Pratt v. Warden, Md. Penitentiary
| Decision Date | 09 December 1969 |
| Docket Number | No. 82,82 |
| Citation | 259 A.2d 580,8 Md.App. 274 |
| Parties | Joseph PRATT v. WARDEN, MARYLAND PENITENTIARY. Post Conviction |
| Court | Court of Special Appeals of Maryland |
Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., for Baltimore City, for appellee.
Presented to MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Schowgurow v. State, 240 Md. 121, 213 A.2d 475, burst upon the administration
of criminal justice in Maryland on 11 October 1965. The proceeding before us indicates that the residual fallout from its holdings has not as yet been entirely dissipated. This application for leave to appeal from an order denying relief under post conviction procedures raises questions with regard to the Schowgurow decision in a posture[259 A.2d 582] not heretofore presented on appellate review. Schowgurow was decided between the date of the judgments against the applicant and the date of the expiration of the time for the filing of a direct appeal therefrom, but no appeal was taken. He instituted a proceeding to set aside the sentences almost three years after the judgments were rendered by filing a petition under post conviction procedures collaterally attacking the convictions. One of the allegations of error was that the indictments under which the convictions were obtained were null and void under the Schowgurow decision. The first question is whether Schowgurow was applicable. If it was, then further inquiry is required to determine whether the applicant, in the circumstances, waived the right to elect to have the indictments voided.
The precise holdings in Schowgurow were that the provisions of the Maryland Constitution requiring a demonstration of a belief in God as a qualification for service as a grand or petit juror were in violation of the Fourteenth Amendment, and that any requirement of an oath as to such belief, or inquiry of prospective jurors, oral or written, as to whether they believe in a Supreme Being, was unconstitutional. The Court found that Schowgurow's challenges to the composition of the grand jury which indicted him and the petit jury which tried him should have been upheld, and his motions to dismiss the indictment and to dismiss the petit jury panel should have been granted. 240 Md. at 131, 213 A.2d 475. The Court also determined the applicability of its holdings. '(T)he legal principle enunciated in this case shall not apply retroactively It is clear that the applicant's convictions had not become final before Schowgurow; direct appeal was still available to him when Schowgurow was decided. Therefor, the legal principle enunciated in that decision was available to him.
except for convictions which have not become final before rendition of this opinion.' 240 Md. at 132, 213 A.2d at 482. A conviction is final within the meaning of Schowgurow when: (1) a judgment of conviction has been rendered; and (2) the availability for appeal has been exhausted; and (3) if an appeal had been taken, when the time for petitioning for certiorari to the Supreme Court has elapsed. Brady v. Warden, 2 Md.App. 146, 148, 233 A.2d 378. It is immaterial, an appeal having been taken, whether or not the defendant petitioned for certiorari; the test is not whether the case is final as of the date he seeks relief, but whether his conviction was final at the time the Schowgurow decision was rendered. Terry v. Warden, 243 Md. 610, 612, 221 A.2d 691. See Ramsey v. Warden, 1 Md.App. 43, 226 A.2d 809; Mauldin v. Warden, 1 Md.App. 38, 226 A.2d 810. Of course if no direct appeal is noted, the conviction becomes final at the time the availability for appeal has been exhausted, there then being no right to petition for certiorari.
On 27 July 1965 ten indictments were returned against the applicant charging various crimes against the person and property of seven victims. At a court trial in the Criminal Court of Baltimore, he was convicted, on 30 September 1965, of three offenses of robbery with a deadly weapon, of three offenses of robbery, of attempted robbery with a deadly weapon, of two offenses of assault with intent to murder and of carrying a deadly weapon. On the same date he was sentenced to 20 years on one of the robbery with a deadly weapon convictions, and to 10 years on another to run consecutively with the 20 year sentence. Sentences imposed on the remaining convictions were designated to run concurrently with the 10 year sentence.
