Stanley v. State

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Stanley v. State, N o. 80, Septe mber Te rm, 2004 . Opinion b y Bell. CRIMINAL LAW - SENTENCING - ENHANCED PENALTIES It is a well settled canon of statutory construction when interpreting a statute, effect should be given to all of the language and a construction that renders any portion superfluous should be avoided. Section 449 (e) of Maryland Code Art. 27A is clear and unambig uous. By its clea r and exp licit terms, to be su bject to the en hanced p enalty it prescribes, a p erson mu st be in illegal p ossession o f a firearm as defined in § 445 (d ) (i) and (ii), and been convicted previously of a crime of violence as defined in § 441 (e) or been c onvicte d of ce rtain enu merate d drug -related offen ses. The definition of the illegal possession targeted for purposes of this statute consists of two elements, both of which must be met; it is not sufficient if only one is present. Since the definition includes a c rime of vio lence and any violation cla ssified as a f elony in Maryland, a conviction of both, not just one, must be established. It is not enough that the person be convicted of a crime of violence under § 441 (e). On the contrary, unless the illegal possession of the firearm is established by proof of a violation classified as a felony, the establishment of the crime of violence under § 441 (e) could not trigger the enhance d punishm ent. IN THE COURT OF APPEALS OF MARYLAND No. 80 September Term, 2004 CHARLES STANLEY v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C .J. Filed: December 13, 2005 Charles Stanley, the petitioner, was convicted, on January 24, 2003, by a jury in the Circuit Court for Baltimore City, of possession of a firearm after previously having been convicted of a crime of violence, in violation of Maryland Code (1957, 1996 Repl. Vol., 2001Cum. Supp.) Art. 27, § 449 (e). 1 Subsequ ently, he was se ntenced f or that offe nse to five years imprisonment, without the possibility of parole. When the petitioner was sentenced, he previously had been convicted of second degree assault, the proof of which was supplied by the State, and for violating an ex parte order entered when he and his wife were separa ted. Sec ond de gree as sault, the critical co nviction , was a c rime of violenc e, see § 441 (e), 2 but not a felon y. See § 12A (b). 3 The petition er believed he was illeg ally sentenced because, he argued, for § 449 (e) 1 He also w as charged with, and c onvicted o f, dischargin g a firearm in the city limits, for which he received a concurrent sentence of time served to that for the illegal possession of a firearm. Unless otherwise indicated, future references are to Maryland Code (1954, 1996 Repl. Vol., 2001 C um. Supp.). 2 Maryland Code (1957, 1996 Repl. Vol., 2001Cum. Supp.) Art. 27 § 441 (e) (3) inclu des in the defi nitio n of crim es of violence , ass ault i n the first or se cond degree . By Acts 200 3, ch. 5, § 1, § 4 41 was re pealed an d reenacte d as § 5-10 1 of the P ublic Safe ty Article, with § 441 (e) bec oming § 5-101 (c). 3 Art. 27, § 12A (b) provided: (b) Violation; penalties.-A person who violates this section is guilty of the misdeme anor of as sault in the sec ond deg ree and on conviction is subject to a fine of not more than $2,500 or imp risonment for not m ore than 10 years or both . By Acts 2002, c. 26, § 2, eff. Oct. 1, 2002, § 12A was repealed, re-enacted and recodified as Maryland Code (2002) § 3-203 of the Criminal Law Article. to apply, not simply a crime of violence was required to be shown, but proof of a felony conviction was a prerequisite as well. This is evident, he submits, from the language of the statute itself: A person who was previously convicted of a crime of violence as defined in § 441(e) of this article or co nvicted of a violation o f § 286 o r § 286A of this article, and who is in illegal 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 less than 5 years, no part of which may be suspended and the pe rson may no t be eligible fo r parole. Eac h violation sh all be con sidered a separ ate off ense. [4] That section , he points o ut, in delineating its scope, referred to Art. 27, § 445, which identifies the person s whose possession of a firearm is illegal, and, m ore to the po int, expressly specified, as a unit, two of the sub-sections defining illeg al possessio n, (d) (1) (i) 4 By Acts 2003, ch. 5, § 2, § 449 (e) was repealed and recodified as Maryland Code (2003) § 5-133 (c) of the Public Safety Article, which