Crum v. State

GETTY, Judge. In his third petition for post conviction relief, Laruell Crum requested that he be given an evidentiary hearing in order to focus the court’s attention on issues that Crum alleges entitle him to be released. On November 8, 1983, in the Circuit Court for Baltimore City, Judge John Hargrove denied the petition. Petitioner seeks leave to appeal.

We have not previously considered the issue of the right to a hearing in subsequent post conviction proceedings that have arisen since the amendment to Article 27, § 645A of ³⁰⁵ the Maryland Code, effective July 1, 1983. 1 A brief review of the earlier rules and code provisions is in order. By Chapter 429 of the Laws of Maryland, 1959, the Legislature added § 645H to Article 27 of the Code. This amendment to the recently enacted (1958) post conviction statute authorized the court to dismiss a subsequent petition without a hearing if the grounds for relief could have been raised in the prior petition. This section, 645H, was repealed by Chapter 442 of the Laws of 1965.

In 1961 the Court of Appeals adopted Rule BK48 which also granted trial judges the right to dismiss subsequent post conviction hearings without granting the petitioner a hearing unless the court decided that the allegations of error could not reasonably have been included in prior petitions for relief. Effective September 1, 1967, Rule BK48 was amended because of the inconsistency between the Rule and the 1965 statutory standard, Art. 27, § 645A(c). 2 The amended Rule BK48 makes no provisions for the granting of hearings. As a result, since September 1, 1967, we have no legislative enactment or rule of procedure granting or denying hearings on subsequent post conviction cases. 3 Case law interpreting the various statutes and rules relating to hearings on subsequent post conviction proceedings is set forth in Jones v. Warden, 2 Md.App. 343 , 234 A.2d 472 (1967). Noting the repeal of Sec. 645H and the revision of Rule BK48, we said: ³⁰⁶ Until further clarification on the point is provided, either by Rule or legislation, governing the necessity for appointment of counsel on a subsequent post conviction petition and for holding a hearing thereon, no such appointment or hearing is required under the existing provisions of the Rules or of the Act, where the subsequent petition, on its face, fails to set forth allegations showing special circumstances tending to rebut the statutory presumption of waiver created by Sec. 645A(c).

We are unaware of any reported decisions dealing with the issue of “special circumstances.” The Legislature, effective July 1, 1983, has expressly authorized hearings on subsequent post conviction petitions through the addition of paragraph (f) to Art. 27, § 645A. The second sentence of subsection (f) requires the court to make a determination as to the necessity for: 1. ' counsel, or 2. a hearing on subsequent petitions. Since the hearing judge is vested with the discretion to grant a hearing or