text:
    HOWARD SLUSHER et al. v. HANSON ROAD JOINT VENTURE
    [No. 738,
    September Term, 1974.]

      Decided March 18, 1975.

      The cause was submitted on briefs to Moylan, Gilbert and Mason, JJ.
    Submitted by Robert W. Baker tor appellants.
    Submitted by Robert S. Sherman for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Hanson Road Joint Venture (Hanson) filed an application with the zoning hearing examiner of Harford County to rezone approximately 10.4 acres of land located on the north side of Hanson Road, three-fourths of a mile east of Hanson Road’s intersection with Magnolia Road. Hanson sought to have their land changed from A-l (Agricultural) to B-l (Business District). The Harford County Department of Planning and Zoning endorsed the requested change. The hearing examiner, following a public hearing, recommended to the County Council that the application be denied because of certain procedural defects therein. The Council, by order dated January 8, 1974, directed that the hearing examiner “write a denial of rezoning opinion”, apparently grounding it on failure to show “change in the neighborhood” or “mistake in original zoning.” The hearing examiner, however, declined to write such an opinion. The Council thereafter, on February 12, 1974, determined that “there was no mistake in the original zoning nor has there been a substantial change in the neighborhood to warrant property rezoning”, and the application “for rezoning from A-l to B-l [was] denied.”

Hanson appealed to the Circuit Court for Harford County where Judge Harry E. Dyer, Jr. reversed the decision of the County Council and directed that, “[t]he Zoning Inspector . . . issue a Zoning Certificate to [Hanson] for the ‘B-l’ use of the subject property.”

Howard Slusher and Phyllis Marcin entered an appeal to this Court. Hanson has moved to dismiss the appeal on the ground that the appellants, jointly and severally, are not aggrieved parties as that term is explained in Bryniarski v. Montgomery Co., 247 Md. 137, 230 A. 2d 289 (1967) and explicated in Largo Civic Ass’n v. Pr. Geo’s. Co., 21 Md. App. 76, 318 A. 2d 834 (1974). Judge Barnes, writing for the Court in Bryniarski, said at 143:

“Under the applicable statutory law, two conditions must be met before a person has standing to appeal to the Circuit Court.. . from the decision of the . . . [County Council]: (1) He must have been a party to the proceeding before the [County Council] and (2) He must be aggrieved by the decision of the [County Council].”

This Court in Largo Civic Ass’n, supra, stated at 76:

“We find nothing in Bryniarski v. Montgomery County, supra, holding that a person must testify before the administrative agency in order to be a ‘party to the proceeding before the’ agency. Indeed there is no requirement that he do so provided the record shows he was in fact a party. DuBay v. Crane, 240 Md. 180, 213 A. 2d 487 (1965). See also Hertelendy v. Montgomery Cty., 245 Md. 554, 226 A. 2d 672 (1967).”

The appellants have averred in their answer to the motion to dismiss the appeal, that pach of the appellants wrote to the then President of the County Council, protesting the Hanson zoning application. We have thoroughly examined the entire record. The letters to the Council president are not part thereof, nor is there an inference, expressed or implied, of the existence of the letters. Additionally, neither appellant appeared at the hearing conducted by the examiner, and the record does not indicate that either of them appeared before the Council when that body acted upon the application. Furthermore, the appellants did not appear as parties in the Circuit Court. In short, the record does not show that the appellants have ever been parties to this proceeding except in this Court.

We reiterate what Judge Barnes said in Bryniarski, and what we repeated in Largo, viz., that in order to be an aggrieved party to the proceeding, the record must show that the litigant was in fact, a party. Bald allegations, in answer to a motion to dismiss an appeal, of the existence of a letter of protest addressed to the County Council president do not satisfy the Bryniarski-Largo requirements.

We declare that in order to have standing in a zoning case before this Court, the record must disclose that the party not only participated, as in Bryniarski and Largo, before the administrative agency or County Council, but must have also been a party before the Circuit Court. A person may not be a party before the agency or legislative body, disappear from the case while it is before the Circuit Court, and then reemerge in the appellate tribunal.

Appellants contend, however, that the Harford County Charter confers upon them the right to appeal to this Court. They point to § 709 of the Charter, which provides:

“Any person aggrieved by any final decision in a zoning case shall have the right to appeal that decision to the Circuit Court for Harford County and shall have the further right to appeal to the Court of Appeals of Maryland [sic]. The words ‘person aggrieved’ shall be liberally construed to substantially broaden that class of persons, and shall be interpreted to effectuate the general purposes of this Article.” (Emphasis supplied.)

Appellants construe Md. Ann. Code art. 66B, § 4.01 (b) which allows a county legislative body to:

“. . . impose such additional restrictions, conditions, or limitations as may be deemed appropriate to preserve, improve, or protect the general character and design of the lands and improvements being zoned or rezoned. ...”

as conferring upon the County Council the authority to expand upon the right of appeal to this Court. We do not read § 709 of the Harford County Charter or § 4.01 (b) of article 66B of the Md. Ann. Code, either separately or together, to so provide. We observe that the above-quoted Charter provision states in pertinent part:

“Any person aggrieved by any final decision .. . shall have a right to appeal... to the Circuit Court... and shall have the further right of appeal [to the Court of Special Appeals of Maryland].” (Emphasis supplied).

The word further is defined to mean: “In addition; furthermore.” American Heritage Dictionary of the English Language (1969). The word further as used in § 709 of the Charter means one may appeal to this Court in addition to the right of appeal to the Circuit Court. In order for an appeal to this Court to be in addition to or in furtherance of the appeal to the Circuit Court, there of necessity must first have been an appeal to the Circuit Court, and the appellant must have been a party to that appeal. Even if we assume arguendo that the County Council has the authority to enlarge upon who may appeal to this Court, nowhere in § 709 of the Charter, nor in Md. Ann. Code art. 66B, § 4.01 (b) is it indicated, suggested, implied or even remotely intimated that a non-party before the Circuit Court may appeal a decision of that court. The appellants have no standing in this appeal, and the appellee’s motion to dismiss the appeal must be granted.

One last word is in order. Appellants in an endeavor to “snatch victory from the jaws of defeat”, argue that inasmuch as the appellee hád filed a motion to dismiss pursuant to Md. Rule 1035 b (1), and we denied the motion as having been untimely filed, Md. Rule 1036 c, that the appellee is precluded from incorporating within his brief a motion to dismiss because the matter is now res judicata. Appellants misread the Rules. Md. Rule 1036 c allows a motion to dismiss to be filed within ten days from the date in which the record is filed with this Court, “or within ten days from the date the record should have been filed with this Court.” Md. Rule 1036 d, however, allows a motion to dismiss to be included in the appellee’s brief. The fact that a motion is brought under Md. Rule 1036 c, which motion is defective in that it was not timely filed, does not preclude an appellee from properly including in his brief a motion to dismiss. The appellant’s argument relative to res judicata, while novel, is totally devoid of merit.

