author: Weant, J.,

text:
    RICHARD G. LETT a/k/a Thomas Richard Lett v. STATE OF MARYLAND
    [No. 1040,
    September Term, 1981.]

      Decided June 2, 1982.

      The cause was argued before Weant and Bishop, JJ., and James S. Getty, Chief Judge of the Fourth Judicial Circuit, specially assigned.

      Joseph H. Rouse, Assigned Public Defender, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry A. Hamilton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On 3 April 1980 Richard G. Lett, a/k/a Thomas Richard Lett, appellant, was indicted for first degree rape, second degree rape, first degree sexual offense, second degree sexual offense, and kidnapping. A jury found Lett guilty on all counts; the judge merged second degree rape into first degree rape, and second degree sexual offense into first degree sexual offense. On 15 May 1981 appellant was sentenced to life imprisonment for first degree rape, a concurrent life term for first degree sexual offense, and 25 years for kidnapping, this sentence to run consecutively with the life sentences. After his sentence was affirmed by a sentence review panel, a timely appeal to this Court was filed from the decision of the Circuit Court for Montgomery County.

Appellant presents seven prolix questions for us to consider. Seeking to be more laconic, we will attempt to unravel and clarify each point as we deal with it.

Appeal

I.

Lett first contends that the trial court abused its discretion by refusing to grant a continuance of his suppression hearing. He alleges that he was constrained to request a continuance when the state failed to produce as witnesses at that hearing all four New Jersey police officers who participated in the appellant’s arrest and subsequent search of his motel room and vehicle. Instead the prosecutor produced only three of the four.

The decision as to whether or not to grant a continuance is within the sound discretion of the trial court and will only be reversed on appeal if there is an abuse of that discretion. The Court of Appeals has outlined the criteria to be used in determining this issue as follows:

To show such an abuse of discretion and prejudice for failure to continue a case because of the absence of witnesses, the party requesting the continuance should show: that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and that he had made diligent and proper efforts to secure the evidence. [Citations omitted.]

Jackson v. State, 214 Md. 454, 459, 135 A.2d 638, 640 (1957), cert. denied, 356 U.S. 940 (1958).

First, the record fails to reveal whether the appellant had a reasonable expectation of securing the presence of Lt. Calabrese, the missing officer, within a reasonable time. There is no indication of why he failed to appear or when he could be expected to be present as a witness. See Taylor v. State, 226 Md. 561, 565, 174 A.2d 573, 575 (1961).

Second, the only effort made by Lett to show that the officer’s expected testimony was competent and material and that the case could not be fairly tried without it was through a proffer that Lt. Calabrese would testify to the fact that he authorized entry into the motel room and that he was present during the search of the automobile. We think that this proffer does not establish that the Lieutenant’s testimony would be necessary to assure a fair trial for the appellant. There were two other police officers who did testify and who were able to say that Calabrese authorized the entrance into the motel room as they were present at the time. Likewise there was another officer at the hearing who saw Lt. Calabrese make the search of the vehicle. Consequently the proffered testimony would have been merely cumulative.

Third, the record does not reveal any attempt which the appellant made toward securing Lt. Calabrese as a witness other than to say that "we requested them to produce four and through an oversight only produced three.” See Jackson v. State, 288 Md. 191, 194, 416 A.2d 278, 281 (1980). The record does not disclose who was responsible for the oversight, i.e., the state or the defense. In fact, defense counsel concedes that he had not interviewed the missing witness which procedure, in our view, would be a vital step toward making a diligent and proper effort to secure that evidence.

Finally, we note that the fact that all of the police officers involved were from New Jersey is another cogent factor in a continuance. The trial judge properly voiced concern over the expense and inconvenience that would be involved in bringing the police officers to Maryland a second time. Under all the circumstances of the instant case, we fail to perceive any abuse of discretion on the trial court’s part in refusing to grant a continuance.

II.

Lett’s second contention is that his arrest without a warrant was illegal, unreasonable, and a violation of his Fourth Amendment rights. Appellant relies on Payton v. New York, 445 U.S. 173 (1980); this reliance, however, is misplaced. In Payton, the Supreme Court held that a warrantless arrest could not be effectuated in one’s home, even upon a showing of probable cause, absent either consent or exigent circumstances. In the instant case, however, there were both consent and exigent circumstances.

In our view the trial judge correctly disposed of this proposition in his Memorandum and Order dated 12 December 1980. We quote therefrom:

The law of the place of the arrest governs in determining the legality of an arrest, Hager v. State, 27 Md. App. 475 (1975). Therefore, New Jersey law would govern the resolution of these issues here. Under New Jersey law in a proper situation both consent of a qualified person with control over the premises entered, State v. Miller, 157 N.J. Super. 552, 388 A.2d 993 (1978), and exigent circumstances, State v. Galvin, 161 N.J. Super. 524, 391 A.2d 1275 (1978), are exceptions to the rule that warrantless searches and seizures are per se unreasonable. Mrs. Helman [the victim], by implication if not in express language, consented to the entry by the police of her motel room. While the record is unclear whether Mr. Lett’s name or her name, or both, appeared on the motel registry, or whether he registered using her husband’s name, it is clear that she had perfect right to consent to the police entering the room. Once lawfully in the room, the officers had ample probable cause on the basis of Mrs. Helman’s statements to arrest the Defendant.

Even assuming arguendo that there was no consent, the police were clearly justified in entering the motel room on the basis of exigent circumstances. The police responded to the victim’s call by coming to the motel. There the victim told them that Lett had abducted her, that she believed he had a weapon, and that she thought he was wanted for armed robbery in either Florida or Maryland. Obviously, the police were fully justified in acting quickly to apprehend appellant without a warrant to prevent his escape.

Thus, appellant’s warrantless arrest by the police was not illegal, unreasonable, or a violation of his Fourth Amendment rights, whether the arrest was based on consent or exigent circumstances.

III.

Appellant next contends that the trial judge erred in admitting the evidence seized in the appellant’s room during the warrantless search. The trial judge ruled that the items seized were in plain view as the police officers entered the motel room and that thus they were admissible as evidence. Again we agree with the trial court.

Relying on Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court of Appeals has enunciated the requirements for the applicability of the "plain view” exceptions to the exclusionary rule: evidence in plain view may be seized if "(1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is 'immediately apparent to the police that they have evidence before them,’ ....” State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977). See also State v. Boone, 284 Md. 1, 10, 393 A.2d 1361, 1366 (1978). In the instant case, the police had justification for the intrusion because allegedly Mrs. Helman, the victim, had been abducted and raped by appellant. Each of the items seized — the car keys, roll of adhesive tape, and women’s shoes — were in plain view of the police and inadvertently found by them when they entered the motel room to arrest appellant. Finally, it was clear to the police that they saw evidence of the crime because the victim had told them that she had been bound with tape and transported to New Jersey in the trunk of a car. As the victim was shoeless when the officers first talked to her, they could easily have concluded that the pair of women’s shoes had been worn by her. Thus the plain view exception is satisfied.

IV.

Appellant’s fourth contention is that the trial judge erred in determining that the initial illegal warrantless search of his vehicle did not taint the subsequent search of the same vehicle pursuant to a valid search warrant. He alleges that the evidence seized pursuant to the valid search was not purged of the primary defect caused by the illegality of the original search. See Wong Sun v. United States, 371 U.S. 471 (1963). We disagree.

This Court has explained that there are three generally recognized exceptions to the "fruit of the poisonous tree” doctrine: "1) where the evidence sought to be introduced has an independent source, or 2) the evidence would have inevitably been discovered, or 3) where 'the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.’ ” Baker v. State, 39 Md. App. 133, 140, 383 A.2d 698, 701 (1978) (citations omitted). In the instant case, the search of the car pursuant to a warrant was independent of the original illegal warrantless search. Further, the affidavit filed in support of the warrant was not tainted by the illegal search because the affidavit was based almost exclusively on the testimony of the victim herself and was therefore independent of the evidence obtained from the illegal search. Consequently, the evidence discovered had a source independent of the initial illegal entry into the vehicle.

V.

Lett argues that the trial judge erred when he refused to reconsider appellant’s motion to suppress at the beginning of trial. The basis for the motion was an alleged conflict between the testimony of the police officers at the suppression hearing and the report of Lt. Calabrese concerning the circumstances under which the police entered the motel room. The trial court ruled that the alleged conflict was immaterial because the judge determined that the victim consented to the entry and therefore the question of who opened the door to the room was irrelevant. Under these circumstances we find that the trial court’s refusal to consider the renewed motion was not an abuse of discretion. See Mathias v. State, 284 Md. 22, 394 A.2d 292 (1978), cert. denied, 441 U.S. 906 (1979).

VI. and VII.

Apparently relying on the confusion which has resulted from using the terms venue and jurisdiction interchangeably, the appellant is assailing the venue of this case under the guise of subject matter jurisdiction. He claims that the trial court erred in failing to grant his motion for judgment of acquittal because of the lack of the necessary proof of intent in order to show jurisdiction and in failing to instruct on the question of intent.

In an effort to bring some clarity to the "jurisdiction-venue” confusion the Court of Appeals in the case of McBurney v. State, 280 Md. 21, 31, 371 A.2d 129, 135 (1977), has had this to say:

There are two facets to the jurisdiction of a court — jurisdiction over the subject matter and venue.
With respect to the subject matter, within its county, a circuit court of this State has full common law jurisdiction in all criminal cases committed in Maryland except where limited by law. Maryland Code (1974) Courts and Judicial Proceedings Article § 1-501. Venue, however, is the place of trial, or where a criminal trial may properly occur.

A perusal of these distinctions makes it clear that the appellant was directing his complaint against that of venue as distinguished from subject matter jurisdiction. As Judge Moore said for this Court in State v. Jones, 51 Md. App. 321, 325, 443 A.2d 967, 971 (1982), "Section 465 has no extra-territorial effect — it is simply a venue statute, . . . .” This being the case the appellant is too late in raising this objection. In this regard we call attention to the case of Carter v. State, 38 Md. App. 400, 381 A.2d 309, cert. denied, 282 Md. 730 (1978), at page 405, 381 A.2d 312, wherein this Court said: "Improper venue is a 'defense or objection’ which, under Maryland Rule 725 (b), [now Rule 736c] must be raised by motion before trial. [Citations omitted.] If the defense is not raised by motion before trial, it is deemed waived.” Maryland Rule 725 (b) (now Rule 736a).

Even assuming that the question of venue was properly raised below, we think that it was correctly decided in this case. Article 27, § 465 addresses the question of venue in such a situation as follows:

If a person is transported by any means, with the intent to violate this subheading and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued or ended.

In the instant case the court had for consideration several relevant facts pertaining to the question of venue. The appellant had made arrangements to meet the victim, Linda Helman, at the Germantown Inn located in Montgomery County on 14 March 1980. He met her at the parking lot there and after a brief preliminary, pulled her into his car, locked the door and proceeded to tape her wrists. From Montgomery County they went to Frederick County where the appellant stopped his vehicle and forced Linda Helm an into the trunk. Thereafter the appellant stopped at a motel located in Frederick County where he raped the victim and forced her to perform fellatio. Later he took her to New Jersey where the arrest was made.

There is little question that the evidence discloses that the appellant had the intent to commit rape when he conveyed the victim into Frederick County from Montgomery County, this intent being an essential element for conferring such venue. Deinhardt v. State, 29 Md. App. 391, 398, 348 A.2d 286, 290 (1975), cert. denied, 277 Md. 736 (1976). In any event the question of venue is for the court to decide and is not a subject for instruction to the jury.

Consequently we think that the judgments of the trial court should be affirmed.

Cross-Appeal

The state has cross-appealed from the refusal of the trial court to sentence Lett under the mandatory sentencing provisions of Article 27, § 643B (c). It maintains that the mandatory provisions of this article should be used in sentencing by reason of the fact that it proved that Lett was convicted of two prior crimes of violence, having served one term of confinement for a crime of violence in a correctional institution. The problem arises in the trial court’s construction of that statute which provides:

Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.

In refusing to follow the mandatory sentencing provisions the trial judge put a literal interpretation on the law. He found that, although the appellant had been convicted of two separate crimes of violence and had served one term of confinement, the convictions did not take place on two separate occasions. The court said "He [the appellant] was convicted on only one occasion, namely the date of November 10th . . . .” He reasoned that the two convictions did not qualify as separate occasions as provided by Article 27, § 643B (c).

It is the cross-appellant’s contention that the trial court’s interpretation of the statute in question leads to an anomalous situation wherein the appellant would be subjected to the rigors of the mandatory sentence were he to have been convicted on two separate days for the crimes which he committed rather than, as here, escape the more severe punishment because he was convicted of these separate crimes on the same day. The state asserts that this leads to an absurdity.

In the case of Gatewood v. State, 244 Md. 609, 617, 224 A.2d 677, 682 (1966), the Court of Appeals in a similar situation said: "That construction of the statute is neither sensible nor reasonable and manifestly leads to an absurdity, but, if that is its plain meaning and if the words are not fairly susceptible of another interpretation, we are not at liberty to depart from them.” On the same page the judge commented:

A criminal statute must be strictly construed in favor of the defendant. Grimm v. State, 212 Md. 243, 246, 129 A.2d 128 (1957); Fowel v. State, 206 Md. 101, 107, 110 A.2d 524 (1955) and cases therein cited. Where the statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, the courts are not at liberty to insert or to delete words with a view toward making the statute express an intention which is different from its plain meaning. Fowel, supra, 206 Md. at 105; Pineland Lumber Company v. Miles, 228 Md. 584, 587-88, 180 A.2d 870 (1962) and cases therein cited.

See also Baltimore Building and Construction Trades Council AFL-CIO v. Barnes, 290 Md. 9, 15, 427 A.2d 979, 982 (1981); Amalgamated Casualty Insurance Co. v. Helms, 239 Md. 529, 535, 212 A.2d 311, 316 (1965); Glover v. State, 14 Md. App. 454, 464, 287 A.2d 333, 338-39 (1972), rev’d on other grounds, Goode v. State, 41 Md. App. 623, 628 n.6, 398 A.2d 801, 804 n.6 (1979).

The Random House Dictionary of the English Language, 1979, defines "occasion” as "a particular time, esp. as marked by certain circumstances or occurrences.” The same dictionary defines "separate” as being "unconnected; distinct; unique.” Thus we conclude that the term "two separate occasions” has a plain meaning and is not fairly susceptible of an interpretation other than that of two unconnected, distinct, or unique times. While the state may get some comfort from the definition of "occasion” in Black’s Law Dictionary, Fifth Edition, as being

|t]hat which provides an opportunity for the causal agency to act. Meaning not only particular time but carrying ideal opportunity, necessity, or need, or even cause in a limited sense,

the same dictionary defines "separate” as being

[i]ndividual, distinct, particular; disconnected. Generally used in law as opposed to "joint,” though the more usual antithesis of the latter term is "several.”

Together they give little succor in establishing the ambiguity needed by the state.

Here we feel obliged to comment that this Court previously had occasion to call attention to the fact that "[t]he draftsmanship of the statute [§ 643B (c)] is patently inartful.” Calhoun v. State, 46 Md. App. 478, 489-90, 418 A.2d 1241, 1249 (1980), aff'd, 290 Md. 1, 425 A.2d 1361 (1981).

In so doing we said through Judge Moore that

In addition, we note that unless a defendant’s two prior convictions occur on "two separate occasions” the predicates of § 643B (c) have not been satisfied.
This is true even when the two prior convictions arise from totally separate incidents. Thus, a defendant who is convicted at one trial of several crimes of violence may escape the mandatory sentence of § 643B (c). In contrast, however, the mandatory life sentence provision, § 643B (b), requires only "three separate convictions.” It does not require that the convictions be obtained on separate occasions. These discrepancies and variations are indicative of the need for legislative clarification of this statutory enactment. See McLee v. State, 46 Md. App. 472, 418 A.2d 1238 (1980).

Id. at 490 n.5, 418 A.2d at 1249 n.5. As we said there and we say now "[a]ny change, however, must be left to the legislature.” Id. at 490, 418 A.2d at 1249. To this time the Legislature has not seen fit to make any change in this respect and hence we are prompted to assume that the statute says what it means. Consequently we are constrained to hold that the trial court correctly construed Article 27, § 643B (c) as it now exists.

Judgments affirmed.

Costs are to be paid 1/2 by the appellant and 1/2 by Montgomery County.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    LEON B. BACK, Receiver v. INTERNAL REVENUE SERVICE
    [No. 1051,
    September Term, 1981.]

      Decided June 2, 1982.

      The cause was argued before Liss and Bishop, JJ., and David William Simpson, Associate Judge of the District Court of Maryland for District 2, specially assigned.

      Charles M. Tatelbaum, with whom were James A. Vidmar, Jr., and Sherbow, Shea & Tatelbaum, P.A. on the brief, for appellant.

      Joan I. Oppenheimer, with whom were Glenn L. Archer, Jr., Assistant Attorney General, Michael L. Paup and William S. Estabrook on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by Leon B. Back, appellant, as receiver for J. B. Broadcasting of Baltimore, Ltd., (hereinafter J.B.), an annulled corporation, which before and after the annulment of its charter operated radio station WEBB in Baltimore, Maryland. The appeal is from the disposition by the Circuit Court of Baltimore City of the receiver’s objections to the claims for withholding and unemployment taxes by the Internal Revenue Service.

The case originated on March 17, 1978, when Leon Back and others, all judgment creditors of J.B., filed a bill of complaint in the Circuit Court of Baltimore City in which they sought the appointment of a receiver for the assets of J.B., on the basis that J.B. was unable to pay its debts as they matured in the ordinary course of business. See Maryland Code (1975), Corporations and Associations Article, § 3-413. J. B. Broadcasting' of Baltimore, Ltd. had its corporate charter annulled in the State of Maryland on January 21, 1976. Counsel for J.B. and its officers and directors vigorously contested the claim of the complainants and it was not until July of 1978 that J.B. (by James Brown, who had served as president of J.B. and was the owner of the overwhelming majority of the stock), filed a consent to the entry of summary judgment and the appointment of a receiver. On July 21,1978, the court appointed Leon Back as receiver; however, because the necessary approval of the Federal Communications Commissioner was delayed, the receiver did not take control of the assets of J.B. until August 1, 1978. It is conceded by all parties that J.B.’s property at the time it was taken over by the receiver was in "deplorable condition.” The receiver, who had extensive experience in the radio field and is an expert in the construction, licensing, operation and management of radio stations, marshalled the tangible assets of the station and subsequently was able to find a qualified purchaser (Brunson Broadcasting Corp. of Baltimore), who offered $430,000 for the station’s assets. The sale was ratified by the F.C.C. on November 20, 1979. In the interim, the receiver continued to operate the station. It is agreed by all parties that the receiver performed excellently in preserving and selling the assets of J.B.

Numerous claims were filed in the receivership. Exclusive of the claims of the Internal Revenue Service, the total claims of creditors exceeded $850,000. Included in these claims were those of judgment creditors amounting to more than $650,000. The Internal Revenue Service filed claims for withholding and unemployment taxes covering the entire period of J.B.’s existence. These claims were divided into three distinct periods. For Period One, which ran from 1970 through 1974, during which J.B. filed quarterly withholding returns, the I.R.S. claimed taxes due of $160,540, including interest and penalties. For Period Two, which ran from 1975 through part of 1978, during which J.B. and its successors filed no returns, IRS claimed taxes due of $268,586.90, including interest and penalties. For Period Three, which included the remainder of 1978 through the end of the receiver’s tenure in November, 1979, the IRS filed a number of claims which in the aggregate, including interest and penalties, amounted to $61,557.41. The IRS claimed lien and priority status for its claims and the total claims of the IRS would have exhausted the entire trust estate to the exclusion of all other creditors.

The receiver filed objection to all of the claims of IRS. An evidentiary hearing was held in the Circuit Court of Baltimore City, at which time the amounts of the Internal Revenue’s claims for Periods Two and Three were called into question. At the conclusion of the evidentiary hearing the court indicated that supplemental memoranda should be filed by April 22, 1981 and a further hearing was scheduled for the following day. In an attachment to its additional memorandum the IRS recomputed its figures for Periods Two and Three. Period Two liability was restated to be $113,856.39 (of which $81,876.60 constituted taxes and the remainder interest and penalties); the claims for the second quarter of 1978 were included in Period Two, removing them from Period Three. Oral argument was heard and the trial judge filed a memorandum opinion and order which accepted the IRS restated amount of claim for Period Two, overruled the receiver’s objections to the several claims of IRS and allowed the claim of the IRS in the total amount of $320,032.07. Two days later the court sua sponte filed a revised memorandum opinion and order in which it struck its previous order and entered a new order disallowing interest and penalties for Period Three and reduced the allowed claim of the Internal Revenue to $308,143.57.

