Hobbs v. Pepersack

• Decision Date: 07 June 1962
• Docket Number: Civ. No. 12300.
• Citation: 206 F. Supp. 301
• Parties: Joseph HOBBS, Jr. v. Vernon L. PEPERSACK, Warden, Maryland Penitentiary.
• Court: U.S. District Court — District of Maryland

206 F. Supp. 301

Joseph HOBBS, Jr. v.Vernon L. PEPERSACK, Warden, Maryland Penitentiary.

Civ. No. 12300.

United States District Court D. Maryland.

June 7, 1962.

Paul Berman, of Baltimore, Md., for petitioner.

Thomas B. Finan, Atty. Gen. of Maryland, and Robert F. Sweeney, Asst. Atty. Gen., of Maryland, for respondent.

THOMSEN, Chief Judge.

In December 1946 and January 1947, eight indictments were filed in the Criminal Court of Baltimore City against Joseph Hobbs, Jr.(Hobbs).Six of the indictments included counts based on the statute now codified as Art. 27, sec. 488, of the Maryland Code, 1957 ed., robbery with a dangerous or deadly weapon; in the other two the most serious offense charged was assault with intent to rob.

On January 7, 1947, Hobbs was arraigned before Chief Judge W. Conwell Smith, pleaded guilty to three of the indictments charging robbery with a dangerous and deadly weapon (two with a pistol and one with a knife) and pleaded not guilty to the other five indictments, which were stetted.The sentence imposed in each of the three cases was twenty years, to run concurrently with the others.

Hobbs filed approximately forty petitions for habeas corpus or other relief in the state courts, all of which were denied, one at least after a hearing before Judge Smith.On appeal that order was affirmed, Hobbs v. Warden, 194 Md. 722, 70 A.2d 814.See alsoHobbs v. Warden, 197 Md. 629, 80 A.2d 38;Hobbs v. Warden, 219 Md. 684, 148 A.2d 380; and especially Hobbs v. Warden, 220 Md. 685, 155 A.2d 70, 71.Certiorari from the last decision was denied by the Supreme Court, 362 U.S. 906, 80 S.Ct. 618, 4 L.Ed.2d 557.

Hobbs also filed eight petitions for habeas corpus in this Court, all of which were denied.An appeal from the decision of the fifth petition was dismissed.Hobbs v. Swenson, 4 Cir., 199 F.2d 268.In his eighth petition, as in the earlier ones, Hobbs contended that he was unconstitutionally denied the assistance of counsel at his trial.From the denial of the eighth petitionhe appealed to the Fourth Circuit, which held that the petition alleged grounds which required a hearing in this Court, and ended with the following paragraph:

"The case will be remanded to the District Court.If the state so desires, a hearing may then be held to determine whether the defendant was in fact represented by counsel at his trial, or whether he intelligently waived his right to counsel.If the state does not contest the truth of the petition, or offer any other reason for denying relief, the District Court should afford the state a reasonable opportunity to retry the prisoner.In default of this the court should order his release.CompareRogers v. Richmond, 365 U.S. 534, 549, 81 S.Ct. 735, 5 L.Ed. 2d 760(1961)."Hobbs v. Pepersack, Warden, 4 Cir., 301 F.2d 875, at 880.

On remand the state concedes that Hobbs was not represented by counsel at his trial, i. e. arraignment.The state contests the truth of the petition; but Judge Smith has died, the records of the reporter have been destroyed, and the state has not been able to find anyone who remembers the arraignment in this case.Called by the state, Hobbs testified that Captain Walsh of the Baltimore Police Department stood by his side at the arraignment and indicated to him the indictments to which he should plead guilty.Captain Walsh denied this, and I do not believe Hobbs, who made several other incredible statements and charges against Judge Smith.Hobbs had on several prior occasions been arraigned in magistrate courts on various charges, and had entered pleas thereto.He had made a confession to the Baltimore police.It is a reasonable inference that he had agreed with the State's Attorney to plead guilty to three of the indictments, with the understanding that the others would be stetted.However, such evidence does not prove that Hobbs intelligently waived his right to counsel, which the mandate indicates is the controlling question.There remains the question whether the state has offered "any other reason for denying relief".In 1942Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595, had recently been decided, and Judge Smith evidently believed that a charge of robbery with a dangerous or deadly weapon was not so intricate that a layman could not understand the charge, especially where the weapon used was a pistol or a knife.

In holding the contrary, the Fourth Circuit relied on Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed. 2d 442, a recidivist proceeding, where the problems included the fairness of the previous trials, and the question whether the recidivist proceeding itself might be subject to attack as an ex post facto application of the law or susceptible to a plea of double jeopardy.In that casethe Supreme Court stated the test to be whether the "nature of the charge" was "too intricate for a layman to master".368 U.S. at 446, 82 S.Ct. at 500.The Fourth Circuit stated that the "present casefalls squarely within the rationale of Chewning".301 F.2d at 878.To substantiate this conclusion the Fourth Circuit said:

"The crime with which Hobbs was charged was robbery with a deadly weapon with a potential aggregate sentence of 160 years on the eight counts.Anno.Code of Maryland, art. 27, § 488(1957).As distinguished from simple robbery, id.§ 486, which carries a maximum sentence of ten years, the use of a deadly weapon in perpetrating a robbery doubles the possible punishment.The statute, however, not only fails to define the term `robbery,' but it also gives no indication what weapons are considered deadly.The answer to both questions can be found only in the Maryland case law.Even assuming the doubtful proposition that Hobbs might know how to research such a problem, the case law itself furnishes no clear answer.For example, the Court of Appeals of Maryland has held that a loaded gun may be a deadly weapon while an unloaded one may not.Davis v. State, 225 Md. 45, 168 A.2d 884(1961).Also, a knife may be either a deadly weapon or only a dangerous one, depending on the size of the blade and manner of its use.SeeBarefoot v. State, 222 Md. 67, 158 A.2d 649(1960).Likewise, a weapon not deadly per se, such as a club, may not even be dangerous within the meaning of the statute unless utilized in a threatening manner.Davis v. State, supra.At all events, to secure a conviction for the more serious degree of robbery, the state must prove that the defendant had both the intent to commit the robbery and the intent to use the deadly weapon in furtherance thereof.Midgett v. State, 216 Md. 26, 139 A.2d 209, 217(1958);Hayes v. State, 211 Md. 111, 126 A.2d 576, 578(1956).Manifestly, only skilled counsel could determine whether a plea of guilty was warranted or the state's evidence insufficient to support the charges."4 Cir., 301 F.2d 875, at 878.

Sec. 488 and the indictments, however, refer to dangerous as well as deadly weapons.In Hayes v. State, cited by the Fourth Circuit, the Court of Appeals of Maryland said:

"The appellant argues that it is necessary to show that the weapon is deadly as well as dangerous, and that an unloaded weapon cannot be deadly when it is incapable of being discharged.We think it is sufficient under the statute to show that the weapon is either dangerous or deadly, for the words are used in the alternative.The fact that the indictment, following the usual practice and the form set out in Code 1951, Art. 27, sec. 575, as enacted by Ch. 84, Acts of 1945, uses the conjunctive is not controlling.SeeBonneville v. State, 206 Md. 302, 307, 111 A.2d 669

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