Price v. State

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Circuit Court for Baltimore County Case Number: 02CR2111 IN THE COURT OF APPEALS OF MARYLAND No. 9 September Term, 2003 HARRY PRICE v. STATE OF MARYLAND Bell, C.J. *Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Raker, J. Filed: November 19, 2003 *Eldridge, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. In this case we decide whether daytime housebreaking, a former statutory crime that was abolished in 1994,1 nevertheless persists as a crime of violence under § 441(e) of Article 27, Maryland Code (1957, 1996 Repl. Vol., 2001 Cum. Supp .),2 for the purpose of imposing man dato ry minimum sentences for illegal possession of firearm convictions pursua nt to § 4 49(e) o f the sam e article. I. On May 17, 2001, Baltimore County police officers arrested Harry Price based upon an outstanding warrant for his arrest in a burglary investigation. Price was traveling in a car driven by his girlfriend on Liberty Roa d in Baltimore Coun ty. The police identified Price, removed both passengers from the vehicle, and proceeded to search the vehicle. In the passenger area where Price had been sitting, they discovered a small bag which contained a nine-millimeter handgun. Price was subsequently charged w ith four cou nts relating to burglary 3 and three relating to possession of the handgun. Price was indicted by the Grand Jury for Baltimore County. At a bench trial, he was 1 See Maryland Code (1957, 1987 Repl. Vol.) Art. 27, § 30 superseded by Maryland Code (2002, 2003 Cum. Supp.) §§ 6-202 to 6-205 of the Criminal Law Article. 2 Except w here otherw ise indicated, a ll future statuto ry references s hall be to provisions in Article 27 of the Maryland Cod e (1957, 1996 R epl. Vol., 2001 Cum . Supp.), which was the applicable law at the time of Price s sentencing. Article 27 has now been repealed and recodified, much of it in the Criminal Law Article of the Maryland Code (2002, 2003 Cum. Supp.). However, the current provisions concerning firearms can be found in Title 5 of the P ublic S afety Ar ticle of th e Mar yland Co de (200 3). 3 The b urglary co unts w ere sev ered an d tried in a separ ate trial. convicted of illegal possession of a regulated firearm, Maryland Code (1957, 1996 Repl. Vol., 2001 Cum. Supp.) Art. 27, § 445(d)(1)(ii), and unlawful wearing, carrying, or transporting of a handgun, § 36B. He was then sentenced , pursuant to § 449(e) of Article 27, to a mandatory minimum term of fiv e years impriso nment w ithout the po ssibility of parole on the possession conviction and a concurrent three-year sentence on the transportation charge. Price noted a timely appeal to the Court of Special A ppeals. He argued tha t his sentence pursuant to § 449(e) was imp roper und er the theory tha t § 449(e) co uld not law fully be applied to him. Section 449(e) provides for a mandatory minimum sentence of five years for a perso n prev iously con victed o f a crim e of vio lence a s defin ed in § 4 41(e) . . . . Price s only prev ious co nviction , one for statutory daytime housebreaking in 1987, is not among those listed as a crime of violence in § 441(e). Price argued that because he had never been convicted of any of the crimes of violence listed in § 441(e), his handgun violation was not within the mand atory minimum sentenc ing guidelines of § 44 9(e). The State countered that statutory daytime housebreaking was formerly listed among the crimes of violence in § 441(e) and, indeed, had been one at the time of Price s conviction in 1987. Bu t due to stylistic ch anges in the criminal law article in 1994, daytime housebreaking was reinvented an d subsumed b y the statutory crimes of burglary in the first, second, and third degrees which are included among the crimes of violence in § 441(e). Daytime housebreaking, the State contended, had been renamed, not repealed, at least with 2 respect to § 441(e), and therefore Price was properly sentenced under § 449(e) to a mand atory min imum senten ce with out pos sibility of p arole. Accepting the State s understanding of the disputed sections of A rticle 27, the Court of Special Appeals affirmed the conviction in an unreported opinion, concluding that daytime housebreaking did not differ substantively from the crimes o f burglary in the first, second, and third degree. Relying upon the legislative history provided by the State, the court agreed that the changes to § 441(e) were merely stylistic and renamed daytime houseb reaking to reflect the new statutory crimes of burglary in their various degrees. We granted Price s petition for writ of certiora ri, 374 Md. 82, 821 A.2d 370 (2003), to determine whether the former crime of statutory daytime housebreaking is a crime of violence as defined in § 441(e), thereby triggering the mandatory minimum sentences for illegal firearm possession under § 449(e) . We sh all rever se. II. The statutes at issue in this case fall within the Regulated Firearms subheading of Article 27, §§ 441 to 449 . The mandatory sentence for Ha rry Price s conviction was imposed pursuant to § 449 of