Gargliano v. State, 1113

• Decision Date: 01 September 1992
• Docket Number: No. 1113,1113
• Citation: 95 Md.App. 593,622 A.2d 767
• Parties: Leonard Timothy GARGLIANO v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 593

95 Md.App. 593

622 A.2d 767

Leonard Timothy GARGLIANO v. STATE of Maryland.

No. 1113, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 5, 1993.

[622 A.2d 768] Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Cathleen C. Brockmeyer, Asst. Atty. Gen Baltimore, and Davis R. Ruark, State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

Argued before BISHOP, ROSALYN B. BELL and HARRELL, JJ.

ROSALYN B. BELL, Judge.

This appeal involves the interpretation of Md.Code Ann. Art. 27, § 286 (1957, 1992 Repl.Vol.), of the controlled dangerous substance laws. Appellant, Leonard Timothy Gargliano, pled not guilty to distribution of cocaine. Pursuant to an agreed statement of facts, Gargliano was convicted of that charge at a bench trial in the Circuit Court for Wicomico County. He was sentenced in accordance with Art. 27, § 286(c) to an enhanced mandatory sentence of 10 years without the possibility of parole. Following post-conviction proceedings, a belated appeal was granted. Gargliano appeals on the sole ground that the trial judge improperly sentenced him as a subsequent offender under Art. 27, § 286(c) when he had been neither "charged with nor convicted of the prior offense at the time he committed the subsequent offense." We will affirm the sentence imposed by the trial judge.

FACTS

According to the agreed statement of facts, on December 20, 1990, Trooper Niquette of the Maryland State Police was assigned to the Wicomico County Narcotics Task Force. Niquette entered an establishment known as the Royal Exchange Pub and eventually began a conversation with Gargliano. Niquette was acquainted with Gargliano because Niquette had purchased cocaine from Gargliano on two previous occasions, one in December, 1989 and one in January, 1990.

During the conversation, Niquette asked Gargliano if he could get her an "eight ball" of cocaine and, if so, at what price. Gargliano told her that an eight ball would be $250 but it would take him half an hour to get it for her. He then stated that he could get her one gram of cocaine right away for $100. Niquette agreed and left to get the $100, stating that maybe they could arrange the sale of the eight ball for the next night.

When Niquette returned to the pub with $100 in marked currency, Gargliano told her that what she wanted was beneath a napkin in front of her. She handed the money to Gargliano and removed a plastic bag containing cocaine from under the napkin. This exchange took place at 1:15 a.m. on December 21, 1990.

A few hours after the exchange occurred, Gargliano was arrested. A search incident to his arrest yielded the $100 in marked currency given to Gargliano by Niquette.

Gargliano was eventually charged with the December 1989, January 1990, and December 1990 sales. He was convicted of the two previous sales prior to his trial and conviction on the subsequent sale. Upon his conviction of the December 1990 sale, Gargliano was sentenced to 10 years without parole to be served concurrent to the sentences he was serving on the prior convictions.

GARGLIANO'S ARGUMENT

Gargliano contends that the trial judge erred in imposing the mandatory enhanced sentence under Art. 27, § 286(c) for subsequent offenders because he had not been charged with, or convicted of the December 1989 and January 1990 offenses at the time he committed the December 1990 offense. He argues that § 286(c) requires that the charging document in the prior offense be filed before the commission of the subsequent offense.

Article 27, § 286(c) provides, in pertinent part:

"(c)(1) A person who is convicted under subsection (b)(1) ¹ or subsection (b)(2) 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 that 10 years if the person previously has been convicted:

"(i) Under subsection (b)(1) or subsection (b)(2) of this section; [or]

"(ii) Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section."

Gargliano cites Art. 27, § 286(d)(3), in support of his contention that a charging document must be filed prior to the commission of the subsequent offense. Section 286(d)(3), which applies to third offenses, provides:

"(3) A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding offense." ³

Gargliano concedes, however, that the requirement that a charging document be filed prior to the commission of the subsequent offense is not present in subsection (c). He also concedes that, under the plain meaning of subsection (c), only a previous conviction prior to sentencing on the subsequent offense is necessary to impose a mandatory enhanced sentence. He argues, however, that the plain meaning of a statute should be considered along with the legislative intention. In his brief, Gargliano cites the following passage:

"[R]esults that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning."