The receiver has called this Court’s attention to an apparent mathematical error in which an additional $1,000 was erroneously added to the Internal Revenue Service’s restated amount for Period Two. The appeal in this case is from the judgment of the trial court allowing the IRS claims in the total amount of $308,143.57. The appellant raises the following nine issues to be decided by this appeal:

I. Does the Federal Tax Lien Act or section 3466 of the revised statutes permit payment of federal tax claims before the claims of preexisting judgment lien creditors in accordance with Maryland Law?
II. Did the Internal Revenue Service adequately establish the prerequisites for the applicability of lien or priority status in this case?
III. Was the receiver’s status under Maryland law superior to the Internal Revenue Service’s priority and lien status, even if they were established?
IV. Could the Internal Revenue Service revive any lien status it possessed by purporting to revoke its release of liens during the pendency of the receivership while the trust estate was in custodia legis?
V. Should the Internal Revenue Service have been allowed to collect taxes in this receivership proceeding because it failed to prove timely assessment or collection?
VI. Did the lower court err in its determination of taxes due on the basis of speculation?
VII. Did the lower court err in refusing to find that taxes that become due after a corporation ceases to exist are not collectable from the corporation in a receivership proceeding?
VIII. Should the penalties claimed for Period Two have been disallowed because there was no proof of lack of good cause to excuse them?
IX. Should the lower court, in allowing the claim of the Internal Revenue Service for unemployment taxes, have granted a credit for amounts payable to the Unemployment Fund of the Maryland Department of Human Resources?

I. and II.

The most important question to be decided in this case is the interplay between federal and state laws in determining the order of payment of claims against insolvent debtors in receivership. Simply stated, the inquiry is whether federal • statutes and regulations establishing priorities in insolvency proceedings and providing for government liens for taxes impair the rights of judgment creditors under Maryland law. The Internal Revenue Code, (26 U.S.C.), section 6321 provides:

If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

Section 6323 (a) provides for the circumstances under which the lien imposed by section 6321 becomes effective. It states:

(a) The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate.

In Maryland, a judgment lien is created by Maryland Code (1975, 1980 Repl. Vol.), Courts and Judicial Proceedings Article, § 11-402, and by Maryland Rule 620. The statute provides in subsection 11-402 (b) as follows:

(b) Judgment of court of original entry. — If indexed and recorded as prescribed by the Maryland Rules or the Maryland District Rules, a judgment of a court constitutes a lien to the amount and from the date of the judgment on the judgment debtor’s interest in land located in the county in which the judgment was rendered except a lease from year to year or for a term of not more than five years and not renewable.

Section 11-403 states that a writ of execution does not become a lien on personal property until an actual levy is made. Maryland Rule 620 a provides as follows:

A judgment shall constitute a lien to the amount and from the date thereof upon all real estate of the judgment debtor lying in the county wherein the judgment was entered, and upon all leasehold interest and terms for years of the judgment debtor in land, except leases from year to year and leases for terms of not more than five years and not renewable.

The receiver urges that some of the judgment creditors should be afforded priority under 26 U.S.C. § 6323 (a), supra, which provides that a federal tax lien has no priority over a judgment lien until notice of the claim has been filed. It is conceded that some of the judgments were recorded first in time; nevertheless, the case law seems to establish that in order to be entitled to priority under § 6323 (a), the judgment lien must be "choate and specific” prior to the filing of the federal lien. To meet this test the judgment lien must be defínite in three respects: (1) the identity of the lienor, (2) the property subject to the lien; and (3) the amount of the lien. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979).

In the case at bar, no evidence was offered by the receiver to establish whether any of the judgment liens would meet the "choate and specific” test.

The appellee contends that it not only has a lien against the appellant’s property under section 6321 as we have heretofore stated it, but also under the provisions of the Revised Statutes § 3466 (31 U.S.C., § 191). That section provides in pertinent part as follows:

Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed. The priority established under this section does not apply, however, in a case under Title 11.

Appellee urges that by its broad terms the statute admits of no exceptions in conferring absolute priority for debts due the United States from an insolvent person or estate. United States v. Vermont, 377 U.S. 351, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964). It is not contested that when the receiver in this case was appointed by the Circuit Court of Baltimore City on July 21, 1978, substantial sums were due the United States on account of unemployment and withholding taxes.

Appellant points out that there is an apparent conflict between the Federal Tax Lien Act, IRC 6321-6323 and the statute affording federal claims priority in insolvency under section 3466 of the Revised Statutes and contends that in the light of the conflict, pre-existing judgment liens should be paid before federal tax claims.

The IRS urges that this Court adopt the reasoning found in the treatise on Federal Tax Liens by William T. Plumb, Jr. (3d ed. 1972), in which the author stated at page 192, "On its face, the Government’s priority in distribution, which applies to federal tax claims [footnote omitted] whether or not secured by an antecedent lien, is absolute and admits of no exceptions.5” [Emphasis added]. Footnote 5 refers to United States v. Waddill, Holland and Flinn, 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945), and United States v. Vermont, supra, as support for the quoted statement.

In the 1981 supplement, however, Plumb has modified the language of the above quote and changes the footnote:

P. 192 (text): Change 5th line from top to read: an antecedent lien, has been said to be absolute, admitting of no exception.5 [Emphasis added],

P. 192, n. 5. Change note 5 to read:

The Supreme Court statements are all dicta; the strongest is most recent. United States v. Vermont, 371 U.S. 351, 358 (1964). But the issue was not fully briefed in Vermont or any of the other cases repeating the dicta. Reliance has been placed mainly on United States v. Gilbert Associates, 343 U.S. 361 (1953), which, in turn, relied upon Thelusson v. Smith, 15 U.S. (2 Wheat.) 396 (1817). Conrad v. Atlantic Ins. Co., 26 U.S. (1 Pet.) 386 (1828), which fully disposes of Thelusson, while fitfully cited, has been truly neglected. It upheld a lien for a loan to an importer on outbound and future inbound cargo over the priority and refused to read section 3466 literally, holding, on the contrary, that it is p. 438 "a mere right of prior payment, out of the general funds of the debtor in the hands of the assignee.” Brent v. Bank of Washington, 37 U.S. (10 Pet.) 569 (1836), held a bank lien upon its shares for any debt of the shareholder to the bank was not defeated by section 3466. It would thus appear that section 3466 does not impose a stricter test of perfection of a competing lien than the later enacted federal tax lien. In the rest of the text of this chapter, we have not attempted to qualify the dicta, though the issue is worth presenting for decision.

