Kelly v. State

1

ZURI KELLY v. STATE OF MARYLAND

No. 68-2023

Court of Special Appeals of Maryland

June 27, 2024

Circuit Court for Baltimore County Case No C-03-CR-21-002015.

Arthur, Tang, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

OPINION

Zarnoch, J.

In 2023, the General Assembly passed legislation generally preventing law enforcement officers from stopping or searching vehicles solely on the basis of the odor of cannabis and, among other things, excluding such evidence from being admitted in judicial proceedings. The principal issue in this case is whether this legislation was intended to apply retroactively to cases pending on direct appeal.^[1] For reasons stated below, we conclude that the text of the 2023 legislation indicates the General Assembly's intent that the law does not apply retroactively.

In 2021, Zuri Kelly, appellant, was arrested and charged, in the Circuit Court for Baltimore County, with various narcotics-related offenses after a police officer, upon detecting the odor of cannabis emanating from Kelly's vehicle during a traffic stop, conducted a warrantless search of Kelly's vehicle and found evidence of drug possession and distribution. Prior to trial, Kelly filed a motion to suppress the evidence found in his vehicle. That motion was denied. Kelly thereafter entered a conditional plea of guilty to one count of possession with intent to distribute cocaine, and the court sentenced Kelly to a total term of twelve years' imprisonment, with all but two years suspended. This timely appeal followed.

While Kelly's appeal was pending, a new law governing searches pursuant to the odor of cannabis became effective in Maryland. That law, which was codified in § 1-211 of the Criminal Procedure Article ("CP") of the Maryland Code, prohibited a police officer from conducting a search of a person's vehicle based solely on the odor of cannabis. The law also stated that any evidence obtained in violation of the statute was inadmissible.

Subsequent to CP § 1-211 becoming effective, Kelly filed his brief in the instant case, presenting a single question for our review. For clarity, we have rephrased that question as^[2]:

Is CP § 1-211 applicable in Kelly's case, even though Kelly was convicted and sentenced before the statute became effective and the text of the enactment indicates the prospectivity of its terms?

For reasons to follow, we hold that CP § 1-211 does not apply retroactively and is inapplicable to the facts presented here. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

On May 9, 2021, Kelly was driving in the area of Route 40 and Rosedale Avenue when he was stopped by a police officer for speeding. Upon making contact with Kelly, the police officer observed "a distinct odor coming from the vehicle[,]" which the officer recognized as "both burning and fresh unburned [cannabis.]" Based on that observation, the officer ordered Kelly to step out of the vehicle. The officer then conducted a search of Kelly's vehicle and discovered a bag containing cannabis and other drug-related paraphernalia. Kelly was arrested, and a subsequent search of Kelly's person revealed various quantities of cocaine and Oxycodone. Kelly was thereafter charged with several offenses based on the evidence found in his vehicle and on his person.

Prior to trial, Kelly filed a motion to suppress the physical evidence found in his vehicle and on his person. That motion was denied on March 29, 2022.

On February 27, 2023, Kelly entered a conditional plea of guilty to one count of possession with intent to distribute cocaine. The State dismissed the remaining charges. Under the terms of his conditional plea, Kelly agreed that his right to appeal would be limited "to the pretrial issues litigated in Baltimore County Circuit Court[.]" That same day, the court imposed sentence.

On March 1, 2023, Kelly noted an appeal in this Court. On July 1, 2023, while Kelly's appeal was pending in this Court, CP § 1-211 became effective. As noted, the law prohibited a police officer from conducting a search of a person's vehicle based solely on the odor of cannabis and rendered inadmissible any evidence obtained in violation of the statute.

DISCUSSION

Kelly argues that, pursuant to CP § 1-211, the evidence obtained during the search of his vehicle must be suppressed because that search was based solely on the odor of cannabis. Recognizing that CP § 1-211 did not become effective until after he was convicted and sentenced, Kelly nevertheless insists that the statute should govern his appeal. First, Kelly argues that this Court should apply the law as it exists today, rather than as it existed prior to his conviction and sentencing, because "an appellate court typically applies a change in criminal procedure to cases that were pending on direct review when that change occurred." Second, Kelly argues that CP § 1-211 should govern this appeal because the statute "satisfies the traditional principles for retroactive application in Maryland" and because "[t]he broad language and legislative history of CP § 1-211 necessarily imply that the General Assembly intended it to apply retroactively."

The State, on the other hand, contends that CP § 1-211 has no application here.^[3]Regarding Kelly's claim that this Court should apply the law as it exists today, the State argues that that general rule applies to the relevant case law, not a statute, particularly where, as here, the statute was enacted after conviction and sentencing. As to whether CP § 1-211 should be applied retroactively, the State notes that all statutes are presumed to apply prospectively unless the Legislature has indicated a contrary intent or unless the statute satisfies the traditional principles for retroactive application. The State argues that neither exception applies here. The State contends, therefore, that CP § 1-211 should be applied prospectively, which would make it inapplicable in Kelly's case.

It is undisputed that the search of Kelly's vehicle was based solely on the odor of burnt or unburnt cannabis. It is equally undisputed that Kelly's subsequent conviction and sentencing all occurred prior to July 1, 2023, which is when CP § 1-211 became effective.

Because Kelly does not challenge the search of his vehicle on any grounds other than that the search violated CP § 1-211, the sole question here is whether the exclusionary remedy provided by CP § 1-211 is applicable to a defendant who is convicted and sentenced before the statute's effective date.

Standard of Review

Questions of statutory interpretation are legal issues that we review de novo. Romeka v. RadAmerica II, LLC, 485 Md. 307, 323 (2023). In construing a statute, we begin with '"the language of the statute itself."' Holmes v. State, 236 Md.App. 636, 65152 (2018) (quoting Seal v. State, 447 Md. 64, 70 (2016)). "'If the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose,' our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction." Agnew v. State, 461 Md. 672, 679 (2018) (further quotation marks and citation omitted) (quoting Harrison-Solomon v. State, 442 Md. 254, 265 (2015)). "If, however, the language is ambiguous, we move on to examine case law, the structure of the statute, statutory purpose, and legislative history to aid us in ascertaining the intent of the General Assembly." Holmes, 236 Md.App. at 652 (quotation marks and citation omitted).

Principles of Retroactivity

"'Retrospective statutes are those acts which operate on transactions which have occurred or rights and obligations which existed before passage of the act.'" United Ins. Co. of Am. v Md. Ins. Admin., 450 Md. 1, 27 (2016) (further quotation marks and citation omitted) (quoting Muskin v. State Dep't of Assessments & Tax'n, 422 Md. 544, 557 (2011)).

"'The question whether a statute operates retrospectively, or prospectively only, ordinarily is one of legislative intent.'" State v. Smith, 443 Md. 572, 588 (2015) (quoting Langston v. Riffe, 359 Md. 396, 406 (2000)). "In determining this intent, '[s]tatutes are presumed to operate prospectively; consequently, absent manifest legislative intent to the contrary, statutes may not be given retrospective or retroactive application.'" Graves v. State, 215 Md.App. 339, 350 (2013) (quoting Gregg v. State, 409 Md. 698, 714 (2009)).

There are, however, exceptions to the presumption that statutes are to be applied prospectively. First, "'a statute effecting a change in procedure only, and not in substantive rights, ordinarily applies to all actions whether accrued, pending or future, unless a contrary intention is expressed.'" Id. (further quotation marks and citation omitted) (quoting Gregg, 409 Md. at 714-15). Second, a statute that has a remedial effect, and does not impair vested rights, can be applied retroactively. Id. at 351.

Regarding the first exception, the Supreme Court of Maryland has explained that "'a law is substantive if it creates rights, duties and obligations,' and procedural if it 'simply prescribes the methods of enforcement of those rights.'" Smith, 443 Md. at 590 (quoting Langston, 359 Md. at 419). In other words, a statute is procedural if the effect of the statute '"is not to impair existing substantive rights, but only to alter the procedural machinery involved in the enforcement of those rights, or the remedies available to enforce them[.]'" Est. of Zimmerman v. Blatter, 458 Md. 698, 729 (2018) (quoting Langston, 359 Md. at 419).

Similarly a statute is remedial, and thus falls within the second exception, if it "'provide[s] a remedy, or improve[s] or facilitate[s] remedies already existing for the ...