Hoss v. State

• Decision Date: 15 November 1971
• Docket Number: No. 163,163
• Citation: 13 Md.App. 404,283 A.2d 629
• Parties: Stanley Barton HOSS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 404

13 Md.App. 404

283 A.2d 629

Stanley Barton HOSS, Jr. v. STATE of Maryland.

No. 163.

Court of Special Appeals of Maryland.

Nov. 15, 1971.

John M. Robb and Louis A. Fatkin, Cumberland, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donald W. Mason, State's Atty., for Allegany County on brief, for appellee.

Argued before MURPHY, C. J., ORTH, and MOYLAND, JJ.

MURPHY, Chief Judge.

Appellant Hoss has appealed from an order of the Circuit Court for Allegany County denying his motion to dismiss two indictments against him. The pertinent facts are these: On October 9, 1969 appellant was indicted by the Grand Jury of Allegany County, Maryland for the kidnapping of Linda Mae Peugot, her two year old daughter Lori, and for the larceny of an automobile. He was promptly served with warrants, and detainers on these charges were lodged against him in a Pennsylvania prison where he was incarcerated under a ten to twenty year sentence for rape and awaiting trial on charges of murdering a Pennsylvania policeman. On March 8, 1970 appellant was found guilty of murder and sentenced to death; he appealed the judgment to the Pennsylvania Supreme Court. Thereafter, on July 17, 1970 appellant petitioned the appropriate Maryland authorities for disposition of the Maryland indictments pursuant to the provisions of the Interstate Agreement on Detainers (the Act), Maryland Code, Article 27, Sections 616A-616R. By the provisions of Section 616B of that Act, it is specified:

'The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. * * *'

By Section 616D of the Act it is provided:

'Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. * * *'

In pursuance of appellant's request to be tried on the Maryland indictments, the Circuit Court for Allegany County appointed counsel to represent him on August 18, 1970. On August 31 appellant in proper person filed a motion 'to keep the record free of any continuance'; in the motion, he demanded an immediate trial, stating that he did not want the provisions of the Interstate Agreement on Detainers tolled for any reason. On September 15, 1970, appellant in proper person demanded his federal constitutional right to a speedy trial under the Sixth Amendment; in his motion claiming the right, he asserted that unless he was afforded a speedy trial, witnesses available to establish an alibi for him would be lost.

In November or early December of 1970, the State set the case for trial on January 11, 1971. On December 4, 1970, appellant' counsel petitioned the court for an order that appellant be returned to Allegany County 'a reasonable number of days' before the January 11, 1971 trial date. The court granted the order. By motions also dated December 4, 1970, appellant's counsel sought issuance of writs of habeas corpus ad testificandum to have two fellow prisoners of appellant in the Pennsylvania prison appear for him as witnesses. It was requested that they be brought to Allegany County prior to trial to permit counsel to properly prepare appellant's defense. The court took no action on these motions. On December 22, 1970, almost a month prior to the expiration of the 180 day period prescribed by Section 616D, the State petitioned for a continuance of the trial, claiming that as appellant was being held under sentence of death in Pennsylvania, neither the purpose underlying the Act nor its provisions were applicable to him. It was the State's position that the death sentence imposed upon appellant did not constitute the prerequisite 'term of imprisonment' necessary under Section 616D to invoke the Act's provisions; and, further, that since it was the purpose of the Act, as specified in Section 616B to foster prisoner rehabilitation, it was inapplicable to persons under sentence of death. The State advanced the further reason for the continuance that should appellant's conviction and sentence be affirmed by the Pennsylvania Supreme Court, and the death sentence carried out, the Maryland cases would become moot. Appellant opposed the State's petition for a continuance and a hearing was set for January 5, 1971. At the hearing appellant's counsel did not take serious issue with the State's position respecting the non-applicability of the Act to a person incarcerated under a death sentence; rather, counsel argued strenuously that notwithstanding appellant's death sentence he was nevertheless entitled to exercise his constitutional right to a speedy trial. Counsel urged that since appellant's death sentence could be set aside on appeal, the mere fact of its imposition was an insufficient basis to grant a postponement and would defeat his constitutional right to a speedy trial.

The court held the State's petition for continuance sub curia and the trial set for January 11, 1971 was not held. The 180 day statutory period provided for in Section 616D of the Act expired on January 18, 1971. Three days thereafter, appellant filed a motion to dismiss the indictments under Section 616F(c) of the Act which provides that an indictment be dismissed with prejudice if not brought to trial within the 180 day period. Appellant's motion for dismissal was based on the twofold ground, first, that the dismissal was proper under Section 616F(c) of the Act and, second, because his constitutional right to a speedy trial had been violated.

It was not until March 24, 1971 that the court filed an 'Opinion and Order' in the case. The court stated therein, by way of introductory background, that the appellant had requested an immediate trial under the Act and also claimed his constitutional right to a speedy trial. The court held, on authority of Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 that appellant was 'entitled to a speedy trial under the 6th Amendment to the United States Constitution notwithstanding the fact that he is incarcerated under a sentence in a foreign jurisdiction.' Following this pronouncement, the court said:

'* * * This determination makes it unnecessary to consider his contention under the Interstate Detainer Act, although the Court is of the opinion that the State's position is well taken and that the purpose of the Interstate Detainer Act is to dispose of pending charges in order that a Defendant's rehabilitation may be effected. This objective could hardly be applicable to a death sentence which the Defendant is under in Pennsylvania since rehabilitation is moot under such circumstances. * * * The constitutional right to a speedy trial does not mean an immediate trial and the delay, if any, in the present case has not resulted in (1) oppressive incarceration; (2) caused the Defendant undue anxiety; and (3) impaired the ability of the accused to defend himself as suggested by U. S. v. Ewell, 383 U.S. 116 (86 S.Ct. 773, 15 L.Ed.2d 627).'

The court directed that appellant be tried within 'a reasonable period of time.' While the original copy of the court's opinion carries a pencil notation that the State's Attorney requested that trial be set in May of 1971, nothing in the record otherwise establishes that a trial date was thereafter fixed. In any event, on April 21, 1971 appellant entered an appeal from the court's order denying his motion to dismiss the indictments. The record on appeal was transmitted to us on May 21, 1971. No motion was made to advance the case for argument under Maryland Rule 1045, and we heard oral argument on the appeal on October 4, 1971. On October 12, 1971, the Pennsylvania Supreme Court affirmed appellant's murder conviction but vacated the death sentence on the ground that at the penalty phase of the trial the jury had improperly heard testimony concerning appellant's alleged kidnapping in Maryland of Linda and Lori Peugot. Commonwealth v. Hoss, 283 A.2d 58, filed October 12, 1971. ¹

I

The provisions of the Interstate Agreement on Detainers apply only in cases where a detainer has been lodged against a prisoner who has entered upon a term of imprisonment; the Act contains no directive that all those accused of a crime and incarcerated in prison in a party state must be tried within the period of 180 days if they so demand. ² King v. State,5 Md.App. 652, 249 A.2d 468; State v. Long, 1 Md.App. 326, 333, 230 A.2d 119. Maryland lodged its detainer against appellant with Pennsylvania prison authorities at a time when he was serving a ten to twenty year sentence for rape; ...