In United States v. Vermont, supra, at 357-59, the Supreme Court said:

Section 3466 on its face permits no exception whatsoever from the statutory command that "[w]henever any person indebted to the United States is insolvent . .. debts due to the United States shall be first satisfied.” The statute applies to all the insolvent’s debts to the Government, whether or not arising from taxes, and whether or not secured by a lien. In United States v. Gilbert Associates, 345 U.S. 361, without questioning that the lienor was identified, the amount of the lien certain or the property subject to the lien definite, this Court accorded priority to subsequently arising claims of the United States against an insolvent debtor on the ground that:
"In claims of this type, 'specificity’ requires that the lien be attached to certain property by reducing it to possession, on the theory that the United States has no claim against property no longer in the possession of the debtor.. .. The taxpayer had not been divested by the Town of either title or possession. The Town, therefore, had only a general, unperfected lien.” Id., at 366. [Footnote omitted].
The state tax commissioner’s assessment and demand in the present case clearly did not meet that standard, nor, so far as that goes, did the writ of attachment served ‘on the Chittenden Trust Company. But the New Britain case, 347 U.S. 81, in which "[t]he taxpayer had not been divested by the Town of either title or possession,” makes quite clear that different standards apply where the United States’ claim is based on a tax lien arising under §§ 6321 and 6322. "When the debtor is insolvent, Congress has expressly given priority to the payment of indebtedness owing to the United States, whether secured by liens or otherwise, by § 3466 of the Revised Statutes, 31 U.S.C. . . § 191. In that circumstance, where all the property of the debtor is involved, Congress has protected the federal revenues by imposing an absolute priority [citing United States v. Gilbert Associates, 345 U.S. 361; United States v. Waddill, Holland & Flinn, 323 U.S. 353]. Where the debtor is not insolvent, Congress had failed to expressly provide for federal priority ... although the United States is free to pursue the whole of the debtor’s property wherever situated.” United States v. New Britain, 347 U.S. 81, 85.
It is undisputed that the State’s lien here meets the test laid down in New Britain that "the identity of the lienor, the property subject to the lien, and the amount of the lien are established.” 347 U.S., at 84. Moreover, unlike those cases in which the Security Trust rationale was applied to subordinate liens on the ground that judgment had not been obtained prior to the time the federal lien arose, [Footnote omitted], it is as true of Vermont’s lien here [Footnote omitted] as it was of the federal lien in New Britain that "The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor’s property to satisfy the debt.” Bull v. United States, 295 U.S. 247, 260. [Footnote omitted].
For these reasons, we hold that this antecedent state lien arising under a statute modeled after §§ 6321 and 6322 is sufficiently choate to obtain priority over the later federal lien arising under those provisions.

Appellant in his brief has called our attention to a number of State decisions as well as cases decided in several of the Circuit Courts of Appeals which have held to the contrary. We particularly note United States v. State, 227 S.C. 187, 87 S.E.2d 577 (1955); and Muniz v. United States, 129 Ind. App. 433, 155 N.E.2d 140 (1958), both decided before United States v. Vermont, supra, where it was held that section 3466 did not give the United States government absolute preference over antecedent recorded judgments.

Appellant argues that the weight of the State decisions as well as the decisions of the federal courts has in many instances ruled against the government’s asserted absolute priority. We note, however, that Revised Statutes § 3466 is a priority statute while IRC §§ 6321-6323 is a lien statute. It seems clear to us that section 3466, enacted as it was, almost at the very beginning of the Republic, was intended to protect the federal tax revenues by imposing an absolute priority. Congress undoubtedly has been aware of the clear language by which it established a statutory mandate which, on its face, permits no exception and although it has adopted new lien statutes from time to time, it has chosen not to change the priority section. The Supreme Court has had before it on several occasions the question of whether the priority granted under section 3466 may not be overcome by a fully perfected and specific lien, e.g., in Illinois v. Campbell, 329 U.S. 362, 67 S.Ct. 340, 91 L.Ed. 348 (1946), but declined a direct determination as to whether section 6323 provides an exception to section 3466. See United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953). See also Commonwealth of Kentucky Dept. of Revenue v. United States of America, 383 F.2d 13 (6th Cir. 1967).

In light of the strong dicta quoted from United States v. Vermont, supra, and in the absence of any proof by the receiver that the judgment creditor had taken any steps necessary to divest the debtor of either title or possession of the property owned by the insolvent before the insolvency proceeding began, we conclude that the recorded judgments in this case did not create such liens as would entitle the holder to priority over the claims of IRS. Under Maryland law, a judgment lien is a general lien on real property of the debtor and signifies only the right of the judgment creditor to order the sale of the debtor’s property to satisfy his judgment. See Messinger v. Eckenrode, 162 Md. 63, 158 A. 357 (1932). To obtain priority over the government’s claim for taxes the lien must be attached to certain property by reducing it to possession on the theory that the IRS has no claim against property no longer in the possession of the debtor. United States v. Gilbert Associates, Inc., supra. There is no evidence that any of the judgment lienors took action either by way of execution or attachment to divest the debtor of his title or possession. We conclude that the IRS must be accorded priority under IRC § 6323 (a) and § 3466 of the Revised Statutes.

Appellant has combined several complaints in this issue in which he argues that the IRS did not adequately establish the prerequisites required for the applicability of either lien or priority status in this case. One of the series of contentions is that the record is lacking in proof that there was any demand for payment of taxes as required by IRC § 6321 for the lien holder status to arise and that the record further lacks any proof that a warrant was issued or a levy made under the receivership. Under these circumstances, appellant contends that the existence of any tax lien should have been viewed by the trial court as irrelevant. The short answer to this contention is that the issue was neither raised nor decided in the proceedings below and is therefore not preserved for appellate review. Maryland Rule 1085.

Appellant further urges that the trial court ignored the receiver’s argument that the government had failed to prove the prerequisites for priority status under section 3466 of the Revised Statutes. The receiver contends that the section applies only when: (a) a decedent’s estate is insufficient to pay all the debts due by the deceased; or (b) a debtor not having sufficient property to pay all his debts makes a voluntary assignment for the benefit of creditors; or (c) an attachment of the estate of an absconding, concealed or absent debtor has occurred; or (d) there has been the commission of an act of bankruptcy. Appellant argues that IRS’s contention that the debtor’s inability to pay all his debts within the ordinary course of business was not sufficient to bring its priority status into being. Appellant cites in support of this position United States v. Oklahoma, 261 U.S. 253, 43 S.Ct. 295, 67 L.Ed. 638 (1923), wherein the Court stated:

The claim of the United States to the asserted priority rests exclusively upon the statute .... It establishes priority which is limited to the particular state of things specified. The meaning of the word "insolvent,” used in the act, and of the insolvency therein referred to, is limited by the language to cases where "a debtor not having sufficient property to pay all his debts shall make a voluntary assignment,” etc. Mere inability of the debtor to pay all his debts in the ordinary course of business is not insolvency within the meaning of the act, but it must be manifested in one of the modes pointed out in the latter part of the statute, which defines or explains the meaning of insolvency referred to in the earlier part. [261 U.S. at 259-260].

Appellant suggests that the consent of James Brown to the appointment of a receiver in this case was not a sufficient act of bankruptcy to bring this controversy under the provisions of section 3466 because insolvency under section 3466 contemplates not the "[m]ere inability of the debtor to pay all his debts in ordinary course of business,” Id. at 260, but rather that the debtor has greater liabilities than assets. We think the opinion of the Supreme Court in Illinois v. Campbell, supra, is dispositive of this contention. In discussing the fifth act of bankruptcy, which is the one which the government relied upon in that case as having brought section 3466 into operation, the Court stated:

[Bankruptcy] consists of a person’s having,
"(5) while insolvent or unable to pay his debts as they mature, procured, permitted, or suffered voluntarily or involuntarily the appointment of a receiver or trustee to take charge of his property . . . [Footnote omitted]. [Citation omitted], [Id. at 368].

