McGlone v. State

959 A.2d 1191, 406 Md. 545, 2008 Md. LEXIS 613

Opinions

GREENE, Judge.

On February 14,1989, Lemuel Lindsay McGlone, Jr., appellant, was convicted by a jury in the Circuit Court for Montgomery County of various criminal offenses, including, of particular relevance to this case, use of a handgun in the commission of a crime of violence. For that particular conviction, McGlone was sentenced as a habitual offender, pursuant to Md.Code (1957,1982 Repl.Vol., 1986 Cum.Supp.), Article 27, § 64313(e),¹ to 25 years incarceration without the possibility of parole. In June 2007, McGlone filed a motion to correct an illegal sentence, contending that his two prior convictions for crimes of violence should not have qualified as predicate convictions for an enhanced sentence because they neither occurred sequentially nor were separated by a term of confinement, as required by law. The Circuit Court denied the motion without a hearing and McGlone noted a timely appeal to the Court of Special Appeals. Prior to any proceedings in that court, we issued a writ of certiorari on our own initiative, McGlone v. State, 402 Md. 623, 938 A.2d 825 (2008), to consider the following questions:

1. Can two convictions that are not separated by a term of confinement qualify as two predicate convictions for purposes of sentence enhancement pursuant to Md.Code. Ann., Art. 27 § 64313(c)?

2. Is Md.Code. Ann., Art. 27 § 64313(c) ambiguous as to the requirement of sequentiality for two prior predicate convictions used for the purpose of sentence enhancement?

BACKGROUND

Procedural Background

On June 9, 1988, McGlone was indicted by the Grand Jury for Montgomery County for various crimes relating to his conduct in the manufacturing and distribution of PCP as well as his conduct in eluding law enforcement authorities during his apprehension on April 6, 1988. On February 14, 1989, in the Circuit Court for Montgomery County, McGlone was convicted of sixteen of the nineteen counts contained in the indictment filed against him, including the crime of use of a handgun in the commission of a crime of violence. The Circuit Court, pursuant to § 643B(c), sentenced McGlone to 25 years incarceration without the possibility of parole for the crime of use of a handgun in the commission of a crime of violence.²

On June 13, 2007, McGlone filed a motion to correct an illegal sentence, contending that his mandatory sentence for the crime of use of a handgun in the commission of a crime of violence was illegal because the “two predicate convictions” did not occur sequentially and were not separated by a term of confinement, as required by law. The trial court denied the motion on August 16, 2007. This appeal of the denial of the motion to correct an illegal sentence ensued.

Predicate Convictions Background

On June 27, 1977, McGlone was indicted in New Jersey for eight criminal offenses relating to an armed robbery that occurred at the A & P Food Market in Lindenwold, New Jersey on May 19,1977.

On December 5, 1979, while out on bond, pending trial in New Jersey, McGlone, along with an accomplice, broke into a People’s Drug Store in Prince George’s County, Maryland, and robbed the store clerk. McGlone was subsequently arrested and indicted in Prince George’s County for three criminal offenses relating to the robbery. On June 19, 1980, McGlone pled guilty to one count of robbery and was convict ed by the Circuit Court for Prince George’s County. He was sentenced to ten years incarceration.

On November 25, 1980, while serving the sentence for the Maryland conviction, McGlone pled guilty and was convicted in New Jersey of one count of robbery and one count of armed robbery relating to the June 27, 1977 incident. The New Jersey court sentenced McGlone to ten years incarceration for the robbery conviction, to run concurrently with the sentence McGlone was serving in Maryland. The New Jersey court also imposed a five-year sentence of incarceration for armed robbery; however, the five-year sentence was to run concurrent with the ten-year sentence.

DISCUSSION

I.

