author: Moore, J.,

text:
    RALPH JAY HEROLD v. STATE OF MARYLAND
    [No. 706,
    September Term, 1981.]

      Decided September 2, 1982.

    The cause was submitted on briefs to Moore, Liss and Weant, JJ.
    Submitted by Peter Engel and Stephen L. Snyder for appellant.

      Submitted by Stephen H. Sachs, Attorney General, Stephen B. Caplis, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Scott Smith, Assistant State’s Attorney for Baltimore County, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal from a revocation of probation and reimposition of a suspended two-year sentence. Appellant had been ordered to "attend a mental health program” and did so but was terminated as "unsatisfactory.” We shall remand without affirmance or reversal, for such further proceedings as may be deemed appropriate in conformity with this opinion.

I

Ralph Jay Herold, appellant, was charged in April 1980 with assault and battery and a fourth degree sexual offensé. The complainant was the 20-year-old daughter of a woman living with appellant, then 31, divorced, and disabled by the loss of his right leg. On June 30,1980, at a bench trial on an agreed statement of facts, the Circuit Court for Baltimore County found appellant guilty of battery. Disposition was deferred pending a presentence investigation.

The presentence investigation report, completed on August 4, 1980, stated in its "Evaluation and Recommendation”:

"Herold became angry and upset when discussing the victim. He impressed this writer as a man who cannot cope with rejection of his ideals and/or way of life. He is narrow minded and rigid in his beliefs and opinions. He may be prone to violence and, as revealed in the offense report, threatened murder and bodily harm. In this agent’s opinion this man is in need of psychiatric counseling; however, he most likely will resist therapy.
"Since Dr. Smith’s [psychiatric] report is unavailable at this time, the extent, if any, of Mr. Herold’s psychological problem is unknown. However, in view of the information gathered in this investigation, it is respectfully recommended that the defendant be placed on supervised probation with the stipulation that he attend a Mental Health Clinic. ” (Emphasis added.)

The report of the court psychiatrist, James E. Smith, II, M.D., was submitted to the sentencing judge on September 8, 1980. The "Summary” was as follows:

"Ralph Herold is an emotionally unstable and immature man who apparently had difficulties prior to a serious accident but who has had more obvious difficulties since. He lacks motivation to carry on any constructive activities and tends to be very sensitive about threats to his adequacy and masculinity. Weapons have apparently served to make him feel more masculine. He has deñnite potential for explosive behavior and must be regarded as a threat to others. His lack of motivation for change as well as his suspiciousness and emotional volatility makes him a dubious candidate for treatment. Nonetheless, if he is placed on probation it is urged that he be required to get out-patient treatment, not only because there is an outside chance it may help him but also because it may serve as a check on his behavior and emotional status. ” (Emphasis added.)

On October 10, 1980, appellant received a two-year suspended sentence and was placed on supervised probation for three years. The special conditions of probation were that (1) he make restitution of $87 to the victim through the Probation Department, and (2) he "must attend a mental health program.”

On January 5, 1981, appellant was evaluated by Ibrahim Turek, M.D., a psychiatrist at the Northwestern Community Mental Health Center. Although the record before us contains no report from Dr. Turek, the "Supervision Summary” of appellant’s probation agent, Leonard Goldman, in a report dated April 13, 1981, states that Dr. Turek diagnosed the appellant as "borderline intellectual functioning” and that he continued to see Dr. Turek until April 1, 1981, "when he was terminated from therapy in an unsatisfactory status.” Mr. Goldman’s report referred to the psychiatrist’s termination letter dated April 1, 1981, not contained in the record, in which Dr. Turek indicated that not only was he unable to establish a therapeutic relationship with appellant,

"but that he also 'became a menace even to the therapist by his threatening behavior verbally and physically’. Dr. Turek also indicates that during the last session the subject displayed a knife, moving it in and out of its case with a threatening attitude.”

The probation agent’s "Evaluation and Recommendation” in the above report was as follows:

"In a pre-sentence psychiatric evaluation by Dr. James E. Smith, II, M.D., the subject was found to have a 'definite potential for explosive behavior and must be regarded as a threat to others’. He was also considered a poor candidate for therapy. According to his therapist, Dr. Turek, 'those predictions came true.’
"This writer feels that the subject’s attitude has worsened to a critical level, and that he must be considered a threat to himself and others. It is therefore respectfully requested that a warrant be issued charging the subject with Violation of Probation.” (Emphasis added.)

The violation cited by Mr. Goldman was:

"By being terminated from a Mental Health Program in an unsatisfactory status.”

Judge Hormes signed a warrant on the date of Mr. Goldman’s report, and it was served upon appellant on May 12, 1981. Thereafter, it appears, appellant’s counsel made arrangements for an evaluation of the appellant by David L. Shapiro, Ph.D., a certified psychologist. After seeing appellant, Dr. Shapiro wrote a letter dated May 22,1981, to appellant’s counsel, expressing his willingness to treat Mr. Herold as an outpatient "for intensive psychotherapy” on the following conditions:

"1. If, in my opinion, his condition deteriorates, or he becomes a danger to himself or to others, I will hospitalize him.
2. If Mr. Herrold [sic] refuses to go along with my recommendation for inpatient treatment under such circumstances, it will be considered a violation of his probation.
3. I will keep the court informed of any changes in Mr. Herrold’s treatment status, including any failure to adhere to the treatment plan outlined, or any resistance on his part to a recommendation for inpatient treatment if such becomes necessary.”

At a probation revocation hearing on June 1, 1981, appellant waived his right to have his probation officer present. The latter was on vacation and appellant, after almost three weeks of incarceration — never having been incarcerated before — was anxious to obtain an "expeditious hearing.” His counsel proffered that appellant was willing to see Dr. Shapiro on his terms, that appellant’s mother, who was present in court, would help him to "straighten himself out,” and that the real problem was appellant’s inability to get along with Dr. Turek. "With all due respect to Dr. Turek,” counsel stated, "there are times when a person does not click with that particular therapist for whatever reason.”

The court reimposed the suspended two-year sentence, remarking:

"Back in October 1980 I found you guilty of a battery charge, and gave you two years’ suspended sentence on condition that you attend a mental health program and make restitution. I was faced at that time with the report from Dr. Smith, who is a very good medical psychiatrist, and he said you ... are to be placed on probation to get outside help. We did that. I put you on probation. I put you under the care of Dr. Turek, who is an eminently qualiGed mental health person, and what does he say? You 'became a menace even to the therapist by your threatening behavior verbally and physically. Sir, I am not going to permit you to go outside the jail anymore. I am scared. I am worried about you, worried about society and the people around you. The sentence of the court will be two years.” (Emphasis added.)

The court thereafter rejected a plea from counsel that it be made a condition of appellant’s continued probation that he be hospitalized by Dr. Shapiro if "his condition deteriorates and he becomes a danger.” The Court stated:

"I have had the problem before and he did not respond. I have my responsibility, or what I think is my responsibility, to the citizens of this community. I am sorry in the sense I can’t depend on this young man to go out in the street and listen to doctors.”

On appeal, Mr. Herold contends that he was denied due process and that the lower court abused its discretion. In the presentation of these claims, he raises essentially two questions:

1. Was appellant denied due process of law because the revocation was based on his mental condition and his failure to achieve mental stability, and not upon a violation of a condition of probation?
2. Did the trial court abuse its discretion in revoking probation because: a) revocation was based on appellant’s mental condition or failure to achieve mental stability; b) appellant did not violate any express condition of probation; c) a less stringent and more appropriate alternative was available?

II

Probation in Maryland is defined as the conditional exemption from imprisonment allowed any prisoner by suspension of sentence. Md. Ann. Code, Art. 41 § 107 (f) (1978 Repl. Vol.). The conditions of probation "shall be determined solely” by the judge granting it, id., and any condition may be modified or revoked as the court deems proper. Art. 27 § 641A (1982 Repl. Vol.). Probation is a matter of grace, not entitlement, which permits the wrongdoer to keep his freedom "as long as he conducts himself in a manner consonant with established communal standards and the safety of society.” Kaylor v. State, 285 Md. 66, 75, 400 A.2d 419 (1979), quoting Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965). The probationer (or parolee) has a right to continuance of his probation absent any violation, and this right is protected by constitutional due process. Gagnon v. Scarpelli, 411 U.S. 778, 785 (1973). In the rehabilitative, rather than punitive, focus of the probation/parole system, revocation is only a last resort when treatment has failed. Id.

In reviewing a trial court’s revocation of probation, we must consider the two-step process initially explicated in Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972), adopted in Gagnon, supra, 411 U.S. at 784, and expanded in Humphrey v. State, 290 Md. 164, 428 A.2d 440 (1981). The first, "wholly retrospective factual question” is whether appellant has actually violated a condition, express or implied, of his probation. Morrissey, supra, 408 U.S. at 479. If so, the second question is whether probation should be revoked or whether other actions are more appropriate to protect society and improve the probationer’s chances of rehabilitation. Id. at 784, n.8. Humphrey underscores a third consideration: Was the violation a result of factors beyond the control of appellant and "through no fault of his own?” 290 Md. at 167-8, and cases cited therein.

