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Top court backtracks on conflict in sentencing laws

In a victory for prosecutors, Maryland’s top court Friday erased a long-awaited decision that had essentially struck down the state’s mandatory, no-parole, five-year sentence for handgun possession by a convicted felon.

On June 26 — more than seven years after it heard argument in Kevin Alston v. Maryland — the Court of Appeals had said the no-parole law conflicted with another state law that permitted convicts to seek parole within the five years. Such a conflict must be interpreted in favor of the defendant under a legal doctrine know as the rule of lenity, the court held.

But the Office of the Maryland Attorney General pressed the court to reconsider that portion of its opinion, saying it had improperly and unnecessarily curtailed prosecutors’ ability to seek the stronger sentence for the gun offense. The office argued that the lenity issue was moot because Alston, who was convicted in 2003, had already served his five-year prison term.

In a one-sentence order Friday afternoon, the court granted the state’s motion. By a 4-3 vote, it withdrew 20 pages of its 34-page opinion and replaced them with one sentence: “The second question the Petitioner asks us to resolve, being moot, shall not be addressed here.”

The high court offered no further explanation for the withdrawal.

Brian S. Kleinbord, who heads the office’s criminal appeals division, could not be reached for comment late Friday afternoon.

But shortly after the decision in June, Kleinbord said the court “should never have addressed” the question of conflicting laws.

“The issue was moot from the get-go,” Kleinbord said.

The June decision appeared to “curtail” prosecutorial discretion regarding which of the two laws to charge defendants with violating, Kleinbord added.

The court’s withdrawal of part of its June opinion is curious in light of how long it took the judges to render a decision in the case. The court heard arguments in the case on May 3, 2006.

In the ensuing years, three of the judges who heard the case — Alan M. Wilner, Dale R. Cathell and Irma S. Raker — reached the mandatory retirement age of 70 and participated in the decision as recalled judges. And, since June, Chief Judge Robert M. Bell, who wrote the opinion, has also been forced into retirement.

In 2003, a Baltimore City Circuit Court jury found Alston guilty of possessing a handgun after having been convicted of having distributed an illegal drug. The trial judge sentenced Alston on Aug. 13, 2003, to five years in prison without the opportunity for parole, citing the sentencing enhancement provision of Article 27 Section 449 (e) of the Maryland Code. (The statute has since been recodified as §5-133 (c) of the Public Safety Article, the court noted.)

On appeal, Alston argued that he was not eligible for the enhanced sentence because his earlier conviction was for a non-violent felony. The Court of Special Appeals rejected that argument in 2004.

In June, however, the Court of Appeals struck down the mandatory sentence in June, noting that the state had conceded the prosecution had proved only that Alston’s prior conviction was a felony, not a crime of violence. The court unanimously held that Alston would be entitled to a new sentence on that ground.

As an alternative ground for the ruling, though, four of the judges said Maryland’s criminal law was unclear regarding whether the sentence enhancement applied to Alston’s case: While Article 27 permitted the enhanced sentence, another statute — Section 5-622 of the Criminal Law Article — did not.

Such lack of statutory clarity must be interpreted in the defendants’ favor under the rule of lenity, the court said.

Alston’s case would ordinarily have been moot, as he has already served the five-year sentence, Bell noted in June. However, he said the possibility of the sentencing issue’s recurrence was so great as to necessitate a high-court decision.

Bell was joined in his opinion by judges Clayton Greene Jr., Wilner and Cathell.

Raker, in a concurring opinion, said the rule-of-lenity issue in the case was in fact rendered moot because Alston had served his sentence. Judges Glenn T. Harrell Jr. and Lynne A. Battaglia joined the concurrence by Raker, who heard the case prior to her retirement.

On Friday, Harrell, Battaglia and Raker held their positions in voting to withdraw the lenity section. They were joined by Wilner, who did not publicly explain his change of heart in providing the critical fourth vote to withdraw the section.

Bell, Greene and Cathell dissented from the court’s decision to withdraw the rule of lenity section.