Prather v. Warden

Per Curiam. This is an application for leave to appeal from an order dated November 21, 1966 by Judge William B. Bowie of the Circuit Court for Prince George’s County, denying post conviction relief. On March 10, 1966, with Judge Robert B. Mathias presiding, applicant pleaded guilty to robbery. On April 15, 1966 Judge Roscoe H. Parker sentenced applicant to ten years in the Maryland Penitentiary.

In his original petition, applicant alleged five grounds for relief. The first — that he was improperly identified at police headquarters — was abandoned at the post conviction hearing and, at any rate, would not furnish a basis for post conviction relief since a plea of guilty, freely and intelligently made, operates as a waiver of all non-jurisdictional defects. Treadway v. Warden, 243 Md. 680 . The second ground — that applicant was induced to make damaging admissions in the presence of both the police and the victims of the crime while he was without the benefit of counsel— was also withdrawn at the time of the post conviction hearing.

This allegation is nevertheless clearly without merit since, following the plea of guilty, the admissions were not introduced as evidence and, furthermore, a voluntary plea of guilty waives the defects inherent in an illegally elicited confession. Treadway v. Warden, 243 Md. 680 . The third ground — that a request for a pre-trial mental examination was refused — was also abandoned at the post conviction hearing, and the hearing judge found as a fact that the applicant himself never desired such an examination. ⁴⁸⁰ The fourth ground' — that the counsel who represented applicant at trial was incompetent — was dealt with by the post conviction hearing judge who found as a fact that the applicant was wholly, adequately, and competently represented at his trial. From the record, we cannot say that the court was in error in so finding.

As a fifth ground, applicant alleges he was denied due process of law because he was sentenced by a judge who did not preside at his trial. Article 27, Section 642 of the Maryland Code (1967 Repl. Vol.) expressly provides for precisely this procedure, and is, of course, presumed to be constitutional. In any event, in light of the fact that the sentencing judge was aware of applicant’s habitual drunkenness, had before him the report of the Department of Parole and Probation, and had the benefit of the information that the applicant had been an exemplary