author: Menchine, J.,

text:
    MONUMENTAL ENTERPRISES, INC. et al. v. MAYOR & CITY COUNCIL OF BALTIMORE CITY et al.
    [No. 503,
    September Term, 1974.]

      Decided May 2, 1975.

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

      David R. Kuney, with whom was William J. Evans on the brief, for Monumental Enterprises, Inc., part of appellant.

      Jervis Spencer Finney, with whom were Robert R. Winter and Ober, Grimes & Shriver on the brief, for other appellant.

      Frank R. Shatdis, Assistant City Solicitor, with whom were Benjamin L. Brown, City Solicitor and Harry S. Swartzwelder, Jr., Chief Assistant City Solicitor, on the brief, for appellee Mayor and City Council of Baltimore City.

      Ed,gar H. Gans, with whom was J. Leonard Feinglass on the brief, for other appellee.
   Menchine, J.,

delivered the opinion of the Court.

On August 5, 1971 the Mayor and City Council of Baltimore (Baltimore City) filed in the Circuit Court No. 2 of Baltimore City its petition against Property Investors, Inc. (Property) to foreclose rights of redemption in a certain tract of land previously purchased by it at tax sale 7534. The tract, comprising 1.51 acres of land, was shown on the assessment rolls to be assessed to Property and was described as follows:

“ES Parkdale Ave., 226'3" S.

Druid Park Dr.

Containing 1.51 Acres Unimproved.”

In its petition Baltimore City elected to avail itself of the provisions of Article 81, §§ 117 through 121 which read as follows:

“§ 117. Alternate method of foreclosure — To apply only when Mayor and City Council of Baltimore is purchaser.
Whenever the Mayor and City Council of Baltimore has become the purchaser of any property in the City of Baltimore at a tax sale, the said city is hereby empowered to institute a proceeding to foreclose the right of redemption of such property under the provisions of §§ 117 to 121, inclusive. None of the provisions of §§ 117 to 121, inclusive, shall affect the right of the said city to proceed under the other provisions of this subtitle, the procedure hereinafter set forth being intended to be an alternative procedure to be adopted at the option of the Mayor and City Council of Baltimore, acting through the city comptroller for the time being, when the said city has become the purchaser of property at tax sales.
“§ 118. Same — All provisions of subtitle applicable.
All'of the provisions of this subtitle shall apply to any proceeding to foreclose the right of redemption brought by the city under the provisions of §§ 117 to 121, inclusive, except as is otherwise provided in the said sections.
“§ 119. Same — Parties defendant.
The defendant in any such action shall be the person whose name last appears on the collector’s tax roll as owner of the property. Such person shall be considered and. treated as the owner of the property for the purposes of §§ 117 to 121, inclusive. If, upon the collector’s tax roll it appears that the owner is unknown, then the property shall be proceeded against as belonging to an unknown owner as hereinbefore provided. All other persons having or claiming to have an interest in the property, shall be included as parties defendant by the designation ‘all persons having or claiming to have an interest in property......, (giving a description of the property in substantially the same form as the description which appears on the collector’s tax roll).’ Any or all such persons shall be so designated throughout the proceedings by the above classification and all such persons shall be deemed to be parties defendant in the proceeding as if all the said persons were personally named in the bill of complaint.
“ij 120. Same — Notice.
Notice and summons may be served or notice given exclusively by publication. The order of publication shall be in substantially the same form as heretofore provided and as many properties as is deemed practicable by the city may be included in the same order of publication. Publication of such notice shall be sufficient service thereof on all persons having or claiming to have an interest in the property and shall be of same force and effect as if all such persons were personally served and all of said persons are hereby required to take notice of such proceedings and of any and all steps thereunder.
“§ 121. Same — Final decree.
When, in any action to foreclose the right of redemption brought by the Mayor and City Council of Baltimore, under §§ 117 to 121, inclusive, the court shall make a final decree foreclosing all rights of redemption in the property, the court, in its decree, shall direct the collector to prepare and execute a deed conveying title to the property to the Mayor and City Council of Baltimore. Upon the execution of such a deed the Mayor and City Council of Baltimore shall be vested with an absolute estate in fee simple or a leasehold estate as the case may be, in such property and all persons, including the State of Maryland, infants, incompetents, absentees, and nonresidents, who have or may have had any right, title, interest, claim, lien or equity of redemption in or upon such property shall be barred and forever foreclosed of all such right, title, interest, claim, lien or equity of redemption.”

Baltimore City further elected to bring the action exclusively by publication as authorized by § 120, supra. The record shows that Baltimore City complied with all statutory requisites as to publication and that in addition an equity subpoena was issued for “Property Investors, Inc.” with service of process had upon one Thomas R. Palmer, Resident Agent.

On January 13, 1972 a final decree was passed in the foreclosure proceedings by the Circuit Court No. 2 of Baltimore City, granting “an absolute and undefeasible title, in fee simple, free and clear of all prior alienations and descents of the property and encumbrances thereon, to the extent that the deed (hereafter mentioned) to be executed by the aforesaid Director of Finance shall convey to the Mayor and City Council of Baltimore, a municipal corporation of Maryland, a good and merchantable title, in fee simple, to the said property more particularly described or known as follows:

“ES Parkdale Ave,, 226'3" S.

Druid Park Drive

Containing 1.51 acres

Unimproved

C.T.S. 7534.”

The decree additionally required the said Director of Finance to execute a deed to the Mayor and City Council of Baltimore to accomplish such vesting of title and barred and foreclosed all other “right, title, interest, claim, lien, or equity of redemption in or upon such property.”

On February 1, 1972, pursuant to the terms of the decree, Charles L. Benton, Director of Finance, executed a deed for said property to the Mayor and City Council of Baltimore, the same being duly recorded among the Land Records of Baltimore City in Liber R.H.B. No. 2881, folio 845.

On November 22, 1972 Baltimore City, in consideration of the sum of $5200.00, granted and conveyed the said property to Clipper Industrial Park, a general partnership, (Clipper) by deed authorized under Ordinance No. 190 of the Mayor and City Council of Baltimore, approved on October 13,1972. That deed was recorded among the Land Records of Baltimore City in Liber R.H.B. No. 2971, folio 475.

It was not until March 29, 1973 that Monumental Enterprises, Inc., a body corporate of the State of Maryland, filed a “petition to rescind decree and set aside sale of real property” in the proceedings. Alleging the fact of a tax sale; the fact of the filing of the foreclosure proceeding, and the fact that a subsequent deed had been executed to Clipper, the petition alleged that all such proceedings “were fraudulently conducted by the Defendant Mayor and City Council in that:

“a. said Defendant failed to notify your Petitioner of the alleged delinquent taxes on the said property.
b. said Defendant failed to notify your Petitioner of the tax sale of said property.
c. said Defendant failed to notify your Petitioner of the Petition to foreclose its rights of redemption on said property as evidenced by its affidavit of service filed in these proceedings dated January 7, 1972.
d. said Defendant failed to accurately describe and identify the said property in the order of publication so as to clearly inform your Petitioner that it was its property that was the subject of the aforesaid proceedings.”

The petition prayed (1) that the foreclosure decree be rescinded; (2) that the sale to Clipper be declared null and void, and (3) for other and further relief.

