Howington v. Warden of Maryland House of Correction

Henderson, J., delivered the opinion of the Court. In this application for leave to appeal from a denial of post conviction relief by Judge Foster, the petitioner, through court-appointed counsel, filed an amended petition raising three contentions : (1) that he was illegally arrested in his home without a warrant; (2) that he was not afforded counsel, or any opportunity to obtain counsel, at a hearing in the Municipal Court ⁶¹² of Baltimore prior to his indictment and trial, and (3) that the State suppressed vital evidence by failing to produce a witness. At the hearing on the petition counsel for the petitioner informed the court that the petitioner was not pressing other points made in the original petition. This was confirmed by the petitioner when he took the stand.

The petitioner was tried and convicted after a non-jury trial before Judge Harris, on three indictments charging assault with intent to murder, assault, and malicious destruction of property valued at $500.00. On June 26, 1963, he was sentenced to one year for each offense, to run consecutively. He was represented by counsel of his own selection and took no appeal. The post conviction proceeding was instituted on November 27, 1963.

On the question of illegal arrest Judge Foster held that point “had to be tested in the trial court,” citing Ralph v. Warden, 230 Md. 616 . It is not entirely clear whether his ruling was based upon the failure to appeal, the failure to object in the trial, or both. We have recently held that failure to object is fatal. Titus v. Warden, 233 Md. 618 , and cases cited.

Moreover, it is not contended that there was any search, or any evidence introduced as a result thereof, so that Mapp v. Ohio, 367 U.S. 643 , is not in point. We have held that where a petitioner is held under a judgment of a court of competent jurisdiction, it is immaterial to inquire whether an earlier arrest was lawful or unlawful. Palmer v. Warden, 232 Md. 630, 631 . On the question of counsel at the hearing in the Municipal Court, it is conceded that the petitioner made no plea.

It would appear, therefore, that the hearing was not a critical stage requiring counsel. Arrington v. Warden, 232 Md. 672 . Cf. Lumpkin v. Director, 233 Md. 606 .

The accused did not ask for