Rhodes v. Warden

Murphy, C.J., delivered the opinion of the Court. On June 11, 1968 Ronald Rhodes was convicted on two counts of a criminal indictment by Judge Kenneth C. Proctor sitting without a jury in the Circuit Court for Baltimore County and on the same day sentenced to five years under the jurisdiction of the Department of Correction. No notice of appeal was ever filed. On August 5, 1968 Rhodes wrote Judge Proctor stating that immediately after his sentence, his trial attorney “gave Your Honor notice of appeal,” but that he had not heard further from his trial counsel, “as I do not have the necessary funds for his appeal fee.” Subsequently, after an exchange of letters with Judge Proctor, appellant filed a petition for relief under the Uniform Post Conviction Procedeure Act alleging therein, among other things, that he was entitled to a belated appeal.

After establishing his indigency, counsel was appointed to represent him. On January 6, 1969 a hearing was held on the petition ⁴²⁵ at the conclusion of which Judge John E. Raine, Jr. denied all contentions raised by Rhodes except that relating to the question of whether he should have a belated appeal by reason of his trial counsel’s alleged failure to enter the appeal within the time required by law. As to this contention, Judge Raine, after reviewing the trial transcript, held in a supplemental opinion that Rhodes was represented at the trial by privately retained counsel; that immediately after conviction, counsel told the court that Rhodes wanted to appeal and requested that an appeal bond be set; that after the court refused to fix an appeal bond, Rhodes was taken from the court room and then to the penitentiary, and nothing further was said or done by his trial counsel in connection with appealing his conviction. Judge Raine noted that Maryland Rule 719 requires court-appointed counsel to advise the accused, after conviction, of his right to appeal and, if directed by the accused, to assist in the preparation of an order for appeal and to file the same over the signature of the accused.

While stating that the Rule set up a standard which all attorneys should follow, Judge Raine nevertheless concluded from his review of the trial transcript that as Rhodes had no meritorious ground for an appeal, he would not exercise his discretion to grant him a belated appeal. Rhodes filed his application for leave to appeal Judge Raine’s decision and, consequently, the question is before us for consideration. The failure of counsel, whether court-appointed or privately retained, to inform the accused of his right to appeal was not formerly a ground for post conviction relief. See Welborn v. Warden, 2 Md. App. 351, 354 .

And it had been held that mere failure to advise the accused of his right to appeal would not of itself amount to incompetency of counsel. Kitonis v. Warden, 6 Md. App. 110 . Maryland Rule 719 b (6) and b (7) (b), as rewritten effective September 1,1967, now provides: (6) “When counsel is appointed by the court ⁴²⁶ to represent an accused, the authority and duty of such counsel shall continue in all respects from the date of such appointment until the imposition of sentence. Thereafter counsel shall advise the accused concerning his right to appeal and his right to apply for a review of his sentence.

If directed by the accused, counsel shall assist in the preparation of an application for review of sentence under Rule 762 (Review of Sentence) and an order for appeal, and shall file same over the signature of the accused.” (7) (b) “Where counsel has been appointed to represent an indigent appellant or appellee on appeal to the Court of Special Appeals the authority and duty of such counsel shall continue from the date of such appointment until the expiration of the time for filing a petition for a writ of certiorari to review the decision of the Court of Special Appeals. Counsel shall be obliged to advise the indigent appellant or appellee concerning his right to apply for certiorari and, if directed by the accused, shall assist in the preparation of a petition for certiorari and shall file same over the signature of the accused.” Under this Rule we have held that where court-appointed counsel fails to advise the accused after