Franklin v. State

• Decision Date: 10 January 1972
• Docket Number: No. 282,282
• Citation: 264 Md. 62,285 A.2d 616
• Parties: Marcus A. FRANKLIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 62

264 Md. 62

285 A.2d 616

Marcus A. FRANKLIN v.STATE of Maryland.

No. 282.

Court of Appeals of Maryland.

Jan. 10, 1972.

Michael Millemann, and Leonard A. Briscoe, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Edward F. Borgerding, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

Appellant Franklin, who was sixteen years old in 1969 when the offense was committed, was tried for and convicted of robbery with a deadly weapon in the Criminal Court of Baltimore when he was seventeen.Both when he was charged and when he was convicted, Md.Code 1957 (1969 Cum.Supp.), Art. 26, § 70-1(c), defined a child subject to the laws governing juvenile cases as a person under the age of sixteen, whereas the law applicable to the counties of Maryland made persons under the age of eighteen juveniles.Since he was not a juvenile in Baltimore City, Franklin was not brought before the Juvenile Court for the crime he committed in the City and, of course, there was no waiver of jurisdiction by the Juvenile Court.Section 70-2 of the Art. 26 of the Code gives 'exclusive original jurisdiction' to the Juvenile Court over a delinquent child-the definition of which includes one who has committed an act which would be a crime if done by a person who is not a child.Under § 70-16 of Art. 26 that exclusive original jurisdiction (with certain limitations not here pertinent) may be waived, and the child may be held for trial under the regular procedures of the court which would have jurisdiction of the offense if committed by an adult.Under the statute there must be a waiver hearing and a consideration by the court of these factors:

1.Age of child.

2.Mental and physical condition of child.

3.The child's amenability to treatment in any institution, facility or programs available to delinquents.

4.The nature of the offense.

5.The safety of the public.

An order of waiver is a final order and immediately appealable.Section 70-16(d) then provides: 'No person, either prior or subsequent to his 18th birthday, shall be prosecuted for criminal offense committed prior thereto unless the case has been transferred as provided in this section.'

On August 6, 1970, in Long v. Robinson, 316 F.Supp. 22, the United States District Court for the District of Maryland(Watkins, C. J.) held that the Baltimore City exception to the general Maryland statutory treatment of juveniles that required the trial as adults of sixteen and seventeen year olds arrested for crimes committed in the City was arbitrary and unreasonable and a denial of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution.The decision was in terms made applicable to all cases not finally decided on May 158 1969, the day the suit was filed.

The Court of Appeals for the 4th Circuit affirmed the holding on the constitutional question on the opinion of Judge Watkins, and did not disturb his ruling on retroactive applicability.SeeLong v. Robinson, 436 F.2d 1116.In Greene v. State, 11 Md.App. 106, 110-111, 273 A.2d 830, 833, the Court of Special Appeals said and held that:

'Although decisions of the United States District Courts or of United States Courts of Appeals, unlike decisions of the Supreme Court of the United States, are not binding upon this Court, Moon v. State, 1 Md.App. 569, 232 A.2d 277, United States ex rel. Lawrence v. Woods (7 Cir.)432 F.2d 1072, filed 10/19/70(CA 7)we are, in this case, persuaded to follow the federal courts on the basis of the testimony produced in Long v. Robinson, supra(316 F.Supp. 22).That case has already produced considerable confusion in the processing of juveniles in the courts of Baltimore; a contrary decision by this Court would simply add to the confusion.In addition, the Legislature has deemed it wise to abolish the exception for Baltimore City as of July 1, 1971, and further attempts to extend the date now appear unlikely.

'Having decided Md. Code, Art. 26, § 70-1(c), insofar as 16 and 17 year old children in Baltimore City are treated differently from all other children of the same age in the state, is invalid, there arises the question of severability.We have no difficulty in deciding that only the exception for Baltimore City is invalid.The intention of the legislature is shown by the presence of a severability clause, Md. Code, Art. 26, § 70-26, and by the repeal of the exception by the legislature, albeit with a delayed effective date.Therefore, the Act is now effective in uniform application throughout the state.SeeBuckheit v. Buckheit, 10 Md.App. 526, 272 A.2d 54 for a discussion of severability in general.

'In Long v. Robinson, supra, the trial court held its decision applicable to all cases not finally decided on May 15, 1969, the date of institution of the proceedings therein.Although the decision in this respect was affirmed on appeal, the appellate court did so in the basis that the class action suit involved there could affect only those persons whose convictions had not become final on such date.It specifically reserved the question as to whether or not it would apply to those persons whose convictions had become final on May 15, 1969.

'We think the administrative dislocation caused by the decision would be reduced if we decided its retroactive application at this time.We hold that the decision is not retroactive to those cases finally decided on May 15, 1969 * * *.We adopt the finality rule applied in Long v. Robinson, supra only to keep the administrative burdens at a minimum.'

The Court then decided that the criminal court conviction of Greene (who, like Franklin, was sixteen at the time of the crime) would have been 'proper' if the Juvenile Court had waived jurisdiction and, without deciding the merits of Greene's appeal from the judgment of the criminal court, remanded the case for the purpose of having a waiver hearing and held (p. 113, 273 A.2d p. 834):

'In the event the Juvenile Court determines not to waive jurisdiction, or if the State decides not to prosecute the case further, trial court is directed to vacate the judgment previously entered in the Criminal Court.If, on the contrary, the Juvenile Court determines to waive jurisdiction, we direct the transcript be returned to this Court for determination of the remaining issue in the case.'

It is against this backdrop that Franklin appealed his conviction by the Criminal Court of Baltimore to the Court of Special Appeals, which in an unreported opinion filed February 16, 1971 said:

'Appellant was convicted in the Criminal Court of Baltimore of armed robbery, was sentenced, and appealed.The offense occurred on July 15, 1969.

'The record shows that appellant was 16 at the time of the offense.For the reasons given in Greene v. State, 11 Md.App. 106(273 A.2d 830), we remand this case for further proceedings as directed in Greene.'

The waiver hearing was held and on April 29, 1971 a waiver order was entered.The appeal then...