State v. Glass

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IN THE COURT OF APPEALS OF MARYLAND No. 50 September Term, 2003 ______________________________________________ STATE OF MARYLAND v. BENJAMIN GLASS A ND TIMOTHY G LASS ______________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridg e, John C. (Retired, specially assigned) JJ. Opinion by Bell, C.J. Filed: April 18, 2005 The issue this case pres ents for resolutio n is whether defendants convicted of violating Maryland Code (1957, 1996 Repl. Volume, 2001Cum. Supp.) Article 27, § 291A,1 are eligible to receive the benefit of probation before judgment2 pursuant to Maryland Code (2002) § 6- 220 1 Maryland Code (1957, 2001 Repl. Volume), Article 27, § 291A was repealed and recodified, without substantive change, by 2002 Md. Laws, ch. 26, § 1, eff. Oct. 1, 2002. Its successor, which diffe rs only stylistically and in statutory references mad e necessary by recodification now appears in the Maryland Code (2002) § 5-622 of the Criminal Law Article. T herefo re, unles s otherw ise indic ated fu ture ref erence s will be to Artic le 27, § 291A, the statute in effect when the defendants were charged. That section provides, as pertinent: (a) Definitions. - In this section firearm includes: (1) Handgun, antique firearm, shotgun, short-barreled shotgun, and short-barreled rifle, as those are defined in § 372 of this article; (2) Machine gun, as defined in § 441 of this article; and (3) Regulated firearm, as defined in § 441 of this article. (b) Prohibited. - A person may not pos sess, own , carry, or transport a firearm if the person has been convicted of: (1) (2) An offense under the laws of the United States, another state, or the District of C olumbia th at would b e a felony un der this subh eading if committed in this state; or (3) 2 A felony under this subheading; Conspira cy or attempt to c ommit an y of the offe nses listed in paragr aphs (1 ) and (2 ) of this s ubsect ion. Maryland Code (2002) § 6-220 (b) permits the court, under certain circumstances, all but the one at issue in this case presumably having been met, to stay the entering of judgmen t, defer furth er proceed ings, and p lace the def endant on probation s ubject to reasonable conditions. A defendant receiving such a disposition has not been convicted of the c riminal o ffense charge d. See Myers v. Sta te, 303 Md. 639, 647-48, 496 A.2d 312 (1985). (d) (2) of the C riminal Procedure Article.3 The trial court, the Circuit Court fo r Baltimore Cou nty, which imposed the disposition, and, subsequently, on appeal, the Court of Special Appeals, concluded that the de fendants were, in fa ct, eligible to receive probation before judgment. We shall affirm. I It is undisputed that the respondents, Benjamin Glass and Timothy Glass, ( the defendants ) were convicted in the mid-1980's of felonies under the Maryland controlled dangerous substance laws and that they subseque ntly were convicted of possessing, in September 2001, firearms in violation of Article 27, § 291A. 3 At sentencing, the defendants requested a Section 6-220 is the successor to Maryland Code (1957, 1996 Repl. Vol.) Art. 27, § 641, w hich it re placed , see 2001 Md. Laws, ch. 10 § 1, according to the Revisor s Note, without substantive change. We refer to § 6-220 because it is procedural and in effect when the defendants were sentenced. Section 64 1(a) (3), in eff ect when the defen dants we re charged , as relevant, provided: Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a second or subsequent controlled dangerous substance offense under §§ 276 through 303 of this article . Section 6-220 con tains the same prohibition w ith respect to probation befo re judgment. It provides: (d) Notwithstanding subsections (b) and (c) of this section, a court may not stay the entering of judgmen t and place a defend ant on probation for: * * * * (2) a second or subsequent controlled dangerous substance crime u nder A rticle 27 , §§ 276 throug h 303 o f the C ode.... By 2002 Md. Laws, ch. 248, § 6-220 (d) (2) now refers to a second or subsequent controlled dangerous substance crime under Title 5 of the Criminal Law Article. Section 5-622 is codif ied in T itle 5 of th e Crim inal La w article . 2 probation before judgment disposition, pursuant to § 6-220 (d) (2). The State, objecting to that disposition, argued that the defendants were ineligible for probation before judgment, the § 291A conviction being a se cond or subsequ ent controlled dangerou s substance crime. It reasoned : Your Hono r, my und erstand ing is tha t ... 