Appeal dismissed.

Costs to be paid by appellants.

      . Proceedings of legislative session 74-2 of the Harford County Council, Harford, Maryland dated January 8, 1974. It is manifest that the Council did not subscribe to the rejection of the application because of procedural defects.


source: Caselaw Access Project

author:
Lowe, J.,
      Davidson, J,

license: Public Domain

text:
    EDWARD J. HENSLEY v. MONTGOMERY COUNTY, MARYLAND et al.
    [No. 602,
    September Term, 1974.]

      Decided March 20, 1975.

      The cause was argued before Morton, Davidson and Lowe, JJ.

      James L. Baer, with whom was Robert P. Brady on the brief, for appellant.

      Craig S. Rice, with whom were Mclnemey, Layne & McCormick on the brief, for appellee Montgomery County, Maryland.

      Jeffrey R. Schmieler, with whom were Carlton L. Saunders and Saunders & Schmieler on the brief, for other appellee.
   Lowe, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 371 infra.

Edward Hensley was driving to the River Falls Subdivision which was his place of employment located on Stable Lane west of Brickyard Road in Montgomery County. The new development contained homes already occupied by “one hundred, one hundred twenty five” families, whose ingress and egress was obtained by use of Brickyard Road, an eighteen foot wide secondary roadway running north from MacArthur Boulevard at which point appellant had entered it. Its asphalt surface succumbs to a gravel surface a few hundred yards past Stable Lane where appellant turned to reach his place of employment, as did “fifty to seventy-five percent” of the “probably . . . one hundred fifty” other employees. Moments after appellant turned off MacArthur Boulevard onto Brickyard Road — but well before the Stable Lane turnoff — a large tree limb from a dead tree fell through appellant’s windshield seriously injuring him. Appellant sued Olga Mary Mazza, the apparent owner of the property adjoining the road, as well as Montgomery County, the governing body responsible for the road. At the conclusion of the presentation of his case, a verdict was directed against him and judgment entered accordingly. It is from that judgment that he now appeals.

Appellant had driven past this point twice a day, to and from work, for about six months but failed to notice either “the limb or the tree” which set back approximately 15 to 16 feet from the road. The tree from which the limb fell was located on a 219 acre wooded tract, neither developed nor inhabited. There is no evidence, even from appellant’s father who worked with him and who had particularly observed the tree in question from time to time, that the limb overhung the road. From the photographs in evidence the tree’s branches appear to have grown upward rather than outward.

The appellant’s father testified that the nature of his work for the past twenty-eight years entailed the removal of dead trees from building sites. This experience caused him to note the presence of the dead tree during the calendar year before the accident occurred.

“I have seen the tree before, probably 1970, or I had noticed the tree dead. Of course, I do notice dead trees. We look very carefully when we are working when we are clearing and they do stand out to me.”

However, Mr. Hensley stated that “It didn’t seem to create any hazards or any problem in [his] opinion . . . .” Furthermore he indicated that:

. . probably the tree would never stand out or no one else would ever notice. The kind of work I am doing, it is noticeable to me.”

Appellant concedes that the fall of the limb was due to the natural process of decay.

To impose a liability upon the landowner, appellant must have shown not only that the tree constituted a danger to the lawful users of the abutting public road, but that the owner of the land upon which it stood was cognizant of the deteriorated condition of the tree or should have been cognizant of its condition.

The evidence produced by appellant was summarized and considered by us “in the light most favorable” to him as we must when reviewing the propriety of a trial court’s grant of a motion for directed verdict. Ramsey v. D.P.A. Assoc., 265 Md. 319. The evidence showed no actual notice that the condition of the tree constituted a danger to travelers on the road, either express or implied, to either appellee. Any inference which might have arisen from appellant’s father’s having seen the tree prior to the accident was negated by his own apologia for having done so, an opinion he buttressed with his self-styled expertise. In order to prevail then, appellant must rely upon constructive notice which rests upon strictly legal presumptions, as opposed to implied notice which is a form of actual notice arising from inferences of fact. Baltimore v. Whittington, 78 Md. 231, 235.

Authority upon which to rely is limited indeed by the peculiar nature of the accident. The likelihood of a portion of a tree falling from natural causes coinciding in time and space with a passing motorist so as to cause him injury is so remote as to have been but twice reviewed by Maryland’s appellate courts — and those over a half-century ago, Ver-Vac Bottling Co. v. Hinson, 147 Md. 267 involving an active intervening cause, and Washington County v. Gaylor, 140 Md. 375, which did not have before it the question of liability of an abutting landowner. Broader research, however, discloses that such accidents have occurred in several jurisdictions, indicating that they are less than remarkable, albeit fortunately infrequent. See Annotations, 11 A.L.R. 2d 626; 72 A.L.R. 615; 49 A.L.R. 840 and 19 A.L.R. 1021. Once one is awakened to the possibility, a roadside review of dead or dying trees during a single Sunday drive makes it wondrous indeed that such accidents are not a relatively common occurrence.

The eases reviewed ponder what duties should be assigned to 1) the governing body responsible for the safe condition of the road in question, Cf., Carroll County v. Staubitz, 231 Md. 309; Birckhead, v. Baltimore, 174 Md. 32; Baltimore County v. Wilson, 97 Md. 207; and 2) the adjoining property owner who is charged with the legal duty “sic utere tuo ut alienum non laedas” — so use your own as not to injure another. Brandywine Hundred Realty Co. v. Cotillo, 55 F. 2d 231 (3d Cir.).

Disregarding for the moment the refinements of proofs requisite at a trial, the most troubling cases throughout the country have been those such as this, where there was no actual notice of the dangerous condition (dead tree). In addition to a landowner’s duty to exercise reasonable care to prevent the fall of a tree into a highway, some courts imposed a duty entailing constant and periodic inspection to discover the natural processes of decay of trees abutting highways. Since we are faced with two defendant appellees, we will discuss the law relating to the landowner first and the County thereafter, noting in advance that the standards for each are not altogether dissimilar.

