Plump & Kye v. Warden

Prescott, J., delivered the opinion of the Court. These are applications for leave to appeal under the Post Conviction Procedure Act. The two applications may be considered together because the petitions are identical. The applicants were found to be indigent and the court appointed counsel to represent them.

A hearing was held in which an Assistant State’s Attorney and counsel representing the applicants were present. After that hearing Judge Reuben Qppenheimer dismissed the petitions. The applicants, in their petitions, raised three grounds: “1. Illegal search and seizure 2.

Illegal convicted—contrary to indictment 3. Illegal sentence, i.e., sentence is cruel and inhuman, etc.” The same applicants have been before this Court on applications for leave to appeal from denials of writs of habeas corpus which this Court denied. They raised the grounds as to unlawful search and seizure and defective indictments in those cases and we held that these grounds could not be raised on habeas corpus. Plump v. Warden, 216 Md. 650 , Kye v. Warden, 216 Md. 651 .

As to the third ground, there is nothing which supports their contentions that the punishment is cruel and unusual. The applicants were indicted for attempted larceny which is a common-law offense and one which prescribes no limits except the constitutional prohibition against cruel and unusual punishment. The sentences of four years, therefore, do not exceed the maximum authorized by law since no maximum is prescribed. Roberts v. Warden, 206 Md. 246 .

Obviously they are neither cruel nor unusual. ⁶⁶⁴ The applicants also raise the question which they claim is jurisdictional, that they were not present at the hearing before Judge Oppenheimer on their petitions under the Post Conviction Procedure Act. Section 645G of Article 27 of the Annotated Code of Maryland (1958 Supp.) provides that the petitions shall be heard in the court in which the conviction took place and that the court may receive proof by affidavit, oral testimony or other evidence and may order the petitioner before it for the hearing. This section clearly implies that the court may hear the case without having the applicant before it, such as was done in this case. In general, due process of law does not require the presence of the accused during proceedings subsequent to his trial that determined his guilt, unless a new trial is granted. 23 C.J.S. Criminal Law Section 974 b.

By the weight of authority his presence is not required at the argument of a motion in arrest of judgment. Orfield, Criminal Procedure from Arrest to Appeal, p. 518. 23 C.J.S. Criminal Law, Section 1551. Cf. 5 Wharton, Criminal Law and Procedure, (Anderson’s Ed.) Section 2009. Neither the Institute Code nor the Federal Rules of Criminal Procedure