Horsman v. State

• Decision Date: 01 September 1989
• Docket Number: No. 925,925
• Citation: 82 Md.App. 99,570 A.2d 354
• Parties: Raymond Lester HORSMAN, III v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 99

82 Md.App. 99

570 A.2d 354

Raymond Lester HORSMAN, III v. STATE of Maryland.

No. 925 Sept. Term, 1989.

Court of Special Appeals of Maryland.

March 2, 1990.

M. Albert Figinski and Stuart R. Berger, Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank R. Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Argued before ALPERT, BLOOM and KARWACKI, JJ.

KARWACKI, Judge.

On March 28, 1989, Raymond Lester Horsman III, the appellant, was convicted at a bench trial in the Circuit Court for Anne Arundel County of attempted daytime housebreaking with intent to steal. Md.Code Ann., Art. 27, § 30(b). Appellant was sentenced on June 19, 1989, to 25 years without the possibility of parole mandated by Md.Code Ann., Art. 27, § 643B(c). On appeal from that judgment, appellant asks:

I. Was appellant's waiver of his right to a jury trial knowing, intelligent, and voluntary when, at that time, appellant was not aware of the mandatory sentence he could receive upon conviction?

II. Did the State violate appellant's due process rights and his right to effective assistance of counsel by not notifying appellant prior to trial of its intention to seek a mandatory sentence under Md.Code Ann., Art. 27, § 643B(c)?

III. Is appellant's mandatory sentence of 25 years without parole prohibited by the Eighth Amendment of the United States Constitution and Article 25 of Maryland Declaration of Rights?

IV. Did the court err in concluding that there was sufficient evidence to find that appellant attempted to commit a breaking and entering under Md.Code Ann., Art. 27, § 30(b)?

We shall address each of these issues in turn after briefly recounting the facts which gave rise to appellant's prosecution.

On September 22, 1988, Sharon Totten (Totten), a resident of 211 Twelfth Avenue in Brooklyn Park, heard her dog barking at approximately 10:30 a.m. Looking out of her window, Totten observed the following sequence of events at her neighbor's house [570 A.2d 356] at 301 Twelfth Avenue. A person, whom she later identified as the appellant, knocked at her neighbor's door, sat down on a picnic table on the patio, and then knocked again. (Pry marks were noticed around the door after the incident.) When there was no response, appellant walked to the back yard of 301 Twelfth Avenue. He ran his hand along the bottom ledge of the dining room windows at the rear of the house. (After the incident it was observed that the screen on one of these windows had been forced open.) At this point Totten telephoned 911 to report what she perceived to be an attempted breaking and entry. Then, Totten saw appellant pick up a crowbar which was on the patio and go to a basement window. Appellant used the crowbar in attempting to open the window. When he was unsuccessful in that attempt, Totten observed appellant using his foot to try to break the glass in that window. Totten heard the glass break.

About that time Detective James Baublitz of the Anne Arundel County Police Department arrived in response to Totten's 911 call. As he pulled up, he saw appellant in a crouched position in the yard at 301 Twelfth Avenue. As he got out of his car, Detective Baublitz saw appellant get up and flee through the woods next to those premises. When Detective Baublitz was unable to catch up with appellant, he broadcast appellant's description and the reported breaking and entry. Appellant was apprehended by other Anne Arundel police officers shortly thereafter.

I.

When he appeared for trial, appellant elected to waive his right to a jury trial. Appellant's trial counsel Timothy Murnane, Esq. (Murnane), questioned appellant on the record to ascertain if he understood the full import of this waiver. Murnane asked appellant if he understood that a jury would consist of 12 people selected from the voters' roll of Anne Arundel County and further, that appellant and Murnane had a right to participate in the jury's selection. Murnane also instructed appellant that all of the jurors had to find him guilty "... beyond a reasonable doubt and to a moral certainty." Appellant responded that he understood these rights. Next, Murnane asked appellant his age and how far appellant had gone in school. Appellant responded that he was 24 years old and that he had received a G.E.D. Finally, Murnane asked appellant if he was "... under the influence of any alcohol, drugs, narcotics or anything that would prevent you [him] from understanding ..." anything about the trial and if he had any questions at all about the difference between proceeding with a court trial instead of with a jury trial. Appellant responded in the negative to these questions.

