Blake v. State

Per Curiam. Appellant was indicted in the Circuit Court for Prince George’s County on two indictments charging him with storehouse breaking, larceny, and receiving stolen goods in each indictment. He was tried by the court, sitting without a jury, on April 15, 1965, and was found guilty on the first and second counts of each indictment and sentenced to the Maryland Penitentiary for a term of ten years on each of the four counts, to run concurrently, same being Criminal Trials Numbers 5497 and 5498. ⁴⁹⁴ ■On May 2, 1966, after the decision of the Court of Appeals in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965) and companion cases, appellant’s court-appointed counsel filed a motion to quash the indictments in Numbers 5497 and 5498. On 'June 3, 1966, appellant was reindicted on the same charges in Criminal Trials Numbers 6340 and 6341.

On June 23, 1966, ■appellant was taken into open court and the indictments returned in Numbers 5497 and 5498 were quashed. Although he ■was represented by counsel, his counsel was not present when the court granted his motion to quash. ' ■ ' On August 4, 1966, appellant was tried in ¡the Circuit Court ■for Prince George’s County by the court, sitting without a jury, in Criminal Trials Numbers 6340 and 6341 for storehouse breaking, larceny, and receiving stolen goods. In the-presence of his ■court-appointed counsel, he entered a plea of guilty to the first count, storehouse breaking, in Number 6341, the State aban•■doned the second and third counts, and nolle prossed the three «counts in Criminal- Trials Number 6340. The court then sentenced appellant to ten years in the Maryland Penitentiary to '«begin as of April 15, 1965.

Appellant raises three contentions on this appeal: 1. That it was prejudicial and denial of due process to permit appellant to go before the court to be advised of rights under the Schowgwrow decision, without 'counsel present; and on the same occasion have the indictments under Criminal Trials Numbers 5497 and 5498 quashed, without counsel present. 2. That appellant was put in double jeopardy by the court’s acceptance of the guilty plea and sentencing of the appellant in Criminal Trials Number 6341 since his sentences under Criminal Trials Numbers 5497 and 5498 had not been properly set aside. ■3. That the plea of guilty in Criminal Trials Number 6341 was not voluntarily and freely made as it was made pursuant to inducement made by the State.

I Appellant first contends that the absence of counsel at the ^hearing on the motion to quash the prior indictments on June ⁴⁹⁵ 23, 1966 was a deprivation of appellant’s right to counsel at all stages of the proceedings. Appellant relies upon the unreported case of Driver, Watson and Skinner v. State, No. 78 September Term 1965, Maryland Court of Appeals, in support of his contention that counsel’s presence was necessary. There the Court of Appeals filed an order to remand for further proceedings, in which it said: “That the above entitled appeal be remanded to the lower court for further proceedings, so that the appellant herein may be brought into open court with counsel present, either privately engaged or court-appointed, and with a court reporter present for the purpose of ascertaining whether the appellant desires to avail himself of the relief afforded by the rulings handed down by this Court in the decisions hereinbefore referred to, or whether, in the alternative, elects to waive any objections now available to him as a result of the referred to decisions.” We find that the directive as set forth in Driver does not apply to the facts here. In the instant case, appellant’s counsel had previously filed a written motion to quash the indictments because they had been returned by an illegally constituted Grand Jury and the granting of the motion by the court was a mere formality, in no way harmful or prejudicial to appellant’s rights.

The Driver directive sets forth a procedural formula to be followed when the defendant has not raised a challenge and is thus entitled to be duly and fully informed of his rights in order to allow him to make an intelligent and knowing election of whether to take advantage of his rights under the Schowgurow decision or knowingly waive these rights. We agree that an accused is entitled to counsel at every critical stage of the proceedings against him. Hoskins v. Warden, 235 Md. 613 , 200 A. 2d 688 (1964) ; DeToro v. Pepersack, 332 F. 2d 341 (1964). Here, however, the appellant made his election under Schozw gurozv when his counsel filed the motion to quash the prior indictments under which he had previously been convicted.

The granting of his motion by the court resulted in no prejudice to appellant as it had the effect of nullifying all subsequent pro ⁴⁹⁶ ceedings on the indictments under which he had previously-been convicted, including his first trial. Smith v. State, 240 Md. 464 , 214 A. 2d 563 (1965). Since the accused was not prejudiced or potentially prejudiced by the granting of his motion, the fact that his counsel was not present did not amount to denial of due process. It may be noted that he was not called upon to plead to the new indictments.

Since this was not a critical