author: Moylan, J.,

text:
    DEVINE SEAFOOD, INC. et al. v. ATTORNEY GENERAL OF MARYLAND
    [No. 808,
    September Term, 1976.]

      Decided October 11, 1977.

    The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.
    * Note: Certiorari granted. Court of Appeals of Maryland, December 23,1977.

      Gary A. Graham, with whom were Andrew J. Graham and Graham & Graham on the brief, for appellants.

      Jack J. Shapiro, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Jon F. Os ter, Deputy Attorney General, and John N. Ruth, Assistant Attorney General, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellants are Devine Seafood, Inc., an incorporated retail fish stall which prior to the action in this case had been located in the Lexington Market in Baltimore, Maryland; Leo Devine, the sole owner and President of the aforesaid corporation; John Byus, the manager of the fish stall and a member of the corporation’s Board of Directors; and Tom Byus, a brother of John Byus and an employee of the corporation (hereafter referred to, where appropriate, simply as Devine Seafood). Judge Harry A. Cole, in the Circuit Court for Baltimore City, found the appellants to have been in violation of the Maryland Consumer Protection Act. On July 16,1976, he signed an order granting the relief prayed by Francis B. Burch, the Attorney General of Maryland, the appellee (hereinafter referred to as the Attorney General). The order provided that each of the appellants would be permanently enjoined from engaging in the overcharging policy as set out in the court’s oral opinion; that each of the appellants would be assessed civil fines totaling $38,500; and that the question of whether the corporate charter be forfeited and a receiver of its assets be appointed be reserved provided that the appellants pay the fines levied within fifteen days of the date of the order.

The appellants have appealed from that order, raising four contentions:

1) That the Circuit Court of Baltimore City did not have jurisdiction over the subject matter of the action brought by the Attorney General because a necessary precedent to the filing of such action — an effort by the Division of Consumer Protection to obtain voluntary or involuntary compliance — had not been taken;

2) That the Maryland Consumer Protection Act is unconstitutional because “its enforcement policy lacks such adequate safeguards and ascertainable standards that it promotes an arbitrary and discriminatory policy of enforcement through the selection of alternate modes of enforcement”; and

3) That the evidence was not legally sufficient to sustain the finding of the court that the appellants had violated the Maryland Consumer Protection Act; and

4) That the court erred in imposing excessive fines.

We will deal initially with the legal sufficiency of the evidence. The specific finding of the Circuit Court was that Devine Seafood had engaged in a deliberate scheme to defraud the consuming public by a systematic pattern of overcharging on fresh, whole fish purchased at the stall in the Lexington Market. We hold that the evidence was legally sufficient to sustain this finding.

Three former employees of Devine Seafood testified as to the fraudulent practice. Richard Hergenroeder, a third-year civil engineering student at Drexel University, testified that he worked for Devine Seafood from May, 1974, through August, 1974. His principal duty was to wait on customers. He worked five full days a week, waiting on approximately twenty-five customers each day. Most of the time, he sold fresh, whole fish. He testified that in weighing and charging for the fresh, whole fish, he calculated a price per pound 10$ higher than the price indicated on the price markers placed on the fish in public view on the counter. He followed this procedure as a result of instructions he received from John Byus, the manager of the stall, and Tom Byus, an employee of the stall. His instructions included demonstrations by both men on how to weigh fish and charge customers. After the first several weeks on the job, Hergenroeder engaged in this overcharging on between 80 and 90% of the occasions he sold fresh, whole fish.

Richard Hawks testified that he worked for Devine Seafood for approximately one month during the period of February, 1975. He testified that he charged “an inflated price” of 10$ a pound over the price which the marker indicated to the public. He received his instructions in this regard from Leo Devine and from John Byus. It was Mr. Hawks who first brought the practice to the attention of the Consumer Protection Bureau.

Yet a third employee, Ernest Russell, testified that he worked for Devine Seafood for a five to six month period in 1974. He testified that with respect to the sale of fresh, whole fish, he charged a price that appeared on the side of the price markers not visible to the public, which price was 10 to 15$ higher than the price indicated on the side of the marker visible to the customers. He testified that he received his instructions on overcharging from Leo Devine and John Byus.

One of the assertions made by the appellants herein is that the proceeding was at least quasi-criminal and that there was no corroboration of the testimony of these three participants in the fraudulent scheme, who were thereby accomplices. Although we do not view this action under the Consumer Protection Act as criminal in nature, so as to require corroboration of accomplice testimony, it is unnecessary to come to grips with that legal contention for the reason that there was ample non-accomplice corroboration even if the testimony of the three employees required corroboration. One of the appellants’ witnesses, Vincent Maurice Jones, testified that he worked for Devine Seafood during the month of February, 1975. He testified that he always charged the customer the price indicated on the rear of the price marker and not that shown on the front of the marker. Six price markers were introduced into evidence, which markers had been used at the stall during the month of February, 1975. All showed different prices on the two sides of the markers, one price always being at least 10$ higher than the price on the obverse side of the same marker.

By way of additional corroboration, even assuming such corroboration to be required, the Consumer Protection Bureau sent its investigators to make fish purchases on several occasions during the months of February and March, 1975. Two of those purchases were made before the appellants had been put on notice that an investigation was under way. The salesperson on both of those occasions was Tom Byus. On both occasions — on February 19 and again on February 20 — there were overcharges, which overcharging is not disputed by the appellants.

Judge Cole made the following findings of fact:

“It is indelibly clear to this Court that Leo Devine set upon a course to defraud the persons who patronized his place of business by deliberately posting one price for raw fish for their view and concealing another price for the view of his employees to be charged these customers so as to reap an unlawful profit. This scheme was instituted at least when Richard Hergenroeder was an employee, which was late May, 1974, and continued as a practice of corporate business until discovered by the Consumer Protection Office in February; the practice continued I should say up to February 20, 1975.”
“The proof in this case is overwhelming insofar as this Court is concerned. The Court does not believe Mr. Devine nor his witnesses, but believes Mr. Devine, John Byus and Tom Byus instructed their employees to carry out this unlawful practice.”
“Based on the testimony, the Court finds as a fact that Devine Seafoods, Inc., Leo Devine, John Byus and Tom Byus engaged in the unlawful practice prohibited by the Statute in question from at least July the 1st, 1974 to and through February 20,1975 on each and every working day therein, or a total of 219 days. The Court finds further that there were numerous violations of the Statute on each of these days, but at least one on each of these days. This Court finds it reasonable to infer that these Defendants have together and individually violated the Statute at least one hundred times.”

It is clear to us that the Legislature intended the penalties imposed under the Consumer Protection Act to be in the context of civil proceedings and that the appropriate standard of proof is, therefore, a preponderance of the evidence. We hold that Judge Cole was not clearly erroneous in finding the facts as he did.

The appellants’ second contention can be disposed of summarily. With respect to the constitutionality of the Consumer Protection Act, the short answer is that the constitutionality was not questioned at the trial stage and will not, therefore, be considered on appeal. Maryland Rule 1085. Woodell v. State, 2 Md. App. 433, 234 A. 2d 890; Vuitch v. State, 10 Md. App. 389, 271 A. 2d 371.

The appellants’ third contention is that it is mandatory for the Consumer Protection Division to hold public “cease and desist” order hearings and to attempt to conciliate the matter as provided by Article 83, §§ 20G and 20F, before the Circuit Court has jurisdiction to grant injunctive relief and impose the statutory civil penalties provided by Article 83, §§ 20H and 22. At the time the Attorney General filed the Bill of Complaint in this case on June 19, 1975, the Consumer Protection Act was codified as Article 83, §§ 19-27A. The trial court found all of the violations in this case to have occurred during the period of July 1, 1974, through February 20, 1975. The case, therefore, is governed by the provisions of the Consumer Protection Act as they were codified in Article 83, §§ 19-27A. See Article 1, § 3, Annotated Code of Maryland.

The appellants predicate their contention that an effort at conciliation is a necessary condition precedent to the seeking of injunctive relief upon the language of Article 83, § 20F, which provides, in pertinent part:

“(b) Upon the filing of a complaint, the division shall make an investigation as he deems appropriate to ascertain facts and issues. In making these investigations and determinations he may use the authority granted to the Department in § 20C of this subheading.... If the division determines that there are reasonable grounds to believe a violation has occurred, it shall attempt to conciliate the matter by methods of initial conference and persuasion with all interested parties and their representatives chosen to assist them.”

