Erbe v. State

• Decision Date: 07 January 1976
• Docket Number: No. 39,39
• Parties: Ronald Ashton ERBE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 541

276 Md. 541

350 A.2d 640

Ronald Ashton ERBE v. STATE of Maryland.

No. 39.

Court of Appeals of Maryland.

Jan. 7, 1976.

Kenneth A. Reich, Baltimore (William L. Marbury and Piper & Marbury, Baltimore, on the brief), for appellant.

Bernard A. Raum, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

In this case appellant, Ronald Ashton Erbe (Erbe), was convicted on June 25, 1969, but was not sentenced until July 1, 1974. The trial court denied his motion to dismiss for lack of speedy sentencing. The Court of Special Appeals affirmed in Erbe v. State, 25 Md.App. 375, 336 A.2d 129 (1975). We granted the writ of certiorari in order that we might consider the matter. We, also, shall affirm.

Erbe was arrested in Baltimore on September 30, 1968, on charges of housebreaking and theft; released from jail on bond on October 2; indicted on October 21 on charges of housebreaking, rogue and vagabond, theft, and receiving stolen goods; and arraigned on October 31, at which time he pleaded not guilty. Counsel was formally appointed on June 25, 1969. Erbe was tried and convicted by the court on that date of two of these charges, he having elected a court trial. The trial judge held sentencing sub curia and Erbe was released in the custody of his attorney. For some inexplicable reason the case records apparently were lost until January, 1973, when in the course of a survey of pending cases, it was discovered that Erbe had not been sentenced. Sentencing was then set for March 5, 1973, with notice left at Erbe's last known address. There is no evidence that Erbe was served or had actual notice of the hearing. A bench warrant was issued when he failed to appear on that date. He was arrested on December 19, 1973, when he sought police clearance for a job as a truck driver. He remained in jail until January 16, 1974. On that date his present counsel filed a motion to dismiss because of the delay in sentencing. An evidentiary hearing was held and the motion denied. Erbe was then released on his own recognizance pending completion of a pre-sentence report. He was sentenced on July 1, 1974, to concurrent terms of three years. Sentence was suspended in each instance and Erbe was placed on probation for three years and ordered to make restitution. The trial judge said that when the matter came to light neither the Baltimore City criminal assignment office nor the state's attorney's office was willing to accept responsibility for the matter's not having been set bown for disposition, each office claiming 'that it was not the responsibility of their office to set the case in for disposition or scheduling for further hearings.'

In this Court Erbe presents three questions, (1) whether the delay here 'caused by the negligence of the State is a denial of (his) right to a speedy trial,' (2) whether the delay is a violation of due process, and (3) whether 'the . . . delay is 'unreasonable' in violation of Maryland Rule 761 a.'

For purposes of consideration of Erbe's first contention we shall assume, arguendo, as did the Supreme Court of the United States in Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957), 'that sentence is part of the trial for purposes of the Sixth Amendment' to the Constitution of the United States and Art. 21 of the Maryland Declaration of Rights, but see Ash v. State, 238 Md. 317, 208 A.2d 691 (1965). In Ash, there was complaint relative to a delay of seven months between the time of filing of a motion for new trial and the denial of the motion. this was claimed to be a violation of the speedy trial guarantee in Art. 21 of the Maryland Declaration of Rights. Judge Sybert there said for the Court:

'Although there is no question but that the appellant was entitled to a speedy trial, we hold that this right has no application to a hearing on a motion for a new trial. We think the language used by the drafters of Art. 21 clearly imports guarantees applicable to the processes leading to and ending with the criminal trial itself, and we do not believe that either the motion for a new trial or the hearing thereon constitutes a 'trial' or any constituent part thereof within the meaning of Art. 21.' Id. at 320, 208 A.2d at 693.

