Robinson v. Warden

258 A.2d 771, 8 Md. App. 111, 1969 Md. App. LEXIS 260

• Court: Court of Special Appeals of Maryland
• Decided: November 17, 1969
• Docket: 75, September Term, 1969
• Status: Published

Opinions

Anderson, J.,

delivered the majority opinion of the Court. Orth, J., concurs. Concurring opinion by Orth, J., at page 113 infra. Memorandum opinion of lower courtat page 116 infra.

This is an application for leave to appeal from an order of Judge Shirley B. Jones, presiding in the Criminal Court of Baltimore, passed June 3, 1969, denying relief sought under the Uniform Post Conviction Procedure Act. Applicant, Cecil Harold Robinson, was tried and convicted of robbery with a deadly weapon and assault with intent to murder, and on each indictment was sentenced to ten years, the sentences to run concurrently. Applicant’s conviction and judgment were affirmed by this Court in Robinson v. State, an unreported opinion filed May 2, 1968. On July 26, 1967, applicant filed an application for review of sentence under Md. Code, Art. 26, §§ 132-8. The review panel met on June 27, 1968, and, over objection, refused to allow the withdrawal of applicant’s petition for review and subsequently increased the sentence for assault with intent to murder from ten years to fifteen years and allowed the ten year sentence for robbery with a deadly weapon to stand. The sentences were to run concurrently and applicant was to be credited with time already served.

Applicant’s petition raises two contentions: First, that the action' of the review panel in increasing his sentence violated his constitutional rights. Second, that the refusal of the review panel to honor his request to withdraw his application for review of sentence constituted a denial of his constitutional rights. The application as to both contentions is hereby denied for the reasons stated in the able opinion of Judge Shirley B. Jones, published herewith.

Subsequent to Judge Jones’ opinion, on June 23, 1969, the Supreme Court of the United States decided the case of North Carolina v. Pearce, 89 S. Ct. 2072 (1969), which held that when a defendant is granted a new trial because of errors at his first trial, the sentence imposed at the new trial may not exceed that imposed at the first trial except in certain circumstances not pertinent here. We have held that North Carolina v. Pearce, supra, does not apply retroactively, see Wayne v. State, 8 Md. App. 5 (1969), and thus has no effect on this application. Moreover, North Carolina v. Pearce, supra, applies only to new trials.

Article 26, §§ 132-8 has not been held unconstitutional and all presumptions favor the constitutionality of a duly enacted statute. The statute will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Prevatte v. Director, 5 Md. App. 406, 248 A. 2d 170. We find that the action taken by the review panel in applicant’s case was authorized by the statute, and the applicant was, or should have been, aware of an increase in sentence. Thus the action being within the scope of the statute, and the statute being constitutional, the application must be denied.

Application denied.