Cashdan v. Warden, Dept. of Correction, 79

• Decision Date: 15 November 1968
• Docket Number: No. 79,79
• Citation: 5 Md.App. 402,247 A.2d 545
• Parties: Charles CASHDAN v. WARDEN, DEPARTMENT OF CORRECTION. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 402

5 Md.App. 402

247 A.2d 545

Charles CASHDAN v. WARDEN, DEPARTMENT OF CORRECTION.

Post Conviction No. 79.

Court of Special Appeals of Maryland.

Nov. 15, 1968.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

PER CURIAM.

On 12 April 1967 in the Circuit Court for Prince George's County the applicant was charged with two offenses of obtaining money from Ada Green by a false pretense-in criminal trials No. 6292 with obtaining $885 and in criminal trials No. 7042 with obtaining $499. He was arraigned on 20 April and appearance of counsel for him was entered in open court. He moved for a Bill of Particulars on 21 April and an answer to the motion was filed on 4 May. He petitioned for and was granted a continuance on 12 June. On 28 August he pleaded guilty to case No. 7042 and the plea was accepted. A pre-sentence investigation report was ordered. Case No. 6292 was placed on the stet docket. On 27 October there was filed a document in proper person entitled 'Appeal-To: Change of Plea; Appeal To: Continue or set new bond,' requesting that he be allowed to withdraw his plea of guilty. With regard to the withdrawal of his plea he gave as the reasons 'because: I was ill advised, under hypertension, sick with emotional strain, spastic-colitus, and kidney stones. I am under three physicans care.' He also alleged that immediately before trial restitution of $1000 had been made and thereafter another $770 had been paid, the total being the entire amount claimed to have been obtained. He then said, 'Naturally I was laboring under certain impressions, but now, being put in jail makes me apprehensive as to the wisdom of my plea, and the legality of the promised exchange of money. Therefore I ask the court to vacate my plea of guilty to not guilty and to continue bond on the two charges and set a new trial date. I intend to retain present counsel and hire help for him because he is to busy.' On 2 November the applicant appeared before the court for the imposition of sentence. He moved to be permitted to withdraw his guilty plea and to enter a plea of not guilty. The motion was denied and he was sentenced to imprisonment for a term of 5 years. On 3 November he filed a petition for a writ of habeas corpus and on 22 November it was dismissed by order of court without a hearing. On 23 May 1968 he filed a petition for relief under the Uniform Post Conviction Procedure Act. The petition alleged that he had informed his counsel that he was innocent as the prosecuting witness admitted at the preliminary hearing that the $499 had been paid for termite work done at her home but counsel 'despite his protestation of innocence' persuaded him to enter a plea of guilty. Before sentencing he made three requests to withdraw his plea. When he was called before the court for sentencing, his counsel told the court that the applicant had told him the $885 was a loan to him but that he told him that no one would believe this and advised him to plead guilty. The pre-sentence report, however, stated that the $885 was a loan. Counsel felt, therefore, that he had given the applicant wrong advice-'I may have pulled a major 'goof' here.' As to the charge to which he pleaded guilty, counsel said, 'Now the smaller count has problems because there was some work done and this is a termite situation, and she (the prosecuting witness) admitted some work was done with reference to the $499, so there is a problem that arises there.' The applicant contended that the refusal of the trial court to permit him to withdraw his plea of guilty and to allow him to plead not guilty and proceed to trial, was an abuse of discretion and a denial of his constitutional rights to a trial. After an evidentiary...