Dominik Oglesby v. State of Maryland
No. 23, September 2014 Term



Criminal Law - Sentencing - Rule of Lenity. To construe a sentencing provision
of a criminal statute, a court looks to the text of the statute and applies the tools of
statutory construction. If that effort does not resolve any ambiguity in the statute and
the court is unable to discern the intent of the Legislature, it chooses between
competing constructions by applying the rule of lenity and selects the interpretation
more favorable to the defendant. When the statutory text is clear, or when the tools
of statutory construction favor one reading of the statute, there is no occasion to apply
the rule of lenity in derogation of legislative intent.

Criminal Law - Firearms Offenses - Prosecutorial Discretion - Sentencing.
The General Assembly has created two overlapping, but not identical, criminal offenses
prohibiting individuals previously convicted of certain drug-related crimes from
possessing certain types of firearms. One statute – the narrower and more recently
created one – provides for a mandatory minimum period of five years incarceration,
without the possibility of a suspended sentence or parole. The other statute provides
for a maximum period of five years incarceration with the possibility of a suspended
sentence and parole. Where a prosecutor has exercised discretion to charge the offense
carrying the mandatory minimum penalty and the defendant is convicted of that
offense, the defendant is subject to the penalty provided by that statute – the
mandatory minimum sentence. Maryland Code, Public Safety Article, §5-133;
Criminal Law Article, §5-622.
Circuit Court for Baltimore City
Case No. 111306016
Argued: November 7, 2014
                                   IN THE COURT OF APPEALS
                                        OF MARYLAND

                                             No. 23

                                      September Term, 2014


                                        DOMINIK OGLESBY

                                                v.

                                       STATE OF MARYLAND


                                             Barbera, C.J.
                                             Harrell
                                             Battaglia
                                             Greene
                                             Adkins
                                             McDonald
                                             Watts,

                                                      JJ.


                                     Opinion by McDonald, J.


                                     Filed: February 23, 2015
      When a court construes a criminal statute, it may invoke a principle known as

the “rule of lenity” when the statute is open to more than one interpretation and the

court is otherwise unable to determine which interpretation was intended by the

Legislature. Instead of arbitrarily choosing one of the competing interpretations, the

court selects the interpretation that treats the defendant more leniently. The rule of

lenity is not so much a tool of statutory construction as a default device to decide which

interpretation prevails when the tools of statutory construction fail.

      In this case, Appellant Dominik Oglesby1 was charged and convicted of a

violation of a statute that prohibits a person who has previously been convicted of a

drug-related offense (as Mr. Oglesby had) from possessing certain types of firearms.

That statute carries a mandatory minimum sentence of five years incarceration, no

part of which may be suspended and without the possibility of parole. Following his

conviction and sentencing under that statute, Mr. Oglesby contended that the sentence

was illegal because, on the same facts, he could have been charged and convicted under

a different statute that does not carry a mandatory minimum sentence and that does

allow for the possibility of a suspended sentence, as well as parole. He argues that the

rule of lenity requires that his sentence be imposed under the second statute.

      We hold that the State’s Attorney had the discretion to charge Mr. Oglesby with

an offense under the statute carrying the mandatory minimum sentence and that the

Legislature’s intent to authorize that penalty for that violation is clear from the text



      1
         The Appellant’s first name appears in the record spelled variously as
“Dominick,” “Dominic,” and “Dominik.” We use the spelling used by the Appellant’s
counsel in filings on the Appellant’s behalf.
of the statute and confirmed by its legislative history. There is no need to resort to the

rule of lenity. Application of that concept in these circumstances would effectively

negate legislative intent and intrude on prosecutorial discretion conferred on the

State’s Attorney by the State’s constitution and criminal laws.

                                             I

                                     Background

      In the early morning hours of October 6, 2011, two Baltimore City police officers

attempted to make a traffic stop of a car that had a headlight out. After a brief chase

that ended when the car collided with several parked cars, the three individuals who

had been in the car got out and fled. Mr. Oglesby, who had been a passenger in the

back seat, was apprehended shortly after he threw a handgun to the ground. Pertinent

to the issue in this case, at that time Mr. Oglesby had a criminal record that included

prior convictions for drug-related crimes.

      Mr. Oglesby was charged with various firearms offenses. At his trial in the

Circuit Court for Baltimore City, it was undisputed that Mr. Oglesby, at the time of his

arrest, was barred from possessing a regulated firearm by virtue of a 2009 felony

conviction for distribution of a controlled dangerous substance, in violation of Maryland

Code, Criminal Law Article (“CR”), §5-602. Nor was there any dispute that the gun

in question fit the definition of “regulated firearm,” as defined in Maryland Code,

Public Safety Article (“PS”), §5-101(r). The only issue at trial was whether he had

possessed the firearm.



                                             2
       Mr. Oglesby was convicted of possession of a regulated firearm by a person with

a disqualifying drug conviction, in violation of PS §5-133(c)(1)(ii).2 For this offense, Mr.

Oglesby was sentenced to the five-year mandatory minimum term of imprisonment

without parole provided in the statute. See PS §5-133(c)(2).

       Mr. Oglesby appealed, arguing that the five-year mandatory minimum period

of incarceration for his conviction under PS §5-133(c)(1)(ii) was an illegal sentence. He

notes that another statute – CR §5-622(b) – proscribes the same conduct that supports

his conviction, but carries a more lenient sentence.3 Before the Court of Special

Appeals considered his appeal, we granted certiorari on our own motion.

                                            II

                                       Discussion

       Mr. Oglesby does not challenge the sufficiency of the evidence that he violated

PS §5-133(c)(1)(ii). Rather, he argues that the “rule of lenity” mandates that his


       2
       Mr. Oglesby was also found guilty of possession of a regulated firearm after
having been convicted of a disqualifying misdemeanor in violation of PS §5-133(b)(1).
This conviction was merged with the violation of PS §5-133(c)(1)(ii) for purposes of
sentencing.

       Mr. Oglesby was also convicted of wearing, carrying or transporting a handgun
in violation of CR §4-203. For this offense, Mr. Oglesby received a suspended three-
year sentence with three years probation upon release. He has not appealed this
conviction or sentence.

      The jury acquitted Mr. Oglesby on a charge of wearing, carrying, or transporting
a handgun in the vehicle.
       3
       At the time of his arrest, Mr. Oglesby was charged with violations of both PS
§5-133(c)(1)(ii) and CR §5-622(b). The latter charge, however, was not included in the
subsequent indictment.

                                             3
sentence be no more than the five-year maximum period of incarceration with

eligibility of parole provided for a violation of CR §5-622(b), even though he was neither

charged with, nor convicted of, a violation of that statute. Mr. Oglesby reasons that

because the two statutes could apply to the same conduct in his case, but neither

statute refers to the other, “it is not at all clear as to how he should be sentenced.”

