author: Orth, C. J.,

text:
    SANDRA BARNES v. STATE OF MARYLAND
    [No. 724,
    September Term, 1975.]

      Decided March 31, 1976.

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

      Robert S. Sherman for appellant.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sunsher, State’s Attorney for Baltimore City, and James Schneider, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 5 March 1975 a Statement of Charges was filed in the District Court of Maryland, District 1, charging Sandra Barnes with shoplifting proscribed by Code, Art. 27, § 551A. She demanded a jury trial. Courts Art. § 4-301 (2) and § 4-302 (d). When the case came on for trial in the Criminal Court of Baltimore on 14 July 1975, the prosecutor informed the court, Baer, J., presiding: “This is to be a statement of facts on a not guilty plea.” Barnes was rearraigned. Defense counsel said: “The plea would be not guilty. We have had prior discussions with the State. We have agreed to proceed on a statement of facts. I believe my client understands what that is and how that works and we are ready, willing, and able to proceed at this point, Your Honor.” The prosecutor gave a statement of facts:

“Your Honor, may it please the court, the statement of facts in this case would be as follows. If called to testify Special Officer Albert Jones employed by the Food-A-Rama Incorporated, a body corporate of the State of Maryland, located at 3420 Clifton Avenue would state that on March 5, 1975 at approximately eight-fifty in the evening he had occasion to be on duty in those premises at the Food-A-Rama at the address I have already indicated in the City of Baltimore. At which time he observed the defendant who at that time was standing in the line at the cashier located inside of the food store. At that time he observed her remove a two pound box of Domino sugar, property of the store, valued at $1.33, place the same in her purse which was a black shoulder bag which she was carrying at that time on her shoulder and zip up the bag. That he did not observe her pay for the sugar, but I have already indicated that at the time he saw her she was in line. He would identify the lady seated at the trial table next to Mr. Sherman as the lady that he saw. This did occur in the City of Baltimore. That would be the statement of facts. The officer is not present.”

The judge asked if there were any additions or corrections and defense counsel said:

“The only addition, Your Honor, or correction would be that I believe that the police officer would testify if be was here that Miss Barnes was standing fourth in line when he first accosted her and she had her hands full of other groceries. I think it was a cabbage and something else. I am not sure what and the purse was on her shoulder [with the sugar in it]

Defense counsel moved for judgment of acquittal. Code, Art. 27, § 593 and Maryland Rule 755, implementing Art. XV, § 5 of the Constitution of Maryland.

Of course, an accused must be acquitted if the evidence is not legally sufficient to sustain his conviction. “To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Metz v. State, 9 Md. App. 15, 23 (1970); see Robinson v. State, 17 Md. App. 451, 459-460 (1973). Thus, evidence is the means whereby a fact in controversy may be established or disproved. 1 Wharton’s Criminal Evidence §§ 2-8 (13th ed. 1972). It is the function of the trier of fact, be it court or jury, to determine the facts from the evidence before it. Ordinarily, in the conduct of a criminal case upon a plea of not guilty, the State offers evidence to establish facts tending to show that the crime charged was committed and that the accused committed it, that is, the State attempts to prove the corpus delicti and the criminal agency of the accused. The defense may deny, refute or dispute this evidence. It does so by offering evidence to establish facts tending to show that the crime charged was not committed, or, if it was, that the accused did not commit it, or if he did commit it, that he was not culpable. See Whitehead v. State, 9 Md. App. 7, 9-11 (1970). This inevitably results in conflicts in the evidence and it is the duty of the trier of fact to resolve those conflicts so that it may determine the facts upon which it may properly decide whether the accused was guilty or innocent. In resolving the conflicts, and making factual findings from the evidence, the trier of fact weighs that evidence and judges the credibility of the witnesses. The weight to be given evidence and the credibility of the witnesses are matters solely for the trier of fact. Weaver v. State, 226 Md. 431, 436 (1961). See Williams v. State, 5 Md. App. 450, 452-460 (1968), cert. den., 252 Md. 731 and 734 (1969). This is why, on appellate review of the sufficiency of the evidence when an action has been tried by the lower court without a jury, the appellate court may not set aside the judgment of the lower court on the evidence unless clearly erroneous after giving due regard to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rules 886 and 1086. It is also why, on appellate review of the sufficiency of the evidence, when an action has been tried before a jury, it has been said that the guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt. Wilson v. State, 261 Md. 551, 563-564 (1971). See Williams v. State, supra, at 458-460.

The proper means to challenge the sufficiency of the evidence in the trial court is by a motion for judgment of acquittal. Rule 755, § a. It may be made by an accused at the close of evidence offered by the State or at the close of all the evidence. If the motion is not granted at the close of evidence offered by the State, the accused may offer evidence, but by so doing, he withdraws his motion. Rule 755, § b. In a criminal action tried before a jury, appellate review of the sufficiency of the evidence may be had only upon the denial of a motion for judgment of acquittal at the close of all the evidence. Lotharp v. State, 231 Md. 239, 240 (1963); Williams v. State, supra, at 455-456. In a criminal action in which the court is the trier of fact, the appellate court must entertain the issue of the sufficiency of the evidence when presented on appeal even in the absence of a motion for judgment of acquittal below. Williams, at 456, n. 10. This is so because Rules 886 and 1086 expressly provide: “When an action has been tried by the lower court without a jury, [the appellate court] will review the case upon both the law and the evidence ... .”

At the time defense counsel moved for judgment of acquittal below, the facts had been established by agreement. Although not expressly presented as an “agreed statement of facts”, it is manifest that after the addition suggested by defense counsel, the facts, as given to that point, were not disputed. There was no evidence for the court as the trier of fact to weigh and no need to judge the credibility of a witness. There was no conflicting, evidence which required resolution to enable the court to determine the facts. All that remained to be done was for the court to apply the law to the undisputed facts of the case. Problems arose when the court did so.

When defense counsel moved for acquittal he said: “I would offer a motion for judgment of acquittal based on that statement of facts on the basis that the officer may have acted, I believe in this case, prematurely.” The court asked: “How?” and counsel replied: “She was standing in line to pay. She did not yet refuse to pay although she had according to the officer concealed the two pound box of sugar.” The transcript reads:

“THE COURT: Under the shoplifting law is not the act of shoplifting committed as soon as you conceal it?
MR. SHERMAN [Robert Sherman, defense counsel]: No, Your Honor, under the shoplifting law the act is done as soon as one intends to steal it.
THE COURT: Doesn’t the law indicate--
MR. SHERMAN: The act of concealing it is not necessarily synonymous with intention.
THE COURT: Doesn’t the law specifically state that when you conceal it you have committed the crime.
MR. SHERMAN: No sir, not that I know of.
THE COURT: It does not. Is that 551A?
MR. SHERMAN: I believe it is, Your Honor.
THE COURT: Is that the section, 551A? In a mercantile establishment it is unlawful for any person to conceal any goods, wares, or merchandise.
MR. SHERMAN: With the intent -
THE COURT: Of course, then it refers to the
intent.
MR. SHERMAN: I believe it says with the intent.
THE COURT: When you conceal it, you have the intent under this section. All right.”

What happened next completely changed the status of the trial. Without objection noted, defense counsel proffered evidence:

“[I]f Miss Barnes was called to testify, she would testify as follows. She was indeed standing in line. She had recently been out of the hospital where she had a D and C and some stitches. She was standing in line with her hands full of groceries. She had a two pound box of sugar which she placed in her pocketbook, which remained open at all times, to hold it. While she was waiting to pay she was accosted and arrested before she had a chance to get to the cashier to pay for the merchandise. She did not conceal the sugar. She did not have any intention to conceal it. She was merely holding it waiting to pay and had approximately $20.00 on her when she was arrested and had every intention of paying for it. She said it was sticking out of her pocketbook and 1 would also again point out that the special police officer did not come here today. She went into the hospital on January 23, 1975 and this occurred on the 5th of March. She was in the hospital for approximately a week to ten days and had just been in the process of recuperating. She has one child and she was working at that time before she went into the hospital at King’s Carry Out. She had worked there for ten months and Arundel Ice Cream three months before that. She is presently currently unemployed and drawing unemployment and hoping to obtain a job. Again as I said before, she has one child that she supports and the problem in this case, Your Honor, is that she has a prior record for shoplifting in 1971.”

No longer were the material facts undisputed. This evidence received without objection as to what the accused would say if she testified was in direct conflict with the evidence received by way of stipulation as to what the State’s witness would say if he testified. The State’s evidence tended to establish the fact that the accused concealed the merchandise. The defense’s evidence tended to establish the fact that the accused did not conceal the merchandise. It became the duty of the court as the trier of fact to resolve this conflict in the evidence and find as a fact that the accused did put the merchandise in her purse and zip up the purse so as to conceal the merchandise, as the State’s evidence indicated, or to find as a fact that after putting the merchandise in her purse, she did not zip up the purse so as to conceal the merchandise, but rather left it in plain view, “sticking out of her pocketbook.” Obviously, although implicitly, the court resolved the conflict by finding as a fact that the accused concealed the merchandise, for without further ado and with no comment whatsoever, it rendered a verdict of guilty. It then inquired if defense counsel had anything additional in mitigation of sentence. The transcript reads:

“MR. SHERMAN: Yes, Your Honor. The only thing additional is that the presumption that one — I am sorry. It goes to verdict, Your Honor. The presumption is that if one secretes something one intends to steal it but that presumption is rebuttable and I again point out to Your Honor that at the point in time when she was arrested and accosted she was standing in line at the cashier to pay. The only question was —
THE COURT: You are not speaking in mitigation.
MR. SHERMAN: No, I am not. I said I am speaking in terms of verdict.
THE COURT: I have already considered that.”

