Nance v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. The petitioner Nance was tried and found guilty on an indictment charging only that he was a rogue and vagabond and was also tried and found guilty generally on three other indictments, each of four counts, charging, respectively, burglary from a storehouse, larceny of more than $500, being a rogue and vagabond, and receiving stolen goods. Judge Cullen gave the petitioner a one-year suspended sentence in the rogue and vagabond case, ten years on two of the other indictments to run concurrently, and four years on the third indictment to run consecutively to the first two. In 1958 Nance filed his first petition for relief under the Post Conviction Procedure Act, which was denied by Judge Allen.

An application for leave to ⁴⁰⁶ appeal was denied by this Court, Nance v. Warden, 220 Md. 684 , cert. den. 362 U. S. 936 . The present petition for relief was heard in November 1964 by Judge Harris on five contentions which Nance claims were then grounds for relief: 1. His original trial counsel did not advise him of his right to file a motion for a new trial or to take an appeal. 2. He was illegally arrested and his apartment was subsequently illegally searched and the tangible items gained from these two searches were unconstitutionally entered into evidence against him. 3.

Without the allegedly illegal arrest and search and evidence thereby obtained, he was convicted on the uncorroborated testimony of an accomplice. 4. The evidence was insufficient to convict him. 5. He was found guilty generally in an indictment containing conflicting counts, i. e., larceny and receiving stolen goods. Judge Harris heard witnesses and arguments, including that of counsel for Nance, and filed a full opinion.

He found that Judge Allen had found as a fact that Nance’s claim in his first petition that his original trial counsel had promised him to move for a new trial and take an appeal was not true and that, in fact, no such promises had been made, and that his present claim that his counsel did not advise him at all as to his rights as to a new trial and an appeal could have been reasonably presented and finally litigated in his first petition and were thus barred under Code (1964 Supp.), Art. 27, Sec. 645H, and Sewell v. Warden, 235 Md. 615 . This ruling was correct. Judge Harris