Gardner v. State, 104

• Citation: 344 Md. 642,689 A.2d 610
• Decision Date: 01 September 1995
• Docket Number: No. 104,104
• Parties: Robert Lee GARDNER, v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 642

344 Md. 642

689 A.2d 610

Robert Lee GARDNER, v. STATE of Maryland.

No. 104, Sept. Term, 1995.

Court of Appeals of Maryland.

Feb. 21, 1997.

Mark Colvin, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J. ^* , and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Chief Judge.

In this case, we are asked to decide an issue ¹ that was not presented, and, thus, was not answered, in Whack v. State, 338 Md. 665, 659 A.2d 1347 (1995): whether a sentence on a single count of an indictment or information may be enhanced pursuant to both Maryland Code (1957, 1992 Replacement Volume) Article 27, § 286(c) ² and § 293. ³ The Circuit Court for Baltimore City answered that query in the affirmative. Viewing the issue as one of statutory construction, the Court of Special Appeals issued an unpublished opinion affirming that judgment. Having issued certiorari at the petitioner Robert Lee Gardner's request, we shall reverse the judgment of the intermediate appellate court.

I.

Although the issue it presents is complex, the facts of this case are not. The petitioner was convicted by a jury of possession of heroin and possession of heroin with the intent to distribute. Having previously been served, in accordance with Maryland Rule 4-245 ⁴, with both a "Notice of Additional Penalties," ⁵ and a "Notice of Mandatory Penalties," ^{6 6} he was sentenced for the possession with intent to distribute count ⁷, pursuant to both §§ 286(c) and 293, to 25 years imprisonment, the first 10 of which were to be served without benefit of parole. ⁸ The petitioner noted an appeal challenging the sentence. ⁹ The Court of Special Appeals rejected the petitioner's arguments and affirmed the circuit court. As indicated, we granted certiorari to address this important issue.

II.

The petitioner argues that a single count may not be enhanced under both § 286(c) and § 293(a). Therefore, noting that in Whack, 338 Md. at 682, 659 A.2d at 1355, we did not address the issue of "whether a sentence enhanced by the second offender provision of § 286(c) may also be enhanced by the second or subsequent offender provision of § 293," ¹⁰ he urges that the judgment of the intermediate appellate court be reversed.

On the other hand, the State argues that the trial court correctly sentenced the petitioner, pursuant to § 286(c) and § 293(a), to 25 years, without parole for the first ten years. It urges this Court to apply the reasoning it employed in Whack to affirm the judgment of the circuit court.

III.

The matter before us is, as the Court of Special Appeals recognized, one of statutory construction. We have said that an enhanced penalty may not be imposed unless that is clearly the intent of the Legislature. State v. Calhoun, 290 Md. 1, 425 A.2d 1361 (1981), aff'g 46 Md.App. 478, 418 A.2d 1241 (1980). Thus, we are called upon to ascertain and effectuate the intent of the legislature, Parrison v. State, 335 Md. 554, 559, 644 A.2d 537, 539 (1994), to determine whether, when the General Assembly enacted Article 27, §§ 286(c) and 293(a), it intended that both statutes should be applied to enhance the sentence imposed by the court on a single count. "To determine legislative intent, 'we look first to the words of the statute[s], read in light of the full context in which they appear, and in the light of external manifestations of intent or general purpose available through other evidence'." Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648, 651-52(1991) (emphasis added) (quoting Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989)). See also State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990); Davis v. State, 319 Md. 56, 60, 570 A.2d 855, 857 (1990); Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). This is the primary source from which legislative intent is determined. Rose v. Fox Pool, 335 Md. 351, 359, 643 A.2d 906, 910 (1994); Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996). Thus, to construe these statutes, we give the words used their plain meaning and natural import. Calhoun v. State, 46 Md.App. 478, 488, 418 A.2d 1241, 1248 (1980) (quoting State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975)). Ordinarily, the statutory language itself is sufficient evidence of the legislative intent. Comptroller v. Jameson, 332 Md. 723, 732-33, 633 A.2d 93, 94 (1993). Only when it is not do we look elsewhere for evidence of the General Assembly's intent. Condon v. State, 332 Md. 481, 492, 632 A.2d 753, 755 (1993); Motor Vehicle Admin. v. Mohler, 318 Md. 219, 225-27, 567 A.2d 929, 932-33 (1990).

