author:
      Melvin, J.,
      Lowe, J.,

text:
    RICHARD von LUSCH v. STATE OF MARYLAND
    [No. 213,
    September Term, 1975.]

      Decided April 15, 1976.

      The cause was argued before Menchine, Lowe and Melvin, JJ.
    Richard von Lusch, in proper person, as appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, J. Owen Wise, State’s Attorney for Caroline County and John T. Clark, Assistant State’s Attorney for Caroline County on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 290 infra.

On September 23, 1974, the appellant, Richard von Lusch, was found guilty by a jury in the Circuit Court for Caroline County (Judge B. Hackett Turner, Jr. presiding) of four violations of § 555A of Article 27 of the Annotated Code of Maryland (1976 Repl. Vol.). That section, in pertinent part, makes it “unlawful for any person to make use of telephone facilities or equipment * * * for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons” and provides that a violator is guilty of a misdemeanor and subject to a fine of not more than $500 or imprisonment for not more than 3 years, or both in the discretion of the court.

The charges against appellant originated in the Maryland District Court in Queen Anne’s County as a result of separate complaints filed by Julius Grollman and Eugene E. Grannan. Upon appellant’s requests for jury trial the cases were transferred to the Circuit Court for Queen Anne’s County. The cases were then, at appellant’s request, removed to the Circuit Court for Caroline County where they were consolidated for trial. The charging document in each case contained two counts. The first count in each charging document charged that appellant violated the above-quoted portion of § 555A on Sunday, May 5, 1974 and the second count in each charging document alleged a similar violation on Saturday, May 11,1974.

After a motion for a new trial was denied on December 5, 1974, appellant was sentenced on January 29, 1975 to the Centreville jail for 3 months on each count in each case; the sentences were suspended and appellant placed on probation for 3 years. He also received a fine of $500 on each count in each case.

In his brief, filed in proper person, appellant presents 8 questions on this appeal:

“1. Can a resident who is aggrieved and injured by the illegal acts of another be arrested and convicted for demanding the laws be enforced as written?
2. Has an elected official and others in public office the right to enter into a conspiracy to circumvent the law by creating new laws to cover up violations of the law which deny Constitution and Civil Rights?
3. What is the justification of wiretaps without a court order and the admission of that evidence in violation of 10-401,10-402, 10-403, and 10-406 of the Annotated Code of Maryland and the Federal Constitutional laws which forbid these actions?
4. Are the courts to be allowed to suppress evidence that can prove a citizen innocent?
5. Are the right to confront a witness and cross examine to be denied in any court in this country?
6. Under what rules have the courts the right to deny the right to counsel in violation of the 6th and 14th Amendments?
7. Has not the accused the right to be present at a hearing for a new trial if he so desires?
8. Have the public officials the right to aid in the maintenance of a hazard to the lives and health of the residents of a community when that enterprise has clearly established itself as a danger to the community and a nuisance?”

We shall consider questions 1, 2 and 8 under the heading sufficiency of the evidence, for, as we understand appellant’s arguments on these questions, he contends that, as a matter of law, the evidence shows his lack of intent, in making the telephone calls, to “annoy, abuse, torment, harass, or embarrass”, and therefore his motion for “directed verdict” at the close of all the evidence should have been granted.

Preliminarily, we note that the record before us in this case reveals that it is yet another chapter in the running battle appellant has waged for a number of years against the existence of the Bay Bridge Airport. The airport is located just south of Maryland Route 50/301 in Queen Anne’s County near the eastern end of the Chesapeake Bay Bridge. Appellant lives just north of Route 50/301 in a large house in which he operates an antique business. He testified that his property is 1,000 ft. from the airport runway. To say that he is not happy with the location of the airport is certainly an understatement. This unhappiness is perhaps equalled in degree only by his unhappiness with the government officials of Queen Anne’s County for permitting it to exist and with the operators of the airport for the manner in which it is operated.

I

Sufficiency of the Evidence

Appellant does not dispute the testimony of prosecution witnesses that on May 5, 1974, and May 11, 1974, he did in fact make repeated calls to both Mr. Grollman and the Bay Bridge Airport. Mr. Grannon is the president of the company that operates the airport. Mr. Grollman, who operated a general merchandise store from his home and who at that time was one of three County Commissioners of Queen Anne’s County, testified that on Sunday, May 5,1974, he received 40 telephone calls from the appellant, and that on May 11,1974, he received 14 calls from him between 8:50 A. M. and 9:15 A. M. Testimony of personnel at the airport was that on May 5,1974, appellant made as many as 14 calls to the airport, most of which were within short periods of time in the morning, and that on May 11, 1974, appellant made as many as 12 calls, again mostly within short periods of time in the morning. There was ample evidence from which the jury could have found that the calls were “repeated” within the meaning of the statute. As we have indicated, appellant does not dispute the sufficiency of the evidence in that regard.

Appellant does, however, vigorously challenge the sufficiency of the evidence concerning whether or not the calls were made “with intent to annoy, abuse, torment, harass or embarrass”. As we understand his contention here, it is essentially that he had a right to make the repeated calls because the airport, in his opinion, was operating illegally and he was only attempting to right what he perceived to be a wrong — not to annoy, harrass, etc. anyone. He testified that his calls to Mr. Grollman on May 5, 1974, were to “ask that he [Grollman] enforce the zoning regulations as I have many times, which would take the planes away from my property”, but that “ever [sic] time I attempt to call Mr. Grollman he recognizes my voice and he hangs up”, and that he was unable to “get a sentence or message to him”. He said “I actually did dial Mr. Grollman’s number, according to my records, forty-one (41) times” on May 5, 1974. “Mr. Grollman never answers the phone as a rule, or he will hang up on me if he does and if I ask a question, he just does not answer! He has never given me a direct answer yet!” Each time he called him, an airplane was close to his building. “Grollman listened when I asked him some questions about when he was going to enforce the zoning ordinances, but he did not answer”.

Mr. Grollman’s version of the circumstances was quite different. He testified that his telephone number for his home is the same as that for his store; that on Sunday, May 5, 1974, the store was not open for business; that on that date, as well as May 11, 1974, when his store was open for business, appellant “would complain about the airplanes flying over his business, which they were trespassing on him; and . . . why I didn’t protect his rights or enforce the law of airplanes flying over his place of business”, and that appellant’s complaints were made in a loud and arrogant tone.

“Q. Now was he asking questions or were these just statements?
A. Well if he did ask a question a ... I didn’t get time to answer it because he always hung up on me.
If there were any questions to answer.
Q. Do you mear he would just say what ever he was going to say and hang up?
A. Yes sir.
Q. And you never had any time to reply to anything, is that right sir?
A. Very few occasions on the phone calls.”

Mr. Grollman testified that at other times on the dates in question, “because I had customers to wait on, and I would answer the. phone, recognize the voice and just hang up and go on and wait on the customers”.

“Q. And this voice you recognized as Richard von Lusch?
A. Yes sir. And on numerous occasions he identified himself anyway, or was saying the airplanes were flying over his place of business.”

When asked what effect “these repeated calls” had on him and his business, Mr. Grollman said:

“Well it has hindered my business, if I would have four or five customers in there, being myself, and if I couldn’t take care of them, of the customers by answering the phone, running back and forth to the phone, a.. . . someone occasionally would walk out and a... I wouldn’t have a chance to wait on them.”

Mr. Grollman further testified that although the Board of County Commissioners had a duty to enforce the county zoning laws, he told appellant he “had no jurisdiction over airplanes flying in the sky”; and that appellant never made an appointment with him in his “official capacity as a County Commissioner and came before the Commission”.

It is of course true that any person holding elective office should expect telephone complaints, even repeated complaints, from his constituents concerning a variety of matters. Moreover, the fact that the public official might consider such calls annoying, abusive, tormenting, harassing, or embarrassing, or even that the calls may in fact have one or more of those characteristics, does not alone subject the caller to punishment under the statute invoked here. On the other hand, if such calls are made with the requisite intent “to annoy, abuse, etc.”, the fact that the recipient of the calls is a public official does not immunize the caller from the statute’s sanctions. It is but a factor to be considered by the trier of fact in considering whether the element of intent has been established.

Testimony of airport personnel revealed that the repeated calls received from appellant followed the same general pattern as those he made to Mr. Grollman. He complained of airplanes flying too close to his house. “He [appellant] says what he has to say and then he hangs up. You have no time to answer him, and no time to ask anything”. “Generally in the morning he is calm and, you know, reasonable, after about the third or fourth call he is screaming and yelling and you can’t make any sense out of it anyway”. On both May 5th and May 11th he said to the recipients of the calls, “I will tie your phone up all day if I have too[sic]”, or that he “was going to tie the phone up all day”. Mr. Grannon testified that the airport had no “direction and control” over the airplane pilots’ observance of flight patterns to and from the airport, but that “we have a chart on the wall showing the take-off and landings and we have a drawing of Mr. von Lusch's house asking all aircraft to avoid that area”. Mr. Har, the airport manager, testified that he took no action in response to appellant’s calls on either May 5th or May 11th, “ ... because very simply .. . because I could be sitting right there at the desk and every time that, phone would ring about an airplane you could look and see what that airplane was doing. Now on no occasion were those airplanes near that man’s house”.