McGlone contends that the Circuit Court erred in denying his motion to correct an illegal sentence. Specifically, McGlone contends that his two prior convictions are not separated by a term of confinement and, therefore, cannot qualify as two predicate convictions for the purposes of sentence enhancement under § 643B(c). McGlone argues that this Court’s decision in Montone v. State, 308 Md. 599, 613, 521 A.2d. 720, 727 (1987), requires that the “[t]wo convictions must be separated by an intervening term of confinement before they may each serve as a predicate conviction for the purposes of § 643B(b).” McGlone explains: “This requirement of intervening terms of confinement was necessary to enable an individual to have the opportunity to reform and rehabilitate in between the first and second convictions.” He emphasizes that “concurrent sentences or concurrent terms of imprisonment are the antithesis of ‘separate terms of confinement.’ ” McGlone then contends that this Court’s analysis in Montone, regarding § 643B(b), is applicable in the case sub judice because we later stated, in Minor v. State, 313 Md. 573, 576, 546 A.2d 1028, 1029 (1988), “[a]lthough in [Montone] we were commenting on the operation of § 643B(b), our remarks are equally applicable to § 643B(c).” Therefore, McGlone asserts: “As there was no intervening period of confinement between the sentence imposed in Maryland and the sentence imposed in New Jersey, [he] was denied the opportunity to reform and rehabilitate between the first and second convictions.”

The State asserts that the Circuit Court properly denied McGlone’s motion to correct an illegal sentence because McGlone’s two prior convictions, which were incurred separately, and one term of confinement, which he served, qualifies him for sentence enhancement, pursuant to § 643B(c).

The State first disputes McGlone’s reliance on Minor and Montone, arguing that he misinterprets the cases’ holdings and ignores “precedent that squarely addresses the requirements for predicate offenses under § 643B(c).” Specifically, the State contends that “Montone was the interpretation of language used in § 643B(b), the so-called ‘four strikes’ statute,” which is not related to § 643B(c). The State further argues that in Montone, the Court “deduced that the use of the terms ‘separate’ and ‘terms of confinement,’ revealed the General Assembly’s intent to offer offenders an opportunity to rehabilitate themselves before ‘locking them up and throwing away the key.’ ” The State maintains: “In light of the legislative intent, this Court held that a mandatory life sentence under § 643B(b) may be imposed, only after the offender ‘shall have received three previous convictions,’ and ‘each conviction shall have been “separate” from the others.’ ”

Second, the State argues that McGlone’s position ignores the plain language difference between §§ 643B(b) and (c). Specifically, according to the State, “§ 643B(c) does not mandate ‘separate terms of confinement[;]’ [rather,] the two convictions [must] be obtained on ‘separate occasions,’ and that the offender [must] have served ‘at least one term of confinement.’ ” The State then points to Garrett v. State, 59 Md.App. 97, 474 A.2d 931, cert. denied, 300 Md. 483, 479 A.2d 372 (1984) and Simpkins v. State, 79 Md.App. 687, 558 A.2d 816 (1989), and contends that “the predicate offenses used for the purposes of sentence enhancement under § 643B(c) do not have to be separated by a term of confinement.”

Third, the State maintains that McGlone’s reliance on the language contained in two sentences in the Minor opinion to argue that the Court’s interpretation of § 643B(b) applies equally to § 643B(e) is misplaced. According to the State, McGlone takes the two sentences out of context, because the passage that follows the two sentences “makes clear that this Court only meant that § 643B(b) and (c) require ‘separate’ convictions, as the [same] term applies to those particular subsections.” Moreover, the State cites Creighton v. State, 70 Md.App. 124, 520 A.2d 382 (1987), and argues that “one subsection’s provisions should not [be] ‘superimposed’ onto another.” Therefore, the State concludes: “Accordingly, the plain language of § 643B(c) does not require that an offender’s two felony convictions be separated by a term of confinement to qualify as predicates for sentence enhancement.”

Prior to its recodification in 2002, § 643B(c) of Article 27 provided:

Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11. A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.

In other words, in order for a defendant to be designated a habitual offender and receive a 25 year mandatory sentence under § 643B(c), the State must prove that (1) the defendant has been convicted on “two separate occasions”³ of a “crime of -violence”⁴; (2) the two convictions arise from separate incidents; and (3) the defendant served at least one term of confinement as a result of a conviction of a “crime of violence.” If the State proves these elements, the sentencing judge must sentence the defendant, at a minimum, to a term of confinement not less than 25 years without the possibility of parole.

The facts in the record are clear that McGlone was convicted on two separate occasions of crimes of violence. In addition, it is clear that the convictions arose from separate incidents. McGlone was first convicted of robbery on June 19, 1980, resulting from an incident in Prince George’s County on December 5, 1979. McGlone’s second conviction occurred on November 25, 1980. The underlying offense for the second conviction was the June 27, 1977, armed robbery of a store clerk in a New Jersey food store. Both convictions involved crimes of violence. See Md.Code (1957, 1987 Repl.Vol., 1989 Cum. Vol.), § 643B(a) of Article 27.