There was nothing further in mitigation. A sentence of 60 days in the Baltimore City Jail was imposed. Barnes appealed.

On appeal Barnes raises the question of the sufficiency of the evidence. As we have indicated, the issue is properly before us under Rule 1086 even though there was no motion for judgment of acquittal made at the close of all the evidence.

Code, Art. 27, § 551A sets out five acts which constitute the crime of shoplifting. Subsection (a) (3) makes it unlawful for any person in any mercantile establishment to conceal any goods, wares or merchandise “with the intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, or value, or any part thereof.” Barnes claims that “the evidence of intent presented below was insufficient because the mere act of concealment, standing alone, did not establish the required intent.” The State counters by urging that “the act of concealment gave rise to a rational inference that she intended to shoplift the items.” It alleges that the trial court properly found the requisite intent from the act of concealment.

It may well be that in a mercantile establishment the concealing of goods under circumstances which the evidence offered by the State tended to show, would support a rational inference that the person concealing them intended to appropriate them. To support such inference, however, it is necessary in any event that the fact of concealment by the accused be first established. As we have observed, the evidence offered by Barnes put the facts in dispute. Then there was conflicting evidence before the court. There was evidence, which, if found credible, was sufficient in law to support a finding that Barnes concealed the merchandise, and there was evidence, which, if found credible, was sufficient in law to support a finding that Barnes did not conceal the merchandise. As is patent from the verdict, the court resolved this conflict by believing the State’s witness, and accepted that version of what occurred, finding as a fact that Barnes concealed the merchandise. It necessarily follows, that in order to find beyond a reasonable doubt that the offense was committed and that Barnes committed it, the court did not believe Barnes, and rejected her version that she did not conceal the merchandise. Ordinarily, this would be perfectly proper. As we have indicated, it is the function of the trier of fact in such a situation to resolve evidentiary conflicts. In performing this function, it may believe one witness and disbelieve another, for the credibility of the witnesses and the weight to be given the evidence are matters for it. The rub here is that, in the circumstances, there was no proper basis on which the court could resolve the conflict. Certainly, neither the State’s evidence nor the defense’s evidence was inherently incredible. Neither witness from whom the evidence emanated appeared before the court; the court was merely told what the witnesses would say if they testified. There were simply no factors apparent from the record before us which would enable the court to judge the credibility of either witness, or the reliability of the evidence offered through them. The court expressed no reasons for the finding inherent in its verdict and gave no clue as to why it concluded, in the face of the conflicting evidence, that Barnes concealed the merchandise. As we see it, in the circumstances, the only way the court could have resolved the conflict in the evidence, and made a factual finding that the merchandise was concealed, was by arbitrary choice. We believe a choice so made to be capricious, and a determination of guilt beyond a reasonable doubt may not be properly bottomed on it. Therefore, the judgment of the court on the evidence was clearly erroneous, and we shall reverse it.

This case serves to point up an apparent confusion which seems to be shared by some members of the bench and bar in the trial of criminal cases. There is a distinction between an agreed statement of facts and evidence offered by way of stipulation. Under an agreed statement of facts both State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute; if there is dispute, there is no agreement. It would be well, to avoid confusion, that when the parties are in agreement on the facts, the statement of them begin with language to the effect, “It is agreed that the following facts are true. ...”

On the other hand, when evidence is offered by way of stipulation, there is no agreement as to the facts which the evidence seeks to establish. Such a stipulation only goes to the content of the testimony of a particular witness if he were to appear and testify. The agreement is to what the evidence will be, not to what the facts are. Thus, the evidence adduced by such a stipulation may well be in conflict with other evidence received. For the trier of fact to determine the ultimate facts on such conflicting evidence, there must be some basis on which to judge the credibility of the witness whose testimony is the subject of the stipulation, or to ascertain the reliability of that testimony, to the end that the evidence obtained by stipulation may be weighed against other relevant evidence adduced. It is in this frame of reference that Rule 1086 speaks of giving due regard to the “opportunity” of the lower court to judge the credibility of the witnesses. We note that the usual way of introducing such a stipulation — “If John Doe were to testify, he would testify as follows . . . .” — makes clear the status of the evidence so offered.

We can conceive of a variety of factors which would afford the fact-finder the opportunity to judge the credibility of a witness, or the reliability of the evidence offered through him, without observing the witness, but they are best left to a case by case consideration. What bench and bar should be alert to recognize so appropriate corrective measures may be timely taken, is a case like the case subjudice. Here, despite the original intention, evidence ultimately offered was actually conflicting in material part so that there was no agreement as to the facts, and no opportunity for the fact-finder either to judge the credibility of the witnesses through whom the conflicting evidence was offered by stipulation, or to ascertain the reliability of that evidence. Without such opportunity, there was no proper way to resolve the evidentiary conflicts in order to determine ultimate facts which would be sufficient in law to sustain a verdict of guilty.

Judgment reversed; case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore; mandate to issue forthwith.

      . In broad terms evidence is classified as testimony, documentary evidence, and real evidence. “Testimony is evidence given orally by persons who are cognizant of the relevant facts. Recognized exceptions to this requirement of knowledge are dying declarations, extrajudicial confessions, and res gestae statements. Documentary evidence consists of writings, such as judicial and official records, contracts, deeds, and less formal writings,' such as letters, shopbooks, and memoranda. Maps, _ diagrams, and photographs may also be categorized as documentary evidence, although they are usually discussed separately. Real evidence consists of any other form of tangible property.” 1 Wharton’s Criminal Law § 5 (13th ed. 1972).

      . The trial court on its own motion may determine that a judgment of acquittal should be granted. Rule 755, § c.

      . The commission of the other acts designated in § 551A (a) may also, in appropriate circumstances, support a rational inference of the intent required to make the act the crime of shoplifting. Those acts are by numbered paragraph: (1) removal of any goods from the immediate place of display or from any other place within the establishment; (2) obtaining or attempting to obtain possession of any goods by charging them to a real person without authority or to a fictitious person; (4) altering, removing, or otherwise disfiguring any label or price tag; (5) transferring any goods from a container in which they are displayed or packaged to any other container.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    DOLPHUS FARMER et al. v. ROBERT G. JAMIESON et al.
    [No. 729,
    September Term, 1975.1

      Decided March 31, 1976.

      The cause was argued before Thompson, Davidson and Moore, JJ.

      Thomas L. Hennessey for appellants.

      Cypert 0. Whitfill for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The appellees, Robert G. Jamieson, et al., landowners, filed a bill of complaint for injunctive relief in the Circuit Court for Harford County against the Harford County Council to declare a motion passed by the council deleting appellees’ property from the county’s Master Water and Sewerage Plan invalid so they could proceed with plans to construct a trailer park. The appellants, landowners in the immediate area, were permitted to intervene. The court ordered appellees’ property be shown as an “Immediate Priority Service Area” and the sewage treatment plant designated for appellees’ property be shown as an “Immediate Priority Facility” on the current Master Water and Sewerage Plan for Harford County. The intervenors appealed; Harford County did not appeal.

In 1970 John W. and Clara Wilson, then owners of the subject property, began formulating plans to construct a mobile home park. Because the property is located in a portion of Harford County which is not serviced by the county’s central sewer system, they applied on February 6, 1970, to the State Department of Health and Mental Hygiene for a permit to develop a central waste water treatment facility to serve the proposed mobile home park. The department advised Harford County officials that the county should determine whether they wished the subject property to be used for a trailer park before the department made a decision.

On April 16,1971, the Board of Appeals of Harford County approved the Wilsons’ application for a zoning certificate for a 305 unit mobile home park subject to several conditions, including:

“3) The sewage effluent point of discharge is to be at or below the confluence of James Run and Broad Run as recommended by the Planner’s Report and subject to Health Department approval.
“4) All regulations and requirements of the Health Department are to be complied with. .. .”

The Health Department was then informed of the Board of Appeals’ decision.

On November 2, 1971, the Health Department approved the Wilsons’ February 6, 1970 application which placed the point of discharge on James Run approximately 6 miles above the confluence of James Run and Broad Run. Other requirements were placed on the approval including that “the plant is to be operated and maintained by the Harford County Metropolitan Commission.” Permits were to be issued after approval by the county commissioners of revisions to the Master Water and Sewerage Plan placing the subject property in the “immediate priority” category. After this was done the Health Department approved the Master Plan as revised.

On November 22, 1971, the Wilsons entered into a Public Works Agreement with the Harford County Metropolitan Commission and with the County Commissioners of Harford County. By the terms of this agreement the Wilsons took full financial responsibility to build each phase of the sewage treatment plant in accordance with the dictates of the Health Department. Upon completion of each phase of the plant they would deed to the commission, at no cost to them, full ownership of the portion just completed. The commission was to have the responsibility of operating the plant with the Wilsons to reimburse them for any costs incurred. If in the future the Health Department required additions or corrections to the plant in order to improve the quality of the plant effluent, the Wilsons would be financially responsible for these changes. The developer had two years after the execution of the agreement in which to record a final subdivision or development plat for this parcel and one year thereafter to commence construction. If he failed to meet the conditions or if after having started construction, more than one year lapsed without any construction taking place, then the commission could upon ninety (90) days written notice to him, terminate its obligations under the agreement.

