DeLawder v. Warden

⁴³⁶ Orth, C. J., delivered the opinion of the Court. On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A15 year sentence was imposed. The judgment was affirmed on direct appeal.

DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md. App. 740 , cert. denied 269 Md. 757 . He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a.

He seeks leave to appeal from that order. Code, Art. 27, § 645-1; Rule BK46. At the hearing below DeLawder presented three allegations of error: “1. That the trial attorney defended the petitioner inadequately and improperly and thereby violated the petitioner’s rights to a fair trial, due process and equal protection of the law. 2.

That the alleged victim perjured herself and that the State was aware of this perjury thereby violating the petitioner’s rights to a fair trial, due process and equal protection of the law. 3. That the trial court’s denial to defense counsel of the right to cross-examine in detail the State’s witnesses for purposes of attacking their credibility and establishing their hostility towards the petitioner has violated the standards as enunciated in Davis v. Alaska, [ 415 U. S. 308 ,] concerning the constitutional right to confront the witnesses against the petitioner.” The hearing judge denied relief under all three. He disposed of the first two by baldly stating: “The court finds no merit in the first two contentions.” With respect to the third allegation, he found it to be essentially the same contention raised by DeLawder on direct appeal and determined by this Court. He was of the opinion “that it would be inappropriate ⁴³⁷ under a petition for post conviction relief to reconsider a point previously raised by the petitioner and ruled on by the Court of Special Appeals of Maryland, or to reverse that Court.

The court takes this position even through Article 27, Sec. 645A (d) preserves that right for post conviction consideration thinking it more proper for the Court of Special Appeals to review the petitioner’s third contention on appeal.” Rule BK45 b provides: “The order [prescribed by § a of the Rule to be made by the hearing court as justice may require] shall include or be accompanied by a short memorandum of the grounds of the petition, the questions, including specifically the federal and State rights involved, and the reasons for the action taken thereon.” The memorandum included in the order