Jordan v. State

Orth, J., delivered the opinion of the Court. The questions presented on this appeal relate to the penalty stage of the trial of the appellant in the Circuit Court for Prince George’s County and not to the guilt stage. 1 Two indictments had been returned against the appellant and pleas of not guilty were entered on arraignment. When the case came up for trial before Judge Perry G. Bowen, the appellant represented to the court that he desired to withdraw his plea of not guilty to the 1st count of indictment No. 7506, charging the unlawful possession of a stolen motor vehicle, proscribed by Md. Code, Art. 66El, § 72, and to plead guilty thereto. The court examined him at length, explaining the charge, the burden of the State in proving the offense under a not guilty plea, the effect of a plea of guilty and the maximum sentence that could be imposed.

The court then asked, “Is the reason that you desire to plead guilty because you are guilty of this crime and not for any other reason?” The appellant replied, “That’s right.” The court then ⁵²² directed that the plea of guilty be entered. 2 The appellant does not claim that his plea of guilty was not freely and voluntarily made with a full understanding of its nature and effect and of the facts upon which it was founded. We think that the record clearly shows that the plea was freely and intelligently made and that it was properly entered. See Biles, Jr. v. State, 230 Md. 537 ; Roberts v. Warden, 221 Md. 576 ; Lowe v. State, 111 Md. 1 . The appellant asked to be sentenced immediately but the State requested a presentence investigation.

The court said it was reluctant to sentence without such investigation and deferred sentencing pending the report. The court clerk asked if the report was “to come back to” Judge Bowen and Judge Bowen said: “No, it need not come back to me to delay sentence. If necessary it may return to any judge.” No objection, exception or comment was made by the appellant or his counsel to this reply. The appellant requested to be heard.

He said: “I don’t care for any presentence” and asked if he could give his reason — “it is a little lengthy.” The court said: “I don’t care if it takes the rest of the day. You are going to be around a long time, I am afraid, so go ahead and have your say.” The court asked the appellant if it would be easier for him to talk if he sat down, saying: “You may sit down or stand up as you please. Just tell me what you want me to know.” The appellant said he was “bad misunderstood. Probably my extensive criminal record and I have defective speech.

This criminal record is haunting me and it is rather misleading.” The substance of his remarks was that he felt “under all the circumstances I should be given probation”; he would lose his job, he had ⁵²³ payments to make on purchases made on the installment plan, he would lose $32 a day, six days a week if he stayed in jail. The court explained that if he had the record he indicated he would have to serve time in prison but that the presentence investigation might disclose circumstances resulting in a lesser sentence than 5 years. It asked: “Would you like to have five today or would you rather wait * * * in the hopes that you might get three later on?” On this choice the appellant preferred to wait but said he wanted to explain to the court. The court said: “If you get me I will listen to your explanation.

I won’t vouch for anyone else.” The docket entries show that the preseutence investigation was ordered the day the plea was entered, 7 February 1968, and that the report was filed in open court on 22 March 1968. On the day the report was filed the appellant came before Judge Roscoe H. Parker for sentencing. The transcript of the sentencing proceedings shows that there was first a discussion at the bench off the record. Then the State told the court that it had received “the file in this case,” and stated that the current case “is nothing compared to his record of homicide.

One armed robbery and many other miscellaneous things that take up a few pages.” The State noted that the appellant had “been in and out of Saint Elizabeth’s” and had been in Paiuxent Institution. It recommended that he be transferred to Patuxent for examination and evaluation. Defense counsel said: “Your Honor, for the first time in my practice I am really at a loss for words. The probation report is quite extensive.

The defendant is reading it right now. There is no doubt that he has had quite a few problems with the law over the years and no doubt that he has spent a great many years of his adulthood in incarceration. I submit the matters to Your Plonor’s disposition.” The court asked if the appellant had anything to say before sentence was imposed. The appellant said, “Yes, Your Honor.

I hope this — it caught me completely surprised this morning in open court. I pled guilty before Judge Bowen and he is the one that ordered the presentence investigation. I was looking ⁵²⁴ forward to appearing before him." The court said that any judge could impose sentence, explaining that Judge Bowen “is a nonresident judge of this court and whether he is a resident or non-resident we have a revolving procedure that the judge who takes the plea doesn’t necessarily do the sentencing. Any judge can do this sentencing.” It asked if the appellant had anything in mitigation of the sentence.

The appellant said that his not being sentenced by Judge Bowen “caught me completely — you know, surprised. I wonder if it might be possible to put it aside and probably wait until Judge Bowen might appear again.” The court denied “the request for transfer of sentencing to Judge Bowen.” The court started to direct the clerk to enter the sentence when it was interrupted by the appellant asking the court to bear with him. The court said that it had borne with him as far as it was “going to bear on that subject matter” and asked what his next problem was, that it would “be very careful to listen to you, what you say, whatever you say.” In mitigation the appellant said that the court probably noted that he had an “extensive criminal record” and that he had not had time to read the presentence report which probably would not be beneficial “in a way.” The court remarked that it was sure that his counsel had gone over it very carefully and that counsel would make it available to him. The appellant asked for a chance to read it over.

The court said, “You have had your opportunity to read it over. You have it right in your hands. You know what your record is. You are stalling this court.” It pointed out that the record was on the second and third pages of the report and directed that the appellant look at it.

The appellant said, “I would waive this — I waive this, but what I am trying to get out your Honor, what I am trying to say, which —although I have had an extensive criminal record, as you may see, but now — now my record, Your Honor, is something that happened, you know, in the past.” He then explained that he had never made probation or parole and requested probation, that he was 49 years of age — “I will be up in years now to make me a useful member of society” — that he had a permanent job as a carpenter, that he was a member of a carpenter’s union and had been for 6 years, that after 30 years if he continued in the union he would be eligible for retirement, that ⁵²⁵ he worked steadily and that he kept up his dues although he was presently behind awaiting the outcome of his case. The court said it understood that the appellant wanted to be placed on probation to go back to his trade. The appellant agreed that this was what he wanted because it was “the only chance I probably would have,” that if he was sent to prison he would be out of the union. The State and defense counsel asked to approach the bench but the court said it would proceed to sentence and imposed a sentence of 5 years from 19 January 1968. 3 It ordered that after processing through the Department of Correction he be sent to Patuxent Institution for examination and evaluation as a possible defective delinquent.

A timely appeal was filed and the appellant contends : I The lower court erred in considering the presentence investigation report in imposing sentence without giving him an opportunity to refute it. II The lower court abused its discretion in not providing him or his counsel an adequate opportunity to make a statement in mitigation and he was denied his constitutional right to counsel when his counsel was not allowed to make proper argument to the court. III Pie was denied a fair trial by not being sentenced by the judge who accepted the plea. IV He was denied equal protection of the laws by the court’s consideration of his previous criminal record in sentencing him.

I and II Md. Rule 761d provides that the presentence investigation report, except the recommendation, shall be subject to inspection by counsel unless the court directs otherwise. Md. Rule 761a provides that before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment. ⁵²⁶ In Driver v. State, 201 Md. 25, 31-32 , the Court of Appeals said: “Under the procedure often followed by the courts in this country, the defendant, after he is convicted, is informed by the court that he will be investigated before sentence is imposed, and the court can exercise a broad discretion in the use of sources and types of evidence to assist it in determining the kind and extent of punishment to be imposed within the limits fixed by law. * * * To aid the sentencing judge in exercising this discretion intelligently, the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health habits, mental and moral