The Rural Rule

One reason Professor Prosser has been considered the “King of Torts” is his ability to state succinctly a principle encompassing the results of state by state study of an issue. Our own review verified the accuracy, both within and without this country, of his statement on the inspection question:

“The rule of non-liability for natural conditions was obviously a practical necessity in the early days, when land was very largely in a primitive state. It remains to a considerable extent a necessity in rural communities, where the burden of inspecting and improving the land is likely to be entirely disproportionate not only to any threatened harm but even to the value of the land itself. Almost without exception the cases applying it have arisen in the country. But it is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. There are indications that a different rule is developing as to urban centers.
This is well illustrated by the cases of dangerous trees. It is still the prevailing rule that the owner of rural land is not required to inspect it to make sure that every tree is safe, and will not fall over into the public highway and kill a man, although there is already some little dissent even as to this, and at least if the defendant knows that the tree is dangerous he vñll be required to take affirmative steps. But when the tree is in an urban area, and falls into a city street, there is no dispute as to the landowner's duty of reasonable care, including inspection to make sure that the tree is safe. The cases of trees therefore suggest that the ordinary rules as to negligence should apply in the case of natural conditions, and that it becomes a question of the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented. ” [Emphasis added]. W. Prosser, Law of Torts, (3rd ed.) § 57 at 362, 363.

To those who dwell in urban areas with one or two trees in their yard at most, the onus of inspection is modest. The farmer, the developer or the landed gentry who owns large and sometimes sprawling tracts of woodland adjacent to or through which a road has been built, may find the task of inspecting for trees dead, dying, or decayed so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.

The rural rule not requiring inspection has been recognized by the Restatement where the liability of urban property owners is treated as an exception to the rural rule. Comment upon subsection (2), 2 Restatement 2d, Torts, § 363. Throughout the country the courts have accepted the distinction between rural and urban lands and generally absolved owners of rural wooded lands from the duty to inspect trees to ascertain whether they are defective. See, e.g., Lemon v. Edwards, 344 S.W.2d 823, (Ky.); Zacharias v. Nesbitt, 185 N. W. 295, (Minn.); Chambers v. Whelen, 44 F. 2d 340, (4 Cir.), 72 A.L.R. 611; O’Brien v. United States, 275 F. 2d 696, (9 Cir.); Hay v. Norwalk Lodge No. 730, B.P.O.E., 109 N.E.2d 481, (Ohio); Albin v. National Bank of Commerce, 375 P. 2d 487, (Wash.), and Annotations in 19 A.L.R. 1016; 49 A.L.R. 840; 72 A.L.R. 615 and 11 A.L.R.2d 626.

The reasoning of these cases recognizes the practical difficulty of continuously examining each tree in the untold number of acres of forests bordering roads and contrasts it with an urban homeowner’s inevitable awareness of one or a few ornamental trees situate in his yard. In the latter instance inspection is an incident of daily life, in the former it would be a time consuming and difficult effort. The growth and adaptation of the common law to our contemporary concerns should not impose impractical burdens or impossible duties. But see, Noel, Nuisances from Land in its Natural Condition, 56 Harv. L. R. 772, 791.

The Suburban Forest

Between the rural rule and the urban exception lies a grey area which is becoming more and more prevalent. As population increase causes city and suburban growth to continually encroach upon rural areas, property owners are encouraged by government to preserve “open spaces” accessible to population centers. Frequently housing demands result in suburbs which have bypassed or enveloped farms clung to tenaciously by those reluctant to give up an accustomed way of life. We have thus created hitherto undesignated “suburban forests” lying somewhere between the rigidity of urban responsibility to inspect and the rural rule limiting liability to actual knowledge of hazardous trees adjoining a public way.

Appellant grasps the descriptive term “suburban-forest” used in Brandywine Hundred Realty Co. v. Cotillo, supra, 55 F. 2d 231 (3d Cir.) which he analogizes to the facts here. In Brandywine:

“the plaintiff was driving his automobile on one of the principal through roads of Delaware, on which a tract of suburban forest abutted, about two miles north of Wilmington,. . . the tree had been dead for four years.. . [Emphasis added].

Appellant reads into the use of that descriptive term an expansion of the urban inspection exception to the suburbs. He presumably rationalizes his desire for restricting the rural rule as did Noel, Nuisances from Land in its Natural Condition, supra, 56 Harv. L. R. 772, 791:

“With the great increase of travel in modern times, and the growing tendency to protect travellers, the imposition on the landowner of the burden of due care in removing such menaces, according to nuisance principles, would seem to be justified in view of the grave harm threatened to users of the highways.”

We do not agree that the duty of inspection should be extended to include the owner of this “suburban-forest.” Appellant’s misplaced reliance on Brandywine brings to the fore a distinction found in all the cases applying the rural rule. In each, the “rural highway” is noted as being in reality a country road. While perhaps not controlling, that factor is obviously given substantial weight in those cases. Zacharias v. Nesbitt, 185 N. W. 295 (Minn.), 19 A.L.R. 1015; Chambers v. Whelen, 44 F. 2d 340 (4 Cir.), 72 A.L.R. 615; see also Harrison v. New Haven, 37 Conn. 475; Anno. 11 A.L.R.2d 626, 633; and O’Brien v. United States, 275 F. 2d 696, (9 Cir.); Albin v. National Bank of Commerce, 375 P. 2d 487, (Wash.). We note that the accident in Brandywine, supra, occurred “on one of the principal through roads of Delaware.” In contrast the hard surface of the eighteen foot wide road here, ended just below the scene of the accident, indicating something less than a thoroughfare.

The size and type of road is but one factor to be considered. The use of the road is a consideration as well. Accepting every inference favorable to appellant and thus assuming that there were one hundred twenty-five families in the subdivision (presumably not far from the scene) using the road, and adding to that over one hundred construction employees, the amount of traffic nevertheless does not elevate Brickyard Road from one of secondary rural use to a principal highway.

Nor do the one hundred twenty-five homes, the locations of which are somewhere off Stable Lane to the west of the accident scene, implant an oppidan complexion upon the rural vicinage. In none of the twenty-two photographs introduced by appellant are there shown any houses or other evidence of human habitation (save the roadway and appellant's vehicle). To the contrary, the entire scene of the surrounding area appears to be natural, if not virgin, woodland. We were also unable to find testimony indicating otherwise. Appellant’s proofs never belied the rural character of the road and thus, as a matter of law, failed to impose liability under the applicable rural rule.

Were we to extend the urban inspection responsibility to suburban forests, we would be in effect “legislating” a policy-concept. Beyond that, landowners would face nebulous potential liability dependent rather upon the acts of others in developing homesites than upon their own actions. With the easy accessibility to open country provided by modern ways of transportation an owner would be hard put to know what duties were imposed upon him by that ownership.

Montgomery County

Since the evidence was insufficient to imply that the landowner had actual knowledge, or to charge him with constructive knowledge, nothing can be added peculiarly applicable to the County. The factual proofs fail in that regard as well to this appellee as they did to the other.

Appellant relies most heavily upon Washington County v. Gaylor, supra, 140 Md. 375, which also arose from a tree limb-automobile accident. That case, however, was so sparse on facts and law as to provide us little guidance. It is clear, however, that the submission to a jury was based upon implied, actual notice as opposed to constructive notice.

