Sentenced in a state court to two successive terms of twenty years each upon pleas of guilty to two charges of simple assault, the defendant asserted a denial of his Eighth Amendment rights, derived through the Fourteenth Amendment, to be free of cruel and unusual punishment. The district court held the sentences invalid to the extent that they exceed the statutory maximum of fifteen years which may be imposed upon a conviction of assault with intent to murder. Roberts v. Collins, D.C.Md., 404 F.Supp. 119. On appeals by both parties, we affirm.
Stopped for a traffic offense, Roberts was instructed to enter a police patrol car. While in the act of doing so, he shot one of the policemen in the shoulder and clubbed the other in the back of the head with a pistol. Out of the entire incident there arose a number of charges, including a separate charge of assault with intent to murder each of the policemen and a separate charge of simple assault upon each policeman. At the time, assault with intent to murder was a statutory crime in Maryland with a maximum sentence of fifteen years.
Roberts agreed to enter guilty pleas to several counts of each indictment, including the charge of simple assault. The judge imposed a sentence of twenty years upon him upon each of the assault charges, the sentences to run consecutively. Other sentences upon other offenses were also to run consecutively, so that the total term of imprisonment imposed was fifty-four years.
We think we need add little to what was said by the district court. Simple assault, indeed, is a lesser offense than assault with intent to murder, and may not constitutionally subject one to greater punishment than that which may be lawfully imposed upon one convicted of assault with intent to murder.
Assault with intent to murder is a heinous crime. It is a lesser offense than actual murder only because the victim survives; it becomes murder if the victim dies in consequence of his wounds. To convict Roberts of assault with intent to murder each of the policemen, Maryland would have been required to prove in each instance, in addition to the shooting and clubbing, that death was not an unlikely consequence of Roberts' acts and that the acts were done under such circumstances and
When, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment. In Hart v. Coiner, 4 Cir., 483 F.2d 136, 140, relying upon Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), we held that punishment for crimes should be graduated and proportioned to the offense. Exact balances may not be attainable between unrelated offenses, but the Constitution does not sanction the imposition of a greater punishment for a lesser included offense than lawfully may be imposed for the greater offense.
For such reasons and for those fully discussed in the opinion of the district court, we think it correctly concluded that the assault sentences imposed upon Roberts, to the extent they exceeded fifteen years each, amounted to the imposition of cruel and unusual punishment and were invalid. We find no infirmity in the conclusion that each of the sentences does not offend the Constitution and were valid to the extent that each did not exceed fifteen years, the maximum which might be imposed for assault with intent to murder.
There is an alternative contention by Roberts on his cross-appeal that the guilty pleas were involuntary because he "was not aware that common law assault carried no maximum penalty in Maryland." After concluding that there was a constitutionally required maximum penalty of fifteen years, the district court found it unnecessary to reach this alternative contention. We do not reach it for the same reason, for nowhere does Roberts contend that he was informed and reasonably understood that there was a maximum penalty of less than fifteen years. Should there be a factual basis for such a contention, this decision will not foreclose its assertion in subsequent post-conviction proceedings.
MARKEY, Chief Judge, United States Court of Customs and Patent Appeals (dissenting).
With total respect and deference, and fully aware that dissents are normally devoid of either parentage or progeny, I find myself unable to agree with my distinguished colleagues.
My primary difficulty with the decision below and with the majority opinion is three fold:
These are cross-appeals from the judgment
The issues are: (1) whether the district court erred in concluding that petitioner's sentences constituted cruel and unusual punishment prohibited by the Eighth Amendment; (2) whether petitioner's sentences violated Fourteenth Amendment guarantees of due process and equal protection; and (3) whether acceptance of petitioner's guilty plea violated the Fourteenth Amendment guarantee of due process.
