Montgomery v. Warden, Md. House of Correction

• Decision Date: 21 February 1967
• Docket Number: No. 43,43
• Citation: 226 A.2d 687,1 Md.App. 30
• Parties: Johnny MONTGOMERY v. WARDEN, MARYLAND HOUSE OF CORRECTION. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 30

1 Md.App. 30

226 A.2d 687

Johnny MONTGOMERY v. WARDEN, MARYLAND HOUSE OF CORRECTION.

Post Conviction No. 43.

Court of Special Appeals of Maryland.

Feb. 21, 1967.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

This is an application for leave to appeal from an order of April 13, 1966, of Judge J. Harold Grady, sitting in the Criminal Court of Baltimore, denying relief sought by a first petition for review under the Uniform Post Conviction Procedure Act.

On March 19, 1965, applicant was convicted in the Municipal Court of Baltimore City, Criminal Division, Judge Joseph G. Finnerty, presiding, of three charges of assault and a charge of malicious destruction of property. He was sentenced to one year in each case, the sentences to run consecutively. Applicant did not appeal from the judgments and sentences.

By applicant's petition, filed June 30, 1965, and at the post conviction hearing, he made contentions in substance as follows:

1) He was not advised of his right to appeal.

2) He requested the service of legal counsel and the request was denied.

3) He was not advised of his right to counsel.

In addition, the petition alleges in general terms that his arrest was illegal, that the charges were placed by the police over the objections of a complaining witness, that evidence was 'erroneously furnished', and more specifically that the initial arrest was caused by a completely unreliable witness motivated by 'jealousy, contempt, and a complete lack of knowledge as to the law and its consequences'. Judge Grady states that these allegations were not pursued at the hearing and in any event they are without merit. Assuming the arrest to be illegal, there is no allegation by applicant that any fruits were seized as a result thereof and used against him. The mere fact of an illegal arrest is not a ground for relief. Brown v. Warden, 240 Md. 710, 213 A.2d 750 (1965); Bryant v. Warden, 235 Md. 658, 202 A.2d 721 (1964). The remaining allegations not pursued by applicant go to the weight and sufficiency of the evidence and cannot be raised under post conviction. Lee v. Warden, 240 Md. 721, 214 A.2d 142 (1965); Carney v. Warden, 235 Md. 676, 202 A.2d 592 (1964).

With regard to the first contention, failure to inform a person convicted of a criminal offense of his rights with regard to appeal, does not constitute a denial of due process of law and is no basis for relief under the Uniform Post Conviction Procedure Act. Duckett v. Warden, 230 Md. 621, 185 A.2d 712; Dorris v. Warden, 222 Md. 586, 158 A.2d 105.

There remain the second and third contentions which shall be considered together.

The petition is not clear as to exactly when or under what circumstances the applicant alleges he requested and was denied the services of legal counsel or as to exactly when or under what circumstances there was failure to advise him of his right to counsel. If it is assumed, as appears from the record, that the request and denial of counsel was upon or after his arrest prior to trial, then this, in itself, is not a ground for post conviction relief. There being no allegation that a confession was admitted into evidence at his trial, the circumstances are outside of Excobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Bunn v. Warden, 242 Md. 399, 219 A.2d 37. Nor is lack of counsel at arrest a ground for relief. Walls v. Warden, 242 Md. 401, 219 A.2d 6. The contention in the petition that he was not advised of his right to counsel, considered in the light of what may be most favorable to the applicant, would indicate that he was not so advised at his trial. While we do not have the transcript of the hearing before us, the hearing judge states that the applicant testified that the trial judge at no time mentioned to him anything about the services of an attorney but did advise him of his right to a jury trial which he refused because he thought that 'time would be lighter'. There is nothing before us to show that he asked for counsel at trial and was denied the request.

Contrary to applicant's testimony that the tril judge did not advise him of his right to counsel are the docket entries.