There is no claim that the grand jury which returned the indictments had not been selected in accordance with what was then and had been the law of this State or that any member thereof was not competent and qualified to serve. The effect of Schowgurow on the applicant's convictions, not having become final, was that the defect in the method of selection of the grand jury was error. But it was error which did not render the indictments inoperative unless the applicant validly exercised his right to attack them. It was error which gave him the right, by timely challenge, to have the indictments quashed, but was error which he could knowingly and intelligently waive. Smith v. State, 240 Md. 464, 468-469, 214 A.2d 563.
The applicant did not appeal directly from the judgments. It was not until 24 July 1968 that he attacked them. He instituted a proceeding to set aside the sentences, Maryland Code, Art. 27, § 645A, by filing a petition in the Criminal Court of Baltimore, Maryland, Rules BK40 and 41. Counsel was appointed to represent him, Rule BK42, the State responded to the petition by answer, Rule BK43, a hearing was held, Rule BK44, and the court made an order denying relief, which was accompanied by a memorandum giving its reasons therefor, Rule BK45. Application for leave to appeal from the order was properly filed, Rule BK46, and we have before us the question whether to grant or deny the application, Code, Art. 27, § 645-I; Rule BK47.
The applicant's petition for relief alleged that three errors were made in his trial:
1) He was denied the right to counsel during interrogation;
2) His arrest was illegal;
3) The indictments were null and void under the Schowgurow decision.
At the hearing he apparently presented a fourth allegation of error that his trial counsel did not advise him of his right to appeal.
In denying relief, the hearing judge noted that at the hearing, the applicant's trial counsel testified that he had informed the applicant, both before and after the trial, of his right 'to take an appeal' and file a motion for a new trial, and that the applicant told his counsel 'that he understood what 'to appeal' meant but thought it wise not to, since his sentence was thirty years and his offenses, considered together carried a possible term of one hundred years.' The judge also noted that the applicant testified that counsel's assertions were correct-'that he had been advised as to his right to appeal and file a motion for a new trial, but decided not to expose himself to a greater sentence.' On this testimony the judge below could properly decide that the fourth allegation was factually incorrect and was without merit. Thus the fourth allegation afforded no ground for relief.
In the light of the testimony regarding a direct appeal, the judge determined that the first three allegations were without merit. He reached this conclusion by invoking Rule BK48. He found that the allegations had been 'knowingly, intelligently and effectively waived'; that the applicant 'failed to show any special circumstances as to why he had not raised these contentions previously'; and that 'hence he failed to rebut the presumption' of the waiver of them.
Rule BK48 provides, inter alia:
'a. An allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation * * * on direct appeal (whether or not the petitioner actually took such an appeal), * * * unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.
b. When an allegation of error could have been made by a petitioner * * * on direct appeal (whether or not the petitioner actually took such an appeal) * * * but was not in fact so made, there shall be a rebuttable presumption that the petitioner intelligently and knowingly failed to make such allegation.'
The Rule in this form was amendatory and supplemental to the Rule as it had been formerly adopted. In its amended form it was approved and adopted by the Court of Appeals by its order of 23 June 1967 which provided that it 'shall take effect on 1 September 1967, and shall apply to all proceedings thereafter commenced and, as far as practicable, to all proceedings then pending.' We think it clear that 'proceedings' means those proceedings under 'Subtitle BK Post Conviction Procedure,' and so the Rule as amended would apply to the applicant's petition for relief and could be invoked in determining it. In any event its provisions as amended were exactly the same in all material aspects as the provisions of Code, Art. 27, § 645A(c) which is the codification of Chapter 442, Acts 1965, effective, by § 3 thereof, 1 June 1965, prior to the trial of the applicant. We held these provisions took be constitutional in Jones v. Warden, 2 Md.App. 343, 234 A.2d 472.
Section 645A(d) provides that no allegation of error shall be deemed to have been waived 'where * * * subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States of of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied...
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