Appellate review requires careful scrutiny of the factual findings below. See, e.g., Rites v. State, 15 Md. App. 346, 290 A.2d 554 (1972) (evidence insufficient to show violation of probation terms). A violation must be established with enough reasonable certainty — but not beyond a reasonable doubt — to satisfy the conscience of the court. Id. at 348. If the facts incline a reasonable and impartial mind to the belief that the probationer has violated a term of his probation, that is sufficient to revoke or modify. Knight v. State, 7 Md. App. 313, 318, 255 A.2d 441 (1969).

Procedural due process is satisfied if the probationer is given a reasonable opportunity to defend himself, i.e., a hearing to explain his conduct. Finnegan v. State, 4 Md. App. 396, 401, 243 A.2d 36 (1968); Swan v. State, 200 Md. 420, 425, 90 A.2d 690 (1952). Substantive due process is satisfied if revocation of probation is based on the State’s showing that the probationer wilfully failed to abide by the conditions, Hudgins v. State, 292 Md. App. 342, 438 A.2d 928 (1982), and the probationer’s failure to show that the violation "resulted from factors beyond his control and through no fault of his own.” Humphrey, supra, 290 Md. at 167-8.

Abuse of discretion will be found only if the trial court has erroneously construed the conditions of probation, Edwardsen v. State, 220 Md. 82, 151 A.2d 132 (1959), has made factual findings that are clearly erroneous, Coles v. State, 290 Md. 296, 308-9, 429 A.2d 1029 (1981), or has acted arbitrarily or capriciously in revoking probation. Knight, supra, 7 Md. App. at 318. See also Burns v. United States, 287 U.S. 216 (1932).

Ill

In the instant case, appellant argues that he was denied due process because the revocation of his probation was based not on an actual violation of the special condition that he "attend a mental health program,” but rather on two other factors: first, the lower court’s belief that appellant’s termination from the mental health program of Dr. Turek showed that he had not responded to it; and second, the court’s manifest concern that appellant was a threat to others because of his potential for "explosive” behavior.

The question thus posed in the factual setting of this case is a difficult one. It is clear that the court was altogether disinclined to continue appellant on probation subject to any conditions, not because he had failed to attend the mental health program, as required by the special condition, but rather because of his demonstrated failure to improve his mental condition or achieve mental stability by such attendance. The latter was not, however, a special condition of his probation. See Carradine v. United States, 420 A.2d 1385 (D.C.C.A. 1980). Until his termination by Dr. Turek, appellant attended his therapy sessions, although obviously not obtaining much mental or emotional improvement from them. After his arrest and while in jail, appellant agreed to an arrangement with Dr. Shapiro for "intensive psychotherapy.” Thus, appellant may not wilfully have failed to abide by the condition that he attend a mental health program. See Hudgins, supra.

We find support for this hypothesis in Carradine v. United States, supra. There, a probationer who had pleaded guilty to a charge of rape and had received a 15-year suspended sentence with five years’ probation voluntarily appeared in court requesting more intensive psychotherapy than the out-patient care he was receiving as an express condition of probation. The lower court, referring to the probationer as a "walking time-bomb,” revoked his probation and sentenced him to a term of two years to life. The District of Columbia Court of Appeals reversed. The opinion of the appellate court concluded that "maintenance or achievement of a particular level of mental stability was not an implied condition of Carradine’s probation,” and that he had been deprived of due process when the trial court revoked his probation because of his mental problems. 420 A.2d at 1390.

Carradine is also noteworthy for the court’s recognition that, in holding probation may not be revoked under such circumstances, the appellate court confronted the sentencing judge "with a possible dilemma”: the judge may be inclined to grant probation but reluctant to embrace the attendant risk unless there is an effective alternative should the probationer develop a need for in-patient psychiatric care. Speaking for the court, Judge Ferren stated, id. at 1391:

"Without attempting an exhaustive analysis of alternative procedures, absent the benefit of a concrete case, we believe it is important to indicate that the court does have useful options which are not precluded by this opinion. First, when a probationer volunteers for hospitalization — as Carradine did in this case — the court may authorize (as consistent with probation) the requested voluntary hospitalization. Also, the court, in supervising the probationer, may modify the terms of probation, imposing any new condition 'reasonably related to the rehabilitation of the convicted person and the protection of the public.’ Moore v. United States, D.C.App., 387 A.2d 714, 716 (1978) (per curiam) (upholding condition requiring a mental examination and, if necessary, psychological treatment).” (Statutory citations omitted.) (Emphasis added.)

We also find instructive the decision of the Appellate Division of the Superior Court of New Jersey in an earlier case, State v. Moretti, 141 A.2d 810 (1958). There the conditions of probation were (a) psychiatric treatment at the probationer’s expense and (b) gainful employment. The court held that the probationer’s mental condition (schizophrenic reaction, paranoid type) constituted a lawful excuse for failure to maintain gainful employment and that revocation was an abuse of discretion. The court agreed that "defendant’s case was not an easy one to handle,” and continued:

"But then, problems are naturally anticipated in the field of probation. Revocation should not be used as a means of resolving difficult cases, nor should it be used merely to punish a technical violator for failure to adhere to regulations. There should be as much constructive purpose in committing an alleged violator to prison as there was in placing him on probation in the first instance. Probation conditions are a means to an end, not an end in themselves.” Id. at 822-3.

In United States v. Mercado, 469 F.2d 1148 (2d Cir. 1972), the lower court revoked probation and imposed a term of imprisonment after finding that the probationer had violated a special condition that he avoid telephone harassment of the family of a young woman toward whom he had demonstrated a pathological infatuation. There was substantial testimony concerning Mercado’s mental health both at the time he committed the acts which allegedly violated his probation and at the time of the hearing. Speaking for Chief Judge Friendly and Associate Judge Feinberg, Judge Lumbard held that the lower court had abused its discretion:

"It seems clear, at least on the record before us, that a term of imprisonment for Mercado will still not serve any useful rehabilitative or deterrent function and certainly will do nothing to cure his mental illness. If Judge Ryan had not erroneously concluded that Mercado was responsible for his violation of probation, he might well have acted upon Dr. Sallick’s suggestion that he could have Mercado admitted as a patient at the Payne-Whitney Clinic. Certainly the district court has the power to make it a condition of continuing Mercado’s probation that he apply for and obtain admission to that or a similar institution for treatment.” (Emphasis added.) Id. at 1153.

In this case, the court demonstrated a proper concern for the interests of society and the potential risk to the public if appellant continued at large without improvement of his mental condition. However, appellant was willing to undergo therapy and had secured the services of a forensic psychologist toward that end. In effect, he would be changing from a public mental health program to a private one, which carried the proferred guarantees that: 1. he would be hospitalized if he became a danger to himself or others; 2. his refusal to commit himself voluntarily if so ordered by Dr. Shapiro would be a violation of probation; and 3. his failure to adhere to a treatment plan set up by Dr. Shapiro or any resistance to his recommendations would be reported to the court. We think that this mental health program may well have been adequate to meet the trial judge’s quite understandable concern. At all events, we think the proposal was worthy of careful consideration and would justify further proceedings at which Dr. Shapiro’s testimony could be received. "[Without attempting to fix blame,... the sole objective at this time should be to remedy the situation and to obtain the needed treatment for defendant.” People v. Welch, 397 N.E.2d 94, 97 (Ill.App. 1979). See People v. Bowman, 423 N.Y.S.2d 242 (1980). The cited cases demonstrate that those seeking psychiatric help do not always succeed initially in obtaining it. Nor do those who obtain it necessarily benefit from it initially. The very inability to benefit from counseling is a symptom of the condition that necessitates counseling. It should not also be a premise for punishment. Accordingly, we shall remand for further proceedings.

Case remanded without affirmance or reversal for further proceedings not inconsistent with this opinion; costs to be paid by Baltimore County.

      . The record does not disclose whether Dr. Turek saw the appellant prior to January 5, 1981.

      . A file memorandum by Judge Hormes’ secretary dated January 23, 1981, states that Mr. Goldman discussed appellant with Judge Hormes that day. Dr. Turek had informed the agent that appellant "has threatened the victim in this case as well as her family friends [sic]”; but he had not attempted to carry out his threats.

      . See Note, Judicial Discretion and the Problem of the Mentally Ill Probation Violator, 5 UCLA-AIaska L.Rev. 284 (1976). The author discusses Trumbly v. State, 515 P.2d 707 (Alaska, 1973), which held that insanity was not a good defense in a revocation proceeding. However, the court stated that Trumbly’s mental state at the time of the probation violation and at the time of the hearing was relevant in determining whether to incarcerate him. Id. at 710.

