Sullivan v. State, 389

• Decision Date: 05 January 1976
• Docket Number: No. 389,389
• Citation: 29 Md.App. 622,349 A.2d 663
• Parties: Bernard SULLIVAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 622

29 Md.App. 622

349 A.2d 663

Bernard SULLIVAN v. STATE of Maryland.

No. 389.

Court of Special Appeals of Maryland.

Jan. 5, 1976.

Harold P. Dwin, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant

Albert Gallatin Warfield, III, Asst. Atty. Gen., with whom were, Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., and Floyd Pond, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and LOWE, JJ.

ORTH, Chief Judge.

THE SECOND OFFENDER

Prior to 1 January 1962 the procedures to be followed with respect to the subsequent offense aspect of a criminal charge as the basis for increased punishment were in a snarl. This was made manifest in Beard v. State, 216 Md. 302, 140 A.2d 672 (1958), in which a divided Court attempted to deal with the problem. The majority opinion held, in essence, that a form of indictment charging the current offense and alleging the historical fact or facts of one or more prior offenses was valid. In other words, an indictment for a subsequent offense must contain an averment as to a prior offense, and such an averment and proof thereof did not deprive the accused of a right to a fair and impartial trial. McCoy v. State, 216 Md. 332, 140 A.2d 689 (1958), cert. den. 358 U.S. 853, Garrigan v. Superintendent, 218 Md. 662, 146 A.2d 431 (1958), Toyer v. State, 220 Md. 205, 151 A.2d 730 (1959), and Torres v. Warden, 227 Md. 649, 175 A.2d 594 (1961) generally applied the Beard holding, but several serious questions, pointed up in Beard, were left unanswered. ¹ The opinion of the Court in Beard suggested that the Rules Committee consider the matter. 216 Md., at 320, 140 A.2d 672. See Torres, 227 Md Rule 713 answered the questions. It first deals with the indictment:

at 653, n. 2, 175 A.2d 594. The result was the proposal of Maryland Rule 713, which was adopted by the Court of Appeals on 15 September 1961, effective 1 January 1962.

'In a case where a greater punishment is prescribed for a second or subsequent conviction of the same offense the indictment for each succeeding offense shall charge only the current offense and shall not refer to the fact that the State intends to prosecute the defendant as a second or subsequent offender.' Section a.

It next provides for notification to a defendant that he is to be prosecuted as a second or subsequent offender:

'There shall be attached to such an indictment an addendum which shall warn the defendant that the State has evidence that he has formerly been convicted of the same offense, including the date and court in which he was previously convicted, that it intends to prosecute the accused for the current offense at a second or subsequent offender, the maximum punishment which may be imposed upon the defendant if he is convicted of the current offense and found to be a second, or subsequent offender, and the right of the accused under this Rule to elect that the issue of whether or not he is a second or subsequent offender be tried concurrently with the trial for the current offense or be determined by the court or jury after the verdict on the current offense.' Section b.

Section c prescribes that the indictment and addendum shall be served as are indictments under Rule 706. Section d, 'Trial-Election by Defendant'; § e, 'Failure to Elect'; § f, 'Separate Trial of Subsequent Offender Issue'; § g, 'Recess or Dismissal of Jury'; and § h, 'New Jury Challenges' 'The accused may elect that the issue of whether or not he is a second or subsequent offender be tried concurrently with the trial for the current offense, or that the issue be determined separately after the verdict on the current offense. Also, he may waive a jury for determination of that separate issue, even though the current offense is tried before a jury. The second proceeding is not a trial of guilt, but the determination of an issue. That issue is simply the historical fact of a prior conviction and the identity of the defendant as the person so convicted.'

pertain to the trial. We summarized their provisions in Ware v. State, 13 Md.App. 302, 306, 283 A.2d 177, 179 (1971):

In a prosecution of an accused for a current offense as a subsequent offender, only one sentence is proper. It is error to impose separate sentences on the current offense and the addendum. Ware v. State, supra, at 306-307, 283 A.2d 177, 179; Reid v. State, 10 Md.App. 6, 8-9, 267 A.2d 332 (1970), cert. den. 259 Md. 735; Simmons v. State, 8 Md.App. 355, 368-369, 259 A.2d 814 (1969).