Baltimore City filed an answer denying the previously recited allegations. Clipper filed an answer also denying those allegations and filed as well a cross-claim against the Mayor and City Council of Baltimore to compel refund to Clipper of all monies expended on account of the purchase of the property with interest in the event that the relief prayed by Monumental should be granted.

On June 26, 1973 Wm. E. Hooper and Sons Company of Baltimore City (Hooper) sought to intervene as a party plaintiff. Authority to intervene was granted on the same date by an order of the Circuit Court No. 2 of Baltimore City. On the same date Hooper intervened in the proceedings, alleging inter alia: (a) that it was a subsisting lessee of Property (predecessor of Monumental) of part of the subject tract; and (b) that it was a mortgagee of Monumental. Hooper prayed (1) that its rights to the use and enjoyment of the tract be preserved; and (2) that Property (Monumental) be required to perform and satisfy all of its obligations under the lease agreement. Hooper’s petition alternatively prayed that judgment be extended against Property (Monumental) in such amounts as may fully compensate it for their defaults. The intervention petition ended with a prayer for other and further relief.

The cause came on for hearing before Judge James W. Murphy on May 24, 1974, with a stipulation of certain facts and the presentation of witnesses and exhibits by Monumental and Hooper. At the conclusion of such presentation the chancellor in an oral opinion dismissed the petitions of Monumental and Hooper as they related to Baltimore City and Clipper but reserved for future determination the inter sese claims of Monumental and Hooper. From the order and decree of the same date both Monumental and Hooper have appealed.

The appeal of Monumental raises the following questions:

“1. Whether the City’s failure to comply with the Article 81, §§ 1-123 denied the Court jurisdiction to enter a decree foreclosing Monumental’s right of redemption?
2. Whether the proceeding to foreclose Monumental’s right of redemption was constitutionally defective because it deprived Monumental of property without Due Process of Law?”

The appeal of Hooper raises the following question:

“Should the chancellor have retained jurisdiction over the Mayor and City Council of Baltimore City and Clipper Industrial Park as well as over Monumental and Hooper pending final resolution of this case so that a decree ultimately rendered herein may fully and effectively protect Hooper’s rights as tenant of Monumental where such rights depend, in part, upon whether certain easements crossing property purchased by the Mayor and City Council of Baltimore City at a tax sale remain valid and binding?”

Contentions of Monumental

(a) alleged failure to comply with statute.

Monumental suggests that Baltimore City “disregarded fundamental statutory norms which are required to be observed in the process of assessing property and in selling property once a tax deficiency arises.” From this premise Monumental argues that errors in the conduct of the tax sale — as distinguished from the proceedings for foreclosure of the rights of redemption — should be considered in its attack upon the jurisdiction of the court in the latter proceeding. We are persuaded from our examination of the record that no error in the tax sale procedures was committed. Even if we assumed that there were such errors committed by Baltimore City in the course of preliminary procedures leading to the tax sale, the statute and decisions make it quite clear that such errors are immaterial to the validity of a decree passed by a court in proceedings conducted to foreclose rights of redemption.

Article 81, § 113 reads as follows:

“No application shall thereafter be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose; provided, however, that no reopening of any final decree on the ground of constructive fraud in the conduct of the proceedings to foreclose shall be entertained unless the application therefor with regard to decrees heretofore rendered is made within one year following June 1, 1968, and with regard to decrees hereafter rendered is made within one year from the date of the final decree. If the final decree of the court foreclosing all rights of redemption is set aside on the ground of lack of jurisdiction or constructive fraud, the amount required to redeem shall be the amount required by the provisions of this subtitle, and in addition thereto, the reasonable value, at the date the decree is set aside, of all improvements made on the property by the purchaser and his successors in interest.”

Article 81, § 118, supra, made clear that the provisions of § 113 have application to proceedings brought by the City under the Alternative Method of Foreclosure. (§ 117, supra.)

In Thomas v. Kolker, 195 Md. 470, 73 A. 2d 886, it was said at 474 [887-88]:

“The claim of lack of jurisdiction is based upon the fact that the advertisements of sale and the City Collector’s Tax Roll for 1943 listed lots 46 and 47 as ‘unimproved’, and lot 48 as ‘improved’. Lot 47 was assessed at $220—Lot 48 at $2,400—. We need not consider wnether this inaccuracy in the aavertisement and assessment rolls would have been a fatal objection under the law as it stood prior to 1941. Cf. Gill v. Somer, 191 Md. 204, 60 A. 2d 683; Diener v. Wheatley, 191 Md. 690, 62 A. 2d 783 and Liberty Realty, Inc. v. Kenneth Co., 194 Md. 148, 69 A. 2d 784. In the latter case we said that the Collector is not required to search the land records, but that it is the duty of the owner to see that the tax assessment records are correct. By Chapter 540 of the Acts of 1941, (modified in some respects by Chapter 761, Acts of 1943), a new procedure quasi in rem was established, analogous to a mortgage foreclosure. Gathwright v. Baltimore, 181 Md. 362, 30 A. 2d 252, 145 A. L. R. 590. Where that procedure is followed, defects in the prior proceedings are wholly immaterial. Shapiro v. National Color Printing Co., 191 Md. 194, 60 A. 2d 679; Oppenheimer v. Micbar Co., 192 Md. 192, 63 A. 2d 765.”

It is plain, accordingly, that a final decree foreclosing rights of redemption is conclusive except when lack of jurisdiction is shown or there was fraud in the conduct of the proceedings to foreclosure. This was emphasized by the Court of Appeals in Hardisty v. Kay, 268 Md. 202, 299 A. 2d 771, when it declared at 208 [774]:

“We think the legislature has been explicit in its language and clearly expressed its intention that a final decree is conclusive and no application shall thereafter be entertained unless it falls within the exempted categories.”

Appellant relies heavily on Jannenga v. Johnson, 243 Md. 1, 220 A. 2d 89. We find its reliance misplaced. In Jannenga it was uncontradicted that the taxpayer had in fact paid all taxes prior to the sale. In addition, there was a failure to comply, in the foreclosure proceedings, with Maryland Rule 105 respecting notice, in that no good faith effort there had been made to provide actual notice to the owner. The Court held such failure to make such a good faith effort constituted constructive fraud. We note that the motion to strike in Jannenga, charging constructive fraud, had been filed within one year after passage of the foreclosure decree and thus was within the period of limitations specified in § 113, supra.

In the subject case, however, the record shows by affidavit that notice had been sent to the owner at the address shown on the tax rolls. The record also shows that an equity subpoena had been served upon the resident agent of a corporation bearing the name “Property Investors, Inc.” More importantly, the record shows that the motion to rescind the decree was not filed until March 29, 1973, more than one year after the decree. The course followed by Baltimore City demonstrated a good faith attempt to accord actual notice to the owner.

Monumental suggests that three Maryland cases “held that the prior defects- were jurisdictional errors and thus reopened the decree.” It cites Holland v. Billingsley, 208 Md. 635, 119 A. 2d 380; Thomas v. Hardisty, 217 Md. 523, 143 A. 2d 618; and Jannenga v. Johnson, supra, as supporting that contention. We find that they do not. Both Holland and Thomas turned upon inadequate descriptions in the advertisement of sale. The late Chief Judge Bruñe, after noting that our tax foreclosure proceedings are in rem or quasi in rem, said in Thomas, supra, at 534 [623-24]:

“We think that a proceeding in rem (or quasi in rem) should describe the res with sufficient accuracy so that the description given in a notice of publication would be sufficient to identify the property involved with at least reasonable certainty. * * *
“In the instant case, the description is not merely brief, but clearly erroneous in describing the property as being located in one election district when it is actually located in another.”

Jannenga, supra, as previously indicated, does not stand for the proposition appellant urges. No actual fraud was shown.

We find neither lack of jurisdiction nor fraud in the foreclosure proceedings.

(b) alleged denial of due process.

There can be little doubt that the finality provisions of the tax sale statute could not operate to give validity to a void sale nor to deny, in a proper case, the force and effect of the due process provisions of Article 23 of the Declaration of Rights of Maryland or of the Fourteenth Amendment of the Constitution of the United States. See: Thomas v. Hardisty, at 536 [625]; Jannenga v. Johnson, at 8 [93] (concurring opinion); Ginnavan v. Silverstone, 246 Md. 500, 506, 229 A. 2d 124, 127-28.

The absence of due process in the subject case is suggested as having been produced by what Monumental terms “the statutory defects in the City’s conduct of these proceedings.” These suggested defects are three in number, namely:

1. Failure of the City to correct the address of owner despite “a four year effort by Monumental to correct the tax rolls.”
2. Alleged agreement by telephone by an unknown employee of Baltimore City to consolidate the tax bill for the subject property with that for another property.
3. Failure of assessing authorities to note the change in corporate ownership from Property to Monumental after merger.

The suggested errors attributed by Monumental to Baltimore City are in every instance rather the product of Monumental’s lack of care. The alleged “four year effort by Monumental to correct the tax rolls” consisted solely of typing an address under the name of Property at the time the bills were paid. William M. Kinnersley, Jr., City Collector, called as a witness by Monumental, testified that a form specifically designed for a change of address was included with all tax bills. Monumental never completed such a form.

Monumental suggests also that Baltimore City should have observed a “new address” noted on a form authorizing a reduction of assessment for the year 1964. Mr. Kinnersley testified that when such a form comes through “the only thing we are interested in is changing the assessment.” With a change of address form included with every tax bill this is readily understandable.

We think that what was said in Thomas v. Hardisty, supra, at 531 [622] is highly pertinent here:

“This Court has also upheld tax foreclosure proceedings against attacks based upon the use of an old or erroneous address of the taxpayers, whose rights of redemption were being foreclosed, in cases where a correct address might have been ascertained and used, either easily or without great effort. James v. Zantzinger, supra; Sanchez v. James, 209 Md. 266, 120 A. 2d 836.”

The president of Monumental, a licensed real estate broker for fifteen or sixteen years, gave testimony to the effect that in the course of a telephone conversation with an unknown employee of Baltimore City, a promise had been made to consolidate the tax bill in the subject case with one applicable to another property. He said that subsequently the latter tax bill had in fact been paid. He conceded, however, that there was nothing on the subsequent tax bills for later years that made any reference to the subject property, nor was any increased assessment shown upon them.

The complaint that Baltimore City failed to note the change of corporate ownership resulting from the merger of Property into Monumental again is attributable to action followed by Monumental rather than to the neglect of Baltimore City. Articles of Merger, prepared by Monumental, in the part pertinent to these proceedings read as follows:

“ARTICLE IV
Location of Property
In accordance with the provisions of Article 23 of the Annotated Code of the State of Maryland, Section 65 (7), the location of the properties of each 'of the Corporations, parties to this agreement, are listed below:
Monumental - Baltimore City-
Property • ( ' Baltimore County.”

Since Monumental was the surviving corporation, the Certificate of Merger as to Property was recorded only in Baltimore County (Exhibit 10). It appears upon the face of Exhibit 1 that Monumental only requested one certification. Monumental never made a request to alter the assessment rolls, although tax bills for some years following merger had been received and paid that showed ownership in Property.

In sum, the unhappy stance of Monumental is the end product of its own neglect. We find no merit in Monumental’s contention that it was denied due process of law.

Contentions of Hooper

We regard Hooper’s claim to a right as lessee or mortgagee of Property to be without merit. Claiming under Property, it is quite clear that any right in the subject property as a tenant or mortgagee was foreclosed by the final decree in the original proceedings below. Article 81, § 121.

As to the easement claim, if there are binding easements on the subject tract running with the land, Property (Monumental) would have been powerless to destroy them. Nor would the tax sale successor have acquired such power as the result of a foreclosure decree. On the other hand, if the easements did not run with the land, they would have been foreclosed by the final foreclosure decree. In either event, the petition of Hooper properly was dismissed as to Baltimore City and Clipper.

We shall affirm.

Decree affirmed.

Costs to be paid by Monumental Enterprises, Inc. and Wm. E. Hooper and Sons Company.

      . The form of order of publication prescribed by the law as it existed at the time of the filing of the subject petition for foreclosure is set forth in Article 81, § 107 of the Annotated Code of Maryland (1969 replacement volume) and reads as follows:
      “Order of Publication
      ‘The object of this proceeding is to secure the foreclosure of all rights of redemption in the following property............in the ............, sold by the Collector of Taxes for the............of ............and the State of Maryland to the plaintiff in this proceeding:
      (Here insert description of property in substantially the same form as the description appearing on the Collector’s tax roll.)
      The bill states, among other things, that the amounts necessary for redemption have not been paid, although more than a year and a day from the date of sale has expired.
      It is thereupon this..........day of.........., 19 ._..., by the Circuit Court for.........., Ordered, That notice be given by the insertion of a copy of this order in some newspaper having a general circulation in..........once a week for four successive weeks, warning all persons interested in the said property to be and appear in this Court by the........day of......., 19 . . . ., and redeem the property..........and answer the bill or thereafter a final decree will be rendered foreclosing all rights of redemption in the property, and vesting in the plaintiff a title, free and clear of all encumbrances.’
      (b) Whenever original notice of the pendency of the suit is mailed to a resident or nonresident defendant, whether or not required by this subheading, a copy of the order of publication shall be enclosed with the notice.”

      . The evidence shows that the corporation whose resident agent was served with process was not, in fact, the corporation to whom the land in question had been assessed. The latter corporation had been absorbed by formal merger with Monumental Enterprises, Inc. Thus the corporate name “Property Investors, Inc.” had become available as a corporate name and had been used by others. Monumental had not requested that its name be substituted for that of Property upon the tax rolls. It is the duty of the owner to see that the tax assessment records are correct. Thomas v. Kolker, 195 Md. 470, 474, 73 A. 2d 886, 887-88.

      . The original petition had been filed in the name of “Property Investors Division of Monumental Enterprises, Inc.” but, after motion raising preliminary objection had been filed, the petition was amended to show petitioner’s actual corporate name.

      . Bills for taxes in years prior to the years for which the property was sold, mailed to that address, had been paid.

      . See n. 2, supra.

      . The president and sole stockholder of Monumental admitted that he knew of Clipper’s claim to title “around the first of the year [1973].”

