Shelton v. Warden

Per Curiam. This is an application for leave to appeal from an order of September 15, 1967 by Judge Philip H. Dorsey, sitting in the Circuit Court for Prince George’s County, denying the petitioner’s application for relief under the Uniform Post Conviction Procedure Act. On January 17, 1967 the petitioner was convicted of two counts of storehousebreaking and two counts of larceny by a jury, before Judge Roscoe H. Parker, and sentenced to ten ³⁷⁰ years in the Maryland Penitentiary on each count, the sentences to run concurrently. Prior to filing the subject petition, the petitioner filed a notice of appeal from his conviction contesting the legality of his arrest and the admissibility of evidence seized incident thereto; the sufficiency of the evidence; and the propriety of the trial judge’s ruling disallowing his request to summon certain witnesses to testify on his behalf.

On March 20, 1968 we affirmed the judgment of the lower court. See Shelton v. State, 3 Md. App. 394 . After the filing of the subject petition, counsel was appointed and an evidentiary hearing was held on August 30, 1967 before Judge Dorsey. The petitioner’s present application for leave to appeal sets forth two contentions: 1.

That the trial court failed to make a finding on all the allegations raised in petitioner’s petition for post conviction relief. 2. That the trial court erred in ruling that court-appointed counsel was only using trial tactics when he refused to call witnesses requested by the petitioner. At the post conviction hearing Judge Dorsey only considered three of petitioner’s contentions, having been advised by counsel for the petitioner that the other allegations would not be pressed. It is true that under Rule BK4S b it is incumbent upon the judge conducting the post conviction hearing to make findings of facts upon all contentions raised by the petitioner.

Hunt v. Warden, 243 Md. 691 ; Szukiewics v. Warden, 1 Md. App. 61 . However, we have held that it is the responsibility of the petitioner and his counsel to submit evidence in support of the contentions, and the failure to meet this obligation may well result, as here, in the hearing judge concluding that the contentions were deliberately abandoned for lack of factual