“Where a large branch or limb of an old tree, bearing such marks or evidence of decay and extending over a public highway in such a position as to render travel thereon dangerous, is allowed to remain in that position a long time, the court would not be justified in instructing the jury that there was evidence of negligence on the part of those specially charged with the duty of keeping the highway ‘safe for the travel of the public.’ ” Id. at 378.

Unfortunately the question of constructive notice by way of duty to inspect was not an issue. We cannot conceive, however, that the Court of Appeals intended to direct that every such case leave to a jury the question of the government’s duty to inspect and ascertain defects occasioned by natural causes without regard to the use of the road or population pressures of the countryside. Such a duty would be far too great a burden on the taxpayer when balanced against the purpose to be served. There are still some natural dangers from which we cannot rely upon the government for protection.

Judgments affirmed.

Costs to be paid by appellant.

Davidson, J,

dissenting:

I concur in the result reached by the majority with respect to the appellee, Olga Mary Mazza. I dissent from that portion of the majority opinion which affirms the trial court’s order of a directed verdict in favor of Montgomery County.

In Washington County v. Gaylor, 140 Md. 375, 117 A. 864 (1922), the Court of Appeals recognized that a county is charged with the duty of keeping the county’s public roads safe for the travel of the public. It held that it was for the jury to determine whether an accident which occurred when a tree fell upon an automobile traveling along a public road was caused by the defective condition of the tree and, if so, whether the county knew, or by the exercise of reasonable care could have known, of such a dangerous condition in time to have prevented the accident.

In Gaylor the record showed that the accident occurred on a public road somewhere in Washington County on 7 August 1920, a day when there was no storm and only a moderate wind. There was also evidence to show that the tree in question was an old tree which stood 15 to 26 feet from the center of the highway; that one of its limbs was 60 to 70 feet high and extended across the highway; that at various places on the tree there was evidence of decay; that there were large cracks in the trunk; and that that condition of the tree had existed for “some time” before the accident.

Here, viewing the evidence in the light most favorable to the appellant, the record shows that the accident occurred on 2 August 1971 on Brickyard Road, a public road located in what, until 1967, had been a rural neighborhood in Montgomery County. At the time of the accident the county knew that 125 single-family homes had been constructed in the area, whose occupants necessarily used Brickyard Road for vehicular ingress and egress. In addition, approximately 75 employees, working on the construction of new houses in the vicinity, also, of necessity, traveled that road to and from work. The accident occurred on a clear, sunny day when no wind was blowing.

There was further evidence to show that the tree which fell and caused the accident stood on privately owned property about 10 to 13 feet from the edge of Brickyard Road; that the tree was approximately 100 feet tall but that none of its limbs extended across the highway; that notwithstanding the fact that it was then August there were no leaves on the tree; that most of the bark on the tree was gone; that the tree had been dead for a “long time” and had been observed to have been dead at least a year before the accident; that at the time of the accident there was a “break” in the top of the tree; and that at that time there was another piece of the dead tree suspended in the limbs of a green tree nearby. A large number of photographs depicting the condition of the tree at the time of the accident were entered into evidence.

In my view this evidence, while not as strong as that offered in Gay hr, was nonetheless sufficient to support a rational inference that the county, by the exercise of reasonable care, could have known, in time to have prevented the accident, that the tree which fell was in a dangerous condition. Thus, there was enough evidence to take to the jury the question of whether the county was negligent in failing to keep Brickyard Road safe for the traveling public.

I agree with the majority that the Court of Appeals did not, in Gaylor, intend to “direct that every such case leave to a jury the question of the government’s duty to inspect and ascertain defects occasioned by natural causes without regard to the use of the road or population pressures of the countryside.” The standard of care required of the county in keeping county roads in a safe condition was thoroughly explained in Staubitz, supra, at 231 Md. 315, 190 A. 2d 82. There the Court of Appeals said:

“The standard of care required of county commissioners is to use reasonable care and diligence to keep the county roads in a safe condition. They are not insurers against accidents on the roads. Although the standard of reasonable care remains constant, what is reasonable care in a given situation varies with the conditions present on such road or highway. Reasonable care on a busy, often-traveled highway requires greater diligence on the part of the county commissioners than that required on a relatively little traveled road.” (Citations omitted.)

I am suggesting that here there was evidence to show that, at the time of the accident here involved, in excess of 200 persons per day used the allegedly “rural” Brickyard Road, and that the county was aware of the fact that the use of that road had increased substantially between 1967 and the date of the accident. Reasonable men could conclude from that evidence that the county had an obligation to inspect and was negligent in failing so to do. In short, the question of whether, under these circumstances, the county failed to use reasonable care and diligence to keep the county roads in a safe condition, was one for the jury. Accordingly, I would reverse the order which directed a verdict in favor of Montgomery County and would remand the case for a new trial.

      . Other authority considers the duty to inspect the “rule” and the relief afforded rural owners the exception.

       “The road upon which appellant was traveling was not a major thoroughfare, and the surrounding countryside was sparsely populated. Consequently, the chance of mishap was lower at the scene of the accident than it was in other and busier areas.” O’Brien, supra, at 697.

      . In Albin, supra, at 491, the “road though remote, was used extensively by hunters. . .. There is a marked distinction between the duty, with reference to trees, that may be imposed upon owners of land adjacent to city streets or heavily traveled highways and those imposed on owners of forest land adjacent to little-used roads.”

      . Compare, Albin v. National Bank of Commerce of Seattle, 375 P. 2d 487 where the natural condition of the forest had been altered by a logging operation and allegedly “increased the hazard,” which could give rise to implied notice. The Court recited with approval an instruction that there was no duty to inspect so long as the forest remained in its natural condition. It was submitted to the jury on the question of actual knowledge implied from the logging operation. We are in accord in Maryland where the sale of standing timber does not relieve the landowner from responsibility for the natural consequence anticipated from its being felled. Ver-Vac Bottling Co. v. Hinson, supra, 147 Md. 267.

      . Knowledge of this ongoing development can be imputed to the county because it issues building permits prior to construction. Montgomery County Code (1972) §§ 8-206, 8-214, 8-215.

