Toporzycki, In re

• Decision Date: 03 February 1972
• Docket Number: No. 393,393
• Citation: 287 A.2d 66,14 Md.App. 298
• Parties: In the Matter of Charles Eldridge TOPORZYCKI.
• Court: Court of Special Appeals of Maryland

Page 298

14 Md.App. 298

287 A.2d 66

In the Matter of Charles Eldridge TOPORZYCKI.

No. 393.

Court of Special Appeals of Maryland.

Feb. 3, 1972.

Charles A. Rees, Baltimore, with whom was Peter S. Smith, Baltimore, on brief, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., H. Gary Bass and Edward M. Ranier, Asst. State's Attys., for Baltimore City on brief, for appellee.

Argued before MURPHY, C. J., and MORTON and ORTH, JJ.

ORTH, Judge.

CHARLES ELDRIDGE TOPORZYCKI was born 23 July 1953. His recorded difficulties with the law began during the ninth year of his life. On 21 March 1963 he was found delinquent and dependent upon a charge of failing to conform to school rules and regulations. He was detained at the Maryland Children's Center and then the Maryland Training School. He was released from detention and granted probation on 2 April 1963. ¹ Charged with the theft of a bicycle, in May 1963 he was 'dismissed from probation' and was committed to the Maryland Training School on the new charge. He was released 7 February 1964. On 13 April 1964 a warrant was issued charging him with being a run-away. There was an emergency hearing 'for the reasons that on April 14, 1964 he was in the company of two other adolescent boys, broke and entered Jack's Tire Service Store and took therefrom seven transistor radios.' He was detained at the Maryland Training School until 15 May 1964 when he was committed to that Institution. Commitment was rescinded on 23 June 1965. On 9 November 1965 he was found delinquent on two charges of arson and eight charges of larceny and placed on probation. On 4 January 1966, although found guilty of violating his probation, probation was continued. On 19 January 1966 he was found delinquent on the following charges: two offenses of shoplifting, trespassing, larceny, tampering with a motor vehicle, twelve offenses of larceny of an automobile (one of which was involved in an accident), and nine offenses of breaking into an automobile and stealing therefrom. He was committed to Maryland Training School and released on 9 November 1966. On 21 December 1966 he was found delinquent on two charges of stealing an automobile and committed to Boys' Village. He escaped from the Village and was arrested on a warrant. On 21 May 1968 he was found delinquent on a charge of being ungovernable and beyond the control of his mother and committed to Boys' Village. That commitment was rescinded and he was committed to the Maryland Training School. On 1 June 1968 he was found delinquent on a charge of taking a female into a vacant house and placing hands on her. On 26 August 1968 he was found delinquent on two charges of breaking and entering and was remanded to the Maryland Training School. On 7 November 1968 he was found delinquent on a charge of being an escapee from Boys' Village and while an escapee stealing an automobile. He was again remanded to the Training School. On 13 February 1969 he was charged with stealing an automobile while an escapee from the Training School. The juvenile court waived its jurisdiction to the Criminal Court of Baltimore. ² He was tried, found guilty and imprisoned. Released in due course he was charged with the larceny of an automobile on 29 April 1970. As he was then 16 years of age, he was tried in the Criminal Court of Baltimore, found guilty and on 25 June sentenced to one year. He was committed to the Maryland Correctional Training Institution at Hagerstown. His trial under adult procedures was by virtue of the exception contained in Code, Art. 26, § 70-1(c). ³ The exemption as to Baltimore City of persons who had reached the age of 16 years from the Juvenile Causes Act was declared unconstitutional in Long v. Robinson, D.C., 316 F.Supp. 22. In Greene v. State, 11 Md.App. 106, 110, 273 A.2d 830 we stated that we were persuaded to follow the Long ruling, but announced that it would not be applied to those cases which on 15 May 1969 had been 'finally decided.' ⁴ Id., at 111, 273 A.2d 830. As Toporzycki was entitled to the benefit of the Greene ruling, on 18 December 1970, he was brought before a master in chancery assigned to conduct proceedings in juvenile causes. Code, Art. 26, § 69. The master waived jurisdiction. Exception was taken and on 12 January 1971 the matter was heard de novo before the judge assigned by the Supreme Bench of Baltimore City to exercise juvenile jurisdiction in the division of juvenile causes of the Circuit Court of Baltimore City. Code, Art. 26, § 51(a) and § 69; Rule 908e; Rule 915 of the Supreme Bench of Baltimore City. The upshot of the hearing was that on Toporzycki's specific request and agreement by the State, the court's order releasing him from the Maryland Correctional Institution to the juvenile authorities was rescinded and he was returned to that Institution to serve the balance of his sentence. ⁵ He got into further trouble promptly upon his release from incarceration. On 3 June 1971 a petition, no. 148578, was filed in the Baltimore City juvenile court charging that he was a delinquent child for the reason that he took and carried away an automobile on 27 May 1971. There was also filed a petition, no. 132166, charging him to be a delinquent child for the reason that on 9 February 1969 he took an automobile from a parking lot by hotwiring it. ⁶ On 3 June 1971 the court issued an order stating that it had determined that it was necessary to detain Toporzycki pending a hearing, and directed the warden of the juvenile detention center of the Baltimore City Jail to receive him to be kept under the warden's care and custody. The same date of waiver of jurisdiction hearing was requested by the State's Attorney. The hearing was had on 21 June 1971. ⁷ The State requested that the court 'summarily waive' on petitions 148578 and 132166 'for the reason that jurisdiction was waived by this court on February 13, 1969' on another petition then before it. After full argument the court 'under the provisions of Article 26 of the Annotated Code of Maryland, Section 70-16 'waived jurisdiction over Toporzycki with respect to each petition and ordered him held for action under the regular criminal procedures, setting bail at $2500 on each charge. He appealed from the waivers of jurisdiction. Code, Art. 26, §§ 70-16(c) and 70-25.