From that premise, he concludes that, under the rule of lenity, the ambiguity must be

resolved in his favor – i.e., his sentence for a conviction of a violation of PS §5-

133(c)(1)(ii) is capped by the maximum penalty allowed by CR §5-622 – five years

imprisonment with the possibility of a suspended sentence and parole. He also argues

that this Court’s prior decision in Waye v. State, 231 Md. 510, 191 A.2d 428 (1963)

supports the same result. In short, Mr. Oglesby argues that the imposition of the five-

year mandatory minimum without possibility of parole under PS §5-133(c)(2) was an

illegal sentence because it exceeded the penalty authorized by law.4

      The State argues that the rule of lenity is not applicable because the prosecutor

had the discretion to choose which violation to charge, and the penalty provided in the

statute under which Mr. Oglesby was charged and convicted is not ambiguous. The

State similarly argues that the reasoning of Waye has no application here.

Accordingly, in the State’s view, Mr. Oglesby was properly sentenced to the five-year




      4
       An illegal sentence may be challenged at any time, including for the first time
on appeal. Stubbs v. State, 406 Md. 34, 48 n.1, 956 A.2d 155 (2008). Thus, the failure
of Mr. Oglesby’s counsel to object to the five-year mandatory minimum during
sentencing would not bar his appeal on this issue.

                                            4
mandatory minimum because this sentence corresponds to the statute under which he

was charged and convicted.

A.     Prosecutorial Discretion, the Rule of Lenity, and Prior Decisions

       As indicated above, there is some dispute as to whether the overlapping offenses

defined by PS §5-133(c)(1)(ii) and CR §5-622(b) are simply an occasion for the exercise

of prosecutorial discretion in the charging decision or whether the “interplay” of the

two statutes creates ambiguity that requires resort to the rule of lenity. We begin with

a brief review of the concepts of prosecutorial discretion and, in the context of statutory

construction, the rule of lenity. We then briefly review the several Maryland appellate

decisions over the past decade that have considered those concepts in connection with

these two statutes.

       1.   Prosecutorial Discretion

       It is not uncommon for the same facts to support potential convictions under a

number of statutes or common law offenses, which may carry different penalties. A

prosecutor is not required to charge all applicable offenses. A prosecutor thus exercises

discretion as to what offenses to charge in a particular case – a decision that may

greatly affect the potential penalty imposed by a sentencing court if a conviction

results. This is a well-recognized part of our criminal justice system and is perfectly

appropriate so long as the discretion is not exercised in an unconstitutional or illegal

manner. Evans v. State, 396 Md. 256, 298, 914 A.2d 25 (2006) (“State’s Attorneys

retain the broad discretion ... in determining which cases to prosecute, which offenses



                                            5
to charge, and how to prosecute the cases they bring”); see also Beverly v. State, 349

Md. 106, 121, 707 A.2d 91 (1998); Brack v. Wells, 184 Md. 86, 90, 40 A.2d 319 (1944).

      While prosecutorial discretion is subject to oversight by the courts to ensure that

it is exercised within constitutional and statutory constraints, “the office of State’s

Attorney is not a branch of the judiciary, nor is it directly subject to its supervision.”

State v. Hunter, 10 Md. App. 300, 305, 270 A.2d 343 (1970) (Murphy, C.J.), cert.

improvidently granted and remanded, 263 Md. 17 (1971). The prosecutor’s discretion

in the selection of charges derives ultimately from the separation of powers in the

Maryland Constitution. State v. Lykins, 43 Md. App. 472, 473, 406 A.2d 289 (1979)

modified, 288 Md. 71, 415 A.2d 1113 (1980) (separation of powers “compels that we

brook no lightly assumed interference by the judicial branch with the function of [the

State’s Attorney] ... and ... not arrogate unto our branch supervisory powers which the

Constitution does not bestow”).

      2.    The Rule of Lenity

      The “rule of lenity” is not a rule in the usual sense, but an aid for dealing with

ambiguity in a criminal statute. Under the rule of lenity, a court confronted with an

otherwise unresolvable ambiguity in a criminal statute that allows for two possible

interpretations of the statute will opt for the construction that favors the defendant.

For a court construing a statute, the rule of lenity is not a means for determining – or

defeating – legislative intent. Rather, it is a tie-goes-to-the-runner device that the

court may turn to when it despairs of fathoming how the General Assembly intended

that the statute be applied in the particular circumstances. It is a tool of last resort,

                                            6
to be rarely deployed and applied only when all other tools of statutory construction fail

to resolve an ambiguity. See Gardner v. State, 420 Md. 1, 17, 20 A.3d 801 (2011). This

follows from the fact that our goal in construing statutes is always to ascertain and

carry out the legislative purpose of the statute and not to seek out an interpretation

that necessarily favors one party or the other. Id.5

      3.    Prior Decisions Concerning the Rule of Lenity, PS §5-133, and CR §5-622

      The argument that CR §5-622 might limit a sentence imposed for a violation of

PS §5-133(c)(1)(ii) first came before Maryland appellate courts in Alston v. State, 159

Md. App. 253, 858 A.2d 1100 (2004), rev’d on other grounds, 433 Md. 275, 71 A.3d 13

(2013), opinion withdrawn in part, 433 Md. 302 (2013). In that case, which involved

facts substantially similar to this case, the defendant was convicted of a violation of PS

§5-133(c)(1)(ii) and the trial court imposed the mandatory minimum sentence provided

for that violation.6 Like Mr. Oglesby, the defendant argued on appeal that the rule of


      5
        See also Tapscott v. State, 343 Md. 650, 656-57, 684 A.2d 439 (1996) (language
and history of statute resolved ambiguity and thus, rule of lenity was not applicable);
Briggs v. State, 413 Md. 265, 286, 992 A.2d 433 (2010) (even if statute was ambiguous,
rule of lenity would not apply because indicia of intent, including statute’s plain
language and history, strongly tipped towards only one interpretation); State v. Weems,
429 Md. 329, 344-45, 55 A.3d 921 (2012) (when statutory language was ambiguous and
legislative history and other similar provisions “d[id] not shed conclusive light,” the
court applied the rule of lenity); Jones v. State, 336 Md. 255, 261-62, 647 A.2d 1204
(1994) (rule of lenity is applied at the end of the process of statutory construction when
there remains a “grievous ambiguity or uncertainty”); Randall Book Corp. v. State, 316
Md. 315, 327, 558 A.2d 715 (1989) (rule of lenity is applied when “legislative intent
cannot be determined”).
      6
         At the time of the conviction in Alston, the offense described in PS §5-
133(c)(1)(ii) was codified in Maryland Code, Article 27, §449(d)(1)(ii). See Part II.B.2
of this opinion.

                                            7
lenity required that he should have received the more lenient sentence provided in CR

§5-622. The Court of Special Appeals rejected that argument. It held that there is no

ambiguity in the statutes and therefore no reason to invoke the rule of lenity and apply

the sentencing provision of CR §5-622 for a violation of PS §5-133(c)(1)(ii). 159 Md.

App. at 273.

