Collins v. State

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In the Circu it Court for Q ueen A nne s Co unty Case No. 17 -K-03-00541 8 IF IN THE COURT OF APPEALS OF MARYLAND No. 24 September Term, 2004 CLIFTON COLLINS v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: November 16, 2004 This is another case addressing sentence enhancement based on prior offenses. In this appeal, we must interpret Md. Code (1957, 1996 Repl. Vol., 2001 Cum. Supp.), A rt. 27, § 293, second or subsequent offenses, and Art. 27, § 291A, possession, ownership, transportation, etc., of a firearm,1 and decide whether a sentence enhancement for repeat drug offenders may be imposed when a defendant is sentenced for a firearms offense that, by definition, can only be committed by prior drug offenders.2 We shall hold that the Legislature could not h ave intended to treat a first offense under § 291A as a second or subsequent offense under the circumstances presented in this case and, accordingly, we shall vacate the sentence and remand for resentencing. I. Appellant Clifton Collins was c onvicted in the Circuit Co urt for Queen A nne s County of possession of a firearm pursuant to § 291A, and of illegally carrying a handgun on his pers on pur suant to § 36B (b). On Au gust 5, 200 3, on the dru g-felon in possession of 1 Unless indicated otherwise, all future statutory references will be to Md. Code (1957, 1996 Repl. Vol., 2001 Cum. Supp.), Art. 27. Article 27, § 293 was repealed and recodified without substantive change as Md. Code (2002), § 5-905 of the Criminal Law Article. Article 2 7, § 291A was repealed and recodified without substantive change as Md. Code (2002), § 5-622 of the Criminal Law A rticle. Throug hout this op inion, we s hall refer to the statutes as they were designated at the time of Appellant s conviction. 2 Article 2 7, § 291A applies specifically to persons previously convicted of Controlled Dangerous Substances offenses, as distinguished from the general felon in possession of a firearm statute, found at Md. Code (2003, 2004 Cum. Supp.), § 5-133 of the Pu blic Safety Article. a firearm co unt, the court imposed a sentence of ten years. The court imposed a concurrent three year sentence for carrying a handgun. The court enhanced Collins s § 291A sentence pursuant to § 293, which permits the imposition of a sentence twice that otherwise authorized. The ma ximum s entence se t out in § 291 A is a term of incarceration up to five years; nonetheless, the court determined that Collins s prior conviction rendered his current crime a second or subseq uent offe nse und er the enha ncemen t provision of § 293, and therefore subjec t to twice the state d pena lty. Collins noted a timely appeal to the Court of Special Appeals. Before that court considered the case, we granted certiorari on our own initiative . Collins v. State, 381 Md. 67 3, 851 A.2d 59 3 (2004). II. Before this Court, Collins argues that when a defendant has been convicted for the first time of the offense of possession of a firearm under Art. 27, § 291A, it is err or to enhance a senten ce und er Art. 2 7, § 293 by classifying the possession of a firearm offense as a second or subsequent offense. He reasons that if § 293 were app licable to § 291A under those circumstances, then persons convicted under § 291A would always face enhanced penalties. This reading, he suggests, would fail to effectuate the intent expressed by the Legislature when it set the m axim um s ente nce u nder § 29 1A a t five years . Alte rnatively, he suggests that if the Legislature s intent is ambiguous as to whether § 293 applies to § 291A, then the rule of lenity bars its application. -2- The State does not dispute Collins s premise that, if § 293 applies to § 291A, then all persons convicted under the la tter statute are s ubje ct to a n enhanced p enal ty, and poten tially a ten year sentence. The State argues that this is precisely the intent of the Legislature. The State relies on the p lain language of both statu tes and con cludes that th eir language makes clear that § 293 applies to § 291A. It also contends that, because § 291A was enacted after § 293,3 the General Assembly is presumed to have known and intended th at § 293 w ould apply to § 291A. Because the legislative intent is unambiguous, the State conte nds, the rule of lenity is inapplicable. III. We review a trial court s imposition of sentence on three recognized grounds: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill will, prejudice or other imp ermissible co nsiderations ; and (3) w hether the se ntence is w ithin statutory limits. Khalifa v. S tate, 382 Md. 4 00, 416-17, 855 A.2d 1175, 1184 (2004) (quoting Triggs v. Sta te, 382 Md. 27, 40 , 852 A.2d 114 , 122 (2004)). In the instant c ase, only the third groun d is at issue. B ecause the interpretation o f a statute is a pure question of law, we review the Circuit Court s decision de novo. 3 Section 293 was enacted in 1970. See 1970 Md. Laws, ch. 403. Section 291A was enacte d in 199 1. See 1991 Md. Laws, ch. 613. -3- The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legisla ture. See Me lton v. State, 379 Md. 471, 476, 842 A.2 d 743, 74 6 (2004). W e begin with the plain language of