King v. State

• Decision Date: 10 October 1983
• Docket Number: No. 1772,1772
• Citation: 55 Md.App. 672,466 A.2d 1292
• Parties: Maurice D. KING v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 672

55 Md.App. 672

466 A.2d 1292

Maurice D. KING v. STATE of Maryland.

No. 1772.

Court of Special Appeals of Maryland.

Oct. 10, 1983.

Howard L. Cardin, Baltimore, with whom were Cardin & Gitomer, P.A., Baltimore, on the brief, for appellant.

Stephanie J. Lane, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., W. Charles Rogers, III, Asst. Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City, and Mark S. Cohen and Brian Murphy, Asst. State's Attys., for Baltimore City, on the brief, for appellee.

Argued before GILBERT, C.J., and WILNER and BISHOP, JJ.

WILNER, Judge.

On the evening of July 14, 1981, Baltimore City police officer Charles Gutberlet approached a van stopped at the corner of Fayette and Aisquith Streets. As he looked inside, the person occupying the front passenger seat drew a handgun and pointed it at the officer. Gutberlet promptly alerted other police officers in the area; and, upon doing so, he observed several other armed men in the back of the van discard their weapons, leave the van, and attempt to flee.

One of the men seen departing the van was appellant, who was arrested after he had traveled about ten feet and fell into some bushes. Following the hurried exodus, the police recovered five handguns from the floor of the van.

As a result of that incident and the further fact that appellant had no permit to wear or transport a handgun, appellant was charged with and convicted of unlawfully wearing and transporting a handgun, for which he was sentenced to ten years in prison. The ten-year sentence was based upon a finding that appellant had previously been convicted of a handgun offense, and thus was a "subsequent offender" eligible for an "enhanced" sentence provided for by Md.Ann.Code art. 27, § 36B(b)(ii).

Appellant raises two issues in this appeal:

"(a) The trial court erred when it sentenced the Appellant as a second offender even though the State failed to comply with Maryland Rule 734.

(b) The trial court erred when it permitted the State to introduce, over objection, records from the Department of Assessments and Taxation and from the Motor Vehicle Administration when they had not been provided to the Appellant during discovery procedures."

We shall address the second claim first.

(1) Motor Vehicle And Corporate Records

The State's case against appellant was based on the inference that he wore, carried, or transported one or more of the guns found inside the van. He was not in possession of a gun when he was arrested outside the van.

Before trial, appellant had moved to suppress as evidence all items recovered from the van on the ground that they were unlawfully seized. In an effort to establish his standing to complain about the search of the van and the seizure of the weapons found in it, appellant conceded at the hearing on his motion (which occurred immediately before the commencement of trial) that (1) the van in question was owned by a corporation known as King & Meredith, Inc., and (2) appellant was the president of that corporation. Having conceded his vicarious connection with the van for the purpose of "standing", he proceeded to elicit some evidence that there was more than one van in the vicinity, this being, we gather, in the nature of groundwork for a trial defense that appellant was in a different van--not the one owned by his corporation in which the weapons were found. Indeed appellant tells us in his brief that such was precisely his intended line of defense.

In an effort to meet that anticipated defense, the State, at trial, placed into evidence certified records from the Motor Vehicle Administration and the Department of Assessments and Taxation showing essentially what appellant had willingly conceded the day before--that the van was owned by King & Meredith, Inc. and that appellant was a principal in that corporation.

Appellant objected to these records, which he agreed were otherwise admissible, on the sole ground that they had not been disclosed by the State in its response to his pretrial discovery motion. He acknowledged that he had no evidence that the omission was deliberate or in bad faith. The only prejudice claimed by appellant was that, on the assumption that there would be no evidence regarding ownership of the van, he had intended to call two witnesses to testify that he was not in the van at the time of the incident, and that with the documentary evidence establishing his connection with the van, he would be forced to reconsider his decision to call those witnesses. In fact, the witnesses were not called. The court offered appellant a short continuance in order to ponder the matter, but he declined the offer.

On this record, we find no error in the admission of the certified records.