      . Whether, indeed, the court could have imposed such a condition is not before us. In Carradine v. United States, 420 A.2d 1385, 1390, n.16 (D.C.C.A. 1980), the court observed that revocation of probation based on a probationer’s mental state would raise the question of unconstitutional punishment for a status or disease. Cf. Hyser v. Reed, 318 F.2d 225 (D.C.Cir. 1963), cert. denied, 375 U.S. 957 (1963) (probation may be revoked solely on the basis of predictive judgments about likely future behavior). Compare, Commonwealth v. Megella, 408 A.2d 483 (Pa.Super. 1979) (evidence insufficient to show defendant’s insanity at time of committing acts violative of probation).


source: Caselaw Access Project

license: Public Domain

text:
    RONALD T. EPPS v. STATE OF MARYLAND
    [No. 1008,
    September Term, 1981.]

      Decided September 2, 1982.

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

      J. Michael McLaughlin, Jr., Assigned Public Defender, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John

      Themelis, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this case appellant complains that he agreed to a bench trial on the condition that he would, if found guilty, receive only "one life sentence.” He was convicted of three counts of first-degree murder and two counts of arson, for which he was sentenced to three concurrent terms of life imprisonment and two 30-year terms, also concurrent. These sentences, he contends, breached a bargain he had made with the State and invalidated his waiver of a jury trial. Also, he claims, the trial judge abused his discretion by denying the appellant’s motion to sever the two arson counts, thus entitling appellant to new trials. We disagree, for the reasons stated, and shall affirm the convictions.

I

Appellant, Ronald T. Epps, and Janice Witherspoon were friends and the parents of a baby girl before their "relationship” began to deteriorate in late 1979. Miss Witherspoon lived at 1526 Homestead Street in Baltimore, Maryland, the neighborhood of the various relatives and residents who testified at trial.

Roger Watson, who was married to Ms. Witherspoon’s cousin, Verna, testified that he observed appellant coming from the rear of 1526 Homestead Street about 9 p.m. on March 5, 1980. That same evening, Ms. Witherspoon had gone to the Watsons’ home to babysit and spend the night. Fire broke out in the Homestead Street residence at about 5:30 a.m. on March 6. Wardell Boroughs, who roomed on the second floor, and 13-year-old Paulette Preddy perished. A neighbor, Renee Luttrell, testified that she talked to appellant at about 7 a.m. on March 6 a block away from the fire and he told her he had not heard about it.

Deborah Lawson, Ms. Witherspoon’s guardian and aunt who lived at 2215-17 North Aisquith Street, testified that she received numerous telephone calls from appellant during March and April, sometimes two or three a day. "[H]e would say things like, you mother-fuckers are going to die. ... It got so bad I had the phone off the hook for a period of time.”

Ms. Witherspoon, who moved in with her aunt at 2215-17 North Aisquith in early April, testified that appellant told her on March 14 he would set her aunt’s house on fire by climbing in through a basement window and starting a fire in the hállway near the stairs. Ms. Witherspoon related this conversation to her cousin Verna, and her aunt, Mrs. Lawson, who called the police. On April 16, 1980 at about 4 a.m., fire broke out at the Aisquith Street address. Sherron Pratt, Lewis Barnes, and Mrs. Lawson, all in the. corner-lot building, testified that they heard an explosion and then saw smoke and flames. They escaped. Yvonne von Hendricks, however, was trapped on the third floor. She dropped her baby out the window, and Mr. Barnes caught the child in a blanket. She then jumped but Mr. Barnes "couldn’t hold her;” she died from her injuries. Later that day, police arrested appellant who denied any involvement.

Charles Cornell, a fire investigator, determined that the Homestead Street fire started on the first floor stairway in a large pile of clothing. At first he concluded that the cause was "careless smoking.” Later, he determined that the fire had been intentionally set, probably by a match thrown on the pile of clothing. The fire at Aisquith Street was also deliberately set, also at the base of the stairway, with gasoline.

Clifton Brown, a fellow inmate of appellant at the Baltimore City Jail, testified that he had a conversation with appellant on April 29 when:

"[h]e started telling me about the fire he set in the 1500 block of Homestead Street . .. after the fire was set he ran . . . and stood on the corner and he seen somebody go in and bring somebody out on the sidewalk, ... he told me he knew the little girl had got hurt in the house, she and her sister, .. . the house was the second or third house from the corner ... and then he started telling me about the Aisquith Street fire ... after he set the fire he stood out there and watched the lady, as she dropped the child out of the window and then he seen [sic] her jump from out of the window.”

Appellant testified that he had known Ms. Witherspoon for two and a half years, that there were "no problems” with their relationship, that he was sleeping when both fires occurred, that on April 16, he was picked up at his home at about 5 a.m. to go to work, that he never saw Clifton Brown or had any contact with him in jail, and that he did not set either fire.

After closing arguments, the court found appellant guilty of all five charges. Following a pre-sentence investigation, appellant was sentenced on December 29,1980. This appeal followed.

II

A criminal defendant’s right to a jury trial is as fundamental as the maxim — innocent until proven guilty. It is guaranteed by the Constitution of the United States, U.S. Const.Amend. VI, applicable to the States through the Fourteenth Amendment, and by the Maryland Declaration of Rights, Arts. 5, 21 and 24. However, this right may be waived, as when the defendant pleads guilty, State v. Priet, 289 Md. 267, 424 A.2d 349 (1981), or elects to be tried by a judge. Md. Rule 735 (1981 Cum. Supp.); Rose v. State, 177 Md. 577, 10 A.2d 617 (1940). "To satisfy constitutional due process standards, the waiver of the right to a jury trial must constitute an intentional relinquishment or abandonment of a known right or privilege.” Dortch v. State, 290 Md. 229, 234, 428 A.2d 1220 (1981), citing Boykin v. Alabama, 395 U.S. 238 (1969).

Appellant here does not contend that he was uninformed of the nature of a jury trial or his right to it. Instead he claims that he waived a jury trial because the State promised he would get only "one life sentence,” and the trial judge agreed to be bound by that promise. Appellant argues that the cases construing Md. Rule 733 (Plea Agreements), Maryland Rules of Procedure, (1982 ed.), are so analogous to the bargain made by appellant that they should control. ,Once past this leap of logic, appellant concludes that the trial judge’s failure to live up to the bargain requires a new trial. We cannot countenance the initial leap.

By its terms, Md. Rule 733 covers only guilty or nolo contendere pleas. Rule 733 c. (Agreements on Sentence, Disposition or Other Judicial Action) comes into operation only "[i]f a plea agreement has been reached pursuant to subsection a 6 of this Rule for a plea of guilty or nolo contendere. ...” Subsection c is not at all applicable to a plea of not guilty — the plea in the instant case. Therefore, the reasoning of cases construing plea bargains, whose very existence is premised on pleas of guilty or nolo contendere, can have no application where the plea is not guilty. Gray v. State, 38 Md. App. 343, 356-7, 380 A.2d 1071 (1977). See generally Santobello v. New York, 404 U.S. 257 (1971); McCormick v. State, 38 Md. App. 442, 381 A.3d 694 (1978).

Further, the purpose of plea agreements is to expedite the processing of criminal defendants through the judicial system. The defendant agrees to give up something — the constitutional right to a jury trial, for example — to get something — a reduced charge, sentencing recommendation or other consideration outlined in Rule 733 a (Conditions for Agreement). McCormick, supra; Miller v. State, 272 Md. 249, 322 A.2d 527 (1974). This purpose and result are not analogous to the purpose of Rule 735 governing waiver of jury trial because there is no legal difference between jury trial and bench trial. Both modes of trial are considered equal, Gilbert v. State, 36 Md. App. 196, 210, 373 A.2d 311 (1977).

More importantly, bargaining over the waiver of a jury trial is not now addressed by any procedural rule in this State. The fundamental right to a jury trial may be waived under Md. Rule 735; if it is to be subject to barter between a defendant and the State, the trial judge should be apprised fully of the nature and extent of the bargain.

(Whether it may properly be the subject of barter, a question we do not resolve, should be carefully considered by bench and bar.)

In this case, we observe that, after fully apprising the defendant on the record of the nature of jury and court trials, defense counsel went on to say:

"The State has indicated that in fact if you take a court trial and if you are found guilty the State is not going to suspend your murder [sentences], but ask the Judge, if you are found guilty, that the maximum sentence you get would be one life sentence. Do you understand that? lAnswer: Yes].” (Emphasis added.)

Defense counsel then addressed the trial judge and the following colloquy occurred:

"MR. POLANSKY: If I understand the Court correctly, the Court is binding itself to that recommendation that if in fact Mr. Epps is found guilty of any charges in this case the maximum sentence would be one life sentence.
THE COURT: While the cases have been joined and we are proceeding as one case, they are all going to be heard together and if I find him guilty of either one he will get one life sentence?
MR. THEMELIS (State’s Attorney): Yes, I am arguing for a life sentence.
MR. POLANSKY: And the Court will not exceed that sentence as being the maximum.
THE COURT: You are requesting me to bind myself to that if I so find him guilty.
MR. POLANSKY: Yes, sir.
THE COURT: Maybe I forgot the recommendation in my chambers, you want to approach the bench.”