the statutes. As we have frequently stated, if the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we giv e effec t to the sta tute as it is written . Id. at 477, 842 A.2d at 746. We have also noted, however, that [s]tatutes that are clear when viewed separately may well be ambiguous where their application in a given situation , or wh en they o perate to gether, is not clea r. Gardner v. State, 344 M d. 642, 6 48, 689 A.2d 6 10, 613 (1997 ). See also S ullins v. Allstate Ins. Co., 340 Md. 503, 508, 667 A.2d 617, 619 (1995) (noting similar result when construing contract terms); Tucker v. Firem an s Fund Ins. Co., 308 Md. 69, 74, 517 A.2d 730, 732 (1986) (same). IV. As we hav e indicated, a ppellant was convicted of violating Article 27, § 291A, possession, ownership, transportation of a firearm. Article 27, § 291A provides, in pertinent part, as follows: (b) Prohib ited Ac ts. A person may not possess, own , carr y, or transport a firearm if the person has been convicted of: (1) A felo ny under this subheading [Health Controlled Dan gerous Substance s]; (2) An offense under the laws of the United States, another state, or the District of Colum bia that would be a felony under th is subhead ing if committed in this State; or -4- (3) Conspiracy or attempt to commit any of the offenses listed in paragraphs (1) and (2) o f this subsec tion. The statutory penalty fo r a violat ion of A rt. 27, § 291A is a fine of not more than $10,000 or imprisonment for not more than f ive years or both. Art. 27, § 291A (d). Appellant had been convicted previously of a drug felony under the requisite subheading, and as a result he was not allow ed by law to be in p ossessio n of a f irearm. Appellant was sentenced to ten years on the possession of a firearm count. He was sentenced as a sec ond or subseq uent of fende r under Art. 27 , § 293. That section provides as follows: (a) More severe sentence. Any person convicted of any offense under this subheading is, if the offense is a second or subsequent offense, p unishable by a term of imprisonment twice that otherwise authorized, by twice the fine otherwise authorized, or by both. (b) Second or subsequent offense defined. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the co nviction of the offense, the offender has at anytime been convicted of any offense or offenses under this subheading or under any prior law of this State or any law of the United States or of any other state relating to the other controlled dangero us substan ces as defin ed in this subhe ading. Collins has correc tly identified the logical conundrum into which we are placed when interpreting §§ 293 a nd 291A . By its terms, § 29 3 applies to any offense under this subheading . . . , if the of fense is a secon d or sub sequen t offen se. Section 29 1A falls w ithin the Controlled Dangerous Substa nces su bhead ing. Th us, wh en con strued in isolation , § 293 would appear to apply to § 291A. -5- By its terms, § 291A carries a maximum penalty of imprisonment for not more than 5 years. Yet if § 293 applies to § 291A, every person convicted under § 291A would be subject to an enha nced sen tence and the maxim um term would be ten years. Any person convicted of a felony under this subheading has been convicted of an offense or offenses under this sub headin g. Any person convicted under the laws of the United States, another state, or the District of Columbia that would be a felony under this subheading if committed in this S tate has b een c onvicted under a law of th e Un ited S tates or of any other state relating to the other controlled dangerous substances as defined in this subheading. Any person convicted of [c]onspiracy or attempt to commit any of the offenses listed in paragraphs (1) and (2) of this subsection has been convicted of an of fense . . . und er this subheading or . . . any law of th e United S tates or of an y other state relating to the other controlled dangerous substances as defined in this subheading because attempts and conspiracies to comm it Controlled Dange rous Sub stances of fenses are proscribed explicitly by Art. 27, § 290.4 In othe r word s, by defin ition, every offense under § 291A would be a second or subsequent offense within the meaning of § 293. 4 Article 27, § 290 states: Except as provided elsewhere under this subheading, any person who attem pts, endeav ors or cons pires to commit any offense defined in this subheading is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed by the offense, the commission of which was the object of the attempt, endeavor, or cons piracy. -6- While language such as im prisonme nt for not m ore than 5 yea rs in a criminal statu te impliedly is subject to exceptions created by free-standing enhancement provisions, § 293 cannot be considered an exception to § 291A under the State s reading. It would be universally applicable, and imprisonment for not more than 5 years would never be the maximu m penalty for a violation of § 291A. When construing a statute, we recognize that it should be read so that no word, clause, sentence or phrase is rendered superfluous or nugato ry. James v. Butler, 378 M d. 683, 696 , 838 A.2d 1180, 11 87 (2003 ); Benedict v. State, 377 Md. 1, 7, 831 A.2d 1060, 