This Court, in Waller v. State, 13 Md. App. 615, 618, speaking through Judge Powers, reviewed the phrase “with intent” as applied to the field of criminal law:

“Many common law and statutory crimes in Maryland are defined as the doing of a certain act with intent to do a certain other act. This element of intent, so common in our criminal law, is seldom proved directly, but is more often found by drawing inferences from facts proved which reasonably indicate under all the circumstances the existence of the required intent. In Yopps v. State, 234 Md. 216, 198 A. 2d 264, the Court of Appeals said, at pages 220-221:
‘Finding the requisite intent to steal is, of course, never a precise process for intent is subjective, and it must therefore be inferred from the circumstances of the case if it is found at all.’
See also Putinski v. State, 223 Md. 1, 161 A. 2d 117.
This Court has several times had occasion to point out that intent is usually determined by inference, rather than by direct proof. In Wiggins v. State, 8 Md. App. 598, 261 A. 2d 503, we said at page 609:
‘In short, the finding of the requisite intent was a matter for the trier of fact. See Szewczyk v. State, 7 Md. App. 597, 601 ____’ ”

In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt. Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. State v. Devers, 260 Md. 360 (1971); Spease v. State, 21 Md. App. 269 (1974); Vuitch v. State, 10 Md. App. 389 (1971).

Applying this test to the record before us, we cannot say that there was no legally sufficient evidence from which the jury could have found the appellant guilty of the charges against him. See Pressley v. State, 244 Md. 664 (1966).

II

A lleged Violation of Wiretap Laws

Appellant contends that his civil rights were violated when the trial court admitted evidence obtained as a result of the attachment to his telephone line of a “pen register”. A pen register is a device which, when attached to the telephone line of a particular telephone, records on tape all telephone numbers dialed from that telephone. The attachment is made at the telephone company plant, not at the premises where the telephone from which calls originate is located. The device does not record conversations; nor does it indicate whether or not the call was completed. It records only that a particular telephone number was dialed.

Pursuant to complaints received from Mr. Grollman and the Bay Bridge Airport concerning appellant’s repeated calls, the telephone company placed a pen register on appellant’s telephone line on April 30, 1974. It remained on the line until May 6, 1974. A representative from the telephone company testified that on May 5, 1974, forty-three (43) calls were made from appellant’s telephone number to Mr. Grollman’s telephone number, and twelve (12) calls were made from appellant’s number to the airport telephone number. The only objection appellant made to this testimony was based on the chain of custody of the information recorded on the tapes. That issue is not raised or argued on this appeal. The issue of whether or not use of the pen register was a violation of appellant’s civil rights was not raised or decided below. We therefore do not consider it. Md. Rule 1085. We observe, however, that had the issue been properly preserved for our review, and even if we were to decide (which we find it unnecessary to do) that the evidence was improperly admitted, we would further hold that it was harmless beyond a reasonable doubt, for the evidence obtained from the pen register was the same evidence freely admitted by the appellant himself, i.e., the number and frequency of the telephone calls.

Ill

Other Rulings on, the Evidence by Trial Court

(a)

In his argument with respect to questions 4 and 5 presented in his brief, appellant contends he “was consistently denied the right to introduce evidence during trial thru cross examination of the various witnesses and thru the submission of documents and photos which would have upheld my claim of violation of my Constitutional and Civil Rights” and “was denied the right to obtain evidence as to the real reasons for the phone calls from Julius Grollman, 21 times”. “The Transcript will show more than 50 places where information was denied to me”.

Nowhere in his brief does the appellant refer us to any particular portion of the record or transcript giving factual support for these contentions or that they were properly preserved for appellate review. Md. Rule 1031 c 4 requires that appellant’s brief contain “A clear concise statement of the facts material to a determination of the questions presented” and that “Reference shall be made to the pages of the record or the transcript of the testimony as contained in the record supporting his assertions”. In Van Meter v. State, 30 Md. App. 406 (1976) Judge Lowe said for this Court:

“The Court of Appeals has held that issues can be waived for failure to comply with the procedural requirements to preserve the right of appellate review. Harmon v. State Roads Comm., 242 Md. 24, 29-32; Hyde v. State, 228 Md. 209, 218; see also Comptroller v. Aerial Products, 210 Md. 627, 644-645.
‘Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested.’ State Roads Comm. v. Halle, 228 Md. 24, 32.
. . We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position. Cf. Clarke v. State, 238 Md. 11.”

Under the circumstances, we hold that appellant has waived the issues raised by these contentions.

(b)

Appellant does refer to “page 21 of the transcript” in support of his argument that the trial court violated the “Voucher Rule” during the defense cross-examination of Mr. Grollman, and, argues appellant, his right of cross-examination was thereby prejudicially affected. Appellant’s counsel had asked the witness if he had ever taken any action with regard to appellant’s request that the witness enforce the Zoning Ordinance. The court sustained an objection to the question and said: “Well this is an administrative officer in the county government. He is not the State’s Attorney or a police officer. He has no authority to, as I understand it, to enforce criminal law.” As we view these remarks, the judge was merely explaining his ruling. He was in no sense “vouching for” the character or integrity of the witness. The contention is without merit.

(c)

During the State’s cross-examination of appellant he was questioned concerning his past criminal record. The transcript reveals the nature of the inquiry:

“Q. On April 25th of 1931 were you a . . ..
MR. VON LUSCH: Mr. Clark, if you are going to bring a juvenile record into this court, I am going to object strenuously!
THE COURT: Now just one minute Mr. von Lusch! The question hasn’t been asked! This court will pass on it.
MR. VON LUSCH: Well he is leading up to it sir!
THE COURT: Yes sir.
CONTINUED CROSS-EXAMINATION. BY MR. CLARK.
Q. On April 25, 1931 were you convicted of larceny of an auto?
MR. VANCE: Object, Your Honor.
THE COURT: Now just a minute. Just a minute! He has subjected himself to cross-examination by taking the stand.
MR. VANCE: There was no direct examination on that subject whatsoever ....
THE COURT: But it may be (unintelligible.)
MR. VANCE: It is prejudicial and we ask for a mistrial.
THE COURT: All right, sir, overrule your Motion.
MR. CLARK: Your Honor any time a witness takes the stand his credibility is at issue.
THE COURT: Yes sir, his credibility is at issue and that is all there is to it.
MR. VON LUSCH: May I ask a question judge? As I understand under the law a juvenile record may not be brought up and that one is fallacious and I have repeated it to the State Police and to this court before ... it is a fallacious record. It is deframing (sic), it is maligning to me, and it is back when I was a young punk seventeen (17) years old. I admit I have it, but to have it here, I think is unnecessary and unwise.
THE COURT: Answer the questions.
CONTINUED CROSS-EXAMINATION. BY MR. CLARK.
Q. You were convicted of larceny of an auto?
A. Yes, that is right. A fifteen dollar ($15.00) Ford.
Q. How about.... pardon?
A. A fifteen dollar ($15.00) Ford.
Q. How about September 7th of 1931 under the name of Richard Henry Lusch, were you convicted of burglary?
A. If you call breaking into an apple cellar, yes.”

The question of the admissibility of the April 25,1931 auto larceny has not been specifically presented to us by any of the “Questions Presented” set forth in appellant’s brief. The State does not mention the issue in its brief. However, included under appellant’s briefed “Argument” with respect to question 5, supra, (“Court did not have the right to deny confrontation of Accuser”), appellant states:

“The States Attorney on (T. 131,132) introduces a record in which the last entry was 38 years old. This had been used in at least 3 previous trials altho I objected to its usage based on the grounds that in NONE of the cases cited was I represented by counsel. I was running around with a gang that did end up in states prison for many years. I was lucky in being apprehended as I was and straightened out. (T. 60 of the sentencing hearing), Mr. Streelman of the probation department affirms that the information used by Mr. Clark, States Attorney, should not have been used and therefore it was prejudicial to the jury.”

When appellant’s counsel objected to the question, “On April 25,1931, were you convicted of larceny of an auto?”, he was not asked by the trial judge to state his reasons for the objection. Counsel, nevertheless, did give his reasons. The reasons given were “there was no direct examination on that subject whatsoever” and “It is prejudicial”. The appellant himself volunteered two other reasons for the objection, i.e., the inadmissibility of a juvenile record as a matter of law, and the relevancy of a record “back when I was . . . seventeen (17) years old”.

Under the circumstances we think the question of the admissibility of the April 25, 1931 conviction is properly before us and that his contentions on appeal with respect to the admissibility of the prior convictions are two-fold:

1) Relevancy or remoteness in time (“38 years old”), and
2) He was not represented by counsel, contrary to the principle enunciated in Burgett v. Texas, 389 U. S. 109 (1967), as applied in Johnson v. State, 9 Md. App. 166 (1970) to the introduction of a prior conviction to impeach a defendant-witness.

Appellant’s first contention is answered by the holding in Cousins v. State, 230 Md. 2 (1962), where the Court of Appeals, speaking through Judge Hammond (later Chief Judge), said at pp. 4-5: “We think that where the prior ’conviction was for an infamous crime, evidence of it [for impeachment purposes] is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances”. Since larceny is an “infamous” crime, appellant’s first contention is without merit.

As to appellant’s second contention, based on the Burgett principle, we are confronted with the question of whether we may consider it at all, since that ground or reason for the objection was not given below and apparently was not considered by the trial court. Rule 1085. As the record shows, the court did not request counsel to state the grounds for the objection. It was therefore not necessary that it be done to preserve the objection for appellate review. The fact that an objection was made, even without stating any reasons for the objection, is sufficient. Rule 522. See also Bailey v. State, 263 Md. 424 (1971), where the Court of Appeals overruled that portion of our opinion in Johnson v. State, 9 Md. App. 166, 177, where we said: “We hold that it is incumbent upon the defendant, when his objection to evidence of a prior conviction is on the [“non-traditional”] ground that the conviction was constitutionally void [because of the Burgett principle] to state his reasons to the court to enable it properly to determine the issue”. The Court of Appeals in Bailey, supra, through Chief Judge Hammond, said, “If we assume the Burgett principle is applicable to a witness, we do not agree with the view of the Court of Special Appeals that Rule 522 d 1 means one thing for ‘traditional’ grounds of objection and another for ‘non-traditional’ grounds”. The question in this case thus becomes: Where the trial court does not request grounds for an objection but the party objecting nevertheless states his grounds, is the objecting party deemed to have waived any other unstated grounds he may have had for the objection?