this subheading, which provides, in relevant part, as follows: § 449. Penalties. *** (e) Illegal possession of firearm with certain previous convictions. A person w ho was p reviously con victed of a 3 crime of violenc e as define d in § 441 (e) of this article . . . and who is in possession of a firearm as defined in § 445(d)(1)(i) and (ii) of this article, is guilty of a felony and upon conviction shall be imprisoned for not l ess than 5 years, no part of which may be suspended and the person may not be eligible for parole. Section 449(e), by its plain structure, is divided into two requirements. The first requirement is that the defendant have a previous conviction of a crime that falls within § 441(e). The second requirement is that the defendant have a current conviction under § 445(d)(1)(i) and (ii). We dea l in this case only w ith the first requ irement, the p articular crime s that fall within § 441(e), which is dispositive of Price s sentencing.4 In order for Price s conviction of daytime housebreaking in 1987 to trigger the mandatory sentencing of § 449(e), it must be defined as a crime of violence under § 441(e). Section 441 provides, in relevant part, as follows: § 441. Definitions. (a) In general. In this subheading the following words have the meanings indicated. *** (e) Crime of violence. Crime of violence means: (1) Abduction; 4 Petitioner does not raise, and we do not decide, any question with respect to the second requireme nt of § 449(e). The refore, we do no t consider whether § 4 49(e) s mandatory sentencing im perative requires a conviction u nder both § 445 (d)(1)(i) and (ii), as the pla in lan guage in dica tes. A lthough Price wa s con victe d pursua nt to only § 445(d)(1)(ii), we assume for purposes of this case alone that this was sufficient to satisfy the second requirement of § 449(e), and that the only issue before us is whether the first require ment, th at his prio r crime f all withi n § 441 (e), wa s satisfie d. 4 (2) Arson in the first degree; (3) Assault in the first or second degree; (4) Burglary in the first, second, or third degree; (5) Carjacking and armed carjacking; (6) Escape in the first degree; (7) Kidnapping; (8) Voluntary manslaug hter; (9) Maiming; (10) Mayhem as previously proscribed under form er § 384 of this article; (11) Murder in the first or second degree; (12) Rape in the first or second degree; (13) Robbery under § 486 or § 487 of this article; (14) Sexual offense in the first, second, or third degree; (15) An attempt to commit any of the aforesaid offenses; or (16) Assault with intent to commit any of the aforesaid offenses or any offense punisha ble by imprisonment for m ore than 1 year. The record indicates that Price has been convicted only of statutory daytime housebreaking, which is not mentioned exp licitl y in § 441(e ). The critical inq uiry in this case, then , is whether daytim e houseb reak ing is include d implici tly in § 441(e). Specifically, this w ill require scrutiny of § 441(e)(4), relating to burglary in the first, second, or third degree, because daytime housebreaking was repealed and replaced in 1994 with the new statutory definitions of burglary in the first, second, an d third degr ee. The pa rties to this case v ie within the confusion that results from the imposition of a new statutory scheme for the crime of burglary. Petitioner urg es this Court to declare application of § 449(e) to him as unlawful for the simple reason that the crime he committed is not included among the crimes that § 441(e) 5 includes within its purvie w. Petitioner further argues that the legislative history behind the new statutory regime of burglary in 1994 indicates a specific legislative intent to remove daytime housebreaking from the crimes o f violence in § 441(e). Finally, petitioner contends that statutory daytime housebreaking cannot, contrary to the Court of Special Appeals opinion, be included in first, second, and third degree burglary because it lacks a key element that is required by the current statutory burglaries, making those crimes more serious than daytime housebreaking. The State responds that statutory daytime ho usebreak ing is retained implicitly in the current version of § 44 1(e). Because daytime housebreaking used to be included in a former version of § 441(e) and was considered a crime of violence in 1987 when Price was convicted of it, it was retain ed whe n the statute w as revised in 1994 to re flect the new categories of burglar y in the first, second, and third degree. As evidence of this legislative intent, the State sub mits the legislative history of the amending statute in 1994 which indicates that the changes to § 441(e) were merely stylistic and did not change substantive ly the crimes of violence, meaning that daytime housebreaking was retained within the statute. In short, the State contends that even if the statute does not contain the actual term daytime housebreaking, that crime was subsumed and included in the stylistic chang es in 19 94 that u pdated § 441( e) to ref lect the n ew no menc lature of burgla ry. III. 6 The