THE CASE SUB JUDICE

Statement of the Case

On 3 April 1975 Bernard Sullivan was convicted at a bench trial in the Criminal Court of Baltimore of carrying a handgun on his person in violation of Code, art. 27, § 36B. On 28 April he was sentenced to 6 years. He appealed. On appeal, he does not contest the validity of his conviction. The questions he presents go only to the legality of the sentence.

At the guilt stage of the trial, the State proved its case by an agreed statement of facts given by the prosecutor. The defense did not offer evidence. A verdict of guilty was rendered. The State told the court that it had no recommendation as to sentence but that there was 'information provided from the NCIC with respect to the defendant's previous record. . . .' The prosecutor said: 'My record reveals that he is currently on probation for a handgun violation to March 12, 1977.' There were no other prior convictions. The judge indicated that he was going to impose a sentence of six years. Defense counsel pointed out that Sullivan was not charged as a second offender. The court asked: 'Does he have to be under the statute?' The issue was cleanly drawn. The State argued that under art. 27, § 36B an accused could be sentenced as a second or subsequent offender without being prosecuted as such. The defense maintained that to be subject to an increased sentence, an accused must be charged as a subsequent offender and that such charge must be proved. The court held the imposition of sentence sub curia. ²

When the court convened for the penalty stage, memoranda ³ and argument were received from counsel, and the court again deferred the imposition of sentence. The proceedings resumed two weeks later. It was the position of the defense that Rule 713 was applicable, and that in the absence of compliance with that Rule, Sullivan could not be punished as a subsequent offender. The State claimed that art. 27, § 36B was without the ambit of the Rule.

The Statute

The crime of which Sullivan was convicted was created by the General Assembly by ch. 13, Acts 1972, effective the date of its passage on 27 March 1972. The dominant purpose of the Act was to stop the alarming rise in the use of handguns in the commission of crimes of violence. Wright v. State, 24 Md.App. 309, 317, 330 A.2d 482 (1975). See 'Declaration of Policy', art. 27, § 36B(a). The provisions of subsection (b) are relevant to the case before us. ⁴

Subsection (b) makes it a misdemeanor for any person to 'wear, carry, or transport any handgun, whether concealed or open, upon or about his person', and to 'wear, carry or knowingly transport ⁵ any handgun, whether concealed or open, in any vehicle upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State.' The subsection prescribes the punishment on conviction:

(i) if the misdemeanant had not been previously convicted of a violation of § 36B, or of carrying a concealed weapon in violation of § 36, or of carrying a deadly weapon on public school property in violation of § 36A, 'he shall be fined not less than two hundred and fifty ($250.00) dollars, nor more than twenty-five hundred ($2,500.00) dollars, or be imprisoned in jail or sentenced to the Maryland Division of Correction for a term of not less than 30 days nor more than three years, or both; provided, however that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than 90 days';

(ii) if the misdemeanant has previously been once convicted of such crimes, 'he shall be sentenced to the Maryland Division of Correction for a term of not less than 1 year nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of 1 year; provided, however, that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than three years';

(iii) if the misdemeanant had previously been convicted more than once of such crimes 'or any combination thereof', 'he shall be sentenced to the Maryland Division of Correction for a term of not less than three years nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of three years; provided, however, that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than 5 years';

(iv) if it shall appear from the evidence that a handgun 'was carried, worn, or transported with the deliberate purpose of injuring or killing another person, the court shall impose a sentence of imprisonment of not less than five years'.

The Ruling of the Trial Court

In sentencing Sullivan to six years the trial judge held that Rule 713 did not control the procedure to be used in art. 27, § 36B. He adopted, in substance, the view of the prosecutor. He explained:

'On April 3rd, Bernard Sullivan was convicted by me in this court of a handgun violation under warrant 47500885. I found at that time as a matter of fact that Bernard Sullivan did on or about December 23rd 1974 unlawfully wear or carry on...