        The Court of Special Appeals reiterated that conclusion in two subsequent

decisions, noting in each case that the prosecutor had discretion to charge an offense

under the statute with the more severe penalty and that there was no ambiguity that

triggered the rule of lenity. State v. Lee, 178 Md. App. 478, 484-91, 943 A.2d 14 (2008)

(rule of lenity did not authorize trial judge to amend the indictment, in the face of the

prosecution’s objection, to replace a charge under PS §5-133 with one under CR §5-622

and to sentence the defendant under the latter statute); State v. Smoot, 200 Md. App.

159, 169-73, 26 A.3d 1002, cert. denied, 423 Md. 452 (2011) (rule of lenity did not

permit court to sentence defendant convicted of violation of PS §5-133 to probation

before judgment simply because the defendant could have been charged under CR §5-

622).

        In the meantime, the Court of Appeals had granted a writ of certiorari in Alston.

This Court reversed one of the convictions in that case for reasons not pertinent here.

Although the Court conceded that the sentencing issue with respect to the conviction

under PS §5-133(c)(1)(ii) was moot (as the defendant had completed the sentence in its

entirety), the Court’s opinion went on to discuss whether the rule of lenity affected the

maximum sentence for a violation of that statute. In a holding initially joined by four

                                            8
members of the Court, this Court reached a different conclusion than the Court of

Special Appeals. It held that when two statutes proscribe the same conduct but

prescribe different penalties and the legislative intent as to “how the statutes are to

be applied and operate together is unclear,” the rule of lenity requires that the more

lenient sentencing provision prevail. 433 Md. at 301. The Court also suggested that

the reasoning of Waye v. State, 231 Md. 510, 191 A.2d 428 (1963), although that case

did not construe the firearms statutes and was not based on the rule of lenity,

supported the same conclusion. Shortly after issuing its decision in Alston, however,

the Court withdrew that portion of its opinion on the ground of mootness. 433 Md. at

302.

       The issue is not moot in this case as Mr. Oglesby is currently serving the

mandatory minimum sentence imposed under PS §5-133(c)(2). Thus, we consider anew

whether we agree with the conclusion reached in the several opinions of the Court of

Special Appeals on this subject or whether the imposition of the mandatory minimum

sentence set forth in PS §5-133(c)(2) for a violation of PS §5-133(c)(1)(ii) is an illegal

sentence. We also consider whether the decision in Waye affects that conclusion.

B.     Whether the Rule of Lenity Requires that a Defendant Convicted of a
       Violation of PS §5-133(c)(1)(ii) be Sentenced under CR §5-622(c)

       As indicated above, there is no need to apply the rule of lenity unless there is an

unresolvable ambiguity in the statute in question. A careful review of the statutory

text and legislative history must come first.




                                            9
      1.   Statutory Text

      PS §5-133(c)

      Mr. Oglesby was convicted of a violation of PS §5-133(c)(1)(ii) – in particular,

possession of a regulated firearm by a person with a prior conviction for distribution

of a controlled substance. At the time of the offense in this case,7 that statute read in

relevant part:

                (c)(1)   A person may not possess a regulated firearm if
           the person was previously convicted of:
                                        ...

                     (ii) A violation of §5-602, §5-603, §5-604, §5-605, §5-
           612, §5-613, or §5-614 of the Criminal Law Article.

A “regulated firearm” is defined as a “handgun” or “any of the [listed] specific assault

weapons or their copies, regardless of which company produced and manufactured that

assault weapon....” PS §5-101(r).

       The sentence for a violation of PS §5-133(c)(1)(ii) is as follows:

                    (2) (i) Subject to paragraph (3) of this subsection,
           a person who violates this subsection is guilty of a felony and
           on conviction is subject to imprisonment for not less than 5
           years and not exceeding 15 years.

                       (ii) The court may not suspend any part of the
           mandatory minimum sentence of 5 years.


      7
        As noted in the text, the offense occurred on October 6, 2011. Subsequently,
in 2012, the General Assembly amended PS §5-133(c) to add a subparagraph that
prohibits the possession of regulated firearm by a person who had been previously
convicted of “[a]n offense under the laws of another state or the United States that
would constitute one of the crimes listed in item (i) or (ii) of this paragraph if
committed in this State.” PS §5-133(c)(1)(iii), as enacted by Chapters 276, 277, Laws
of Maryland 2012.

                                           10
                           (iii) Except as otherwise provided in §4-305 of
            the Correctional Services Article, the person is not eligible for
            parole during the mandatory minimum sentence.

PS §5-133(c)(2).   The sentencing provision is qualified in paragraph (3) of the

subsection. It provides that if, at the time of possession, at least five years had passed

since the person completed serving the sentence, including all mandatory supervision,

probation, and parole for the most recent disqualifying conviction, the court has

discretion not to impose the mandatory minimum and the State’s Attorney must give

a special notice of an intent to seek the mandatory minimum sentence. PS §5-133(c)(3).

This provision did not pertain to Mr. Oglesby, as his disqualifying conviction was only

two years old.

      CR §5-622

      Mr. Oglesby notes that he “could have been charged” under CR §5-622(b), which

states in relevant part:

                 A person may not possess, own, carry, or transport a
            firearm if that person has been convicted of:

                      (1) A felony under [Title 5 of the Criminal Law
            Article, Controlled Dangerous Substances, Prescriptions, and
            Other Substances]

For purposes of CR §5-622, a “firearm” is defined to include a “regulated firearm” as

defined in PS §5-101(r); in addition, the term includes a machine gun (as defined in CR

§4-401), as well as a “handgun, antique firearm, rifle, shotgun, short-barreled shotgun,

and short-barreled rifle” (as defined in CR §4-201). CR §5-622(a). A person who




                                           11
violates §5-622(b)(1) is “guilty of a felony and on conviction is subject to imprisonment

not exceeding 5 years or a fine not exceeding $10,000 or both.” CR §5-622(c).

      Mr. Oglesby’s observation that he could have been charged with a violation of

CR §5-622 on the facts of his case appears to be correct. The jury found that he was

in possession of a “regulated firearm” which is included in the definition of “firearm”

in CR §5-622. His prior conviction for a violation of CR §5-602 was a felony under the

controlled substances title of the Criminal Law Article.

      Textual Analysis

      The prohibitions in the two statutes overlap substantially, although the two

statutes are not identical. The offense defined by CR §5-622(b) is somewhat broader

than the one defined by PS §5-133(c)(1)(ii). For example, an individual with a prior

drug conviction who possessed a machine gun, rifle, or shotgun not described in the

definition of “regulated firearm” could be convicted of a violation of CR §5-622(b), but

not a violation of PS §5-133(c)(1)(ii). In another example, a person who had been

previously convicted of possessing a counterfeit prescription for a controlled substance

for the purpose of distributing that substance and who came into possession of a

regulated firearm could be convicted of a violation of CR §5-622(b), but not PS §5-

133(c)(1)(ii). But it remains true that, in general, an individual previously convicted

of a felony drug offense who possesses a regulated firearm may be found guilty of

violations of both PS §5-133(c)(1)(ii) and CR §5-622(b). Although the statutes are not

precisely identical in their reach, it is likely the case that most individuals convicted

under one of these statutes could also be convicted under the other.