The bench conference was not recorded, but from the tenor of the questioning quoted above, it appears that the trial judge intended to straighten out defense counsel’s apparent misconception. When the proceedings continued on the record, the trial judge stated his understanding of the State’s position:

"THE COURT: The State made the recommendation that if the Court finds the defendant guilty the State has recommended the sentence be constricted to one life sentence, and any other sentences, if any, shall be concurrent.”

Defense counsel then asked the defendant:

"Q Is that your understanding?
A If I be found guilty, the State is restricted only to give me one life sentence, I understand that.
Q I will ask you again, sir, that is, has there been any inducement for you to take a court trial and you understand what a jury trial is, do you have any questions?
A No.
Q Do you understand what a court trial is?
A Yes.
Q Do you have any questions in regard to a court trial?
A No, I do not.
Q Now, we have discussed that at length, have we not?
A Yes.
Q And you have to make that decision as to whether you want a court or jury trial?
A I prefer a court trial.”

From the preceding exchange, appellant has artfully constructed his argument but factually there was no "deal.” The judge did not agree that he would impose only one life sentence. He merely restated the State’s recommendation. The defendant answered negatively when asked whether there had been any inducement to "take a court trial” and affirmatively when asked whether he understood the nature of the two modes of trial. Although it was improper for counsel to introduce a sentencing recommendation in the midst of voir dire on jury trial waiver, the waiver itself fully complied with Rule 735 b. As the trial judge stated:

"THE COURT: Let the record show that the Court observed the demeanor of the defendant to the response of his counsel’s explanation of a jury trial or a court trial, and additionally, the explanation by the State and the Court has concluded that the defendant is intelligently and knowingly waiving his right to a jury trial and is requesting a court trial.”

The "bottom line” is, of course, that concurrent sentences are the functional equivalent of one life sentence. Appellant’s counsel stated at oral argument that three life sentences and two 30-year sentences, even if concurrent, would be "held against” appellant when he became eligible for parole. However, the granting of parole is based on other factors, as set forth in Md. Ann. Code, Art. 41 § 112 (1978 Repl. Vol.).

Ill

Appellant argues that the trial court abused its discretion in denying his motion to sever the two arson charges on the basis of prejudicial joinder and lack of significant connection between the two incidents. We find no prejudice to appellant, ample connection between the two fires, and proper exercise of judicial discretion.

Maryland Rule 745 c (1981 Cum. Supp.) states that "[i]f it appears that any party will be prejudiced by the joinder for trial of charging documents, the court may order separate trials or grant any other relief justice requires.” The rule, identical to its precursors, Md. Rules 734 and 735, McKnight v. State, 280 Md. 604, 607 n.l, 375 A.2d 551 (1977), is couched in simple language and is apparent in purpose, Lewis v. State, 235 Md. 588, 590, 202 A.2d 370 (1964), that is, to prevent any prejudice to the defendant, Jones v. State, 38 Md. App. 432, 435, 381 A.2d 317 (1978), aff'd, 284 Md. 232, 395 A.2d 1182 (1979). The absence of prejudice is the fundamental concern, Grandison v. State, 32 Md. App. 705, 363 A.2d 523 (1976), and that determination is vested solely in the sound discretion of the trial judge. Jennings v. State, 8 Md. App. 312, 315, 259 A.2d 543 (1969). There is "no rigid rule and the only limitation is that courts will guard against injustice.” Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914 (1953).

As the Court of Appeals said in McKnight, supra, 280 Md. at 609-10:

"In any given case of similar offense joinder, therefore, the trial judge must balance the likely prejudice caused by the joinder against the important considerations of economy and efficiency in judicial administration.”

The case held that a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials. Id. at 612.

Evidence of another crime is admissible if it falls within one of the exceptions to the general rule excluding such evidence. Ross v. State, 276 Md. 664, 350 A.2d 680 (1976). These exceptions are: motive, intent, absence of mistake, a common scheme or plan, handiwork or signature, and identity. If the State can establish mutual admissibility through one of these exceptions, the trial judge may then balance judicial efficiency and probative value against any prejudicial effect on the defendant. Id. at 669-70. See generally McKnight, supra; Simms v. State, 39 Md. App. 658, 388 A.2d 141, cert. denied, 283 Md. 738 (1978).

In this case, the State argued that the offenses were mutually admissible under one or both of two exceptions: common scheme — thoroughly analyzed by Judge Digges in Cross v. State, 282 Md. 468, 386 A.2d 757 (1978) — and/or motive. Appellant argues that the evidence was too tenuous to show any actual motive on his part or to establish any signature or handiwork exception as to how the fires were started.

The evidence, .however, clearly establishes - appellant’s motive and common scheme. Rebuffed in his efforts to resume his relationship with Ms. Witherspoon, he planned how to harm her. The March 6, 1980 fire, which was deliberately set, occurred at Ms. Witherspoon’s residence at 1526 Homestead Street. She was out babysitting that night. Ms. Witherspoon and appellant were then on "shaky ground” and she was "trying to get away from him.” Appellant confessed to Clifton Brown, a fellow jail inmate, that he had set a fire in the 1500 block of Homestead Street.

In April 1980, Ms. Witherspoon moved to her aunt’s residence at 2215-17 Aisquith Street, the scene of the second fire on April 16, 1980. Between March 6 and April 16, the aunt, Mrs. Lawson, who lived at the Aisquith Street address, received threatening phone calls from appellant. On March 14,1980, appellant informed Ms. Witherspoon that he would set her aunt’s house on fire. Further, appellant warned her that she was "asking for trouble” and that she had "better get out of the house.” On April 16, at about 1 a.m., only hours before the fire, appellant called Ms. Witherspoon at the Aisquith Street address and told her "if [she] didn’t come back to him there would be more tragedy in [her] family.” He told her that "he had five dollars” and he "could easily go out and buy some gasoline instead of getting high.” Clifton Brown also testified that appellant told him that he had set a fire on Aisquith Street.

In Ellerba v. State, 41 Md. App. 712, 727-30, 398 A.2d 1250, cert. denied, 285 Md. 729 (1979), this Court examined a joinder of two arson charges. Because the incendiary devices used to start the fires were not the same, we ruled that joinder was not proper under the "signature” or "handiwork” exceptions. Id. at 729-30. However, we recognized that a "common scheme or plan” exception would have been available if there had been evidence that appellant had started the fires to make and collect insurance claims. Id. at 730.

Unlike Ellerba, in this case there was evidence of a motive and a "common scheme or plan” in appellant’s arson of the residences of Ms. Witherspoon. Because the evidence of both offenses demonstrates a plan on the part of the appellant to get back at Ms. Witherspoon after the break-up of their relationship, both offenses meet the test of mutual admissibility under McKnight, supra. See Mason v. State, 12 Md. App. 655, 280 A.2d 753 (1971). Accordingly, the trial judge balanced the conflicting "considerations of prejudice and economy.” McKnight, supra, 280 Md. at 610. We perceive no abuse of discretion in his decision to deny appellant’s motion for severance.

Judgments affirmed; appellant to pay the costs.

      . Paulette Preddy, who died in the fire, was a niece of Mrs. Lawson; the latter was also Ms. Witherspoon’s aunt.

      . Mrs. Lawson, who saw Mrs. Hendricks jump, testified that "she was heavy and pregnant and her head hit the rocks in the yard of the house by the porch.” Her child was stillborn.

      . James Thomas testified that he picked up appellant between four and five a.m. on April 16 and drove him to a "joint” on Liberty Road, which appellant was supposed to clean. Appellant had been helping him at various nightclubs for two years, Mr. Thomas said. He added that he had called appellant’s house earlier and his mother had said she would get him up.

      . The State argues that appellant failed to preserve this issue for review because he neither objected to imposition of the sentence nor moved to modify it. Md. Rule 1085 (1982 ed.) and Logan v. State, 289 Md. 460, 487-8, 425 A.2d 632 (1981). We need not decide this issue.

      . Rule 735 b (Procedures for Acceptance of Waiver) is substantially the same as prior Rule 735 d (1981 Cum. Supp.) except for deletion of the "full knowledge” language. The waiver of jury trial has no application to the acceptance of a plea of guilty because in pleading guilty, the defendant waives his right to be tried at all. Matthews v. State, 46 Md. App. 172, 416 A.2d 1314 (1980) (construing Md. Rule 735 d). In pleading not guilty, even with an agreed statement of facts, the defendant retains the right to choose between a jury and a judge. But it is a choice of equals. The right to waive one over the other has no bearing on the right to plead not guilty.

      . Tactically, appellant’s choice of a court trial was based on the theory, expounded by defense counsel in closing argument, that the situation was emotionally charged, and that the judge would rely only on proven facts to find guilt beyond a reasonable doubt. He said: "I will start out by saying that one of the reasons that Mr. Epps decided on a court trial and to proceed this way is that he felt in his mind that we could submit an objective I sic] and the Judge could look at the facts in this case and not get tied up with any emotional argument, but keep an open mind.”