291 A, because it is under the controlled dangerous substance section, that qualifies into those that range of sections, counts as a controlled dangerous violations because it is a prior conviction. Because of a prior conviction, [§ 2 91A] falls under the purview of th at section, thus pro hibiting a proba tion bef ore jud gmen t. The tria l court d isagree d. It sentenced both defendants to probation before judgment, waived superv ision, an d order ed the d efend ants to p ay court c osts. The State timely noted an appeal to the Court of Special Appeals, and, in addition, filed a motion to correct an illegal sentence which was denied after the appeal was noted.4 In an 4 Maryland Code (1973, 1998 Repl. Volume) § 12-302 (c)(2) of the Courts and Judicial Proceedings Article provides: (c) In a criminal case, the State may appeal as provided in this subsection. **** (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Imposed or modified a sentence in violation of the Marylan d Rule s. Because the State alleg es that the trial co urt failed to im pose the se ntence spe cifically mand ated by th e Cod e, the Sta te was a uthoriz ed to ap peal. See State v. Purc ell, 342 Md. 214, 220, 674 A .2d 936, 939 (199 6) (upholding State s right of appeal where co urt granted P urcell proba tion before judgmen t in violation of § 641(a) (2 ), thus fail[ing ] to impose the sentence sp ecifically mand ated by the C ode ); Shilling v. Sta te, 320 Md. 288, 294, 577 A.2d 83, 86 (1990) ( For our purposes, a sentence is specifically mandated when the legislature prohibits probation before judgment or suspension of the imposition 3 unreported opinion, the intermediate appellate co urt held that d efendan ts convicted of violating Article 27, §291A are nevertheless eligible to receive a probation before judgment disposition. This is so, that court reasoned, bec ause a firearm crime under Art. 27, § 291A that does not have as a comp onent, con duct that inv olves a con trolled dang erous sub stance ... is not a controlled dangerous substance crime. The ordinary and natural meaning [of] controlled dangerous substance crime does not, in our opinio n, include firearm crimes. Section 291A, therefore, only makes firearm possession a derivative crime of a prior controlled dangerous substance crime. In a footnote, the court referenced Maryland Code (2002) § 5-101 (f) of the Criminal Law A rticle, the succe ssor, withou t substantive c hange, to Maryland Code (1957, 1996 Repl. Volum e) Artic le 27, § 277 (f) and (v), which defines controlled dangerous substance as follows: (f)(1) Controlled dangerous substance means: (i) a drug or substance listed in Schedule I through Schedule V; or (ii) an immediate precursor to a drug or su bstance listed in Schedu le I through Schedu le V that: 1. by regulation the Department designates as being the principal compound commonly used or produced of sentence. ). 4 primarily for use to manufacture a drug or substance listed in Schedule I through Schedule V; 2. is an immediate chemical intermediary used or likely to be used to manufacture a drug or substance listed in Schedule I through Schedule V; and 3. must be co ntrolled to prevent or limit the manufacture of a drug or substance listed in Sche dule I through Schedule V. (2) Controlled dangerous substance does not include distilled spirits, win e, malt bevera ges, or to bacco . The court also made clear that the decisio n wheth er to grant prob ation befo re judgme nt is solely within the disc retion o f the trial court. We gran ted the State s petition for w rit of certio rari. State v. Glass, 376 Md. 543, 831 A.2d 3 (2003 ). II Both sides agree that § 6-220 (d) (2) is facially unambiguous. From that conclusion, however, they draw different inferences and, thus, reach different interpretations of the statute. The State proffers that wha t § 6-220 (d) (2) clearly proscribes is a proba tion before judgment disposition when there have been multiple convictions of controlled dangerous substance crimes, the second or subsequent one being preclusive of that disposition. That statute, it submits, specifies clearly the crimes to which the preclusion applies, those enumerated in sections 276 through 303 of Article 27. Continuing, the State asserts that the crime o f which th e defend ants were convicted, possessing a firearm after conviction of a felony, being codified, at the time, at § 291A, is included in the category of crimes for w hich prob ation befo re judgme nt is 5 prohibited, i.e., Sections 276 through 3 03. The State conc ludes: By its plain langu age, this statute precluded a disposition of probation before judgment where, as here, the second crime is a viola tion of A rticle 27 , Section 291A . The State rejects the rationale used by the trial court to justify imposing the probation before judgmen t disposition, that § 291 A, prohib iting felons f rom poss essing firear ms is differen t from the controlled da ngerous substance crimes specified in § 6-220 (d) (2). It points out that includ ed in the en umerated range, §§ 2 76-303, ar e, in addition to statutes that define crimes, statutes that do not, b ut rather regulate the