(2) Enhanced Sentence

Appellant was charged and convicted under Md.Code Ann. art. 27, § 36B(b), which prohibits a person from wearing, carrying, or transporting a handgun about his person or in any vehicle traveling the public roads without a permit to do so. With respect to punishment, § 36B(b)(i) provides that for the first offense, the defendant may be fined from $250 to $2500 and be imprisoned from thirty days to three years. For a second offense--if he has once before been convicted of wearing, carrying, or transporting a handgun in violation of § 36B--s 36B(b)(ii) states that the defendant "shall be sentenced ... for a term of not less than 1 year nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of 1 year...."

This "enhanced sentence" or "subsequent offender" provision contains two elements, one mandatory and one permissive. It requires a minimum sentence of at least one year, which is more than the required minimum but less than the permitted maximum for a first offense; and it permits a maximum sentence of ten years, which exceeds the three-year maximum allowed for the first offense.

Maryland Rule 734 places certain conditions on the implementation of "subsequent offender" statutes such as § 36B(b)(ii). It provides, in section c, that "[i]f a mandatory sentence is prescribed by law because of a specified previous conviction, the State's Attorney, at least 15 days prior to sentencing, shall serve upon the defendant or his counsel a notice of the alleged prior conviction which would require imposition of the mandatory sentence." (Emphasis supplied.) Section b, dealing with permissive enhanced sentences, provides that, except as provided in section c,

"no defendant shall be sentenced as a subsequent offender unless prior to acceptance of a plea of guilty or nolo contendere or at least 15 days prior to trial, whichever is earlier, the State's Attorney serves a notice on the defendant or his counsel that the State will seek increased punishment as authorized by law. The notice shall set forth each prior conviction to be relied upon." (Emphasis supplied.)

Appellant was initially charged, on July 14 or 15, 1981, in the district court. The case was transferred to the Criminal Court of Baltimore (now the Circuit Court for Baltimore City) because of his election to have a jury trial. Initial arraignment in the circuit court took place on September 14, 1981, at which time the State sent to him or his counsel a "Notice of Additional/Mandatory Sentence". The notice stated, in relevant part, that "[T]he State will seek increased punishment as authorized by law since Maurice King, Defendant, was convicted of the violation(s) of Art 27 Sections 36; 36B of the State of Maryland. The maximum increased/mandatory punishment, if the Court determines that the Defendant is a subsequent offender, is imprisonment for 10 years and/or a fine of ______, or both on the above stated charges." (Underscoring in original, indicating blanks filled in by handwritten interlineation.)

Trial of the case was delayed for nearly eleven months--until August, 1982--because of appellant's involvement in certain Federal court proceedings. Following the jury verdict on August 10, 1982, the court deferred sentencing until September 17, 1982, in order to consider a presentence investigation report. At no point prior to September 17, 1982, did appellant make any complaint or raise any question about the form or adequacy of the State's notice of intent to seek enhanced punishment.

At the sentencing hearing, the State placed into evidence a certified docket entry showing that in 1979 appellant had been convicted in the Criminal Court of Baltimore of a handgun violation for which he received a three-year sentence, subsequently reduced to three years probation. Appellant objected to any enhanced sentence on the sole ground that the September, 1981, notice did not comply with the requirement of Maryland Rule 734 b in that it failed to specify the prior conviction relied upon.

Through counsel, appellant conceded the 1979 conviction, and made no claim of surprise or prejudice with respect to the State's reliance on it. Indeed, it is clear from the colloquy between counsel and the court that appellant was fully aware that it was the 1979 conviction that was alluded to in the notice. His argument to the trial court and to us is a very precise and technical one; despite his actual knowledge of the basis of the State's warning, because the State's notice failed of technical compliance with the rule, the court was precluded from imposing a sentence specifically authorized by the Legislature. Candidly, counsel stated that "when the State served Notice it was obvious to us the Notice was insufficient under the law", but that "[i]t is not my obligation to notify the State that they are proceeding improperly".

The trial court concluded that there had been substantial compliance with the rule, especially in light of appellant's actual knowledge of what was afoot.

We agree with appellant that the notice did not adequately set forth "each prior conviction to be relied upon", as required by Rule 734 b. Allusion...