State v. Hannah

• Decision Date: 01 September 1985
• Docket Number: No. 144,144
• Citation: 514 A.2d 16,307 Md. 390
• Parties: STATE of Maryland v. Marvin Lee HANNAH. ,
• Court: Maryland Court of Appeals

Page 390

307 Md. 390

514 A.2d 16

STATE of Maryland v. Marvin Lee HANNAH.

No. 144, Sept. Term, 1985.

Court of Appeals of Maryland.

Sept. 4, 1986.

Mary Ellen Barbera, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore Co. and Mickey J. Norman, Asst. State's Atty. for Baltimore Co., Towson, on brief), for appellant.

Sherrie B. Glasser, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SMITH, ^* ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

RODOWSKY, Judge.

Here we shall hold that the statute giving the State the right to appeal from a "final judgment" in a criminal case for failure of the trial judge to impose a mandated sentence applies where the trial judge granted probation before judgment in disregard of the minimum five years imprisonment mandated by the handgun statute.

Appellee, Marvin Lee Hannah (Hannah), pled guilty in the Circuit Court for Baltimore County to common law robbery and to use of a handgun in the commission of a felony in violation of Md. Code (1957, 1982 Repl. Vol., 1985 Cum.Supp.), Art. 27, § 36B. The crimes were committed May 22, 1985. On the robbery charge the court sentenced Hannah to ten years imprisonment of which he was to serve two years. The balance of the confinement was suspended and Hannah was placed on five years probation beginning with his release from custody.

Article 27, § 36B mandates a minimum sentence of five years for the first commission of the handgun violation involved here. In relevant part § 36B reads:

(d) Unlawful use of handgun ...; penalties.--Any person who shall use a handgun ... in the commission of any felony ... shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony....

(1) For a first offense, be sentenced ... for a term of not less than 5 nor more than 20 years, and it is mandatory upon the court to impose no less than the minimum sentence of 5 years.

....

(e) Reduction or suspension of mandatory minimum sentence; probation.--Notwithstanding any other provision of law to the contrary, including the provisions of § 643 of this article, (1) ... no court shall enter a judgment for less than the mandatory minimum sentence prescribed in this subheading in those cases for which a mandatory minimum sentence is specified in this subheading; (2) ... no court shall suspend a mandatory minimum sentence prescribed in this subheading; (3) ... no court shall enter a judgment of probation before or without verdict with respect to any case arising under this subheading; and (4) ... no court shall enter a judgment of probation after verdict with respect to any case arising under this subheading which would have the effect of reducing the actual period of imprisonment prescribed in this subheading as a mandatory minimum sentence. ¹

At Hannah's sentencing the court struck its previous finding of guilty on the handgun charge and placed him on five years probation before judgment, to run concurrently with the probation imposed under the robbery count. This disposition of the handgun charge was purportedly authorized by Art. 27, § 641 which in relevant part provides:

(a) Probation after plea or finding of guilt; power of court to provide terms and conditions; waiver of right to appeal from judgment of guilt.--(1)(i) Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court ... with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate.

....

(3) By consenting to and receiving a stay of entering of the judgment as provided by this subsection, the person waives the right to appeal from the judgment of guilt by the court at any time.

The State noted an appeal to the Court of Special Appeals and we granted the State's petition for the writ of certiorari prior to consideration of the matter by the Court of Special Appeals. ² On the premise that the circuit court was compelled to impose a minimum five-year sentence, the State asserts that its right to appeal is conferred by Md. Code (1974, 1984 Repl. Vol.), § 12-302(c)(2) of the Courts and Judicial Proceedings Article (CJ). Subsection (c), in general, provides:

(c) In a criminal case, the State may appeal as provided in this subsection.

(1) The State may appeal from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition.

(2) The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.

(3)(i) In a case involving a crime of violence ... the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been [illegally] seized....

Hannah argues that the State has no right of appeal under the circumstances here. Relying on Warren v. State, 281 Md. 179, 377 A.2d 1169 (1977), Hannah submits that probation before judgment under Art. 27, § 641 is not a "final judgment" as required by CJ § 12-302(c)(2). Hannah further contends that, even if the appeal lies, the circuit court did not violate the mandate of the handgun statute which operates only "on conviction" of a handgun violation, as the term is used in Art. 27, § 36B(d), and which does not in terms prohibit use of probation before judgment.

Warren involved an attempt to appeal from the District Court of Maryland to a circuit court, pursuant to CJ § 12-401(a), by a defendant who had been placed on probation by the District Court pursuant to Md. Code (1957, 1976 Repl. Vol.), Art. 27, § 292(b), a provision of the Maryland Controlled Dangerous Substances Act. Under the provision, a court, with the consent of a first time drug offender who had pled or been found guilty, could "stay the entering of the judgment of guilt, defer further proceedings, and place such person on probation[.]" Section 292(b) further provided that

[u]pon violation of a term or condition, the court may enter a judgment of conviction and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without a judgment of conviction and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by the law upon conviction of a crime.... Any expunged arrest and/or conviction shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute or regulation or license or questionnaire or any other public or private purpose, provided that any such conviction shall continue to constitute an offense for purposes of this subheading or any other criminal statute under which the existence of a prior conviction is relevant.

CJ § 12-401(a), relied on for the right to appeal in Warren, provides that "the defendant in a criminal case may appeal from a final judgment entered in the District Court[,]" and that "the defendant may appeal even though imposition or execution of sentence has been suspended." Warren held that the order of probation under Art. 27, § 292(b) was not a final judgment under CJ § 12-401(a). Initially we pointed out that, while CJ § 12-101(f) presents a definition of "final judgment," that section "does not attempt to specify what is an appealable final judgment or order, and leaves that determination to the case law." ³ 281 Md. at 183, 377 A.2d at 1171. We in effect reasoned that under the scheme of § 292(b) the rights of the parties would not be settled until after the probation order, which would occur either by the successful completion of the probationary period or by the revocation of probation. In the former event there would never be a judgment of conviction, and in the latter event the disposition would finally settle the defendant's guilt and the defendant would then be entitled to appeal. Warren further held that the provision in CJ § 12-401(a) for appealability "even though imposition or execution of sentence has been suspended," did not alter this result. That provision "is limited solely to those situations where the sentence in the traditional sense of a fine or prison term is lacking." Id. at 187, 377 A.2d at 1174. We held "that an order for probation without entry of judgment does not fall within the suspended sentence exception to the final judgment rule." Id. at 188, 377 A.2d at 1174 (footnote omitted).

Warren recognized that there are similarities between orders for probation under § 292(b) and under § 641, with which we are concerned in the instant matter. We said:

An order for probation under Art. 27, § 641, which has general application, is similar to an order under § 292 in that the court "stay[s] the entering of judgment, defer[s] further proceedings, and place[s] the person on probation subject to reasonable terms." Like § 292, § 641 provides for discharge of the accused after probation, but unlike § 292, § 641 does not provide for dismissal upon successful completion of probation. Nor does § 641 provide for automatic expungement. The views we express here are, of course, limited to § 292. [Id. at 181 n. 1, 377 A.2d at 1170 n. 1.]

The issue now before us, however, is not whether an order for probation under § 641 would be a final judgment for purposes of the statutes generally conferring a right on the defendant in a criminal case to appeal from a "final judgment" entered in the District Court (CJ § 12-401(a)) or in a circuit court (CJ § 12-301). In the case before us the State's right to appeal rises or...