Roberts v. Warden of Md. Penitentiary

• Decision Date: 10 February 1955
• Docket Number: No. 40,40
• Citation: 206 Md. 246,111 A.2d 597
• Parties: Robert ROBERTS v. WARDEN OF THE MARYLAND PENITENTIARY.
• Court: Maryland Court of Appeals

Page 246

206 Md. 246

111 A.2d 597

Robert ROBERTS v. WARDEN OF THE MARYLAND PENITENTIARY.

No. 40.

Court of Appeals of Maryland.

Feb. 10, 1955.

Frank T. Gray, Baltimore, for appellant.

James H. Norris, Jr., Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Anselm Sodaro, State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

In this case, we granted an application for leave to appeal from the denial of a writ of habeas corpus and appointed counsel to aid appellant in the presentation of the appeal.

While the appellant was at liberty on a suspended sentence, the Grand Jury of Baltimore returned five separate indictments against him in which he was charged, respectively, with being a rogue and a vagabond, with assault on a named police officer, with assault on another named police officer, possession of a deadly weapon, and theft of an automobile. Each of the assault indictments contained three counts, charging, respectively, assault with intent to murder, simple assault, and assault on a police officer. (It may be said in passing that although it seems to be common practice in Baltimore to include a count of assault on a policeman in assault indictments, we are not aware of, nor have we been referred to, any common law or statutory authority which establishes such a crime as distinguished from assault on anyone else). His attorney of his own choice entered a plea of guilty to the second count of each of the assault indictments; that is, a plea of guilty to simple assault, and the same plea to the crime charged in each of the other three indictments. He was given consecutive sentences of two years for being a rogue and vagabond; of twenty years on each charge of simple assault; of two years for possession; and of ten years for theft; so that the total term of imprisonment amounted to fifty-four years.

The appellant bases his right to the issuance of the writ on two claims. The first is that his then attorney was in collusion with the State, in that he apologized for representing the appellant, expressed his friendship for the two police officers who had been assaulted, stated that no fee would be received, and then, without authority and against the wishes of the appellants, entered pleas of guilty. The result, it is argued, is that there was no trial within the requirements of due process. The second is that the sentence on each conviction of assault exceeds that permitted by law, and, as to the excess, he is illegally confined.

As part of the first claim, it is said that the docket entries show that there was no appearance of counsel entered for the appellant in the charge of assault on which he was first sentenced. From this, it is argued that the entering of a plea of guilty by his counsel was a nullity as to that charge, with the consequence that he is now imprisoned on a sentence imposed without plea or trial.

We think that there can be found no support for the appellant's first contention. The transcript shows that at the trial of the appellant and a co-defendant on March 3, 1953 in the Criminal Court of Baltimore, appellant's attorney asked to be allowed to enter pleas of nolo contendere. The court refused to accept these and indicated that the pleas of not guilty, which had been previously entered, would continue. At this point, appellant's counsel said: 'I will change my pleas to guilty.' The clerk then asked: 'In each case as to Robert Roberts?' to which the appellant's attorney answered: 'Yes, sir.' The court then said: 'Guilty as to Roberts in each case.' After this, counsel for the co-defendant said that he would be satisfied to have the matter submitted to the court as far as his client was concerned, on a statement of the facts, and the State's Attorney then made such a statement. Following this, the police officer, at whom the shot had been fired, took the stand and testified to the shooting. Another policeman testified to events which followed the arrest of those accused. Appellant's counsel cross-examined the latter as to Roberts' actions and his sobriety. Roberts himself took the stand. After he had been questioned by counsel for the co-defendant, he testified at length in his own defense. He frankly and specifically admitted from the stand that the State had a case against him for larceny, possession of the gun and the assaults, but complained that the newspapers had magnified the happenings out of all proportion. He said that he struck one officer to keep from being shot and attempted to explain the shooting at the other as an accident. His testimony and cross-examination, including numerous questions by the court, covering over twenty pages of the transcript.

We think it clear that no showing has been made of lack of due process. The transcript seems complete. It is barren of any hint that appellant's counsel indicated his distaste for the case or friendship for the prosecuting witnesses. That the pleas of guilty were justified is shown by appellant's conduct. He had many prior convictions. Neither the courtroom nor criminal procedures were novel to him. He stood silent when his counsel told the court that the pleas were changed to guilty, as he did when the clerk and the court, in turn, reiterated that the plea applied to each case. On the stand, he admitted he was guilty, at least technically, in the very assault charge as to which he now says the plea was not entered and as to which he had no trial. He was silent in the face of protracted opportunity to express dissatisfaction with his counsel and to reject the plea which had been entered. There can be no possible doubt, we think, that the pleas were entered in his presence with his full knowledge and acquiescence. Only the severity of the sentences, it would seem, prompted the claims as to lack of due process now relied on.

We have held repeatedly that mere allegation of collusion, whith is not supported, will not avail on habeas corpus, nor will the statement of incompetence or lack of interest of counsel, when it is shown that the appellant had the opportunity to complain to the court and did not. Obenstine v. Warden of Maryland House of Correction, 198 Md. 648, 80 A.2d 610; Rountree v. Wright, 189 Md. 292, 55 A.2d 847; Walker v. Warden of Maryland Penitentiary, 190 Md. 729, 60 A.2d 523; Ahern v. Warden of Maryland House of Correction, 203 Md. 672, 100 A.2d 645; Carroll v. Warden of Maryland Penitentiary, 201 Md. 647, 92 A.2d 449; Johnson v. Warden of Maryland Penitentiary, 200 Md. 654, 90 A.2d 221; Gillum v. Warden of Maryland Penitentiary, 200 Md. 656, 90 A.2d 173; Thanos v. Superintendent, Maryland State Reformatory for Males, 204 Md. 665, 104 A.2d 926; Stokes v. Warden of Maryland House of Correction, Md., 106 A.2d 78.

The appellant argues earnestly and cogently that the sentences of twenty years for assault are illegal. He says: (a) Code 1951, art. 27, § 14, provides a maximum penalty of ten years for conviction of assault with intent to rob, the same maximum for assault with intent to have carnal knowledge, and fifteen years maximum for assault with intent to murder; (b) the assault referred to in the statute is the ordinary, common law assault; (c) to this must be added the requisite intent if the specified crime is to be found. From this premise, appellant reasons that simple assault is a lesser criminal offense than each of the crimes mentioned in the statute, and for its commission there cannot be imposed a sentence in excess of the maximum provided by the Legislature in the statute.

As has been noted, the appellant, in pleading to each of the indictments for assault, pleaded guilty only to the count charging simple assault. He argues that this is a concession, binding the State, that he committed a lesser crime than assault with intent to murder. He makes this contention with full recognition that this Court has held, as recently as Heath v. State, 198 Md. 455, 467, 85 A.2d 43, 49, that: 'In this State there is no statutory limitation upon the amount of punishment in cases of assault and battery, and there was no limitation at common law. Apple v. State, 190 Md. 661, 668, 59 A.2d 509.' He recognizes, too, as was stated in the Heath opinion, that it has been the judicial habit to look to the attendant facts in each case of assault and to find an assault to be more or less enormous, according to the facts. Nevertheless, he presents the argument that even under these limitations there must inferred a legislative policy which limits sentences in cases of common assault to not more than that provided for more serious assaults. He says: 'Here, the expressed policy of the Legislature as to maximum sentence in assault cases is clear. The more dangerous types of assault carry a maximum sentence of 10 years and, in the case of assault with intent to murder, of 15 years. The lesser offense of simple assault must, a fortiori, carry no greater penalty than the more serious crimes which go beyond simple assault. The absurdity...