Pye v. State

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Alvin G. Pye v. State of Maryland, No. 113, September Term 2004. Opinion by Bell, C.J. Davon Teel v. State of Maryland, No. 114, September Term 2004 . Opinion by Bell, C.J. Dar ryl Womack v. State of Maryland, No. 123, September Term 2004. Opinion by Bell, C.J. CRIMINAL LAW - MERGER The offenses of carrying a handgun and possession of a firearm by a convicted person do not merge, despite the G eneral As sembly s incre ase of the p enalties associated with the crime of possession of a firearm by a convicted person. IN THE COURT OF APPEALS OF MARYLAND No. 123 September Term, 2004 Davon Teel v. State of Maryland No. 114 September Term, 2004 Darryl Womack v. State of Maryland No. 113 September Term, 2004 Alvin G. Pye v. State of Maryland Bell, C. J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: March 19, 2007 *Wilner, 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 opin ion, we will reso lve three cases, Teel v. State , (No. 123), Woma ck v. State, (No. 114), and Pye v. State, (No. 113). With one exception, all three cases address essentially the same legal issue and involve essentially the same argu ment with respect to the merger of certain handgun related offenses. The issue that the three cases have in common, as we have restated it, is: Whether our holding in Frazier v. Sta te, 318 Md. 597, 569 A.2d 684 (1990), that the offenses of carrying a handgun and possession of a firearm by a convicted person do not merge, is still viable, even though, su bsequen t to that decision, the General Assembly increased the penalties associated with the crime of possession of a firearm by a convicted person. Because the General Asse mbly is presumed to have been aware of our holding in Frazier when it enacted legislation to increase penalties for possession of a firearm by a convicted person, we conclude that it is still viable. The exception is the second issue, presented only in Pye, supra: Did the trial judge err in denying [Pye s] motions to dismiss and acquit by sentencing him to a five year no parole sentence for possession of a firearm by a person w ith a prior con viction under Article 27, § 449(e) where [Pye] previously had been convicted of a felony[,] but not a crime of violence? Concluding that § 449 (e) requires an individual to have been previously convicted of a crime or crim es that were b oth a felo ny and a crime of viole nce, see Stanley v. State, 390 Md. 175, 887 A.2d 1078 (2005), we answer that question in th e affirmativ e. Accord ingly, we shall hold that the trial judge erred as a matter of law by denying Pye s motion for judgment of acquitta l. I. In Teel, Womack, and Pye, the petitioners were convicted of wearing, carrying, or transporting a handgun in violation of Maryland Code (1957 , 1996 R epl. Vo l., 2001 Cum. Supp .) Article 27, § 36B1 and of possession of a firearm in violation of Maryland Code (1957, 1996 R epl. Vol., 2001 Cum . Supp.), Article 27, § 445(d). 2 II. The facts in these case s are not in d ispute. Thu s, the issues w e address a re purely legal questions. Therefore, we shall review the judgments de novo, Cox v. State, __ Md. __, 1 Maryland Code (1957, 1996 R epl. Vo l., 2001 Cum. Supp.), Article 27, § 36B reads, in relevant p art: (b) Unlawful wearing, carrying, or transporting of handguns; penalties. Any person who shall wea r, carry, or transport any handgun, whether concealed or open, upon or a bout his person, and any person who shall wear, carry or knowin gly transport any handgun, whether concealed or open, in a ny vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeano r; and it shall be a rebuttable presumption that the person is know ingly trans porting the han dgun . . . . The current version of § 36B, which is substantially unchanged, is found at Maryland Code (2002), § 4-203 of the Criminal Law Article. 