The appellants predicate their contention that a “cease and desist” order hearing is a necessary condition precedent to the seeking of injunctive relief upon the language of § 20G, which provides, in pertinent part:

“(a) With respect to a matter which it believes may involve a violation of these regulations the division, may hold a public hearing to determine if a violation of these regulations has been committed. The division shall serve upon the person complained against a statement of charges and shall serve upon all parties of record a notice of the time and place of hearing. The hearing shall be open to the public and shall be held not less than ten days after service of the statement of charges.”

Section 20G, by its very terms, vests discretion in the Consumer Protection Division and is not mandatory. Nor do we have any difficulty in concluding that § 20F is not a mandatory precondition to seeking injunctive relief. The scheme contemplated by § 20F, in its entirety, is one wherein a consumer files a complaint in writing. The Consumer Protection Division then makes an effort, where appropriate, to seat the complaining consumer and the alleged violator down at a conference table in a commendable effort to reconcile the differences between them and to reach an appropriate settlement and to see, in the course of that effort, that any unlawful trade practices are discontinued.

In the instant case, it was not a chagrined consumer who brought the alleged violations on the part of Devine Seafood to the attention of the Consumer Protection Division. Involved rather was a deliberately fraudulent pattern of long-standing duration to defraud the consuming public at large. The consumers who had been victimized were numerous but unknown. If the Consumer Protection Act meant no more than that the erring party in a case such as this would have to agree, by way of conciliation, to “sin no more” in order to escape any sanctions would be to emasculate the Act radically. We hold that the more severe sanctions contemplated by § 20H and § 22 are available to the Attorney General when, in the exercise of his discretion, such stronger measures in the courtroom are called for. Section 20H provides:

“A merchant who is found to have committed a violation of any of the provisions of this subheading relating to unlawful trade practices shall be liable for the payment to the State of a civil penalty, recoverable in a civil action, in the sum of not more than $300 for each violation. In the event of subsequent violations for the same unfair trade practice, the merchant is liable to the State in the amount of $500 as a civil penálty for each subsequent violation.”

The entire scheme of the Consumer Protection Act contemplates three different methods through which complaints may arise and sanctions may be imposed. An aggrieved consumer may, on his own, bring a complaint to the attention of the Consumer Protection Division. That consumer, however, is not thereby precluded from seeking other appropriate relief, for which § 20F (g) provides explicitly:

“(g) Nothing in this section prevents any consumer from exercising any right or seeking any remedy to which he might otherwise be entitled or from filing any complaint with any other agency, or court of law or equity.”

Secondly, and somewhat more broadly, the Consumer Protection Division itself may be the moving party. It may, of course, act, by way of attempted conciliation or otherwise in response to the complaints brought in writing by individual citizen-consumers. It may, moreover, act upon its own initiative, from whatever stimulus, to investigate individual instances or broader patterns of unfair or deceptive practices. Its techniques and procedures are those appropriate to an administrative agency and are less formal than those which apply in the courtroom setting. Nothing, however, prevents the Consumer Protection Division from “bucking” a suspected violation up to a higher plateau of sanction-seeking, where such escalation seems appropriate. Section 20C (6) provides that the Consumer Protection Division, even while making its own investigation, has the right to:

“Report to the appropriate law-enforcement officers any information concerning violations of any consumer protection law.”

Among the appropriate law enforcement officers to whom information concerning violations may be reported is the Attorney General. In addition to seeking the imposition of civil penalties contemplated by § 20H, the Attorney General may, inter alia, move for an injunction under § 22, which provides, in pertinent part:

“If a person has engaged in or is engaging in any practice declared unlawful by this subtitle, the Attorney General may obtain an injunction to prohibit the person from continuing the practice or any acts in furtherance of the practice. Notice of the general relief sought shall be served at least seven days prior to the institution of the action for an injunction. The court may pass any order or judgment necessary to: (1) prevent the use or employment by a person of any prohibited practice; (2) restore to a person in interest any moneys or property, real or personal acquired by means of any practice declared unlawful in this subtitle; or (3) appoint a receiver in cases of willful violation of this subtitle.”

Although by no means limited to such situations, action in the courts by the Attorney General is particularly appropriate where the violations are of a higher order, quantitatively and qualitatively, and most especially where the violations are “willful.” There is nothing in the language of the Act which precludes the Attorney General from seeking the sanctions available in the courtroom unless and until the lesser administrative remedies have first been tried. We can read no such intent in the minds of the Legislature and find, therefore, no impediment to the action taken by the Attorney General in this case. Indeed, the finding of the trial judge places the imprimatur of the courtroom upon the appropriateness of the bringing of the action to the courtroom. Our holding in this regard is invigorated by the clear command of the Legislature in § 20A:

“This subheading shall be liberally construed and applied to promote its [the Consume? Protection Act’s] purpose and policies.”

The appellants’ final contention is that the civil fines imposed were excessive. Judge Cole found that at least one violation per day occurred over a period of 100 days. He imposed upon the Devine Seafood Corporation itself a fine of $100 for each violation, for a total of $10,000. He imposed upon Leo Devine, the sole owner and President of the corporation, a fine of $250 per violation, for a total of $25,000. He imposed upon John Byus, the manager of: the fish stall and a member of the corporation’s Board of Directors, a fine of $25 per violation, for a total of $2,500. He imposed upon Tom Byus a fine of $10 per violation, for a total of $1,000. The contention of the appellants is that the language of § 20H limits the civil fine to a maximum of $300 for each violation. The appellants argue that all of the various individuals or corporate identities of Devine Seafood should be considered as a unit for purposes of this $300 per violation limit and that the combination of defendants received actual fines, in the aggregate, of $380 per violation. They argue that the Attorney General could not proceed against both the corporation and its employees, or at least could not have fines assessed against both.

Section 20H reads, in pertinent part:

“A merchant who is found to have committed a violation of any of the provisions of this subheading relating to unlawful trade practices shall be liable for the payment to the State of a civil penalty, recoverable in a civil action, in the sum of not more than $300 for each violation.”

The term merchant is defined under § 20 (h) as:

“any person who offers or makes available to consumers, either directly or' indirectly, merchandise, goods, services or credit.”

The term person is defined under § 20 (e) as:

“an individual proprietor, partnership, corporation, firm, cooperative, association or any other group of individuals, however organized.”

The short answer to this contention is that the question of the applicability of the civil penalty provisions of the Consumer Protection Act to “employees” of the corporation was never raised at the trial below. This failure to raise the issue was notwithstanding the fact that all of the individual appellants in this case were identified in the original pleadings as defendants to the action with specific prayers that the civil penalties be assessed against them. The trial judge conducted extensive questioning on the issue of civil penalties. Under the circumstances, the failure to raise the issue at the trial level which is now being urged before us operates to preclude appellate review. Maryland Rule 1085.

Judgments affirmed; costs to be paid by appellants.

      . The issue as to the standard of proof is really academic in view of Judge Cole’s words, “It is indelibly clear to this Court...” and “The proof in this case is overwhelming.” We would have no difficulty Ih concluding from those words that Judge Cole had been convinced by a “clear and convincing” standard and even by a “beyond a reasonable doubt” standard, were those the appropriate measures of proof to be applied.
      ' See, moreover, Helvering v. Mitchell, 303 U. S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938). And see Prince George’s County v. Blue Bird Cab Co., Inc., 263 Md. 655, 284 A. 2d 203, and Gatewood v. State, 264 Md. 301, 285 A. 2d 623.

      . The Consumer Protection Act was revised as of July 1, 1975, and is now codified as Title 13 of the Commercial Law Article, Annotated Code of Maryland.


source: Caselaw Access Project

license: Public Domain

text:
    MARGARET REESE v. STATE OF MARYLAND
    [No. 834,
    September Term, 1976.]

      Decided October 13, 1977.

    The cause was argued before Moylan, Powers and Lowe, JJ.