chief goal of statutory interpretation is to discover the actual intent of the legislature in enacting the statute, and the legion of cases that support this proposition need not be repeate d here. In fa ct, all statutory interpretatio n begins, an d usually ends , with the statutory text itself , Marriott Employees v. MVA, 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997), for the legislative intent of a statute primarily reveals itself through the statute s very words, Derry v. S tate, 358 Md. 325, 335, 748 A.2d 4 78, 483 (2000 ). A court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute ; nor may it con strue the statute with forced or subtle interpretations that limit or extend its application. County Council v. Dutcher, 365 Md. 399, 416-417, 780 A.2d 1137, 11 47 (2001 ). In short, if the w ords of a sta tute clearly and u nambig uously delineate the legislative intent, ours is an ephemeral enterprise. We need investigate no further but sim ply apply the statute a s it reads . Derry, 358 Md. at 335, 748 A.2d at 483; Kaczorowski v. City of Baltimore, 309 M d. 505, 5 15, 525 A.2d 6 28, 633 (1987 ). In some cases, the statutory text reveals ambiguity, and then the job of this C ourt is to resolve that ambiguity in light of the legislative in tent, using all the resources and tools of statutory constru ction at o ur dispo sal. See Lewis v. Sta te, 348 Md. 648, 653-654, 705 A.2d 1128, 1130-31 (1998); Haupt v . State, 340 Md. 462 , 471, 667 A.2d 1 79, 183 (1995); Marriott , 346 M d. at 445 , 697 A.2d at 459. However, before judges may look to other sources for interpretation, first there mu st exist an am biguity within the statute, i.e., two or more reasonable alternative interpretations of the statute. See Gre co v. State, 347 Md. 423, 7 429, 701 A.2 d 419, 42 1 (1997). W here the statu tory language is free from such amb iguity, courts will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete w ords fro m the sta tute, see Gillesp ie v. State, 370 Md. 219, 222, 804 A.2d 426, 427 (2002). Only when faced with ambiguity will courts consider both the literal or usual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment. As our predecessors noted, We cannot assume authority to read into the Act what the Legislature apparently deliberately left out. Judicial construction should only be resorted to when an ambiguity exists. Howard Contr. Co. v. Yeager 184 Md. 503, 511, 41 A.2d 494, 498 (1945). Therefore, the strongly preferred norm o f statutory interpretation is to effectu ate the plain language of the statutory text. Accordingly, we look to the plain language of § 441(e) to determine whether daytime housebreaking is included as a crime o f violence therein, and conclude that it is not. In this case, the plain language of § 441(e) is clear and determinative; and there being no ambiguity at all in the statute, we hav e no caus e for resortin g to divining leg islative intent. By § 441(e) s plain terms, daytime housebreaking does not appear in the list of crimes of violence. We are not at liberty to create an ambiguity where none otherwise exists, Tidewater v. Mayor of Havre De Grace, 337 Md. 338, 345, 653 A.2d 468, 472 (1995), and therefo re cann ot read § 441(e) contrar y to its expl icit langu age. We do not read the statute divorced from its textual context, for [a]dherence to the meaning of words does not require or permit isolation of words from their context, Maguire 8 v. State, 192 Md. 615, 623, 65 A.2d 299, 302 (1949), and we avoid constructions that are illogical, unreasonable, or incons istent w ith com mon se nse, Marriott, 346 Md. at 445, 697 A.2d at 459. But there is nothing in the context of § 441(e) or of the Regulated Firearms subheading that suggests a different, mo re compelling reading. To the contrary, examination of § 441(e) s structure only confirms a legislative intent to exclude daytime housebreaking from the list delineating the crimes of violen ce. The crimes listed in § 44 1(e) are very specific and carefully defined; this is not a statute that purports to sweep in many crimes through the use of general terms. For example, § 441(e) does not follow the structure of § 445(d)(1) a section that is part of the very same subject matter and subheading of § 441(e) which prohibits the possession of firearms to persons convicted of certain crimes. The list of include d crimes w ithin § 445(d )(1) is stated in v ery general term s, such as in § 445(d)(1)(iv) s inclusion of [a]ny violation classified as a common law offense where the person received a term of imprisonment of more than 2 years. In direct contrast, § 441(e) does not determine crimes by general terms that might sweep in a variety of crimes, but instead enum erates th e precis e legal n ames f or each crime. In stead o f com mon la w crim e, § 441(e) specifically enumerates arson in the first degree, kidnapping, and burglary in the first, second, and third degrees. Given this level of specificity, we will read the statute even more nar row ly. Put another way, our refusal to read daytime housebreaking into the specifically enumerated