*1 ERBE STATE OF MARYLAND 39, September Term, [No. 1975.] January 7, Decided *2 J., argued C. and was before cause Singley, Murphy, Eldridge and JJ. O’Donnell, Levine,
Smith, Digges, Marbury Reich, William L. A. whom were Kenneth with brief, appellant. Piper Marbury on for & and General, Attorney Raum, with A. Assistant Bernard General, Attorney and Burch, Francis B. whom were brief, General, Attorney Sharp, on W. Assistant Clarence appellee. Digges opinion and of the Court. Smith, J., delivered the dissenting J., filed a JJ., dissent and Digges, Eldridge, page 566 opinion J., in which concurs infra. Eldridge, (Erbe), Erbe appellant, Ronald Ashton In this case July until 25, 1969, not sentenced but was June on convicted dismiss for lack motion to denied his 1, trial court 1974. The Appeals Special affirmed sentencing. The Court of (1975). We 375, A. 2d 129 App. State, Md. in Erbe v. might we in order writ of certiorari granted the also, We, shall affirm. matter. consider 30, September 1968, Erbe Baltimore on on was arrested charges housebreaking theft; jail released from on 2; charges on indicted October 21 on bond October rogue theft, receiving housebreaking, vagabond, arraigned goods; and on October at which time he stolen pleaded guilty. formally appointed on Counsel was June 1969. Erbe was tried and convicted the court on that charges, having date of two of these elected a court trial. judge held The trial sub curia and Erbe was custody attorney. released For some inexplicable apparently reason the case were records lost January, survey until when in the course of a cases, pending it was discovered Erbe had not been Sentencing was then set for sentenced. March with notice left at Erbe’s last known address. There is no evidence hearing. that Erbe was served or had actual notice of the A *3 issued he appear bench warrant was when failed to on that 19, 1973, He on sought date. was arrested December when police job for a clearance as a truck driver. He remained in jail January present until 1974. On date that his counsel filed a delay motion to dismiss of the sentencing. because hearing evidentiary An was held and the motion denied. Erbe was then recognizance pending released on own completion presentence of report. a He was sentenced on July 1, 1974, years. to concurrent of terms three Sentence suspended was placed in each instance Erbe was on probation years for three and ordered to make restitution. judge The trial said that when the light matter came to City assignment neither the Baltimore criminal office nor attorney’s willing the state’s accept office was responsibility having the matter’s not been set down for disposition, claiming office each “that it was not the responsibility disposition the of their office to set case in for hearings.” scheduling or for further presents
In questions, this Erbe (1) three whether delay negligence here “caused of the State is a trial,” (2) denial of whether [his] process, (3) ais violation of due . . delay and whether “the . Maryland
is ‘unreasonable’ in violation of
Rule 761 a.”
first
we
of Erbe's
contention
purposes of consideration
For
assume, arguendo,
did
shall
States,
354, 361,
352 U. S.
Pollard United
United
States
(1957),
part
“that sentence is
of
“Although there speedy trial, a we hold appellant was entitled to hearing application no this has language We think the used for a new trial. motion clearly imports of Art. drafters processes leading to applicable to the guarantees itself, criminal trial and we do ending with the or the motion for new trial either believe any hearing a ‘trial’ or thereon constitutes meaning of Art. part within thereof constituent Id. 21.” at 320.
I by the Speedy Trial as Guaranteed Maryland Declaration Rights *4 “ Rights, provides Art. 21 Maryland of [t]hat Declaration right... every to a man hath a prosecutions, in all criminal language adopted Art. 19 Identical as . .” speedy trial. . 1776, Rights in the Constitution of of of the Declaration the United States adoption of prior to the of Constitution adoption Sixth Amendment prior to the of the thus construing has said This Court that Constitution. process to due Rights, Art. 23 relative of Declaration construing the due Supreme the decisions of the
545
process clause of
the Fourteenth
are
Amendment
‘practically
See,
authority.”
e.g.,
direct
Bureau
v.
Mines
of
George’s Creek,
143, 156,
272 Md.
(1974);
This Court State v. (1964), A. 2d 666 cert. denied 379 U. inaction part accused would a waiver of an “constitute under Art. 21 trial” of our Declaration State, Rights. 300, 305, 224Md. 167A. Accord Swift (1961), and Harris v. Md. A. 2d 36 (1950). prior
All of cited were the above cases decided Wingo, decision Barker 407 S. (1972), S. Ct. 33 L.Ed.2d which we shall length. language hereafter used 21 of discuss Art. Rights virtually our Declaration relative to trial is *5 in the Sixth Amendment that identical with If this had the United States. case arisen of Constitution say quickly upon strength prior Barker, would we request Erbe did not prior that since our decisions intervening period he is deemed to have sentencing in the any upon him rights conferred Declaration of waived certainly Although anticipate no Rights, 21. we such Art. Supreme might change change, possible that the it is expressed in Barker. Instances have been known the views e.g. Mangum changing its See discussion of its views. 187-93, Censors, 273 Md. 328 A. v. Md. Bd. St. obscenity. today (1974), We need not decide relative to Murdock, Sunft, concepts expressed in whether light Harris in the of Barker. It will be remain viable only purposes we shall for of our sufficient state today regard our discussion of the Sixth decision right speedy equally applicable ato trial as Amendment right Rights, provided in Declaration Art.
II Sixth Amendment Claim length by Judge for O’Donnell discussed Barker was Epps Md. oí the recent case this Court p. (1975).In Barker at 516 of 407 U.S. the A. 2d 62 prior attempted in no case had it to set out noted that speedy should which criteria proceeded attempt.” an It judged. then “to make such It speedy holding basis found “no constitutional specified days quantified into a number of can be months,” “reject[ed] . . . the rule that a defendant who or right,” to demand a trial forever waives fails test, balancing in which adopted “a the conduct both the prosecution weighed.” pointed the defendant are It out approach “necessarily compels courts to that such test basis,” an ad and it hoc do “c[ould] trial cases identify which some of the factors courts little more than particular determining whether a defendant should assess right.” Although acknowledging deprived of his has been ways,” might express in different the Court them “some identified “four Length delay, such factors: the reason for *6 delay, the the right, defendant’s assertion of his prejudice to the defendant.” Length Delay
a. of the Mr. Barker Powell Justice said for the the subject delay: of length delay
“The of the to some is extent a triggering delay mechanism. Until there is some presumptively prejudicial, which is there is no necessity inquiry go into the other factors Nevertheless, into the balance. of the because imprecision speedy trial, length of the the delay provoke of that will inquiry such an is necessarily dependent upon peculiar example, of case. circumstances To take but one delay be ordinary that can tolerated for an considerably serious, street crime is less than for a charge.” complex conspiracy Id. at 530-31. length delay unusually long,
Because the
of
here is
it
important
significant
becomes
to determine how
the mere
length
delay
assessing
is in
alleged
an
of the right
denial
speedy
trial.