Numerous decisions hold that where the objecting party is asked by the trial court to state grounds for an objection to evidence, the objector should state all the reasons (if he has more than one) for objecting, and if he does not he is ordinarily regarded as having waived any basis not so stated. See Wilt v. Wilt, 242 Md. 129 (1966) and cases cited therein and Ross v. State, 24 Md. App. 246 (1975), rev’d on other grounds, 276 Md. 664 (1976). We see no reason why the waiver rule should not apply with equal force where, although not asked to do so, the objector nevertheless states the basis for his objection. In the instant case, there is no reason to assume that had the appellant been asked by the trial judge he, or his counsel, would have stated any different or further grounds for the objection. Nor is there any indication in the record, or claim on appeal, that appellant or his counsel were prevented from fully articulating, once they undertook to do so, all grounds for the objection. Since the Burgett principle was not included as one of the stated grounds for the objection at the trial below, we hold that the objection on that ground has been waived. We therefore do not consider it. Rule 1085.

IV

We next consider appellant’s claim that the hearing on his motion for new trial, held when he was not present, violated his rights under the Sixth and Fourteenth Amendments to the U. S. Constitution. Appellant was represented at the hearing by counsel who presented argument on his behalf.

Maryland Rule 775 providing that an accused “shall be present... at every stage of the trial” embodies the fundamental right of a defendant in a criminal prosecution “to be confronted with the witnesses against him” guaranteed by both Article 21 of the Maryland Declaration of Rights and the Sixth Amendment of the Federal Constitution, made applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400 (1965). State v. Collins, 265 Md. 70 (1972). A hearing on a motion for new trial, however, is not part of the trial itself. In Ash v. State, 238 Md. 317 (1965), the Court of Appeals, in the context of speedy trial rights, said at p. 320:

“Although there is no question but that the appellant was entitled to a speedy trial, we hold that this right has no application to a hearing on a motion for a new trial. We think the language used by the drafters of Art. 21 clearly imports guarantees applicable to the processes leading to and ending with the criminal trial itself, and we do not believe that either the motion for a new trial or the hearing thereon constitutes a ‘trial’ or any constituent part thereof within the meaning of Art. 21.’’(Emphasis added.)
“The majority of jurisdictions hold that a defendant’s presence at a hearing on a motion for new trial is not required because it is not part of the trial. See cases collected in Annotation in 69 A.L.R. 2d 835 (1960). The case of Joseph v. State, 141 N.E. 2d 109 (Ind. 1957), cert. dism. 359 U. S. 117 (1959), which is the subject of the annotation just cited, is representative of the cases following this rationale. The Indiana Supreme Court in rejecting Joseph’s contention in regard to his absence from the hearing on the motion for new trial stated (at p. 114) ‘The ruling on a motion for a new trial in a criminal case is not part of the trial of the accused as contemplated by the statutory and constitutional provisions of this State.’ See also Barber v. United States, 142 F. 2d 805 (4 Cir. 1944), cert. den. 322 U. S. 741 (1944); Bradford v. State, 202 S. W. 2d 647, 648 (Tenn. 1947); and see Orfield, Criminal Procedure from Arrest to Appeal, 494, 498. As Orfield points out, op. cit., p. 505, the Federal Rules of Criminal Procedure do not require the presence of the defendant at the hearing of a motion for a new trial.” (Emphasis added.)

We hold that none of appellant’s constitutional rights were infringed when the hearing on his motion for new trial was conducted in his absence.

V

Finally, we consider appellant’s contention that his constitutional right to be represented by counsel was violated at the sentencing hearing. We think the contention is meritorious and, while we affirm the convictions, shall remand the case to the trial court for resentencing.

It appears from the record that on December 18, 1974, appellant was notified by registered mail that sentencing would take place on January 29, 1975. The notice contained the following statement: “Mr. von Lusch: You are responsible for advising your counsel of this scheduled court appearance”. On January 22, 1975, new counsel entered his appearance for appellant. On January 28, 1975, the new counsel filed a “Motion for Continuance”, explaining that he “must be present” in another county at a previously “specially set” hearing “on the same date and time” as appellant’s sentencing, and that the proceedings in the other county “involves approximately fifteen (15) lawyers and as many motions. It would therefore present some degree of problem in attempting to reschedule that matter”.

On January 29, 1975, appellant appeared in court without counsel. The judge inquired if he was ready for sentencing. Appellant replied that he was not; that he was not waiving his right to be represented; that he had “talked to a half a dozen attorneys and I could not get an attorney to come into this county. This is the counsel of my choice [his new counsel] because he is well aware and he has been advising Jim Vance [appellant’s trial counsel] on many phases of this case. He knows this case”. Appellant also told the judge he was “under heavy sedation” and “my memory is bad as part of the injuries I have suffered from the Bay Bridge Airport and the harassment of this court. . .. [Y]ou see I am shaking and I cannot help it.

The judge felt that appellant should not have engaged the new counsel so close to the sentencing date when he knew counsel had a scheduling conflict. Appellant responded that, “He [counsel] had the papers on this case for more than a month. He has been studying them. I was not aware at the time that he had something pending on this date”. The sentence hearing proceeded, at the end of which appellant reiterated: “I again say I do not waive any of my constitutional rights and object to not having my counsel present”.

We have held that the sentencing process is a stage of the trial at which a defendant is entitled to the assistance of counsel. Smith v. State, 11 Md. App. 317, 324 (1971). Maryland Rule 719. We have also held that there may be circumstances where the conduct of the accused is so plain and clear as implicitly to demonstrate a knowing and intelligent waiver of the right to counsel. Pearson v. State, 7 Md. App. 714. On the record before us, although there is some basis for the trial judge’s belief that appellant’s conduct subsequent to the trial amounted to an attempt to “say when he is going to be sentenced”, we cannot say that his conduct was so plainly and clearly directed toward that end as to warrant a holding that he had thereby implicitly demonstrated a knowing and intelligent waiver of such a fundamental right. As Johnson v. Zerbst, 304 U. S. 458, admonishes us, courts must “indulge every reasonable presumption against waiver of fundamental rights .... [and] not presume acquiescence in the loss of fundamental rights”.

Convictions affirmed; sentences vacated; case remanded for resentencing; costs to be paid one-quarter by Queen Anne’s County and three-quarters by appellant.

Lowe, J.,

dissenting:

In Burgett v. Texas, 389 U. S. 109, the Supreme Court held that prior convictions obtained when a defendant was not represented by counsel could not be used “to support guilt or enhance punishment,” premised upon the theory that to do so was an erosion of the right to counsel expressed by Gideon v. Wainwright, 372 U. S. 335. Emphasizing the importance it placed upon this principle, the Supreme Court followed Burgett with United States v. Tucker, 404 U. S. 443, holding that convictions obtained in violation of the fundamental right to counsel may not be considered even in the sentencing procedure.

Recognizing the importance placed upon this principle by the Supreme Court, we have held that the burden is on the State to establish by “clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding.” Moore v. State, 17 Md. App. 237, 242-243; Johnson v. State, 9 Md. App. 166.

“The procedure that we spelled out in Johnson, supra, and reiterated in Moore, supra, was not intended to be a guide, that may or may not be used, but was enunciated and promulgated for the Bench and Bar to follow.” Carroll v. State, 19 Md. App. 179, 185.

The majority here points out the inarticulate but strenuous attempts both by counsel and the accused to preserve his right not to be prejudiced by an outrageous attempt to interject into the case unrelated, ancient and possible unconstitutional convictions from appellant’s childhood.

“When appellant’s counsel objected to the question, ‘On April 25, 1931, were you convicted of larceny of an auto?’, he was not asked by the trial judge to state his reasons for the objection. Counsel, nevertheless, did give his reasons. The reasons given were ‘there was no direct examination on that subject whatsoever’ and ‘It is prejudicial’. The appellant himself volunteered two other reasons for the objection, i.e., the inadmissibility of a juvenile record as a matter of law, and the relevancy of a record ‘back when I was . . . seventeen (17) years old’.” at p. 285.

It is inconceivable to me that the majority can consider these efforts as a waiver of so fundamental a right as right to counsel, then six pages later pontifically quote from Johnson v. Zerbst, 304 U. S. 458 that courts must:

“ ‘ indulge every reasonable presumption against waiver of fundamental rights . . . [and] not presume acquiescence in the loss of fundamental rights’.”,

when compelling a resentencing, precisely because counsel was not present at its imposition.

The suddenness and surprise with which issues of this nature arise at trial does not always lend itself to an easy ability to single out a case or precise rubrics as in the subtle manner required by the majority in order to preserve the issue on appeal. The preservation of rights should not depend upon a fortunate choice of words. Nor should we discourage counsel from attempting to ignite a necessary spark of recognition in the court by volunteering reasons for an objection, for fear of overlooking the key reason.

Here, in any case, counsel’s stated reasons for his objection, prejudice and questioning beyond the scope of direct examination, were both certainly not completely groundless and broad enough not to be considered a waiver. On the other hand, the accused’s reference to the “inadmissibility of a juvenile record as a matter of law” practically described our recent holding in Carroll, supra. Cf. Bailey v. State, 263 Md. 424, 427. It would appear that, to the majority, the first was too broad and the second too narrow.