Between 1938 and 1953 petitioner was convicted of some 18 to 20 charges. The charges of 1953 arose from events which occurred when petitioner was arrested for driving without a license. In getting into the police car, petitioner shot a first police officer and clubbed a second in the back of the head with a pistol. He was charged with
Petitioner took no appeal. He has, however, petitioned the Maryland State Courts on at least seven occasions,
Several years ago, petitioner was released on parole but soon violated its terms and was recommitted. He is currently confined at the Maryland State Prison.
The Analysis Below
The district court concluded that a sentence greater than the statutory maximum for assault with intent to murder was cruel and unusual, and thus violative of the Eighth Amendment, when imposed for a crime of common law simple assault.
Although this court in Roberts v. Warden, No. 11,201 (CA4 1967), had previously held itself bound by a Maryland Court of Appeals decision that petitioner's punishment was authorized under Maryland law, the district court considered that the "ends of justice," Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), required it again to consider the question, and that the concept of "cruel and unusual" had more recently been so judicially developed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Hart v. Coiner, 483 F.2d 136 (CA4 1973), cert. denied, 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974) and Ralph v. Warden, 438 F.2d 786 (CA4 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972), as to necessitate an application of current law to petitioner's sentences. The court's analysis involved consideration of the four factors set forth in Hart and an added fifth factor gleaned from concurring opinions in Furman and from Ralph.
Applying the first factor, "nature and gravity of the offense," the district court recognized that petitioner's crimes were serious but downgraded their seriousness by comparison of "simple assault" with the statutory crime of assault with intent to murder charged by the prosecution. Having cited Marks v. State, 230 Md. 108, 185 A.2d 909 (1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1308, 10 L.Ed.2d 417 (1963), for the proposition that "simple assault" was a lesser-included offense within that of assault with intent to murder, the district court reasoned:
The court noted the perplexing fact that the state legislature had left sentencing for "simple assault * * * exclusively to the trial judge" while prescribing penalties for certain other crimes which the court considered more serious and which the court listed in the opinion below.
With admirable candor the court stated, "The second factor identified in Hart v. Coiner, supra, is the legislative purpose behind the penalty. Here, the legislative purpose — if there was any — in not proscribing a maximum penalty for simple assault, while doing so for specific aggravated forms of assault, cannot be divined by this court."
Correctly terming "circular and fruitless" a pursuit of the third factor, comparison of the (non-existent) maximum penalty for simple assault in Maryland against maxima in other states, the court arrived at the fourth factor, a comparison with other maximum Maryland sentences for comparable statutory crimes, finding it "most informative." Noting that petitioner's sentences were greater than the maximum prescribed by statute for each of seven listed crimes,
Unable to locate a single Maryland case in which a sentence of 20 years was imposed for simple assault,
Thus the analysis below rested on three of the five listed factors. The district court: "questioned" whether a "lesser included" offense could have a "nature and gravity" serious enough to justify the sentences when lesser sentences were provided for equal or more grave offenses; set aside "legislative purpose" as unknowable and "comparison with other states" as fruitless; found "comparison with other crimes in Maryland" informative; and found rarity of the penalty indicative of arbitrariness. It is clear, however, that the controlling element in the analysis below was, as it is in the majority opinion here, the fact that petitioner had been charged with a statutory crime considered by the court as greater than the common law crime to which petitioner pled guilty and yet the penalty imposed exceeded the maximum prescribed for that "greater" statutory crime.
The district court found it unnecessary to reach the Fourteenth Amendment contentions of petitioner.
I agree with the learned trial judge that judicial development in the area of cruel and unusual punishment justified review of the petition. I agree also, of course, with the exposition of applicable law in Furman, Hart and Ralph, supra. I would hold, however, that those authorities do not require the result reached below. Though I disagree with the trial judge's conclusion that the imposition of petitioner's sentences was unconstitutional, I join him in considering incongruous and disconcerting the general proposition that a common law crime labeled "simple assault" in Maryland may carry a greater penalty than the statutorily labeled crime "assault with intent to murder," as this court said in Roberts v. Warden, supra. The incongruity, however, lies primarily in the context of legislative housekeeping, terminology employed in designating offenses, difficulty of foreseeing and accurately describing all possible offenses, and the fact that petitioner was charged herein with both statutory and common law offenses. But a disconcerting incongruity should not in itself control determination of whether a particular punishment is cruel and unusual when imposed upon a particular criminal guilty of a particular criminal act.
Prior Consideration by State Courts
The Maryland courts have on numerous occasions considered the legality of Roberts' sentences and their constitutionality under both the Maryland and federal constitutions. I accept the Maryland courts' determination that the punishments in question are legal, valid punishments under the laws of Maryland. They are, nonetheless, subject to review in the light of the Eighth and Fourteenth Amendments. In the conduct of that review, they must be accorded, as legal punishments, a presumption of constitutional validity. Gregg v. Georgia, ___ U.S. ___, ___, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
The judges of the Maryland Court of Appeals and of the other Maryland courts which reviewed the federal constitutionality of petitioner's sentences are no less qualified than we to interpret the Eighth and Fourteenth Amendments. Though I agree with the district court's statement that their interpretation cannot bind a federal court, I view that interpretation as one entitled to great deference. Petitioner violated a state law, was sentenced by a state judge, petitioned numerous times to state courts and is currently serving in a state penitentiary. Absent a clear violation of the Constitution, federal courts should not annul the decisions of learned state judges regarding a petitioner's claim that his Eighth and Fourteenth Amendment rights had been infringed.
Lesser v. Greater Crimes
At the threshold, I do not agree that petitioner's particular crimes were "lesser-included offenses" within the crime statutorily labeled "assault with intent to murder." It is for the Maryland Legislature to designate greater and lesser crimes within the criminal law of Maryland. As above indicated (see note 9) we are not here faced with a comparison of punishments for crimes which the legislature has itself codified, as were the courts in the cases relied upon below. Because of the vast array of offenses which may come under the heading "common law assault," I cannot say that every offense thereunder is a "lesser included" crime within "assault with intent to murder." That proof of more elements is required for conviction does not, in my view, render a particular criminal act in every case a "greater" crime inclusive of another.
Of the almost unlimited myriad of possible assaults conceivably describable as "common law simple assaults," the Maryland Legislature carved out some, including assault with intent to murder, and made them statutory crimes. All other common law assaults, though labeled "simple,"
But if the crimes here charged were "lesser" crimes than assault with intent to murder, there is no requirement that crimes at various levels within a category receive
The Common Law
Statutes alleged to be in derogation of the common law must be strictly construed. Anglin v. State, 28 Md.App. 150, 344 A.2d 130 (1975) and cases cited therein. The legislative definition of a statutory crime only changes that much of the common law as it expressly or necessarily replaces. Petitioner pled guilty and was sentenced for violation of the common law, not for violation of one of the statutory exceptions thereto. It cannot be presumed that legislative provision of specific penalties for commission of some statutory assaults altered the permissible penalties for commission of assaults remaining within the common law. Gleaton v. State, 235 Md. 271, 201 A.2d 353 (1964). Here the legislative prescription of a 15 year maximum prison term for assault with intent to murder creates no implication of any legislative intent concerning penalties for crimes remaining untouched in the common law. If any implication must be read into a legislative failure to prescribe maximum penalties for common law crimes, while doing so for other "more serious" crimes, that implication must necessarily be one of intent to leave matters as they were with respect to penalties for common law crimes.
The district court recited that "no supporting reason has been suggested by either side" for that legislative failure, and that "[i]t certainly cannot be argued that the legislature wanted to leave flexibility in the courts to cover some form of assault not covered by the compendium of horrors for which it did provide penalties." I do not, however, find it surprising that no reasons are suggested for legislative non-action, and I think it can be argued, nay, presumed, that a legislature that did in fact leave such broad flexibility in the courts wanted to do just what it did. Its wisdom in wanting to do so is not, of course, a matter for the courts.
Nor is the constitutionality of legislative non-action with respect to some common law crimes an issue before us.
