Tucker v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. On April 28, 1965, Heber Benjamin Tucker was sentenced to ten years (later reduced to seven) by Judge McLaughlin for armed robbery following a non-jury trial at which Tucker was represented by his privately retained counsel. An appeal was noted but later dismissed on July 13, 1965. In his petition for leave to appeal under the Uniform Post Conviction Procedure Act, Tucker made the following contentions: (1) his lawyer was incompetent in that he did not advise him of his rights and did advise him against having a jury trial; (2) there was insufficient corroboration of the testimony of the accomplice;' (3) he was indicted before an unconstitutionally constituted grand jury;' (4) he was not brought before a magistrate without unjust delay and before being transported across county lines; and (5) the State suppressed evidence.

A hearing was held before Judge Rutledge and the application was denied. Judge Rutledge specifically concluded that the lawyer “did all he could possibly do with the case,” and that he was in no wise incompetent. We see no reason to rule otherwise. The decision to submit to a trial by the court rather than by a jury is one of tactics and the selection of one rather than the other is not a ground for post conviction relief, Johns v. ³³³ Warden, 240 Md. 209, 212 , and in the bare allegation of not being advised of his rights there is no specification of what rights and no indication that any prejudice resulted from- his-alleged ignorance.

Judge Rutledge’s opinion indicates that the contentions most forcefully urged at the hearing had to do with the alleged perjured testimony of the accomplice, one Treadway, who pleaded: guilty and