                                           12
      The fact that the statutes overlap does not render them ambiguous. While

neither statute refers to the other, there is no “interplay” or conflict between these two

statutes that must be harmonized. It is not as though one statute required or

authorized Mr. Oglesby to have a firearm in some circumstances and the other statute

forbade it.

      If Mr. Oglesby were correct that the more lenient of the two sentencing

provisions always prevails, it would appear to render PS §5-133(c)(1)(ii) completely

ineffective. Given that CR §5-622 is the broader statute, if the sentencing provision of

CR §5-622(c) were applied to any conviction under PS §5-133(c)(1)(ii), a defendant

convicted of a violation of PS §5-133(c)(1)(ii) could never be sentenced in accordance

with the sentencing provision of PS §5-133(c)(2), despite the plain language of the

statute. In other words, the mandatory minimum sentence that the Legislature

created in PS §5-133(c)(2) would virtually never apply to an individual in possession

of a regulated firearm and with a prior conviction under CR §5-602, §5-603, §5-604, §5-

605, §5-612, §5-613, or §5-614. This would render PS §5-133(c)(1)(ii) superfluous

because the felony drug crimes enumerated in that subparagraph would never trigger

the mandatory minimum of PS §5-133(c)(2).

      Such a reading of the statutes is contrary to basic tenets of statutory

construction. “Our canons of statutory interpretation, however, forbid us to ‘construe

a statute ... so that [a] word, clause, sentence, or phrase is rendered surplusage,

superfluous, meaningless, or nugatory.’”        Reier v. State Dep’t of Assessments &

Taxation, 397 Md. 2, 28, 915 A.2d 970 (2007) (quoting Blake v. State, 395 Md. 213, 224,

                                           13
909 A.2d 1020 (2006)). Rather, when two statutes cover similar subject matter, even

if neither makes reference to the other, we must construe the statutes to give as full

effect to each other as possible. Maryland-National Capital Park and Planning

Comm’n v. Anderson, 395 Md. 172, 183, 909 A.2d 694 (2006); Prince George’s County

v. McBride, 263 Md. 235, 240-41, 282 A.2d 486 (1971). As noted above, this effort to

construe the statutes in accordance with legislative intent precedes any application of

the rule of lenity.

       A previous case involving a conviction of a violation of CR §5-622 illustrates the

need to construe sentencing provisions in a way that does not render one of them

superfluous. In Collins v. State, 383 Md. 684, 688, 861 A.2d 727 (2004), the defendant

was convicted of a violation of CR §5-622(b), for possession of a firearm by a person

with a prior felony drug conviction.8 The defendant was sentenced under CR §5-622(c)

which, as noted above, authorizes a maximum of five years imprisonment. The

sentencing court, however, doubled the sentence to 10 years, pursuant to a statute now

codified as CR §5-905, which permits a court to double the statutory sentence when the

violation is a second or subsequent offense under Title 5 of the Criminal Law Article.

The defendant appealed, arguing that it was clear the Legislature intended to provide

for a maximum five-year sentence for violation of CR §5-622 or, in the alternative, that




       8
        At the time of that case the statute was codified as Article 27, §291A. See Part
II.B.2 of this opinion. The other sentencing provision at issue in Collins was codified
at that time as Article 27, §293. For ease of reference, we refer to the statutes in
Collins by their current designation in the Criminal Law Article.

                                           14
the application of the two sentencing provisions was ambiguous and that the rule of

lenity mandated that the ambiguity be resolved in his favor.

       The Court first noted that, when read in isolation, the sentence enhancement

of CR §5-905 appeared to apply. In order to violate CR §5-622(b), a defendant must

have a prior disqualifying felony conviction under Title 5 of the Criminal Law Article,

which concerns criminal offenses related to controlled substances. Therefore, a single

violation of CR §5-622(b) would be, by definition, a second or subsequent offense under

the controlled dangerous substances law, indicating that the sentence enhancement

would apply.     This Court concluded, however, that when the sentence enhancement

was read in conjunction with the sentencing provision in CR §5-622(c), it became clear

that the General Assembly intended that the enhancement not apply. If the sentence

enhancement were to apply, the five-year maximum specified in CR §5-622(c) would

never be the maximum sentence because every violation of CR §5-622(b) would trigger

the sentence enhancement under CR §5-905, resulting instead in a 10-year maximum

sentence. The application of the sentence enhancement would thereby render CR §5-

622(c), and its five-year maximum sentence, meaningless. Accordingly, the Court

concluded that an initial conviction under CR §5-622(b) did not trigger the sentence

enhancement even though it was by definition a subsequent offense under Title 5 of the

Criminal Law Article. 383 Md. at 690, 692. The Court reached this conclusion by

examining the text and legislative history of the relevant statutes to discern legislative

intent; it did not need to resort to the rule of lenity.



                                            15
      Similarly, here, if the sentencing provision of CR §5-622(c) applied to every

violation of PS §5-133(c)(1)(ii), the latter provision would serve no purpose in the

statute and would never trigger the five-year mandatory minimum sentence. For the

same reason we conclude that the Legislature did not intend that the lesser sentence

of CR §5-622(c) would apply to a conviction under PS §5-133(c)(1)(ii). Rather, the

appropriate penalty for a violation of PS §5-133(c)(1)(ii) is the penalty the Legislature

prescribed in PS §5-133(c)(2).

      2.   Legislative History

      A review of the legislative history of these statutes – their back story – confirms

this conclusion.9 The two statutes, which both seek to keep guns out of the hands of

individuals involved in the illicit drug trade, are at the intersection of the regulation

of firearms and the regulation of controlled dangerous substances.              Perhaps

unsurprisingly, one statute derives from legislative efforts to regulate firearms; the

other, from refinements of the laws concerning controlled dangerous substances.

      Firearms Regulation – 1941 – Creating a Firearms Disqualification for Persons
      Convicted of Certain Crimes

      Maryland state law has prohibited the possession of various types of firearms

by persons convicted of certain crimes since at least 1941, when the General Assembly

enacted a law prohibiting the possession of a pistol or revolver by any person who had



      9
        See Higginbotham v. Public Service Comm’n, 412 Md. 112, 119, 985 A.2d 1183
(2009) (in the interest of completeness, courts may consider the legislative history of
even an unambiguous statute to confirm the meaning of a statute derived from its
language).

