Beverly v. State

• Decision Date: 01 September 1997
• Docket Number: No. 58,58
• Citation: 349 Md. 106,707 A.2d 91
• Parties: Victor Tyrone BEVERLY v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 106

349 Md. 106

707 A.2d 91

Victor Tyrone BEVERLY v. STATE of Maryland.

No. 58, Sept. Term, 1997.

Court of Appeals of Maryland.

March 17, 1998.

Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (retired), Specially Assigned.

CHASANOW, Judge.

In this case we are called upon to decide whether a trial court is bound to impose a mandatory minimum sentence pursuant to a subsequent offender statute where the defendant is a subsequent offender but there is a plea agreement whereby the State agreed not to treat the conviction as a subsequent offense. For the reasons set forth below, we hold that the decision to pursue a mandatory minimum sentence under a subsequent offender statute is a matter of prosecutorial discretion and the court is, therefore, not bound to impose a mandatory sentence if the prosecution either does not send, or later withdraws, notice of the defendant's prior convictions. Additionally, we hold that a court not only may, but should, permit the State to withdraw the subsequent offender notice upon request.

I.

A.

Fundamental to an understanding of this case are both Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 286(c), ¹ which sets forth a mandatory sentence for subsequent offenders, and Maryland Rule 4-245(c), which requires the State to give a defendant notice of the defendant's prior convictions where those prior convictions would subject the defendant to a mandatory sentence under a subsequent offender statute. We, therefore, begin our analysis with a discussion of the relevant rule and statutory provision that guide us in this case.

Article 27, § 286(a) prohibits, inter alia, the manufacturing of, distribution of, and possession with intent to manufacture or distribute controlled dangerous substances. Subsections (b)(1) and (b)(2) set forth the penalty for violating subsection (a) with respect to specified Schedule I and II drugs. Subsection (b) provides in pertinent part: "Any person who violates any of the provisions of subsection (a) of this section with respect to: (1) A substance classified in Schedules I or II which is a narcotic drug is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both." Significant to this case, Art. 27, § 286(c) further provides: "A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imprisonment for not less than 10 years if the person previously has been convicted" of any of these offenses. Art. 27, § 286(c)(1). This sentence, with one very limited exception not applicable in this case, is to be served without parole. Art. 27, § 286(c)(2).

Maryland Rule 4-245 provides for the defendant to be given notice of the defendant's alleged prior convictions where the defendant is subject to a mandatory penalty or where the defendant is subject to an additional non-mandatory penalty which the State's Attorney intends to pursue. Subsection (c) of Md. Rule 4-245, relevant here because of the mandatory language in Art. 27, § 286(c), reads as follows:

"Required Notice of Mandatory Penalties.--When the law prescribes a mandatory sentence because of a specified previous conviction, the State's Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in circuit court or five days before sentencing in District Court. If the State's Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement."

Subsection (e) of Md. Rule 4-245 requires the court to make a determination before sentencing the defendant as to whether the defendant is a subsequent offender. The State bears the burden of proving the prior offense beyond a reasonable doubt. Thus, unless the defendant waives this notice requirement, in order for a defendant to receive a mandatory sentence under a subsequent offender provision, the defendant must first receive notice from the State of the alleged prior conviction, and the State must prove beyond a reasonable doubt the factual basis for the enhanced sentence. See Jones v. State, 324 Md. 32, 595 A.2d 463 (1991), where we stated:

"Where the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment."

324 Md. at 37, 595 A.2d at 465.

B.

We next turn to the facts of the case sub judice. Victor Tyrone Beverly was charged with twelve counts of drug-related offenses pursuant to Art. 27, § 286. Beverly had previously been convicted under Art. 27, § 286, which provides that a subsequent offender "shall be sentenced to imprisonment for not less than 10 years" without parole. Art. 27 § 286(c). Beverly was given notice of mandatory penalties as required by Maryland's subsequent offender rule, Md. Rule 4-245.

