Gatewood v. State

Powers, J., delivered the opinion of the Court. ⁴⁵² Appellant was indicted on October 6, 1970 by the grand jury for the City of Baltimore in four counts, charging that he did on September 16, 1970: 1. Unlawfully sell a lottery ticket to an unknown person. 2. Unlawfully keep a room at 4115 Groveland Avenue for the purpose of selling lottery tickets. 3. Unlawfully and knowingly permit a room at 4115 Groveland Avenue, of which he was the owner, to be used as a place for selling lottery tickets. 4.

Unlawfully have in his possession certain lottery paraphernalia. To the indictment was attached an addendum warning appellant that he had formerly been convicted of a violation of the lottery laws, that the State intended to prosecute him as a subsequent offender, and of the maximum punishment if he should be convicted of the current offense and found to be a subsequent offender. See Code, Art. 27, § 366, Gatewood v. State, 244 Md. 609 , 224 A. 2d 677 , Ware v. State, 13 Md. App. 302 , 283 A. 2d 177 , Maryland Eule 713. Upon arraignment before Judge Basil Thomas in the Criminal Court of Baltimore on September 21, 1971, appellant pleaded not guilty, waived a jury trial and asked to be tried by the court.

Appellant stipulated as to the State’s case, reserving the right to take the stand and to call witnesses. He elected to reserve the issue of whether he was a subsequent offender until the determination of the main case. The Assistant State’s Attorney outlined to the court what the testimony of the State’s witnesses would be if they were called. Appellant moved for a judgment of acquittal.

The motion was denied. No further evidence was offered. The court announced that the case would be held sub curia. Three days later when the case was called for further proceedings, Judge Thomas entered a finding of guilty under the fourth count of the indictment.

Appel ⁴⁵³ lant filed a motion for a new trial and asked to be heard at that time. The motion was heard and denied. The State then called up the addendum, to which appellant pleaded “not guilty”. A statement of facts concerning the prior conviction was given to the court by stipulation, and the court determined that appellant was a subsequent offender.

Judge Thomas then afforded the opportunity to make a statement and to present information in mitigation of punishment. Maryland Rule 761 a. In the course of his statement, appellant’s counsel said: “Now, in my discussions with the State’s Attorney on this case — first of all, there hasn’t been any plea bargaining as such, but we did go on an agreed statement of facts, and it was my understanding that they would not press for a jail term in this case. I understand this is [not] binding on the Court, but in our discussions, however, I want the Court to know about this.” The Assistant State’s Attorney present on that occasion was not the same Assistant who had been present at the trial itself.

The following then occurred: “MR. SIMONSON: Your Honor, Mr. Briscoe said that he was under the impression that the State was not going to press for a jail sentence. To be perfectly candid with the Court, I know nothing about this. I prefer to withhold any recommendation until I have an opportunity to consider with my colleague who handled this case— THE COURT: Well, it was a not-guilty plea anyway, and it would seem to me that wouldn’t be binding on the Court.

There wasn’t a guilty plea in this case where the defendant was induced to plead guilty because there were some promises made to him. ⁴⁵⁴ MR. BRISCOE: This isn’t what we are claiming. THE COURT: What are you claiming, Mr. Briscoe? MR.

BRISCOE: I am claiming previously what I said— THE COURT: What is that? MR. BRISCOE: —that we had agreed to go on a statement of facts in this case, and the State — I had discussed this with Mr. Fisher, the State’s Attorney who tried the case. I wouldn’t stand here and tell the Court I did if I didn’t.

And it was my impression that if we went on the statement of facts and got the case over with, that they would not press for a jail sentence, and I am simply giving the Court that information for what it is worth. THE COURT: That does not mean — in other words, they wouldn’t make any statement at all with respect to a jail sentence? MR. BRISCOE: Right — this is true.