      Walter M. Baker, with whom were Baker & Lockhart, P.A. on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Floyd L. Parks, State’s Attorney for Kent County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

It is not without significance that one searching for the law of forgery under the alphabetized scheme of Article 27 of the Annotated Code of Maryland will not find anything under “F” for “Forgery” or even for “Fraud and Forgery,” but must seek it out under the letter “C” for “Counterfeiting and Forgery.” Although without any formal status in interpreting legislative intent, of course, that very placement in the Code is nonetheless a telltale, albeit unofficial, clue to the fundamental character of the offense itself.

The appellant, Margaret Reese, the Deputy Treasurer for Kent County, was indicted along with the County Treasurer upon 66 counts, charging primarily embezzlement and forgery. The case involved an elaborate scheme to defraud Kent County of over $10,000. Pursuant to her Suggestion for Removal, the appellant’s case was transferred to the Circuit Court for Caroline County for trial. A jury, presided over by Judge K. Thomas Everngam, acquitted the appellant on 58 of the charges but found her guilty on eight counts of forgery. Upon this appeal, she raises two contentions:

1) That the evidence was not legally sufficient to sustain the convictions of forgery; and

2) That the making of false entries in the tax rolls of Kent County does not constitute the forgery of an “acquittance or receipt for money or property” proscribed by Article 27, § 44, of which she was charged and convicted.

In view of our disposition of the case upon the second contention, it is unnecessary to deal with the first. Briefly, however, and in significantly oversimplified form, we will summarize the criminal scheme in order to set the stage for the consideration of the second contention.

With the County Treasurer, Elizabeth A. Crowding, as the principal criminal agent and with the appellant as a clearly inferable accomplice, an elaborate scheme over a several-year period was put into effect to siphon off money coming into the Kent County Treasurer’s Office for tax purposes. In radically simplified form, the scheme worked in the following fashion. We will take initially the tax year that began on July 1,1973 (1973 tax year). A number of property owners of Kent County came to the Treasurer’s Office to pay their property taxes. Many paid by check; many paid in cash. All were given receipts (or acquittances) indicating quite properly that they had paid their taxes in the appropriate amount. The fraudulent scheme involved the unlawful conversion of the cash and the manipulation of the records in the Treasurer’s Office to hide that unlawful conversion.

Copies of the original tax bills were kept initially in a file drawer. Upon the payment of the property taxes, these copies were taken out of the file drawer. Their very absence therefrom was one of the indications regularly resorted to to determine that the taxes had been paid. The second and more formal indication was the recording of the payment upon the tax rolls. The appellant was one of several persons who made such recordings.

The normal course of events would have called for a bank deposit slip to have been made out recording the receipts for the day. The slip and the appropriate checks and cash would then be deposited. What in fact happened was that the cash was pocketed. The deposit slips and accompanying adding machine tapes showed the amounts of money that had come in from the taxpayers who paid by check. In the tax records, the checks were used to cover the bills of those who had paid in cash. The tax bills of those who had paid in cash were thus marked as paid. Those who had paid by check, however, wére not marked as paid. As far as the tax rolls were concerned, those tax bills were still due. Those taxpayers were never alerted to possible danger, however, because the canceled checks they received from the bank indicated to them that all was well. They had no reason to suspect that their checks were applied to other accounts.

As of the end of the first year of the fraudulent scheme, there was clearly criminal embezzlement. There were no false entries, however. The receipts (or acquittances) which were issued to the taxpayers (both those who paid in cash and those who paid by check) were true and correct. The crime with respect to the tax records themselves was to that point only one of omission, the failure to record as paid those bills which had in fact been paid and should have been so recorded.

The first affirmative or written falsity occurred as the fraudulent scheme entered its second year, as property taxes became due for the tax year that began on July 1, 1974 (1974 tax year). Again, the receipts (or acquittances) that were issued to the taxpayers themselves were true and correct. When it came to making entries in the tax rolls, however, a significant amount of the money paid in for the 1974 tax year was falsely recorded as payment for 1973 taxes, which were ostensibly delinquent according to the tax rolls but which had in fact been paid the year before. Some of these entries also falsely showed interest having been paid on the delinquent amounts. Some months later, an audit revealed irregularities, a more intensive investigation was made and the criminal scheme came undone.

The appellant was shown to have been responsible for some of the entries made in the tax rolls which falsely showed 1973 taxes as not having been paid until 1974 and which falsely showed that interest had been paid for the delinquency, when in fact it had not. We are satisfied that the evidence was legally sufficient to permit a jury to find that the appellant perpetrated an embezzlement. She, and Mrs. Crowding, had as agents received money on behalf of Kent County and the evidence supported a finding that they had unlawfully converted that money to their own use. The appellant, however, was not convicted of embezzlement. She was convicted specifically of unlawfully and falsely making, altering, forging, and counterfeiting certain entries in violation of Article 27, § 44. For two separate reasons, we hold that the convictions cannot stand. We hold that the actions imputable to the appellant, even if fraudulent, did not constitute forgery generally and did not constitute forgery of acquittances or receipts specifically.

Forgery, in its most fundamental character, is not an offense involving false and fraudulent writing generally but is a very specific offense in the nature of counterfeiting. It involves not the making of false entries for fraudulent purposes in an otherwise genuine document but the very manufacturing of a false or spurious document itself. In this regard, Clark and Marshall, The Law of Crimes (Sixth Wingersky Edition), is very specific at 845-846:

“To constitute forgery at common law, there must be a false making of an instrument. Mere fraud and false pretenses are not enough. The instrument must be false. It must be made to appear to be other than it really is. It is forgery to sign another man’s name to a note, without authority and with intent to defraud, and thus make the instrument appear to be the note of the person whose name is signed; but it is not forgery for a person to sign his own name to an instrument, and falsely and fraudulently represent that he has authority to bind another by doing so, or for a person to sign another’s name ‘by’ himself as attorney in fact, for in such a case the instrument is not falsely made, but is just what it purports to be, and the signer is guilty of false pretenses only. The same is true of a receipt. It is not forgery for a person to falsely and fraudulently represent that he has authority to receive money for another, and to sign, not the other’s name, but his own, to the receipt for the money.”

LaFave and Scott, Criminal Law (1972) makes the same very clear distinction, at 671:

“Forgery is a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity. Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document. A foreman who pads the timeroll by crediting himself with working more hours than he actually has worked does not commit forgery, since his lie relates to something other than the genuineness of the timeroll.”

Perkins, Criminal Law (2nd Ed., 1969), is equally emphatic in distinguishing between false contents in a genuine document and the false making of a spurious document, saying at 345:

“For forgery it is not sufficent for the -writing to tell a lie; the writing itself must BE A LIE.” (Emphasis in original)
“It is an indispensable requirement of forgery that the writing be false. It may have been false in its inception or may have been made so by subsequent tampering with what was originally genuine; but it must be a false writing. In this connection it is essential to distinguish between a false instrument and false statements in an instrument. No amount of misstatement of fact and no amount of fraud will make a false instrument out of what purports to be the very instrument which it is in fact and in law.
“If a man fraudulently executes a deed to real estate with a covenant that it is free and clear of encumbrances, this is a genuine deed even if the grantor knows that the land is subject to a heavy mortgage. It is a genuine deed with a false covenant. This is a case of the false making of a writing with intent to defraud, but it will not support a conviction of forgery because for this purpose it would be necessary to show that the deed itself is false. Typical instances of writings which are falsely made with intent to defraud but are not forgery because they are genuine writings with false statements rather than false writing, are (1) a ‘padded’ time roll issued by the one authorized to issue it, (2) a warehouse receipt fraudulently issued by a warehouse which did not have the grain purportedly represented thereby, (3) a check wrongfully drawn on a bank in which the drawer has no funds, or insufficient funds, or (4) a false entry made in one’s own account book.” (Emphasis in original)

The Supreme Court was scrupulously careful to distinguish between the writing of false and fraudulent statements, which is not forgery, and the very making of a spurious or non-genuine document, which is forgery, in Gilbert v. United States, 370 U. S. 650, 658, 82 S. Ct. 1399, 8 L.Ed.2d 750, 756 (1962):

“Nor are we impressed with the argument that ‘forge’ in § 495 should be given a broader scope than its common-law meaning because contained in a statute aimed at protecting the Government against fraud. Other federal statutes are ample enough to protect the Government against fraud and false statements. . . . Still further, it is significant that cases construing ‘forge’ under other federal statutes have generally drawn a distinction between false or fraudulent statements and spurious or fictitious makings. . . . Where the ‘falsity lies in the representation of facts, not in the genuineness of execution,’ it is not forgery.”

