Ellinger v. Warden of Maryland Penitentiary

⁶⁵⁰ Bruñe, C. J., delivered the opinion of the Court. This is the second application of Raymond Ellinger for leave to appeal from the denial of relief under the Uniform Post Conviction Procedure Act (the UPCPA). On his first application—Ellinger v. Warden, 221 Md. 628 , 157 A. 2d 616—he asserted as the only reasons in support of the application (a) that the trial court had failed to rule on three of his asserted grounds for relief (the first, fifth and sixth) and (b) that he should have been furnished with a copy of the transcript of his post conviction proceeding hearing. He did not press any of the other grounds alleged in his petition as a basis for appeal.

This Court held: (i) that one of the grounds alleged for post conviction relief not dealt with in the trial court’s opinion (the sixth ground) was so vague as not to justify the granting of any relief; (ii) that the first and fifth grounds, which were also not mentioned in the opinion of the trial court, when taken together, were sufficient to state a charge that the State had knowledge of or participated in the use of perjured testimony, which required hearing and decision; and (iii) that Ellinger’s claim that he should have been furnished with a copy of the post conviction procedure transcript appeared premature and should therefore be left open. Leave to appeal was therefore granted and the case was remanded for further proceedings to the end that the trial court might further inquire into and decide the question stated in (ii) above. Following remand the trial court filed a memorandum in which the testimony of the petitioner relating to the charge of knowing use by the State of perjured testimony was set forth at some length. The entire transcript of the post conviction hearing is included in the present record.

A copy of it was furnished to the petitioner; but since it appeared that it was not so furnished until after the petitioner had filed his brief in this Court in support of his application for leave to appeal, he was afforded an opportunity, after his receipt of the transcript, to file an additional brief, and he availed himself of this opportunity. In his memorandum following remand Judge Macgill stated, inter alia, that when the petitioner appeared in the ⁶⁵¹ trial court at the post conviction hearing, he in effect abandoned the contention that the State had knowingly used perjured testimony. Our reading of the record not only supports this conclusion, but shows that Ellinger confirmed the truth of the identifications of himself which he claimed were perjured, by admitting his participation in the crime of armed robbery for which he was convicted. Ellinger was identified by the owner of the filling station that was robbed and by an attendant at the station as the driver of the car used by the robbers, Ellinger and Whitehead.

Ellinger admitted driving the car, but claimed that he was not guilty of armed robbery because Whitehead had the gun and actually entered the filling station while Ellinger stayed at the wheel of the car and drove it in the get-away. (Ellinger seems to be under the erroneous impression that our law establishes different degrees of armed robbery, claiming that he should not have been found guilty of armed robbery “in the first degree.” On his own testimony at the post conviction hearing he was clearly a participant in the crime, and there are no different “degrees” of the offense in this State.) As to the testimony of the filling station operator, Ellinger’s contention is that his identification in court of Ellinger as the driver of the car was not worthy of belief because the operator had previously failed to identify him at four police line-ups. This would affect the weight of the testimony, but does not show that it was