Warrick v. State

• Decision Date: 01 September 1995
• Docket Number: No. 366,366
• Citation: 108 Md.App. 108,671 A.2d 51
• Parties: Dwight Cornelius WARRICK v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 108

108 Md.App. 108

671 A.2d 51

Dwight Cornelius WARRICK v. STATE of Maryland.

No. 366, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 5, 1996.

Gina M. Serra, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Scott G. Patterson, State's Attorney for Talbot County, Easton, on the brief), for appellee.

Submitted before WILNER, C.J., HARRELL, J., and PAUL E. ALPERT, Judge (Retired), Specially Assigned.

HARRELL, Judge.

Appellant, Dwight Cornelius Warrick, pled guilty in the Circuit Court for Talbot County to distributing cocaine and possessing cocaine with the intent to distribute. Pursuant to a plea agreement, the court sentenced appellant on 20 June 1990 to two concurrent ten-year terms of imprisonment. The sentences were imposed without the possibility of parole pursuant to the "subsequent offender" provision of Article 27, Section 286(c) (1957, 1992 Repl.Vol.). Appellant filed a petition for post conviction relief in 1995, which the circuit court denied after a hearing. We granted appellant's application for leave to appeal. Appellant's sole question on appeal is whether the "without parole" provisions of his 1990 sentences are legal. To answer this question, we must determine whether the holding of Gargliano v. State, 334 Md. 428, 639 A.2d 675 (1994) should be applied retrospectively.

FACTS

Appellant committed three drug-related crimes in early 1990. He was arrested and charged with two counts of distributing cocaine on 19 January 1990 and one count of possessing cocaine with the intent to distribute on 1 February 1990. A jury convicted appellant on 16 May 1990 of one of the charges of distributing cocaine. He pled guilty to the other two charges pursuant to a plea agreement entered into on 20 June 1990. On the same day, the court accepted the plea agreement. The sentencing guidelines in effect at that time, had they been followed, reflected that appellant could have received a maximum sentence of twenty years of imprisonment and a maximum fine of $25,000.00 for each of the two convictions. Instead, pursuant to the plea agreement, appellant accepted two concurrent ten-year terms of imprisonment without the possibility of parole.

The court imposed the "without parole" portion of appellant's sentences under Article 27, Section 286(c). That section provides, in pertinent part a person who is convicted [for distribution of CDS] ... shall be sentenced to imprisonment for not less than 10 years if the person previously has been convicted: [of distribution of CDS.] (Emphasis added).

At the time appellant entered his guilty plea, it was generally believed that the phrase "previously has been convicted" required only that the person had been convicted sometime before sentencing on the second conviction. The prior or underlying conviction used to support appellant's "without parole" 20 June 1990 sentences was his 16 May 1990 conviction.

Three years after appellant pled guilty, we issued an opinion in which a petitioner challenged the general interpretation of the phrase "previously has been convicted." See Gargliano v. State, 95 Md.App. 593, 622 A.2d 767 (1993). Gargliano argued before this Court that the phrase "previously has been convicted" required that a conviction on the prior offense precede the commission and conviction of the subsequent offense. Gargliano, 95 Md.App. 593, 600, 622 A.2d 767. We disagreed and held that neither the plain language nor the legislative history of the statute required such an interpretation. Under our ruling, to subject an accused to the enhanced penalty under section 286(c), all that was required was a prior conviction--whether the crime for which the enhanced sentence was imposed was committed before or after the prior conviction was irrelevant.