However viewed, the objections here are as those described in Bailey, 263 Md. at 427:

“We find it impossible from the record to tell what the basis of the objection was.”

The objections clearly placed the burden upon the State to establish “by clear and convincing evidence” before they could be used to attack his character, that these 38 year old convictions were not obtained by an infringement upon appellant’s constitutional right to counsel. Johnson and Moore, both supra. To hold otherwise would make the assertion of a constitutionally founded right a guessing game played during the heat of trial, with the defendant’s right to appeal the stakes. That is completely contrary to the message of Bailey, supra.

I respectfully dissent.

      . Appellant was represented by retained counsel at the trial below, but his counsel was not present at the time appellant was sentenced.

      . Md. Rule 755 abolishes such motions. We shall treat the motion as a motion for judgment of acquittal for purposes of this appeal.

      . See von Lusch v. Bd. of County Commissioners, 268 Md. 445 (1973) and von Lusch v. Bd. of County Commissioners, 24 Md. App. 383 (1975), cert. denied by Court of Appeals, May 23,1975.
      At the time of appellant’s alleged telephone misuse, an appeal to this Court was pending from the decision of the Circuit Court for Cecil County (to which the case had been removed for trial) upholding the validity of an amendment to the Queen Anne’s County Comprehensive Zoning Ordinance. The effect of that holding, affirmed by our decision in 24 Md. App. 383, was to validate the present location of the Bay Bridge Airport.

      . The record reflects that after the trial appellant was a patient at a Veterans Administration hospital for a period of time.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    JOSEPH KISSELOVICH v. DIRECTOR, PATUXENT INSTITUTION
    [No. 863,
    September Term, 1975.]

      Decided April 15, 1976.

      The cause was argued before Orth, C. J., and Lowe and Melvin, JJ.

      Leonard C. Redmond, III, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Ralph M. Burnett, State’s Attorney for Garrett County and James L. Sherbin, Assistant State’s Attorney for Garrett County on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

REMOVAL IN DEFECTIVE DELINQUENT PROCEEDINGS

(1)

The defective delinquents law was enacted by ch. 476, Acts 1951, to take effect on 1 July 1952. It created an institution for defective delinquents known as the Patuxent Institution, now a part of the Department of Public Safety and Correctional Services. Code, Art. 27, § 1. The General Assembly was concerned about those persons who had been convicted and sentenced in a court of this State for certain serious crimes, and who, although responsible for their criminal conduct, had evidenced a propensity toward criminal activity demonstrated by persistent aggravated antisocial or criminal behavior and had either such intellectual deficiency or emotional imbalance, or both, as to demonstrate clearly an actual danger to society so as to require confinement and treatment apart from the incarceration for the conviction of the substantive offenses. A person found to be a defective delinquent shall be confined at Patuxent until it is reasonably safe for society that he be released. Thus, his commitment to Patuxent is for an indeterminate period without either maximum or minimum limits. Code, Art. 31B, §§ 5, 6 and 9.

The defective delinquents statute is carefully structured to provide protections, both substantive and procedural, for the accused. The protections encompass the entire proceedings, starting with the request for examination as to possible defective delinquency — § 6, and extending through examinations — § 7, hearings — § 8, review — § 10, and appeal — § 11. One of the most important safeguards is that the ultimate determination of defective delinquency vel non shall be by a judicial proceeding. The trial on the issue of defective delinquency shall be in the court having custody of or jurisdiction over a person alleged to be a defective delinquent. In a county that court is the circuit court, and in Baltimore City it is the Criminal Court of Baltimore.

The circuit courts of Maryland are courts of general jurisdiction. Courts Art. § 1-501. Defective delinquent proceedings are civil in nature. Austin v. Director, 245 Md. 206, 211 (1967); Mastromarino v. Director, 244 Md. 645, 649 (1966); Director v. Daniels, supra, at 32; Blizzard v. State, 218 Md. 384, 386-390 (1958). But, although “. . . the courts which hear defective delinquency proceedings are courts of general jurisdiction, they become courts of special or limited jurisdiction whenever they proceed to determine (with or without the aid of a jury) the status of persons alleged to be defective delinquents. In such cases, the courts instead of exercising their inherent powers are limited to the power and authority conferred on them by the provisions of Article 31B. A court can be a court of general jurisdiction for some purposes and a court of limited jurisdiction for other purposes. When therefore a court of general jurisdiction proceeds under a special statute it becomes a court of limited jurisdiction for the purpose of such proceeding. * * * Accordingly, where a court of general jurisdiction undertakes to carry out a special power, a decision made in the exercise of such power is treated as a ruling of a court of limited jurisdiction and the presumption, applicable to a court of general jurisdiction, that it acted within the scope of its jurisdiction does not apply.” Austin, at 209. That a circuit court is a court of limited jurisdiction when conducting defective delinquent proceedings was recognized and applied by the Court of Appeals in Austin in holding that the hearing court could not grant a new trial, and in Bullock v. State, 230 Md. 280, 286 (1962) in holding that it could not grant a removal for trial. This court, on the same rationale, has held that the circuit court could not order an interim redetermination of defective delinquency, State v. Reichman, 16 Md. App. 581, 585-586 (1973) or place a defective delinquent under a work release program, State v. Blackney, 8 Md. App. 232, 238 (1969). See Wilson v. State, 30 Md. App. 225(1976).

(2)

On 6 March 1974 Joseph Kisselovich appeared in the Circuit Court for Garrett County and pleaded guilty to charges of storehouse breaking and grand larceny. The pleas were accepted and verdicts entered accordingly. On 15 March he was sentenced to imprisonment for a period of 10 years on each conviction, the sentences to run concurrently. The court ordered that he be transferred to Patuxent for examination as a possible defective delinquent. Under date of 3 July the Director of Patuxent reported that it was the opinion of the staff that Kisselovich was a defective delinquent. Hearing to determine his status as required by law was set. On 3 December 1974 Kisselovich filed a "Suggestion for Removal”, “in accordance with Maryland Rules 738 and 542”, alleging that he “does not feel that he will be able to receive a fair and impartial hearing in Garrett County, because his extensive prior criminal behavior will have an undue influence on the local passion, prejudice, or interest of a jury selected from Garrett County.” The same day the court issued an order removing the case to the Circuit Court for Allegany County for trial. On 18 June 1975 the Circuit Court for Allegany County sent the case back to the Circuit Court for Garrett County. It ordered that the order of 3 December 1974 “granting a removal of this case, is hereby revoked” and that “this case be returned to the Circuit Court for Garrett County, Maryland, for further proceedings.” The order returning the case gave as reason that the “said removal was granted without a hearing under the mistaken belief that the Defendant had an absolute right of removal. . . .”

Trial on the matter of the defective delinquency of Kisselovich proceeded in the Circuit Court for Garrett County before a jury on 8 September 1975 over objection to the return of the case from Allegany County. The jury found that he was a defective delinquent, and he was committed to Patuxent the same day. He applied for leave to appeal from the order. We granted the application on 14 October 1975, and ordered that the case be transferred to the regular appeal docket. Rule 1094 § c.

(3)

One of the contentions that Kisselovich presents is: “The trial court’s denial of removal of the case to another court of competent jurisdiction deprived [him] of due process of law and equal protection of the law.” He appreciates that Bullock v. State, supra, held that there was no right to removal in a defective delinquent proceeding, but he asks us to look at the matter in the light of Davidson v. Miller, 276 Md. 54, decided 18 September 1975. The Court held in Davidson, at 82, that “the portion of Article IV, section 8, which reads ‘and in all suits or actions at law, issues from the orphans court, or from any court sitting in equity’ and the other language relating to this ... [as well as the language in Rule 542 relating thereto] is unenforceable so long as the present multiple civil common law court system exists in Baltimore City.” We said in Firstman v. Atlantic Construction and Supply Company, 28 Md. App. 285, 290-291 (1975): “The effect of the holding was, in the words of Chief Judge Murphy in his dissent, ‘to excise all those provisions from § 8 of Art. IV of the Constitution of Maryland which afford litigants in civil law cases an automatic right of removal to another court upon mere suggestion in writing, under oath, that a fair and impartial trial cannot otherwise be obtained....” Davidson hastened to point out, however, at 83: “The effect of this ruling.. . will in no way deprive or otherwise curtail the circuit courts of the counties or the circuit-level civil law courts of Baltimore City from exercising their common law discretionary power (which is subject to appellate review for abuse) to remove an action to another jurisdiction, within or without the circuit, in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached; thus, as near as is reasonably possible, an action’s consideration by a fair and impartial jury can be insured.” Kisselovich argues, therefore, that Bullock is not dispositive. It teaches only that no right of removal was given by the defective delinquent statute: “The statute not only affords no right of removal, but, on the contrary, clearly negates any inference that a removal was ever contemplated.” 230 Md. at 286. The rationale was that “[a]lthough the Legislature lacks authority to enact a law restricting or limiting the right of removal, it nevertheless has the power to extend the right by legislative enactment... so long as the enactment does not conflict with the Constitution.” Id., at 285. The Legislature had simply not extended the right of removal to defective delinquent proceedings. Bullock, Kisselovich maintains, does not speak to the common law right of removal indicated by Davidson. He urges that the common law right should apply. The contention is simply resolved. The inherent power under the common law to remove an action, which Davidson suggests vests in a circuit court in the exercise of its general jurisdiction, does not extend to such court, as we have indicated, in the exercise of the special or limited jurisdiction it enjoys in defective delinquent proceedings. In such proceedings the court has only those powers given by the statute conferring the special or limited jurisdiction. Art. 31B does not give the court the power to remove a defective delinquent proceeding. This affronts neither due process nor equal protection of the law. Defective delinquents comprise a class separate and distinct from the usual civil litigant and the usual criminal defendant. See Davis v. Director, 29 Md. App. 705, 713-717, 351 A. 2d 905, 910-912 (1976). The Circuit Court for Garrett County was wrong in removing the case on 3 December 1974 to the Circuit Court for Allegany County and right in refusing to remove it again after it was returned. The Circuit Court for Allegany County was right in returning the case on 18 June 1975 to the Circuit Court for Garrett County.

