DeLeon v. State
| Decision Date | 01 September 1993 |
| Docket Number | No. 1952,1952 |
| Citation | 102 Md.App. 58,648 A.2d 1053 |
| Parties | Robert DeLEON, Thomas Foster and Rosa Rodriguez v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Melissa M. Moore, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellants.
Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and William R. Hymes, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.
Argued before WILNER, C.J., MOYLAN, J., and JAMES S. GETTY, Judge (Retired), Specially Assigned.
When a statutory sentencing provision for an inchoate crime, such as attempt or conspiracy, expressly sets as the maximum sentence for such inchoate crime the maximum sentence that has been provided for the substantive "target" crime, to what extent, if any, does that sentencing ceiling embrace any mandatory minimum sentencing requirements that have been imposed on the punishment for the substantive offense? Analytically, the answer should be the same whether the mandatory minima have been established across the board for the substantive offense or whether they apply only to certain violators of the substantive offense who qualify for enhanced punishment.
A closely related question is whether increasing the maximum punishment for the substantive crime, either by lengthening the term of imprisonment or by making the conditions thereof more severe, not across the board generally but only for certain violators who qualify for enhanced punishment will correspondingly increase the maximum available penalty for those special perpetrators of the inchoate crimes who meet the same qualifications. These are problems with a number of permutations.
The appellants, Robert DeLeon, Thomas Foster, and Rosa Rodriguez, were all found to be guilty upon their pleas of guilty in the Circuit Court for Howard County. They each entered a guilty plea to the charge of conspiracy to distribute heroin, as well as to other charged conspiracies to violate the Controlled Dangerous Substances Act in various ways.
At the time of sentencing, the convictions for the other conspiracies were either merged into the convictions for conspiring to distribute heroin or, in two instances, the sentences were made concurrent with the sentences for conspiring to distribute heroin. For conspiracy to distribute heroin, the three appellants were given sentences, respectively, of fifteen years, twenty years, and twenty years, with various provisions dealing with the suspension of part of the sentences and with probation to follow.
The common denominator sentencing provision, and all that concerns us here, was that, pursuant to Art. 27, § 286(f)(3), the first five years of each sentence was ordered to be served without the possibility of parole. The single contention now raised is that that no-parole provision was beyond the trial court's authority to impose. The appellants, accordingly, filed Applications for Leave to Appeal, which were granted by this Court.
The modern crime of conspiracy is essentially a product of the English Court of Star Chamber and especially its 1611 decision in The Poulterer's Case, 77 Eng.Rep. 813. As a common law crime brought into Maryland with the first settlement and guaranteed by Article 5 of the Maryland Declaration of Rights, it carried with it the common law penalty of any sentence deemed appropriate in the sound discretion of the trial court, unless some other sentencing provision has been enacted by the Legislature. 1 The one minimal limitation early placed on such discretionary sentencing was that the sentence could not be cruel or unusual within the contemplation of the Eighth Amendment of the United States Constitution or Article 25 of the Maryland Declaration of Rights.
There are now several sentencing provisions for conspiracy that have been provided by the Legislature. As their very wording reveals, however, they are not authorizing provisions creating in the trial court the authority to impose sentence. They are, quite to the contrary, limiting provisions, restraining, to the extent spelled out, the otherwise free-wheeling authority of the trial court to impose any sentence subject only to the constraints of its sound discretion and the constitutional inhibitions. The general restraining provision is that now spelled out by Article 27, § 38:
The punishment of every person convicted of the crime of conspiracy shall not exceed the maximum punishment provided for the offense he or she conspired to commit. (emphasis supplied).
That, by its very terms, is a limiting provision, not an authorizing provision. Implicitly, however, a sentencing provision setting an upper limit confirms that the common law's discretion as to sentencing is free to operate up to that limit. With respect to the doctrinally indistinguishable statutory limit imposed on sentencing for the inchoate crime of attempt, we observed in Walker v. State, 53 Md.App. 171, 187, 452 A.2d 1234 (1982):
We read into that explicit legislative prohibition against exceeding certain limits, an implicit legislative approval of going up to those limits.
See also State v. Hardy, 53 Md.App. 313, 315, 452 A.2d 1299 (1982), aff'd, 301 Md. 124, 482 A.2d 474 (1983).
For violations of the Controlled Dangerous Substances Subtitle, § 290 provides an indistinguishable sentencing limitation as far as those particular conspiracies are concerned. It does embrace as well, however, a sentencing "cap" for another inchoate crime, attempt, 2 and for attempt's seemingly indistinguishable clone of "endeavoring." 3 Section 290 provides Except as provided otherwise under this subheading, any person who attempts, endeavors or conspires to commit any offense defined in this subheading is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt, endeavor or conspiracy. (emphasis supplied).
The underlying crime toward which the appellants conspired was that spelled out by § 286(a)(1), which provides, in pertinent part:
[I]t is unlawful for any person: to ... distribute ... a controlled dangerous substance ...
