Robinson v. Warden

Anderson, J., delivered the majority opinion of the Court. Orth, J., concurs. Concurring opinion by Orth, J., at page 113 infra. Memorandum opinion of lower courtat page 116 infra.

This is an application for leave to appeal from an order of Judge Shirley B. Jones, presiding in the Criminal Court of Baltimore, passed June 3, 1969, denying relief sought under the Uniform Post Conviction Procedure Act. Applicant, Cecil Harold Robinson, was tried and convicted of robbery with a deadly weapon and assault with intent to murder, and on each indictment was sentenced to ten years, the sentences to run concurrently. Applicant’s conviction and judgment were affirmed by this Court in Robinson v. State, an unreported opinion filed May 2, 1968. On July 26, 1967, applicant filed an application for review of sentence under Md. Code, Art. 26, §§ 132-8.

The review panel met on June 27, 1968, and, over objection, refused to allow the withdrawal of applicant’s petition for review and subsequently increased the sentence for assault with intent to murder from ten years to fifteen years and allowed the ten year sentence for robbery with a deadly weapon to stand. The sentences were to run concurrently and applicant was to be credited with time already served. Applicant’s petition raises two contentions: First, that the action' of the review panel in increasing his sentence violated his constitutional rights. Second, that the refusal of the review panel to honor his request to withdraw his application for review of sentence constituted a denial of his constitutional rights.

The application as to both contentions is hereby denied for the reasons stated in the able opinion of Judge Shirley B. Jones, published herewith. Subsequent to Judge Jones’ opinion, on June 23, 1969, the Supreme Court of the United States decided the case ¹¹³ of North Carolina v. Pearce, 89 S. Ct. 2072 (1969), which held that when a defendant is granted a new trial because of errors at his first trial, the sentence imposed at the new trial may not exceed that imposed at the first trial except in certain circumstances not pertinent here. We have held that North Carolina v. Pearce, supra, does not apply retroactively, see Wayne v. State, 8 Md. App. 5 (1969), and thus has no effect on this application. Moreover, North Carolina v. Pearce, supra, applies only to new trials.

Article 26, §§ 132-8 has not been held unconstitutional and all presumptions favor the constitutionality of a duly enacted statute. The statute will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Prevatte v. Director, 5 Md. App. 406 , 248 A. 2d 170 . We find that the action taken by the review panel in applicant’s case was authorized by the statute, and the applicant was, or should have been, aware of an increase in sentence.

Thus the action being within the scope of the statute, and the statute being constitutional, the application must be denied. Application denied. Orth, J., concurring: I concur in the decision of the Court to deny the application of Cecil Harold Robinson for leave to appeal from the order denying post conviction relief. As to the allegation that the increase in his sentence by the review panel was unconstitutional, I think that the retroactivity vel non of State of North Carolina v. Pearce, 89 S. Ct. 2072 , is not material; it is clear that Pearce in any event does not prohibit the imposition of the harsher sentence here.

The question presented and resolved in Pearce and Warden v. Rice, the case decided with it, was: “When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher ¹¹⁴ sentence after conviction on retrial?” The Court considered the question as involving two issues: (1) must credit be given for punishment exacted and, (2) may a more severe séntence be imposed. But both of these issues were considered only within the frame of reference of the question presented — that is that a criminal conviction had been set aside, a new trial ordered, a conviction obtained on retrial and a more severe sentence imposed. In the instant case these factors antecedent to the imposition of the more severe sentence were not present; the applicant’s conviction had not been' set aside, a new trial had not been ordered and, of course, there was no conviction obtained on retrial. Further, here, the applicant, when a harsher sentence was imposed by the review panel, received credit for time served under the original sentence and there was compliance with Pearce in that respect even if Pearce were controlling. 1 I see nothing in Pearce to compel that its ruling with respect to a harsher sentence be extended to circumstances beyond factual circumstances comparable to those under which it was decided.

The Court found no absolute constitutional bar to the imposition of a more severe sentence on conviction after reversal and retrial. It did find, however, that the impact of due process made necessary that certain requirements be met to justify a harsher sentence. The reason for the imposition of these requirements was that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial; a defendant’s right to appeal his conviction must be free and unfettered. I think it clear that the rationale is that a defendant who has been improperly convicted, whether by constitutional error or nonconstitutional error, and who has been given the right to attack the conviction, either on direct 1 appeal or collaterally, must be free, even of the apprehension, that he ¹¹⁵ will be punished for attacking the conviction.

For it would be a flagrant violation of due process for a defendant, given the right to attack his conviction, to be forced to stand improperly convicted by fear of additional punishment. This rationale loses its force when there is no question of an improper conviction. No question of the validity of a conviction is involved in the right to review of sentence bestowed upon a defendant by Md. Code, Art. 26, §§ 132-138. None of the requisites prescribed by the statute for the right to seek review of sentence violate due process of law or any other constitutional right. 2 3 Nor is any constitutional right violated by the rights and powers given the review panel,® including such powers given to order an increased sentence.

I note that any person having the right to file an application for review of sentence has the right to be represented by counsel, retained by him or appointed, and if a hearing is held shall have the right to appear in person. § 136. Md. Rule 762, implementing the statute, includes requirements that counsel be appointed for indigent defendants, § bi, that the review panel’s decision be in writing, be filed in the record of the sentencing court and be noted on the docket in the case; a copy of the decision shall be furnished the defendant, his attorney and the prosecuting attorney. § c8 (c). If the sentence is changed, the defendant shall be brought before the panel and resentenced. § c3 (d). I believe that the law providing for review of sentence is constitutional as enacted and implemented by rule.

Since there is no absolute constitutional bar even on the imposition of a more severe sentence upon conviction on retrial