The court concluded that the receivership in that case, as in the one at bar, was a general one as contrasted with a receivership incidental to the enforcement of a lien. The Court held that the realities require us to treat the proceeding as a general equity receivership within the scope of section 3466. In the case at bar, no matter what standard we apply it is clear that the debtor was insolvent within the meaning of section 3466 and the ultimate consent to the appointment of a general receiver was more than sufficient to trigger the applicability of that section.

III.

The receiver asseverates that his status under Maryland law was superior to the IRS’s priority and lien status. As authority for this contention, appellant cites Maryland Code (1975) § 15-101 (d) of the Commercial Law Article, and argues that the appointment of the receiver created a status for him of a perfected, secured lien creditor on the date the proceedings were filed. Under appellant’s theory, the trial court should have held that the receiver’s qualification defeated any subsequent lien or priority status of the IRS. We do not agree. The Supreme Court, in Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960), ruled that "in the application of a federal revenue act, state law controls in determining the nature of the legal interest which the taxpayer had in the property ... sought to be reached by the statute. [Footnote omitted], ... [O]ncethetax lien has attached to the taxpayer’s state-created interests, we enter the province of federal law, which we have consistently held determines the priority of competing liens asserted against the taxpayer’s 'property’ or 'rights to property.’ ” [Citations omitted], [Id. at 513-514].

Similarly, the state laws are equally inapplicable to cases involving section 3466 because the Supreme Court held that state laws cannot destroy the federal priority. Illinois v. Campbell, supra; United States v. Oklahoma, supra; United States v. Texas, 314 U.S. 480, 62 S.Ct. 350, 86 L.Ed. 356 (1941).

IV.

Appellant contends that the record discloses that the IRS released and discharged a number of its filed tax liens applicable to Period One. The record extract substantiates this contention. Thereafter, in April and May of 1980, and during the pendency of the receivership proceeding while the trust estate was in custodia legis, the IRS filed notice of its revocation of its previous release of liens. The receiver argues that these revocations were ineffective and that once the receiver was appointed it would be improper to allow a creditor to improve its position vis a vis other creditors. The receiver points out that under the Md. Commercial Law Article, § 15-101 (c) (3), he is explicitly authorized to set aside any lien obtained within four months of the commencement of the receivership. He therefore contends that the liens sought to be revived by the revocation of a prior release or discharge within four months beginning March 17, 1978, or afterwards, should not be recognized.

Appellant has ignored the effect of the IRC (26 U.S.C.) § 6325 (f) (2), which provides in pertinent part as follows:

(2) Revocation of certificate of release or nonattachment. — If the Secretary or his delegate determines that a certificate of release or nonattachment of a lien imposed by section 6321 was issued erroneously or improvidently, or if a certificate of release of such lien was issued pursuant to a collateral agreement entered into in connection with a compromise under section 7122 which has been breached, and if the period of limitation on collection after assessment has not expired, the Secretary or his delegate may revoke such certificate and reinstate the lien —
(A) By mailing notice of such revocation to the person against whom the tax was assessed at his last known address, and
(B) by filing notice of such revocation in the same office in which the notice of lien to which it relates was filed (if such notice of lien had been filed).
Such reinstated lien (i) shall be effective on the date notice of revocation is mailed to the taxpayer in accordance with the provisions of subparagraph (A), but not earlier than the date on which any required filing of notice of revocation is filed in accordance with the provisions of subparagraph (B), and (ii) shall have the same force and effect (as of such date), until the expiration of the period of limitation on collection after assessment, as a lien imposed by section 6321 (relating to lien for taxes).

While the IRS may not proceed by way of distress or execution against property held in custodia legis, it may, as it did in this case, file its claim for payment in the appropriate tribunal. Thompson v. Henderson, 155 Md. 665, 142 A. 525 (1928). We therefore find no merit to this contention.

V.

Appellant next contends that at least as to a portion of its claim IRS was not entitled to payment because it failed to prove timely assessment or collection. Under the IRC § 6501, assessment is required within three years after each quarterly return is filed and upon failure to assess within this time period no proceeding for collection is permitted. Where assessment is timely, collection of the tax by levy or commencing a proceeding in court must occur within six years of assessment, IRC § 6502, and the only suspension of the six year period applicable in this case is for assets in the custody or control of a court, IRC § 6503 b, which occurred on August 1, 1978. From the record extract it seems clear that as to Period One, the lien of the IRS for all of the year 1970 and the first two quarters of 1971 did not arise until July 1,1977. There is nothing in the record to establish that assessment was timely made and it seems to us that the burden is on IRS to establish the timeliness of the assessment.

The trial judge assumed that assessment had been timely and that the collection period had been suspended for approximately a one-and-one-half-year period while James Brown’s assets allegedly were in the custody of a United States court. The judge in his memorandum opinion found that the debtor had filed for bankruptcy on May 25,1971 and that the case was dismissed on August 28,1972. On the basis of these factual findings the trial court concluded the statute of limitations for collection after assessment was suspended from May 25, 1971, through February 27, 1973. We have carefully examined the record extract and find no evidentiary support for these conclusions. At argument it was explained to us that the May 25, 1971 court proceeding was an involuntary petition for bankruptcy filed by creditors of James Brown. This petition was resisted and we were advised that no bankruptcy order has ever been entered by the District Court for Maryland at any time prior to the dismissal of the proceedings. If these representations are correct, it may appear that the mere filing of the involuntary bankruptcy proceeding may not toll the statute of limitations under section 6503 (b) for the calendar quarter of 1970 and the first two calendar quarters of 1971. There are further factual and legal findings to be made by the trial court as to the $54,920.89 tax liability alleged to be due the IRS for the 1970-1971 quarters. We shall remand to the trial court for further proceedings.

VI.

After 1974, J.B. filed no Employer Quarterly Federal Withholding Tax Returns or Employer’s Annual Federal Unemployment Tax Returns. It became apparent during the course of hearings in this matter that the IRS arrived at its computation of 1975 quarterly tax liability by doubling the 1974 information return and adding 15% for each quarter thereafter. When these calculations were resisted by the receiver and an expert witness produced by him, the IRS filed memorandum computations which resulted in reducing the claim for the taxes, penalties and interest from the original $268,568.90 to approximately $115,000. The receiver’s expert originally indicated that computing the latter figure as proposed by IRS "would have been reasonable” but indicated in response to a clarifying question that this was "just speculation.”

The trial judge, in his memorandum opinion, recited the circumstances under which the tax liability for Period Two was recomputed:

At the hearing, all parties agreed that the original estimates were inflated. At this court’s suggestion, the IRS recomputed the tax liability for Period Two based on the average of the wage statements from the last return filed during Period One and the first return filed during Period Three. The average quarterly wage figure was multiplied by the applicable federal unemployment tax rate in effect for 1975 through 1978. Consideration was given to testimony presented in court that no wages were paid certain employees for the twelve weeks prior to the receiver’s assumption of control of the business. Interest and penalties were assessed. This appears to be the fairest method for computing the taxes due for this period.