In Barker
delay
there was a
approximately
years
five
between arrest and trial. The
“extraordinary,”
Court considered this
found
but
it
outweighed by other factors and held there
nowas
denial of
right.
Brennan,
concurring opinion
Mr.
Justice
Dickey Florida,
398 U. S.
90 S. Ct.
In United States v. (E.D. 354 F. 1973), “delay Pa. the court observed that least in Barker . . . conclusive of the four .” In factors identified 1050,1057 (10th Spoonhunter, F. 2d United Cir. States “ passage 1973), mere does the court said time [t]he not, per se, an unconstitutional denial of a establish trial.” Macino, (7th 1973), F.
In United States v. 2d 750 Cir. approaches: analyzed the court factor two hand, merely can, one viewed as the “It on the ‘triggering precipitates mechanism’ which such, significance in trial issue. Viewed as its hand, delay great. On balance is not the other inextricably question prejudice. tied to the As length delay extends, more certain prejudice, is to result. It is manifest that ascertain, must, thing to at some always a difficult *7 presumed point, result from an inordinate be to delay Exactly bringing in a defendant to trial. spectrum pretrial point on the where that lies uncertain, longer the delay it is that the but clear given in delay, weight to be the the heavier the explicitly recognized was balance. Such States v. Circuit United District Columbia Holt, App. F.2d 1108-1109 145 U.S. D.C. (1971): factor; longer important
Time is the most delay the heavier arrest and trial between will Government be the burden on the not speedy to trial has arguing that the prima abridged. The defense claim has been lapse if and trial facie merit between arrest year.” Id. at 752. longer than one delay Barker in- recognized in Supreme Court noted, speaking, we have de- extricably prejudice, as tied presumptively prejudicial” so as to necessitate lay “which is go factors into balance.” “inquiry into the other States, 434, 439, 2260,37 412 U. 93 S. Ct. Strunk v. United dicta, (1973), by way of the Court referred L.Ed.2d 56 guarantee recognition speedy “that under may prolonged delay subject to an emotional accused presumed stress ordinary that can be person result prospect from facing public uncertainties in the trial or of receiving longer than, a sentence to, or consecutive the one — presently serving he is prompt uncertainties that a However, removes.” the Court has not said that such prejudice any would be assumed delay which would mandate a determination that there was a denial of the trial. The court in considering Macino was pretrial interaction of the two factors in the context of a delay. presumptive prejudice A delay from an inordinate bringing present a man to trial does question the same as after conviction because the concerns of positions defendants in such entirely are so different. While may “inordinate,” in this case be not, it should factor, an balancing process isolated influence the any significant degree. Altro, See United Supp. States v. 358 F. (E.D. 1973), N.Y. Favaloro, United States v. 1974), delays F. (2d year Cir. where four
between per arrest and trial were held not to be se denials James, trial. See also United States v. 459 F. 2d denied, (5th cert. 1972), U. S. 872 Cir. where it was held that a defendant suffered meaningful no loss of “ha[d] injury rights” or to his when year there was a three sentencing. between conviction and Delay
b. Reason for Barker categories identified three might of reasons that assigned by prosecution given in a justify case to delay:
“A
attempt
delay
deliberate
order to
hamper the
weighted
defense should be
heavily
against
government.
A more neutral reason
negligence
such as
or overcrowded courts should be
weighted
heavily
less
but nevertheless should be
considered
responsibility
since
ultimate
such
government
circumstances must rest with the
rather
Finally,
than with the defendant.
a valid
reason,
missing witness,
such as a
should serve to
justify appropriate delay.” Id.
