Wampler v. Warden of Md. Penitentiary

• Decision Date: 04 June 1963
• Docket Number: No. 44,44
• Citation: 231 Md. 639,191 A.2d 594
• Court: Maryland Court of Appeals
• Parties: Ernest WAMPLER v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction

Page 639

231 Md. 639

191 A.2d 594

Ernest WAMPLER v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 44.

Court of Appeals of Maryland.

June 4, 1963.

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

BRUNE, Chief Judge.

The applicant, Wampler, seeks leave to appeal from the denial of his application for relief under the Post Conviction Procedure Act. He was convicted on April 17, 1962, in the Circuit Court for Montgomery County on charges of an unnatural and perverted sexual practice ¹ with a female and of assault and battery. He was tried before court, sitting without a jury, and was represented by trial counsel of his own selection. He was sentenced to ten years' imprisonment.

In his original petition, which was filed on June 28, 1962, Wampler alleged as grounds for relief: (1) denial of a jury trial; (2) prejudice on the part of the trial judge; (3) double jeopardy; (4) denial of the right to have witnesses on his behalf; (5) denial of an opportunity to testify for himself; and (6) incompetence of his trial counsel (a) in not raising the issue of double jeopardy, (b) in advising him not to testify, and (c) in 'not saying a word during the trial.' His amended petition (a rather jumbled, confused and confusing document) filed September 27, 1962, added to or amplified his original petition by alleging as grounds for relief: (7) denial of his constitutional rights to a fair and impartial trial through the incompetence of his trial counsel (a) in not objecting to the indictment for various alleged defects and (b) in not raising the contention that the defendant could not be convicted on the uncorroborated testimony of an accomplice (which seems largely a repetition of Item 6(a)); (8) that a general verdict of guilty under both counts of the indictment, one for sodomy and the other for assault and battery, violated his constitutional rights and indicated (a) prejudice of the trial court and (b) incompetence of counsel for failing to raise this contention; and (9) a new complaint of incompetence against his trial counsel for not having entered an appeal.

The opinion of the trial court filed after the Post Conviction hearing states these contentions generally, but deals specifically with only two of them. The opinion considers and finds untenable the contention based upon trial counsel's failure to enter an appeal on behalf of the petitioner, and finds that there is no basis whatsoever for the claim of prejudice on the part of the judge who tried Wampler's criminal case. It then states in general terms that the court finds from the record of the proceedings and from the testimony in this case that there was no error which had not been previously and finally litigated or waived and that no constitutional rights have been denied the petitioner. Then follows the order dismissing the petition.

These general findings expressed merely in the general language of the statute fall considerably short of full compliance with Maryland Rule BK 45 b. Brigmon v. Warden, 221 Md. 622, 157 A.2d 460; Ellinger v. Warden, 221 Md. 628, 157 A.2d 616; Cook v. Warden, 229 Md. 636, 184 A.2d 620. See also Whitley v. Warden, 222 Md. 608, 612, 158 A.2d 905. Despite the incompleteness of the opinion of the trial court with regard to a number of contentions dismissed by the general conclusion above stated, we have examined these contentions at length and have found them to be insufficient. To avoid useless further consideration thereof, we shall dispose of them without remand. Some of them may well have been abandoned at the hearing (cf. Ellinger v. Warden, 224 Md. 648, 167 A.2d 334), and others may have collapsed for want of any evidence to support them. In any such situation, a statement to that effect would be of material assistance to this Court.

Many of the applicant's contentions have a double aspect, in that on the one hand they assert that his conviction was in violation of some real or asserted rule of law, and on the other, that it was due to the alleged incompetence of his trial counsel in not raising these propositions.

