Maryland Baltimore County Sexual Offense Charge Sodomy Lawyers Attorneys Montgomery

Joseph Anthony DiBARTOLOMEO, Jr. v. STATE of Maryland

Court of Special Appeals of Maryland

January 10, 1985

Appellant was convicted in the Circuit Court for Baltimore County of attempted second degree sexual offense and common law assault. The trial court invoked Md. Code Ann. art. 27, 643B(c), concluded that the attempted sexual offense conviction constituted defendant's third conviction of a crime of violence, and imposed a 25 year sentence of imprisonment for that conviction and a concurrent sentence of 18 months for the assault.

The enhancement of sentence was based on the allegation of the 1972 offense was supported by a number of certified documents from Nueces County, Texas, indicating that, apparently as part of a plea agreement, appellant pled guilty to a charge of sodomy and did not deny that the offense was committed.

Issues:

Whether the evidence was sufficient to support the convictions?

Whether the court erred in sentencing appellant under 643B(c)?

Discussion:

1) Whether the evidence was sufficient to support the convictions?

The Court held that the victim's testimony sufficed to establish a forcible attempt by appellant to place his penis in the anus of the victim. The credibility of that testimony was for the trial court, not us, to determine.

2) Whether the court erred in sentencing appellant under 643B(c)?

The Court finds that it is evident from this analysis that (1) had appellant done in Maryland in 1972 what he apparently did in Texas, he could have been convicted of either sodomy or perverted practice, but not second degree sexual offense, which was not a crime until 1976, and (2) had he been convicted in Maryland of either sodomy or perverted practice, before or after 1976, the conviction could not be used as a predicate crime of violence for purposes of 643B. Given the caution with which the Legislature crafted 643B(a), we doubt that it intended to permit a foreign conviction for sodomy to support a mandatory enhanced punishment under 643B(b) or (c) when it excluded a Maryland sodomy and perverted practice conviction for that purpose. A comparisonof the foreign and domestic offenses and the requirement of evidence to show that the foreign conviction rested on acts that would establish the domestic offense become relevant only when the counterpart domestic offense is itself a crime of violence as defined by the statute. Otherwise, the comparison is between apples and oranges. So long as Maryland retains sodomy as an independent crime, separate from the offenses created in 464 and 464A, it, and not those statutory offenses, must be the standard by which a foreign sodomy conviction is judged.

For these reasons, this Court conclude that the trial court erred in sentencing appellant under 643B(c). In light of that conclusion, this court need not consider the alternative grounds raised by appellant in attacking that disposition.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Maryland Baltimore County Sexual Offense Charge Sodomy Lawyers Attorneys Montgomery

By: Atchuthan Sriskandarajah

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