text:
    WILLIAM H. MURPHY, JR. v. STATE OF MARYLAND
    [No. 1445,
    September Term, 1979.]

      Decided July 9, 1980.

    The cause was argued before Moore and Couch, JJ., and Jacob S. Levin, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Richard V. Falcon, with whom were Melnicove, Kaufman & Weiner, P.A. on the brief, for appellant.

      Bonnie A. Travieso, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and John L. Norton, III, State’s Attorney for Dorchester County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Defendant-appellant, William H. Murphy, Jr., a member of the Bar with offices in Baltimore City, was charged with direct contempt of court in the Circuit Court for Dorchester County for failure to appear in that court as defense counsel in two criminal trials scheduled for September 6, 1979. On September 14, 1979, the court (Edmondson, J.) issued an Order to Show Cause why defendant should not be held in contempt of court. After a hearing before Judge Edmondson on October 15,1979, defendant was found in direct contempt and fined $1,000.00.

On this appeal, he raises three issues: (a) that his failure to appear in court must be treated as a constructive contempt and not as a direct contempt; (b) that the trial court erred in holding that a defendant in a case of criminal contempt has the burden of proving exculpatory circumstances; and (c) that his failure to appear was not contemptuous.

I

On September 6,1979, two criminal cases were scheduled for trial in the Circuit Court for Dorchester County: State v. Dobson, No. 3803, a murder case; and State v. Price, No. 3796, a "natural resources” case. At 10:00 a.m. the trial judge, the Honorable Charles E. Edmondson, called the first case. The State was present. Ms. Dobson, the defendant, was present but her attorney, Mr. Murphy, was absent. She told Judge Edmondson that she had last seen Mr. Murphy in March when she was released from custody.

John L. Norton, III, the State’s Attorney for Dorchester County, then informed the court that Mr. Murphy had telephoned him the previous evening and had said that, he would not be present for the two criminal trials because of the carry-over of a criminal trial in Baltimore in which he was engaged. Mr. Norton indicated that the State had summoned a number of witnesses from around the State and that they were present to testify in both cases. He also indicated that Mr. Murphy had failed to appear for a pretrial suppression hearing the week before.

Judge Edmondson then related that Mr. Murphy had telephoned him at 9:20 a.m. that morning, forty minutes prior to the scheduled start of trial, had told him that he was involved in a jury trial in Baltimore City, and had said that he could not appear for the two Dorchester County trials.

Called as a witness to explain the scheduling of the two criminal cases, Mrs. Donna Pyle, Chief Deputy Clerk of the Circuit Court for Dorchester County, testified that the September 6, 1979 trial date was set on May 25, 1979 after several telephone calls to Mr. Murphy’s office because "I was informed by that office this was the only date that Mr. Murphy was free.” At that time she was told by the attorney’s secretary that he "felt that he could try both cases [in] one day.” She also testified that, in August 1979, Mr. Murphy was in Mrs. Pyle’s office to discuss another, unrelated case; the September 6th cases were mentioned and "he gave no indication that he would not be here at that time.”

Prior to hearing from the two criminal defendants whom Mr. Murphy was scheduled to represent, the trial judge asked the State’s Attorney to review the law and report back to him so that "we can reach some decision whether or not to cite Mr. Murphy for contempt of court for failing to appear today.”

The defendant in the second case, Gregory Wesley Price, then informed the court that because of the absence of his attorney, Mr. Murphy, he wanted to dismiss his case, an appeal from the District Court. Mr. Price stated that he had not talked to Mr. Murphy for months and that "he has been giving us a run around.” Judge Edmondson thereupon dismissed Mr. Price’s appeal and waived the court costs.

Mrs. Dobson, the other defendant, requested a hearing in chambers, which was held immediately after the court adjourned. At that hearing Mrs. Pyle, the Deputy Clerk, indicated that Mrs. Dobson’s trial could not be rescheduled for another five or six months. Judge Edmondson, who advised Mrs. Dobson to get in touch with Mr. Murphy immediately, also stated:

"We have had such trouble scheduling cases in which Mr. Murphy is involved that we said, 'You pick your trial date and that’s when we will have it.’ That’s what we do and then he doesn’t show up.”

A Show Cause Order issued on September 14, 1979; it ordered Mr. Murphy to appear on October 15, 1979 to show cause why he should not be held in contempt of court. In the Order, Judge Edmondson stated that although a direct contempt may be summarily punished pursuant to Md. Rule P3 (a), he wished "to preserve this Defendant’s right to due process and to therefore give him an opportunity to show cause why he should not be held in contempt. . . .”

At the hearing Mr. Murphy argued that Md. Rule P4, dealing with constructive contempts, and not Md. Rule P3, should apply to the proceedings because his alleged contempt was at most constructive. Judge Edmondson, citing Kandel v. State, 252 Md. 668, 250 A.2d 853 (1969), ruled that the defendant’s failure to appear at trial as defense counsel at the appointed time constituted a direct contempt, punishable summarily. Mr. Murphy then entered an objection to the proceedings, citing alleged denials of due process of law and the right to confront the witnesses against him.

Mr. Murphy explained to the court that he had been representing Samuel Floyd in a murder trial in the Criminal Court of Baltimore on September 6, 1979. He stated that a scheduled August 29th trial date in the case had been delayed two days because the Hicks decision had caused a tremendous backlog in that court. Acknowledging that he had not appeared for the pretrial suppression hearing scheduled for August 31st, Mr. Murphy said that he had called Circuit Court Judge Simpkins to inform him that the Floyd trial conflicted. Mr. Murphy then offered this explanation to the court:

"So, backing up, Wednesday, August the 29th, Samuel Floyd was scheduled to go to trial for murder in the criminal court in Baltimore City. On Wednesday we were notified no court was available, not to go anywhere because one might be imminently available.
"On Thursday no court was yet available. We were told not to go anywhere, a court would be imminently available. And, either Thursday late afternoon or Friday morning I contacted Judge Simpkins to let him know that because they had found a court that I would not be able to be there on the 31st.
"Now the Floyd case continued to Tuesday, September the 4th, Wednesday, September the 5th, Thursday, September the 6th et cetera, et cetera.
"Now once having been started, and once having put Judge Simpkins on notice, I took it for granted, as I felt I had a right to do, that, therefore, this court, because he was sitting in this court, knew that I was involved in a continued jury case. . . .”

According to Mr. Murphy, the State’s Attorney told him on September 5th during their telephone conversation that "everything is going to be alright, no problem.” When he called Judge Edmondson the next morning, he was told that he would be held in contempt of court if he failed to appear. Mr. Murphy "tried to persuade the Court not to do that, and we had a cordial conversation. ... I was convinced that the Court was going to take the action that it did, and turned out to be correct.”

Acknowledging that he never contacted the assignment clerk to inform her of his conflict, Mr. Murphy said "I didn’t know that it was my obligation to call [her].” He also stated that he had asked his secretary to call the court to inform it of the conflict "but she simply didn’t follow through on this particular point. . . .”

When Mr. Murphy finished his testimony, the court heard from Mr. Norton, the State’s Attorney. He related that his office had been in contact with Mr. Murphy’s office "a great deal” during the period immediately preceding the scheduled trial. Mr. Norton also stated that "the reason I was making a great number of calls to his office was to find out whether or not he would be able to appear at the trial September 6th.” When questioned by the court, Mr. Norton stated that the telephone call from Mr. Murphy on September 5th was the "[fjirst time I knew he would not be here. . . . Up until that time . . . everything was tentative, unsure, uncertain.” Judge Edmondson then pointed out that the court personnel "thought he would be here up until 9:20 the morning of September the 6th.”