It is also clear from the record that McGlone has served at least one term of confinement. Both of McGlone’s prior convictions resulted in sentences of ten years incarceration, though McGlone’s second sentence of ten years ran concurrent with the first sentence.

McGlone, however, contends that because his two prior convictions were not separated by a term of confinement, he is not eligible for the imposition of the mandatory 25 year sentence. McGlone’s relies on our decisions in Montone and Minor to support his contention. His reliance is misplaced.

In Montone v. State, supra, we examined § 643B(b), what has been identified as the “four time loser” sentencing provision, to determine whether Montone had been properly sentenced to life imprisonment pursuant to the habitual offender provision. Specifically, we decided whether a defendant had to be convicted of three separate crimes of violence and serve three separate terms of confinement stemming from convictions of crimes of violence in order to be eligible for a mandatory life sentence. We answered in the affirmative. In coming to that conclusion, we looked at the legislative purpose of this provision. We stated:

[Section] 643B(b)’s purpose is not merely to punish. To interpret the statute’s purpose as such would render the “separate” and “terms of confinement” requirements therein superfluous. If the legislature intended § 643B(b) merely to inflict more severe punishment upon someone who is a persistent offender, the legislature would have enhanced an individual’s sentence any time he had previous convictions. Rather, in § 643B(b), the legislature not only requires that before being sentenced as an habitual offender, an individual shall have received three previous convictions, it requires that each conviction shall have been “separate” from the others. Moreover, § 643B(b) requires that the individual shall have actually served three separate terms of confinement in a correctional institution. Thus, the legislature’s preoccupation with identifying those individuals incapable of rehabilitation and “locking them up and throwing away the key” is manifest. We cannot conclude otherwise.

308 Md. at 612, 521 A.2d at 721 (footnote omitted).

We then stated that the

[t]wo convictions must be separated by an intervening term of confinement before they may each serve as a predicate conviction for purposes of § 643B(b). This is so for two reasons. First, we would be thwarting the purpose of § 643B(b) if we allowed two convictions to count as two predicate convictions notwithstanding the fact that the individual was deprived of an intervening exposure to the correctional system. The purpose of § 643B(b) is to identify individuals incapable of rehabilitation and lock them up forever. The statute identifies these individuals by requiring that they have served “three separate terms” within the correctional system, followed by three separate opportunities to prove that they have reformed. When an individual receives two convictions without any intervening term of confinement, he has had no opportunity to reform between his first and second convictions. Thus, the second conviction says nothing about that individual’s capacity for rehabilitation. Accordingly, this second conviction cannot serve as a predicate conviction under § 643B(b).

Second, § 643B(b) by its terms requires that two convictions shall be separated by a term of confinement before they may qualify as two predicate convictions. Otherwise the two convictions could not result in two “separate terms of confinement” as the statute requires.

308 Md. at 613, 521 A.2d at 727.

McGlone urges this Court to read into § 643B(e) the concept of “separate terms of confinement.” We decline the invitation. Our analysis in Montone does not apply in this case. The plain language of § 643B(c) does not mandate “separate terms of confinement,” as § 643B(b) does; rather, § 643B(c) requires only that the offender serve “at least one term of confinement.” Thus, a defendant need only serve one term of confinement and receive two convictions to satisfy the eligibility requirements for imposition of a mandatory sentence under § 643B(c). The required term of confinement may, therefore, occur after the first conviction, after the second conviction, or it may run concurrently with another sentence, as occurred in the case sub judice, without affecting the offender’s eligibility for an enhanced sentence. Indeed, this statutory requirement contemplates that a sentencing judge may exercise wide discretion in fashioning a defendant’s sentence. See State v. Dopkowski, 325 Md. 671, 679, 602 A.2d 1185, 1189 (1992) (noting that the sentencing court has “virtually boundless discretion” in imposing a sentence).