2 Maryland Cod e (1957, 1996 R epl. Vol., 2001 Cum . Supp.), Article 27, § 445(d): Restrictions on possession In general. A person may not possess a regulated firearm if the person: (1) Has been convicted of: (i) A crime of violence; (ii) Any violation classified as a felony in this State; (iii) Any violation classified as a misdeme anor in this State that carries a statutory penalty of more than 2 years; or (iv) Any violation classified as a commo n law offense w here the person rec eived a term of imprisonment of more than 2 years. The current, substantially unchanged version of § 445(d) is foun d at Maryland Cod e (2002), § 5-133(c)(1) of the Public Safety Article. -2- ___, ___ A.2 d ___, __ _ (2007); State v. Rucker, 374 M d. 199, 207, 821 Md. 439, 444 (2003); Carter v. Sta te, 367 Md. 447, 457, 788 A.2d 646, 651 (2002); the trial courts express interpretation of the law enjoys no presumption of correctness. III. Teel v. State 3 In Frazier v. Sta te, 318 Md. 597, 569 A.2d 684 (1990), officers assigned to the Drug Enforce ment Un it of the Baltim ore City Police Departm ent, while p roceeding to execute a warrant for an apartment on the seco nd floo r of an a partme nt build ing, encountered Frazier sitting on the fron t stoop of the building. Wh en they approached, Fraz ier jumped up[,] reached into his waistband, produced a revolver, and began moving back into the building. Id. at 602, 569 A.2d at 686-687. The officers wrestled the gun away from Frazier and arrested him. Bec ause he p reviously had been con victed of attempted rob bery with a dea dly 3 Early one morning, a Baltimore City police officer observed Teel running out of an alley in a high crime area. The officer followed him to the rear of a residence where he saw Teel reach in his dip (the area around the w aist where one m ight conceal a wea pon), remove a handgun, and place it on the ground. The officer retrieved the handgun and found suspected cocaine beneath the gun. The gun proved to be operab le. It was stipula ted that, prev ious ly, Teel had been convicted of an offense that prohibited him from possessing a handgun in the State. He was charged, tried, convicted and sentenced to consecutive sentences, i.e., five years impr isonmen t without pa role for p osse ssion of a fire arm by a convicted person and three years for wearing, carrying, or transporting a handgun. Teel was acquitted of the drug charge. He appealed his convictions to the Court of Special A ppeals on the remaining charges. In an unreported opinion, the Court of Special Appeals rejected Teel s argument that the trial judge erred by failing to merge the c onvictions. That court affirmed his convictio ns based, in part, on the holding in Frazier v. State, 318 Md. 597, 569 A.2d 684 (1990). We granted certiora ri. Teel v. State , 384 Md. 581, 865 A.2d 589 (2005). -3- weapon, a crime of viole nce, see § 441 (e), 4 Frazier was cha rged with wearing, carrying, and transporting a handgun, in violation of Maryland Code (1957, 1987 R epl. Vo l.) Article 27, § 36B (b), and possession of a handgun after being convicted of a crime of violenc e, in violation of § 445 (c). 5 He was convicted of both offenses and sentenced. On ce rtiorari to this Co urt, Fraz ier prese nted, inter alia, the following issue: Must the convictions and sentences for wearing, carrying, or transporting a handgun and for possessing a pistol or revolver by a person who has been convicted of a crime of violence be merged? Frazier, 318 Md. at 604, 569 A.2d at 688. We answered that question in the negative, holding: It is significant that the Legislature did not amend or supe rsede A rticle 27 , § 445(c). So, even if offenses are deemed the same under the required evidence test, the Legislature may punish certain conduct more severely if particular aggravating circumstances are present, by imposing punishment under two separate statutory o ffense s. See Newto n v. State, 280 Md. 260, 274 n.4, 373 A.2d 262[, 270 n.4] (1977). The Legislature s concern about the possession of a handgun, and its additional concern about the aggravating circumstance of the h andgun bein g possessed b y a person who has been convicted of a crime of violence, is not unreasonable. . . . We hold that the two offenses of which Frazier was co nvicted do not m erge. 4 Md. Code (1957 , 1987 R epl. Vo l.) Article 27, § 441 (e) defined crime of violence to include robbery ; robbery with a deadly weapon, and an attempt to commit those offen ses. Robbery with a d eadly we apon a lso is a fe lony, see, e.g., Eldridge v. State, 329 Md. 307, 311, 619 A.2d 531, 533 (1993) (noting that wh ile Md . Code (1957 , 1992 R epl. Vo l.) Art. 27, § 486 authorizes the punishment for the common law felony of robbery, § 488 provides for a harshe r punishment w hen the robbery is with a dea dly weapon). 