If the controlled dangerous substance that the appellants conspired to distribute, moreover, was a narcotic drug, such as the heroin in this case, subsection (b)(1) then provides that the violator "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." For conspiring to violate the combination of subsections (a)(1) and (b)(1), § 290 would thus seem to provide the corresponding limitation that the sentence not exceed imprisonment for twenty years or a fine of $25,000 or both, unless some greater sentencing possibility has been "provided otherwise under this subheading."
From this point on in this opinion and simply for the sake of linguistic simplicity, we are going to discuss the sentencing question only in terms of its imprisonment aspect. That is the only variable that concerns us in this case. Our failure to mention the alternative or additional possibility of a monetary fine is nothing more than an avoidance of a needless repetition of an alternative and/or additional sentencing possibility that does not affect this decision.
The substantive crime toward which the appellants conspired carries a presumptive maximum term of imprisonment of twenty years. The presumptive maximum sentence for the inchoate conspiracy is, thereby, also twenty years. If the maximum for the substantive crime were to be raised to forty years, the maximum for the conspiracy would correspondingly rise with it. If the maximum for the substantive crime were reduced to ten years, the maximum for the conspiracy would ipso facto fall with it.
That simple correlation, however, does not begin to resolve more subtle questions such as what, if any, impact there might be on the sentencing range for conspiracy when special sentence-enhancing provisions are enacted for its underlying substantive offense, such as 1) a mandatory minimum, either generally or for some special offenders under certain special circumstances; 2) a mandatory no-parole provision; 3) a mandatory no-suspension-of-sentence provision; or 4) a higher maximum sentence not for the crime generally but for certain special offenders, such as recidivists.
For the substantive crime of violating subsection (a), subsection (b) provides the normal, non-enhanced penalties. 4 Subsections (c), (d), (e), and (f) of § 286 then provide four sentence-enhancing provisions for four respective sets of aggravating circumstances. Subsection (c) provides that if the convicted defendant has been convicted under subsections (b)(1) or (b)(2) and has previously been convicted of a similar substantive offense under the laws of this State or any other American jurisdiction or has been convicted of conspiracy to commit such an offense, the following sentence-enhancing provisions shall apply: 1) there will be a mandatory minimum of ten years imprisonment, 2) the sentence may not be suspended to less than ten years, and 3) there can be no parole during that ten-year period.
Subsection (d) deals with similarly convicted defendants who, inter alia, have two qualifying prior convictions. The sentence-enhancing provisions in such a case include 1) a mandatory minimum sentence of not less than twenty-five years, 2) a mandatory non-suspension-of-sentence provision for the entire twenty-five years, and 3) a mandatory no-parole provision for the entire twenty-five years.
Subsection (e) deals with a similarly convicted defendant with, inter alia, three or more such qualifying prior convictions and provides, by way of sentence enhancement: 1) a mandatory minimum of forty years, 2) mandatory...
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Rudder v. State
...the person conspired to commit. (Emphasis supplied). See Gary v. State, 341 Md. 513, 517-18, 671 A.2d 495 (1996); DeLeon v. State, 102 Md.App. 58, 62-63, 648 A.2d 1053 (1994); Mills v. State, 12 Md.App. 449, 465-66, 279 A.2d 473 (1971). The express purpose of the new sentencing provision wa......
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Meyer v. State
...an individual on probation is a judicial act that arises out of the Judiciary's inherent sentencing function. DeLeon v. State, 102 Md.App. 58, 74, 648 A.2d 1053, 1060–61 (1994) ; see also Simms v. State, 65 Md.App. 685, 688–89, 501 A.2d 1338, 1340 (1986). It is well established that probati......
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Allen v. State
...that the court considers proper.” Crim Proc. § 6–221 ; Meyer, 445 Md. at 679, 128 A.3d at 166 (citing DeLeon v. State, 102 Md.App. 58, 74, 648 A.2d 1053, 1060–61 (1994) ). By exercising the authority to place a defendant on probation, the court engages in an act of clemency or leniency, whe......
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Reiger v. State
...For the reasons set forth below, we also conclude that there was no error in sentencing. II. Sentencing Reiger cites DeLeon v. State, 102 Md.App. 58, 648 A.2d 1053 (1994), and Simms v. State, 65 Md.App. 685, 501 A.2d 1338 (1986), in support of his contention that the court improperly used i......
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Incarceration
...impose no-parole sentence, the parole function is exclusively within the control of the executive branch of government. DeLeon v. State, 102 Md. App. 58, 73 (1994). In Simms v. State, 65 Md. App. 685 (1986), the sentencing judge attempted to impose conditions on parole. The Court of Special......
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Sentencing Authority
...ed.), Standard 18-1.4). A sentence must not exceed what is permitted by legislative or constitutional authority. See DeLeon v. State, 102 Md. App. 58, 62 (1994); see also Anthony v. State, 117 Md. App. 119, 131 (1997) (holding that the "sentencing court's broad discretion does not permit . ......