      . Although he concurred in the result for other reasons, Judge (later Chief Judge) Hammond felt constrained to make the following observations at 539 [626]:
      “The Tax Sales Act of 1943 sought to make tax sales immune from attacks not asserted in the proceedings to foreclose the right of redemption other than lack of jurisdiction or fraud in that proceeding. Since the passage of the Act, this Court has faithfully protected its purpose. As a result, the intent of the Act to make tax sales titles valid and marketable has been effectuated. The majority opinion cannot fail seriously to weaken, if not to destroy, the legislative purpose and the prior holdings of this Court in carrying out that purpose in Thomas v. Kolker, 195 Md. 470; Oppenheimer v. Micbar Co., 192 Md. 192; Shapiro v. National Color Printing Co., 191 Md. 194; Gathwright v. Mayor & City Council of Baltimore, 181 Md. 362; James v. Zantzinger, 202 Md. 109; and Sanchez v. James, 209 Md. 266. Never before have prior irregularities been allowed to effect a foreclosure decree or to serve as the basis of a finding of lack of jurisdiction. Now I fear, tax titles have again been made doubtful and litigation as to them invited by unnecessarily — and I think erroneously — basing the decision on a very unsettling ground when the same result properly could have been reached on another ground.”
      But see, Article 81, § 114 relating to faulty property descriptions.

      . The correct Code reference is Section 68 (a) (7).


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    STATE OF MARYLAND v. JOSEPH EUGENE WYNN
    [No. 448,
    September Term, 1974.]

      Decided May 5, 1975.

    The cause was argued before Moylan,  Powers, Gilbert and Mason, JJ.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Stephen R. Tully, Assistant State’s Attorney for Baltimore City, on the brief, for appellant.

      Gerald A. Kroop, with whom was Ronald I. Kurland on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This is an appeal by the State from an order by Judge Robert B. Watts in the Criminal Court of Baltimore granting the appellee’s motion to dismiss several indictments against him on the ground that he had been denied a speedy trial. The indictments which were dismissed were returned on 9 January 1974, charging violation of the narcotics laws, conspiracy, and maintaining a common nuisance house. The motion to dismiss was heard and decided in April 1974, and the State took this appeal.

The criminal offenses are alleged to have occurred on 13 December 1969. Wynn was arrested at that time and a few days later was released on bond. Three indictments were returned against him in January 1970. Several times when the cases were called for trial, continuances were granted to the State on its representation that it was unable to locate the witnesses necessary to prove the case. At a scheduled trial date on 14 December 1972, the State again explained that it had been unable to locate necessary witnesses, and entered a nolle pros, as to each indictment. Defendant’s counsel stated on the record at that time that the entry of the nolle pros, was in no way to be considered as a waiver of the defendant’s right to a speedy trial.

At the hearing on the motion now on appeal the State had no explanation for the three year lapse of time between the arrest and the nolle pros, other than the bare statement that the witnesses had not been located. The State candidly informed the hearing judge that when a newly formed investigative unit in the State’s Attorney’s office was assigned the task of locating the witnesses, some four years after the offenses, the witnesses were located in five days.

We said in State v. Hunter; 16 Md. App. 306 (1972) at 310:

“The right to a speedy trial is relative, and the time within which the trial must be had depends on the facts and circumstances of each particular case. Barker v. Wingo, [407 U. S. 514 (1972)]; State v. Lawless, 13 Md. App. 220, 227, 283 A. 2d 160 (1971); Stevenson v. State, 4 Md. App. 1, 10-11, 241 A. 2d 174 (1967). The facts and circumstances in each particular case should be viewed in the light of four factors: (1) The length of the delay, (2) The reason for the delay, (3) Prejudice to the accused, and (4) Waiver by the accused.”

In State v. Jones, 18 Md. App. 11 (1973) we said, at 23:

“If, upon preliminary examination, we may determine that there has been no ‘delay’ of ‘constitutional dimension’ — if the claim of ‘speedy trial’ denial is clearly frivolous — if the passage of time is patently not inordinate — we are relieved of all necessity to make further analysis. If this threshold of ‘constitutional dimension’ has not been crossed, there is no need for the delicate weighing of social values in order ‘to balance the right of the individual to obtain a speedy trial against the right of society to punish those who are properly shown to have committed a crime against it.’ There is no need to look to the subtle interaction of the four factors: (1) length of delay, (2) reason for delay, (3) prejudice to the accused, and (4) assertion of the right by the accused.”

As to the starting point for calculating delay we said in State v. Hunter, supra, at 311:

“ * * * in order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing. * * * ”

In the case before us the length of the delay — the passage of time — is patently inordinate. It crosses far beyond the threshold of constitutional dimension. Therefore we must view the facts and circumstances in the light of the other three factors listed above.

The reason for the delay falls on the neutral side. The Supreme Court, in Barker v. Wingo, 407 U. S. 514 (1972), explained that different weights should be assigned for different reasons. It said, at 531:

“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”

Delay because" of inability to locate witnesses may or may not be appropriate. It must be weighed in the light of the degree of diligence with which the State pursued its attempts to locate the witnesses. When a concerted effort was made, after four years, the two necessary witnesses were found within five days. It is reasonable to infer that both could have been located readily at any time.

The third factor is whether there was prejudice to the defendant by reason of the delay. When the delay is substantial, as here, it is presumptively prejudical. Barker v. Wingo, supra, at 530, 532. It is for the State to make an affirmative showing of no prejudice. State v. Lawless, 13 Md. App. 220 (1971). There was no such showing here. The defendant has the benefit of the presumption that he was prejudiced by the delay.

To summarize, the delay was substantial; the reason, negligence and lack of due diligence, was attributable to the State; prejudice to the defendant was presumed and there was no evidence to overcome that presumption; and there was no waiver by the appellee.

Therefore, this appellee was denied his constitutional right to a speedy trial under the Sixth Amendment, and the trial judge properly granted his motion to dismiss the indictments against him.

Orders affirmed.

Costs to be paid by the Mayor a,nd City Council of Baltimore.


text:
    GLORIA C. HAYNES v. STATE OF MARYLAND
    [No. 656,
    September Term, 1974.]

      Decided May 5, 1975.

      The cause was argued before Powers and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      Chester Cohen, Assigned Public Defender, for appellant.

      John P. Stafford, Jr., Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Milton B. Allen, State’s Attorney for Baltimore City and James Sherbin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

In a court trial in the Criminal Court of Baltimore, Gloria C. Haynes, the appellant here, was convicted of assault and battery upon Perry William Stewart, as charged in the second count of an information filed against her. The trial judge found the appellant not guilty on the first count, which charged her with assault upon Stewart with intent to murder him. She was also found guilty of discharging a pistol in violation of a City ordinance.

Appellant was represented at the trial, as she is in this Court, by counsel appointed for her by the Office of the Public Defender.