In arguing that this Court’s analysis in Montone is relevant to the outcome of the case sub judice, McGlone quotes the following two sentences from Minor v. State, supra: “We discussed the unique qualities of the Maryland habitual offender statute in Montone v. State .... Although in that case we were commenting on the operation of § 648B(b), our remarks are equally applicable to § 643B(c).” McGlone’s reliance on this passage of the most ephemeral obiter dicta in Minor is misplaced. In Minor, we were reviewing the constitutionality of § 643B(c). In the opening paragraphs of the opinion, the Court stated:

We discussed the unique qualities of the Maryland habitual offender statute in Montone v. State, 308 Md. 599, 521 A.2d 720 (1987). Although in that case we were commenting on the operation of § 643B(b), our remarks are equally applicable to § 643B (c). We said:

The Maryland statute requires more than merely “previous” convictions; it requires separate convictions. Moreover, the statute’s scope is narrowed by the fact that it requires not only that an individual shall have received separate convictions, but that he shall have been sentenced to, and shall have actually served, [a term] of confinement under the jurisdiction of the correctional system.

Id. at 606, 521 A.2d at 723 (Emphasis supplied).

313 Md. at 576, 546 A.2d at 1029. It is clear from the reading of the above-quoted passage that the Court’s statement relating to the applicability of Montone to an analysis of § 643B(c) was confined only to the quoted Montone passage. The Court, in discussing Montone, was pointing out that §§ 643B(b) and (c) share two important requirements — one, that the defendant have separate convictions for crimes of violence and, two, that the defendant have actually served the requisite number of terms of confinement for his/her crimes of violence.

McGlone attempts to utilize this negligible comment from Minor to engulf the entire analysis of the Montone case as applicable to an interpretation of a criminal sentence pursuant to § 643B (c). We reject this attempt. There is no indication, and we do not take the liberty to invent such indication, that the Court’s entire analysis in Montone is applicable to sentences fashioned pursuant to § 643B (c).

Therefore, we hold that the plain language of § 643B(c) does not require intervening terms of confinement between the predicate convictions.

II.

McGlone next contends that while § 643B(c) is ambiguous as to the requirement of sequentiality of the two predicate convictions, the Court of Special Appeals in Garrett v. State, 59 Md.App. 97, 474 A.2d 931 (1984), “imposed two separate requirements for a prior offense to count as a predicate conviction under § 643B(c)” — “the convictions must be separate and, in addition, sequential.” Because McGlone’s two prior convictions for crimes of violence were not imposed sequentially,⁵ McGlone argues that these convictions cannot therefore serve as predicate convictions for the purpose of sentence enhancement under § 643B (c).

The State counters, asserting that the statute has been previously determined to be unambiguous in Jones v. State, 336 Md. 255, 647 A.2d 1204 (1994), and that “reasoning applies with equal force in this case.” Specifically, the State argues that the plain language of § 643B(c), and the intermediate appellate court’s interpretation in Garrett, requires only that the defendant’s predicate convictions precede the commission of the offense upon which the § 643B(c) sentencing is based. The State continues: “McGlone cites no authority that interprets § 643B(c) to require that the prior convictions incur in the matter he suggests____ McGlone’s strained interpretation of Garrett is wholly unsupported by the plain meaning of the statute.”

In essence, McGlone asks us to read into § 643B(c) a sequentiality requirement. We decline to do so. We interpret the words enacted by the Maryland General Assembly; we do not rewrite the language of a statute to add a new meaning. Kushell v. Department of Natural Resources, 385 Md. 563, 576-77, 870 A.2d 186, 193-94 (2005) (“In construing the plain language, ‘[a] court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application.’ ”) (citations omitted); accord Magnetti v. University of Maryland, 402 Md. 548, 564-65, 937 A.2d 219, 228-29 (2007).

The statutory provision at hand contains no language which implies that each predicate offense must be committed and a defendant convicted in the sequence which McGlone advocates — commit offense one, conviction for offense one, commit offense two, conviction for offense two. Rather, a plain reading of § 643B(c) suggests that the only explicit requirement concerning sequentiality is via the definition of “separate occasion.” This definition mandates that a second or succeeding conviction may serve as a predicate conviction only when the underlying offense (giving rise to the second or succeeding conviction) occurred after a charging document has been filed for the preceding predicate offense. See § 643B(c) (“A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.”). We have said that when a statute defines a term, courts utilize that definition of the term when interpreting the statute. See Chow v. State, 393 Md. 431, 444, 903 A.2d 388, 396 (2006) (indicating that courts interpreting a statutory term initially determine if the legislature has defined the term; if the legislature has not, the court utilizes the common and popular meaning of the term). Therefore, under the plain language of § 643B(c), convictions of crimes of violence may be utilized as a predicate conviction under § 643B(c) even if they are not obtained in a “commit offense one — conviction for offense one — commit offense two — conviction for offense two” sequence. In other words, the court may utilize as a predicate conviction, a second or succeeding conviction for a crime of violence if the underlying offense (to that second or succeeding conviction) occurred prior to the first predicate conviction of a crime of violence, but after the filing of the charging document as to the first offense.