Having taken these steps in furtherance of the construction of the trailer park, the Wilsons then conveyed the subject property to The Saunders Harwood Corporation by deed dated February 29, 1972. On June 1, 1972, the Wilsons assigned the Public Works Agreement to The Saunders Harwood Corporation. Saunders M. Almond, Jr., president of The Saunders Harwood Corporation and one of the appellees, inquired to T. Leo Sullivan, Chairman of the Board of Appeals, as to the significance of the condition in the board’s decision requiring the point of discharge to be located at the confluence of James Run and Broad Run. He was informed that it made no difference to the chairman where the point of discharge was located as long as it was approved by the State Department of Health and Mental Hygiene. Under the belief that this condition could be waived, or that the Health Department’s decision constituted a compliance with the zoning condition, and that there was no need for the added expense of placing the discharge point at the confluence of James Run and Broad Run, he took no further action in regard to meeting or changing that condition of the board’s approval.

The Saunders Harwood Corporation conveyed the subject property to the appellees by a deed dated March 23, 1973. A confirmatory assignment of the Public Works Agreement was made the day of the trial from Saunders to the appellees. At the time they took title to the subject property, the appellees entered into a contract; thereafter expending $160,728.00 for construction.

Subsequently, on April 10, 1973, the Harford County Council approved the Master Water and Sewerage Plan which included the appellees’ property in a priority status. On June 12, 1973, however, the County Council voted to delete the subject property from the Master Plan. At that meeting, W. McLean Bingley from the Health Department testified that his department would inspect the plant approximately once a month, but it was the duty of the Harford County Public Works to maintain and operate the plant. He further advised that the council should consider whether that department had the manpower to fulfill this obligation in determining whether or not to delete the subject property from the Master Plan. The county attorney testified that the Public Works Agreement was legally binding. The vote was six to one to delete the subject property from the Master Water and Sewerage Plan. The effect of this vote was to force a halt to the construction of the trailer park, since the appellees could no longer obtain additional permits or approvals from the Health Department.

Appellants present three contentions.

I. The Circuit Court for Harford County cannot compel the County Council and Harford County to expend funds for sewage treatment plant or designate a sewage treatment plant where same has been deleted from the Master Plan and there is no showing of arbitrary, capricious or fraudulent conduct._

The appellants’ first argument is that the lower court could not compel the county to expend funds for a sewage treatment plant or designate a sewage treatment plant where it has been deleted from the Master Plan unless the decision of the council was found to be arbitrary, capricious, or fraudulent. As pointed out by the appellees, the order of the court does not compel the expenditure of any county funds. The Public Works Agreement specifically states that the developer had total financial responsibility for the construction of the plant and was required to pay a sewage treatment plant operation and maintenance charge equal to the cost of maintaining and operating the plant. The financial ability of the developer is not questioned.

The trial court, in effect, found the action of the County Council of Harford County was arbitrary in amending its Master Plan on June 12, 1973, after having approved it on April 10, 1973, without any change in circumstances, in violation of a prior contract with the developer who had expended $160,728.00 for construction in reliance on the contract. We agree. .

The trial judge relied on, by analogy, three Maryland cases:

“In the case of Board of County Commissioners of Harford County v. L. S. MacPhail, 214 Md. 192 (1957), MacPhail brought an action to compel Harford County to build a road as the Board of County Commissioners had previously agreed. The Commissioners defended on the grounds that the action sought to compel them to exercise their discretion, but the trial court held, and the Court of Appeals agreed ‘. . . generally a court will not interfere with the discretion of public officials and, so, ordinarily will not tell the County Commissioners what roads to select for improvement or how improvements should be made . . . ’ . However, the Court then noted: ‘the Commissioners exercised their discretion by agreeing to improve the road under consideration .... The purpose of this proceeding, therefore, is not to interfere with the County Commissioners in the exercise of their discretion, but to require them to perform and carry out any agreement which they made in the exercise of their discretion’.”
“In District Land Corporation v. Washington Suburban Sanitary Commission, 266 Md. 301 (1972), an apartment developer had purchased land in Prince George’s County and took the necessary steps to obtain required governmental approvals. After securing zoning and plan approval, the developer executed an agreement with the Washington Suburban Sanitary Commission to have sewer and water service for the apartments. Thereafter the County Council passed a resolution that sewer service in the County was only to be provided where a development followed a duly adopted Master Plan, thereby blocking the project. The Court held that the developer had acquired a vested right to proceed with the project since the water and sewer had already been constructed and the developer had complied with all laws, rules, regulations and conditions imposed under the law as it existed when the applications were made. Thus, the discretion of the County was limited when the developer followed the law as it was enacted such that they could not block construction by further exercise of discretion.”
“In Rockville Fuel v. Gaithersburg, 266 Md. 117 (1972), The Court of Appeals, in discussing vested rights with regard to zoning affairs, cited, with approval, from 2 Rathkopf, The Law of Zoning and Planning (3rd Ed.) Chapter 57, Section 3, at 57-6 to 57-7 as follows:
‘The Majority Rule — may be stated as follows: A landowner will be held to have acquired a vested right to continue the construction of a building or structure and to initiate and continue to use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures or has incurred substantial obligations.---’. See also Richmond Corp. v. Bd. of Co. Comm’rs., 254 Md. 244 (1969).”

With all the facts concerning the mobile home park squarely before them, the Harford County Metropolitan Commission and the County Commissioners of Harford County signed the contract for the construction of the water and sewage treatment plant, pursuant to the express power granted to them under § 436 of the Code of Public Local Laws of Harford County (1965 Ed., 1971 Supp.). At the time of the signing of the contract both parties realized that construction of the sewage treatment plant depended on an “immediate priority” status of the Master Water and Sewerage Plan. Both the county commissioners and the Health Department approved the Master Plan giving the subject property “immediate priority” status shortly after the contract was executed. These were valid actions on the part of the municipal corporation, in that sufficient steps were taken to insure that the operation of the sewage treatment plant would be in accordance with the health and safety standards of the community. The agreement thus became a binding and enforceable contract, at least after the developer spent substantial sums in reliance thereon. See 11 McQuillin on Municipal Corporations, § 31.13 (3d. ed.); Mayor and City Council of Baltimore v. Crane, 277 Md. 198, 352 A. 2d 786 (1976). Williamsport v. Washington County Sanitary District, 247 Md. 326, 231 A. 2d 40 (1967); City of Rockville v. Brookeville Turnpike Const. Co., 246 Md. 117, 228 A. 2d 263 (1967).

While the county council has the power to amend the Master Plan they cannot arbitrarily impair contract rights. A contract which ties the hands of the council in the valid exercise of their police power, is invalid and will not be upheld, Baylis v. City of Baltimore, 219 Md. 164, 148 A. 2d 429 (1959), but this is not the case here. This contract insured the Harford County community that the sewage treatment plant would meet Health Department regulations with total financial responsibility on the developer. The hindrance by one contracting party which impedes or prevents performance by the other constitutes a breach. Funger v. Mayor of Somerset, 249 Md. 311, 330, 239 A. 2d 748 (1968).

A suit for specific performance or for an injunction, based upon a municipal contract may be prosecuted where the legal remedies are Inadequate, or where other grounds for equitable relief are alleged. 10 McQuillin on Municipal Corporations, § 29.128 (3d. ed.); Cohen v. Baltimore County, 229 Md. 519, 185 A. 2d 185 (1962); City of Bowie v. Area Development Corp., 261 Md. 446, 276 A. 2d 90 (1971) and Board of County Commissioners of Harford County v. MacPhail, supra. In this case the appellees have purchased the subject property in reliance on their being permitted to build the sewage treatment plant. Without that plant their intention to build the mobile home park would be frustrated. Large sums of money have been spent by the appellees to purchase the property and begin construction because of the justified belief that they would be allowed to construct the treatment plant within the terms of the contract. The appropriate relief under these facts is the injunctive relief granted by the trial judge. Charles Co. Broadcasting v. Meares, 270 Md. 321, 311 A. 2d 27 (1973).

II. Final zoning subject to a contingency cannot be amended by a collateral action of the Circuit Court for Harford County after all time for administrative appeal has expired._

Under this heading appellants argue that the effect of the injunction is to amend the zoning condition which was imposed by the Board of Appeals. We do not see it that way. The only question before us is the validity of the action of the county council in removing the subject property from its priority status in the Master Plan. Whether the point of discharge for the sewage plant is eventually located on the east branch of the James Run or at the conflux of the James Run and Broad Run is not before us. We do note that the zoning condition was specifically made subject to Health Department approval.

III. The action contained in the injunctive order is not permissible for the benefit of the petitioners. in equity who have acted in bad faith.

The appellants alleged the Wilsons showed bad faith by securing an agreement with the Harford County Metropolitan Commission and the County Commissioners of Harford County which did not comply with the conditions as to location of the outfall as required by the Board of Appeals. This argument was quite adequately answered by the trial judge:

“It does not appear that Defendants have established that any false representation has been made. The evidence reveals that a staff report prepared for the Metropolitan Commission relative to the Public Works Agreement had a copy of the Board of Appeals decision attached which clearly shows the third condition imposed concerning the point of discharge. The agreement itself is drafted broadly enough to include both points of discharge and includes provisions for the County to assist in acquiring any necessary rights of way to fulfill the agreement. In view of the information available to the Commission, this Court cannot find that any false statements of fact were made by the Wilsons.”

In addition, appellants argue here that appellees have shown bad faith in not applying to the Health Department for approval of the location of the plant outfall in accordance with the zoning condition. Assuming without deciding, that the zoning condition necessarily required that the outfall be located at the conflux of the James Run and Broad Run we do not see bad faith. There would have been time to work out the problems with the Health Department and the Board of Appeals had the county council not amended the Master Plan, thus precluding further action.

IV. Motion to Dismiss

The appellees have incorporated in their brief a motion to dismiss the appeal on the ground that the appellants failed to print a record extract which complies with the provisions of Rule 1028 b 1. The appellees state that the failure on the part of the appellants to comply with this rule has necessitated the filing of an 85 page appendix with the appellees’ brief. No other prejudice is alleged.

Rule 1035 b 5 provides that “[o]n motion filed by any party, an appeal may be dismissed. . . [because] [t]he contents of the printed record extract do not comply with section b. of Rule 1028.” Rule 1028 b 1 requires the extract contain such parts of the record as may reasonably be necessary to determine the questions presented.

The appellants’ contentions concern the power and propriety of the lower court’s decision to overturn the decision of the county council. In their record extract the appellants included the opinion and order of the court, the bill of complaint, the public works agreement, four letters, and the testimony of Saunders M. Almond, Jr. These are not sufficient for us to make a determination of appellants’ contentions. The appellees have included the omitted parts of the record in the appendix to their brief. As the appellees have elected to supply in their appendix the material omitted, the omissions on the part of the appellants were not a deliberate attempt to mislead the Court or violate the rule, and the appellees do not appear to have been prejudiced, we deny the motion and impose the cost of printing the excess material on appellants regardless of the outcome of the case. See Williams v. Johnson, 261 Md. 463, 276 A. 2d 95 (1971); Bornstein v. State Tax Commission, 227 Md. 331, 176 A. 2d 859 (1962) which interpret the rules applicable to the Court of Appeals in a similar fashion.

Motion to dismiss appeal denied.

Decree affirmed.

Appellants to pay the costs.

      . On November 7, 1972 Harford County voters approved the Charter form of government, thus abolishing the County Commissioners and establishing the County Council.


author: Lowe, J.,

text:
    RICHARD EDWARD HERBERT v. STATE OF MARYLAND
    [No. 745,
    September Term, 1975.]

      Decided March 31, 1976.

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

      Robert Gordon King. Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Thomas J. O’Connell, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

House or Home

In Waugh v. State, 20 Md. App. 682, rev’d 275 Md. 22, we faced the question of wrhether a suitcase was more like a car or a house. We are faced here with the issue of whether a motel room is a dwelling capable of being burglarized or a storehouse which can be merely broken, or — as the State would have us rule, both.

On May 23, 1975, after a trial before the Circuit Court for Baltimore County, sitting without a jury, Richard Edward Herbert was found guilty of burglary under the common law and Md. Code, Art. 27, §§ 29, 30, 31 and of “Attempted Storehouse etc. Breaking” under Art. 27, § 342. These convictions rested largely upon the testimony of four Baltimore County policemen who were assigned to a “stakeout” at the Continental Motel due to “a recent rash of burglaries” that had plagued that establishment. Officer Barker, who presumably had the best vantage point at the stakeout, testified that during the early morning hours of September 15, 1974, he saw a black male park a 1974 Oldsmobile automobile in the motel parking lot, walk up to room 76 of the motel complex and unsuccessfully attempt to open the door. The suspect then walked down a row of motel rooms, turning the knobs on each door, until he reached room 66 which was unlocked, whereupon he entered the room for three or four minutes. After leaving room 66 the suspect continued walking along the row of motel rooms, turning doorknobs, until a car pulled into the parking lot and the driver entered room 66.

The suspect then continued trying the motel room doors, as he walked toward room 76 where he stopped and again attempted to open the door, this time with what appeared to be a key. After a third unsuccessful attempt to unlock room 76, the suspect entered his car, but was arrested before leaving the motel complex. He was subsequently identified as Richard Edward Herbert. A search of his person at the time of his arrest revealed three room keys from a Baltimore City motel, the key to room 76 of the Continental Motel, and a yellow flashlight. A further search of the car resulted in the finding of a bag containing twelve more motel keys.

The most troublesome issue among the seven that the appellant has raised is the contradiction of the elements of the two offenses of which he was convicted, burglary of room 66 and attempted storehouse breaking of room 76. It appears from the convictions below and from the Maryland case law on the issue, that prosecutors as well as judges may be confused as to the distinction between a “dwelling” which is an element of the crime of burglary, and “any shop, storehouse, tobacco house, warehouse, or other building”, an element of attempted storehouse breaking.

But for the fact that room 66 was rented that evening, the State produced no evidence at Herbert’s trial that room 76 was used for different purposes than room 66. Both seem to be ordinary motel rooms designed and used for the same purpose. It is apparent that either both rooms are “dwellings” or both are “other buildings” under the storehouse breaking statutes, Md. Code, Art. 27, §§ 32, 33, 342. We have faced this dilemma before although never have we had simultaneous convictions of both crimes regarding similar rooms in the same motel. As we stated in Marston v. State, 9 Md. App. 360, 363,

“The clearest test of what is a dwelling house is in Poff v. State, 4 Md. App. 186, 189 . . . :

‘The test as to whether or not a building is a ‘dwelling house’ is whether or not it is used regularly as a place to sleep. No building becomes a ‘dwelling’ by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there, as in the current appeal.’ ” Perkins, Criminal Law, Ch. 3, § 1 C (1), at 158, 2 Wharton, Criminal Law and Procedure, § 433 at 45,13 Am. Jur. 2d Burglary § 3 at 321, Clark and Marshall, Law of Crimes, § 13.01 at 874.

Perkins, in his volume on Criminal Law, 2d ed., Ch. 3, § 1, p. 207, states:

“If a house is habitually used as a place where persons sleep, it is properly to be regarded as a dwelling even if no one who lodges there has a sufficient interest therein to establish it as his dwelling. Thus a hotel is a dwelling house even if all the inmates are transients, and the proprietor and his family and servants all sleep elsewhere.” (Emphasis added).

The State produced evidence from which it could be inferred that the motel complex was utilized for overnight sleeping accommodations by paying guests and thus met its burden of proving the “dwelling house” element of burglary beyond a reasonable doubt, as was required to convict appellant of burglary of room 66, (Count I).

Not every room of a multiple unit “dwelling house” need be classified as a dwelling. In Arnold v. State, 7 Md. App. 1, the basement of an apartment house which was divided into storage areas for the tenants was held to be a storehouse and not a dwelling; and, in Poff, supra, a vacant apartment used simply as a place in which to keep furniture pending rental was found to be a storehouse and not a dwelling. Also in Jones v. State, 2 Md. App. 356, part of a building used as a club was deemed a storehouse although another part, used as an apartment, was a dwelling.

But, having proven one room of the motel to be a dwelling house, the State may not then designate another room a storehouse without further proof. There was no evidence at trial that room 76 varied in use or purpose from any other room in the motel. The proof by the State that the motel rooms were overnight places of repose, upon which was based the conviction under Count I, may not be disregarded in order to convict appellant of a different charge under Count V. If the prosecution contends that one room of a proven dwelling house is severable because it is used as a storage area, e.g., Arnold and Jones, supra, it must prove this “beyond a reasonable doubt.” The State may not make soup of one and sauce of the other without adding an additional ingredient. We will reverse the conviction under the fifth count, attempted storehouse breaking and vacate the (suspended) sentence. United States v. Gaddis, 18 Cr. L. 3079 (decided 3/3/76).

Sentencing Considerations

At sentencing, the trial judge chose to consider factors which the Court of Appeals in Johnson v. State, 274 Md. 536, has held to be improper sentencing considerations. In Johnson, supra, at 542-544, the Court said:

“Even though we firmly believe that the judge at sentencing can and should take into account a broad spectrum of considerations, there do exist, in order to protect the fundamental rights of the offender, restrictions on this latitude. Thus, in view of what is at stake for one who is charged with a crime, it is improper to conclude that a decision, constitutionally protected, not to plead guilty and in doing so to require the State to prove the defendant’s guilt beyond a reasonable doubt, is a factor which ought to, in any way, influence the sentencing judge to the detriment of the accused. In the case now before us, when Judge Powers said, ‘if you had come in here with a plea of guilty . . . you would probably have gotten a modest sentence,’ he indicated that he, at least to some degree, punished Johnson more severely because he failed to plead guilty and, instead, stood trial. Although a reading of the judge’s remarks in full does not necessarily demonstrate that a more severe sentence was imposed, the words just quoted manifest that an impermissible consideration may well have been employed. Any doubt in this regard must be resolved in favor of the defendant. Accordingly, our part in the administration of justice requires that we find that a consideration of Johnson’s failure to plead guilty was impermissible because a price may not be exacted nor a penalty imposed for exercising the fundamental and constitutional right of requiring the State to prove, at trial, the guilt of the petitioner as charged. This is as unallowable a circumstance as would be the imposition of a more severe penalty because a defendant asserted his right to counsel or insisted on a jury rather than a court trial.

