Anglin v. Director, Patuxent Institution

Per Curiam. Morris E. Anglin, Jr., seeks leave to appeal from the denial of his petition for post conviction relief. He was convicted of breaking a dwelling in the daytime with intent to steal and carry away the personal goods of another of any value, by Judge John Grason Turnbull, sitting without a jury, on November 17, 1965. On July 27, 1966, he filed a petition under the Uniform Post Conviction Procedure Act, and a hearing was held before Judge John N. Maguire on August 17, 1966, while the direct appeal from his conviction was pending before the Court of Appeals of Maryland.

That Court affirmed the applicant’s conviction on December 13, 1966, Anglin v. State, 244 Md. 652 , and Judge Maguire denied the petition for post conviction relief in an order filed on January 4,1967. In his application for leave to appeal, the applicant raises the following contentions: 1. That he was erroneously charged with a felony in the information upon which he was convicted, thereby losing the advantage of a grand jury indictment. ⁵⁶⁶ 2. That his arrest and the subsequent search and seizure were illegal. 3.

That Judge Maguire in his memorandum denying relief did not treat the third contention raised at the hearing concerning the insufficiency of the value of the credit card. 4. That his post conviction decision was not rendered within two months of the hearing as required by Maryland Rule 18 b and Section 23 of Article 4 of the Maryland Constitution. The first contention was raised before the trial judge and resolved against the applicant, but was not raised on direct appeal. The applicant has not alleged any “special circumstances” to excuse his failure to raise this point on direct appeal, and he has thereby failed to rebut the presumption that he intelligently and knowingly failed to make the allegation.

Code (1967 Repl. Vol.) Article 27, Section 645A (c). See Strosnider v. Warden, 245 Md. 692 (1967); McCloskey v. Director, 1 Md. App. 281 (1967). In addition, the crime for which he was convicted was classified as a misdemeanor at the time of his arrest, and at the time the criminal information was filed, but before the date of his trial, the legislature revised the pertinent legislation, reclassifying this offense as a felony.

See Laws of Maryland 1965, Chapter 345; Code (1957), Article 27, Sections 30, 32; Coleman v. State, 209 Md. 379 (1956) and State v. Wright, 193 Md. 721 . It was, therefore, proper for the State’s Attorney to charge him on an information as the crime when committed was a misdemeanor. Applicant’s second contention was denied by Judge Maguire on the ground that the arrest was legal in that the arresting officers had knowledge that a felony had been committed and had probable cause to believe that the applicant had committed the crime. The transcript of the original trial indicates that the applicant was arrested under these circumstances: sometime between February 9 and February 11, 1965, the home of Louis Weiss was burglarized and an NAC credit card bearing his name was stolen therefrom.

On the afternoon of February 11 the applicant, using the stolen credit card, made a substantial purchase at a Baltimore mens’ clothing store. The salesman ⁵⁶⁷ realized after applicant’s departure from the store that several ties were left out of the package. He immediately telephoned the Weiss home and talked to a police officer who was there investigating the burglary. Police then notified the company which had issued the credit card that it had been stolen and that the thief was using it.

Later the same afternoon, the applicant entered a store in a suburban shopping center and attempted to make another purchase with the stolen credit card. The salesclerk, observing that the intended purchase exceeded the limit authorized by the credit card, called the company that had issued it for approval of the purchase. At the time she made the call, she had the credit card in her possession, which, as aforesaid, was in the name of Louis Weiss. Shortly thereafter, Officer Donald Clark entered the store and asked the applicant “what was going on.” 1 The applicant smiled at the officer, made no