MR. SIMONSON: As I say, I know nothing about that, but I will stand mute, anyway.” The court requested information concerning appellant’s background. After a recess this was supplied by Mr. Simonson, including the following: “Your Honor, also in 1970, or early ’71, I’m not sure of the exact date, the defendant was found guilty of perjury. That case is on appeal, however.

MR. BRISCOE: Yes, sir, it is on appeal. MR. SIMONSON: In front of Judge Prendergast — found guilty of perjury in front of Judge Prendergast.

MR. BRISCOE: First of all, that case is on appeal, your Honor. I understand there is a very good possibility — it is being argued before the Special Court of Appeals. ⁴⁵⁵ THE COURT: It is on appeal? If it is a good possibility or bad, we will find out.” 1 After a further statement by appellant’s counsel in mitigation, Judge Thomas imposed a sentence of four years under the jurisdiction of the Department of Correctional Services and a fine of five thousand dollars and costs.

On the same day an appeal was entered. While this appeal was pending, appellant filed in the lower court on October 20, 1971, a paper which he titled, “Motion In Arrest Of Judgment And For Appropriate Relief Or For Reconsideration Of Sentence”. This motion came to the attention of Judge Thomas on November 11, 1971. The State moved to dismiss on the grounds that the Rules do not provide for any such motion and that because an appeal was pending the court had no further jurisdiction in the case.

After allowing appellant’s counsel wide latitude in arguing for relief from the conviction and sentence, Judge Thomas said: “Let me say that I think that your motion for arrest of judgment and appropriate relief and for reconsideration of sentence, all being filed after the appeal has been taken, is not seasonably filed.” The court further said: “I am totally unimpressed with this motion, and I say that I don’t think it is a proper one to file at this time when an appeal is pending, but even if it is proper, I find no basis for it, and would certainly deny the motion.” We agree that the motion was not properly before the lower court, and the proceedings on it will not be considered in this appeal. ⁴⁵⁶ Appellant asks us to consider: 1. Whether he was denied due process and equal protection of the laws by having the court advised prior to trial that he was to be tried also on an addendum, thereby prejudicing his right to a fair trial. 2. Whether he was denied due process and equal protection of the laws by foregoing valuable rights in contemplation of a recommendation of a fine only, where Assistant State’s Attorneys then failed to make such recommendation and denied that there had been negotiations. 3. Whether the evidence in this case was sufficient to support the conviction. 4.

Whether he was denied fundamental due process and equal protection of the laws when the court was informed at his sentence hearing that appellant had been convicted of perjury. 1. The contention that appellant’s right to a fair trial was prejudiced because the judge was made aware, before trial, that there was a subsequent offender addendum attached to the indictment, is entirely without merit. Maryland Eule 713 permits the defendant, upon arraignment, to elect to have the subsequent offender issue determined after conviction. In the absence of such an election the issue is to be determined concurrently with the issue of guilt of the current offense.

We cannot see how the pendency of two accusations, neither yet proved, could prejudice the mind of a trial judge when the pendency of one accusation would not. State v. Hutchinson, 260 Md. 227 , 271 A. 2d 641 . Nor can we see how a defendant could make the required election without the knowledge of the court. Appellant’s right to a fair trial was not prejudiced. 2.

Appellant’s second contention must be based upon a misreading of the transcript, and is groundless. What ⁴⁵⁷ we have quoted above shows that when appellant’s counsel asserted an “understanding” with a different Assistant State’s Attorney, the Assistant then present, far from denying that there had been “negotiations”, merely said that he knew nothing about them, and wanted to confer with his colleague, but thereafter said, “I will stand mute, anyway.” He did so. He made no recommendation. Appellant now attempts to pervert what he described below as an “understanding that they would not press for a jail term” into an understanding that the State would recommend a fine only.

He made no such assertion below, and the record shows his present position to be erroneous. Even if we assume that the “understanding” asserted below was in fact reached, and that fairness requires that a promise made under such circumstances must be fulfilled