Corcoran v. State

MOYLAN, Judge. The appellant, King Corcoran, was originally found guilty in the Circuit Court for Baltimore City of two criminal violations involving the home improvement law. Judge Carl W. Bacharach struck the finding of guilt under the provisions of Art. 27, § 641 and placed the appellant on supervised probation for a period of one year. The appellant was ordered to pay restitution in the amount of $2,000 within 60 days and also to pay court costs.

On August 9, 1985, the appellant was found guilty of having violated the terms of his probation by Judge Robert I.H. Hammerman. Judge ²⁵⁴ Hammerman struck the probation before judgment and ordered the appellant to serve a term of three months imprisonment. Upon this appeal, the appellant raises two contentions: 1) That Md.Rule 4-346 was violated when the probation revocation hearing was held before a judge different from the one who had imposed the original sentence; and 2) That Judge Hammerman abused his discretion in revoking the probation because the appellant’s failure to pay restitution was not willful. The short answer to the appellant’s first contention is that it is an afterthought.

When the revocation hearing was convened by Judge Hammerman and through the entire course of that hearing, the appellant made no remote objection to the fact that it was Judge Hammerman and not Judge Bacharach upon the bench. Nothing has been preserved for appellate review. New principles are more basic to appellate review than that the reviewing court “will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court.” Md.Rule 1085. In Medley v. State, 52 Md.App. 225, 230-231 , 448 A.2d 363 (1982), Judge Wilner thoroughly discussed the long history and enduring value of this procedural requirement of contemporary objection.

He concluded, at 52 Md.App. 231 , 448 A.2d 363 : “It is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorously enforced. Even errors of Constitutional dimension may be waived by failure to interpose a timely objection at trial.” The appellant claims that he is exempted from the otherwise foreclosing effect of Maryland Rule 1085 by Walczak ²⁵⁵ v. State, 302 Md. 422 , 488 A.2d 949 (1985). He reads Walczak far too broadly. In holding that an illegal sentence may be reviewed on appeal even if not objected to below, the Court of Appeals was very careful to limit the exemption to a situation where the sentence was illegal in itself, a sentence “not permitted by law.” 302 Md. at 427 , 488 A.2d 949 .

The Walczak opinion was not dealing with alleged procedural flaws in the sentencing hearing itself. Both the literal holding of Walczak and the reasoning behind it were well spelled out by Judge Eldridge, at 302 Md. 427 , 488 A.2d 949 : “We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially