Gary v. State, No. 64

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; CHASANOW
• Citation: 341 Md. 513,671 A.2d 495
• Docket Number: No. 64
• Decision Date: 01 September 1995
• Parties: Morris K. GARY v. STATE of Maryland. ,

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341 Md. 513 671 A.2d 495 Morris K. GARY
v.
STATE of Maryland. No. 64, Sept. Term, 1995. Court of Appeals of Maryland. Feb. 8, 1996.

[671 A.2d 496]

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Nancy M. Cohen, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Diane E. Keller, 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.

CHASANOW, Judge.

We are called on in this case to determine whether the trial judge erred in imposing a sentence of life imprisonment for the crime of conspiracy to commit first degree murder. We find no error in the sentence, and therefore affirm the decision of the trial judge.

I.

Petitioner Morris K. Gary (Gary) was convicted by a jury in the Circuit Court for Baltimore City of conspiracy to commit first degree murder. Evidence at trial showed that Gary was one of several participants in a drive-by shooting on Old York Road in Baltimore. Testimony revealed that the shooting grew out of an ongoing feud between two groups of young

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men, one living in the McCabe Avenue area of Baltimore and the other in the Old York Road neighborhood. In August of 1992, a young man living in the McCabe Avenue area was killed, and several of his friends believed that their rivals on Old York Road were responsible for the killing. On August 23, 1992, several members of the McCabe Avenue group decided that "somebody had to pay" for the murder of their friend. To avenge the murder, members of the McCabe group planned to "drive by and shoot up [the Old York Road] neighborhood," in an attempt to kill some of "the Old York Road guys" who had been shooting at them. First, a scout was sent out to ensure that some of "the Old York guys" would be on the street. Then, the men took several firearms and got into a van. As the van travelled up Old York Road, several of the men opened fire on people in the street, killing two and wounding several others.

Gary was charged with two counts of murder, conspiracy to commit first degree murder and related charges. The jury deadlocked on the murder charges, but convicted Gary of conspiracy to commit first degree murder. Judge Elsbeth L. Bothe sentenced Gary to life in prison on the conviction for conspiracy to commit first degree murder. Gary appealed to the Court of Special Appeals, which affirmed both his conviction and sentence in an unreported per curium opinion. We granted certiorari to consider Gary's contention that his sentence of life imprisonment for conspiracy to commit first degree murder was illegal.

II.

The discretion of a judge imposing sentence in Maryland is extremely broad. Logan v. State, 289 Md. 460, 480, 425 A.2d 632, 642 (1981). Only three grounds for appellate review of sentences are recognized in this state: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits. Teasley v. State, 298 Md. 364, 370, 470

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A.2d 337, 340 (1984). [671 A.2d 497] Gary does not contend that his sentence is unconstitutional, or that Judge Bothe was motivated by impermissible considerations. His sole contention is that his sentence exceeds a statutory limitation imposed by the legislature, and therefore is illegal.

The relevant statutory provision is Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 38, ¹ which provides:

"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."

There can be no dispute that the statute, by its plain language, limits the maximum penalty for conspiracy to the maximum penalty for the substantive crime that was the object of the conspiracy. Hence, any sentence up to and including the maximum penalty for the substantive crime is permissible. See DeLeon v. State, 102 Md.App. 58, 63, 648 A.2d 1053, 1055 (1994) (noting that a sentencing provision setting an upper limit indicates implicit legislative approval to impose any sentence up to that limit); accord Walker v. State, 53 Md.App. 171, 187, 452 A.2d 1234, 1243 (1982).

In the instant case, Gary was charged with and convicted of conspiracy to commit first degree murder. ² The penalty for first degree murder in Maryland is set out in Art. 27, § 412(b), which provides in pertinent part:

"[A] person found guilty of murder in the first degree shall be sentenced to death, imprisonment for life, or imprisonment for life without the possibility of...