Kochel v. State

¹³ Murphy, C.J., delivered the opinion of the Court. Applicant was convicted in 1952 at a court trial of seven robberies and was sentenced to thirty-five years imprisonment. He was paroled in 1960. Subsequently, he was charged with a federal offense, convicted, and sentenced to imprisonment in a federal penitentiary where he presently remains. 1 On March 28, 1968, applicant filed a petition under the Post Conviction Procedure Act attacking his State convictions on six grounds.

Counsel was appointed to represent him and two hearings were held. One of the contentions raised at that time was that the applicant pleaded guilty at a preliminary hearing without the assistance of counsel, a fact which became known to the trial judge at the time of trial. The hearing judge found as a fact that applicant pleaded not guilty at his trial and his guilty plea at the preliminary hearing, if made, did not come to the attention of the trier of fact at the trial. The court denied the petition and no application for leave to appeal was filed.

On September 26, 1969, the applicant filed his second petition under the Post Conviction Procedure Act, again urging that he was not represented by counsel at the preliminary hearing when he pleaded guilty and for that reason, under White v. Maryland, 373 U. S. 59 , he must be afforded a new trial. The lower court held that applicant had waived this contention by his failure specifically to raise it at his first post conviction hearing. See Maryland Code, Article 27, Section 645A (c). The basic purpose of the preliminary hearing in Maryland is to determine whether to hold the accused for the action of the Grand Jury.

Arrington v. Warden, 232 Md. 672 ; Coleman v. State, 8 Md. App. 65 ; Weddle v. State, 4 Md. App. 85 ; Timbers v. State, 2 Md. App. 672 . It has ¹⁴ been held repeatedly that there is no right, constitutional or otherwise, to a preliminary hearing; it is not a necessary proceeding in obtaining a valid conviction. Ferrell v. Warden, 241 Md. 432 ; Hartley v. State, 4 Md. App. 450 ; Fabian v. State, 3 Md. App. 270 ; Ross v. Warden, 1 Md. App. 46 . While an indigent accused has a constitutional right in a serious State criminal prosecution to have counsel appointed to represent him at all “critical” stages of the proceedings against him, McClelland v. State, 4 Md. App. 18 ; Blake v. State, 2 Md. App. 492 , the Court of Appeals of Maryland, the United States Court of Appeals for the Fourth Circuit, and this court have heretofore held that the preliminary hearing under Maryland law is not, of itself, such a critical stage in the judicial process.

Baldwin v. Warden, 243 Md. 326 ; Pressley v. Warden, 242 Md. 405 ; Gopshes v. Warden, 240 Md. 732 ; Mercer v. State, 237 Md. 479 ; DeToro v. Pepersack, 332 F. 2d 341 , cert. den. 379 U. S. 909 ; Tyler v. State, 5 Md. App. 265 ; Hannah v. State, 3 Md. App. 325 ; State v. Hardy, 2 Md. App. 150. In Crumb v. State, 1 Md. App. 98 , we noted that the preliminary hearing involved in White v. Maryland, supra, decided in 1963, was held to be a critical stage of the proceedings against the accused who was not represented by counsel because his plea of guilty taken at the preliminary hearing, and subsequently withdrawn, was introduced into evidence against him during his trial. In light of White , we have frequently held that - the preliminary hearing is not a critical stage of the proceedings in the context of cases where no plea was taken at the preliminary hearing or the plea was not guilty. See Watson v. State, 6 Md. App. 134 .

In Crosby v.,State, 2 Md. App. 578, 587, we stated the rule in these terms: “* * * where no actions of the appellant at a preliminary hearing were used against him at his trial, such hearing was not a critical stage of the proceedings and he was not deprived of his rights by not being there represented by counsel.” With more specificity, we held in Timbers v. State, supra, at page 673, that “where * * * the defendant enters a plea of not guilty at the prelimi ¹⁵ nary hearing, such hearing is not, of itself, and in the absence of unusual circumstances, such a critical stage in the judicial process as to require appointment of counsel for an indigent accused.” (Emphasis supplied.) Cf. Coleman v. State, supra. On June 22, 1970, the Supreme Court of the United States, in Coleman v. Alabama, U. S. ,7 CrL 3121, held flatly and without equivocation that the preliminary hearing in Alabama is a critical stage of the proceedings in a criminal case requiring appointment of counsel for an indigent accused. In that case, the court noted that the purpose of the preliminary hearing in Alabama is to determine whether sufficient evidence exists against the accused to warrant presenting his case to the Grand Jury and, if so, to fix bail if the offense is bailable.

The court further noted that the preliminary hearing was not a required step in an Alabama prosecution since the prosecutor was free to seek an indictment directly from the Grand Jury without a preliminary hearing. It also