Edwardsen v. StateEdwardsen v. State
- Reporters:
- , ,
- Before:
- Henderson
delivered the opinion of the Court.
These two appeals in one record are from judgments and sentences in the Criminal Court of Baltimore. In the first case, indictment No. 1900, the appellant was indicted in four counts for burglary, larceny, rogue and vagabond, and receiving stolen goods, tie was reрresented by counsel employed by him, and elected a jury trial. The jury found him guilty of receiving stolen goods on September 15, 1958. After the verdict, his counsel stated to the court that “my client informs me that he would like to file a motion for a new trial,” but that he (counsel) asked leave to strike his appearance and withdraw from further participation in the case. The request was granted, and the trial court deferred sentence in order that the accused might have an opportunity to obtain new counsel and pеrfect the motion for new trial. On October 24, 1958, he was brought before the court and sentenced to two years in the House of Correction, from May 25, 1958.
It appears that on September 23, 1958, the trial judge wrote the accused informing him that, under local Rule 40 C (formerly Rulе 30) of the Supreme Bench, he would be required to file with the clerk of the criminal court an original transcript of the testimony and three copies thereof within 5 days after the filing of the motion for new trial.
1
The accused wrote a letter in reply, requesting the court to “construe these contents in the nature of my petition for allowance of thirty days continuance in which to obtain the transcript and/or my
pauperis
petition for allowance to proceed on the motion as an indigent person so that your Honоr can
Wе think there was a sufficient showing of indigency, and for the reasons stated in Johnson v. State, 219 Md. 481, we think the trial court erred in denying the request of the accused for a free transcript for use in the hearing upon the motion for new trial. No question of a possible alternate method оf abbreviating or submitting a different, but adequate, record is here presented. Accordingly, this judgment will be reversed and the case remanded for the hearing of the motion for new trial. We express no opinion, under the circumstances, on the contentions of the appellant that the evidence was legally insufficient to convict, or on the other alleged errors in the rulings of the trial court in the course of the trial. Since there must be a new sentence imposed if the motion for new trial is denied, or, if granted, upоn a new conviction, if there be one, we likewise express no opinion as to the alleged error in the remarks of the trial court in connection with the imposition of the sentence now set aside for further proceedings.
On October 29, 1958, the appellant was brought before the same trial judge on a bench warrant charging him, on petition of the Acting Chief Probation Officer of the Supreme Bench, with violation of probation granted under a previous conviction. It was shown that he had been convicted of larceny in 1952 (indictment No. 2860) and sentenced by the late Judge Moser on March 3, 1953, to six years in the Maryland Penitentiary from December 12, 1952; but on September
The рrincipal point raised on the second appeal is that the trial court failed to continue the case, or to appoint counsel for him, at the hearing on violation of probation. At the beginning of the hearing, counsel was present who hаd represented the accused in the previous case when he was convicted of receiving stolen goods. Counsel told the court he was unwilling to represent the accused any longer, and the court remarked that he had earned “whatever fee you have paid him.” The accused said: “I would like time to—,” but did not complete the sentence because of an interruption. The appellant’s present court-appointed counsel states that the accused “was obviously in the act оf requesting time to secure another counsel,” and contends that there was a violation of Maryland Rule 723, in that, the court should have advised the accused of his right to counsel, and, if the defendant so desired, should have appointed counsel for him.
It seems to be conceded in this appeal that the trial court, acting through the late Judge Moser, had jurisdiction and authority to suspend the original sentence imposed in 1952 and place the accused on probation in 1954. Under Sec. 277 of the Charter and Public Lоcal Laws of Baltimore City (1949 Ed.), as amended by chapter 529, Acts of 1951, the Criminal Court of Baltimore was empowered to suspend sentence and place an offender on probation “at any time before the expiration of any sentence imposed upon such
A proceeding for the revocation of a suspension of sentence and probation is informal in character and not subject to the limitations imposed by law upon the trial leading to a conviction. See Mutter,
supra
(p. 321);
Jett v. Superintendent,
209 Md. 633, 640;
Manning v. United States,
161 F. 2d 827 (C.C.A., 5th Cir.). Somewhat the same considerations apply in reinstating sentence, as in imposing an original sentence. Cf.
