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Oglesby v. State

Court of Appeals of Maryland

February 23, 2015

DOMINIK OGLESBY
v.
STATE OF MARYLAND

Argued November 7, 2014.

Page 1148

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.

OPINION

McDonald, J.

Page 1149

[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[1] 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.

I

Background

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).

Page 1150

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).[2] 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.[3] Before the Court of Special Appeals considered his appeal, we granted certiorari on our own motion.

II

Discussion

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.[4]

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

Page 1151

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 the judicial branch with the function of [the State's Attorney] ... and ... not arrogate unto our branch supervisory powers which the Constitution does not bestow" ).

[441 Md. 681] 2. The Rule of Lenity

The " rule of lenity" is not a rule in the usual sense, but an aid for dealing with ambiguity in a criminal statute. Under the rule of lenity, a court confronted with an otherwise unresolvable ambiguity in a criminal statute that allows for two possible interpretations of the statute will opt for the construction that favors the defendant. For a court construing a statute, the rule of lenity is not a means for determining -- or defeating -- legislative intent. Rather, it is a tie-goes-to-the-runner device that the court may turn to when it despairs of fathoming how the General Assembly intended that the statute be applied in the particular circumstances. It is a tool of last resort, to be rarely deployed and applied only when all other tools of statutory construction fail to resolve an ambiguity. See Gardner v. State, 420 Md. 1, 17,

Page 1152

20 A.3d 801 (2011). This follows from the fact that our goal in construing statutes is always to ascertain and carry out the legislative purpose of the statute and not to seek out an interpretation that necessarily favors one party or the other. Id.[5]

3. Prior Decisions Concerning the Rule of Lenity, PS § 5-133, and CR § 5-622

The argument that CR § 5-622 might limit a sentence imposed for a violation of PS § 5-133(c)(1)(ii) first came before Maryland appellate courts in Alston v. State, 159 Md.App. 253, 858 A.2d 1100 (2004), rev'd on other grounds, 433 Md. 275, 71 [441 Md. 682] A.3d 13 (2013), opinion withdrawn in part, 433 Md. 275, 71 A.3d 13 (2013). In that case, which involved facts substantially similar to this case, the defendant was convicted of a violation of PS § 5-133(c)(1)(ii) and the trial court imposed the mandatory minimum sentence provided for that violation.[6] Like Mr. Oglesby, the defendant argued on appeal that the rule of lenity required that he should have received the more lenient sentence provided in CR § 5-622. The Court of Special Appeals rejected that argument. It held that there is no ambiguity in the statutes and therefore no reason to invoke the rule of lenity and apply the sentencing provision of CR § 5-622 for a violation of PS § 5-133(c)(1)(ii). 159 Md.App. at 273.

The Court of Special Appeals reiterated that conclusion in two subsequent decisions, noting in each case that the prosecutor had discretion to charge an offense under the statute with the more severe penalty and that there was no ambiguity that triggered the rule of lenity. State v. Lee, 178 Md.App. 478, 484-91, 943 A.2d 14 (2008) (rule of lenity did not authorize trial judge to amend the indictment, in the face of the prosecution's objection, to replace a charge under PS § 5-133 with one under CR § 5-622 and to sentence the defendant under the latter statute); State v. Smoot, 200 Md.App. 159, 169-73, 26 A.3d 1002, cert. denied, 423 Md. 452, 31 A.3d 921 (2011) (rule of lenity did not permit court to sentence defendant convicted of violation of PS § 5-133 to probation before judgment simply because the defendant could have been charged under CR § 5-622).