crimes of § 441(e) is only an example of the ancient and sound rule of 9 construction known as inclusio unius est exclusio alte rius. See G illespie, 370 Md. at 222, 804 A.2d at 42 8-29; Dodds v. Shamer, 339 Md. 540, 554, 663 A.2d 1318, 1325 (1995). By including precise, statutory crimes in § 441(e), the General Assembly signals a clear intent to exclude any crimes missing from the list. Such an intent is made even more compelling in light of the General A ssembly s treatment of the crime mayhem, which is included in § 441(e) and which, like daytime hou sebreaking , was abo lished by statute a nd replace d with the new statutory crimes of assault in the first and second de grees. See Maryland Code (1957, 1996 Repl. Vol.) Art. 27, § 384 (superseded). Because the General Assembly chose to include among § 441(e) s crimes of violence [m]ayhem as previously proscribed under former § 384 of th is article, it is obvious that, given the remarkably analogous position of daytime housebreaking, the General Assembly was fully capable of drafting the statute in a way to include repealed crimes if it so intended. With respect to daytime housebreaking, as opposed to mayhem , there is no ind ication of su ch an inten t. Moreover, aside from the absence of the words daytime housebreaking from § 441(e), the substance of the crim e is also striking ly absent. Contrary to the State s contention and in accord with petitioner s, daytime housebreaking could not possibly be encompassed by the categories of burglary in the first, second, and third degree because a conviction for statutory burglary requires a key element that was not required for a conviction of daytime housebreaking: Whereas burglaries in the first, second, and third degree require that the defendant both break and enter the dwellin g or stor ehous e of an other, daytime housebreaking 10 required proof only of breakin g a dw elling ho use. 5 An entry into the structure has always been required for bu rglary, but not of d aytime ho usebre aking. See, e.g., Ha wkins v. Sta te, 291 Md. 688, 692, 436 A.2d 900, 902 (1981) (finding that the crime of breaking and entering a dwelling house co uld not be a lesser included offense of daytime housebreaking because the former required both a breaking and en tering whereas the latter only required a b reaking); cf. Hebron v. State, 331 Md. 219, 627 A.2d 1029 (1993) (holding that conviction for a crime that required breaking and entering also required the State to prove that defendant h ad actually entered the premises); Brown v. State, 311 Md. 426, 535 A.2d 485 (1988) (noting that the distinction between daytime housebreaking, which required breaking, and another type of burglary that did not require breaking was significant in the application of m andatory 5 Price was convicted in 1987 of daytime housebreaking, a crime defined, at that time, by § 30(b) of Article 27: § 30. Breaking dwelling with intent to steal or commit felony. *** (b) Any person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony, and upon conviction thereof, shall be sentenced to the peniten tiary for no t more th an ten yea rs. Maryland Code (1957, 1987 Repl. Vol.) Art. 27, § 30 (emphasis added). Each of the crimes of burglary in the first, second, and third degrees, states that a person may not break and enter a specified premise. Maryland Code (1957, 1996 Repl. Vol., 2001 Cum. Supp .) Art. 27, §§ 29(a), 30(a), 31(a) (em phasis added). 11 minimum sen tencing under § 64 3B of Article 27). In sum, not one crime enu merated in § 441(e) c an plausibly be read to include daytime housebreaking. In particular, § 441(e) s inclusion of b urglary in the first, second, or third degree cannot be read to have encompassed daytime housebreaking where (1) the plain language of the statute indicates no such inclusion; and (2) the substantive elements of the crime a re diffe rent. IV. Notwithstanding the clear lang uage of § 441(e), the S tate would have us read daytime housebreaking into the statute because of legislative history that, the State contends , signals a contrary result. In s upport of its contention, the State submits evidence from the Committee Note to the 1994 amendm ent that remo ved daytime housebre aking from Article 27 and replaced it with burglaries in their various degrees. The Co mmittee N ote states that the change to § 441 is stylistic and conforms this section to the new burglary offenses established within this bill. This chan ge essentially retains the current law in this area, 1994 Md. Laws, ch. 712, § 2, p. 3155. From th is, the State perceives that the legislature intended to retain daytime housebreaking as a crime of violence in § 441(e). We are not so persuaded. As we have state d, where the p lain l anguage of t he statute is fre e fro m am bigu ity, legislative history of the sort the State has submitted is an improper vehicle for analyzing the 12 legislature s intent, and we have been loathe to find an ambiguity that would require recourse to interpre tive sou rces oth er than th e statute s text. See, e.g., Derry, 358 M d. at 336, 748 A.2d at 