      . Here the record shows that the tree was on private property, while in Gaylor, supra, the location of the tree is unclear. Courts in other states have recognized that the public authority responsible for maintaining roads has the obligation and authority to abate conditions threatening danger to motorists, even where the peril, and in particular, an offending tree, is located on private property. See e.g., Barron v. City of Natchez, 90 So. 2d 673, 676-77 (Miss. 1956); Fitzgerald v. State, 96 N.Y.S.2d 452, 455 (Ct. Cl. 1950); Brown v. State, 58 N.Y.S.2d 691, 692-93 (Ct. Cl. 1945), aff'd 66 N.Y.S.2d 922 (App. Div. 1946); Messinger v. State, 51 N.Y.S.2d 506, 507 (Ct. Cl. 1944); Inabinett v. State Highway Dept., 12 S.E.2d 848, 851 (S.C. 1941).
      Here the record shows that the branches of the tree did not extend across the highway. The fact that neither a tree nor any of its limbs are within or over the roadway is not necessarily a prerequisite to a finding of the governing body’s responsibility. Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56, 59-60 (1934). See Brown, supra; Messinger, supra. It has been recognized in Maryland that the county’s obligation to keep its roads safe for public travel includes the duty of protecting travelers not only against dangerous conditions located in the roadway itself but also against dangerous conditions located in close proximity to the boundaries of the roadway. County Commissioners of Carroll County v. Staubitz, 231 Md. 309, 314, 190 A. 2d 79, 82 (1963); see Birckhead v. City of Baltimore, 174 Md. 32, 36-37, 197 A. 615, 618 (1938).
      Here the evidence shows that the tree was dead, whereas in Gaylor, supra, there was evidence that the tree had decayed. Direct evidence of decay need not be presented. See Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3d Cir. 1932).


author: Orth, C. J.,

text:
    RONALD ASHTON ERBE v. STATE OF MARYLAND
    [No. 644,
    September Term, 1974.]

      Decided March 20, 1975.

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

      Kenneth A. Reich, with whom were Robert M. Bell and Piper & Mar bury on the brief, for appellant.

      Bernard, A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Peter Semel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF CASE

RONALD ASHTON ERBE, born 23 November 1947, was arrested, apparently on 26 September 1968, for breaking the dwelling of Bruce Reed on 15 August 1968 in the daytime with intent to steal personal property. On 30 September, after a preliminary hearing in the Municipal Court of Baltimore City, he was bound over for action by the Grand Jury, and committed to jail in default of $1000 bail. On 2 October he posted the required bail through an insurance company and was released. He and one Owen R. Peyton were presented on 9 October and indictment 6251Y, charging them jointly with the breaking and related offenses, was filed on 21 October in the Criminal Court of Baltimore. He was arraigned on 31 October in that court, and tried on 25 June 1969. He was convicted at a bench trial of breaking the dwelling with intent to steal (1st count) and grand larceny (3rd count). On 1 July 1974 concurrent sentences of 3 years were imposed under each count. The execution of the sentences was suspended, and he was placed on probation in the care of the Maryland Division of Parole and Probation for 3 years from 1 July 1974, restitution to be made and court costs to be paid through the Probation Department. He noted an appeal on 9 July 1974.

THE FACTS

The posture of the appeal is such that the only facts which are material concern the delay which occurred between the guilt stage and the penalty stage of the proceedings. A transcript of the guilt stage of the proceedings is not included in the record submitted to us. The docket entry under date of 25 June 1969 reads: “Release c/o Attorney Stanley S. Cohen pending Disposition.” The next entry is under date of 5 March 1973: “Failed to appear for Disposition. Bench Warrant (Pink) issued.” An entry on 19 December 1973 states: “Bench Warrant (Pink) returned. Cepi in Jail.” On 16 January 1974 the appearance of Kenneth A. Reich, Esq. and Robert M. Bell, Esq. was entered for Erbe. They moved to dismiss the indictment. There is a transcript of proceedings had on that date. According to the court the motion was made in chambers that morning and sought “dismissal of the sentencing by reason of delay in same.” It seemed to the court “that it is necessary that [it] take some testimony in that regard. . . .” The court thought it ought to hear from Mr. Cohen, on the record, “as to just what he did, if anything, to get in touch with his client, who had been released in his custody on June 25, 1969.” Mr. Cohen testified and was asked to describe the contact he had with Erbe from the date of conviction to early March 1973. He said he had no contact with his client. He had copies of two letters sent Erbe but that did not mean that only two letters were sent. The Erbe file had been closed and stored in the basement of the attorney’s office building. “And I would not have, in January, February, or March of 1973, have pulled the file in order to have sent a letter.” The attorney made no telephone calls to Erbe because he was “never able to get a phone number for Mr. Erbe. I was unsuccessful in all my attempts to contact him.” Although he had some brief contact with Erbe’s father prior to trial, he did not attempt to contact the father in March 1973 because “he was informed prior to the time of trial, by the attorney who originally referred the case to me through his parents, that his parents were no longer going to be responsible for representation and I attempted to strike my appearance.” The attorney had an address which Erbe had given him. “I assume it was a good address, although as I said before, I never received any letters back saying that he had moved or that there was a change of address. And I assumed that when I sent the leters, that he received them.” The address was 212 South Gilmore Street, Baltimore, Maryland 21223.

It was stipulated that Erbe was living at 212 South Gilmore Street in 1969 at the time of his convictions. He moved from that address to several other addresses in Baltimore City, but left forwarding addresses with the Post Office for each address. The stipulation, in the words of Mr. Reich, continued: “The next address he lived at, after Gilmore, I believe was Arlington Avenue; that was with his mother. Then he went to an address on Sorrell, S-o-r-r-e-1, I believe. I’m not sure of the spelling, Sorrel Road; where he lived with his father. He then went to a Ravenwood Avenue address, a Smallwood address, a McHenry Street address, and finally an address on Relcrest Road. . . where he did ... leave a forwarding address.”

In denying the motion, the court explained how the failure to sentence Erbe had come to light:

“The matter would have rested forever in the indefinite stage of having the defendant released in the custody or his attorney, except that on inquiry by the staff of this Court back in January, 1973, it was discovered that the case had not been closed.
The Criminal Assignment Office and the State’s Attorney’s Office were contacted as to why the matter had not been set down for disposition. The State’s Attorney’s Office and the Criminal Assignment Office each stated, in effect, that it was not the responsibility of their office to set the case in for disposition or scheduling for further hearings.
Accordingly, this Court initiated the matter and had a summons sent to the defendant at 212 South Gilmore Street. The case was set in for March 5, 1973. The summons, according to the sheriffs return, had been served at 212 South Gilmore Street.
Mr. Cohen appeared at that hearing on March 5, 1973, and stated substantially what he has stated on the stand today; that he tried to communicate with the defendant, but did not know where he was, and had not heard from him in all that time.
Accordingly, a warrant was issued, and as a result, in late December of 1973, the defendant was placed in custody.”

