 12 267. It was thus a penitentiary misdemeanor, Massey, 320 Md. at 609, 579 A.2d at 267; In re Anthony R., 362 Md. 51, 73, n.11, 763 A.2d 136, 148 n.11 (2000), as to which there was n o statute of limita tions. As we have seen, in 1967, the ability of trial judges to designate the place of confinement was terminated and the length of the sentences to the Department of Correction curtailed. And this, without a disclaimer as had accompanied the legislation that had given them this flexibility. After June 1 of that year, pursua nt to the am endmen ts to the sentencing and confine men t provisio ns of § 690, the y could on ly sentence a defendant to the jurisdic tion of th e Dep artmen t of Co rrection , Massey, 320 Md. at 614, 579 A.2d at 269, and only for a term, since increased, of three (3) months or more. The Department of Correction, therefore, was charged with the sole responsibility of deciding w here a particular defendant would be confined, both before June 1, 1967, notwithstanding the designation of the sentencing ju dge, an d after. Id. In addi tion, usin g a com mon d rafting techniq ue, id. at 615-16, 579 A. 2d at 269 - 70, the Legislature, in effect amended every statutory provision relating to the sentencing to, or confinement of persons in, the penitentiary, house of correction, etc., and substituted the words jurisdiction of the Department for the words penite ntiary, house of correction, and the like. As a result, the Massey Court concluded that since, [a]fter Ch. 695 of the Acts of 1967 became effective on June 1, 1967, no misdemeano rs were punishable by confinement in the penitentiary by statute, id. at 617, 579 A. 2d at 271, there was no longer a distinction between ordinary misdemeanors and 13 peniten tiary ones . Id. at 621, 579 A. 2d at 273. Applying that reasoning to the case sub judice produces the same result. When the Legislature made the amendments detailed in Massey, as in the case of welfare perjury, the unnatural and perverted practices statute no longer authorized punishment by confinement in the penitentiary and the trial judges lost the authority to designate the place of confinement for defendants convicted of unnatural and perverted sex acts. As a result, as of June 1, 1967, the statute of limitations for the crime of unnatural and perve rted sex act was one year, which, in the absence of the initiation of a prosecution, as in this case, expired June 1, 1968. Relying on Johnson v. United States, 529 U. S. 694, 701, 120 S. Ct. 1795, 1801 146 L. Ed. 2d 727, 736 (2000) ( Absent a clear statement of that intent, we do not give retroactive effect to statu tes burden ing private interests. ), the State argues that the 1967 amendm ents do not operate retroactively to affect the statute of limitations for acts occurring prior to their effective date. It notes that § 690 (b) stated expressly that on or after June 1, 1967, judges ... shall in all such cases sentence such persons to the jurisdiction of the Department of Correction. Aware of the significance that the Massey Court placed on the enactment of § 69 0 (d), a new section, the State calls attention to the fact that, in that section, the substitution of the Department of Correction for the references to the various institutions was made to occur after June 1, 1967. The State is wrong. The appellee directs our attention to the second paragraph of § 690 (b). That provision, as we have seen addresses the situation in which the defendant was 14 sentenced prior to the effective date of the statute to any one of the institutions and facilities under the jurisdiction of the Department. As to such defendants, after such date, and notwithstan ding such sentence, [they may] be held, confined in, assigned to or transferred to such of thes e institutio ns and facilities as the D epartm ent ma y from tim e to time order. The appellee thus submits: Thus, the legislature clearly made the new law retroactively app licable to all senten ces imp osed p rior to Ju ne 1, 19 67. In other words, to the extent that any sentence o f any judge, in the future or in the past, assigns a defendant to a particular institution or penitentiary, such sentence shall now be construed as being to the Division of Correction. The law had to be retroactive for a very practical reason. The judicial system could not have judges and the Division of Correction independ ently deciding w here inma tes shall be held . The State next asserts that the Massey analysis was w rong and that, therefore, at the next legislative session, the General Assembly overruled the decision and re-affirmed that misdemeano rs punishable by imprisonm ent in the penitentiary are not subject to any statute of limitations. While the Legislature did revisit the issue of the limitations period for penitentiary