      . The regulations to the statute expand on the factors to be considered by the Parole Commission, COMAR 12.08.0118 A (Supp.3). Nowhere is the number of concurrent sentences specified as a factor. The circumstances surrounding the crime part of the decision-making process, as might be expected. Persons sentenced to life imprisonment are eligible for parole after serving a total of 15 years less credits for good behavior and industrial time earned. COMAR 12.08.01 17 A (3) (a). Only the Governor may grant parole to those serving life terms. COMAR 12.08.0117 A (3) (b). See Hanson v. Hughes, 52 Md. App. 246, — A.2d — (1982).


author: Morton, J.,

text:
    AARON HOLSEY v. INMATE GRIEVANCE COMMISSION
    [No. 565,
    September Term, 1982.]

      Decided September 2, 1982.

    The cause was submitted to Morton, Lowe and Wilner, JJ.
    Submitted by Aaron Holsey, in proper person, appellant.
    No brief or appearance by appellee.
   Morton, J.,

delivered the opinion of the Court.

Under date of November 23, 1981, Aaron Holsey’s previously filed inmate grievance was dismissed by the Inmate Grievance Commission (hereinafter Commission) for lack of merit. Holsey thereafter filed in the Baltimore City Court a petition for review of the Commission’s decision. After a hearing before Judge Robert I. H. Hammerman, sitting without a jury, the decision of the Commission was affirmed.

Holsey’s application for leave to appeal the decision of Judge Hammerman to this Court was granted in an order signed by Chief Judge Gilbert on June 15,1982, and the case was transferred to the regular docket. The order further directed the appellant, Holsey, to notify the court’s stenographer within ten days to prepare the stenographic transcript of the June 2, 1982, proceedings before Judge Hammerman in the Baltimore City Court, Maryland Rule 1026 a. 2, and upon the filing thereof be made a part of the record in this appeal. The order further provided that the brief of the appellant be filed by July 26,1982, with the brief of the appellee, Inmate Grievance Commission, to be filed within thirty days after the filing of appellant’s brief (Maryland Rule 1030 a. 2.).

Because the appellant Holsey has failed to comply with the mandate contained in the order of June 15, 1982, of this Court and the Maryland Rules of Procedure, his appeal must be dismissed. Maryland Rule 1035.

The purported brief filed by the appellant in this Court was received in our clerk’s office on July 28,1982, which was beyond the period specified in the order of June 15, 1982. In violation of Maryland Rule 1030 only one copy was submitted, and the copy was handwritten in violation of Maryland Rule 1031. These violations alone would be sufficient grounds to dismiss this appeal.

Above and beyond these infractions is the appellant’s failure to submit a printed record extract as required by Maryland Rule 1028. The appellant recognizes his obligation under the rules to furnish a record extract but asserts that he is "an indigent State prisoner” without funds to pay for the preparation of the stenographic record of the proceedings. Appellant correctly points out that if this were a criminal case and he could establish his indigency, the transcript would be prepared and the costs thereof paid by the State of Maryland. Appellant’s appeal, however, involves a civil case or proceeding and the State of Maryland has provided no mechanism or funds to pay the costs of civil appeals even where it is obvious that the individual seeking to pursue the appeal cannot comply with the rule. But the rule is a meaningful one because without a transcript of the proceedings below this Court could not adequately appraise or judge the validity of either the appellant’s contentions or the arguments of the appellee in opposition thereto. Proceeding without the transcript would be a disservice to all parties involved in the appeal.

It is at once apparent that the Maryland General Assembly has sought to protect and enhance the rights of individuals incarcerated in our State penal system. See Md. Ann. Code art. 41, § 204F. One of the rights specifically accorded an aggrieved inmate is his right to make application for leave to appeal an adverse decision of the trial court. The granting of an appeal to the inmate who is indigent seems to be purely illusory and, thus, no right at all.

Appeal dismissed; costs to be paid by appellant.

      . There is no challenge here to the constitutionality of the statute and we, of course, do not reach that issue.


author: Gilbert, C. J.,

text:
    RODDY SYLVESTER HAYDEN v. ROSE ELIZABETH WESNER
    [No. 815,
    September Term, 1982.]

      Decided September 2, 1982.

    The cause was submitted on briefs to Gilbert, C. J., and Morton and Lowe, JJ.
    Submitted by George R. Sparling for appellant.
    Submitted by Michael J. Ragland, Lisa A. Dixon and Bell & Ragland, P.A. for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case reaches us by way of an expedited appeal on the narrow issue of whether "a want of necessary parties” mandates a dismissal of a wrongful death action that was successfully pursued in Charles County.

The record reveals that a declaration was brought for the wrongful death of Edward Lee Morgan, who was shot to death by the appellant Roddy Sylvester Hayden. The litigation was titled "State of Maryland for the Benefit of Rose Elizabeth Wesner and Rose Elizabeth Wesner, Personal Representative of Edward Lee Morgan” versus the defendant-appellant. Mrs. Wesner is the mother of the decedent. The suit asserts that it is brought "pursuant to Title 3, Section 904 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland.”

Subsection (a) of § 3-904 provides:

"An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.”

Notwithstanding how the case is titled, a jury in the Circuit Court for Charles County (Clark, J.) retürned a "Verdict in favor of the Plaintiff, Rose E. Wesner” for compensatory damages in the amount of $70,000, and a verdict in her favor, as personal representative, in the sum of $7,000.

In "open court” after the verdicts, the appellant-defendant filed a "motion raising preliminary objections” to the absence of a necessary party, namely, the plaintiff, Rose E. Wesner. The appellant noted that the suit was brought by the "State of Maryland, for the Benefit of Rose Elizabeth Wesner” and not by Mrs. Wesner, individually. Thus, the appellant reasons, the verdict must be stricken since the suit was improperly brought, and the verdict improperly handed down.

Judge Clark proceeded to direct that judgments nisi be entered on the verdict. Approximately a month later, he denied the motion raising preliminary objection and directed the entry of judgments absolute.

This appeal ensued. The appellant candidly admits that the appeal is "most technical” but, he says, "substantial.” Appellant readily acknowledges that "the entire trial was conducted as if Mrs. Wesner, individually, was the plaintiff, and that no prejudice to Appellant in the nature of surprise, confusion of the trier of fact or inability to present a defense resulted.” The appellant further acknowledges that he could have "moved for relief at any stage of the proceedings under either Maryland Rule 323 a 8 or Maryland Rule 203 d.”

Md. Rule 323 a provides that:

"Any of the following defenses constitute grounds for a motion raising preliminary objection.
8. Want of necessary parties.”

Section b of Rule 323 provides:

"Motions raising defenses of want of necessary parties, governmental immunity or lack of jurisdiction over the subject matter may be filed at any time....”

What seemingly happened in the instant case was that the appellant knew of his right to invoke Rule 323 or Rule 203 but was content to lie in wait and then play "his ace in the hole” if the verdict was in favor of Mrs. Wesner or was in an amount greater than the appellant deemed proper. In any event, the appellant opted not to interpose his objection until after the jury returned its verdict.

The question then put to us is, under the circumstances of this case, was the appellant’s "ace in the hole” trumped by the jury’s verdict.

Md. Rule Q41 a, applicable to wrongful death actions, provides:

"Where such cause of action arose in this State all persons who are or may be entitled to damages by reason thereof shall be named as plaintiffs whether or not they joined in bringing the action; however, the names of those who did not join in bringing the action shall be preceded by words: "to the use of . . ..............”

. The committee note to Rule Q41 a declares that the rule "abolishes the heretofore existing practice of bringing wrongful death actions in the name of the State of Maryland.”

We think that under the peculiar circumstances of this case, there was no lack of necessary parties. Mrs. Wesner, the mother of the slain child, was the party plaintiff, albeit, a misdesignated one. Naming her as a "use plaintiff’ instead of bringing the action in her own name amounts to no more than an error in styling rather than one of substance. It was obvious to Judge Clark, the jury, and the appellant that the real party plaintiff was the appellee, Mrs. Wesner, and the appellant acknowledges that he was not harmed, surprised, or placed at a disadvantage by the mislabeling of the declaration.

Where as here, a violation of the rules has not misdirected any of the travelers, we see no reason why we should require them to repeat the journey. Beckner v. Chalkley, 19 Md. App. 239, 248, 310 A.2d 569 (1973); Cherry v. Davis, 59 Ga. 454, 456 (1877).

Judgments affírmed.

Costs to be paid by appellant.

      . This expedited appeal was submitted on brief on August 10, 1982.

      . The technical aspect of Hayden’s appeal becomes more obvious when one considers that limitations have not as yet run against the case, see Md. Cts. & Jud. Proc. Code Ann. § 3-904f (1980) and if reversed and tried anew, a larger judgment may ensue.


text:
    JOHN HENRY JACKSON, JR., a/k/a Elmer Wilkins, a/k/a Elmer Douglas, a/k/a Earl Wilkins, a/k/a Douglas Jackson v. STATE OF MARYLAND
    [No. 1191,
    September Term, 1981.]