Upon announcing its findings, the court suspended sentence generally on the City ordinance charge, and imposed sentence for the assault and battery, as follows:

“Mr. Clerk, you can say that it is the judgment and sentence of this Court that Gloria C. Haynes, as the penalty for her offense, shall be committed to the Division of Correction for a period of ten years. The Court will suspend [the] final five years of the sentence, and she shall be placed on probation for a period of five years when she is released on parole.
With respect to the initial five years of the sentence, a further condition of probation is that she pay the court costs in this case. Are you privately employed?
MR. COHEN [Defense Counsel]: No, sir.
THE COURT: Further special condition is that she reimburse the State for counsels’ fees of the Public Defender. Miss Haynes, are there any questions of your sentence? What it means is that you have five years’ sentence, and the other five years are suspended. And after you are released on parole — you will be considered for parole after serving one-quarter of your sentence. If you violate that probation in any way, if you violate the terms of probation, you can be brought back before the Court, and if the Court finds that you have violated, then your probation can be stricken and you will be subject to serving the additional five years.”

An appeal, in general terms, was filed on a caption listing both informations. In this Court only the judgment of conviction and sentence for assault and battery was argued. We shall affirm the judgment of conviction of violating the City ordinance without further comment.

Appellant contends that the evidence was not sufficient to support her conviction of assault and battery, that the court erred in not declaring a mistrial, and that the court erred in requiring her, as a condition of probation, to pay court costs and to reimburse the State for counsel fees of the Public Defender. The contention that the conditions of probation were improper was argued in the frame of reference of her constitutional right to counsel, and of the statutes and procedural rules implementing that right. But she has not been denied any constitutional or other right to counsel. Legal representation has been provided for her, and she has had the benefit of the services of an attorney for her trial and for this appeal. We assume that, in addition, the State has borne the entire cost of the case, including the transcript and the brief.

The contention that it was error to impose the conditions of probation which the court did impose raises the question of the court’s power to do so. If the validity of those conditions is to be questioned at all, it must be questioned now. In Finnegan v. State, 4 Md. App. 396, 243 A. 2d 36 (1968), we said, at 403:

“In any event, whether this ‘special term’ of her probation was a proper one cannot be now considered. The validity of conditions of probation as set forth in the original sentence may be determined on appeal from the original judgment, Bird v. State, 231 Md. 432, 437-438, but not on appeal from revocation of probation, because to do so would, in effect, permit a circumvention of Md. Rule, 1012, which requires an appeal to be taken in thirty days.”

In Coleman v. State, 231 Md. 220, 189 A. 2d 616 (1963), the Court of Appeals ordered the correction of a docket entry to show that on a finding of violation of probation there was not a new sentence, but merely that the original sentence became effective. The Court went on to say, referring to the appellant, at 223:

“He, of course, could not appeal from the original sentence in February, 1961, as the time limited for such an appeal had long since expired. Maryland Rule 812 a.
“We may add that appellant’s argument in his brief is limited to a challenge as to the validity of the conditions of his probation as set forth in his original sentence. We do not answer these challenges here, because to do so, would, in effect, permit a circumvention of Rule 812 a, which requires an appeal to be taken within thirty days.”

In suspending a part of the sentence imposed and specifying the terms of probation upon which the suspension was conditioned, the court was exercising that broad authority contained in the statutes. Code, Art. 27, § 639 says, in part:

“The courts may suspend sentence generally or for a definite time, and may make such orders and impose such terms as to costs, recognizance for appearance, or matters relating to the residence or conduct of the convicts as may be deemed proper ^ ;fc )>

Section 641A, somewhat repetitively, says, in part:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.”

We said, of both statutes, in Watson v. State, 17 Md. App. 263, 301 A. 2d 26, cert. denied, 268 Md. 754 (1973), at 274:

“Whatever latitude the statutes repose in the trial judge, it remains, of course, fundamental that conditions of probation must be reasonable and have a rational basis. They must not be the product of arbitrariness or capriciousness. Moreover, the conditions imposed must be clear, definite and capable of being properly comprehended and understood not only by the individual upon whom they are imposed but by those responsible for their enforcement.”

In Finnegan we referred in a footnote, at 403, to Kelly v. State, 151 Md. 87, 133 A. 899 (1926), where the Court of Appeals, in a bastardy case, held that the powers of the trial court, “in the suspension of sentence, were explicitly limited to costs, recognizance for appearance, and matters relating to the residence or conduct of the convict”, and that “[b]y conduct is to be understood the personal behavior or deportment of the convict”. The phrase used by the Court of Appeals appears to be taken from what is now Code, Art. 27, § 639. In the enactment of what is now § 641A in 1970 the legislature placed no expressed limitation on the discretion of the court to, “place the defendant on probation upon such terms and conditions as the courts may deem proper”. But by Acts of Assembly, 1973, ch. 651, the explicitly limiting words of § 639 were left unchanged in a reenactment of that section.

In Watson v. State, supra, we said that we need not reconcile the terms of the several statutes, and held, “that the conditions of probation imposed by the trial judge exceeded the authority reposed in him under any of these statutes.”

The Court of Appeals held in Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963), that banishment from the United States was not a proper condition for suspension of sentence, and was beyond the power of the court and void. The facts in the case before us do not require that we decide whether the power to impose a condition for payment of counsel fees rises from the limited words of § 639 or from the broader words of § 641A.

A condition that the probationer pay court costs and counsel fee for the representation furnished to him as an indigent seems to have been accepted as sufficiently related to personal behavior or deportment in Smith v. State, 11 Md. App. 317, 273 A. 2d 626, cert. denied, 262 Md. 749 (1971). The point was not raised. Smith was placed on probation upon several conditions, among which was that he pay court costs of $73.75 and counsel fee of $100.00, payment (obviously as to terms) to be determined by the Probation Department. His failure to pay anything was the basis of a subsequent finding that he violated his probation. It was from that finding that he appealed. We affirmed. We said, at 323:

“We think the testimony of the Probation Officer established with such reasonable certainty as properly to satisfy the conscience of the court that appellant had violated a condition of probation known to him, namely the payment of court costs and counsel fees. We. hold there was no abuse of discretion in the court’s action.”

It is significant that in Smith the probation was granted and the conditions were imposed on 3 October 1969. The petition charging violation of the conditions was filed on 8 June 1970.

The Office of Public Defender in Maryland was created by Acts of Assembly, 1971, ch. 209, which enacted a new Article 27A of the Annotated Code of Maryland. The creation of the office was effective on 1 July 1971, and the operative provisions of the system became effective on 1 January 1972. Art. 27A states in § 1:

“It is hereby declared to be the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, * * * .”

Definition in § 2 (g) the word “expenses” means all costs incident to investigation, other pretrial preparation, trial and appeal. Section 7 deals with eligibility for Public Defender services, and with recovery of expenses. Subsection (a) provides that eligibility shall be determined on the basis of need, and that need shall be measured according to the person’s financial ability to engage and compensate competent private counsel and to provide all other necessary expenses of representation. It is further stated that the necessary financial ability is a variable, depending on the nature, extent, and liquidity of assets, and on the defendant’s disposable net income.

Four separate references to reimbursement for services appear in § 7. They are:

1. When services are provided to an eligible child, his parents shall be obliged to reimburse the office in such amounts as they can reasonably be expected to pay. (Emphasis added).
2. When it appears that the defendant has or reasonably expects to have means to meet some part of the expenses, he shall be required to reimburse the office in such amounts as he can reasonably be expected to pay. (Emphasis added).
3. When representation is undertaken provisionally before eligibility can be determined, and it is subsequently determined that the person is ineligible, he shall be obliged to reimburse the office for the cost of services rendered to that time.
4. When a defendant shall have or acquire an interest in real property, a lien for the reasonable value of services rendered may be perfected against any and all of his real property except his residence.

