Baynard v. Director, Patuxent Institution

Per Curiam. This is an application by James Orville Baynard for leave to appeal from an order of Judge Harry E. Clark, sitting in the Circuit Court for Caroline County, denying the Applicant relief under the Uniform Post Conviction Procedure Act. Baynard, then a sixteen year old boy, was convicted of assault (carnal knowledge) on January 10, 1957, and given a five year indeterminate sentence which was suspended upon condition of his good behavior. On November 17, 1958, Baynard, unrepresented by counsel, was convicted by a magistrate of assault and battery and fined $50.00.

In default of paying the fine, he was committed to the County Jail until January 22, 1959, at which time a revocation hearing was held, the order suspending his original sentence rescinded, and he was sent to the Patuxent Institution for evaluation. On October 14, 1959, he was found by a jury to be a Defective Delinquent and committed to Patuxent Institution. A redetermination hearing was held on October 1, 1962. He was found still to be a Defective Delinquent and recommitted to the Institution.

On January 24, 1966, he was again found by a jury to be a Defective Delinquent and recommitted. Judge Clark, in his opinion, points out that since the “State’s Attorney for Caroline County had represented the Petitioner at his original trial and thus was disqualified to act for the State in this matter” a special prosecutor was appointed. Because of this disqualification, a special prosecutor had been appointed in each of the three Defective Delinquency hearings. ¹⁶¹ Judge Clark discussed with particularity in his opinion each issue advanced on behalf of Baynard and disposed of them adversely to the Petitioner’s contention. With one exception, we agree with his conclusions.

Specifically, he found, inter alia, that the fact that Baynard was unrepresented by counsel at the time of his revocation hearing did not entitle him to post conviction relief. If this were an ungarnished fact, we would agree. Sweeney v. State, 1 Md. App. 233 . The record indicates, however, that while the indigent Baynard was unrepresented at the revocation hearing, the State was represented by counsel.

This, in itself, would not constitute a denial of Baynard’s constitutional rights “unless due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process that led to the revocation of his probation.” Edwardsen v. State, 220 Md. 82 ; Scott v. State, 238 Md. 265 . However, the disadvantage which inured to Baynard by not