Mcglone v. State

• Decision Date: 13 November 2008
• Docket Number: No. 116 September Term, 2007.,116 September Term, 2007.
• Citation: 406 Md. 545,959 A.2d 1191
• Parties: Lemuel Lindsay McGLONE, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

959 A.2d 1191

406 Md. 545

Lemuel Lindsay McGLONE, Jr. v. STATE of Maryland.

No. 116 September Term, 2007.

Court of Appeals of Maryland.

November 13, 2008.

Julia C. Schiller, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, MD, for Appellant.

Edward Gregory Wells, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, on brief), Baltimore, MD, for Appellee.

ARGUED BEFORE BELL, C.J., RAKER^*, HARRELL, BATTAGLIA, GREENE, MURPHY and DALE R. CATHELL (Retired, Specially Assigned), JJ.

GREENE, Judge.

On February 14, 1989, Lemuel Lindsay McGlone, Jr., appellant, was convicted by a jury in the Circuit Court for Montgomery County of various criminal offenses, including, of particular relevance to this case, use of a handgun in the commission of a crime of violence. For that particular conviction, McGlone was sentenced as a habitual offender, pursuant to Md.Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.), Article 27, § 643B(c),¹ to 25 years incarceration without the possibility of parole. In June 2007, McGlone filed a motion to correct an illegal sentence, contending that his two prior convictions for crimes of violence should not have qualified as predicate convictions for an enhanced sentence because they neither occurred sequentially nor were separated by a term of confinement, as required by law. The Circuit Court denied the motion without a hearing and McGlone noted a timely appeal to the Court of Special Appeals. Prior to any proceedings in that court, we issued a writ of certiorari on our own initiative, McGlone v. State, 402 Md. 623, 938 A.2d 825 (2008), to consider the following questions:

1. Can two convictions that are not separated by a term of confinement qualify as two predicate convictions for purposes of sentence enhancement pursuant to Md.Code. Ann., Art. 27 § 643B(c)?

2. Is Md.Code. Ann., Art. 27 § 643B(c) ambiguous as to the requirement of sequentiality for two prior predicate convictions used for the purpose of sentence enhancement?

BACKGROUND

Procedural Background

On June 9, 1988, McGlone was indicted by the Grand Jury for Montgomery County for various crimes relating to his conduct in the manufacturing and distribution of PCP as well as his conduct in eluding law enforcement authorities during his apprehension on April 6, 1988. On February 14, 1989, in the Circuit Court for Montgomery County, McGlone was convicted of sixteen of the nineteen counts contained in the indictment filed against him, including the crime of use of a handgun in the commission of a crime of violence. The Circuit Court, pursuant to § 643B(c), sentenced McGlone to 25 years incarceration without the possibility of parole for the crime of use of a handgun in the commission of a crime of violence.²

On June 13, 2007, McGlone filed a motion to correct an illegal sentence, contending that his mandatory sentence for the crime of use of a handgun in the commission of a crime of violence was illegal because the "two predicate convictions" did not occur sequentially and were not separated by a term of confinement, as required by law. The trial court denied the motion on August 16, 2007. This appeal of the denial of the motion to correct an illegal sentence ensued.

Predicate Convictions Background

On June 27, 1977, McGlone was indicted in New Jersey for eight criminal offenses relating to an armed robbery that occurred at the A & P Food Market in Lindenwold, New Jersey on May 19, 1977.

On December 5, 1979, while out on bond, pending trial in New Jersey, McGlone, along with an accomplice, broke into a People's Drug Store in Prince George's County, Maryland, and robbed the store clerk. McGlone was subsequently arrested and indicted in Prince George's County for three criminal offenses relating to the robbery. On June 19, 1980, McGlone pled guilty to one count of robbery and was convicted by the Circuit Court for Prince George's County. He was sentenced to ten years incarceration.

On November 25, 1980, while serving the sentence for the Maryland conviction, McGlone pled guilty and was convicted in New Jersey of one count of robbery and one count of armed robbery relating to the June 27, 1977 incident. The New Jersey court sentenced McGlone to ten years incarceration for the robbery conviction, to run concurrently with the sentence McGlone was serving in Maryland. The New Jersey court also imposed a five-year sentence of incarceration for armed robbery; however, the five-year sentence was to run concurrent with the ten-year sentence.

