887 A.2d 549 (Md. 2005), 14, Gilmer v. State

Docket Nº:14
Citation:887 A.2d 549, 389 Md. 656
Opinion Judge:[9] The opinion of the court was delivered by: Battaglia, J.
Party Name:Anthony GILMER v. STATE of Maryland.
Case Date:December 07, 2005
Court:Court of Appeals of Maryland

Page 549

887 A.2d 549 (Md. 2005)

389 Md. 656

Anthony GILMER


STATE of Maryland.

No. 14

Court of Appeals of Maryland

December 7, 2005

Page 550

Amy E. Brennan, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner.

Jeremy M. McCoy, Asst. Atty. General (J. Joseph Curran, Jr., Atty. General, on brief), Baltimore, for Respondent.



[389 Md. 658] Petitioner, Anthony Gilmer, pursuant to Maryland Code (2001), Section 6-218(b)(2) of the Criminal Procedure Article, 1 seeks review of a judgment of [389 Md. 659] the Court of Special Appeals affirming the Circuit Court's refusal to give him credit for time served for charges unrelated to those for which he was being sentenced, that the State, without a plea bargain, had nolle prossed 2 551

prior to sentencing. The specific question presented by Gilmer is:

Is a nolle prosequi the equivalent of a "dismissal" for purposes of Criminal Procedure Article Section 6-218(b)(2) which requires a trial court to give credit at sentencing for pre-trial custody on an unrelated offense that results in a "dismissal or acquittal" where a warrant or commitment for the convicted offense was filed during that custody?

Gilmer v. State, 387 Md. 122, 874 A.2d 917 (2005). We hold that, under the circumstances of this case, a nolle prosequi is the equivalent of a "dismissal" for the purpose of Section 6-218(b)(2) of the Criminal Procedure Article.

I. Background

On September 1, 2002, Anthony Gilmer was in pretrial detention at the Baltimore City Detention Center on a charge of attempted murder and had been at the Center since July 2, 2001, a period of 426 days. On September 1, 2002, Gilmer had an altercation with a fellow detainee, Jonathan Blue, over whose turn it was to use the telephone during "passive recreation" time in the "day room," a place where detainees are permitted to engage in activities such as playing cards, watching television, and using the telephone. Gilmer and Blue were [389 Md. 660] separated but then permitted to return to the day room, where Gilmer and Blue continued to argue, and Gilmer, thereafter, repeatedly stabbed Blue with a silver lock blade knife.

Gilmer was charged with attempted first degree murder in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 411A (b) of Article 27, 3 first-degree assault in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A-1 of Article 27, 4 openly wearing and carrying a dangerous and deadly weapon with the intent of causing injury in an unlawful manner in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 36 of Article 27, 5 reckless

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endangerment in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A-2 of Article 27, 6 second-degree assault in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A of Article 27, 7 and attempted second-degree murder in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 411A (a) of Article 27. 8

On June 13, 2003, a jury found Gilmer guilty of first and second-degree assault. At sentencing the Circuit Court judge merged the second degree assault into the first degree assault and sentenced Gilmer to fifteen years incarceration. The judge, however, refused to credit the 426 days of confinement [389 Md. 662] that Gilmer had already served on the attempted murder charges that had been nolle prossed by the State prior to sentencing. Gilmer filed an unsuccessful motion for a new trial prior to noting an appeal to the Court of Special Appeals.

Before the Court of Special Appeals, Gilmer contended that the Circuit Court erred in refusing to give him credit for the time he had served in detention for the attempted murder charge, pursuant to Section 6-218(b)(2) of the Criminal Procedure Article and that it also erred in refusing to ask a voir dire question that he had proposed. 9 Gilmer v. State, 161 Md.App. 21, 24, 866 A.2d 918, 920 (2005). The Court of Special Appeals affirmed the denial of the time served credit decision of the trial court and held that a nolle prosequi is not a dismissal under the plain meaning of Section 6-218(b)(2), and therefore,

Page 553

Section 6-218(b)(3) 10 was applicable, and that, pursuant to Section 6-218(b)(3), which allows the court to exercise its discretion in determining whether to grant credit, the judge did not abuse his discretion. Id. at 31, 866 A.2d at 924. To hold otherwise, it noted, could potentially result in double credit received by Gilmer for time served were he later prosecuted for the attempted murder charges. Id. at 29, 866 A2d. at 923.

