Argued November 7, 2014.
Circuit Court for Baltimore City. Case No. 111306016.
Bradford C. Peabody, Assistant Public Defender, Paul DeWolfe, Public Defende of Baltimore, MD, on brief, for Appellant.
Cathleen C. Brockmeyer, Assistant Attorney General, Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD, on brief, for Appellee.
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
[441 Md. 676] When a court construes a criminal statute, it may invoke a principle known as the " rule of lenity" when the statute is open to more than one interpretation and the court is otherwise unable to determine which interpretation was intended by the Legislature. Instead of arbitrarily choosing one of the competing interpretations, the court selects the interpretation that treats the defendant more leniently. The rule of lenity is not so much a tool of statutory construction as a default device to decide which interpretation prevails when the tools of statutory construction fail.
In this case, Appellant Dominik Oglesby was charged and convicted of a violation of a statute that prohibits a person who has previously been convicted of a drug-related offense (as Mr. Oglesby had) from possessing certain types of firearms. That statute carries a mandatory minimum sentence of five years incarceration, no part of which may be suspended and without [441 Md. 677] the possibility of parole. Following his conviction and sentencing under that statute, Mr. Oglesby contended that the sentence was illegal because, on the same facts, he could have been charged and convicted under a different statute that does not carry a mandatory minimum sentence and that does allow for the possibility of a suspended sentence, as well as parole. He argues that the rule of lenity requires that his sentence be imposed under the second statute.
We hold that the State's Attorney had the discretion to charge Mr. Oglesby with an offense under the statute carrying the mandatory minimum sentence and that the Legislature's intent to authorize that penalty for that violation is clear from the text of the statute and confirmed by its legislative history. There is no need to resort to the rule of lenity. Application of that concept in these circumstances would effectively negate legislative intent and intrude on prosecutorial discretion conferred on the State's Attorney by the State's constitution and criminal laws.
In the early morning hours of October 6, 2011, two Baltimore City police officers attempted to make a traffic stop of a car that had a headlight out. After a brief chase that ended when the car collided with several parked cars, the three individuals who had been in the car got out and fled. Mr. Oglesby, who had been a passenger in the back seat, was apprehended shortly after he threw a handgun to the ground. Pertinent to the issue in this case, at that time Mr. Oglesby had a criminal record that included prior convictions for drug-related crimes.
Mr. Oglesby was charged with various firearms offenses. At his trial in the Circuit Court for Baltimore City, it was undisputed that Mr. Oglesby, at the time of his arrest, was barred from possessing a regulated firearm by virtue of a 2009 felony conviction for distribution of a controlled dangerous substance, in violation of Maryland Code, Criminal Law Article (" CR" ), § 5-602. Nor was there any dispute that the gun [441 Md. 678] in question fit the definition of " regulated firearm," as defined in Maryland Code, Public Safety Article (" PS" ), § 5-101(r).
The only issue at trial was whether he had possessed the firearm.
Mr. Oglesby was convicted of possession of a regulated firearm by a person with a disqualifying drug conviction, in violation of PS § 5-133(c)(1)(ii). For this offense, Mr. Oglesby was sentenced to the five-year mandatory minimum term of imprisonment without parole provided in the statute. See PS § 5-133(c)(2).
Mr. Oglesby appealed, arguing that the five-year mandatory minimum period of incarceration for his conviction under PS § 5-133(c)(1)(ii) was an illegal sentence. He notes that another statute -- CR § 5-622(b) -- proscribes the same conduct that supports his conviction, but carries a more lenient sentence. Before the Court of Special Appeals considered his appeal, we granted certiorari on our own motion.
Mr. Oglesby does not challenge the sufficiency of the evidence that he violated PS § 5-133(c)(1)(ii). Rather, he argues that the " rule of lenity" mandates that his sentence be no more than the five-year maximum period of incarceration with eligibility of parole provided for a violation of CR § 5-622(b), even though he was neither charged with, nor convicted [441 Md. 679] of, a violation of that statute. Mr. Oglesby reasons that because the two statutes could apply to the same conduct in his case, but neither statute refers to the other, " it is not at all clear as to how he should be sentenced." From that premise, he concludes that, under the rule of lenity, the ambiguity must be resolved in his favor -- i.e., his sentence for a conviction of a violation of PS § 5-133(c)(1)(ii) is capped by the maximum penalty allowed by CR § 5-622 -- five years imprisonment with the possibility of a suspended sentence and parole. He also argues that this Court's prior decision in Waye v. State, 231 Md. 510, 191 A.2d 428 (1963) supports the same result. In short, Mr. Oglesby argues that the imposition of the five-year mandatory minimum without possibility of parole under PS § 5-133(c)(2) was an illegal sentence because it exceeded the penalty authorized by law.
The State argues that the rule of lenity is not applicable because the prosecutor had the discretion to choose which violation to charge, and the penalty provided in the statute under which Mr. Oglesby was charged and convicted is not ambiguous. The State similarly argues that the reasoning of Waye has no application here. Accordingly, in the State's view, Mr. Oglesby was properly sentenced to the five-year
mandatory minimum because this sentence corresponds to the statute under which he was charged and convicted.
A. Prosecutorial Discretion, the Rule of Lenity, and Prior Decisions
As indicated above, there is some dispute as to whether the overlapping offenses defined by PS § 5-133(c)(1)(ii) and CR § 5-622(b) are simply an occasion for the exercise of prosecutorial discretion in the charging decision or whether the " interplay" of the two statutes creates ambiguity that requires resort to the rule of lenity. We begin with a brief review of [441 Md. 680] the concepts of prosecutorial discretion and, in the context of statutory construction, the rule of lenity. We then briefly review the several Maryland appellate decisions over the past decade that have considered those concepts in connection with these two statutes.
1. Prosecutorial Discretion
It is not uncommon for the same facts to support potential convictions under a number of statutes or common law offenses, which may carry different penalties. A prosecutor is not required to charge all applicable offenses. A prosecutor thus exercises discretion as to what offenses to charge in a particular case -- a decision that may greatly affect the potential penalty imposed by a sentencing court if a conviction results. This is a well-recognized part of our criminal justice system and is perfectly appropriate so long as the discretion is not exercised in an unconstitutional or illegal manner. Evans v. State, 396 Md. 256, 298, 914 A.2d 25 (2006) (" State's Attorneys retain the broad discretion ... in determining which cases to prosecute, which offenses to charge, and how to prosecute the cases they bring" ); see also Beverly v. State, 349 Md. 106, 121, 707 A.2d 91 (1998); Brack v. Wells, 184 Md. 86, 90, 40 A.2d 319 (1944).
While prosecutorial discretion is subject to oversight by the courts to ensure that it is exercised within constitutional and statutory constraints, " the office of State's Attorney is not a branch of the judiciary, nor is it directly subject to its supervision." State v. Hunter, 10 Md.App. 300, 305, 270 A.2d 343 (1970) (Murphy, C.J.), cert. improvidently granted and remanded, 263 Md. 17, 278 A.2d 608 (1971). The prosecutor's discretion in the selection of charges derives ultimately from the separation of powers in the Maryland Constitution. State v. Lykins, 43 Md.App. 472, 473, 406 A.2d 289 (1979) modified, 288 Md. 71, 415 A.2d 1113 (1980) (separation of powers " compels that we brook no lightly assumed interference by ...