provides: (c)(1) A person may not possess a regulated firearm if the person was previously convicted of: (i) a crime of violence; or (ii) a vio lation of § 5-60 2, § 5-6 03, § 5- 604, § 5-605, § 5- 606, § 5-607, § 5-608, § 5-609, § 5612, § 5-613, or § 5-614 of the Criminal Law Article. (2) A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years, no part of which may be suspended. (3) A pe rson senten ced unde r paragrap h (1) of this subsection may not be eligible for parole. (4) Ea ch viola tion of th is subse ction is a separa te crime . The enu merated c rimes are es sentially those en compas sed in § 44 9 (e) by the refe rence to §§ 286 and 286A. 2 and (ii),5 as the d efinition applica ble to it. Under that definition, he concludes, a person is not in illegal possession of a firearm unless the person has previously been convicted of both a crime of violence and [a]ny violation classified as a felony in this State . Because his conviction for second degree assault, although a crime of violence, was a misdemeano r, the petitioner maintained that the enhanced penalty of § 449 (e) did not apply to him. Armed with that argument, the petitioner noted an appeal to the Court of Special Appeals. A divided panel of that court, in a repo rted op inion, re jected th e argum ent. Stanley v. State, 157 M d. App . 363, 85 1 A.2d 612 (2 004). It did so despite its recognition that § 449 (e) was an e nhanced penalty statute, w hich, becau se highly pena l, must be construed strictly and to which the rule of lenity applied insofar as doubt might exist regarding the punishment imposed, id. at 678, 851 A. 2d at 620 (quoting Melton v. State, 379 Md. 471, 489, 842 A.2d 743, 753 (2004)), and its acknow ledgmen t both that this Court has been clear that [o]nly if the statutory language is ambiguo us will this Court look beyond the statute's plain language in discerning the legislative intent, id. at 377, 851 A.2d at 620, (quoting Melton, 379 Md. at 476-477, 842 A .2d at 746-747), and that the plain meaning of § 449 (e) suggests that 5 Section 445 (d) (1) (i) and (ii) provided: A person may not possess a regulated firearm if the person: (1) Has been convicted of: (i) A crime of violence; (2) Any vio lation classified as a felony in th is State or any conspiracy to commit any crimes establish ed by tho se sectio ns. Section 445 was repealed by Acts 2003, c. 5, § 1, eff. Oct. 1, 2003. 3 it applies to persons who have been convicted of both a crime of violence and a felony. Id. at 379, 851 A.2d at 620. Noting, and relying on some of our other, earlier cases emphasizing the non-ab soluten ess of th e plain mean ing ru le, i.e. Derry v. State, 358 Md. 325, 336, 748 A.2d 478, 483-484 (2000) ( [W]e d o not view the plain language of a statute in a vacuum. The plain meanin g rule of construction is not absolute; rather, the statute must be construed reasonab ly with refere nce to the p urpose, aim , or policy of the enacting bo dy ); Degren v. State, 352 Md. 400, 418, 722 A.2d 887, 89 8 (199 9) ( [w ]e are no t constra ined ... by ... the literal or usual meaning of the terms at issue. ); Outmez guine v. Sta te, 335 Md. 20, 41, 641 A.2d 870, 880-881 (1994) ( The plain language can not be viewed in isolation; rather, the entire statutory scheme must be analyzed as a whole. ), and State v. Pagano, 341 Md. 129, 134, 669 A.2d 1339, 1341 (1996) fo r the proposition that statutes are to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugato ry, the intermed iate appellate c ourt conclu ded, an e xaminatio n of the statu te in context and in conjunction with the statutory scheme makes clear that [both a conviction of a crime of violence and of a felony] was not the legislative intent. Stanley, 157 Md. App. at 378-79, 851 A.2d at 620. It explained: Interpreting the statute as appellant suggests w ould require us to render a portion of the statute superfluo us and w ould prod uce an illogical result. Section 449(e) applies to a person who was previously convicted of a crime of violence as defined in § 441(e) or of a violation of Article 27 § 286 or § 286A. Article 27 §§ 286 and 286A prohibit various drug crimes. None of the offenses proh ibite d by those statu tes is a crime of violence as defined in § 441(e) . It would be illogical for the legislature specifically to have listed §§ 286 and 286A in § 449 (e) if it intended that the section apply only to persons 4 who have previously been convicted of both a felony and a crime of violence. In addition , § 445 (d) (1) does not prohibit possession of any