In two of the four situations — ownership of real estate and ineligibility from the beginning — the liability to reimburse is unqualified, xn the other two, liability to reimburse is limited to what the person can reasonably be expected to pay. That limitation seems to require that before reimbursement may be ordered or sought, there must be a determination of ability to pay, perhaps using the same standards that govern eligibility initially. Whatever may need to be done, exclusive authority is committed by § 7 (f) to the central collection unit of the Department of Budget and Fiscal Planning, to “do all things necessary and proper to collect all moneys due to the State by way of reimbursement for services rendered” pursuant to the Public Defender Article.

It may be that in their overall effect upon the appellant and upon society, tLe terms of the sentence, its partial suspension, and the conditions of probation in the present case are well designed to punish, reform, and deter. The discretion of a judge in imposing sentence and conditions of probation is very broad, but its exercise must be confined within the limits of other applicable laws and practices.

We conclude that it was the intention of the legislature, in enacting the Public Defender Article, to provide that only in the circumstances specified in that law would the State have the right to require or seek reimbursement for the expenses incurred in carrying out its guarantee of counsel in the representation of indigents in criminal and juvenile proceedings. It is significant also that the legislature specified one State agency which is to do all things necessary and proper to collect money due by way of reimbursement.

It is our holding that the authority of the trial court to require, as a special condition of probation, that the appellant reimburse the State for counsel fees incurred in her defense, was superseded by the Public Defender law. We could strike out this condition of probation, which was beyond the authority of the court to impose, and let the rest of the sentence stand. But it is obvious that the trial judge devised a plan which he considered best for the defendant before him and for society. Eliminating one aspect of the plan cmld defeat the desired result. As the Court of Appeals did xor similar reasons in Bird v. State, supra, and as this Court did in Watson v. State, supra, we shall vacate the sentence for assault and battery and remand the case for imposition of a proper sentence.

We notice, without answering them, several questions which arise from the sentence as imposed. Was it intended that there be any general conditions of probation, in addition to the special conditions? If so, must they be ordered at the time of sentencing? May the imposition of conditions of probation be postponed until the commencement of a deferred probation? If appellant should be released on parole before serving the first five years, who establishes the conditions? For the remainder of the first five years, is she on parole, or on probation? If a violation during that period is alleged, is revocation determined administratively by the Parole Board, or judicially by the court?

In short, as we said in Watson v. State, supra, “the conditions imposed must be clear, definite and capable of being properly comprehended and understood not only by the individual upon whom they are imposed but by those responsible for their enforcement”.

The other two questions have no substantial merit, and may be disposed of without difficulty. Appellant and her boyfriend, Perry Stewart, were visiting in the apartment of Fred Thorpe and his girlfriend, Elizabeth Williams. All were or had been drinking alcoholic beverages. Appellant removed a revolver from her clothing, and Stewart was shot. Each of the four persons present described some of the action.

The trier of the facts could believe that the shooting was intentional, or could believe that it was accidental. The credibility of the witnesses, and the weight to be given to the testimony of each were matters for the trial judge. Since he believed what was quite obviously the more likely version of the events, we cannot say under the appellate test prescribed in Maryland Rule 1086 that his finding was clearly erroneous.

Appellant’s motion for a mistrial arose from a reference by the State’s Attorney to a pretrial statement by Miss Williams in which she stated that appellant had said, “I am going to kill you”. The State’s Attorney was seeking permission to use the statement to refresh the recollection of the witness. The judge did not allow use of the statement. He made it very clear that he would give no effect to what he had heard, and would make his decision on the admissible evidence. He said, “The Court’s mind is an open book waiting for you gentlemen to write on the blank pages, after which I will come up with the ruling.”

Our judicial system must and does assume that judges are capable of excluding from consideration any information not properly before them as evidence. State v. Hutchinson, 260 Md. 227, 271 A. 2d 641 (1970); State v. Babb, 258 Md. 547, 267 A. 2d 190 (1970). Whether to declare a mistrial is within the sound discretion of the trial judge. Kelly v. State, 16 Md. App. 533, 298 A. 2d 470, aff'd, 270 Md. 139, 310 A. 2d 538 (1973); James v. State, 14 Md. App. 689, 288 A. 2d 644 (1972). That discretion was not abused here.

Judgments affirmed.

Sentence for assault and battery vacated and case rema/nded for imposition of a proper sentence.

      . Many other jurisdictions have statutory provisions or administrative procedures for reimbursement of expenses of defense of indigents. In James v. Strange, 407 U. S. 128, 32 L.Ed.2d 600, 92 S. Ct. 2027 (1972) the Supreme Court held invalid under the equal protection clause a Kansas statute because it provided that in an action to compel repayment of counsel fees the indigent was denied the benefit of exemptions available generally to civil judgment debtors.
      In the case of In re Allen, 78 Cal. Rptr. 207, 455 P. 2d 143 (1969) the Supreme Court of California held that a practice, apparently not based on any statute, of imposing as a condition of probation a requirement that the indigent reimburse the county for court appointed counsel, constitutes an impediment to the free exercise of the constitutional right to counsel, and may not be permitted.
      In Fuller v. Oregon, 417 U. S. 40, 40 L.Ed.2d 642, 94 S. Ct. 2116 (1974), the Supreme Court approved the Oregon recoupment statute, which had been construed as never mandatory, and which it said was “quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation”.
      In Rinaldi v. Yeager, 384 U. S. 305, 16 L.Ed.2d 577, 86 S. Ct. 1497 (1966) the Supreme Court held unconstitutional as a denial of equal protection a New Jersey statute authorizing recoupment by withholding prison wages. It remarked, as a dictum, that a proper reimbursement scheme could be enacted, and repayment could easily be made a condition of probation or parole.
      Other cases are State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1972), overruled as to procedure prescribed, State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974); State ex rel. Brundage v. Eide, 83 Wash. 2d 676, 521 P. 2d 706 (1974); State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374, appeal dismissed, 414 U. S. 804, 38 L.Ed.2d 40, 94 S. Ct. 148 (1973).
      Also of interest is Comment, “Reimbursement of Defense Costs as a Condition of Probation for Indigents”, 67 Mich. L. Rev. 1404 (196,9). The draft of ABA Minimum Standards relating to Providing Defense Services says, § 6.4, that reimbursement should not be required, except for fraud in the determination of eligibility.


author: Levine, J.,

text:
    TONY WITHERSPOON v. STATE OF MARYLAND
    [No. 678,
    September Term, 1974.]

      Decided May 5, 1975.

    The cause was argued before Orth, C. J., and Mason, J. and Irving A. Levine, Associate Judge of the Court of Appeals, specially assigned.

      Michael E. Kaminkow, Assigned Public Defender, for appellant.

      Alexander Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Mark Van

      Bavel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Levine, J.,

delivered the opinion of the Court.

