Turner v. State

Per Curiam. The appellants were jointly charged in each of three informations, nos. 8590, 8591 and 8593 with obtaining money by a false pretense and in information no. 8592 with an attempt to obtain money by a false pretense. On 22 November 1967, in the Circuit Court for Montgomery County, each of them pleaded guilty to the charge under information no. 8592. The court accepted the plea as to each, found each guilty and a nolle prosequi was entered as to all other charges.

On 22 January 1968, after a pre-sentence investigation report was received by the court, each appellant was sentenced to the jurisdiction of the Department of Correction for a period of 8 years, the sentence to commence as of 18 May 1967. On appeal each appellant contends (1) that the sentence of 8 years constituted cruel and unusual punishment, and (2) that the court erred by considering improper matters in determining the length of the sentences. (1) The imposition of sentence in a criminal case is a matter within the province of the trial judge. Reid v. State, 200 Md. 89, 92 , cert. den. 344 U. S. 848 .

If the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Lawrence v. State, 2 Md. App. 736; Washington v. State, 2 Md. App. 633. An attempt to obtain money by a false pretense is a common law misdemeanor and no punishment ³³⁴ therefor is fixed by statute. Fisher v. State, 1 Md. App. 505, 510 .

The sentences here did not exceed the maximum authorized by law since no maximum is prescribed. Austin v. Director, 237 Md. 314, 317. They are not invalid unless they violate the constitutional provisions against cruel and unusual punishment. Lynch v. State, 2 Md. App. 546 .

Under such circumstances the Court of Appeals and this Court have held that sentences such as the ones here do not constitute cruel and unusual punishment and the 8 year sentence imposed on each of the appellants did not violate the constitutional proscriptions. See Gleaton v. State, 235 Md. 271 ; Adair v. State, 231 Md. 255 ; Hobbs v. Warden, 223 Md. 651 ; Miller v. State, 1 Md. App. 653 . (2) Since the imposition of sentence is a matter peculiarly within the province of the trial judge, the general rule is that he may inquire into any information pertaining to the defendant in order to give a fair sentence. Gee v. State, 2 Md. App. 61, 68 .

He may consider the defendant’s entire background, including prior convictions, Miller v. State, supra. See Thomas v. State, 2 Md. App. 645 . The appellants claim that the trial judge in sentencing them considered the details of the charges against them to which a nolle prosequi had been entered and they urge that this was improper, citing Jones v. State, 221 Md. 141 . We discussed the subject at length in Baker v. State, 3 Md. App. 251 .

There we remanded for the limited purpose of redetermination of the sentences imposed where it was not clear from the record that the sentencing judge did not, in imposing a maximum sentence on a burglary conviction, give prime consideration to the possibility that the defendant, though neither charged nor convicted of other similar burglaries in the county of the situs of the crime for which he was convicted, was nevertheless guilty of them. We held that such consideration was impermissible and if the sentencing judge was influenced by it so that any part of the sentence was attributable to it, the defendant would have been denied due process under Amendment XIV to the Federal Constitution. Upon accepting the pleas of guilty by the appellants, the lower court heard testimony from a detective lieutenant of the Mont ³³⁵ gomery County Police who had investigated the case. It appeared from his testimony, which was received without objection, that all the offenses charged against the appellants in the four informations against them involved the same victim, Mrs. Edna Clayton, 84 years of age, and were part of the same transaction, “a termite job” on her dwelling.

The three informations to which the nolle prosequi had been entered apparently alleged money actually obtained from her for the work, about $7800, and the information to which they pleaded guilty alleged $2800 which