After a brief recess the court issued an opinion from the bench in which it stated "that this Court was not aware of any possible postponement until you called me at 9:20 on the morning of September the 6th, 1979, which was the date set for trial for both cases.” In the opinion the court observed that the contempt proceedings were motivated solely by the need to ensure that the court’s calendar is not delayed by the absence of attorneys, parties, or witnesses:

"I hope you understand how I feel. Now I want to make one thing clear to you — I’m not mad with you. I guess it could be said I’m disturbed with you because of the trouble it causes this court. But, in all sincerity you are an excellent lawyer and I would rather see you come in this court and try a criminal case as anybody that’s been in this court because you try a good case. But, we have the greatest time trying to get you here to try them. And that’s what is causing us the trouble.”

At the conclusion of his opinion Judge Edmondson found: "We think you violated the rules, we think the facts proved that, and we have cited you for contempt. We find you in contempt, and we are going to fine you.” The fine imposed by the court was $1,000.00, which was based on:

"Direct cost of convening this court today with jurors, all the necessary people, I think is in excess of $500. If you added on all the costs, I think it is safe to say it would cost $1,000 a day, all the indirect and direct costs. I think a reasonable fine in this case is $1,000.”

On October 17, 1979 the court issued an Order of Contempt reciting all the facts "known to the Court of its own knowledge,” including the fact that "the Court, the parties, the witnesses, and the jurors were all greatly inconvenienced by the failure of Mr. Murphy to appear in Court at the time scheduled for trial or to give the Court timely notice of his intention not to appear.”

II

Judge Edmondson treated defendant’s failure to appear as a direct contempt of court. On appeal, Mr. Murphy argues that his behavior was, at most, a constructive contempt that must be proceeded against within the strictures of Md. Rule P4.

The Maryland Rules define a direct contempt as one "committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Md. Rule PI (a). A direct contempt may be punished summarily by the court, Md. Rule P3 (a), whereas a constructive contempt requires a more elaborate procedure, including notice to the defendant in the form of a show cause order allowing the defendant reasonable time for the preparation of the defense. Md. Rule P4 (b). Furthermore, unless the defendant otherwise consents, the judge who issued the citation for constructive contempt is disqualified from presiding at the hearing except where the contempt consists of failure to obey an order or judgment in a civil case. Md. Rule P4 (d) (2). In sum, whether the defendant is subject to summary punishment or is entitled to an adversary hearing hinges on whether the contempt is classified as direct or constructive.

In State v. Roll and Scholl, 267 Md. 714, 734, 298 A.2d 867, 879 (1973), the Court of Appeals analyzed the constitutional background of summary direct contempt proceedings. Judge Digges, writing for the Court, explicated direct contempt in the following language:

"A direct contempt occurs when the actions of the contemnor interrupt the order of the courtroom and interfere with the conduct of business. When such disruption occurs within the sensory perception of a presiding judge he will have sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.” (Emphasis added.)

See Pearson v. State, 28 Md. App. 464, 482, 347 A.2d 239, 250 (1975). One must look to the nature of the alleged contemptuous acts to determine whether they occurred in the presence of the court. As the court made plain in Roll and Scholl, the resort to additional testimony does not indicate that a contempt is constructive; it is the contemptuous act itself which is determinative. State v. Roll and Scholl, supra, 267 Md. at 734, 298 A.2d at 879.

In evaluating the nature of Mr. Murphy’s alleged contempt we are guided, as was the trial judge, by the leading Maryland case of Kandel v. State, supra, 252 Md. 668, 250 A.2d 853 (1969), in which the Court found that the "[u]njustified failure of an attorney to appear in court on time is at least misbehavior on the part of an officer of the court.” Id. at 671,250 A.2d at 854. In reviewing Mr. Kandel’s contempt conviction the Court noted that in such cases "the guilty one may be punished summarily. . . .” Id. at 672,250 A.2d at 855.

Mr. Murphy argues on appeal that Kandel does not control this case because the reasons he gave for his absence and failure to notify the court of his absence "if believed, do excuse his absence as well as the Court’s failure to get notice of his absence prior to September 6th.” He asserts that none of the facts constituting his excuse occurred in the presence of the court and, therefore, "the Judge had to find facts of which he had no personal knowledge before a judgment of contempt could be reached.” This, he contends, distinguishes Kandel and requires that his alleged contempt be treated as constructive under Rule P4.

In our view, an attorney plays such ah integral role in the judicial process that without his presence the wheels of justice must, necessarily, grind to a halt. The attorney’s absence from the courtroom is immediately cognizable by the judge and intrudes upon the operation and dignity of the court. This fact was recognized by the California Supreme Court in a case in which it decided that an attorney’s unjustified nonappearance constituted a direct contempt of court:

"It is clear that the trial and the attorney’s participation in it are in the court’s immediate view and presence and, obviously, petitioner’s obstruction of the trial by absenting himself from the court is just as directly within the view and presence and knowledge of the court as would be any other conduct by him during, and directly affecting, the trial.”

Lyons v. Superior Court, 43 Cal. 2d 755, 759, 278 P.2d 681, 683 (1955). The essence of the contempt, the attorney’s absence from trial, occurs in the presence of the court and impacts upon those who are to participate in the obstructed proceedings. Judicial resources are not unlimited; we cannot condone behavior that causes precious time to be wasted away while the court, parties, court personnel, and witnesses await the arrival of the errant attorney.

In our neighboring jurisdiction of the District of Columbia, the failure of an attorney to appear promptly in court has been consistently held to be a direct contempt of court, punishable summarily:

"[W]e explicitly adopt the rule that where an attorney fails to appear in court when he has a duty to do so, 'the offensive conduct, to wit, the absence, occurs in the presence of the court’ . . . .”

Sykes v. United States, 264 A.2d 894, 895 (D.C. 1970), rev’d on other grounds, 444 F.2d 928 (D.C. Cir. 1971); see In re Rosen, 315 A.2d 151, 152-53 (D.C.), cert. denied, 419 U.S. 964 (1974) (reaffirming the Sykes rule).

In the instant case we note that Mr. Murphy’s allegedly contumacious conduct extended beyond failing to appear in court at the appointed hour. He was, of course, aware that •the trial in Baltimore was proceeding closer and closer to the date of the trials in Dorchester County. Yet he delayed notifying the court until forty minutes before the scheduled start of trial when it was too late to avoid having his own clients, the witnesses, and the jurors assemble for the two trials, both of which were tailored to fit Mr. Murphy’s schedule. In an effort to excuse this failure, he pointed to his telephone call to the State’s Attorney on the eve of the trial and to his instructions to his secretary — on an unspecified date — to notify the court of his inability to appear. It is obvious that a discussion with the State’s Attorney provides absolutely no notice to the court. It has the same effect as a conversation with counsel for an opposing party and cannot be the basis on which a failure to notify the court can be justified. Defendant’s attempt to excuse his behavior by placing the blame on his secretary must be equally unavailing. Notwithstanding his instructions to her to inform the court of his inability to appear, the duty to notify the court was his, and he should have, at the very least, provided the supervision and oversight necessary to assure that the court had in fact been informed of his inability to appear. In the appeal of an attorney convicted of a direct contempt of court for failing to appear in court at the scheduled time, the California Supreme Court observed:

"An attorney should notify a responsible officer of the court as soon as he realizes he will be unable to appear at the scheduled time. By failing to do so, an attorney assumes the risk that he may be in contempt if the reason for his absence is later deemed insufficient to constitute a valid excuse.”