In that of Court considered seven months excuse, year period strong the five could “be attributed charge who was in the illness the ex-sheriff of the delay rest investigation.” It said that the was caused desire to convict another individual who the State’s problems participated in the murder order that be removed and he could be forced would self-incrimination testify against The Barker. Court observed: “Perhaps delay permissible have would been some Manning ordinary circumstances, so that under trial, a witness in Barker’s but could be utilized as period, years long a four was too more than period good part was particularly of that since to the Commonwealth’s failure or attributable inability try Manning under that circumstances process.” comported with Id. 407U. at 534. due delay from inadvertence on The in Erbe’s case stemmed since, apparently, part no one realized that State delay would Erbe been but not sentenced. This had convicted as a “more the middle Barker classification then fall into neutrality length and the neutral reason.” comparable are of the reason as factors to considered thus upheld where the to those factors Barker diligent Although the in Erbe’s the conviction. State was case, implication slightest not the failed to there is Toy, F. 2d See United States v. good act in faith. Tortorello, (D.C. 391 F. and United States Cir. 1968). Although (2d the latter decided case Cir. Barker, were enunciated the four factors used those before in Barker. Right Asserting Defendant’s
c. Barker, important found the most factor the Court finding weighing against Barker’s violation of speedy trial.” fact Barker did not want a was “the It observed:
“ suggests while strongly record [T]he advantage hoped in which he to take
551 acquiesced, thereby had obtain a dismissal of charges, definitely he did not want be tried. argument: Counsel conceded as much at oral honor, ‘Your I would concede that Willie Mae — probably Barker I don’t know this for fact — probably did not tried. I want be don’t any think man wants to I be tried. And don’t liability consider I this on his behalf. don’t Arg. blame him.’ Tr. of Oral probable
The reason Barker’s attitude was that gambling Manning’s acquittal.” he was Id. 407 U. S. at 535. light Court evaluated Barker’s silence of the
general theory:
“Whether and how a defendant asserts his closely related to the other we factors have strength mentioned. The will his efforts by length affected delay, of the to some extent delay, the reason for the particularly and most personal prejudice, always which is not readily identifiable, experiences. that he The more deprivation, likely serious the the more a defendant complain. is to The defendant’s assertion right, then, strong is entitled to evidentiary weight determining whether being deprived right. defendant We emphasize to assert the will make failure prove difficult for defendant denied a 407 trial.” Id. at 531-32. added.) (Emphasis
A number federal cases have drawn the inference no See, right. e.g., from a failure to assert the United anti, (2d 1973); States v. 474 F. 2d Cir. United Inf v. Reynolds, (6th States 1973), denied, F. 2d 7 Cir. cert. (1974);
416 U. S. Jones, United States 475 F. 2d (D.C. 1372); Churchill, Cir. United States v. 483 F. 2d (1st 1973); Saglimbene, Cir. and United States v. *10 (1973). 16, (2d 1972), denied, 411 U. S. F. 2d Cir. cert. failure found the defendant’s to In the court the latter case significant right especially because it was his assert his charge pleaded guilty He had self-interest. 29, He April 1965. was laws on violating narcotics the day. government Ultimately, the bail the same released on that of a Saglimbene’s moved sever failed April, In the co-defendant co-defendant. n appear January, then until trial. Urom for Saglimbene prosecution and press government did not January, speed his trial. he made no effort against however, judge ordered that the case the trial for trial appear Saglimbene brought He did not to trial. for arrest. He was issued his a warrant and bench then two months later and the authorities surrendered to day The next request for a trial. made his first a it could not government requested continuance because The witness was found an essential witness. locate court weeks later. The finally four held about was flight Saglimbene’s co-defendant observed that He “presented with an attractive course of action. [him] Piparo large government long as was at believed that as Thus, press (Saglimbene’s) his trial. would not for Piparo Saglimbene hope was content to wait and that caught.” found he was not denied a never The court that speedy trial. opinion to v. referred in the first section of this State
We
Murdock,
In Murdock Prescott italicized the appears with that language just quoted which consistent in Barker. An inference that a said to assert prejudice from his failure no suffered defendant position in a when a defendant is well-founded clearly delay. This was illustrated from the benefit suppose had reason to Sagli/nbene where the defendant proceed against him. It also might not ever government Judge where Prescott was well-illustrated Murdock (235 122) Murdock Md. at for the Court observed by which it was difficult for a course of inaction “steered prejudice is position.” The inference of no him to worsen his free; he was he had no worries clear Erbe’s case: almost as defense; impairing his passage his of time about by asserting gain All he had to conviction was certain. *11 infer that he was not
right jail. time in It seems fair to was hastening eventuality. in this interested Prejudice
d.
recognized three interests of
Barker
the Court
assessing
defendants, which should be considered
“
532) (i)
delay: (407
at
to
a
from
U. S.
to defendant
incarceration; (ii) minimize
prevent oppressive pretrial
to
accused;
(iii)
anxiety
to limit the
and concern of the
impaired,”
possibility
defense will be
with
latter
that the
inability
a
being
. . . because the
“the most serious
adequately
prepare
the fairness
to
his case skews
defendant
clearly
system.” The first
interest
the entire
only
applicable
was
incarcerated for one
here since Erbe
subsequent to
month,
when he was arrested
and that was
appear
his
conviction because of
failure
his
applicable
sentencing. The
interest
is likewise not
third
delay.
prior
any
held
here
Erbe’s trial was
Erbe
because
“
however,
applicable
argues,
interest is
that this
[b]ecause
appeal
. . .
the event the
until sentenced
cannot
[and] [i]n
ordered, delay
any
new
appeal
a
is successful and
significantly impair
stage may
the defense as witnesses
1
disappear
There was no motion
or their memories fade.”
However,
State,
599, 600-01,
plain
217 A.
it is
under Jones v.
Md.
(1966),
288, 294,
(1950),
194 Md.
No such
can
asserted
Erbe.
set
in Barker to be considered in
The second interest
forth
minimizing
anxiety
determining prejudice was that of
recognized
The
in Barker
and concern of the accused.
Court
trial,
prior
if an
not incarcerated
he
that “even
accused
by
by
liberty
disadvantaged
restraints on his
and
is still
anxiety, suspicion,
living under
cloud of
and often
hostility.”
recognizing
that in
“In when the Barker court talked in anxiety accused, terms of and concern of the it was referring presumptively innocent defendant suspicion who under a must exist cloud of uncertainty. Klopfer Carolina, See v. State North 213,] [(1967)]. U. S. at 222 But when the [386 guilty presumption defendant is found dissipates. innocence While he awaits may cloud, still be under a but it is not a cloud of accusation,’ ‘public Klopfer, supra, but a cloud of guilt generated public by finding beyond wrongs reasonable doubt he did commit the alleged. [People Valdespino, Cal.App.3d See v.] [15 Rptr. (1971)]. major 93 Cal. concerns of guarantee apply either after do speculative only conviction are of Any or moment. prejudice
real suffered an individual as a result an sentencing may unreasonable process remedied under due principles.” Id. Md.
App. at 387. Although argues anxiety Erbe that the he has been caused — anxiety to endure which he could quickly have relieved — requesting prejudice that he be sentenced is such that found, although should be it should be noted recognized resulting prejudice anxiety in Barker, it significance attached minimal this factor the final analysis. discussing length After and the justification it, lack of said: however, counterblancing factors, outweigh
“Two these deficiencies. The first is that course, prejudiced minimal. Of Barker was to some by living years for over four under a extent cloud suspicion although anxiety. Moreover, he was
556 period, for he did on bond most
released jail spend before trial. But there is no 10 months .any of Barker’s witnesses died or claim that delay. owing otherwise became unavailable to very only transcript two minor The indicates — part lapses memory one — way in no prosecution which were witness Id. U. S. at 534. significant the outcome.” 407 to Ctr., Det. Superintendent, Anne Arundel Co. 443 Brady v. 1971), before (4th was decided Barker Cir. F. 2d 1307 Brady were convicted murder and another after Pollard. to The first and sentenced death. convictions degree State, 220 Md. by in Boblit v. were affirmed this Court State, Brady (1959). A. 2d Brady v. 434 sub nom. proceeding under the Post Conviction Procedure instituted Brady Md. reached this Court Act which (1961). predecessors at time reversed A. Our question for a new trial on the and remanded the case Supreme punishment only. This was affirmed Court 1194,10 Ct. L.Ed.2d Brady Maryland, U. S. 83 S. Circuit, Judge put it the Fourth (1963). As Winter for Maryland “Notwithstanding the clear direction Appeals of the United and the Brady’s case, Brady of what be done to close States should punishment almost a new trial as was not afforded Brady years.” that he was denied his eight contended right to a this and was constitutional custody. Erbe who was at be released from Unlike entitled to during period. large, Brady confined the entire Under was only penalties there were two that could be our statutes imprisonment. imposed, life The district court death or “ repeatedly expressed willingness its State found [t]he hearing at which it would recommend the Court have a Brady imprisonment,” impose of life to which a sentence saying prefer unwilling agree, “that he would a death was “ seemed so observed that sentence.” district court [t]his attorneys they had him transferred to his unreasonable Hospital Criminally for the Insane for a Perkins ultimately Brady psychiatric examination.” sentenced *14 Judge new objection he wanted a trial. Winter his that over for the court: said strong
“Although are indications that there thus speedy right to a trial is Amendment the Sixth and applicable interval between conviction to the Even sentencing, question. need decide that we not right applied and was if we that the assume here, by Brady consequences suffered violated his from to warrant release not sufficient are custody.” Id. at 1310. trial, long delays involving before
“In some cases presumed from prejudice has been sufficient resulting proof of difficulties ineluctable increased time, been passage the burden has of or prove of government to the absence shifted to prejudice. States, Hedgepeth v.
E.g., United [124 (1966)]; F.2d 684 Williams App. D. U.S. C. States, App. F.2d 19 B.C. U.S. United [102 where, here, falls between
(1957)].But sentencing sentence, and at conviction punishment minimum that receives the defendant imposed, prejudicial effect of be could Id. cannot be assumed.” delay in appears thus
“While
anxiety
him
Brady
subject
did
delay,
rights in the
during part
of the
restriction
parole
eligibility for
of sentence and
determination
adversely
affected. Under
were
Brady’s
circumstances,
including
fact
than
anxiety
followed rather
discomfort
guilt of
of his
a
preceded
final
determination
crime,
conclude
constrained to
serious
we are
most
applies
speedy
here and was
if
prejudice
denied,
was not sufficient
there
Id. at 1313.
Brady’s release.”
warrant
reasoning Brady
dispositive many
We find the
to be
of
prejudice made
Erbe.
the claims
noted that an affirmative
It should be
demonstration of
proof
prerequisite
is not
a denial of a
right to a
trial. That this was the
defendant’s
intent
in Barker was made clear Moore
Arizona,
(1973;.
94 S. Ct.
months
serving
California, where he was
him from
extradite
him,
term,
drop
against
petitioner was
prison
or
a detainer
The
414 U.
at 25.
Arizona
for murder Arizona.”
tried
showing
prejudice to the
of
Supreme
that a
Court ruled
speedy
to establish
federal
essential
defense at
prejudice
The
no such
to Moore.
It found
trial claim.
States, however, quoting the
Supreme
of the United
Court
passage
Barker,
asserted:
above
rejected
expressly
the notion
Wingo
“Barker v.
prejudice was
demonstration of
affirmative
that an
necessary
prove a denial of the
constitutional
right
speedy
Id.
to a
trial.”
The case wa.s
very
of
to Erbe is a
While the absence
standards.
violated,
finding
right
of
his
was not
in favor
strong factor
need not rest on this alone.
our decision
Balancing
e.
of the Factors2
The
factors enumerated
Barker
were balanced
(Del. 1973)
of Delaware in
Johnson
413 U.
dismissed,
S. 901. In
A.
cert.
that case
plea
guilty
April 4, 1968,
Johnson entered a
but was not
April
until
sought
sentenced
1972. He
to have the
delay
sentence vacated on the basis of a
between
1970 which he claimed denied him his Sixth Amendment
guilty
to a
After
plea
trial.
had
been
Virginia
returned to
to serve out the remainder of a sentence
there. The trial
attorney
court notified Johnson’s
Johnson would not be sentenced until he served
Virginia
sentence. Chief Justice Wolcott said for the court:
Rudstein,
Right
Speedy
2.
Wingo
D.
to a
Trial: Barker v.
in the
“
Courts,
11, 15,
Lower
1975 Illinois Law Forum
states that
first
[t]he
process
length
balancing
delay.”
of the Barker
element
is the
He
then
goes on to state:
“Only
year
longer
three courts have held that a
than 1
did
require
analysis
balancing
an
not
process.
other factors of the
courts,
Maryland
Special
Two of these
Appeals
took a
Michigan
Appeals,
they
and the
Court of
did so because
peculiar approach
computing
length
delay.
While
period
take
most courts
as the
between the time the
defendant’s
trial attached and the
of his
time
trial,
step
these two courts have added a second
computation.
determining
length
delay,
After
total
these
period
then
courts
attributable to the
subtracted either the
of time found not to be
prosecution,
period
necessary
or
of time
orderly processing
of the case.” Id.
*16
examples
State,
11,
App.
His cited
in
36
n.
included Davidson
18 Md.
(1973),
Jones,
App.
(1973).
2dA.
and
in
State
18 Md.
A.
It
“
then
is
stated
the same footnote that
courts have
[t]hese
consistently
approach.
App. 110,
followed this
See Williams v.
Md.