How Erbe was apprehended appeared from the testimony of Herbert S. Wilcox, Operations Director of Baltimore Goodwill Industries, testifying in behalf of Erbe in mitigation of punishment. Erbe was employed by Goodwill as a truck driver from about the middle of January 1973 to the sixth of February 1973. He left to take a job elsewhere at higher pay — “we encourage our employees to seek better jobs when they’re ready.” About a week before Christmas of 1973 he re-applied for his former job and was personally interviewed by Wilcox. “Part of our normal hiring process with a truck driver is that we must get a D.M.V. record and also police clearance. . . So we gave him the form for police clearance, and asked him to get those accomplished and return the next day.” He did not return. Wilcox found out later that “there was an outstanding charge against him.” The court noted that in the light of Wilcox’s testimony, it was on inquiry of Erbe concerning his record at the Police Department that he was placed in custody.

The court requested a pre-sentence investigation. Pending receipt of the report, Erbe was released in the custody of his attorney, Mr. Reich. The report of the investigation was filed on 15 February 1974. Sentence was imposed on 1 July.

ISSUES FOR DECISION

Erbe argues that the delay between conviction and sentence violated his constitutional rights to a speedy trial and his legal right to be sentenced without unreasonable delay bestowed upon him by Rule 761 a.

Speedy Trial

Under the Sixth Amendment to the Constitution of the United States, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” Under Article 21 of the Maryland Declaration of Rights, “in all criminal prosecutions, every man hath a right... to a speedy trial by an impartial jury. . ..” The “speedy trial” right under the Maryland Constitution' is “coterminous with its Federal counterpart” and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21. State v. Lawless, 13 Md. App. 220, 225.

It is correct, as we said in Sands v. State, 9 Md. App. 71, 79, quoting 5 Wharton’s Criminal Law and Procedure (1957) § 2176, p. 370, that “A criminal case is not complete and the case is not disposed of until sentence has been pronounced.” But it does not necessarily follow, as Erbe would have it, that the constitutional guarantee of a speedy trial applies to the penalty stage of the trial. We pointed out in Sands, at 79: “Although ‘conviction’ and ‘sentence’ are commonly used synonymously, they are legally distinct. Conviction is the determination of guilt of an accused; sentence is the judgment entered thereon.”

Whether the penalty stage of the trial is encompassed within the speedy trial guarantee does not seem to have been presented to the Maryland appellate courts before. Nor has the Supreme Court of the United States definitely answered the question. In Pollard v. United States, 352 U. S. 354, the Court, assuming arguendo that sentencing was part of the trial, found no violation of the Sixth Amendment because in the circumstances there the delay was not “purposeful or oppressive” and because the sentencing error was promptly remedied when discovered. At 361. See Brady v. Superintendent, 443 F. 2d 1307 (4th Cir. 1971).

There are cases in other jurisdictions which conclude that the speedy trial guarantee attaches to the sentencing process. Commonwealth v. Ashe, 368 Pa. 211, 82 A. 2d 244 (1951); People v. Brown, 260 Cal.App.2d 745, 67 Cal. Rptr. 288 (1968); Juarez-Casares v. United States, 496 F. 2d 190 (5th Cir. 1974), so hold. See United States v. Sherwood, 435 F. 2d 867 (10th Cir. 1970). We do not, however, find them persuasive. Of them, only Brown makes any attempt to explain the reasoning behind the conclusion. And in Brown, the California court simply quoted from another case that the guarantee of a speedy trial protects the accused against prolonged imprisonment. None of the cases refers to any direct support for its conclusion. Ashe cites no support whatsoever; Brown cites analogous support; Juarez cites only Pollard and several federal cases subsequent to that decision which simply assumed that speedy trial rights applied to the sentencing situation. See Brooks v. United States, 423 F. 2d 1149, 1151 (8th Cir. 1970). Finally, the statements in Ashe and Brown have been seriously eroded by subsequent decisions. See Commonwealth v. Giovengo, 188 Pa. Super. 220, 146 A. 2d 629 (1958); Commonwealth v. Stewart, 221 Pa. Super. 1, 289 A. 2d 126 (1972); People v. Taylor, 14 Cal.App.3d, 328, 92 Cal. Rptr. 198 (1971); People v. Valdespino, 15 Cal.App.3d, 207, 93 Cal. Rptr. 142 (1971). In Stewart, 289 A. 2d at 128, the Pennsylvania court found that “[n]o express authority therefore exists for the conclusion that the federal constitutional right to a speedy trial incorporates the right to be sentenced on a timely basis.” The court decided the case on due process grounds although it did note that many of the same speedy trial considerations expressed in Smith v. Hooey, 393 U. S. 374 and Klopfer v. North Carolina, 386 U. S. 213 were present in its case. 289 A. 2d at 129. In Valdespino, the California court was faced with a situation where imposition of sentence was suspended and the defendant was placed on probation for two years. Ten months later he violated his probation. A hearing on his probation violation was not held until more than 2 years after his guilty verdict. His probation was extended for another year. He claimed that his right to a speedy trial had been violated because his original trial was not completed until he was sentenced for his probation violation. The court rejected this contention. It distinguished Brown where there had been neither sentence nor grant of probation and thus no judgment or final appealable order. It found that the “trial” did not continue beyond the entry of a judgment or other final, appealable order — the grant of probation. The court, however, did not stop there. It noted that “[ojrdinarily the trial ends with the verdict or other decision of the trier of fact.” It listed four considerations which the speedy trial right was designed to protect and found them inapposite with regard to the post conviction situation, 93 Cal. Rptr. at 114-145:

“We note also that section 1381 is a legislative implementation of the constitutional right of one charged with crime to a speedy trial. As pointed out in Barker v. Municipal Court, 64 Cal. 2d 806, 812-813, 51 Cal. Rptr. 921, 415 P.2d 809, the purpose of the Constitution and of section 1381 is: (1) to protect the accused against prolonged imprisonment, (2) to relieve him of the anxiety and public suspicion attending an unresolved criminal charge, (3) to prevent his exposure to the hazards of a trial after a great lapse of time, with witnesses unavailable or their memories dulled, and (4) to avoid the possibility of concurrent sentences being denied him.
These considerations seem wholly inapplicable to Valdespino. His guilt on the earlier Santa Clara County charge has been conclusively determined. The anxiety and public suspicion attending an unresolved criminal charge and a lapse of time with attending problems of missing or forgetful witnesses could not concern him. Nor could he be prejudiced by the possibility of prolonged imprisonment or denial of the possibility of concurrent sentences.”