This appeal is from judgments of conviction in two cases in which the trial judge (Sklar, J.) accepted pleas of guilty entered by appellant. In one case, appellant was charged with rape, assault and battery, and assault with intent to rape; he pleaded guilty to the latter. In the other case, he was charged with assault and battery, larceny, receiving stolen goods, and robbery; he pleaded guilty to the robbery charge. The court sentenced appellant to a. term of 15 years on the assault with intent to rape conviction and to a term of 10 years on the robbery charge, the two terms to be served consecutively.

The charges arose out of an attack upon a blind female passenger who had entered a taxicab occupied by appellant and a male accomplice. The victim had been placed in the taxicab by a companion apparently on the assumption that one of the male occupants was the regular operator of the vehicle, and that the other was either a passenger or a friend of the driver. Actually, the two males had stolen the cab from the parking lot of the owner.

After driving some distance in the cab, the males attacked the passenger, but despite a vicious effort, were unsuccessful in having sexual intercourse with her. They did, however, remove the sum of $22 from her purse. Following his arrest, appellant made a statement to the police in which he admitted being present in the taxicab, but denied participating in the assault or the robbery. A pretrial motion to suppress that statement, bottomed on Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), was denied by Judge Sklar.

Following the ruling on the statement, plea bargaining ensued between the prosecutor and counsel for appellant during a recess in the trial. Those negotiations led to the two pleas mentioned earlier. Before the tendered pleas were accepted, however, appellant was closely examined by both his attorney and the court. Among the subjects of this inquiry were appellant’s awareness vel non of the constitutional rights at stake in the guilty plea and his understanding of the njaximum sentences which could be imposed in consequence of the two convictions. Then, the prosecutor made a detailed proffer of what the State would prove to establish the corpus delicti and appellant’s criminal agency. The proceedings concluded with the court’s acceptance of the guilty pleas. Disposition was deferred to a later date so that a presentence report could be obtained.

On appeal, these contentions are advanced:

1. That error was committed because of the State’s failure to make a recommendation at the time of sentencing as required by the plea bargain; and that this was compounded by the failure of the record “to adequately and completely reflect the plea bargain.”

2. That appellant lacked an intelligent understanding of either the nature of the offenses to which he pleaded guilty or the possible consequences of his plea.

3. That error occurred in light of “appellant’s failure to admit the conduct comprising the charge,” his denial of guilt to the police, and the tender of his plea against the advice of counsel.

(1)

While appellant was being interrogated by his counsel in open court regarding his tendered plea, it became readily apparent — as the record clearly discloses — that the plea of guilty to the assault with intent to rape charge had been offered on the condition that the State would recommend to the court that a maximum sentence of 15 years be imposed on that charge. It is equally clear from the record that the court was cognizant of this agreement, but cautioned appellant that it was not bound by that recommendation and could impose a maximum sentence of life imprisonment. Moreover, appellant acknowledged that he fully understood the court’s admonition.

Also, with respect to the robbery charge, the court was aware that the State had agreed to make no recommendation, and drew from appellant an acknowledgment that he understood the maximum punishment for this charge to be 10 years. Finally, the court pointedly stated to appellant that even if it were to abide by the State’s recommendation regarding the assault with intent to rape charge, respective sentences of 15 and 10 years could be imposed consecutively. In the company of his father and grandmother, appellant expressed his understanding of these possibilities.

Notwithstanding the extreme care exercised by the trial court, appellant now complains because the State failed to explicitly recommend that the court impose no more than a 15 years’ sentence on the assault charge. The short answer to this contention is that even if it be assumed that the State failed to make that recommendation, the court became fully aware of the agreement and, though not required to do so, abided by it.

Thus, appellant’s heavy reliance on Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1971), is seriously misplaced. There, the prosecutor’s office, despite an agreement to make no recommendation, urged successfully that the maximum penalty of one year be imposed for a gambling violation. Nor is the situation here the same as it was in Miller v. State, 272 Md. 249, 322 A. 2d 527 (1974), where the state agreed to make no recommendation, and then argued successfully against the suggestion contained in the presentence report that conditional probation be granted. Holding that the “plea bargain” had been breached, the Court of Appeals vacated the five years’ sentence and remanded the case for further proceedings. See Wynn v. State, 22 Md. App. 165, 170-71, 322 A. 2d 564 (1974).

Unlike Santobello and Miller, here there was no breach of the agreement which led to the guilty pleas.

(2)

In support of his contention that he lacked an intelligent understanding of either the nature of the offenses to which he pleaded guilty or the possible consequences of his plea, appellant argues that the record “is silent as to whether an explanation of the offenses to which [he] was pleading guilty was given either by counsel or by the court.” He indicates that he was merely informed of the “legal names” of the crimes to which he pleaded guilty. Hence, being a 15 year old 8th-grade student, he “could not have had the requisite ‘intelligent understanding of the nature of the offenses’ ” mandated by Williams v. State, 10 Md. App. 570, 271 A. 2d 777 (1970). He also relies on Duvall v. State, 5 Md. App. 484, 248 A. 2d 401 (1968), in which we held that a guilty plea to the charge of escape was not satisfactorily shown to be freely and intelligently entered where the record failed to establish whether the accused understood the nature of the charge.

There is no merit in appellant’s contention. First, he places a gloss on Duvall which is not borne out by a careful reading of that case. Our concern there was not merely with the nature of the charge, but also with “the possible consequences of a plea of guilty, particularly as to the length of the sentence that could be imposed ....” 5 Md. App. at 487. Secondly, although the prosecutor made a statement indicating Duvall’s guilt of the offense charged in the indictment, the record there failed to show “that any inquiry was made, either by the court or by defense counsel, as to whether [Duvall] understood the nature of the charge . . . .” Ibid.

Here, the record is vastly different. At the commencement of the proceedings, while being arraigned, appellant signified that he was familiar with the indictments which had just been read to him. Moreover, the hearing on his motion to suppress, which consumed an entire day, was punctuated with references to the events forming the basis for the charges. In the course of that hearing, the police officer related the questions and answers which were the disputed object of the motion. The responses which had been furnished to those questions by appellant graphically dispel any notion that he lacked an intelligent understanding of the nature of either assault with intent to rape or robbery. The entire process was virtually repeated later when the prosecutor read the detailed summary of the State’s case, which he proffered to establish a strong factual basis for the plea. Clearly then, appellant possessed an intelligent understanding of the nature of the offenses at the time he tendered his plea. Beasley v. State, 17 Md. App. 7, 14-15, 299 A. 2d 482 (1973), cert. denied, 268 Md. 745 (1973).

What we said earlier completely disposes of any possible contention that appellant did not fully understand the consequences of his guilty plea.

(3)

In North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 (1970), the Supreme Court held that despite the professed belief of the accused in his innocence, his guilty plea was not constitutionally infirm where there was a strong factual basis for the plea and a clearly expressed desire to enter it. The Court recognized that “[w]hether he realized or disbelieved his guilt, [Alford] insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading.” 400 U. S. at 37. Notwithstanding, Alford and our subsequent decision in Williams v. State, 10 Md. App. 570, 271 A. 2d 777 (1970), cert. denied, 261 Md. 730 (1971), appellant argues here that his plea was invalid because the record fails to disclose his “motive” for pleading guilty. This defect, he says, was compounded by his insistence on pleading guilty against the advice of counsel.