It is patent from the transcript of the proceedings of the hearing that in waiving jurisdiction the court applied the statutory provision for waiver after summary review. The State so requested and the court proceeded in accordance with the request. The argument centered primarily on the requirements of a 'summary waiver', the judge, the prosecutor and defense counsel each stating his conception of the nature of such a waiver and the procedure to be followed. At the very conclusion of the hearing on the point defense counsel said: 'My final objection, Your Honor, is to the summary waiver of jurisdiction at this hearing.' The objection was overruled.

The provisions with respect to waiver after summary review are in Code, Art. 26, § 70-16(c) 'An order of waiver shall be considered a final order and terminates the jurisdiction of the court over the case. If thereafter any minor with respect to whom the court has waived jurisdiction under this section comes within the provisions of § 70-2(a)(1) ⁸ the court, after summary review, may waive jurisdiction.'

By the words of subsection (c) the authority of the court to waive jurisdiction in its discretion after summary review rather than a full waiver hearing contemplated by subsection (a) is predicated upon an order of waiver of the jurisdiction over a minor 'with respect to whom the court has waived jurisdiction under this section.' (emphasis supplied). ⁹

The order of waiver of 13 February 1969 was under the authority bestowed by Code, Art. 26, § 54. It provided:

'If any such child ¹⁰ is charged with the commission of an act or acts which would amount to a misdemeanor or felony if committed by an adult, the judge, after full investigation, may in his discretion waive jurisdiction and order such child held for action under the regular procedure that would follow if such act or acts had been committed by an adult.'

There was no provision for waiver after summary review. Although the statute permitted waiver 'after full investigation', Rule 911 b seemed to make any investigation discretionary-'The court may order that a waiver investigation be made and that the waiver hearing shall not commence until the investigation has been completed.' No factors to be considered were spelled out, but when an investigation was made, Rule 911 b directed the report thereof 'include all social study records that are to be made available to the court at the hearing.' By ch. 432, § 2, Acts 1966, §§ 52 through 66 and § 68 of Art. 26 were repealed outright ¹¹ and new §§ 70 through 70-26 were added. Section 5 of the Act provided that it take effect in Baltimore City on 1 June 1969. ¹²

It is clear that the waiver on 13 February 1969 was under the former § 54 and not under the new § 70-16. Thus it could not serve as the basis of a waiver after summary review within the contemplation of § 70-16(c). We reach this conclusion not only as compelled because of the explicit expression of legislative intent manifested by the plan words of the statute but as proper because of the criteria which the court must consider in making a just determination as to waiver of jurisdiction under § 70-16 compared to the ambiguous requirements under § 54 and Rule 911 b. In other words, we feel in any event that waiver after summary review may be made only after a waiver under the authority of and in accordance with § 70-16. Within this frame of reference we hold that the orders of waiver of 21 June 1971 were improper and therefore an abuse of judicial discretion.

There remains inquiry whether the action of the court upon the proceedings...