Roberts v. Warden of Maryland Penitentiary

Marbury, J., delivered the opinion of the Court. We adopt the reasons set forth in the opinion of Judge Jones in the court below denying post conviction relief. However, the ⁴⁶⁰ answers to two contentions raised by the petitioner require additional amplification. The first point needing additional discussion is petitioner’s contention that the twenty year consecutive sentences imposed by Judge Carter in the Criminal Court of Baltimore under the second counts of indictments Nos. 506 and 507 (the simple assault counts) are illegal, in that the sentences under these counts could not exceed the statutory maximum of fifteen years for the statutory crime of assault with intent to murder.

As pointed out by Judge Jones, this same contention was specifically rejected by this Court in Roberts v. Warden, 221 Md. 576, 580 , 155 A. 2d 891 , because petitioner had failed to appeal the trial court’s adverse determination of this matter and thereby the sentence had been finally litigated so as to preclude post conviction relief. In that case we stated that “failure to appeal is a right which the petitioner could, and did, waive. Jackson v. Warden, 218 Md. 652 , 146 A. 2d 438 .” But assuming that subsequent decisions by this and federal courts have limited the thrust of waiver, petitioner’s contention is without substantive merit because as stated by Judge Horney, speaking for the Court in Gleaton v. State, 235 Md. 271, 277 , 201 A. 2d 353 : “There is * * * in this State no statutory limitation on the penalty which may be imposed for simple assault, and there was none at common law. Heath v. State, 198 Md. 455, 467 , 85 A. 2d 43