Smith v. State
| Citation | 440 A.2d 406,50 Md.App. 638 |
| Decision Date | 04 February 1982 |
| Docket Number | No. 460,460 |
| Parties | William Jerome SMITH v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Cynthia E. Young, Assigned Public Defender, for appellant.
Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and Jimmy L. Hill, Asst. State's Atty. for Montgomery County, on the brief, for appellee.
Argued before MORTON, MOYLAN and MOORE, JJ.
We are confronted here with an appeal by William Jerome Smith and a cross-appeal by the State. Mr. Smith challenges his convictions of armed robbery and use of a handgun in the commission of a felony on the grounds that he was denied a speedy trial and that the Interstate Agreement on Detainers, Md.Ann.Code, Art. 27, § 616A et seq. (1976 Repl.Vol.), was violated. These contentions, we find herein, are without merit, and the judgments of conviction shall be affirmed.
The State, thwarted by the trial court in a pursuit of enhanced punishment under Md.Ann.Code, Art. 27, § 643B(c) (1981 Cum.Supp.), contends that appellant's two previous convictions for armed robbery pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010 (1976 Ed.) 1 may be used to invoke the mandatory sentencing provisions of the Maryland Code, supra, even though they were set aside under § 5021 of the FYCA. 2 We disagree and shall affirm the ruling of the trial court.
Appellant was convicted in the Circuit Court for Montgomery County on January 7, 1981, of armed robbery and use of a handgun in the commission of a felony. At sentencing on April 7, 1981, the State offered evidence that he had been twice previously convicted of crimes of violence for which he had served a prior term in a correctional institution. 3 Specifically, the State proffered that appellant was convicted of armed robbery in the District of Columbia on October 4, 1972, and was sentenced to 10 years under the FYCA, 18 U.S.C. § 5010(c). This conviction was thereafter "set aside" pursuant to 18 U.S.C. § 5021(a) 4 in April, 1979.
The State also presented evidence that appellant had entered a guilty plea to armed robbery on January 8, 1973, and was sentenced to 10 years under the FYCA, which was likewise set aside pursuant to § 5021(a) in April, 1979.
The trial court (McAuliffe, John F., J.) refused to sentence appellant as a subsequent offender under the Maryland Code, holding that because his convictions had been set aside pursuant to § 5021(a) of the FYCA, they could not be considered as prior convictions.
The State's appeal, which we shall address first, presents a narrow issue that has not heretofore been considered by the Court of Appeals or this Court. In Calhoun v. State, 46 Md.App. 478, 418 A.2d 1241 (1980), aff'd, 290 Md. 1, 425 A.2d 1361 (1981), we answered in the affirmative the question of whether a prior conviction under the FYCA would qualify for enhanced punishment under Maryland's crimes of violence statute. The question now before us, not present in Calhoun, is whether a conviction under the federal statute, which has been set aside pursuant to its provisions, may nevertheless be considered for purposes of enhanced punishment under Art. 27, § 643B. We think the trial court correctly answered this question in the negative.
In support of its contention that the trial court erred, the State argues that the pivotal question is whether § 5021(a) expunges a conviction or simply removes "the attendant disabilities of a conviction, in futuro." 5 The decisions of federal courts interpreting the Act reflect divergent views with respect to whether § 5021 is or is not an expunction statute. 6 An erudite and comprehensive analysis of the cases is contained in Doe v. Webster, 606 F.2d 1226 (D.C.Cir.1979), in an opinion by Harold H. Greene, D.J., sitting by designation.
This Court is inclined to agree with the approach of the United States Court of Appeals for the Fourth Circuit in United States v. Purgason, 565 F.2d 1279 (1977). There the government relied heavily upon United States v. McMains, 540 F.2d 387 (8th Cir. 1976), in which the Court forcefully rejected a contention that § 5021 was an expunction statute. Writing for the Fourth Circuit in Purgason, Senior Circuit Judge Field held McMains inapposite because the youth offender there was requesting the Court to expunge the record of the conviction as well as the conviction itself. But Judge Field went on to say, in effect, that whether § 5021 was an expunction statute was beside the mark:
(Emphasis added; footnote omitted.)
We reject the State's contention in this case that we must determine whether or not § 5021 is an expunction statute. The statute is abundantly clear: Once a youthful offender has been discharged from probation under § 5021, such discharge "automatically" sets aside the conviction. Arguing against the plain meaning of the statute, the State contends that a federal youth offender should not be permitted to use § 5021 as a shield to prevent enhanced punishment for the commission of a subsequent offense under a recidivist statute such as § 643B.
There is surface appeal to the State's rationale that the fact of rehabilitation of the youth offender as determined under § 5021 is negated by the commission of a subsequent crime. However, Congress has not seen fit to provide that a set-aside conviction is only conditionally set aside. Nor has the General Assembly of Maryland declared that a prior conviction of a crime of violence qualified for enhanced punishment under Art. 27, § 643B even though set aside under the FCYA.
Therefore, we must reject the State's contention that the effect of § 5021 can be no greater than an executive pardon which does not preclude enhanced punishment under habitual criminal statutes. See Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914). See generally, Annot., 31 A.L.R.2d 1180 (1953). The short answer here is that although judicial discretion precedes the granting of probation or parole under the FYCA, just as the exercise of executive discretion is involved in the grant or denial of the pardon, the effect of the discharge provided under § 5021 is entirely automatic; there are no statutory provisions that the automatic discharge be contingent in any way upon continued rehabilitative behavior.
When appellant was indicted on March 21, 1980, he was being held in Virginia under an armed robbery indictment in that jurisdiction. He ultimately entered a guilty plea and received a 12-year sentence on May 30, 1980. His trial in Maryland began on January 5, 1981.
Under these circumstances, we perceive no basis for appellant's argument that he was deprived of a speedy trial on constitutional grounds. The first reasonable opportunity Maryland had to bring appellant to trial was after May 30, 1980, the sentencing date in Virginia. 7 Assuming that the clock began to run in June, 1980, the elapsed time between then and the date of trial was slightly in excess of six months. We cannot agree that the threshold of constitutional dimension was crossed in this case. The balancing process of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), has not been triggered. 8
Appellant's second contention-that the charges should have been dismissed on the ground that he was not tried within the 180-day period specified in the Interstate Agreement on Detainers Act-is also without merit. 9 The provisions of the Act do not become operative until "a person has entered upon a term of imprisonment in a penal or correctional institution of a party state" and has made a written request for "a final disposition" of the charges against him. Art. 27, § 616D(a).
Here, appellant was sentenced for the Virginia conviction on May 30, 1980. A detainer for the Maryland charges was filed on July 3, 1980. The record does not reflect that appellant made any final request for disposition of that detainer. To the contrary, the record before us contains a communication dated August 4, 1980, to the Governor of Virginia from an Assistant Attorney General recommending that the Governor "disapprove the request of the State of Maryland for (appellant's) custody" based upon a request to that effect by appellant himself. 10 The record also contains a letter dated November 25, 1980, from the appellant to the Assistant Attorney General advising him that he waived any objection to Maryland's request for custody.
Appellant argues that the Interstate Detainer Act must be liberally construed. As Chief Judge Gilbert stated for this Court in Isaacs v. State, 31 Md.App. 604, 358 A.2d 273, cert denied, 278 Md. 724 (1976), "the phrase 'liberally construed' does not mean that courts are free to bend the legislation (The Interstate Detainer Act) out of shape or to remold it to some other form." Id. at 611, 358 A.2d 273. We fail to find in this case any request by appellant for "a final disposition" under the Act of the charges against him. We therefore reject his contention that the 180-day period began on May 30,...
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