In the meantime, the Court of Appeals had granted a writ of certiorari in Alston. This Court reversed one of the convictions in that case for reasons not pertinent here. Although the Court conceded that the sentencing issue with respect to the conviction under PS § 5-133(c)(1)(ii) was moot (as the defendant had completed the sentence in its entirety), the [441 Md. 683] Court's opinion went on to discuss whether the rule of lenity affected

Page 1153

the maximum sentence for a violation of that statute. In a holding initially joined by four members of the Court, this Court reached a different conclusion than the Court of Special Appeals. It held that when two statutes proscribe the same conduct but prescribe different penalties and the legislative intent as to " how the statutes are to be applied and operate together is unclear," the rule of lenity requires that the more lenient sentencing provision prevail. 433 Md. at 301. The Court also suggested that the reasoning of Waye v. State, 231 Md. 510, 191 A.2d 428 (1963), although that case did not construe the firearms statutes and was not based on the rule of lenity, supported the same conclusion. Shortly after issuing its decision in Alston, however, the Court withdrew that portion of its opinion on the ground of mootness. 433 Md. at 302.

The issue is not moot in this case as Mr. Oglesby is currently serving the mandatory minimum sentence imposed under PS § 5-133(c)(2). Thus, we consider anew whether we agree with the conclusion reached in the several opinions of the Court of Special Appeals on this subject or whether the imposition of the mandatory minimum sentence set forth in PS § 5-133(c)(2) for a violation of PS § 5-133(c)(1)(ii) is an illegal sentence. We also consider whether the decision in Waye affects that conclusion.

B. Whether the Rule of Lenity Requires that a Defendant Convicted of a Violation of PS § 5-133(c)(1)(ii) be Sentenced under CR § 5-622(c)

As indicated above, there is no need to apply the rule of lenity unless there is an unresolvable ambiguity in the statute in question. A careful review of the statutory text and legislative history must come first.

1. Statutory Text

PS § 5-133(c)

Mr. Oglesby was convicted of a violation of PS § 5-133(c)(1)(ii) -- in particular, possession of a regulated firearm [441 Md. 684] by a person with a prior conviction for distribution of a controlled substance. At the time of the offense in this case,[7] that statute read in relevant part:

(c)(1) A person may not possess a regulated firearm if the person was previously convicted of:
. . .
(ii) A violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, or § 5-614 of the Criminal Law Article.

A " regulated firearm" is defined as a " handgun" or " any of the [listed] specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon...." PS § 5-101(r).

The sentence for a violation of PS § 5-133(c)(1)(ii) is as follows:

(2) (i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.

Page 1154

(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.
(iii) Except as otherwise provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.

PS § 5-133(c)(2). The sentencing provision is qualified in paragraph (3) of the subsection. It provides that if, at the time of possession, at least five years had passed since the person completed serving the sentence, including all mandatory supervision, probation, and parole for the most recent disqualifying conviction, the court has discretion not to impose [441 Md. 685] the mandatory minimum and the State's Attorney must give a special notice of an intent to seek the mandatory minimum sentence. PS § 5-133(c)(3). This provision did not pertain to Mr. Oglesby, as his disqualifying conviction was only two years old.

CR § 5-622

Mr. Oglesby notes that he " could have been charged" under CR § 5-622(b), which states in relevant part:

A person may not possess, own, carry, or transport a firearm if that person has been convicted of:
(1) A felony under [Title 5 of the Criminal Law Article, Controlled Dangerous Substances, Prescriptions, and Other Substances]

For purposes of CR § 5-622, a " firearm" is defined to include a " regulated firearm" as defined in PS § 5-101(r); in addition, the term includes a machine gun (as defined in CR § 4-401), as well as a " handgun, antique firearm, rifle, shotgun, short-barreled shotgun, and short-barreled rifle" (as defined in CR § 4-201). CR § 5-622(a). A person who violates § 5-622(b)(1) is " guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both." CR § 5-622(c).

Mr. Oglesby's observation that he could have been charged with a violation of CR § 5-622 on the facts of his case appears to be correct. The jury found that he was in possession of a " regulated firearm" which is included in the definition of " firearm" in CR § 5-622. His prior conviction for a violation of CR § 5-602 was a felony under the controlled substances title of the Criminal Law Article.

