Calhoun v. State
| Decision Date | 08 September 1980 |
| Docket Number | No. 1438,1438 |
| Citation | 418 A.2d 1241,46 Md.App. 478 |
| Parties | James Arthur CALHOUN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Thomas J. Saunders, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on brief, for appellant.
Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Joseph A. Dugan, Asst. State's Atty., on brief, for appellee.
Argued before MORTON, MOORE and MASON, JJ.
Defendant-appellant, James Arthur Calhoun, pleaded guilty in the Circuit Court for Prince George's County (Blackwell, J.) to two counts of robbery with a deadly weapon and two counts of use of a handgun in the commission of a crime of violence, arising from two separate grocery store robberies in 1978. Pursuant to Md.Ann.Code, art. 27, § 643B (1979 Cum.Supp.), he was sentenced to a total of fifty years without the possibility of parole. 1
After an appeal was taken by the defendant to this Court, the State noted a cross- appeal as authorized by Md.Cts. & Jud.Proc.Code Ann. § 12-401 (1980), challenging the sentences imposed upon the defendant. The issues before us relate to:
1) The trial court's acceptance of defendant's guilty pleas pursuant to Md.Rule 731;
2) The trial court's refusal to allow defendant to withdraw his guilty pleas;
3) The legality of consecutive sentences for the crimes of robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence, when both crimes arise from the same incident;
4) The applicability of the enhanced sentencing provisions of Md.Code Ann., art. 27, § 643B (1979 Cum.Supp.) to this case; and
5) The legality, under the provisions of Md.Ann.Code, art. 27, § 643B (1979 Cum.Supp.), of the sentences imposed upon defendant.
According to the statement of facts in support of the guilty pleas, the defendant, armed with a sawed-off shotgun, robbed a grocery store in Prince George's County of $1,663.94 on May 17, 1978. Eight days later, armed with two pistols, defendant robbed another grocery store in the county of $4,200.00. During the course of the second robbery one of the guns discharged but no one was injured.
Indictments were handed down on August 16, 1978 and November 15, 1978 charging the defendant in the robberies. Warrants were issued for defendant's arrest. On May 7, 1979 the State requested temporary custody of defendant from the Lorton Reformatory where he was incarcerated for a District of Columbia conviction. Defendant was returned to Maryland, and on June 21, 1979 he confessed to both robberies.
The State filed a notice of mandatory sentencing pursuant to Md.Rule 734(c) alleging that defendant had prior convictions for crimes of violence and at least one term of confinement in a correctional institution and, therefore, that it would seek the maximum mandatory sentence without the possibility of parole or suspension under Md.Ann.Code, art. 27, § 643B (1979 Cum.Supp.), supra n.1. On August 7, 1979 the defendant withdrew his not guilty plea and pleaded guilty to two counts of robbery with a deadly weapon and two counts of use of a handgun in the commission of a crime of violence.
Prior to sentencing, defendant filed a motion to withdraw his guilty pleas. On October 11, 1979, the court considered and denied the motion. The court then sentenced defendant to twenty years for each of the robberies and five years for each of the handgun offenses; the sentences were all to run consecutively for a total of fifty years. In an amended commitment record it was recited that the sentences had been imposed under § 643B(c) and, therefore, were without possibility of suspension or parole. The sentences were made concurrent with a fifteen year to life sentence the defendant was serving in the District of Columbia.
In the first of a two-pronged attack on his guilty plea, the defendant asserts that the trial court did not comply with Md.Rule 731 because the record does not show that his pleas were "fully voluntary where the questioning only concerned promises or threats made in order to obtain his guilty plea."
The record of the August 7, 1979 proceedings, in which the pleas were entered, discloses that defendant, in a lengthy colloquy with the court, acknowledged that he was pleading guilty because he was, in fact, guilty; that no promises or threats had been made as an inducement for the pleas; that he could not be required or forced to plead guilty; and that he was voluntarily entering his pleas of guilty. The defendant also related that his education included two years of college and that he understood the nature and consequences of his pleas. Nothing in the record remotely suggests that the guilty pleas were anything but intelligently and voluntarily entered in accordance with Md.Rule 731. Davis v. State, 278 Md. 103, 118, 361 A.2d 113, 121 (1976); McCall v. State, 9 Md.App. 191, 195, 263 A.2d 19, 23 (1970).