EXAMINATION BY A PRIVATE PSYCHIATRIST

(1)

Code, Art. 31B, § 7 (b) provides for an examination for possible defective delinquency by other than the Patuxent Staff:

“[W]henever a request has been made to examine any person for defective delinquency, other than a request made by such person himself or by his attorney on his behalf, and whenever the court has on its own initiative ordered examination of any person, then such person shall be entitled, upon request, to be examined by a practitioner of psychiatry of his own choice for the purpose of determining whether he is a defective delinquent within the terms of this article; and the reasonable costs of such examination shall be defrayed by the State of Maryland from the appropriations to the judiciary, in such amount as may be approved by the court. The report of examination made by such psychiatrist shall be submitted in writing addressed to the court.”

On 9 June 1975 Kisselovich filed a motion requesting an order that Dr. Louis E. Kopolow examine him as the psychiatrist of his choice pursuant to § 7 (b). The case was then in Allegany County and the motion was filed in the Circuit Court for that county. The same date that court ordered that Dr. Kopolow examine Kisselovich “to determine whether or not he is a defective delinquent” and that “expenses and costs of said examination be defrayed by the State of Maryland, said costs not to exceed $150.00 for the examination, $35.00 per hour to testify, and $25.00 per hour travel time.”

There is in the record before us a letter from the court reporter which states that due to a malfunction of the recording machine only about 50% of the testimony and proceedings at the defective delinquency trial could be transcribed. Upon motion made we ordered that a stipulation in lieu of testimony be made a part of the record. According to the stipulation, which was certified by the trial court and signed by counsel for the appellant and the appellee, Kisselovich had some time before requested Dr. Kopolow to examine him and Dr. Kopolow had done so, sending to Kisselovich’s attorney a report that Kisselovich was not a defective delinquent. The stipulation continues:

“At trial [Kisselovich] profferred the report of Dr. Louis Kopolow. Before the report of Dr. Kopolow could be read into the record, a specific objection was made by the State on the ground that the State was not aware of Dr. Kopolow’s psychiatric examination of [Kisselovich] and had not previously read Dr. Kopolow’s report. After consultation with counsel, Judge Naughton ruled that the report could not be introduced into evidence on the ground that the examination was conducted prior to the court signing an order appointing Dr. Kopolow as an independent psychiatrist. [Kisselovich] excepted to this ruling.”

(2)

Kisselovich contends that the trial court committed reversible error by refusing to admit the report in evidence. We discussed the provisions of Art. 31B, § 7 (b) in Lincoln v. Director, 21 Md. App. 597 (1974). We noted, at 602, n. 3:

“The psychiatrist of the criminal’s own choice, furnished him as provided by Art. 31B, § 7 (b), is not in the position of a medical expert in an adversary proceeding. He is considered to be ‘independent’, and is required to submit a written report of his examination and findings to the court for consideration by the trier of fact. ‘The defendant has no control over the admission of the report of this independent psychiatrist and the physician-patient relationship does not apply.’ Savage v. Director, 5 Md. App. 1, 2-3, quoting Sas v. Maryland, 334 F. 2d 506, 511, citing Simmons v. Director, 227 Md. 661. The defendant has no right under the statute to withhold the psychiatrist’s report from the court or to exclude it from evidence at the hearing, even when unfavorable to him. McCubbin v. Director, 17 Md. App. 351, 354.”

We found in Lincoln, at 605, that Lincoln was entitled, at his request, to be examined at State expense by a practitioner of psychiatry of his own choice, and that the right was denied him. We remanded so that such examination could be made, observing, at 606: “[I]f it is the opinion of such psychiatrist that Lincoln is not now a defective delinquent,. . . Lincoln then would be entitled to have the trier of fact consider the expert’s opinion that he is not a defective delinquent as evidence tending to refute the opinion of the Patuxent staff that he is a defective delinquent.”

We believe that Kisselovich was entitled to have the jury consider the report of Dr. Kopolow. It is correct that the examination was made before the order was issued authorizing it and that the report of that examination was not promptly filed in court. But, in the circumstances, we believe that the order of 9 June 1975 was sufficient authorization for the examination. If the State was in fact not aware of the report, it could have requested a reasonable continuance when the report was offered in order to become familiar with it, and, if it deemed it necessary, secured the attendance of Dr. Kopolow to testify. We find that the challenged report should have been admitted in evidence. The age of the report would go to the weight to be given it by the trier of fact. We hold that the refusal to admit the report was error, and, in the light of Dr. Kopolow’s opinion stated therein, the error requires reversal of the judgment.

THE TEST FOR THE SUFFICIENCY OF THE EVIDENCE

Kisselovich lastly claims that the trial judge erred by refusing to instruct the jury that the State must prove that he is a defective delinquent by clear and convincing evidence. Davis v. Director, supra, is dispositive of the point. We held in that case that the firmly established law of Maryland that the sufficiency of the evidence in a defective delinquency proceeding is to be tested by the preponderance of the evidence standard was constitutionally valid and would be followed.

Judgment reversed; case remanded for a new hearing.

      . For a history of the defective delinquents statute see Director v. Daniels, 243 Md. 16, 30-33 (1966).

      . Code, Art. 31B, § 8 (c) provides for a jury trial upon application of the State or the person or upon the court’s own motion. “In the absence of request for finding by a jury, the court may make such determination sitting as judge and jury.”

      . “A conviction and sentence in the District Court of one of the offenses enumerated in § 6 of this article [31B, subjecting a person to examination for possible defective delinquency] is a conviction and sentence in a court of this State for the purposes of this article. However, jurisdiction to determine whether or not a defendant is a defective delinquent is in the circuit court of the county or the Criminal Court of Baltimore, with respect to a defendant convicted and sentenced by the District Court sitting in a county or in Baltimore City, respectively.” Code, Art. 31B, § 15.
      As used in this opinion hereafter with respect to defective delinquency proceedings, “circuit court” includes the Criminal Court of Baltimore.

      . In Cooke v. Cooke, 41 Md. 362, 367 (1875) the Court of Appeals said: “The power of the courts to remove a cause to an adjoining county for trial, when justice required it, existed at common law as an acknowledged, if not an essential part of their ordinary common law jurisdiction.” Yet in Knee v. Balto. City Passenger Ry., 87 Md. 623, 632 (1898) the Court observed that “the right of removal was not a common law right.. . .”
      Courts in other jurisdictions are not in complete agreement. Compare: Crocker v. Justices of Sup. Ct., 94 N. E. 369, 371-373 (Mass. 1911), Earl of Kildare v. Eustace, 1 Vern. 437, 439 (1686), citing Sir Wm. Tyrringham’s Case and 5 W. S. Holdsworth A History of English Law at 301, n. 11 and n. 12 (2d ed. 1945) (the right of removal existed at common law) to Pierce v. Crisp, 102 S.W.2d 386, 387 (Ky. 1937) and Buchanan v. Crow, 241 S. W. 563, 565 (Tex. 1922) (the right of removal did not exist at common law).


author: Lowe, J.,

text:
    VAN GREGORY JOHNSON v. STATE OF MARYLAND
    [No. 864,
    September Term, 1975.]

      Decided April 15, 1976.

    The cause was argued before Orth, C. J., and Lowe and Melvin, JJ.

      John J. Garrity, Assigned Public Defender, with whom were T. Joseph Touhey, Public Defender for Anne Arundel County and Feissner, Garrity, Levan & Schimel on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General and Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The appeal of Van Gregory Johnson from his conviction by a jury in the Circuit Court for Anne Arundel County of assault with intent to rape and of committing unnatural and perverted sex practices, raises eight grounds for reversal. Because we reverse the conviction on one of those grounds it is not necessary to respond to the other seven. We are also spared the necessity of reciting the revolting facts of the heinous crime involved because the error compelling reversal is an evidentiary one relating to the voluntariness of Johnson’s confession.

For our purposes it need only be noted that an inculpatory statement was given to the police by appellant during a rather lengthy interrogation. A polygraph or lie detector machine was used twice during the questioning. Officer Beck conducted the questioning while using the polygraph. The interrogating officer would look at the polygraph results after each question and advise appellant that he had failed the test and that the officer didn’t believe him. The officer also questioned appellant as to what had caused the physiological responses indicating that he had made a false statement. After this procedure had been followed, the interrogator left appellant alone in the room with the polygraph for approximately twenty minutes. Then he returned with a second set of questions and repeated the same process.

Soon afterwards, while the machine was not functioning and appellant and the officer “were completely relaxed” and “talking one-on-one”, appellant gave the officer a statement which was inculpatory, though falling short of a confession. When asked at the suppression hearing the reason for doing so, appellant answered:

. . . because I got tired of sitting there and it seemed like everybody was against me. You know, nobody would believe what I said but yet I was supposed to believe what they were saying.”