Two state cases, interpreting, the general common law of forgery, which still prevails in Maryland, are most lucid in making the distinction. One of them is State v. Young, 46 N. H. 266, 270 (1865):

“The writing or instrument must in itself be false, not genuine, a counterfeit, and not the true instrument it purports to be.”

The other is De Rose v. People, 64 Colo. 332, 334, 171 P. 359, 360 (1918):

“This writing is what it purports to be: a true and genuine instrument, although it contains false statements. It is not a false paper, and the execution of such a document does not constitute forgery. The prosecution failed to distinguish between falsely making an instrument, and making a false instrument, ... A false statement of fact in an instrument, which is itself genuine, by which another person is deceived and defrauded, is not forgery.”

Although some states have, with little eye to history, broadened by statute the definition of forgery and are, therefore, in the process of transmuting it from a counterfeiting-type offense into a more general fraud-type offense, Maryland has not done so. In Smith v. State, 7 Md. App. 457, 256 A. 2d 357, Chief Judge Murphy lucidly noted that we follow the common law and that the word “forge” in Maryland is synonymous with “falsely make” and with “counterfeit.” He said, for this Court, at 7 Md. App. 461-462:

“By common definition forgery is false making, Reddick v. State, supra, and as used in Section 44, we think the terms ‘falsely make’ and ‘forge’ are synonymous, both describing a spurious or fictitious making relating to the genuineness of execution of an instrument. See Marteney v. United States, 216 F. 2d 760, 763 (10th Cir.). Similarly, the term ‘counterfeit’ in common parlance signifies the fabrication of a false image or representation; counterfeiting an instrument means falsely making it .... It was noted in Arnold v. Cost, supra, that ‘the counterfeiting of any writing with a fraudulent intent whereby another may be prejudiced, is forgery at common law.’ The words ‘forged’ and ‘counterfeited’ as used in a statute creating the offense of passing ‘forged, counterfeited or falsely altered instruments’ have been held to be synonymous. Hobbs v. State, 9 Mo. 855. And in Greathouse v. United States, 170 F. 2d 512 (4th. Cir.), it was held that under the National Stolen Property Act which penalizes the transportation of ‘falsely made, forged, altered or counterfeited securities’ the quoted words were ejusdem generis and usually employed to denounce the crime of forgery. In light of these principles, and bearing in mind that as originally enacted in 1799, Section 44 was -entitled ‘An act for the more effectual preventing of forgery,’ we think the terms ‘falsely make, forge or counterfeit,’ as used in the Section, are virtually synonymous and were collectively intended to proscribe the crime of forgery.”

We hold that in this case the making of false entries in the tax rolls may well have been fraudulent but was not a forgery. There was no manufacturing or counterfeiting of a spurious or non-genuine tax roll; there was merely the making of false statements in a genuine document.

Judgments reversed; costs to be paid by County Commissioners for Kent County.

      . Mrs. Crowding was indicted on 115 counts charging primarily embezzlement and forgery. Her initial trial in Kent County resulted in a hung jury. Upon her retrial in Calvert County, she was convicted of 28 counts of embezzlement and 11 counts of forgery.


text:
    OTTWAY LEON CURTIS, SR. v. STATE OF MARYLAND
    [No. 966,
    September Term, 1976.]

      Decided October 13, 1977.

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

      Fred Warren Bennett, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Charles Strong, Assistant State’s Attorney for Prince George's County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Ottway Leon Curtis, Sr., is presently appealing from the granting by Judges James F. Couch, Jr. and Robert J. Woods, in the Circuit Court for Prince George’s County, of the State’s Motion to Dismiss his second Post Conviction Petition.

The appellant was initially convicted on September 14, 1967, in the Circuit Court for Prince George’s County of murder in the first degree. That conviction was appealed and we affirmed it in Curtis v. State, 4 Md. App. 499, 243 A. 2d 656. Certiorari was subsequently denied by the Court of Appeals on January 19, 1969. The appellant then petitioned for post conviction relief and that petition was denied on May 28, 1970. In an unreported per curiam opinion, we denied leave to appeal.

The present and second petition under the Uniform Post Conviction Procedure Act was filed in Prince George’s County on March 29, 1976. In it, the appellant raised as issues the ineffective assistance of counsel both at his original trial and upon his direct appeal to this Court from the trial court’s verdict. The State filed a Motion to Dismiss the Amended Petition on the grounds that the issue had been waived by virtue of not having been raised in the course of the first Post Conviction Petition. The appellant filed an Opposition to the Motion to Dismiss, claiming therein that he had received ineffective assistance of counsel at his first post conviction hearing and that this, coupled with his own intellectual inadequacies, constituted the “special circumstances” explaining why he had not raised the issue on the earlier occasion. After a hearing in open court on August 23, 1976, Judges Couch and Woods granted the State’s Motion to Dismiss. The appellant filed a timely Application for Leave to Appeal from that judgment and on November 8, 1976, we ordered the'case transferred to the regular appeal docket.

The controlling law for present purposes is Article 27, §645A: “Right of appeal of convicted persons,” which reads, in pertinent part:

“(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” (Emphasis supplied)

We hold that the hearing judges were correct in granting the State’s Motion to Dismiss. Even if the evidence as to the waiver of the contention were equivocal, which we are not suggesting, the statute places the burden of proof squarely upon the appellant. We hold that he did not show such “special circumstances” as would excuse him from his failure to raise the allegation of error in his first Post Conviction Petition. Similarly, we hold that the appellant did not adequately rebut the presumption that he “intelligently and knowingly failed to make such allegation” in the earlier petition.

In coming to grips with a contention such as that now before us, there is involved not simply the literal state of the law, which works against the apppellant, but also policy considerations of deeper import. The appellant was initially afforded a trial in the Criminal Court, then an appeal to this Court, then a Petition for Certiorari to the Court of Appeals, then a hearing on his first Post Conviction Petition and then an application for leave to appeal to this Court from the denial of that petition. To insert yet a sixth or a seventh screen into the criminal process in an effort to catch even the remotest possibility of arguable error is to pass far beyond the point of diminishing returns. The pervasive complaint about the criminal justice system as it exists today is that there is no finality. The salutary purpose of the Uniform Post Conviction Procedure Act is to consolidate all possible allegations of error and to dispose of them in a single hearing. Lightly to erode that purpose is, in our judgment, to do a great disservice to our law in the larger sense.

Whether couched in terms of “special circumstances” or in terms of the lack of “a knowing and intelligent waiver,” the appellant is pushing upon us the same facts. He urges upon us his seventh-grade education, his IQ of 72, his lack of legal training and his history of alcoholism as demonstrating that he needed the effective assistance of counsel. There is no quarrel with that premise as far as it goes. From this, he advances the further proposition that the mere failure of counsel in the first Post Conviction Petition to raise the issue of ineffective assistance of trial counsel is, ipso facto, such ineffective assistance at the post conviction level as to constitute a “special circumstance” and to fend off the otherwise foreclosing effect of waiver. We cannot buy that proposition. Almost every petitioner under the Uniform Post Conviction Procedure Act is a layman, untrained in the law, who needs the effective assistance of counsel. The logical extension that would follow from this appellant’s present contention would be that convicted prisoners could continue to raise endless allegations of error in endless petitions, simply because earlier counsel upon earlier petitions had not thought to advise them as to the possibility of such contentions. The effort of the law to achieve some finality would be totally sabotaged.

What the appellant urges upon us is a paradox: The failure to raise a contention at the earliest possible opportunity constitutes a waiver of that contention, but the failure of counsel to urge the contention constitutes, by definition, ineffective assistance of counsel so as to negate the waiver. The striving for finality is stillborn.

