Towers v. Director, Patuxent Institution

Orth, C. J., delivered the opinion of the Court. ELWOOD TOWERS, JR., also known as Elmore Emanuel Towers, Jr., applies for leave to appeal from an order of 2 November 1972 of Clark, J., entered in the Circuit Court for Caroline County, denying relief sought under post conviction procedures. As to all reasons stated for reversing the order, Maryland Rule BK46 b, except the reason discussed in paragraph (e) of the memorandum opinion accompanying the order, the application is denied. As to those reasons with regard to which the application is denied, the denial is on the bases set out in the memorandum opinion, except as to paragraph (a) thereof.

Paragraph (a) discusses the claim that Towers was not provided, at public expense, and examined by, a private psychiatrist of his own choosing before being sent to Patuxent for evaluation. This claim does not go to the validity of the conviction or sentence collaterally attacked here and was not properly before the court in this proceeding. It therefore provides no basis for relief. Code, Art. 27, § 645A (a) ; Creswell v. Director, 2 Md. App. 142, 144-145; Knox v. Director, 1 Md. App. 678, 680 . ⁶⁸⁰ Paragraph (e) of the memorandum opinion deals with the allegation that Towers “was without the assistance of counsel at previous trials when he was convicted and sentenced to prison and, therefore, it was reversible error for Judge Turner [the judge presiding at the trial resulting in the conviction and sentence here attacked] to consider his criminal record in determining what sentence to give him.” The opinion states: “Whether this is true or not, the fact is that Towers requested a pre-sentence investigation prior to being sentenced and it has always been the law in this State that the judge is not bound by the rules of evidence in receiving information for the purpose of assisting him in arriving at an appropriate sentence.

The petitioner cites Burgett v. Texas, 389 U. S. 109 in support of this contention. We have read this case and found it completely inapposite to the case at bar.” The opinion then sets out the facts and holdings of Burgett as the judge construed them and his conclusion: “We cannot and do not read into this decision any intent on the part of the United States Supreme Court to proscribe a trial judge from considering previous convictions in the sentencing process, even though the defendant may not have been represented by counsel and may not have voluntarily waived his right to such representation, at those trials that resulted in his previous convictions. Therefore, we find this contention to be without merit.” The Supreme Court held clearly to the contrary in United States v. Tucker, 404 U. S. 443 , decided 11 January 1972. See Gatewood v. State, 15 Md. App. 450, 461-462 .

It is surely true that a trial judge in this State, as in the federal system, “generally has wide discretion in ⁶⁸¹ determining what sentence to impose. It is also true that before making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, supra, at 446, and cases there cited; Bryson v. State, 7 Md. App. 353, 355 ; Washington v. State, 2 Md. App. 633, 634 ; Gee v. State, 2 Md. App. 61, 68 . See Maryland Rule 761. Further, a sentence, if within statutory limits, is generally not subject to appellate review.

Gore v. United States, 357 U. S. 386, 393 ; Mahoney v. State, 13 Md. App. 105, 112 ; Johnson v. State, 9 Md. App. 37, 40 . These general propositions, however, do not permit a sentencing judge to impose a sentence founded at least in part upon a past criminal record which was untrue. Townsend v. Burke, 334 U. S. 736, 741 . Although a judge may impose a sentence in his informed discretion, a sentence predicated to some extent upon misinformation of constitutional magnitude is improper.

Tucker flatly holds that information imparted to a judge that a person standing convicted before him had been previously convicted of a crime, when in fact that prior conviction was wholly unconstitutional under Gideon v. Wainwright, 372 U. S. 335 is misinformation of constitutional magnitude. “The Gideon case established an unequivocal rule ‘making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.’ ” 1 Tucker , at 449, quoting Burgett v. Texas, 389 U. S. 109, 114 . In Duncan v. Louisiana, 391 U. S. 145 , it was held that defendants tried in state courts were entitled to a trial by jury on all but petty oifenses, defined as those crimes punishable by no more than six months in prison and a $500 fine. At 159 and 161. Maryland, as did other states, followed the line marked out in Duncan as respects the trial by jury to establish also the right to court-appointed counsel.

Man ⁶⁸² ning v. State, 237 Md. 349, 353 ; Johnson v. State, 9 Md. App. 166, 174 ; Wayne v. State, 4 Md. App. 424, 428 ; Rule 719 b 2. In Argersinger v. Hamlin, 407 U. S. 25 , decided 12 June 1972, the Supreme Court determined that this was constitutionally proscribed, and extended the Gideon holding. It said that the sixth amendment right to the assistance of counsel is not governed by the classification of the offense or by whether or not a jury trial is required. It held, at 37: “[Ajbsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” In Burgett the Court said, at 115: “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U. S. 269 ) is to erode the principle of that case.” It is clear that with respect to the imposition of sentence, Tucker applies the