The words of Judge Weinfeld in United States v. Tateo, supra [214 F. Supp. 560] at 567 are particularly instructive:

‘No matter how heinous the offense charged, how overwhelming the proof of guilt may appear, or how hopeless the defense, a defendant’s right to continue with his trial may not be violated. His constitutional right to require the Government to proceed to a conclusion of the trial and to establish guilt by independent evidence should not be exercised under the shadow of a penalty — that if he persists in the assertion of his right and is found guilty, he faces, in view of the Trial Court’s announced intention, a maximum sentence, and if he pleads guilty, there is the prospect of a substantially reduced term. To impose upon a defendant such alternatives amounts to coercion as a matter of law.’

This same principle was succinctly stated by the Supreme Judicial Court of Massachusetts in Letters v. Commonwealth, supra, 193 N.E.2d [578] at 580, as follows:

‘But, plainly, a defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he has done so should be given no weight in determining his sentence.’ (emphasis added).”

(Emphasis partially added; footnote omitted).

At two junctures during the penalty phase of the proceedings, the trial judge clearly indicated that he had considered “the fact that the man has maintained his innocence throughout.” He first pointed out to Herbert and his counsel what bothered him about appellant’s attitude:

“I do have one question which troubles me a great deal. I think I have every right to consider, and also think I have a duty to let it be known that, Mr. Herbert, one of the factors in any case, and I understand your argument, and think there is logic in what you say, but I think a Judge has to consider and prosecution has to consider the fact that the man has maintained his innocence throughout. I have heard one of the Judges from the bench say that the first step toward rehabilitation is admitting there’s been some criminal involvement. I don’t think that a man has to come in and say I did it, and lay down and ask sympathy. That is not required. It’s a delicate problem — a philosophical problem, but the evidence in the case as far as I was concerned was really overwhelming.”

Apparently counsel’s argument in response did not dispel that concern. At allocution, the court’s colloquy with the appellant emphasized its continued preoccupation with the forbidden consideration:

“All right, Mr. Herbert, before a judgment is imposed or sentence in any case, a Defendant must have an opportunity to make a statement. I’ll be glad to hear from you anything you wish to say before I impose sentence.
THE DEFENDANT: Your Honor, I don’t have anything to say. I really feel I am in a position where I can rehabilitate myself some if I’m allowed to go out on the street, and also in a position if I admit that I am guilty it may affect any appeal I might have.
THE COURT: I’m not asking you to do that. I realize it is a dilemma. 1 want you to understand it is a dilemma that every Defendant faces. There is no question about it. I am not asking you to do that, but it is also a factor in this scale we use. We use a big scale, and we put lots of things into it, and one of the things I have a difficult problem with, and you have a problem too — all Defendants also —
THE DEFENDANT: But, Your Honor, I should say I am in a position where I think I can rehabilitate myself.
THE COURT: Mr. Herbert, this is a very difficult case — very unfortunate case. I might say to you that what I am about to do is not an effort to convince you that I am right. I do not have that responsibility. If a Judge had to convince every Defendant that the verdict was right, no Judge would ever render any verdict, because he’d never be able to do that, but I think it is the right one. I am just giving my reasons; I think you are entitled to know why you are being sentenced, and what for.” (Emphasis added).

The mandate of Johnson is clear. The protestations of innocence throughout the trial must not influence sen- , tencing “in any way.”

Although the Court of Appeals reversed this Court on this issue in Johnson, it did not find it necessary to reverse the conviction and remand the case for retrial as prayed by appellant here. The Court of Appeals instructed us “to vacate only the sentence which was imposed . . . and then remand the case .. . with direction that it impose a new sentence arrived at in conformity with this opinion.” We shall do the same.

Further Grounds Without Merit

We have carefully reviewed the record and find appellant’s remaining questions to be without merit:

I

The complaint that the record does not disclose a knowing and intelligent waiver of a jury trial is answered precisely in Miller v. Warden, 16 Md. App. 614, 628; see also Williamson v. State, 25 Md. App. 338.

II

Appellant contends that the proof of burglary was insufficient to convict because of a lack of proof of felonious intent. The intent here was proven by the circumstances (surreptitiously trying to open doors at night and possession of a number of motel keys). It is not necessary that goods actually be taken to prove the intent to steal. Barnette and Crawford v. State, 5 Md. App. 5; Sparkman v. State, 3 Md. App. 527.

III

There is no duty to advise a criminal defendant of his right to move for a new trial. Dorris v. Warden, 222 Md. 586; United States v. Follette, 358 F. 2d 922.

IV

We have consistently held that the issue of effective assistance of counsel may not be reviewed for the first time on appeal. Md. Rule 1085. White v. State, 17 Md. App. 58; Bailey v. State, 6 Md. App. 496, 510.

V

Appellant complains that the State’s Attorney made certain prejudicial remarks at sentencing. No objection was made and the issue was not preserved for review. Md. Rule 1085.

Count five of Indictment No. 49790, judgment reversed.

Count one of Indictment No. 49790, judgment affirmed, but sentence vacated.

Case remanded for imposition of new sentence in conformity with this opinion.

      . Although the State further proved through the testimony of the motel owner and the occupant of room 66 that room 66 was occupied on the night of the incident involved here, that proof was relevant only as to whether the room was generally used as a place to sleep. The proof that a named individual occupied the room on the evening in question is not evidence, by itself, sufficient to make a motel room a “dwelling house,” for “[n]o building becomes a ‘dwelling’ by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there....” Poff, infra, at 189. It is the overall testimony and general knowledge of the purposes served by a motel that made it a dwelling house under the burglary law.


author: Davidson, J.,

text:
    FRANCES TERESA SARTOPH v. LEE IRVIN SARTOPH
    [No. 751,
    September Term, 1975.]

      Decided, March 31, 1976.

    The cause was argued before Moylan, Davidson and Melvin, JJ.

      Michael I. Gordon, with whom were Smullian & Gordon on the brief, for appellant.

      Morton Edelstein, with whom were Lawrence M. Stahl and Edelstein & Getlan on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 19 September 1965, the appellant, Frances Teresa Sartoph (mother), married the appellee, Lee Irvin Sartoph (father). One child, Ronald Tobias Sartoph, was born of this marriage on 1 March 1966. On 28 August 1969, the parties voluntarily separated and in a separation agreement dated 30 September 1969, agreed that the mother should have custody of the child. On 16 April 1971, in the Circuit Court No. 2 of Baltimore City, the father was awarded an absolute divorce on the ground of a voluntary separation. The decree, in pertinent part, incorporated the 30 September 1969 separation agreement, and awarded custody of Ronald to the mother.

In 1969, while the parties were separated, but before they were divorced, the father met and started dating his present wife, Teresa Gail Sartoph, whom he married in June, 1971. A child, Mordechai, was born to them in 1974.

In October, 1971, the mother met James Robinson. A sexual relationship developed. In October, 1972, the mother and Ronald moved into Robinson’s one bedroom apartment. In November, 1972, the mother married Robinson. In January, 1973, they separated. In August, 1974, the mother obtained a divorce from Robinson on the ground of a voluntary separation.

In June, 1973, the mother, separated but not yet divorced from Robinson, met Dante Gentlilucci (lover), a married man with three children. A sexual relationship developed. Occasionally, they engaged in sexual intercourse in the mother’s home, in which Ronald was residing.

On 21 January 1974, the father filed a petition in the Circuit Court No. 2 of Baltimore City, alleging that the mother was not a fit and proper person to have custody of Ronald and seeking custody of the child for himself. On 28 January 1974, the mother filed an answer and a petition for modification of the decree as to child support.

Thereafter, the mother prohibited her lover from coming to her apartment although she continued to meet him on occasion outside her home. On no occasion, however, did she stay away from her apartment overnight. Ultimately, the lover separated from his wife and became engaged to the mother.

After a hearing on the father’s custody petition, held on 12 May 1975, the chancellor said in pertinent part:

“I have . .. sized up the former Mrs. Sartoph. I have considered her relationship with Mr. Gentlilucci and dating him, although she knew he was a married man, and having sexual relations, and that she is still seeing him, and I give that a great deal of weight. I think it is significant . . . [that] from the time ... the petition [for change of custody] was filed . .. suddenly her relationship changed .... What I am really saying is, I think what the Courts are saying, and not so much what the child sees and what the child knows, that when a person commits adultery, it is a serious violation of the sacred state of marriage, and that reflects on the moral character of the person in such a strong way in our law that it has a very strong and significant bearing on what is in the best interest of the child in terms of the moral climate. The Courts talk about a clean and wholesome atmosphere and maintaining the rules of proper social conduct, and even though, as Mr. Gordon has been arguing, that the wife is entitled to live her life, I certainly find that what the Court is saying, and I am bound by what the Court of Appeals is saying, that in spite of what may be sophisticated and outward logic on this matter is concerned, we still look in terms of a wholesome atmosphere, devotion man to wife, and even though we are more and more, day by day, and month by month accepting people who live together without the benefit of clergy, and we don’t frown as much as we used to do at the birth of illegitimate children, still I think basically our society’s logic is the idea of a clean and wholesome atmosphere and a dean and moral conduct.
“I am also mindful of the fact the Court of Appeals has held in the Hild case that there is a presumption that a person who commits adultery is ... an unfit parent for a child, and . . . they require a strong showing to overcome that.” (Emphasis added.)

