Hoss v. State

• Decision Date: 14 June 1972
• Docket Number: No. 382,382
• Citation: 266 Md. 136,292 A.2d 48
• Parties: Stanley Barton HOSS, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 136

266 Md. 136

292 A.2d 48

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

No. 382.

Court of Appeals of Maryland.

June 14, 1972.

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

Clarence W. Sharp, Asst. Atty. Gen., Baltimore, for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and DULANY FOSTER (specially assigned), JJ.

McWILLIAMS, Judge.

We shall consider here the applicability to the case at bar of the Interstate Agreement on Detainers, Code (1971 Repl. Vol.), Art. 27, §§ 616A-616R. The Court of Special Appeals affirmed an order of the Circuit Court for Allegany County, Getty, J., denying appellant's motion to dismiss the indictments against him. On 15 February 1972 we ordered the issuance of the writ of certiorari. We shall state only those facts which seem necessary for our discussion of the novel question they present. A more complete statement will be found in Hoss v. State, 13 Md.App. 404, 283 A.2d 629 (1971).

On 9 September 1969 the appellant (Hoss) escaped from a jail in the vicinity of Pittsburgh. Having been convicted of rape he had been awaiting the imposition of sentence. Ten days thereafter he killed a Pennsylvania police office for which later on he was indicted. On 22 September a Maryland woman and her two year old daughter disappeared. Hoss was indicted by the Allegany County Grand Jury in October 1969 for the kidnapping and abduction of the woman and her child and the larceny of her motor vehicle. On 4 October, following his capture in Iowa, he was brought back to Pennsylvania. For the rape he was sentenced to a term of 10 to 20 years. In March 1970 he was convicted of the murder of the police officer and in September he was sentenced to death. His conviction was affirmed by the Supreme Court of Pennsylvania in October 1971 but the sentence of death was vacated for reasons not now relevant and the case was remanded for further sentencing proceedings. Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). ¹

In July 1970, after his conviction but before the death sentence was imposed, detainers were lodged by Maryland authorities with the Pennsylvania Bureau of Correction. Immediately thereafter Hoss requested final disposition of the Allegany County indictments in accordance with the provisions of Art. 27, §§ 616A-616R. He waived extradition and consented to his eventual return to the Pennsylvania jail all as required by the statute.

Section 616D of Art. 27 provides in part:

'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.' (Emphasis added.)

The text of § 616F(c) follows:

'(c) Dismissal of indictment, etc.-If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.' (Emphasis added.)

Counsel was appointed to represent Hoss on 18 August 1970. On 31 August, fearing they might agree to a continuance of his trial, he filed, in proper person, a motion in which he stated, '* * * I in NO WAY seek, desire or accept a continuance in these indictments * * *.' Again on 15 September he filed, in proper person, a motion demanding a speedy trial. He insisted that unless trial was initiated promptly he would lose the benefit of the testimony of witnesses claimed to be vital to his defense. His case was set for trial on 11 January 1971, within the 180 day provision of the statute. Early in December counsel for Hoss sought and obtained an order directing the State to bring him to Allegany County 'a reasonable number of days before 11 January 1971, so that his counsel * * * (might) confer with him prior to trial.' Petitions for the production of two witnesses incarcerated in Pennsylvania also were presented but no action was taken thereon by the court. On 22 December 1970 the State filed a petition for a continuance giving as reasons therefor the probable affirmance, and subsequent execution, of the death sentence which, it was contended would make the Maryland trial moot, and, the purpose of the statute being rehabilitative in nature, it should not be applied in the case of one on whom the death sentence has been imposed. After argument, in which Hoss's counsel sturdily resisted the granting of the continuance, Judge Getty held the matter sub curia. He was still holding it sub curia when the 180 day period expired. On 21 January 1971, after the expiration of the 180 days, Hoss moved to dismiss the Maryland indictments, alleging that he had been denied a speedy trial and that the State had not brought him to trial within the statutory 180 day period.

What follows is the pertinent portion of Judge Getty's opinion and his order of 24 March:

'The court is of the opinion that the accused is 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. Dickey v. Florida No. 728 October Term 1969 (398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26), United States Supreme Court and Klopfer v. North Carolina, 386 U.S. 213 (87 S.Ct. 988, 18 L.Ed.2d 1). 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 Defendant's Motion to Dismiss the Indictment is denied. 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 United States v. Ewell, 383 U.S. 116 (86 S.Ct. 773, 15 L.Ed.2d 627).

'ORDER OF COURT

'It is hereby ORDERED by the Circuit Court for Allegany County, Maryland, this 24th day of March, 1971, that Stanley Barton Hoss, Jr., be, and he is hereby determined to be entitled to a speedy trial in Nos. 1089 and 1090 Criminal Trials whereby he stands charged with the crime of kidnapping and abduction.

'It is further ORDERED that the State of Maryland shall undertake to arrange for an orderly trial of these matters on the merits within a reasonable period of time.

'And it is further ORDERED that the Motion of the Defendant to dismiss the indictment against him, be, and the same is hereby denied.'

It is obvious, we think, that Judge Getty either declined or neglected to grant the State's petition for a continuance. He seems to have concluded that the statute was inapplicable because Hoss was entitled to a speedy trial under the Sixth Amendment. That he thought the State's position, in respect of the death sentence making the trial moot, was 'well taken' seems, in the circumstances, to be merely dictum.

Hoss noted a timely appeal to that part of Judge Getty's order denying his motion to dismiss the indictments.

The Court of Special Appeals, speaking through Chief Judge Murphy, seems to have rejected the notion that Hoss's right 'to a speedy trial under the 6th Amendment' makes it unnecessary to consider his contention 'under the Interstate Detainer Act.' Judge Murphy, for his court, said:

'* * * 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; he had not then been convicted of the Pennsylvania murder. Thus, at the time the detainer was filed, the appellant was serving a 'term of imprisonment' within the meaning of Section 616D of the Act and its provisions were clearly applicable to him. Though subsequently convicted of murder and sentenced to death, appellant continued serving the sentence imposed upon him for rape, at least during pendency of his appeal and until the judgment imposing the death sentence became final.' Id. 13 Md.App. at 410-411, 283 A.2d 633. (Emphasis added.)

But Judge Murphy went ont ow say that the 'later imposition of the death sentence added a new dimension to the circumstances surrounding' Hoss's demand for trial under the provisions of the statute. (Emphasis added.) The petition for a continuance, he added, did show good cause 'not on the basis that the Act (statute) did not apply, but rather because, in the circumstances, affirmance of the death sentence and its imposition would likely have mooted the Maryland cases.' But, as we have observed, Judge Getty did not grant a continuance. The court, still speaking through Judge Murphy, attempted a finesse of this contretemps in these words:...