115-19,
(1973)
opinions
Michigan
Appeals not before us. any point in of the three decisions cited the author since (1) postponing sentencing were: for
“The reasons imposed in Delaware was the sentence health and emotional mental dependent on his gain imposition; (2) he stability would the time of at actually being nothing before could sentenced sentence; (3) the Court the Delaware to serve start actually long he had been how know would want to (4) would Delaware; the Court prison outside of in progress he had know what rehabilitative like to prison.” Id. at 623. Virginia in the made while completed August, in Virginia Apparently, sentence was Virginia upon defendant was arrested 1969.The Delaware. He the instance of warrant Governor’s Virginia proceedings in the courts. corpus instituted habeas long proceedings those indication to how There was no “ is no definitive observed that took. The court [t]here guarantee Amendment of a whether Sixth decision as to conviction, or applies interval between Brady. sentencing,” citing It went entry guilty plea, and of a however, arguendo, here, we on, as do to assume evaluating the case guarantee applies to this interval. concluding in Barker and “that set forth under the standards deprivation of defendant’s assumed no there been ha[d] sentencing,” gave following the court reasons: this case are considered the facts of
“When has not been light, that Johnson clear this First, right. Amendment any assumed Sixth denied postponing the Superior reasons Court’s Second, although Johnson sentencing are valid. to have his Delaware he made some efforts asserts period 1968-1969,he imposed during the sentence Indeed, after his these effoi'ts abandoned sought Virginia, prison in his efforts release imposition of a Delaware sentence. to frustrate in the record Third, to demonstrate he has failed resulting any from the appreciable hand, length of sentencing. On the other in *17 longer normally delay, we feel is than the which vacating in permissible, weighs favor of However, weight we do not attribute such sentence. previous to three so as overcome the
to this factor factors.*
* balancing in Barker, “After these factors four supra, Supreme upheld ob- Court a conviction five-year delay.” tained after at 623-24. Id. Supreme in Barker Court indicated courts are
compelled approach speedy “to on ad cases an hoc proceed apply We on basis.” shall such a to basis balance factors enumerated Barker. We substantial, note although delay first was it was entirely inadvertent insofar the State was concerned. The length of little different from that Barker Saglimbene Brady. and less than In all three of cases those it was found that had accused not been denied his steps to a trial. took no Erbe sentencing, hoping demand forget no doubt would court entirely. the matter His trial had been so concluded we have dimming disappearance here no memories or as in witnesses the conventional an case where individual to have claims been denied a Erbe trial. was confined only briefly and that was after the was discovered. We have here the reverse situation in Juarez-Casares. It there judge will recalled that the trial advised the imposed defendant that he “would have different sentence if placed had behaved Here Erbe was [he] [him]self.” probation, possibly good as a result of during behavior delay. short, no Accordingly, we see Erbe. considering balancing factors, all of we conclude that Erbe has denied not been his constitutional speedy trial.
Ill Due Process process right relating
That there exists a due was indicated Pollard. Erbe is *18 incorrect, however, implication long delay in his that a in sentencing process. violate due itself is sufficient to probation judgment
In Pollard a and order of was entered present. years when at a time defendant was not Two later a bench warrant was issued for his arrest for violation of probation. earlier, judgment The invalid was vacated and a original judgment new on the conviction was entered with being imprisonment the defendant’s sentenced to for two years. among sought sentence, arguing, Pollard to vacate the things, process other he had been denied due said, apparently The trial. in reference to both claims: completing prosecution such
“Whether amounts to an unconstitutional as here occurred upon rights depends deprivation Haubert, See, e.g., v. Beavers circumstances. Woodrough, F.2d 77, 87; Frankel v. U.S. purposeful oppressive. It not be or must promptly accidental and was not here. It was
was Nothing in record when discovered. remedied discovery sentencing any delay in after indicates the warrant in From the issuance of the 1952error. probation, September 1954 for the violation of still would be that the error was normal inference court, although petitioner states unknown to We known of it since November 1952. do not had akin to those have in this case circumstances 183, 201, Provoo, aff’d v. 17 F.R.D. United States Judge found where Thomsen mem. 350 U.S. act of the delay ‘caused the deliberate attempted government’ which the accused existed in United States correct. The same situation McWilliams, App. 163F.2d 82 U.S. D.C. ready for failure to be where Government’s years despite persisted nearly for two defendant’s motions circumstances, trial. In these cir- lapse
we view of time do not of the error as a violation of the before correction (a). in the Sixth Amendment or of Rule 32 Error resulting prosecution calls course conviction error, not the release of the for the correction Cook, Id. 210.” accused. Dowd 340 U. S. at 361-62. process, due evaluating Erbe the claims of relative Special Appeals: Judge for the
Chief Orth said process law in the “We see violation of due no delay in unique here existent. The circumstances due mis- to administrative adventure; purposeful oppressive. was not or *19 attempt patently There was no deliberate to Rather, hamper Erbe. there was inadvertent conception, in inaction. The fault was accidental effect, promptly venial remedied as possible key is Erbe when known. The that had felt impose truly aggrieved any by the to time failure at sentence, only he need have so indicated his counsel, to or court. He at all times the State (on appeal he knew that he had been convicted does conviction), challenge propriety of his not that custody lawyer, he had been released of his awaiting not and that he was sentence. It was until it came the attention of the court that sentence imposed, apprehended and Erbe had not been failing appear in answer quirk of fate after summons, he became dissatisfied to a served that only silence, his Not did he with status. maintain attorney keep in he with his but failed to touch many him court did not inform or the of changes that, until taken of address. It is manifest enjoy custody, perfectly he was into content to quo. status dismiss, hearing on the motion to Erbe
“At the prejudice. He did produced no evidence actual issue, may testify although he well himself argues compellable witness. He now have been a respects: prejudice’ in he suffered ‘actual three years spent punishment; (1) under the threat of five postponing punishment,
(2) timely if which imposed, probably completed ‘would have been spent now’;(3) jail one he he month after was arrested on the bench warrant for his failure to appear sentencing in March 1973.None of these event, points any below. Rule 1085. was raised have been sentenced either in 1969or 1973 could years. Code, (b) Art. and 340. total §§ enhancing delay, than rather It seems that And may well have lessened it. punishment, subsequent warrant and his the bench issuance of directly attributable to his were incarceration proper persons appear failure to or inform his whereabouts. err in below did not the court
“We hold ground on the denying to dismiss the motion App. of law.” Id. 25 Md. process of due denial 388-89. adopt opinion.