Finding the father to be a fit and proper person to have custody of Ronald, the chancellor indicated that he would award custody to the father.

On 29 May 1975, the mother moved for a rehearing, averring that in order to avoid trauma, Ronald had not been called to testify at the first hearing, but that upon being told of the chancellor’s decision, he had become hysterical, and wanted an opportunity to tell the judge that he objected to a change in his custody. The motion was granted and on 16 July 1975 a further hearing was held.

Ronald testified that, while both his parents loved him and had nice homes, he would rather stay with his mother than his father “because it seems like there’s more kids my age at my mother’s, and 1 can go to school and everything, and everything is real close, and I could walk to it.” Mrs. Sartoph testified that after the 12 May 1975 hearing she terminated her relationship with her lover and did not intend to see him again because “my son is more important to me."

At the conclusion of that hearing, the chancellor said:

“I’m pretty convinced in this case that I made the right finding, even though it is not finalized in a decree. I remember this case very vividly, and I have had some feeling in the last two years in these cases that perhaps the Court of Appeals decisions have not caught up, even if that’s a wise thing to do, with the modern concepts that people are accepting. People are living together now without benefit of marriage, and living openly, and it’s aboveboard and in the best circles it’s being accepted as a common sense approach; however, I still think that the majority of the people in this country are opposed to that style of living, and then one judge or another might have a difference with respect to whether it’s moral or whether it’s a sensible thing to do. I feel in this case as I do, that I have to follow the dictates of a higher court, and I have used those decisions in this case as well as others.
“I’m convinced that as the law now stands, if a wife is guilty of a serious misconduct, or a husband, and the Courts do consider living together without benefit of marriage misconduct, and still do. That’s a very significant factor for the Court to consider. There have, and as I said before, when I was practicing law, if you prove the wife committed adultery on one night, she lost custody of the children. I think that’s absurd, and we have come away from that concept.
“However, the Court of Appeals has said that if the wife recognizes her misconduct and the Court is satisfied that she understands it was wrong and the relationship has ended, then you would give either party custody of the child, and I keep saying wife, but also applies to the father.
“In this particular case I didn’t award the custody to the mother, because the wife was guilty of an act of adultery, because in this case we had, as I reviewed my notes, Ms. Sartoph’s style of living which has been consistently incompatible with our standards of morality as the Court of Appeals has announced, because in her relationship with Mr. Robinson, and it was an adulterous relationship, and the child was involved in that, and one other man whose name escapes me, the child was involved in that, and Mr. Gentlilucci was a married man with three children. He was seeing her while he was married, and finally left his wife.
“All of that is not just a question of ‘committing adultery.’ This is a consistent pattern of conduct which has not been accepted. I don’t want to call it immoral because there are views on that, but as far as the Court of Appeals is concerned, that is not the kind of conduct that our courts have accepted.
“In view of that, even if I found that the relationship has ended and I have some feeling about that, it would not in my opinion, change our finding, . . . Mr. Sartoph impressed me as a very sincere and committed father to this child, and I make that a very significant part of my finding.
“I would also have to say that after talking with Ronnie in chambers, a very bright kid, and very understanding kid, he convinced me that he’s happy with his father, even though I recognize he would prefer to stay with his mother, but the reason for that does not seem to be at all significant.
“So, looking at the totality of the evidence, I am convinced that the best interest of this child would be served by having the custody awarded to the father, and I’m asking that the decree be drawn up that way.. ..”

On 17 July 1975, the chancellor entered an order awarding custody of Ronald to the father, and providing a detailed schedule of visitation rights for the mother, to which both parties agreed. It is from that order that this appeal is taken.

The sole question on appeal is whether the court erred in transferring custody of Ronald, then age nine, to the father. The mother primarily contends that the trial court’s finding that she was an unfit and improper person to be awarded custody of the child was clearly erroneous. She maintains that her son had been with her all of his life and that she has always cared for him properly. She points out that her uncontradicted testimony shows that after January, 1974, her illicit relationship with her lover was confined to meetings away from her home, so that it was totally hidden from her son, and that after 12 May 1975, the illicit relationship was terminated. She argues that this evidence was sufficient to overcome the presumption of unfitness which arose from her previous illicit behavior. She concludes that under the circumstances there was no justification for a change in the child’s satisfactory and successful environment.

In custody cases we have repeatedly limited the applicability of the “clearly erroneous” rule to the factual findings underlying the chancellor’s conclusions as to what constitutes the best interests and welfare of the child, reserving the right to exercise our own best judgment as to the appropriateness of that conclusion. Under the facts of this case, we have determined that the chancellor’s implicit finding that the mother was unfit to have custody of the child was clearly erroneous.

An adulterous parent is presumed to be unfit. The presumption is rebuttable and, when rebutted, custody may be awarded to the transgressing party. The presumption of unfitness is overcome by a showing that the adulterous party has repented, has terminated the adulterous relationship, and has changed his or her errant ways so that there is little likelihood of a recurrence of past indiscreet behavior. Indeed, this Court has recognized that the presumption is overcome, even where an otherwise fit mother is required by decree to terminate her association with her lover, as a condition of keeping her children in the future. In so doing, we acknowledged that an otherwise fit mother who understands full well that she must give up her lover in order to keep her child, and terminates her illicit relationship, has sufficiently repented and changed her errant ways. Her knowledge that a repetition of her past indiscretions will result in the loss of her child makes a recurrence highly unlikely. Thus, the presumption of her unfitness is overcome.

Here, the record clearly establishes that the mother had engaged in at least one illicit sexual relationship. The presumption of unfitness arose. There was, however, uneontradieted evidence to show that when, in May, 1975, the mother finally understood that she must give up her lover in order to keep her child, she voluntarily terminated her illicit relationship. This evidence clearly established not only that she had repented and changed her errant ways, but also that a recurrence of her past indiscretions was unlikely.

Moreover, there was much evidence to show that in all other respects the mother was a fit and proper person to have custody of the child. The general surroundings m which the child lived were pleasant. There was a loving relationship between the child and his mother. He was happy, healthy, well-adjusted and emotionally stable. He was doing well not only at home but also at school, where he achieved academically and was accepted by his peers. He was successfully studying Hebrew and piano and participated in Little League Baseball. His mother was integrally involved in all of his activities.

In a letter dated 9 January 1975, Ronald’s pediatrician stated that the child “was examined today and found to be in good physical and emotional health.” In a letter dated 29 January 1975, Ronald’s Hebrew teacher stated that he “is very bright and clearly enjoys his studies,” “shows enthusiasm for his other activities,” and “seems to get along well with his peers.” In a letter dated 12 January 1975, Ronald’s third grade teacher stated that he did third grade level math and reading, participated in group discussions, played with other children, and initiated conversations with the teacher. Ronald’s school report card for the first semester demonstrated a high level of performance.

Ronald himself said he preferred to live with his mother. Moreover, the father conceded that Ronald was not living in a “bad environment” at the time of the 12 May 1975 hearing.

In our view, the chancellor erroneously failed to consider that in May, 1975, the mother, in order to avoid the loss of her son, terminated her relationship with her lover, who by then was separated from his wife, and to whom she was by then engaged. The absence of any evidence to show that after 12 May 1975 the mother continued to engage in an illicit relationship, or that her previous indiscreet behavior had had any adverse effect on her child, coupled with the abundant evidence that in all other respects the mother was a fit and proper person to have custody of the child, constitutes a “strong showing” rebutting the presumption of the mother’s unfitness. Consequently, the evidence failed to support the chancellor’s implicit finding that the mother was unfit.

Accepting the chancellor’s finding that the father was a fit and proper custodian of the child, the question now before us is whether, in our best judgment, the chancellor’s award, which transferred Ronald’s custody from the mother to the father, serves Ronald’s best interests.

The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not of the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests.

Here, the record shows that Ronald has been in the care and custody of his mother his whole life. Since the separation of the mother and father, during the school year he has spent weekdays with the mother and alternate weekends with the father. He spent the last summer with the father, and planned to spend the next summer with him as well. Under this arrangement, Ronald has grown into a healthy, emotionally well-adjusted child, who is doing well at home and at school.

In the absence of any evidence that the mother is presently unfit to care for this child, or that the child is experiencing any kind of difficulty, there is nothing in this record which justifies a change in custody. The stability to be provided by a continuation of the child’s present relationship with his mother in his successful living environment far outweighs any alleged advantage which might accrue to him as a result of a custodial change.

On the basis of the record before us, we are persuaded that an award changing custody from the mother to the father is not in the best interests of Ronald. Accordingly, the decree awarding custody of Ronald to the father will be reversed. The case will be remanded to the trial court for the purpose of determining whether child support should be increased, as well as the extent of the father’s visitation rights.

Decree reversed.

Case remanded for further -proceedings in accordance with this opinion.

Costs to be paid by appellee.

      . Barsallo v. Barsallo, 18 Md. App. 560, 565, 308 A. 2d-457, 460 (1973); Mullinix v. Mullinix, 12 Md. App. 402, 412, 278 A. 2d 674, 680 (1971); Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A. 2d 698, 700-01 (1971).