It is apparent that the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts if known by appellant. Appellant’s expressed reason for confessing does not gainsay the test’s effectiveness. It is clear, however, that the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained, United States v. McDevitt, 328 F. 2d 282 (6th Cir.); Commonwealth v. Hipple, 3 A. 2d 353 (Pa.); but see People v. Lettrich, 108 N.E.2d 488 (Ill.), involving a confession after several such tests. Indeed, when these facts became known to the trial judge out of the jury’s presence during a suppression hearing, he decided that such circumstances, even in addition to the other factors offered, did not overcome the preponderant proof by the State that the confession was freely and voluntarily given. Mulligan v. State, 18 Md. App. 588, 602. The judge having made that preliminary finding, the question of voluntariness should have then been submitted to the jury on the same evidence, although the jury is to use a higher standard for determining voluntariness — it must find beyond a reasonable doubt that the confession was freely and voluntarily given. Gill v. State, 265 Md. 350, 358.

Appellant contends, and the State did not dispute, that they had “agreed between the parties that the results of the purported polygraph examination should not be disclosed to the jury . . . .” However, the judge did not permit the jury to be told even the fact that a polygraph examination was given. The officer testified to the questions he asked appellant and the answers elicited, but did not reveal the part played by the deception detecting device. At no time was the fact that a polygraph examination was used in the questioning of appellant imparted to the jury. The exclusion of this information was over the vehement objection of appellant. We are, therefore, faced with the narrow question of whether the trial judge properly excluded from the jury’s consideration of the voluntariness of appellant’s confession the fact that a polygraph was used in the obtention of that confession. We hold that such exclusion was error.

A trial judge may not select which circumstances relative to voluntariness may go to the jury and which may not. Once its preliminary determination of voluntariness is made, see Jackson v. Denno, 378 U. S. 368, all of the relevant evidence bearing on voluntariness must then be submitted to the jury, Day v. State, 196 Md. 384, 399:

“The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it. ” (Emphasis added).

The State argues that the trial judge has the right to keep from the jury the fact that the polygraph was utilized in the interrogation because it was “only a motivating factor as opposed to a force factor affecting voluntariness.” That, however, is precisely the question the jury must decide. It is within its province to decide that the psychological impact of a polygraph is a mere motivating factor, but it may also determine that it had so coercive an effect as to render a confession thus obtained involuntary. The decision is one for the fact finder alone, especially in light of the Maryland jury’s broad role as judge not only of fact, but of law as well. Md. Const., Art. XV, §5.

Appellee further argues that the exclusion of any evidence concerning the use of a polygraph in an interrogation resulting in a confession is justified because the admission into evidence of the results of a polygraph examination is not proper, citing Rawlings v. State, 7 Md. App. 611. We are not here concerned with the results of a polygraph examination, but rather with the circumstance that it was used as a psychological tool in the interrogation process.

While the issue to our knowledge has never been decided in Maryland, other jurisdictions have held that the taking of a lie detector test may be considered by the jury in determining whether a confession was freely and voluntarily given. Leeks v. State, 245 P. 2d 764 (Okla.). A jury should also consider if the method of examination was such as to constitute, in itself, coercion sufficient to find a resulting confession involuntary, Johnson v. State, 166 So. 2d 798 (Fla. App.). The very fact that the accused was preparing to take a lie detector test was found to be a proper factor for consideration by the jury when deciding the voluntariness of a confession given before such test was administered. People v. McHenry, 22 Cal. Rptr. 621. See also annotation Evidence Deception Tests, 23 A.L.R.2d 1306.

The reason for excluding the results of a polygraph examination is the questionable reliability of such evidence. Similarly, the admission into evidence of whether an accused agreed or refused to take such a test may give rise to jury speculation as to his reasons for submitting or refusing to submit to the test. In both cases, a determination of guilt or innocence may be affected by an accused’s state of mind after the crime, rather than upon evidence produced related to the crime itself. But evidence of the use of a polygraph as a device to obtain a statement is substantially less prejudicial than either the impact of the questionable results of the device or the effect of the defendant’s refusal to take the test. The importance of permitting the jury to weigh the coercive effect of every motivating circumstance surrounding the eliciting of a confession, far outweighs the importance of avoiding the. possible prejudice from a reference to its use. Furthermore, as indicated by Lusby v. State, 217 Md. 191, any prejudice may be diminished by instructing the jury as to the limited purpose of the admission of the evidence relating to the deviee.

The possibility of speculation by jurors as to the results of the polygraph test, although diminished when merely used for purposes of voluntariness, causes the issue to be one charged with evidential cordite. This case presents a not atypical example of such a possibility. The officer stated that, after the accused responded to each question and he had viewed the results on the polygraph machine, he espoused his disbelief of appellant’s answers. This could give rise to speculation by the jury that the officer was reacting to the actual test result. On the other hand, it is entirely possible that the officer might have been deceiving the accused as to the real result in order to obtain his reaction and possible confession. Either inference is speculative and gives rise to an obvious danger. Therefore, the jury should be admonished not to speculate upon the machine’s results as they relate to the guilt or innocence of the accused, but to draw any logical inferences from the circumstances solely as to the question of whether the procedure used induced an involuntary confession.

We do not hold that the use of psychological devices to interrogate will, as a matter of law, make the resultant confession inadmissible. We do hold that if such devices are utilized, the State takes the chance that a given jury will consider the device or procedure so coercive as to declare the confession to have been involuntary. It would be unsound to exclude from the jury’s consideration on the issue of voluntariness the psychological effect of the use of polygraph devices when we fail to exclude the effect of any other potentially coercive condition, person or device present during interrogation. We have frequently quoted Malloy v. Hogan, 378 U. S. 1, 7, to the effect that:

“The basic standard governing the admissibility of an extrajudicial statement is whether, considering the totality of the circumstances, the statement was voluntary. ... To be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” (Emphasis added). Keller v. State, 2 Md. App. 623, 626-627.

What is an “improper influence” is a question of both law and fact, the evidence of which is twice presented; first to the judge alone, and later with the jury in attendance. The jury must have the opportunity to consider all of the evidence pertaining to the voluntariness of a confession before deciding the question of guilt or innocence. Day, supra. That is an inviolable jury function which may not be eliminated. Gill v. State, 265 Md. at 358-359.

Judgments reversed.

Case remanded for new trial.

      . In addition to our holding in Rawlings, the Court of Appeals has held that "... the result of a lie detector test is almost universally excluded as evidence.” Lusby v. State, 217 Md. 191, 194-195. Maryland has yet to decide the effect of a stipulation by the parties upon the admissibility of iie detector results, but see 21 Md. Law Review 176 and 23 A.L.R.2d 1306, § 6.

      . In Lusby v. State, supra, the Court of Appeals held that a statement by the prosecutrix in response to a question by the State, that she had taken a lie detector test, was not so prejudicial as to warrant a mistrial where the judge had instructed the jury to disregard her answer.

      . This Court has held that deceit is a proper weapon in the law enforcement arsenal for the obtention of confessions. Hopkins v. State, 19 Md. App. 414, 424.


text:
    FRANCES ESTER SMITH v. STATE OF MARYLAND
    [No. 887,
    September Term, 1975.]

      Decided April 15, 1976.

    The cause was submitted on briefs to Orth, C. J., and Menchine and Mason, JJ.

      Submitted by Jack B. Rubin and Lee Gordon, Assigned Public Defenders, for appellant.
    Submitted by Francis B. Burch, Attorney General, John A. Austin, Assistant Attorney General, William A. Smsher, State’s Attorney for Baltimore City and Joseph Wase, Assistant State’s Attorney for Baltimore City, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On this appeal Frances Ester Smith does not challenge her conviction of murder in the second degree, entered in the Criminal Court of Baltimore on 2 April 1975 upon her plea of guilty thereto. She is unhappy, however, with her punishment. We trace the long and tortuous journey leading to the ultimate sentence imposed.

On 1 February 1973 in the Criminal Court of Baltimore, Mrs. Smith, charged with the homicide of her husband, Johnny James Smith, was found guilty by a jury of murder in the second degree. On 8 May 1973, after a motion for a new trial was heard and denied and a medical report was obtained, she was committed to the care of the Commissioner of Correction for 30 years from 1 February 1973. She appealed on 18 May 1973. The Court of Special Appeals affirmed the judgment, Smith v. State, 20 Md. App. 254 (1974), and the mandate was issued on 21 March 1974. On 6 May 1974 Mrs. Smith moved the trial court for a reduction of sentence. Rule 764, § b 1. The motion was granted, and on 20 May the sentence was reduced to 24 years from 1 February 1973. In the meantime, on 17 May 1974, the Court of Appeals ordered that a writ of certiorari issue to the Court of Special Appeals. By a majority opinion filed 25 November 1974, Smith v. State, 273 Md. 152, the Court of Appeals reversed the judgment of the Court of Special Appeals, which, then, as directed, vacated its mandate on 8 January 1975, reversed the judgment of the Criminal Court of Baltimore and remanded the case for a new trial. Thereupon, on 2 April 1975, Mrs. Smith pleaded guilty to murder in the second degree. The plea was accepted, and verdict rendered accordingly.

At the penalty stage of the trial defense counsel informed the court that there had been plea negotiations. The prosecutor and defense counsel suggested that a pre-sentence investigation be made. Regardless of what the investigation disclosed, the State indicated, it would recommend that the sentence not exceed 15 years. If the report of the investigation were “favorable”, that is, “[i]f the report spoke extremely well of Mrs. Smith and her prospects for the future, something along those lines,” the State would have no objection to Mrs. Smith striking her plea of guilty to murder in the second degree and entering a plea to manslaughter. The State would not oppose “whatever the probation report comes up with, in the way of a recommendation.” The court held the sentencing sub curia. It referred Mrs. Smith “to the Probation Department for complete evaluation” and set disposition for 23 April 1975.

