# Minor v. State

> Court of Appeals of Maryland · September 13, 1988 · 313 Md. 573

URL: https://www.frixlaw.com/law-library/cases/9750386

## Case

- **Full name:** Kevin Claude MINOR v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** September 13, 1988
- **Citations:** 313 Md. 573; 546 A.2d 1028; 1988 Md. LEXIS 126
- **Precedential status:** Published
- **Opinion:** Dissent by Adkins
- **Judges:** Eldridge, Cole, Rodowsky, Couch, McAuliffe, Adkins, Orth
- **Cited by:** 17 later opinions in the Frix Law Library

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## Opinion text

ADKINS, Judge,
dissenting.
The Circuit Court for Prince George’s County sentenced Kevin Claude Minor to 25 years in prison without the possibility of parole. The sentence was imposed pursuant to the mandatory provisions of Md.Code (1957, 1982 Repl. VoL, 1987 Cum.Supp.) Art. 27, § 643B(c). 1
This Court now holds that proportionality review of that sentence is not required by the federal and state constitutional prohibitions against the imposition of cruel and unusual punishment. In the alternative, the Court holds that in any event Minor’s sentence is not constitutionally disproportionate. I disagree with both holdings and respectfully dissent.
I.
The facts that led to Minor’s sentence may be briefly recounted. In September 1985, Minor, then 26V2 years old, was convicted of housebreaking with intent to steal. He had previously been convicted of burglary and of two *590 separate acts of housebreaking. He had served “at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence.... ” All the convictions were for “crimes of violence” as defined in Article 27, § 643B(a). None of them, so far as the record reveals, involved actual violence or the use of a weapon, nor, so far as I can tell, was Minor in possession of a weapon when any of the crimes were committed.
II.
The Court’s conclusion that no proportionality review of Minor’s sentence is required is largely based on the notion that this case is governed by the Supreme Court’s decisions 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 , (per curiam), reh. denied, 455 U.S. 1038 , 102 S.Ct. 1742 , 72 L.Ed.2d 156 (1982), and not by its subsequent decision in Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983). Because I read Helm as effectively overriding Rummel and Hutto , I cannot accept this conclusion.
Rummel involved a Texas statute that called for life imprisonment for anyone “three times convicted of a felony less than capital____” 445 U.S. at 264 , 100 S.Ct. at 1134 , 63 L.Ed.2d at 385 . Rummel was convicted of (1) use of a credit card to obtain $80 worth of goods, (2) forgery of a check for $28.36, and (3) use of false pretenses to obtain $120.75. He was sentenced to life imprisonment. The Supreme Court found that sentence unexceptionable under the cruel and unusual punishment clause of the eighth amendment. Id. at 265-267 , 100 S.Ct. at 1134-1135 , 63 L.Ed.2d at 385-386 .
In an opinion joined by Chief Justice Burger and Justices Stewart, White, and Blackmun, Justice Rehnquist rejected the argument that the references to disproportionality analysis found in certain death cases required that sort of analysis in noncapital cases. He noted the “unique nature of the death penalty for purposes of Eighth Amendment *591 analysis....” Id. at 272 , 100 S.Ct. at 1138 , 63 L.Ed.2d at 389 . Additionally, he emphasized the importance of deference to legislatively established policy as to the form of punishment to be inflicted upon repeat offenders. The “primary goals” of recidivist statutes, Justice Rehnquist reasoned,
are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.
Id. at 284-285 , 100 S.Ct. at 1144-1145 , 63 L.Ed.2d at 397 . In a concurring opinion, Justice Stewart expressed the view that although the Texas recidivist statute was undesirable as a matter of policy, it was not unconstitutional. Id. at 285 , 100 S.Ct. at 1145 , 63 L.Ed.2d at 398 .
Thus, the Rummel majority disclaimed any analogy to proportionality review in capital cases and concluded that the length of sentence imposed pursuant to a habitual offender statute was virtually immune from eighth amendment scrutiny: a legislature could classify crimes (e.g., as felonies or misdemeanors) and set sentence ranges or minimums as it deemed appropriate in order to achieve the isolation of recidivists from society. The majority did not engage in a proportionality analysis; it held that Rummel’s sentence did not constitute cruel and unusual punishment.