misdeme anors and made am endmen ts that resulted in such amendments having no statute of limitations and, thus, permitting them to be prosecuted at any time, it is not true that Massey was overrule d. To the c ontrary, the Legislature actually accepted the Massey analysis. To achieve the result of ensuring that penitentiary misdemeanors was not subject to any limitations perio d, it repealed each of the statutes once authorizing a judge to order imprisonment in the penitentiary, in which the reference to penitentiary had been replaced with Department of Correction as a result of the 1967 amendments and reenacted them 15 with the word, penitentiary put back in. Thus, in point of fact, the effect of the 1991 amendment was cu rative, i.e., it recognized the effect o f what the legislature did in 1967, and acted to reinsta te the ori ginal n o statute of limita tions. Neverth eless, from 1 967 to 1991, penitentiary misdemeanors had the same statute of limitations as all other misdemeanors, one year. 6 We agree with the appellee, considering how inextricably the sentencing and limitations provisions are intertwined, the result would be the same even if the 1967 6 The State points out that this C ourt recently acknowledg ed that the Legislature intend ed that th ere be n o statute of limita tions in r espect to peniten tiary misde mean ors, quoting In re Anthony R., 362 M d. 51, 76, 76 3 A. 2d 1 36, 150 (2 000). Tha t statement in Anthony R. referred to the legislative intent following the 1991 amendment; it does not purport to, and does not, suggest the legislative intent pre that amendment. Indeed, the Court in Anthony R. demonstrated that the L egislature merely followed the C ourt s suggestion as to how to achieve a no limitations status after our decision (362 Md. at 75, 763 A. 2d at 14 9 - 50): Earlier in our discussion in Massey, 320 Md. at 620, 579 A.2d at 272, we stated, concerning the provision then in section 5-106(a) excepting penitentiary misdemeanors from the one-year limitation provision, that If the Legislature today were to provide that, notwithstanding Art. 27, § 690, a particular offense should be punished by confinement in the penitentiary, the exception in section 5-106 (a) wo uld be f ully opera tive with regard to that of fense. Apparently, the Legislature did just what we discussed, even using our language, by enacting Chapter 371 of the Laws of Maryland of 1991 (Hou se Bill 396). Its title cla use provid ed: FOR the purpose of . . . establishing that notwithstanding Article 27, § 690(e) of the Code or the decision of the Court in Massey v. S tate, 320 Md. 605 , 579 A.2d 265 (1990), if a statute provides that a misdemeanor is punishable by imprisonment in the penitentiary, the State may institute a prosecutio n for the of fense at an y time ; . . . and gene rally relating to penitentiary misdemeanors. 16 amendm ents were prospective only. After June 1, 1967, in any case, the sentencing authority of trial judges with respect to the length and place of confinement to the penitentiary did n ot any longer e xist. B. We turn now to whether the 1991 a mendm ent of the sta tute of limitation s applies to this case. That question implicates the issue of whether the statute effecting the amendment was in tended to be ap plied ret rospec tively or pr ospect ively. Blocher v. Harlow, 268 Md. 571, 303 A.2d 395 (1973), is instructive on the issue. There, this Court was faced with whether the statute of limitations had run when, for the first time, more than three years after an accident and more than 33 months after appointment as administrator, the administrator of an estate was named a party defendant. The dis pute involved the 1957 version of Maryland Code, Art. 93, § 112, which provided that any action for injuries to the perso n to be ma intainable ag ainst an exe cutor or adm inistrator mus t be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate, id. at 575, 303 A.2d at 397, and its 1966 amendment which permitted such an action against the estate of a testator or intestate [to] be instituted after the expiration of six months but within the statute of limitation . . . . 7 The 7 The applicable statute of limitation was then found in Md. Code (1957), Art. 57 § 1, which re quired actio ns for pers onal injuries to be com menced , sued or issue d within three year s from the time the cau se of ac tion acc rued . . . . 17 Court noted, 268 Md. at 579, 303 A.2d at 399, that if the pre-1966 section applied the action had to be filed by June 10, 1966, while if the 1966 amendment, effective June 1, 1966, applied , the dec laration filed Se ptemb er 28, 19 66, wa s timely. Quoting Janda v. Genera l Motors, 237 Md. 161, 168, 205 A.2d 228, 232 (1964), the Blocher Court stated that various rules have been formulated by the courts to aid in determining whether a statute is to be applied retrospectively or prospectively. 