Kevin C. Alston
State of Maryland
Bell, C.J., Raker, [*] Wilner, Cathell, Harrell, Battaglia, Greene, JJ.
The petitioner, Kevin C. Alston, was arrested and subsequently charged with multiple counts of possession of a regulated firearm by a person with a prior conviction,  and a single count of wearing and carrying a handgun, pursuant to Maryland Code (1957, 1996 Repl. Vol.) Article 27, § 36B. The petitioner was tried, by jury, in the Circuit Court for Baltimore City. During the trial, the petitioner and the State stipulated that the petitioner had previously been convicted of a crime, distribution of a controlled dangerous substance, that prohibited his possession of a regulated firearm. Accordingly, the jury was asked to decide only whether the petitioner possessed a firearm, not to determine the nature of, or the circumstances surrounding, the petitioner's previous conviction, i.e., whether it was violent. The jury returned a verdict convicting the petitioner of the handgun offense and two counts of possession of a regulated firearm by a person with a prior conviction.
At the sentencing hearing, the petitioner argued that the penalty provision of Maryland Code (2002) § 5-622 of the Criminal Law Article ("CL"), rather than Article 27, § 449 (e), was the applicable provision. The trial court rejected that argument. Instead, on August 13, 2003, the trial court sentenced the petitioner as follows: for one of the possession counts, to the enhanced sentence prescribed by Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.) Article 27, § 449 (e),  five years without the possibility of parole; for the other possession count, pursuant to § 445 (d) (1) (iii),  a consecutive two year sentence; and, for wearing and carrying a handgun, two years concurrent.
The petitioner's timely appeal to the Court of Special Appeals resulted in the vacation, as duplicitous, of the conviction and sentence for possession of a regulated firearm by a person previously convicted of a misdemeanor. Alston v. State, 159 Md.App. 253, 274, 858 A.2d 1100, 1112 (2004). On the other hand, the intermediate appellate court rejected the petitioner's argument that he erroneously had been sentenced pursuant to Article 27, §449 (e). The court reasoned:
"The appellant maintains that, because he could have been convicted under [Criminal Law Article] section 5-622 for the same conduct for which he was convicted under section 445 (d) (1) (ii) of Article 27, and a conviction under [Criminal Law Article] section 5-622 would have carried a prison sentence of no more than five years, without a non-eligibility for suspension or parole requirement, under the 'rule of lenity, ' he could not be sentenced to the mandatory minimum five years without suspension or non-eligibility for parole under section 449 (e). Rather, his sentence could be no more than that authorized under [Criminal Law Article] section 5-622. "The rule of lenity is a principle of statutory construction providing, in its most general application, that, in cases of ambiguity, doubts shall be resolved in favor of criminal defendants."
Id., 159 Md.App. at 270–71, 858 A.2d at 1110 (citations omitted). Concluding that neither statute was ambiguous and that there was no ambiguity as between the provisions, it explained that "the rule of lenity is not triggered. The State had discretion to prosecute the appellant under the provision carrying the stiffer penalty." Id., 159 Md.App. at 273, 858 A.2d at 1112.
The petitioner, aggrieved by the remaining conviction and, especially, the enhanced sentence, filed a petition for writ of certiorari with this Court, asking us to address and decide two issues: (1) whether the petitioner, who had a prior non-violent felony conviction,  was wrongly subjected to an enhanced penalty under Article 27, § 449 (e); and (2) whether the rule of lenity required that the petitioner be sentenced in accordance with Criminal Law Article, §5-622 (c), rather than pursuant to § 449 (e) or its successor, Maryland Code (1957, 2003 Repl. Vol.) § 5-133 (c) (2) of the Public Safety Article ("PS"). We granted the petitioner's petition. Alston v. State, 390 Md. 500, 889 A.2d 418 (2006). We shall answer both questions in the affirmative.
With regard to the former, our answer is predicated on this Court's decision in Stanley v. State, 390 Md. 175, 887 A.2d 1078 (2005). In that case, we held that § 449 (e) is clear and unambiguous, and that its plain meaning requires that the predicate prior conviction be for a crime that is both violent and felonious. Id., 390 Md. at 183–84, 887 A.2d at 1082–83. Accordingly, we shall vacate the petitioner's sentence for possession of a regulated firearm and remand the matter for re-sentencing. With regard to the latter, we shall hold that, although both penalty provisions are clear and unambiguous when considered separately, because they proscribe the same conduct, but do so differently, one providing for a lesser penalty than the other, without a clear expression as to how the Legislature intended them to interface or that the Legislature intended that the choice of which to prosecute is left to the unfettered discretion of the prosecution, PS § 5-133 (c) and CL § 5-622 (c) must be considered together. And, because, under these circumstances, it is not clear how they interrelate and which to apply, they are, in that regard, ambiguous. Therefore, the rule of lenity mandates that the lesser penalty apply.
The first question with which we are presented is whether a person with a prior nonviolent felony conviction may be sentenced to the enhanced sentence prescribed by Article 27, § 449 (e). This is the question left open by Price v. State, 378 Md. 378, 384 n. 4, 835 A.2d 1221, 1225 n. 4 (2003): "whether § 449 (e)'s mandatory sentencing imperative requires a conviction under both § 445 (d) (1) (i) and (ii), as the plain language indicates." The issue in Price was whether daytime housebreaking, a felony, was a crime of violence under § 441 (e).
378 Md. at 384, 835 A.2d at 1224. In answering the question presented, the Court addressed and determined the structure of section 449 (e), observing, in that regard:
"Section 449 (e), by its plain structure, is divided into two requirements. The first requirement is that the defendant have a previous conviction of a crime that falls within § 441 (e). The second requirement is that the defendant have a current conviction under § 445 (d) (1) (i) and (ii)."
Id. Despite having flagged the issue and, as we have seen, concluded that the language defining the second requirement was unambiguous, id., 378 Md. at 384 n. 4, 835 A.2d at 1225 n. 4, the Court declined to address whether there had been compliance with the second requirement of section 449 (e), the issue not having been raised. Id.
This open question was answered in Stanley, 390 Md. at 182, 887 A.2d at 1082. In doing so, we proceeded from the premise that this Court unanimously had considered and adopted in Price – the issue on which we granted "cert" was "whether legislative history, pre-and post-enactment, may trump the plain and clear and unambiguous language of a statute" – that section 449 (e) is clear and unambiguous. Id., 390 Md. at 182, 887 A.2d at 1082. In Stanley, the petitioner had received an enhanced sentence under § 449 (e) on the basis of the petitioner's conviction for second-degree assault, a crime of violence, but not a felony. Id., 390 Md. at 177, 887 A.2d at 1079. We construed the penalty provision, Article 27, § 449 (e), and determined that it was clear and unambiguous, requiring, to be subject to the enhanced penalty it prescribes, that a person "be 'in illegal possession of a firearm as defined in § 445 (d) (i) and (ii), ' and been convicted previously of a crime of violence as defined in § 441 (e) or been convicted of certain enumerated drug offenses." Id., 390 Md. at 183, 887 A.2d at 1082 (citing Price, 378 Md. at 384, 835 A.2d at 1224 (determining whether daytime housebreaking was a crime of violence under § 441 (e))).
On that basis, we held:
"The definition of the illegal possession targeted for purposes of this statute . . . consists of two elements and is stated in the conjunctive. Consequently, both elements must be met; it is not sufficient if only one is present. That means, since the definition includes a crime of violence and 'any violation classified as a felony in this State, ' that a conviction of both, not just one, must be established. Thus, it is not enough that the person be convicted of a crime of violence under § 441 (e). On the contrary, unless the illegal possession of the firearm is established by proof of a 'violation classified as a felony, ' the establishment of the crime of violence under § 441 (e) could not trigger the enhanced punishment. Were it otherwise, we would not give the entire statute effect and, in fact, we would be rendering the conjunction, 'and, ' superfluous. Moreover, we would be adding a word, 'or, ' to the statute that the General Assembly did not. It is a well settled canon of statutory construction that we should, when interpreting a statute, give effect to all of the language and avoid a construction that renders any portion superfluous. Design Kitchen and Baths v. Lagos, 388 Md. 718, 729, 882 A.2d 817, 823–24 (2005); Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1114 (2005); Ware v. State, 348 Md. 19, 59, 702 A.2d 699, 719 (1997). We have also recognized that 'Where the words of a statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, ' the Court will give effect to the statute as the language is written. Moore v. Miley, 372 Md. 663, 677, 814 A.2d 557, 566 (2003)." See Moore, 388 Md. 446, 453, 879 A.2d ...