Erbe v. State

Orth, C. J., delivered the opinion of the Court. STATEMENT OF CASE RONALD ASHTON ERBE, born 23 November 1947, was arrested, apparently on 26 September 1968, for breaking the dwelling of Bruce Reed on 15 August 1968 in the daytime with intent to steal personal property. On 30 September, after a preliminary hearing in the Municipal Court of Baltimore City, he was bound over for action by the Grand Jury, and committed to jail in default of $1000 bail. On 2 October he posted the required bail through an insurance company and was released.

He and one Owen R. Peyton were presented on 9 October and indictment 6251Y, charging them jointly with the breaking and related offenses, was filed on 21 October in the Criminal Court of Baltimore. He was arraigned on 31 October in that court, 1 and tried on 25 June 1969. He was convicted at a bench trial of breaking the dwelling with intent to steal (1st count) and grand larceny (3rd count). 2 On 1 July 1974 concurrent sentences of 3 years were imposed under each count. The execution of the sentences was suspended, and he was placed on probation in the care of the Maryland Division of Parole and Probation for 3 years from 1 July 1974, restitution to be made and court costs to be paid through the Probation Department.

He noted an appeal on 9 July 1974. ³⁷⁷ THE FACTS The posture of the appeal is such that the only facts which are material concern the delay which occurred between the guilt stage and the penalty stage of the proceedings. A transcript of the guilt stage of the proceedings is not included in the record submitted to us. The docket entry under date of 25 June 1969 reads: “Release c/o Attorney Stanley S. Cohen pending Disposition.” The next entry is under date of 5 March 1973: “Failed to appear for Disposition. Bench Warrant (Pink) issued.” An entry on 19 December 1973 states: “Bench Warrant (Pink) returned.

Cepi in Jail.” On 16 January 1974 the appearance of Kenneth A. Reich, Esq. and Robert M. Bell, Esq. was entered for Erbe. They moved to dismiss the indictment. There is a transcript of proceedings had on that date. According to the court the motion was made in chambers that morning 3 and sought “dismissal of the sentencing by reason of delay in same.” It seemed to the court “that it is necessary that [it] take some testimony in that regard. . . .” The court thought it ought to hear from Mr. Cohen, on the record, “as to just what he did, if anything, to get in touch with his client, who had been released in his custody on June 25, 1969.” Mr. Cohen testified and was asked to describe the contact he had with Erbe from the date of conviction to early March 1973.

He said he had no contact with his client. He had copies of two letters sent Erbe but that did not mean that only two letters were sent. The Erbe file had been closed and stored in the basement of the attorney’s office building. “And I would not have, in January, February, or March of 1973, have pulled the file in order to have sent a letter.” The attorney made no telephone calls to Erbe because he was “never able to get a phone number for Mr. Erbe. I was unsuccessful in all my attempts to contact him.” Although he had some brief ³⁷⁸ contact with Erbe’s father prior to trial, he did not attempt to contact the father in March 1973 because “he was informed prior to the time of trial, by the attorney who originally referred the case to me through his parents, that his parents were no longer going to be responsible for representation and I attempted to strike my appearance.” 4 The attorney had an address which Erbe had given him. “I assume it was a good address, although as I said before, I never received any letters back saying that he had moved or that there was a change of address.

And I assumed that when I sent the leters, that he received them.” The address was 212 South Gilmore Street, Baltimore, Maryland 21223. It was stipulated that Erbe was living at 212 South Gilmore Street in 1969 at the time of his convictions. He moved from that address to several other addresses in Baltimore City, but left forwarding addresses with the Post Office for each address. The stipulation, in the words of Mr. Reich, continued: “The next address he lived at, after Gilmore, I believe was Arlington Avenue; that was with his mother.

Then he went to an address on Sorrell, S-o-r-r-e-1, I believe. I’m not sure of the spelling, Sorrel Road; where he lived with his father. He then went to a Ravenwood Avenue address, a Smallwood address, a McHenry Street address, and finally an address on Relcrest Road. . . where he did ... leave a forwarding address.” In denying the motion, the court explained how the failure to sentence Erbe had come to light: “The matter would have rested forever in the indefinite stage of having the defendant released in the custody or his attorney, except that on inquiry by the staff of this Court back in January, 1973, it was discovered that the case had not been closed. The Criminal Assignment Office and the State’s Attorney’s Office were contacted as to why the matter had not been set down for disposition.

