text:
    MURRAY I. RESNICK v. SOLOMON KAPLAN et al., etc.
    [No. 873,
    September Term, 1980.]

      Decided September 2, 1981.

      The cause was argued before Morton, Moylan and Moore, JJ.

      Benjamin Lipsitz for appellant.

      Edmund P. Dandridge, Jr., with whom were George C. Doub, Jr., and Venable, Baetjer & Howard on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

This appeal represents only a part of the extensive litigation between former law partners which was spawned by the dissolution of their law firm in October, 1972. The action below was for an accounting by the appellees — the four partners ("the Kaplan group”) who continued in practice together — against the appellant ("Resnick”), their erstwhile partner who left and opened his own office. The Circuit Court for Baltimore City (Karwacki, J.) granted the Kaplan group’s motion for partial summary judgment, entering judgment for them in the amount of $207,871.94. Partial summary judgment was also entered in favor of Resnick for $29,861.56. All other matters were ordered to be the subject of further proceedings. The court made a determination pursuant to Maryland Rule 605 that there was no just reason for delay and that the partial summary judgments were immediately appealable.

The primary dispute thus resolved by the lower court was the method of allocation of fees received by the parties after dissolution; and it was decided that the allocation should be made on the basis of their respective percentage interests in the partnership, not on the basis of the time spent on individual cases after dissolution. Resnick contends that summary judgment was improper. We affirm.

I

Early on, the parties worked together as employees of Sol C. Berenholtz, Esq. in the practice of law in Baltimore. (Resnick is a son-in-law of Berenholtz.) By a written agreement dated December 31, 1968, Kaplan, Heyman, Engelman, and Resnick became his partners. The new firm, in its partnership document, agreed to employ Herbert J. Belgrad ("Belgrad”) and Berenholtz’s son, Carl, as associates; and provision was also made for Belgrad and Carl to be admitted later as partners. They did become partners on January 1, 1972, but Carl’s partnership was short-lived; he soon left and a settlement was made with him. Sol Berenholtz ceased to be a partner on December 31, 1971, pursuant to the terms of the agreement. The partnership was dissolved on or about October 18, 1972. The distribution of profits and losses provided for in the partnership agreement at the time of dissolution was as follows:

Kaplan 22 1/2%

Hayman 22 1/2%

Engelman 18 1/2%

Resnick 18 1/2%

Belgrad 10%

Carl 8%

The parting between the Kaplan group (Kaplan, Heyman, Engelman, and Belgrad) and Resnick was not "sweet sorrow.” Appellees contend that Resnick breached his fiduciary duties to his partners, before and after the termination of the partnership, in many respects. Similar counter-charges are made by Resnick who also accuses his former colleagues of "wrongfully firing Carl Berenholtz and wrongfully firing me.”

At all events, it is undisputed that after October 18,1972, Resnick continued to represent clients of the former firm in connection with approximately 150 cases for which he had been responsible prior to October 18, 1972. These consisted primarily of maritime and other personal injury claims of clients who had retained the firm on a contingent fee basis. Following dissolution, Resnick secured from many of those clients written statements that they desired him, and not someone else in the firm, to complete their cases. He settled a large percentage of these matters and received legal fees in the sum of $385,160.

The Kaplan group also, of course, represented other clients of the firm in connection with matters — approximately 600 — in which the firm had been engaged prior to October 18, 1972. For legal services rendered in these cases, both before and after dissolution, Kaplan et al. collected fees of $842,962.00. The combined total of the fees collected by both sides is $1,228,122.00. No part of the sum collected by the Kaplan group has been paid to Resnick, nor has he paid to the group any part of the sum collected by him.

In a separate category, held in an escrow account, are fees paid to the firm in the settlement of so-called "African Star” cases — seamen’s death cases in which the partnership had been retained several years prior to dissolution. Resnick also participated in these cases, securing execution of releases and local court approval of settlements negotiated by Philadelphia counsel. Fees aggregating $94,364.00 in these contingent fee cases were deposited in an interest-bearing escrow account, and the balance at the time of the order appealed from was $149,500. In awarding partial summary judgment, the court allocated $119,890.94 of the escrow funds to Kaplan et al. and $28,861.56 to Resnick, and ordered that the latter’s claimed additional one-half per cent interest (of $149,500 or $747.50) "be maintained by the parties in a joint escrow account, pending further proceedings herein.”

Thus, the trial court held that distribution of the fees collected should be made among the partners in the same percentages applicable under the agreement in determining their respective distributive share in the partnership earnings. Appellant vigorously challenged below, as he does here, the rule adopted by the court.

Resnick not only disagreed with the rule, but he also claimed that appellees were estopped to assert it. The Kaplan group, he argues, continually represented in its dealings with him from the time of dissolution in October, 1972 until the filing of its summary judgment motion in November, 1979 — more than seven years later — that "fees from clients of the former partnership were to be allocated on the basis of work done, respectively, by him and his former partners before and after October 18, 1972.”

Furthermore, he asserts that the case is replete with genuine issues of material fact, such as to preclude summary judgment. Those disputes, according to appellant, included:

1. The date of dissolution;

2. The wrongfulness vel non of the conduct causing the dissolution and the designation of the responsible party;

3. Whether Kaplan et al. withheld the billing of $300,000 to $400,000 to deprive Resnick of his share;

4. The existence and appropriate valuation of former partnership assets;

5. The value of Resnick’s capital account;

6. Whether he was wrongfully ousted from the firm and the effect thereof;

7. Whether the preconceived scheme and design of the Kaplan group in the formation of the partnership was to acquire the practice of Sol Berenholtz for themselves and to displace Resnick and Carl Berenholtz;

8. Whether clients of the former firm discharged the Kaplan group and engaged Resnick;

9. Whether either of the parties violated the terms of the partnership agreement and the effect thereof;

10. Whether the Kaplan group by its course of dealing from 1972 to 1979 "is bound by the basis for allocation of fees which it advanced continually during that period and on which Resnick relied in performing the work for former clients ... viz. that fees representing work done prior to dissolution were to be shared according to the partnership percentages . . . while fees for work done after dissolution were to be allocated to the party doing the work....”

II

The partnership agreement in this case does not provide for the rights of the parties upon dissolution. It recites that the partnership "shall commence on January 1, 1969, and continue from year to year thereafter until it is dissolved in accordance with the terms hereof.” Then, it simply states:

"To the extent that dissolution is not covered by the terms of this Agreement, it shall be in accordance with the laws of the State of Maryland.”

The Uniform Partnership Act, Md. Code, Corp. & Ass’ns. Art., § 9-101 (e), defines dissolution as

"the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” (Emphasis added.)

The statute also provides that the partnership is not terminated on dissolution "but continues until the winding up of partnership affairs is completed.” (§ 9-601). (Emphasis added.)

Causes of dissolution are spelled out in § 9-602 and include those without violation of the agreement (§ 9-602 (1) (i) -(iv)) and those in contravention of it. (§ 9-602 (2)). Without violation of the agreement, dissolution is caused (i) by the termination of the prescribed term or undertaking, (ii) by the express will of any partner when no definite term or undertaking is specified, (iii) by the express will of all the partners who have not assigned their interests or permitted them to be charged for their separate debts, either before or after the termination of any specified term or undertaking, and (iv) by the expulsion of any partner from the business, "bona fide in accordance with such a power conferred by the agreement....”

In contravention of the agreement, dissolution may occur "where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time.” (§ 9-602 (2)). (Emphasis added.)

The rights of partners as to application of partnership property upon dissolution are governed by § 9-609 of the Act which also follows the dichotomy of dissolution in contravention of the partnership agreement and dissolution which is not. Where it is not in contravention of the agreement, each partner may have the partnership property applied to discharge its liabilities and the surplus applied to pay in cash the net amount owing each partner. On the other hand, when dissolution is caused in contravention of the agreement, each partner who has not caused dissolution wrongfully is entitled not only to his net share of the surplus after liabilities, but also to damages for breach of the agreement against each partner who has caused the dissolution wrongfully. (§ 9-609 (b) (1) (ii)). At the same time, a partner who caused the dissolution wrongfully is entitled to be paid in cash the net amount owing to the respective partners subject, of course, to his liability for damages for breach of contract. See Laddon v. Whittlesey, 44 Md. App. 19, 408 A.2d 93 (1979).

In the instant appeal, therefore, after the dissolution of the partnership in October, 1972, it was not terminated but continued until the winding up of its affairs was complete; and whether the dissolution was in accordance with the partnership agreement or in contravention of it, and whether one side or the other caused the dissolution wrongfully, was not relevant or material to the rights of both sides to an accounting.

