By Andrea F. Siegel and Michael Dresser, The Baltimore Sun
11:54 PM EDT, July 11, 2013
Authorities are warning that a ruling by Maryland's highest court could take away a powerful weapon in the fight against crime: the state's mandatory five-year, no-parole sentence for gun possession by certain convicted felons.
The Court of Appeals ruling in a Baltimore case erased a defendant's mandatory sentence and ordered him resentenced under a more lenient provision of the law.
City officials decried the ruling, which comes as Baltimore is grappling with a flareup of gun violence that has left dozens wounded and 23 dead in the past three weeks.
The spike in gunplay — which continued into Thursday evening, when police said a man was shot in the head in the 200 block of S. Broadway — has come at the same time as a shake-up in the top ranks of the Police Department and high-level consultations between state and federal prosecutors.
Attorney General Douglas F. Gansler is looking into "the possibility of filing a motion to reconsider," spokesman David Paulson said.
"It is not clear what impact this will have on other mandatory sentencing, if any," Paulson said. Nevertheless, he added, the state has "serious concerns about the far-reaching implications of the court's decision."
A spokesman for Mayor Stephanie Rawlings-Blake said she would support such a move by the attorney general. If that effort proved unsuccessful, spokesman Ryan O'Doherty said, Rawlings-Blake would seek a legislative remedy.
Such a move could come in January, when the General Assembly meets for the 2014 session.
Del. Luiz R.S. Simmons, a member of the House Judiciary Committee, said he expects the legislature will be asked to undo what he called the court's "very novel opinion."
"You don't have to be clairvoyant to know that many conservative legislators will introduce legislation — especially in an election year — to require the imposition of a mandatory minimum," the Montgomery County Democrat said.
U.S. Attorney Rod J. Rosenstein said he wouldn't comment on "the logic of the judicial opinion" but said that "abolishing the five-year mandatory penalty provision would eliminate one of the key tools the legislature gave state and local police and prosecutors to fight gun crime."
Mark R. Cheshire, spokesman for Baltimore State's Attorney Gregg L. Bernstein, said the prosecutor's office is working now "to determine the impact of this ruling on past, present and future cases."
The Court of Appeals published the ruling last month in a case it heard in 2005.
Defendant Kevin Alston, who had been convicted of drug distribution, had been found guilty by a Baltimore jury of possession of a firearm by a felon and was sentenced in 2003 to the mandatory five-year minimum sentence in prison without parole.
In his appeal, Alston said he was entitled to a new sentence because a sentence of up to five years with parole was an option under a different provision of the law.
The attorney general's office argued that prosecutors need to have the discretion to choose between statutes. But the court ruled that when more than one sentencing provision applies, the more lenient one should be used. Last month the judges ordered Alston be resentenced — even though he has already served the mandatory five years.
The opinion was written by former Chief Judge Robert M. Bell, who retired from the bench earlier this month. Three of the seven judges who heard the arguments nearly eight years ago were retired by the time the ruling was issued last month.
Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee, said he had not yet read the opinion, but expects lawmakers will have to deal with it.
"I can predict with certainty that it's an issue we'll be facing," the Montgomery County Democrat said.
Frosh, who is running for attorney general, expressed surprise that the high court took so long to issue its opinion.
"That's really an outlier," he said. "I've heard there were 3-year-old cases and 5-year-old cases. I didn't know we had any 8-year-old cases," he said.
Frosh said the General Assembly has tried to impose deadlines for the courts to complete their work, only to be rebuffed under the separation-of-powers doctrine.
Del. Kathleen Dumais, vice chairman of the House Judiciary Committee, said prosecutors have reassured her that the opinion will not be a get-out-of-jail card for other offenders.
"I don't necessarily think there are a lot of cases that are going to be able to use this case to say 'review my case,' the Montgomery County Democrat said. "This was very fact-specific."
Dumais said the House tends to balk at mandatory minimum sentences, but she would not rule out keeping the exception for felons possessing a firearm.
Del. Michael Smigiel, an Eastern Shore Republican on the House Judiciary Committee, said he would introduce legislation to negate the court ruling by scrapping the statute that leaves the sentence to a judge's discretion.
"It should be mandatory," he said. "You misuse a firearm in the commission of a crime, it should be a mandatory sentence. It's a God-given right you give up when you break your contract with society and become a predator."
Baltimore Sun reporter Luke Broadwater contributed to this article.
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