Driver v. State,
201 Md. 25, 31
et seq.; Williams v. New York,
337 U. S. 241. In the absence of statute, many courts have held it is not even necessary to have a hearing. In the case of revocation of a conditional pardon by the governor, which may be distinguishable because the legal effect of a pardon is different, we have held that a hearing is required as a matter of due process.
Murray v. Swenson,
196 Md. 222, 229, 231. Thе decision has been criticized as failing to distinguish between procedural and substantive due process. See note, 29 A.L.R. 2d 1074, 1087, and Mutter,
supra
(p. 319). Nevertheless, the same rule was stated and applied in
Hite v. State,
198 Md. 602, 605, involving revocation of a suspended sentence by a magistrate.
Swan v. State,
200 Md. 420, 425, was a case involving the striking out of a suspended sentence for violation of the conditions of probation, after hearing. It was held that an appeal would lie, at least to determine whether the trial court abused its discretion or
In the instant case, a hearing is required by statute. In sec. 279 of the Charter and Public Local Laws of Baltimore City the court is authorized to end probation granted, upon written charges, warrant or notice, and after heаring and a finding of a violation of the terms of the conditions of probation. The alleged violator is entitled to a reasonable opportunity to refute the charges laid, not to a formal trial. In Warden v. Palumbo, 214 Md. 407, 412, a proceeding before the Board of Parolе or Probation, we held that the right to a hearing prescribed by statute would include the right to be heard by counsel employed by the alleged violator. We think the same rule applies in the instant case. It might also be noted that, in regard to changes in the conditiоns of parole, sec. 278 of the Charter specifically provides that such action be taken “after full opportunity to [the probationer] to be heard either in person or by counsel * * But we do not construe an opportunity to be heard by cоunsel as requiring the appointment of counsel. We have construed the similar phrase in Art. 21 of the Maryland Declaration of Rights as merely doing away with the common law rule that denied representation by counsel. Raymond v. State ex rel. Szydlouski, 192 Md. 602, 606; Marvin v. Warden, 212 Md. 634, 635; Warden v. Palumbo, supra, p. 411.
Maryland Rule 723 b, relied on by the appellаnt, is primarily applicable to the trial process rather to a proceeding like the present. Even if applicable, there is no showing in the instant case that the rule was violated. The defendant was fully aware of his right to be heard by counsel employed by him, the only difficulty was that he lacked funds. If we treat his unfinished sentence as a request for a further continuance, we find no abuse of discretion in the court’s ignor
The appellant contends, however, that due process required the appointment of counsel. As pointed out in the Roberts case, supra, due process does not require the appointment of counsel in every State сase, but only where it appears that the accused is at a serious disadvantage through lack of counsel, or that, for want of counsel, an ingredient of unfairness operates actively in the process that results in his confinement. Brown v. Warden, 218 Md. 643, 644. Even under the federal practice it would appear that the appointment of counsel is not mandatory on revocation of probation. See Kelley v. United States, 235 F. 2d 44 (C.C.A., 4th Cir.), and cases cited; Gillespie v. Hunter, 159 F. 2d 410, 411 (C.C.A., 10th Cir.).
Finally, the appellant contends that the unserved portion of his original sentence of six years amounted only to four years, two months and eleven days, and not four years and three months, as testified by the Probation Officer. The trial court stated that he was imposing sentence for the balance of
Judgment in Indictment No. 1900 reversed and case remanded, costs to be paid by the Mayor and City Council of Baltimore.
Judgment in Indictment No. 2860, passed on October 29, 1958, affirmed.
Notes
. The Rule so provides, “* * * unless otherwise ordered by the criminal court.”