Resnick participated in the winding up of the partnership affairs pertaining to the 150 cases upon which he worked. Kaplan et al. handled the remaining cases of the firm. These were contractual, professional obligations and it was the duty of the respective partners to see to their completion. See Geo. Bert Cropper, Inc. v. Wisterco Investments, Inc., 284 Md. 601, 399 A.2d 585 (1979). In the performance of these contracts, the fiduciary character of their relationship as partners continued. Code, § 9-404; Herring v. Offutt, 266 Md. 593, 295 A.2d 876 (1972).

The Uniform Act conferred no right upon either side to compensation for services rendered in this winding up process, cf. § 9-401 (6) and, in the absence of any provision in the partnership document, it was correctly held that the aggregate of the fees collected should be allocated according to the percentages specified in the agreement for the distribution of profits and losses.

Directly on point is the case of Frates v. Nichols, 167 So.2d 77 (Fla.3d DCA 1964). Following the dissolution of a law firm, one of the partners, Frates, took with him ten negligence cases of the old firm, having secured retainer agreements from the clients. The completion of the work on these cases resulted in the payment of contingent fees in excess of $200,000. Frates contended that upon dissolution the firm’s retainer agreements expired and that, on the basis of the new retainers which he had obtained, he was entitled to retain all the fees except a quantum meruit payment to the old firm for services rendered prior to the dissolution. The court rejected this contention, concluding that these fees in their entirety were assets of the firm and that Frates was entitled to receive only his partnership interest therein. In reaching this conclusion, the court stated:

"Although never having been passed on by a Florida court, the proposition is universally accepted that a law partner in dissolution owes a duty to his old firm to wind up the old firm’s pending business, and that he is not entitled to any extra compensation therefor.
"The dissolution date of February 28, 1961 did not put an immediate end to the partnership, it continued for the purpose of winding up its affairs, and inasmuch as Frates had a duty to wind up the affairs of the partnership, his signing of a retainer agreement with an already existing client was without consideration and void.
* * *
"We adopt the rule recognized by our sister states that the retention of a law firm obligates every member thereof to fulfilling that contract, and that upon a dissolution any of the partners is obligated to complete that obligation without extra compensation.” (Footnotes omitted.) (Emphasis added.)

Id. at 80-81. See also Welsh v. Carroll, 378 So.2d 1255 (Fla.3d DCA 1979); Kreutzer v. Wallace, 342 So.2d 981 (Fla.3d DCA 1977).

A similar result was reached in Platt v. Henderson, 361 P.2d 73 (Or. 1961), a case involving the dissolution of a two-member law firm. There, the defendant took with him approximately forty cases constituting the major pending business of the firm and did so without the plaintiff’s knowledge or consent. None of the clients objected to the fact that the defendant had removed their files to his new office because of the dissolution of the old partnership. The court concluded nonetheless that the cases were received in winding up the business of the old partnership and that the partnership agreement with respect to the allocation of profit and loss was applicable. "[T]he defendant is not entitled to special compensation for any part of the services which he performed in the wind up.” Id. at 85.

Appellant in this case seizes upon language of the court in Platt (361 P.2d at p.85), which recognized that a client has the right to elect the attorney he prefers, "and that a member of a firm cannot force himself upon a client of the firm merely because he is a member of that partnership.” The proposition asserted by the court is sound; but it does not mean, as appellant contends, that the fees thereafter earned by the partner chosen by the client are not subject to division in accordance with the partnership agreement. Nor does it mean that the fiduciary duty imposed upon partners to render a faithful accounting to the partnership for fees earned is diminished in the slightest.

Finally, we reject the notion, suggested by appellant, that different rules are to be applied to the winding up of professional partnerships as distinguished from "business” partnerships. The definition of "business” in the Act as including "profession,” § 9-101 (c), negates the possibility of any such distinction.

Ill

The court below rejected — correctly, we think — what it referred to as the "estoppel argument.” Briefly, the circumstances giving rise to the argument were these: each side of this controversy was represented by independent counsel prior to dissolution in October, 1972, or immediately thereafter. On November 28,1972, counsel for the appellees, Benjamin R. Civiletti, Esq., addressed a letter to Benjamin Lipsitz, Esq., counsel for the appellant, in reply to one received from the latter on November 20, 1972.

In the course of his five-page communication, Mr. Civiletti stated, "... I believe it may be helpful to set out as clearly as I can our clients’ positions with regard to the law,” and he undertook to outline Mr. Resnick’s rights and corresponding duties. His rights, with respect to clients of the firm, were defined as follows:

"He has a right to obtain the file of any client who has decided to terminate the firm’s representation and to engage him to represent him provided (a) he agrees either to pay or to allow the firm to credit against amounts owed to him prior advances or disbursements on behalf of such client and (b) he agrees to pay the firm that portion of fees earned by the firm prior to October 18, 1972 out of any fees collected after October 18,1972, the allocation to be on a time basis. Such fees should be escrowed until the allocation is agreed upon.” (Emphasis added.)

In the ensuing years, particularly during discovery proceedings after suit was filed in 1975, extensive data was obtained with respect to Resnick’s 150 case files and the files of the Kaplan group, disclosing fees earned and time spent both before and after dissolution. Appellant argued below and in his principal brief on appeal, that

"Resnick’s affidavits patently present facts from which one could reasonably conclude that the Kaplan group caused and permitted him to proceed with post-dissolution work on the premise that his efforts would be compensated in proportion to time spent and work done. Resnick might otherwise have deferred to the Kaplan group to do the work, since he could.just as well have devoted himself to his own affairs, since he would receive his percentage partnership interest anyhow, according to the Kaplan group’s approach.”

Rejecting the theory of estoppel, the trial court ruled:

"I see no merit to the estoppel argument. I think that the representations in the various pieces of correspondence between counsel as well as between the parties with regard to expressions of what the controlling law was are just that, expressions of opinion, and for the reasons already argued I don’t believe that estoppel applies to positions taken on expressions of legal principles. The other important thing I believe which makes the estoppel argument ineffective here is the fact all of these assertions were made as a continuing effort to settle these cases, so there was a certain amount of give and take on both sides, . . . .”

An extensive discussion of the law of estoppel is contained in the opinion of Chief Judge Bruñe in Bayshore Industries, Inc. v. Ziats, 232 Md. 167, 192 A.2d 487 (1963), where the Court noted at 175, that it had "repeatedly approved” Pomeroy’s definition of equitable estoppel, 3 Pomeroy’s Equity Jurisprudence (5th ed.), § 804, p.189:

"Equitable estoppel is the effect of the voluntary conduct of a party whereby he is 'absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon which conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.”

See also Zimmerman v. Summers, 24 Md. App. 100, 330 A.2d 722 (1975).

Clearly, the conduct and circumstances here were not such as to give rise to an estoppel. It is indubitably correct to say that the litigating lawyers and their respective counsel were all initially, and for a long time, laboring under a mutual mistake of law, albeit the pertinent facts were known by both sides. An estoppel does not arise in this context.

"Where the knowledge of both parties is equal, an estoppel will not be held to have arisen, ... and where the parties labor under a mutual mistake of law resulting in acts by one, such acts do not create an estoppel as a matter of law nor does misconstruction of the legal effect of all relevant facts known to both sides.”

Mayor and City Council of Baltimore v. Chesapeake Marine Railway Co., 233 Md. 559, 581-582, 197 A.2d 821, 832-33 (1964).

As the Second Circuit put it in Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407 (1917), an expression of opinion (as in Mr. Civiletti’s letter of November 28, 1972) "does not make the law other than it is. . . . [The defendants] took the risk of acting on that opinion if it were erroneous.” Id. at 409. In that case, the plaintiff had written defendants a letter in which it was stated, in part, that plaintiff presumed that usage of a trademark would be legal. The court held that plaintiff was not estopped from changing its position and "relying on the law as it really is.”

In the instant case, it must be borne in mind that appellant was an experienced lawyer, represented by an experienced lawyer. He had equal access to the law books. He began very early to contact the clients in the 150 cases and procured numerous requests that he see their matters to completion, prior to receipt by his counsel of any communication from counsel for the Kaplan group. Thus, appellant himself presumed at the outset that the percentage distribution in the partnership agreement would have no application to his post-dissolution work on the law firm’s cases. However, the partnership agreement, the contract between the parties, did not so provide. Neither, as we have held, did the law of the State of Maryland. In taking cases to completion upon the dissolution of the firm, he was carrying out a responsibility that was his — legally and ethically — without entitlement to special remuneration.