The Post Conviction Procedure Act itself states, and this Court has repeatedly applied the provision, that the Act is not a substitute for a remedy available on appeal. As a matter of substantive law, the applicant's claim of a denial of a jury trial, of the rights to call witnesses for him and to testify on his own behalf, his claim of double jeopardy, and his claim of inconsistency of the findings on the two counts of the indictment (Items 1, 3, 4, 5, and 8) could all clearly have been raised on appeal, if properly preserved in the trial court. So could any objections to the indictment or claim of variance between the offense charged and the offense proved, and so it would seem, could any claim of prejudice on the part of the trial judge; but we shall not concern ourselves further with the flimsy allegations of that claim since the trial court in these proceedings expressly found it to be without any foundation. The applicant's contention based upon the rule that a defendant cannot properly be convicted on the uncorroborated testimony of an accomplice (see Items 6(a) and 7(b)), seems to be asserted in his petitions as bearing on the competence of his counsel, or lack thereof, in failing to argue the point. Insofar as it is otherwise argued as a ground for relief, it is simploy another question which, if properly preserved, clearly could have been raised on appeal and hence is not a ground for Post Conviction relief.

We find the applicant's contentions not already held groundless to be wholly lacking in substance, even if they were properly to be considered as grounds for relief under the Post Conviction Procedure Act either intrinsically or as bearing upon the claimed denial of due process or equal protection through the asserted incompetence of counsel. When such contentions overlap, we shall consider them together insofar as factual questions are concerned.

We may note at this point that the applicant's claim that he was denied the right to summon witnesses at his trial is a bald allegation not supported by any specific statement whatever as to either the identity of the unsummoned witnesses or what their testimony would have shown. Such bald claims we have repeatedly held insufficient, and there is nothing in the applicant's lengthy complaints to give substance to these assertions. He claims in his argument filed here that his wife and pastor should have been summoned to testify at the Post Conviction hearing about conversations with his trial counsel after the original trial and conviction with regard to a possible appeal. Why they were not summoned to testify at this hearing is not stated; but so far as the applicant's claims disclose, the testimony of these persons would have been of no aid to him. He says that it would have shown that the applicant's trial counsel told them that he would not take the appeal and that he discussed the expense of an appeal--evidently on the basis of the applicant not being indigent. Trial counsel's testimony at the Post Conviction hearing (referred to below) was to the same effect as to conversations with the applicant's wife. Counsel added that the wife was unwilling to join in raising money for an appeal at the risk of jeopardizing the equity in property which she and the applicant owned.

Next, it is our opinion that the applicant's attacks on the indictment are clearly unsupportable. His claim that the first count charged the wrong offense (sodomy, instead of perverted sexual practice) is completely negatived by the copy of the first count charging perverted sexual practice which is set out in his own amended petition. His claim that the first count was defective because it did not include a charge of assault is mere nonsense, and his claim that the two counts, the second charging assault, could not properly be joined in the same indictment is no better. The sufficiency of an indictment is not properly open on Post Conviction.

Because of the paucity of the record as transmitted to us, we have caused it to be supplemented in two respects: first, by obtaining a photostatic copy of the record of the People's Court with regard to the preliminary hearing; and second, since the testimony at the Post Conviction proceedings had not been transcribed, by having parts of the testimony of the applicant's trial counsel dictated and transcribed.

We have already noted that the applicant's claim of double jeopardy, if it had any foundation, is one which could have been raised on direct appeal and not in Post Conviction proceedings. Preston v. Warden, 225 Md. 628, 169 A.2d 407, cert. den. 366 U.S. 974, 81 S.Ct. 1940, 6 L.Ed.2d 1262; Roberts v. Warden, 223 Md. 635, 161 A.2d 668. The applicant urges that it is a constitutional doctrine. Under the law of this State it is not, though the rule against double jeopardy exists here as a matter of common law. Robb v. State, 190 Md. 641, 60 A.2d 211; Johnson v. State, 191 Md. 447, 62 A.2d 249. The provision of the Fifth Amendment to the Federal Constitution against double jeopardy has not up to this time been held applicable against the states under the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.

On the facts of this case, the rule against double jeopardy has no application in any event. The applicant's claim that it does rests upon the fact that the charge against him of a perverted sexual practice was dismissed after a preliminary hearing before a judge of the People's Court of Montgomery County in January, 1962 (the applicant says December, 1961), ² and the applicant's subsequent indictment and trial for the same offense. He asserts that he was found not guilty in the People's Court. Such is not the fact.

A warrant for Wampler's arrest was issued on November 4, 1961, he was arrested and he asked for a preliminary hearing. A...