                                           16
been convicted of a crime of violence or who was a fugitive from justice. Chapter 622,

Laws of Maryland 1941 enacting Maryland Code, Article 27, §531D. That provision

was eventually recodified as Article 27, §445.10 The statute originally provided for a

maximum penalty of one year incarceration and a $300 fine11 which, in 1966, was

increased to three years incarceration and a $1000 fine.12

      Firearms Regulation – 1989 – Adding Felony Drug Convictions to the List of
      Disqualifying Convictions

      The definition of “crime of violence” – as originally enacted in 1941 – did not

include drug crimes.13 The Legislature enlarged the definition of “crime of violence”

over the years and added other categories of disqualifying crimes and types of

disqualification.14 In 1989, a bill was introduced in the Legislature to add certain drug-

related crimes as another category of disqualifying convictions. See House Bill 654



      10
        It was recodified as Article 27, §541 in the 1951 Maryland Code and became
§445 with the adoption of the 1957 Code.
      11
           See Maryland Code, Article 27, §531G (1941).
      12
           Chapter 502, Laws of Maryland 1966, amending Article 27, §448.
      13
        See Maryland Code, Article 27 §531A(4) (1941) (defining “crime of violence” as
“murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault
with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault
with intent to commit any offense punishable by imprisonment for more than one
year”).
      14
         See, e.g., Chapter 502, Laws of Maryland 1966 (adding abduction, arson,
escape, robbery, sodomy, and attempts to commit those offenses to the list in the
definition of “crime of violence”); Chapter 480, Laws of Maryland 1982 (adding robbery
with a deadly weapon to the definition of “crime of violence”). In addition, in the 1966
law, the Legislature added firearms offenses as a separate category of disqualifying
convictions.

                                           17
(1989). Testimony before the Legislature “indicated that the inclusion of convicted

drug sellers and dealers in the list of persons specifically prohibited from purchasing

and possessing handguns is necessary and overdue, especially since drug wars

involving guns have grown more commonplace.” House Floor Report to House Bill 654

(1989) at p. 2. As a result of the enactment of that bill, it became a crime for a person

previously convicted of those drug-related crimes15 to possess a pistol or revolver.

Chapter 428, Laws of Maryland 1989 amending Article 27, §445(c)(1)(iii). The 1989

law also increased the potential fine. As of the effective date of that law, the maximum

penalty was three years imprisonment and a $5,000 fine. Article 27, §448.

      Thus, as of 1989, the prohibition against possession of a firearm by a person

convicted of certain drug-related crimes, and the criminal penalty for a violation,

appeared as part of the subtitle of Article 27 concerning firearms regulation.

      Controlled Dangerous Substances Crimes - 1991 - Addition of an Offense
      Concerning Possession of a Firearm

      Two years later, in the course of amending the subtitle of Article 27 concerning

controlled dangerous substances, the General Assembly added to that subtitle a similar

but broader prohibition on the possession of a firearm with a potentially tougher

penalty. This new provision prohibited a person with any prior felony drug conviction



      15
          The listed offenses were Article 27, §286 (the unlawful manufacture,
distribution, counterfeiting, dispensing, or possession, of controlled dangerous
substances), Article 27, §286A (bringing into the state excess of certain amounts of
controlled dangerous substances), or Article 27, §286C (using minors to manufacture,
deliver, or distribute controlled dangerous substances) or the conspiracy to commit any
of these crimes.

                                           18
(or conviction of an attempt or conspiracy to commit such a crime)16 not only from

possessing, but also from owning, carrying or transporting a firearm. House Bill 978

(1991), first reader. “Firearm” was defined more broadly to include not only pistols and

revolvers, but also other handguns, rifles, shotguns, assault weapons, and machine

guns.        A violation of this prohibition was designated a felony punishable by

imprisonment up to five years and a $10,000 fine.

        While the bill establishing this provision was pending in the Legislature, it was

amended to repeal the existing narrower crime in the firearms regulation subtitle (then

codified at Article 27, §445(c)(1)(ii)), with the express intent that only the more

expansive criminal provision in the controlled dangerous substances subtitle that

carried the potentially greater penalty would remain.         See Judicial Proceedings

Committee, Explanation of Floor Amendment to House Bill 978 (1991).                 The

amendment was adopted and the bill was enacted as amended. Chapter 613, Laws of

Maryland 1991 enacting Article 27, §291A (1957, 1991 Supp.). Although the criminal

penalty for possession of a firearm by one with a drug-related conviction had been

deleted from the firearms subtitle, that subtitle still forbade – and made a criminal




        16
         The bill prohibited possession of a firearm by a person with any felony
conviction under the controlled dangerous substances subtitle of Article 27 or any
offense committed under the laws of the United States or any other state if it would be
a drug felony if it had been committed in Maryland. In contrast, the existing
prohibition in Article 27, §445(c) only prohibited possession by persons with prior
convictions of one of three drug-related provisions (Article 27, §§286, 286A, or 286C).


                                           19
offense – the sale or transfer of a pistol or revolver to a person convicted of the listed

drug offenses. See Article 27, §§445(b), 448 (1992).

      Thus, as of the effective date of the1991 law, under the subtitle of the criminal

statutes concerning controlled dangerous substances, the possession of a firearm – now

more broadly defined – by a person with any prior conviction of a felony drug offense

(or of conspiracy or attempt to commit such an offense) was a felony punishable by up

to a maximum of five years and a $10,000 fine.17            This statute has not been

substantially amended since that time. In 2002, it was re-codified in the controlled

substances title of the new Criminal Law Article as CR §5-622.18 This is the statute

that Mr. Oglesby asks to be applied in his case, although he was not charged or

convicted under that statute.

      Firearms Regulation - 1996 - Restoring the Violation in the Firearms Subtitle

      In 1996, as part of the Maryland Gun Violence Act of 1996, the General

Assembly amended the statutes regulating firearms. Among other things, it expanded

the disqualification for prior convictions in the firearms subtitle in a way that

encompassed drug-related offenses, effectively restoring the criminal penalty in that

subtitle for possession of a firearm by one with a prior drug-related conviction. It was




      17
         At the same time, the possession of a pistol or revolver following a conviction
for a crime of violence (or other non-drug convictions enumerated in Article 27, §445)
remained a misdemeanor and continued to be subject to a maximum of three years
imprisonment.
      18
           See Chapter 26, §2, Laws of Maryland 2002.

                                           20
now unlawful for any person to possess a “regulated firearm” if that person had been

previously convicted of “any violation classified as a felony in this State” (as well as a

misdemeanor that carried a statutory penalty of more than two years imprisonment).

See Chapters 561, 562, Laws of Maryland 1996.19 A new term, “regulated firearm,”

replaced the reference to pistols and revolvers and was defined to also include

handguns generally and certain listed assault weapons or copies of those weapons. See

Article 27, §441(r) (1957, 1996 Supp.). Additionally, the maximum sentence for a

violation of the revised criminal provision was codified in Article 27, §449(e) and set

at five years imprisonment and a $10,000 fine – the same as provided for the similar

violation in the controlled substances subtitle – i.e., Article 27, §291A (later recodified

as CR §5-622).

       Firearms Regulation - 2000 - Creation of Mandatory Minimum Sentence

       In 2000, the General Assembly returned again to the firearms regulation

subtitle of Article 27 in the Responsible Gun Safety Act of 2000 and, as one of the many

measures in that bill,20 created a new five-year mandatory minimum sentence



      19
        As part of that law, Article 27, §445(c) & (d) were recodified in Article 27,
§445(d) & (e).
      20
         The bill included numerous provisions concerning improvements in gun
technology, gun safety, the disposition of weapons seized by law enforcement,
enhancements to the enforcement of existing gun laws, and other provisions regulating
the use and possession of firearms that were generally based on the 1999 report of the
Governor’s Task Force on Childproof Guns. Among other things, the Task Force had
suggested that criminal laws generally be enforced with the ultimate goal of protecting
children from gun violence and that, in particular, any juvenile who had committed a
violent act should be denied the right to possess a firearm.