268 Md. at 579, 303 A.2d at 399. In Janda, 237 Md. at 168-69, 205 A.2d at 232 the Court observed: (1) Ordinarily a change affecting procedure only, and not substantive rights, made by statute (and an amendment of the Maryland Rules has essentially the same effect) applies to all actions [and matters] whether accrued, pending or future, unless a contrary intention is expressed. Richardson v. Richardson, 217 Md. 316, 320 and cases cited. (2) Ordinarily a statute affecting matters or rights of substance will not be g iven a retrosp ective oper ation as to transactions, matters and events not in litigation at the time the statute takes effect: * * * unless its words are so clear, stro ng and im perative in their retrospective expression that no other meaning can be attached to them, or unless the manifest intention of the Legislature could not otherwise be gratified. * * * (citing cases). An am endato ry Act tak es effe ct, like any other legislative enactmen t, only from the time of its passage, and has no application to prior transactions, unless an intent to the contrary is expressed in the Act o r clearly implied f rom its provisio ns. Tax Comm. v. Power Company, 182 Md. 111, 117[, 3 2 A.2d 382, 38 4 (194 3)]. The Court held that the 1966 amendment to § 112 was not applicable where an [e]xamination of Chapter 642 of the Acts of 1966 by which this amendment to § 112 was effected shows nothing in the act itself to indicate an intent that it be applied re trospectively 18 . . . . 268 Md. at 581, 303 A.2d at 400.8 Thus, Blocher teaches that unless the words of a statute are so clear, strong and impe rative in exp ressing a retro spective ef fect, the statute is prospective. To the same effect, albeit interpreting a rule, is Rawlings v. Rawlings, 362 Md. 535, 766 A.2d 9 8 (200 1). In that case, we considered whether Maryland Rule 15-207(e) applied retrospective ly or pr ospe ctive ly. 9 There, the Circuit Court, on M arch 19, 1999, fou nd Mr. 8 The Court, 268 Md. at 584-85, 303 A.2d at 401-02, expressly held: One of the cardinal rules of statutory construction is that wherever possible an interpretation s hould be given to statutory language which will not lead to absurd consequ ences. To hold that the claim accrues on the date of accident for the purpose of the three year statute of limitations embodied in § 112 and to hold that it accrues on the date of the appointment of the administrator for the purpose of determining whether the amended § 112 ap plies to this incident appears to us to be barred by this rule. W e see yet anoth er anoma lous result that might stem from a de termination that the date of grant of letters of administration is the significant date in determining the applicability of the amended statute. If in this instance the driver of the King vehicle had also been killed in the accident and letters of administration had been granted on her estate prior to Ju ne 1, 1966 , then unde r such an in terpretation w e would have a result where with both drivers killed at the same time in the same accident the plaintiffs would be required to sue one within the six mo nth provision of § 112 as it existed prior to June 1, 1966, but permitted to sue within the three year statute of limitations provision placed in § 112 by the 1966 amendment as to the other driver, letters having been granted subsequent to June 1, 1966 . 9 Maryland Rule 15-207(e), effective January 1, 1997, provides: (e) Constructive civil contempt -- Support enforcement action. (1) Applicability. This section applies to proceeding s for constru ctive civil contempt based on an alleged failure to pay spousal or child support, including an award of emergency family maintenance under Code, Family Law Article, Title 4, Subtitle 5. (2) Petitioner s burden of proof. Subject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing. (3) When a finding of contempt may not be made. The court may not make finding of contempt if the alleg ed co ntem nor p rove s by a preponderance of the 19 Rawlings in contempt for failure to pay child support, pu rsuant to the te rms of a P endente Lite Order. M r. Rawling s argued th at, because some of his child sup port payments were due prior to January 1, 1997, application of Rule 15-207 (e) to the evidence adduced at the 19 March 1999 contempt hearing regarding his total unpaid child support, most of which accrued after 1 January 1997, constituted an impermissible retrospective application of the Rule. This Court noted: To ascertain the permissible retrospective or prospective sweep of Rule 15207(e), it is nece ssary to ex amine and ef fectua te the leg islative in tention. Gen erall y, retrospective operation