Brooks v. United States, supra, and Alford v. State, 294 N.E.2d 168 (Ind. 1973), make an attempt to analyze the applicability of speedy trial considerations to the period between conviction and sentencing. Both indicate non-applicability. In Brooks, at 1152-1153, the 8th Circuit noted that “the sensitive concerns which surround the necessity of a speedy trial on the merits of a case generally are not applicable when the delay is between conviction and sentencing. There exists here no concern ovei ‘oppressive incarceration’ before trial, ‘anxiety’ over public accusation before trial, or any ‘impairment’ over petitioner’s ability to defend himself.” In Alford, the defendant contended that certain Indiana Rules of Criminal Procedure and the cases relating to speedy trial were applicable to sentencing. The court, after discussing the reasons for necessity for a speedy trial, rejected this contention, 294 N.E.2d at 170-171: “Once the defendant had pled guilty and is convicted of the offense, the possibility of lost evidence or fading memories of witnesses is no longer a factor. Although Alford had not been sentenced, his right to file a motion to withdraw his guilty plea or to file a petition for post conviction relief under P. C. 1 of the Indiana Rules of Procedure were in no way impaired.”

We call attention to another line of cases in which state courts have voided sentences imposed after a substantial delay, not on speedy trial grounds, but apparently under due process principles, on the basis that the sentencing court lost its jurisdiction because of an unreasonable delay. See People v. Ruddell, 46 Ill. 2d 248, 263 N.E.2d 48 (1970); People v. Fay, 10 N.Y.2d 374, 179 N.E.2d 483, 223 N.Y.S.2d 468 (1961) and cases cited therein. In Fay, the defendant had pleaded guilty in January of 1953 but had not been sentenced until November of 1959. The question before the court, undecided in New York at that time, was “Does an inordinately long and unexplained delay in imposing a criminal sentence cause the trial court to lose jurisdiction so that a sentence thereafter imposed is void and the defendant is entitled to habeas corpus relief?” 223 N.Y.S.2d at 469. The court listed a group of cases which answer the question affirmatively, id. at 470:

“The general rule of those cases is expressed thus in People v. Penn, 302 Ill. 488, 494, 135 N.E. 92, 95: ‘The effective administration of criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely in such case. It is the duty of the court to pronounce judgment promptly at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment or for other cause, the case is continued for further adjudication, and the defendant, by recognizance or being held in custody is still required to answer the charge. If sentence is indefinitely suspended, the court loses jurisdiction, and a judgment subsequently entered is void.’ ”

The court noted that the Illinois Rule was not universal, id.:

“An important holding to the contrary is the United States Supreme Court’s in Miller v. Aderhold, 288 U. S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702 where it said that, while indefinite or overlengthy postponement is unlawful, it gives the defendant no rights at least unless he has moved for timely sentencing, since his failure so to move is a consent or waiver. But the Miller holding is not binding on us and seems at war with concepts prevalent in this State especially since our State nowhere imposed on a defendant any duty to demand sentence and the question of retention or loss of jurisdiction should not depend on activity or nonactivity of defendant. Furthermore, a waiver is an intentional relinquishment of a known right and there is no proof here of any such intention of this relator.”

The court rejected Miller and accepted the rationale of the Illinois Rule, id. at 471-472:

“This State has a strong policy against unreasonable delays in criminal causes and it has been enforced to the full (see People v. Wilson, 8 N.Y.2d 391, 208 N.Y.S.2d 963, 171 N.E.2d 310). No reason appears why it should not be enforced here. Sentencing is the entry of judgment in a criminal cause. It is a part of the judicial process and, as explained in the above-cited cases from other jurisdictions, it is in the absence of compelling reasons inconsistent and disorderly to defer that part of the process. We need not stop to inquire what factors justify long delays in sentencing because we find here nothing that the law would accept as a reason. Not only orderly administration of the courts and the public interest therein demand prompt disposition of these matters but a convicted defendant also has an enforcible interest in having judgment pronounced. Until such pronouncement he cannot be eligible for pardon or commutation of sentence, and deferment of imprisonment puts off the time when he can serve his term and return to society or can be eligible for parole. In this case the sentence if promptly announced in 1953 could not have sent relator to prison since he was but 17 years old. Lack of a judgment prevents an appeal. For all these reasons we think the better rule is that a long and unnecessary failure to sentence is not only an error but results in lack of jurisdiction. If sentencing can be delayed 6 years without failure of jurisdiction, it can be delayed forever.”

A number of other courts have followed Miller and answered the question posed in Fay negatively. See State v. Sorrows, 63 N. M. 277, 317 P. 2d 324 (1951). In Fitzherbert v. State, 229 A. 2d 697, 700 (Me. 1967), the Maine court said that the position as to loss of jurisdiction espoused by Fay is the minority rule.

In Barker v. Wingo, supra, at 532, the Supreme Court listed the interests of the defendant which the speedy trial right was designed to protect:

“This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

It is manifest that an accused’s defense cannot be impaired once he has been convicted. So the most serious interest to be protected is not susceptible to protection at that point. Of course, no appeal would lie until final judgment, attained upon the imposition of sentence. It is conceivable that delay in the right to appeal could result in prejudice to the defense in the event a new trial was awarded. See Fay, supra, and Brown, supra. But that is mere speculation. Such a claim is to be advanced if and when the speculation ripens into reality. Patently, after conviction reached without violating speedy trial precepts, “oppressive pre-trial incarceration” is not a factor, nor is the interest to “minimize anxiety and concern of the accused.” “Accused” within the contemplation of the speedy trial right has been narrowly construed by the Supreme Court in United States v. Marion, 404 U. S. 307, which held that the right did not attach until a person has been “accused” either by arrest or proper charge. The Court found that “[o]n its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” Id. at 313. The speedy trial guarantee runs to a criminal defendant and the guarantee is that the prosecuting authorities will move with dispatch to insure an early and proper disposition of the charges against him. State v. Hamilton, 14 Md. App. 582, 287 A. 2d 791. Therefore, the guarantee only applies during that period of time when the prosecuting authorities are actually prosecuting the defendant. Once the “accused” is found guilty he becomes the “convicted”. He is no longer an “accused” because the charges have been resolved against him. The role of the prosecuting authorities is to all intent terminated once the guilty verdict has been rendered. It then becomes the responsibility of the trial court to sentence the convicted criminal. His prosecution is complete — all that remains is to determine punishment for his wrongdoing.

In addition, when the Barker court talked in terms of anxiety and concern of the accused, it was referring to a presumptively innocent defendant who must exist under a cloud of suspicion and uncertainty. See Klopfer v. State of North Carolina, supra, at 222. But when the defendant is found guilty his presumption of innocence dissipates. While he awaits sentencing he may still be under a cloud, but it is not a cloud of “public accusation”, Klopfer, supra, but a cloud of public guilt generated by the finding beyond a reasonable doubt that he did commit the wrongs alleged. See Valdespino, supra. The major concerns of the speedy trial guarantee either do not apply after conviction or are of only speculative moment. Any real prejudice suffered by an individual as a result of an unreasonable delay in sentencing may be remedied under due process principles.

We hold that the constitutional right to a speedy trial does not apply to the penalty stage of the proceedings and that delay in the imposition of sentence is to be tested by due process standards.