The immediate consequence of this Court interjecting McGlone’s desired sequentiality requirement into § 643B(c) would be to render the General Assembly’s definition of separate occasion unworkable and meaningless. To require that the second (or succeeding) predicate offense occur after the conviction of the first predicate conviction overrides the express standard set forth by the Maryland Legislature. Specifically, § 643B(c) only requires that the second or succeeding offense occur after the charging document in the first or proceeding offense has been filed.

In the case sub judice, McGlone was indicted for his first crime of violence on June 27, 1977. While out on bond, pending trial for that crime, McGlone committed his second crime of violence on January 9, 1978. Under the plain language of § 643B(c), McGlone’s second crime of violence may be used as a predicate conviction because the underlying offense for that conviction occurred after the charging document was filed for his first crime of violence. Therefore, we find no error in the sentencing judge’s decision to sentence McGlone to a 25 year period of incarceration, pursuant to § 643B(c).

III.

We, therefore, conclude that McGlone’s sentence under § 643B (c) is not illegal. McGlone was subject to an enhanced sentence, under § 643B(c), because, prior to this most recent conviction for a crime of violence, he had been convicted of two crimes of violence on two separate occasions, arising from two separate incidents, and had served at least one term of confinement within the correctional system for those convictions. Accordingly, we affirm the Circuit Court’s imposition of a sentence of 25 years incarceration without the possibility of parole for McGlone’s conviction of the crime of use of a handgun in the commission of a felony.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

BELL, C.J., files a dissenting opinion joined by RAKER, J.

Footnotes

1

. Unless otherwise indicated, all subsequent statutory references herein shall be to Article 27, Md.Code. (1957, 1982 Repl.Vol., 1987 Cum. Supp.). Pursuant to the code revision process, § 643B of Art. 27 has since been repealed and re-enacted as Md.Code (2002, 2007 Supp. Vol.), § 14-101 of the Criminal Law Article. See 2002 Laws of Md., Chapter 26, § 1.

2

. On June 30, 1989, McGlone was initially sentenced to a total of 65 years incarceration through a combination of concurrent, consecutive, and suspended sentences. For the crime of use of a handgun in the commission of a crime of violence, McGlone was sentenced to ten years incarceration, to run consecutive with several other sentences. The sentencing judge, however, stated during the sentencing: "The court sentences Mr. McGlone pursuant to Article 27, § 643B(c) of the Annotated Code of Maryland with respect to all sentences that the court is going to impose in this case.” Thereafter, McGlone filed a motion to correct an illegal sentence, arguing that the Circuit Court could only impose a § 643B(c) sentence on one crime of violence, not to his entire sentence. The State conceded that the Circuit Court imposed an illegal sentence. As a result, the Circuit Court, on September 24, 2002, struck McGlone's sentence and imposed a new sentence, which is the subject of the instant appeal.

3

. A “separate occasion" is defined as "one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.” Md.Code (1957, 1987 Repl. Vol., 1989 Cum. Vol.), § 643B(c) of Article 27.

4

. A "crime of violence” is explicitly defined at Md.Code (1957, 1987 Repl.Vol., 1989 Cum. Vol.), § 643B(a) of Article 27. It provides in pertinent part:

"Crime of violence" — As used in this section, the term "crime of violence” means abduction; arson; burglary; daytime housebreaking under § 30(b) of this article; kidnapping; manslaughter, except involuntary manslaughter; mayhem and maiming under §§ 384, 385, and 386 of this article; murder; rape; robbery; robbery with a deadly weapon; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; assault with intent to rape; assault with intent to rob; assault with intent to commit a sexual offense in the first degree; assault with the intent to commit a sexual offense in the second degree.

5

. McGlone asserts that, in his case, “he committed offense number one, committed offense number two, was convicted for offense number two, and then convicted for offense number one.” McGlone contends that prior convictions, to be considered as predicate convictions, must be obtained sequentially, that is, the defendant must be charged, convicted, and serve a period of incarceration for offense number one, prior to committing offense number two. In addition, McGlone contends that the defendant must be charged, convicted, and serve a period of incarceration for offense number two, prior to committing offense number three.