On 23 April 1975 the matter of disposition came before the court. Counsel commented on the probation report which had been filed. “In the light of the findings of the Probation Department in the probation report, in light of the findings of the Medical Division of the Supreme Bench in 1973, and in light of the mitigating circumstances which are present in this case,” the State adhered to the bargain that it would recommend a sentence not to exceed 15 years. The judge announced the sentence. Finding probation “totally unrealistic”’ he said:

“I concluded that the appropriate sentence to be imposed would be imposed as starting as of now, without regard to her previous incarceration, which has been a period of nineteen months. And the sentence is to be twelve years in the custody of the Department of Corrections. That sentence is to start as of today. So that in effect, the nineteen months that she has already served is eliminated. Half of her sentence from the twenty-four years, the first twelve years have already been taken care of by her nineteen months incarceration under this sentence, because this is a new sentence of twelve years starting today.”

Defense counsel entreated the court for a short delay in the execution of sentence: “This young lady has two children at home. She does have an ailing mother, and we will present her to the authorities on Monday.” The court granted the request, postponed the execution of the sentence until Monday, 28 April, and continued bail, observing: “She will be required to surrender herself to the Sheriff.”

On 28 April 1975, when Mrs. Smith appeared before the court, the judge changed the sentence. He explained:

“. . . I found that the sentence which I imposed was not in accord with a recent act of the Legislature.
Mrs. Smith originally, in 1973 had been sentenced to a term of thirty years incarceration as a result of a conviction of murder in the second degree. Later, the trial Judge in that case, Judge Harris, reduced that sentence to twenty-four years. Later, there was a reversal in the Court of Appeals. And the case was re-tried before me on April 22nd, when she submitted under a plea of guilty to murder in the second degree. So, that the previous sentence imposed on Mrs. Smith was a term of twenty-four years. She had been incarcerated for a period of approximately nineteen months. The dates I have are from May 8th of 1973, until December 23rd, 1974.
And in sentencing Mrs. Smith, I imposed a term of twelve years imprisonment which was one-half of the twenty-four year term. However, that was done on the basis of not allowing any credit for the nineteen months, because I thought it would be easier to keep the books straight if we just wiped out the first twelve years with the nineteen months taking care of that, and giving her a new sentence of twelve years.
It developed that it is mandatory that any time spent serving a sentence, or awaiting trial must be allowed for. Under those circumstances, the twelve year sentence is being stricken as an illegal sentence, and a different sentence is going to be imposed.”

He imposed the new sentence:

“The sentence is a term of fifteen years imprisonment with credit given for the nineteen months imprisonment previously served. So that the present term is a term of fifteen years with credit given for the period served from May 8th, 1973, through December 23rd, 1974.”

Defense counsel took exception, pointing out that there were no new circumstances to support the increased sentence. The judge commented: “That has nothing to do with anything other than the legality of the sentence.” Defense counsel persisted: “I understand, but the point being, she was exposed on Wednesday to a maximum of twelve years, not being exposed to a maximum of fifteen years, which is three years greater than the sentence she had Wednesday, regardless of when she may or may not be eligible for parole. On those grounds, if the Court pleases, we take exception to your Honor’s sentence.” The court stated that “the exception will be noted.” Mrs. Smith forthwith, on 28 April 1975, noted an appeal. The curtain did not yet fall, however, in the lower court. We find in the record an order signed by the trial judge under date of 22 May 1975 which is not mentioned in either the brief of Mrs. Smith or the brief of the State. It reads:

“On April 28, 1975, the above named defendant was sentenced to a term of fifteen years under the jurisdiction of the Department of Correction, the sentence to date from September 8, 1973. It was intended that the defendant be given full credit for all time spent in incarceration. It has now been ascertained that the defendant’s incarceration began on February 1,1973.
IT IS, THEREFORE, ORDERED this 22d day of May, 1975, that the sentence under the above indictment be corrected to read fifteen years under the jurisdiction of the Department of Correction dating from February 1,1973.”

The order of 22 May 1975 is reflected in the docket entries under that date. The entry concludes: “Copy of corrected commitment filed.”

We list the various sentences from time to time imposed: Original Conviction

Sentence of 8 May 1973: 30 years from 1 February 1973.

Sentence of 20 May 1974: 24 years from 1 February 1973.

Conviction on Remand

Sentence of 23 April 1975:12 years from 28 April 1975.

Sentence of 28 April 1975: 15 years with credit given for time served for the period from 8 May 1973 through 23 December 1974.

Sentence of 22 May 1975:15 years from 1 February 1973.

The statute which the trial judge referred to in striking as illegal the sentence he imposed on 23 April 1975 was Acts 1974, ch. 735, § 1, effective 1 July 1974, codified as Art. 27, § 638C. Credit is required to be given for time spent in custody, under subsection a before conviction, and under subsection b against a subsequent sentence when a sentence is set aside. In relevant part the statute provides that any person who is convicted and sentenced shall receive credit for all time spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital or other agency as a result of the charge for which sentence is imposed or as a result of the conduct on which the charge is based. Subsection a. A person whose sentence is set aside as the result of direct or collateral attack and who is reprosecuted or resentenced for the same offense or for another offense based on the same transaction shall receive credit against the term of a definite sentence for all time spent in custody under the prior sentence. Subsection b. In each case the term of the sentence shall be diminished by the credit. By subsection (d) this required credit shall be awarded by the trial judge at the time of sentencing. “After having communicated with the parties, the judge shall inform the defendant and shall state on the record the amount of time that is to be credited and the facts upon which the provision for credit is based.”

Maryland Rulé 764 speaks to the power of the trial court to revise a sentence imposed. Section a flatly declares: “The court may correct an illegal sentence at any time.” Section b 1 gives the court revisory power and control over the judgment or other judicial act forming a part of the proceedings for a period of 90 days after the imposition of sentence, or within 90 days after the receipt by the court of a mandate issued by the Court of Appeals or Court of Special Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter pursuant to motion filed within such period. Expressly included in such authority is revisory power and control over a sentence. Manifestly, in the light of the power bestowed by § a over an illegal sentence, § b 1 contemplates a legal sentence. The power to revise a sentence under § b 1, however, is limited: “The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence.”

We examine the various sentences imposed after remand in the light of the statute and rule.

Sentence of 23 April 1975

This sentence imposed a term of imprisonment of 12 years from 28 April 1975. With respect to the definite term of 12 years it was clearly legal. Twelve years was well within the maximum of 30 years authorized upon conviction of murder in the second degree by Code, Art. 27, § 414, and there was no showing that the sentence was dictated by passion, prejudice, ill will or any unworthy motive. Mullins v. State, 12 Md. App. 222, 224-225 (1971). What was illegal about the sentence was that credit was not given against the term of imprisonment “for all time spent in custody” on the charge so that the 12 years would be “diminished thereby” as required by Art. 27, § 638C (b). Had there been compliance with the statute, the practical effect would be that Mrs. Smith would have been subject to imprisonment for 12 years in all because credit given to diminish the 12 year term would be equal to time actually spent in custody.

Sentence of 28 April 1975

This sentence imposed a term of imprisonment of 15 years with credit for time served for the period from 8 May 1973 through 23 December 1974. The effect of this sentence, assuming that the time considered as served was accurate, was that Mrs. Smith was subject to imprisonment for a total of 15 years as the credit given was equal to and offset by the time served. Of course, had she in fact been in custody for a longer time than that for which credit was given, the actual time she would be subject to serve would be longer than 15 years. In either event, the sentence of 28 April 1975 was longer than the sentence of 23 April 1975 and was, therefore, in violation of Rule 764, § b 1 which prohibits the court from increasing the length of a sentence. We note that if a judge is required to increase a sentence to make it a legal sentence, see State ex rel. Sonner v. Shearin, 272 Md. 502 (1974), he is not acting under § b 1 but under § a.

Sentence of 22 May 1975

This sentence imposed a term of imprisonment of 15 years from 1 February 1973. From 1 February 1973 to 28 April 1975 comprised 2 years, 2 months, 28 days. Assuming that this was in fact the correct time Mrs. Smith spent in custody on the charge, the practical effect would be that she would be subject to be imprisoned for 15 years in all. As in the prior sentence the time for which credit was given by dating the sentence back was equal to and offset by the time spent in custody. Of course, had she in fact been in custody for a longer time than that for which credit was given, her actual incarceration would exceed 15 years. Had she in fact been in custody for a shorter time than that for which credit was given, her actual incarceration would be less than 15 years. Accepting, however, for the purpose of this immediate discussion, that her incarceration began on 1 February 1973, as the court stated in its order, and continued without break thereafter, this sentence also was longer than the sentence imposed on 23 April 1975 and therefore violated Rule 764, § bl.

We point out that the record before us does not support the conclusion that Mrs. Smith was continuously incarcerated from 1 February 1973. It does not disclose when she was first taken into custody, but according to the docket entry of 16 October 1972 the court ordered that she be escorted from the Women’s Detention Center to a funeral home to view the remains of her husband. When the presentment was filed on 18 October 1972 and capias issued it was returned “cepi Jail”. On 17 November 1972, recognizance in the amount of $1,000 was taken. When she was found guilty on 1 February 1973, the court authorized bail of $5,000 pending disposition and bail in that amount was taken on 8 February 1973. She was sentenced on 8 May 1973 and apparently incarcerated. On 23 December 1974 recognizance in the amount of $5,000 was taken pending disposition of the writ of certiorari issued by order of the Court of Appeals. It seems that thereafter she remained free on bail until 28 April 1975.

Summary

The sentence of 23 April 1975 was legal with respect to the imposition of a term of imprisonment of 12 years. It was illegal only in that it did not grant credit for time spent in custody.

The sentence of 28 April 1975 was illegal because it increased the length of the sentence imposed on 23 April.