Arthur v. Superior Court, supra, 62 Cal. 2d at 410, 42 Cal. Rptr. at 445-46, 398 P.2d at 781-82 (1965). It is patent from the record that Mr. Murphy realized he would be unable to appear well in advance of his telephone call to the court on the morning of trial.

As an officer of the court Mr. Murphy had the duty to appear when ordered to do so or to notify the court sufficiently in advance of his inability to appear. We agree with the well-reasoned opinions from California and the District of Columbia, cited supra, that an attorney’s unjustified failure to appear or to give reasonable notice thereof is a contempt committed in the presence of the court and, therefore, punishable summarily under Md. Rule P3. Kandel v. State, supra, 252 Md. at 672, 250 A.2d at 855; see Weaver v. State, 244 Md. 640, 644, 224 A.2d 684, 687 (1966).

In summary, we conclude that Judge Edmondson had sufficient personal knowledge of the facts and circumstances surrounding defendant’s nonappearance in court on September 6,1979, and of his failure seasonably to notify the court of his inability to appear, to find that defendant’s behavior was directly contemptuous. Although the court elected to provide defendant with an opportunity to explain his absence, it need not have done so in this case of direct contempt, and the mere provision of a hearing did not transform the direct contempt into a constructive one.

Ill

For his second argument, the defendant avers that "the trial court proceeded on the assumption that [he] had the burden of proof, and, moreover, that the contempt need be proven by no more than the preponderance of the evidence. . . .” Our reading of the record makes plain that the court did not place the burden of proof on the defendant, nor did it utilize an incorrect standard of proof. Although Mr. Murphy’s direct contempt could have been summarily adjudicated, the court issued a Show Cause Order affording him an opportunity for a hearing.

The Order of Contempt itself recites the "facts known to the Court of its own knowledge. . . .” After setting forth those facts, the court concluded that defendant was in contempt of court. Clearly, all of the facts sufficient for a finding of contempt were personally known to the court. Defendant’s burden was to justify or excuse his contempt once it had been established to the court’s satisfaction beyond a reasonable doubt. See Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, 274 Md. 158, 168-69, 334 A.2d 107, 113 (1975); State v. Roll and Scholl, supra, 267 Md. at 728, 298 A.2d at 876 (1973); Winter v. Crowley, 245 Md. 313, 317, 226 A.2d 304, 307 (1967); Jones v. State, 32 Md. App. 490, 497-98, 362 A.2d 660, 665 (1976); Pearson v. State, 28 Md. App. 464, 486-87, 347 A.2d 239, 252 (1975); Meyers v. State, 23 Md. App. 275, 278, 326 A.2d 773, 775 (1974); Robinson v. State, 19 Md. App. 20, 27, 308 A.2d 712, 716 (1973); and In re Kinlein, 15 Md. App. 625, 641, 292 A.2d 749, 759 (1972). Defendant was provided with an opportunity to exculpate himself, attempted to do so, but failed. Such a procedure does not negate the State’s initial burden to prove the direct contempt beyond a reasonable doubt, and it does not deny defendant due process of law. Kandel v. State, supra, 252 Md. at 672, 250 A.2d at 855.

IV

As a final point, Mr. Murphy argues that there is "no evidence of contemptuous intent” on his part. Specifically, he asserts that the "reasons for his non-appearance were beyond his control and he took reasonable steps to keep opposing counsel and the court informed of these reasons as they developed.” Citing Sykes v. United States, 444 F.2d 928 (D.C. 1971) and United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973), he states that an essential element of criminal contempt is an intent to commit it.

Even if we assume that Sykes and Delahanty are in conformity with the applicable Maryland law, both cases recognize that "[t]he requisite intent may of course be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty.” Sykes v. United States, supra, 444 F.2d at 930; United States v. Delahanty, supra, 488 F.2d at 398.

On appeal from a judgment of direct criminal contempt we do not weigh the evidence; we merely assess its sufficiency. Kandel v. State, supra, 252 Md. at 672, 250 A.2d at 855; Muskus v. State, 14 Md. App. 348, 361, 286 A.2d 783, 790 (1972). Reviewing Mr. Murphy’s situation makes plain that it was not a case where there was an honest belief that no trial was scheduled, thereby leading to the failure to appear. Cf. Sykes v. United States, supra, 444 F.2d 928 (attorney honestly thought trial was scheduled for a week later). Rather, the defendant here knew he had a scheduled trial and attempted to avoid it by last minute telephone calls to the State’s Attorney and the court. His claim that he took "reasonable steps” to keep the court informed was properly rejected by the trial court. His attempt to extricate himself by placing blame on his secretary and the congested docket of the Criminal Court of Baltimore does not diminish, in our eyes, his failure to provide seasonable and proper notice of the conflict to the court. Despite his contrary assertion in his brief, Mr. Murphy was convicted on sufficient evidence that he was guilty of reckless disregard of the dignity of the court.

Judgment affirmed; costs to be paid by appellant.

      . As noted infra, the Court recognized that under Md. Rule P3 (a) a direct contempt does not require a show cause order but that it wished "to preserve this defendant’s right to due process.”

      . State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979).

      . On appeal, defendant does not challenge the amount of the fine imposed.

      . The statutory authority for a court’s exercise of its power to punish for contempt may be found in Md. Cts. & Jud. Proc. Code Ann. § 1-202 (a) (1980). Upon passage of an order or judgment finding a person in contempt, the contemnor has an immediate right of appeal under Md. Cts. & Jud. Proc. Code Ann. § 12-304 (a) (1980). At common law there was no right to appellate review of a judgment of contempt, whether civil or criminal. Harford County Education Association v. Harford County Board of Education, 281 Md. 574, 585, 380 A.2d 1041, 1048 (1977); Tyler v. Baltimore County, 256 Md. 64, 69, 259 A.2d 307, 310 (1969).

      . In Chula v. Superior Court, 57 Cal. 2d 199, 18 Cal. Rptr. 507, 368 P.2d 107 (1962), the California Supreme Court considered the appeal of an attorney cited for contempt for a tardy appearance in the trial court. The court reiterated its view that such a contempt is direct:
      "The failure of an attorney, without valid excuse, to be present in court at the announced time . . . constitutes a contempt committed in the immediate view and presence of the court and hence a direct contempt which the court is empowered to punish summarily....”

        Id. at 203, 18 Cal. Rptr. at 510, 368 P.2d at 110. California has adhered to this view in the intervening years. See, e.g., Arthur v. Superior Court, 62 Cal. 2d 404, 42 Cal. Rptr. 441, 398 P.2d 777 (1965); Rosenstock v. Municipal Court, 61 Cal. App. 3d 1, 132 Cal. Rptr. 59 (1976).

