Wilson v. State

• Decision Date: 30 March 1979
• Docket Number: No. 120,120
• Parties: Kenneth Maurice WILSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 664

284 Md. 664

399 A.2d 256

Kenneth Maurice WILSON v. STATE of Maryland.

No. 120.

Court of Appeals of Maryland.

March 30, 1979.

Thomas J. Saunders, Asst. Public Defender (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, Baltimore, on the brief), for appellant.

Kathleen M. Sweeney, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

Kenneth Maurice Wilson is presently incarcerated by reason of convictions of criminal offenses attained at two trials in the Criminal Court of Baltimore, Baylor, J., presiding. At the first trial he was found guilty by the court sitting without a jury of the rape and robbery of Lula Mae Vicks. He was sentenced to life imprisonment for the rape and to a concurrent ten year sentence for the robbery. At the second trial he was found guilty by a jury of the carnal knowledge of Joann Murcer and of perverted practices upon her. He was sentenced to two years for the carnal knowledge and to ten years for the perverted practices, to run consecutively to each other but concurrently with the sentences previously imposed. He noted a direct appeal in each case to the Court of Special Appeals. He was not represented before that court by his trial counsel but by an assigned public defender. The two appeals were briefed and argued together. It was contended as to the Vicks case that the trial court erred in not suppressing a judicial identification of Wilson and in admitting evidence of a prior conviction of him and that the evidence was not legally sufficient to sustain the verdicts. With respect to the Murcer case, it was claimed that the trial court erred in admitting in evidence a statement given by him to the police, in denying his motion for a judgment of acquittal on the perverted practices offense, and in refusing to permit the police physician to testify as to the history taken from the victim. The Court of Special Appeals affirmed the judgments in two unreported opinions of the September, 1975 Term, each captioned Wilson v. State, the Vicks case being No. 763, decided 5 August 1976 and the Murcer case being No. 762, decided 6 August 1976. We denied Wilson's petition for certiorari in each case, 278 Md. 739 (1976).

While the direct appeals were pending, Wilson filed a petition in the Criminal Court of Baltimore seeking relief under post conviction procedures, Md.Rule BK40, but his motion to withdraw the petition without prejudice was granted by the court. After the appeals were decided by the Court of Special Appeals, Wilson renewed his collateral attack on the judgments by filing another petition under the Uniform Post Conviction Procedure Act. The petition, as supplemented, presented as grounds for reversal eleven errors alleged to have been made in his trials. After a plenary hearing, the post conviction court (Murphy, James W., J.) found that nine of them afforded no basis for relief. The two remaining allegations were that the trial judge had been prejudiced and that there had been a denial of a speedy trial.

The post conviction judge pointed out in his memorandum opinion that at the hearing "Wilson stressed the fact that the same Judge had presided at both trials and that he had instructed his counsel on appeal to include this in his points raised on appeal. He also contended that despite his specific request, appeal counsel did not raise the issue of denial of a speedy trial in his appeal." Appellate counsel appeared and testified at the hearing. The post conviction judge noted that counsel

agreed that (Wilson) had discussed with him the lack of speedy trial and prejudice of the trial Judge. Counsel stated that he advised (Wilson) that the speedy trial issue had not been raised at either trial and that he could not go outside of the transcript in preparing his appeal. As to the Judge's prejudice, counsel felt that although raised at the second trial, it had been abandoned by (Wilson).

The post conviction judge found "(i)n particular," and, we think, with ample justification, "that appellate counsel's testimony . . . indicated a lack of familiarity with the trial transcripts." ¹ The transcripts of the two trials belied counsel's statement that "the speedy trial issue was not raised on the records." The judge determined that the transcript in each case reflected "that a Motion to Dismiss for Lack of Speedy Trial was filed by (Wilson) in proper person, argued by counsel and denied by the trial Judge." With respect to the alleged prejudice of the trial judge, appellate counsel first testified that the issue of the judge's disqualification was not raised at the second trial. "However, he then stated that this Motion (for disqualification) was properly before the trial Judge but that (Wilson) had 'dropped' this objection." Again, the transcript of the second trial was to the contrary. The post conviction judge ascertained that it showed that Wilson "orally moved for the trial Judge to disqualify himself. This Motion was denied by the Court." The post conviction judge concluded that "(b)ased on the record and the Post Conviction testimony, . . . (Wilson) was not afforded genuine representation in regard to his direct appeal." He therefore granted Wilson a belated appeal to be filed within thirty days of the date of the order.

Apparently the State did not feel aggrieved by the order granting the belated appeal; it did not apply to the Court of Special Appeals for leave to prosecute an appeal therefrom as authorized by Code (1957, 1976 Repl. Vol., 1978 Cum.Supp.) art. 27, § 645-I. Wilson duly filed the belated appeal awarded him. Represented by the Public Defender and an Assistant Public Defender, he presented five questions for review, including the issues of prejudice of the trial judge and speedy trial. In its brief, the State answered the questions on the merits, noting, however, that two of the questions had been previously answered by the intermediate appellate court in its earlier opinions. Wilson's reply brief went only to the State's argument regarding speedy trial.

The Court of Special Appeals dismissed the appeal Sua sponte. Wilson v. State, 39 Md.App. 113, 383 A.2d 77 (1978). The crux of its decision was that "(t)he legislative grant of jurisdictional authority to hear post conviction complaints did not coincidentally vest the trial court with the power, nor formerly conferred, to examine appellate operations." At 118, 383 A.2d at 80-1. We granted Wilson's petition for a writ of certiorari. It presented these questions for review:

1. Does a criminal defendant have a constitutional right to the effective assistance of counsel on direct appeal of his conviction?

2. Assuming that a defendant has such a right, does the Maryland Post Conviction Procedure Act, Article 27, Section 645A, confer upon a trial court the authority to grant a belated appeal based upon a finding of ineffective assistance of counsel on direct appeal? If so, is that authority jurisdictional?

(1)

The State concedes, with good reason, that in a criminal case, any defendant who has the right of direct appeal is entitled to the effective assistance of counsel to prosecute that appeal. In this jurisdiction, by legislative enactment, a defendant, upon compliance with certain procedural requirements, See Md.Rules, ch. 1000, ordinarily has the absolute right to appeal to the Court of Special Appeals from a final judgment entered in a criminal case by a circuit court. Md.Code (1974) § 12-301 and (1978 Cum.Supp.) § 12-308 of the Courts and Judicial Proceedings article. For exceptions thereto See §§ 12-302 and 12-307. The people of Maryland declared in 1776 "(t)hat in all criminal prosecutions, every man hath a right . . . to be allowed counsel . . . ." Md.Const., Declaration of Rights, art. 21. This constitutional provision was construed as intending to do no more than abolish the common law rules which denied representation, in whole or in part, by counsel in criminal cases. Betts v. Brady, 316 U.S. 455, 466, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Raymond v. State, 192 Md. 602, 607, 65 A.2d 285 (1949). ² Certainly, in this State, the practice has consistently been, not only at trial on the merits, but also on direct appeal, for the accused to be permitted to be represented by counsel even when there was no obligation on the State to provide counsel for an indigent defendant.

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) held that a state may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 799 (1963), as we have indicated, note 2, Supra, the requirement of the Sixth Amendment to the Constitution of the United States that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence" was made obligatory on the States by the Fourteenth Amendment, the Court holding that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." At 344, 83 S.Ct. at 796. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), dealing with the first appeal, granted as a matter of right to rich and poor alike, from a criminal conviction, foreclosed the denial to an indigent of the assistance of counsel. There is an unconstitutional discrimination

between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent,...