Szukiewicz v. Warden

Per Curiam. This is an application for leave to appeal from an Order of March 22, 1966, by Judge Albert E. Sklar, sitting in the Criminal Court of Balitmore, denying the Petitioner’s application for relief under the Uniform Post Conviction Procedure Act. On May 29, 1947, the Petitioner was tried before Judge Joseph Sherbow, sitting without a jury. A plea of not guilty by reason of insanity was entered on his behalf by his attorney.

The Court rendered a verdict of guilty of murder in the first degree, without capital punishment, having found the Petitioner sane at the time of committing the crime and sane at the time of trial. A motion for a new trial was denied and no appeal was taken. A life sentence in the Maryland Penitentiary was imposed. Prior to filing the subject Petition, the Petitioner had applied on eight separate occasions for writs of habeas corpus, all of which were denied.

The last application was to the Court of Appeals of Maryland, Szukiewicz v. Warden, 213 Md. 636 (1957). In 1962, the Petitioner applied for relief under the Uniform Post Conviction Procedure Act. After the appointment of counsel, application to withdraw the Petition was filed and on October 18, 1962, Judge Anselm Sodaro ordered the Petition dismissed without prejudice. After the filing of the subject Petition, counsel was appointed ⁶³ and two evidentiary hearings were conducted by Judge Sklar.

The Petitioner’s application for leave to appeal was prepared by his attorney and sets forth the following contentions: 1. That the Petitioner was illegally and unconstitutionally sentenced. 2. That the testimony of Dr. J. G. N. Cushing was improperly considered at the post conviction hearing. 3. That the trial judge failed to rule on all contentions raised in the petition.

The Petitioner raised sixteen points in his application for post conviction relief, all of which are set out fully in Judge Sklar’s Memorandum Opinion and in which he indicates that the only point pressed at the hearings was point number fourteen relating to the sentencing of the Petitioner. Judge Sklar states that no evidence or testimony was given in support of the other points in the Petition and that he, therefore, considered them to be abandoned. As to the third contention, it is true that under Rule BK 45 b, and the cases which have construed this rule, it is incumbent upon the Judge who conducts the post conviction hearing to make findings of fact upon all contentions raised by the Petitioner. Baue rlien v. Warden, 236 Md. 346 (1964); Farrell v. Warden, 241 Md. 46 (1965); Washington v. Warden, 243 Md. 316 (1966); Hunt v. Warden, 243 Md. 691 (1966).

At the same time, it is the responsibility of the Petitioner and his counsel to submit evidence in support of the contentions. Failure on the part of the Petitioner and his counsel to meet this obligation may well result, as here, in the hearing Judge concluding that the contentions have been either deliberately or unavoidably abandoned for lack of factual evidence to support them. Other than counsel’s bare statement, there is nothing before us to controvert the conclusion reached by Judge Sklar that the Petitioner’s remaining contentions were abandoned. Cf.

Branson v. Warden, 239 Md. 15 (1964); Fennell v. Warden, 236 Md. 423 (1964). In any event, we have examined the Petitioner’s remaining contentions. A number of them are mere statements, rather than legal contentions, some have been previously raised (Szukiewicz v. Warden, supra) and