Otten v. Director

Per Curiam. This is the applicant’s third application under the Post Conviction Procedure Act, but, when his former applications were denied, Gideon v. Wainwright, 372 U. S. 335 (1963) was not the law. On September 15, 1958, the applicant, Otten, was convicted in the Criminal Court of Baltimore of the crime of unauthorized use of an automobile. He had waived a jury trial and was tried before Judge Manley.

Otten was sentenced to not more than two years’ imprisonment, to run from August 7, 1958. On December 1, 1958, Otten filed a petition for a writ of error corcem nobis in which he contended he was denied his constitutional rights in his original trial. On January 3, 1959, Judge Manley filed an order denying the writ. In the order, Judge Manley commented that at the arraignment Otten stated he had a lawyer but did not know his name.

He was advised to contact his attorney. However, at the trial on September 15, nothing further was said about an attorney and Otten made no request for the appointment of counsel. On January 20, 1960, after a hearing before Judge Foster, Otten was determined to be a defective delinquent. His sentence was suspended and he was committed to Patuxent Institution.

In his present petition for post conviction relief, Otten contends that his commitment to Patuxent is void because his original conviction which made the commitment possible was in vio ⁷⁰⁵ lation of his constitutional right to counsel. On October 3, 1963, Judge Carter denied the petition on the grounds that Otten waived the appointment of counsel and “even if he did not, the question is now moot, * * *” Judge Carter found that the constitutional question was moot because of Otten’s commitment to Patuxent under a civil