Bryant v. Warden of the Maryland Penitentiary

Prescott, J., delivered the opinion of the Court. Applicant was convicted of robbery with a deadly weapon in the Criminal Court of Baltimore and sentenced to 15 years’ confinement. He was represented by privately employed counsel. His conviction was affirmed on direct appeal.

Bryant v. State, 232 Md. 20 . Applicant filed his petition for relief under the U.P.C.P.A., and counsel was appointed for him. Pie sought to raise three points: (1) his arrest was illegal; (2) the trial judge was prejudiced against him; (3) his rights “were prejudiced” when he was tried without witnesses being present at the trial. The third of these contentions was finally determined to be without merit in his direct appeal; therefore it is not available in his behalf in this post conviction proceeding.

Code (1957), Article 27, § 645A. The first contention is without merit; if we assume, without deciding his arrest was illegal, there is no allegation that any “fruits” of the arrest were used against him at his trial, hence the legality, vel non, of his arrest is immaterial. The second contention is also without merit. The showing of the simple fact that a trial judge tries a codefendant of an accused before trying the accused does not establish prejudice ⁶⁶⁰ against the accused.

The above was petitioner’s only claim relative to prejudice. Moreover, we have held that allegations of prejudice on the part of the trial court, if preserved below, are available for consideration on direct appeal, but are not so available in post conviction proceedings. Price v. Warden, 220 Md. 643 . Applicant’s court-appointed counsel filed an amended petition in the court below alleging that his privately selected attorney was incompetent in that he failed “to insist upon a continuance” in order to obtain a witness; to argue the proposition that applicant had been