Minor v. State

¶1At 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 *575criminal 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.

¶2Minor’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.

¶3*576Minor 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.

¶4We 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.

¶5Id. at 606, 521 A.2d at 723. (Emphasis supplied).

¶6Section 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).

¶7Minor 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 *577threatened 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.

¶8The State contends that a Helmproportionality 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 Helmproportionality analysis.

¶9Although Minor’s sentence is similar in some respects to both of the sentences reviewed in Rummeland Helm, we conclude that the underlying facts in this case are more analogous to those presented in Rummel. Accordingly, an *578extensive proportionality review under Helmis unnecessary. We explain.

¶10In 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.

¶11The 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.

¶12Following 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.

¶13The following year the Supreme Court decided the Helmcase. 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 *579U.S. at 290, 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.

¶14Id.at 290 n. 16, 103 S.Ct. at 3009-10 n. 16.

¶15The Supreme Court distinguished the Rummelholding 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 Helmwas limited to the particular facts of that case.4

¶16This 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 *580daytime 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 Helmrequired that the sentence be vacated.

¶17This Court held that Helmwas 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 Helmthat 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 Helmand 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).

¶18Our 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 housebreak*581er 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).

¶19Davis, 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.

¶20In 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.

¶21The 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 Helmproportionality review was required. The court rejected this contention and found Rummelto be controlling.

¶22The 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 *582listed 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.

¶23In 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 Rummeland affirmed the validity of the sentence without engaging in a Helmanalysis.

¶24The United States Court of Appeals for the Fourth Circuit also upheld a lengthy sentence for a term of years without an extended Helmanalysis. 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 Helmprinciples. 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 *583years 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 Helmanalysis); 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 Helmanalysis). 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 Helmproportionality analysis).

¶25We conclude that an extended Helmproportionality 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 *584that Minor’s sentence is within constitutional limits. Accord State v. Davis, supra.

¶26However, even if a proportionality analysis is required, we believe that the sentence is valid. The Helmcourt 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.

¶27As 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.

¶28The second Helmcriterion 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 *585prison 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.

¶29Finally, Helmrequires 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 Helmcriterion 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.

¶30As 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 *586is permitted in Texas8 for a first offense of housebreaking. Habitual housebreakers also face lengthy terms of imprisonment in many states.9

¶31As 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.

¶32JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; APPELLANT TO PAY THE COSTS.

¶47concurring:

¶48I concur in the Court’s judgment but not in its opinion.

¶49The majority, following the lead of some other courts,1 approaches sentence proportionality review under the Eighth Amendment as if the controlling principles are those set forth in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), and as if Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is of extremely limited applicability. The majority seems to view *587all cases as falling within either of two well-defined categories. The first of the majority’s categories appears to encompass the vast majority of cases as to which no proportionality analysis under Solem v. Helm is appropriate and Rummel v. Estelle is controlling. The second category embraces a few cases governed by the principles of Solem v. Helm, and subjected to an “extended analysis” based on “three criteria.” I disagree entirely with this approach.

¶50Whether or not Solem v. Helm in effect overruled Rummel v. Estelle, as argued by Judge Adkins in his dissent, is a matter which need not concern us very much until we are faced with a case which is not substantially distinguishable from Rummel. Nevertheless, largely for the reasons set out in Judge Adkins’s dissent, I believe that the controlling principles under the Eighth Amendment are those contained in Solemand not Rummel.

¶51Furthermore, I do not believe that the Supreme Court’s opinions require that we classify all criminal sentences into two categories, one involving no proportionality analysis and the other involving a particular form of extended proportionality analysis utilizing three, and only three, criteria. As Justice Powell indicated for the Court in Solem, all criminal sentences are subject to Eighth Amendment proportionality review but only rarely will an extensive review be required. Solem v. Helm, supra, 463 U.S. at 289-290, 103 S.Ct. at 3009-3010. Common sense and experience teach that, in a vast majority of cases, an appellate court, faced with an Eighth Amendment contention, can quickly reach the conclusion that the sentence is not constitutionally disproportionate to the crime. Beyond those cases, the degree of review required may vary from case to case; one case may require much more extensive analysis than another.

¶52Moreover, proportionality review need not always consider, and always be limited to, the three factors discussed in Part III A of Justice Powell’s Solemopinion. It is noteworthy that the second and third factors were set forth as mere *588suggestions or possibilities.2 In some cases, an examination into the sentences imposed in other jurisdictions may be unnecessary and not very fruitful; in other cases, it may be quite helpful. Considerations apart from the three factors mentioned in Part III A of the Solemopinion are also pertinent, including deference to the legislative judgment, the particular facts concerning the commission of the crime, information in a pre-sentence investigation report, etc. I think that it would be unfortunate if Eighth Amendment proportionality review of sentences were frozen in the form of a “three criteria” review.

¶53Applying the principles of Solem v. Helm to the instant case, however, leads me to the conclusion that the defendant’s sentence is not constitutionally disproportionate to the crime. Breaking into a dwelling house, whether done in the day or night, is a most heinous offense. Not only has the Legislature classified it as a crime ,of violence, but it is in fact a crime of violence against the occupants of the dwelling. Few rights are more precious to Americans than the right “to be secure in their ... houses.”3 I am in complete agreement with the discussion in State v. Davis, 310 Md. 611, 628-629, 530 A.2d 1223 (1987), concerning the gravity of this offense under Maryland law. In addition, the actual facts concerning the defendant’s several offenses present no circumstances which render the present sentence disproportionate. The defendant Minor is a career burglar who has repeatedly embarked upon a course of conduct endangering persons in their homes.

¶54Consequently I agree with the Court that, under Solem v. Helm, the defendant’s sentence violated neither the Eighth *589Amendment to the United States Constitution nor Articles 16 and 25 of the Maryland Declaration of Rights.4