State v. Stewart

Decision Date13 February 2002
Docket NumberNo. 63,63
Citation368 Md. 26,791 A.2d 143
PartiesSTATE of Maryland, v. Charles Benjamin STEWART.
CourtMaryland Court of Appeals

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellant/cross-appellee.

Peter F. Rose, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellee/cross-appellant.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, Judge.

The Circuit Court for Calvert County held that twenty-five years imprisonment without the possibility of parole, the mandatory sentence under Maryland Code (1970, 1996 Repl.Vol., 2001 Supp.) Article 27, § 286(d)1 was cruel and unusual as applied to Charles B. Stewart. The court sentenced Stewart to ten years without parole. The State of Maryland appeals. In a cross-appeal, Stewart argues that, according to the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial judge erred in denying him a jury trial on the issue of sentencing. We shall hold that the trial court erred in failing to impose the mandatory sentence and that Apprendi is inapplicable.

I.

Charles B. Stewart, appellee, was indicted by the Grand Jury for Calvert County for possession and distribution of crack cocaine. After Stewart was convicted by a jury, the State argued that Stewart should be sentenced as a subsequent offender under Article 27, § 286(d), which provides as follows: "(1) A person who is convicted under 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 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...."

Id.

The trial court found that the State proved beyond a reasonable doubt the predicate facts necessary to support the mandatory sentence under § 286(d). The court also found that the conviction in this case was Stewart's third conviction for distribution of a controlled dangerous substance or possession with intent to distribute, and that Stewart served a term of confinement over 180 days following one of his prior convictions. In fact, the court observed that he had served three-and-ahalf years in prison. The court stated:

"Therefore, having found that the State—the notice was done properly, the convictions were authenticated properly beyond a reasonable doubt, the Court is satisfied beyond a reasonable doubt that you served more than one hundred and eighty days after one of the two previous convictions.
The Court is satisfied that the State has met their burden. And that their request to seek mandatory sentencing of twenty-five years without parole has been met."

Before the trial court imposed the sentence set out in § 286(d), defense counsel argued that the mandatory sentence was unconstitutional as applied to Stewart because "[t]here is nothing in this case to aggravate the nature of the distribution, no large quantity was involved. There was no violence, no weapons, none of that stuff, no large amounts of cash. It simply involves the distribution of one hundred and fifty dollars worth of cocaine." Defense counsel concluded that the sentence of twenty-five years without parole was grossly disproportionate to appellee's crime and thus "cruel and unusual." The State countered that the trial court lacked discretion to impose any sentence below the mandatory minimum sentence of twenty-five years without parole.

The trial court agreed with defense counsel. The court stated:

"I find ... that [defense counsel's] argument of cruel and unusual, and I'm sure he is shocked and astounded to hear me say it, that the argument of cruel and unusual punishment in this case based on these facts that I listened to as the Judge in your trial, and having been a prosecutor before and having been a Judge now for almost six years, and I hope a sense of fairness as to what is appropriate in cases, find that his argument, and it is a constitutional one, in this case I find that the statutory legislative scheme in your case, Mr. Stewart, and not in all others, but in your case under these facts, I find that the legislative scheme of requiring me to give you a twenty-five years sentence without parole would under these facts represent cruel and unusual punishment."

The State noted a timely appeal to the Court of Special Appeals, pursuant to Maryland Code (1957, 1998 Repl.Vol., 2001 Supp.) § 12-302(c)(2) of the Courts and Judicial Proceedings Article.2 We granted certiorari on our own motion prior to consideration by that court. State v. Stewart, 365 Md. 266, 778 A.2d 382 (2001).

II.

Appellee argues that the trial court correctly found that under the facts of this case, the sentence mandated by § 286(d) was cruel and unusual punishment. More specifically, he claims that the mandatory sentence is unconstitutionally disproportionate to his crime. Appellee relies on the Eighth Amendment to the United States Constitution,3 Article 25 of the Maryland Declaration of Rights,4 and Article 16 of the Maryland Declaration of Rights.5

The State argues that this Court has held that whenever the statutory requirements are met and notice given, a trial court must impose the sentence prescribed in the mandatory sentencing statute. Thus, the State concludes that the trial court erred in declining to sentence appellee to the mandatory sentence under § 286(d): twenty-five years without parole. We agree with the State.

III.

The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."6 Similarly, Article 25 of the Maryland Declaration of Rights provides "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law." Finally, Article 16 of the Maryland Declaration of Rights provides "[t]hat sanguinary Laws ought to be avoided as far as is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter."

The Eighth Amendment encompasses a narrow proportionality principle prohibiting "grossly disproportionate" sentences. Harmelin v. Michigan, 501 U.S. 957, 997, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Supreme Court held a sentence of life imprisonment without the possibility of parole for a seven-time non-violent felony recidivist unconstitutionally disproportionate. In so finding, the Court emphasized that successful challenges to the proportionality of a particular sentence are exceedingly rare. Id. at 289-90, 103 S.Ct. at 3009, 77 L.Ed.2d 637. The Court stated that appellate courts' proportionality review should be guided by objective criteria, including: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d 637.

In Harmelin v. Michigan, the Supreme Court revisited its decision in Solem. Justice Kennedy, concurring in the judgment, and writing for himself and three other justices, clarified that "the Eighth Amendment does not require strict proportionality between crime and sentence. Rather it forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001, 111 S.Ct. at 2705, 115 L.Ed.2d 836 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. at 288, 103 S.Ct. at 3008, 77 L.Ed.2d 637).7 Therefore, a detailed proportionality review based on the criteria set out in Solem is "appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707, 115 L.Ed.2d 836 (Kennedy, J., concurring).8

This Court has found Justice Kennedy's approach to be consistent with our holdings in State v. Davis, 310 Md. 611, 530 A.2d 1223 (1987), and Minor v. State, 313 Md. 573, 546 A.2d 1028 (1988). See State v. Bolden, 356 Md. 160, 166, 737 A.2d 1086, 1089 (1999)

; Thomas v. State, 333 Md. 84, 94, 634 A.2d 1, 6 (1993). In Thomas, we harmonized our conclusions concerning the breadth and depth of Eighth Amendment proportionality review with Justice Kennedy's concurrence in Harmelin. Judge McAuliffe, speaking for the court, stated:

"In considering a proportionality challenge, a reviewing court must first determine whether the sentence appears to be grossly disproportionate. In so doing, the court should look to the seriousness of the conduct involved, the seriousness of any relevant past conduct as in the recidivist cases, any articulated purpose supporting the sentence, and the importance of deferring to the legislature and to the sentencing court."

Thomas, 333 Md. at 95,634 A.2d at 6. We emphasized that "challenges based on proportionality will be seriously entertained only where the punishment is truly egregious."

Id. at 97, 634 A.2d at 7. We concluded as follows:

"If these considerations do not lead to a suggestion of gross disproportionality, the review is at an end. If the sentence does appear to be grossly disproportionate, the court should engage in a more detailed Solem-type analysis.... In order to be unconstitutional, a punishment must be more than very harsh; it must be grossly disproportionate. This standard will not be easily met."

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