The State’s Attorney’s Office and the Criminal Assignment Office each stated, in effect, that it was ³⁷⁹ not the responsibility of their office to set the case in for disposition or scheduling for further hearings. Accordingly, this Court initiated the matter and had a summons sent to the defendant at 212 South Gilmore Street. The case was set in for March 5, 1973. The summons, according to the sheriffs return, had been served at 212 South Gilmore Street.

Mr. Cohen appeared at that hearing on March 5, 1973, and stated substantially what he has stated on the stand today; that he tried to communicate with the defendant, but did not know where he was, and had not heard from him in all that time. Accordingly, a warrant was issued, and as a result, in late December of 1973, the defendant was placed in custody.” How Erbe was apprehended appeared from the testimony of Herbert S. Wilcox, Operations Director of Baltimore Goodwill Industries, testifying in behalf of Erbe in mitigation of punishment. Erbe was employed by Goodwill as a truck driver from about the middle of January 1973 to the sixth of February 1973. He left to take a job elsewhere at higher pay — “we encourage our employees to seek better jobs when they’re ready.” About a week before Christmas of 1973 he re-applied for his former job and was personally interviewed by Wilcox. “Part of our normal hiring process with a truck driver is that we must get a D.M.V. record and also police clearance. . .

So we gave him the form for police clearance, and asked him to get those accomplished and return the next day.” He did not return. Wilcox found out later that “there was an outstanding charge against him.” The court noted that in the light of Wilcox’s testimony, it was on inquiry of Erbe concerning his record at the Police Department that he was placed in custody. The court requested a pre-sentence investigation. Pending receipt of the report, Erbe was released in the custody of his ³⁸⁰ attorney, Mr. Reich.

The report of the investigation was filed on 15 February 1974. Sentence was imposed on 1 July. 5 ISSUES FOR DECISION Erbe argues that the delay between conviction and sentence violated his constitutional rights to a speedy trial and his legal right to be sentenced without unreasonable delay bestowed upon him by Rule 761 a. Speedy Trial Under the Sixth Amendment to the Constitution of the United States, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” Under Article 21 of the Maryland Declaration of Rights, “in all criminal prosecutions, every man hath a right... to a speedy trial by an impartial jury. . ..” The “speedy trial” right under the Maryland Constitution' is “coterminous with its Federal counterpart” and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21. State v. Lawless, 13 Md. App. 220, 225 .

It is correct, as we said in Sands v. State, 9 Md. App. 71, 79 , quoting 5 Wharton’s Criminal Law and Procedure (1957) § 2176, p. 370, that “A criminal case is not complete and the case is not disposed of until sentence has been pronounced.” But it does not necessarily follow, as Erbe would have it, that the constitutional guarantee of a speedy trial applies to the penalty stage of the trial. We pointed out in Sands , at 79: “Although ‘conviction’ and ‘sentence’ are commonly used synonymously, they are legally distinct. Conviction is the determination of guilt of an accused; sentence is the judgment entered thereon.” Whether the penalty stage of the trial is encompassed within the speedy trial guarantee does not seem to have been presented to the Maryland appellate courts before. Nor has the Supreme Court of the United States definitely answered ³⁸¹ the question.

In Pollard v. United States, 352 U. S. 354 , the Court, assuming arguendo that sentencing was part of the trial, found no violation of the Sixth Amendment because in the circumstances there the delay was not “purposeful or oppressive” and because the sentencing error was promptly remedied when discovered. At 361. See Brady v. Superintendent, 443 F. 2d 1307 (4th Cir. 1971). There are cases in other jurisdictions which conclude that the speedy trial guarantee attaches to the sentencing process.

Commonwealth v. Ashe, 368 Pa. 211 , 82 A. 2d 244 (1951); People v. Brown, 260 Cal.App.2d 745 , 67 Cal. Rptr. 288 (1968); Juarez-Casares v. United States, 496 F. 2d 190 (5th Cir. 1974), so hold. See United States v. Sherwood, 435 F. 2d 867 (10th Cir. 1970). We do not, however, find them persuasive.

Of them, only Brown makes any attempt to explain the reasoning behind the conclusion. And in Brown , the California court simply quoted from another case that the guarantee of a speedy trial protects the accused against prolonged imprisonment. None of the cases refers to any direct support for its conclusion. Ashe cites no support whatsoever; Brown cites analogous support; Juarez cites only Pollard and several federal cases subsequent to that decision which simply assumed that speedy trial rights applied to the sentencing situation.

See Brooks v. United States, 423 F. 2d 1149, 1151 (8th Cir. 1970). Finally, the statements in Ashe and Brown have been seriously eroded by subsequent decisions. See Commonwealth v. Giovengo, 188 Pa. Super. 220 , 146 A. 2d 629 (1958); Commonwealth v. Stewart, 221 Pa.