Textual Analysis

The prohibitions in the two statutes overlap substantially, although the two statutes are not identical. The offense defined by CR § 5-622(b) is somewhat broader than the one defined by PS § 5-133(c)(1)(ii). For example, an individual with a prior drug conviction who possessed a machine gun, rifle, or shotgun not described in the definition of " regulated [441 Md. 686] firearm" could be convicted of a violation of CR § 5-622(b), but not a violation of PS § 5-133(c)(1)(ii). In another example, a person who had been previously convicted of possessing a counterfeit prescription for a controlled substance for the purpose of distributing that substance and who came into possession of a regulated firearm could be convicted of a violation of CR § 5-622(b), but not PS § 5-133(c)(1)(ii). But it remains true that, in general, an individual previously convicted of a felony drug offense who possesses a regulated firearm may be found guilty of violations of both PS § 5-133(c)(1)(ii) and CR § 5-622(b). Although the statutes are not precisely identical in their reach, it is likely the case that most individuals convicted under one of these statutes could also be convicted under the other.

The fact that the statutes overlap does not render them ambiguous. While neither statute refers to the other, there is no " interplay" or conflict between these two

Page 1155

statutes that must be harmonized. It is not as though one statute required or authorized Mr. Oglesby to have a firearm in some circumstances and the other statute forbade it.

If Mr. Oglesby were correct that the more lenient of the two sentencing provisions always prevails, it would appear to render PS § 5-133(c)(1)(ii) completely ineffective. Given that CR § 5-622 is the broader statute, if the sentencing provision of CR § 5-622(c) were applied to any conviction under PS § 5-133(c)(1)(ii), a defendant convicted of a violation of PS § 5-133(c)(1)(ii) could never be sentenced in accordance with the sentencing provision of PS § 5-133(c)(2), despite the plain language of the statute. In other words, the mandatory minimum sentence that the Legislature created in PS § 5-133(c)(2) would virtually never apply to an individual in possession of a regulated firearm and with a prior conviction under CR § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, or § 5-614. This would render PS § 5-133(c)(1)(ii) superfluous because the felony drug crimes enumerated in that subparagraph would never trigger the mandatory minimum of PS § 5-133(c)(2).

[441 Md. 687] Such a reading of the statutes is contrary to basic tenets of statutory construction. " Our canons of statutory interpretation, however, forbid us to 'construe a statute ... so that [a] word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.'" Reier v. State Dep't of Assessments & Taxation, 397 Md. 2, 28, 915 A.2d 970 (2007) (quoting Blake v. State, 395 Md. 213, 224, 909 A.2d 1020 (2006)). Rather, when two statutes cover similar subject matter, even if neither makes reference to the other, we must construe the statutes to give as full effect to each other as possible. Maryland-National Capital Park and Planning Comm'n v. Anderson, 395 Md. 172, 183, 909 A.2d 694 (2006); Prince George's County v. McBride, 263 Md. 235, 240-41, 282 A.2d 486 (1971). As noted above, this effort to construe the statutes in accordance with legislative intent precedes any application of the rule of lenity.

A previous case involving a conviction of a violation of CR § 5-622 illustrates the need to construe sentencing provisions in a way that does not render one of them superfluous. In Collins v. State, 383 Md. 684, 688, 861 A.2d 727 (2004), the defendant was convicted of a violation of CR § 5-622(b), for possession of a firearm by a person with a prior felony drug conviction.[8] The defendant was sentenced under CR § 5-622(c) which, as noted above, authorizes a maximum of five years imprisonment. The sentencing court, however, doubled the sentence to 10 years, pursuant to a statute now codified as CR § 5-905, which permits a court to double the statutory sentence when the violation is a second or subsequent offense under Title 5 of the Criminal Law Article. The defendant appealed, arguing that it was clear the Legislature intended to provide for a maximum five-year sentence for violation of CR § 5-622 or, in the alternative, that the application of the two sentencing provisions was ambiguous and that the rule of [441 Md. 688] lenity mandated that the ambiguity be resolved in his favor.

