Wayne v. State

• Decision Date: 15 October 1969
• Docket Number: No. 436,436
• Citation: 8 Md.App. 5,257 A.2d 455
• Court: Court of Special Appeals of Maryland
• Parties: Ronald WAYNE a/k/a Ronald Elmer Thomas v. STATE of Maryland.

Page 5

8 Md.App. 5

257 A.2d 455

Ronald WAYNE a/k/a Ronald Elmer Thomas v. STATE of Maryland.

No. 436.

Court of Special Appeals of Maryland.

Oct. 15, 1969.

Certiorari Denied March 3, 1970.

James F. Garrity, Baltimore, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donaldson C. Cole, Jr., and Julius A. Jodlbauer, State's Atty. and Asst. State's Atty. for Cecil County respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Ronald Wayne, a/k/a Ronald Elmer Thomas, the appellant, originally pleaded guilty to grand larceny before Judge Edward D. E. Rollins, who sentenced him to a term of five years. This conviction was reversed by this Court because the plea of guilty was conditional and should not have been accepted by the court. Wayne v. State, 4 Md.App. 424, 243 A.2d 19. Upon remand, Wayne was convicted by a jury, Judge H. Kenneth Mackey presiding, who imposed an indeterminate sentence, not to exceed six years.

Wayne complains: (1) The longer sentence at his second trial was a violation of his federal constitutional right to due process of law. (2) The evidence was insufficient to convict. (3) The arrest and search were illegal. (4) Trial counsel was incompetent.

On September 25, 1967, three men entered a jewelry store in Elkton, Maryland. While the store clerk showed some birthstone rings to one of the men, she observed the other two go to another showcase and remove seven boxes containing a total of 14 diamond rings. When the clerk challenged them, they denied taking the rings. The men left the store, but the clerk watched them go into an alley across the street where they were also observed by a woman in one of the offices that overlooked the alley. The woman and the clerk identified Wayne as one of the three men.

In the meantime, the police were called and told of the theft and the direction taken by the thieves. Officer Hewes of the Elkton Police Department, responding to the call, went to the alley where he apprehended the three men. Hewes took all three back to the jewelry store, advised them of their rights, and searched them but found nothing. The officer later found the rings in the alley.

Wayne's first contention that it was constitutionally improper to sentence him to a longer term of imprisonment at a second trial after his first conviction had been reversed, would seem to be sustained by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) which held there was a denial of due process when a trial judge at a second trial gave a longer sentence unless such longer sentence was based on factors which arose subsequent to the first trial. The court held further such factors must appear affirmatively as part of the record so that constitutional legitimacy of the increased sentence can be fully reviewed on appeal. There is nothing in the present record to indicate the second sentence was based on subsequent conduct; on the contrary, the trial judge stated he was imposing the same sentence he would have imposed had he been the original trial judge.

The crucial issue in this contention is whether the holding of Pearce should be applied retroactively to include Wayne and others similarly situated. It is noted that the retroactivity of Pearce has not been decided by the Supreme Court, although the point has been scheduled for argument. See Moon v. Maryland. 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764. In view of the absence of a decision by the Supreme Court and in view of the settled Maryland law prior to Pearce that an increased sentence on retrial was within the discretion of the second trial judge, Moon v. State, 250 Md. 468, 243 A.2d 564, we will reject the contention and hold Pearce not to be retroactive. We point out, however, Wayne's right to petition for post conviction relief under Maryland Code, Article 27, Section 645A(d) in the event that the Supreme Court should in the future apply Pearce retroactively. In addition, we note that even before Pearce Wayne was protected from judicial impropriety in sentencing by Maryland Rule 762 (review of sentence) and our previous holdings that a sentence cannot be influenced by improper motives, e. g. Washington v. State, 2 Md.App. 633, 236 A.2d 32; Baker v. State, 3 Md.App. 251, 238 A.2d 561.

The remaining contentions require little discussion. The testimony of the jewelry clerk who saw Wayne take the rings was itself sufficient evidence to support the conviction. See Reed v. State, 1 Md.App. 662, 232 A.2d 550. Assuming, but not deciding, the arrest and subsequent search were illegal, Wayne is entitled to no relief. Neither the search nor the arrest produced any evidence and an illegal arrest does not, of itself, vitiate a subsequent conviction. Hutchinson v. State, 1 Md.App. 362, 230 A.2d 352. Compare Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. The question as to competency of counsel was not raised below and is not before us. Maryland Rule 1085.

Judgment affirmed.

ORTH, Judge (dissenting).

Once again the Supreme Court has rendered a decision which affects State prosecutions in criminal causes without providing guidance as to its retroactive applicability. And once again we are obliged to resolve the question so we may make proper disposition of a case before us. ¹

The appellant, whose conviction of grand larceny upon a plea of guilty was reversed by this Court, Wayne v. State, 4 Md.App. 424, 243 A.2d 19, was again convicted of the offense on retrial. He claims that he received a more severe sentence on his conviction on retrial and contends that this was a violation of due process of law. While his appeal from the second conviction was pending before this Court, the Supreme Court decided State of North Carolina v. Pearce, 89 S.Ct. 2072 on 23 June 1969 and the question presented by the appellant was before the Court in that case. To the majority the appellant's contention 'would seem to be sustained' by Pearce, but they find no need to decide whether it was or not. Rather, upon a recognition that 'the crucial issue in this contention is whether the holding of Pearce should be applied retroactively,' they hold Pearce not to be retroactive 'in view of the absence of a decision by the Supreme Court' as to its retroactivity, and reject the contention 'in view of the settled Maryland law prior to Pearce that an increased sentence on retrial was within the discretion of the second trial judge,' citing Moon v. State, 250 Md. 468, 243 A.2d 564. They point out that the question of the retroactivity of Pearce has been scheduled for argument before the Supreme Court, Moon v. Maryland, 89 S.Ct. 2135, and in the event it decides that Pearce has retroactive application, the appellant may seek relief under post conviction procedures. It notes in addition that the appellant could have sought review of his sentence under Md.Rule 762 and was protected by our previous holdings that a sentence cannot be influenced by improper motives.

First, it is obvious that the appellant received a sentence upon his conviction on retrial more severe than his sentence upon conviction at the original trial. He was sentenced to 5 years on the first conviction and to 'an indeterminate period of time not to exceed 6 years accounting from September 25, 1967.' the date of the commission of the crime, on his second conviction. ² The sentencing judge on retrial noted for the record that he was aware that the original sentence was 5 years. He believed, however, under the authority of Moon v. State, 1 Md.App. 569, 232 A.2d 277, that a sentence may be increased on retrial. ³

Second, I find it clear under Pearce that the imposition of the more severe sentence on retrial here was improper in the circumstances. The question in Pearce and in the other case decided in that opinion, Warden v. Rice, was: 'When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?' 89 S.Ct. at 2074. The Court considered the problem as involving two related but analytically separate issues: (1) the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial; (2) the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. at 2075-2076. Considering the more limited issue first, the Court held: '(T)he constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited' in imposing sentence upon a new conviction for the same offense.' ⁴ at 2077.

Considering the broader issue, the Court held that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial. ⁵ This holding, however, did not end the inquiry. Even though there is no absolute constitutional bar, there is the impact of the Due Process Clause of the Fourteenth Amendment. The Court concluded, at 2081:

'(W)henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.' ⁶

In the instant case the record affirmatively shows the reason why the harsher sentence was imposed. But it is clear that it was not the reason authorized by Pearce. After the sentencing judge remarked that he was aware...