      . Summary contempt proceedings for a tardy attorney were approved by the United States Court of Appeals for the District of Columbia Circuit in In re Niblack, 476 F.2d 930 (D.C. Cir.), cert. denied, 414 U.S. 909 (1973). The attorney’s behavior there was characterized as the "reckless and wilful disregard of the court’s order that he appear promptly for the scheduled hearing.” Id. at 933. Cf. In re Gates, 478 F.2d 998, 1000 (D.C. Cir. 1973). In the instant case the scheduling of the two criminal trials for September 6, 1979 at 10:00 a.m. was tantamount to a court order for Mr. Murphy’s appearance as counsel at that time. Cf. Appeal of Gregory, 387 A.2d 720, 723 (D.C. 1978) ("an order continuing a criminal case for trial to a time certain is a very definite and direct order for defense counsel to appear at that time.”)

      . In the instant case, as in other cases, the circuit court’s finding of contempt was not premised solely on defendant’s failure to appear, but rather it took into account his recklessness in not acquainting the court and interested parties in a timely fashion with the conflicts in his schedule. Where an attorney was detained in argument before another court, missed a scheduled hearing, and was, therefore, cited for direct contempt, the District of Columbia Court of Appeals expressed sentiments similar to those of the California court:
      "Admittedly, appellant had a crowded schedule, but he was remiss. We find no justification for his neglecting to contact the trial judge to either explain his failure to return as directed or seek leave to be further excused. The predicament in which appellant now finds himself might well have been averted. Had he informed the trial judge or the other judges of the conflicts in his court appointments, he might have been able to rearrange or postpone his various scheduled appearances. A judge is not unmindful that conflicts do occur and will try, as the trial judge did when he excused appellant Friday morning, to accommodate the demands of an attorney’s schedule and of another judge’s calendar; but there is a duty upon counsel to be considerate of the court and obedient to its directives.”
      In re Shorter, 236 A.2d 318, 319 (D.C. 1967).

      . Appellant correctly points out that several jurisdictions have held that the absence of an attorney from court does not occur "within the presence of the court.” The rationale underlying these holdings, however, demonstrates that the courts were chiefly concerned that the contemnor be afforded due process in the form of an opportunity to explain his absence. See, e.g., In re Allis, 531 F.2d 1391, 1393 (9th Cir.), cert. denied, 429 U.S. 900 (1976); People v. McNeil, 42 Ill. App. 3d 1036, 1038, 356 N.E.2d 1073, 1075 (1976); Ex Parte Hill, 122 Tex. 80, 81-82, 52 S.W.2d 367, 368 (1932); In re McHugh, 152 Mich. 505, 511, 116 N.W. 459, 461 (1908). In the instant case, on the other hand, appellant was given sufficient time to prepare his defense and an opportunity to present it.
      In the Maryland case most closely on point the Court of Appeals held:
      "Appellant clearly was not denied due process. He was given the opportunity at the time the fine was imposed to present exculpatory reasons for his tardiness, and attempted to do so.”
      Kandel v. State, supra, 252 Md. at 672, 250 A.2d at 855. Mr. Murphy was given an even more extensive opportunity to explain his absence and the reasons for his neglect in notifying the court of his schedule conflict. No due process violation is evident.

      . The theoretical and practical underpinnings for this rule have been explained bv the California Supreme Court:
      "If, in truth, the absence with its ensuing interruption of the court proceedings is occasioned by some cause not reasonably within the attorney’s control, the duty of explanation is but part and parcel of his duty to be present, and the burden of producing the exculpatory facts to the court properly falls upon the attorney. The latter, not the judge, is the officer of the court who under those circumstances owes a duty of proceeding.”
      Lyons v. Superior Court, supra, 43 Cal. 2d at 759, 278 P.2d at 683. Of course, this approach is perfectly consistent with our view that the State has the initial burden of proving the criminal contempt, i.e., the attorney’s unjustified absence from a known, scheduled trial. Exculpation is then the attorney’s burden.

      . Cf. Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, supra, 274 Md. at 176, 334 A.2d at 117; Kandel v. State, supra, 252 Md. at 672, 250 A.2d at 855; Weaver v. State, supra, 244 Md. at 644, 224 A.2d at 687 ("It is apparent that what the appellant did [failing to appear] was contemptuous.”)

      . Defendant’s attempt to exonerate himself by stating that he acted in good faith does not negate the reasonable inference that he recklessly or wilfully failed to advise the court of his conflicting schedule. An attorney who was a mere seven minutes late for a court appeárance was summarily cited for contempt in In re Hunt, 367 A.2d 155 (D.C.), cert. denied, 434 U.S. 817 (1977). When he appeared for the trial, he apologized and explained his tardiness; the court then found him in contempt. On appeal, the court ruled that the contempt was direct and was properly treated in summary proceedings. In addition the appellate court ruled:
      "The trial court properly inferred from appellant’s actions and his explanation that he had deliberately and willfully substituted his own judgment for a direct order of the court even though his actions represented a good faith attempt to straighten out his conflicting obligation with two other courts. It was clearly within the court’s discretion to treat appellant’s tardiness as an act of contempt. . . .”

        Id. at 157-58.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LISTON GARY NOBLE v. STATE OF MARYLAND
    [App. No. 16,
    September Term, 1980.]

      Decided July 9, 1980.

    Before Gilbert, C. J., and Morton and Thompson, JJ.
    Submitted by William N. Butler for applicant.
    Submitted by Stephen H. Sachs, Attorney General, and William A. Swisher, State’s Attorney for Baltimore City, for respondent.
   Thompson, J.,

delivered the opinion of the Court.

Liston Gary Noble, the applicant, was convicted by a jury in the Criminal Court of Baltimore, of felony murder, attempted robbery and the use of a handgun in the commission of a crime of violence. He was sentenced to a life term for the murder, with concurrent sentences of five years for the attempted robbery and for the handgun violation. The judgment was affirmed by this Court in an unreported per curiam opinion. Noble v. State, No. 769, September Term, 1976, filed on May 27, 1977. By an order dated March 21, 1980, the Criminal Court of Baltimore vacated the applicant’s attempted robbery conviction but denied further relief under the Uniform Post Conviction Procedure Act. The applicant now seeks leave to appeal the denial of additional relief.

The record shows that the applicant was one of a group of four men who drove to an alley near the victim’s house in order to commit a robbery. A co-defendant went into the house while the other three men, including the applicant, maintained a lookout. In a few minutes the co-defendant returned and advised the others that he had had to shoot the victim. The applicant was convicted on the basis of being a principal in the second degree.

In his application (indeed in his two applications for leave to appeal) the applicant through counsel and pro se states that a number of issues were decided erroneously by the hearing judge; the only argument, however, relates to the absence of the accused at a bench conference during the trial. Inasmuch as Md. Rule BK 46 b provides, "The application shall contain a brief statement of the reasons why the other order should be reversed or modified”, we will decline to consider any issue except the absence from the bench conference. As to this issue the hearing judge found as follows:

"Petitioner alleges that at the voir dire stage of the proceedings on May 10, 1976, he was not present at a bench conference that constituted an integral and substantial part of the process of impanelling the jury. Therefore, petitioner asserts that his absence and his non-waiver of his right to be present at the said bench conference violated his rights under Maryland Rule 724.
"The Petitioner’s claim apparently rests on the decision of the Court of Special Appeals in Haley v. State, 40 Md. App. 349 [392 A.2d 551, cert. denied, 284 Md. 744] (1978), which held that, 'There can be no doubt, therefore, that examination of prospective jurors on their voir dire is a stage of the trial at which the defendant has a right to be present.’....
"In response to the voir dire questions by the trial court as to whether any of the assembled panels of prospective jurors or their families ever had been a victim of a crime of violence, one juror approached the bench with both counsel present. The particular bench conference in question was very brief and consisted totally as follows:
THE JUROR: Part four, I’m Mr. Roy. My father and brother were both murdered in the city, no arrests have been made in the case.
THE COURT: Well I have a feeling that probably would make it pretty difficult for you to sit on a jury of this kind. I’m going to excuse you.
MR. ROY: All right, thank you.”

