Opposition — Miller v. Maryland

upreme Court, U. $,

“~ FILED

66-9624 | west in

MICHAEL RODAK, JR., CLERK

———

In THE

Supreme Court of the United States

OcToOBER TERM, 1976

No. Gi

ALBERT MILLER, JR.,

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

FrRANCIs B. BURCH,

Attorney General

of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief, Criminal Division,

BERNARD A. RAuM,

Assistant Attorney General,

For Respondent.

The Daily Record Co., Baltimore, Md. 21202 a=

TABLE OF CONTENTS

PRELIMINARY COMMENTS ...........ccccccccccccoccccccseeeeeeeee

ER ee

ee eee

ARGUMENT IN OPPOSITION TO ALLOWANCE OF

THE WRIT:

A guilty plea is not in violation of

Boykin v. Alabama, 395 U.S. 238 (1969),

if the record does not specifically reflect

that the defendant is not advised of his

privilege against self-incrimination so

long as a reviewing court can ascertain

from the totality of the circumstances

that the plea is entered freely, voluntar-

ily and understandingly ....................0006 3

RE RET ae OR Oe oT a 5

TABLE OF CITATIONS

Cases

Barrett v. State, 544 P.2d 830 (1975) ...................

Boykin v. Alabama, 395 U.S. 238 (1969) ............ 2, 3,

Davis v. State, 278 Md. 103 (1976) ......................

Franks v. State, 513 S.W.2d 584 (1974) ...............

Heffley v. Warden, 516 P.2d 1403 (1973) .............

Hill v. Tarnullo, 510 F.2d 844 (1975) ....000.00..

Jones v. State, 207 N.W.2d 890 (1973) ...............

ork oF oe oI ol

ii

Merrill v. State, 206 N.W.2d 828 (1973) ..............

Miller v. State, 32 Md. App. 482 (1976) ..............

People v. Kuzhulan, 213 N.W.2d 95 (1973) ..........

Raisley v. Sullivan, 493 P.2d 745 (1972) .............

Roddy v. Black, 516 F.2d 1380 (1975) cert. denied,

GE CE —ieriretisirciteitlathctnethinsitnnssinnsneninsensncanses

State v. Buchanan, 334 N.E.2d 503 (1974) .........

State v. Conner, 500 S.W.2d 300 (1973) ..............

State v. McKenzie, 17 Md. App. 563 (1973) ........

State v. Propotnik, 216 N.W.2d 637 (1974) ..........

State v. Turner, 183 N.W.2d 763 (1971) ..............

State v. Williker, 491 P.2d 465 (1971) ..................

Stevens v. State, 232 Md. 33 (1963) ..................0..

Todd v. Lockhart, 490 F.2d 626 (1974) ................

United States v. Frontero, 452 F.2d 406 (1971) .

United States, Ex Rel. Montgomery v. Illinois,

gs OL Ie

Wate v. Coiner, 463 F.2d 1059 (1972) ..................

Wilkins v. Erickson, 505 F.2d 761 (1974) ............

Constitutional Provisions

Title 28, U.S.C., Section 1257(3) ...........cccccccceeeeeeee

re oOraw»#§#s oc go

oa - or

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-1189

ALBERT MILLER, JR.,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

PRELIMINARY COMMENTS

This brief is a response in opposition to Petition for

Writ of Certiorari filed pursuant to the request of this

Honorable Court.

OPINION BELOW

In Miller v. State, 32 Md. App. 482 (1976) the Court of

Special Appeals of Maryland in a reported opinion

upheld the denial of post conviction relief to the

Petitioner. The Court of Appeals of Maryland on

October 26, 1976 declined to issue a writ of certiorari to

the Court of Special Appeals.

2

JURISDICTION

The Petitioner has invoked the jurisdiction of this

Honorable Court pursuant to the provisions of Title 28,

U.S.C., Section 1257(3).

STATEMENT OF THE CASE

The Petitioner, Albert Miller, Jr., was charged in the

Criminal Court of Baltimore under Indictment No. 6288

of 1969 with murder. He pled guilty on June 2, 1972 to

murder in the first degree and was sentenced to a term

of life imprisonment by the Honorable Solomon Liss

presiding in the Criminal Court of Baltimore. No direct

appeal was taken from the guilty plea.

The Petitioner thereafter filed a Petition for Post

Conviction Relief alleging that his plea was involuntar-

ily entered. Relief under that Petition was denied and

from a denial of post conviction relief and upon an

order granting leave to appeal the Petitioner pursued an

appeal in the Court of Special Appeals of Maryland.

That Court in a reported opinion affirmed Judge Albert

L. Sklar’s denial of post conviction relief.

STATEMENT OF FACTS

The Respondent adopts as its Statement of Facts

Appendix C of the Petition for Writ of Certiorari filed by

the Petitioner in the premises, pages A. 10 through A.

24 since that is the entire transcript of proceedings

before Judge Liss on June 2, 1972.

QUESTION PRESENTED

Whether a guilty plea is valid under the dictates of

Boykin v. Alabama, 395 U.S. 238 (1969) if no reference

is made to a criminal defendant’s privilege against self-

incrimination?

3

ARGUMENT IN OPPOSITION TO

ALLOWANCE OF THE WRIT

A GUILTY PLEA IS NOT IN VIOLATION OF BOYKIN uv.