      . Palmer v. Palmer, 238 Md. 327, 331, 207 A. 2d 481, 483 (1965); Hild v. Hild, 221 Md. 349, 358, 157 A. 2d 442, 447 (1960); Pangle v. Pangle, 134 Md. 166, 170, 106 A. 337, 338 (1919); Widdoes v. Widdoes, 12 Md. App. 225, 235, 278 A. 2d 100, 105 (1971); see Pontorno v. Pontorno, 257 Md. 576, 580-81, 263 A. 2d 820, 822 (1970).

      . Neuwiller v. Neuwiller, 257 Md. 285, 286, 262 A. 2d 736, 737 (1970); Kauten v. Kauten, 257 Md. 10, 12-13, 261 A. 2d 759, 761 (1970); Cornwell v. Cornwell, 244 Md. 674, 679, 224 A. 2d 870, 873 (1966); Mullinix, supra, 12 Md. App. at 411, 278 A. 2d at 679; see Orndoff v. Orndoff, 252 Md. 519, 522, 250 A. 2d 627, 628 (1969).

      . Kauten, supra, 257 Md. at 12-13, 261 A. 2d at 761; Hild, supra, 221 Md. at 358, 157 A. 2d at 447; Oliver v. Oliver, 217 Md. 222, 228-30, 140 A. 2d 908, 910-12 (1958); Trudeau v. Trudeau, 204 Md. 214, 221-22, 103 A. 2d 563, 566 (1954); Widdoes, supra, 12 Md. App. at 235-36, 278 A. 2d at 105.

      . Mullinix, supra, 12 Md. App. at 411, 278 A. 2d at 679.

      . We recognize that in Maryland, fornication, that is, sexual relations between two unmarried persons, is not a crime, so that participation in such a relationship may not constitute illicit conduct. Whether before their marriage, the divorced mother’s relations with Robinson, a single man, constituted illicit conduct, raising a presumption of unfitness, need not be decided here because ultimately the divorced mother engaged in a sexual relationship with Gentlilucci, a married man. In Shanbarker v. Dalton, 251 Md. 252, 257 A. 2d 278, 281 (1968), the Court of Appeals held that “[r]egardless of legal hair-splitting on the definition of adultery,” the presumption of unfitness arises when a divorced mother has a sexual relationship with a married man.

      . Krebs v. Krebs, 255 Md. 264, 266-67, 257 A. 2d 428, 429 (1969); Kramer v. Kramer, 26 Md. App. 620, 623, 339 A. 2d 328, 331 (1975); Sullivan, supra, 12 Md. App. at 5, 276 A. 2d at 701.

      . Hardisty v. Salerno, 255 Md. 436, 438, 258 A. 2d 209, 210 (1969); Winter v. Crowley, 231 Md. 323, 331, 190 A. 2d 87, 91 (1963); Kramer, supra, 26 Md. App. at 623, 339 A. 2d at 331; Peterman v. Peterman, 14 Md. App. 310, 320-21, 286 A. 2d 812, 819 (1972); Sullivan, supra, 12 Md. App. at 5, 276 A. 2d at 701.

      . J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973).


text:
    STATE OF MARYLAND v. DAVID EDWARD WARD
    [No. 759,
    September Term, 1975.]

      Decided March 31, 1976.

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

      Gilbert II, Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County and Ronald G. Scheraga, Assistant State’s Attorney for Montgomery County on the brief, for appellant.

      Burt M. Kahn, Assigned Public Defender, with whom were Kaplan, Smith, Joseph, Greenwald & Laake on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

A decade ago the General Assembly, recognizing the considerable discrepancy in imposing punishment upon conviction of criminal offenses, appreciating the need for reasonable uniformity in sentencing practices, and aware of the problems arising from sentence disparity, enacted legislation to alleviate the situation. Chapter 288, Acts 1966, by legislative direction to be implemented by appropriate rules of procedure promulgated by the Court of Appeals, established a procedure for review of criminal sentences. As subsequently amended the statute is now codified as Art. 27, §§ 645JA-645JG and is implemented by Maryland Rule 762. The appeal before us presents a question basic to this procedure — when can it be invoked? Although the question was raised and decided below, and briefed and argued on appeal, we may not answer it. We are obliged to leave the bench, prosecutors, defense counsel and those persons most directly affected — convicts under sentence, in a quandary. We have no authority to entertain the appeal. We must dismiss it without consideration of the merits of the substantial question posed.

The appeal travelled this path to us. On 9 May 1974, in the Circuit Court for Montgomery County, David Edward Ward made a judicial confession by way of a plea of guilty to the first count of the indictment returned against him, which presented that on 3 October 1973, in the daytime, he unlawfully broke a dwelling house with intent to steal the personal goods of another. The plea was accepted by McAuliffe, J., who then found Ward guilty of the offense. On 6 September 1974, upon receipt of a pre-sentence investigation report, sentence was imposed. Ward was committed to the jurisdiction of the Division of Corrections for three years. The execution of the sentence was suspended, and he was placed on probation for three years under the usual general conditions with special conditions specified. On 17 March 1975 the State filed a petition alleging that Ward had violated the terms of his probation contract by leaving his residence and employment without the consent of the probation agent, which was prohibited by general condition 6, and by failing to make restitution as required by special condition 2. On 22 April 1975, upon motion by the State and order of the court, another allegation was added to the petition, namely, that on 4 April 1975 in the Circuit Court for Montgomery County, Ward had been convicted of attempting to break a storehouse on 30 January 1975 and sentenced to one year. On 22 April 1975 the petition was heard in the Circuit Court for Montgomery County, McAuliffe, J. presiding. Ward was found to have violated the conditions of the probation. Probation was revoked, and the suspension of the execution of the sentence was stricken. Ward was remanded to the custody of the Division of Corrections to serve the three year sentence imposed on 6 September 1974. On 24 April 1975 he filed a petition for a review of the sentence, and a three judge review panel was appointed. Code, Art. 27, § 645JA. The petition was heard by the panel on 3 July 1975. On 8 July the members of the panel issued an order declaring that it was their unanimous opinion, concurred in by McAuliffe, J., that the sentence imposed on 6 September 1974 for a term of three years remain unchanged. The order continued:

“After serving eighteen (18) months accounting from April 22, 1975, which shall be served in the Montgomery County Detention Center, execution of the balance of the sentence is suspended and the defendant may be released on supervised probation, which shall include all of the special conditions imposed by Judge McAuliffe on said September 6, 1974.”

On 28 July 1975 the State noted an appeal in these terms: “The Clerk of the Court will please note an appeal of the review of sentence in the above-captioned case on behalf of the State of Maryland to the Court of Special Appeals.” Ward’s brief includes a motion to dismiss the appeal. Maryland Rule 1036, § d. The motion asserts that the appeal “is not permitted or allowed by law. ...” Rule 1035, § b 1.

Ward claims that there is no right of appeal from an order of a sentence review panel. We so concluded in Glass v. State, 24 Md. App. 76, 79 (1974):

“The appellate jurisdiction of the Court of Special Appeals of Maryland is bestowed by legislative enactment. The statutes provide no right of appeal to that Court by a person from an order of a sentence review panel nor is an appeal from such an order designated to be within its appellate jurisdiction. Under Courts Art. § 12-301 ‘.. . a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.’ A sentence review panel is not a court. ‘ “Circuit court” means the circuit court for a county . . .’ and the courts of the Supreme Bench of Baltimore City. Courts Art. § 12-101 (d). The right of appeal from the order of a sentence review panel is clearly not within the contemplation of Courts Art. § 12-301. Courts Art. § 12-308 specifically designates those actions, cases, causes, suits or proceedings with respect to which the Court of Special Appeals of Maryland has exclusive initial appellate jurisdiction. Proceedings before a sentence review panel is not among them.” (footnotes omitted)

See Johnson v. State, 274 Md. 29, 42, n. 7 (1975). Thus, no person has the right to appeal from the action taken by a sentence review panel with respect to the sentence reviewed.

As we have indicated, the appeal here was noted by the State. The general statutory provision of Courts Art. § 12-301 that a party may appeal from a final judgment entered in a civil or criminal case by a circuit court is limited. Former Code, Art. 5, § 14, provided: “The State may appeal to the Court of Special Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action. . . .” The section was repealed by Acts 1973, 1st Sp. Sess. ch. 2, § 2, effective 1 January 1974, upon revision of the Code, but according to the Revisor’s Note, Courts Art. § 12-302 (c), which replaced it, is essentially the language of Art. 5, § 14. Section 12-302 (c) reads: “In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.” Whether the revised statute makes any substantive change or not, but see Welch v. Humphrey, 200 Md. 410, 417 (1952), it is manifest that the right of the State to appeal in the case sub judice is not authorized by either the former statute or the present statute. But see Ch. 49, Acts 1976, effective 1 July 1976 and to be construed “only prospectively”, codified as Courts Art. § 12-302 (c) (2), authorizing the State to appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the code.

Although the statutory limitation of the right of the State to appeal in a criminal case has been further limited by judicial interpretation, see Lohss and Sprenkle v. State, 272 Md. 113 (1974), there is a recognized exception to the limitation. Two recent cases of the Court of Appeals, State ex rel. Sonner v. Shearin, 272 Md. 502 (1974) and State v. Wooten, 277 Md. 114 (1976), make clear that the State may appeal to the Court of Special Appeals from the denial by a trial court of a motion by the State to correct a sentence alleged to be illegal and imposed upon conviction of a crime committed prior to 1 January 1974. Shearin decided, and Wooten confirmed, that the holding in State v. Fisher, 204 Md. 307 (1954), considered in the light of the language used in Liquor Board v. Handelman, 212 Md. 152 (1957) and the subsequent holding in State v. Jacob, 234 Md. 452 (1964) was authority for an appeal by the State from the imposition of an illegal sentence since “the issue of the trial court’s jurisdiction is involved in the sense of whether it exceeded the powers vested in it by prescribing a penalty contrary to law. A lower court which thus exceeds its power must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error.” 272 Md. at 526.

