# Opposition — Miller v. Maryland

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1142%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 966

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1142%3A2. Public record. Not legal advice.