Whack v. State

• Decision Date: 01 September 1994
• Docket Number: No. 73,73
• Citation: 338 Md. 665,659 A.2d 1347
• Parties: Larry WHACK v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 665

338 Md. 665

659 A.2d 1347

Larry WHACK v. STATE of Maryland.

No. 73, Sept. Term, 1994.

Court of Appeals of Maryland.

June 23, 1995.

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Kimberly Smith Ward, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Judge.

Once more we must construe criminal statutes that impose an enhanced penalty on certain offenders. In this appeal we are called upon to determine the meaning of the word "convicted" as it is used in Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Article 27, § 286(c) and § 293. ¹ Section 286(c) mandates that a defendant who "previously has been convicted" of certain controlled dangerous substances offenses receive a 10-year minimum sentence of imprisonment, without the possibility of parole. Section 293(a) permits a sentence enhancement of twice the term of imprisonment or fine for any person convicted of a drug offense as a second or subsequent offender. The question in this appeal is whether a defendant "has previously been convicted" for purposes of applying § 286(c) and § 293 where the predicate conviction is pending on appeal. We must also determine whether § 286(c) and § 293 may be applied in the same case to enhance the sentences on different counts. We answer both questions in the affirmative.

I.

On March 11, 1993, Larry Whack was convicted by a jury in the Circuit Court for Prince George's County of several drug-related offenses, including importing 28 grams or more of cocaine, in violation of § 286A(a)(2), and conspiracy to distribute cocaine in violation of § 286(a)(1). On April 1, 1993, Judge Graydon S. McKee, III, sentenced Whack to a total of 85 years in prison, 25 years to be served without parole. In this appeal, we are concerned with the sentences imposed on counts 2 and 15. On count 2, conspiracy to distribute cocaine, Whack received 40 years, 10 years to be served without parole; on count 15, importing 28 grams or more of cocaine, he received 50 years, to be served concurrently with the sentences imposed on counts 2, 11, and 13.

At sentencing on April 1, 1993, pursuant to § 286(c) and § 293, Judge McKee imposed enhanced sentences on counts 2 and 15. On count 2, Judge McKee applied both § 286(c) and § 293: the maximum penalty of 20 years was doubled to 40 years pursuant to § 293, and the 10-year minimum sentence without parole was imposed pursuant to § 286(c). On count 15, Judge McKee only applied § 293: the maximum penalty of 25 years was doubled to 50 years. A sentence review panel subsequently reduced the sentence on count 2 from 40 years, 10 years to be served without parole, to 20 years, 10 years to be served without parole; thus, Whack's sentence on count 2, as it now stands, is enhanced only by § 286(c). The panel also reduced the sentence on count 15 from 50 years, concurrent, to 40 years, concurrent; thus, Whack's sentence on count 15 remains enhanced only by § 293. ²

The predicate offense for the enhanced sentences was Whack's conviction on October 24, 1991, in the Circuit Court for Cecil County, for possession with intent to distribute controlled dangerous substances, an offense under § 286(a)(1) of Article 27. Judge McKee rejected Whack's argument that because the Cecil County conviction was pending on appeal, it was not a final conviction and it could not serve as a predicate for the imposition of enhanced punishment. Whack was sentenced in the Cecil County case on February 20, 1992; the Court of Special Appeals affirmed that conviction on November 27, 1992. Whack v. State, 94 Md.App. 107, 615 A.2d 1226 (1992), cert. denied, 330 Md. 155, 622 A.2d 1196 (1993). We denied Whack's petition for a writ of certiorari on April 21, 1993; thus, his petition regarding the predicate offense was pending before this Court at the time that Judge McKee imposed the enhanced penalties.

Whack appealed to the Court of Special Appeals, arguing, inter alia, that the trial court erred in sentencing him as a subsequent offender pursuant to Article 27, § 286(c) and § 293 when the predicate conviction was not final and was pending on appeal. He also argued that the court erred in imposing enhanced sentences under both § 286(c) and § 293. In an unreported opinion, the intermediate appellate court rejected both arguments and affirmed his convictions.

