Roberts v. Warden of Maryland Penitentiary

Prescott, J., delivered the opinion of the Court. This is the third attempt of Robert Roberts to obtain relief in this Court from sentences imposed by the Criminal Court ⁵⁷⁸ of Baltimore. This is an application for leave to appeal under the Uniform Post Conviction Procedure Act, Code (1959 Cum. Supp.), Art. 27, secs. 645A-645J; his others were applications to appeal from denials of petitions for writs of habeas corpus, and are reported as Roberts v. Warden, 206 Md. 246 , 111 A. 2d 597 , and by the same title in 214 Md. 611 , 135 A. 2d 446 .

While he was convicted of several crimes, all of which are set out in his first habeas corpus appeal, it will only be necessary to mention two of them here. He was charged with assault with intent to murder and simple assault in two indictments and plead guilty to the charge of simple assault in each case. He was represented by an attorney of his own selection, and after the pleas of guilty were entered, the court imposed consecutive sentences of twenty years in each of the cases. The applicant’s main contention here is set out in detail in the opinion filed in his first appeal, and it has been advanced by him in all of his subsequent ramifications in trying to obtain relief.

In substance, it is that that he was charged with assault with intent to murder and simple assault; that he plead guilty to simple assault, which is necessarily a lesser crime than assault with intent to murder; that Code (1951), Art. 27, sec. 14, provided a maximum penalty of fifteen years’ confinement for assault with intent to murder, yet he received twenty years for each simple assault, which rendered the sentences illegal. The Court, in the first appeal, ruled that he was not entitled to have this contention considered in that habeas corpus proceeding; because, even if it were assumed that such a contention could be considered in the habeas corpus case, it was prematurely advanced as the applicant had not served so much of his sentences as was concededly legal. In dismissing his appeal on February 10, 1955, the Court pointed out that the petitioner could seek executive clemency or apply to the trial court to correct the sentences, and, if they were illegal and the court refused to correct them, its refusal would constitute action which would be appealable to this Court. Thereafter on March 3, 1957, petitioner wrote a letter, des ⁵⁷⁹ ignated by him as a “motion,” to Judge Carter, the trial judge, stating that all of the legally imposed sentences had then been served, and “on the advice of the Court of Appeals to seek redress by and through you first” he desired the “striking out” of certain of the sentences he deemed “void” and a reduction in the sentence of the other assault case.

Judge Carter treated the letter as a motion, and, on March 8, 1957, denied the same in a letter to the applicant in these terms: “Your inquiry is construed as a request for the correction of an illegal sentence under the criminal rules of practice and procedure. In my opinion, the sentences imposed were not illegal, and your request is hereby denied.” The applicant was further informed that his letter and a copy of the judge’s were being forwarded to the clerk of the Criminal Court to be filed in his case. This denial of his motion was appealable as had been pointed out to him by this Court. However, instead of appealing, on March 29, 1957, he filed another petition for a writ of habeas corpus