Summers v. State

Liss, J., delivered the opinion of the Court. On April 7, 1978, George Roscoe Summers, the appellant, was convicted in the Circuit Court for Frederick County (Barrick, J.), of larceny and a pre-sentence investigation report was requested by the appellant. On May 8, 1978, the appellant was committed to the custody of the Division of Correction by the Circuit Court for Frederick County (Clapp, J.), for a period of five years for the larceny. On appeal the appellant contends that: 1. his five year sentence was imposed in violation of Maryland Rule 772. 2. the evidence was insufficient to sustain his conviction for grand larceny.

The record before us shows that at about 2:00 P.M., on January 25, 1978, Mary A. Hoffman hired the appellant to clean the snow from a walk in front of her home on West Third Street in Frederick. After the appellant finished cleaning the walk, Mrs. Hoffman invited him into her home to warm himself. While inside she showed him a jewelry box and he handled several of the items in it. After the appellant left, Mrs. Hoffman checked the jewel box.

She found three rings and a watch were missing. Mrs. Hoffman called the police. In the meanwhile the appellant came into the Olde Town Tavern where he sold or gave away various items of jewelry. He then returned to the Hoffman residence.

Upon arrival he was arrested by the police officers investigating the theft. The police then proceeded to the tavern where they recovered the jewelry disbursed by the appellant and which Mrs. Hoffman subsequently identified as coming from the jewel box. Testifying on his own behalf, the appellant denied being involved in any wrongdoing and claimed he had found the jewelry in a purse in the snow five feet from Mrs. Hoffman’s house. On May 8, 1978, Judge Clapp commenced the sentencing proceedings by announcing that Judge Barrick “had to be away today”.

He then stated that he had reviewed the ⁴⁹¹ pre-sentence report and was prepared to entertain argument for sentencing. Without entering any objection or making any inquiry as to the cause for Judge Barrick’s absence, the appellant’s trial counsel proceeded with his argument. The State submitted on the pre-sentence report. The court then invited the appellant to present allocution.

The appellant addressed the court and asked to be placed on probation. At the completion of the hearing, Judge Clapp sentenced the appellant to five years imprisonment. Maryland Rule 772 a, adopted July 1, 1977, provides: “Except as provided by Rule 750 (Disability of Judge),the judge who presides at trial shall sentence the defendant [1] However, in a case where a defendant enters a plea of guilty or nolo contendere and no trial has commenced, any judge may sentence the defendant unless incident to accepting a directing entry of such plea, the judge has received any matter, other than a statement of the mere facts of the offense, which would be relevant to the determination of the proper sentence to be imposed. In such a case, except as provided in Rule 750, that judge shall sentence the defendant.

The sentence ⁴⁹² shall be imposed without reasonable delay.” (emphasis supplied) Maryland Rule 750 b provides: “If, by reason of termination of office, death, sickness or other disability, the judge before whom a defendant has been tried or by whom a plea of guilty or nolo contendere has been accepted is unable to perform the functions of the court after verdict or after acceptance of a plea, any other judge who is a member of the court or assigned thereto may sentence the defendant and perform those functions.” The appellant first contends that Maryland Rules 750 and 772 mandate that the sentence must be imposed by the trial judge who heard the case unless that judge cannot pass sentence because “of termination of office, death, sickness or other disability”. In this case the only reason given why Judge Barrick was unavailable was Judge Clapp’s statement that Judge Barrick “had to be away.” The appellant concedes that no objection was noted to proceeding with the sentencing before Judge Clapp but argues that his failure to object did not act as a waiver of the right. As we