There are certified copies of the docket entries included in the record of this case. The entries under 'Judge's Signature and Remarks' with respect to each of Arrest Register numbers WD 66262 and WD 66264 are identical, reading as follows:

'Joseph G. Finnerty

Defendant advised or right to counsel. (sic)

Elected to proceed without counsel.'

The entries under that heading with respect to each of Arrest Register numbers WD 66267 and WD 66268 are identical, reading as follows:

'Joseph G. Finnerty

Defendant advised of right to counsel

Elected to proceed without counsel.'

The hearing judge in the memorandum accompanying the order says,

'This Court, being aware of the great number of criminal trials which are conducted in the Municipal Court of Baltimore City, recognizes the difficulty of producing testimony relating to the petitioner's contention. Consequently, based on the presumed correctness of the Docket Entries, this Court finds as a fact that the petitioner was advised of his right to counsel and that he elected to proceed to trial without counsel, and denies the petitioner relief on this ground.'

He refers to Coleman v. State, 231 Md. 220, page 222, 189 A.2d 616, page 618, (1963) in which the Court of Appeals said,

'* * * this Court has held that a docket entry must be taken as true until corrected, and the proper court to correct an erroneous docket entry is the court in which the error occurred.'

However, the instant case pertains to constitutional matters of no import in Coleman.

In the case of Roberts v. State, 219 Md. 485, 150 A.2d 448, the docket entry was as follows:

'Traverser informed of his right to have Counsel appointed. Traverser in open Court freely waives right.'

The opinion of the Court of Appeals contains a quote from the transcript of the proceedings, page 488, 150 A.2d page 449:

'(The Court) 'Now we will take up the case of State v. Lloyd R. Roberts. Roberts, I asked you at the outset whether you had an attorney. You told me you didn't have one.'

(The Defendant) 'No Sir.'

(The Court) 'And you do not want one, is that correct?'

(The Defendant) 'Yes Sir.'

(The Court) 'Let the record show that plainly. * * *"

The Court found, page 488, 150 A.2d page 450, that '(t)he transcript clearly shows that there had been a previous discussion of the matter of counsel between the court and the defendant.'

The Court affirmed the judgment, holding that under Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, it is not constitutionally necessary that counsel for indigent defendants be appointed in all state prosecutions. It pointed out that at that time Betts had not been overruled and, on the contrary, had been recognized repeatedly in subsequent discussions of the Supreme Court; that the accused was regrettably familiar, through personal experience, with the conduct of criminal proceedings; that the charge was simple, being expressed in readily understandable terms in a brief information; that the defense was simple-an alibi; that although the judge felt the accused needed some mental treatment and directed he be sent to Patuxent Institution for examination, this meant 'emotional unbalance' rather than 'intellectual deficiency'. We do not find Roberts to be factually comparable to the instant case.

Of more significance, however, is that Betts was overruled prior to applicant's conviction. In Manning v. State, 237 Md. 349, pages 350, 351, 206 A.2d 653, page 564, the Court of Appeals said,

'On March 18, 1963, * * * the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, in which it in terms overruled Betts v. Brady and, in effect, made absolute the right of the accused in a serious state prosecution to have counsel for his defense.'

And after stating the pertinent parts of Maryland Rule 719, the Court said, page 353, 206 A.2d page 565,

'In Taylor v. State, 230 Md. 1, 185 A.2d 197, we held the requirements of Rule 719 to be mandatory and, therefore, required to be complied with irrespective of the type of plea entered or the lack of an affirmative showing of prejudice to the accused. We have no doubt that if Gideon controls to impose on the State the federal constitutional requirements of representation by a lawyer, the accused, unless he affirmatively and knowingly waives the right, must be represented by counsel, either privately secured or furnished by the State, in any case in which the possible punishment equals or exceeds * * * the punishments specified in Rule 719. Cf. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.'

It is noted that the provisions of Maryland Rule 719, as promulgated August 7, 1963, to conform with Gideon, are different from the provisions of former Maryland Rule 723 cited in Roberts. ¹

It is also noted that even at the time of the decision in Roberts, the Supreme Court...