DiBartolomeo v. State, 451
| Decision Date | 01 September 1984 |
| Docket Number | No. 451,451 |
| Citation | 486 A.2d 256,61 Md.App. 302 |
| Parties | Joseph Anthony DiBARTOLOMEO, Jr. v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Sandra A. O'Connor, State's Atty., for Baltimore County and Dana O. Williams, Asst. State's Atty. for Baltimore County, Towson, on brief), for appellee.
Argued before GILBERT, C.J., and WILNER and ROSALYN B. BELL, JJ.
Appellant was convicted in the Circuit Court for Baltimore County of attempted second degree sexual offense and common law assault. At the State's urging, the court invoked Md.Code Ann. art. 27, § 643B(c), concluded that the attempted sexual offense conviction constituted appellant's third conviction of a crime of violence, and thereupon imposed for that offense a sentence of twenty-five years imprisonment without possibility of suspension or parole. A concurrent sentence of eighteen months was imposed for the assault.
In this appeal, appellant complains (1) that the evidence was insufficient to support the convictions, and (2) that the enhanced sentence meted out for the attempted sexual offense was improper because the State failed to prove two prior convictions of a crime of violence within the meaning of § 643B(a) and (c). We think that the second of his complaints is justified.
Appellant's challenge to the sufficiency of evidence supporting his convictions is patently specious in light of the record. The victim's testimony sufficed to establish a forcible attempt by appellant to place his penis in the anus of the victim. The credibility of that testimony was for the trial court, not us, to determine.
The jury's verdicts were rendered on October 31, 1983. The court thereupon held the matter of sentencing sub curia pending receipt of a presentence investigation report.
On November 18, 1983, the State filed notice that it intended to proceed against appellant as a subsequent offender under § 643B(c). It alleged as the predicate offenses:
At the sentencing hearing, which took place on March 14, 1984, the allegation of the 1970 offense was supported by a certified copy of the docket entries in Case No. 37456 and a certificate of the custodian of records of the Baltimore County Detention Center. Together, they suffice to establish that appellant was indeed convicted in Baltimore County of robbery (as well as sodomy, assault with intent to rob, and larceny), that on January 15, 1970, he was committed to the county detention center for three years, and that he actually served a portion of that sentence. Appellant does not contest the validity or use of that judgment as one of the two predicate crimes of violence required by § 643B(c).
The allegation of the 1972 offense was supported by a number of certified documents from Nueces County, Texas, indicating that, apparently as part of a plea agreement, appellant pled guilty to a charge of sodomy and did not deny that the offense was committed when he "picked up 13 yr. old victim and forced him to undress in his [appellant's] car and forced victim to perform unnatural sex acts." Among the documents admitted into evidence at the sentencing hearing were:
(1) A certified copy of the Texas sodomy statute, upon which appellant's conviction rested. That statute, Vernon's Tex.Codes Ann., former Pen.Code, art. 524 (1952), provided:
"Whoever has carnal copulation with a beast, or in an opening of the body, except sexual parts, with another human being, or whoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation or who shall voluntarily permit the use of his own sexual parts in a lewd and lascivious manner by any minor, shall be guilty of sodomy, and upon conviction thereof shall be confined in the penitentiary not less than two (2) nor more than fifteen (15) years."
(2) A criminal information charging appellant with having had "carnal copulation with [the victim], another human being, in an opening of the body of [the victim] which was not a sexual part, to wit: the mouth of [the victim]";
(3) Waivers by appellant of his right to an indictment, a formal arraignment, a jury trial, and the appearance of witnesses; the entry of a plea of guilty which was accepted by the court; and an agreement by appellant to permit the State to proceed by way of affidavit and stipulated proffers of testimony (4) An affidavit of one Orlando A. Benavides, of the county sheriff's office, stating that he had good reason to believe and did believe that appellant committed the unlawful act in the manner set forth above, i.e., that he forced the thirteen year old victim to undress and that he then had "carnal copulation" in the victim's mouth; and
(5) The judgment of the court finding appellant guilty of sodomy and sentencing him to prison for two to four years.