State v. Fabritz, 276 Md. 416, 422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976).

It is illogical, Gargliano contends, to have different requirements for a two-time offender than for a three- or four-time offender. Gargliano points out that subsections (d) and (e) ⁴ are clearly aimed at punishing those who fail to reform after periods of incarceration, while subsection (c), if read literally, appears to be aimed only at punishing those who commit more than one offense. Gargliano argues that subsection (c) should be read in para materia with subsections (d) and (e) to permit enhanced sentences only for offenders who have failed to reform their behavior after being incarcerated.

In his brief, Gargliano cites Maryland cases interpreting other subsequent offender statutes. For example, in Garrett v. State, 59 Md.App. 97, 111-18, 474 A.2d 931, cert. denied, 300 Md. 483, 479 A.2d 372 (1984), this Court was called upon to interpret Md.Code Ann. Art. 27, § 643B(c) (1957, 1982 Repl.Vol., 1982 Cum.Supp.), which requires a mandatory minimum sentence for individuals convicted of violent crimes. ⁵ The statute itself provided that a charging document for the previous offense must be filed prior to the commission of the subsequent offense ⁶.

The Court in Garrett was faced with the issue of whether the statute required the conviction in the prior offenses to precede the commission of the subsequent offenses, even though the statute only stated that the charging document must be filed. The Court stated that, in the case of penal statutes, any ambiguities must be construed in favor of the defendant. The Court held, therefore, that

"the two convictions serving as the predicate for the enhanced sentence must precede in time the commission of the offense upon which the instant conviction is based. Deterrence, rather than retribution, is the legislative intent we shall infer; and that, as the cited authority makes clear, requires that the instant offense--the one for which the enhanced punishment is imposed--be committed after the two predicate convictions."

Garrett, 59 Md.App. at 118, 474 A.2d 931.

In dicta, the Court noted:

"Most of the States have [enhanced punishment] statutes in one form or another, some providing for increased penalties upon conviction of a subsequent 'offense,' some speaking merely in terms of subsequent 'convictions,' some referring to prior convictions, some specifying a particular chronology, some not. But, as noted in Annot., Habitual Criminal Statutes, 24 A.L.R.2d 1247, 1248 (1952):

'[R]egardless of the difference in phraseology, the preponderance of authority supports the view that the prior convictions, in order to be available for imposition of increased punishment of one as a habitual offender, must precede the commission of the principal offense, that is, the latest prosecution in point of time. In this connection, it has been brought out in numerous cases that, although differing somewhat in language, the same principle is inherent in a habitual criminal statute, namely, that the legislature in enacting such a statute intended it to serve as a warning to first offenders and to afford them an opportunity to reform, and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions.' " (Emphasis omitted.)

Garrett, 59 Md.App. at 112-13, 474 A.2d 931.

Gargliano also cites Montone v. State, 308 Md. 599, 614, 521 A.2d 720 (1987), for the proposition that Md.Code Ann.Art. 27, § 643B(b) (1957, 1982 Repl.Vol., 1986 Cum.Supp.), ⁷ was intended to punish offenders who do not reform their behavior after prior convictions and punishment. ⁸ Although Gargliano concedes that both Garrett and Montone involve a different statute, he argues that they are persuasive authority for adopting a similar construction of § 286(c). According to Gargliano, the word "conviction" in § 286(c) requires not only that a charging document be filed prior to the commission of a subsequent offense, but also requires a conviction on the prior offense to impose a mandatory enhanced sentence. Therefore, Gargliano argues that the prior conviction requirement of subsection (c) is actually more stringent than the requirement in subsection (d)(3), which requires that a charging document be filed prior to the commission of the subsequent offense.

THE STATE'S ARGUMENT

The State argues that the plain meaning of the statute permits the...