In stating the case most fully against the appellant, ironically we do indirectly what we are relieved of all necessity of doing directly — reviewing at least summarily the effective assistance of counsel at earlier stages. We look first to the assistance of counsel rendered at the first Post Conviction Petition hearing. It is a truism that as a basis for post conviction petition review, only errors relating to the validity of the original judgment are properly cognizable. Cf. Creswell v. Director, 2 Md. App. 142, 233 A. 2d 375; Robinson v. Director, 3 Md. App. 222, 238 A. 2d 124. The effective assistance of counsel at the post conviction level is not an issue in and of itself, but it may be at least an aspect of the collateral issue of whether the failure to raise a contention at that level constitutes a waiver of that contention. In his first Post Conviction Petition, the appellant, with the assistance of counsel, raised four issues, which are unnecessary to recite here. Although we denied leave to appeal, the issues raised were arguable and were well argued. We perceive no evidence of ineffectiveness upon the part of that counsel. To agree with the appellant here would be to hold that the failure of that counsel to raise at that time the contention that trial counsel had been ineffective was itself ineffectiveness per se. We decline to do so, for that would totally subvert §645A. We note, moreover, that from the vantage point of that . Post Conviction Petition counsel looking back at the direct appeal and beyond that back to the original trial, there was no good reason to raise the issue of ineffectiveness of earlier counsel.

In the first place, the issue, by definition, does not apply to the appellate stage but only to the trial stage. Even at the trial stage, trial counsel attempted resourcefully to defend against the murder charge on the very pertinent grounds of insanity. That he focused his defense on that area and did not 1) anticipate Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), as most did not, and 2) argue a “diminished responsibility” theory that has never been accepted in Maryland law did not constitute ineffective assistance of counsel. The applicable standard in this regard was well set out by State v. Merchant, 10 Md. App. 545, 551, 271 A. 2d 752:

“Mere errors in trial tactics are not sufficient to constitute incompetency of counsel. Hall v. Warden, 224 Md. 662, 665; Gullion v. Warden, 3 Md. App. 263, 265; Henry v. Mississippi, 379 U. S. 443, 13 L.Ed.2d 408. Furthermore, failure to raise an available defense at trial does not, in itself, constitute incompetency of counsel. Annotation at 74 A.L.R.2d 1390,1449.”

Perceiving no ineffectiveness at the trial state, the post conviction, stage attorney had no reason to suggest ineffective assistance as a ground for post conviction relief.

A parting word is in order on the subject of the word “waiver.” The appellant leans heavily upon the language of Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), which recites that:

“ ‘[C]ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”

Part and parcel of this principle is usually the follow-up recitation from Camley v. Cochran, 369 U. S. 506, 516, 82 S. Ct. 884, 8 L.Ed.2d 70 (1962), which states that:

“Presuming waiver from a silent record is impermissible.”

Initially, it must be noticed that waiver is not a single, monolithic phenomenon. Pertinent is our observation in Miller v. Warden, 16 Md. App. 614, 615, 299 A. 2d 862:

“The only thing that can be said about constitutional waiver in the abstract is that nothing can be said about constitutional waiver in the abstract. It is as protean in its manifestations as the number of constitutional rights which there are to be waived multiplied by the number of circumstances in which they may be waived. It is unnecessary in deciding the case before us to attempt to analyze this shifting quality of waiver in its manifold contexts. Even a partial cataloguing of its applications illustrates the breadth of the spectrum through which it vacillates — operating at times with fastidious forbearance, at times blithely and summarily, and frequently with coquettish inconstancy.”

Neither is “the effective assistance of counsel” a single, monolithic phenomenon. When it comes to a waiver of the total package — the very presence of a lawyer at one’s side during the course of a trial — the rigid Johnson v. Zerbst waiver standard is appropriate and waiver, quite properly, never will be presumed from a silent record. The Sixth Amendment ¡right to the assistance of counsel at other “critical stages,” however, shades off gradually in terms of our reluctance to presume waiver either from the actions of the accused or from his complete inaction. An accused has the right to the assistance of counsel during the course of a custodial interrogation. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). He must be informed of that right. Once having been informed, however, his waiver of it is implicit in a prima facie showing that a subsequent confession was freely and voluntarily made. Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280. An accused has the right to the assistance of counsel when he is placed in a police lineup. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967). Yet a denial of that right will avail him naught, if he fails to object at trial either to direct evidence of that lineup identification or to a courtroom identification possibly stemming from that lineup identification. Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285.

Although the waiver of the total package, the very presence of a lawyer at one’s side during trial, will not be presumed from a silent record, it by no means follows that the waiver of lesser, constituent elements that go into that totality may not be presumed from a silent record. Even when dealing with Sixth Amendment constitutional rights, we said in Miller v. Warden, supra, at 16 Md. App. 618-620:

“In the area of Sixth Amendment protections, it cannot seriously be maintained that a lawyer’s ‘waiving of the reading of the indictment’ will not bind his client in terms of the right ‘to be informed of the nature and cause of the accusation.’ Nor can it be maintained that the right to ‘an impartial jury’ requires an affirmative explanation of the right to ask for a change of venue, the right to challenge the array, the right to propound certain voir dire questions, the right to challenge for cause and the right to exercise peremptory challenges followed by an express waiver of such rights from the mouth of the accused.
The Sixth Amendment right of confrontation reveals the sliding scale between the degree to which a right is waived and the degree of waiver required at its most volatile. In Brookhart v. Janis, 384 U. S. 1, 86 S. Ct. 1245, 16 L.Ed.2d 314, the agreement, by counsel, that ‘he would not contest the State’s case or cross-examine its witnesses but would require only that the State prove’ a prima facie case, was deemed to be tantamount to a plea of guilty and the rigid waiver standards of Johnson v. Zerbst were observed. There a blanket waiver of all cross-examination of all witnesses was involved. A far lesser question, if not in kind at least in degree, would obviously be presented where a defense attorney agrees to stipulate to the testimony of a single minor or non-controversial witness. Sound trial tactics frequently dictate the acceptance by way of stipulation' of a post-mortem autopsy protocol, a ballistics report, a chemist’s analysis of suspected drugs, and other reports from the local and national crime laboratories, rather than requiring the experts who conducted the tests to appear in court. Each of these stipulations involves, to be sure, a waiver of the right of confrontation, but of a type frequently indulged in throughout a trial. The right to cross-examine a witness is an integral part of the right of confrontation. Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923. The remarks of Judge Thompson in Zimmerman v. State, 9 Md. App. 488, 498, 265 A. 2d 764, 771 (dissenting opinion), are appropriate here:
‘An accused has a federal constitutional right to cross-examine witnesses against him, Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476. Does this mean that everytime a defense attorney decides not to cross-examine a particular witness the trial must be stopped while inquiry is made as to whether or not the accused is personally making an intelligent and knowing waiver? I think not.’
Further down the sliding scale would be the non-objection by counsel to any shred of testimony involving hearsay information. It cannot seriously be contended that the trial must suspend while a defendant is examined as to the knowledgeability and voluntariness of each passing lapse of total confrontation or that counsel is incapacitated from acting on his own best judgment each time he foregoes an objection or each time he announces, ‘No questions.’ The most intriguing variation uppn the relinquishment or abandonment of the right to confrontation is that where a defendant may lose his very right to be present at the trial because of waiver through misconduct. Illinois v. Allen, 397 U. S. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353; Jones v. State, 11 Md. App. 686, 276 A. 2d 666.”

What is true of many constitutional rights is, a fortiori, true of a right which is less than constitutional. What is at issue on the present appeal is not the waiver of the constitutional right to the effective assistance of counsel but rather the waiver of the statutory right to raise a contention in a post conviction petition. There is no constitutional right to post conviction relief just as there is no constitutional right to take a direct appeal. Post conviction relief in this State is statutory, having been granted by the Maryland Legislature by Chapter 44 of the Acts of 1958 and subsequently amended. The act of the Legislature which creates the statutory relief may prescribe its own waiver standard. With respect to the right to raise an allegation of error in a post conviction petition, one cannot say that a waiver of this right “will not be presumed from a silent record,” when the very statute which created the right is most explicit with regard to a waiver thereof:

“When an allegation of error could have been made by a petitioner ... in a prior petition under this subtitle .. . there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.”