ALABAMA, 395 U.S. 238 (1969), IF THE RECORD DOES NOT

SPECIFICALLY REFLECT THAT THE DEFENDANT IS NOT

ADVISED OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION

SO LONG AS A REVIEWING COURT CAN ASCERTAIN FROM

THE TOTALITY OF THE CIRCUMSTANCES THAT THE PLEA IS

ENTERED FREELY, VOLUNTARILY AND UNDERSTANDINGLY.

The Court of Special Appeals of Maryland in

considering this question presented by the Petitioner

concluded that there is no question that the record of

proceedings in a guilty plea must reflect under the

totality of the circumstances that a criminal defendant

has entered a confession of guilt voluntarily and

understandingly. The Court of Special Appeals con-

cluded that it was not required to review the record of

the hearing in order to determine if the trial court

employed any particular prophylactic procedure

before accepting that plea. From the record of proceed-

ings below the Court of Special Appeals found that

the Petitioner had an unusually thorough understand-

ing of the felony murder doctrine under which he had

been charged and there was also no question that the

Petitioner freely and voluntarily admitted that he had

entered a store with the intention of committing a

robbery and that the victim had been murdered in the

course of the robbery. The Court also found that the

Petitioner indicated a thorough understanding of the

nature of the plea bargain, that the State would

recommend life imprisonment and would nol pros a

robbery indictment and that any appeal rights he may

have from his conviction were waived as a result of this

plea other than jurisdictional grounds or on the

crounds that the plea itself was not voluntarily given.

The Court found that the record was a product of

tnvrough preparation by trial counsel for the defendant

4

who had obviously interviewed and advised the

Petitioner at great length and that, therefore, the Court

could draw no other conclusion except that the

Petitioner knew precisely the consequences of his plea

of guilty and did so voluntarily and freely with full

knowledge of the constitutional rights which he thereby

waived. Relying on a recent Court of Appeals of

Maryland case, Davis v. State, 278 Md. 103 (1976) the

Court stated that there was no longer a necessity that

any particular ritualistic litany be performed so long as

the accused comprehended the nature of his decision to

plead guilty and did so of a free will. In so stating the

Court also indicated in a footnote that it was no

question in its mind but that the Petitioner had been

advised of the privilege by his counsel prior to the

hearing since it was apparent that the Petitioner had

been thoroughly schooled, citing Stevens v. State, 232

Md. 33 (1963) and State v. McKenzie, 17 Md. App. 563

(1973).

The legal predicate upon which the Court of Special

Appeals ruled was the scholary opinion of the Court of

Appeals of Maryland filed by Judge Digges in Davis v.

State, supra, in which Judge Digges traced the recent

history of litigation with regard to the acceptance or

rejection of guilty pleas generally. It is difficult to

expand upon Judge Digges’ analysis of the law. The

Court’s attention, however, is directed towards pages

116 through 118 of Davis v. State at 278 Md. in which

Judge Digges lists federal and state decisions which are

in direct accord with the Court of Special Appeals

opinion in Miller v. State and also with the Court of

Appeals decision in Davis v. State. Among the circuits

which have agreed in essence with this position is the

Second Circuit, Hill v. Turnullo, 510 F.2d 844, 845 (1975)

(reserving judgment), the Fourth Circuit, Wate v.

Coiner, 468 F.2d 1059 (1972); Fifth Circuit, United

States v. Frontero, 452 F.2d 406, 415 (1971); Sixth

5

Circuit, Roddy v. Black, 516 F.2d 1380 (1975), cert.

denied, 423 U.S. 917; Seventh Circuit, United States Ex

Rel. Montgomery uv. Illinois, 473 F.2d 1382 (1973) (per

curiam), Eighth Circuit, Todd v. Lockhart, 490 F.2d 626

(1974) (per curiam); and the Ninth Circuit, Wilkins v.

Erickson, 505 F.2d 761 (1974). Additionally Florida,

Massachusetts, Minnesota, Missouri, Nebraska,

Oregon, Texas, Wisconsin, Nevada, Ohio, Michigan,

Alaska, South Dakota and Arizona have also indicated

that the interpretation placed on Boykin v. Alabama,

supra, by the Court of Special Appeals of Maryland in

the Petitioner’s case is a direct view. See Barrett v.

State, 544 P.2d 830 (1975); Hall v. State, 273 S.2d 90

(1973); State v. Propotnik, 216 N.W.2d 637 (1974); State

v. Conner, 500 S.W.2d 300 (1973); State v. Turner, 183

N.W.2d 763 (1971); Raisley v. Sullivan, 493 P.2d 745

(1972); Franks v. State, 513 S.W.2d 584 (1974); Jones v.

State, 207 N.W.2d 890 (1973); People v. Kuzhulan, 213

N.W.2d 95 (1973); Heffley v. Warden, 516 P.2d 1403

(1973); State v. B. chanan, 334 N.E.2d 503 (1974);

Merrill v. State, 206 N.W.2d 828 (1973); and, State v.

Williker, 491 P.2d 465 (1971).

CONCLUSION

Respondent respectfully requests, upon the foregoing

points and authorities and arguments, that the Petition

for Writ of Certiorari to the Court of Special Appeals of

Maryland be denied.

Respectfully submitted,

FRANCIs B. BURCH,

Attorney General

of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief, Criminal Division,

BERNARD A. RauM,

Assistant Attorney General,

For Respondent.