The Court first noted that, when read in isolation, the sentence enhancement of CR § 5-905 appeared to apply. In order to violate CR § 5-622(b), a defendant must have a prior disqualifying felony conviction

Page 1156

under Title 5 of the Criminal Law Article, which concerns criminal offenses related to controlled substances. Therefore, a single violation of CR § 5-622(b) would be, by definition, a second or subsequent offense under the controlled dangerous substances law, indicating that the sentence enhancement would apply. This Court concluded, however, that when the sentence enhancement was read in conjunction with the sentencing provision in CR § 5-622(c), it became clear that the General Assembly intended that the enhancement not apply. If the sentence enhancement were to apply, the five-year maximum specified in CR § 5-622(c) would never be the maximum sentence because every violation of CR § 5-622(b) would trigger the sentence enhancement under CR § 5-905, resulting instead in a 10-year maximum sentence. The application of the sentence enhancement would thereby render CR § 5-622(c), and its five-year maximum sentence, meaningless. Accordingly, the Court concluded that an initial conviction under CR § 5-622(b) did not trigger the sentence enhancement even though it was by definition a subsequent offense under Title 5 of the Criminal Law Article. 383 Md. at 690, 692. The Court reached this conclusion by examining the text and legislative history of the relevant statutes to discern legislative intent; it did not need to resort to the rule of lenity.

Similarly, here, if the sentencing provision of CR § 5-622(c) applied to every violation of PS § 5-133(c)(1)(ii), the latter provision would serve no purpose in the statute and would never trigger the five-year mandatory minimum sentence. For the same reason we conclude that the Legislature did not intend that the lesser sentence of CR § 5-622(c) would apply to a conviction under PS § 5-133(c)(1)(ii). Rather, the appropriate penalty for a violation of PS § 5-133(c)(1)(ii) is the penalty the Legislature prescribed in PS § 5-133(c)(2).

2. Legislative History

A review of the legislative history of these statutes -- their [441 Md. 689] back story -- confirms this conclusion.[9] The two statutes, which both seek to keep guns out of the hands of individuals involved in the illicit drug trade, are at the intersection of the regulation of firearms and the regulation of controlled dangerous substances. Perhaps unsurprisingly, one statute derives from legislative efforts to regulate firearms; the other, from refinements of the laws concerning controlled dangerous substances.

Firearms Regulation -- 1941 -- Creating a Firearms Disqualification for Persons Convicted of Certain Crimes

Maryland state law has prohibited the possession of various types of firearms by persons convicted of certain crimes since at least 1941, when the General Assembly enacted a law prohibiting the possession of a pistol or revolver by any person who had been convicted of a crime of violence or who was a fugitive from justice. Chapter 622, Laws of Maryland 1941 enacting Maryland Code, Article 27, § 531D. That provision was eventually recodified as Article 27, § 445.[10] The statute originally provided for a maximum penalty of one year incarceration and a $300 fine[11] which, in

Page 1157

1966, was increased to three years incarceration and a $1000 fine.[12]

Firearms Regulation -- 1989 -- Adding Felony Drug Convictions to the List of Disqualifying Convictions

The definition of " crime of violence" -- as originally enacted in 1941 -- did not include drug crimes.[13] The Legislature enlarged [441 Md. 690] the definition of " crime of violence" over the years and added other categories of disqualifying crimes and types of disqualification.[14] In 1989, a bill was introduced in the Legislature to add certain drug-related crimes as another category of disqualifying convictions. See House Bill 654 (1989). Testimony before the Legislature " indicated that the inclusion of convicted drug sellers and dealers in the list of persons specifically prohibited from purchasing and possessing handguns is necessary and overdue, especially since drug wars involving guns have grown more commonplace." House Floor Report to House Bill 654 (1989) at p. 2. As a result of the enactment of that bill, it became a crime for a person previously convicted of those drug-related crimes[15] to possess a pistol or revolver. Chapter 428, Laws of Maryland 1989 amending Article 27, § 445(c)(1)(iii). The 1989 law also increased the potential fine. As of the effective date of that law, the maximum penalty was three years imprisonment and a $5,000 fine. Article 27, § 448.

Thus, as of 1989, the prohibition against possession of a firearm by a person convicted of certain drug-related crimes, and the criminal penalty for a violation, appeared as part of the subtitle of Article 27 concerning firearms regulation.