I Speedy Trial as Guaranteed by the Maryland Declaration of Rights

Maryland Declaration of Rights, Art. 21 provides '(t)hat in all criminal prosecutions, every man hath a right . . . to a speedy trial . . ..' Identical language was adopted as Art. 19 of the Declaration of Rights in the Constitution of 1776, prior to the adoption of the Constitution of the United States and thus prior to the adoption of the Sixth Amendment to that Constitution. This Court has said in construing Declaration of Rights, Art. 23 relative to due process that the decisions of the Supreme Court construing the due process clause of the Fourteenth Amendment are 'practically direct authority.' See, e. g., Bureau of Mines v. George's Creek, 272 Md. 143, 156, 321 A.2d 748 (1974); Rafferty v. Comptroller, 228 Md. 153, 161, 178 A.2d 896 (1962); Home Utilities Co. v. Revere, 209 Md. 610, 614, 122 A.2d 109 (1956); and Goldsmith v. Mead Johnson & Co., 176 Md. 682, 686-687, 7 A.2d 176 (1939), citing A. Niles, Maryland Constitutional Law (1915) 48. Judge Niles in his work divides the 45 articles of the Maryland Declaration of Rights into four classes. He places Art. 21 in 'Class C' entitled 'Limitations on the power of the State similar to those limitations prescribed in the United States Constitution for the Federal Government.' Although this Court does not appear to have commented relative to Art. 21 as it has with respect to Art. 23, Judge Niles says of Class C:

'These articles are, of course, of great importance. In regard to their construction, the decisions of the United States Court (sic), in reference to the corresponding provisions of the Federal Constitution, are adopted by our court as authority which is very persuasive, although not necessarily controlling. The Federal constitutional law, therefore, construing these articles of the Federal Constitution is pertinent upon the construction of articles of this class in our State Declaration of Rights.' Id. at 13.

This Court held in State v. Murdock, 235 Md. 116, 124, 200 A.2d 666, 670 (1964), cert. denied 379 U.S. 914, 85 S.Ct. 260, 13 L.Ed.2d 184 that inaction on the part of an accused would 'constitute a waiver of his right to a speedy trial' under Art. 21 of our Declaration of Rights. Accord Swift v. State, 224 Md. 300, 305, 167 A.2d 762 (1961), and Harris v. State, 194 Md. 288, 297, 71 A.2d 36 (1950).

All of the above cited cases were decided prior to the decision of the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which we shall hereafter discuss at length. The language used in Art. 21 of our Declaration of Rights relative to speedy trial is virtually identical with that in the Sixth Amendment to the Constitution of the United States. If this case had arisen prior to Barker, we would say quickly upon the strength of our prior decisions that since Erbe did not request sentencing in the intervening period he is deemed to have waived any rights conferred upon him by Declaration of Rights, Art. 21. Although we certainly anticipate no such change, it is possible that the Supreme Court might change the views it expressed in Barker. Instances have been known of its changing its views. See e. g. the discussion in Mangum v. Md. St. Bd. of Censors, 273 Md. 176, 187-93, 328 A.2d 283 (1974), relative to obscenity. We need not decide today whether the concepts expressed in Murdock, Swift, and Harris remain viable in the light of Barker. It will be sufficient to state only that we shall for purposes of our decision today regard our discussion of the Sixth Amendment right to a speedy trial as equally applicable to the right provided in Declaration of Rights, Art. 21.

II Sixth Amendment Claim

Barker was discussed at length by Judge O'Donnell for this Court in the recent case of Epps v. State, 276 Md. 96, 345 A.2d 62 (1975).

In Barker at p. 516 of 407 U.S., at p. 2185 of 92 S.Ct., the Supreme Court noted that in no prior case had it attempted to set out the criteria by which the right to a speedy trial should be judged. It then proceeded 'to make such an attempt.' It found 'no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months,' 'reject(ed) . . . the rule that a defendant who fails to demand a speedy trial forever waives his right,' and adopted 'a balancing test, in which the conduct of both the prosecution and the defendant are weighed.' It pointed out that such a test 'necessarily compels courts to approach speedy trial cases on an ad hoc basis,' and it 'c(ould) do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.' Although acknowledging that 'some might express them in different ways,' the Court identified 'four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'

a. Length of the Delay

In Barker Mr. Justice Powell said for the Court on the subject of delay:

'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less...