On the day of trial, the State, Beverly, and Beverly's counsel (Mr. Guth) appeared before the trial judge. We glean from the record that a plea agreement apparently had been reached because the discussion began with the State explaining the terms of that agreement, that is, that there would be a recommendation of a sentencing cap of ten years presumably with the possibility of parole. The State, thus, would be withdrawing the subsequent offender notice that required a minimum of ten years imprisonment without parole. In exchange for the State's sentencing concession, it appears that Beverly was prepared to plead guilty. The State's Attorney, Ms. Erisman, who had "inherited the case from someone else," expressed confusion over what the mandatory and other sentencing guidelines called for under the circumstances of Beverly's case. "[W]ith that uncertainty" in mind, Ms. Erisman indicated that her "recommendation would be a cap of ten years." ² The judge, however, expressed a belief that the court was not permitted by law to sentence Beverly to anything less than ten years without parole because Beverly was a subsequent offender and had been given the required notice under Maryland Rule 4-245. The following colloquy ensued:

"THE COURT: [T]he court reads the statute to indicate that the court cannot give a less than ten-year sentence.

MS. ERISMAN: If I were to invoke the mandatory.

THE COURT: Is that required?

MS. ERISMAN: Yes. The State must invoke the mandatory.

THE COURT: An invocation of the mandatory? See, it doesn't say that in the statutes, though.

MS. ERISMAN: My understanding, Your Honor, is that the purpose of plea discussions on a pre-trial basis if the State does not invoke the mandatory, then the court is free to give whatever sentence the court deems appropriate in the case.

THE COURT: Where does it say that? Where does that come from? I see, all I'm looking at is ... Article 27, Section 286 subsection (c). A person who is convicted under Section [b](1) or Subsection (b) of this section, [b](2), shall be sentenced to imprisonment for not less than ten years if the person previously has been convicted under Subsection [b](1) or Subsection [b](2) or of conspiracy or of an offense under the laws of another State, that would be a violation of the subsection.

MS. ERISMAN: Your Honor, I believe that the Maryland Rules might provide us with the enlightenment that the court seeks, and I believe would be an area of Rule 4-245 or within one of those pages."

The judge then read from the rule, noting that the way she "read Article 27, Section 286, Subsection [c](1), the sentence is mandatory." The discussion continued:

"I read that as a mandatory sentence. And therefore, that it is governed by ... Subsection [c], requiring that the State's Attorney serve a notice fifteen days before sentencing. Okay. So, that means that if you serve a notice today, then the court must postpone the sentencing for fifteen days unless Mr. Beverly agrees to waive that requirement. That's how I read it....

MR. GUTH: Your Honor, it is my understanding that if Mr. Beverly agreed to be sentenced today, the State's offer of ... a cap of ten years with parole would be available to him. Or rather, that would--actually he would not be given an opportunity then to argue for less.

* * *

THE COURT:--he can argue all day for less, but I understand the statute to say I don't have the authority, that the sentence is absolute; it must be at least ten years.

MR. GUTH: You mean if the State decided not to invoke that mandatory penalty, if they withdrew their invocation of that penalty, you know, I--

THE COURT: Well, see, that's not the way I understand it. If they withdraw their application of that penalty, they can do whatever they want, but the statute tells me I must, that I must give that penalty, that I don't have any choice. And if the State hasn't given him notice by this time, unless he waives the notice, then I must postpone. The court shall postpone sentencing at least fifteen days unless the defendant waives the notice requirement. And the court shall impose this sentence if he were found guilty. Now, it doesn't say I shall give him 20 years, which is, ... I guess, what I could do technically if we're talking about possession with intent to distribute cocaine, for instance. Then the court can give him twenty times two.

MR. GUTH: But the court--you're saying the court is bound to give him ten years without parole?

THE COURT: That's the way I read the statute."

The State's Attorney then indicated her belief that it was in fact common practice...