One year later, the Court of Appeals reversed us. See Gargliano v. State, 334 Md. 428, 639 A.2d 675 (1994). The Court of Appeals found the phrase "previously has been convicted" ambiguous. Applying general principles of statutory construction and looking to the legislative history of similar statutes, the Court believed, and subsequently held, that the "mandatory sentence prescribed by section 286(c) may be imposed only where the conviction for the prior offense precedes the commission of the principal offense." Gargliano, 334 Md. at 431, 639 A.2d 675 (emphasis in original). The Court of Appeals held further that "the enhanced penalty [i.e., without parole provision] mandated by 286(c) may be imposed Appellant argues in the instant appeal, as he did before the circuit court, that the "without parole" provisions of his sentences are illegal. Appellant cites Gargliano v. State, 334 Md. 428, 639 A.2d 675 (1994), decided four years after appellant's sentence was imposed. Appellant argues, and the State concedes, that if appellant's plea agreement had been entered into after Gargliano was decided, the circuit court could not have imposed his sentences without parole--the offenses for which appellant received the enhanced sentences were committed prior to his conviction for the underlying offense. Moreover, it is well-settled that a judge may not impose a sentence that is not allowed by law, even if the defendant agrees to the sentence as part of a plea bargain. State v. Fincham, 71 Md.App. 314, 525 A.2d 265 (1987); Rojas v. State, 52 Md.App. 440, 450 A.2d 490 (1982). The question before us is whether Gargliano should be retroactively applied to the instant case. We conclude that Gargliano should be applied prospectively only. We explain.

                only where the principal offense is committed after the defendant has been convicted of an earlier offense."   Gargliano, 334 Md. at 449, 639 A.2d 675
                

ANALYSIS

Different legal principles apply when determining the possible retroactivity of a new law depending on whether the new law is a statute or case law. We want to make clear that although we are dealing with a statute, we are not construing what the Maryland General Assembly said but what the Court of Appeals said the General Assembly said. Thus, we are deciding whether case law (the holding of the Court of Appeals in Gargliano) should be given retroactive effect. ¹

The general rule of retroactivity vel non can be stated simply--if the subject case merely applies settled precedents to new facts, the case is given retroactive effect, for the case is viewed as not changing the law in any material way. Yates v. Aiken, 484 U.S. 211, 216-17, 108 S.Ct. 534, 537-38, 98 L.Ed.2d 546 (1988). On the other hand, if the subject case creates a new rule that is a "clear break" with the past, retrospective application is inappropriate. Griffith v. Kentucky, 479 U.S. 314, 324, 107 S.Ct. 708, 714, 93 L.Ed.2d 649 (1987). The Supreme Court has said that a "clear break" exists where the new rule "explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overruled a longstanding practice that lower courts had uniformly approved." Griffith, 479 U.S. at 325, 107 S.Ct. at 714.

Reaching a conclusion as to which of these general rules seems to apply does not end our inquiry. Two additional analyses must be made. Regardless of whether one concludes that the new holding or rule constitutes a "clear break," we must consider additionally whether any of three special circumstances requiring retroactivity applies. The Court of Appeals in Wiggins v. State, 275 Md. 689, 701, 344 A.2d 80 (1975), surmised from Supreme Court cases three circumstances in which retrospective application is mandated:

(1) where the old rule affected the integrity of the fact-finding process, (2) where no trial was constitutionally permissible, and (3) where the punishment is not constitutionally permissible.

The analysis of these circumstances is of greatest import in testing whether an initial conclusion that the new rule or holding is a "clear break" should be trumped by the existence of one of the circumstances. On the other hand, if this analysis results in a determination that the circumstances are not implicated, it offers reinforcement for the prospective application conclusion reached under the general rule inquiry.

Even if, after the foregoing inquiries, one concludes that a retrospective application of the new rule or holding seems indicated, we must forge on to a further analysis consisting of a balancing test. In Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), the Supreme Court held that the balancing of the following three factors was necessary to determine the effect on the judicial system of applying a new rule retroactively:

(1) the purpose of the new rule, (2) reliance by the authorities on the old standard; and (3) the effect on the administration of justice of retrospective application.

Stovall, 388 U.S. at 297, 87 S.Ct. at 1970. See also Potts v. State, 300 Md. 567, 578, 479 A.2d 1335 (1984). The Supreme Court has stated that, once a court has found that the new rule was unanticipated, the second and third Stovall factors--reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule--have virtually compelled a finding of non-retroactivity. Griffith v. Kentucky, 479 U.S. at 324-25, 107 S.Ct. at 713-14.

Considering the threshold analysis in this process, we do not believe that the Court of Appeals' holding in Gargliano was a "clear break" with the past. To the contrary, the decision of the Court of Appeals in Gargliano was founded upon ordinary principles of statutory construction. Looking to the words of the statute first, the Court found section 286(c) unclear as to "whether the statute was intended to apply only to defendants who fail to reform their behavior after a prior conviction or whether...