The hearing judge found that any error which may have occurred was harmless because the juror was excused by the trial judge and did not sit on the jury. Although we find it difficult to see how the applicant was injured here, the cases are legion which state that the Maryland Rules are precise rubrics to be read and followed. See, e.g., Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979). It seems minor discrepancies might be permitted. Terrell v. State, 34 Md. App. 418, 421-22, 367 A.2d 95 (1977). We think the hearing judge was in error in the instant case under Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978).

The hearing judge also denied relief because he felt that Haley was not to be applied retroactively, relying on the retroactivity discussion in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1964). We think this reliance was misplaced. Unlike Schowgurow, Haley did not involve a newly decided constitutional doctrine. Rather, in interpreting Md. Rule 724, we applied the long standing common law principle that an accused has a right to be present at every stage of his trial, a right preserved by Art. 5 of the Maryland Declaration of Rights. In Bunch v. State, supra the Court of Appeals stated in language quoted by this Court in Haley:

"Long ago the Supreme Court held that proceedings during the impaneling of the jury, and involving challenges to prospective jurors on the ground of bias, constituted a stage of the trial at which the defendant had a right to be personally present, Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884).” 281 Md. at 686.

Accordingly, we hold that the lower court erred in concluding that Haley was to be applied prospectively only.

It does not necessarily follow, however, the applicant is entitled to relief. Md. Code, Art. 27, § 645A (c) provides as follows:

"(c) When allegation of error deemed to have been waived. — For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.
"When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.”

In Haley v. State, 40 Md. App. at 354-55, we stated:

"B. The Presence of the Appellant
"Although the appellant was present in the courtroom when the subject bench conferences took place, the record does not show whether or not he was present at the bench during those discussions. We cannot and do not presume he was present from a silent record, but we can and do require, as a matter of state procedure, that the complete facts be brought out in post conviction procedures. We followed this procedure in Green v. State, 23 Md. App. 680, 683, 329 A.2d 731 (1974), cert. denied, 274 Md. 728 (1975). Compare Bunch v. State, supra, and Redman v. State, [26 Md. App. 241, 337 A.2d 441 (1975)], where the records on direct appeal were clear that the accused was not present at critical times. See also, State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971).
"C. Waiver
"The right of a criminal defendant to be present at every critical stage of his trial is personal to the defendant and cannot be waived by counsel. Bunch v. State, supra; Brown v. State [225 Md. 349, 170 A.2d 300 (1961), cert. denied, 372 U.S. 960 (1963)]; Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958). The record does not indicate whether or not the appellant waived his rights under Rule 724. This, too, can be determined in post conviction procedures as set out above, if it is first determined that appellant was not present at the bench conferences.”

It would appear from the quotation of the trial transcript by the hearing judge, the appellant’s absence from the bench conference was probably not entirely clear from the trial transcript. It would seem, therefore, that the mere failure to raise the question in the direct appeal would not itself constitute a waiver. There can be no question, however, that it is possible that the waiver occurred at the trial itself. Md. Rule 724 a and c provide as follows:

"a. When Presence Required.
"The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.
"c. When Presence Waived.
"A defendant initially at trial waives his right to be present when:
1. He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his right to remain during trial; or
2. He engages in conduct to justify his being excluded from the courtroom.”

We do not think that the two circumstances set forth in the Rule are the only circumstances where the appellant’s right to be present can be waived. The hearing judge did not address this question and we will, therefore, grant the application and remand the case for further proceedings as to. the question of waiver only.

The applicant argues that the waiver must be intelligent and knowing to be effective. We do not agree. There are a number of rights, some of them constitutional, that an accused may waive without any knowledge that he has such rights. In Curtis v. State, 284 Md. 132, 145-47, 395 A.2d 464 (1978), the Court stated:

"On the other hand, the Supreme Court has made it abundantly clear that the concept of 'waiver’ set forth in Fay v. Noia, supra [372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)] and Johnson v. Zerbst, supra [304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)], has no application in a variety of situations where a criminal defendant is deemed bound by prior action or inaction.
"In Schneckloth v. Bustamonte, supra [412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)], it was held that where a defendant voluntarily consents to a search, he thereby foregoes any Fourth Amendment rights despite the absence of a Johnson v. Zerbst type of waiver.”
"Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), considered the right of a criminal defendant not to be tried in jail clothes. The Court found that although a defendant has a constitutional right not to be tried in such attire, only by affirmatively asserting this right will it be given effect.”
"The principle that a criminal defendant may be precluded from raising an issue despite the absence of a 'waiver’ in the Johnson v. Zerbst sense, extends beyond the area of attorney’s trial tactics. Thus, in Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973), a federal prisoner sought post conviction relief under 28 U.S.C. § 2255, asserting that the racial composition of the grand jury which indicted him was unconstitutionally discriminatory.”....
"The Court in Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976), was faced with a similar attack on the grand jury’s racial composition in the context of a state proceeding. The issue before the Court was whether the failure of a state prisoner to note a timely objection to the composition of the grand jury which indicted him would bar him from federal habeas corpus relief. The Court noted that ' "[t]here is no reason to ... give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants.” ’ 425 U.S. at 542, quoting Kaufman v. United States, 394 U.S. 217, 228, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969). Rejecting the argument that the 'knowing and intelligent’ standard set forth in Johnson v. Zerbst and Fay v. Noia be applied, the Court held that in the normal case, unless the defendant shows 'cause’ and 'actual prejudice’ for failing to comply with a legitimate state procedural requirement, the procedural default should be upheld. Consequently, it is clear that a 'procedural default’ in certain circumstances, even where a defendant may personally have been without knowledge or understanding of the matter, may result in his being precluded from asserting important rights.”

We think the accused’s right to be present at the bench conference set out above is one of those rights which can be waived by inaction and not one that requires an affirmative act based on an intelligent and knowing understanding of his rights.

Nor do we consider that a trial counsel who in the heat of a trial overlooked the right of his client to be present at a short bench conference is to be considered incompetent, as applicant claims. The hearing judge in the instant case found as follows:

"The test concerning inadequacy of counsel is whether, under all circumstances of the particular case, the Petitioner has been afforded a genuine and effective representation. Slater v. Warden of Md. Pen, 241 Md. 668, [217 A.2d 344] (1966). After examining the transcript of the trial below, this Court fails to find Petitioner’s counsel inadequate. Petitioner’s trial counsel, an attorney with long experience in the criminal law practice, energetically defended Petitioner at the trial. Evidence at the hearing before this Court also disclosed that the Petitioner was consulted as to his impressions of prospective jurors and opinions during the rather extensive voir dire examination of the jury panels subject to such examinations, with many peremptory challenges being made. Also, in fact, at the hearing before this Court, the Petitioner testified that his attorney had indicated the State was receptive to a negotiated plea of guilty with a 20 year sentence recommendation. Petitioner’s belated disagreement with his counsel on how to pursue the case on appeal as claimed in his Petition does not constitute sufficient proof to meet the Petitioner’s burden of proving that he was not afforded genuine and effective counsel on that level. State v. Hardy, 2 Md. App. 150, [233 A.2d 365] (1967).”

