Fix v. State

Orth, J., delivered the opinion of the Court. William H. Trescott, Jr., was murdered on 4 February 1965. The appellant was accused of committing the crime and on 15 May 1967 three indictments were returned against him by the Grand Jury for Baltimore County. Indictment No. 32363 charged him with murder in the first degree (1st count), murder in the second degree (2nd count), manslaughter (3rd count), and assault and battery (4th count).

Indictments Nos. 32364 and 32365 related to carrying concealed weapons. The case came on for trial on 27 March 1968 in the Circuit Court for Baltimore County. The appellant pleaded guilty to murder in the second degree charged in the second count of indictment No. 32363. 1 The appellant was examined by the court ⁷⁰⁵ with respect to the plea, his counsel and the Deputy State’s Attorney were heard thereon, an agreed statement of facts was presented to the court and the appellant testified. The docket entries read: “Traverser submits under plea of guilty to the second count of the indictment (murder in the second degree). * * * Case submitted on statement of facts. * * * Verdict: guilty to the second count as confessed (guilty of murder in the second degree).” The appellant was sentenced to 18 years to run consecutively with a sentence to be served which was imposed in Virginia. 2 Stets were entered to the 1st, 3rd and 4th counts of indictment No. 32363 and to indictments Nos. 32364 and 32365 as authorized by Md. Rule 718.

The appellant appealed. He attacks his plea of guilty and claims that he was denied a speedy trial. But if the plea of guilty was freely and intelligently made, the right to a speedy trial, if such was denied the appellant, was waived thereby as such a plea is a conviction of the highest order and waives all procedural objections, constitutional or otherwise, and nom-jur risdictional defects. Ogle v. Warden, 236 Md. 425 .

Even constitutional rights may be so waived, including that to a speedy trial. Cohen v. State, 235 Md. 62 , certiorari denied, 379 U. S. & 844; Goetzke v. Warden, 1 Md. App. 3 . A plea of-guilty will' not be reviewed on appeal if it is properly entered; properly entered has been said to mean that the plea has been made freely, ⁷⁰⁶ voluntarily and with full understanding of its nature and effect and of the facts upon which it is founded. Lowe v. State, 111 Md. 1 .

See State v. Darling, 130 Md. 251 . So the Court of Appeals said in Cohen v. State, supra, at 69: “Maryland has long recognized that when a person pleads guilty, the judgment entered on the plea cannot ordinarily be reviewed on appeal if the plea was made freely and voluntarily with full understanding of its nature and effect, and the judgment properly entered.” But there may be an appellate review to determine if the voluntary nature of a plea of guilty was clearly established prior to the lower court’s acceptance of it and if it was unconditional. Wayne v. State, 4 Md. App. 424 . The appellant argues that his plea of guilty was involuntary “in that it was induced by prior erroneous rulings by the trial court relative to crucial evidentiary matters.” He urges that the judge below 3 erred in denying, upon hearing prior to trial, his motion to suppress all testimony with respect to weapons seized from him at the time of his arrest and to suppress an oral confession made by him.

He asserts that because of these alleged erroneous rulings he had “to decide between standing firm on his constitutional rights, which he feels were violated, or entering into an arrangement with the State whereby he could receive a maximum sentence of eighteen years.” He maintains that “in a society which presupposes innocence, the accused should not have to make such a choice.” The contention of the appellant must fail because the record is devoid of any - evidence to support his allegation that he pleaded guilty because of the rulings on his motions. Even if we would find that the rulings were erroneous as he claims, we could not, on the record before us, determine that the guilty plea was induced' or compelled by the rulings or that he, in fact, made the choice for the reason he now asserts he was obliged to make it. On the contrary the record on its face clearly established, we think, that the plea was made freely and voluntarily with full understanding of its nature and effect, that it was un ⁷⁰⁷ conditional and that the judgment was properly entered. In the circumstances we cannot assume, as the appellant asks us to do, that the plea was otherwise made.

