Bailey v. State

Orth, J., delivered the opinion of the Court. When Clifton Edward Bailey, also known as Ronald Dale Schreffler, was brought to trial in the Circuit Court for Prince George’s County on 28 April 1970 he pleaded guilty to breaking the dwelling house of Alton Parker Burgess on 6 July 1969 in the daytime with intent to steal goods therein, Criminal Trials 9265. The plea was accepted by the court. The docket entries show that the same day a pre-sentence report of an investigation made by the Department of Parole and Probation was filed and that a sentence of 10 years to commence as of 7 July 1969 was imposed.

The report states it was dictated 16 April 1970 and transcribed 22 April 1970. It had been ordered upon the conviction of appellant on 11 March 1970 by a jury of the breaking of the dwelling of Adam Moroski, Criminal Trials 9329, and gave the State’s version and appellant’s version of that offense only. By order of 28 April 1970 appellant was sent to Patuxent Insti ³⁹⁹ tution for evaluation as a possible defective delinquent. On 4 December 1970 under post conviction procedures he was granted a belated appeal in Criminal Trials 9265 by order of the Circuit Court for Prince George’s County and that appeal, filed on 14 December 1970, is now before us.

The judgment is reversed on appellant’s claim that the acceptance of his plea of guilty was not effective. The record does not disclose that the court had before it any factual basis whatsoever for the plea nor does it affirmatively show, as it must, that appellant waived, under the standard applicable to waiver of constitutional rights, his privilege against compulsory self-incrimination and the right to confront his accusers. Boykin v. State of Alabama, 395 U. S. 238 ; McCall v. State, 9 Md. App. 191 , as modified by Williams v. State, 10 Md. App. 570 . Therefore it was error to accept the plea and the judgment resulting therefrom must be set aside with the grant of a new trial.

In Perry v. State, 11 Md. App. 302 , we held that the failure to advise a defendant that he could be sent to Patuxent Institution for an evaluation as a possible defective delinquent did not make acceptance of his plea of guilty constitutionally impermissible. At 304. We deemed such a consequence to be collateral and thought it “onerous and absurd to expect a judge to explain to each and every defendant the full range of collateral consequences of his plea and, indeed, to anticipate what those collateral consequences are”, quoting Joseph v. Esperdy, 267 F. Supp. 492 (U.S.D.C.,N.Y.1966). Appellant urges us to depart from our holding in Perry on the strength of James v. United States, 388 F. 2d 453 (5th cir. 1968), and Johnson v. United States, 374 F. 2d 966 (4th cir. 1967) in which was discussed Pilkington v. United States, 315 F. 2d 204 (4th cir. 1963) which we cited in Perry for comparison.

James, Johnson 1 and Pilkington ⁴⁰⁰ each involve the Federal Youth Corrections Act, 18 U.S.C.A. §§ 5005-5024 . The Act gives authority to impose its provisions on a youthful offender in lieu of penalties otherwise