Jones v. Warden

Murphy, C. J., delivered the opinion of the Court. On May 4, 1967, Robert Ray Jones filed his second petition in the Circuit Court for Baltimore County under the Uniform Post Conviction Procedure Act asserting therein the following grounds for relief: 1. That he was denied his right to a public trial in violation of the Sixth Amendment to the Federal Constitution. 2. That certain medical reports concerning the condition of the prosecutrix at the time of the alleged crime were introduced as evidence, without the presence of the examining physician, thereby denying petitioner the right to confront and cross-examine said witness against him. 3.

That certain mental reports, including the history of petitioner’s prior criminal convictions, were introduced as evidence, without the presence of the persons who evaluated petitioner’s mental status and prepared said reports, thereby again denying petitioner the right to confront and cross-examine the witness against him. The State filed a “motion to dismiss” the petition on the ground that the contentions raised in the second petition “could reasonably have been raised” either on direct appeal or at the time Jones filed his first post conviction petition. Acting on the State’s motion, the lower court filed a brief order on May 19, 1967 dismissing the petition without opinion, without appoint ³⁴⁵ ment of counsel, and without conducting a hearing. Jones’s application for leave to appeal from that order was filed on May-26, 1967, and he alleges therein, inter alia, that the court erred in denying his petition without appointment of counsel and without a full and impartial hearing.

He further asserts in his application that the grounds set forth in his second petition “were not known or available to him at a prior Post Conviction hearing and therefore he did not willfully and intelligently waive his right to raise said issues in a subsequent petition.” To determine whether the lower court acted properly in summarily dismissing Jones’s second petition necessitates a brief review of the pertinent background facts from the time of his conviction through the time of the filing of his second petition under the Act. On May 14, 1959, Jones, while represented by counsel, pleaded guilty in the Circuit Court for Baltimore County to separate indictments charging rape and assault. He was sentenced to life imprisonment on the former charge, and ten years on the lesser offense, to run concurrently with the life sentence. On appeal from that judgment, he contended that the court erroneously accepted his guilty pleas, which were not knowingly and intelligently entered, and that certain remarks made by the State’s Attorney at the time of sentencing were prejudicial.

The Court of Appeals, finding no merit to either contention, affirmed the judgment of conviction on December 15, 1959. Jones v. State, 221 Md. 141 . The Court, in its opinion, concluded that Jones’s guilty pleas were voluntary and that he had been expressly informed by the trial judge, prior to the entry of such pleas, of the nature, consequences and effect thereof. On July 12, 1962, applicant filed his first petition under the Uniform Post Conviction Procedure Act.

Counsel was appointed to represent Jones and he promptly undertook an investigation into the facts of the case, in the course of which he availed himself of considerable pretrial discovery. On October 19, 1965 — over three years after his initial appointment — counsel filed an amended petition raising but one contention, namely, that applicant’s trial counsel was incompetent in that he did not properly explain the effect of a guilty plea and erroneously advised him to plead guilty because the maximum sentence he ³⁴⁶ would receive would be twenty years. The amended petition also asserted incompetency of trial counsel on the ground of an alleged failure on counsel’s part to make an independent investigation of alibi and other witnesses whose testimony was requested by Jones. 1 On February 23, 1966, an evidentiary hearing was held on the petition, at the conclusion of which the court (Proctor, J.) delivered an exceptionally detailed and lucid oral opinion in which it held that Jones’s decision to plead guilty was made knowingly and voluntarily, and that his trial counsel provided him with constitutionally adequate legal representation. The Court of Appeals denied Jones’s application for leave to appeal on November 21, 1966, Jones v. Warden, 244 Md. 720 , expressly concluding in its opinion that the lower court was correct in its finding that Jones had been afforded adequate and effective representation.

Since a guilty plea, freely and intelligently made, operates as a waiver of all non-jurisdictional defects, constitutional or otherwise, and since by judicial determination of the highest court in the State, Jones’s guilty pleas were found to be voluntarily entered, and the legal representation afforded him to have been constitutionally adequate, the lower court could have properly concluded that the contentions sought to be raised by Jones in his second petition were waived as a matter of State substantive law. Treadway v. Warden, 243 Md. 680 ; Curnyn v. Warden, 1 Md. App. 450 . It appears clear, however, that both the State’s motion to dismiss Jones’s second petition, and the lower court’s order dismissing the petition, were based solely upon the provisions of Maryland Rule BK 48 which, prior to the ³⁴⁷ amendment of such provisions on September 1, 1967, read as follows: “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 Baldwin v. Warden, 243 Md. 326 , the Court of Appeals cautioned trial judges against summarily disposing of subsequent petitions in reliance upon Maryland Rule BK 48 since, after the adoption of that Rule, its statutory precursor, Section 645H of the Act, was repealed by Chapter 442 of the Acts of 1965, effective June 1, 1965. In Bagley v. Warden, 1 Md. App. 154 , we held 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. 2 To like effect, see ³⁴⁸ Dyson v. Warden, 1 Md. App. 469 ; Tiller v. Warden, 1 Md. App. 286 ; Curnyn v. Warden, supra.

Nothing in these cases indicates, however, that the former provisions of Rule BK 48 could be given independent application apart from the substantive provisions of the Act, and particularly Section 64SA (c) thereof, governing the waiver of allegations not timely asserted. While it is for the trial judge to initially determine whether allegations asserted in a subsequent petition have been waived under Section 64SA (c), we have not remanded cases for failure of the lower court to make that determination where, on application for leave to appeal, it is clear that the requisite factual allegations have not been set forth in the petition. Although Rule BK 48, as amended, effective September 1, 1967, is in its. entirety merely a restatement of the provisions of Section 645A (c) of the Act (and thus the problem of the interplay between former Rule BK 48 and the substantive provisions of the Act is now academic), we nevertheless take this occasion to state our view that unless and until further clarification on the point is provided, either by Rule or legislation, governing the necessity for appointment of counsel on a subsequent post conviction petition and for holding a hearing thereon, no such appointment or hearing is required under the existing