[441 Md. 691]Controlled Dangerous Substances Crimes - 1991 - Addition of an Offense Concerning Possession of a Firearm

Two years later, in the course of amending the subtitle of Article 27 concerning controlled dangerous substances, the General Assembly added to that subtitle a similar but broader prohibition on the possession of a firearm with a potentially tougher penalty. This new provision prohibited a person with any prior felony drug conviction (or conviction of an attempt or conspiracy to commit such a crime)[16] not only from possessing, but also

Page 1158

from owning, carrying or transporting a firearm. House Bill 978 (1991), first reader. " Firearm" was defined more broadly to include not only pistols and revolvers, but also other handguns, rifles, shotguns, assault weapons, and machine guns. A violation of this prohibition was designated a felony punishable by imprisonment up to five years and a $10,000 fine.

While the bill establishing this provision was pending in the Legislature, it was amended to repeal the existing narrower crime in the firearms regulation subtitle (then codified at Article 27, § 445(c)(1)(ii)), with the express intent that only the more expansive criminal provision in the controlled dangerous substances subtitle that carried the potentially greater penalty would remain. See Judicial Proceedings Committee, Explanation of Floor Amendment to House Bill 978 (1991). The amendment was adopted and the bill was enacted as amended. Chapter 613, Laws of Maryland 1991 enacting Article 27, § 291A (1957, 1991 Supp.). Although the criminal penalty for possession of a firearm by one with a drug-related conviction had been deleted from the firearms subtitle, that subtitle still forbade -- and made a criminal offense -- the sale or transfer of [441 Md. 692] a pistol or revolver to a person convicted of the listed drug offenses. See Article 27, § § 445(b), 448 (1992).

Thus, as of the effective date of the 1991 law, under the subtitle of the criminal statutes concerning controlled dangerous substances, the possession of a firearm -- now more broadly defined -- by a person with any prior conviction of a felony drug offense (or of conspiracy or attempt to commit such an offense) was a felony punishable by up to a maximum of five years and a $10,000 fine.[17] This statute has not been substantially amended since that time. In 2002, it was re-codified in the controlled substances title of the new Criminal Law Article as CR § 5-622.[18] This is the statute that Mr. Oglesby asks to be applied in his case, although he was not charged or convicted under that statute.

Firearms Regulation - 1996 - Restoring the Violation in the Firearms Subtitle

In 1996, as part of the Maryland Gun Violence Act of 1996, the General Assembly amended the statutes regulating firearms. Among other things, it expanded the disqualification for prior convictions in the firearms subtitle in a way that encompassed drug-related offenses, effectively restoring the criminal penalty in that subtitle for possession of a firearm by one with a prior drug-related conviction. It was now unlawful for any person to possess a " regulated firearm" if that person had been previously convicted of " any violation classified as a felony in this State" (as well as a misdemeanor that carried a statutory penalty of more than two years imprisonment). See Chapters 561, 562, Laws of Maryland 1996.[19] A new term, " regulated firearm," replaced the reference to pistols and revolvers and was defined to also include handguns generally [441 Md. 693] and certain listed assault weapons or copies of those weapons. See Article 27, § 441(r) (1957, 1996 Supp.). Additionally, the maximum sentence for a violation of the revised criminal provision was codified in Article 27, § 449(e) and set at five years

Page 1159

imprisonment and a $10,000 fine -- the same as provided for the similar violation in the controlled substances subtitle -- i.e., Article 27, § 291A (later recodified as CR § 5-622).

Firearms Regulation - 2000 - Creation of Mandatory Minimum Sentence

In 2000, the General Assembly returned again to the firearms regulation subtitle of Article 27 in the Responsible Gun Safety Act of 2000 and, as one of the many measures in that bill,[20] created a new five-year mandatory minimum sentence applicable to a defendant with a prior disqualifying conviction who possessed a regulated firearm. The mandatory minimum sentence was specifically applicable to " [a] person who was previously convicted of a crime of violence as defined in § 441(e) of this article or convicted of a violation of § 286 or § 286A of this article, and who is in illegal possession of a firearm as defined in § 445(d)(1)(i) and (ii)." Chapter 2, Laws of Maryland 2000 amending Article 27, § 449(e).[21] Possession of a regulated firearm following a disqualifying conviction [441 Md. 694] other than those listed in Article 27, § 449(e)[22] continued to be misdemeanors subject to a maximum prison sentence of five years. Article 27, 449(f) (1957, 2000 Supp.). The bill did not affect the existing offense defined in Article 27, § 291A (the predecessor of CR § 5-622).

