Washington v. Warden

Per Curiam. This is an application for leave to appeal from an order of February 16, 1966, of Judge Joseph R. Byrnes, sitting in the Criminal Court of Baltimore, denying relief under a first petition filed under the Uniform Post Conviction Procedure Act. On May 19, 1960, applicant was indicted for violation of the narcotic laws. The indictment (No. 1847/60), in the form then in use, contained twelve counts.

On September 30, 1960, with his court appointed counsel present, applicant pleaded guilty to the first count charging him with selling heroin and to each of the counts eight through twelve, charging him with being a second and third offender. Judge James K. Cullen, presiding in the Criminal Court of Baltimore sentenced him to fifteen years. There was no motion for a new trial made nor appeal noted. On September 23, 1964, applicant, in proper person, filed a “Memorandum in Support of Petition for Relief under the Post Conviction Procedure Act” consisting of nine typewritten pages wherein he set forth the “Facts of the Case,” the “Questions Presented” and “Argument.” He raised two contentions in the form of questions: “1.

Was the state legally obliged to conduct a separate trial on each count of the indictment ? “2. Was Petitioner’s plea voluntary or was it forced from him by placing his previous crimes in the indictment ?” ⁵⁸ At the hearing on January 25, 1966, (hearing had been deferred at request of both State and applicant’s court appointed counsel to Judge Byrnes on March 30, 1965) applicant made two additional contentions, which are herein designated as (3) and (4), in substance that: (3) he pleaded guilty at his trial because his attorney told him he would not get more than ten years (4) he did not give the narcotics to the Federal Agent, but to the informer and had the informer been present at his trial, he would have pleaded not guilty. On February 15, 1966, Judge Byrnes denied relief by order including a memorandum and on February 21, 1966, applicant, in proper person, filed an application for leave to appeal which could be denied for the reason that it fails to comply with Maryland Rule BK 46 b as it does not contain a statement of the reasons why the order should be reversed or modified. On July 7, 1966, in proper person, he filed “Additional allegations for an appeal motion” dealing with: a) The “silver platter doctrine.” b) The reading of his criminal record “before the verdict of guilty was handed down.” c) His indictment as a third offender instead of a first offender, contending that no indictment should have been handed down since the informer did not testify before the Grand Jury.

We shall first consider the allegations pertaining to the plea of guilty which are embraced in the second, third and fourth contentions. A full and evidentiary hearing was afforded applicant to show, if he could, that the guilty plea was not knowingly and intelligently entered in accordance with the principle enunciated in Branson v. Warden, 239 Md. 15, 16 . We have the transcript of both the original trial and the hearing before us and neither discloses anything to show that the finding of Judge Byrnes that the contentions pertaining to the pleas of guilty were without merit is not reasonable. At the original trial, applicant personally pleaded guilty to the first, eighth, ninth, tenth, eleventh and ⁵⁹ twelfth counts.

There appears on pages 8 and 9 of the trans-script of the original trial the following: “The Court: (addressing applicant’s court appointed counsel) Anything you want to say, or he wants to say? “Mr. Kozlovsky: You wish to take the stand? “Defendant: No, sir. “Mr. Kozlovsky: If Your Honor please, the record will show I am court appointed in this case. And I, myself, would like the record to show I interviewed this man on two occasions and tried my best to explain to him what the situation was