Miller v. State

Per Curiam. John Edward Miller was tried on July 18, 1966, before Judge Shirley B. Jones, and found guilty of assault. On September 26, 1966, he was sentenced to five years in the Maryland Correctional Institution. From that judgment, he filed an appeal to this court on October 11, 1966, contending that the sentence constituted cruel and unusual punishment, that his trial counsel was incompetent, and that the evidence was insufficient to sustain a verdict of guilty of assault.

On May 22, 1966, Mr. Joseph R. Tellis was assaulted and beaten as he was walking to his home from a tavern. He identified the appellant and another man, Ray W. Mitchell, as his assailants. A man driving by in a car noticed the disturbance, located a policeman, and brought him to the scene. The policeman found Miller and Mitchell leading Tellis away, and was told they were trying to help him.

Although Tellis complained his wallet had been taken, neither wallet nor money was found on either Miller or Mitchell. The State’s motion to dismiss the appeal on the ground that it was not timely filed, pursuant to Maryland Rule 1035 b 2, must be denied since the sentence was not imposed until September 26, 1966, and his appeal was filed on October 11, 1966, clearly within the thirty-day period. See Brown v. State, 237 Md. 492; Hardy v. Warden, 218 Md. 659 ; McCoy v. Warden, 1 Md. App. 108 . Appellant’s contention that his five-year sentence for assault constitutes cruel and unusual punishment is without merit.

Assault is a common law crime for which no statutory limit governing punishment is prescribed, and the determination of the length of the sentence is left to the sound discretion of the trial court. Sentences for twenty years (Roberts v. Warden, 242 Md. 459 ; Adair v. State, 231 Md. 255 ), ten years (Austin v. Director, 237 Md. 314; Gleaton v. State, 235 Md. 271 ), eight ⁶⁵⁶ years (Shields v. State,