5 Section 445 (c) provided: It shall be unla wful for an y person who has been convicted of a crime of violenc e ... to pos sess a p istol or re volver . -4- Id. at 614-615, 569 A.2d at 693. More significant for our purposes, however, is the reasoning underlying that holding. After noting the general rule for determining whether two criminal violations, treated separately under the statutory provisions, should be deemed the same when both violations are based on the same transaction, i.e. the req uired ev idence test, see Blockburger v. United States, 284 U.S. 29 9, 304, 52 S . Ct. 180, 76 L. Ed. 306 (1932), an d discussing its application, id. at 612-13, 569 A.2d at 692, the Court pointed out that it was not the only test, that [t]he imposition of multiple punishment ... is often particularly dependent upon the intent of the Legislature. Id. at 613, 5 69 A. 2 d at 692 , quoting Whack v. State, 288 Md. 137, 143, 416 A.2d 265, 268 (1980 ), appeal dismissed and cert. denied, 450 U.S. 990, 101 S. Ct. 1688, 68 L. Ed. 2d 189 (1981). Turning to the statutes then at issue, the Cou rt observed: When it enacted the handgun control statute, Ch. 13 of the Acts o f 1972, A rt. 27, §§ 36B-36F , the Legislature specifically addressed the m atter of other statutes encompassing handguns, and it indicated its intent as to which of those other statutes should no longer c over the use of h andgun s. Thus, prio r to 1972, Art. 27, § 36, had proscribed the carrying of concealed weapons and the carrying or wearing of weapons openly with intent to injure, including handguns. Also prior to 1972, Art. 27, § 36A, had provided a maximum penalty of three years' imprisonment for carrying any ... deadly weapon of any kind on public school property. Finally, prior to 1972, there was local legislation regulating and penalizing certain uses of handguns. In the handgun control act of 1972, the Legislatu re dealt with the above-d escribed statutory provisions, so as to proh ibit the pyramidin g of pena lties under bo th the existing law and the new law for the unlawful use o f a handgun. It amended Art. 27, § 36, to expressly delete handguns from the coverage of the concealed weapons statute (Ch. 13, § 1, of the Ac ts of 19 72). It further amended Art. 27, § 36A, to provide that where the weapon carried on public school property is -5- a handgun, the penalty provisions of § 36A do not apply, but instead, the offender shall be sen tenced in ac cordance with the pe nalty provisions of the new statute (Ch. 13, § 2, of the Acts of 1972) . Lastly, with respect to local legislation regulating handguns, the Legislature stated (Ch. 13, § 6, o f the Acts of 1972 ): [A]ll restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby preempts the right of the political subdivisions to regulate said m atters. Id. at 613- 14, 569 A.2d a t 692-9 3, citing Whack, 288 Md. at 145-46, 416 A.2d at 269 (footnote omitted ). Emphasizing the point, the Court concluded: in enacting the handgun act, [6] the Legislature was concerned with the matter of duplicative le gislation. W here it desired no duplication, it specifically amended or sup erseded those other statutes. Id., quoting Whack, 288 Md. at 147, 416 A.2d at 270. Teel argues that the present case is different from Frazier. He relies primarily on the fact that, since Frazier, the Gene ral Assembly has greatly increased the penalty for possession of a firearm by a convicted person. Pointing to the Maryland Gun Violence Act of 1996 7 and the Responsible Gun Safety Act of 2000,8 Teel submits that the 6 The 1972 H andgun Co ntrol Act (Chapter 13 of the Acts of 19 72). 7 Chapter 562 of the Acts of 1996 (repealing Article 27, § 448, which provided for a three year sentence and adop ting § 449(e), which p rovided for a five year sentence, in its place). 8 Chapter 2 of the Acts of 2000 (amending § 449(e) to require that a person sentenced under that provision receive no t less than five years withou t the possibility of a suspended sentence or eligibility for parole during those f ive years). -6- amendm ents to the firearms statute since 1990 have drastically altered the landscape upon which the issue of merger must be examined. . . . Merger of carrying a handgun and possession of a firearm by a convicted person should now b e requir ed as a m atter of c ourse. More particularly, he argues: With respect to the amendments to Article 27, § 449, however, the Legislature did not include language specifically authorizing cumulative sentences for posses sion of a fire arm by a con victed perso n and the le sser offense of carrying a handgun. At best, the failure of the Ge neral Asse mbly to expressly address the issue of merger when it increased the punishment for possession of a firearm by a convicted person makes its intentions unclear. But this would weigh in favor of merger, not against it. . . . We disagree. T he legislative a cts on which the petitioner relies were re-codifications of the relevant general provisions relating to the illegal use of weapons. We said in Pack Shack v . Howa rd Coun ty, 371 Md. 243, 257, 808 A.2d 795, 803 (2002), that a change in a statute as part of a general re-codification will ordinarily not be deemed to modify the law unless the change is su ch that the inte ntion of the Legislature to modify the law is unmistakable (quoting Duffy v. Conaway, 295 Md. 242, 257, 455 A.2d 955, 962 (1983)). There is no indication in the Acts that the General Assembly intended to modify the holding in Frazier when it enacted the 1996 and 2000 Acts relating to the use of weapons. The contrary would appea r to be more likely. Thus Frazier, which w e decline to o verrule, is controlling. In Frazier, as we have indicated, we held that [w ]her e [th e Ge nera l Ass emb ly] desired no duplica tion, it specifica lly amended or superseded those other statutes. 318 Md. -7- at 614, 569 A.2d at 693 (quoting Whack, 288 Md. at 146, 416 A.2d at 270). Since Frazier only increases in the permissible sentences for certain offenses have been enacted by the General Assembly, which also has further limited the transferability of certain weapons and imposed addition al requir emen ts on de alers. In neither of the codifications at issue here was reference specifically ma de to avoid ance of d uplication. In neither of the two statutory modifications, has the General A ssembly indica ted that dup licative senten ces unde r separate statutory offenses, arising out of one incident involving handguns, are to be avoided. The General A ssembly is pres umed to be aware of our decisions. We recently stated in Plein v. Department of Labor, 369 M d. 421, 437 , 800 A.2d 757, 767 (2002), that: On the other hand, consistent with the Legislature s awareness of our cases, we have been reluctant to overrule our prior decisions where it is like ly that the Legisla ture, by its inaction, indicates its adoption, or at least acceptance, of the interpretation reflected in the opinion announcing the decisio n. . . . This principle was also expressed in Jones v. State, 362 Md. 331, 337-38, 765 A.2d 127, 13031 (2001), in which this Court observed: The General Assembly is presumed to be aware of this Court s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation. This p resumptio n is particularly strong whenever, after statutory language has been interpreted by this Court, the Legislature re-enacts the statute without changing in substance the language at issue. Un der these circ umstance s, it is particularly inapprop riate to depart from the principle of stare decisis and overrule our prior interpretation of the statute. (quoting Williams v . State, 292 M d. 201, 2 10, 438 A.2d 1 301, 1305 (1981) (citations omitted)); Pack Shack, 371 Md. at 257, 808 A.2d at 803 (Ge neral Asse mbly is presum ed to -8- have knowledge o f this Court s interpre tation of its enact ments) . See also Schaefer v. Anne Arundel County, 338 Md. 75, 87, 656 A.2d 751, 757 (1995) (General Assembly is presumed to have knowledge of this Court s cases prior to proposing an a mendm ent to the Sta te Constitution); Maryland Classified Employees Association, Inc. v. Schaefer, 325 Md. 19, 34, 599 A.2d 91, 98 (1991) (General Assembly is presume d to have know ledge of an agen cy s interpretations of its enactments). The General Assembly is presumed to have had full knowledge of our holding in Frazier when it enacted the leg islation on which Te el relies. Therefore, had the General Assemb ly wanted to avoid d uplication with respect to handgun sentences arising out of a single incident, it certainly could have, and we believe would have, included in that legislation a provi sion pro hibiting such se ntence s. It did not do so. Nothing but the passage of time and th e legislation o n which the petitioner s argumen t depends , which sim ply increased the penalty, have occurred since Frazier. As Judge Deborah Eyler correctly pointed out for the Court of Special Appeals: The point of reference f or legislative inte nt in Johnson [v. State, 154 Md. App. 286, 839 A.2 d 769 (20 03),] was, a s in Frazier and Whack, the 1972 H andgun Control A ct and the leg islature s concern with the increased use of handguns in the co mmiss ion of c rimes. T hat poin t of refe rence is not cha nged . . . . (Citatio ns omi tted.) The General Assembly has not seen fit to modify this Court s interpretation of the statutes at issue in Frazier, even though it has tw ice add ressed s imilar iss ues. Rather than -9- inserting a provision prohibiting duplicative sentencing, which it could have done in either of the subject enactments, 1996 or 2000, on which Teel relies, it simply increased the permitte d sente nces. Moreover, and perhaps as important, it is most unlikely that the G eneral As sembly would promulgate, on the one hand, a statutory scheme designed, i n part, to increase sentences, while, on the other hand, and at the same time, intending that the doctrine of merger would a pply and, there by, reduce the to tal sentences. T he legislature s actions in enacting the 1996 and 2000 legislation are consistent with our holding in Frazier, which we reaffirm.9 Accordingly, we affirm the judgment of the Court of Special Appeals. Woma ck v. State 10 Womack was convicted and sentenced under the same statutory scheme as applied in 9 The State argues that, applying the required evidence test, § 445 (d) and § 36B (b) contain an element that the other does not. As we hold that Frazier controls, it is not necess ary that w e addre ss or reso lve that is sue. 10 Womack was convicted of transporting a handgun, transporting a handgun in a vehicle, and possession of a handgun after conviction of a misdemeanor carrying a sentence of two years or more. These convictions were based on evidence that a handgun was found on the floor of th e backsea t of the veh icle Wom ack was driving. H e was sen tenced to six years (three years suspended, followed by two years probation) for transporting a handgun, three years to run con currently for transporting a handgun in a vehicle, and three years to run concurren tly for possession of a handgun after conviction of a misdemeanor carrying a sentence of two years or more. In an unreported opinion, the Court of Special Appeals, affirmed the sentences and convictions, but merged the sentences for transporting a handgun. We granted Womack s petition for wr it of certi orari. Woma ck v. State, 384 Md. 449, 863 A.2d 997 (20 04). -10- Teel. One of his con victions was pursuan t to § 445 (d) (1) (iii), 11 possessing a regulated firearm, having been convicted of a violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years, and the other was pursuant to § 36B (c). Lamenting the Court of Special Appeals rejection of his contention that he could not be convicted for both transporting a handgu n and po ssession of a firearm b y a person pre viously convicted of a misde meanor, he presen ts a single argu ment to this C ourt: [Whether the] Court of Special A ppeals erred by ruling that [W omack] c ould be convicted of carrying a handgun as w ell as poss essio n of a fire arm by a person previously convicted of a misdemeanor carrying a statutory penalty of more th an two years. After discussing the relatively similar chronological history of the statu tes in this case and those in the companion cases, the petitioner makes a similar argument to that made in those cases: The legis latur e clearly intended not to a llow conv ictions for bo th carrying a handgun an d possession of a firearm by a misdem eanant. When the General Assembly included persons previously convicted of certain misdemeano rs in § 445, the legislators were aware of this Court s 1990 decision in Frazier v. Sta te, supra. They could foresee that the problem of whether persons could be convicted of both crimes would arise. They knew that, if they wanted to allow punishments for both crimes, they should say so in the statute. They failed to do so. Th erefore, it is apparent that they did not intend to allow dual punishment for carrying a handgun and possession of a firearm by a misd emean ant. For the same reasons stated in Teel, supra, we reject that argument. The judgment of 11 The sentence provision for § 445 (d) (1) (iii) was found in § 449 (f); a person convicted of violating that crime cou ld receive a fine not to exceed $10, 000 or imprisonment not to exceed five years. -11- the Court of Special Appeals is affirmed. Pye v. State 12 A. As men tioned ab ove, Pye presents two issues for our review. The first is the same one presented in both Teel, supra, and Womack, supra: Should this Court s prior decision in Frazier v. Sta te, that carrying a handgun does not merge into possession of a firearm by a convicted person be inapplicable to the instant c ase becau se the Ge neral Asse mbly has gre atly increased th e penalty for possession of a firearm by a convicted person since the Frazier ruling? We resolve it in the same way that we resolved the issue in the prior cases: for the reasons stated in Teel, supra, we answer the above question in the negative. B. The additional issue Pye presents for our consideration is: Did the trial judge e rr in denying [Pye s] motions to dismiss and to acquit an d by sentencin g him to a f ive year no pa role sentence for possession of a firearm by a person with a prior conviction under Article 27, § 449 (e) where [Pye] previo usly 12 A police detective respo nded to a hospital w here Pye was being tre ated for a gunshot wound. Pye informed the detective that he had a handgun in his car. The weapon was seized from under the passenger seat along with a small amount of marijuana from an ashtray. Pye was then 19 years of age. He was arrested, tried, and convicted. As relevant to the issues in th is case, he was sentenced to five years without the possibility of parole for possession of a firearm by a person w ith a prior crim inal convic tion and to three years to run concurren tly for the conviction of wearing, carrying, or transporting a handgun in a vehicle. Pye appealed his convictions to the Court of Special Appeals which, in an unreported opinion, affirmed his convictions and sen tences. This Court gran ted certiorari to address the two iss ues abo ve. Pye v. State, 384 M d. 448, 8 63 A.2 d 997 ( 2004) . -12- had been convicted of a felony but not a crime of violence? Its answer depends upon the interpretation of § 449 in an attempt to determine whether §§ 445 and 449(e) require a prior conviction of both a crime of violence and a crim e of f elon y, or whether a conviction of one or the other, but not both, will suffice. The petitioner was charged with possessing a firearm after having previously been convicted of a felony narcotic violation.13 He moved, prior to trial, to dismiss that charge. He argued that such a conviction required proof of conviction of both a felony and a crime. The trial court reserved its ruling on the issue. At the close of evidence, Pye, making the same argu ment, mo ved for jud gment of acquittal as to th at count. The trial court denied the motion for judgment of acquittal, stating: All right, for the reasons [] this Court has stated previously on the record, [], there is no need for the State to prove a conviction [], for a crime of violence and for that reason, as well as the court s reasons with respect to the reservation of 445(c) instead of 445(d), the Court is denying the motion for [a]cqu ittal. . . . The trial court then instructed the jury that the parties have stipulated that the defendant has been con victed prev iously of an offense which conviction prohibits him from possessing a 13 The first co unt of the in dictment ag ainst Pye charg ed, in relevan t part: [T]he above named DEFENDA NT . . . . , having been CONVICTED of a NARC OTIC VIOLATION under Article 27 Section 286 or 286A or 286 C of the Annota ted code o f Maryland , to wit: Possession with intent to Distribute Controlled Dangerous S ubstance, under B altimore City Circuit Court Case # 200067065 on or ab out Jan uary 11, 2 000, did unlawfully POSSESS .357 Magnum in violation of Article 27, Section 445c(1)(iii) of the Annotated Code of M aryland. -13- handg un. 14 Section 449 (e), the statute under which Pye was sentenced