persons and businesses handling controlled dange rous su bstanc es, i.e., § 294, governing inspections of factories and warehouses, § 297, addressing forfeiture of personal and real property, and § 298A, involving notification of licensing authorities when a person holding certain licenses is convicted of a controlled dangero us substan ce offen se. Theref ore, the State c oncludes : Section 291A was included within the controlled dangerous sub stance s subheading because it defined a crime and because it applied to a person convicted of [] [a] felony unde r this subhead ing (or equ ivalent offe nse from outof-state); the subheading is H ealth - Controlled Dan gerous Substance s. It is also important, the State believes, that § 6-220's prohibition o f probation before judgment for repeat felony convictions of controlled dangerous substance crimes was enacted prior to the enactment of § 291A, thus pre-dating the creation of th at crime. Prior to its amendment in 1990 , see 1990 Md. Laws, ch. 410, § 6-220's predecessor, Article 27, § 641, identified the second or subsequent controlled dangerous substance offense to which it applied 6 as that define d in Section 29 8. The am endmen t broadene d the objec ts of the proh ibition to include a second or subsequent controlled dangerous offense under Sections 276 through 303 of this Article. Section 291A, the State points out, was not enacted until 1991, FOR the purpose of prohibiting a person convicted of certain controlled dangerous substance felonies or conspiracy or attempt to commit certain controlled dangerous substance felonies from possessing, owning, carrying, or transporting a firearm[.] See 1991 Md. Law s, ch. 613. From this chronology, the State maintains: While the bill file con tains no exp licit reference to an intent to limit dispositions of probation before judgment, it is clear that the new crime was designated Article 27, Section 291A before the bill was passed. ... This Court may presume that the Maryland General Assembly acted with knowledge of its prior legislatio n. State v. Bricker, 321 Md. 86, 93[, 518 A. 2d 9, 14] (199 0); Cicoria v. S tate, 332 Md. 21, 43[, 62 9 A. 2d 742, 75 2] (199 3). (Citing Mark Up of Hou se Bill 978, prepared after second reading, contained in bill file for 1991 Hou se Bill 978). As indicated, the defenda nts also argu e that § 6-22 0 (d) (2) is clea r and una mbiguous. They reach th e oppo site con clusion to that re ached by the Sta te, how ever, that § 6-220 (d) (2) does not prohibit a probation before judgment disposition to one convicted of a violation of § 291A, after having been convicted of a felony controlled dangerous substance crime. Focusing on the words, controlled dangerous substance crime, the defendants assert that [t]h e plain language of the statute clearly indicates th at it is intended o nly to apply to those crimes under Title 5 of the Criminal Law Article which are crimes involving controlled dangerous 7 substan ces.... The interpretation urged by the State, that the prohibition applies to every crime codified in Title 5, whether a controlled dangerous substance crime or no t, would, the y submit, render the words, controlled dangerous substance crime, meaningless and mere surplusage, thus violating a cardinal canon of statutory construction. Noting that the crime of possessing a firearm after conviction of a felony does not require the use, sale or possession of a controlled dangerous substance, and can be committed without ever coming into contact with any such substance, the defendants conclude that their convictions of § 291A were not second or subsequent controlled dangerous substance crimes. III. The issue pres ente d by this case is, as the parties and th e Court of Special A ppeals recognize, one of statutory interpretation. Our task, then, is to determine the Legislature s intent in enacting § 6-220 (d)(2) and, more specifically, whether this subsection precludes the granting of probation before judgment to defendants who have been convicted of a felony under the controlled dangerous substance subheading and subsequently are convicted, pursuant to Art. 27, §291A , of pos sessing a firearm . The cardinal rule of statutory construction is to ascertain a nd effec tuate legislative intent. Mayor and Council of Rockville, et al v. Rylyns Enterprises, Inc., 372 Md.514, 549, 814 A.2d 469, 490 (2002); Mayor and City Council v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000); Chesapeake and Potomac Telephone Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimo re, 343 M d. 567, 5 78-79 , 683 A .2d 512 , 517-18 (1996); Oaks v. 8 Connors, 339 M d. 24, 35, 66 0 A.2d 4 23, 429 (1 995); Montgomery County v. Buckman, 333 Md. 516, 523, 636 A.2 d 448, 45 1 (1994); Condo n v. State, 332 Md. 481, 491, 632 A.2d 753, 755 (1993). This inquiry begins with the words of the statute and, when