firearm, but of a regulated firearm. Reading § 449 (e) together with § 445 (d) (1) indicates that the phrase, who is in possession of a firearm as defined in § 445 (d) (1) (i) and (ii) of this article, refers to a person who is in possession of a regulated firearm and that the legislature used the word and because the definition of regulated firearm is the same in § 4 45 (d) (1) (i) as it is in § 445 (d) (1) (ii). As seen abo ve, section 4 45 (d) (1) lists su bsections (i) and (ii) in the disjunc tive. Id. at 379, 851 A. 2d at 620. The majority also found support for its position in the legislative history, both pre- and post-enactm ent, of § 449 (e). Significant, in that regard, were the bill analyses for the House and Senate versions of the bill that was to become §449 (e). They both referred to the qualifying convictions applicable to the bill under consideration in the disjunctive: the House version providing, The bill creates a new felony and a five-year mandatory minimum term of imprisonment for a person who illegally possesses a firearm and has certain qualifying convictions for crimes of vio lence or ce rtain controlled dangero us substan ces and th e Senate version declaring, The bill establishes a felony that provides a 5 year minim um manda tory term of imprisonment for a person who illegally possesses a firearm an d who w as previou sly convicted of a crime of violence or certain serious controlled dangerous substances violations. Similarly important to the majority s reasoning is the new statute, the recodif ied vers ion of § 449 (e) , i.e. Maryland Code (2003) § 5-133 (c) of the Public S afety Article . It points to that statute as support[ive of] the view that the legislature intended § 449 (e) to apply to a p erson prev iously convicted of either a felony or a crim e of vio lence, 5 Stanley, 157 Md. at 380, 851 A.2d at 621, noting that the revisor s note states that the simpler formulation, which it attributes to the revisers, reflected in § 5-133 (c) of the Public Sa fety Article is new language derived without substantive change from former A rt. 27, §§ 449 (e) and 445 (d), (e) and, except as it related to the transfer of regulated firearms, (a). Id. at 380381, 851 A.2d at 621-622.6 As indicated, the Court of Special Appeals was divided. Jud ge Dav is, in dissent, relying on one of our more re cent ca ses for t he purp ose, Price v. State, 378 Md. 378, 387-88, 835 A.2d 1221, 12 26-1227 (200 3),7 reminded the majority of the importance that this C ourt 6 As Jud ge Da vis mak es clear , Stanley v. State , 157 Md. App. 363, 382, 851 A.2d 612, 622 (2004), in ad dition to the re ference to the revisor s n ote which the majority quoted, the revisor made a more specific reference to the very phrase under review, who is in illegal possession of a firearm as defined in § 445 (d ) (1) (i) and (ii) of [Art. 27]. It is: The Public Safety Article Review Committee noted in Ch. 5 for consideratio n by the Gen eral Assem bly, that the mea ning of the reference in former Art. 27, §§ 449 (e) to was unclear. Former Art. 27, §§ 445 (d) (1) (i) and (ii) prohibited a person who has been convicted of a crime of violence or any violation classified as a felony in this State from possessing a regulated firearm. The General Assembly may wish to clarify the meaning of forme r Art. 27, §§ 449 (e), w hich is revised in subsectio n (c) of this section . 7 The issue before us in that case was whether daytime housebreaking was a crime of viole nce un der § 44 1 (e). Price v. State, 378 Md. 378, 384, 835 A.2d 1221, 1224 (2003). We spec ifically did not address, because it was n ot raised, whether § 44 9 (e) s mandatory sentencing im perative requires a conviction u nder both § 445 (d) (1) (i) and (ii), as the plain language indicates. Id. at 384, 8 35 A. 2 d at 122 5. 6 places on beginn ing its quest for legislative intent with the plain language of the enactment at issue and, in fact, that it is the strongly preferred norm of statutor y interpretation. Stanley, 157 Md. App. at 384, 851 A.2d at 623 (Davis, J., dissenting). In that case, as Judge Davis pointed out, we were emphatic as to process: when the statutory text reve als ambiguity, we are required to resolve it utilizing all the resources and tools of sta tuto ry construction at our dispo sal, but before judges may look to other sources for interpretation, first there must exist an ambig uity within the statute, i.e., two or more re asonable alternative interpretations of the statute. See Greco v. State, 347 Md. 423, 429, 701 A.2d 419, 421 (1997). Where the statutory 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 words from the statu te, see Gillespie v. State, 370 Md. 21 9, 222, 804 A.2d 42 6, 427 (20 02). Only w hen face d with ambiguity w ill 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 enactmen t. 