Under Rule 4-246(b), a court may not accept a waiver of jury trial until the accused has been questioned on the record, and the court determines that "... the waiver is made knowingly and voluntarily." Even though appellant was questioned on the record by his counsel as to his understanding of the jury trial waiver, he argues that his waiver was not "knowing" and "voluntary" because he was not apprised at that time of the maximum sentence which he was facing under Md.Code Ann., Art. 27, § 643B(c).

The Court of Appeals has commented on what is required by Rule 4-246(b):

In determining whether the defendant has knowingly and voluntarily waived his right to a jury trial, the questioner need not recite any fixed incantation. Whether there is an intelligent, competent waiver must depend on the unique facts and circumstances of each case. However, the court must be concerned that the waiver is not a product of duress or coercion. Furthermore a defendant must have some knowledge of the jury trial right before he is allowed to waive it.

Martinez v. State, 309 Md. 124, 134, 522 A.2d 950 (1987) (citations omitted). The interrogation of appellant by his counsel met these requirements. There was no evidence that appellant's waiver resulted from coercion or duress, and he was given an adequate explanation of the right to a jury trial. We reject appellant's argument that before he could knowingly waive a trial by jury he should have been advised of the maximum punishment he was facing if convicted of the crimes with which he was charged. Appellant correctly observes that such information must be provided an accused before his plea of guilty may be accepted by the court. Rule 4-242 requires that the court determine before accepting a guilty plea that the defendant understands "the consequences of the plea." Bryant v. State, 47 Md.App. 551, 555, 424 A.2d 1115 (1981). Contrary to the situation with a jury trial waiver, sentencing is a consequence of the acceptance of a guilty plea. Sentencing, however, is not a consequence of the election to waive a jury trial.

II.

The prosecutor did not notify appellant until 18 days before his sentencing that the State intended to seek the mandatory sentence under Md.Code Ann., Art. 27, § 643B(c), ¹ notwithstanding the fact that the prosecutor was aware of appellant's prior convictions as early as five months before the trial. ² Appellant argues that the State should have informed him of its decision to pursue the § 643B mandatory sentence prior to his trial and that its failure to do so denied him due process and prevented his counsel from rendering effective assistance to him at his trial. We are not persuaded. Md.Code Ann., Art. 27, § 643B(d) provides:

(d) Compliance with Maryland Rules. If the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender.

The notice required before mandatory penalties may be imposed is specified in Rule 4-245(c):

When the law prescribes a mandatory sentence because of a specified previous conviction, the State's Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in circuit court or five days before sentencing in District Court.

Loveday v. State, 296 Md. 226, 462 A.2d 58 (1983) is dispositive of appellant's contention that although the notice given him by the State complied with Rule 4-245(c), he was denied due process because he was not given such notice prior to his trial. In Loveday the accused rejected a proposed plea agreement under which the State would have made no recommendation as to sentence if he pleaded guilty to robbery thereby exposing himself to a ten year sentence. The case was tried, and Loveday was convicted of robbery. Thereafter, he was notified by the State that it would seek the 25 year sentence mandated by Art. 27, § 643B(c). Loveday contended that he was denied due process by the State's failure to advise him during plea negotiations of its intention to seek a mandatory sentence of 25 years if he rejected the State's offer of a plea agreement. The Court of Appeals disagreed, explaining:

In the case sub judice, Loveday's exposure to a mandatory sentence depended upon whether the State could convict him a third time for a crime of violence. It was only upon the happening of this event that he became entitled to notice which he duly received. While undoubtedly such notice was traumatic to Loveday, the constitutionality of inflicting more severe penalties upon habitual offenders is no longer open to challenge.

Id. at 237-38, 462 A.2d 58, citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), cert. denied, 375 U.S. 885, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963). The Court quoted from Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912), in support of its holding:

'Although the State may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt and thereupon for the imposition of the full...