IV

The cases are legion for the proposition that summary judgment is not a substitute for a trial but a hearing to decide whether a trial is necessary. The rule permitting it, Maryland Rule 610, limits its application to situations where there is no genuine dispute as to any material fact and judgment should be entered as a matter of law. The remedy is available "as to all or any part of the claim.” (Rule 610 (a) (1); emphasis added).

In granting partial summary judgments in this case, Judge Karwacki expressly recognized that there were claims for wrongful expulsion and other issues involved between the parties. "There is other pending litigation,” the court stated, "in the Courts of the Supreme Bench of Baltimore City which will give a forum for these complaints to be aired.”

We observe that, in addition to wrongful expulsion, appellant’s affidavits in this case assert claims for breach of contract, breach of fiduciary duty and tortious conduct. No counterclaim was filed in this case, and appellant’s grievances are being pursued in Resnick v. Kaplan, et al. in the Baltimore City Court and the Circuit Court for Baltimore City. See note 1, supra.

A narrow issue was decided in the proceedings from which this appeal arises — the entitlement vel non of the appellees to partial judgments on a legal theory of fee allocation which they advanced and which the court adopted. The amounts awarded — to each side — were undisputed. Any matters in dispute, including the appellant’s claim to a miniscule half of one per cent increase in his partnership share, were expressly reserved for further proceedings; and the figures were computed as if his assertions were correct. Kaplan et al. requested the court to render partial summary judgment only with respect to claims as to which there was no material factual dispute. The court followed that course.

We deem it appropriate to note that the award of partial summary judgments avoided a protracted trial, involving some 750 case files, with testimony ad nauseam concerning the amount of work performed on each file before and after October 18, 1972, and the dollar value of that work. A decision at that point that the Kaplan group’s theory of distribution applied would only have lent support to Dickens’ oft-quoted characterization of the law.

We reject appellant’s contention that there were genuine disputes as to material facts.

V

We also find without merit appellant’s contention that the court below erroneously denied his motion raising preliminary objection based on the pendency of an action at law between the same parties. The essential requirement that the "whole effect of the second suit should be obtainable in the first” does not exist in the case. 3 Poe’s Pleading and Practice (6th ed.), § 75F; see Coppage v. Orlove, 262 Md. 665, 278 A.2d 587 (1971).

Order modified by reduction of judgment for Kaplan et al. from $207,871.94 to $200,728.04 and as modified, affirmed; costs to be paid by appellant.

      . Four other related cases are pending: Kaplan, et al. v. Resnick in the Superior Court of Baltimore City, Docket 1975, Folio 1289, File No. 6741 in which the appellees seek compensatory and punitive damages for breach of the partnership agreement, breach of fiduciary duty, interference with contracts, and conversion; Kaplan, et al. v. Resnick in the Superior Court of Baltimore City Docket 1975, Folio 200, File No. 4150 in which the appellees seek recovery of contingent legal fees; Resnick v. Kaplan, et al. in the Baltimore City Court, Docket 110, Folio 661, File No. 21 in which appellant seeks damages for breach of contract by causing Resnick to be removed from the partnership and interfering with Resnick’s relationship with his clients; and Resnick v. Kaplan, et al. in the Circuit Court for Baltimore City, Docket 1975, Folio A-597, File No. 55242 seeking an accounting.

      . Appellees’ brief discloses that, because of an error in the calculation of the dollar amount of an additional one-half per cent partnership interest claimed by appellant, the judgment in their favor should be reduced to $200,728.04.

      . Appellant Resnick had not filed a cross-motion for summary judgment. The lower court’s action was in accordance with Maryland Rule 610 d.l.

      . The facts stated herein are gleaned from the supporting and opposing affidavits filed in connection with the motion for summary judgment and the numerous exhibits appended thereto.

      . Resnick does not contest the fact of dissolution but contends the correct date was October 23, 1972.

      . The partnership agreement was not formally amended, when Carl withdrew, to provide for the allocation of his share. The Kaplan group maintains that there was an oral agreement that the 8% share of Carl Berenholtz would be divided in half, 4% going to Belgrad and 4% proportionately to the other four partners. Resnick’s percentage, according to Kaplan, et al. became 19.4024%. Resnick avers that such an allocation was discussed but no agreement was ever reached and that Carl’s share was therefore to be divided in the same proportion as the interests of the partners. On this basis, Resnick’s share would be 19.9024%, or a difference of one-half of one per cent. The partial summary judgments do not, of course, resolve this dispute but relegate it to further proceedings, the court below having adopted a suggestion of the appellees that the amount allegedly due them be recomputed according to the percentage claimed by Resnick, and that an omission from the partnership capital account of six asset items, as contended by Resnick, also be set aside for later decision. This served to reduce the amount due by Resnick and to leave in his hands for later decision a sum exceeding $40,000.

      . To this, appellees rejoin that a settlement with Carl, in which Resnick himself participated, was made by the firm early in 1972.

      . A similar provision was made in the Order with respect to any funds in the escrow account at the time of distribution in excess of $149,500.

      . Assets of the firm distributable among the partners would include (a) the capital account of each partner and (b) each partner’s undistributed share of the partnership earnings from January 1,1972 to October 18,1972, the date of dissolution. According to the Kaplan group, the figures for Resnick were (a) $12,273.39 and (b) $23,302.90. These figures are disputed by Resnick and are among the matters reserved for later determination.

      . Appellees’ Bill of Complaint for an accounting was not filed until October 17,1975. Appellant filed a motion raising preliminary objection on November 18, 1975 but no answer was filed until May 2, 1977.

      . Paragraph 12 of the partnership agreement in this case provides that "expulsion may be only made by unanimous vote of all the partners, other than the partner affected.”

      . Other categories of causes of dissolution are specified in § 9-602 (3) — 9-602 (6). They are: any event which makes it unlawful for the business of the partnership to be carried on (§ 9-602 (3)), the death of any partner (§ 9-602 (4)), the bankruptcy of any partner or the partnership (§ 9-602 (5)), and decree of court on application by or for a partner under § 9-603 (§ 9-602 (6)).

      . In an earlier letter dated November 14,1972, Mr. Civiletti forwarded to Mr. Lipsitz an agreement regarding the release of client files which had been discussed in a telephone conversation on November 13, 1972. Mr. Civiletti explained that under the proposed agreement "Murray [Resnick] agrees to be responsible for fees due for work done prior to the transfer of the file to Murray and specifies where he thereafter does legal work and therefore the fees would have to be split, the basis for the split would be the amount of work done by each party respectively.” (Emphasis added.)

      . In a reply brief, Resnick asserts that "[b]y its actions over a period of years, the Kaplan group consented, or agreed, at least by clear implication, to division of fees on 'pre’ and 'post’ dissolution and time and work basis.” He thus appears to argue, for the first time, the existence of an agreement with respect to allocation of fees. This comes too late. Maryland Rule 1085. At all events the argument is passing strange in a situation where disagreement is rampant, extending even to the date when dissolution occurred.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    CHARLES EDWARD SIMMS v. STATE OF MARYLAND
    [No. 1055,
    September Term, 1980.]

      Decided September 2, 1981.

    The cause was submitted on briefs to Moore, Mason and Wilner, JJ.
    Submitted by William A. Beale, Assigned Public Defender, for appellant.
    Submitted by Richard B. Rosenblatt, Assistant Attorney General, Stephen H. Sachs, Attorney General, and Richard D. Warren, State’s Attorney for Wicomico County, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to determine whether the lower court abused its discretion in not granting appellant’s request for removal of his case on the basis of prejudicial pretrial publicity.

The record discloses that on 6 May 1980 appellant shot and killed his estranged wife, Darlene Simms, when she returned to pick up some personal items from the trailer where appellant was living. On 11 June 1980 appellant filed a suggestion for removal on the basis of prejudicial pretrial publicity, and a hearing was held on this issue on 30 June 1980 in the Circuit Court for Wicomico County (Pollitt, J.). At this hearing a reporter for The (Salisbury) Daily Times and the news director of WBOC, the local television and radio station, testified regarding the coverage the crime had received in their respective media. The evidence adduced disclosed that during the period between 7 May 1980 and 12 June 1980 six articles, including an editorial and a letter to the editor, were published in The (Salisbury) Daily Times. For a similar period, 7 May 1980 to 11 June 1980, there was also radio and television coverage of this offense. All the relevant newspaper articles and television and radio transcripts were submitted into evidence for the hearing judge’s review. In addition, there was testimony that several articles had appeared in the Baltimore Sun. Although a factual account of the crime was given in some of the articles, most of the coverage focused on collateral issues — to wit: the "police escort law”,* 2whether the deceased had requested and was denied police protection, and the Governor’s investigation of this matter.