II. Standard of Review

The construction of Sections 6-218(b)(2) and (b)(3) of the Criminal Procedure Article implicate a de novo review. Cain v. State, 386 Md. 320, 327, 872 A.2d 681, 685 (2005). Our goal, when interpreting statutes, is to "identify and effectuate the legislative intent underlying the statute(s) at issue." Id. ; Serio v. Baltimore County, 384 Md. 373, 863 A.2d 952, 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 [389 Md. 663] Md. 318, 327, 842 A.2d 1, 6 (2003), in turn quoting Derry v. State, 358 Md. 325, 335, 748 A.2d 478, 483 (2000)); Pete v. State, 384 Md. 47, 57-58, 862 A.2d 419, 425 (2004); Graves v. State, 364 Md. 329, 346, 772 A.2d 1225, 1235 (2001). The best source of legislative intent is the statute's plain language, and when the language is clear and unambiguous, our inquiry ordinarily ends there. Cain, 386 Md. at 327, 872 A.2d at 685; Serio, 384 Md. at 373, 863 A.2d at 962; Pete, 384 Md. at 57-58, 862 A.2d at 425; Drew, 379 Md. at 327, 842 A.2d at 6; Beyer v. Morgan State Uni versity, 369 Md. 335, 349, 800 A.2d 707, 715 (2002); Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 1350 (1995). when there is more than one reasonable interpretation of a statute, however, the statute is ambiguous. Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1114 (2005); Melton v. State, 379 Md. 471, 476-77, 842 A.2d 743, 746 (2004). when the statutory language is ambiguous, we resolve that ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. See Moore, 388 Md. at 453, 879 A.2d at 1114; Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004); Melton, 379 Md. at 476-77, 842 A.2d at 746. We consider not only the ordinary meaning of the words, but also how that language relates to the overall meaning, setting, and purpose of the act." Moore, 388 Md. at 453, 879 A.2d at 1114; Deville, 383 Md. at 223, 858 A.2d at 487. The statute's provisions must be read in "a commonsensical perspective to avoid a farfetched interpretation." Cain, 386 Md. at 328, 872 A.2d at 685, Serio, 384 Md. at 373, 863 A.2d at 962; Graves, 364 Md. at 346, 772 A.2d at 1235; Frost v. State, 336 Md. 125, 137, 647 A.2d 106, 112 (1994); Dickerson v. State, 324 Md. 163, 171, 596 A.2d 648, 652 (1991). We construe the statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Moore, 388 Md. at 453, 79 A.2d at 1115; Comptroller v. Phillips, 384 Md. 583, 865 A.2d 590 (2005).

III. Discussion

Gilmer contends that Section 6-218(b)(2) is ambiguous because it does not define the term "dismissal." He [389 Md. 664] contends that, based on the two purposes set forth by the Legislature in enacting Section 6-218 of the Criminal Procedure Article, namely to avoid "banked time" 11 and to

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eliminate "dead time," 12 it is only proper that the word "dismissal" in Section 2-618(b)(2) of the Criminal Procedure Article be interpreted to include disposition of a case by nolle prosequi, even in the absence of a plea bargain relating to the charge, so that the trial judge was required to give him credit for the time he served in pre-trial detention for attempted murder. Additionally, he argues, Maryland Rule 4-247 makes clear that a nolle prosequi is a dismissal, and, the fact that a charge or charges can still be prosecuted after being nolle prossed is not dispositive because a dismissal also may permit prosecution. By enacting Section 2-618(b)(2), Gilmer asserts that Maryland created a liberty interest 13 for him to obtain credit for his time served and that denying him credit for time served is denying a right protected by the Fourteenth Amendment.

The State, conversely, contends that the Circuit Court properly exercised its discretion under Section 6-218(b)(3) in refusing to award Gilmer credit for his time served on the nolle prossed attempted murder charge because the plain meaning of Section 6-218(b)(2) refers only to an acquittal or dismissal, whereas Section 6-218(b)(3) refers to any case "other than a case described in paragraph (2)." The State argues that only a nolle prosequi entered as part of a plea agreement is the equivalent of a dismissal because the nolle prosequi then has the effect of precluding future prosecution and that to allow any nolle prosequi to constitute a dismissal [389 Md. 665] could create a windfall of double credit for the defendant if he or she were ever convicted of the initial offense which was originally nolle prossed. The State asserts that Section 6-218(b)(2) is clear; it does not list nolle prosequi, and thus, to interpret the word "dismissal" to include nolle prosequi would thereby render Section 6-218(b)(3) a nullity.

A. Section 6-218 (b)(2) & (3)

The precursor of Sections 6-218 (a) and (b) was Section 638C(a) of Article 27, was enacted by the General Assembly in 1974, and provided:

Any person who is convicted and sentenced shall receive credit against the term of a definite or life sentence or credit against the minimum and maximum terms of an indictment sentence for all time...

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