Bucholtz v. Warden of Md. Penitentiary, 69

• Decision Date: 12 December 1963
• Docket Number: No. 69,69
• Citation: 195 A.2d 690,233 Md. 614
• Parties: James Douglas BUCHOLTZ v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 614

233 Md. 614

195 A.2d 690

James Douglas BUCHOLTZ v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 69.

Court of Appeals of Maryland.

Dec. 12, 1963.

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

HAMMOND, Judge.

On May 19, 1961, the applicant for leave to appeal, James D. Bucholtz, pleaded guilty to two indictments charging burglary and, on that same date, was sentenced to eight years in the Maryland Penitentiary by Judge Carter, sitting in the Criminal Court of Baltimore. No appeal was taken.

On February 20, 1963, Bucholtz filed a petition for a writ of habeas corpus in the Criminal Court of Baltimore and Judge Foster wrote him, explaining that it would be to applicant's advantage to authorize the court to proceed under the Uniform Post Conviction Procedure Act. Bucholtz immediately assented to the suggestion.

Judge Shirley Jones, having appointed counsel to represent the applicant and conducted a hearing at which Bucholtz was present, wrote a memorandum denying the petition.

Bucholtz below assigned three grounds for relief, viz.: (1) he was the victim of an arrest not predicated upon probable cause and a subsequent illegal search of his person and apartment during which there was seized incriminating evidence; (2) his court-appointed counsel at trial was incompetent in that he did not challenge the validity of the search and seizure, and entered the guilty plea in spite of applicant's objections; and (3) the State failed to provide him with counsel before his preliminary hearing, at a time when he signed a confession which was induced, he said, by his being confronted with the evidence taken by the police from his apartment.

In her memorandum, Judge Jones stated that 'the police, having probable cause to believe that a felony had been committed and that Bucholtz had committed it, the arrest was legal.' She based her finding on the fact that 'the police had information from his [Bucholtz'] friends and persons in a tavern he frequented and where he was arrested, which caused them to believe that he and his codefendant were trying to peddle items, including valuable jewelry, taken in a burglary * * *.' Judge Jones then found that the search of the applicant's person which resulted in the finding of a rent receipt for rent paid on a Baltimore Street apartment was 'a proper incident of the arrest.' The Judge further stated that 'his [applicant's] complete disclaimer of the Baltimore Street apartment certainly did not require the police to obtain his permission to search it, but they did obtain consent of the landlord by obtaining from him the key.'

We think Judge Jones was right in her determination that the police officers had probable cause to arrest appellant for a felony (see Price v. State, 227 Md. 28, 33, 175 A.2d 11, and Mulcahy v. State, 221 Md. 413, 421, 158 A.2d 80, and cases cited...