Fisher v. Warden of Maryland Penitentiary

⁶¹⁴ Hammond, J., delivered the opinion of the Court. The applicant, Fisher, on September 22, 1961, was convicted of robbery with a deadly weapon by Judge Joseph L. Carter of the Supreme Bench of Baltimore City, sitting without a jury. In his petition for relief under the Uniform Post Conviction Procedure Act, Fisher alleged that: (i) he is innocent; (ii) the evidence was insufficient to sustain the conviction; (iii) the trial court was biased and imposed a cruel and unusual sentence; (iv) the State withheld material evidence in that a certain confession made by a codefendant “was shown to the Prosecuting Attorney who rejected it and refused to present it to the Court for the record”; and (v) he was denied his right to appeal in that he withdrew his appeal “under duress and pressed for legal aid.” At a hearing at which the petitioner was represented by counsel, Judge James K. Cullen, before whom the post conviction hearing came, dismissed the petition for reasons stated in a memorandum accompanying his order, in accord with Rule BK45 (b) of the Maryland Rules. In this application for leave to appeal, Fisher renews the contentions made in his petition.

As to the applicant’s first two contentions, it is well established that the sufficiency of the evidence, and the question of guilt or innocence, can be raised on appeal, but neither is available for post conviction relief. Fisher v. Warden, 225 Md. 642 ; Wilson v. Warden, 222 Md. 580 ; Barbee v. Warden, 220 Md. 647 . Likewise, the applicant’s assertion of bias on the part of the trial court is not a ground for relief under the Act, but it is available for consideration on appeal. Price v. Warden, 220 Md. 643 .

Nor can the assertion that the alleged bias caused the trial court to hand down a cruel and unusual sentence be maintained, since the sentence, both as originally imposed and as reduced, was within the maximum prescribed by the statute under which the conviction was obtained. Code (1957), Art. 27, Sec. 488; Wallace v. Warden, 226 Md. 670 ; Frazier v. Warden, 223 Md. 686 . We find no merit in the applicant’s contention that the State withheld material evidence when the prosecuting attorney refused to submit a confession of a codefendant to the court. ⁶¹⁵ Judge Cullen, after an investigation of the matter, found that “the Defendant, through his counsel, was well aware of the alleged statements of the codefendant and could have offered it in evidence had it been material.” Fisher, having had the opportunity to introduce the confession into evidence, cannot now be heard to complain that the State suppressed it. Duffin v. Warden, 224 Md. 645 .

Cf. Brady v. State, 226 Md. 422 . The most serious claim Fisher makes in his application is that he was