Super. 1 , 289 A. 2d 126 (1972); People v. Taylor, 14 Cal.App.3d, 328 , 92 Cal. Rptr. 198 (1971); People v. Valdespino, 15 Cal.App.3d, 207 , 93 Cal. Rptr. 142 (1971). In Stewart, 289 A. 2d at 128 , the Pennsylvania court found that “[n]o express authority therefore exists for the conclusion that the federal constitutional right to a speedy trial incorporates the right to be sentenced on a timely basis.” The court decided the case on due process grounds although it did note that many of the same speedy trial considerations expressed in Smith v. Hooey, 393 U. S. 374 and Klopfer v. North Carolina, 386 U. S. 213 were present in its case. 289 A. ³⁸² 2d at 129.

In Valdespino , the California court was faced with a situation where imposition of sentence was suspended and the defendant was placed on probation for two years. Ten months later he violated his probation. A hearing on his probation violation was not held until more than 2 years after his guilty verdict. His probation was extended for another year.

He claimed that his right to a speedy trial had been violated because his original trial was not completed until he was sentenced for his probation violation. The court rejected this contention. It distinguished Brown where there had been neither sentence nor grant of probation and thus no judgment or final appealable order. It found that the “trial” did not continue beyond the entry of a judgment or other final, appealable order — the grant of probation.

The court, however, did not stop there. It noted that “[ojrdinarily the trial ends with the verdict or other decision of the trier of fact.” It listed four considerations which the speedy trial right was designed to protect and found them inapposite with regard to the post conviction situation, 93 Cal. Rptr. at 114-145: “We note also that section 1381 6 is a legislative implementation of the constitutional right of one charged with crime to a speedy trial. As pointed out in Barker v. Municipal Court, 64 Cal. 2d 806, 812-813 , 51 Cal.

Rptr. 921 , 415 P.2d 809 , the purpose of the Constitution and of section 1381 is: (1) to protect the accused against prolonged imprisonment, (2) to relieve him of the anxiety and public suspicion attending an unresolved criminal charge, (3) to prevent his exposure to the hazards of a trial after a great lapse of time, with witnesses unavailable or their memories dulled, and (4) to avoid the possibility of concurrent sentences being denied him. ³⁸³ These considerations seem wholly inapplicable to Valdespino. His guilt on the earlier Santa Clara County charge has been conclusively determined. The anxiety and public suspicion attending an unresolved criminal charge and a lapse of time with attending problems of missing or forgetful witnesses could not concern him. Nor could he be prejudiced by the possibility of prolonged imprisonment or denial of the possibility of concurrent sentences.” Brooks v. United States, supra, and Alford v. State, 294 N.E.2d 168 (Ind. 1973), make an attempt to analyze the applicability of speedy trial considerations to the period between conviction and sentencing.

Both indicate non-applicability. In Brooks , at 1152-1153, the 8th Circuit noted that “the sensitive concerns which surround the necessity of a speedy trial on the merits of a case generally are not applicable when the delay is between conviction and sentencing. There exists here no concern ovei ‘oppressive incarceration’ before trial, ‘anxiety’ over public accusation before trial, or any ‘impairment’ over petitioner’s ability to defend himself.” In Alford , the defendant contended that certain Indiana Rules of Criminal Procedure and the cases relating to speedy trial were applicable to sentencing. The court, after discussing the reasons for necessity for a speedy trial, rejected this contention, 294 N.E.2d at 170 -171: “Once the defendant had pled guilty and is convicted of the offense, the possibility of lost evidence or fading memories of witnesses is no longer a factor.

Although Alford had not been sentenced, his right to file a motion to withdraw his guilty plea or to file a petition for post conviction relief under P. C. 1 of the Indiana Rules of Procedure were in no way impaired.” We call attention to another line of cases in which state courts have voided sentences imposed after a substantial delay, not on speedy trial grounds, but apparently under due process principles, on the basis that the sentencing court lost its jurisdiction because of an unreasonable delay. See People ³⁸⁴ v. Ruddell, 46 Ill. 2d 248 , 263 N.E.2d 48 (1970); People v. Fay, 10 N.Y.2d 374 , 179 N.E.2d 483 , 223 N.Y.S.2d 468 (1961) and cases cited therein. In Fay , the defendant had pleaded guilty in January of 1953 but had not been sentenced until November of 1959. The question before the court, undecided in New York at that time, was “Does an inordinately long and unexplained delay