Gans v. Warden of the Maryland Penitentiary

Per Curiam. The applicant, Charles Gans, seeks leave to appeal from the denial of relief under the Post Conviction Procedure Act. He was indicted in the Criminal Court of Baltimore on November 21, 1960, as a third offender under the Narcotics Laws. The indictment charged a current offense in October, 1960, and alleged prior convictions, both in New York, in 1954 and 1960.

A copy of the indictment was served on Gans on November 22. On the 25th he appeared in court without counsel, and the court stated that he would appoint counsel for him. The actual date of appointment does not appear. On December 14, 1960, being then represented by counsel, Gans pleaded guilty to the indictment.

In his petition for Post Conviction relief he alleged first, that his arrest without a search and seizure warrant was unlawful and that his home was illegally entered and searched, and second, that the evidence against him was insufficient in certain respects (a) as to the current offense and (b) in that the records of his prior convictions were not produced. He failed to state that he had pleaded guilty. After the trial court had commented on that plea, Gans sought to add a third contention on his application for leave to appeal that his counsel had entered a plea of guilty though his plea was not guilty. He also sought to add a fourth contention, that he was only a first offender since his offenses in New York were misdemeanors, not felonies.

Neither of the last two contentions is properly before us, ⁶²⁸ since neither was raised in the trial court. Bennett v. Warden, 223 Md. 664 , 164 A. 2d 285 ; Chislom v. Warden, 223 Md. 681 , 164 A. 2d 912 ; Ralph v. Warden, 230 Md. 616, 619 , 185 A. 2d 366 , cert. denied 369 U. S. 813 . We may add as to these contentions that, even if they were properly before us, they would be unavailing. The third contention is a mere assertion unsupported by anything else in the record, and there is no showing of any complaint or objection having been made when the plea was entered (Cumberland v. Warden, 205 Md. 646 , 109 A. 2d 66 , cert. denied 348 U. S. 929 ; Spencer v. Warden, 222 Md. 582 , 158 A. 2d 317 ; cf. Chislom v. Warden, supra).

As to the fourth contention, the grade of the offenses resulting in prior convictions under narcotics laws is immaterial under our statute, Code (1957), Art. 27, Sec. 300. His complaints of insufficiency of the evidence are plainly unsustainable under the established rule that a plea of guilty freely and knowingly made, when accepted, amounts to “a conviction of the highest order” and makes unnecessary a trial or the production of evidence to support the indictment. See Miggins v. State, 170 Md. 454 , 184 A. 911 ; Dobson v. Warden, 220 Md. 689, 691, 154 A. 2d 921 , cert. denied 362 U. S. 954 ; Roberts v. Warden, 221 Md. 576, 580 , 155 A. 2d 891 , and authorities