Franklin v. Warden of the Maryland House of Correction

Brune, C. J., delivered the opinion of the Court. In this very unusual case the applicant was charged with two offenses in the Circuit Court for Garrett County, burglary and escape from jail. In April, 1958, he pleaded guilty to the latter charge and not guilty to the former. He was tried for burglary before the court, sitting without a jury, and was found guilty.

He was sentenced to imprisonment for ten years on the burglary charge and two years on the escape charge, the sentences to run consecutively. Only the imprisonment for burglary is here involved. The applicant contends that he was denied due process of law in that counsel appointed for him just before the trial was not allowed sufficient time to investigate the case and to obtain the attendance of three alibi witnesses and in that a request for a continuance until they could be summoned was improperly refused. It appears that the defendant was brought before the trial judge on March 14, 1958, that he was asked if he had counsel, that he replied that, through his wife, he was getting a Baltimore lawyer to represent him, that the trial judge told the applicant that if he did not obtain counsel and if he so advised the court, counsel would be appointed for him, that the applicant telephoned to a Baltimore lawyer on the same day, that the applicant later said this lawyer had promised to get in touch with him in a few days, but did not do so, that the applicant did not inform the trial court in advance that he was without counsel, and that he appeared in court on the day of trial without counsel.

The trial judge then appointed a lawyer present in court as counsel for the applicant and allowed a ⁶²¹ period of only ten minutes for conference between counsel and client. At the end of the recess allowed for such conference, counsel for the defendant expressed a willingness to go forward with the trial if allowed an opportunity to have summoned three witnesses, one in Baltimore (the applicant’s wife) and two in Alexandria, Virginia. (All of them would have been alibi witnesses.) A continuance was denied. After the conclusion of the State’s case in chief and the defendant’s own testimony, the request was renewed and was again denied, and the trial went on to its conclusion.

On October 2, 1962, the applicant filed a petition in the Circuit Court for Garrett County, under the Post Conviction Procedure Act, raising questions of due process based on the above events at the trial and other questions not raised on this application. That petition was not answered promptly and on November 27, 1962, the applicant (as the Attorney General informs us) filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland. This was denied on December 31, 1962, for failure to exhaust State remedies. The applicant was allowed to proceed in forma pauperis and counsel was appointed for him in the Garrett County Court, an amended petition was filed, and a hearing held on January 11, 1963, at which the applicant was present.

The petition was denied on January 16, 1963, and the applicant’s counsel at the Post Conviction Procedure Act proceeding filed an application for leave to appeal on February 11, 1963. The record was not forwarded to this Court at that time. On petition of the applicant filed by his counsel appointed in the proceeding next referred to, the Circuit Court ordered the record transmitted to this Court. Meanwhile, on April 23, 1963, the applicant filed a new petition for Federal habeas corpus in the District Court.

The Attorney General has submitted a stenographic transcript of the proceedings thereon (No. 14327 Civil) before Judge Watkins in the District Court on September 26 and October 14, 1963. Judge Watkins delivered an opinion