The sentence of 22 May 1975 was illegal in that on its face it increased the length of the sentence imposed on 23 April. It also presents other problems. The practical effect of the order was that it reduced the sentence of 28 April by giving more credit for time spent in custody. We cannot ascertain from the record whether this was done in open court after notice to Mrs. Smith and the State’s Attorney as required by Rule 764, § b 2 and in conformance with Art. 27, § 638C (d), requiring that “the judge shall inform the defendant and shall state on the record the amount of time that is to be credited and the facts upon which the provision for credit is based.” More significantly the order was issued after the appeal had been noted. Ordinarily, the trial court loses jurisdiction over the case when an appeal is filed. State v. McCray, 267 Md. 111, 145 (1972).

DECISION

The State argues that the trial judge struck the 12 year sentence as illegal. By the State’s reasoning, that sentence was therefore a nullity, and the judge was free to sentence again as if the 12 year sentence had never been imposed. We •do not agree because we believe that the trial judge could not strike the 12 year term he had imposed so as to thereafter increase the sentence. As we have indicated, the 12 year term imposed was legal, and the only aspect of the sentence that was illegal was the lack of credit for time served. Rule 764, § a permitted that defect to be corrected, but it did not empower the judge to strike the 12 year term. It is correct that § b 1 of the Rule gives the trial judge, within the 90 day period, broad powers over a sentence even though it has been imposed. But those powers permit the modification or reduction of the sentence. Costello v. State, 237 Md. 464, 472 (1965). The judge may not increase it. Brown v. State, 237 Md. 492, 502 (1965) indicates that Rule 76.4, § b prohibits the increase of a sentence imposed, even when its execution was suspended.

We hold that the striking of the sentence imposed on 23 April 1975 was error in the circumstances, that the sentence imposed on 28 April 1975 was illegal, and that the order of 22 May 1975 was improper. The sentence of 28 April 1975 is vacated and the order of 22 May 1975 is reversed. The sentence of 23 April 1975 of 12 years in the care of the Commissioner of Correction is reinstated with modification. The trial court shall, by proceedings it deems appropriate, determine the actual time Mrs. Smith spent in custody on the charge of which she was convicted and shall give credit against the 12 year term for such time so that such term shall be diminished thereby pursuant to Code, Art. 27, § 638C (a) and (b). We remand the case in order that the trial court may pronounce a proper sentence, Rule 1071, § b, in the manner required by Art. 27, § 638C (d) and Rule 764, § b 2.

THE MOTION TO DISMISS THE APPEAL

The State in its brief moves to dismiss the appeal, Rule 1036, § d, as not permitted by law, Rule 1035, § b 1. The general rule is that there may not be a direct appeal from a refusal to modify, Wilson v. State, 227 Md. 99, 100-102 (1961), or to strike out, Harris v. State, 241 Md. 596, 598 (1966), a sentence. Wilson and Harris and under their authority, the Court of Special Appeals in Dawson v. State, 17 Md. App. 316 (1973), and the Court of Appeals again in William Johnson, Jr. v. State, 274 Md. 29, decided 24 February 1975, dismissed such appeals. In Johnson, at 44, the Court of Appeals pointed out that as both it and this Court have held that the provisions of Maryland Rule 764, § a and § b 1 are each construed to be a statutory remedy within the meaning of the Uniform Post Conviction Procedure Act, the dismissal of the appeal was without prejudice to seek relief under post conviction procedures.

Less than two months after the opinion in William Johnson, Jr. v. State, supra, was filed, the Court of Appeals decided Kenneth Ricardo Johnson v. State, 274 Md. 536. The Court of Special Appeals had affirmed the judgment on Johnson’s burglary conviction, 21 Md. App. 214 (1974], and the Court of Appeals granted his request for certiorari so it “could review the prison sentence he received for that criminal act.” The writ directed that the scope of review was “limited solely to the question [of] whether the [trial] court denied . . . [Johnson] due process by sentencing him ‘to a longer term based upon his not admitting guilt but instead pleading not guilty and testifying in his own behalf.” 274 Md. at 537. Thus, there were no issues concerning the guilt stage of the trial before the Court of Appeals. In holding that the trial judge in imposing sentence impermissibly considered Johnson’s election to stand trial, a unanimous Court said, at 538:

“In reviewing the legality of this sentence we are fully cognizant of the fact that, in this State, the awesome responsibility of imposing sentence is within the exclusive domain of the trial judge (subject to modification pursuant to the review of criminal sentence provision contained in Maryland Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.) Art. 27, § 645JA-645JG), and thus his determination in this regard cannot be reevaluated upon appellate review unless either it is based upon an impermissible consideration, Costello v. State, 237 Md. 464, 469, 206 A. 2d 812 (1965); Gleaton v. State, 235 Md. 271, 277, 201 A. 2d 353 (1964); Mitchell v. State, 82 Md. 527, 534, 34 A. 246 (1896), or is passed in violation of statute, State Ex. Rel. Sonner v. Shearin, 272 Md. 502, 325 A. 2d 573 (1974).”

Although the sentence in the case was not passed in violation of a statute, the Court clearly declared that a direct appeal lies with respect to a sentence which is passed in violation of statute. This may be dictum, but we are constrained to follow so plain a pronouncement by the highest Court of this State.

We have determined that the sentences we are here asked to review were illegal in whole or in part under statute or under Maryland Rules having statutory effect. It is manifest from the transcript of the proceedings at the penalty stage of the trial that the trial judge, although attempting to correct the sentence of 23 April 1975, did so by imposing, over objection, a new sentence which was itself illegal, and later attempted to correct that new sentence by an order which it had no right to issue and which imposed a sentence which was also illegal. We believe that under the authority of Kenneth Ricardo Johnson v. State, supra, the appeal is properly before us. The motion to dismiss it is denied.

Motion to dismiss appeal denied; conviction affirmed; order striking sentence of 28 April 1975 vacated and that sentence reinstated wi,th direction that it he modified pursuant to this opinion; sentence of 28 April 1975 vacated; order of 22 May 1975 reversed; case remanded for further proceedings in accordance with this opinion.

      . Maryland Rule 724 provides that an accused may enter a plea of guilty to a degree of an offense, which, by law may be divided into degrees of guilt. Compare, Code, Art. 27, § 412. See Smith v. State, 5 Md. App. 633, 634, n. 1 (1969). But see Acts 1975, ch. 252, § 1. No question about the plea, its acceptance and the verdict rendered is raised here.

      . Pending the appeal application for review of sentence was made. On 5 July 1973 the Review Panel ordered that the sentence remain unchanged.

      . The docket entry reads: “April 28, 1975 .........Judgment: Fifteen (15) Years "c/o Commissioner of Correction dating from 8 September, 1973. Grady, J.” We find no mention of 8 September 1973 in the transcript of the sentencing proceedings. This would make the credit 19 months 20 days. From May 8tn, 1973, through December 23, 1974, the time served was 19 months and 15 days.

      . Mrs. Smith requested the Clerk: “Please file an Appeal in the above captioned case on behalf of the Petitioner who was sentenced on April 28, 1975.” She asked that the appeal be assigned to the Public Defender’s Office “as I am currently indigent and without funds.”

      . Section b 1 also provides that upon expiration of the period specified the court has such revisory power and control only in case of fraud, mistake or irregularity. By § b 4, bastardy, desertion and non-support cases are without the Rule. In such cases the court may at any time before expiration of sentence, reduce, change or modify or suspend the sentence or place the accused upon probation upon such conditions and terms as the court may impose.
      Section b 2 requires that a modification or reduction of sentence must be made in open court and only after notice to the defendant and the State’s Attorney. “A new judgment of conviction, setting forth the revised sentence and specifying the modification or reduction made, shall be entered of record so that the docket entries reflect the action taken.”

      . The provisions of Rule 764, § a and § b 1 have been construed to be “statutory” in effect. Johnson v. State, 274 Md. 29, 44 (1975).

      . Brown, at 503, points out that there are constitutional prohibitions against increasing the sentence of a person who has begun serving that sentence in a penal institution.

      . Mrs. Smith contends on appeal that “the trial judge violated [her] constitutional right not to incur multiple punishments for the same offense by increasing [her] sentence from twelve to fifteen years imprisonment.” As we have resolved the issue pertaining to the sentence on the basis of statute and rule, we do not reach the constitutional question.

      . In Costello v. State, 240 Md. 164 (1965), however, the Court of Appeals felt justified in treating the direct appeal as though it had come before it as an application for leave to appeal from denial of relief under post conviction procedures. It so treated the appeal and granted leave to appeal “since the sentences which form the basis for the attempted appeal are illegal.” It thereupon, at 168, overruled the motion to dismiss the appeal and struck the illegal sentences.

      . The Court observed that the sentence of 12 years imposed was not in violation of the duration of imprisonment allowable by law. 274 Md. at 538.

      . State ex rel. Sonner v. Shearin, 272 Md. 502 (1974), which the Court gave as its authority, held that the State had the right to appeal from a denial of a motion to correct an illegal sentence imposed upon conviction of a crime committed prior to 1 January 1974. See State v. Ward, 31 Md. App. 68 (1976). We think that it necessarily follows that if the State has the ngnt to appeal m such circumstances, the accused, enjoying even broader appeal right in criminal actions, has the right to appeal. Apparently, as Shearin was cited, the Court of Appeals shares this view. We note that the crime of which Mrs. Smith was convicted was committed prior to 1 January 1974. See also State v. Wooten, 277 Md. 114 (1976).
      We observe that ch. 49, Acts 1976, to be codified as Courts Art. 12-302 (c), signed by the Governor 1 April 1976 and effective 1 July 1976, authorizes the State to appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.