Hartley v. State, 207

• Decision Date: 16 March 1965
• Docket Number: No. 207,207
• Parties: John M. HARTLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 165

238 Md. 165

208 A.2d 72

John M. HARTLEY v. STATE of Maryland.

No. 207.

Court of Appeals of Maryland.

March 16, 1965.

George L. Russell, Jr., Baltimore (Richard K. Jacobsen, Baltimore, on the brief), for appellant.

Stuart H. Rome, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr. and Stanley S. Cohen, State's Atty. and Asst. State's Atty. respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., HAMMOND, MARBURY and SYBERT, JJ., and RALPH W. POWERS, Special Judge.

SYBERT, Judge.

On April 28, 1961, the appellant, John M. Hartley, pleaded guilty before Judge Carter in the Criminal Court of Baltimore under each of the first counts of indictments Nos. 991 through 995 charging armed robbery of several loan offices. He was sentenced to a term of 20 years' imprisonment in the penitentiary for each conviction, the first two terms to run consecutively and the other three to run concurrently with the second one. This is a delayed appeal from those judgments.

On January 31, 1964, Hartley filed a petition seeking relief under the Uniform Post Conviction Procedure Act. He contended, among other things, that he had been denied the right to appeal his 1961 convictions and that his pleas of guilty to the charges in the several indictments had been involuntarily made. Judge Harlan, after a hearing on May 5, 1964, found that Hartley had attempted to mail his notice of appeal on May 26, 1961, but because of circumstances beyond his control was unable to mail it until May 31, 1961, and that therefore he was entitled to a delayed appeal since he had done all that he could have to note the appeal. Because he had granted the delayed appeal, Judge Harlan did not make any factual findings or conclusions of law in regard to the other post conviction contentions of Hartley, notwithstanding the fact that testimony pertaining to them had been taken before him. Instead, Judge Harlan, in his memorandum opinion, stated '* * * [I] will grant Petitioner leave to file a delayed appeal so that the Court of Appeals may determine whether the guilty plea was voluntary.'

On this appeal from the judgments in the criminal cases the appellant raises only one question, the same one which Judge Harlan suggested we answer, i. e., whether the guilty pleas were voluntarily made. Unfortunately, both Judge Harlan and the appellant have misconceived the powers of this Court, for our powers are limited to appellate review and we cannot invade the province of the nisi prius courts by making an original factual finding. State ex rel. Harris v. Warden, 195 Md. 702, 72 A.2d 713 (1950); Burke v. Burke, 204 Md. 637, 106 A.2d 59 (1954); and see the many cases collected in 7 M.L.E. Courts § 72; see also Maryland Rule 885. Therefore, although the transcript of testimony taken in the post conviction proceeding was included in the record forwarded to us in this case, we are unable to make any determination in regard to the voluntariness of the guilty pleas.

This brings us to consideration of a motion filed by the State, the appellee in this case, entitled a 'Motion to correct record and to strike portions of the appendix to appellant's brief.' The motion requests us to delete from the record in this appeal all that relates to the collateral post conviction proceeding (including the transcript of testimony taken therein) and to strike from the appendix to appellant's brief the printed copy of the transcript of the post conviction hearing. Without discussing the reasons advanced by ...