Brown v. Handgun Permit Review Bd.

• Decision Date: 28 October 2009
• Docket Number: No. 2511, September Term, 2007.,2511, September Term, 2007.
• Citation: 188 Md. App. 455,982 A.2d 830
• Parties: Ralph Coleman BROWN, Jr. v. HANDGUN PERMIT REVIEW BOARD.
• Court: Court of Special Appeals of Maryland

982 A.2d 830

188 Md. App. 455

Ralph Coleman BROWN, Jr. v. HANDGUN PERMIT REVIEW BOARD.

No. 2511, September Term, 2007.

Court of Special Appeals of Maryland.

October 28, 2009.

Walter S. Booth, Bethesda, for Appellant.

Mark H. Bowen (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: SALMON, MEREDITH and RAYMOND G. THIEME JR., (Retired, specially assigned), JJ.

MEREDITH, J.

The Maryland State Police ("MSP") denied the application of Ralph Coleman Brown, Jr., appellant, to renew his permit to carry, wear, or transport a handgun. Initially, the MSP informed Brown by letter that his application was denied due to his "propensity for instability." But, at an informal review of the decision to deny, the MSP informed Brown in person that the real reason was his 1984 conviction in the District of Columbia for possession of a dangerous weapon. That misdemeanor offense carried a maximum sentence of one year of imprisonment in the District of Columbia. Brown was sentenced to probation.

Despite the fact that Brown had not been sentenced to imprisonment, the MSP took the position that Brown had been convicted of an offense that constitutes a "disqualifying crime" as defined by Maryland Code (2003), Public Safety Article ("PS"), § 5-101(g)(3), and he is therefore ineligible under PS § 5-133(b)(1) to possess a handgun. The MSP reached this conclusion by relying upon a recently issued opinion from the Maryland Attorney General, 91 Op. Att'y Gen. 68, 80 (Md. 2006), that had concluded:

The phrase "disqualifying crime" includes out-of-State offenses, as well as those committed in Maryland. An offense in another state that would be classified as a misdemeanor in Maryland with a potential penalty under Maryland law in excess of two years imprisonment falls within that definition. Thus, an individual who has been convicted of such an offense may not possess a regulated firearm in Maryland.

Applying the analysis set forth in 91 Op. Att'y Gen. 68, the MSP reasoned that the D.C. crime of possession of a dangerous weapon is equivalent to the Maryland crime of wearing or carrying a dangerous weapon, a misdemeanor which is punishable in Maryland by imprisonment of up to three years, and, for that reason, is clearly a disqualifying crime within the meaning of PS § 5-101(g)(3).

Brown appealed to the Handgun Permit Review Board ("the Board"), appellee, which adopted the reasoning of the MSP and affirmed the denial of Brown's permit application. Brown then petitioned for judicial review in the Circuit Court for Frederick County. The circuit court affirmed the Board's denial of the permit application.

On appeal to this Court, Brown presents four questions, which he phrased as follows:

1 [ ]. Is Attorney General's Opinion, 91 Op. Atty. Gen. 68, unconstitutional, unenforceable, and in conflict with federal law? Additionally, is the MSP, H[P]RB, and Circuit Court for Frederick Cou[nty]'s reliance upon this A.G. Opinion misplaced as a result, since the Opinion holds that a person can be disqualified from possessing a firearm because Maryland law enforcement personnel may apply the Maryland penalty to a misdemeanor conviction from another jurisdiction, and further, that Maryland may apply the penalty as it is at the current time, not as it was at the time of the offense to any prior conviction?

[2]. Is the Attorney General's Opinion, 91 Op. Atty. Gen. 68, in conflict with Maryland Law, wherein it would render all guilty pleas null and void because they would no longer be "knowing and voluntary" since the penalty for the offense could change at any moment and be applied to the prior conviction?

3. If this Court finds the Attorney General's Opinion, 91 Op. Atty. [Gen.] 68, to be valid and good law, is the Maryland offense of "wearing and carrying" with intent to injure the equivalent offense to the D.C. offense of "possession" of a prohibited weapon?

4. Was Mr. Brown denied appropriate procedural due process, as required under the Administrative Procedures Act, Maryland Law, and the Maryland Declaration of Rights, when the formal written notice apprising him of the reason for which he was denied did not use the same reason as stated at his informal review and is not the same as the reason stated at his HPRB hearing in this matter?