When the bill was before the General Assembly, the Legislature was advised that the " stiffer incarceration penalties" in the bill -- the mandatory minimum sentence without possibility of parole -- would likely " increase significantly" the State's expenditures on incarceration, but reduce to some extent expenditures on parole supervision. See Fiscal Note (Revised) for Senate Bill 211 (March 30, 2000). The

Page 1160

legislative bill files for the measure indicate that there was significant public interest and public input concerning the 2000 bill. Many of the bill's provisions were quite controversial, but its provision for stiffer penalties for possession of a firearm by a person with a prior conviction -- the provision that was ultimately codified in PS § 5-133(c)(1) -- was not.

Firearms Regulation -- Recodification of the Mandatory Minimum

In 2003, portions of Article 27 were codified in the new Public Safety Article. As part of this process, the revisers [441 Md. 695] redrafted the five-year mandatory minimum penalty provision originally contained in Article 27, § 449(e). Chapter 5, § 2, Laws of Maryland 2003; Chapter 17, Laws of Maryland 2003. The revised provision was codified as PS § 5-133(c) and stated in relevant part:

(c) (1) A person may not possess a regulated firearm if the person was previously convicted of:
(i) A crime of violence; or
(ii) A violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-606, § 5-607, § 5-608, § 5-609, § 5-612, § 5-613, or § 5-614 of the Criminal Law Article.
(2) A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years, no part of which may be suspended.
(3) A person sentenced under paragraph (1) of this subsection may not be eligible for parole.

PS § 5-133(c) (2003).[23] The 2003 version of PS § 5-133(c) differed from Article 27, § 449(e) in that PS § 5-133(c) specified that the mandatory minimum was triggered following a conviction of possession of a regulated firearm by a person with a prior conviction for a crime of violence or a conviction under the re-codified versions of Article 27, § 286 or § 286A.[24] [441 Md. 696] The General Assembly chose to retain the conjunction " or" relating the subparagraphs of PS § 5-133(c)(1) with the result that possession of a regulated firearm, coupled with either a prior conviction of a crime of violence or a prior conviction under the enumerated provisions of the Criminal Law Article, was a violation of PS § 5-133(c)(1), and would trigger the five-year mandatory minimum sentence in PS § 5-133(c)(2).[25]

Page 1161

Lessons from the Legislative History

We can make several observations as a result of our journey through the legislative history of these two provisions.

First, since the General Assembly first made a prior drug conviction a firearms disqualification, it has consistently enhanced the available sentences on each occasion that it has returned to the subject, particularly for individuals with prior convictions related to the manufacturing, distributing, or importing of illicit drugs. These offenses were first identified in 1989 as the type of drug-related convictions that disqualified a person from possessing a pistol or revolver. In 1991, all felonies under the controlled dangerous substances subtitle of Article 27 (plus conspiracy and attempt to commit such crimes) were included in the new felony provision that authorized a higher maximum sentence compared to other types of disqualifying convictions that were listed in pistols subtitle. In 2000, felonies related to the distribution, manufacturing, and importing of controlled substances were once again singled out in what is now PS § 5-133(c)(1)(ii), along with crimes of violence, as triggering the newly created five-year mandatory minimum sentence. This reflects a consistent intent by the General Assembly to authorize stringent penalties for a person with a prior drug-related conviction who is convicted of possession [441 Md. 697] of a handgun, particularly when that individual has a prior conviction for distributing, manufacturing, or importing controlled substances.

