Minor v. State

546 A.2d 1028, 313 Md. 573, 1988 Md. LEXIS 126

• Court: Court of Appeals of Maryland
• Decided: September 13, 1988
• Docket: 98, September Term, 1986
• Status: Published

Opinions

COLE, Judge.

At issue in this case is the constitutionality of Kevin Claude Minor’s sentence of twenty-five years in prison without the possibility of parole under Maryland’s habitual criminal statute. Minor was sentenced pursuant to Md. Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.) Art. 27, § 643B(c), which provides:

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.

Minor’s current conviction for daytime housebreaking represents his fourth conviction for a “crime of violence” in the last ten years.¹ The sentencing judge found that Minor previously had been convicted of burglary and two separate acts of housebreaking. In addition, Minor had served at least one term of confinement in the State prison system.

Minor appealed his sentence to the Court of Special Appeals, and, that court affirmed the lower court in an unreported per curiam opinion. We subsequently granted certiorari to address the important question presented.

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).

Section 643B(c) is designed to allow the prosecutor to seek an enhanced punishment against individuals who have demonstrated violent propensities on three distinct occa-. sions. The penological objectives behind the extended incarceration of these individuals are to protect our citizens from violent crime and to expose these criminals to a prolonged rehabilitative process. See Hawkins v. State, 302 Md. 143, 148, 486 A.2d 179, 182 (1985).

Minor argues that his sentence of twenty-five years without parole is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution² and Articles 16 and 25 of the Maryland Declaration of Rights.³ In particular, Minor asserts that he has never threatened nor harmed any person during the perpetration of any of his past crimes. Thus, Minor reasons that the legislature has erred in rigidly classifying housebreaking as a crime of violence for purposes of the enhanced punishment statute. Minor maintains that a sentence of twenty-five years without parole is disproportionate in light of all the circumstances and should be vacated pursuant to the dictates of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Helm, the Supreme Court vacated a life sentence without the possibility of parole imposed under the South Dakota habitual criminal statute. The Supreme Court concluded that the sentence was significantly disproportionate to the defendant’s crime of uttering a “no account” check for $100.00.

The State contends that a Helm proportionality review of Minor’s sentence is unnecessary and inappropriate in light of the Supreme Court’s ruling in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In Rummel, the defendant was convicted of obtaining $120.75 by false pretenses, his third felony, and was given a life sentence with the possibility of parole under the Texas habitual criminal statute. The Supreme Court decided that this sentence was not cruel and unusual and rejected Rummel’s request for a proportionality review. In the alternative, the State contends that Minor’s sentence would be upheld under the Helm proportionality analysis.

Although Minor’s sentence is similar in some respects to both of the sentences reviewed in Rummel and Helm, we conclude that the underlying facts in this case are more analogous to those presented in Rummel. Accordingly, an extensive proportionality review under Helm is unnecessary. We explain.

In Rummel, the Supreme Court stated that “the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” Id. at 271, 100 S.Ct. at 1138 (Citations omitted). However, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Id. at 272, 100 S.Ct. at 1138.

The Supreme Court noted that before Rummel could receive a life sentence under the Texas statute, the State had to prove that Rummel previously had been convicted of two separate felonies and had actually served a period of incarceration for each of those offenses. Id. at 278 nn. 15, 16, 100 S.Ct. at 1141 nn. 15, 16. These procedural requirements are very similar to those of the Maryland statute in question. The Texas habitual criminal statute was found to promote the State’s legitimate interest “in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Id. at 276, 100 S.Ct. at 1140. In upholding the sentence, the Supreme Court indicated that the length of sentences in recidivist statutes are largely within the discretion of the punishing jurisdiction. Id. at 285, 100 S.Ct. at 1145.

Following Rummel, the Supreme Court upheld a forty year sentence imposed under Virginia law for the sale of nine ounces of marijuana. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam). The Supreme Court reiterated that the length of legislatively mandated prison terms should rarely be subjected to judicial review. Id. at 374, 102 S.Ct. at 705.

The following year the Supreme Court decided the Helm case. In overturning the defendant's life sentence without the possibility of parole, the Supreme Court stated that “no penalty is per se constitutional ... a single day in prison may be unconstitutional in some circumstances.” Helm 463 , 103 S.Ct. at 3009-10. The Supreme Court, however, did not overrule Rummel. It made unmistakably clear that

[c]ontrary to the dissent’s suggestions ... we do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

Id. at 290 n. 16, 103 S.Ct. at 3009-10 n. 16.