We
IV Rule 761 a pertinent part that provides “[sentence 761 a Rule regard delay.” In this unreasonable imposed without shall be *20 (a) argues (1). that R. P. Erbe to Fed. Grim. 32 identical mandatory it is little construed as Rule is “unless the value.” (1969) 521 Wright, Practice and Procedure
2 Federal C. § provision (1) forward that (a) “carries that Rule states Appeals Rules of in the Criminal had earlier been contained goes on to state: The author 1933.” Appeals Rules provision the Criminal “A similar delay’ imposed without sentence ‘be providing that expedite appeals and intended to was as construed advantage defendant.” any particular not for Id. at 386. v. Berkowitz authority for statement are this as
Cited
States,
(8th
1937),
United
The
of the district court was affirmed.
purposeful delay
there was
fact
no
discussing
in Pollard. In
mentioned
there and Rule
(a)
said,
purposeful
the Court
“The
or
must not
oppressive.”
following
States v.
1965);
(6th
States,
United
2d
886-87
Cir.
348 F.
v. United
Grabina,
1962),
(2d
2d
cert.
309 F.
Cir.
States v.
States,
F.
denied,
(1963);and Lott v. United
(1963).
1962),
denied,
Judgment affirmed; appellant pay the costs. dissenting: Digges, J., out issue with the facts as set I do not take
While majority, my leads me to conclude assessment of those facts guaranteed speedy him was denied the that Erbe Con Amendment of the United States both the Sixth Maryland Article Declaration of stitution and Rights.1 respectfully I Consequently, dissent. According Federal Sixth Amendment “ prosecutions,
Constitution, the accused all criminal [i]n Likewise, . right speedy . . . trial . . .” enjoy the to a shall “ Rights provides 21 of our Declaration [t]hat Article every prosecutions, man hath a ... to a all criminal speedy . trial. ..”
I
majority
Preliminarily, I
hold what the
assumes
would
—
purposes
part
arguendo
trial for
rights. Obviously,
as these
these
of both of
“trial,”
language
provisions do
define
constitutional
against
enforced
trial is
Amendment
1. The Sixth
right,
Amendment
states,
under the Fourteenth
as a fundamental
several
of the Federal
222-23,
Carolina,
Klopfer
386 U. S.
v. North
Constitution.
(1967).
988,993,
210-11,
325, 326,
(1933).
regard
53 S. Ct.
569 speedy right analogous Amendment trial the Sixth and the right apply until, least, 21 judgment both at Article a final upon pronouncement entered sentence.
II Next, interpret I will how the Article 21 consider guarantee. regard majority states that it will its right speedy Amendment “discussion of the Sixth right provided in applicable Declaration of equally Rights, position we Art. 21.” is not at odds with what That 527, A. 628 State, 276 Md. today hold Smith Supreme interpreting opinions (1976), “that the ‘very to a trial are the Sixth Amendment necessarily persuasive, although controlling,’ as not to the Maryland’s parallel proper right.” construction Article out, However, correctly points majority here as the this has held that a defendant waives his Article See, demanding e.g., Keyes v. it. State, (1964); A. Md. 2d 582 Harris recognizing 288, 297-98, (1950). 71 A. 2d While Md. prior Maryland were all decided those cases Wingo, rejection supra, in Barker v. 407 U. Court’s 2188-91, 523-28, 92 S. at of the demand-waiver Ct. *24 majority respect Amendment, with to the Sixth the doctrine today they “need whether the not decide concludes expressed Maryland remain concepts earlier cases] [the ” State, supra, Smith v. 276 light of See viable in the Barker. deciding 2 2, (also 2d at 632 n. not n. 350 A. Md. at 527 issue). petitioner in arrested on this case was Since the 25, 1968, jury September 30, convicted a on June and 16, 1974, January his 1969, complain did until about but not sentenced, under being it would seem that not 21 Maryland his Article pre-Barker decisions waived vitality I continuing of these cases is an issue. right; thus — following what decisions would overrule those only Amendment Supreme Sixth Court has said Wingo, supra, U. at right, v. 407 S. speedy trial Barker 2189-91, 525-28, federal but also other 92 S. Ct. at Alabama, see, e.g., Boykin 395 S. rights, v. constitutional 570
238, 242-43,
1709, 1712,
(1969)
89
Ct.
Ill case, whether, facts this I under the will now consider if To trial was violated. determine Erbe’s infringement of Sixth an there has been such Supreme speedy trial, Amendment Wingo, supra, U. S. 92 S. adopted, Barker v. at test, balancing 2191-92, in which conduct at “a Ct. That weighed.” are prosecution and the defendant both the were to be assessed four factors which Court identified (2) delay; process: (1) length delay; reasons for the (4) prejudice right; (3) assertion of defendant’s Id., 92 S. atCt. defendant. Delay
(1) Length of the Barker, Court, in stated that length some extent a is to “The some Until there is triggering mechanism. prejudicial, no presumptively there is which is go necessity into the factors that inquiry other Id. balance.” into the “accused,” so as petitioner became an
Although the
guarantee, when he was arrested
speedy trial
activate the
supra, 1968,Dillingham
States,
September 30,
v. United
supra,
at
Manon,
404 U. S.
3327;
States v.
United
U.S.L.W.
at
463-64;
Md.
State,
supra,
at
Smith
320-21, S. Ct.
4;
n.
276 Md.
Epps
A. 2d
&
528 n.
&
*25
62,
until
(1975),
not sentenced
109-11, A. 2d
he was
71-72
345
July 1,
Consequently
delay
the
which we are
with
years,
delay
concerned amounted
five
nine
A
of
months.4
approximately
“well
five years,”
years
over
five
three
months,
Supreme
engage
balancing
led the
Court to
in the
516-18,
process
533,
Barker.