This is, in terms, a presumption of waiver from mere silence.

If this were otherwise, the finality aimed at by the Uniform Post Conviction Petition Act would be a “lost cause.” The failure to raise a contention in a first post conviction petition would never foreclose the raising of that contention in a subsequent petition unless, as a part of the first hearing, the petitioner explicitly articulated the possible contention and explicitly indicated that he was knowingly and voluntarily foregoing the raising of that contention.

We are not unmindful of Jourdan v. State, 275 Md. 495, 341 A. 2d 388, and Wright v. State, 33 Md. App. 68, 363 A. 2d 520, strenuously urged upon us by the appellant, but we find neither of those decisions to be controlling. In Wright, we were dealing squarely with the inability of the appellant there to prevail on direct appeal, ^ny speculation as to what his expectations of relief might be upon some later post conviction petition, which petition had never been taken and the merits of which were therefore not before the court, was gratuitous dictum made in passing and was not the law of the case. To the extent to which any intimation therein is inconsistent with our square holding today, we affirmatively disclaim such suggestion.

By the same token, what the appellant urges upon us from Jourdan v. State is simply dicta and not the law of that case. Jourdan dealt with a post conviction petitioner’s claim of a deprivation of his constitutional right against double jeopardy. Initially in this Court, Chief Judge Orth (now Associate Judge of the Court of Appeals) held upon the merits that there had been a manifest necessity for a first mistrial so as to obviate the double jeopardy claim. State v. Jourdan, 22 Md. App. 648, 325 A. 2d 164. In reversing that decision for the Court of Appeals, Judge Eldridge also dealt with the question of manifest necessity and with the double jeopardy issue upon the merits. In neither the opinion of the Court of Special Appeals nor of the Court of Appeals was it necessary to deal with the issue of the waiver of the constitutional claim by virtue of not having raised that claim upon the first available opportunity. That waiver was not the issue before the Court was made very explicit by Judge Eldridge, at 275 Md. 506:

“In its appeal to the Court of Special Appeals, the State made no claim that Jourdan waived his double jeopardy contention because his attorney failed to raise the issue before or at the beginning of the second trial, and the Court of Special Appeals stated that ‘we shall assume, but do not specifically so decide,’ that the issue was not waived (22 Md. App. at 656). And in this Court the State does not contend that the double jeopardy question was waived.”

By Chapter 442 of the Acts of 1965, the Post Conviction Procedure Act was amended, under what was then perceived to be the threat of Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837 (1963), so as to adopt the definition of waiver of a constitutional right as set forth in Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). By explicitly imposing the adverbs “intelligently and knowingly” upon the failure to raise a point before trial, at trial, on direct appeal, or in an earlier post conviction petition before waiver would be deemed effective, the Maryland Legislature did adopt a substantive definition in line with Johnson v. Zerbst and Fay v. Noia. As was its prerogative, however, it allocated the burden of proof on the issue in a radically different fashion. It provided, in § 645A (c) that an “allegation of error shall be deemed to be waived” if a petitioner could have objected but intelligently and knowingly failed to object “unless the failure to make such allegation shall be excused because of special circumstances.” The Legislature then could not have been more clear in allocating the burden:

“The burden of proving the existence of such special circumstances shall be upon the petitioner.”

With respect, furthermore, to the adverbial modifiers “intelligently and knowingly,” the Legislature went on to provide explicitly:

“. . . there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.”

There is no constitutional requirement, Federal or state, that there even be such a thing as post conviction relief, just as there is no constitutional requirement that there be a right to direct appeal. The Post Conviction Procedure Act is a creature of Maryland statute. When operating at the sub-constitutional level — either with statute law or with the common law — the General Assembly is supreme. They have made it clear that the failure to raise a claim even of constitutional error is presumptively a waiver of that claim. On this issue, a petitioner loses the tie. The Court of Appeals and this Court have long recognized the validity of the legislative command in this regard. Washington v. Warden, 243 Md. 316, 220 A. 2d 607; Anglin v. Director, 1 Md. App. 564, 232 A. 2d 532; Erving v. Warden, 4 Md. App. 716, 244 A. 2d 902; Williams v. Director, 4 Md. App. 721, 245 A. 2d 105.

We note, moreover, that the star of Fay v. Noia, by which the appellant guides his course, is most emphatically on the wane. After attaining its perihelion in the mid-1960’s, it has been preceptively sinking now for half a decade. In Davis v. United States, 411 U. S. 233, 93 S. Ct. 1577, 36 L.Ed.2d 216 (1973), the Supreme Court was dealing with the Federal Post Conviction Procedure Relief Act. A petitioner there sought to raise the constitutional claim that he had been denied an impartial jury in terms of the jury’s racial composition. The petitioner was denied relief on the grounds that his failure to raise the contention prior to trial amounted to a waiver of the contention, unless he could show good cause why he should be afforded relief from the waiver. Before the Supreme Court, he urged a position very similar to that urged by the appellant here. The Court summarized his contention, at 411U. S. 236:

“Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he ‘deliberately bypassed’ or ‘understanding^ and knowingly’ waived his claim of unconstitutional grand jury composition. See Fay v. Noia .. . and Johnson v. Zerbst....”

Notwithstanding the language of Fay v. Noia and Johnson v. Zerbst, the Supreme Court recognized that the Federal Post Conviction Procedure Relief Act was a statutory creation of the Congress and that with respect thereto, the legislative mandate was supreme. The Court pointed out that Rule 12(b)(2) of the Federal Rules of Criminal Procedure, adopted by the Congress, provided explicitly that the failure to present certain defenses or objections “constitutes a waiver thereof ...”. 411 U. S. at 236. In deferring to the legislative command and in applying that command to collateral review in Federal habeas proceedings, the Supreme Court said, at 411U. S. 242:

“We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of ‘cause’ for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necesssary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of ‘cause’ which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review.”

See also Shotwell Mfg. Co. v. United States, 371 U. S. 341, 83 S. Ct. 448, 9 L.Ed.2d 357 (1963).

In Wainwright v. Sykes, 433 U. S. 72, 97 S. Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court referred to its decision in Davis v. United States, supra, and explicitly recognized the right of the legislative branch to promulgate the applicable waiver standard, saying at 53 L.Ed.2d 606:

“We noted that the rule ‘promulgated by this Court and, pursuant to 18 USC §3771 [18 USCS § 3771], “adopted” by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived,’ id., at 241, 36 L.Ed.2d 216, 93 S. Ct. 1577, and held that this standard contained in the rule, rather than the Fay v. Noia concept of waiver, should pertain in federal habeas as on direct review.” (Emphasis supplied)

In Francis v. Henderson, 425 U. S. 536, 96 S. Ct. 1708, 48 L.Ed.2d 149 (1976), the Supreme Court deferred to the right of a state legislature to ordain its own waiver standards. Involved in that case was a Louisiana statute, described by the Supreme Court at 425 U. S. 537:

“The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, ‘all such objections shall be considered as waived and shall not afterwards be urged or heard.’ ”

The defendant in that case failed to make timely objection to the composition of the grand jury. He was found guilty and sentenced to life imprisonment. He later sought collateral review in the Louisiana court, claiming that Negroes had been unconstitutionally excluded from the grand jury that had indicted him, “The court [the Louisiana court] held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief.” 425 U. S. at 538.

Over the anguished dissent of Justice Brennan, appealing to the “knowing and intelligent” waiver standard of Johnson v. Zerbst and Fay v. Noia, the Supreme Court deferred to the Louisiana Legislature, saying at 425 U. S. 540-541:

“The Louisiana time limitation applicable in tlje present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this very Louisiana law, Michel v. Louisiana, 350 U. S. 91, 100 L.Ed. 83; 76 S. Ct. 158. There the Court said:
‘It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights....’”

