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REPORTED

IN THE COURT OF SPECIAL

APPEALS

OF MARYLAND

No. 2634

September Term, 1999

ROLAND LOUIS FENWICK

v.

STATE OF MARYLAND

Eyler, Adkins, Fischer, Robert F. (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: November 8, 2000

A jury in the Circuit Court for St. Mary's County convicted Roland Louis Fenwick, appellant, of second degree rape and

fourth degree burglary, and acquitted him of first degree rape, battery, first degree burglary, and third degree burglary.

Appellant received consecutive sentences -- twenty years for the second degree rape felony, with ten years suspended in favor of five years probation, plus three years for the fourth degree burglary misdemeanor, with all but one year suspended.

Appellant's sole contention on appeal is that the trial court erred in "imposing separate, consecutive sentences for second degree rape and fourth degree burglary." affirm the judgments. FACTS AND LEGAL PROCEEDINGS The prosecuting witness testified that in August 1996, she had broken off her five year relationship with appellant, and changed the locks to her house. In the early morning hours of We find no error, and

September 14, 1996, she refused to answer the telephone when the caller ID indicated two calls from appellant. awakened from her sleep by appellant standing Later, she was in her room,

pulling off her bedcovers.

She told him to leave, picked up the After a

telephone, and said she was going to call the police. struggle, appellant raped her.

Appellant admitted the estrangement, but testified that he had maintained daily telephone contact with the victim. He

stated that he went to her house that night after she paged him. When she didn't answer his knocks at the door or bedroom window, appellant removed a window screen and climbed in. Appellant

claimed that although they initially argued, they eventually had consensual intercourse. DISCUSSION Appellant's challenge to his fourth degree burglary sentence is predicated upon his comparison of the first degree rape

statute with the second degree rape and fourth degree burglary statutes. Maryland Code (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Article 27,1 section 462 provides that "[a] person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and [inter alia]. . . [t]he person commits the offense in connection with burglary in the first, second, or third degree." The crime is a felony for which the maximum penalty is life imprisonment. Section 463 provides that "[a] person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person, [inter alia,] "[b]y force or threat of force

All statutory references article of the Maryland Code. 2

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against the will and without the consent of the other person." The crime is a felony with a maximum penalty of 20 years imprisonment. Section 32 provides that a person is guilty of fourth degree burglary inter alia if the person "break[s] and enter[s] the dwelling of another." The crime is a misdemeanor with a maximum penalty of three years imprisonment. The difference between burglary in the fourth degree and burglary in the first, second, or third degree is that unlike the latter felony offenses, fourth degree burglary is a misdemeanor that does not require proof, at the time of the breaking and entering, of an intent to commit another crime inside the dwelling. See

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