Stewart v. Warden of Maryland Penitentiary

PER Curiam. Joe Dean Stewart seeks leave to appeal from the denial of his petition for post conviction relief from his judgments of conviction of assault, robbery and robbery with a deadly weapon. Stewart was convicted of the above offenses on jury verdicts entered in the Circuit Court for Harford County, Chief Judge Day presiding. At his trial, Stewart was represented by privately retained counsel.

After his trial, Stewart’s five year sentence for his conviction of robbery was stricken out on motion by his counsel. There remained his fifteen year sentence for his conviction of robbery with a deadly weapon and a five year sentence for his conviction of assault which was to run concurrently with the longer sentence on the more serious offense. In his petition for post conviction relief, Stewart raised nine contentions: (1) incompetent counsel; (2) improper indict ⁶⁹⁹ ments; (3) prejudice of the trial judge; (4) insufficient evidence for the convictions; (5) illegal instructions to the jury; (6) illegal jury verdicts; (7) illegal adjustment of sentences; (8) denial of his right to be present at the adjustment of his sentences; (9) illegal separate sentences on the several counts. In this application he adds a tenth contention: denial of his right to a transcript of his original trial.

Counsel was appointed to represent Stewart in his post conviction proceedings. After a hearing at which testimony was taken, including the testimony of Stewart’s counsel at his original trial, Judge Menchine denied Stewart relief in a memorandum opinion filed November 6, 1965. The application is denied as to the first eight contentions on the findings and for the reasons stated in Judge Menchine’s opinion. The transcript of the post conviction hearing amply supports Judge Menchine’s finding that Stewart was competently represented by counsel at his trial.

In denying Stewart relief as to his contention of illegal jury