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. Id. at 383, 851 A.2d at 623, quoting Price, 378 Md. at 387-88, 835 A.2d at 1226. Judge Davis concluded that there was no ambiguity in § 449 (e), that it was clear and unambiguous. Therefore, no construction was required. Moreover, relying on Melton , 379 Md. at 488-89, 842 A.2d at 753-754, Judge Davis believed that the Rule of Lenity applied in any event, the language of § 449 (e) being at best ambiguous, thus raising a doubt as to the punishment the statute im posed . Id. at 623-24, 851 A.2d at 384-85. 7 The petitioner, aggrieved by the judgment of the Court of Special Appeals, filed a petition for certiorari with this Court, which we granted, Stanley v. State, 383 Md. 256, 858 A.2d 1017 (2004), to con sider whether legislative history, pre- and post-e nactment, may trump the plain and clear and unambiguous language of a statute. We shall reverse. We agree with the petitioner and with Judge Davis, § 449 (e) is clear and unambiguous. By its clear and explicit terms, to be subject to the enhan ced pena lty it prescribes, a person must be in illegal possession of a firearm as defined in § 445 (d) (i) and (ii), and been convicted previously of a crime of violence as defined in § 441 (e) or been convicted of certain enumerated drug-related offenses. See Price, 378 Md. at 384, 835 A.2d at 1224, in which this Court commented: 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 curren t convic tion un der § 44 5 (d) (1) (i) and (ii) . The definition of the illegal possession targeted for purposes of this statute - there are two other proscribed possessions listed in § 445 (d)8 - consists of tw o elemen ts and is stated in the conjunctive. Consequently, both elements must be met; it is not sufficient if only one is 8 Maryland Code (1957, 1996 Repl. Vol., 2001 Cum . Supp.) § 445 (d) (1) also proscribed possession of a firearm by a person who has been convicted of (iii) Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years; or (iv) Any violation classified as a common law offense where the person receive d a term of imp risonm ent of m ore than 2 years. 8 present. That means, since the definition includes a crime of violence and any violation classified as a felony in this State, that a conviction of both, not just one, must be established. Thus, it is not enough that the person be convicted of a crime of violence under § 441 (e). On the con trary, unless the illegal possession of the firearm is established by proof of a violation classified as a felony, the establishment of the crime of violence under § 441 (e) cou ld not trig ger the e nhanc ed pun ishmen t. Were it otherwise, we would n ot give the entire statute effect and, in fact, we would be rendering the conjunction, and, superfluous. Moreo ver, we w ould be adding a word, o r, to the statute th at the Gen eral Assem bly did not. It is a well settled canon of statutory construction that we should, when interpreting a statute, give effect to all of the language and avoid a construction that renders any portion superfluous. Design Kitchen and Baths v. Lagos, 388 Md. 718, 729, 882 A.2d 817, 823-24 (2005); Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 11 14 (2005 ); Ware v. S tate, 348 Md. 19, 59, 702 A.2d 699, 719 (1997). We have also recognized that Where the words of a statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, the Court will give effect to the statute as the language is written . Moore v. Miley, 372 Md. 663, 677, 814 A.2d 557, 566 (2003). See Moore, 388 Md. 446, 453, 879 A.2d 1111, 1114 ( if the plain language of the statute is unambiguous and consistent with the apparent purpose of the statute, we give effect to the statute as it is written ). Just as a court may not render statutory language surplusage, it may neither add nor d elete language so as to reflect an intent not evidenced in the plain and 9 unam biguou s langu age of the statu te. Price, 378 Md. at 387 , 835 A.2d at 122 6 (2003). The Co urt of Spe cial Appe als asserted, as p art of its rationa le for interpreting § 449 (e) as it did, that it would be illogical for the Legislature to have placed §§ 286 and 286A in § 449 (e), disjunctively with § 441 (e), had it intended § 449 (e) to apply only