Recidivism Enhanced Sentences

• Jurisdiction: Maryland

IX. Recidivism enhanced sentences

A. Enhancement sentencing applicable only if there is an enhancement statute applicable to the defendant

The State may not seek, and the court may not impose, enhanced sentencing if the legislature has not provided statutory authority for an enhanced sentence. Even if there is a statutorily enhanced sentence, the defendant may not be eligible for enhancement. Ambiguity in a sentencing statute must be interpreted in favor of the defendant. See Cantine v. State, 160 Md. App. 391, 413 (2004). Any ambiguity as to whether the legislature intended multiple punishments for the same act "will be resolved against turning a single transaction into multiple offenses." Simpson v. United States, 435

U.S. 6, 15 (1978).

In Scott v. State, 351 Md. 667, 676-77 (1998), the Court of Appeals held that, when there is an ambiguity as to whether two sentencing enhancements could apply together, the rule of lenity precludes applying both. In Price v. State, 405 Md. 10, 33-34 (2008), the Court of Appeals held that sentences on multiple counts, all stemming from the same transaction, cannot each be enhanced by the same enhancement statute under the rule of lenity. In Gargliano v. State, 334 Md. 428, 449 (1994), the Court of Appeals held that when it is unclear whether the legislature intended to authorize an enhanced sentence, the court must assume that the legislature did not intend to do so.

In Harris v. State, 169 Md. App. 98, 103-05, cert. denied, 394 Md. 481 (2006), the Court of Special Appeals held that the trial court could not impose a mandatory 25-year sentence, without parole, when the statute was ambiguous as to inclusion of conspiracy to distribute cocaine as a qualifying conviction.

In Loveday v. State, 296 Md. 226 (1983), the Court of Appeals held that, if the defendant can demonstrate that (a) the crimes are not qualifying crimes of violence, or (b) the proceeding is defective, e.g., that the defendant unlawfully lacked counsel, there can be no enhanced sentence. Id. at 237; see also State v. Fincham, 71 Md. App. 314, 315 (1987).

B. Enhancement sentencing for subsequent offenders

Subsequent offender statutes apply when prior convictions make the defendant eligible for, or mandate, an enhanced sentence. Md. Rule 4-245(a). The decision to pursue a mandatory minimum sentence, when allowed by a subsequent offender statute, is a matter of prosecutorial discretion. The court is not bound to impose a mandatory sentence if the prosecution does not provide, or provides but later withdraws, notice to the defendant of its intent to pursue an enhanced sentencing and the supporting prior conviction(s). In Beverly v. State, 349 Md. 106, 127-28 (1998), the Court of Appeals upheld a plea agreement in which the State agreed not to treat the defendant's conviction as a subsequent offense for enhancement purposes.

In Shilling v. State, 320 Md. 288, 296-97 (1990), the Court of Appeals explained that a PBJ is a conviction for the purposes of sentence enhancement. In Whack v. State, 338 Md. 665, 678-79 (1995), the Court of Appeals held that a conviction on appeal is a predicate conviction for the purposes of enhancement. Two enhancement statutes may be applied in the same case to enhance sentences on different counts. However, in Price v. State, 405 Md. 10, 32-34 (2008), the Court of Appeals held that sentences on multiple counts, based on the same transaction, cannot each be enhanced by the same enhancement statute.

In Muir v. State, 308 Md. 208 (1986), the Court of Appeals held that the fact that the defendant's prior convictions were for offenses he committed as a juvenile did not preclude them from serving as predicate felonies under the enhanced punishment statute: "Not to count such convictions as predicate crimes of violence would, we think, thwart the legislative purpose of protecting the public and deterring the commission of violent crimes." Id. at 218.

In Teeter v. State, 65 Md. App. 105, 120 (1985), cert. denied, 305 Md. 245 (1986), the Court of Special Appeals held that, if the prerequisites for imposing a mandatory minimum sentence have not been met, it is illegal to impose such a sentence. In Stevenson v. State, 180 Md. App. 440, 457 (2008), the Court of Special Appeals held that the defendant was not a repeat offender for purposes of enhanced sentencing because the defendant's pre-trial detention did not count as a "term of confinement" under the statute. In State v. Green, 367 Md. 61, 80 (2001), the Court of Appeals held that a mandatory sentence may not be modified by commitment to the Department of Health and Mental Hygiene.

