Erving v. Warden

Morton, J., delivered the opinion of the Court. This is an application for leave to appeal from an order filed June 27, 1967 by Judge Albert L. Sklar, sitting in the Criminal Court of Baltimore, denying relief sought in a second petition under the Uniform Post Conviction Procedure Act. Applicant sets forth five contentions in his petition: (1) He was denied due process in that he was denied counsel during critical stages of his case, namely, the pre- ' liminary hearing, the coroner’s inquest, and the arraignment. (2) He was denied and deprived of witnesses in his favor.

(3) He was denied the right of a jury trial and the right to appéal. (4) His court appointed attorney was incompetent. (5) He was illegally and unconstitutionally indicted under the rationale of Schowgurow v. State, 240 Md. 121 . In a supplement to his petition, dated April 17, 1967, the applicant seems to allege the additional contention that : (6) He did not receive a fair and impartial trial (under the rationale in various' cases which he cites in his petition). .

Judge Sklar summarily denied the relief sought on the grounds that since the contentions could have been raised at the applicant’s prior hearing under the Uniform Post Conviction Procedure Act, they could now be disiiiissed without a hearing or appointment of counsel under the authority of Maryland Rule BK 48. ' Petitioner was tried on August. 6, 1954 and sentenced on August 13, 1954, to life imprisonment for first degree murder. .No appeal was taken. His first petition under .the Uniform Post Conviction Procedure Act was filed on August 29, 1960 and was dismissed in an order filed on March 16, 1961 by Judge Joseph L. Carter. No application for leave to appeal from this ⁷¹⁹ order was filed. The present petition is his second, and was filed on November 21, 1966.

Former Maryland Rule BK 48, which was in effect at the time of Judge Sklar’s decision in this case, provides: “Unless the court finds in a subsequent petition under the Uniform Post Conviction Procedure Act grounds for relief which could not reasonably have been raised in a previous petition under said Act, the court, after response to the petition has been filed by the State, may forthwith dismiss the petition without a hearing or appointment of counsel.” In Jones v. Warden, 2 Md. App. 343, we pointed out that the Maryland Court of Appeals in Baldwin v. Warden, 243 Md. 326 , cautioned trial judges against summarily disposing of subsequent post conviction petitions in reliance upon former Rule BK 48 since, after its adoption, its statutory precursor, Section 645H of the Act, was repealed by Chapter 442 of the Acts of 1965, effective June 1, 1965. We observed in Jones at page 347 that there was no manifest repugnancy between former Rule BK 48 and the substantive provisions of the Post Conviction Procedure Act, as amended by Chapter 442 of the Acts of 1965, and that subsequent petitions under the Act could be dismissed without a hearing or appointment of counsel where the petitioner made no adequate showing in such subsequent petition, as required by Section 645A (c), either of special circumstances to excuse the failure to raise the allegations in prior proceedings, or to rebut the presumption that he intelligently and knowingly failed to raise such allegations. But as Jones makes clear, the