Wadlow v. State

• Decision Date: 01 September 1992
• Docket Number: No. 128,128
• Citation: 642 A.2d 213,335 Md. 122
• Parties: Lauren Marie WADLOW v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 122

335 Md. 122

642 A.2d 213

Lauren Marie WADLOW v. STATE of Maryland.

No. 128, Sept. Term, 1992.

Court of Appeals of Maryland.

June 8, 1994.

Reginald W. Bours, III, Rockville, for petitioner.

Thomas K. Clancy, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE ^*, CHASANOW, KARWACKI and BELL, JJ.

McAULIFFE, Judge.

Subsection (a)(1) of Article 27, § 286 of the Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) provides that it is unlawful for any person "to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to ... distribute ... or dispense" that substance. Subsection (b) of § 286 sets forth the penalties for violation of subsection (a). Subsection (f) provides for enhanced penalties for a violation of subsection (a)(1) when the violation involves certain controlled dangerous substances in certain amounts. We granted certiorari in this case to consider the following question Do the mandatory sentencing provisions of Article 27, Section 286(f) require that either the trier of fact or the sentencing judge make specific findings and, if so, what standard of proof is required, and how must these findings be set forth in the opinion, judgment or orders of the Court?

I.

Lauren Marie Wadlow was indicted by a Montgomery County Grand Jury for offenses allegedly committed on or about 5 September 1990. Count I of the indictment charged that the defendant

unlawfully did possess a certain controlled dangerous substance, to wit: cocaine, in sufficient quantity to reasonably indicate under all circumstances an intent to distribute said controlled dangerous substance, to wit: over 448 grams of cocaine, in violation of Article 27, Section 286(a)(1) of the Annotated Code of Maryland....

Count II charged the defendant with simple possession of cocaine in violation of Art. 27, § 287(a), and Count III charged that the defendant "unlawfully conspired with Bruce Michael Todd, to distribute a controlled dangerous substance, to wit: cocaine, in excess of 448 grams...." A jury found the defendant guilty on all three counts. ¹

At the initial sentencing hearing of 9 October 1991, the trial judge imposed a sentence of four years' imprisonment on Count I, declared that Count II merged into Count I, and imposed a sentence of one year imprisonment on Count III, consecutive to the sentence imposed on Count I. Six days later, the State filed a motion to correct an "illegal sentence," contending that Art. 27, § 286(f) mandated the imposition of a sentence of five years without possibility of parole on Count I, and suggesting that Count III should have been merged into Count I.

At a hearing held on the State's motion, the trial judge vacated the sentence on Count III by finding that Count III merged into Count I, ² and "resentenced" the defendant to five years' imprisonment on the first count. The judge refused the request of the State to declare that the sentence was imposed pursuant to Art. 27, § 286(f), stating:

No, that is it. That is all I am saying. The Court of Special Appeals will wrestle with this one. Not too hard, but they will wrestle with it.

The State appealed, contending that the trial judge failed to impose the penalty mandated by the Code. See Md.Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Art., § 12-302(c)(2) (permitting the State to appeal a final judgment where it "alleges that the trial judge failed to impose the sentence specifically mandated by the Code"). The defendant cross-appealed, challenging the convictions, and also contending that the enhanced penalty provisions of section 286(f) could be triggered only by a jury finding that the amount of cocaine involved in the Count I conviction was 448 grams or more. The defendant maintained that under the instructions given by the trial judge, the jury had not made that finding. The Court of Special Appeals held that "[i]t is for the sentencing judge, not the jury, to determine whether the State has proved, beyond a reasonable doubt, the factual predicate for the statutorily mandated enhanced penalty." State v. Wadlow, 93 Md.App. 260, 282, 611 A.2d 1091 (1992). The intermediate appellate court further held that the trial judge had implicitly found the existence of the predicate fact necessary for an enhanced sentence when he acceded the State's request to increase the sentence on Count I from four years to five years. Id. at 283-84, 611 A.2d 1091. It vacated the sentence, however, and remanded the case with directions to the trial judge to state for the record that the sentence is imposed pursuant to § 286(f)(3). Id. at 284, 611 A.2d 1091.

