Gary v. State

• Decision Date: 01 September 1995
• Docket Number: No. 64,64
• Citation: Gary v. State, 671 A.2d 495, 341 Md. 513 (Md. 1995)
• Parties: Morris K. GARY v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 513

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.

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.

PetitionerMorris 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 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 A.2d 337, 340(1984).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.SeeDeLeon 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);accordWalker 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.²The 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 parole."

Thus, a sentence of life imprisonment for conspiracy to commit first degree murder is the lowest of the statutory penalties for first degree murder.³Therefore, Gary's sentence does not violate the maximum penalty for conspiracy to murder set out in Art. 27, § 38, and is not illegal.⁴

Gary, however, argues against this inescapable conclusion.He posits that despite the plain language of the statute, the legislature intended that there be a ten-year limit on any sentence for conspiracy, regardless of the maximum sentence permitted for the substantive crime that was the object of the conspiracy.For support, Gary points to a previous version of Art. 27, § 43A, enacted in 1927, which provided in pertinent part:

"Every person convicted of the crime of conspiracy shall be liable to be punished by ... imprisonment ... for not more than ten years...."

Chapter 651 of the Acts of 1927.⁵In 1961, the legislature repealed the 1927 version of the statute and adopted Art. 27, § 38 in its present form, without the 10-year limitation.SeeCh. 691 of the Acts of 1961.Gary argues that the sole purpose of the 1961amendment was to prevent defendants convicted of conspiracy from receiving sentences harsher than those they could receive if they had been convicted of the substantive crime that was the object of the conspiracy.As an example, Gary cites Scarlett v. State, 201 Md. 310, 93 A.2d 753, cert. denied, 345 U.S. 955, 73 S.Ct. 937, 97 L.Ed. 1377(1953), in which this Court upheld a sentence of seven years for conspiracy to violate lottery laws even though the maximum penalty for the substantive crime was one year.201 Md. at 320-21, 93 A.2d at 757-58.Gary contends that the only purpose of the 1961amendment, which limits the penalty for conspiracy to the maximum penalty for the substantive crime, was to eliminate the inequities illustrated by Scarlett.The legislature did not intend, Gary asserts, to authorize sentences of greater than 10 years for conspiracy convictions.

We find no merit in this contention.Gary may be correct that the legislature's purpose in amending § 38 was to prevent harsher sentences for conspiracy than were authorized for the substantive crime.SeeState v. Michael, 2 Md.App. 750, 753, 237 A.2d 782, 784(1968)(noting the purpose of 1961amendment of § 38 apparently was to avoid harsher sentence for conspiracy than for the substantive crime).But even conceding that point, there is no basis from which to conclude, as Gary urges us to do, that this was the legislature's only purpose in amending the statute.It is just as logical to conclude that the legislature also intended to ensure that those who conspire to commit criminal acts be punished just as severely as those who commit them.

Gary places great emphasis on Michael, supra, in which the Court of Special Appeals expressed doubt that the legislature intended Art. 27, § 38 to authorize the death penalty for conspiracy to commit capital crimes.The court noted that "[w]ithout a more definite expression" of the legislature's intent, it did not believe the death penalty could be imposed for conspiracy, even though the death penalty was available for first degree murder.Michael, 2 Md.App. at 753, 237 A.2d at 783.Gary argues that this same reasoning should be applied to a sentence of life imprisonment.

Gary is correct that the death penalty generally is an unavailable penalty for conspiracy to commit murder.As we noted in Johnson v. State, 303 Md. 487, 510, 495 A.2d 1, 12(1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907(1986), pursuant to the Maryland death penalty statute, only principals in the first degree to first degree murder are eligible for the death penalty in Maryland.SeeArt. 27, §§ 412(b),413(a), and413(e)(1).A principal in the first degree is " 'one who actually commits a crime, either by his own hand, or by inanimate agency, or by an innocent human agent.' "Johnson, 303 Md. at 510, 495 A.2d at 12(citation omitted).In addition, under the statute, one who employs another person to kill is also considered a principal in the first degree for purposes of the death penalty.SeeArt. 27, §§ 413(e)(1)and413(d)(7).Since a conviction for conspiracy to murder does not by itself establish that the defendant committed the crime by his own hand, by inanimate agency, by an innocent agent, or employed another person to kill, the death penalty is generally unavailable for conspiracy to commit first...