Barbee v. Warden of Md. Penitentiary

• Decision Date: 15 May 1959
• Docket Number: No. 14,14
• Citation: 151 A.2d 167,220 Md. 647
• Parties: William BARBEE v. WARDEN OF MARYLAND PENITENTIARY. Post Conviction Application
• Court: Maryland Court of Appeals

Page 647

220 Md. 647

151 A.2d 167

William BARBEE v. WARDEN OF MARYLAND PENITENTIARY.

Post Conviction Application No. 14.

Court of Appeals of Maryland.

May 15, 1959.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

William Barbee (the applicant or petitioner) has applied to this Court for leave to prosecute an appeal from the order of the Criminal Court of Baltimore (Cullen, J.) denying applicant the relief he sought under the provisions of the Post Conviction Act [Code (1958 Supp.) Art. 27, §§ 645A-J].

On May 16, 1957, the applicant was convicted by the trial court without a jury (Warnken, J.) of assault, unauthorized use of an automobile and assault with intent to murder on three separate indictments, and was sentenced therefor to the Maryland Penitentiary for one, four and fifteen years, respectively, the sentences to be served consecutively. Having been incarcerated for more than one year, the applicant seeks no relief with respect to the sentence for assault.

Code (1958 Supp.) Art. 27, § 645A(a) provides in part that:

'Any person convicted of a crime and incarcerated under sentence of * * * imprisonment, * * * who claims [i] that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or [ii] that the court was without jurisdiction to impose the sentence, or [iii] that the sentence exceeds the maximum authorized by law, or [iv] that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding * * * to set aside or correct the sentence * * *.'

The applicant, asserting his innocence, claims that he was not guilty either of unauthorized use or assault with intent to murder. With respect to his conviction of unauthorized use, he alleges that the fingerprints taken from the automobile were not produced at the trial because they were not his, and contends that there was no proof that he has used an automobile without authority. With respect to his conviction of assault with intent to murder, he alleges that the ballistic experts were not called to testify at the trial because there was no proof that the revolver admitted as evidence was that which the State claimed was used in the commission of the assault with intent to murder, and contends that there was no proof that he had shot anyone on the date alleged in the indictment.

The applicant states that he 'desires a delayed appeal,' and that he has 'four new witnesses to give further proof of his innocence.' Apparently it was for these reasons he petitioned the trial court to 'view the record' and 'grant an appeal' and 'order a new trial.' He further asserts that 'via' the Constitutions of the United States and Maryland he is 'due a redress, i. e., a fair trial, equal protection of the laws and due process.'

In his petition filed in the trial court, the applicant alleged that he was 'unable to obtain the transcript of proceedings' but that he would pay the filing fee. He did not allege that he was indigent nor did he request appointment of counsel. On the other hand, there is nothing in the record to show that he 'voluntarily and intelligently waive [d] the right to counsel.' Byrd v. Warden, Md.1959, 147 A.2d 701, 702.

When the petition was originally considered by Judge Cullen on ...