The hearing judge denying the motion for removal stated:

At this point I am not able to say that the publicity in and of itself is so prejudicial as to require the removal of this case. Some of it I do not like, but I am not prepared to say that it is that prejudicial.
Subject to inquiry of the jurors on their voir dire, we will deny the motion for removal at this time.

At the commencement of the trial on 11 August 1980, all of the prospective jurors, except two, admitted that they had read, seen, or heard some form of pretrial publicity concerning the case. After excusing several prospective jurors who knew the victim or her family, the remaining jurors were questioned individually by the trial judge in his chamber with appellant present. Although all of the prospective jurors, with the exception of two, admitted seeing or hearing media coverage of the crime, only one such juror advised the judge that she would be unable to judge the case solely on the evidence as presented from the witness stand. In sum, of the twelve jurors ultimately selected, ten of them admitted they had been exposed to publicity regarding the case from either the newspaper, radio, television, or by word of mouth, but all stated the publicity would not prevent them from giving appellant a fair trial. After completion of the voir dire examination, the following colloquy occurred:

MR. ROGAN [appellant’s trial counsel]: We have no exception to the voir dire.

We have previously filed a Suggestion For Removal, and since approximately a hundred percent of the panel has heard something about it, we would again ask the Court to remove the case, Your Honor.

THE COURT: All right, sir.

The motion is denied. We think we have evinced on their voir dire an impartiality.

Thereafter, appellant was convicted by the jury in the Circuit Court for Wicomico County (Truitt, J.) of first degree murder and sentenced to a term of life imprisonment.

Appellant argues, in essence, that the pretrial publicity, when considered in its totality, was sufficient to establish prejudice and Judge Pollitt should have exercised his discretion in favor of granting the suggestion of removal. He argues further that inasmuch as he "was forced to seat” a jury in which most of the members, plus the alternate, had been exposed to some sort of pretrial publicity, Judge Truitt abused his discretion in not granting his request for a change of venue. We do not agree.

The question of whether a non-capital case should be removed to another jurisdiction is one which rests within the discretion of the trial court. Shreffler v. Morris, 262 Md. 161, 277 A. 2d 62 (1971); Waine v. State, 37 Md. App. 222, 377 A. 2d 509 (1977); See also Md. Const. art. IV § 8; Maryland Rule 744. The exercise of that discretion, however, is reviewable on appeal. Seidman v. State, 230 Md. 305 (1962), 187 A. 2d 109, cert. denied, 374 U.S. 807 (1962); Gordon v. State, 14 Md. App. 245, 286 A. 2d 833 (1972). Moreover, the party seeking removal has the burden of showing that "he has been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial.” Waine v. State, supra, at 227. It is not to be presumed, however, that an unbiased jury cannot be had. Veney v. State, 251 Md. 182, 246 A. 2d 568 (1968), cert. denied, 394 U.S. 948 (1969). Only where the pretrial publicity in and of itself is so passive and widespread that it is clearly prejudicial, or where the publicity is so inherently prejudicial that it "saturated the community” is the remedial step of voir dire meaningless. Sheppard v. Maxwell, 364 U.S. 333, 363 (1960); Waine v. State, supra at 228. See also Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961).

A party moving for a change of venue carries a heavy burden of satisfying the court that there is so great a prejudice against him that he cannot obtain a fair and impartial trial. Generally, in order to meet this burden, the defendant must show in non-capital cases "(1) that the newspaper article [or pretrial publicity] is prejudicial, (2) that a juror has read the prejudicial newspaper article [or otherwise been exposed to the prejudicial publicity], and (3) that the juror’s decision at the trial was influenced by that newspaper article [or pretrial publicity].” Presley v. State, 224 Md. 550, 555, 168 A. 2d 510 (1961), cert. denied, 368 U.S. 957 (1961); Waine v. State, supra, at 227.

Voir dire examination is usually a sufficient mechanism to insure that a defendant obtains a fair and impartial trial despite the pretrial publicity. United States v. Jones, 542 F. 2d 186 (4th Cir. 1976), cert. denied, 426 U.S. 922 (1977). This may be satisfied if each venireman empaneled indicates that he has not formed an opinion of defendant’s guilt or innocence as a result of the pretrial publicity or that the pretrial publicity would not "in any way derogate from his ability to give the defendant a fair and impartial trial,” as was done in the instant case. See Veney v. State, supra, at 1145; Seidman v. State, supra, at 324; Waine v. State, supra, at 225; Mason v. State, 12 Md. App. 655, 679, 280 A.2d 753 (1971). In Dobbert v. Florida, 432 U.S. 282 (1977) the United States Supreme Court stated that extensive knowledge in the community of either the crime or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. See Veney v. State, supra, at 196 where the Court of Appeals remarked:

We believe, however, that in the relatively small community from which the jury was drawn and in which one of the trial judges lived, the trial court was entitled to consider, as it did, the judge’s knowledge of local conduct, thoughts, reactions and publicity in deciding whether an unbiased jury could be drawn.

After reviewing the newspaper clippings and the radio and television transcripts submitted by appellant at the hearing before Judge Pollitt, we conclude that the pretrial publicity in this case was not so inherently prejudicial as to require a change of venue prior to voir dire examination of potential jurors. Furthermore, even though most of the jurors had been exposed to some pretrial publicity, prospective jurors are not required to be totally ignorant of the issues and circumstances surrounding the case. In this regard see Irvin v. Dowd, supra, where the Supreme Court stated:

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

366 U.S. at 722-723. Of similar import, see also Calley v. Callaway, 519 F. 2d 184 (5th Cir. 1975) where the Court noted:

The district court’s conclusion that mere exposure to publicity necessarily prevented any person from serving as a juror has an extremely unsettling sidelight. If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system of justice.

Id. at 210. In United States v. Mandel, 415 F. Supp. 1033, 1073 (D. Md. 1976), the Court observed:

It is not all publicity that causes prejudice to a defendant, but only that publicity that operates to deprive defendant of a fair trial. Such publicity is the type that proclaims the defendant’s guilt in advance of trial and prejudices the minds of the public against the defendant to such an extent that most people are unable to weigh the evidence objectively.

This was not the case here. Accordingly, we conclude that the jurors’ knowledge of the pretrial publicity surrounding this case did not deprive appellant of a fair and impartial trial. Thus, there was neither error nor an abuse of discretion in denying appellant’s motion for removal.

Judgment affirmed.

Costs to be paid by appellant.

      . MD. ANN. CODE, art. 27, § 11F (Supp. 1980) provides:
      (a) Assistance to victim. — Any person who alleges to have been a victim of spousal assault and who believes there is a danger of serious and immediate injury to himself or herself may request the assistance of a local law enforcement agency. A local law enforcement officer responding to the request for assistance shall:
      (1) Protect the complainant from harm when responding to the request; and
      (2) Accompany the complainant to the family home so that the complainant may remove his or her personal clothing and effects and also the personal clothing and effects of any children that may be in the care of the complainant. The personal effects to be removed shall he only those required for immediate needs.
      (b) Immunity of law enforcement officer from civil liability. — Any law enforcement officer responding to such a request shall be immune from civil liability in complying with the request as long as the officer acts in good faith and in a reasonable manner.

      . Compare Rideau v. Louisiana, supra, where the United States Supreme Court held that pretrial publicity necessitated a change of venue before voir dire examination. There, one third to one-half of the entire population of the community had seen a televised twenty minute "interview” with the defendant shortly before trial in which he appeared “in jail, flanked by the sheriff and two State troopers, admitting in detail the commission of the robbery, kidnapping and murder, in response to leading questions by the sheriff.” 373 U.S. at 725. See also Lee v. State, 161 Md. 430, 157 A. 2d 723 (1931) where the Court of Appeals held that there was no latitude for discretion in considering a motion for removal where there had been numerous endeavors to lynch the defendant and plans were made to bring him to trial heavily guarded — all of which led to the conclusion that a fair unprejudicial jury could not be had. Of similar import, see Jones v. State, 185 Md. 481, 45 A. 2d 350 (1946).


author: Thompson, J.,

text:
    MICHAEL PORRECA v. STATE OF MARYLAND
    [No. 1292,
    September Term, 1980.]

      Decided September 2, 1981.

    The cause was argued before Morton, Thompson and Mason, JJ.

      Mark R. Thompson, with whom were Robert C. Heeney, Assigned Public Defender, and Heeney, Armstrong & Heeney on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Larry Alan Ceppos, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Michael Porreca, the appellant, was convicted in the Circuit Court for Montgomery County of attempted murder and sentenced to twenty years in prison. The principal question presented on this appeal is whether the trial judge erred in holding that the appellant, whose sole defense was that he was insane at the time of the offense as the result of his use of phencyclidine (PCP), a controlled dangerous substance, had failed to adduce evidence sufficient to place his sanity in issue. As we hold that the appellant’s evidence was sufficient and that the trial judge therefore erred, we shall reverse the conviction and remand for a new trial.

