State v. Polley
| Decision Date | 01 September 1992 |
| Docket Number | No. 1857,1857 |
| Citation | 97 Md.App. 192,627 A.2d 562 |
| Parties | STATE of Maryland v. Ardell Orlando POLLEY. , |
| Court | Court of Special Appeals of Maryland |
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Joseph I. Cassily, State's Atty. for Harford County, Bel Air, on the brief.), for appellant.
Gina M. Serra, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellee.
Argued before GARRITY and BLOOM, JJ., and JAMES S. GETTY, Judge (retired), Specially Assigned.
This appeal involves the interpretation of Md.Code Ann. Art. 27, § 286(d) (1957, 1992 Repl.Vol.), of the controlled dangerous substance laws. Appellee/cross-appellant, Ardell Orlando Polley, was convicted by a jury in the Circuit Court for Harford County (Carr, J., presiding) of distribution of cocaine. Because he had previously been convicted of a drug offense, he was sentenced under the mandatory sentencing provisions of Md.Code Ann. Art. 27, § 286(c)(1) (1957, 1992 Repl.Vol.) to a 20-year prison term, the first ten years being without the possibility of parole. The State of Maryland, appellant/cross-appellee, appeals on the allegation that the trial court erred when it refused to impose a mandatory sentence of twenty-five years pursuant to Art. 27, § 286(d). Polley cross-appeals on the sole ground that the trial court erred by allowing the prosecutor to argue facts not in evidence.
According to the agreed statement of facts underlying Polley's latest conviction, while on an undercover assignment on November 21, 1991, Deputy Jack Meckley of the Harford County Sheriff's Department observed Polley standing in front of 211 Perrywood Court in Aberdeen. At approximately 8:30 p.m., Deputy Meckley walked up to Polley and asked for a twenty. Polley went to a mailbox inside 211 Perrywood Court, took out a baggy, placed it on top of the mailbox, came back outside, and told Deputy Meckley to go inside and leave his money on top of the mailbox. Deputy Meckley walked inside, picked up the baggy, put down twenty dollars, and left. The substance in the baggy field-tested positive for cocaine and subsequently tested positive in the laboratory.
After receiving information from Deputy Meckley, Harford County Sheriff's Deputy Gary Smith went to 211 Perrywood Court and checked the identification of various people there, including Polley. Deputy Smith learned Polley's name, address and birth date, and relayed this information to Deputy Meckley.
Polley was indicted on February 19, 1992 in Harford County and found guilty of distribution of cocaine on August 13, 1992. On October 13, 1992, the trial court sentenced him to the jurisdiction of the Division of Corrections for a period of twenty years, pursuant to Art. 27, § 286(c).
Prior to this conviction, Polley had been convicted in Harford County on January 9, 1991, for offenses committed on August 21, 1990 and September 26, 1990, and placed on probation. On September 25, 1991, Polley was arrested on drug charges in Baltimore City and found guilty of possession on January 28, 1992. He was received at the Eastern Correctional Institution on February 28, 1992 to begin service of a two-year sentence on the Baltimore City conviction and credited with time served from January 30, 1992. It is the sentencing of the fourth conviction, described above, that is the subject of this appeal.
The State contends that the trial judge erred in refusing to impose the mandatory sentence under Art. 27, § 286(d) for subsequent offenders because Polley had two prior drug convictions and had served a term of at least 180 days, thereby satisfying the conditions precedent for the imposition of sentence under this statute.
Article 27, § 286(d), which applies to third offenses, provides in relevant part:
(d)(1) Any person who is convicted under subsection (b)(1) 1 or subsection (b)(2) 2 of this section or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section shall be sentenced to imprisonment for the term allowed by law, but, in any event, not less than 25 years if the person previously:
(i) Has served as 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 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 Article 31B, § 11 of the Code.
(3) 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 offense.
The State argues that the plain meaning of the statute permits the imposition of the enhanced sentence upon Polley. Specifically, the State contends that the statute requires only two previous convictions of drug offenses and the serving of 180 days in confinement prior to imposing sentence on a subsequent conviction, and that that requirement was met in the instant case. The State urges that there is nothing in the statute's language requiring that the predicate convictions and the 180-day term of incarceration occur sequentially.
The State also argues that it is clear from the purpose of the controlled dangerous substance laws that the Legislature intended to punish both the defendant who cannot be rehabilitated and the defendant who commits more than one offense. Md.Code Ann. Art. 27, § 276(a) and (b) (1957, 1992 Repl.Vol.), provides, in pertinent part:
The General Assembly ... finds and declares that the illegal ... distribution ... of controlled dangerous substances ha[s] a substantial and detrimental effect on the health and general welfare of the people of the State of Maryland. It is the purpose of this subheading to establish a uniform law controlling the ... distribution ... of controlled dangerous substances....
(b) The provisions of this subheading shall be liberally interpreted and construed so as to effectuate its general purpose....
The State urges that a liberal interpretation would lead to the conclusion that the Legislature intended § 286(d) to punish offenders who commit more than two offenses.
Polley responds that the trial judge imposed the proper mandatory sentence under Art. 27, § 286(c) 3, because he had not served a term of confinement of 180 days when the instant offense occurred. At the time of the trial for the instant offense, Polley had served eight months of the two-year sentence imposed for the conviction of January 31, 1992. Polley further alleges that because the conviction of January 31, 1992 postdates the instant offense of November 21, 1991, this conviction does not qualify as a predicate for enhanced sentencing purposes. Finally, Polley argues that the convictions of January 9, 1991 cannot be considered as two convictions, because they were both obtained on the same day and, as a result, he did not have an opportunity to reform.
In his brief, Polley refers to Maryland cases interpreting other subsequent offender statutes. Polley cites Montone v State, 308 Md. 599, 521 A.2d 720 (1987), for the proposition that Md.Code Ann. Art. 27, § 643B(b) (1957, 1982 Repl.Vol., 1986 Cum.Supp.), 4 was intended to punish offenders who do not reform their behavior after prior convictions and punishment. 5
Polley also refers to Garrett v. State, 59 Md.App. 97, 111-18, 474 A.2d 931 cert. denied, 300 Md. 483, 479 A.2d 372 (1984), in which this Court was called upon to interpret Md.Code Ann. Art. 27, § 643B(c) (1957, 1982 Repl.Vol., 1982 Cum.Supp.). 6 That statute requires a mandatory minimum sentence for individuals convicted of violent crimes. The statute itself provided that a charging document for the previous offense must be filed prior to the commission of the subsequent offense. Id. 59 Md.App. at 115, 474 A.2d 931.
We held in Garrett that:
the two convictions serving as the predicate for the enhanced sentence must precede in time the commission of the offense upon which the instant conviction is based. Deterrence rather than retribution, is the legislative intent we shall infer; and that, as the cited authority makes clear, requires that the instant offense--the one for which the enhanced punishment is imposed--be committed after the two predicate convictions.
Garrett, 59 Md.App. at 118, 474 A.2d 931.
Although the cases cited by Polley are persuasive only and are not binding upon this Court, we believe that § 643B, which is narrowly directed towards repeat offenders of violent crimes who, having been exposed to the correctional system three distinct times, have nevertheless failed to rehabilitate but have instead committed a fourth violent crime, is relevant to the issue in the case sub judice. The principles underlying the creation of both § 643B and § 286(d) are similar. We interpret that the Legislature intended that the sentences available under them encompass not only punishment objectives, as in § 286(c), but be enhanced because a defendant has committed another offense after having served an extended period of incarceration, thereby showing that the defendant has failed to take advantage of the opportunity to reform his or her conduct.
In the area of statutory construction, we have repeatedly stated:
The cardinal rule in the construction of statutes is to effectuate the intent of the Legislature. In order to do so, a court should consider the object or purpose to be attained by the statute, and the evils or mischief sought to be remedied, and so construe the statute as to carry out and effectuate, or aid in, the general purposes and policies thereof, and suppress the mischief and advance the remedy. If a statute is susceptible of more than one...
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