Justice Powell, joined by Justices Brennan, Marshall, and Stevens, dissented. Id. at 285 , 100 S.Ct. at 1145 , 63 L.Ed.2d at 398 . In the view of the minority:
*592 The scope of the Cruel and Unusual Punishments Clause extends not only to barbarous methods of punishment, but also to punishments that are grossly disproportionate. Disproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted on the offender. The inquiry focuses on whether, a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal. A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice.
Id. at 288 , 100 S.Ct. at 1146 , 63 L.Ed.2d at 400 . Moreover, Justice Powell argued, the notion that proportionality analysis “may be less applicable when a noncapital sentence is challenged” is one that “finds no support in the history of Eighth Amendment jurisprudence.” Id. at 288 , 100 S.Ct. at 1147 , 63 L.Ed.2d at 400 . “The principle of disproportionality has been acknowledged to apply to both capital and noncapital sentences.” Id. at 293 , 100 S.Ct. at 1149 , 63 L.Ed.2d at 403 .
The minority opinion went on to propose three objective factors to be applied in proportionality analysis, to apply those factors to the facts of Rummel’s case, and to conclude that Rummel’s sentence was unconstitutionally disproportionate. Id. at 295-307 , 100 S.Ct. at 1150-1156 , 63 L.Ed.2d at 404-412 .
With the battle lines thus clearly drawn, the Supreme Court was confronted with Hutto v. Davis, supra, in which the Rummel majority again prevailed. Under a Virginia statute, Hutto was sentenced to prison for 40 years upon his conviction of possession of nine ounces of marijuana with intent to distribute. A United States District Court applied proportionality analysis and set the sentence aside. Eventually, an evenly divided Fourth Circuit affirmed. 454 U.S. at 372 , 102 S.Ct. at 704, 70 L.Ed.2d at 559 . In a per curiam opinion, the Supreme Court reversed. It relied on Rummel , which it said stood for the propositions that *593 federal courts should be reluctant to review state legislatively mandated terms of imprisonment and that successful challenges to the proportionality of particular sentences should be exceedingly rare. It insisted that Rummel must be followed. Id. at 374-375 , 102 S.Ct. at 705-706, 70 L.Ed.2d at 560-561 .
Justice Powell thought the sentence grossly disproportionate, but concurred in the judgment because he believed Rummel to be controlling. Id. at 375 , 102 S.Ct. at 706, 70 L.Ed.2d at 561 . The other Rummel dissenters (through Justice Brennan) expressed their continuing disagreement with Rummel. Id. at 381 , 102 S.Ct. at 709, 70 L.Ed.2d at 565 . They also thought that Hutto , by applying the Rummel doctrine to one who had not been sentenced as an habitual offender, had worked “a serious and improper expansion of Rummel." Id. at 382-383 , 102 S.Ct. at 710, 70 L.Ed.2d at 566 .
Then came the revolution, ushered in by the somewhat unlikely person of Jerry Helm. From 1964 through 1975, Helm was convicted, in South Dakota, of third degree burglary (thrice), false pretenses, grand larceny, and drunk driving. In 1979 his conviction of uttering a $100 “no account” check yielded a life sentence without parole under South Dakota’s habitual offender statute. That, the Supreme Court held in Solem v. Helm, supra, violated the eighth amendment.
Justice Powell, who had written the Rummel dissent, now wrote for the majority. He was joined by the other Rummel dissenters, plus Justice Blackmun. The Helm majority opinion essentially adopts the Rummel dissent. First, it adopts the view that the discussion of proportionality analysis in capital cases can be—indeed should be—applied in other cases:
There is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences. The constitutional language itself suggests no exception for imprisonment.
*594 463 U.S. at 288-289 , 103 S.Ct. at 3009 , 77 L.Ed.2d at 648 [footnote omitted]. The fact that successful challenges to proportionality may seldom occur outside the context of capital cases does not mean that the principle is inapplicable in noncapital cases. Id. at 289-290 , 103 S.Ct. at 3009 , 77 L.Ed.2d at 649 .