DISCUSSION

I.

McGlone contends that the Circuit Court erred in denying his motion to correct an illegal sentence. Specifically, McGlone contends that his two prior convictions are not separated by a term of confinement and, therefore, cannot qualify as two predicate convictions for the purposes of sentence enhancement under § 643B(c). McGlone argues that this Court's decision in Montone v. State, 308 Md. 599, 613, 521 A.2d. 720, 727 (1987), requires that the "[t]wo convictions must be separated by an intervening term of confinement before they may each serve as a predicate conviction for the purposes of § 643B(b)." McGlone explains: "This requirement of intervening terms of confinement was necessary to enable an individual to have the opportunity to reform and rehabilitate in between the first and second convictions." He emphasizes that "concurrent sentences or concurrent terms of imprisonment are the antithesis of `separate terms of confinement.'" McGlone then contends that this Court's analysis in Montone, regarding § 643B(b), is applicable in the case sub judice because we later stated, in Minor v. State, 313 Md. 573, 576, 546 A.2d 1028, 1029 (1988), "[a]lthough in [Montone] we were commenting on the operation of § 643B(b), our remarks are equally applicable to § 643B(c)." Therefore, McGlone asserts: "As there was no intervening period of confinement between the sentence imposed in Maryland and the sentence imposed in New Jersey, [he] was denied the opportunity to reform and rehabilitate between the first and second convictions."

The State asserts that the Circuit Court properly denied McGlone's motion to correct an illegal sentence because McGlone's two prior convictions, which were incurred separately, and one term of confinement, which he served, qualifies him for sentence enhancement, pursuant to § 643B(c).

The State first disputes McGlone's reliance on Minor and Montone, arguing that he misinterprets the cases' holdings and ignores "precedent that squarely addresses the requirements for predicate offenses under § 643B(c)." Specifically, the State contends that "Montone was the interpretation of language used in § 643B(b), the so-called `four strikes' statute," which is not related to § 643B(c). The State further argues that in Montone, the Court "deduced that the use of the terms `separate' and `terms of confinement,' revealed the General Assembly's intent to offer offenders an opportunity to rehabilitate themselves before `locking them up and throwing away the key.'" The State maintains: "In light of the legislative intent, this Court held that a mandatory life sentence under § 643B(b) may be imposed, only after the offender `shall have received three previous convictions,' and `each conviction shall have been "separate" from the others.'"

Second, the State argues that McGlone's position ignores the plain language difference between §§ 643B(b) and (c). Specifically, according to the State, "§ 643B(c) does not mandate `separate terms of confinement[;]' [rather,] the two convictions [must] be obtained on `separate occasions,' and that the offender [must] have served `at least one term of confinement.'" The State then points to Garrett v. State, 59 Md.App. 97, 474 A.2d 931, cert. denied, 300 Md. 483, 479 A.2d 372 (1984) and Simpkins v. State, 79 Md.App. 687, 558 A.2d 816 (1989), and contends that "the predicate offenses used for the purposes of sentence enhancement under § 643B(c) do not have to be separated by a term of confinement."

Third, the State maintains that McGlone's reliance on the language contained in two sentences in the Minor opinion to argue that the Court's interpretation of § 643B(b) applies equally to § 643B(c) is misplaced. According to the State, McGlone takes the two sentences out of context, because the passage that follows the two sentences "makes clear that this Court only meant that § 643B(b) and (c) require `separate' convictions, as the [same] term applies to those particular subsections." Moreover, the State cites Creighton v. State, 70 Md.App. 124, 520 A.2d 382 (1987), and argues that "one subsection's provisions should not [be] `superimposed' onto another." Therefore, the State concludes: "Accordingly, the plain language of § 643B(c) does not require that an offender's two felony convictions be separated by a term of confinement to qualify as predicates for sentence enhancement."

Prior to its recodification in 2002, § 643B(c) of Article 27 provided:

Third conviction of crime of violence. —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. 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 occasion.

In other words, in order for a defendant to be designated a habitual offender and receive a 25 year mandatory sentence under § 643B(c), the State must prove...