In the light of the fact that James Brown failed to file the tax returns required by law and the receiver had no books and records from which an accurate assessment could have been determined, we find no error in the trial judge’s approval of the amended submission of tax due.

VII.

Appellant argues that taxing authorities may not collect taxes incurred by a corporation after its charter is annulled and that J.B., Inc. was not liable for FICA and FUTA taxes with respect to the corporation’s operations in Period Two between January 26, 1978, the date when the corporation’s charter was annulled, and August 1,1978, when the receiver took over the corporation’s business operations. The mere fact that income is earned by a corporate entity after its charter has expired does not prevent such income from being taxed to that entity. See Messer v. Commissioner of Internal Revenue, 438 F.2d 774 (3d Cir. 1971). The fact that a corporate charter is annulled is of limited significance, since all employers are liable for FICA and FUTA taxes. While it is correct that the surviving directors and officers may be personally liable for the payment of these taxes, the mere annulment of the corporate charter does not immunize the corporation’s assets from responsibility for taxes due and owing. See IRC §§ 3111, 3301, 3306 (a) (1).

VIII.

Appellant complains that the trial court erred when it awarded the sum of $24,849.70 as penalties due on the restated amount calculated by the IRS as being due for Period Two. The receiver urges that even if the recalculation is accepted as being correct, no penalties should be allowed. He contends that where the IRS first asserts a penalty in a court proceeding, the penalty must be denied absent proof by the IRS of the taxpayer’s lack of reasonable cause to excuse the failure to file and pay the taxes due. Both the appellant and appellee cite Riddell v. Commissioner, T.C. Memo 1956-74, 15 T.C.M. (C.C.H.) 379 (1956), as authority for their respective positions. Appellee contends that it was the obligation of the taxpayer to file the various returns under section 6651 and section 6656 of the IRC and pay the taxes due. An examination of the record extract in this case discloses that neither the corporation nor the receiver filed the necessary returns for a number of quarters, nor were taxes due paid for several years. These facts in and of themselves are sufficient to raise the issue as to lack of reasonable cause and require the taxpayer or the receiver to offer some evidence to support the existence of reasonable cause to excuse the failure to file and/or to pay. No such proof was proffered. Under these circumstances, we find no error in the allowance of the penalties.

IX.

Finally, appellant raises the question of whether the IRS claim for unemployment taxes should have granted a credit for amounts payable to the Unemployment Fund of the Maryland Department of Human Resources as contemplated by IRC § 3302. In this instance, both the IRS and the Maryland agency have filed claims for unemployment taxes. All the federal claims were based on the gross rate of the federal tax rather than the effective net rate. When the receiver discovered this fact he requested the chancellor by letter to prevent an inadvertent disallowance of the state’s claim or a possible federal double recovery by ordering that any allowance to the IRS be computed on the net amount of federal unemployment taxes with penalties and interest. The receiver urges that IRC § 3302 (a) (3) explicitly allows a state credit of 90% even where the federal unemployment contributions have not been timely paid. The chancellor failed to so order. We hold this was error. Where, as in this case, it appears that the IRS will receive from the estate all the taxes, interest and penalties due it, we see no reason why the computation should not be predicated on the net amount due the federal government rather than the gross amount due under section 3302 of the IRC. We see no useful purpose in requiring the Maryland Department of Human Resources to file a refund petition which may well extend the ultimate conclusion of this matter for many more years.

As evidenced by this opinion, we shall affirm the chancellor in his conclusions except that we shall remand the case for an adjustment of the mathematical error of $1,000. In addition, the chancellor shall take whatever additional testimony is necessary to resolve the issue of the application of limitations in the claim in Part Two, and shall make the necessary adjustment in the amount of the IRS claim under section 3302 (a) (2) and (3). The IRS has been allowed substantial sums for interest and penalties and in fairness to other creditors we conclude that the costs of this complicated proceeding should be shared by the appellant and appellee.

Judgment affírmed in part, remanded for further proceedings as to the adjustments herein ordered; costs to be divided between the parties.

      . Indeed, this Court has repeatedly reserved the question whether the priority given the United States by R.S. § 3466 can be overcome even by a prior specific and perfected lien. United States v. Gilbert Associates, 345 U.S. 361, 365; Illinois v. Campbell, 329 U.S. 362, 370; United States v. Waddill Co., 323 U.S. 353, 355-356; United States v. Texas, 314 U.S. 480, 484-486; New York v. Maclay, 288 U.S. 290, 294; Spokane County v. United States, 279 U.S. 80, 95.

      . See also Crest Finance Co. v. United States, 368 U.S. 347.


author: Morton, J.,

text:
    WILMA JEAN CALDWELL v. STATE OF MARYLAND
    [No. 1297,
    September Term, 1981.]

      Decided June 2, 1982.

    The cause was argued before Morton and Wilner, JJ., and Stanley B. Frosh, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Michael E. Kaminkow, with whom were Wartzman, Hombro, Rudd & Omansky, P.A. on the brief, for appellant.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and David

      Bortz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Because it is supported by the record, we shall substantially adopt the appellant’s recitation of the factual posture in which this appeal reaches us from the Criminal Court of Baltimore.

"On June 11, 1981, pursuant to a plea agreement, Appellant entered a guilty plea to one count of theft and one count of conspiracy to violate the theft laws. In consideration of Appellant entering the guilty plea, the State would recommend at the time of sentencing, a sentence of not more than three years on each count, to run concurrently. Further, in the event the Court at the time of disposition determined that this was an appropriate case for probation and restitution, then Appellant agreed to enter guilty pleas to the remaining felony theft cases in order to provide a substantive factual basis to support an order of restitution in all cases. In the event the Court incarcerated the Appellant for any period of time up to three years, the State agreed to nol pros the remaining indictments and counts. The Court then qualified Appellant on the voluntariness of her plea, after which the Court found that the plea offered by Appellant was voluntarily, intelligently and knowingly made.

The State then presented to the Court the factual basis for the plea which can be briefly summarized. The State would have called co-defendant, Arnetta Vines, formerly an employee of Provident Hospital, who would have testified that upon the instructions of another co-defendant, Eddie Junior Smith, she prepared various documents from Provident Hospital, including bills for medical services, hospital reports, and clinic appointment slips, all of which were presented by Appellant to the Nationwide Insurance Company in a claim for damages allegedly resulting from injuries sustained in an automobile accident occurring on July 19, 1980. In addition to the medical documents presented to Nationwide Insurance Company, Appellant submitted a false and forged statement of lost wages incurred by Appellant as a result of her employment at the Baltimore Symphony Orchestra. There was no automobile accident, but in fact, a staged intentional collision of two automobiles for the purpose of defrauding the Nationwide Insurance Company. As a result of the fraudulent claim, Nationwide Insurance Company paid to Appellant $696.00. The State further produced, as part of its factual basis, the fact that Arnetta Vines prepared additional fraudulent hospital bills, records and clinic slips for Appellant, involving three additional phony accidents occurring on July 27,1980, August 18, 1980, and September 16, 1980. Fraudulent claims were filed with various insurance companies as a result of these alleged accidents, all of which were settled for various sums. One or more of the co-defendants and co-conspirators participated with the Appellant in perpetrating the conspiracy to violate the theft laws.