The question at this point in our consideration is whether the appeal by the State here is with respect to a sentence claimed to be illegal. We first observe that although the panel did not change the term of 3 years imposed by the trial court it did change the sentence as reinstated upon the finding by the trial court that Ward had violated his probation contract. The sentence imposed upon conviction and reinstated by the revocation of probation and the striking of the suspension of execution was that Ward be committed to the jurisdiction of the Division of Corrections for 3 years. The panel modified this by specifying that after serving 18 months in the Montgomery County Detention Center, the balance of the 3 year sentence was to be suspended and Ward was to be released on supervised probation, including all the special conditions specified by the trial court when granting probation when sentence was originally imposed. The sentence as changed by the panel was not illegal on its face. It did not exceed the sentence authorized for the crime of which Ward was convicted, Code, Art. 27, § 30 (b), and it was within the powers of the panel, Code, Art. 27, § 645JC. The sentence would be illegal, however, if the panel had no jurisdiction to review the sentence originally imposed. It is whether the panel had jurisdiction to review that the State seeks to have us decide. It is the issue which goes to the merits of the State’s appeal.

When the hearing before the review panel commenced, defense counsel raised the question of the panel’s jurisdiction. He said that he was “not certain whether the [panel] has jurisdiction to hear this. I don’t know.” He looked to the panel for the answer. The Assistant State’s Attorney told the panel that he was prepared to argue the matter of jurisdiction. The Chairman of the panel interjected: “We don’t have any problem with jurisdiction.” The prosecutor contended that the panel did not have jurisdiction. It was his position, as we understand his argument, that sentence was imposed on 6 September 1974 and that the application for review was not timely because Md. Rule 762, § b 2 requires that the application be made “not later than thirty days after the imposition of sentence.” The panel did not see it that way. The Chairman said: “We don’t agree.” A short time later he said: “The purport is clear now is the time to give him that review.” The hearing proceeded. Ward testified and counsel argued. After a “short recess”, the panel announced its decision which was as reflected in the order later signed.

Ward’s claim that the State has not alleged that the sentence of the panel was illegal is correct. At the time the panel announced its sentence the State interposed no objection and did not indicate in any way that it believed the sentence was illegal. As far as the record before us discloses, the State thereafter took no action to set aside or correct the sentence on the ground that it was illegal, although Md. Rule 764, § a, provides that “ [t]he court may correct an illegal sentence at any time.” All it did was to file a line noting “an appeal of the review of sentence . . .”, and to give a bare citation of Shearin under “Points and Authorities” for the appeal. Even if this be deemed to be an attempt to appeal with respect to an illegal sentence, it is not sufficient to bring the appeal within the exception recognized and applied in Shearin and Wooten. The “court” which is authorized by Md. Rule 764, § a to correct an illegal sentence at any time is the trial court. Md. Rule 5, § i. The Court of Appeals said in Roberts v. Warden, 206 Md. 246, 255 (1955): “[I]f [a trial] court refuses to strike out [an illegal] sentence, its refusal . . . constitute^] action which is appealable to this Court. Madison v. State, 205 Md. 425; Duker v. State, 162 Md. 546, 549; Miller v. State, 135 Md. 379, 382; Dutton v. State, 123 Md. 373.” In both Shearin and Wooten the appeal entertained was from the denial of the trial court of a motion to correct an illegal sentence. Shearin at 507; Wooten at 115. In Shearin the Court held that the appeal was timely taken because it was filed within 30 days of the denial by the trial court of the State’s request for correction of the allegedly illegal sentence, although not within 30 days of the imposition of that sentence. 272 Md. at 521. We believe, therefore, that the right of the State to appeal with respect to an illegal sentence stems, not from the sentence itself, but from the denial of a properly made motion to strike the sentence. The legality vel non of the sentence determines whether the motion was properly denied. But it is the denial of the motion which constitutes the final judgment from which an appeal by the State lies. An appeal before such motion is denied is premature. The short of it is that because there was no denial here of a motion properly made by the State to strike a sentence alleged by the State to be illegal, the appeal is not properly before us. Ward’s motion to dismiss the appeal must be granted.

We observe that we may no longer invoke Md. Rule 1071, as we have at propitious times in the past, in the interests of justice and judicial expediency, to rule on the substantive issue here presented. The Court of Appeals in Eastgate Associates v. Apper, 276 Md. 698 (1976), renounced the practice it had theretofore permitted by its Dackman v. Dackman, 252 Md. 331, 336 (1969) under its Rule 871 and followed by us in Beckward v. Hensel, 20 Md. App. 544, 556, rev’d on other grounds, 273 Md. 426 (1974); Stitzel v. Kurz, 18 Md. App. 525, 540, cert. denied, 269 Md. 755, 761 (1973). And see with respect to Rules 885, Blocher v. Harlow, 268 Md. 571, 585 (1973). Eastgate made clear that there shall be no assumption of appellate jurisdiction in the absence of an appealable order. The Court said: “To the extent that the above-cited cases support an assumption of appellate jurisdiction in the absence of an appealable order, they are disapproved.”

Motion to dismiss appeal granted; costs to be paid by Montgomery County; mandate to issue forthwith.

      . See Report of The Governor’s Commission to Study Sentencing in Criminal Cases (1965) pp. 1-12.

      . The statute was originally codified as §§ 132-138 of Art. 26. They were transferred and renumbered by ch. 2, Acts 1973,1st Sp. Sess.

      . Upon the imposition of sentence the State entered a nolle prosequi to counts 2 through 6 of the indictment which charged related offenses.

      . Section 645JA of Art. 27 provides: “[Njotwithstanding any rule of the Court of Appeals to the contrary, the judge who sentenced the convicted person shall not be one of the members of the panel, but if he so desires he may sit with the panel in an advisory capacity only.”

      . We note that Art. 27, § 645JA provides that “no person shall have the right to have any sentence reviewed more than once pursuant to this section.”

      . In each of Shearin and Wooten the appeal by the State was before the Court of Appeals by way of certiorari to the Court of Special Appeals where the appeal was originally filed. It necessarily follows, we believe, that the Court of Appeals thought that the appeals, for the reasons it expressed in Shearin in finding that the State had the right to appeal, were properly before the Court of Special Appeals. Were the appeals not properly before the Court of Special Appeals, they would not have been properly before the Court of Appeals on certiorari and would have been subject to dismissal rather than to consideration on the merits.

      . As indicated, supra, 1 January 1974 was the date Courts Art. § 12-302 (c) became effective as the revision of the repealed Code, Art. 5, § 14. In both Shearin and Wooten, the crime was committed prior to that date, so they were decided in the light of Art. 5, § 14. In each case, therefore, the Court was not obliged to interpret § 12-302 (c) as it may apply to the right of the State to appeal from an illegal sentence and expressly did not do so. Shearin at 526, n. 6; Wooten at 116.
      In Shearin there was also a petition by the State’s Attorney for a writ of mandamus directed to the trial judge to compel revision of the sentence. The Court of Appeals found it unnecessary to decide the issue presented by the petition for the writ of mandamus. 272 Md. at 504-505 and 519-520.

      . Code, Art. 27, § 645JC provides, inter alia:

      “[T]he panel shall consider each application for review and shall have the power, with or without holding a hearing, to order a different sentence to be imposed or served, including, by way of illustration and not by way of limitation, an increased or decreased sentence, or a suspended sentence to be served in whole or in part, or a sentence to be suspended with or without probation, upon such terms and conditions as the panel may deem just and which could lawfully have been imposed by the sentencing court at the time of the imposition of the sentence under review, or the panel may decide that the sentence under review should stand unchanged;...
      If the panel orders any different sentence, the panel shall resentence and notify the convicted person in accordance with the order of the panel.”

      . At this point a member of the panel commented, according to the transcript of the proceedings submitted to us: “The obvious import of this statute was to avoid the sentence review in every case where it was suspended. If it were not for that, every time someone got ten years and suspended they would come up on a sentence review and simply delay the sentence review to such time the man is actually incarcerated.” Art. 27, § 645JA provides: “[E]very person convicted of a crime after July 1, 1966, by any trial court of this State and sentenced to serve, with or without suspension, a total of more than two (2) years imprisonment in any penal or correctional institution in this State, or sentenced to death, shall be entitled to have the sentence reviewed....”

      . Md. Rule 5, § i reads: “ ‘Court’ means the Circuit Court for any county, the Superior Court of Baltimore City, the Court of Common Pleas of Baltimore City, the Baltimore City Court, the Circuit Court of Baltimore, and the Circuit Court No. 2 of Baltimore City, Criminal Court of Baltimore, but not the Supreme Bench of Baltimore City or the District Court except as expressly otherwise provided, or may result from necessary implication. The word ‘court’ shall include a court of law and a court of equity.” We said in Glass v. State, supra, at 79, in the context of the right to appeal from an order of a sentence review panel that “[a] sentence review panel is not a court.”