to persons with both a felony and a crime of violence conviction. At the outs et, it is appropriate to reiterate that the s tatute is c lear and unam biguou s. Even if it may be, to us, illogical and irrationa l, there is no basis for the Court to refuse to give effect to the clear direction of the General Ass emb ly. But, it is not illogical or irrational for the General Assembly to have reserved the harshest punishm ent for thos e with the m ost reprehe nsible record . As the pe titioner points out: A person in illegal possession of a firearm, either because of a previous conviction of a crime of violence or a previous conviction of a felony, wou ld always have bee n subject to th e penalty provided by Article 2 7, § 449 (a). ... It is entirely reasona ble to reserve the mand atory penalty of subsection (e) for those individuals who have criminal records which include both a felony and a crime of viole nce. Nor are we satisfied that the legislativ e history pre-en actment o f § 449 (e ) or post its enactmen t, i.e. its repeal and recodification as § 5 -133 (c), provides a basis fo r an interpretation different from the one we reach. As indicated, the statute is not ambiguous; thus, there is no reason to consult leg islative history as an aid to constru ing it. What w e said in Price bears repeating: [A]ll statutory interpretation begins, and 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 prima rily reveals itself through the 10 statute's very wo rds, Derry v. State, 358 Md. 325, 335, 748 A.2d 478, 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 construe the statute with forced or subtle interpretations that limit or extend its applic ation. County Council v. Dutcher, 365 Md. 399, 416-417, 780 A.2d 1137, 1147 (20 01). In sh ort, if the w ords of a s tatut e cle arly and unambig uously delineate the legislative intent, ours is an ephemeral enterprise. We need inve stigate no further but simply app ly the statute as it reads. Derry, 358 Md. at 335, 748 A.2 d at 483; Kaczorowski v. City of Baltimore, 309 Md. 505, 51 5, 525 A .2d 628 , 633 (1 987). We are aware that this Court has reviewed the legislative history of a statute which we have pronounced clear and unambiguous. In those circu mstances , that is a confirmatory process, see Lagos, 388 M d. 718, 7 30, 882 A.2d 8 17, 824; State v. Glass, 386 Md. 401, 411, 872 A.2 d 729, 73 5 (2005); Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000) (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 mea ning of the statute ); Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977) ( a court may not as a general rule surm ise a legislative intention contrary to the plain language of a statute or insert exceptions not made by the legislature ), not a contradictory one. We also do not believe that the amendment of a statute, with an explanatory note suffices to contradict the plain language of a statute. The amendment itself, because it must change that which was contradictory of the legislative inten t, is proof of th e con trary, that the statute actually did not mirror le gislative intent. A revisor s note indicating that the change was made without substantive change does not change that fact. That is especially the case 11 here, where th e revisor hig hlighted fo r the General Assembly what the revisor termed uncle ar. In any ev ent, albeit not the iden tical issue, what we said in Price, addressing a similar issue, is in structive . In that case, the State argued that the crime of daytime housebreaking, though not actually included in the list of crimes of violence in § 441 (e), was included by implication, referring to a Committee Note to the 1994 amendmen t to § 441 (e), in which the amendment was characterized as stylistic and essentially retain[ing] the current law in the area. 378 Md. at 391, 835 A.2d at 1228. This Court rejected the argument. We explained: 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. Id. at 392, 8 35 A.2 d at 122 9. The same can be said of an amendment that radically changes the requirements for the application of an enhanced penalty statute. In this case, rather than a definition supplied by a reference in the conjunctive, the reference has been removed entirely and replaced by specific references to specified crimes. Such a chang e is not withou t substan tive cha nge. It radically changes, as in Price, the elements of proof required by the statute. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND IN THE COURT 12 OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. 13