Defendant cites Fontana v. State, 42 Md.App. 203, 399 A.2d 950 (1979), in support of his contention that the trial court erred by denying his motion to withdraw his guilty pleas. In Fontana, we held that "the right to withdraw a guilty plea is a discretionary matter which will not be overturned unless abused." Id. at 205, 399 A.2d at 951. The Rules permit the court to allow the withdrawal of the plea "when justice requires." Md.Rule 731(f)(1).
At the hearing on defendant's motion, he testified that "(b)rutality and inhumane conditions at the Prince George's County Jail" had prompted him to enter his pleas of guilty. The court found "no real evidence" to support defendant's assertion. Upon our review of the record, we conclude that the court did not abuse its discretion in denying the motion.
Defendant's next contention, that it is improper "to enhance punishment twice because of the single factor of use of a weapon," need not long detain us. He recognizes in his brief that the issue was pending before the Court of Appeals. In the interim the Court has spoken. Whack v. State, 288 Md. 137, 416 A.2d 265 (1980). There the Court said:
Id. at 150, 416 A.2d at 271. In light of Whack there was no error in the imposition of consecutive sentences for the robbery and handgun offenses of which defendant was convicted. See Stevenson v. State, 43 Md.App. 120, 131-32, 403 A.2d 812, 819 (1979), aff'd, 289 Md. 504, 413 A.2d 1340 (1980).
When a defendant has two prior convictions for crimes of violence and has served at least one term of confinement in a correctional institution as a result of such a conviction, then the State may seek mandatory sentencing under Md.Ann.Code, art. 27, § 643B(c) (1979 Cum.Supp.). See n.1, supra. After due notice filed by the State, defendant was sentenced under the provisions of § 643B(c) to a total of fifty years without the possibility of parole. He now contends that the State did not establish a sufficient predicate for the mandatory sentencing because one of the prior convictions relied upon by the State, the third conviction listed below, was obtained under the Federal Youth Corrections Act (F.Y.C.A.), 18 U.S.C. §§ 5005-5026 (1976). He asserts that such adjudications of guilt are not "convictions" under § 643B.
At the sentencing hearing the State submitted records to prove that defendant had prior convictions for crimes of violence, as follows:
1) Robbery; January 4, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010(c) (1976).
2) Attempted robbery; April 27, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010(c) (1976).
3) Robbery with a deadly weapon; January 19, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010(c) (1976).
4) Robbery; August 12, 1971; Circuit Court for Montgomery County; 6 years-suspended and probation; reimposed for violation of probation on May 23, 1974; and
5) Robbery with a deadly weapon; aggravated assault; two counts of carrying a pistol; April 25, 1979; Superior Court of the District of Columbia; 15 years to life for armed robbery; 3-9 years for assault, consecutive; 2-6 years on weapons offenses, concurrent with each other but consecutive to other sentences.
The court disregarded the most recent conviction because it was on appeal at the time of sentencing. In addition, the State concedes on appeal that the District of Columbia robbery and attempted robbery convictions are not necessarily crimes of violence as defined by § 643B(a) because robbery in the District of Columbia includes "crimes accomplished by stealth and which do not involve violence or putting the victim in fear." See D.C.Code § 22-2901 (1973); Butler v. State, 46 Md.App. 317, 323, 416 A.2d 773, 776 (1980). Defendant does not deny that the Montgomery County conviction for robbery is a prior conviction of a crime of violence for which he served a term of incarceration in the Maryland State Penitentiary.
The sole question, therefore, under § 643B(c) is whether appellant's District of Columbia conviction on January 19, 1973 for armed robbery pursuant to the F.Y.C.A., 18 U.S.C. § 5010(c) (1976), qualifies as a predicate "prior conviction." He contends that "(a) juvenile 'conviction' cannot be used as a basis for enhanced punishment."
Under federal law a "juvenile" is "a person who has not attained his eighteenth birthday," or for the purpose of proceedings and disposition as a juvenile, one "who has not attained his twenty-first birthday" and who committed a violation of...
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