Banks v. Warden

Horney, J., delivered the opinion of the Court. When the Criminal Court of Baltimore (Cullen, J.) denied his petition for post conviction relief, Monroe J. Banks (the applicant) applied to this Court for leave to appeal. The applicant, who was represented by counsel at the trial — [as he was at a second post conviction hearing afforded him when the decision in Byrd v. Warden, 219 Md. 681 , 147 A. 2d 701 (1959), came to the attention of Judge Cullen] — pleaded guilty to an indictment in which he was charged with having violated the narcotic laws of this State a second time, and was sentenced by the trial court (Tucker, J.) to seven years in the Penitentiary from February 16, 1955. The docket entries show that the applicant submitted to a court trial under a plea of guilty on March 3, 1955, after having withdrawn a plea of not guilty he had previously made when he was arraigned on February 28, 1955.

But he filed no motion raising other defenses or objections based on defects in the institution of the prosecution or in the indictment ⁶⁵⁴ which should have been raised by motion before trial. Nor did he ever object to the lack of jurisdiction in the trial court or the failure of the indictment to charge an offense which the court could have considered during the pendency of the original trial. See Rule 725 b 2. However, in this post conviction proceeding, the applicant asserts three reasons why the judgment and sentence should be set aside or corrected.

He now claims for the first time that the heroin he had in his possession or under his control on February 16, 1955, was obtained by the police by means of an illegal search and seizure, that the indictment was void because the statute on which it was based was unconstitutional, and that the sentence was excessive. The statute which makes post conviction proceedings possible specifically provides that the remedy therein