Next, the Helm Court makes clear that deference to the legislature does not end the inquiry:
In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. [660] at 667 [ 82 S.Ct. 1417, 1420 , 8 L.Ed.2d 758 (1962) ], a single day in prison may be unconstitutional in some circumstances.
463 U.S. at 290 , 103 S.Ct. at 3009-3010 , 77 L.Ed.2d at 649 .
Finally, Justice Powell and the new majority go on to adopt the same three-factor analysis that was proposed by the dissent but rejected by the majority in Rummel . 2 They apply it to the facts of Helms’s case and hold his punishment unconstitutional. Id. at 290-300 , 103 S.Ct. at 3010-3015 , 77 L.Ed.2d at 649-655 .
Helm , then, is the converse of Rummel and Hutto . Although Helm expressly overrules neither of the earlier two cases, it simply rejects the reasoning on which both of them rest and comes to a holding that is inconsistent with that of Rummel . Given those facts and the composition of the majority and the minority in Rummel and in Helm , it seems clear enough that the former is no longer viable in view of the latter. Nor does the doctrine established by *595 Helm depend upon the difference between a life sentence without parole (.Helm) and a life sentence with the possibility of parole (Rummel). If further demonstration is required, one has only to turn to Chief Justice Burger’s angry dissent (joined by Justices White, Rehnquist and O’Connor) in Helm : “The controlling law governing this case is crystal clear, but today the Court blithely discards any concept of stare decisis [by rejecting Rummel ].” Id. at 304 , 103 S.Ct. at 3017 , 77 L.Ed.2d at 658 . Moreover, the Court’s analysis in Helm is “completely at odds with the reasoning of our recent holding in Rummel____” Id. at 305 , 103 S.Ct. at 3017 , 77 L.Ed.2d at 659 . And “Rummel, in this Court, advanced precisely the same arguments that respondent [Helm] advances here; we rejected those arguments [but now the majority accepts them]____” Id. at 306 , 103 S.Ct. at 3018 , 77 L.Ed.2d at 659 (Burger, C.J., dissenting). There is much more to the same effect; what I have quoted is sufficient to make the point.
Many scholarly commentators have taken the viewpoint that Helm effectively overruled Rummel. See, e.g., Baker & Baldwin, “Eighth Amendment Challenges to the Length of a Criminal Sentence: Following the Supreme Court From ‘Precedent to Precedent,’ ” 27 Ariz.L.Rev. 25, 46-49 (1985); Bradley, “Proportionality in Capital and Non-Capital Sentencing: An Eighth Amendment Enigma,” 23 Idaho L.Rev. 195, 211 (1986) (“Solem is important ... because the Court effectively wrote Rummel out of the body of eighth amendment case law ... ”); Cover, “The Supreme Court 1982 Term, Foreword: Nomos and Narrative,” 97 Harv.L.Rev. 4, 128 (1983) (In Solem v. Helm, “the Court refrained from explicitly overruling Rummel , but repudiated much of the reasoning on which that decision relied”); Note, “Solem v. Helm: The Courts’ Continued Struggle to Define Cruel and Unusual Punishment,” 21 Cal.W.L.Rev. 590, 608 (1985) (“Solem does not technically overrule Rummel . However, in theory it must overrule Rummel and its practical consequences are inimical”); Note, “Solem v. Helm: Extending Judicial Review Under the Cruel and Unusual Punishments *596 Clause to Require ‘Proportionality’ of Prison Sentences,” 33 Cath.U.L.Rev. 479, 509-514 (1984) (“An Undeclared Overruling of Rummel v. Estelle ...”); Note, “Constitutional Law —Prison Sentences Grossly Disproportionate to the Crime Committed as Cruel and Unusual Punishment,” 30 Wayne L.Rev. 1353, 1363 (1984) (“The dissenters [in Helm ] are correct in noting that the Supreme Court has for all practical purposes overruled its decision in Rummel”)) Comment, “The Requirement of Proportionality in Criminal Sentencing: Solem v. Helm," 11 New Eng.J.Crim. & Civ. Confinement 238, 251-252 (1985) (“The majority in Solem does not overrule Rummel____ The court, however, reverses the reasoning used in Rummel and in Hutto”)) Comment, “Solem v. Helm: Extension of Eighth Amendment Proportionality Review to Noncapital Punishment,” 69 Iowa L.Rev. 775, 792 (1984) (“[B]y limiting Rummel to its facts and reinterpreting Rummel’s holding, as suggested by the majority in Helm ..., Helm may have restricted Rummel to such an extent as to have overruled it, even while purporting not to do so”).