The Supreme Court distinguished the Rummel holding on the grounds that the defendant in that case would likely have been eligible for parole within a reasonable amount of time (twelve years), while Helm’s sentence, life without parole, required that he spend the rest of his days in the state penitentiary. Id. The Supreme Court implied that its holding in Helm was limited to the particular facts of that case.⁴

This Court recently had the opportunity to consider the constitutionality of a sentence imposed under Art. 27, § 643B(b) which subjects criminals who have served three separate prison terms and have been convicted of a fourth crime of violence to a mandatory life sentence without the possibility of parole. See State v. Davis, 310 Md. 611, 530 A.2d 1223 (1987). In Davis, the defendant was convicted of daytime housebreaking. This conviction, combined with a long list of prior burglary and daytime housebreaking convictions resulted in a mandatory sentence of life without benefit of parole. Davis argued that his sentence was cruel and unusual in violation of the Eighth Amendment and that Helm required that the sentence be vacated.

This Court held that Helm was not factually controlling in Davis. In particular, we noted that while Helm’s crimes were “relatively minor,” Davis’s crimes were classified as “crimes of violence” under § 643B(a). In light of the seriousness of the crime of daytime housebreaking, the stringent requirements of § 643B(b), and the principle espoused in Helm that reviewing courts should accord substantial deference to legislative sentencing schemes, we concluded that an extended proportionality analysis was unnecessary in Davis. Id. at 629, 530 A.2d at 1233. However, as an alternative in Davis, we applied the objective analysis outlined in Helm and concluded that Davis’s sentence was constitutionally sound. See also Terrebonne v. Butler, 820 F.2d 156 (5th Cir.1987); Seritt v. Alabama, 731 F.2d 728 (11th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 433 (1984); People v. Fernandez, 427 Mich. 321, 398 N.W.2d 311 (1986).

Our discussion in Davis is pertinent to our analysis in this case in another respect. Specifically, Davis, like Minor, argued that daytime housebreaking is a minor, nonviolent offense. We rejected that argument stating:

The General Assembly has classified daytime housebreaking in Maryland with offenses such as murder, manslaughter, rape, and robbery with a deadly weapon in the class of “crimes of violence” under § 643B. Although an assault and battery is not an element of daytime housebreaking, the legislature recognized in § 643B the substantial potential for violence inherent in acts of daytime housebreaking. Even if the housebreaker seeks to avoid encountering another person in the dwelling, the housebreaker may be mistaken in believing the dwelling is temporarily unoccupied or the housebreaker may be surprised by the return of an occupant. We need not look beyond our recent cases for examples of crimes which started as housebreakings and which ended as murders for which the death penalty was imposed. See Johnson v. State, 303 Md. 487, 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); Colvin v. State, 299 Md. 88, 472 A.2d 953 (1984).

Davis, 310 Md. at 629, 530 A.2d at 1233. We reaffirm this position. The legislature recognized the potential and likelihood of violence in certain kinds of criminal behavior. As we see it, this recognition obviates the necessity for the State to demonstrate that there was actual violence in the commission of a predicate crime before enhanced punishment can be imposed under the statute. However, we hasten to make clear that we do not suggest that under constitutional review the facts of the predicate crimes are immaterial or must be ignored. We simply conclude that under the circumstances of this case no constitutional review is in order. Thus, the legislative determination that housebreaking is a violent crime will not be disturbed.

In the case sub judice, the Court of Special Appeals summarily upheld Minor’s sentence in accord with its previous decision in Bryan v. State, 63 Md.App. 210, 492 A.2d 644, cert. denied, 304 Md. 296, 498 A.2d 1183 (1985). In Bryan, the intermediate appellate court was faced with the precise issue which this Court decides today.

The defendant, Bryan, was sentenced to twenty-five years without the possibility of parole pursuant to § 643B(c) following a third conviction for a crime of violence. Bryan argued that a Helm proportionality review was required. The court rejected this contention and found Rummel to be controlling.

The intermediate appellate court supported its position by examining the differences between § 643B(c) and the South Dakota habitual criminal provisions which the Supreme Court dealt with in Helm. The court focused on the potential for serious harm associated with the crimes of violence listed in § 643B(a) and the lengthy prison terms which even a first offender would face upon conviction. The South Dakota statute, on the other hand, applied to felonies which would not necessarily involve violence or risk of harm. Further, the court emphasized that the Maryland statute requires imprisonment for a term of years without parole. Thus, the “[ajppellant has some hope of an eventual release from prison.” Id. at 219, 492 A.2d at 648. In comparison, the South Dakota statute mandated a life sentence without parole. Finally, the court relied on numerous decisions of other jurisdictions upholding mandatory sentences under similar habitual criminal statutes. We find these cases to be instructive.

In Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984), the defendant, a repeat offender, was given a life sentence with eligibility for parole after twenty years. Moreno had two previous convictions for non-violent felonies while his third conviction was for aggravated assault. The appellate court found the facts of the case to be substantially similar to the facts in Rummel and affirmed the validity of the sentence without engaging in a Helm analysis.

The United States Court of Appeals for the Fourth Circuit also upheld a lengthy sentence for a term of years without an extended Helm analysis. In United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986), a sentence of seventy-five years without parole was upheld after a simple matching of the facts of that case to the Helm principles. The court held that Helm “requires an extensive proportionality analysis only in those cases involving life sentences without parole.” Id. at 1028. See also Chandler v. Jones, 813 F.2d 773 (6th Cir.1987) (habitual criminal’s life sentence with eligibility for parole after thirty years was upheld as factually similar to Rummel; Helm analysis provided in the alternative); United States v. Rosenberg, 806 F.2d 1169 (3rd Cir.), cert. denied, — U.S. -, 107 S.Ct. 2465, 95 L.Ed.2d 873 (1986) (defendants’ sentences of fifty-eight years were upheld after an abbreviated proportionality review in accord with Rhodes and Moreno); Stevens v. Armontrout, 787 F.2d 1282 (8th Cir.1986) (two hundred year sentence with eligibility for parole after serving twelve years upheld as within statutory limits and distinguishable from Helm)] United States v. Stead, 740 F.2d 657 (8th Cir.), cert. denied, 469 U.S. 1090, 105 S.Ct. 600, 83 L.Ed.2d 709 (1984) (twenty year sentence upheld; Helm is distinguished on grounds that sentence in question is for a term of years and parole is available); United States v. Zylstra, 713 F.2d 1332 (7th Cir.), cert. denied, 464 U.S. 965, 104 S.Ct. 403, 78 L.Ed.2d 344 (1983) (sentence of two hundred and ten years with parole eligibility after serving ten years is upheld without Helm analysis); Arizona v. Noriega, 142 Ariz. 474, 690 P.2d 775 (1984) (life sentence with possibility of parole after serving twenty-five years upheld without extended Helm analysis); Thomas v. State, 471 N.E.2d 681 (Ind.1984) (sentence for rape of forty years with eligibility for parole after twenty years upheld without extended Helm analysis); Seely v. State, 451 So.2d 213 (Miss.1984) (sentence of fifteen years without possibility of parole for third non-violent felony upheld under Rummel); State v. O’Connor, 408 N.W.2d 754 (S.D.1987) (sentence of three concurrent fifty year terms for habitual offender upheld without extended Helm analysis). But cf. United States v. Darby, 744 F.2d 1508 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985) (applying extended Helm analysis to sixty year sentence with parole); Whitmore v. Maggio, 742 F.2d 230 (5th Cir.1984) (sentences of fifty and seventy-five years without benefit of parole must receive Helm proportionality analysis).

We conclude that an extended Helm proportionality analysis is not mandatory under these facts. In light of the seriousness of Minor’s past and present criminal conduct, deference due the legislature in regard to sentencing directives, and the unique function and particular requirements for enhanced punishment under § 643B(c), we hold that Minor’s sentence is within constitutional limits. Accord State v. Davis, supra.

However, even if a proportionality analysis is required, we believe that the sentence is valid. The Helm court outlined objective criteria to be examined in cases requiring proportionality review. The sentencing court should consider: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Helm, 463 U.S. at 292, 103 S.Ct. at 3011.

As to the first criterion, we recognized in Davis, supra, that the Maryland General Assembly views daytime housebreaking as a serious offense due to the potential for violence which accompanies such illegal conduct. The fact that physical violence is absent is not determinative. Furthermore, although a sentence of twenty-five years without parole may be considered harsh for a first offense of daytime housebreaking, we conclude that the sentence is appropriate in this case because Minor’s criminal history reveals that he is a professional criminal in need of extended rehabilitation.

The second Helm criterion compares the sentence in question with sentences for other crimes in the jurisdiction. As noted in Davis, life without parole is the most severe non-capital punishment in Maryland law, and is appropriate when a defendant has four separate convictions for a crime of violence and has served three separate terms of confinement in a correctional institution. The sentence here, twenty-five years without parole, is mandatory if the defendant has committed a third separate crime of violence under § 643B(c). Since the sentences to be imposed under subsections (b) and (c) apply to all of the crimes of violence listed in § 643B(a) there is little question that the sentences are proportionate in relation to sentences for similar crimes. On a more fundamental level, the sentences for first offenses of these crimes of violence provide for lengthy prison terms ranging from a minimum of ten years for daytime housebreaking to life for first degree rape. See Bryan, 63 Md.App. at 217-18, 492 A.2d at 647-48. Accordingly, the sentence in question is proportionate to the sentences imposed for other crimes in Maryland.