C. Permissive enhancement versus mandatory enhancement

Sentencing enhancement statutes include permissive enhancements and mandatory enhancements. Md. Rule 4-245(b)-(c). In Loveday v. State, 296 Md. 226, 241 (1983), the Court of Appeals held that enhancement sentencing, based on prior convictions, is constitutional.

Pursuant to Md. Rule 4-245(c), in State v. Montgomery, 334 Md. 20 (1994), the Court of Appeals held that (a) if the sentencing enhancement statute is mandatory; (b) if the statutory requirements are satisfied; and (c) if the requisite notice is provided, the sentencing judge must impose the enhanced sentence. The Court stated: "[T]he rule precludes a Defendant from being able to evade the imposition of a mandatory penalty, which, if all the statutory requirements are met, must be imposed." Id. at 25 (citing Loveday v. State, 296 Md. 226, 236-37 (1983)).

D. Requirement for notice of intent to seek enhancement

1. Logistics of proving notice of enhancement

Both permissive enhancement and mandatory enhancement require the State to provide notice to the defendant of its intent to seek enhancement sentencing. Pursuant to Md. Rule 4-245(b) and 4-245(c), the State must hand deliver to defense counsel, or must send via first class mail, mailed no later than 15 days prior to trial, its notice of intent to seek enhanced sentencing. Lee v. State, 332 Md. 654, 664 (1993).

2. Guilty pleas

In a guilty plea case, State v. Armstrong, 60 Md. App. 244, 249 (1984), cert. denied, 302 Md. 288 (1985), provides that the notice must be received prior to the entry of the plea, which may include the day of the plea. See also Oyler v. Boles, 368 U.S. 448, 452-53 (1962). For permissive enhancement, if the case does not result in a plea, the State must provide notice at least 15 days prior to trial in Circuit Court and at least five days prior to trial in District Court. Md. Rule 4-245(b).

3. Mandatory enhancement

For mandatory enhancement, the State must provide notice at least 15 days prior to sentencing in Circuit Court and at least five days prior to sentencing in District Court. Md. Rule 4-245(c). The State's notice is valid, even if it cites the enhancement statute incorrectly, Vines v. State, 40 Md. App. 658, 661-62 (1978), aff'd, 285 Md. 369 (1979), or cited no enhancement section at all. Ogunbowale v. State, 120 Md. App. 648, 650 (1998).

The State's notice must indicate (a) the particular prior conviction(s) that the State intends to use for enhancement; (b) the date of the conviction(s); (c) the court in which the conviction(s) occurred; (d) the statute under which the conviction(s) resulted; and (e) the nature of the crime(s). Once the defendant is given proper notice, the burden is on the State to prove, beyond a reasonable doubt, the existence of the statutory conditions required to impose an enhanced sentence. Sutton v. State, 128 Md. App. 308, 327 (1999) (quoting Beverly v. State, 349 Md. 106 (1998)).

In King v. State, 55 Md. 672, 687 (1983), aff'd, 300 Md. 218 (1984), the Court of Special Appeals held that the State's failure to provide proper notice to the defendant regarding the prior conviction was harmless error, when defense counsel admitted that he knew the conviction on which the State was relying when he received notice. In Carter v. State, 319 Md. 618, 621-22 (1990), the Court of Appeals held that if the defendant was convicted in District Court, and appealed to Circuit Court, the State may not seek an enhanced sentence in Circuit Court if the State failed to give notice prior to trial in District Court. On remand, the State is not required to file a new notice. Gantt v. State, 73 Md. App. 701, 703-04 (1988).

In Booze v. State, 140 Md. App. 402, 406-07 (2001), the Court of Special Appeals held that enhanced drug penalty provisions were applicable even if the defendant did not receive notice of the consequences of a subsequent conviction at the time his guilty plea was accepted. In State v. Purcell, 342 Md. 214, 222 (1996), the Court of Appeals held that the defendant waived his right to notice by providing proof of his prior conviction and refusing the opportunity to withdraw his guilty plea and postpone proceedings.

4. Failure to provide notice

If the State fails to provide timely notice of a permissive enhancement, the sentencing judge may not enhance the sentence. In Armstrong v. State, 69 Md. App. 23, 35-36 (1986), the Court of Special Appeals stated that the reason that the notice of permissive sentencing enhancement must be provided timely pre-trial, and not pre-sentencing, is because the State's decision to seek enhancement is a factor for the defendant in deciding whether to accept a plea or go to trial.

If the State fails to provide timely notice of mandatory enhancement, the sentencing judge must postpone sentencing at least 15 days, unless the defendant...