At least two courts have similarly characterized the Helm!Rummel dichotomy. See People v. Hernandez, 686 P.2d 1325, 1329 (Colo.1984) (en banc) (“Since Solem ... [was] the last pronouncement of the Supreme Court,” the court was “compelled to grant proportionality review when a life sentence [with the possibility of parole was] ... imposed under the Colorado habitual criminal statute”); Williams v. State, 539 A.2d 164, 172 (Del.1988) (The court was “not persuaded by” the State’s argument that Rummel controlled; “[although Solem did not go so far as to overrule Rummel , it did repudiate much of the reasoning upon which Rummel relied”).
Since Helm is now the governing decision, the eighth amendment requires us to apply proportionality analysis at the very least in any case in which a substantial mandatory sentence is imposed, without the possibility of parole, under *597 an habitual offender statute. I dissent from the Court’s holding that it is not constitutionally required to do so. 3
III.
I also disagree with the Court’s alternative holding that Minor’s sentence is not constitutionally disproportionate. The analytical flaw underlying this holding also infected State v. Davis, supra. It is and was the Court’s failure to look at the actual facts involved in the several offenses. This approach would have been appropriate under Rummel . It is not permitted under Helm . Nor is the majority’s refusal to look at those facts mitigated by its disclaimer that “we do not suggest that under constitutional review the facts of the predicate crime are immaterial or must be ignored.” Having written that, the majority proceeds to ignore the facts of the predicate crimes in this case.
In his Rummel dissent, Justice Powell observed that “[n]one of the crimes [committed by Rummel] involved injury to one’s person, threat of injury to one’s person, violence, the threat of violence, or use of a weapon.” 445 U.S. at 295 , 100 S.Ct. at 1150 , 63 L.Ed.2d at 404 . And in his application of proportionality review, he again emphasized the actual nature of or events surrounding these offenses. Id. at 295-296 , 100 S.Ct. at 1150-1151 , 63 L.Ed.2d at 404-405 . As I have already noted, Justice Powell’s dissent in Rummel became the majority view in Helm . In the latter case, Justice Powell took pains to point out that all of Helm’s offenses were “all nonviolent, [and] none was a *598 crime against a person____” 463 U.S. at 280 , 103 S.Ct. at 3005 , 77 L.Ed.2d at 643 . He looked in detail at the offenses and their actual nonviolent nature again during the application of proportionality analysis. Id. at 296-297 , 103 S.Ct. at 3012-3013 , 77 L.Ed.2d at 653 .
The message that comes through to me is clear: the fact that the legislature has classified offenses as felonies or as crimes of violence, for purposes of a recidivist statute, is not decisive. Nor is the fact that a crime so classified might involve the potentiality of violence; that was true of at least some of Helm’s predicate crimes. See 463 U.S. at 315-316 , 103 S.Ct. at 3023 , 77 L.Ed.2d at 665-666 (Burger, C.J., dissenting). When a court applies eighth amendment proportionality review, it “must ... be undeterred by the label ‘crime of violence’ and consider the facts of the crimes [the offender] ... actually committed.” Davis v. State, 68 Md.App. at 591, 514 A.2d at 1234.
When that approach is taken here, I observe no actual violence in any of Minor’s offenses, no threat of violence, no use of a weapon. Despite the legislative classification, these were not “crimes of violence.” In terms of the first criterion established by Helm , the offenses committed by this inept housebreaker were not serious.