484 (refusing to find an ambiguity in a statute, even where there existed a theoretically arguable ambiguity, due to belief that the plain language manifested legislative intent). Indeed, the Committee Note to the 1994 amendments also cautions that [t]hese notes have not been adopted by the General Assembly and may not be considered to be a part of the law. 1994 Md. Laws, ch. 712, § 2, p. 3145 (em phasis added). Neverth eless, in light of the State s argument and the holding of the Court of Special Appeals, we consider and reject the State s contention that the legislative history indicate s a result contrar y to the on e we h ave de termine d. First, the overwhelm ing weight of ou r analysis has supported petitioner s understanding of the statute. A change to a statute cannot, regardless of what the Committee Note declares, be considered stylistic if it removes one crime from an enumerated list and replace s it with a nother that requ ires diff erent ele ments o f proo f. Second, we are not persuaded that the legislative history to which the State refers presents a conflict with our understanding of § 441(e). While it is true that the Committee Note, in isolation, indicates an intent to retain the current law, i.e., daytime housebreaking in § 441(e), a more comprehensive analysis of legislative history will lead to a much more ambivale nt result. In 1994, when daytime housebreaking was replaced with the new statutory burglaries 13 in § 441(e), the re did not ex ist a manda tory minimum statute for possession of a handgun. Section 449(e), the mandatory minimum statute for handgun p ossession, was passed six years later in 2 000. See 2000 Md. Laws, ch. 2, § 1, p. 19. Thus, w hen § 44 1(e) was a mended in 1994, the L egislature co uld not have contemplated that the crimes therein wou ld, six years later, be the tri ggerin g devic e for m andato ry minim um sen tences. I n fact, the legislative history surround ing the repe al of statutory da ytime houseb reaking in 1 994 is reple te with indications that the new statutory scheme for burglary was designed specifically to remove daytime housebreaking from the crimes eligible for mandatory minimum penalties under the mandatory penalty statutes in e xistence at that time. For example, the Senate Judicial Proceedings Committee Floor Report on the 1994 amendments to burglary states as follows: [T]he bill deletes the c rimes of burglary and daytime housebreaking from the curre nt list of crime s that constitute crimes of violence for the purpose of imp osing mandatory minimum penalties on subsequent offenders. The Committee believes the mandatory minimum sentences that currently apply to subsequent crimes of violence should be applicable only to crimes against persons or crimes that directly involv e a threa t to hum an life. Floor Report, Senate Judicial Proceedings Committee, Senate Bill No. 322, p. 1 (1994). At the time of this report, the o nly statute that imp osed ma ndatory minim um pena lties with respect to daytime ho usebreak ing was § 643B o f Article 27 ; § 449(e) s mandato ry minimum provisions would not be enacted for another six years. The clear import of th e Floor Report is that daytime housebreaking was considered b y the drafters of the statute and deemed 14 improper for the im posi tion of m andatory minimum sentences. Thus, our holding today comp orts we ll with th e legisla tive histo ry consid ered fro m this p erspec tive. V. Having determined that Price s previous conviction of daytime housebreaking does not fall with in the conto urs of § 44 1(e), we n ow deter mine with out difficu lty that he could not be sentenced p ursuant to the mand atory minimum provision in § 449(e). The State argue s, regardless o f § 441(e ) s current en umerated crimes, that because daytime housebreaking used to be a crime of violence in 1987 when Price was convicted of it, Price was previously convicted of a c rime of violence as req uired by § 449(e). The State then baldly asserts that th erefore th e amend ment to Section 441 in 1994 had no bearing on whether it was app ropriate to sen tence Price pursuant to Section 449 in 2001. State s brief at 5. The State, however, om its in its brief the completion of that part of the statute it quotes, which requires that Price be previously convicted of a crime of violence as defined in 441(e) of this article (empha sis added). In other wo rds, this argum ent, based u pon an inc omplete extraction of § 449(e), assumes the answer to the question b efore us. W e dismiss it, and hold that because Price was not previously convicted of a crime of violenc e defined in § 441(e), he could not lawfully be sentenced pursuant to § 449(e) of Article 27. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND 15 CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE SENTENCE OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AND TO REMAND THE CASE TO THE CIRCU IT COU R T FOR NEW S E N T E N C I N G P R O C E E D I N GS CONS ISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE COUNTY. 16

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