Montone v. State

• Citation: 308 Md. 599,521 A.2d 720
• Decision Date: 01 September 1985
• Docket Number: No. 74,74
• Parties: Santo Louis MONTONE, Jr. v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 599

308 Md. 599

521 A.2d 720

Santo Louis MONTONE, Jr. v. STATE of Maryland.

No. 74, Sept. Term, 1985.

Court of Appeals of Maryland.

March 3, 1987.

Certiorari to the Court of Special Appeals (Circuit Court for Montgomery County, Judge James S. McAuliffe, Jr.).

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH ^*, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned, JJ.

COLE, Judge.

At issue in this case is the propriety of Santo Louis Montone's sentence to life imprisonment without possibility of parole under Maryland's habitual criminal statute. The statute reads in pertinent part: "Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole." Md.Ann.Code art. 27 § 643B(b) (1957, 1982 Repl.Vol., 1986 Cum.Supp.). We set forth the entire section in the margin. ¹

Montone was sentenced ostensibly pursuant to § 643B(b) in two separate criminal proceedings in the Circuit Court for Montgomery County. In the first, on March 14, 1983, Montone pled guilty to charges of daytime housebreaking and felony theft. Montone received sentences of life imprisonment without possibility of parole on the housebreaking conviction and fifteen years on the theft conviction. In the second proceeding, on April 6, 1983, the trial judge found Montone guilty on three counts of robbery with a deadly weapon and one count of use of a handgun in the commission of a crime of violence. On May 11, 1983, the trial judge, acting again pursuant to § 643B(b), sentenced Montone on each of these four convictions to concurrent life sentences without possibility of parole.

Montone's cases were consolidated for appeal. The Court of Special Appeals, in an unreported per curiam opinion, affirmed his convictions but vacated his sentences. Montone v. State, Nos. 689 and 726, September Term, 1983, filed March 1, 1984. The intermediate appellate court found that Montone should not have been sentenced to more than one life term without possibility of parole and remanded the cases for appropriate sentencing. Id.

On remand, Montone's sentences for his March 13, 1983 housebreaking and felony theft convictions were reduced to sentences within the statutory limits. Thus, the propriety of these sentences is not before the Court. The judge also reduced three of Montone's concurrent life sentences without possibility of parole for his April 6, 1983 convictions to three concurrent twenty-year sentences. However, the judge left intact Montone's life sentence without possibility of parole on one of his April 6, 1983 armed robbery convictions. This sentence was affirmed by the Court of Special Appeals in an unreported per curiam opinion. Montone v. State, No. 973, September Term, 1984, filed March 19, 1985. We granted certiorari to determine if Montone's life sentence without possibility of parole was pursuant to § 643B(b).

The facts giving rise to this question are as follows. After Montone's guilty plea to daytime housebreaking and felony theft on March 14, 1983 and after Montone was convicted of three counts of robbery with a deadly weapon and use of a handgun in the commission of a crime of violence, the State notified Montone that it was seeking imposition of a mandatory life sentence without possibility of parole based on the following prior convictions of violent crimes. The first conviction was on June 14, 1976 for statutory nighttime housebreaking; the second conviction was on June 14, 1977 for statutory daytime housebreaking; the third conviction was on February 13, 1979 for statutory nighttime housebreaking; and the fourth conviction was also on February 13, 1979 for use of a handgun in the commission of a crime of violence. The State's notice did not indicate a term of imprisonment for Montone's 1976 conviction. Thus, the trial court did not consider this conviction as a predicate crime. However, the State did allege that the June 14, 1977 conviction resulted in a term of confinement. For this conviction, Montone was sentenced to a term of six and one-half years, all but eighteen months suspended, and probation for five years. Montone was actually incarcerated on this conviction from March 17, 1977 to May 16, 1978. Montone concedes that this qualifies as his first "term of confinement" under the statute.

However, the major controversy in this case centers around Montone's third and fourth convictions and whether the periods of incarceration incident thereto qualify as separate terms of confinement under the statute. To recapitulate, Montone was tried and convicted on February 13, 1979 for nighttime housebreaking on September 8, 1978 and sentenced to a term of imprisonment from two to seven years. Also on February 13, 1979, Montone was convicted of the use of a handgun in the commission of a felony. He was sentenced to a term of imprisonment of five years to run consecutive to his conviction in the nighttime housebreaking case. However, after Montone had served nineteen months of imprisonment, the trial judge reconsidered the sentences, suspended the execution of the balance of both and placed Montone on concurrent five year periods of probation. ² Thus, prior to reconsideration and release on probation, Montone had been incarcerated for nineteen months, September 8, 1978 to April 8, 1980. The State considered this period of imprisonment to be Montone's second term of confinement under the statute.

The third term of confinement relied upon by the State stems from the revocation of the above concurrent probation for which the trial court reduced the unserved part of Montone's consecutive seven- and five-year terms to concurrent terms of eighteen-months imprisonment.

Montone presents three arguments to substantiate his claim that the trial court erred in sentencing him to a mandatory life sentence without possibility of parole: first, he asserts that he does not have "three separate terms of confinement" as required by § 643B(b) because his second and third convictions were not "separate" due to the fact that he committed both crimes before he was convicted of either; second, he maintains that he has not served "three separate terms of confinement" because the period of confinement resulting from his third predicate conviction was wholly concurrent with the "term of confinement" resulting from his second predicate conviction; and third, he argues that he has not served "three separate terms of confinement" that are "a result of three separate convictions" because his last term of confinement was "a result of" a probation violation.

The State responds that as long as three predicate convictions precede the commission of the principal offense, the order in which they occur is irrelevant under § 643B(b). The State also alleges that Montone has served "three separate terms of confinement" because he has served three periods of imprisonment. Thus, our task is clear; we must determine whether Montone has the requisite "separate terms of confinement" and "separate convictions" to bring into play the statute's mandatory life sentence. We conclude that he does not. We explain.

Section 643B(b) ³ is unlike any other habitual offender statute in the country. The Maryland statute requires more than merely "previous" convictions; it requires separate convictions. Moreover, the statute's scope is narrowed by the fact that it requires not only that an individual shall have received separate convictions, but that he shall have been sentenced to, and shall have actually served, three separate terms of confinement under the jurisdiction of the correctional system. Thus, the picture that emerges is one of a statute specifically designed to identify and target a unique class of people so that they may be permanently exiled from our free society. These are the violent criminals who have been exposed to the correctional system three distinct times, who have refused to conform their conduct to societal standards, and who, instead, have demonstrated violent criminal behavior after each encounter with the correctional system, thus evidencing the futility of any hope for their rehabilitation.

Only four states aside from Maryland subject an habitual offender to a mandatory sentence of life imprisonment without possibility of parole. ⁴ More important, however, is the fact that Maryland's habitual offender statute is unique in its method of identifying habitual offenders. The majority of states determine habitual offender status by totalling the offender's previous convictions, regardless of whether the offender has been sentenced to or has served a period of imprisonment therefor. ⁵ A few states require that, at a minimum, an offender must have been sentenced to a term of confinement before a conviction may qualify as a predicate crime for an enhanced sentence. ⁶ However, only two states require, as does Maryland, that an offender shall have actually served a "separate term of confinement" as a result of a conviction before that conviction may qualify as a basis for enhanced punishment. ⁷

State courts across the country have been asked to construe their respective habitual offender statutes and we find their decisions instructive. A significant number of state courts faced with statutes far less precise than § 643B(b) have concluded that the convictions used as a basis for enhanced punishment, or "predicate convictions," must occur sequentially. Thus, in these jurisdictions, the commission of each predicate crime except the...