Second, the 2003 amendment that clarified that either a prior conviction for a crime of violence or a prior conviction under one of the enumerated drug-related provisions in PS § 5-133(c)(1)(ii) would, on its own, trigger the mandatory five-year mandatory minimum sentence is particularly indicative of the General Assembly's intent. After the revisers noted the potential confusion regarding what would trigger the mandatory minimum, the General Assembly recodified the statute in a way that unambiguously prescribed the mandatory minimum for a person who possesses a regulated firearm after having previously been convicted of one of the listed drug-related offenses.

Finally, the General Assembly's decision in 2000 to retain the similar, but not identical, prohibition in CR § 5-622 (and its predecessor provision) when enacting the five-year mandatory minimum is significant. The General Assembly is presumed to have considered the existing offense in CR § 5-622 when enacting the five-year mandatory minimum. See GEICO v. Insurance Com'r, 332 Md. 124, 132, 630 A.2d 713 (1993) (Legislature is presumed to be aware of an earlier enacted statute). The General Assembly's decision not to amend CR § 5-622 suggests that it intended to allow a prosecutor the discretion to charge a violation of CR § 5-622(b) instead of a violation of PS § 5-133(c)(1)(ii), and leave open the possibility that a sentencing court might impose something less than a sentence of five years incarceration in the circumstances of the particular case.[26] See Frazier v. State, 318 Md. 597, 615, 569 A.2d 684 (1990) (absence of an amendment to an existing statute when Legislature passes an overlapping proscription indicates that the Legislature intended for both statutes to co-exist).

3. Summary

The two criminal statutes at issue in this case each describe [441 Md. 698] with some precision the

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conduct that constitutes a violation.[27] On the facts of this case, the State's Attorney had discretion to charge Mr. Oglesby with a violation of PS § 5-133(c)(1)(ii) or of CR § 5-622(b), or both. Absent an allegation that the decision was exercised contrary to some constitutional or legal norm, it is not subject to judicial oversight as to whether the statute with the more stringent or the more lenient penalty should have been charged.

There is no ambiguity in either statute as to the penalty that the Legislature has authorized for a conviction. The legislative history confirms that the General Assembly intended to provide for a mandatory minimum sentence for a violation of PS § 5-133(c)(1)(ii). The fact that a violation of CR § 5-622(b) carries a different penalty does not mean that either penalty provision is ambiguous. There is no occasion to apply the rule of lenity to cap the sentence for a violation of PS § 5-133(c)(1)(ii) with that of a more lenient potential offense that could have been charged.[28] In the context of a merger of sentences, where the prosecution has actually charged two overlapping offenses and a court determines that two counts on which a defendant was convicted were based on the same factual elements, the conviction that carries the lesser penalty is merged into the conviction that carries the greater penalty for purposes of sentencing. See, e.g., Brooks v. State, 439 Md. 698, 736-42, 98 A.3d 236 (2014).[29]

[441 Md. 699] The Supreme Court considered a similar argument concerning two overlapping federal statutes that prohibited possession of a firearm by a convicted felon but carried different maximum penalties, and declined to apply the rule of lenity to negate the more stringent sentencing provision. As Justice Thurgood Marshall, on behalf of a unanimous Court, observed: " That [one statute] provides different penalties for essentially the same conduct is no justification for taking liberties with the unequivocal statutory language. ... Where, as here, Congress conveyed its purpose clearly, ... we decline to manufacture ambiguity where none exists." United States v. Batchelder, 442 U.S. 114, 121-22, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (internal quotation marks and citation omitted).[30]

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Accordingly, when, as here, the conduct at issue is proscribed by both statutes, the prosecutor may choose whether to pursue a conviction under PS § 5-133(c)(1)(ii) or CR § 5-622(b) and the appropriate sentence will be a sentence corresponding to the statute under which the defendant is convicted.[31]

[441 Md. 700]C. Whether the Reasoning of Waye v. State Requires that a Defendant Convicted of a Violation of PS § 5-133(c)(1)(ii) be Sentenced under CR § 5-622(c)

We briefly address the significance of Waye v. State, 231 Md. 510, 191 A.2d 428 (1963). In the withdrawn portion of this Court's Alston opinion, the Court's initial majority relied heavily on Waye, although Waye did not involve an application of the rule of lenity.[32] Indeed, in Waye, the Court's decision was based on an assessment of the Legislature's intent underlying the pertinent statutes and there was therefore no need to resort to the rule of lenity.

