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Maryland v. Wadlow9/4/1992
re is evidence that the amount of the particular drug involved was sufficient to trigger the mandatory minimum sentence prescribed in § 286(f), must there be a specific finding by the jury as to the quantity involved in order for the "without parole" provision of § (f)(3)(ii) to be invoke? Or, if the evidence would support a finding that the amount involved is sufficient to apply subsection (f)(3), must the trial judge make such a finding prior to sentencing?
The Statute
Md. Ann. Code, Art. 27, § 286(f)(1) (1957, 1992 Repl. Vol.), provides that if a person violates subsection (a)(1), which prohibits the manufacture, distribution, or possession with intent to distribute certain controlled dangerous substances, and the violation involves specific amounts of such substances, that person is subject to the penalties in P (3) of subsection (f): no less than five years imprisonment, no part of which may be suspended, and the person shall not be eligible for parole except in accordance with Art. 31B, § 11, of the Code (which deals with release from the Patuxent Institution, a provision that is of no significance to this case). The amount of cocaine that will trigger this enhanced penalty is 448 grams (approximately one pound) or more. The mandatory minimum penalty prescribed by this statute, enacted as part of the "Drug Kingpin" Act of 1989, is intended to distinguish the volume drug dealer from the street corner dealer. Subsection (a)(1) defines the crime: It is unlawful for any person to possess a controlled dangerous substance (CDS) in sufficient quantity to indicate reasonably an intent to distribute a controlled dangerous substance. Subsection (f) provides a special penalty for the volume drug dealer who violates subsection (a)(1): five years imprisonment without parole.
So far as the crime itself is concerned, the quantity of the CDS "is not an end in itself; it is but evidence of intent. It is the intent itself that is critical." Anaweck v. State, 63 Md. App. 239, 255, cert. denied, 304 Md 296 (1985).
Thus, even a large quantity of drugs might not yield a finding of intent to distribute, if other circumstances indicated large private consumption. Conversely, a much smaller quantity might yield such finding of intent, if evidence other than the quantity possessed showed that intent.
Id.
It is important to recognize that subsection (f) involves a penalty to be meted out to certain manufacturers, distributors, or possessors of controlled dangerous substances; the quantity manufactured, distributed, or possessed has nothing to do with guilt or innocence. Certainly one who possesses 447 grams of cocaine can be adjudged guilty of possession with intent to distribute under § 286(a)(1), but she cannot be sentenced pursuant to the provisions of subsection (f)(3). A conviction under § 286 (a)(1) would not necessarily result in the enhanced penalty; only if that conviction involved an amount of a controlled dangerous substance specified in subsection (f)(1) is the five year sentence without parole mandated.
Clearly, the imposition of a sentence pursuant to subsection (f)(1) requires a finding that a specific amount of the controlled dangerous substance in question was involved in the violation of subsection (a). But who must make this finding?
Since the specific amount of controlled dangerous substance that would mandate imposition of an enhanced sentence under § 286(f) (448 grams or more of cocaine; 50 pounds or more of marijuana; 50 grams or more of "crack" cocaine, etc.) affects only the sentence, it is not a factor to
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