Nelson v. State

Citation975 A.2d 298,187 Md. App. 1
Decision Date07 July 2009
Docket NumberNo. 982, September Term, 2008.,982, September Term, 2008.
PartiesMichael Andrew NELSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Michael A. Nelson, Jessup, for appellant.

Mary Ann Ince (Douglas F. Gansler, Office of the Atty. Gen., on the brief), Baltimore, for appellee.

Panel: HOLLANDER, GRAEFF and PAUL E. ALPERT (Retired, Specially Assigned), JJ.

HOLLANDER, Judge.

Michael Andrew Nelson, appellant, pro se, has noted an appeal from the denial of his motion to correct an illegal sentence. In particular, in 2002 appellant was sentenced by the Circuit Court for Washington County to an enhanced penalty of 25 years without parole, pursuant to Article 27, § 286(d) of the Maryland Code (1996 Repl.Vol., 2001 Supp.).1 He contends here, as he did below, that he was illegally sentenced as a three-time felony drug offender, because he had never been sentenced as a second-time offender under Article 27, § 286(c).

As we shall see, appellant facially satisfies the predicates for imposition of sentence under Article 27, § 286(d). The question we must resolve is whether the 25-year sentencing enhancement under § 286(d) is reserved only for repeat drug offenders who were previously sentenced, as second offenders, to the 10-year, no parole enhancement under § 286(c).2 For the reasons that follow, we hold that appellant was legally sentenced under Article 27, § 286(d). Accordingly, we shall affirm the circuit court's denial of appellant's motion to correct an illegal sentence.

FACTUAL BACKGROUND

Appellant was arrested in Washington County on December 11, 2001, and charged with possession of cocaine with intent to distribute and simple possession. Following a bench trial on September 10, 2002, appellant was convicted of those offenses. At a sentencing hearing held on October 15, 2002, the court confirmed that the State had timely filed the "subsequent offender notice" advising appellant that it intended to seek imposition of sentence as a three-time offender under Article 27, § 286(d).3 Appellant did not protest his status as a third-time offender.

The sentencing judge made the following findings:

The court has, having looked at all the documents, found beyond a reasonable doubt that, indeed, the defendant has been convicted on two previous occasions, at least two previous occasions, with possession with intent to distribute cocaine, that is the Frederick [County] case number 23644, possession with intent to distribute cocaine, in which the defendant was found guilty on August 14, 1999, given 12 years Department of Correction, with all but 4 years suspended. In [Washington] County, case number 24459, which the court has looked at the file itself, and taken judicial notice of, where the defendant was found guilty on September 9, 1999, with possession with intent to distribute cocaine. He received 12 years DOC, all but three years suspended. And, also the Carroll County case.[4] The court is convinced that the defendant is the person indicated in that case, which is a possession with intent to distribute cocaine. The tracking number is exactly the same [], in which the defendant received three years Department of Correction, all suspended, at that time. The court is, also, convinced, and find[s] beyond a reasonable doubt, by the testimony of the probation officer in this case, Ms. Talbert, that the defendant for the Frederick County case and the Washington County case served time beginning August 18, 1999, and was released November 1, 2000. In fact, she said that was for the Frederick County case alone. He was then placed on probation, [] and he paroled out, I believe, on the Washington County case, but he has served, the court finds, beyond a reasonable doubt, at least 180 days in the Department of Corrections as a result of the Frederick County case.

So, all the predicates have been found beyond a reasonable doubt, that is the two prior, in fact, three prior convictions; the serving of at least 180 days in a correctional institution as a result of a conviction. The court finds that the convictions that I've just noted were not as a result of a single event, but as a result of separate events because they, simply put, occurred on different dates, occurred in different counties, so all the predicates have been found beyond a reasonable doubt.

After concluding, without objection, that appellant qualified as a third-time offender under Article 27, § 286(d), the sentencing judge merged the simple possession count into the distribution count and imposed a sentence of 25 years without parole.5

Appellant filed his "Motion To Correct An Illegal Sentence" on May 14, 2008. The State opposed the Motion. The court denied the Motion by "Order of Court" issued on June 2, 2008. It did not specify its reasons for the ruling. This appeal followed.

We shall include additional facts in our discussion.