Even more recently, in Wainwright v. Sykes, supra, the Supreme Court was dealing with the Florida “contemporaneous objection” rule and its foreclosing effect upon a state prisoner’s claim that he had been denied his fifth Amendment right against compulsory self-incrimination. The petitioner prevailed in the United States District Court for the Middle District of Florida, where that court “held further that respondent had not lost his right to assert such a claim by failing to object at trial or on direct appeal.” 53 L.Ed.2d at 601. The petitioner prevailed again at the United States Court of Appeals for the Fifth Circuit, 528 F. 2d 522 (1976), where that court, relying upon Fay v. Noia, “concluded that the failure to comply with the rule requiring objection at the trial would only bar review of the suppression claim where the right to object was deliberately bypassed for reasons relating to trial tactics.” 53 L.Ed.2d at 601.

The Supreme Court reversed. It deferred to the right of the Florida Legislature to establish a contemporaneous objection rule and, in so doing, it explicitly rejected the rigid waiver standard of Johnson v. Zerbst and Fay v. Noia:

“To the extent that the dicta of Fay v. Noia may be thought to have laid down an all-inclusive rule rendering state timely objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings — absent a ‘knowing waiver’ or a ‘deliberate bypass’ of the right to so object — its effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury.” 53 L.Ed.2d at 607.
“It is the sweeping language of Fay v. Noia, supra, going far beyond the facts of the case eliciting it, which we today reject.” 53 L.Ed.2d at 608.

This current attitude of the Supreme Court guides our decision here. The most damning criticism of our criminal justice system today is that there is no finality. Somewhere the process of seemingly interminable review must come to a halt. In this case, we declare the halt, here and now.

We hold that the issue of ineffective assistance of counsel was waived by the appellant’s failure to raise it in his first Post Conviction Petition. The Motion to Dismiss the contention in the second Post Conviction Petition was properly granted.

Judgment affirmed; costs to be paid by appellant.


text:
    GEORGE SIMS, JR. et ux. v. RYLAND GROUP, INC.
    [No. 1365,
    September Term, 1976.]

      Decided October 13, 1977.

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

      Steven A. Skalet for appellants.

      Charles P. Goodell, Jr., for appellee.
   Moylan, J.,

delivered the opinion of the Court.

On January 8, 1972, the appellants, George Sims, Jr. and his wife, Geraldine, entered into an Agreement of Sale with the appellee, the Ryland Group, Inc., for the purchase of a home, which was then not yet fully constructed, located at 311 Tantallon Drive East, in Oxon Hill, Maryland. Prior to settlement, in September, 1972, an inspection was made of the premises by the appellants and some 39 items were found requiring correction or completion. The Ryland Group agreed to make these completions and corrections without undue delay. In reliance on this agreement, the appellants agreed to proceed to settlement. At settlement, they were furnished with a “Warranty of Completion of Construction in Substantial Conformity with Approved Plans and Specifications.”

Shortly after moving into the house, in addition to the defects discovered during the presettlement inspection, the appellants discovered other defects and began experiencing other problems with the house, including periodic sewage back-up, water leakage into the basement, and a defective sump pump. Despite numerous protestations, the repairs and completions were not made to the appellants’ satisfaction. As a result, they instituted suit in the Circuit Court for Prince George’s County. A demurrer was sustained to their first declaration. An amended declaration was subsequently filed on September 13, 1974. The amended declaration consisted of five counts, alleging breaches of contract, breaches of warranty and fraud. The appellee demurred to Count V (fraud). Its demurrer was sustained. When the appellants did not amend their declaration, a judgment of non pros was entered. After the filing of the ' appellants’ answers to interrogatories and the appellants’ depositions, the appellee moved for partial summary judgment as to the claims for punitive damages in Counts I through IV. This motion was also granted. The case subsequently went to trial, and a jury awarded the appellants $8,700 in compensatory damages.

This appeal does not involve the trial proper but is taken only from the sustaining of the demurrer as to Count V and the granting of summary judgment as to the claims for punitive damages in Counts I through IV.

The appellants’ fifth count charging fraud alleges that the appellee, in order to induce the appellants to buy a house, falsely, wrongfully and fraudulently represented to them that the house would conform to the model home which they had been shown. The appellants allege that these representations were known to be false or were made with reckless indifference to the truth or falsity thereof and that they relied on these representations. The appellants maintain that these averments in the declaration are sufficient to state a cause of action for fraud.

A promissory representation made with an existing intention not to perform is actionable for fraud. Appel v. Hupfield, 198 Md. 374, 84 A. 2d 94; Loyola Fed. S. & L. Ass’n v. Galanes, 33 Md. App. 559, 569, 365 A. 2d 580. To withstand demurrer, however, the allegation of an intention not to perform must be predicated on sufficient facts and not be phrased in merely conclusory terms.

The situation herein is analogous to that in Edison Realty Co. v. Bauernschub, 191 Md. 451, 62 A. 2d 354. In that case, Mr. and Mrs. Bauernschub entered into a contract on August 19, 1946, with the Edison Realty Company for the purchase of a house, when completed, at 2815 East Federal Street in Baltimore City. The Bauernschubs alleged in their bill that an agent of the company promised that the house would be completed and would contain all of the features that were contained in the sample house they had been shown. On January 15,1947, they were informed by an agent of the corporation that the house was substantially completed and that if any items were not completed, they would be completed promptly upon settlement. Mr. and Mrs. Bauernschub were not permitted to inspect the house before settlement, but, relying upon those assurances, they settled and received a deed for the property. After settlement, they discovered that the house was not completed in accordance with the contract. After six months of futile demands upon the company to complete the house, they instituted suit against the company and its officers for specific performance of the contract or compensation in lieu thereof. The Bauernschubs alleged that the defendants had no intention of performing the obligations when they promised to complete the house but had only made the promises to induce the Bauernschubs to pay for and accept an uncompleted house. The defendants demurred to the bill, and the chancellor overruled the demurrers. While the Court of Appeals held that the bill stated a good cause of action against the corporation for specific performance, it ruled that the demurrers of the officers should have been sustained. The Court stated, at 191 Md. 460-461:

“However, we find no reason to overrule the demurrers of [the officers]. The amended bill does allege that [the officers] conspired in a fraud. But it is well settled that the facts constituting a fraud charged in a bill of complaints must be set forth with certainty and particularity. A general allegation of fraud, however strong in expression, is not sufficient unless there is an allegation of the facts and circumstances relied on as constituting the alleged fraud. Boyle v. Maryland State Fair, 150 Md. 333, 341, 134 A. 124; Billings v. Lippel, 184 Md. 1, 10, 40 A. 2d 62. In the instant case there are no allegations of any specific acts of fraud on the part of the individual defendants.”

See also Ace Development Co. v. Harrison, 196 Md. 357, 76 A. 2d 566.

The appellants’ allegation that the appellee’s agents and employees “falsely, wrongfully, and fraudulently represented that plaintiffs’ dwelling would conform to the model home they inspected” is no more than a bald allegation of fraud with no supporting facts. The use of such language with no supporting facts is insufficient to state a cause of action. The Court of Appeals in Brack v. Evans, 230 Md. 548, 553, 187 A. 2d 880, stated:

“As to the fraud count in the amended declaration, we find that the demurrer was properly sustained. In this count, appellant used the words ‘fraudulently misrepresented’ several times, but pleaded no facts from which the existence of fraud could be inferred. As was recognized in Ragan v. Susquehanna Power Co., 157 Md. 521, 526-527, 146 Atl. 758 (1929), '* * * such words as * * * [fraudulent] are characterizations of the needed. facts rather than allegations of them. Charges of fraud are never regarded in law as sufficient unless accompanied with allegations of the facts and circumstances which constitute the fraud. * * *’.”

That the Ryland Group did not build a house conforming to the specifications in the contract does not of itself support an allegation of fraud on its part. See Tufts v. Poore, 219 Md. 1, 10, 147 A. 2d 717. The appellee’s demurrer to the fifth count was properly sustained.

With respect to the remaining contention — that the court erred in granting appellee’s motion for partial summary judgment as to the claims for punitive damages in Counts I through IV — we note that, at the conclusion of the appellants’ case, a directed verdict was granted as to Counts I, II and III even as to compensatory damages. Only Count IV, alleging breach of warranty, went to the jury. Compensatory damages in even a nominal amount must be awarded before any punitive damages are permissible. Montgomery Ward & Co., Inc. v. Keulemans, 275 Md. 441, 340 A. 2d 705; Shell Oil Co. v. Parker, 265 Md. 631, 644, 291 A. 2d 64; B & B Refrigeration & Air Conditioning Service Co. v. Stander, 263 Md. 577, 582, 284 A. 2d 244; Kneas v. Hecht Co., 257 Md. 121, 262 A. 2d 518. The appellants do not appeal from the granting of a directed verdict as to Counts I, II, and III. The issue of punitive damages as to those counts, therefore, is moot. Only the issue of punitive damages as to Count IV is properly before us.

