Slack v. Warden of Md. Penitentiary

• Decision Date: 20 May 1960
• Docket Number: No. 91,91
• Citation: 160 A.2d 924,222 Md. 626
• Parties: Bennie Lee SLACK v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 626

222 Md. 626

160 A.2d 924

Bennie Lee SLACK v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 91.

Court of Appeals of Maryland.

May 20, 1960.

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

BRUNE, Chief Judge.

Bennie Lee Slack applies for leave to appeal from an order of Judge Pugh in the Circuit Court for Montgomery County denying his application for relief under the Post Conviction Procedure Act.

Slack was indicted in the above Court on a charge of murder, to which he originally pleaded not guilty. His trial before two Judges of that Court and a jury began on April 30, 1956. Slack was represented by court appointed counsel--a thoroughly competent and experienced trial lawyer, who was a former State's Attorney. After the trial had been in progress for about two hours, the State's Attorney informed defense counsel that the State would accept a plea of guilty of second degree murder and would abandon the charge of first degree murder. A short recess was taken during which defense counsel conferred with Slack about the matter (and apparently with Slack's pastor also). Following the conference, Slack's plea of not guilty was withdrawn and a plea of guilty of second degree murder was entered. Slack was then sentenced to fifteen years' imprisonment on this charge.

Slack was also indicted on a charge of attempting to break jail. He pleaded guilty on this charge and was sentenced to five years' imprisonment therefor, this sentence to run consecutively to the sentence on the murder charge. Slack was represented by the same counsel in both cases. No appeal was sought to be taken in either case.

Slack's application under the Post Conviction Procedure Act alleges that: (a) he was not properly represented by counsel; (b) he was misinformed and misled as to penalties; (c) he was influenced to plead guilty to a charge which the transcript of his trial would prove to be unjust; (d) he was tried by a prejudiced judge; and (e) witnesses were not summoned to testify in his defense. His testimony at his hearing before Judge Pugh supported, or tended to support grounds (a), (b), (c) and (e), but he offered no testimony in support of (d).

Counsel other than his trial counsel was appointed to represent Slack at the Post Conviction hearing, and Slack complains of him, too. The basis of these complaints is that counsel did not summon witnesses to testify at the Post Conviction hearing and did not read the transcript of the testimony at Slack's trial on the murder charge which had been taken up to the time of the entry of the plea of guilty of murder in the second degree.

The State contends that questions as to guilt or innocence were finally litigated or were waived in the original criminal proceedings. As to the jail break case, Slack conceded his guilt at the Post Conviction hearing and admitted that he pleaded guilty to that charge of his own volition; but he claimed that the imposition of a consecutive sentence, instead of one concurrent with the sentence on the murder charge, was in violation of an understanding with the State's Attorney effected through counsel.

A large part of Slack's petition and of his testimony was devoted to the contention that he was not guilty of the charge of second degree murder to which he pleaded guilty, and that he was not even guilty of manslaughter or that, at most, his offense was involuntary manslaughter. ¹ It is firmly established that questions of guilt or innocence may not be retried under the Post Conviction Procedure Act. It is not a substitute for a motion for a new trial or an appeal. Code (1957, 1959 Cum.Supp.), Art. 27, Sec. 645A(b); Barbee v. Warden, 220 Md. 647, 151 A.2d 167; Banks v. Warden, 220 Md. 652, 151 A.2d 897; and this rule applies where the defendant has pleaded guilty to the charges against him, Dobson v. Warden, 220 Md. 689, 154 A.2d 921, certiorari denied 80 S.Ct. 867. So far as the question of guilt or innocence is concerned, Slack could therefore not have benefited from the summoning of witnesses at his Post Conviction Procedure Act hearing, and it would have been an idle gesture to summon them to testify on that question. Slack's principal claim as to innocence is based upon the contention that he was so drunk when he shot and killed his father that he did not know what he was doing or even that he had shot him, and that the actual discharge of the gun was accidental, due to his stumbling.

Slack was eighteen years old at the time of the shooting, and his trial occurred not long afterwards. He asserts that his counsel misinformed him as to the length of the sentences which might be imposed for second degree murder and for manslaughter and told him that the penalty for manslaughter was from one to twenty years and for second degree murder from five to eighteen years. Such are the penalties for second degree murder under Code (1957), Art. 27, § 414 (§ 501 of the 1951 Code). The maximum penalty for manslaughter under § 387 of Art. 27 of the 1957 Code (§ 454 of the 1951 Code) is ten years' imprisonment. Slack's counsel at his Post Conviction hearing stated to the Court that he could not 'offer any facts or law to support this petition.' He elaborated this statement by saying that he had talked...