Roberts v. Collins
| Citation | 544 F.2d 168 |
| Decision Date | 28 October 1976 |
| Docket Number | 76-1081,Nos. 76-1080,s. 76-1080 |
| Parties | Robert ROBERTS, Appellee, v. George COLLINS, Warden, Maryland Penitentiary, Appellant. Robert ROBERTS, Appellant, v. George COLLINS, Warden, Maryland Penitentiary, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Phillip G. Dantes and Michael Millemann, Baltimore, Md. (both Court-appointed counsel), for Robert Roberts; Peter S. Smith, Baltimore, Md., Katherine Lewis and Joel A. Smith, Law Students, on brief.
James G. Klair and Bruce C. Spizler, Asst. Attys. Gen. of Md., Baltimore, Md., for George Collins.
Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and MARKEY, Chief Judge, United States Court of Customs and Patent Appeals. *
Sentenced in a state court to two successive terms of twenty years each upon pleas of guilty to two charges of simple assault, the defendant asserted a denial of his Eighth Amendment rights, derived through the Fourteenth Amendment, to be free of cruel and unusual punishment. The district court held the sentences invalid to the extent that they exceed the statutory maximum of fifteen years which may be imposed upon a conviction of assault with intent to murder. Roberts v. Collins, D.C.Md., 404 F.Supp. 119. On appeals by both parties, we affirm.
Stopped for a traffic offense, Roberts was instructed to enter a police patrol car. While in the act of doing so, he shot one of the policemen in the shoulder and clubbed the other in the back of the head with a pistol. Out of the entire incident there arose a number of charges, including a separate charge of assault with intent to murder each of the policemen and a separate charge of simple assault upon each policeman. At the time, assault with intent to murder was a statutory crime in Maryland with a maximum sentence of fifteen years. 1 Simple assault was a common law crime with no maximum sentence.
Roberts agreed to enter guilty pleas to several counts of each indictment, including the charge of simple assault. The judge imposed a sentence of twenty years upon him upon each of the assault charges, the sentences to run consecutively. Other sentences upon other offenses were also to run consecutively, so that the total term of imprisonment imposed was fifty-four years.
We think we need add little to what was said by the district court. Simple assault, indeed, is a lesser offense than assault with intent to murder, and may not constitutionally subject one to greater punishment than that which may be lawfully imposed upon one convicted of assault with intent to murder.
Assault with intent to murder is a heinous crime. It is a lesser offense than actual murder only because the victim survives; it becomes murder if the victim dies in consequence of his wounds. To convict Roberts of assault with intent to murder each of the policemen, Maryland would have been required to prove in each instance, in addition to the shooting and clubbing, that death was not an unlikely consequence of Roberts' acts and that the acts were done under such circumstances and When, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment. In Hart v. Coiner, 4 Cir., 483 F.2d 136, 140, Weems v. United States,217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), we held that punishment for crimes should be graduated and proportioned to the offense. Exact balances may not be attainable between unrelated offenses, but the Constitution does not sanction the imposition of a greater punishment for a lesser included offense than lawfully may be imposed for the greater offense.
with such intention that, had each of the policemen died, the slayings would have constituted the crime of murder rather than manslaughter or, indeed, if self-defense were established, no crime at all. Roberts could have been convicted of simple assault without proof that the lives of the victims were put in jeopardy and without proof of the specific intention requisite for a conviction of murder. A conviction of simple assault requires proof of nothing which is not requisite to proof of guilt of assault with intent to murder; it requires less proof, not more, to convict for simple assault.
For such reasons and for those fully discussed in the opinion of the district court, we think it correctly concluded that the assault sentences imposed upon Roberts, to the extent they exceeded fifteen years each, amounted to the imposition of cruel and unusual punishment and were invalid. We find no infirmity in the conclusion that each of the sentences does not offend the Constitution and were valid to the extent that each did not exceed fifteen years, the maximum which might be imposed for assault with intent to murder.
