Gee v. State, 123

CourtCourt of Special Appeals of Maryland
Writing for the CourtBefore ANDERSON, MORTON, ORTH and THOMPSON, JJ., and PRETTYMAN, DANIEL T.; THOMPSON; In a memorandum opinion on motion to dismiss the indictment by reason of double jeopardy; Sodaro; Furthermore, on the topic of waiver
Citation233 A.2d 336,2 Md.App. 61
PartiesSammy GEE v. STATE of Maryland.
Docket NumberNo. 123,123
Decision Date26 September 1967

Milton B. Allen, Baltimore, Hackett & Hackett, Baltimore, on the brief, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Charles

E. Moyland, Jr., State's Atty. of Baltimore City, Baltimore, on the brief, for appellee.



This is an appeal from a judgment of the Criminal Court of Baltimore sitting without a jury, convicting appellant of being a rogue and vagabond. A sentence of seventeen and one half months in the Maryland House of Correction was imposed. Appellant was sent to Patuxent Institution for evaluation pending further orders of the court.

In a memorandum opinion on motion to dismiss the indictment by reason of double jeopardy, Judge William J. O'Donnell, trial judge, gave an excellent history of the case as follows:

Sammy Gee was charged on September 14th, 1956, by the Grand Jury in an indictment (No. 3436/1956) containing five (5) counts-storehouse breaking with intent feloniously to steal therefrom storehouse breaking with intent to unlawfully steal therefrom, rogue and vagabond, petit larceny, and receiving stolen goods.

The indictment charged that the storehouse broken into and the property allegedly stolen on September, 2, 1956 was the 'property of Meredith Bonner.' The property charged as having been stolen and received was 'one lady's umbrella, of the value of $6.75.'

Upon his arraignment on September 18th, 1956, he pleaded 'guilty' (generally). The transcript of the arraignment proceedings disclosed that he was then 17 years of age and although he made no request for the appointment of counsel, no inquiry was made as to his indigency, he was not apprised of his right to counsel, nor was it shown that he waived the assistance of counsel.

His case was held 'sub curia', apparently in order to permit the Court to obtain a psychiatric examination of him (there is a report by Dr. Joseph D. Lichtenberg filed on October 9th, 1956). On October 9 1956 he was sentenced to a term of not more than three (3) years in the Maryland State Reformatory for Males, running from September 3rd, 1956, and he was ordered committed to Patuxent Institution for a determination as to whether or not he might be classified 'as a defective delinquent.'

On March 18, 1957, (after he had served six (6) months of the sentence imposed upon him), he was, after a trial in the Criminal Court of Baltimore, found to be a 'defective delinquent', the balance of his sentence was suspended, and he was committed to Patuxent Institution.

On December 18th, 1958, after a second hearing, he was found to still be a 'defective delinquent'. On May 18th, 1961, he filed a Petition for reconsideration of that finding, but the Petition was dismissed without prejudice.

On November 21st, 1962, he had a third re-determination hearing in the Circuit Court for Baltimore County (the case apparently having been removed there on his suggestion) and he was re-committed to Patuxent Institution. Leave to Appeal to the Court of Appeals from that decision was denied by the Court of Appeals on March 8th, 1963. Gee v. Director of Patuxent Institution, (1963), 231 Md. 610, 188 A.2d 565.

A Petition for the Issuance of a Writ of Habeas Corpus was denied, without prejudice, by the U. S. District Court for the District of Maryland on December 31st, 1962.

On February 20th, 1963, he filed a Petition in the Criminal Court of Baltimore under the Post-Conviction Procedure Act, and following a hearing on September 20th, 1963, the Petition was dismissed and he was denied the relief prayed. He filed an application with the Court of Appeals on September 24th, 1963, for Leave to Appeal the Dismissal of his Post-Conviction Petition and Leave was granted on February 10th, 1965.

The Court of Appeals on July 30th, 1965, vacated his conviction in the Criminal Court of Baltimore on October 9th, 1956, granted him a new trial and ordered his release from the custody of the Director of Patuxent Institution.