As to the second Helm criterion, Maryland punishes in a much less severe fashion offenders guilty of crimes involving the actual use of force or the threat of force. See Art. 27, § 1 (prison sentence of no more than eight years for the forcible abduction of a child under 16 years); Art. 27, § 7 (maximum sentence of 20 years for anyone “who wilfully and maliciously sets fire to or burns ... any barn, stable, garage or other building ... ”); Art. 27, § 12 (“person convicted of the crime of an assault with intent to rob .. / [may be punished by] imprisonment for not less than two years or more than ten years”); Art. 27, § 12 (conviction for “assault with intent to commit rape” punishable by “not less than two years nor more than 15 years”); Art. 27, § 386 (the unlawful stabbing or shooting of another individual or an assault with intent to maim carries a prison *599 sentence of not more than 10 years); Art. 27, § 387 (voluntary manslaughter is punishable by a period of imprisonment that does not exceed 10 years); Art. 27, § 486 (10-year maximum sentence for robbery); Art. 27, § 488 (robbery with a dangerous or deadly weapon punishable by a maximum of 20 years imprisonment). The same máximums apply even to those convicted of these offenses for a second time. All persons convicted and sentenced under these statutory provisions, moreover, are eligible for parole. Even a murderer sentenced to life imprisonment with the possibility of parole may serve as few as 15 years before being paroled. Md.Code (1957, 1986 Repl.Vol., 1987 Cum.Supp.), Art. 41, § 4-607(b)(1); Md.Regs.Code tit. 12, § 12.08.01.17(3)(a) (1980).
Turning to the third criterion, in other states, while those who commit nonviolent property crimes may often be given long sentences under recidivist statutes, these sentences are, for the most part, subject to the discretion of the courts. See Appendix to Minor’s Brief. Only three other states impose, for nonviolent recidivist offenders, mandatory minimum sentences that are more stringent than the one Maryland imposed in this case. See Colo.Rev.Stat. § 16-13-101 (1986 Repl.Vol.) (25-year mandatory minimum sentence upon third conviction for second degree burglary of a dwelling house); Del.Code Ann. tit. 11 § 4214(b) (1987 Repl.Vol.) (mandatory life sentence without the possibility of parole for third conviction of second degree burglary); Ind.Code Ann. § 35-50-2-8 (1985 Repl.Vol., 1988 Cum. Supp.) (36-year mandatory minimum sentence upon third conviction for burglary of a dwelling house).
Indiana, however, provides for parole which could substantially reduce a sentence actually served under its recidivist statute. See Ind.Code Ann. § ll-13-3-2(b)(2) (1981 RepLVol.) (eligibility for consideration for parole begins after half of sentence is served). Its statute cannot be considered more stringent than § 643B’s 25-year mandatory minimum sentence without the possibility of parole. Colorado and Delaware are thus the only states that treat *600 their nonviolent recidivist offenders more harshly than Maryland. See Appendix to Minor’s Brief.
As I see it, the three-part Helm analysis weighs heavily in Minor’s favor. I am convinced that a sentence of 25 years without parole for a nonviolent recidivist housebreaker, who has carried no weapon during his illicit forays and who has actually taken nothing, is unconstitutionally disproportionate. Consequently, I find that sentence as applied to Minor to be cruel and unusual in violation of the eighth amendment, and I would reverse. 4
. 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 ... 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____
. In its alternative holding, the majority in this case applies these same factors. They are set forth at 597.
. The Court’s analysis in State v. Davis, 310 Md. 611 , 530 A.2d 1223 (1987), was also error, in my view. I believe the position taken by the Court of Special Appeals in Davis v. State, 68 Md.App. 581, 514 A.2d 1229 (1986), aff’d in part, rev’d in part, 310 Md. 611 , 530 A.2d 1223 (1987), to be correct. I am also now constrained to conclude that the failure of the Court of Special Appeals to apply proportionality analysis in cases involving 25 years without parole, such as Bryan v. State, 63 Md.App. 210 , 492 A.2d 644 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985), was wrong. Given the nature of the predicate offenses there, however, (robbery with a deadly weapon and robbery) Bryan’s sentence may well have been constitutionally proportionate.
. Obviously, Minor should not escape without punishment and, under my view, he would not. He is not a model citizen; he is a recidivist. The 25-year sentence should be vacated and the case remanded to the circuit court for imposition of a sentence proportionate to the actual nature of his offenses.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750386. Public record. Not legal advice.