Williams v. State
| Decision Date | 28 December 1981 |
| Docket Number | No. 102,102 |
| Citation | 292 Md. 201,438 A.2d 1301 |
| Parties | Edward H. WILLIAMS v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Louis P. Willemin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.
Michael A. Anselmi, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.
Argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
This case presents important questions concerning (1) the Court of Appeals' jurisdiction to review a case arising under the Post Conviction Procedure Act, Maryland Code , Art. 27, §§ 645A-645J, and (2) waiver of a criminal defendant's right to be present at every stage of his trial.
In December 1975, Edward H. Williams was convicted in the Criminal Court of Baltimore of second degree murder and assault with intent to murder. He received a thirty-year sentence on the murder conviction and a ten-year consecutive sentence on the assault with intent to murder conviction. The Court of Special Appeals thereafter affirmed the convictions and sentences in an unreported opinion.
The present proceedings began on October 24, 1979, when Williams filed a petition under the Post Conviction Procedure Act. In his petition as amended he contended, inter alia, that he was denied the right to be present at every stage of his trial because the jury voir dire was conducted at the bench in his absence. At the hearing on the post conviction petition, the transcript of the original trial was introduced, and both Williams and his original trial counsel testified. At the conclusion of the hearing, the post conviction trial court (Baylor, J.) found that voir dire questioning of several prospective jurors had taken place at a bench conference while Williams remained at the trial table, and that Williams was not called to the bench until after voir dire questioning was complete. The court, relying upon testimony that Williams was not aware that he had a right to be present at the bench conference and that he would have attended the conference if he had known that he was entitled to attend, further found that Williams had not waived his right to be present when the prospective jurors were being interviewed. The post conviction court concluded that, under this Court's decision in Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978), Williams had been denied the right to be present at a critical stage of his trial. The court granted Williams a new trial.
The State then filed in the Court of Special Appeals an application for leave to appeal. In the application, the State argued that, despite the evidence and finding that Williams was unaware of his right to be present, the right was waived by Williams's "inaction." The State relied on the principle that "(a)n accused may waive a number of rights even though he had no knowledge of such rights," citing Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978).
The Court of Special Appeals granted the application for leave to appeal and remanded the case to the trial court for further consideration in light of its decision in Noble v. State, 46 Md.App. 154, 416 A.2d 757 (1980). In its opinion in the instant case, the Court of Special Appeals quoted from the Noble opinion as follows:
" 'We think the accused's right to be present at the bench conference set out above is one of those rights which can be waived by inaction and not one that requires an affirmative act based on an intelligent and knowing understanding of his rights.' " (quoting from 46 Md.App. at 161, 416 A.2d 757).
This Court then granted Williams's petition for a writ of certiorari.
The threshold issue before us is whether this Court has jurisdiction to review the judgment of the Court of Special Appeals. The State argues that we have no jurisdiction whatsoever to review any case arising under the Post Conviction Procedure Act, Art. 27, §§ 645A-645J.
The Post Conviction Procedure Act in § 645-I provides that any person aggrieved by the order of the trial court in a proceeding under the statute "may within thirty (30) days after the passage of said order apply to the Court of Special Appeals for leave to prosecute an appeal therefrom." Consequently, there is no right of appeal in a post conviction action but only the right to apply for leave to appeal. On the other hand, the statute and implementing rules contemplate that if the application for leave to appeal is granted, the case shall be treated as any other appeal. Section 645-I goes on to state that "(i)f the application to prosecute such appeal shall be granted, the procedure thereafter shall be in conformity with the Maryland Rules ...." Maryland Rule BK47 provides that if the application is granted, "further proceedings shall be had ... as if the order granting leave to appeal were the order of appeal ...." Rule BK47 refers to the Ch. 1000 rules relating to appeals to the Court of Special Appeals and the Ch. 800 rules relating to certiorari review in this Court. 1
Prior to January 1, 1974, Art. 5 of the Code, relating to "Appeals," provided in § 21A as follows (1973 Cum.Supp., emphasis supplied):
"In any case or proceeding in which a decision has been rendered by the Court of Special Appeals upon appeal from the circuit court of any county, the Criminal Court of Baltimore, or one of the law or equity courts of Baltimore City, if it shall be made to appear to the Court of Appeals upon petition of any party, including the State, that a review is desirable and in the public interest, the Court of Appeals shall require, by certiorari or otherwise, any such case to be certified to the Court of Appeals for its review and determination, except no such petition shall be entertained by the Court of Appeals from the denying or granting by the Court of Special Appeals of an application for leave to prosecute an appeal in post conviction and defective delinquent proceedings and from the denying or granting by the Court of Special Appeals of a petition for review filed under § 21 of this article."
Thus, § 21A granted this Court broad jurisdiction to review the decisions of the Court of Special Appeals in any case or proceeding. However, we had no jurisdiction to review the action of the intermediate appellate court in denying or granting leave to appeal. This exception related only to "the denying or granting" of the leave to appeal application. As the State concedes in its brief, if the Court of Special Appeals granted an application, this Court clearly was given authority to review the merits of the Court of Special Appeals' decision. In this respect, Art. 5, § 21A, was entirely consistent with § 645-I of the Post Conviction Procedure Act and the implementing rules, which treated a case in which leave to appeal had been granted the same as any other appeal.
Effective January 1, 1974, Art. 5 of the Code was re-codified as Title 12 of the Courts and Judicial Proceedings Article. The broad authority of this Court to issue a writ of certiorari "in any case or proceeding pending in or decided by the Court of Special Appeals" was set forth in § 12-201. The exception for leave to appeal applications was contained in § 12-202, and, as originally worded, stated:
"No review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:
(1) Leave to prosecute an appeal in a post conviction proceeding;
(2) Leave to prosecute an appeal in a defective delinquent proceeding;
(3) A petition for certiorari under § 12-305 of this title; or
(4) Leave to appeal from a refusal to issue a writ of habeas corpus sought for the purpose of determining the right to bail or the appropriate amount of bail." 2
The language of the exception was, therefore, modified to encompass "a case or proceeding in which the Court of Special Appeals has denied or granted" leave to appeal. The State, relying largely on a revisor's note, contends that this modification in wording effected a change in this Court's jurisdiction and that we have no authority to review the decision by the Court of Special Appeals in any case in which that court had earlier granted or denied an application for leave to appeal.
The issue of whether the 1974 re-codification was intended to change the law and deprive this Court of jurisdiction to review the merits of a case after the Court of Special Appeals granted leave to appeal, was first dealt with by this Court in Jourdan v. State, 275 Md. 495, 341 A.2d 388 (1975). In Jourdan, the defendant had filed a petition under the Post Conviction Procedure Act attacking his criminal conviction on double jeopardy grounds. The trial court set aside the criminal conviction; the State applied to the Court of Special Appeals for leave to appeal; the intermediate appellate court granted the application and transferred the case to its regular appeal docket; and thereafter it reversed the trial court's decision. This Court granted a petition for a writ of certiorari and reversed the judgment of the Court of Special Appeals. The Court did not, however, review the earlier action of the Court of Special Appeals in granting the state's application for leave to appeal. In the Jourdan opinion we expressly noted the jurisdictional issue and held that we had jurisdiction over the Court of Special Appeals' decision on the merits, saying (275 Md. at 506, n. 4, 341 A.2d 388):
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