Finally, Helm requires that we compare the sentence imposed under the Maryland habitual criminal statute with the sentences imposed for the commission of the same crime in other jurisdictions. In Davis, 310 Md. at 637, 530 A.2d at 1236, we commented that if “four to six states authorize comparable sentencing, we would have no hesitancy in finding that the third Helm criterion indicates that Davis’s sentence is constitutional.” However, even if this State’s sentence was found to be the most severe of the several states, that fact alone would not necessarily taint the validity of the sentence. Rummel, 445 U.S. at 281-82, 100 S.Ct. at 1143. Barring strict uniformity, one state generally will have the distinction of enforcing the most severe punishment; to strike down a statute solely on these grounds is absurd.

As indicated in Davis, a life sentence without the benefit of parole can be imposed for a third housebreaking conviction in Delaware.⁵ The same third conviction would expose the defendant to a life sentence in the District of Columbia, Idaho, New York, South Carolina, and West Virginia.⁶ A life sentence can be imposed in Utah⁷ following a second conviction for housebreaking, while the same life sentence is permitted in Texas⁸ for a first offense of housebreaking. Habitual housebreakers also face lengthy terms of imprisonment in many states.⁹

As the Maryland sentence is clearly within the general range of sentences imposed in other jurisdictions for the same crime, we conclude that Minor’s sentence is not unconstitutionally disproportionate.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; APPELLANT TO PAY THE COSTS.

1 . Art. 27, § 643B(a) provides:

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; and assault with intent to commit a sexual offense in the second degree.

The term "correctional institution” includes Patuxent Institution and a local or regional jail or detention center.

2 . U.S. Constitution Amend. VIII provides; "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

3 . Article 16 of the Maryland Declaration of Rights provides as follows:

That sanguinary laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.

Article 25 of the Maryland Declaration of Rights provides as follows:

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.

4 . "We raise no question as to the general validity of sentences without possibility of parole. The only issue before us is whether, in the circumstances of this case and in light of the constitutional principle of proportionality, the sentence imposed on this respondent violates the Eighth Amendment." Helm, 463 U.S. at 297 n. 24, 103 S.Ct. at 3013 n. 24.

5 . Del.Code Ann. tit. 11 §§ 825, 4214 (1979 Repl.Vol. & 1986 Cum. Supp.).

6 . D.C.Code Ann. §§ 22-1801(b), 22-104(a) (1981); Idaho Code §§ 18-1401, 18-1402, 19-2514 (1987); N.Y.Penal Laws §§ 140.20, 70.10 (McKinney 1975 & 1988 Cum.Supp.); S.C.Code Ann. §§ 16-11-312, 17-25-45 (1976, 1987 Cum.Supp.) (without parole); W.Va.Code §§ 61-3-11, 61-11-18 (1966, 1984 Repl.Vol.).

7 . Utah Code Ann. §§ 76-6-202, 76-8-1001 (1953, 1978 Repl.Vol., 1987 Cum.Supp.).

8 . Texas Penal Code Ann. § 30.02, 12.32 (Vernon 1974 & 1988 Cum. Supp.).

9 . Ala.Code §§ 13A-5-9(b), 13A-7-7, 13A-5-6 (1975, 1982 Repl.Vol., 1987 Cum.Supp.) (10 years to 99 years); Ark.Stat.Ann. §§ 5-4-501(a)(3), 5-39-201 (1987) (10 years to 30 years); Colo.Rev.Stat. §§ 16-13-101(1), 18-4-202.1(2); 18-4-203 (1986 Repl.Vol., 1987 Cum. Supp.) (25 years to 50 years); Fla.Stat.Ann. §§ 775.084(4)(a), 810.02 (1976, 1988 Cum.Supp.) (up to 30 years); Ind.Code Ann. §§ 35-50-2-8(e), 35-43-2-1 (Burns 1985 Repl.Vol., 1987 Cum.Supp.) (up to 35 years); La.Rev.Stat.Ann. §§ 15:529.1(A)(2)(a), 14:62 (1986, 1988 Cum. Supp.) (6 years to 24 years); Mich.Comp.Laws §§ 769.11(1)(a), 750.-110 (1982, 1988 Cum.Supp.) (up to 30 years); Mont.Code Ann. §§ 46-18-501, 46-18-502(2), 45-6-204 (1987) (10 years to 100 years); S.D.Codified Laws Ann. §§ 22-6-1(4), 22-7-7, 22-32-3 (1988 Rev. ed.) (25 years); Nev.Rev.Stat.Ann. §§ 207.010(1), 205.060(1) (1986, 1987 Cum. Supp.) (10 years to 20 years).