U. S. at
1383-85 first, length declared that the Barker Court: delay of the factors “courts should assess is one determining particular defendant has been whether a right,” deprived [speedy S. at trial] “length only 2192; second, asserted that the Court Ct. (emphasis triggering extent to some mechanism” similarly majority measures 4. It is not clear me whether the period they only approximately five-year between or if consider Í974). sentencing (July (June 25,1969) I, date of trial *26 added) only triggering to treated is be as than it rather balancing four factors the the id.; third, mechanism, delay five-year “extraordi- as characterize did at “close,” id, 92 S. Ct. at case nary” called the and delay length of the discussing the fourth, 2193-94; after and concluded “[t]wo the Court for it the reasons prejudice shown counterbalancing [(insignificant factors deficiencies,” outweigh right)] these of the and nonassertion referring length to the reasons (emphasis back added] no delay, at 2194. It of moment id. at S. Ct. delay length did find the that the Barker Court not specifically that “[w]e stated determinative since the Court as regard identified above either none of the four factors finding of a necessary or sufficient condition Id. at 92 Ct. right of trial.” deprivation of the weight the afforded the Exactly at how much clear, delay altogether but five-year in Barker not since length called the case “close” characterized id., 2193-94,I “extraordinary,” delay as S. Ct. at believe decisive) itself, (although they give it, significant did strong weight. only sense, considering the societal It makes prompt justice administration of and the interests accused, increasing possibility that as the to ever-increasing weight they should add sands of time flow Consequently, I the side the scale marked “violation.” contrary majority, length would hold here, years, months, at five nine which is six issue about longer period Barker, involved in be months than should given significant balancing process. weight Delay
(2) Reasons for the Powell, writing Mr. Justice for the Court in Barker, concluded that assigned weights should be to different
“[Different delay]. attempt A deliberate reasons [for hamper the trial order to the defense should be heavily against government. weighted A more negligence neutral reason such or overcrowded weighted heavily courts but should be less should considered since the nevertheless responsibility for such circumstances ultimate government than with must rest with rather reason, Finally, a valid such as the defendant. appropriate missing witness, justify should serve (footnote delay.” omitted). at 92 S. Ct. Id. *27 petitioner’s delay between arrest the The reasons for 1968) 1969), period (June 25, a 30, and (September trial However, months, in record. nine are not indicated the about argued has not period relatively short and Erbe this is since will weighed against State, I consider it the it should be that five-year approximately be, by itself, for the neutral. As to 1969) 25, (June petitioner’s trial between interval 197-1), saying in 1, majority sentencing (July the is correct slightest implication that, while is not that “there the [the good faith,” the to failed act Government] part The of the State.” inadvertence on “stemmed from Attorney’s Government, through the and the State’s court office, negligent making simply in not sure Erbe was was Supreme earlier As the Court said at an date.5 sentenced “ trial; Barker, duty bring himself no defendant has [a] 527, duty . State . . .” 407 U. S. at S. Ct. has that omitted). (footnote negligence The fact that traceable to responsible petitioner’s for the the State was be, majority recognizes, weighed must against the Government. Right
(3) Assertion His Defendant’s September Although petitioner was arrested on July 1, 1974, it was not until until but not sentenced his January first moved to dismiss that he immediately Clearly, agree not I a defendant need be sentenced that permitted period conviction; appropriate upon to reasonable time to deliberate an within which is the State pre-sentence report develop be a must allowed a and the court vexing question proper upon of what is a under the circumstances. sentence ground speedy that he had been denied a indictment on the stated The trial. Barker how defendant asserts his is
“Whether and
closely
factors we have
related
other
strength
will
of his efforts
mentioned.
delay,
length
extent
by
affected
of the
some
delay,
particularly
most
reason
always
prejudice,
is
personal
which
identifiable,
readily
experiences. The more
that he
likely
deprivation,
more
a defendant
serious the
complain.
is to
The defendant’s assertion of
then,
strong
speedy
right,
entitled
determining
evidentiary weight
whether
right.
being deprived
We
defendant
emphasize
will make
that failure to assert
prove
it
for a defendant to
difficult
531-32,
denied
trial.”
When indicated, majority here, Judge Smith for the *28 in asserted Barker
“ circumstances, [Bjarring extraordinary would we indeed to rule that a defendant was be reluctant denied on a record that this constitutional indicates, strongly one, this does 536, speedy trial.” Id. did not want a at defendant 92 S. Ct. at
However, Barker, in there is no unlike the situation in did evidence that the accused this case not affirmative Supreme relied speedy a In Barker the want trial. did of the defendant’s counsel that his client admission tried; to here was made. not want be no similar concession 535, underlying at S. Ct. at 2194. But Barker id. is See suffering prejudice if assumption that a defendant is also an delay complain by right, asserting and he would his conversely, object delay he if he to is not doesn’t being prejudiced, position is in at least when he a to benefit assumption may postponement. possibly from the While this justified guilty,6 found before a defendant is which was Barker, in I the situation think it in unwarranted a post-guilty-verdict setting. adjudged an accused is Once gain guilty usually (starting he has so little his sentence sooner) (his money, so as to finish it and so much to lose life) freedom or even his that no matter how much he awaiting unlikely endures while he sentence is complain. Suppose guilty a found crime defendant is of a for possible punishment death, being which a if even substantially prejudiced by delay sentencing in it is scaffolding, put farfetched to that he will climb the assume trap the noose his own ask around neck and that the door be opened asserting right. require his constitutional “[T]o beg charge, man to a trial on such a with its enormous penalty, requires too much of human nature.” United States 1955) Chase, Supp. 230, Ill., (referring (N.D. 135 F. case). Furthermore, place significant a murder weight right, on the accused’s of his assertion which the has characterized as Klopfer Carolina, “fundamental,” supra, v. North 386 U. S. 993, ignores interests, 87 