State ex rel. Sonner v. Shearin

• Decision Date: 01 October 1974
• Docket Number: No. 3 and N,3 and N
• Citation: 325 A.2d 573,272 Md. 502
• Parties: , 73 A.L.R.3d 454 STATE of Maryland ex rel. Andrew L. SONNER, State's Attorney for Montgomery County, Maryland v. Plummer M. SHEARIN, Judge. STATE of Maryland v. Jerome Mercer SCHOOLS. Misc.o. 86.
• Court: Maryland Court of Appeals

Page 502

272 Md. 502

325 A.2d 573, 73 A.L.R.3d 454

STATE of Maryland ex rel. Andrew L. SONNER, State'sAttorney for Montgomery County, Maryland v.Plummer M. SHEARIN, Judge.

STATE of Maryland v.Jerome Mercer SCHOOLS.

Misc. No. 3 and No. 86.

Court of Appeals of Maryland.

Oct. 1, 1974.

Henry R. Lord, Deputy Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and George A. Eichhorn, III, Asst. Atty. Gen., Baltimore, on the brief), for petitioner and appellant.

Charles Norman Shaffer, Rockville (Robert James Tubbs and Shaffer, McKeever & Fitzpatrick, Rockville, on the brief), for Plummer M. Shearin, Judge.

Theodore A. Miller, Rockville, for Jerome Mercer Schools.

Argued before MURPHY, C. J., SINGLEY, SMITH, DIGGES, ELDRIDGE and O'DONNELL, JJ., and CHARLES E. ORTH, Jr., Chief Judge of the Court of Special Appeals, specially assigned.

SMITH, Judge.

We shall here hold that a trial judge (Shearin, J.) imposed an improper condition on an otherwise legal sentence when he suspended a portion of a five-year prison sentence for the use of a handgun in the commission of a felony.This suspension rendered the sentence illegal, since Maryland Code(1957, 1971 Repl.Vol., 1973 Cum. Supp.) Art. 27, § 36B(d) makes mandatory in such case the imposition of 'no less than the minimum sentence of five years.'Subsection (e) provides that '(n)otwithstanding any other provision of the law to the contrary, including the provisions of § 643 of (Art. 27, with exceptions not here pertinent,) no court shall enter a judgment for less than the mandatory minimum sentence prescribed in (that) subheading in those cases for which a mandatory minimum sentence is specified . . . (and) no court shall suspend a mandatory minimum sentence prescribed in (that) subheading . . ..'

We shall also hold that the trial judge's refusal to correct the illegal sentence was properly appealed by the State.However, we shall find it unnecessary to decide the issue presented by a petition to use for the writ of mandamus directed to the trial judge.

Jerome Mercer Schools (Schools) entered guilty pleas to charges of assault with intent to rape, armed robbery (two separate charges), assault and battery (two separate charges), larceny of goods having a value of more than $100, use of a handgun in the commission of a felony, and illegal possession of a handgun.This was not his first experience with our criminal courts since the trial judge stated that Schools had been previously convicted of manslaughter, 'sentenced as of March 16, 1970, to seven years in the Maryland penal system by the Anne Arundel County Circuit Court and paroled on November 23, 1971, after serving approximately 20 months of that term.'In this case his sentences, all concurrent and all dating from February 14, 1973, ranged from seven years down to one year.However, for all practical purposes the sentences were for but two years since the trial judge suspended the balance of all sentences that had not expired by February 14, 1975.¹An assistant state's attorney suggested to the trial judge that it was his understanding that the sentence in this case could not be suspended.The following then took place:

'JUDGE SHEARIN: Well, I do not read the law that way.

'The reasoning which applies to Section 36B, Subsection (e) is in apparent conflict with another section of Article 27.I will read it again.

'MR. LEAR: You are speaking of 643, Your Honor?

'JUDGESHEARIN: 643 is specifically referred to but there is another provision of Article 27 which the Court had in mind aside from that.

'641 and 641A likewise purport to confer upon the courts of this State the power to suspend sentences.²

'I think, with all due regard to the General Assembly of Maryland as a separate and co-equal branch of the Government, that the courts of this State have inherent power, unencumbered by legislative prerogative or fiat, to impose such sentences as they may see fit within the maximums otherwise provided by law and to suspend all or part of such sentences.This Court does not intend to be bound by-until it is so held by a court of higher jurisdiction-the apparent intent of Subsection (e) of Section 36B of Article 27.

'If the Legislature wishes, by constitutional amendment approved by the voters, to deprive the courts of this State of the power to deal with the sentencing process, that the people can do.