                                            21
applicable to a defendant with a prior disqualifying conviction who possessed a

regulated firearm. The mandatory minimum sentence was specifically applicable to

“[a] person who was previously convicted of a crime of violence as defined in §441(e) of

this article or convicted of a violation of §286 or §286A of this article, and who is in

illegal possession of a firearm as defined in §445(d)(1)(i) and (ii).” Chapter 2, Laws of

Maryland 2000 amending Article 27, §449(e).21 Possession of a regulated firearm

following a disqualifying conviction other than those listed in Article 27, §449(e)22

continued to be misdemeanors subject to a maximum prison sentence of five years.




      21
        The definition of regulated firearm in Article 27, §441(e) later was recodified
as PS §5-101(c). Article 27, 445(d)(1)(i) forbade possession of a regulated firearm by
anyone convicted of a crime of violence; §445(d)(1)(ii) forbade possession by anyone
convicted of “any violation classified as a felony in this State.”

      This Court later concluded that the language of Article 27, §449(e)
unambiguously required that a person have a felony conviction and either a prior
conviction for a crime of violence or a drug-related conviction under Article 27, §286 or
§286A in order for the five-year mandatory minimum to apply. Stanley v. State, 390
Md. 175, 183, 887 A.2d 1078 (2005). This Court recognized that the legislative history
indicated that the mandatory minimum would be triggered by either a crime of
violence conviction or a prior conviction under Article 27, §286 or §286A, but concluded
the legislative history could not trump the unambiguous language of Article 27,
§449(e). When it recodified this provision in the new Public Safety Article, the General
Assembly revised it so that the text of the statute matched what appeared to be the
original intent, as will be seen in the next section of this opinion.
      22
         For example, under the 2000 amendments, a person may not possess a
regulated firearm if the person has been convicted of any violation classified as a
misdemeanor in Maryland that carries a statutory penalty of more than 2 years; or any
violation classified as a common law offense where the person received a term of
imprisonment or more than 2 years; or if the person is a fugitive from justice, a
habitual drunkard, or addicted to or a habitual user of any controlled dangerous
substance. Article 27, §449(d) (1957, 2000 Supp.).

                                           22
Article 27, 449(f) (1957, 2000 Supp.). The bill did not affect the existing offense defined

in Article 27, §291A (the predecessor of CR §5-622).

       When the bill was before the General Assembly, the Legislature was advised

that the “stiffer incarceration penalties” in the bill – the mandatory minimum sentence

without possibility of parole – would likely “increase significantly” the State’s

expenditures on incarceration, but reduce to some extent expenditures on parole

supervision. See Fiscal Note (Revised) for Senate Bill 211 (March 30, 2000). The

legislative bill files for the measure indicate that there was significant public interest

and public input concerning the 2000 bill. Many of the bill’s provisions were quite

controversial, but its provision for stiffer penalties for possession of a firearm by a

person with a prior conviction – the provision that was ultimately codified in PS §5-

133(c)(1) – was not.

       Firearms Regulation – Recodification of the Mandatory Minimum

       In 2003, portions of Article 27 were codified in the new Public Safety Article. As

part of this process, the revisers redrafted the five-year mandatory minimum penalty

provision originally contained in Article 27, §449(e). Chapter 5, §2, Laws of Maryland

2003; Chapter 17, Laws of Maryland 2003. The revised provision was codified as PS

§5-133(c) and stated in relevant part:

                 (c) (1) A person may not possess a regulated firearm if
            the person was previously convicted of:

                            (i)   A crime of violence; or




                                            23
                           (ii) A violation of §5-602, §5-603, §5-604, §5-605,
             §5-606, §5-607, §5-608, §5-609, §5-612, §5-613, or §5-614 of the
             Criminal Law Article.

                       (2) A person who violates this subsection is guilty of
             a felony and on conviction is subject to imprisonment for not
             less than 5 years, no part of which may be suspended.

                      (3) A person sentenced under paragraph (1) of this
             subsection may not be eligible for parole.

PS §5-133(c) (2003).23 The 2003 version of PS §5-133(c) differed from Article 27, §449(e)

in that PS §5-133(c) specified that the mandatory minimum was triggered following a

conviction of possession of a regulated firearm by a person with a prior conviction for

a crime of violence or a conviction under the re-codified versions of Article 27, §286 or

§286A.24 The General Assembly chose to retain the conjunction “or” relating the


      23
        Article 27, §286 and §286A had been re-codified into CR §§5-602, 5-603, 5-604,
5-605, 5-606, 5-607, 5-608, 5-609, 5-612, 5-613, and 5-614.
      24
           In making these revisions, the revisers noted:

               The Public Safety Article Review Committee notes, for
               consideration by the General Assembly, that the meaning of
               the reference in former Art. 27, §449(e) to a person “who is
               in illegal possession of a firearm as defined in §445(d)(1)(i)
               and (ii) of [Art. 27]” is unclear. Former Art. 27, §445(d)(1)(i)
               and (ii) prohibited a person who has been convicted of a
               crime of violence or any violation classified as a felony in
               this State from possessing a regulated firearm. The
               General Assembly may wish to clarify the meaning of
               former Art. 27, §449(e), which is revised in subsection (c) of
               this section.

Chapter 5, §2, Laws of Maryland 2003 at 250. The recodification originally would have
extended the mandatory minimum penalty to anyone who possessed a regulated
firearm and who had previously been convicted of “any other violation classified as a
                                                                        (continued...)

                                             24
subparagraphs of PS §5-133(c)(1) with the result that possession of a regulated

firearm, coupled with either a prior conviction of a crime of violence or a prior

conviction under the enumerated provisions of the Criminal Law Article, was a

violation of PS §5-133(c)(1), and would trigger the five-year mandatory minimum

sentence in PS §5-133(c)(2).25

      Lessons from the Legislative History

      We can make several observations as a result of our journey through the

legislative history of these two provisions.

      First, since the General Assembly first made a prior drug conviction a firearms

disqualification, it has consistently enhanced the available sentences on each occasion

that it has returned to the subject, particularly for individuals with prior convictions

related to the manufacturing, distributing, or importing of illicit drugs. These offenses

were first identified in 1989 as the type of drug-related convictions that disqualified

a person from possessing a pistol or revolver. In 1991, all felonies under the controlled

dangerous substances subtitle of Article 27 (plus conspiracy and attempt to commit

such crimes) were included in the new felony provision that authorized a higher

maximum sentence compared to other types of disqualifying convictions that were


      24
         (...continued)
felony in the State.” That provision was deleted in a corrective bill passed the same
year. Chapter 17, Laws of Maryland 2003.
      25
         In 2011, the General Assembly deleted from the list of disqualifying
convictions in PS §5-133(c)(1)(ii) a violation of CR §5-606, the possession of a fake
prescription for a controlled dangerous substance. Further amendments to PS §5-133
were made in 2010 and 2012 and are not relevant to this case.

