State v. Geppi

Menchine, J., delivered the opinion of the Court. Anthony S. Geppi, Sr., convicted in the Criminal Court of Baltimore of narcotic violations under two indictments, had been sentenced to imprisonment to concurrent terms of fifteen and five years. His present formal petition for post conviction relief had raised fourteen contentions, all of which were considered and rejected by the trial court after hearing, in a memorandum and order passed on December 15,1972. Promptly thereafter, counsel for Geppi filed a petition for reconsideration of the decision upon the ground that an oral amendment at the hearing, accepted by the State, had raised an additional constitutional issue that had not been ruled upon by the hearing judge, namely: that acceptance of the guilty plea was in violation of the ⁶⁴¹ mandate of Boykin v. Alabama, 395 U. S. 238 .

The trial court thereupon withdrew his order of December Í5, 1972: “Pending further consideration of the constitutional issue * * * as orally amended” and on January 3, 1973 granted Geppi a new trial, because the trial record of the original proceedings “does not reveal that the petitioner was advised of his privilege against compulsory self-incrimination.” The State has filed an application for leave to appeal upon the ground that, when a Boykin deficit is alleged in post conviction proceedings (as distinguished from direct appeal), a determination is to be made upon the record at original trial and the record made at post conviction hearing. The record of the original trial showed the following inquiry directed to Geppi by his trial counsel: “Q We have discussed this case several times at length, have we not? A Yes. Q I explained to you that you have the constitutional right to plead not guilty, to plead guilty, or to enter a plea of nolo contendré or no contest, did I not?

A Yes, sir. * * * Q And I explained to you that should you plead guilty, you waive certain rights that you have under the constitution, do you understand that? A Yes. * * * Q Now Mr. Geppi, should you enter a plea of guilty, you understand that that plea must be given freely and voluntarily? A Yes, sir.” The original trial record shows also that before the plea of guilty was accepted, Geppi was informed he had a right to appeal as to the “voluntariness of the plea you are giving * * * and the question of jurisdiction.” It ⁶⁴² shows also that after conviction, the trial judge specifically informed the accused that “* * you have a right under the law to take an appeal to the Court of Special Appeals of Maryland * * * within thirty days of today. If you do not have the funds needed to pay for the costs of the appeal * * * the Court could appoint counsel for you and permit you to proceed with the appeal as a pauper, indigent.” The State’s application for leave to appeal asserts that there was affirmative evidence at the post conviction hearing by Geppi’s trial attorney “that he did in fact advise of this specific right [against self-incrimination] and that the respondent [Geppi] intelligently waived it.” Boykin, supra, itself clearly implies that determination of a waiver of constitutional rights when the issue is presented in post conviction proceedings (as distinguished from direct appeals) should be made by considering both the, record in the original trial and that made in the post conviction proceedings, saying at page 242: “The requirement that the prosecution spread on the record the pre-requisites of a valid waiver is no constitutional innovation.

In Carnley v. Cochran, 369 U. S. 506, 516 , 8 L.Ed.2d 70, 77 , 82 S.Ct. 884 , we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must he an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.’ ” [Italics supplied] Boykin hardly would have cited Carnley in the manner it did if the Supreme Court proposed a caveat to the very language it quoted with approval. ⁶⁴³ In Dennis v. Henderson, 435 F. 2d 1288 [CCA5], a footnote distinguished Boykin by saying: “Appellant Dennis, unlike Boykin, had a full post conviction evidentiary hearing on the basis of which his plea was held to have been understandingly and voluntarily made by