We granted Whack's petition for a writ of certiorari to consider two questions: first, whether a prior conviction can serve as the predicate for the imposition of enhanced punishment under § 286(c) and § 293 when that conviction is pending on appeal in the Court of Special Appeals or the Court of Appeals, and second, whether enhanced sentences may be imposed, in the same case, under both § 286(c) and § 293.

II.

A.

Section 286(c)(1) of Article 27 provides in pertinent part:

"(c)(1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section, ³ or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imprisonment for not less than 10 years if the person previously has been convicted:

"(i) Under subsection (b)(1) or subsection (b)(2) of this section;

"(ii) Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section...." ⁴

(emphasis added). Section 293 of Article 27 provides in pertinent part:

"(a) Any person convicted of any offense under this subheading is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that otherwise authorized, by twice the fine otherwise authorized, or by both.

"(b) For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the conviction of the offense, the offender has at any time been convicted of any offense or offenses under this subheading or under any prior law of this State or any law of the United States or of any other state relating to the other controlled dangerous substances as defined in this subheading."

(emphasis added).

The words "conviction," "prior conviction," and "previously has been convicted" are not defined in the definitional section of the Controlled Dangerous Substances Act or in § 286(c) or § 293. Consequently, whether the statutes require the absence of a pending appeal on the prior conviction is unclear on the face of the statutes. The statutes are simply silent as to the necessity for or the degree of finality that must attach to the prior conviction before it may be considered as a predicate offense for sentence enhancement. The critical question we must answer is whether a person has previously been convicted of a crime for purposes of enhanced penalties under § 286(c) and § 293 when the predicate conviction is pending on appeal.

B.

When called upon to construe the meaning of statutory language, our goal is to ascertain and effectuate legislative intent. See, e.g., Jones v. State, 336 Md. 255, 260, 647 A.2d 1204, 1206 (1994); Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991). We first examine the primary source of legislative intent, the words of the statute, giving them their ordinary and natural meaning. See, e.g., Parrison v. State, 335 Md. 554, 559, 644 A.2d 537, 539 (1994); Harris v. State, 331 Md. 137, 145, 626 A.2d 946, 950 (1993); Richmond v. State, 326 Md. 257, 262, 604 A.2d 483, 485-86 (1992). If the meaning of the language is unclear or ambiguous, "we must consider 'not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment,' in our attempt to discern the construction that will best further the legislative objectives or goals." Gargliano v. State, 334 Md. 428, 436, 639 A.2d 675, 678 (1994) (quoting Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986)).

When a word susceptible of more than one meaning is repeated in the same statute or sections of a statute, it is presumed that it is used in the same sense. State v. Knowles, 90 Md. 646, 654, 45 A. 877, 878 (1900); see also Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608-09, 76 L.Ed. 1204 (1932); 2A N. Singer, Sutherland Statutory Construction § 46.06, at 120 (5th ed. 1992). This presumption yields, however, where it is apparent that the words used warrant the conclusion that they were employed in different parts with a different intent. Knowles, 90 Md. at 654, 45 A. at 878; see also Atlantic Cleaners & Dyers, 286 U.S. at 433, 52 S.Ct. at 609 ("It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.").

When we are called upon to interpret two statutes that involve the same subject matter, have a common purpose, and form part of the same system, we read them in pari materia and construe them harmoniously. See, e.g., State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993); State v. Loscomb, 291 Md. 424, 432, 435 A.2d 764, 768 (1981). Full effect is given to each statute to the extent possible, and we will not add or delete words to obtain a meaning not otherwise evident from the statutory language. See, e.g., Thompson, 332 Md. at 7, 629 A.2d at 734-35; Loscomb, 291 Md. at 432, 435 A.2d at 768.

Whack suggests that we resolve any doubt regarding a finality requirement in his favor based on the rule of lenity. In our view, he misconstrues the principle. While penal statutes are strictly construed, the construction given them ultimately depends upon ascertaining the intention of the Legislature when it drafted and enacted the statutes in question. See, e.g., Garnett v. State, 332 Md. 571, 585, 632 A.2d 797, 804 (1993); State...