10 63 (2002 ); Condo n v. State, 332 Md. 481, 491, 632 A.2d 753, 758 (1993). Interpreting the statutes as the State urges would render the words five years nugatory, because those words would never describe the maximum penalty for a violation of § 291A. Our textual analysis has left us with two possible interpretations of the statutes. When two or more reasonable alternative interpretations of a statute exist, that statute is by definition ambig uous. Deville v. Sta te, 383 Md. 217 , 223, 858 A.2d 4 84, 487 (2004). W here the language of a statute is a mbiguo us, we ex amine its statu tory purpose, c onsidering not only the ordinary meaning of words, but also how that language relates to the o verall mean ing, settin g, and p urpose of the a ct. Deville at 223, 858 A.2d at 48 7; Melgar v. State, 355 Md. 339, 347, 734 A.2d 712, 716 (1999)). Therefore, when interpreting unclear language within a statute, we consider both the particular and broad objectives of the -7- legislation, in addition to the overall purpose of the statutory scheme. See Gargliano v. State, 334 Md. 42 8, 436, 639 A.2d 675, 678-79 (19 94). The purpose of any repeat-offender penalty enhancement is to create a differential in the potential punishments imposed upon first-time and repeat offenders. This differential can serve a number of ends. Individuals with prior convictions have demonstrated a higher propensity toward criminality than the population at large. As such, deterring them from future offences may necessitate the threat of more severe penalties than would be required for the average citizen. Persons who in fact commit a second or subsequent offense may pose greater dangers to the community than first-time offenders, and hence may justify longer periods of incapacitation to protect the public s afety. Finally, repeat offenders may be more morally blameworthy than first-time offenders, and hence deserve a stronger measure of retribution. However enhanced penalty statutes may be justified, it is axiomatic that they serve their ends only when they are enhancements, i.e., only when they actually differentiate among classes of offenders. Applying § 293 to § 291A does not effectuate these ends, because by its terms § 293 would group all persons convicted under § 291A into a single class. Doubling Collins s sentence does not enhanc e it relative to any other offender s sentence, and makes n o sense w hen viewed in this context. In our view , the only reason able construction of the tw o statutes is that the Legislature did not intend defendants such as Collins to be considered second or subsequent offenders subject to penalty enh anceme nt. -8- The State argues that, because § 291A was enacted after § 293, the Legislature is presume d to have k nown a nd intende d that § 293 would a pply to § 291 A. We g enerally presume that the Legislature had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. Division o f Labor v. Triangle, 366 Md. 407, 422, 784 A.2d 534, 542 (2001) (quoting In re Special Investigation No. 236, 295 Md. 573, 576, 458 A.2d 75, 76 (1983)). The State is correct that enhanced penalties for second or subsequent drug offenders have a long history in Maryland. Section 293 da tes to 19 70, see 1970 Md. Law s, ch. 403, and the provisio n it repla ced da tes to 19 35. See 1935 Md. Law s, ch. 59, § 285V, which states: Any person vio lating any prov ision of this subtitle [Health Narcotic Drugs] sh all, upon conviction, be punished for the first offense by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment for not exceeding three years, or both; and for any subsequent offense by a fine not exceeding three thousand dollars ($3,000.00) or by imprisonment for not excee ding fiv e years, or b oth. Section § 285V was codified as Md. Code (1939), Art. 27, § 352, and recodified , with amendments, 5 over the years as Md. Code (1951), Art. 27, § 369 and Md. Code (1951, 1967 Repl. Vol.), Art. 27, § 300. The State s argument that when the Legislature enacted § 291A in 1991,6 it must have recognized and intended that the penalty would be subject to enhancement under § 293 5 See 1951 Md. Laws, ch. 24, § 466; 1963 Md. Laws, ch. 772; 1964 Md. Laws, ch. 55. 6 See 1991 Md. Laws, ch. 613. -9- is superficially appealing. But complicating matters is the incongruous codification of an essentially pure firearms regulation under a subheading of the Code otherwise given to the classification and regulation of controlled substances. Unlike § 281A(b), proscribing the possession of a firearm [d]uring and in re lation to any drug trafficking crime . . . under sufficient circumstan ces to cons titute a nexus to the drug trafficking crime, § 291A requires no nexus betwee n the act of possession a nd any drug activity whatsoever. As such, the prohibition contained in § 291A may more logically fit within § 445 of the Regulated Firearms heading, which proscribes possession of a firearm by certain enumerated classes of persons.7 The Le gislature is, of c ourse, free to arrange the Code in a ny manner it se es fit, but doing so inconsistently can give rise to interpretive difficulties such as the one sub judice. As it happens, a more limite d prohibition against pos session of f irearms by certa in drug