BERLIN — The Maryland Court of Special Appeals this week denied an appeal filed by a Berlin man sentenced in 2011 to 24 years in prison for drug distribution charges after the defendant claimed his original sentence was illegal.
In January 2011, Mark Erbe, now 57, of Berlin, was arrested on drug distribution charges after selling oxycodone to an undercover Ocean City Police narcotics officer in a vehicle at the Wawa convenience store in West Ocean City. Erbe later entered an Alford plea to a distribution of oxycodone charge and because he had prior convictions for distribution, he was sentenced to 24 years in prison.
On January 31, 2011, an OCPD narcotics detective made arrangements to purchase oxycodone from Erbe at the West Ocean City convenience store. The detective arrived at the appointed time and place, entered a vehicle in the parking lot and completed the transaction, giving the money to Erbe while accepting the drugs from another individual in the vehicle.
At his original trial, Erbe argued he had not made the transaction because he didn’t officially hand over the drugs to the undercover officer, and that he merely accepted the money. When the court dismissed that attempt, Erbe entered an Alford plea to distribution of CDS. Because of his lengthy record of prior drug distribution charges, prosecutors sought enhanced penalties and the judge ultimately sentenced Erbe to 24 years.
When Erbe’s attempt to correct what he deemed was an illegal sentence was denied at the Circuit Court level, he filed an appeal with the Maryland Court of Special Appeals. Erbe appealed the Circuit Court’s decision not to correct an illegal sentence on several grounds. He argued he was not a subsequent offender subject to the enhanced penalty because he had not committed a subsequent offense, even though he had a record of priors dating back three decades. He also argued the trial court never acknowledged he was subsequent offender prior to sentencing although his past was discussed at length according to the trial transcripts.
Erbe also argued in his appeal the prosecution never provided adequate notice of the state’s intention to seek an enhanced penalty based on his prior record. However, the Court of Special Appeals this week opined Erbe had failed to prove any of the pillars of his appeal.
“As the statute clearly provides that the enhanced penalty may be added for any previous conviction, both of the appellant’s convictions that were included on the state’s notice of its notice to seek an enhanced penalty could properly serve as the basis for doing so,” the opinion reads. “The appellant’s sentence was, therefore, not inherently illegal, and the court committed no error in denying the motion to correct an illegal sentence.”