Sample v. Warden, Md. Penitentiary

Decision Date18 February 1969
Docket NumberNo. 89,89
Citation6 Md.App. 103,250 A.2d 269
PartiesAlexander SAMPLE v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
CourtCourt of Special Appeals of Maryland

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

This is an application for leave to appeal from an order filed on July 18, 1968 by Judge Charles D. Harris, sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

The applicant was tried and convicted of murder in the first degree on July 10, 1963. A motion for a new trial was heard and denied on December 17, 1963. On January 2, 1964 the applicant was sentenced to confinement in the Maryland Penitentiary for the period of his natural life, dating from October 22, 1962. On the same date, the applicant filed an appeal to the Court of Appeals of Maryland which raised only one issue, dealing with sufficiency of evidence. The Court of Appeals, on July 8, 1964, affirmed the lower court. Sample v. State, 235 Md. 554, 201 A.2d 797 (1964).

On July 17, 1964, applicant filed a one-page handwritten petition seeking relief under the Uniform Post Conviction Procedure Act. In that petition the following contentions were made:

1. Petitioner's arrest was illegal.

2. Petitioner was coerced into signing a statement.

3. Petitioner was not represented by counsel at the preliminary hearing nor at his arraignment.

4. Trial counsel advised petitioner to testify according to the contents of the statement petitioner had signed under pressure by the police.

The hearing on the petition was held on March 18, 1965 before Judge Cardin, at which hearing petitioner was represented by able and experienced counsel. In his opinion and order filed April 22, 1965, denying relief, Judge Cardin stated that petitioner had raised the following contentions:

1. That the verdict of the trial court was against the weight and sufficiency of the evidence.

2. That counsel did not represent petitioner adequately.

3. That certain witnesses perjured themselves and did not fully disclose the truth.

Judge Cardin disposed of these latter contentions in his opinion. However, contrary to Maryland Rule BK45, no mention is made in the opinion of the contentions numbered one, two, and three which were set out in the original petition. 1 The applicant filed no application for leave to appeal from the order of Judge Cardin; consequently, the order was not reviewed. 2

On March 12, 1968, the applicant filed a second petition under the Act, raising the following contentions:

1. That petitioner was illegally arrested.

2. That the confession given by petitioner was not given freely, knowingly, or intelligently.

3. That the police took petitioner to the scene of the alleged crime instead of the police station.

4. That petitioner was indicted by a grand jury that was not a true and honest cross section of the community.

5. That petitioner's trial counsel was incapable of effective representation as a conflict of interest resulted from his representation of petitioner's co-defendant.

6. That petitioner's counsel was incompetent.

Judge Harris, dismissing the petition without a hearing, found the applicant's sixth contention to have been 'finally litigated and found to be without merit in the post conviction application previously denied by Judge Cardin.' Our view is that this contention cannot be deemed to have been finally litigated under the provisions of Md.Code, Art. 27, § 654A (b) as there has been no decision on the merits thereof by the Court of Appeals or this Court either upon direct appeal or upon consideration of an application for leave to appeal under post conviction proceedings, or by a court of original jurisdiction upon a petition for a writ of habeas corpus or writ of error coram nobis.

Neither has the applicant waived the allegation. An allegation of error is to be deemed waived when a petitioner could have made, but knowingly and intelligently failed to make the allegation before trail, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by the petitioner, in a prior petition under this subtitle, or in any other proceeding actually in stituated by said petitioner, unless the failure to make the allegation is excused because of special circumstances. Md.Code, Art. 27, § 645A (c). The allegation which we are now considering, viz., incompetence of the applicant's trial counsel, clearly could not have been raised before trial. Although it could have been raised at trial, it does not have to be raised at trial in order to be available as a ground for post conviction relief. Galloway v. Warden, 2 Md.App. 467, 469, 470, 235 A.2d 309 (1967) (by implication); Waller v. Director, 244 Md. 229, 231-232, 223 A.2d 265 (1966); Hyde v. Warden, 235 Md. 641, 646, 202 A.2d 382 (1964). Thus it is evidence that failure to raise the contention at trial does not result in its waiver. Although the applicant did prosecute a direct appeal from his conviction and failed to raise the issue of incompetence of counsel, such failure does not amount to waiver, for this Court has not entertained such issue on direct appeal where it was not raised below. Hammer v. State, 3 Md.App. 96, 238 A.2d 567 (1968); Harris v. State, 2 Md.App. 408, 409, 234 A.2d 781 (1967). The applicant has not instituted any habeas corpus or coram nobis proceeding. He has not failed to raise the contention in his prior post conviction petition. He has not actually instituted any other proceeding regarding his conviction.

In Galloway v. Warden, supra, the applicant there was convicted of rape and other crimes. He prosecuted no direct appeal. The applicant's first petition under the Uniform Post Conviction Procedure Act was denied in 1959 after an evidentiary hearing, and his application for leave to appeal was likewise denied. Thereafter, the applicant filed his second petition under the Act, which was denied in 1966 after an evidentiary hearing, no application for leave to appeal being filed from that decision. The applicant's third petition was denied in 1967, again after an evidentiary hearing, on the grounds that all contentions had been either finally litigated or waived in prior proceedings. The allegation of incompetent counsel was made in each of the three proceedings. However, in the time between the first denial of leave to appeal in 1960 and the hearing of the second petition in 1966, the standard for determining the question of competence of counsel had been changed. 3 In considering Galloway's application for leave to appeal from the denial of his third petition, this Court stated, 2 Md.App. at. p. 469, 235 A.2d at p. 310, that:

'While...

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6 cases
  • Curtis v. State
    • United States
    • Maryland Court of Appeals
    • December 18, 1978
    ...decisions of the Court of Special Appeals. See, e. g., State v. Merchant, 10 Md.App. 545, 550, 271 A.2d 752 (1970); Sample v. Warden, 6 Md.App. 103, 107, 250 A.2d 269 (1969).5 However, in other opinions the Court of Special Appeals has adopted the same interpretation of § 645A(c) as it did ......
  • Diamond v. U.S. Bank, N.A.
    • United States
    • U.S. District Court — District of Maryland
    • May 11, 2020
  • State v. Merchant, 81
    • United States
    • Court of Special Appeals of Maryland
    • December 28, 1970
    ...from raising the issue of incompetency of counsel because he failed to raise the issue at trial or pursue it on appeal. Sample v. Warden, 6 Md.App. 103, 107, 250 A.2d 269; O'Connor v. Warden, 6 Md.App. 590, 594, 253 A.2d 434. Therefore, this petitioner is entitled to have this allegation Th......
  • O'Connor v. Warden, Md. Penitentiary
    • United States
    • Court of Special Appeals of Maryland
    • April 25, 1969
    ...Act. In other words, the failure to raise the contention at the trial or on appeal does not result in its waiver. See Sample v. Warden, 6 Md.App. 103, 250 A.2d 269, and cases there Nor is the scope of the contention any longer limited under the Act to allegations of fraud or collusion on th......
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