Tipton v. Warden

²⁰⁷ Powers, J., delivered the opinion of the Court. Charles H. Tipton’s petition for post conviction relief, Code, Art. 27, § 645A et seq., was denied by Judge Albert P. Close, sitting in the Circuit Court for Baltimore County. We granted Tipton’s application to this Court for leave to appeal. The case was placed on our regular appeal docket, and has been briefed and argued.

What appellant seeks to be relieved of are the judgments of conviction and sentences imposed on charges of assault with intent to murder, attempted subornation of perjury, and carrying openly a pistol with intent to injure another, after a non-jury trial on 13 and 14 November 1968 in the Circuit Court for Baltimore County before Judge John N. Maguire. We affirmed those judgments on direct appeal in Tipton v. State, 8 Md. App. 91 , 258 A. 2d 606 (1969), cert. denied, 257 Md. 736 (1970). The petition for post conviction relief now under review is Tipton’s first. The grounds alleged below were: a.

That your Petitioner was not adequately represented by counsel at the trial of the case. b. That he was not accorded a fair trial in that there was a fraud perpetrated at the time of trial, said fraud being either on the court or that the court was a part of said fraud. That while the intent was to be of benefit to your Petitioner, the effect was to deny your Petitioner a fair trial. An affidavit sworn to by Tipton and filed in support of his petition is more illuminating.

In the affidavit he swore: “1. That your Petitioner retained W. Lee Harrison, Esquire, to represent him in Indictment #34199-03 Baltimore County, Maryland. 2. That your Petitioner at the suggestion and consent of said counsel, paid said counsel $2,000.00, that sum allegedly to be paid to the Judge hearing said case, the purpose of which ²⁰⁸ was either to secure a favorable decision or to secure a light sentence. 3. That your Petitioner believes that due to the interference of Arthur Hamilton, an agent for the F.B.I., the scheme was not successful. 4.

That your Petitioner was tried and convicted and believes that: a. He was denied a jury trial upon the advice of counsel and he was under the impression that his case had been ‘fixed.’ b. That Petitioner’s counsel failed to diligently pursue the defense of said case.” At the hearing below on his petition Tipton was represented by privately engaged counsel. The hearing before Judge Close was held on 8 and 9 August 1974.

On 10 December 1974 Judge Close filed a Memorandum Opinion, and an Order denying the petition for post conviction relief. Both bore the date of 9 December 1974. As required by Maryland Rule BK46 b. Tipton’s application for leave to appeal included a statement of the reasons why the order should be reversed or modified.

The issues in this appeal, however, are confined to those raised in the briefs. If any other issues were available, they have been waived. Ricker v. Abrams, 263 Md. 509, 516 , 283 Á. 2d 583 (1971). We shall consider the case within the scope of the Question Presented as appellant states it in his brief.

He asks: “Was Appellant denied a fair hearing on his post conviction petition by the hearing judge’s refusal to make findings of fact on questions raised in the uetition?” Appellant’s brief explains more fully the scope of the question he presents. He says: “The various contentions raised by Appellant in the post conviction proceeding below involved three basic questions: (1) whether he knowingly, in ²⁰⁹ telligently and voluntarily waived his right to trial by jury; (2) whether he was incompetently represented by counsel, and (3) whether he was denied due process of law because of improper conduct of counsel. The circumstance which gave rise to all three contentions was the purported existence of an agreement between Appellant and defense counsel at trial