When the case came up for trial the court elicited from the appellant that he was 26 years of age, had been graduated from high school and had completed a year of “electronics school.” The court related to him the charges in the four counts of the murder indictment, ascertained from him that he was represented by the two attorneys then present, William F. Mosner and J. Earle Plumhoff, and asked if he was ready to plead. The transcript of the proceedings then reads : “MR. MOSNER: Your Honor, we wish to plead only to the second count, and that would be a plea of guilty. THE COURT: Is that acceptable to the State ?

MR. EVANS: Yes, sir. If the Court accepts that plea the State will stet Counts 1, 3, and 4 of that indictment and all counts of Indictments 32364 and 32365. THE COURT: Have you made your client aware of the significance of a plea of guilty, Mr. Mosner ?

MR. MOSNER: Yes, your Honor, we have. We have advised our client that in our opinion he cannot be sentenced under the present provisions of the law, but, would be sentenced under the provisions that applied at the time of this offense, which would be a maximum sentence of eighteen years under the plea of guilty to murder in the second degree. * * * THE COURT: * * *. Do you understand what a plea of guilty means, Mr. Fix?

HERMAN M. FIX, JR: Yes, sir, your Honor, I do. THE COURT: Did anybody make you any promises, or threats, or deals to persuade you to plead guilty ? HERMAN M. FIX, JR: No, sir, they did not. THE COURT: Do you realize that without further ado I can forthwith impose a sentence up to eighteen years ? ⁷⁰⁸ HERMAN M. FIX, JR: Yes, sir, I do.

THE COURT: You’re now in the County Jail? HERMAN M. FIX, JR: Yes, sir, I am. THE'COURT: How long have you been there? HERMAN M. FIX, JR: I’ve been incarcerated since October 2, 1967.

THE COURT:' Approximately when were — were you appointed, Mr; Mosner ? MR. MOSNER: Yes, your Honor. THE COURT: Approximately when were you two gentlemen appointed ?

MR. MOSNER: Very shortly after that, your Honor, Judge Jenifer appointed us. MR. PRUMHOFF: October 6th I have.

THE COURT: Have you had ample time to thresh all this out with your client ? MR. MOSNER.: Your Honor, I believe we have. We have had pretrial motions heard by Judge Turn-bull and ruled on, we have discussed the case time and again with Mr. Fix.

I feel that he is an intelligent person who fully understands the significance of the plea and I do feel that it is made of. his own volition. THE COURT: It’s true it’s a free and voluntary plea on your part, Mr. Fix ? HERMAN M. FIX, JR: Yes, sir, it is. THE COURT: Are you satisfied with your court- ¡ . appointed counsel ?

HERMAN M. FIX, JR: Yes, sir, I am. THE COURT: All right, be seated. Tell me what this case — how did it develop ? MR.'EVANS: (Deputy State’s Attorney) Well, first ,of all, before we get into that, your Honor, I ■. don’t want to — I want the record clearly to show that this is a matter of plea bargaining as approved by the American Bar Association.

Now, when Fix has said that nobody has made any deals, the fact of the matter is that the State has agreed with defense counsel that in the event of ⁷⁰⁹ a plea on the second count the State will stet the balance of these counts. This seems fairly obvious from the activity here this morning. THE COURT: Certainly. MR.

EVANS: And I find nothing wrong with it, but I don’t want the record to— THE COURT: I don’t either. As long as it’s free and voluntary on this one count, and that’s all I’m concerned with, provided, of course, the gentleman has had competent advice from competent lawyers, and I’m persuaded that he’s gotten that, certainly in this case. I have a high regard, of course, for both counsel. What are the facts ?” The facts of the crime were then related by the State.

The deceased, a manager of a package goods liquor store, was shot in the back and chest by the appellant during the course of a robbery and subsequently died. The appellant was apprehended five days later in Virginia. He had held up a filling station outside of Norfolk, Virginia, fled in an automobile, was pursued by the police and captured. A .22 caliber pistol, proved to be the murder weapon by ballistics comparison