Silverberg v. Warden, Md. Penitentiary, 77

• Decision Date: 10 September 1969
• Docket Number: No. 77,77
• Parties: Morton A. SILVERBERG v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 657

7 Md.App. 657

256 A.2d 821

Morton A. SILVERBERG v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 77.

Court of Special Appeals of Maryland.

Sept. 10, 1969.

Morgan L. Amaimo, Baltimore, for applicant.

Francis B. Burch, Atty. Gen. of Maryland, Charles E. Moylan, Jr., State's Atty. of Baltimore City, Baltimore, for appellee.

Presented to MURPHY, C. J., and ANDERSON, MORTON, ORTH, THOMPSON, JJ.

ORTH, Judge.

This is an application for leave to appeal from an order of 18 June 1969 of Judge Albert L. Sklar, presiding in the Criminal Court of Baltimore, denying relief sought under post conviction procedures. The application is denied as to the second and third allegations of error for the reasons stated in the memorandum accompanying the order. The first allegation, that the applicant's plea of guilty was not voluntarily made, requires discussion in the light of Boykin v. State of Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, decided 2 June 1969.

Boykin asserts that a plea of guilty is more than an admission of conduct; it is, when properly accepted, a conviction; nothing remains but to give judgment and determine punishment. The Court's opinion clearly holds that it is error for a trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary; if the plea is not equally voluntary and intelligent it has been obtained in violation of due process and therefore void. This showing encompasses several factors. For the plea to be intelligent, consideration must be given to the fact that a waiver takes place when the plea is entered. This waiver involves at least three federal constitutional rights: (1) the privilege against self incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; (2) the right to trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; (3) the right to confront one's accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. As federal constitutional rights are involved, the question of the waiver of them is governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934. One of the standards is that to be effective the waiver must be 'an intentional relinquishment or abandonment of a known right or privilege,' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, and presuming waiver from a silent record is impermissible. The Court said in Boykin in regard to the waiver of the three constitutional rights involved in a guilty plea, 'We cannot presume a waiver of these three important federal rights from a silent record.' Thus the record must show, as in the waiver of right to counsel, that an accused intelligently and understandingly relinquished or abandoned his rights; anything less is not waiver. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70. To be voluntary the accused must have a full understanding of what the plea connotes and its consequence; it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. McCarthy v. United States, 394 U.S. 459, at 467, 89 S.Ct. 1166, 22 L.Ed.2d 418. The plea cannot flow from '(i)gnorance, incomprehension, coercion, terror, inducements, (or) subtle or blatant threats.' Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. at 1712. It appears from Boykin that the procedure to be followed for the record to disclose whether the plea of guilty is intelligent and voluntary is for the trial judge personally to inquire of the defendant. ¹ The Court's opinion states, 395 U.S. at 243, 89 S.Ct. at 1712:

'What is at stake for an accused facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought. * * * and forestalls the spinoff of collateral proceedings that seek to probe murky memories.' (Emphasis added; citations omitted)

Boykin, however, did not attempt to establish any general guidelines for the trial court's inquiry. The Court said in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166 (see note 1 herein) at 1171, note 20, 22 L.Ed.2d 418: 'The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself. * * * In all such inquiries '(m)atters of reality, and not mere ritual, should be controlling.' Kennedy v. United States, 397 F.2d 16, 17 (C.A. 6th Cir. 1968).' But while no general guidelines are established, the Court in Boykin quoted in note 7 from Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 105-106, 237 A.2d 196, 197-198 (1967):

'A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, this right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences.'

And in McCarthy, note 20, it said:

'As our discussion of the facts in this particular case suggests, however, where the charge encompasses lesser included offenses, personally addressing the defendant as to his understanding of the essential elements of the charge of which he pleads guilty would seem a necessary prerequisite to a determination that he understands the meaning of the charge.'

However, even if Mr. Justice Harlan's construction of the Boykin opinion-that personal inquiry by a state trial judge of the defendant is required as a matter of federal constitutional due process-is correct, we do not believe that the failure to conduct such inquiry, in itself, vitiates a guilty plea accepted prior to the date of the Boykin decision. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, in a per curiam opinion, the Court held that McCarthy should not be applied to guilty pleas accepted prior to the date of that decision. The Court said that the rule adopted in McCarthy had two purposes: (1) to insure that every defendant who pleads guilty is afforded Rule 11's procedural safeguards, which are designed to facilitate the determination of the voluntariness of his plea; (2) to provide a complete record at the time the plea is entered of the factors relevant to this determination, thereby enabling a more expeditious disposition of a post-conviction attack on the plea. It pointed out that 'a defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea's voluntariness. Thus, if his plea was accepted prior to our decision in McCarthy, he is not without a remedy to correct constitutional defects in his conviction. * * * (I)n view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively.' 89 S.Ct. 1499. We feel that the primary purpose of Boykin was to require a complete record at the time a guilty plea is entered of the factors relevant to a determination of whether it was intelligent and voluntary. Unquestionably personal inquiry by the trial judge enhances the reliability of this determination but if the plea was accepted prior to Boykin, a defendant is not without a remedy to correct constitutional defects in his conviction. We believe that there have been a large number of constitutionally valid convictions that may have been obtained in this jurisdiction without personal inquiry by the trial court of the defendant and we do not think that Boykin should be applied retroactively more than McCarthy should be so applied. We hold that Boykin, insofar as it may require personal inquiry by the trial judge, should not be applied to guilty pleas accepted prior to the date of that decision, 2 June 1969.

Maryland has long followed the rule that there is reversible error where the record does not disclose that the defendant voluntarily and knowingly entered his guilty plea. Edwards v. State, Md.App., 254 A.2d 719, decided 27 June 1969. The question is whether the record here discloses that the guilty pleas were intelligent and voluntary at the time they were accepted.

There is in the record before us an extract of the proceedings at the original trial. Two indictments against the applicant were called for trial. The transcript reads as follows:

'THE CLERK: All right. Morton A. Silverberg, will you stand, please.

Mr. Kupfer, are you familiar with these two indictments?

MR. KUPFER: (Defense Counsel) Yes, sir.

THE CLERK: And what is the plea?

MR. KUPFER: The plea is guilty as to the first count in each indictment.

THE CLERK: The pleas are guilty, first count...