On December 15, 1979, the appellant, without provocation, warning, or apparent reason, brutally assaulted his roommate, Laurette Klieforth. The victim testified that the appellant, who had apparently left the apartment they shared early that morning, returned shortly before noon and walked past her into the kitchen without speaking. He emerged a moment later and struck her repeatedly in the face and hands with a kitchen knife, inflicting numerous wounds and causing loss of an eye. He then attempted to throw the victim off the balcony of the tenth floor apartment; unsuccessful in that attempt, he seized a broom and used it to beat her about the head and face. During the attack, the appellant told the victim several times that he wanted her dead and ceased his assault only after the victim told him that she was dead. He also told the victim, "I want your soul,” "I got the first eye,” and "I will get that other eye.” After the attack, the appellant left the victim lying on the balcony. In addition to describing the appellant’s behavior on the day of the assault, the victim also testified concerning a number of instances prior to the attack when the appellant exhibited bizarre, although non-violent, behavior.

When police and firefighters entered the apartment, they found the appellant lying naked and unconscious on the bed in the bedroom, his body rigid, his eyes open and his pupils dilated. When he became conscious, he told a police officer, "She wanted to kill me, but I killed her first. She has the devil in her,” and, when asked to identify himself, he responded, "Satan.” He also told a firefighter who asked whether he was using any medication that he was on heroin.

The appellant claimed that he was insane at the time of the offense and thus not responsible for his conduct under Md. Ann. Code Art. 59, § 25 (a), which provides as follows:

"A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disorder, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms 'mental disorder’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

His sole witness at trial was a psychiatrist, Dr. Brian Crowley, who testified that it was his opinion the appellant, at the time he attacked the victim, was suffering from a severe mental disorder, a psychosis, and as a result of that disorder lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He stated that the psychosis had been caused by the appellant’s long-time use of PCP and possibly had been aggravated by an underlying mental disorder. Dr. Crowley testified that the appellant had a history of drug abuse, beginning with the abuse of prescribed medication in 1976, that he had used PCP and other controlled dangerous substances with some regularity, and that he had used PCP and cocaine the evening prior to the attack. Dr. Crowley indicated that PCP was capable of causing four or five different categories of mental disorders and that the drug produced an organic brain syndrome which was sometimes reversible and sometimes not. He also indicated that PCP could produce a psychosis of fairly long duration, with the user suffering the effects weeks or months after use of the drug ceased. The psychiatrist testified that manifestations of the appellant’s psychosis had appeared in November 1979, at least one month prior to the assault on Miss Klieforth, and had continued for three to six months thereafter. He stated that the appellant was not continuously psychotic, having lucid intervals during this time, and that as the effects of the drugs abated, the psychotic symptoms diminished. Dr. Crowley agreed that the appellant was sane prior to beginning his use of PCP and other drugs and again after the effects of the drugs wore off, which was some two to four months after the attack; he also stated that the psychosis was the result of appellant’s use of intoxicants and that he would not have assaulted Miss Klieforth had he not been using PCP.

The trial judge ruled that the psychiatrist’s testimony was insufficient to raise a legal question as to the appellant’s sanity and that it was not necessary for the state to present evidence to rebut the testimony. The judge based her ruling upon the decision in Parker v. State, 7 Md. App. 167, 254 A.2d 381 (1969), cert. denied, 256 Md. 747 (1970), cert. denied, 402 U.S. 984 (1971); she interpreted Parker as holding that the insanity defense is not available where the claimed insanity is the result of voluntary intoxication and where the accused is sane both before taking the intoxicant and after the intoxicant wears off. In Parker, in a lengthy opinion authored by Judge Orth, we stated:

"The great weight of authority is in accord with the rule as stated in 21 Am. Jur. 2d, Criminal Law, § 44, p. 128:
'It is well settled that temporary insanity which arises from present voluntary intoxication is no defense. This is true even though the defendant’s temporary state of mind may meet the requirements of legal insanity contained in the M’Naghten rule, or whatever test of criminal responsibility is applied in the particular jurisdiction. On the other hand, if the accused was suffering from a settled or fixed insanity, even though caused by long-continued alcoholic indulgence, the rule is the same as in the case of insanity arising from any other cause. If the test of criminal responsibility locally applied is met, a settled or fixed insanity is a defense, even though it may have had its origin in long-continued voluntary intoxication, and regardless of whether defendant was under the influence of liquor at the time of the particular act.’” Id. at 174-75.
* * *
"Regardless of what test is applicable to determining insanity, the majority distinguish between (1) the mental effect of voluntary intoxication which is the immediate result of a particular alcoholic bout; and (2) an alcoholic psychosis resulting from long continued habits of excessive drinking. The first does not excuse responsibility for a criminal act; the second may. In other words, if a person drinks intoxicating liquor and is sane both prior to drinking and after the influences of the intoxicant has worn off, but is insane by the applicable test while under the influence of the intoxicant, he comes under the first category. If he is insane whether or not he is directly under the influence of an intoxicant, even though that insanity was caused by voluntary drinking, he comes under the second category. The cases usually refer to the first category as a 'temporary’ insanity and the second category as a 'permanent,’ 'fixed’ or 'settled’ insanity. These terms may be an oversimplification. What 'permanent,’ 'fixed’ or 'settled’ means within the frame of reference is that the insanity not only existed while a person was under the influence of intoxicating spirits as an immediate result of imbibing, but existed independent of such influence, even though the insanity was caused by past imbibing. So if a person while in the throes of delirium tremens which may meet the test for insanity, commits a crime, he is not responsible for his criminal conduct, although such defect, resulting remotely from excessive drinking is only a temporary toxic state. It would seem that the distinction, notwithstanding the language of the cases, is not so much between temporary and permanent insanity as it is one between the direct results of drinking, which are voluntarily sought after, and its remote and undesired consequences. We adopt the majority view.” (footnote omitted). Id. at 178-79.

We approved the following statement, found at 21 Am. Jur. 2d Criminal Law § 44 (1965):

"It is not necessary, however, that a mentally diseased condition brought on by voluntary use of intoxicants must have reached a permanent or incurable condition before the accused will be held irresponsible; on the contrary, such conditions as delirium tremens, or alcoholic hallucinosis, may be sufficient even if the condition was temporary.” Id. at 180.

We also distinguished our decision in Parker v. State, 4 Md. App. 62, 241 A.2d 185 (1968), in which we had reversed the accused’s original conviction and held that the issue of sanity had been raised, stating:

"There the evidence concerning the appellant’s lack of criminal responsibility, unlike the instant case, was sketchy and the point was whether it was sufficient to permit the issue to go to the jury. We found that it was, the import of our holding being that from the evidence in that case presented the jury could have found that the appellant had a 'permanent’ insanity 'brought on by ingestion of alcohol over a long period of time.’ In the instant case the expert witnesses called by the appellant in his own behalf testified that if he had not ingested alcohol on the day of the offense he would have been responsible for his acts. It appeared clear from the evidence that the appellant was not suffering from a 'permanent’ insanity.” Id. at 182.

While we did state in Parker that the insanity defense is not raised where the evidence shows the accused is sane both before and after using an intoxicant, and insane only while under the influence of the intoxicants, we believe the trial judge in the instant case misconstrued our meaning. In Parker, we distinguished between two forms of insanity caused by the voluntary ingestion of intoxicants: on the one hand we rejected as a defense temporary insanity which resulted from the present consumption of intoxicants and which persisted only so long as the individual was under the direct influence of the intoxicant; on the other hand we accepted as a valid defense a settled condition of insanity, whether or not permanent, which, although created by the voluntary use of intoxicants, persisted even after the direct influence of the intoxicant had ceased, i.e., even after the chemical agent was no longer present in the individual’s blood stream, and which was the result of continued or persistent use, rather than ingestion on a particular occasion. In the case at bar, although Dr. Crowley indicated that the appellant was sane after the effects of the PCP dissipated, it seems clear that he was describing a settled, although not permanent insanity. In referring to the effects of the PCP wearing off, it is apparent that he was not referring to the intoxication, to the effects of a single administration of the drug, but rather to the psychosis, which he indicated was the product of a habitual continued pattern of drug abuse, and which persisted for several months after use of the drug ceased.

The facts of the instant case are remarkably similar to those in People v. Kelly, 516 P.2d 875 (Calif. 1973). There the accused suffered from a psychosis caused by repeated, voluntary use of LSD and mescaline over a two month period, with manifestations appearing one month prior to the offense. Psychiatrists testified at trial that the accused was rendered insane by the drugs she consumed and that she would not have committed the crime charged, the stabbing of her mother, had she not ingested the drugs which created the psychosis. The psychiatrists also testified that, while the psychosis was temporary, it persisted for months after drug use ceased. The California Supreme Court held that the accused’s insanity was of a settled nature and that she was not responsible for her actions. We find the reasoning of the California Court persuasive. We hold, therefore, that the trial judge erred in ruling the evidence was insufficient to raise the question of insanity.

A distillation of the legal principles involved shows that, although we do not want a criminal to escape punishment by the simple expedient of getting drunk first, neither do we want to punish anyone who is legally insane, even though the cause of his insanity is a long-term use of drugs or alcohol.

The state presents two arguments in support of the trial judge’s decision. First, it argues that there was no evidence that the appellant was under the influence of PCP at the time of the offense. The argument completely misses the point; the issue is not whether the appellant was intoxicated at the time he committed the crime; it is whether he was suffering from a settled or fixed insanity. Second, the state argues that, under Parker, it is not enough that the appellant was insane for the duration of the influence of a voluntarily administered intoxicant. As we indicated above, our statement in Parker referred to the intoxication resulting from a "particular alcoholic bout”; here Dr. Crowley’s testimony was that the appellant’s psychosis was not the result of the ingestion of PCP on any particular occasion.

The appellant also contends that the evidence was insufficient to permit the trial judge to find that he acted with the requisite specific intent. The evidence of the appellant’s intent was abundant. During the attack, he repeatedly stated his intention to kill the victim and, in addition, he directed deadly force to vital areas of the victim’s body. Either of these acts would be sufficient to permit the trial judge to make the necessary finding. There was no obligation on the trial judge to accept the testimony of the psychiatrist as to guilt or innocence even though it was obviously sufficient to trigger an inquiry into the sanity question.

Judgment reversed.

Case remanded for a new trial. Costs not to be reallocated.

Md. Rule 1082 f.

      . Under Maryland law, an accused is presumed sane until, after the filing of a proper plea, see Md. Ann. Code Art. 59, § 25 (b) (1979 Repl. Vol., 1980 Cum. Supp.), there is adduced competent evidence sufficient to raise a reasonable doubt as to his sanity. Whether such evidence has been introduced is to be determined as a preliminary matter by the court. If the court finds the evidence sufficient to raise such a doubt, i.e., if the accused meets his threshold burden, the presumption falls and the state is obliged to prove beyond a reasonable doubt that the accused was sane. See Riggleman v. State, 33 Md. App. 344, 351-53, 364 A.2d 1159 (1976); Strawderman v. State, 4 Md. App. 689, 697-98, 244 A.2d 888 (1968), cert. denied, 252 Md. 733 (1969).

      . Although the appellant, after his arrest, was taken to a hospital and the arresting officer there requested that a "drug screen” be performed to determine whether the appellant was under the influence of any controlled dangerous substances, only a partial screening for barbiturates was conducted. The testing for barbiturates was negative. A paramedic who examined the appellant at the scene of the crime testified that the appellant appeared to be under the influence of a drug, but that his appearance was not consistent with heroin use.

      . The question of insanity aside, temporary drunkenness would not preclude the formation of a specific intent, if it could be shown that the intent was formed prior to the ingestion of a drug or alcohol.


author: Lowe, J.,

text:
    SPIROS ANDREA PROKOPIS v. STATE OF MARYLAND
    [App. No. 48,
    September Term, 1981.]

      Decided September 2, 1981.

    Before Moylan, Moore and Lowe, JJ.
    Submitted by Dene L. Lusby for applicant.
    Submitted by Stephen H. Sachs, Attorney General, and Andrew L. Sonner, State’s Attorney for Montgomery County, for respondent.
   Lowe, J.,

delivered the opinion of the Court.

Although we are admonished by the Maryland Constitution to write an opinion in "every case” submitted to us, doing so simply to deny an application for leave to appeal a post conviction petition as has been a custom in the past was giving the devil more than his due. Whether we can afford that luxury in the future will depend upon our ever increasing workload. Upon occasion, however, we have written — and will continue to write — and publish our reasons for granting or denying such applications, to provide citable authorities as precedent for the determination of these applications and as some guidance to trial judges hearing the initial petitions. Such infrequent publications are necessitated by the apparent statutory preclusion of certiorari by the Court of Appeals from our denials. Without benefit of its learned expositions on such matters, we are left to enlighten as best we can.

It is for those reasons that we have chosen to expand upon the application of Spiros Andrea Prokopis whom a Montgomery County jury convicted of rape and related sexual offenses on November 3, 1978. The convictions were affirmed by this Court in an unreported per curiam opinion, Prokopis v. State, No. 547, September Term, 1979, filed January 22, 1980. The Court of Appeals denied certorari, 287 Md. 756 (1980).

On March 24, 1981, applicant filed a pro se petition for post conviction relief, (Md. Code, Art. 27, § 645A - 645J). On April 28,1981, applicant’s attorney filed an "Amended Petition for Post Conviction Relief’ which raised three additional grounds for relief. A hearing on the combined petitions was held on May 1, 1981 before Judge Joseph M. Mathias in the Circuit Court for Montgomery County. By a "Memorandum Opinion and Order” filed June 5, 1981, Judge Mathias denied applicant relief. Subsequently, through his attorney, applicant filed an application for leave to appeal to this Court. On June 29,1981, applicant filed, pro se, a supplemental application. In the two applications (which we shall treat as one), applicant complained that:

1. The trial court committed reversible error when, in instructing the jury, it failed to distinguish the law-judging functions of the judge from those of the jury;
2. trial counsel rendered ineffective representation by failing to take exception to the trial judge’s "faulty instructions;”
3. trial counsel rendered ineffective assistance because he failed to ascertain that applicant (who is of Greek origin) understood English well enough to comprehend the proceedings.

Applicant’s first complaint concerns the trial judge’s instructions to the jury. He has cited Stevenson v. State, 289 Md. 167 (1980), as authority for his position. In Stevenson, Judge Digges explained what type of instruction a court should give a jury regarding "the law - judging function between judge and jury.”

"[I]t is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive 'law of the crime,’ and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body.” Stevenson v. State, supra at 180.

From our reading of the record, it is apparent that the hearing judge assumed that applicant’s complaint concerned the failure of the trial judge to give the Stevenson instruction. For purposes of this opinion we shall accept his assumption. The hearing judge nonetheless denied applicant relief because he had failed to raise the issue of the jury instruction in his prior direct appeal, thereby having waived his right to complain about the instructions in post conviction proceedings, Md. Code, Art. 27, § 645A (c). Applicant presents us with three reasons why we should find this ruling incorrect.

First, he contends that the hearing judge erred in not applying the plain error rule set forth in Md. Rule 757 h. He suggests that a post conviction hearing judge is authorized to recognize plain error and correct it. The rule, however, is simply not applicable to post conviction proceedings.

In urging that we now apply the plain error rule applicant is actually requesting that we consider this proceeding, not as an application for leave to appeal a denial of post conviction relief, but to recognize it as a direct appeal. We are not empowered to do so, however, even if we were so inclined. The Court of Appeals has held that post conviction may not be employed as a substitute for a direct appeal. See Kelly v. Warden, 243 Md. 717 (1966). Since post conviction may not be used as a substitute for a direct appeal, we may not, under the guise of applying the plain error rule, permit the rule to override the post conviction statute, § 645A (c), under which the hearing judge had determined that the jury instruction issue had been waived. On the contrary, while Art. 27, § 645A (c) obviously applies to post conviction proceedings, Md. Rule 757 h. does not. Applicant’s sleight of hand will not avail.

Applicant also believes the hearing judge erred in finding the jury instruction issue was waived under § 645A (c). Applicant asserts that before a § 645A (c) waiver can be determined it must be shown it was made "intelligently and knowingly” and that his actions in this case cannot be deemed an intelligent and knowing relinquishment of his rights. His legal premise is erroneous. Davis v. State, 285 Md. 19, 31-35 (1979).