In Waye, the defendant was charged and convicted of a violation of the False Pretenses Act,[33] which carried a maximum sentence of 10 years incarceration. A statute that criminalized a particular type of theft by false pretenses -- the Worthless Check Act[34] -- had provided for a similar penalty, but had recently been amended to provide a maximum period of 18 months incarceration if the value obtained by means of the worthless check was less than $100. The Court held that the Legislature had not intended to retain the greater penalty for violation of the False Pretenses Act when the violation of that statute involved a worthless check used to obtain a value less than $100. The Court thus construed the relatively recent amendment of the sentencing provision of the narrower statute -- the Worthless Check Act -- to also apply to the broader [441 Md. 701] statute -- the False Pretenses Act -- in those circumstances. 231 Md. at 516.[35]

Waye does not appear to be pertinent to Mr. Oglesby's case. If the reasoning of Waye were applied to analyze the statutes in this case, it would mean that the sentencing provision of the narrower, more recently enacted statute -- here, the mandatory

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minimum sentence in PS § 5-133(c)(2) -- would be read into the older and broader statute -- here, CR § 5-622 -- when a conviction under the latter statute was supported by facts that would have permitted a prosecution under the former statute. [36] But we are not dealing with a conviction under CR § 5-622 and no one is arguing that the mandatory minimum sentence for certain convicted drug offenders found in possession of regulated firearms should be imported into the existing provisions of CR § 5-622.[37]

In light of the Legislature's clear intention to establish a mandatory minimum sentence for certain convicted drug offenders found in possession of regulated firearms, it would frustrate legislative intent and thus be quite at odds with the governing principle of Waye -- fidelity to legislative intent -- to hold that the mandatory minimum sentence provision is a nullity. Indeed, those convicted of serious drug offenses would be treated more leniently than other individuals convicted of crimes listed in PS § 5-133(c)(1). The bottom line is [441 Md. 702] that the reasoning in Waye does not support a conclusion contrary to the one we have reached.

A more analogous case to Mr. Oglesby's situation is Stubbs v. State, 406 Md. 34, 50, 956 A.2d 155 (2008). In Stubbs, the defendant had been convicted and sentenced under a provision of the consolidated theft statute pertaining to thefts involving a value less than $500. On appeal, the defendant argued, among other things, that because the evidence at trial did not show a value greater than $100, his sentence should not have exceeded the lesser sentence provided for a charge of theft of an item with a value less than $100. After reviewing the statutory text and legislative history of the consolidated theft statute, this Court concluded that the Legislature intended to allow a prosecutor the discretion to charge either offense and relied on the passage from Batchelder quoted above. See Part II.B.3 of this opinion. In our view, the Legislature conferred similar discretion upon the prosecutor in this case.

III

Conclusion

The fact that two criminal statutes overlap to some extent -- or to a great extent -- and provide for different penalties upon conviction does not alone create an ambiguity that must be resolved by application of the rule of lenity. When the language of the statute under which a defendant is charged is clear, and the legislative history confirms that the Legislature intended to establish the penalty set forth in that statute, there is no occasion to apply the rule of lenity. The application of the rule in the circumstances of this case would effectively repeal the General Assembly's most recent enactment penalizing gun possession by those convicted of serious drug crimes. Accordingly, the rule of lenity did not require that Mr. Oglesby be sentenced under CR § 5-622(c) for his conviction under PS § 5-133(c)(1)(ii). Nor does the reasoning of Waye v. State require such an outcome.

One may legitimately question whether a mandatory minimum sentence is ever a

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good idea, as it strips the sentencing [441 Md. 703] judge of the discretion to fit the sentence to the particular case and may transfer power over the disposition from the court to the prosecution.[38] But that is a decision for the Legislature, as the courts have generally rejected constitutional challenges to such sentencing provisions.[39]

Judgment of the Circuit Court for Baltimore City Affirmed. Costs to be Paid by Appellant.


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