Although we cannot find appellant’s trial counsel incompetent for one relatively minor slip up, we do not retreat from our position requiring the presence of an accused during every stage of the trial as set forth in Tisdale v. State, 41 Md. App. 149, 153, 396 A.2d 289 (1979).

Application granted.

Case remanded for further proceedings in accordance with this opinion.

      . The record indicates that the applicant rejected a plea bargain carrying a twenty year sentence.

      . Of course, if the absence is clear, the statutory presumption of waiver would apply.

      . This specific finding is not contested here.


author: Melvin, J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. FOSTER & KLEISER
    [Nos. 1060 and 1061,
    September Term, 1979.]

      Decided July 10, 1980.

    The cause was argued before Thompson, Melvin and Liss, JJ.

      John N. Spector, Assistant City Solicitor, with whom were Benjamin L. Brown, City Solicitor, William Hughes, Associate City Solicitor, and Sandra R. Gutman, Assistant City Solicitor, on the brief, for appellant.

      Richard T. Rombro, with whom were Wartzman, Rombro, Rudd & Omansky, P.A. on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Per Curiam

The Mayor and City Council of Baltimore appeals from a judgment of the Baltimore City Court that reversed decisions of the Board of Municipal and Zoning Appeals denying the appellees’ applications to erect three large outdoor advertising signs at two locations in Baltimore City.

For the reasons fully set forth in the attached written opinion of the Baltimore City Court (Wilner, J.), which we adopt as the opinion of this Court, the judgment below is affirmed.

Judgment afñrmed; costs to paid by appellant.

MEMORANDUM OPINION

On October 13,1978, Appellant, Foster & Kleiser, applied to the Board of Municipal and Zoning Appeals for a permit to erect one 14' x 48' double faced illuminated sign on top of a two and one-half story building at 820 North Front Street. This location is in an M-2-3 zoning district; and, pursuant to City Code, Article 30, § 10.0-3c, the proposed sign is permitted as a conditional use in such a zone, if approved by the Board.

On January 30, 1979, Appellant applied to the Board for a permit to erect two 12' x 25' signs at a site on the south side of Terminal Street, some 128' east of Fallsway. This is also in an M-2-3 zone, and the proposed signs are permitted as a conditional use, if approved by the Board.

On January 23, 1979, the Board disapproved the application for Front Street; and on April 24, 1979, it disapproved the application for Terminal Street. These appeals, which involve common points of law, followed. For the reasons described herein, the Resolutions adopted by the Board disapproving these two applications will be reversed.

In each instance, the proposed signs would be within 660 feet, but not closer than 100 feet, to the nearest right-of-way of the Jones Falls Expressway. The Front Street sign would show primarily to both northbound and southbound traffic on Fallsway, a public highway in Baltimore City that, at that point, runs essentially parallel to the Jones Falls Expressway. There was some evidence before the Board that the sign could, if erected, be seen from the Expressway. The Terminal Street sign would face eastbound traffic on East Centre and Terminal Streets, although there was some evidence that it too would be visible from the Expressway.

In each case, the City Department of Transit and Traffic opposed the application, pointing out that placement of the sign within 660 feet of the Expressway right-of-way would be in violation of Md. Annot. Code, Transportation Article, §§ 8-741 and 8-742. No particular traffic hazards were suggested by the Department by reason of the signs’ visibility from the Expressway; its opposition was based entirely upon its belief that those sections of State law forbid the proposed erection of the signs. The Court will deal with that issue first.

Title 8 of the Transportation Article deals with highways; Subtitle 7 thereof concerns the regulation of outdoor advertising along highways. See § 8-702 (a). Part V of Subtitle 7, comprising §§ 8-739 through 8-744, pertains especially to outdoor signs along expressways. The term "expressway” is defined in § 8-101 (g) and clearly includes the Jones Falls Expressway.

Section 8-740 (a) sets forth the scope of Part V of Subtitle 7. It says that Part V regulates the erection and maintenance of an outdoor sign "along or near an expressway” if, inter alia, the sign is "660 feet or less from the nearest edge of the right-of-way of the expressway.. Section 8-741 states:

"A person may not use his property or allow his property to be used by any other person for the erection or maintenance of any outdoor sign along or near any expressway, unless the sign is:
"(1) In an urban area; and
"(2) More than 660 feet from the nearest edge of the right-of-way of the expressway.”

Section 8-742 provides certain exceptions from this prohibition, however. As amended in 1977, it states, in relevant part, that nothing in Part V of Subtitle 7 prohibits the erection or maintenance of "[a]ny outdoor sign along a highway that is not an expressway, even if the highway runs parallel or partially parallel to an expressway, if the sign faces that highway.” The term "highway” is defined in § 8-101 (h). That definition, together with the definitions of "road” and "street” in § 8-101 (n) and (r), makes clear that these three terms mean the same thing and that "highway” includes any public street or road. Thus, Fallsway, Terminal Street, Centre Street and Front Street are highways for purposes of §§ 8-741 and 8-742.

The evidence before the Board in each of these two cases was clear and uncontradicted that the signs in question, though without 660 feet of the expressway, would be "along” and indeed facing "a highway that is not an expressway” in an urban area. Accordingly, their erection and maintenance, by virtue of the clear wording of § 8-742 (3), is not prohibited by § 8-741. The relevant statute with respect to required setback from expressways is City Code, Article 30, § 10.0-lb, which prohibits a general advertising sign from being erected with 100 feet of the nearest right-of-way line of an expressway. From the evidence presented to the Board, it seems clear that the proposed signs in these two cases are not in violation of that ordinance.

There thus being no statutory prohibition to the erection of the signs, the question then becomes whether there was substantial evidence to support the findings and conclusions of the Board. The standard of review in that regard has been set forth a number of times by the Court of Appeals. In Aaron v. City of Baltimore, 207 Md. 401, 406 (1955), the Court stated:

"It is well settled by many decisions in this State that the court will not substitute its discretion for that of the Board in zoning cases. The duty of the Board is to exercise the discretion of experts. The court, although it may not arrive at the same conclusion, will not disturb a decision of the Board on review, if the Board has complied with all legal requirements of notice and hearing and the record shows substantial evidence to sustain the finding.”

As noted, a billboard of the type proposed here is permitted under the applicable zoning ordinance at the locations requested, as a conditional use. In Gilmore v. Mayor and City Council, 205 Md. 557, 564 (1954), the Court, after reviewing two earlier cases, stated:

"These cases recognize first, the proposition that an applicant for a billboard in a first or second commercial use district, or industrial use district, is entitled to a permit unless the Board finds from the evidence produced before it, or on investigation, that the proposed use would endanger the public health, safety, security or morals; and, second, that the action of the Board, affirmative or negative, is entitled to such respect by the courts that it will be set aside only if the attacker meets 'the heavy burden of overcoming the presumption of constitutionality of legislative action’ by showing that the action of the Board in the exercise of its original jurisdiction was arbitrary, capricious or illegal.”

In that context — against that standard — we look to the findings of the Board in these two cases and the evidence, if any, in support of them. The Board’s findings are set forth in the Resolutions that it adopted in the respective cases.