Sections 286(c) and 293 enhance a repeat drug offender's sentence in different ways. The § 286(c) enhancement is by way of the imposition of a mandatory minimum ten year sentence to be served without parole. "Section 293 enhances the permissible maximum sentence by permitting the imposition of twice the otherwise allowable sentence for those who are subsequent offenders." Whack, 338 Md. at 683, 659 A.2d at 1355. On their face, viewed independently, each provision is clear and unambiguous. But that is not dispositive. Statutes that are clear when viewed separately may well be ambiguous where their application in a given situation, or when they operate together, is not clear. See Sullins v. Allstate, 340 Md. 503, 508, 667 A.2d 617, 619 (1995)(a term which is unambiguous in one context may be ambiguous in another); Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 74, 517 A.2d 730, 732 (1986)("That a term may be free from ambiguity when used in one context but of doubtful application in another context is well settled."); Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 54, 648 A.2d 1047, 1051 (1994) (quoting Town & Country v. Comcast Cablevision, 70 Md.App. 272, 280, 520 A.2d 1129, 1132, cert. denied, 310 Md. 2, 526 A.2d 954 (1987)) ("Language can be regarded as ambiguous in two different respects: 1) it may be intrinsically unclear ...; or 2) its intrinsic meaning may be fairly clear, but its application to a particular object or circumstance may be uncertain.").

Because both statutes are being applied to a single count, they must be construed together and in context. Whack, 338 Md. at 673, 659 A.2d at 1350 (citing State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993))("[w]hen we are called upon to interpret two statutes that involve the same subject matter, have a common purpose, and form part of the same system, we read them in pari materia and construe them harmoniously."); Gargliano v. State, 334 Md. 428, 436, 639 A.2d 675, 679 (1994); Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474 (1988); State v. Loscomb, 291 Md. 424, 432, 435 A.2d 764, 768 (1981). "Full effect is given to each statute to the extent possible, and we will not add or delete words to obtain a meaning not otherwise evident from the statutory language." Accord, GEICO v. Insurance Comm'r, 332 Md. 124, 132, 630 A.2d 713, 717 (1993). Moreover, § 286(c) is but a subsection of § 286, section (g) of which also addresses sentence enhancements. ¹¹ Because it is imperative that statutory language be interpreted in its full context, it follows that § 286(c) must "be read in conjunction with the other subsections of § 286 so that we may give effect to the whole statute and harmonize all of its provisions." Gargliano v. State, 334 Md. 428, 436, 639 A.2d 675, 678-79 (1994)(citing Williams v. State, 329 Md. 1, 15-16, 616 A.2d 1275, 1282 (1992) for the proposition that a court must discern "legislative intent from the entire statutory scheme, as opposed to scrutinizing parts of a statute in isolation." (emphasis added)). Consequently, §§ 286(c) and 293(a) must be construed together with § 286(g).

When that is done, it is clear that their application in the single count context is not at all clear. This is especially the case when § 286(g) is considered. Subsection (g)(2)(i) prescribes both the maximum sentence for a drug kingpin committing the acts proscribed--40 years imprisonment without parole--and a mandatory minimum sentence--20 years imprisonment without parole--to be imposed and not suspended. Subsection (g)(5) expressly authorizes the enhancement of that sentence pursuant to § 293(a). If the state were correct that the enhancement statutes are clear both in their language and application, inclusion of that provision would have been unnecessary.

Nor does enlightenment flow from their legislative histories. As the petitioner points out, there is absolutely nothing, in the history of these statutes that even suggests that the Legislature intended a stacking of enhanced penalties. Section 293(a) was enacted in 1970 and has existed, without change, since that time. See Laws of Maryland 1970, ch. 403. The two-time loser provision of § 286(c) was enacted 12 years later, see Laws of Maryland 1982, ch. 770, and except for relettering, see Laws of Maryland 1988, ch. 439, has not been changed. ¹² As we have seen, only § 286(g) provides any basis for discerning the intent of the General Assembly on the issue here presented.

It is apparent that §§ 286(c) and 293(a) are highly penal statutes, and, as we have seen, their application to enhance a sentence on a single count is ambiguous. An ambiguous penal statute is subject to the "rule of lenity," which requires that such statutes be strictly construed against the State and in favor of the defendant. See Harris v. State, 331 Md. at 145, 626 A.2d at 950; State v. Kennedy, 320 Md. 749, 754, 580 A.2d 193, 195 (1990); Wynn v. State, supra, 313 Md. 533, 539-40, 546 A.2d 465, 468-69 (1988); N. Singer, Sutherland on Statutory Construction, § 59.03, at 102-03 (5th ed. 1992). This means that it must be " 'strictly construed so that only punishment contemplated by the language of the statute...