                                           25
listed in pistols subtitle. In 2000, felonies related to the distribution, manufacturing,

and importing of controlled substances were once again singled out in what is now PS

§5-133(c)(1)(ii), along with crimes of violence, as triggering the newly created five-year

mandatory minimum sentence. This reflects a consistent intent by the General

Assembly to authorize stringent penalties for a person with a prior drug-related

conviction who is convicted of possession of a handgun, particularly when that

individual has a prior conviction for distributing, manufacturing, or importing

controlled substances.

      Second, the 2003 amendment that clarified that either a prior conviction for a

crime of violence or a prior conviction under one of the enumerated drug-related

provisions in PS §5-133(c)(1)(ii) would, on its own, trigger the mandatory five-year

mandatory minimum sentence is particularly indicative of the General Assembly’s

intent. After the revisers noted the potential confusion regarding what would trigger

the mandatory minimum, the General Assembly recodified the statute in a way that

unambiguously prescribed the mandatory minimum for a person who possesses a

regulated firearm after having previously been convicted of one of the listed drug-

related offenses.

      Finally, the General Assembly’s decision in 2000 to retain the similar, but not

identical, prohibition in CR §5-622 (and its predecessor provision) when enacting the

five-year mandatory minimum is significant. The General Assembly is presumed to

have considered the existing offense in CR §5-622 when enacting the five-year

mandatory minimum. See GEICO v. Insurance Com’r, 332 Md. 124, 132, 630 A.2d 713

                                           26
(1993) (Legislature is presumed to be aware of an earlier enacted statute). The

General Assembly’s decision not to amend CR §5-622 suggests that it intended to allow

a prosecutor the discretion to charge a violation of CR §5-622(b) instead of a violation

of PS §5-133(c)(1)(ii), and leave open the possibility that a sentencing court might

impose something less than a sentence of five years incarceration in the circumstances

of the particular case.26 See Frazier v. State, 318 Md. 597, 615, 569 A.2d 684 (1990)

(absence of an amendment to an existing statute when Legislature passes an

overlapping proscription indicates that the Legislature intended for both statutes to

co-exist).


       3.    Summary


       The two criminal statutes at issue in this case each describe with some precision

the conduct that constitutes a violation.27 On the facts of this case, the State’s Attorney

had discretion to charge Mr. Oglesby with a violation of PS §5-133(c)(1)(ii) or of CR §5-

622(b), or both. Absent an allegation that the decision was exercised contrary to some

constitutional or legal norm, it is not subject to judicial oversight as to whether the

statute with the more stringent or the more lenient penalty should have been charged.


       26
         This is in contrast to the Legislature’s decision when it enacted the 1991 law
to delete the overlapping provision with the more lenient sentencing provision.
       27
        The Court has found ambiguity – and applied the rule of lenity – on the
question of the unit of prosecution under PS §5-133(c)(1)(ii). See Melton v. State, 379
Md. 471, 842 A.2d 743 (2004) (unit of prosecution relates to act of possession, not
number of prior qualifying offenses). In this case, there is no issue as to the provision
that defines the offense; rather the issue is whether the penalty provision is
ambiguous.

                                            27
      There is no ambiguity in either statute as to the penalty that the Legislature has

authorized for a conviction. The legislative history confirms that the General Assembly

intended to provide for a mandatory minimum sentence for a violation of PS §5-

133(c)(1)(ii). The fact that a violation of CR §5-622(b) carries a different penalty does

not mean that either penalty provision is ambiguous. There is no occasion to apply the

rule of lenity to cap the sentence for a violation of PS §5-133(c)(1)(ii) with that of a

more lenient potential offense that could have been charged.28 In the context of a

merger of sentences, where the prosecution has actually charged two overlapping

offenses and a court determines that two counts on which a defendant was convicted

were based on the same factual elements, the conviction that carries the lesser penalty

is merged into the conviction that carries the greater penalty for purposes of

sentencing. See, e.g., Brooks v. State, 439 Md. 698, 736-42, 98 A.3d 236 (2014).29


      The Supreme Court considered a similar argument concerning two overlapping

federal statutes that prohibited possession of a firearm by a convicted felon but carried

different maximum penalties, and declined to apply the rule of lenity to negate the

more stringent sentencing provision. As Justice Thurgood Marshall, on behalf of a



      28
        Taken to its logical conclusion, a rule of lenity that operated in that fashion
would require a sentencing court to canvas the various statutory offenses that might
have been charged in a particular case, select the one with the most lenient sentencing
provision, and cap the sentence accordingly.
      29
         Had the prosecution charged both offenses in Mr. Oglesby’s case, it might well
be that a conviction under CR §5-622(b) would merge into the conviction under PS §5-
133(c)(2) for sentencing purposes, see State v. Lee, 178 Md. App. 478, 490 n.5, 943 A.2d
14 (2008), although we need not decide that issue under the circumstances of this case.

                                           28
unanimous Court, observed: “That [one statute] provides different penalties for

essentially the same conduct is no justification for taking liberties with the unequivocal

statutory language. ... Where, as here, Congress conveyed its purpose clearly, ... we

decline to manufacture ambiguity where none exists.” United States v. Batchelder, 442

U.S. 114, 121-22 (1979) (internal quotation marks and citation omitted).30


      Accordingly, when, as here, the conduct at issue is proscribed by both statutes,

the prosecutor may choose whether to pursue a conviction under PS §5-133(c)(1)(ii) or

CR §5-622(b) and the appropriate sentence will be a sentence corresponding to the

statute under which the defendant is convicted.31




      30
         In Batchelder, the defendant had been charged and convicted under a federal
statute that prohibited a felon from receiving a firearm that had traveled in interstate
commerce. The defendant was sentenced to five years imprisonment, the maximum
under that statute. As in the instant case, another federal statute criminalized the
same conduct, but provided for a lesser maximum penalty – two years incarceration.
Like Mr. Oglesby, the defendant argued that the rule of lenity required that he be
sentenced in accordance with the more lenient statute, even though he had not been
charged or convicted of a violation of that statute.
      31
         Although not raised in this case, we note that the potential for varying
punishments based on the same conduct does not violate the United States
Constitution or Article 24 of the Maryland Declaration of Rights. Stubbs v. State, 406
Md. 34, 50-53, 956 A.2d 155 (2008).

        Additionally, there is no concern here that the statutes did not give proper notice
of the potential penalty. See 3 Sutherland Statutory Construction §59:4 (7th ed.)
(noting the rule of lenity developed based on “a belief that one should not be punished
by loss of liberty unless the law has provided a fair warning of what conduct is
considered criminal”). PS §5-133(c)(2) imposes a mandatory minimum for violation of
paragraph (c)(1), which is sufficient to give notice to any potential defendant that the
possession of a regulated firearm after a disqualifying conviction specified in paragraph
(c)(1) is subject to a mandatory minimum penalty.