In each case, the Board concluded that the proposed sign was permitted as a conditional use. In the Front Street case, the Board’s findings were stated as follows:

"The Board, after having given due regard and consideration to the nature and condition of the adjacent uses and structures and the facts in this case, finds that in view of the proposed and existing committment (sic) to up-grade this neighborhood and the vast expenditure which has been made and will be made to develop this area, that it should not exercise its discretion so as to approve a paint bulletin on this site. The Board finds, as a fact, that the bulletin would adversely affect the area and there is no compelling justification to permit the erection of this paint sign.
"With due consideration to the guides and standards set forth in Sections 11.0-5a and 11.0-5c of the Zoning Ordinance and to the reports of the several City departments as required by the Zoning Ordinance, the Board finds that the proposed panel would menace and endanger the public health, security, general welfare and morals.”

The evidence before the Board, from which these findings were drawn, consisted of the following:

(1) Communication from the City Fire Department expressing no objection to the proposed sign;

(2) Letter from the City Department of Transit and Traffic opposing the sign solely by virtue of its erroneous interpretation of Transportation article, §§ 8-741 and 8-742. No specific traffic hazard was cited;

(4) Letter from the City Department of Planning asserting that the sign would be visible from the Jones Falls Expressway, from Fallsway, from Orleans Street, and from the Jonestown, Oldtown, and Mt. Vernon renewal areas. It opposed the sign because it believed the overall height to be "excessive” and because the Department "further feels that a general advertising sign in this location could have an adverse affect (sic) on the surrounding renewal areas.” No details as to the nature of this "adverse” effect were given.

(5) Testimony of Theodore Rosenburg, representing the Mt. Vernon Belvedere Improvement Association and the Twin Oaks Association, to the effect that the sign would be visible from the Mt. Vernon area and that a good deal of commercial investment and restoration is planned for that area. Mr. Rosenburg conceded that "I have not been told specifically by any investor that that particular sign will definitely stop him from investing money. .. .”;

(6) Testimony of James Lasser to the effect that some plans for the construction of luxury housing units in the area are under discussion, and that the sign would be visible to those units, if and when they are ever built. He did not state that the sign in question itself would endanger the proposed housing project, but rather that "one sign leads to permission for a second sign and that leads to a third sign.”

None of this, separately or cumulatively, suffices to support or justify a finding that the sign would "menace and endanger the public health, security, general welfare and morals.” There is not a shred of credible evidence to that effect. That a sign will be visible is hardly a reason to ban it; visibility, indeed, is the whole purpose of the sign. Aside from the Department of Transit and Traffic’s objection based upon its erroneous interpretation of the State law, the opposition to the sign was ostensibly based solely upon the vague and wholly unsupported fear that it might hinder efforts to improve an area one or more blocks away. Such speculation, however, in the absence of any direct evidence to sustain it, is not a proper reason to deny a use that the City Council has said is a proper one. See Rockville Fuel v. Board of Appeals, 257 Md. 183 (1970).

Much the same situation pertains with respect to the Terminal Street sign. In that case, the Board concluded:

"The Board, after having given due regard and consideration to the nature and condition of all the adjacent uses and structures and the facts in this case, and the letters of protest, is of the opinion that the billboard should not be permitted, since in its opinion it is contrary to the provisions of Sections 11.0-5a and 11.0-5c of the Zoning Ordinance, that it would impair the present and future development in the area, and it is in close proximity to dwellings, churches, and other places of public gathering, and therefore the Board should not exercise its’ (sic) discretionary power in order to permit this request.
"With due consideration to the guides and standards set forth in Sections 11.0-5a and 11.0-5c of the Zoning Ordinance, and to the reports of the several City Departments as required by the Zoning Ordinance, the Board finds that the proposed poster panels would menace and endanger the public health, security, general welfare and morals.”

The evidence before the Board, from which its findings must come, was as follows:

(1) Letter from the City Health Department stating that the proposed sign would present "no health hazard” provided the area around it is kept clean;

(2) Letter from the City Fire Department expressing no objection;

(3) Letter from the City Department of Transit and Traffic objecting to the sign solely because of its presumed violation of Transportation article, § 8-741;

(4) Letter signed by six "shopsteaders” in the Jonestown area objecting to a sign on Hillen Street already approved by the Board as well as to the instant application. The shopsteaders expressed their concern over the "proliferation of commercial signs in the Jonestown area”, believed that "this trend for bill board approval to be both counter productive to our efforts and to the interests of the area in general”, and recorded their opposition to the approval of "any additional billboards in the Jonestown area.”

(5) Letter from the City Department of Planning stating that the sign would be visible from the Jones Falls Expressway, the Mt. Vernon renewal area, the Chesapeake Center, and Center Stage. The Department noted that "[property owners in the vicinity have expressed concern that billboards would have adverse effects upon their leasing programs”, but gave no details as to who these property owners were, what their "leasing programs” were, or what adverse effects the signs would have on them. The Department recommended disapproval because, in its corporate opinion, the sign would not comply with the following standards applicable to conditional uses:

"3. the nature of surrounding area and the extent to which the proposed use might impair its present and future development;
4. the proximity of dwellings, churches, schools, public structures, and other places of public gathering;
8. the preservation of cultural and historic landmarks;
9. any urban renewal plan approval by the Mayor and City Council or the Master Plan for the City approved by the Planning Commission.”

Attached to this letter was a plat of the area which contains no legends as to distances, denotes no dwellings, schools, or cultural or historic landmarks, shows one church at least five blocks away (and separated from the sign by the Jones Falls Expressway), and, as to "public structures”, denotes only the City Jail, the Maryland Penitentiary, and the District Court building.

No one appeared at the hearing before the Board in opposition to the application.

This Court is not insensitive to the commendable efforts of the City Government to make the downtown and midtown areas of the City a pleasant place to live, work, and recreate. Nor does it ignore or belittle the concerns of those participating in that effort over a proliferation of billboards that, to them, are unsightly. But the Court is not the policy-making arm of the City Government; its function is to interpret and apply the law correctly and to make certain that the other instruments of government do likewise.

The City Council, by permitting billboards as a conditional use, has legislatively determined that, as a general rule, they do not menace or endanger the public health, safety, general welfare, or morals within the area of their permitted use. The Board has a limited amount of discretion to deny the use if there is substantial evidence to show that, notwithstanding the underlying legislative conclusion, a particular structure would, in fact, have such an effect. But it may not thwart the legislative will based upon unspecific and unsupported protestations and concerns. There is no evidence whatever in this record to show that the public health, safety, welfare, or morals would be affected in the least by this particular sign. There is no evidence even that it would be "in close proximity to dwellings, churches, and other places of public gathering.” In short, these conclusions of the Board have absolutely no evidentiary support, and are therefore, by law, arbitrary and capricious.

For these reasons, the decisions of the Board in these two cases are reversed. The cases are remanded to the Board with instructions to approve the applications, appellee to pay the costs in each case.

      . As the Aaron Court pointed out, 207 Md. at 406, "[i]t is arbitrary and unlawful for the Board to make an essential finding without supporting evidence”; and that, of course, makes the question of evidentiary sufficiency a proper one for judicial review.


text:
    JEFFREY HENRY MATTHEWS, JR. v. STATE OF MARYLAND MICHAEL EVERETTE STREET v. STATE OF MARYLAND
    [No. 1104,
    September Term, 1979.]
    [No. 1120,
    September Term, 1979.]

      Decided July 10, 1980.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellants.