Davis concerned an improper alibi instruction. At the time of Davis’ trial a "canned” alibi instruction was in general use. Such an instruction was given in Davis’ trial and no objection to it was noted. Subsequent to the trial, the Court of Appeals issued a decision that established a new standard for alibi instructions. On the basis of the Court of Appeals subsequent decision, Davis filed a post conviction petition requesting a new trial. The Court of Appeals explained that the "intelligent and knowing” standard did not apply to all allegations made in post conviction proceedings but only to those that the waiver concept of Johnson v. Zerbst, 304 U.S. 458 (1938) and Fay v. Noia, 372 U.S. 391 (1963) applied. The Court of Appeals has subsequently labeled the allegations governed by Johnson v. Zerbst and Fay v. Noia as "fundamental constitutional rights.” See State v. Magwood, 290 Md. 615 (1981), (No. 118, September Term, 1980, filed July 2, 1981). The Court of Appeals in Davis did not find an instruction on the law of alibi (that was improper because it unlawfully shifted the burden of proof to the accused) to concern a fundamental constitutional right requiring the intelligent and knowing standard to be waived; nor do we believe the failure to have given the requested instruction in this case (such as it may have been) required an "intelligent and knowing” standard of waiver. As in Davis, the jury instruction issue raised in this case has been waived by applicant’s failure to raise the issue when on direct appeal.

In his pro se application, applicant asserts what we perceive to be his third reason why the hearing judge erred in finding the jury instruction issue to be waived. Applicant acknowledges that Stevenson v. State, supra, is not retroactive but contends that "[t]his case is covered by the principle laid down in McClain v. State, 288 Md. 456 (1980).” Applicant does not state why the McClain case entitles him to relief, but regardless of his reasoning, it is apparent that the case does not afford him succor. The Court of Appeals in McClain held that even though one .of its decisions was not retroactive, the holding in such case would apply to any other case pending on appeal, as long as the same issue was raised below. The McClain holding does not apply in this case because applicant did not make any objection to the jury instructions at his trial.

As an alternative pro se complaint applicant asserts that his trial counsel rendered ineffective assistance because it was he who failed to object to the trial court’s failure to instruct the jury about its law-judging function. In reviewing the law regarding competency of counsel, Judge Mason speaking for this Court in State v. Lloyd, 48 Md. App. 535, 540 (1981), explained:

"The test to be applied in determining if a defendant in a criminal case was denied effective assistance of trial counsel is whether under all of the circumstances of the particular case a defendant was afforded genuine and effective representation. Slater v. Warden, 241 Md. 668, 673, 217 A.2d 571 (1966); State v. Mahoney, 16 Md. App. 193, 201, 294 A.2d 471 (1972). See also Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) where the Court, relying on McMann v. Richardson, 397 U.S. 759 (1970), held that the test for judging effective assistance of counsel is not whether representation was so poor as to make a farce of the trial, but whether the defense counsel’s representation was within the range of competence demanded of attorneys in criminal cases. Moreover, the burden is on the defendant to prove that defense counsel’s representation was not effective. State v. Hardy, 2 Md. App. 150, 156, 233 A.2d 365 (1967). 'Each case wherein ineffective assistance of counsel is asserted, must necessarily be decided upon the facts of that case.’ Thomas v. State, 516 S.W.2d 761, 765 (Mo. Ct. App. 1974).”

The hearing judge in his memorandum observed that "[t]he instructions given by the trial judge followed the format used for generations in this State.” He stated that since defense counsel had not acted differently from what could be expected of any other "reasonably competent practitioner” there was no reason to find counsel incompetent under the test for determining competency of counsel. We concur with this ruling.

Finally, applicant complains that his counsel did not genuinely and effectively represent him because "a language barrier existed.” Applicant states that he is of Greek origin and not fluent in English. Because of this, he asserts that he was unable to participate in his defense. We find no merit in this contention because there was no evidence presented in this record that applicant had or has any difficulty understanding the English language. The fact that applicant is of Greek origin does not mean he cannot understand English. Since there was no evidence that applicant could not understand English, there was no basis to afford applicant relief.

Application for leave to appeal denied.

      . There was a time when this Court did not consider jury instructions, regardless of their subject matter, to be an issue which could even be raised in post conviction proceedings. Ross v. Warden, 1 Md. App. 46 (1967). Since, at least Davis v. State, 285 Md. 19 (1979), however, the Court of Appeals has considered that in appropriate circumstances post conviction relief may be available for matters relating to jury instructions.


text:
    BROADVIEW APARTMENTS COMPANY v. COMMISSION FOR HISTORICAL AND ARCHITECTURAL PRESERVATION
    [No. 1296,
    September Term, 1980.]

      Decided September 3, 1981.

    The cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.

      Charles C. W. Atwater, with whom was Robert L. Fila on the brief, for appellant.

      Sandra R. Gutman, Assistant Solicitor for Baltimore City, with whom were Benjamin L. Brown, City Solicitor for

      Baltimore City, and Ambrose T. Hartman, Deputy City Solicitor for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Broadview Apartments Company (Broadview), the appellant, appeals from an order of the Baltimore City Court which affirmed the denial by Baltimore City’s Commission for Historical and Architectural Preservation (CHAP), the appellee, of a permit to demolish a structure, owned by Broadview, which had been designated a landmark under the City’s preservation law, Art. 1, § 40 of the Baltimore City Code. Broadview contends that:

1. CHAP’s decision denying the permit was arbitrary, capricious, and not supported by substantial evidence;
2. The preservation law does not provide objective standards for its criteria to guide CHAP in its decision making and therefore is unconstitutionally vague; and
3. Denial of the demolition permit constitutes an unconstitutional "taking” under the 5th and 14th Amendments.

As have many municipalities, Penn Central Transportation Company v. City of New York, 438 U.S. 104, 107-08, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), Baltimore City has enacted legislation intended to prevent the destruction or change in the exterior appearance of buildings and other structures in the city having historical, cultural, educational, architectural, or aesthetic significance. Codified as Art. 1, § 40 of the Baltimore City Code, the preservation ordinance creates an eleven-member commission for historical and architectural preservation comprised of interested citizens, an architect, a historian, a city council member, and persons nominated by certain specified institutions, such as the Walters Art Gallery and the Maryland Historical Society. This Commission, which has the primary responsibility for administering the preservation ordinance, is empowered to designate "proposed historical and architectural preservation district,” § 40 (j); these are defined in § 40 (a) as "area[s] in Baltimore City wherein there are located structures which have historical, cultural, educational and/or architectural value, the preservation of which is deemed to be for the educational, cultural, economic and general welfare of the inhabitants of Baltimore City.” In addition, CHAP is empowered to compile a list, known as the "Landmark List,” of structures, both public and private, which it deems to be of "special historical or architectural significance, whether or not such structures are within any Historical or Architectural Preservation District.” § 40 (k). Both the designation of districts and the inclusion of structures on the landmark list are subject to the City Council approval, which may be given only after notice has been given and a hearing has been held. Once the designation or inclusion has been approved by the City Council, the restrictions of the ordinance take effect; the principal restriction is that a permit must be obtained from the Commissioner of Housing and Community Development (HCD) before any person may alter the exterior appearance of any structure within a historic district or on the landmark list. § 40 (q) (1). Although the required permit is issued or denied by HCD, the actual decision as to whether the permit is to be issued or not is made by CHAP, as HCD is required to forward the permit obligations to CHAP, § 40 (q) (2), and may issue the permit only if CHAP issues either a Certificate of Appropriateness or a Notice to Proceed. § 40 (q) (3). A Certificate of Appropriateness is issued where the proposed alteration is determined to "be appropriate to the preservation of’ the district or the structure, § 40 (q) (5) (i); a notice to proceed is issued, in lieu of a Certificate, where it is determined that the proposed alteration "is inappropriate but is without substantial detriment to the public welfare and without substantial derogation from the intents and purposes of this ordinance, and denial of the application will result in substantial hardship to the applicant.” § 40 (q) (5) (ii). Upon receipt of a permit application from HCD, CHAP may issue a Certificate or a Notice "forthwith.” If it does not, then the Commission is required to give notice, within ten days, of a public hearing on the application, to hold such a hearing not less than ten and not more than twenty days thereafter, § 40 (q) (4), and to make a determination within fifteen days after conclusion of the hearing. § 40 (q) (5). Upon making its determination, CHAP is to notify HCD, § 40 (q) (7), and HCD is bound by that determination. § 40 (q) (8). If CHAP issues either a Certificate or a Notice, then HCD is to issue the permit, assuming the proposed alteration is otherwise in conformance with the building code. § 40 (q) (8). If CHAP determines that the proposed alteration is inappropriate and declines to issue either a Certificate or a Notice, then it must set forth its reasons and notify HCD that the issuance of the permit is to be postponed. § 40 (q) (9). If so notified, HCD must postpone issuance for a period not to exceed six months, § 40 (q) (9) (i), and CHAP, during the period of postponement, is required to "meet with the applicant for the permit and. .. consult with civic groups, public agencies and interested citizens to ascertain what the City may do to preserve such building.” § 40 (q) (9) (ii). The ordinance provides criminal penalties for the carrying out of alterations in violation of its provisions. § 40 (w).