      Decided September 3, 1982.

      The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moore, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Patrick D. Hanley, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Richard B. Rosenblatt, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mark S. Cohen, Assistant State’s Attorney for Baltimore City, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this appeal from an assault conviction, we consider nostra sponte whether Maryland Rule 736 g 2 (1981 Cum.Supp.) preserves for appellate review a pretrial motion to suppress an improper identification and unlawfully seized evidence when no objection is made to their introduction at trial. We think that, except under certain circumstances where waiver is shown, the rule clearly establishes its own basis for appellate review. Whitfield v. State, 42 Md. App. 107, 124-5, 400 A.2d 772 (1979), rev’d on other grounds, 287 Md. 124, 411 A.2d 415 (1980). Despite our finding that the suppression issue has been properly preserved, we shall affirm the judgment below because none of appellant’s contentions has merit.

I

On July 2, 1981, the appellant, John Henry Jackson, Jr., was convicted by a jury in the Criminal Court of Baltimore (Bell, J.) of common law assault and was sentenced to eight years’ imprisonment. On appeal he contends:

1. The trial court erred in permitting the in-court identification testimony of the victim;
2. The trial court erred in admitting a knife into evidence;
3. The trial court erred in permitting the State to cross-examine him about a prior conviction for manslaughter;
4. The evidence was insufficient to sustain the conviction; and
5. He was denied genuine and effective legal representation.

Alton Boulware testified that he lived in a rowhouse at 4672 Park Heights Avenue, Baltimore City, with his parents, three sisters, and eight brothers. In the early evening of October 3,1979, he was sitting on the front porch with his sister, Cheryl Boulware, and his next-door neighbor, Stephen Perry. The appellant and his friend were sitting on the porch "a door away.” The latter walked up to Mr. Boulware and asked him to come down from his porch and talk. Mr. Boulware went down to the sidewalk and spoke with the man. While he was doing so, he said, appellant "walked up and shook my hand and then he mumbled something and walked back down the street and sat on the steps.” A short time later, Mr. Boulware testified, appellant returned and, without any provocation, stabbed him in the chest. Then, he ran away, "hollering that he had stabbed me.”

At that time, Officer Phillip Benton was driving southbound in the 4600 block of Park Heights Avenue. Two persons suddenly ran out in front of his patrol car, waving their arms and yelling, "police!” When he stopped, the pair approached him, pointed to appellant, and said he had just stabbed a man. The officer turned his car around, drove back to appellant, stopped him, and placed him under arrest. A knife was found about five feet from where appellant was standing. Upon analysis, the bloodstains on the knife matched Mr. Boulware’s blood type.

Appellant admitted that he had stabbed Mr. Boulware, but claimed self-defense. He explained that late the night before, he went to visit his sister, Brenda Williams, at 4674 Park Heights Avenue. He knocked and while waiting for her to answer, three "guys” came up onto the porch and robbed him at gunpoint. The three men fled and he pursued them, but they escaped. Afterwards, he explained, he did not return to his sister’s house, but took a bus to his mother’s house. He spent the rest of that night and the next day at his mother’s house.- He returned to his sister’s neighborhood the evening of October 3, 1979, and, while walking on Park Heights Avenue, he saw Mr. Boulware and recognized him as one of the men who had robbed him. He said that when Mr. Boulware realized that appellant was the man he had robbed the previous evening, Mr. Boulware came at him with a gun, cursing and threatening to "break [appellant’s! head.” Appellant said he pulled his knife and backed off but Mr. Boulware lunged at him, and he stabbed Mr. Boulware in self-defense.

II

Prior to trial, appellant filed two motions under Maryland Rule 736 requesting the court to refuse to admit the knife and any identification testimony offered by Mr. Boulware. The court denied both motions. At trial Mr. Boulware identified appellant as his assailant and the knife was admitted, both without objection.

In his brief, appellant assumes that filing the motions under Rule 736, in and of itself, preserved these issues for review. The State does not address the issue. We do so to emphasize and explicate this Court’s previous interpretation of the rule in Whitfield, supra, 42 Md. App. at 124-5.

Initially, we must consider the impact, if any, of Maryland Rule 761 upon Rule 736. The latter provides that a pretrial ruling denying a motion to suppress evidence under Rule 736 a 3 and 4 is reviewable on appeal of the conviction. Rule 761, on the other hand, requires that objections to a court’s ruling must be made as provided by Rule 522 to be preserved. Rule 522 d 2 requires that "every objection to the admissibility of evidence shall be made at the time when such evidence is offered, . . . otherwise the objection shall be treated as waived.” Rule 761, relying as it does upon Rule 522, is a general rule; Rule 736 is specific, concerning only suppression motions in criminal cases. Since Rule 736 is directed at a specific concern it is obvious it was intended to override Rule 761. We conclude, therefore, that whenever a motion is filed seeking to suppress one of the types of evidence specified in Rule 736 a 3 or 4, the lower court’s ruling on the motion is, by virtue of Rule 736 g 2, preserved for appellate review, even if no contemporary objection is made at trial.

However, simply filing a pretrial motion under Rule 736 does not necessarily preserve the suppression issue for appellate review. The right of appellate review can be waived in many ways. Obviously, if the defendant fails to comply with the time requirements for filing a Rule 736 motion, he waives his right to pursue the motion, Jones v. State, 42 Md. App. 209, 400 A.2d 1 (1979), rev’d on other grounds, 286 Md. 540 (1979). If a defendant, after filing a Rule 736 motion, fails to pursue it, a waiver may result. White v. State, 23 Md. App. 151, 155-6, 326 A.2d 219 (1974), cert. denied. 273 Md. 723 (1975). If a hearing is granted but the defendant presents no grounds to support the motion, his failure "amounts” to a waiver, Bolden v. State, 44 Md. App. 643, 653, 410 A.2d 1085 (1980), cert. denied, 287 Md. 750 (1980).

Similarly, if a pretrial motion is denied and at trial appellant says he has no objection to the admission of the contested evidence, his statement effects a waiver, Erman v. State, 49 Md. App. 605, 630, 434 A.2d 1030 (1981), cert. denied, 292 Md. 13 (1981); and if the evidence that is the subject of the suppression hearing is never offered at trial, the trial judge’s ruling on the motion is not preserved for appellate review. Linkey v. State, 46 Md. App. 312, 416 A.2d 286 (1980).

Finally, if after a ruling is issued on a 736 motion, the accused is convicted by a properly accepted guilty plea, the plea effects a waiver. See Sutton v. State, 289 Md. 359, 364-65, 424 A.2d 755 (1981).

In sum, the clear intent of Rule 736 is to preserve for appellate review any mandatory motion properly made and pursued, irrespective of whether any objection is made at trial. See also, Deyermond v. State, 19 Md. App. 698, 313 A.2d 709 (1974), cert. denied, 420 U.S. 966 (1975).

Ill

Although we have found the suppression issues properly preserved, our review of the record reveals two reasons why appellant is not entitled to a reversal of his conviction on the ground of improper identification. First, the victim’s sister, Cheryl Boulware, witnessed the stabbing and, without any objection, positively identified the appellant as her brother’s assailant.

Second, we do not believe that the photographic viewing was impermissibly suggestive, as asserted by appellant, because only one of the photographs showed a man without a shirt. At the suppression hearing, agent Albert Marcus testified that he visited Mr. Boulware in Sinai Hospital the day after the assault. He showed Mr. Boulware photographs from which Mr. Boulware positively identified appellant, who was barechested. See Dobson v. State, 24 Md. App. 644, 653-4, 335 A.2d 124 (1975), cert. denied, 275 Md. 747 (1975).

Following the holding of Neil v. Biggers, 409 U.S. 188 (1972), five factors are to be considered in evaluating the likelihood of misidentification. These are:

1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’ degree of attention [to the offender];
3. The accuracy of the witness’ prior description of the criminal;
4. The level of certainty demonstrated by the witness at the confrontation; and
5. The length of time between the crime and the confrontation.

Dobson, supra, 24 Md. App. at 653-4. That case upheld the admission of an identification similar to that of the instant case, concluding:

"... although the photographic identification procedure, depicting only one person wearing glasses out of fifteen photographs shown, was 'impermissibly-unnecessarily suggestive’, when the total evidence surrounding that identification is weighed on the scale of Biggers, there exists substantial reliability for the identification, and the identification procedure did not give rise to a very substantial likelihood of misidentification.”

Id. at 655.

While we do not approve the use of unusual or distinctive photographs in pretrial identification, the circumstances of this case indicate no "substantial likelihood of misidentification,” and thus, no error.

