McCall v. Warden

Per Curiam. This is an application for leave to appeal from an order filed on May 4, 1967, by Judge James A. Perrott, sitting in the Criminal Court of Baltimore, denying relief sought in a second petition under the Uniform Post Conviction Procedure Act. The application for leave to appeal was filed on June 21, 1967, or more than thirty days from the passage of the order sought to be appealed. Applicant has thus failed to comply with Maryland Rule BK 46 (a) which requires that the application “be filed within thirty days from the passage of the order appealed from.” The application for leave to appeal is therefore not timely filed.

See Bowyer v. Warden, 237 Md. 644 ; Bynum v. Warden, 230 Md. 631 . Since the record in the present case raises the question of whether the applicant was sufficiently advised of the lower court’s decision in time to file a timely application for leave to appeal, we have reviewed applicant’s contentions which have been presented against the following factual background: The applicant was charged under three separate indictments in the Criminal Court of Baltimore, two of which charged robbery with a deadly weapon (indictments 1966 and 1967) and one of which charged assault (indictment 1968). The applicant pleaded ¹⁹⁰ guilty to the two robbery charges and not guilty to the assault charge. He was convicted on all three charges and received two concurrent fifteen-year sentences on the robbery indictments and a three-year sentence on the assault indictment, to run consecutively with the other sentences.

Applicant did not appeal from any of these convictions. On October 11, 1965, he filed his first petition under the Uniform Post Conviction Procedure Act, raising five contentions as follows: 1. That he was denied due process of law. 2. That he was illegally arrested and searched. 3.

That his three-year sentence for assault was “illegal.” 4. That his court-appointed trial counsel was incompetent, 5. That his indictments were void because they were returned by an illegally constituted Grand Jury. After appointment of counsel, two evidentiary hearings were held and on December 1, 1965, the petition was denied by Judge Dulany Foster in the Criminal Court of Baltimore.

No application for leave to appeal was filed from that judgment. Applicant filed his second petition under the Act on June 16, 1966, and raised the following contentions: ' 1. Perjury was used to establish a conviction of assault in Indictment No. 1968. 2. That the taking of a guilty plea at arraignment by Judge Allen, who changed the plea to not guilty but subsequently tried the case, was prejudicial to petitioner and was the influencing factor in inducing petitioner to plead guilty again, knowing that he had once pled guilty before the same Judge for the same offense. 3.

That the sentences and convictions in regard to the two robbery indictments were inconsistent with Judge Allen’s judgment. 4. That