The property involved herein is located in Baltimore City at 104 W. 39th Street and consists of a large, three-story detached house, know as the "Ascot House.” Built in the early 1900’s, the house was one of the first designed by Laurence Hall Fowler, a distinguished Baltimore architect. This property was purchased by Broadview on June 25, 1976, for $79,500. Broadview, which owns a larger, highrise apartment building in the immediate vicinity, bought two parcels contiguous to the Ascot House at the same time. Settlement on all three parcels took place on September 28, 1976.

On December 17,1976, forty-two structures, including the Ascot House, were presented to CHAP and tentatively approved for inclusion on the landmark list. At a meeting on February 4, 1977, CHAP again discussed the structures proposed for inclusion, with several commission members, including the only member who was an architect, expressing doubt as to the architectural significance of the Ascot House.

On February 10, 1977, Broadview, which had purchased the house with the intention of tearing it down and erecting a parking structure to serve its other properties, applied to HCD for a permit to demolish the Ascot House. HCD forwarded the application to CHAP. On February 16, CHAP advised Broadview by letter that its property was to be recommended for designation as a landmark. Two days later, CHAP formally recommended the structure, among others, for inclusion on the landmark list. HCD notified Broadview on April 17, 1977, that the demolition permit would be withheld pending City Council action on the structures proposed for inclusion; on June 10, 1977, the City Council approved inclusion of the structures proposed by CHAP.

Nearly two years after Broadview first applied for a demolition permit, on December 17, 1979, and January 18, 1980, CHAP conducted a hearing on Broadview’s application. Broadview presented evidence in support of its claim that the Ascot House had no reasonable economic use. It called Mr. Ralph Davis, the Director of Housing and Rehabilitation for Anne Arundel County and the former rehabilitation services administrator for Baltimore City’s Department of Housing and Community Development, and introduced a detailed report prepared by Mr. Davis on November 25, 1977, when he was employed by HCD. His testimony and report showed that, at the direction of his supervisor, he had conducted a physical inspection and performed an economic evaluation of the property in November 1977. He had concluded that the property was then in a deteriorated condition and in need of substantial renovation and repair. It was his opinion that the house would require replacement of all wiring and plumbing, extensive masonry repair and carpentry work and painting of both the interior and exterior. It was also his opinion that the roof was in need of replacement, at an approximate cost of $55,000. Minimum total cost, as computed by Mr. Davis, to renovate the house for use as rental property, was $138,000. He projected annual operating expenses of $27,108 for the property. He stated that, even being "generous with the rent structure,” assuming the availability of a low interest mortgage and allowing no return on the purchase price, the property would produce annual revenues of $25,668, with an annual net operating loss of $1,440 and thus it was his opinion that the house could not be renovated and operated at a profit. Broadview introduced an estimate prepared in October 1979 by an experienced contractor, Raymond C. Maulé & Son, which placed the cost to renovate the Ascot House at $294,375 and which stated that restoration of the house was not economically feasible. The contractor, like Davis, concluded that replacement of the roof was required and estimated cost for that item at $66,300. Broadview also presented a feasibility study and testimony by Mr. O. Ellsworth Stevens, a realtor and property management expert. His study and testimony indicated that the property could be renovated and rented only at a considerable loss. Although Stevens had relied on the Maulé estimate in making his calculations, he testified that it was his opinion that operation of the Ascot House would not be economically feasible even if restoration costs were only $100,000. His rent projections were significantly lower than those prepared by Davis. He recommended that the house be razed and the property used either for parking or for the construction of new town houses. Finally, Broadview presented an appraisal of the property, prepared by the City of Baltimore in 1977, which stated that the best use of the property would involve demolition of the house and devotion of the land to any use consistent with the applicable zoning.

Contradicting Broadview’s conclusion that the house had no economic use were a number of letters and written reports which had apparently been solicited by CHAP. All but one of these simply stated, in conclusory fashion and without reference to any supporting data, that restoration of the house was economically feasible; the sole exception was the report prepared by the Ben Morton Company. This report proposed renovation of the house as five luxury apartment units, with projected rehabilitation costs of $102,500, a projected annual rent revenue of $27,360 and annual operating expenses of $8,542, with an annual net income of $18,818. It concluded that renovation and operation of the Ascot House, while "not big money,” was feasible. The Morton Company admitted in its report that it had not included any debt service in its calculations; it also failed to provide for any return on the purchase price of the property and proposed only $5,000 in minor roof repairs. In addition, the report appears to have underestimated property taxes by more than one-half.

At the conclusion of the hearing on January 18, 1980, CHAP voted to deny Broadview’s application, stating that they were not convinced from the evidence that Broadview was under any economic hardship. Several members of the Commission indicated that they considered Broadview’s evidence biased in its favor and that they would not be disposed to find economic hardship except on the basis of information and studies prepared by independent, objective sources; they further indicated that CHAP had no funds available to commission such studies. CHAP’s decision was upheld on appeal by the Baltimore City Court on July 15, 1980. Broadview’s appeal to this Court followed.

Although every restriction imposed by government upon a landowner’s use of his property will not be considered a taking, where the restrictions deprive the landowner of all reasonable, beneficial use of the property, compensation must be paid. Penn Central Transportation Co. v. City of New York, 438 U.S. at 149; Maryland-National Capital Park and Planning Commission v. Chadwick, 286 Md. 1, 10, 405 A.2d 241 (1979); City of Annapolis v. Anne Arundel County, 271 Md. 265, 294, 316 A.2d 807 (1974). In reviewing the decision of an administrative agency, the scope of review is limited to determining whether there is substantial evidence to support the decision or if it is otherwise arbitrary, i.e., whether a reasoning mind could have reached the factual conclusion reached by the agency. Cicala v. Disability Review Board, 288 Md. 254, 260, 418 A.2d 205 (1980).

Broadview presents substantial evidence to support its claim that renovation of the Ascot House was not economically feasible. CHAP discounted this evidence as biased. The City Court, in its memorandum and order affirming CHAP’s decision, stated: "It is apparent that the Commission heavily discounted Broadview’s evidence and, in reliance on reports submitted by its staff, determined that it was economically feasible to maintain Ascot House as a rental property.” In fact, no report or information of any kind was submitted by CHAP’s staff, as several commission members complained when announcing their final decision. While CHAP could justifiably discount the Stevens study and the Maulé estimate as biased, there is no basis in the record for discounting the Davis report. Davis was a city employee at the time he prepared the report. That his report supported Broadview’s claim and was introduced by Broadview did not make it biased. As we indicated above, the sole evidence in the record before CHAP which supported its decision was the study by the Ben Morton Company; that study, in supporting the view that renovation was economically feasible, failed to include any debt service, any recovery of the purchase price, and failed to include the cost of replacing the roof, even though the City itself, in the Davis report, agreed that replacement of the roof was necessary. The Morton report is not substantial evidence. "An expert’s judgment has no probative force unless there is a sufficient basis upon which to support his conclusions.” Worthington Construction Corp. v. Moore, 266 Md. 19, 29, 291 A.2d 466 (1972). A reasoning mind should not base a decision upon a study which was so woefully incomplete. In reaching this conclusion, we are not weighing the evidence or substituting our judgment for that of CHAP. What we are doing is looking for some evidence, upon which reasonable persons would rely, which supports CHAP’s decision. We have found none. In addition, the Commission arbitrarily ignored the only unbiased substantial evidence in the record — the Davis report. We therefore hold that the Baltimore City Court erred in affirming CHAP’s denial of the demolition permit.

We do not reach the second and third issues set out at the beginning of this opinion.

Order reversed.

Appellee to pay the costs.

      . Such legislation involves an exercise of the police power. City of Baltimore v. Mano Swartz, 268 Md. 79, 91, 299 A.2d 828 (1973). Baltimore City derives its zoning power from Art. 66B of the Annotated Code of Maryland. Id. at 91. Art. 66B, § 2.12 provides:
      "For the purpose of preserving structures and landmarks of historic and architectural value as part of a public purpose in this State, the Mayor and City Council of Baltimore City have the power generally to enact laws for historic and landmark zoning and preservation. This section does not restrict any charter or other power of the city.”

      . Obviously, CHAP did not proceed in accordance with § 40 (q) (4). In a separate action, Broadview sought a writ of mandamus in the Superior Court of Baltimore City, contending that, in view of the delay, HCD was without authority to withhold the requested permit. The Superior Court denied the writ on January 30, 1980, holding that the time limits were not mandatory.

      . The trial judge was apparently referring to the CHAP solicited letters and reports mentioned above.