In denying the motion to dismiss the case, the court said:

“When a defendant is released in the custody of his attorney, I think that resolves into certain responsibilities both as to the attorney and as to the defendant.
The evidence here, by stipulation, is that the defendant made at least four or five changes of address without notifying his counsel.
Mr. Cohen testified that he did not know the address of his client after attempting to communicate with him at the only address he knew, 212 South Gilmore Street.”

We see no violation of due process of law in the unique circumstances here existent. The delay in sentencing was due to administrative misadventure; it was not purposeful or oppressive. There was patently no deliberate attempt to hamper Erbe. Rather, there was inadvertent inaction. The fault was accidental in conception, venial in effect, and remedied as promptly as possible when known. The key is that had Erbe felt at any time truly aggrieved by the failure to impose sentence, he need only have so indicated to his counsel, to the State or to the court. He at all times knew that he had been convicted (on appeal he does not challenge the propriety of his conviction), that he had been released in the custody of his lawyer, and that he was awaiting sentence. It was not until it came to the attention of the court that sentence had not been imposed, and Erbe was apprehended by a quirk of fate after failing to appear in answer to a served summons, that he became dissatisfied with his status. Not only did he maintain silence, but he failed to keep in touch with his attorney and did not inform him or the court of his many changes of address. It is manifest that, until taken into custody, he was perfectly content to enjoy the status quo.

At the hearing on the motion to dismiss, Erbe produced no evidence of actual prejudice. He did not himself testify on the issue, although he may well have been a compellable witness. He now argues that he suffered “actual prejudice” in three respects: (1) five years spent under the threat of punishment; (2) the postponing of punishment, which if timely imposed, “would probably have been completed by now”; (3) the one month he spent in jail after he was arrested on the bench warrant for his failure to appear for sentencing in March 1973. None of these points was raised below. Rule 1085. In any event, he could have been sentenced either in 1969 or 1973 to a total of 25 years. Code, Art. 27, § § 30 (b) and 340. It seems that the delay, rather than enhancing punishment, may well have lessened it. And the issuance of the bench warrant and his subsequent incarceration were directly attributable to his failure to appear or inform the proper persons of his whereabouts.

We hold that the court below did not err in denying the motion to dismiss on the ground of a denial of due process of law.

Maryland Rule 761 a

Rule 761 a provides, inter alia: “Sentence shall be imposed without unreasonable delay.” Erbe contends that his sentencing on 1 July 1974 was a violation of the Rule. Therefore, he argues, this Court should “vacate the conviction and sentence and dismiss the indictment.” Even if the sentence was imposed after an unreasonable delay, Erbe is not entitled to the relief he seeks because he has failed to show that he was prejudiced by the delay.

The Rule provides no sanction for a violation of its requirement that sentencing be imposed without unreasonable delay. Thus, in the absence of a violation of constitutional rights, the imposition of sentence will not be precluded even where there has been unreasonable delay. The pertinent language of Rule 761 a is identical to Rule 32 (a) (1) of the Federal Rules of Criminal Procedure. As is the case in other states, the Maryland Rule was obviously patterned on the federal Rule. See Fitzherbert, supra. Cf. Dyson v. State, 6 Md. App. 453, 458. The federal courts have refused to void a sentence imposed after an unreasonable delay unless the delay was “purposeful or oppressive”, Welsh v. United States, 348 F. 2d 885, 886-87 (6th Cir. 1965), or the defendant suffered “meaningful loss or injury to his rights.” United States v. James, 459 F. 2d 443, 444 (5th Cir. 1972), cert. denied 409 U. S. 872. In Juarez, supra, at 192, the Court said that “[i]f there has been an unreasonable delay, and if that delay results in prejudice to the defendant, then a violation [,of the Sixth Amendment and Rule 32] has occurred.” (emphasis added) In Application of Leibowitz, 43 N.J. Super. 579, 129 A. 2d 466, 469 (1957), the Court held that the rule providing that sentence be imposed “without unreasonable delay” was directory and not mandatory.

We hold that the court below did not err in denying the motion to dismiss on the ground of a violation of Rule 761 a.

Judgments affirmed; appellant to pay costs.

      . Stanley S. Cohen, Esq. appeared at the arraignment on behalf of Erbe. Mr. Cohen told the court: “He informs me that next week he will pay me and at that time I will enter my appearance.” The plea was not guilty. Election of a jury trial or court trial was reserved. Mr. Cohen was appointed by the court on 25 June 1969 to represent Erbe and counsel’s appearance was entered on that date.

      . On 25 June 1969 a stet was entered to the indictment as to Peyton. The stet was moved by the State “because of conviction in companion case” and ordered by the court for that reason. See Maryland Rule 718.

      . The docket entry on 16 January 1974 reads: “As to Erbe, Case Resumed: Oral Motion to dismiss Indictment heard and denied.” At the hearing, however, the judge said in open court that he had “perused the motion which was handed me in chambers this morning when all counsel were present.” No written motion to dismiss is included in the record submitted to us.

      . Apparently this is the reason why Mr. Cohen was appointed by the court to represent Erbe. See footnote 1, supra.

      . It appears from the record that disposition was first set for 15 March 1974. _ According to the docket entry on that date it was “Removed by Criminal Assignment Office.” The reason for the removal is not disclosed.

      . Section 1381 of the California Penal Code makes it mandatory upon the prosecutor to bring a defendant to trial within 90 days after he received notice from the defendant who has been incarcerated for conviction on another offense.

      . We note the parallels between the New York court’s reasoning with regard to waiver and the Supreme Court’s rationale for rejecting the “demand-waiver rule” in Barker v. Wingo, 407 U. S. 514. New York was one of the few states which had rejected the demand waiver rule prior to Barker.

      . Defense counsel conceded that there was “a dual responsibility; that of the attorney and of the defendant to keep in touch with each other.” He argued, however, that the attorney did not recall “even telling Mr. Erbe what his responsibilities were; what he was supposed to do; when he might be sentenced or anything. There was just simply no contact here at all — hardly an attorney-client relationship at all.”

      . Even if the right to a speedy trial applied to the penalty stage of the proceeding, upon consideration of waiver and, if not waived, of the four factors involved — the length of the delay, the reason for the delay, prejudice, and assertion of the right, — we would have no difficulty in finding that Erbe was not entitled to the relief prayed. See State v. Becker, 24 Md. App. 549; Johnson v. State, 305 A. 2d 622 (Del. 1973).

      . In Stevenson v. State, 4 Md. App. 1, the accused argued that his prosecution was precluded by a violation of Rule 719, which provides that the accused shall be furnished a copy of the indictment “within a reasonable time.” This Court rejected that argument, finding no violation of constitutional rights under the circumstances of the case. At 17-18.