      Diane Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, Terry McGann, Assistant State’s Attorney for Prince George’s County (for appellant Matthews), and Gary Courtois, Assistant State’s Attorney for Prince George’s County (for appellant Street), on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

These two consolidated criminal appeals each present a single issue: Before a plea of guilty may be accepted pursuant to Maryland Rule 731 c, is it necessary that the record affirmatively show compliance with Maryland Rule 735 d as construed by the Court of Appeals in Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979)?

I

Appellant Jeffrey Henry Matthews, Jr. (Appeal No. 1104) was charged in an eight count indictment by the Grand Jury of Prince George’s County with robbery and other related offenses. The case was called for trial on July 24,1979 in the Circuit Court for Prince George’s County (Meloy, J. presiding), at which time Matthews, through his counsel, withdrew his previously entered pleas of not guilty to two counts of the indictment and offered pleas of guilty to those two counts (robbery with a deadly weapon and unlawful use of a handgun in the commission of a felony). After questioning the appellant and his counsel, Judge Meloy accepted the pleas and entered judgments of conviction thereon. Pursuant to prior plea negotiations with the State, the remaining counts of the indictment were nol prossed.

Appellant Michael Everette Street (Appeal No. 1120) was charged in a ten count indictment by the Grand Jury of Prince George’s County with rape in the first degree, two counts of rape in the second degree, and other related offenses. On July 18, 1979, the appellant and his counsel appeared before Judge Meloy in open court, at which time the appellant, through his counsel, withdrew his previously entered pleas of not guilty to all charges and offered pleas of guilty to two counts of rape in the second degree. The prosecutor announced that, pursuant to prior plea negotiations, if the court accepted the pleas, the remaining counts of the indictment would be nol prossed. After questioning the appellant and his counsel, Judge Meloy accepted the pleas and entered judgments of conviction thereon.

II

The record in each of these cases reveals that before accepting the guilty pleas Judge Meloy addressed the defendants personally and fully explained to them the nature as well as the elements of the crimes to which they were offering their guilty pleas and the possible punishments involved. Each defendant said he understood what the judge had explained to him. Each defendant confessed to the judge that he committed the crimes as alleged in the indictments, "no ifs, and huts”, and each defendant said he wished to plead guilty because he "was, in fact, guilty.” Each defendant said he understood that he had the right to stand trial and plead not guilty and that he would be presumed innocent until proven guilty beyond a reasonable doubt, but by pleading guilty he would give up those rights. The judge explained, and each defendant said he understood, various other rights he was waiving by pleading guilty. Each defendant also indicated that his guilty pleas were offered "voluntarily” and not as the result of any "coercive threats” or improper inducements. At the conclusion of the colloquy with each appellant, the judge announced on the record that he found the guilty pleas of each to be "constitutionally valid and voluntary.”

Ill

Included in the judge’s inquiries to appellant Matthews (Appeal No. 1104) was the following:

"THE COURT: Do you also understand that when you or anyone else pleads guilty to any criminal offense that they would be giving up, waiving, relinquishing and abandoning . .. your right to be tried by a jury? Do you understand that right and do you give it up?
DEFENDANT MATTHEWS: Yes, sir.”

The colloquy with appellant Street (Appeal No. 1120) included the following:

"THE COURT: You also would be giving up your right to be tried by a jury. Do you understand that right and do you give it up?
THE DEFENDANT: Yes, I do.”

In both these appeals each appellant contends that their respective guilty pleas should not have been accepted because Judge Meloy’s inquiries and their answers thereto did not satisfy the requirements of Maryland Rule 735 d as construed in Countess v. State, supra. That Rule provides:

"d. When Court Trial Elected.
If the defendant fíles an election to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.” (Emphasis added).

The short answer to the appellants’ contention is contained in Countess itself: "Section d [of Rule 735] is invoked '[i]f the defendant elects to be tried by the court ’, and speaks in terms of'his election for a court trial.’ ” (Emphasis in original). Id. at 454. In the cases before us, manifestly, each defendant by pleading guilty elected not to be tried at all — by a court or a jury. As said by the Supreme Court of the United States in Brady v. United States, 397 U.S. 742, 748 (1970), a guilty plea "is the defendant’s consent that judgment of conviction may be entered without a trial ... a waiver of his right to trial before a jury or a judge.” See also Boykin v. Alabama, 395 U.S. 238 (1969), where the Supreme Court said at 242: "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” We, therefore, hold that Maryland Rule 735 d has no application to the acceptance of a plea of guilty.

Rule 731 c is the only Maryland Rule applicable to the standards that must be met before a plea of guilty may be properly accepted. It provides:

"c. Plea of Guilty.
The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty.”

This Rule was adopted by the Court of Appeals by order dated January 31, 1977, effective July 1, 1977, as part of a revision of Chapter 700 of the Maryland Rules of Procedure. In Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976), the Court of Appeals rejected the view expressed in earlier decisions of the Court of Special Appeals that Boykin v. Alabama, supra, required, for a guilty plea to be valid, a specific on-the-record reference to and waiver of certain constitutional rights, including the right to trial by jury. The Court, speaking through Judge Digges, said:

"After scrutinizing the language employed by Justice Douglas, we conclude that Boykin does not stand for the proposition that the due process clause requires state trial courts to specifically enumerate certain rights, or go through any particular litany, before accepting a defendant’s guilty plea; rather, we think Boykin merely holds that the record must affirmatively disclose that the accused entered his confession of guilt voluntarily and understandingly. Cases decided by the Supreme Court after Boykin do not indicate otherwise, nor do they themselves mandate express individualized references to and waivers of the particular rights mentioned by Justice Douglas. See generally Bishop, Guilty Pleas in Wisconsin, 58 Marq. L. Rev. 631, 635 (1975).” 278 Md. at 114. (Emphasis added).

"Since the decisions of this Court have long required guilty pleas to be entered voluntarily and intelligently, Boykin, as we interpret it, does not change the law as heretofore announced by this Court with regard to the acceptance of confessions of guilt except to command that the record affirmatively reflect what we had already mandated. Examining the facts of the present case in light of what we have just said, we hold that Davis’ guilty plea was properly entered because, as demonstrated by the colloquy previously quoted, the record taken as a whole affirmatively discloses that the petitioner’s plea was, as found by the trial judge, voluntary and intelligent.” 278 Md. at 118. (Emphasis added).

As in Davis, we hold that the guilty pleas of Matthews (Appeal No. 1104) and Street (Appeal No. 1120) were properly accepted, because in each case “the record taken as a whole affirmatively discloses” that both constitutional requirements and the requirements of Rule 731 c were fully met.

At oral argument, appellants sought solace from our recent opinion in Priet v. State, 45 Md. App. 1, 410 A.2d 1107 (1980) (cert. granted May 2, 1980), after they filed their briefs in the present cases. In that case, we held that the requirements of Rule 731 c were not met "because the judge did not inquire on the record of the defendant whether he understood the charges to which he pled guilty.” (Emphasis added) Id. at 3. By analogy to the mandatory requirement of Rule 735 d that the subject matter of the judge’s inquiries be on the record (see Countess v. State, supra, at 454), we held that the subject matter of the judge’s inquiries under Rule 731 c must also be affirmatively shown by the record. We did not hold that the subject matter of the inquiries under the two Rules need be the same. Nothing in Priet is at variance with our holdings in the cases at bar.

Judgment in Matthews v. State (Appeal No. 1104) affirmed; costs to be paid by appellant.

Judgment in Street v. State (Appeal No. 1120) affirmed; costs to be paid by appellant.