The State argued to the circuit court, as it argues to us, that those acts, revealed by those documents, if committed in Maryland, would constitute and support a conviction of second degree sexual offense, that a second degree sexual offense is a crime of violence for purposes of § 643B(c), and that, ergo, the Texas sodomy conviction sufficed as a usable crime of violence. The circuit court accepted that argument; we do not.
The term "crime of violence" is defined in subsection (a):
"As used in this section, the term 'crime of violence' means abduction; arson; burglary; daytime housebreaking under § 30(b) of this article; kidnapping; manslaughter, except involuntary manslaughter; mayhem and maiming under §§ 384, 385, and 386 of this article; murder; rape; robbery; robbery with a deadly weapon; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder and assault with intent to rape."
The State of Maryland, through its criminal law, seems obsessed with "unnatural" sexual conduct. It has deemed such conduct so significant and reprehensible as to require not one, but three proscriptions. There is, first, the common law crime of sodomy--"the same crime referred to in the English statute, 25 Hen. 8 ch 6 (1533), and 5 Eliz. 17 (1562)." Daniels v. State, 237 Md. 71, 72, 205 A.2d 295 (1964). It is currently deemed to encompass sexual intercourse by a human with an animal, anal intercourse by a man with another person, fellatio, cunnilingus, and analingus. See R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure, § 6.1 (1983), but compare R. Perkins, Criminal Law, 2d ed., pp. 389-92. It covers most of what was proscribed by the Texas sodomy statute. Common law sodomy is punishable by up to ten years imprisonment. Md.Code Ann. art. 27, § 553.
In 1916, the General Assembly decided that the common law crime of sodomy was not sufficient protection of society. By 1916 Md.Laws, ch. 616, it enacted, as an emergency measure "necessary for the immediate preservation of the public safety," what is now § 554 of art. 27, making it illegal for any person to "[take] into his or her mouth the sexual organ of any other person or animal, or... [place] his or her sexual organ in the mouth of any other person or animal, or ... [commit] any other unnatural or perverted sexual practice with any other person or animal...." The penalty for violating this statute was substantially the same as that imposable for sodomy--ten years in prison. 1
The statutory offense is, of course, the broader one. It expresses, said the Court in Blake v. State, 210 Md. 459, 462, 124 A.2d 273 (1956), "a clear legislative intention to cover the whole field of unnatural and perverted sexual practices." See also Edmonds, McCarthy & Brumfield v. State, 18 Md.App. 55, 305 A.2d 205, cert. denied Brumfield v. State, 269 Md. 756, Edmonds v. State, 269 Md. 758, McCarthy v. State, 269 Md. 762 (1973). Thus, while it would seem clearly to include acts that would also constitute the crime of sodomy, such as fellatio and anal copulation, 2 it covers other, non-sodomy conduct as well. See, for example, Edmonds, etc., supra, involving the penetration of the male victim's anus by a broom handle. It, too, therefore, covers most of what was proscribed by the Texas sodomy law.
Finally, in 1976, as part of a general statute on rape and other sex offenses, the Legislature enacted new sections 464 and 464A to art. 27, making it a criminal offense...
To continue reading
Request your trial
-
Hall v. State
...the Maryland counterpart to the foreign crime is one of those classified in the statute as a "crime of violence." See DiBartolomeo v. State, 61 Md.App. 302, 312-13 (1985); Mitchell v. State, 56 Md.App. 162, 183-84 (1983). Once it is determined that the counterpart Maryland offense is among ......
-
Watson v. State
...counterpart to the foreign crime is one of those classified in the statute as a "crime of violence." See DiBartolomeo v. State, 61 Md.App. 302, 312-13, 486 A.2d 256 (1985); Mitchell v. State, 56 Md.App. 162, 183-84, 467 A.2d 522 (1983). Once it is determined that the counterpart Maryland of......
-
Muir v. State
...for purposes of sentencing under the statute's provisions. See Temoney v. State, 290 Md. 251, 429 A.2d 1018 (1981); Dibartolomeo v. State, 61 Md.App. 302, 486 A.2d 256 (1985). Moreover, crimes of violence may also be considered predicate offenses even though, when committed, they were not t......
-
Baltimore Gas and Elec. Co. v. Everett
... ... hearing by the Public Service Commission of the State of Maryland." ... On June 4, 1981, Ms. Everett filed a complaint with the Public ... ...