Opinion
[H.C. No. 64, September Term, 1957.]
Decided January 21, 1958.
HABEAS CORPUS — Petition for, Held Premature, Since Petitioner Had Not Completed Serving Sentences to Extent to Which They Were Clearly Valid. Petitioner in this habeas corpus proceeding had pleaded guilty to all counts of an indictment charging him with obtaining narcotics by fraud, one count of which apparently charged him as a second offender under Code (1951), Art. 27, sec. 369, Acts of 1951, ch. 466. He received a sentence of seven years, and all of his complaints on habeas corpus went to the length of this sentence and to the validity of his apparent sentencing as a second offender. This Court, noting that he could have been sentenced to five years for a first offense, held that his petition for the writ was premature, since he had not completed serving the sentences under which he was confined to the extent to which they were clearly valid. pp. 621-622
J.E.B. Decided January 21, 1958.
Habeas corpus proceeding by Salvatore L. Buscemi against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Salvatore Buscemi seeks leave to appeal from the denial of his petition for a writ of habeas corpus by Chief Judge George Henderson, of the Circuit Court for Allegany County.
Buscemi was convicted in 1949 in the United States District Court for the District of Maryland of a narcotics offense. In November, 1954, he was indicted in the Criminal Court of Baltimore on charges of obtaining narcotics by fraud. One count alleged his prior conviction in the District Court, and it thus appears from the rather scanty record in this case that he was charged as a second offender under the Uniform Narcotic Drug Act. The particular part of that Act here involved is Code (1951), Article 27, § 369, which, as amended by Chapter 466 of the Acts of 1951, imposes increased penalties upon second and third offenders. Buscemi pleaded guilty to all counts of the indictment. He was sentenced to seven years' imprisonment, but the sentence was suspended and he was placed on seven years' probation. The period of probation was, however, reduced to five years, apparently because of a denial of, or question as to, the validity of a longer period. While on probation Buscemi was tried and convicted in Harford County on a charge of forgery and was sentenced on March 9, 1955, to six months' imprisonment. He was thereafter charged in the Criminal Court of Baltimore with violation of his probation and pleaded guilty. His sentence of seven years in the House of Correction was reimposed on April 4, 1955, and was ordered to run concurrently with the sentence he was then serving for forgery.
Buscemi makes three claims in support of his application for a writ: first, that to apply to him the second offense penalty imposed under the 1951 amendment of Section 369 of Article 27, supra, because of his 1949 prior conviction would involve a violation of the constitutional prohibition against ex post facto laws; second, that he was convicted only of a first offense and hence that a penalty in excess of five years is unlawful; and third, that he could not have been convicted as a second offender because no documentary evidence of his prior conviction was produced.
It will be noted that every one of these contentions goes to the length of the sentence under which the applicant is confined. A sentence of five years' imprisonment could have been imposed for a first offense. If we assume that any or all of the applicant's contentions are available on habeas corpus proceedings, which we do not decide, it seems clear that his application is premature since he has not completed serving the sentences under which he is confined to the extent to which they seem clearly valid. Hunter v. Warden, 198 Md. 655, 80 A.2d 611; Roberts v. Warden, 206 Md. 246, 111 A.2d 597; Hart v. Warden, 213 Md. 658, 132 A.2d 592. A motion to strike out a sentence alleged to be illegal based upon such grounds as are asserted in the applicant's second contention might be filed in the trial court which imposed the sentence. See Roberts v. Warden, supra, and Maryland Rule 744.
Application denied, with costs.