S. atCt. the societal which independent are opposition sometimes to the interests, Wingo, supra, Barker accused’s S. at bringing 92 S. prompt Ct. at about a trial. Consequently, when there has been a here, only give weight such as I would minimal adverse to accused, significant weight (as majority), do the he did fact that not demand trial. aspects Amsterdam, 6. This is of Barker. See one of most criticized Speedy Rights Remedies, Criminal Trial: 27 Stan.L.Rev. 539-41 Right (1975); Rudstein, Speedy Wingo The To A Trial: Barker v. In The Courts, Lower 11, 39-40, 55-56, Uviller, 58; Barker v. 1975 U.Ill.Forum Wingo: Speedy Shuffle, Gets A 1376, 1387-88, Trial Fast 72 Colum.L.Rev. Speedy (1972); Comment, Trial Guarantee: Criteria And *29 Interpreting Violation, 839, (1973); Its 22 DePaul L.Rev. 850-52 Confusion Supreme Court, Term, The 49, (1972); 86 Harv.L.Rev. 168-70 58 Cornell 399, 406-08, (1973). L.Rev. 411-12 Prejudice (4) to the Defendant Court, Barker, “expressly rejected Supreme The prejudice an affirmative demonstration of was notice that denial necessary prove a constitutional Arizona, 26, 25, . .” Moore v. 414 U. S. 94 S. trial . . Rather, 188, (1973). 189, if an accused can L.Ed.2d 183 Ct. dismissal, stronger for and the prejudice he has a case show more formidable his case. prejudice proves he more petitioner has majority, I conclude that Unlike the prejudiced. he was established that prejudice should be stated that Barker Court light policies underlying the appraised in of the 532, right. 92 S. at 2193. One of the aims 407 U. S. at Ct. pretrial oppressive prevent right was “to this id., part incarceration,” including, of the since pre-sentence right, oppressive purposes for Although undoubtedly prejudiced Erbe was incarceration. imprisoned by being one month while some extent sentence, awaiting apparently was minimal. protect However, speedy trial was also intended having scorn, public financial ruin the accused speech and freedoms of exercise of his curtail accused, family prevent association, well as to unnecessary Barker suffering anxiety. See v. friends from 2193; States v. Wingo, 532-33, 92 S. at United id. at Ct. Marion, 463; Klopfer 92 S. at supra, 404 S. at Ct. 993; Carolina, supra, S. at Ct. at 386 U. North 76-77. supra, A. 2d at Epps 276 Md. at complain cannot majority that Erbe While the concludes jury, guilty by a I think he was found public obloquy since appealable final grievance at until a legitimate least he has imposition of sentence. The by the is entered judgment mentioned encountered are not problems that Erbe financial petitioner it difficult to found majority. No doubt guilty employment after was found or obtain retain especially as the sentence; so inasmuch awaiting this is Since, as imprisonment. Erbe’s have involved could sentence Carolina, supra, Klopfer v. North said “pendency of the mere 87 S. U. S. at Ct. *30 certainly . . will indictment. almost force curtailment of [an speech, participation associations accused’s] causes,” unpopular clearly guilty of verdict will lead an awaiting accused sentence to likewise. Additionally, do the majority apparently only the anxiety concludes that with speedy which the trial clause is concerned relates to whether guilty, or not one will be consequently found and that Erbe guilt sustained no such promptly distress because his jury. That, however, only the determined one worry guarantee sources of the attempts constitutional minimize; imposed another is what sentence will be once an guilty. accused is found There slightest can be not the doubt petitioner pangs anguish suffered the of mental while being suspense kept in years for five as to what his sentence conclude, I therefore, would be. would did that Erbe show prejudice awaiting sentence, suffered while and I weigh finding would this in favor of a violation of his Furthermore, constitutional trial. in the Judge O’Donnell,speaking words of Epps for this Court v. State, supra, 276 Md. Supreme at 345 A. 2d at the “prejudice may presumed Court has indicated that from length delay itself, the of Wingo, inordinate the Barker v. supra, 407 U. 2192]; S. at 92 S. Ct. Strunk United [at States, supra, S.U. at 93 S. Ct. . . . .” [at 2263] Supreme Asserting Court “has said not that such any prejudice delay would be assumed from which would mandate a determination that was a denial there speedy trial,” majority attempts here to avoid the presumption limiting delay occurring prior it to ground pre-verdict verdict post-verdict that the entirely . . so “concerns defendants . are different.” The distinction, Court has not made this nor do I think they fragment will Sixth Amendment do so. See Dickey Florida, supra, 44-45, U. S. at S. Ct. Although are, they majority implying I do not think if the that there trigger
could be a balancing process yet flying “presumptively prejudicial” length undertaken. such duration as to the need to enter into long enough prejudice assumed, they for to be are only in the face of the Barker Court’s rule that a deferral of process requires weighing to be 530,92 See 407 S. at S. Ct. at 2192. J., concurring). presuming
(Brennan, The reasons difficulty delay relate to the prejudice inordinate policies and to the behind proving kinds certain they evaporate right, I think do not prejudice can be rendered. How much when verdict is length of the extreme between assumed from and factored was determined verdict and Erbe’s *31 I when indicated earlier that into the Barker calculus significant weight given length must be itself. by himself, society Erbe the detriment suffered
Besides
prompt
furnished a
prejudiced when an accused is not
trial.
significance
when
defendant and
It is of substantial
justice
impressed with the swiftness
others are not
are
possibilities
for
rehabilitation
and
deterrance
at
Wingo, supra,
U. S.
520 &
v.
diminished. See Barker
Florida,
10;
supra,
10,
Dickey
&
n.
S.
at 2187 n.
v.
92 Ct.
J.,
Delay
(Brennan,
concurring).
at 1571
S. at
90 S. Ct.
U.
justice
by
hamper
system
may
the criminal
further
plea bargains,
permitting
to obtain better
defendants
awaiting
increasing
opportunity of
free while
trial
those
crimes, making
it harder
to flee or commit other
case, adding
overcrowding
prove its
to the costs and
State to
facilities,
public
penal
possibly swelling the
assistance
judicial
rolls,
opening
door to official abuse of the
519-21,
Wingo, supra,
U.
system.
S. at
See Barker v.
42-43,
2186-87;
Florida,
Dickey v.
supra,
at
398 S.
S. Ct. at
State,
J., concurring);
(Brennan,
S.
at 1571
Smith
90 Ct.
Furthermore,
533-34,
Since would find a violation of there is no need for me to extend this already lengthy by discussing dissent the additional possibility of a due process infringement.
Judge Eldridge has authorized me to state joins that he this dissent and concurs in the views expressed. here notes great importance did “that Barker not want was of fact, Id. at 2194.In Mr. Powell trial.” S. Ct. at Justice