As we noted earlier, the Alford requirement was met here, since a strong factual basis for the plea appears in the record. The contention that appellant’s reason for entering the plea is not revealed contrary to Alford, where the accused wished to avoid a more severe punishment, is patently without merit. If a protestation of innocence will not invalidate a plea of guilty, it should follow a fortiori that a mere failure to expressly admit guilt will not do so. North Carolina v. Alford, supra, 400 U. S. at 37. Given a tendered plea of guilty supported by a strong factual basis, neither Alford nor any Maryland cases impose a requirement upon the trial judge to elicit from the accused his motive for the plea. Cf. Howard v. State, 18 Md. App. 44, 48, 304 A. 2d 853 (1973), cert. denied, 269 Md. 759 (1973).

Nor does the failure of counsel to approve the decision of the accused to plead guilty annul the plea if it comports with constitutional standards. As we have indicated, the plea here does so.

Judgments affirmed.


text:
    ROLAND G. WRIGHT, the younger v. STATE OF MARYLAND
    [No. 708,
    September Term, 1974.]

      Decided May 5, 1975.

    The cause was argued before Orth, C. J., and Mason, J., and Irving A. Levine, Associate Judge of the Court of Appeals, specially assigned.

      Roland Walker for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General,

      Milton B. Allen, State’s Attorney for Baltimore City, and Sam Brave, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Levine, J.,

delivered the opinion of the Court.

This appeal is from convictions on charges of storehouse breaking and receiving stolen goods following a jury trial in the Criminal Court of Baltimore. Appellant, Roland G. Wright, the Younger, also had been charged with a number of other offenses allegedly arising out of the same occurrence, but they were eliminated from the case by judgments of acquittal granted by the trial judge (Watts, J.). Because of the limited issue to be dealt with in this opinion, a detailed summary of the facts is unnecessary.

On the morning of January 5, 1974, it was discovered that sometime during the previous evening, the premises of Fort Haulage and Rental Company, Inc. had been burglarized, and property exceeding $4,000 in value had been taken. Within several hours, the investigation focused on appellant, mainly because of an identification of the license tags on his pick-up truck.

At the trial, a police detective testified that after appellant was arrested, he was advised of his rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and that he then signed a police department waiver form. Thereafter, he was interrogated and, in the course of responding to a series of questions, claimed that he had been at home while the crimes were allegedly committed. Then, this exchange occurred during the detective’s testimony:

“Q Did he ever at any later point offer, agree to answer your question as to whether anyone had borrowed [his] truck that evening?
“A No, he didn’t. He refused.
“MR. STANCIL: Your Honor, I’m going to object.
“THE COURT: Overruled.”

In addition to attacking this ruling, appellant alleges several other errors. The first category consists of two purported defects in the instructions to the jury, one respecting the charge of receiving stolen goods and the other pertaining to the defense of alibi. Subsequent to the filing of appellant’s brief, however, the State submitted an affidavit of the court reporter with a corrected transcript. The latter eliminates any possible doubt that the original transcript of testimony was garbled in the two instances concerning us here. We accept the corrections furnished by the reporter, therefore, especially since the transcription errors are so obvious. As so corrected, the record completely undercuts the arguments advanced by appellant, and obviates any need to consider them here.

Additionally, appellant raises a number of other grounds for reversal which bear on the sufficiency of the evidence. We need not reach- these questions either, since a new trial will be necessary in any event.

In our view, the issue presented by appellant’s refusal to answer the detective’s question “as to whether anyone had borrowed [the] truck that evening” is controlled squarely by the decision of the Court of Appeals in Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974). There, the Court held that the Fifth Amendment rights of the accused, as enunciated in Miranda, had been violated by evidence that after the fourfold warnings mandated by that decision had been given, he had refused .to answer several questions which were interspersed among a total of twenty-four. In so holding, the Court emphasized these statements from Miranda, which it also quoted:

“ ‘If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has' shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of complusion, subtle or otherwise.’ 384 U. S. at 473-74.
“ ‘Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.’ Id. at 475-76.
“ ‘In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.’ Id. at 468, n. 37.” 272 Md. at 241 (emphasis added).

As we said in Burko v. State, 19 Md. App. 645, 652, 313 A. 2d 864 (1974), “[s]uch tactics [permitting the police to testify that the accused remained silent when confronted with an accusatory statement], if allowed, would have cloaked the precepts of Miranda in an armor of gauze.” In short, to admit such evidence would effectively penalize the accused for exercising his Fifth Amendment privilege. Accord, United States v. Matos, 444 F. 2d 1071 (7th Cir. 1971); Fowle v. United States, 410 F. 2d 48, 54 (9th Cir. 1969); Baker v. United States, 357 F. 2d 11 (5th Cir. 1966); Fagundes v. United States, 340 F. 2d 673 (1st Cir. 1965); People v. Lampson, 129 Ill.App.2d 72, 262 N.E.2d 601 (1970); State v. Dearman, 198 Kan. 44, 422 P. 2d 573 (1967), cert. denied, 396 U. S. 895 (1969); People v. Severance, 43 Mich. App. 394, 204 N.W.2d 357, 359 (1972); State v. Roberts, 296 Minn. 347, 208 N.W.2d 744 (1973); State v. Beck, 289 Minn. 287, 183 N.W.2d 781 (1971); People v. Abdul Karim Al-Kanani, 26 N.Y.2d 473, 311 N.Y.S.2d 846, 260 N.E.2d 496 (1970); Commonwealth v. Haideman, 449 Pa. 367, 296 A. 2d 765, 767 (1972); cf. Miller v. State, 231 Md. 215, 218, 189 A. 2d 635 (1963).

The State distinguishes this case from Younie with the argument that the question which appellant refused to answer was innocuous, since a response merely would have incriminated someone else. This is manifestly correct, but only if we assume the answer would have been that someone else had borrowed the truck. We cannot make this assumption. It is equally possible that appellant would have been compelled to reveal that no one had borrowed it. In a case where the ownership of the truck, containing property taken during the burglary, linked appellant to the crime, a negative response would have been just as incriminating as an affirmative answer might have been in Younie. In sum, appellant’s refusal to answer might well have resulted from his awareness that to respond would have amounted to an admission of his exclusive possession of the truck, used to commit the crimes, during the critical period.

Nor do we find merit in the State’s contention that the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U. S. 18, 21, 87 S. Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967). Younie is similarly apposite here. The test adopted there in the face of a similar contention of harmless error was that if the error goes to a substantial constitutional right, as it does here, then unless the state can prove beyond a reasonable doubt that the error “in no way influenced the verdict such that the defendant would undoubtedly have been found guilty even if [the erroneously admitted] evidence had not been received, its employment will always be error.” Younie v. State, supra, 272 Md. at 247 (emphasis in original). Because we are unable to say that under the particular facts of this case, the violation of appellant’s Fifth Amendment rights “in no way influenced the verdict,” the error here was not harmless beyond a reasonable doubt.

Since appellant’s refusal to answer the detective’s question was erroneously admitted into evidence, the trial court should have stricken it from the record while issuing a curative instruction to the jury.

Judgments reversed; remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.