                                            29
C.     Whether the Reasoning of Waye v. State Requires that a Defendant
       Convicted of a Violation of PS §5-133(c)(1)(ii) be Sentenced under CR §5-
       622(c)
       We briefly address the significance of Waye v. State, 231 Md. 510, 191 A.2d 428

(1963). In the withdrawn portion of this Court’s Alston opinion, the Court’s initial

majority relied heavily on Waye, although Waye did not involve an application of the

rule of lenity.32 Indeed, in Waye, the Court’s decision was based on an assessment of

the Legislature’s intent underlying the pertinent statutes and there was therefore no

need to resort to the rule of lenity.


       In Waye, the defendant was charged and convicted of a violation of the False

Pretenses Act,33 which carried a maximum sentence of 10 years incarceration. A

statute that criminalized a particular type of theft by false pretenses – the Worthless

Check Act34 – had provided for a similar penalty, but had recently been amended to

provide a maximum period of 18 months incarceration if the value obtained by means

of the worthless check was less than $100. The Court held that the Legislature had

not intended to retain the greater penalty for violation of the False Pretenses Act when

the violation of that statute involved a worthless check used to obtain a value less than

$100. The Court thus construed the relatively recent amendment of the sentencing

provision of the narrower statute – the Worthless Check Act – to also apply to the


      32
         Although Mr. Oglesby did not cite Waye in his brief, his counsel invoked the
decision at oral argument.
      33
           At the time of the Waye decision, that law appeared at Article 27, §140.
      34
           At the time of the Waye decision, that law appeared at Article 27, §142.

                                           30
broader statute – the False Pretenses Act – in those circumstances. 231 Md. at 516.35

      Waye does not appear to be pertinent to Mr. Oglesby’s case. If the reasoning of

Waye were applied to analyze the statutes in this case, it would mean that the

sentencing provision of the narrower, more recently enacted statute – here, the

mandatory minimum sentence in PS §5-133(c)(2) – would be read into the older and

broader statute – here, CR §5-622 – when a conviction under the latter statute was

supported by facts that would have permitted a prosecution under the former statute.36

But we are not dealing with a conviction under CR §5-622 and no one is arguing that

the mandatory minimum sentence for certain convicted drug offenders found in

possession of regulated firearms should be imported into the existing provisions of CR

§5-622.37


      In light of the Legislature’s clear intention to establish a mandatory minimum

sentence for certain convicted drug offenders found in possession of regulated firearms,



      35
         The Court concluded that the Legislature did not intend to confer discretion
on a prosecutor to create the possibility of a more severe sentence simply by charging
an offense under the False Pretenses Act: “we do not believe that the Legislature
intended to create such an anomalous and incongruous situation ... simply because
someone decides to bring the prosecution under [the False Pretenses Act].” 231 Md.
at 516.
      36
         Similarly, had the General Assembly created the two sentencing provisions
in the same statute, PS §5-133(c)(2), as the later enacted provision, would prevail over
CR §5-622(c) to the extent there was an irreconcilable conflict between the two.
Maryland Code, General Provisions Article, §1-207.
      37
         For a variety of reasons, it is unlikely that the Court would apply the
reasoning of Waye to construe CR §5-622 in that manner, although we need not address
that question in this case.

                                          31
it would frustrate legislative intent and thus be quite at odds with the governing

principle of Waye – fidelity to legislative intent – to hold that the mandatory minimum

sentence provision is a nullity. Indeed, those convicted of serious drug offenses would

be treated more leniently than other individuals convicted of crimes listed in PS §5-

133(c)(1). The bottom line is that the reasoning in Waye does not support a conclusion

contrary to the one we have reached.


      A more analogous case to Mr. Oglesby’s situation is Stubbs v. State, 406 Md. 34,

50, 956 A.2d 155 (2008). In Stubbs, the defendant had been convicted and sentenced

under a provision of the consolidated theft statute pertaining to thefts involving a

value less than $500. On appeal, the defendant argued, among other things, that

because the evidence at trial did not show a value greater than $100, his sentence

should not have exceeded the lesser sentence provided for a charge of theft of an item

with a value less than $100. After reviewing the statutory text and legislative history

of the consolidated theft statute, this Court concluded that the Legislature intended

to allow a prosecutor the discretion to charge either offense and relied on the passage

from Batchelder quoted above. See Part II.B.3 of this opinion. In our view, the

Legislature conferred similar discretion upon the prosecutor in this case.


                                          III
                                     Conclusion
      The fact that two criminal statutes overlap to some extent – or to a great extent

– and provide for different penalties upon conviction does not alone create an



                                          32
ambiguity that must be resolved by application of the rule of lenity. When the

language of the statute under which a defendant is charged is clear, and the legislative

history confirms that the Legislature intended to establish the penalty set forth in that

statute, there is no occasion to apply the rule of lenity. The application of the rule in

the circumstances of this case would effectively repeal the General Assembly’s most

recent enactment penalizing gun possession by those convicted of serious drug crimes.

Accordingly, the rule of lenity did not require that Mr. Oglesby be sentenced under CR

§5-622(c) for his conviction under PS §5-133(c)(1)(ii). Nor does the reasoning of Waye

v. State require such an outcome.


       One may legitimately question whether a mandatory minimum sentence is ever

a good idea, as it strips the sentencing judge of the discretion to fit the sentence to the

particular case and may transfer power over the disposition from the court to the

prosecution.38 But that is a decision for the Legislature, as the courts have generally

rejected constitutional challenges to such sentencing provisions.39

      38
        See, e.g., Eric Holder, Testimony before United States Sentencing Commission
on March 13, 2014, 26 Fed. Sent. R. 246, 2014 WL 4745522 (April, 2014), available at
<http://www.justice.gov/opa/pr/attorney-general-holder-urges-changes-federal-
sentencing-guidelines-reserve-harshest>; Erik Luna & Paul G. Cassell, Mandatory
Minimalism, 32 Cardozo L.Rev. 1, 3 (2010) (summarizing arguments against
mandatory minimum sentences).
      39
        See, e.g., United States v. Chapman, 500 U.S. 453, 467 (1991) (statute that
required a mandatory minimum for certain drug crimes did not impose an arbitrary
sentence and thus did not violate due process); State ex rel. Sonner v. Shearin, 272 Md.
502, 513, 325 A.2d 573 (1974) (trial court not authorized to suspend part of a
mandatory minimum sentence as the legislature may limit the court’s discretion to
impose a sentence); United States v. Hughes, 632 F.3d 956, 962 (6th Cir. 2011)
                                                                           (continued...)

                                            33
                                       JUDGMENT OF THE CIRCUIT COURT FOR
                                       BALTIMORE CITY AFFIRMED . COSTS TO BE
                                       PAID BY APPELLANT .




      39
         (...continued)
(rejecting due process, Eighth Amendment, and separation of powers challenges to the
imposition of a mandatory minimum); but cf. Alleyne v. United States, 133 S.Ct. 2151,
2162 (2013) (mandatory minimums violate the Sixth Amendment unless any fact that
increases the mandatory minimum is submitted to the jury for determination).

                                         34