Appellant argues that the knife should have been suppressed because the police took it from him in the course of an illegal search. The police did not take the knife from him; they found it on the ground. Because the knife was recovered from the ground, appellant was not subjected to an illegal search. Morton v. State, 284 Md. 526, 531, 397 A.2d 1385 (1979). Even if we accept, as appellant argues, that he abandoned the knife because of "unlawful police action,” there would still be no Fourth Amendment violation. Agent Marcus was, in view of the facts prompting his arrest of appellant, justified in conducting a "stop and frisk” of appellant. Anderson v. State, 282 Md. 701, 387 A.2d 281 (1978); see Johnson v. State, 50 Md. App. 584, 439 A.2d 607 (1982).

IV

The remainder of appellant’s arguments are quickly resolved. He asserts that the trial judge erred in permitting the State to impeach his testimony by presenting evidence of a manslaughter conviction. When the State’s Attorney asked appellant if he had previously been convicted of manslaughter, he said, without objection, that he had. The issue, therefore, has not been preserved for appellate review. Md. Rule 1085.

Appellant claims that the evidence was insufficient to sustain his conviction. His basis is that the testimony presented by agent Marcus, called as a defense witness, contradicted the evidence of the victim and two other State witnesses. Contradictions between the testimony presented by defense witnesses and State witnesses go only to the weight of the evidence, not to its sufficiency. Such contradictions do not provide a basis for finding the evidence insufficient. Bailey v. State, 16 Md. App. 83, 294 A.2d 123 (1972).

Finally, appellant asserts that he was denied effective assistance of counsel. First, he complains that his counsel told him that his [the appellant’s] sister, Brenda Williams, did not see the October 2, 1979 robbery, but at trial she testified that she did see it. Second, he claims that his counsel failed to cross-examine Officer Benton. Neither of these contentions was presented to the trial judge; accordingly, the issue of the competency of counsel has not been preserved for appellate review. Md. Rule 1085 and Cooper v. State, 44 Md. App. 59, 70-1, 407 A.2d 756 (1979).

Having found no merit in any of the appellant’s assertions of error, the conviction must be affirmed.

Judgment affirmed; costs to be paid by appellant.

      . Office Benton did not testify who these people were and they were not called or identified at trial. At the suppression hearing, the officer testified as to what these two people told him, but at the trial he was not permitted to repeat that testimony.

      . The text of Md. Rule 736 a and g 2 is as follows:
      a. Mandatory Motions.

        A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
      1. A defect in the institution of the prosecution;
      2. A defect in the charging document, other than its failure to show jurisdiction in the court or to charge an offense which defenses can be noticed by the court at any time;
      3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
      4. An unlawfully obtained admission, statement or confession;
      5. A motion for joint or separate trial of defendants or offenses.
      g. Effect of Determination of Certain Motions.

      2. Suppression of Evidence.
      If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in the exercise of its discretion, grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.

      . The examples listed are not exhaustive; they simply indicate the type of actions by a defendant that can constitute a waiver of his right to challenge a trial court’s ruling on a Rule 736 motion.

      . We note that Lefkowitz v. Newsome, 420 U.S. 283, 289 (1975), held that States could properly enact statutes to preserve lower court rulings on pretrial motions for appellate review in cases tried on guilty pleas. However, no such provision has, by rule, statute or judicial precedent, been put into effect in this State.

      . In determining whether the denial of a motion to suppress under Maryland Rule 736 (1981 Cum.Supp.) is correct, the appellate court looks to the record of the suppression hearing Pharr v. State, 36 Md. App. 615, 375 A.2d 1129 (1977), cert. denied, 281 Md. 742 (1977), and does not consider the record of the trial itself.

      . There was no evidence that the appellant was shirtless at the time of the assault or that the photograph of appellant without a shirt made him any more identifiable.

      . This issue may also be deemed waived because appellant conceded that he stabbed Mr. Boulware, but claimed he did so in self-defense. See Clay v. State, 211 Md. 577, 586, 128 A.2d 634 (1957).

      . In Ricketts v. State, 291 Md. 701, 436 A.2d 906 (1981), the Court of Appeals stated that evidence of a prior felony conviction could be used for impeachment purposes.


text:
    EMMA P. WARD v. RONALD HAROLD WARD
    [No. 1201,
    September Term, 1981.]

      Decided September 3, 1982.

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

      Thomas A. Gentile, with whom was Harry W. Goldberg, P.A. on the brief, for appellant.

      Elliott B. Adler, with whom were Perito, Duerk, Carlson & Pinco, P.C. on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant Emma P. Ward again appeals to this Court, following our remand to the Circuit Court for Prince George’s County in Ward v. Ward, 48 Md. App. 307, 426 A.2d 443 (1981) (Ward I). This time she complains that the chancellor "effectively ignored” our mandate by granting a monetary award which far exceeds the value of all marital property. Also, appellant asserts, neither the findings of fact nor the evidence justified a $50,000 award to the husband, or a deviation from the presumption of equal division of the parties’ former matrimonial residence. We shall vacate the judgment and remand.

I

The pertinent facts may be briefly stated. Appellant and appellee Ronald Harold Ward were married in 1956. They had no children. The couple first separated in 1976 and, except for brief periods of reconciliation, remained apart until their divorce in 1980. After a trial in March of that year, the chancellor denied appellant’s amended bill for divorce a vinculo matrimonii, granted appellee’s cross-bill on the ground of adultery, and disposed of certain marital property, including two vacation lots in New Jersey. The chancellor also awarded appellant a fixed sum of $10,000 in substitution of her one-half interest in the parties’ marital home in Clinton, Maryland, which they owned as tenants by the entireties.

On appeal (Ward I), the wife argued that the chancellor had misconstrued and misapplied the property disposition statute. We agreed, holding that the $10,000 award was not authorized by either § 3-6A-04 or § 3-6A-05. Id. at 311. We also found that, in effect, the award transferred ownership of the property from one spouse to the other, in contravention of § 3-6A-04; and that, if the $10,000 interest were intended to be a monetary award under § 3-6A-05, it did not comport with the directions of that section. Id.

Upon remand, no new testimony was taken, by mutual agreement. Both parties submitted proposed findings of fact, conclusions of law, and forms of decrees based upon the evidence adduced at trial in March 1980. Except for the proposed decree, these documents were essentially identical. The chancellor adopted appellee’s decree which contained typed-in awards of $50,000 to the husband and $10,000 to the wife "in adjustment of [their] equities in the marital property.”

II

The applicable statute, Md. Cts. & Jud. Proc. Code Ann. § 3-6A-05 (1980 Repl. Vol.), which empowers a court to distribute assets acquired during marriage through a monetary award, Pitsenberger v. Pitsenberger, 287 Md. 20, 25, 410 A.2d 1052 (1980), appeal dismissed, 449 U.S. 807 (1980), is reproduced in Ward I, 48 Md. App. at 309-11. The statute permits a court to make an award of money "in accordance with the announced policy of the legislature which is to give careful consideration to both monetary and non-monetary contributions by the spouses to the marriage.” Wimmer v. Wimmer, 287 Md. 663, n.2 at 667, 414 A.2d 1254 (1980). The monetary award is designed to accomplish an equitable division of the marital property in an indirect manner. Ohm v. Ohm, 49 Md. App. 392, n.2 at 396, 431 A.2d 1371 (1981). The statute does not require an equal division of marital property, nor does it contemplate too harsh a decretal award. Deering v. Deering, 292 Md. 115, 131, 437 A.2d 883 (1981). The clear intent is to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage, strictly in accordance with its title.

Section 3-6A-05 envisions a three-step process. Harper v. Harper, 294 Md. 54, 448 A.2d 916, 928-29 (1982) 294 Md. at 79: 1) if an equitable adjustment over and above the distribution of the spouse’s property in accordance with its title is an issue, the court shall determine which property is marital property; 2) the court shall then determine the value of all marital property; 3) finally, the court may make a monetary award as an adjustment of the parties’ "equities and rights” concerning marital property, whether or not alimony is awarded. If an award is deemed appropriate, the court shall then consider each of the nine factors enumerated in § 3-6A-05 (b) in determining a fair and equitable amount and the method of its payment.

The monetary award is thus an addition to and not a substitution for a legal division of the property accumulated during marriage, according to title. It is "intended to compensate a spouse who holds title to less than an equitable portion” of that property. Note, Property Disposition Upon Divorce in Maryland: An Analysis of the New Statute, 8 U. Balt. L. Rev. 377, 386 (1979). As the Note suggests, the monetary award is similar to alimony in gross, a lump sum award for the present value of a wife’s inchoate marital rights. Id. at 393. It is important to realize that the monetary award is purely discretionary. Section 3-6A-05 may not be applicable in every or even most divorce cases. What triggers operation of the statute is the claim that a division of the parties’ property according to its title would create an inequity which could be overcome through a monetary award. Further, the initial determination of what constitutes marital property does not depend upon any consideration of the nine factors in § 3-6A-05 (b). Harper, supra, 448 A.2d at 928-29. Marital property is broadly defined in § 3-6A-01 (e) as "all property, however titled, acquired by either or both spouses during their marriage” subject to the exceptions listed.