There being no statutory limit on the penalty which may be imposed for common law assault, Glass v. State, 24 Md.App. 76, 329 A.2d 109 (1974), the sentencing judge in Maryland, who sees and hears the accused
(1) Eighth Amendment
At base, the determination of whether a punishment is "cruel and unusual" is but a determination of whether the punishment is disproportionate, under the circumstances, to the crime. "Let the punishment fit the crime" is not an idle phrase, in my view, in the light of the Eighth Amendment. I would, therefore, determine the cruel and unusual issue without regard to the happenstance of the presence or absence of other charges which were or might have been brought against petitioner. Less difficulty would arise with a holding that a 20 year sentence for shooting a policeman constituted cruel and unusual punishment than arises from a holding that no sentence for any common law crime may exceed statutory sentences provided for some "greater" crime.
The four "factors" set forth in Hart v. Coiner, supra, are useful semantic tools, descriptive of the process of measuring the "fit" between the crime and the punishment.
Petitioner's crimes involved physical violence, mortal danger to the victims and grave moral culpability. Shooting one police officer and clubbing a second during an arrest for a traffic violation is wanton violence out of all proportion to the surrounding context. Such actions evidence a total disregard for the physical safety and basic human rights of others. Though Maryland does not distinguish between shooting a police officer and shooting others (see note 3, supra), the effect of petitioner's crime upon society is heightened by its having victimized official representatives and servants of society, i. e., police officers, carrying out
Absent evidence to the contrary, it may be assumed that the purpose of the judge-imposed punishments herein was one of deterrence and the protection of society. To "fit the crime" a punishment must, of course, also fit the criminal, as differing penalties for first and repeated offenders have so long illustrated. Mild sentences would, from all known circumstances, have had little or no deterrent effect upon petitioner. Petitioner's prior convictions on 18-20 charges and his violation of parole illustrate his inability to resist asocial temptations. The penalty herein insulated petitioner for a longer time from his clearly established propensity toward the commission of crimes against society. Though the length of the sentences may on cold review seem harsh, I cannot say that petitioner's punishment was so ill fitting as to be cruel and unusual in the constitutional sense.
In comparing punishments for similar crimes in other jurisdictions and for related crimes in Maryland, we must continue to look at the crime itself, not just at its title, mindful that sentencing authorities are required, in modern practice, to consider all mitigating and aggravating circumstances including the offender's propensity to commit future crimes, Jurek v. Texas, ___ U.S. ___, ___, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), as well as all other aspects of the offender's character and record in light of all of the circumstances surrounding the particular offense, Woodson v. North Carolina, ___ U.S. ___, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
To overcome the presumption of constitutionality, petitioner must do more than submit a list of statutes and statutory punishments. He must show how similar criminal acts in similar circumstances by criminals of similar character and record have been or would be punished. In the present case, all surrounding circumstances are aggravating — none is mitigating — and petitioner has shown no evidence that the particular criminal acts involved herein, committed in similar circumstances by a person of similar character and record, have been or would be punished less severely in other jurisdictions or in Maryland.
As above indicated (see note 10), that lesser punishments may have been statutorily provided for different crimes, the titles of which may sound more serious than the broadly indefinite and encompassing title, "common law simple assault," cannot be controlling. Courts must bear in mind that a decision holding a given punishment for a given crime impermissible under the Eighth Amendment may frustrate the ability of the people to express their preference through normal democratic processes. Gregg v. Georgia, supra at 5236. I cannot say that the prison terms challenged by petitioner are so excessive as to constitute cruel and unusual punishment and that the people, the legislature, and the judiciary of Maryland should be forever prohibited from authorizing or imposing 20 year terms under similar circumstances.
I would hold, therefore, that petitioner's sentences were not violative of the Eighth Amendment.
(2) Fourteenth Amendment
In view of the holding below and its affirmance here, neither the district court nor the majority here reached Fourteenth Amendment questions. Those questions are directed, however, to legal issues determinable on a record devoid of fact questions. Because the same record is before us, we are in as good position as the district court might have been to resolve the Fourteenth Amendment issues. In the interest of judicial efficiency and the conservation of scarce judicial resources, I would elect to do so.