the words of the statute are clear and unambig uous, acco rding to their c ommo nly understoo d meanin g, the analysis ordinarily, ends th ere. Oaks, supra, 339 Md. at 35, 660 A.2d at 429; Buckman, supra, 333 Md. at 523, 636 A.2d at 45 1; Condon, supra, 332 Md. at 491, 632 A.2d at 75 5; Harris v. Sta te, 331 Md. 137, 14 5-46, 6 26 A.2 d 946, 9 50 (19 93). Moreover, a court may neither add to, nor delete, statutory language that is plain and unambiguous language in order to reflect an intent not evidenced in that language, Condon, supra, 332 Md. at 491, 632 A.2d at 755, nor may it construe the statute with forced or subtle interpretations that limit or extend its applic ation. Id. (quoting Tucker v. Fireman's Fund Insurance Co., 308 Md. 69, 73, 517 A.2d 730, 732 (1986)). And a statute should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory. Buckman, supra, 333 Md. at 524, 636 A.2d at 452; Condon, supra, 332 Md. at 491, 632 A.2d at 755. The analysis, in other words, must be undertaken from a commonsensical rather than a technical, pe rspective, alw ays seeking to avoid givin g the statute a strained interpretation or one that reac hes an a bsurd r esult. See Bane v. S tate, 327 Md. 305, 308-309, 609 A .2d 313, 314-315 (1992). We agree with the parties that § 6-220 (d) (2) is clear and unambiguous. We believe, however, that the interpretation urged by the Co urt of Specia l Appeals and the de fendants is the correct one. As the intermediate appellate court discerns, the resolution of the construction 9 issue distills to whe ther the phra se controlle d dangerous substance crime modifies under Article 27, §§ 276 through 303, ... or if the phrase merely describes, broadly, the crimes for which probation before judgment is prohibited, and that the enumerated sections actually control. The def endants co rrectly observe th at adopting the latter cons truction, as the State does, renders nugatory and, therefore, meaningless, the critical phrase, controlled dangerous substance crime. Had the Legislature intended the broader reach, it certainly would not have used such a restrictive phrase. When, however, that restrictive phrase is considered, as it must be, it is clear, as the Court of Special Appea ls conclude d, that the prere quisite establish ed by the Ge neral Asse mbly in enacting § 6-220 (d) (2), has not been, and could not have been, met. Section 291A is n ot a controlled dangerous substance crime. Its violation does not depend on engaging in conduct involving controlled dangerous substances; violation occurs whenever conviction of a predicate felo ny, any predicate felo ny, not just those involving controlled dangerous substances, precedes possession of a firearm. That a category of felonies tha t forms the p redicate for the offen se is contro lled dan gerous substan ce crim es, does not render a violation of § 291A, based on any such cr imes, a contro lled dan gerous substan ce crim e. The Court of Special Appeals confirmed its plain-meaning interpretation by reference to § 6-220 's legislativ e history. See Chase, supra, 360 Md. at 128, 756 A.2d at 991 (when the language of the statute is clear and unambiguous, the resort to legislative history is a confirmatory process; it is not undertaken to contradict the plain m eaning of the statute ); 10 Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977) ( a court may not as a gen eral rule surmise a legislative intention contrary to the plain language of a statute or insert exceptions not made by the legislature. ). Specifically, it referenced the a mend ment o f form er Artic le 27, § 641, the predecessor of § 6-220, by the passage of th e Dru g Enf orcem ent Ac t of 199 0. See 1990 Md. Law, ch. 410. The purpose clause of the Act stated as one of the purpo ses of the A ct, to restrict[] the authority to grant probation before judgment for certain offenses. Moreover, the court quoted the Preamble of the Act, which provided: WHEREAS, The Commission s plan calls for changing our society s behavior and attitude about drug abuse by, among other things ... restricting the use of probat ion bef ore jud gmen t in contr olled da ngerou s substa nce ca ses ..., concluding: It is apparent f rom this language that, upon its passage, the prohibition on probation before judgment applied only to controlled dangerous substances. Even more persuasive ly, we point ou t that Art. 27, § 291A was not enacted until 1991, the following year. 1990 Md. Laws 613. Thus, it is clear that at the time of the enactment of the Drug Enforcement Act of 1990, prohibition of probation before judgment did not apply to derivative firearm crimes, such as the crime for which the Gla ss broth ers we re conv icted. We agre e. This also a nswers th e State s legisla tive history argum ent. JUDGMENT AFFIRMED, WITH COSTS. 11

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