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Cohen v. State

Decided: May 12, 1964.

COHEN
v.
STATE



Appeal from the Circuit Court for Montgomery County (SHURE, J.).

The cause was argued before Henderson, Hammond, Prescott, Horney and Sybert, JJ.

Sybert

SYBERT, J., delivered the opinion of the Court.

On May 17, 1962, seven indictments, containing eighteen counts, were filed in the Circuit Court for Montgomery County, charging the appellant, Sherman S. Cohen, and a co-defendant,

with obtaining money under false pretenses, embezzlement, and larceny after trust, and conspiracy to commit certain crimes. The charges against the appellant were based upon alleged misconduct with respect to The Family Savings and Home Loan Association, Inc., a Maryland corporation, which had been placed in receivership in October, 1961. The appellant, an attorney, had acted as legal counsel for the now defunct savings and loan association.

On May 21, 1962, a copy of each indictment was delivered to the appellant in open court, and bond was fixed and posted. On May 23, 1962, the other defendant was arraigned and pleaded not guilty, but the appellant asked not to be arraigned at that time because he desired to file certain motions before he pleaded, and to obtain counsel. The appellant was arraigned on May 22, 1963 (no motions having been filed by him in the meantime). At that time he orally moved in open court that the indictments be dismissed on the grounds that they rested on illegally obtained evidence, the charges were contradictory, the counts were too vague and indefinite to allege specific offenses, and on the ground that he had been deprived of his right to a speedy arraignment and trial. He also requested a bill of particulars as to all indictments. The court refused to rule on the motions at that time and ordered that they be formally presented in writing. (Maryland Rule 725 c.) After the appellant refused to plead to any of the charges, the court ordered that pleas of not guilty be entered and set trial for June 17, 1963.

On May 29, 1963, the appellant filed a written demand for a bill of particulars as to each indictment. After a hearing on June 10, 1963, the court ordered that bills of particulars be filed no later than July 1, 1963, and that the trial be postponed until July 15, 1963.The court then instructed the appellant to file any other preliminary motions "very quickly". The appellant responded by immediately filing motions to dismiss the indictments, to permit inspection of the minutes of the Grand Jury, for discovery and inspection, to compel the State to elect a theory of offenses charged under the indictments, for the return of seized property and for suppression of evidence, and to dismiss the indictments for want of prosecution.

On July 1, 1963, the State filed its answers to the demand for particulars. On July 3, 1963, the appellant filed a motion to compel more comprehensive particulars, a motion to dismiss, a motion to correct the records, and a request for reassignment of the case to another judge. At a hearing on July 8, 1963, both the motion to reassign the case (which was treated as a request for a removal) and the motion for more comprehensive particulars were denied, and the court indicated it would dispose of all other pending motions that afternoon. After a short recess the appellant's attorney stated that the appellant wished to waive a jury trial (which had previously been requested) and enter a plea of nolo contendere to the fifth count in case number 4939, and that if such a plea were accepted, the prosecutor had indicated that he would dismiss the remaining charges. The Assistant State's Attorney confirmed that such was the State's intention. The appellant himself stated that he wished to submit under a plea of nolo contendere and ask for probation without verdict. No request was made for the court to rule on the pending motions. The hearing was then adjourned so that the court could take the tendered plea of nolo contendere under consideration. On the next day the court announced that argument as to acceptance of the nolo contendere plea would be heard on July 15, 1963, the scheduled trial date. At a hearing on July 15 both the appellant and his counsel made statements requesting the court to accept the plea of nolo contendere. The court indicated that since the appellant's counsel had made a request for a pre-sentence investigation, one would be conducted and the court would then decide whether to accept the plea of nolo contendere.

On August 13, 1963, the appellant filed a motion specifically directed to count five in case number 4939 (the subject of the nolo contendere plea), which attempted to renew all unacted upon motions previously filed and which contained a lengthy statement requesting acceptance of the plea. Later on the same day the appellant and the State's Attorney discussed the plea with the presiding judge in chambers, as will be mentioned hereinafter. The final hearing took place on August 20, 1963. At the beginning of the proceedings there was considerable discussion as to whether the remaining charges would be dismissed

or whether nolle prosequis would be entered, and it was made clear that the latter course would be followed by the State. In response to a question by the appellant, the court stated, "The record indicates that you waive a jury trial and enter a plea of nolo contendere, and it is just now being put down officially." After further discussion the court asked the appellant, * * * is there anything you or your counsel would like to say before I proceed to sentence you on Criminal 4939, where you pleaded nolo contendere to the fifth count?" The appellant then requested a stay, which was promptly denied. The appellant thereupon asked the court to make a ruling on the effect of a plea of nolo contendere, but the court refused to do so. The following colloquy then took place:

"Mr. Cohen: In the absence of a ruling, the defendant withdraws the plea of nolo contendere and ...


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