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Gardner v. State2/21/1997
g from the State?
: Judge, I am just going to call the mandatory. I believe that's an appropriate sentence in this case.
COURT: We have already done that.
: Right
COURT: In the proceeding before disposition, when I asked [defense counsel] whether he got timely notice and whether he accepted your evidence, that is when we did that.
: The State's recommendation is ten years to the Division of Correction without parole.
Petitioner's entire argument that the State "withdrew" the Rule 4-245 notice is based on the prosecutor's comment "I am just going to call the mandatory. I believe that's an appropriate sentence in this case." His interpretation is not supported by a fair reading of the record and a review of the comment in context. The conduct of the prosecutor in establishing the predicate for the mandatory and enhanced penalty and the prosecutor's silence when the judge caused the courtroom clerk to make appropriate docket entries in regard to the mandatory and enhanced penalties are inconsistent with an intent to withdraw the notice. The State interprets the prosecutor's comment as the State's recommendation to the trial court that Gardner receive a sentence less than the maximum. This interpretation is supported by the defense counsel's earlier comment in response to the court's suggestion for a presentence investigation. Counsel said:
Quite frankly, I don't see the point in it in that it is the -- going to be the State's recommendation, ten years without parole, and that is it.
The State merely exercised its discretion and recommended a sentence less than the statutory maximum. See Kohler v. State, 88 Md. App. 43, 49, 591 A.2d 907, 910 (1991) (stating that "neither Rule 4-245(b) nor any other authority requires that a recommendation for a sentence less than the statutory maximum be treated as a withdrawal of notice of exposure to the risk of an enhanced sentence.").
Judge Rodowsky has authorized me to state that he joins in the views expressed in this dissenting opinion.
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