'The Court believes that it has dealt with all of the charges now which require action by the Court, and the defendant is remanded to custody for execution of the sentence.'

On March 27, 1974, in an attempt to compel the revision of the sentence as to the handgun violation, the State's Attorney for Montgomery County filed a petition with us for the writ of mandamus, the writ of certiorari, 'or other appropriate relief.'Judge Shearin was named as defendant in that petition.We passed an order on April 4 directing that this petition should be held in 'abeyance, pending application by the State's Attorney for Montgomery County to the respondent judge pursuant to Maryland Rule 764 a, for an order nullifying the suspension of three years of the sentence.'The State then filed a motion in the trial court for correction of the sentence.The motion was denied.The State appealed this denial to the Court of Special Appeals.Before that court considered the appeal, we granted the petition of the State for the writ of certiorari in order that we might consider the refusal of the trial judge to correct the allegedly illegal sentence (known here as No. 86, September Term, 1974) along with the petition for the writ of mandamus, etc. (known in this Court as Misc. No. 3, September Term, 1974).An answer was duly filed by the trial judge in the mandamus case.Leave was granted to Schools to intervene in that matter.He has filed an answer opposing the grant of the writ of mandamus, the motion for which has been renewed by the State.We directed that the cases be consolidated for argument and, because of the importance of the matter, advance them and heard them on July 25.

ISuspension of Sentence

We shall first consider the propriety of the suspension of sentence.In so doing, it must be remembered that under the Constitution and laws of the State of Maryland this Court has no power to determine that punishment which shall be imposed for any violation of law.It is not for us to say whether a given punishment is or is not that most likely to effectively reform the convicted criminal.Our examination of such a matter must be confined to ascertaining whether the judgment of a trial court is within the limits permitted and prescribed by law.

The trial judge, in refusing to alter the sentence he had previously imposed, took the view that the combination of the inherent power of the courts and the doctrine of separation of powers, as expressed in Art. 8 of the Maryland Declaration of Rights, in his view 'mandates a government of three separate and co-equal branches,' thus vesting him with the power to do that which he did.He further stated, however, 'that, if the Court of Appeals should conclude that Section 36B(e) is a valid exercise of the legislative power of the General Assembly, a serious question of statutory construction remains for ultimate decision by that Court.'We shall consider those points in inverse order.

(a) Statutory Construction

The trial judge pointed out that Chapter 13 of the Acts of 1972 added § 36B to Art. 27, that this was approved on March 27, 1972, and that this took effect from the date of its passage as emergency legislation.Subsection (e) of § 36B provided that sentence under it should not be suspended '(n)otwithstanding any other provision of law to the contrary, including the provisions of § 643 of (that)article,' with certain exceptions not here pertinent.Then by Chapter 181 of the Acts of 1972, effective July 1 of that year, the General Assembly repealed and re-enacted § 643 of Art. 27, the amendment making it applicable to the District Court of Maryland in addition to the other courts to which it had previously applied.It is § 643 which has permitted judges in Maryland since its enactment by Chapter 563 of the Acts of 1906'in lieu of the minimum penalty . . . prescribed (by statute to) impose a less penalty of the same character . . ..'Judge Shearin cited our holding in Hensley v. Bethesda Metal Co., 230 Md. 556, 188 A.2d 290(1963), and 1A C. D.Sands, Sutherland Statutory Construction § 23.29(4th ed. 1972).He then said:

'(W)e must conclude that, notwithstanding whatever decision may ultimately be rendered on the constitutional issue dealt with earlier in this opinion, Section 643 of Article 27 of the Maryland Code is no less viable and effective today than it was prior to the 1972 session of the General Assembly.In short, the authority, purportedly conferred by that section, to suspend sentences still survives.'

The short answer to this contention is found in § 75 of Chapter 181 of the Acts of 1972.It states 'Section 75.And be it further enacted, That any law enacted by the 1972 regular session of the General Assembly to amend, repeal, or add any provision of law which is amended, repealed, or added by this Act shall be construed and codified together with this Act, and each shall be given effect, if possible, and with due regard to the title of each.If the Acts are irreconcilable and cannot be construed together, then the other Act shall prevail over anything inconsistent therewith in this Act.'

Accordingly, if there is a conflict between Art. 27, § 36B as enacted by Chapter 13 of the Acts of 1972 and Art. 27, § 643 as repealed and re-enacted by Chapter 181 of the Acts of 1972, the General Assembly has mandated that § 36B prevails, thus disposing of the contention relative to statutory construction.

(b) Inherent Power and Separation of Powers

Judge Shearin, in his opinion, quoted from Art. 8 of the Declaration of Rights which states:

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