DISCUSSION
I.

Article 27, § 286, and its successor, C.L. § 5-608, mandate enhanced penalties for subsequent offenders convicted of certain felony drug offenses. In particular, the penalty provisions for repeat drug offenders "create[] a tiered sentencing scheme for first, second, third, and fourth offenders, with mandatory minimum terms of sentencing for each succeeding conviction." Taylor v. State, 175 Md.App. 153, 162, 926 A.2d 805, cert. denied, 401 Md. 174, 931 A.2d 1096 (2007). As the Court of Appeals has said, "The clear import of the language used throughout [Art. 27], § 286 is that the Legislature sought to impose more stringent penalties on certain offenders who repeatedly persist in a pattern of criminal conduct." Gargliano v. State, 334 Md. 428, 442, 639 A.2d 675 (1994); see also State v. Stewart, 368 Md. 26, 35 n. 10, 791 A.2d 143 (2002).

To that end, Article 27, § 286 established "benchmarks" for the imposition of enhanced penalties. Taylor, 175 Md.App. at 168, 926 A.2d 805. It provided, in part:

(a) Prohibited conduct.—Except as authorized by this subheading, it is unlawful for any person:

(1) To ... possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance;

* * *

(b) Penalty.—Any person who violates any of the provisions of subsection (a) of this section with respect to:

(1) A substance classified in Schedules I or II which is a narcotic drug is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both.

* * *

(c) Sentencing.(1) A person who is convicted under subsection (b)(1) ... of this section shall be sentenced to imprisonment for not less than 10 years and subject to a fine not exceeding $100,000 if the person previously has been convicted:

(i) Under subsection (b)(1) ... of this section;....

(2) The prison sentence of a person sentenced under subsection (b)(1) ... of this section ..., as a second offender may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with § 4-305 of the Correctional Services Article.

Thus, a second-time offender is subject to a mandatory 10-year, essentially non-parolable term of incarceration upon a finding that he or she had been previously convicted under Article 27, § 286(b)(1), regardless of whether the offender served time for the prior conviction.

For a "third-time offender," the statute provided:

(d) Additional penalty for one or two previous offenses.(1) A person who is convicted under subsection (b)(1) ... of this section ... shall be sentenced to imprisonment for the term allowed by law, but, in any event, not less than 25 years and subject to a fine not exceeding $ 100,000 if the person previously:

(i) Has served at least 1 term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation of this section or § 286A of this article; and

(ii) Has been convicted twice, where the convictions do not arise from a single incident....

(2) Neither the sentence under paragraph (1) of this subsection nor any part of it may be suspended, and the person may not be eligible for parole except in accordance with § 4-305 of the Correctional Services Article.

Accordingly, a third time offender is subject to a mandatory 25-year, essentially non-parolable term of incarceration, upon a finding that he was twice previously convicted under Article 27, § 286(b)(1), for separate incidents, and served at least one term of post-conviction incarceration lasting a minimum of 180 days in a correctional institution. "[B]y imposing the 180 day minimum, the legislature was ensuring that those who received the enhanced punishment had been accorded a fair chance at rehabilitation in the prison system and had not responded." Jones v. State, 324 Md. 32, 38, 595 A.2d 463 (1991). See also Melgar v. State, 355 Md. 339, 353, 734 A.2d 712 (1999) (stating that time spent in pre-trial detention is not counted toward the statutory 180-day predicate under § 286(d)(1)(f)).

For a so called "fourth-time offender," the statute provided:

(e) Additional Penalty for three or more previous offenses.(1) A person who is convicted under subsection (b)(1) ... of this section ... shall be sentenced to imprisonment for the term allowed by law, but in any event, not less than 40 years and subject to a fine not exceeding $100,000 if the person previously has served 3 separate terms of confinement as a result of 3 separate convictions:

(i) Under subsection (b)(1) ... of this section;

* * *

(2) Neither the sentence required under paragraph (1) of this subsection nor any part of it may be suspended, and the person may not be eligible for parole except in accordance with § 4-305 of the Correctional Services Article.

Therefore, to be sentenced as a fourth-time offender, a defendant must have served three separate terms of confinement as a result of three separate qualifying drug...

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