On July 29, 1981, Appellant came before the Court for sentencing, at which time counsel for Appellant moved for a mistrial based on alleged substantive ex parte communications between the Court and the prosecutor, prior to the sentencing proceeding, and subsequent to the taking of the guilty plea. After an exchange between the Court and counsel for Appellant, counsel called David Bortz, prosecutor to the witness stand to be sworn and testify at the penalty phase of the proceeding. The Court inquired as to the reason counsel was calling the prosecutor to the stand at which time counsel advised the Court that he wanted the prosecutor to state, under oath, whether or not he had ex parte discussions with the Court as to sentencing matters regarding Appellant or her co-conspirator and paramour, Brent Dillard, who had been previously sentenced to four years incarceration. The Court then stated as follows:

THE COURT:
T talked to Mr. Bortz about the scenario of all these cases. I have gone over the probation report, the same as I have gone over with other state’s attorneys, because there are certain things in the probation report that I don’t understand and certain things are wrong. I got a probation report this morning with the wrong person.’

After a short colloquy, the Court went on as follows:

THE COURT:
'What is the purpose of Mr. Bortz’ relation to your case, the Caldwell [appellant’s] case? Mr. Bortz was not talking to me about the Caldwell case, I called him as a result of another case which is in for disposition this morning.’
MR. KAMINKOW [Counsel for Defendant]:
'A co-defendant in this case.’
THE COURT:
'That is correct.’

The prosecutor, David Bortz, was then sworn as a witness. When asked whether he visited Judge Dorf and had ex parte communications with him, he acknowledged that he visited the Court once regarding Brent Dillard, a co-defendant and co-conspirator, but didn’t recall when that visit occurred. The Court then interrupted the witness’ testimony to answer the question propounded to the witness and stated:

THE COURT:
T could refresh his recollection, it was after the Motion for Reduction of Sentence was filed. I don’t know what date it was when I asked him to come over.’
MR. KAMINKOW:
'Your Honor, with all due respect, I have him under oath, how can you comment on what he is testifying to.’
THE COURT:
T will ask him to step down.’
MR. BORTZ:
'Thank you, Your Honor.’
MR. KAMINKOW:
T move for a mistrial.’
THE COURT:
'Let him finish. I will ask you a question also. Let him finish.’ .. .
BY MR. KAMINKOW:
Q. 'What was the purpose of the visit?’
A. T was summoned to speak with Judge Dorf, the meeting did not occur at any negotiation.’
Q. 'You are saying the Court summoned you?’
A. 'Yes.’
Q. 'What was the nature of the conversation?’
A. 'The Judge asked me what my view was with regard to Dillard and the sentence that he received.’
Q. 'And what was your response?’
A. T indicated to the J udge that the State’s position was that the full four years should be served and that was what I recommended in the sentencing and I continued to argue. I did file a response, I believe, to the Motion to Reduce Sentence. ...’
Q. 'And that was the only occasion that you went to see Judge Dorf ex parte to discuss any of the defendants in this series of cases?’
A. 'When I arrived at the Judge’s office this morning, I picked up the pre-sentence reports. I walked in there with you this morning and I had not seen either report and not spoken to the Judge on the matter, shortly after I arrived, the Judge asked me to come into his office for a moment, indicating they had some problems, incarceration problems on Arnetta Vines.’

After further argument by counsel, and a plea by Appellant, the Court sentenced Appellant and made in part the following remarks:

'We have here over 12 defendants with a very, very complicated scenario of events. All you have to do is to take a look at the chart on the blackboard to see the complication of the entire scheme. There were large sums of money involved and many, many insurance companies and it involved many, many individuals, and which involved numerous individuals over a long period of time. There is no way that you can separate the offenses here. The offenses are a part of a conspiracy type of offense and you must take the offense and try to assess the culpability of the defendant’s past in the scenario of events, and based on the events and background of the people and criminal records, and so forth, and assess what are the proper sentences.’ ”

It is in light of this factual background that the appellant raises the following issue:

"Where the State proposes a sentencing pattern structured on each defendant’s culpability in the overall scheme or conspiracy and the prosecutor and judge engage in ex parte communications regarding sentencing matters as to one or more of the co-defendants and co-conspirators, the appellant is so prejudiced and the sentencing proceeding so tainted as to require a remand for resentencing before another judge.”

Maryland Rule 1231, paragraph XVI, entitled "Ex Parte Communications,” provides, in part:

"A judge should not permit private interviews, arguments, or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.
... Ordinarily all communications of lawyers to the judge intended or calculated to influence action should be made known to opposing counsel.”

Here we have the trial judge and the prosecuting attorney acknowledging that they conferred, in the absence of defense counsel, in order to discuss the sentence to be imposed on two of the appellant’s co-defendants. It is true that the trial judge specifically disavowed that he and the prosecutor had talked about the appellant’s case. On the other hand, the trial judge had previously asserted that he and the prosecutor had "talked . .. about the scenario of all these cases.” Moreover, the trial judge stated: "We have here over 12 defendants with a very, very complicated scenario of events. All you have to do is to take a look at the chart on the blackboard to see the complication of the entire scheme.”

Appellant contends that "[t]he State’s proposed sentencing pattern linked all the Defendants, including the Appellant, in a pyramid sentencing structure placing the most culpable Defendants at the top and least culpable at the bottom.” While we are not prepared to say that the record supports this -flat assertion, it is self-evident that the interrelationship of the various defendants’ culpability would heavily influence the trial judge in determining the sentence to be imposed upon each of the many co-defendants.

It is true the trial judge recognized that "you must take the offense and try to assess the culpability of the defendant’s past in the scenario of events, and based on the events and background of the people and criminal records, and so forth, and assess what are the proper sentences.” The fact remains, however, that he did discuss with the prosecuting officer "the scenario of all the cases.” While the judge’s ex parte conference with the prosecuting attorney may have come about in all innocence and good faith, we cannot say with certitude that their discussion resulted in no impact upon the judgment of the trial judge in imposing sentence upon the appellant.

We are fortified in this conclusion in view of the result reached by the Court of Appeals in Scott v. State, 289 Md. 647 (1981), where it was made clear, although under a different factual setting, that the sentence of an accused which may have been influenced by a recommendation given to the sentencing judge by a representative of the Supreme Bench Medical Office, unknown to defense counsel at the time, must be vacated and a resentencing procedure conducted.

Accordingly, we shall vacate the sentences imposed upon appellant and remand the case for sentencing by a judge other than the original sentencing judge.

Judgments affirmed except as to the sentencing; sentences vacated and case remanded for sentencing; appellant to pay one-half the costs of this appeal; one-half the costs to be paid by the Mayor and City Council of Baltimore: