Jones v. State

• Decision Date: 01 September 1994
• Docket Number: No. 2,2
• Parties: Duane Thomas JONES v. STATE of Maryland
• Court: Maryland Court of Appeals

Page 255

336 Md. 255

647 A.2d 1204

Duane Thomas JONES v. STATE of Maryland.

No. 2 Sept. Term, 1994.

Court of Appeals of Maryland.

Sept. 26, 1994.

Margaret A. Mead (Roland Walker, Walker & Van Bavel, P.A., all on brief) Baltimore, for petitioner.

Kreg Paul Greer (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for respondent.

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

RAKER, Judge.

In this appeal, we are again called upon to construe the mandatory sentencing provisions of Maryland Code (1957, 1992 Repl. Vol.) Article 27, § 643B. Subsection (c) of that statute mandates the imposition of a sentence of not less than 25 years upon a defendant who, after having been convicted of a crime of violence on two prior occasions and having served a term of incarceration as a result thereof, is "convicted a third time of a crime of violence." The issue raised in this appeal concerns the application of § 643B(c) to a defendant who, having otherwise satisfied the statutory prerequisites for imposition of the § 643B(c) penalty, is thereafter convicted, as the result of a single incident, of more than one crime of violence which could serve as the defendant's "third" crime of violence conviction. The precise question we face is whether a sentencing judge may select any one of the defendant's crime of violence convictions to serve as the third conviction for the purposes of § 643B(c). We hold that a sentencing judge has the discretion to impose the § 643B(c) penalty upon any one of the qualifying convictions, and, accordingly, we affirm the judgment of the Court of Special Appeals.

I.

Petitioner Duane Thomas Jones was found guilty of the crimes of second degree rape, second degree sexual offense, and robbery after a trial by jury in the Circuit Court for Baltimore County (Smith, J., presiding). All three convictions arose out of a single incident which occurred on March 15, 1991.

Prior to sentencing on the 1991 offense, the State served Jones with notice of intention to seek a § 643B(c) mandatory minimum penalty. Section 643B(c) provides:

(c) Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.

Jones had previously been convicted, in two separate criminal cases brought in 1989, of the crimes of robbery and burglary and he had consequently served a term of confinement in a correctional institution. Jones thereby satisfied the statutory prerequisites for imposition of sentence pursuant to § 643B(c).

At sentencing on the 1991 offenses, Jones did not contest the fact that he had previously been convicted of two crimes of violence and that he had served a period of confinement in a correctional institution. Jones also did not contest the fact that the three crimes for which he faced sentencing on this occasion--second degree rape, second degree sexual offense, and robbery--are all identified as crimes of violence in § 643B(a), and that he therefore had been convicted of a third crime of violence. Given these admissions, there was no debate at Jones' sentencing hearing as to whether the statutory prerequisites for imposition of the § 643B(c) penalty were met.

Jones contended, however, that § 643B(c) is ambiguous in that the statute does not specify upon which crime of violence conviction the mandatory 25-year penalty should be imposed when a defendant is convicted of multiple qualifying crimes of violence as the result of a single incident. Jones maintained that, pursuant to the rule of lenity, the statute must be construed so as to require that the § 643B(c) penalty is imposed on the conviction that bears the greatest statutory penalty, thereby minimizing the maximum sentence to which the defendant is exposed.

Absent the invocation of the § 643B(c) penalty, Jones would have been subject to a maximum total sentence of fifty years for the three crimes he committed: twenty years for the second degree rape, see Article 27, § 463, twenty years for the second degree sexual offense, see Article 27, § 464A, and ten years for the robbery, see Article 27, § 486. Once the statutory prerequisites for imposition of the § 643B(c) penalty were met, and if the mandatory, § 643B(c) sentence was imposed upon either the second degree rape or second degree sexual offense convictions, Jones would have been exposed to a maximum sentence of fifty-five years. In contrast, if the § 643B(c) penalty was imposed upon the robbery conviction, Jones would have been exposed to a maximum sentence of sixty-five years. Seeking to minimize the term to which he could be sentenced, at his sentencing proceeding Jones argued that he was entitled to have the § 643B(c) penalty imposed upon either the second degree rape or the second degree sexual offense conviction.

The trial judge rejected Jones' argument that the § 643B(c) penalty could not be imposed upon the robbery conviction and sentenced Jones to twenty years on the second degree rape conviction, twenty years on the second degree sexual offense conviction, to run concurrent with the rape sentence, and twenty-five years, pursuant to § 643B(c), on the robbery conviction, to run consecutive to the rape sentence.

Jones appealed, arguing that the sentencing judge erred in imposing the § 643B(c) penalty upon his robbery conviction. In an unreported opinion, the Court of Special Appeals upheld Jones' sentence, holding "that when more than one conviction qualifies as the third conviction of a crime of violence, the determination of the crime to which the mandatory sentence will be imposed rests within the discretion of the trial court." The Court of Special Appeals explained:

In the case sub judice, Article 27, § 643B(c) required only that the judge impose a minimum of twenty-five years because appellant was for the third time convicted of a crime of violence. The robbery conviction qualified as a third conviction of a crime of violence. The judge, in selecting to impose the § 643B(c) mandatory twenty-five year sentence on the robbery conviction and normal sentences on the rape and sexual offenses convictions, did not exceed the statutory maximum sentences allowable under the law for the crimes committed by appellant during the single episode. We hold that the trial judge did not abuse his discretion in sentencing appellant.

We granted Jones' petition for a writ of certiorari to consider whether, as Jones suggests, a defendant who is convicted of more than one crime of violence arising out of a single incident is entitled as a matter of law to have the § 643B(c) mandatory minimum sentence imposed upon the conviction that would otherwise carry the most severe statutory penalty. We conclude that the defendant is not so entitled and hold that it is within the sound discretion of the sentencing judge to select any one of the predicate convictions to serve as the "third" conviction for the purposes of § 643B(c).

II.

When called upon to construe the meaning of a particular statute, we have repeatedly stated that the goal of statutory construction is to ascertain and effectuate legislative intent. See, e.g., Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991); Jones v. State, 311 Md. 398, 405, 535 A.2d 471 474 (1988). The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. See, e.g., Dickerson v. State, 324 Md. 163, 170-71, 596 A.2d 648, 651 (1991); Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hawkins v. State, 302 Md. 143, 147, 486 A.2d 179, 181 (1985).

When the statute at issue is a penal statute, we are often confronted with the argument that the statute must be construed according to the rule of lenity, which "means that the Court will not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the Legislature] intended." Monoker v. State, 321 Md. 214, 222, 582 A.2d 525, 529 (1990) (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199, 205 (1958)); see also Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971) (court must construe any "ambiguity concerning the ambit of criminal statutes ... in favor of lenity."). Jones invokes the rule of lenity in this case.

The rule of lenity, however, is a maxim of statutory construction which serves only as an aid for resolving an ambiguity and it may not be used to create an ambiguity where none exists. Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284 (1981); Dillsworth v. State, 308 Md. 354, 365, 519 A.2d 1269, 1274 (1987). As Justice Frankfurter explained in Callanan v. United States, 364 U.S. 587, 589, 81 S.Ct. 321, 326, 5 L.Ed.2d 312, 319 (1961), the rule of lenity "comes into operation at the end of the process of construing what [the Legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers. That is not the function of the judiciary." See also Albernaz, 450 U.S. at 342-43, 101 S.Ct. at 1144-45, 67 L.Ed.2d at 284-85; Randall Book Corp. v. State 316 Md. 315, 327, 558 A.2d 715, 721 (1989). Simply...