Roberts v. Warden of Md. Penitentiary

• Decision Date: 20 November 1959
• Docket Number: No. 24,24
• Citation: 155 A.2d 891,221 Md. 576
• Parties: Robert ROBERTS v. WARDEN OF THE MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 576

221 Md. 576

155 A.2d 891

Robert ROBERTS v. WARDEN OF THE MARYLAND PENITENTIARY.

Post Conviction No. 24.

Court of Appeals of Maryland.

Nov. 20, 1959.

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

PRESCOTT, Judge.

This is the third attempt of Robert Roberts to obtain relief in this Court from sentences imposed by the Criminal Court of Baltimore. This is an application for leave to appeal under the Uniform Post Conviction Procedure Act, Code (1959 Supp.), Art. 27, Secs. 645A-645J; his others were applications to appeal from denials of petitions for writs of habeas corpus, and are reported as Roberts v. Warden, 206 Md. 246, 111 A.2d 597, and by the same title in 214 Md. 611, 135 A.2d 446.

While he was convicted of several crimes, all of which are set out in his first habeas corpus appeal, it will only be necessary to mention two of them here. He was charged with assault with intent to murder and simple assault in two indictments and plead guilty to the charge of simple assault in each case. He was represented by an attorney of his own selection, and after the pleas of guilty were entered, the court imposed consecutive sentences of twenty years in each of the cases.

The applicant's main contention here is set out in detail in the opinion filed in his first appeal, and it has been advanced by him in all of his subsequent ramifications in trying to obtain relief. In substance, it is that that he was charged with assault with intent to murder and simple assault; that he plead guilty to simple assault, which is necessarily a lesser crime than assault with intent to murder; that Code (1951), Art. 27, Sec. 14, provided a maximum penalty of fifteen years' confinement for assault with intent to murder, yet he received twenty years for each simple assault, which rendered the sentences illegal. The Court, in the first appeal, ruled that he was not entitled to have this contention considered in that habeas copus proceeding; because, even if it were assumed that such a contention could be considered in the habeas corpus case, it was prematurely advanced as the applicant had not served so much of his sentences as was concededly legal. In dismissing his appeal on February 10, 1955, the Court pointed out that the petitioner could seek executive clemency or apply to the trial court to correct the sentences, and, if they were illegal and the court refused to correct them, its refusal would constitute action which would be appealable to this Court.

Thereafter on March 3, 1957, petitioner wrote a letter, designated by him as a 'motion,' to Judge Carter, the trial judge, stating that all of the legally imposed sentences had then been served, and 'on the advice of the Court of Appeals to seek redress by and through you first' he desired the 'striking out' of certain of the sentences he deemed 'void' and a reduction in the sentence of the other assault case. Judge Carter treated the letter as a motion, and, on March 8, 1957, denied the same in a letter to the applicant in these terms: 'Your inquiry is construed as a request for the correction of an illegal sentence under the criminal rules of practice and procedure. In my opinion, the sentences imposed were not illegal, and your request is hereby denied.' The applicant was further informed that his letter and a copy of the judge's were being forwarded to the clerk of the Criminal Court to be filed in his case. This denial of his motion was appealable as had been pointed out to him by this Court.

However, instead of appealing, on March 29, 1957, he filed another petition for a writ of habeas corpus which was denied by Judge Byrnes, and leave to appeal from such denial was refused by us in 214 Md. 611, 135 A.2d 446, and certiorari denied by the Supreme Court on March 3, 1958. Roberts v. Pepersack, 355 U.S. 966, 78 S.Ct. 556, 2 L.Ed.2d 540.

The record, next, reveals a lengthy motion under former Rule 10(a), (now Rule 744a) dated April 14, 1958, addressed by the petitioner to Judge Carter, and a letter, dated June 8, 1958, termed by the petitioner as a 'Motion...