There is an alternative contention by Roberts on his cross-appeal that the guilty pleas were involuntary because he "was not aware that common law assault carried no maximum penalty in Maryland." After concluding that there was a constitutionally required maximum penalty of fifteen years, the district court found it unnecessary to reach this alternative contention. We do not reach it for the same reason, for nowhere does Roberts contend that he was informed and reasonably understood that there was a maximum penalty of less than fifteen years. Should there be a factual basis for such a contention, this decision will not foreclose its assertion in subsequent post-conviction proceedings.
AFFIRMED.
MARKEY, Chief Judge, United States Court of Customs and Patent Appeals (dissenting).
With total respect and deference, and fully aware that dissents are normally devoid of either parentage or progeny, I find myself unable to agree with my distinguished colleagues.
My primary difficulty with the decision below and with the majority opinion is three fold:
(1) They rest upon a rationale arising from the initial presence of a charge of assault with intent to murder and not upon an interrelationship of the crime, the criminal and the punishment.
(2) The holding that no sentence for any common law assault may constitutionally exceed that prescribed by statute for assault with intent to murder leads to an incongruous result in this case. The Maryland Legislature has raised the maximum penalty for the statutory crime of assault with intent to murder from 15 to 30 years. Art. 27, § 12, Annotated Code of Maryland, Chap. 858, § 1, Act of 1975. The reasoning below, and that of the majority here, would thus find a 20 year sentence for common law assault constitutionally proscribed as cruel and unusual in 1953, but not today, after 23 years of "evolving standards of decency." See Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
(3) They cast the federal courts in the legislative role of fixing a maximum sentence for common law crimes.
These are cross-appeals from the judgment 1 of the United States District Court for the District of Maryland ordering that two 20-year prison sentences, imposed in 1953 by the Criminal Court of Baltimore on Robert Roberts (petitioner), each be reduced by five years and otherwise denying the petition for a writ of habeas corpus. I would reverse and remand with instructions allowing the original sentences to stand.
The issues are: (1) whether the district court erred in concluding that petitioner's sentences constituted cruel and unusual punishment prohibited by the Eighth Amendment; (2) whether petitioner's sentences violated Fourteenth Amendment guarantees of due process and equal protection; and (3) whether acceptance of petitioner's guilty plea violated the Fourteenth Amendment guarantee of due process.
Between 1938 and 1953 petitioner was convicted of some 18 to 20 charges. The charges of 1953 arose from events which occurred when petitioner was arrested for driving without a license. In getting into the police car, petitioner shot a first police officer and clubbed a second in the back of the head with a pistol. He was charged with 2 (1) assault with intent to murder, (2) common law simple assault, and (3) assault on a police officer. 3 Petitioner, represented by privately retained and selected counsel, pled guilty in the Criminal Court of Baltimore to two counts of common law simple assault on March 3, 1953. 4 After a hearing, at which testimony was received from petitioner and others in relation to the guilty pleas, Judge Carter sentenced petitioner to two 20-year prison terms, one on each count of common law simple assault.
Petitioner took no appeal. He has, however, petitioned the Maryland State Courts on at least seven occasions, 5 and the Federal District Courts on five occasions, 6 unsuccessfully Several years ago, petitioner was released on parole but soon violated its terms and was recommitted. He is currently confined at the Maryland State Prison.
challenging his sentences in each instance. Thus the present petition for habeas corpus is petitioner's thirteenth effort to undo the effect of the courtroom events of March 3, 1953.
The district court concluded that a sentence greater than the statutory maximum for assault with intent to murder was cruel and unusual, and thus violative of the Eighth Amendment, when imposed for a crime of common law simple assault.
Although this court in Roberts v. Warden, No. 11,201 (CA4 1967), had previously held itself bound by a Maryland Court of Appeals decision that petitioner's punishment was authorized under Maryland law, the district court considered that the "ends of justice," Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), required it again to consider the question, and that the concept of "cruel and unusual" had more recently been so judicially developed in Furman v. Georgia, 408 U.S....
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