is not favored by the courts . . . and a law will not be construed as retroactive unless the act clearly, by express language or necessary implication, indicates that the legislature intended a retroactive applica tion. Norman J. Singer, 2 Statutes and Statutory Construction § 41.04, at 349 (5th ed. 1993). We stated in Mason v. State [309 Md 215, 522 A.2d 1344 (19 87)]: Several well settled rules of statutory interpretation are applicable in seeking to ascertain the actual intention of the legislature. These are : (1) A statute is presume d to operate prospectively from its eff ective date, ab sent clear lan guage to evidence that (A) rom the date of the suppo rt order throu gh the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amou nt actually paid a nd (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section. (4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies (A) the amount of the arrearage for which enforcement by contempt is not barred limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contem nor does n ot have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perfo rm specifie d acts to enab le the co ntemn or to co mply wi th the dir ection to make paymen ts. 20 the contrary, or unless the manifest intention of the L egislature indicates otherwise; (2) Despite the presumption of pros pect ivity, a statute effecting a change in procedure only, and not in substantive rights, ordinarily applies to all actions whether accrued, pending or future, unless a con trary intention is expressed; and (3) A statute affecting or impairing substantive rights will not operate retrospectively as to transactions, matters, and events not in litigation at the time the statute takes effect unless its language clearly so indicates. Mason, 309 M d. at 219 -20, 52 2 A.2d at 1346 . Rawlings, 362 Md. at 554-55, 766 A.2d at 109 (string citation and footnotes omitted). We concluded that the Rule only affected procedure, and not substantive rights; it was remedial in nature and, therefore, operated retro spec tivel y.10 Id. at 559, 766 A.2d at 111. State v. Humphrey, 139 Wn.2d 53, 983 P.2d 1118 (1999) is an example of the application of a no n-reme dial statu te. In that case, the Supreme Court of Washington addressed the correct application of an amendment to a statute which raised the amount of a victim penalty assessment from $100 to $500. The defendant had committed his offense prior to the effective date of the amendment, but upon his conviction after the effective date, he was assessed the $500 penalty, rather than the $100 penalty that was in effect when he was charged. Id. at 55, 983 P.2d at 1119. Telling in the court s analysis was the fact that the size of the increase in the victim penalty assessment indicated that the amendment was not remedial: [I]n deciding whether the increase is remedial or substantive, we look to the effect, not the form of the law. We find that the increase in the amount of the 10 We said in Rawlings, 362 Md. 535, 557, 766 A.2d 98, 110 (2001), [t]he definition of a remedial statute has . . . been stated as a statute that relates to practice, proced ure, or re medie s and d oes no t affec t substan tive or v ested rig hts. 21 assessment from $100 to $500 is more in the nature of a new liability than a remedial increase in a n already exis ting obligation . . . . Becau se the . . . amendm ent . . . appears to crea te a n ew liabil ity, we fin d it is not r emed ial . . . . Id. at 63, 983 P.2d at 1123. Equally important, the court also noted that [a]s a gene ral rule, courts presume that statutes operate prospectively unless contrary legislative intent is express or implied. An amendment is like any other statute and applies prospectively only. Id. at 60, 983 P.2d at 1121-22. Noting that the language of the amendment did not indicate whether it was to be applied to offenses com mitted before its enactment and prospective application of criminal statutes meant application to offenses committed on, or after, the effective date of the statute, the c ourt decl ined to co nstru e the ame ndm ent a s app lying retro spec tivel y. The 1991 am endmen t in the case sub judice is akin to a non-remedial statute. The increase in the statute of limitations period from one year to infinity, operated more in the nature of a new lia bility than a re media l increas e in an a lready ex isting [p unishm ent]. Humphrey, at 63, 98 3 P.2d at 1123 . Other courts have reached similar conclusions regarding the general rule of prospe ctivity. Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 691-92, 755 A.2d 850, 855 (2000) ( Whether to apply [statute] retroactively or prospectiv ely depends upon the intent of the legislature in enacting the statute. . . . [S]tatutes affecting substantive rights shall apply prospectively only. . . . This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and 22 unequivo cally expres ses its inte nt that th e legisla tion sha ll apply retr ospect ively. . . . We generally look to the statutory lang uage and the pertinen t legislative history to a scertain whether the legislature intended that the am endment be giv en retrospective effect ); Kentucky Insurance Gua ranty Association v. Jeffers, 13 S.W .3d 6 06, 6 11 (K y. 2000) ( laws should not be applied retroactively, [and this applies] to laws of substance only, and not those dealing strictly with the exte nt of reme dy ); Bates v. State, 750 So. 2d 6, 10 (Fla. 1999) ( In Florida, without cle ar legislative inte nt to the con trary, a law is presu med to ap ply prospectively. Retroactive application of the law is generally disfa vored . . . and any basis for retroactive application must be unequivocal and leave no doubt as to the legislative intent. ); Board of Trustees of the Municipal Fire & Police Retirement Systems of Iowa v. City of West Des Moines, 587 N.W.2d 227, 230 (Io wa 19 98) ( G enerally, a newly enacted statute is applied prospectively. While this rule is nearly always followed when the legislation relates to substantive rights, we recognize a statute or amendment may be applied retrospective ly when it relates solely to a rem edy or proced ure. ); Western S ecurity Bank v. Superior Court of Los Angeles, 933 P.2d 507, 513 (Cal.1997 ) ( A basic canon of statutory interpretation is that statutes do not operate re trospectively un less the Leg islature plainly intended them to do so. . . . Of course, when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process consid erations preven t us. ). The Legislature enumerated the purpose of Chapter 371: 23 FOR THE PURPOSE of setting forth, without amendment, the provisions of the Annotated Code of Maryland establishing certain criminal offenses as misdemeano rs punishab le by imprisonment in the penitentiary; establishing that notwit hstand ing Ar ticle 27, § 690 (e) of the Code or the decision of the Court in Massey v. S tate, 320 Md. 605, 579 A .2d 265 (1 990), if a statu te provides that a misdemeanor is punishable by imprisonment in the penitentiary, the State may institute a prosecution for the offense at any time ; . . . and ge nerally rela ting to p enitentia ry misdem eanors . Interestingly, stricken from the Chapter was language that would have purported to confirm[], and clarify[] that these offenses are not subject to a statute of limitations, notwithstanding Massey. Section 4 of the Chapter provides: And be it further enacted that this A ct shall ta ke eff ect July 1, 1 991. There is no indicatio n, not to mention a clear one, to apply this amendment retrospectively.11 By its very terms, it applies prospectively and, therefore, only to the 11 The State cites People v. Frazer, 982 P . 2d 180 (Cal. 19 99), cert. denied, 529 U.S. 1106, 120 S. Ct. 1960, 146 L. Ed. 2d 792 (2000) for the proposition that changing a statute of limitation does not violate the [ex poste facto] Clause, particularly where, as here, there was no change in 1991 from the limitations rule in effect in 1958 to 1960. That case is inapposite. There, unlike in this case, there was clear evidence that the Legislature intended the new, extended statute of limitations to apply retrospectively. The Court pointed out that the amended limitations period applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision and that [t]he 1996 amendment also made explicit the Legislature s intent to revive any cause of action barred by Sectio n 800 o r 801." 9 82 P. 2 d at 186 . More over, Frazer is no longer good law. Stogner v. California, ___ U. S. ___,123 S. Ct. 2446 ; 156 L. E d. 2d 544 (2003). In th at case, referrin g to the statute at issue in Frazer, the Supreme Court opined: The Constitution's two Ex Post F acto Clauses prohibit the Federal Government and the States from enacting laws with certain retroactive effect s. See A rt. I, § 9, cl. 3 (Feder al Gov ernme nt); Art. I , § 10, cl. 1 (States). The law at issue here created a new criminal limitations period that extends the time in which prosecution is allowed. It authorized criminal 24 unnatural and perverted sex practices law as amended in 1991, and not to that in for ce in 1958- 60 or as amen ded in 1 967. JUDGMENT A FFIRMED, WITH COSTS. prosecutio ns that the pa ssage of tim e had prev iously barred. M oreover, it was enacted after prior limitations periods for Stogner's alleged offenses had expired. Do these features of the law, taken together, produce the kind of retro activity tha t the Co nstitution forbid s? We conclu de that th ey do. Id. at ___, 123 S. Ct. at 2449, 156 L. Ed. 2d at ___. 25

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