In discharging his duty of imposing a proper sentence, as again indicated above, the sentencing judge must consider all the circumstances, mitigating and aggravating, involved in the crime, including the convicted person's past conduct and moral propensities. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, supra. In light of the many aggravating circumstances of petitioner's crimes, as discussed above, we cannot say that Judge Carter was totally unreasonable in imposing the legally permissible sentences herein. Because of the many considerations which go into fitting the punishment to the crime and the criminal, the Fourteenth Amendment does not require every offense in a like category to carry the same punishment without regard to the past lives of different offenders or without regard to differing natures of the particular crimes involved. Williams v. New York, supra, 337 U.S. at 247, 69 S.Ct. 1079. The need for flexibility renders inappropriate the rigid view that every so-called "lesser crime" must in every case result in a lesser sentence. Neither the equal protection clause nor the due process clause of the Fourteenth Amendment, in my view, affords petitioner any relief from the sentencing judge's lawful exercise of his reasonable discretion in fitting the penalty to this offender and to these crimes.
(3) The Plea
Petitioner alleges a violation of the Fourteenth Amendment in the acceptance of a guilty plea not made voluntarily because he was not aware that common law assault carried no maximum penalty.
Of course the due process clause of the Fourteenth Amendment requires that a guilty plea be made intelligently and voluntarily. Because res judicata is not applicable to habeas corpus proceedings, the present petition is not barred by the numerous state and federal proceedings that have found no violation of the due process clause in the acceptance of petitioner's plea.
Even so, the prior determination of state or federal courts is entitled to controlling weight when the trier of fact has, after full hearing, reliably found the relevant facts. Cf. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The record established in exhausting state remedies is apt to alleviate the need for a federal hearing. And, as the Supreme Court has pointed out, controlling weight may be given to prior decisions if (1) the presently presented ground was determined adversely to petitioner therein, (2) the prior determinations were on the merits, and (3) the ends of justice would not be served in again reaching the merits. Sanders v. United States, supra, 373 U.S. at 15, 83 S.Ct. 1068. The Court went on (373 U.S. at 16, 83 S.Ct. at 1077) in that case to explain "ground":
In many of his prior petitioners, petitioner has asserted as ground for a writ of
After presiding over a hearing in which petitioner was represented by counsel, and in which involuntariness of his plea was presented, Judge Jones in a Memorandum and Order
Thus, although petitioner has slanted his language in many directions the ground is the same,
Petitioner has not shown that the ends of justice would be served by reviewing the merits of his involuntariness claim yet another time. Petitioner has not asserted that prior evidentiary hearings were not full and fair, or that there has been a change in the law with respect to his involuntariness contention, or made any other persuasive allegation. Petitioner merely disagrees with the result reached.
Petitioner pled guilty to the commission of abhorrent crimes and received stern sentences. The sentences, however, were not, in my view, so severe, relative to petitioner's criminal acts and demonstrated propensities, that they amounted to cruel and unusual punishment. I would, therefore, hold it to have been error below to conclude that petitioner's punishment for commission of common law crimes violated the Constitution
Petitioner's punishment did not violate the due process or equal protection clauses of the Fourteenth Amendment and I find no violation of the Fourteenth Amendment in the procedure and circumstances surrounding petitioner's plea of guilty.
Accordingly, I would reverse the judgment of the district court and remand the case for reinstatement of the sentence originally imposed by the sentencing judge.
Because of the presence of the charge of assault with intent to murder, it is easy to assume that petitioner was "mousetrapped" into pleading guilty in expectation of a sentence less than that provided by statute for that crime. But that assumption conflicts with "all the surrounding circumstances" and with petitioner's delay of over two decades, during which his counsel died and the memories of others have grown dim, before founding this petition on his state of mind, a factor necessarily known to him since March 3, 1953.