after being convicted of the first count, provides: (e) Illegal posses sion of firea rm with certain previous convictions. A person who was previously convicted of a crime of violence as define d 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 gu ilty of a felony and upon co nviction sha ll be imprisoned for not less than 5 years, no part of which may be suspended and the person may not be eligible for parole. Each violation shall be consid ered a s eparate offen se. Art. 27, § 449(e) (emphasis added). Section 445 (d)(1)(i) and (ii), which § 449 (e) reference s, provide, in re levant part: (d) Restrictions on possession In general. A person may not possess a regulated firearm if the person: (1) Has been convicted of: (i) A crime of violenc e; [or] (ii) Any violation classified as a felony in this State[.] . . . The State argues that the language of (d)(1)(i) and (ii) controls. We disagree. We recently were confronted with the same issue in Stanley v. State, 390 Md. 175, 887 A.2d 1078 (2005); namely, whether a person must be convicted of both a crime of violence an d a felony in order to be subjected to an enhanced sentence. We held that the word and in § 44 9(e) (emp hasized in th e quote of that subsec tion) controls because it 14 No issue is presented in this case in respect to the instruction s use of the term stipula ted. -14- requires that convictions for a prior offense or offenses must be both a crime of violence and a felony. As we stated in Stanley: We ag ree with the petitioner and with Judge Davis, § 449(e) is clear and unam biguou s. By its clea r and ex plicit term s, to be subjected to the enhanced penalty it prescribes, a person must be in illegal possession of a firearm . . . and been convicted previously of a crime of violence . . . or been convicted of certain enumerated drug related offenses. 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 convic tion un der § 44 5(d)(i) a nd (ii). The definition of the illegal p ossession ta rgeted for p urposes o f this statute there are two other proscribed possessions listed in § 445 (d) c onsists of two elem ents and is stated in the conjun ctive. Con sequently, both elements must be m et; it is not sufficie nt if only one is p resent. 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 o ne, mu st be esta blished . . . . Stanley, 390 Md. at 183, 887 A.2d at 1082-83 (emphas is added) (c itations omitted ) (footnote omitted). In the case sub judice, [t]he State agree[d] th at the questio n in the pres ent case is the same as that presen ted in Stanley v. State, 157 M d. App . 363, [cert. granted], 383 Md. 256, . . . argued on Jan uary 11, 2 005. A ccordin gly, our holdin g in Stanley controls and we answer the question posed by Pye in the affirmative. The trial court should have granted the motion for judgment of acquittal with respect to the first count. Thus, we reverse Pye s conviction for possession of a firearm by a person with a previous conviction and vacate that -15- sentence.15 IV. For the forego ing reason s, we hold that the offenses of carrying a handgun and possession of a firearm by a convicted person do not merge. We also hold that, under Stanley, a person sentenced under Article 27, § 449(e) must have been convicted of a crime or crimes that a re both crimes of violence and also felon ies in order to receive the man datory minimum sentence provided therein. IN CASE 123, JUDGMENT AFFIRMED. COSTS TO BE PAID BY TEEL. IN CAS E 114, JUDGMENT AFFIRM ED, CO STS TO BE PA ID BY WOMACK. IN CASE 113, JUDGMENT REVERSED AS TO THE FIRST COUNT AND THE SENTENCE ON THAT COUN T IS VACATED. JUDGME NT, IN CASE 113, OTHERWISE AFFIRMED. COSTS IN CASE 113, TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. 15 Because of our holding on the Frazier issue, the two sentences that were not merged by the Pye trial court into the first count did not merge by operation of law into that first count. Acco rdingly, even though we reverse the conviction and vaca te the senten ce in respect to that first count, the other sentences are not affected by the reversal of Coun t I. They are a three year concurrent sentence for wearing, carrying, or transporting a handgun in a vehicle and a one year consecutive sentence for possession of marijuana. -16-

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