With respect to the first three questions, we note that the Attorney General's opinion itself is not the direct object of our judicial review. Rather, it is the ruling of the Board that we are called upon to review. Nevertheless, we conclude that a fair reading of Brown's first three questions, when considered together, is: (1) whether the Board made an error of law by adopting the legal analysis set forth in 91 Op. Att'y. Gen. 68, and, (2) if not, whether the Board erred in concluding that Brown was convicted of a misdemeanor in the District of Columbia for which the equivalent Maryland offense carries a potential statutory penalty of more than two years. We conclude that the Board did not err in either determination. Further, we answer "no" to Brown's fourth question. Accordingly, we affirm the judgment of the circuit court, which affirmed the ruling of the Board.

FACTS AND PROCEDURAL HISTORY

Maryland law requires a permit to carry, wear, or transport a handgun. PS § 5-303. Pursuant to PS § 5-306(a), if the applicant is not under the age of 30, the Secretary of the MSP

shall issue a permit within a reasonable time to a person who the Secretary finds:

(1) is an adult;

(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or

(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);

(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;

(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; and

(5) based on an investigation:

(i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another; and

(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.[¹]

The permit expires two years after issuance, but may be renewed for successive three year periods "if, at the time of an application for renewal, the applicant possesses the qualifications for the issuance of a permit and pays the renewal fee...." PS § 5-309. If the MSP denies a permit application, the applicant is entitled to an informal review by the MSP pursuant to PS § 5-311. And if the informal review does not resolve the dispute, the applicant may request a review by the Board pursuant to PS § 5-312. The Board may receive and consider additional evidence, and may either "sustain, reverse, or modify the decision of the Secretary" of the MSP. PS § 5-312(d)(2) provides: "If the action by the Board results in the denial of a permit or renewal of a permit or the revocation or limitation of a permit, the Board shall submit in writing to the applicant or the holder of the permit the reasons for the action taken by the Board."

In 1997, Brown first obtained a handgun permit. Over the course of the following years, he successfully renewed that permit twice. Handgun permit applicants must disclose any crimes of which they have been convicted. On each of his applications Brown noted that, as a result of a November 1983 incident, he had been convicted of possession of a prohibited weapon in January 1984, in the District of Columbia. D.C.Code § 22-3214 (1981) (recodified at D.C.Code § 22-4514 (2008)).² At the time of Brown's conviction, as today, that crime was a misdemeanor under D.C. law, punishable by up to one year in prison. D.C.Code §§ 22-3214(c), 22-3215 (recodified at D.C.Code § 22-4515 (2008)); see Henson v. United States, 399 A.2d 16, 20 (D.C.1979) ("Largely for historical reasons, the courts in this jurisdiction generally define `felony' as any offense for which the maximum penalty provided for the offense is imprisonment for more than one year; generally, all other crimes are misdemeanors.").

PS § 5-133(b) states: "A person may not possess a regulated firearm if the person: (1) has been convicted of a disqualifying crime...." "Regulated firearms" are a class of firearms that includes handguns. PS § 5-101(p). PS § 5-101(g) defines a "disqualifying crime" as "(1) a crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years."³

Before the spring of 2006, the MSP had interpreted PS § 5-101(g)(3)—and its statutory predecessors—such that Brown's D.C. conviction was not a disqualifying crime. The MSP's position with respect to Brown's D.C. conviction changed after the Maryland Attorney General issued an opinion on March 27, 2006, interpreting PS § 5-101(g)(3). 91 Op. Att'y Gen. 68 (Md. 2006). In response to an inquiry from the Superintendent of the MSP, the Attorney General opined that, when the MSP applies PS § 5-101(g)(3) to an out-of-state conviction, the agency should examine the equivalent Maryland offense that exists at present (rather than the equivalent extant at the time of the conviction). It was the Attorney General's opinion that, if the Maryland equivalent is a misdemeanor that carries a potential penalty in Maryland of more than two years' imprisonment, then, under Maryland's firearms statutes, the person has been convicted of a disqualifying crime, and cannot legally possess a regulated firearm. Id. at 68.

Two months after the Attorney General's opinion was published, on May 25, 2006, Brown applied for the third renewal of...