State v. Gordon

Per Curiam. This is an application for leave to appeal from an order filed on June 9, 1967, by Judge Walter H. Moorman, presiding in the Circuit Court for Montgomery County, granting relief sought under the Uniform Post Conviction Procedure Act, and awarding the petitioner a new trial. The petitioner was convicted of housebreaking and larceny on February 11, 1964, after entering a plea of guilty before Judge Kathryn J. Shook. He was then sentenced to a term of ten years in the Maryland Penitentiary.

He filed this, his first petition under the Act, on December 15, 1966. On March 15, 1967, an amended petition was filed by his attorney. At his hearing, only two contentions were presented: (1) That his attorney was incompetent. (2) That the trial judge improperly accepted his plea of guilty.

The lower court, after a full evidentiary hearing, found that the trial judge had properly accepted the plea of guilty after asking the defendant a series of questions so as to satisfy the court that the plea was knowingly and voluntarily made. The court found that the trial judge had no way of knowing of the incompetence of defendant’s counsel. No objection has been presented to this finding. As to the first contention, the court found that : “The petitioner was represented by incompetent counsel and for the following reasons: (1) absolutely no effort was made by the petitioner’s attorney to investigate the charges against him, nor did he even attempt to prepare a defense, nor did he make any attempt whatever to find or discover evidence which he might have introduced as matter in extenuation or mitigation even though there was a plea of guilty; (2) that an attorney actively engaged in malpractice and proven to be actively engaged in fraud and deceit against his ⁸⁰ clients, is not only incompetent but totally unfit to represent a defendant in any criminal or civil case.” The transcript of the testimony taken at the hearing discloses that shortly after the petitioner’s arrest in January, 1964, his mother, Mrs. E. E. Gordon, employed Philip H. Sapero, Sr., an attorney, to represent her son.

A week before the trial, she conferred with Mr. Sapero, who assured her that if her son pled guilty, he would not receive a sentence of more than six months, but that if he did not so plead, he would receive the maximum sentence. Prior to this conference, Mrs. Gordon had visited Mr. Sapero’s house three times at his request, paying him on the first visit one hundred dollars, on the second visit one hundred dollars, and on the third visit two hundred dollars at which time she also gave him a promissory note for eight hundred dollars. The petitioner testified that the attorney visited him twice before trial. The first visit was held three weeks before trial and lasted about forty-five