The Court, in Gee v. State, (1965), 239 Md. 604, at pages 606-607, 212 A.2d 269, at page 270, said:

'The State concedes that at his criminal trial in 1956, the Appellant was neither advised of his right to counsel nor provided with counsel. Under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) there is a constitutional requirement imposed upon the State of representation of a defendant by counsel in a case where the defendant has been charged with burglary. Manning v. State, 237 Md. 349, 206 A.2d 563 (1965). Manning also held that Gideon applies retroactively and that a convictions prior to Gideon in which the Defendant was not provided with counsel must be vacated. See also Linkletter v. Walker, (381 U.S. 618) 85 S.Ct. 1731, 14 L.Ed.2d 601, 614 (1965). Infractions of constitutional rights that may render a criminal conviction a nullity are grounds for relief under the Post Conviction Procedure Act. Simon v. Director, 235 Md. 626, 201 A.2d 371 (1964). See Laird v. Director, 237 Md. 178, 205 A.2d 238 (1964).' (Italics supplied)

The Court said further at pages 608-609, 212 A.2d at page 272:

'Because the Appellant's criminal conviction was in violation of his constitutional rights and because that conviction was an essential element of the legality of his commitment as a defective delinquent, we hold that his present detention is in violation of law, and that he is entitled to be released.' (from Patuxent Institution)

On September 17th, 1965, upon his rearraignment, the Court undertook to appoint George L. Russell, Esquire (who had represented Gee in the Appeal of his Post-Conviction case in the Court of Appeals).

When his case was called for trial on October 15th 1965, it was postponed by his counsel. On October 20th, 1965, counsel filed two Motions to Dismiss the 1956 indictment-a Motion based upon the contention that the defendant would be placed in double jeopardy, and a Motion based upon the decisions of the Court of Appeals in Schowgurow v. State (1965), 240 Md. 121, 213 A.2d 475; State v. Madison (1965), 240 Md. 265, 213 A.2d 880; Smith v. State (1965), 240 Md. 464, 214 A.2d 563, and Hays and Wainwright v. State (1965), 240 Md. 482, 214 A.2d 573.

Apparently in anticipation of the Court's formal ruling on that Motion to Dismiss, the defendant was re-presented and indicted (Indictment No. 6315) by the Grand Jury on December 15th, 1965.

Judge Sodaro, on December 17th, 1965, granted the Motion to Dismiss the indictment under the Schowgurow and other decisions concerning the selection of the Grand Jury.

The new indictment charged the same five (5) counts as those charged in the 1956 Indictment plus a count charging a violation of Article 27, Section 33 as well on September 2, 1956.

Upon his arraignment on the new indictment (No. 6315/1965) on December 21st, 1965, his court-appointed counsel again filed a Motion to Dismiss this indictment on the ground that the defendant was being placed in double jeopardy.

The Court reserved ruling on the motion to Dismiss based on double jeopardy and received the evidence presented on behalf of the State. Upon the conclusion of the presentation of the State's evidence, the Court granted the defendant's Motion for Judgment of Acquittal on the First, Second and Third Counts of the Indictment because the premises which were broken into were those leased by the Fitch Dustdown Company, a body corporate, and were not the premises of T. Meredith Bonner, Jr. -Mr. Bonner was an officer-employee of the Corporation. The court further granted the defendant's Motion for Judgment of Acquittal on the Fifth and Sixth Counts of the Indictment-petit larceny and receiving stolen goods (of the value of less than $100.00) because the prosecution-under the new presentment by the Grand Jury was barred by limitations. The Court denied the defendant's Motion for Judgment for Acquittal on the Fourth Count of the Indictment-rogue and vagabond (a penitentiary misdemeanor), subject to the defendant's Motion to Dismiss on the ground of 'double jeopardy' and reserved ruling thereon.

Although Gee was in confinement at Patuxent Institution from March 18th, 1957 until the date of the Mandate of the Court of Appeals following its decision on July 30th, 1965, in Gee v. State, supra, such commitment has been civil in nature as a result of him having been found to a 'defective delinquent' within the definition of Article 31B, Sections 5 and 6, and his confinement at Patuxent Institution cannot be considered, during that interval, a penal punishment for the offense to which he pleaded guilty on October 9th, 1956.

The Fourth Count of Indictment No. 6315/1965, charging him with being a 'rogue and vagabond' in violation of Article 27, Section 490 is the same offense as that charged in the Third Count of Indictment No. 3436/1956, which was set aside on his Motion filed under the Schowgurow decisions.

In imposing the sentence, the court said:

The sentence is from today. Seventeen and one half months from today, and he will be referred to Patuxent Institution. I am really figuring the credit for six months and two weeks that he served under Judge Cullen's sentence before he was classified as a defective delinquent. The appellant presents three questions:

'1. Did the court err, advertently or inadvertently, by retaining prior knowledge of appellant's history; and, by so doing, deny him a de novo trial?

'2. Did the court err by abridging appellant's privileges and immunities as a citizen of the United States by (a) Violating his implied constitutional rights to 'Fundamental Fairness' at his trial and by (b) Punishing him again for the same offense?

'3. Did the court err in finding appellant guilty as a rogue and vagabond after acquitting him of burglary on the same facts,...

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