Sweeney v. State

PER Curiam. The Appellant, Reverdy Sasscer Sweeney, at his trial on September 14, 1965, before Judge Roscoe H. Parker in the Circuit Court for Prince George’s County, entered a plea of guilty to the assault count of a three count indictment, the other counts being attempted robbery and assault with intent to rob. He was ²³⁵ sentenced to be confined in the Maryland House of Correction for the period of eighteen (18) months; said sentence was suspended and the Appellant was placed on probation for the same period. As a condition of probation, he was to spend six (6) months in the Spring Grove State Hospital for treatment of alcoholism or until further Order of Court.

An order of commitment to Spring Grove was signed the same day, namely, September 14, 1965. On October 22, 1965, the Appellant was granted a two-day privilege to visit his home. Finding his wife ill, he determined he was needed at home and did not" return to the hospital as directed. On November 2, 1965, Dr. Bruno Radauskas, Superintendent of Spring Grove, wrote a letter to Judge Parker informing him of these facts and asking approval for the patient’s discharge which approval was given by way of a letter from Judge Parker dated November 4, 1965, indicating a petition for violation of probation would be filed.

On November 8, 1965, a petition for violation of probation was filed and a warrant was issued for the apprehension of the Appellant. A hearing was held on the violation charge before Judge Parker on November 17, 1965. At this hearing, an agent of the State Department of Parole and Probation testified and also the Appellant. The latter was granted the full opportunity to explain his absence from Spring Grove and his reasons for not returning to the hospital on time.

At the conclusion of the Appellant’s testimony, he was asked by the Court if he had anything further to say. At this point, for the first time during the hearing, the-Appellant stated that his attorney was not in Court. The following colloquy occurred: “THE COURT: Anything further ? “THE DEFENDANT: I understood my attorney was supposed to be here today. I got a phone call over in the jail and said my attorney was supposed to be here today.

I haven’t seen him. “THE COURT: Well, you don’t have a Court appointed attorney on a violation of probation. “THE DEFENDANT: My brother-in-law was to-get an attorney. Mr. Dotson, he was supposed to be here. ²³⁶ “MR. FEMIA: If your Honor please, I talked to Mr. Dotson— “THE COURT: It is immaterial anyway. He is not entitled to counsel in a hearing of probation revocation. “Anything further ? “THE DEFENDANT: No, sir. “THE COURT: Step down.” The Court pronounced judgment as follows and from which this appeal was taken: “Probation is revoked.

The original sentence of 9/14/65 is reimposed to commence today, 18 months in the Maryland House of Correction * * *” The following docket entry was made by the Clerk: “Probation revoked and the sentence of September 14,1965 is reinstated and imposed as of 11/17/65.” The Appellant (who has now been released on parole) alleges three grounds of reversible error: (1) That the trial Court had no power to reimpose the sentence of September 14, 1965, as of November 17, 1965, since this would be tantamount to a resentence; (2) That the Appellant was denied his right to counsel at the violation of probation hearing; and (3) That the trial Court abused its discretion in revoking probation. We can find no merit in these allegations. In support of the first contention, the Appellant cites the statement in Coleman v. State, 231 Md. 220 p. 222 ; 189 A. 2d 616 p. 618: “* * * When the sentence in a criminal case is imposed and execution of the imposed sentence is conditionally suspended, as distinguished from the suspension of the imposition of sentence, and the defendant placed on probation, and thereafter the probation is stricken out, the defendant should not be re-sentenced. His original sentence is effective with the probationary provisions stricken out.

Cf. Swan v. State, supra, 200 Md. at page 424.” ²³⁷ The Appellant has misconstrued the action of the trial Court. On September 14, 1965, Judge Parker imposed a sentence of 18 months which