II.

The principal question presented by this case is one of legislative intent. The sentence enhancement provisions of § 286(f) were added as a part of the "Drug Kingpin Act" enacted by Chapter 287 of the Acts of 1989. We discussed the legislative history of that Act in Williams v. State, 329 Md. 1, 616 A.2d 1275 (1992), where we upheld the drug kingpin provisions of the act against a constitutional challenge.

If, as the State contends, the legislature intended that the predicate facts of subsection (f) mandating an enhanced penalty were to be found exclusively by the sentencing judge, that sentencing scheme would not violate any provisions of the United States Constitution. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986). In McMillan, the Supreme Court held that a state could treat "visible possession of a firearm" as a sentencing consideration rather than an element of a particular offense, and could therefore require the imposition of a mandatory minimum sentence for certain crimes when the sentencing judge found by a preponderance of the evidence that the defendant visibly possessed a firearm during the commission of the offense. Id. at 91-93, 106 S.Ct. at 2418-20. And, as the State points out, federal courts of appeals have uniformly held that predicate facts required for imposition of enhanced sentences under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841(b), are for the sentencing judge and not the jury. See, e.g., United States v. Perez, 960 F.2d 1569, 1574-75 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1421, 122 L.Ed.2d 790 (1993); United States v. Madkour, 930 F.2d 234, 237-38 (2d Cir.), cert. denied, 502 U.S. 911, 112 S.Ct. 308, 116 L.Ed.2d 251 (1991); United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir.1989).

In Maryland, however, we have generally drawn a distinction between sentence enhancement provisions that depend upon prior conduct of the offender and those that depend upon the circumstances of the offense. In the former situation, involving recidivism, we have made it clear that determination of the requisite predicate facts is for the sentencing judge. ³ See Maryland Rule 4-245(e) ("[T]he court shall determine whether the defendant is a subsequent offender...."). The State must give timely notice to the defendant of its intention to seek enhanced penalties because of one or more prior convictions, but that notice is not filed with the court until after the acceptance of a guilty or nolo contendere plea, or after conviction. The applicable Rule also provides that "[t]he allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document...." Md.Rule 4-245(d).

In the latter case, however, where the legislature has prescribed different sentences for the same offense, depending upon a particular circumstance of the offense, we have held that the presence of that circumstance must be alleged in the charging document, and must be determined by the trier of fact applying the reasonable doubt standard.

The single crime of murder is divided into degrees for purposes of punishment, Bruce v. State, 317 Md. 642, 645, 566 A.2d 103 (1989), but the trier of fact determines the degree of the offense. Similarly, robbery is ordinarily characterized as one offense, with the division between armed robbery and simple robbery being for the purpose of punishment, Hook v. State, 315 Md. 25, 32 n. 10, 553 A.2d 233 (1989), but the charge must be specific and the determination of the seriousness of the offense is for the trier of fact.

Larceny was a single offense at common law, divided into grand larceny and petty larceny for the purpose of punishment. Hagans v. State, 316 Md. 429, 440, 559 A.2d 792 (1989). Nevertheless, valuation is treated as an element of grand larceny, and the State is required to allege the greater value and prove that value beyond a reasonable doubt. Petty larceny is treated as a lesser included offense of grand larceny. Id. at 440-41, 559 A.2d 792.

Malicious destruction of property is a single statutory offense. See Md.Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Art. 27, § 111. Prior to 1985, that statute provided as follows:

Any person who shall wilfully and maliciously destroy, injure, deface or molest any real or personal property of another shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be subject to imprisonment for a period of not more than three years or to a fine not more than $2,500, or to both imprisonment and fine.

Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 111. By Ch. 479 of the Acts of 1985, the legislature divided the malicious destruction statute into three subsections. Subsection (a) contained the language from the prior statute, however, the penalty clause was deleted. In its place, the legislature added subsections (b) and (c), which provided for different penalties depending upon the value of the property involved. Those changes are shown here, with deleted material shown in brackets and new material in bold capitalization:

(A) Any person who shall wilfully and maliciously destroy, injure, deface or molest any real...