In any event, the motion for summary judgment as to punitive damages in all four counts was correctly granted. Counts I and II are captioned and allege breach of contract. Counts III and IV are captioned and allege breach of warranty. The appellants, in each count, allege that the breach of contract or breach of warranty was “willful, wanton, malicious, and intentional” and, on this basis, seek punitive damages. It is well settled in Maryland that punitive damages cannot be awarded in a pure breach of contract case, although they are recoverable in tort actions arising out of contractual relationships where actual malice is present. Henderson v. Maryland Nat’l Bank, 278 Md. 514, 366 A. 2d 1; Food Fair Stores, Inc. v. Hevey, 275 Md. 50, 338 A. 2d 43; H & R Block, Inc. v. Testerman, 275 Md. 36, 338 A. 2d 48; Siegman v. Equitable Trust Co., 267 Md. 309, 297 A. 2d 758; Lawrence v. Graham, 29 Md. App. 422, 349 A. 2d 271. Even where the breach is malicious, exemplary damages are not recoverable. 25 C.J.S., Damages, § 120. Since a breach of warranty is contractual in nature (see Addressograph-Multigraph Corp. v. Zink, 273 Md. 277, 329 A. 2d 28; Griffith v. Scheungrab, 219 Md. 27, 146 A. 2d 864; Gaybis v. Palm, 201 Md. 78, 93 A. 2d 269), it follows that punitive damages are not recoverable in a pure breach of warranty action. As to breaches of warranty under the Uniform Commercial Code, the Code makes no provision for exemplary or punitive damages but only provides for the recovery of “incidental and consequential” damages. Annotated Code of Maryland, Commercial Law Article, §§ 2-714 and 2-715. The motion for partial summary judgment was correctly granted.

Judgments affirmed; costs to be paid by appellants.


author: Gilbert, C. J.,

text:
    EUGENE SHAW FRYE v. STATE OF MARYLAND
    [No. 6,
    September Term, 1977.]

      Decided October 13, 1977.

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

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Clarence W. Sharp, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph Lyons, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Eugene Shaw Frye was convicted by a jury, in the Criminal Court of Baltimore, of four violations of Md. Ann. Code art. 27, as charged in two separate indictments.

On Indictment Number 57534411, Frye was convicted on the first count, murder in the first degree, and the second count, the use of a handgun in the commission of a crime of violence. He was sentenced to imprisonment for the balance of his natural life and a concurrent 5-year term.

On Indictment Number 57534410, Frye was convicted on the first count, robbery with a dangerous and deadly weapon and the eighth count, the use of a handgun in the commission of a crime of violence. He received sentences of 20 years and 5 years respectively. The sentences imposed in Indictment Number 57534410 were made to run concurrently with the sentences imposed in the murder conviction.

In this Court, Frye raised the issue that, “Appellant’s conviction of and sentence for both armed robbery and felony murder violated the prohibition against double jeopardy.”

We observe that the point was neither raised nor argued in the trial court. Nevertheless, pursuant to the authority conferred on us by Md. Rule 1085, in order to prevent further proceedings by way of collateral attack and the resultant expenditure of judicial time and public expense, we shall decide the matter.

The issue posed to us by Frye is the same one that was decided by the Court of Appeals in Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977). In Newton, the Court, speaking though Judge Eldridge, said:

“[T]he defendant’s separate convictions and sentences for the felony of attempted robbery and murder committed in the perpetration of that felony constitute, under the required evidence test, double punishment for the same offense in violation of the Fifth Amendment’s double jeopardy clause. Consequently, the conviction for the lesser offense of attempted robbery must be vacated.” Newton v. State, 280 Md. at 273-74, 373 A. 2d at 269-70. (Footnote omitted.)

Without recounting all the sordid facts in this case, it is sufficient to note that from the evidence presented, the jury could have found the appellant guilty of murder in the first degree, Md. Ann. Code art. 27, § 407, and guilty of robbery with a dangerous and deadly weapon, Md. Ann. Code art. 27, § 488, as well as two counts of the use of a handgun in the commission of a crime of violence, Md. Ann. Code art. 27, § 36B. There was also evidence from which the jury could have found that the appellant was guilty of so-called “felony murder,” Md. Ann. Code art. 27, § 410. The nub of the problém is that if the jury found the appellant guilty of the “felony murder” then, under Newton and its progeny, the robbery charge and the. handgun violation directly attributable to the robbery offense would have merged into the felony murder. From the record, it is impossible for us to determine with any degree of certainty which of the permitted inferences the jury drew.

Because of the attendant uncertainty, Frye contends that the sentences should be merged. The State, on the other hand, asserts that Newton does not require such a result and that the sentences for the robbery and the concomitant handgun violation should not be disturbed.

To bolster its position, the State relies heavily upon the following language of Newton:

“If . . . the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under [Md. Ann. Code art. 27] § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge. Each offense would then require proof of facts which the other did not, and convictions on both would be proper.” (Emphasis supplied.) 280 Md. at 269, 373 A. 2d at 267.

Aside from the fact that the Newton quotation is dicta, a thoughtful analysis of precisely what the quoted portion says leads to the conclusion that it would be difficult to conceive of a factual situation involving a felony murder in which there would be no evidence from which a jury could find “independent proof of wilfulness, premeditation and deliberation.” If Newton means what it, at first blush, seems to say, then its holding is limited to non-jury cases where the trial judge specifically articulates findings of fact that the murder was committed in the course of the commission of another felony, and that there is no independent evidence demonstrating “wilfulness, premeditation and deliberation.”

Such a constrictive view, however, is diametrically contrary to the spirit, if not the letter, of Newton. An overall reading of Newton makes it unmistakable that the Court was enunciating the rule that in all cases involving felony murder, the underlying felony is merged into the murder conviction unless the trier of fact, under proper instructions if it be a jury, shall find “independent evidence of wilfulness, premeditation and deliberation.”

In order to eradicate any apparent ambiguity ambient Newton, we believe that it is necessary to intercalate into the above-quoted and italicized portion of Newton the phrase, “under proper advisory instructions from the court.” Thus, Newton should read in pertinent part:

“If . . . the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury [under proper advisory instructions from the court] to find those elements, the offenses would not merge. Each offense would then require proof of facts which the other did not, and convictions on both would be proper.” 280 Md. at 269,373 A. 2d at 267.

The trial judge, when confronted with a murder case involving a “felony murder,” Md. Ann. Code art. 27, § 410, should instruct the jury that they are to indicate by their verdict whether, from all the evidence, they have found the accused guilty of a felony murder under § 410, or they have found the requisite intent of “wilfulness, premeditation and deliberation” independent of the underlying felony so that the accused is guilty of a § 407 murder. The jury should also be instructed that they are to render a verdict on each of the other counts of the indictment be the murder a violation of § 407 or § 410. When the jury finds the accused guilty of a § 410 murder, the underlying felony should be deemed to be merged into the murder and a separate sentence should not be imposed for the underlying felony violation. On the other hand, if the jury returns a verdict of guilty of murder under § 407 and the underlying felony, the trial judge is at liberty to impose sentences on both the murder and the underlying felony.

As we have indicated, in the absence of such jury instructions and in light of the resultant verdicts, we are unable to state which of the permissible inferences the jury drew in arriving at its verdict in the case sub judice. We resolve the doubt in favor of the appellant, and we vacate the judgments entered on the robbery with a deadly weapon and the related handgun charge.

Judgments on Indictment No. 57534411 affirmed.

Judgments on Indictment No. 57534410 vacated.

Costs to be divided equally between the appellant and the Mayor and City Council of Baltimore.

      . Reversing Newton v. State, 31 Md. App. 344, 356 A. 2d 274 (1976).