Tracking the language of § 3-6A-05 (a), we know that division of the property in this case was an issue because the wife charged in her bill of complaint that the husband appropriated to his own use property in which she had an interest. In step 1, the chancellor determined that the only marital property was the couple’s home at 12404 Tove Court, Clinton, Maryland, the other property having been disposed of. In step 2, the chancellor found that the net value of the marital property was $32,000. In step 3, the chancellor presumably decided that a monetary award was necessary in view of the parties’ interests in the marital home and other circumstances. He then considered each of the nine factors and found as follows:

1. Each party contributed over the course of the marriage to marital property and to family finances in varying amounts depending upon the employment and educational status of the husband and wife at particular times throughout the marriage [§ 3-6A-05 (b) (1)];
The wife contributed approximately $5,000 to the initial purchase of the parties’ marital home from her own resources [Id.];
Since the parties’ separation in 1976, the husband has had full use of the marital home, and has also paid the mortgage, taxes and upkeep [Id.];
The value of the house has appreciated substantially since its purchase in 1973 for $36,000 [Id.]; The husband is entitled to some credit for his upkeep of the home during the last few years of the marriage, and both parties are entitled to share in the appreciated value of the home lid.]; The marital home of the parties is in both names [Id.];
2. The testimony reflected that the marital home has an existing mortgage of approximately $28,000, and thus equity in the home at the time of trial was approximately $32,000, which corresponds to the total value of jointly owned marital property [§ 3-6A-05 (b) (2)];
3. Both parties are in relatively stable economic situations and the court does not deem this factor relevant in this case [§ 3-6A-05 (b) (3)1;
4. Although the wife testified that the parties separated because of the husband’s cruelty, this allegation was not adequately corroborated. The only evidence of the wife’s adultery was several years after the parties’ separation, and thus this factor has no bearing on the monetary award in this case [§ 3-6A-05 (b) (4)];
5. The marriage lasted for 16 years, but in view of the parties’ generally equal contributions, this factor alone is not relevant to the monetary award [§ 3-6A-05 (b) (5)];
6. Both parties are in their 30s and are in good general health although the wife testified to a number of chronic physical problems. The Court does not deem this factor relevant in making the monetary award [§ 3-6A-05 (b) (6)];
7. The testimony at trial revealed that both parties participated in the selection of the marital home in Tove Court prior to purchase [§ 3-6A-05 (b) (7)];
8. The Court has not made an award under subtitle 6A with respect to family use, personal property or the family home, nor any award of alimony [§ 3-6A-05 (b) (8)]; and
9. The Court deems no other factors necessary or appropriate to consider in order to arrive at a fair and equitable monetary award [§ 3-6A-05 (b) (9)].

Based on these findings of fact the court concluded as a matter of law that:

"The real property known as 12404 Tove Court, Clinton, Maryland, is marital property and that the said real property is the only marital property now before the Court as all other marital property was disposed of previously;
The Wife is entitled to a monetary award in the amount of $10,000.00 in adjustment of her equities in the marital property;
The Husband is entitled to a monetary award in the amount of $50,000.00 in adjustment of his equities in the marital property.”

The obvious flaw here is that the chancellor has made two awards, each purporting to adjust the individual equities in the marital property. The statute calls for a monetary award as an adjustment of the parties’ rights and equities. The use of the singular "award” is clear and deliberate — the General Assembly intended that one award would balance the equities between the parties after each of the nine factors had been weighed.

In this case, the inescapable conclusion flowing from a consideration of the nine factors is that the balance was even. The chancellor found that factors (3), (4), (5), (6), and (9) were irrelevant; that both parties participated in the selection of the property prior to purchase (7); that no award has been made under § 3-6A-03 or 06 (8); and that each party contributed over the course of the marriage in varying amounts depending upon employment and education status (1). Also, under factor (1), the court found that the wife had contributed $5,000 to the initial purchase of the marital home from her own resources; that the husband had lived in the home since the parties separated in 1976; that he had paid the mortgage and taxes since then; that the value of the house had appreciated from $36,000 to $60,000; that both parties were entitled to share in the appreciation, and that the husband is entitled to some credit for his upkeep of the home.

Based on these findings of fact, the chancellor’s ruling violates the most basic principles governing monetary awards. Since the function of a monetary award is to adjust the parties’ equities in the marital property, it is elemental that a court cannot make an award whose amount exceeds the total value of the marital property. Here the court awarded $50,000 (or a net of $40,000) based on marital property worth only $32,000. Second, the statute contemplates but one net monetary award — or none — but certainly not two. There is no authority in § 3-6A-05 for making a $50,000 award to one spouse and a $10,000 award to the other. Finally, it is clear from the record that the chancellor gave no more than lip service to the nine factors. We see nothing fair or equitable in a five to one ratio, based on the court’s findings. The effect of the chancellor’s award is to give the husband the entire value of the marital property. Such a decision constituted clear error. Rule 1086, Maryland Rules of Procedure (1982 ed.); Link v. Link, 35 Md. App. 684, 371 A.2d 1146 (1977).

Where a monetary award is made, the parties’ property interests are not affected. Here, the parties owned this marital property as tenants by the entireties. Their divorce made them tenants in common. As such, each has an undivided one-half interest in a property whose net value is $32,000. Where the parties are tenants in common of their former marital residence, and it is the only marital property at issue, an equal and equitable division may be accomplished without any court intervention. As tenants in common, either of the parties may petition for a sale of the home to recover his or her individual interest.

Upon remand, the chancellor should reconsider the evidence or take new testimony to determine, first, if an award need be made at all, and if so, to set a single amount that would fairly adjust the parties’ equities in the marital property after considering the nine factors.

Decree vacated insofar as it provides for monetary awards of $50,000 to the husband and $10,000 to the wife; otherwise, decree affirmed; case remanded for further proceedings consistent with this opinion; costs to be paid by appellee.

      . These properties were originally bought in 1977 in the names of both husband and wife for 814,495. The contracts on the lots fell into default in 1978, and thereafter, the husband took title in his name alone on new contracts. The eventual disposition of the properties was not raised in this appeal.

      . Appellant’s proposed decree correctly set out the chancellor’s alternatives, leaving blank spaces for the appropriate amount. We reproduce it here:
      "The Court concludes as a matter of law that Ronald H. Ward is entitled to a divorce a vinculo matrimonii from Emma P. Ward, and that
      (Emma P. Ward is entitled to a monetary award in the sum of $_).
      (Ronald H. Ward is entitled to a monetary award in the sum of $_).
      (Neither party is entitled to a monetary award).
      Therefore, it is by the Circuit Court for Prince George’s County, Maryland, this_day of_, 1981,
      ORDERED, that the defendant Ronald H. Ward, be and he is hereby divorced A Vinculo Matrimonii from Emma P. Ward, and it is further,
      (ORDERED, that a monetary award in the sum of $_ is granted to-,) and it is further,
      ORDERED, that the costs of these proceedings be divided equally between the parties.
      David Gray Ross JUDGE”

      . The discretionary nature of Md. Cts. & Jud. Proc. Code Ann. i) 3-6A-05 (1980 Repl. Vol.) is demonstrated not only by use of the word "may” but also by the fact that the chancellor is permitted to set the method of payment of a monetary award. For example, a $10,000 award to a party might be paid in monthly installments over a period of years. In this manner, a partition and sale of the marital home or other property to pay a monetary award could be avoided. See Ayars v. Ayars, 50 Md. App. 93, 436 A.2d 490 (19811.

      . In her bill of complaint, the appellant wife sought a determination of the parties’ rights, a partition of the jointly-held property "in a fair and equitable manner,” and a monetary award in adjustment of her rights, pursuant to Md. Cts. & Jud. Proc. Code Ann. § 3-6A-05 (1980 Repl. Vol.).

      . The preamble to Md. Cts. & Jud. Proc. Code Ann. § 3-6A-01 et seq. (1980 Repl. Vol.) states that "marriage is a union of two individuals having equal rights under the law. Both spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses and any children they may have.” Further, "when a marriage is dissolved, the property interests of the spouses should be adjusted fairly and equitably, with careful consideration being given to both monetary and non-monetary contributions made by the respective spouses to the well-being of the family,. . . .”
      The language of the nine factors clearly points to a bottom-line approach to equitable resolution of the parties’ interests in the specified marital property. The factors include each party’s contributions and efforts to acquire the property, the value of all property interests, circumstances of estrangement, duration of the marriage, other awards such as alimony, and a catchall of any other factors "necessary and appropriate.”

      . The Governor’s Commission on Domestic Relations Laws stated in its 1978 report proposing the Property Disposition Act that "equality is not necessarily equity” and the latter would best be served by giving individual attention to individual cases. The commission rejected the community property approach — in which each spouse receives exactly one-half of the total property. Report of Governor’s Commission on Domestic Relations Laws at 15 (1978).

      . The chancellor found that the husband would be entitled to some credit for his upkeep of the home during the last few years of marriage. While appellant disputes such an entitlement, she points out in her brief that the matter could be raised in a partition suit. Md. Real Prop. Code Ann. § 14-107 (1981 Repl. Vol.).