Spencer v. Warden of Md. House of Correction

• Decision Date: 19 February 1960
• Docket Number: No. 77,77
• Citation: 222 Md. 582,158 A.2d 317
• Parties: Everett Edmon SPENCER v. WARDEN OF THE MARYLAND HOUSE OF CORRECTION. Post Conviction
• Court: Maryland Court of Appeals

Page 582

222 Md. 582

158 A.2d 317

Everett Edmon SPENCER v. WARDEN OF THE MARYLAND HOUSE OF CORRECTION.

Post Conviction No. 77.

Court of Appeals of Maryland.

Feb. 19, 1960.

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

HAMMOND, Judge.

Everett Edmon Spencer withdrew his not guilty plea and, through counsel pleaded guilty to larceny at his trial on February 16, 1959. After a pre-sentence investigation by the Department of Parole and Probation, the court sentenced him to two years' confinement in the Maryland House of Correction.

The following June Spencer filed a petition for relief under the Post Conviction Procedure Act. Code Supp.1959, art. 27, § 645A et seq. Counsel was appointed to represent him and a hearing, at which petitioner was not present, was held before Judge Marbury, who dismissed the petition. Petitioner seeks leave to appeal.

Spencer contends generally that he was not guilty and that he did not have a fair trial. The first contention does not make a case for post conviction review, State v. D'Onofrio, 221 Md. 20, 155 A.2d 643, and the latter is not supported by any specific averments of fact, which it must be if it is to be effective. Niblett v. Warden, Md., 155 A.2d 659.

Spencer made other allegations which can be summarized and disposed of in this wise:

(1) That his lawyer pleaded him guilty and had him tried by a judge when he wanted to plead not guilty and have a jury trial. He alleges in his brief on appeal, although not in the original petition, that he complained of this to the lawyer but he does not say that he made the complaint known to the court. Accordingly, the point cannot be raised now. Dobson v. Warden, 220 Md. 689, 154 A.2d 921; Banks v. State, 203 Md. 488, 102 A.2d 267.

(2) That his sentence was too harsh, which was attributable to his counsel's ineptitude and lack of diligence. His sentence is well within the 15 year maximum (Code (1957), Art. 27, Sec. 340, although the record does not show the value of the goods stolen, but no point is made of this by petitioner) and was imposed after a pre-sentence investigation. The alleged shortcomings or wrong guesses of counsel are not subjects for post conviction review. Banks v. Warden, Md., 155 A.2d 697.

The most serious claim Spencer makes in his petition is 'that a letter asking for a new trial was not received by the Judge.' He amplifies this in his brief on appeal by saying (in speaking of the night of the day of his trial): 'I wrote the Hon. Judge Fletcher that night and asked for a new trial or to appeal my case--but my letter was found torn up in the Warden's trash can.' Ordinarily, the sufficiency of an allegation of a petitioner that there had been a denial of an appeal...