felons was once contained within § 445. From 19 89 to 199 1, § 445(c) provided , in pertinent part, as follows: A person may not possess a pistol or revolver if the person: (1) Has been convicted of: (i) A crime of violence; 7 Among those so pro hibited are p ersons con victed of c rimes of viole nce, of any felo ny, of misdemeanors punishable by more than two years im prisonme nt, and of common law offenses for which the person received m ore than two years imprison ment. § 445(d)(1). Persons under thirty who were a djudged delinque nt as juveniles for such of fenses are similarly prohibited f rom poss essing firearms. § 445(d)(3). Also ban ned from firearm possession are fugitives from justice, habitual drunkards, persons addicted to or habitua lly using controlled dangerous substances, persons suffering from certain mental disorders, and persons subjec t to certain civil pro tective o rders. § 445( d)(2). Section 445(d) has since been recodified without substantive change at Md. Code (20 03), § 5-13 3 of the P ublic Safe ty Article. -10- (ii) Any provisio ns of this su btitle [Regulated Firearms]; or (iii) Any of the provisions of § 286 [8], § 286A [9], or § 286C[10] of this article or any con spiracy to commit any crimes established by those se ctions. Md. Code (1957, 1987 Repl. Vol., 1989 Cum. Supp.), Art. 27, § 445(c). Violation of § 445(c)(iii) was a misdem eanor, punishable by a fine of $5000 or three years im prisonme nt. Md. Code (1957, 1987 Repl. Vol., 1989 Cum. Supp.), Art. 27, § 448. This prohibition was introduced into Section 445 by 1989 Md. Laws, ch. 428. In the Floor Report to H ouse Bill 654, subsequently enacted as 1989 Md. Laws, ch. 428, the Senate Judicial Proceedings Comm ittee stated as fo llows: Testimony indicated that the inclusion of convicted drug sellers and dealers in the list of persons specifically prohibited from purchasing and posse ssing hand guns is necessary and overdue, especially since drug wars inv olving guns have grown mo re commonplace. In 1991, the General Assembly enacted 1991 Md. Laws, ch. 613. This statute created § 291A and repealed § 445( c)(1)(iii). T his actio n had s everal e ffects. All drug-felons, not only those convicted und er § 286, § 286A, or § 286C, were subject to the prohibition. The 8 Unlaw ful manu facture, distribu tion, etc.; counterfeiting, etc.; manufacture, posses sion, etc . of certa in equip ment f or illega l use; ke eping c omm on nuis ance. 9 Bring ing into State in e xcess o f certain amou nts. 10 Using minors for manufacture, delivery or distribution of controlled dangerous substan ces. -11- statute now applied to all firearms, not just pistols and revolvers.11 The offense was now classified as a felony, rather than a misdemeanor. The codification of the prohibition was moved from the Regulated Firearms subtitle to the Health Controlled Dangerous Substances subheading of Article 27. Finally, the penal ty was increased from the original $5000 or three years imprisonme nt. The level to which the penalty was increased is the subj ect o f our present inqu iry. If Collins s rea ding is corre ct, the Legisla ture intended to increase the maximum penalty to $10,000 or five years imprisonment. In moving the prohibition to the Controlled Dangerous Substances subhead ing, then, the Legislature either failed to notice that § 293 apparently applied to e very violator of § 291A , or else affirm atively believed that § 293 did not apply in that fashion. If the State s reading is correct, the Legislature intended to increase the maximum penalty to $20,000 or ten years imp risonmen t for all offen ders. It wen t about doin g so in the rather unusual manner of wording a statute so that every offender would be subject to a separate penalty-doubling statute, and the n specifying a penalty one-h alf the amou nt actually intended. A review of the Senate Judicial Proceedings Committee s bill file on House Bill 978, subseque ntly enacted as 1991 Md. Laws, ch. 613, reveals no indication of a legislative intent to set the pena lty at ten years impriso nment. Rather, the Summ ary of Bill which appea rs 11 Section 445 proscribed only pistols and revolvers until it was amend ed b y the Maryland Gun Violence Act of 1996, 1996 Md. Laws, ch. 561, § 2. -12- in both the Bill Analysis and the Floor Report indicates merely that [t]he bill imposes a penalty of a fine of up to $10,000 or imprisonment for up to 5 years or both. It strains credibility to imagine that the Legislature would have chosen to enact a ten year penalty using the words five years, without some official discussion of this anomalous drafting technique. To paraphrase Sir Arthur Conan Doyle, this is a dog that would have barked,12 were the State s theory correct. Its silence suggests otherwise. Acc ordingly, we hold that the maximum penalty which can be imposed on Collins for his viola tion of § 291A is five yea rs impris onme nt. SENTENCE VACATED. CASE REMANDED TO TH E CIRCU IT COURT FOR QUEEN ANNE S COUNTY FOR R ESENT ENCIN G CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY QUEEN ANNE S COUNTY. 12 See Arthur Conan Doyle, The Adventure of the Silver Blaze, 4 The Strand Mag. 645, 656 (1892). -13-

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