Wayne v. State

257 A.2d 455, 8 Md. App. 5, 1969 Md. App. LEXIS 246

• Court: Court of Special Appeals of Maryland
• Decided: October 15, 1969
• Docket: 436, September Term, 1968
• Status: Published

Opinions

Thompson, J.,

delivered the' majority opinion of the Court. Orth, J., dissents. Dissenting opinion by Orth, J., at page 8 infra. . ., ,

■ Ronald Wayne, a/k/a Ronald Elmer Thomas, thé appellant, originally pleaded guilty to grand larceny before Judge Edward D. E. Rollins, who sentenced him. to a term of five years. This conviction was reversed by this Court because the plea- of guilty was conditional : and should not have been accepted by the court. Wayne v. State, 4 Md. App. 424, 243 A. 2d 19. Upon remand, Wayne was convicted by a jury, Judge' H. Kenneth Mackb'y presiding, who imposed,, an .indeterminate sentence, not to exceed six years. . .',

• Wayne complains: (1) The longer sentence at his second trial was a violation of his federal constitutional right to due process of law.' (2) The evidence .was; insufficient to convict. (3)'- The arrest and search were illegal. (4) Trial counsel was incompetent.

On September 25, 1967, three men entered a jewelry store in Elkton, Maryland. While the store clerk showed some birthstone rings to-, one of the men, she observed the other two go to another showcase and remove seven boxes containing a total of 14 diamond rings.. When the clerk challenged them, they denied taking the' rings. The men left the store,' but the clerk watched them5 go' into an alley across the street where they werb also observed by a woman in one of the offices that overlooked the,alley. The woman and the clerk identified Wayne as one of the three men. ,'. : ;' " :

In the meantime, the police were called and told of the theft and the direction taken by the thieves. "Officer Hewes of the Elkton Police Department, responding to the call, went to the alley where he apprehended the three men. Hewes took all three back to the jewelry store, advised them of their rights, and searched them but found nothing. The officer later found the rings in the alley.

Wayne’s first contention that it was constitutionally improper to sentence him to a longer term of imprisonment at a second trial after his first-conviction had been reversed, would seem to be sustained by North Carolina v. Pearce, 395 U.S. 711, 89 Sup.Ct. 2072, 23 L.Ed.2d 656 (1969) which held there was a denial of due process when a trial judge at a second trial gave a longer sentence unless such longer sentence was based on factors which arose subsequent to the first trial. The court held further such factors must appear affirmatively as part of the record so that constitutional legitimacy of the increased sentence can be fully reviewed on appeal. There is nothing in the present record to indicate the second sentence was based on subsequent conduct; on the contrary, the trial judge stated he was imposing the same sentence he would have imposed had he been the original trial judge.

The crucial issue in this contention is whether the holding of Pearce should be applied retroactively to include Wayne and others similarly situated. It is noted that the retroactivity of Pearce has not been decided by the Supreme Court, although the point has been scheduled for argument. See Moon v. Maryland, 395 U.S. 975, 89 Sup. Ct. 2135, 23 L.Ed.2d 764 (1969). In view of the absence of a decision by the Supreme Court and in view of the settled Maryland law prior to Pearce that an increased sentence on retrial was within the discretion of the second trial judge, Moon v. State, 250 Md. 468, 243 A. 2d 564, we will reject the contention and hold Pearce not to be retroactive. We point out, however, Wayne’s right to petition for post conviction relief under Maryland Code, Article 27, Section 645A (d) in the event that the Supreme Court should in the future apply Pearce retroactively. In addition, we note that even before Pearce, Wayne was protected from judicial impropriety in sentencing by Maryland Rule 762 (review of sentence) and our previous holdings that a sentence cannot be influenced by improper motives, e.g. Washington v. State, 2 Md. App. 633, 236 A. 2d 32, Baker v. State, 3 Md. App. 251, 238 A. 2d 561.

The remaining contentions require little discussion. The testimony of the jewelry clerk who saw Wayne take the rings was itself sufficient evidence to support the conviction. See Reed v. State, 1 Md. App. 662, 232 A. 2d 550. Assuming, but not deciding, the arrest and subsequent search were illegal, Wayne is entitled to no relief. Neither the search nor the arrest produced any evidence and an illegal arrest does not, of itself, vitiate a subsequent conviction. Hutchinson v. State, 1 Md. App. 362, 230 A. 2d 352. Compare Davis v. Mississippi, 395 U. S. 949, 89 Sup. Ct. 1394, 22 L.Ed.2d 676. The question as to competency of counsel was not raised below and is not before us. Maryland Rule 1085.

Judgment affirmed.