Waters v. State

ROBERT M. BELL, Judge. The primary issue presented by this application for leave to appeal is whether Jack Waters, Jr., applicant, is entitled to an evidentiary hearing on this, his third petition for Post Conviction Relief. The secondary issue is whether a petitioner may litigate in a post conviction proceeding the question of appellate counsel’s competence. We resolve both issues in favor of applicant and, therefore, will grant his application. 1.

Evidentiary Hearing The conviction which is the subject of this proceeding was entered on April 14, 1976. Applicant filed his first post conviction petition, seeking a belated appeal, later that same year. That request was granted by the Circuit Court for Worcester County and, pursuant to that ruling, applicant filed an appeal with this Court. That appeal was dismissed, ⁵⁵⁰ however.

See Waters v. State, No. 1339, September Term, 1976, filed March 22,1977 (Unreported). Applicant’s second post conviction petition, filed in 1983, was ordered withdrawn without prejudice at applicant’s request. The petition giving rise to the present application for leave to appeal was filed July 8, 1987. In it, applicant alleged numerous errors entitling him to post conviction relief.

He specifically requested that an evidentiary hearing be held on the petition. The hearing judge, in his Opinion and Order of Court, determined that, “[sjince this is defendant’s third request for post conviction relief, a hearing is not mandatory.” (Footnote omitted). He then concluded, in the exercise of discretion, that “a hearing is not necessary for the disposition of this petition.” The hearing judge, thus, proceeded to consider, and reject, all of applicant’s allegations of error without a hearing. Applicant asserts that he should have been granted an evidentiary hearing because, although the petition was technically his third post conviction petition, his first two petitions were resolved in ways which prevented him from litigating the present allegations.

Therefore, he says, for purposes of resolving the allegations which he could not have litigated in the earlier petitions, this third petition is tantamount to, and should have been considered as, a first or amended petition. We agree. Maryland Code Ann. art. 27, § 645A(f) 1 provides: ⁵⁵¹ Right to Counsel and Hearing.—A petitioner is entitled to assistance of counsel and a hearing on the first petition filed by the petitioner under this section. The court shall determine if assistance of counsel or a hearing should be granted on a subsequent petition filed by a petitioner.

That a petitioner is entitled to an evidentiary hearing and the assistance of counsel on his first petition is made clear by the first sentence of that section. See also Wilson v. State, 284 Md. 664, 675 , 399 A.2d 256 (1979), cert. denied, 446 U.S. 921 , 100 S.Ct. 1858 , 64 L.Ed.2d 275 (1980) (“A hearing upon a first petition filed under the Act is mandatory ____”) and Maryland Rule 4-406(a). The second sentence points out that the decision to grant a hearing on subsequent petitions is a matter addressed to the sound exercise of the hearing judge’s discretion. See Crum v. State, 58 Md.App. 303, 306 , 473 A.2d 67 , cert. denied, 300 Md. 483 , 479 A.2d 372 (1984).

In addressing whether the circumstances of this case are such as to render applicant’s third petition for post conviction relief tantamount to a first petition, we note that the 1983 petition was dismissed, at applicant’s request, without prejudice and, therefore, was never ruled upon. Consequently, it plays no role in our analysis. It is the 1976 petition on which we must focus. In this regard we find three cases, involving Hollis Hines, decided by the Court of Appeals to be instructive.

In the first case, Hines v. Warden, 221 Md. 616 , 157 A.2d 280 (1960), Hines instituted proceedings under the Post Conviction Procedure Act and when relief was denied, sought leave to appeal. The Court of Appeals, noting that the hearing court had not considered Hines’ allegation that he was entitled to a belated appeal, an allegation made for the first time at the hearing, granted Hines leave to appeal and remanded the case “for consideration”. The Court also granted Hines leave to “amend his petition so as to present said question [belated appeal], without prejudice to further consideration by this Court of other questions presented by ⁵⁵² his application for leave to appeal, if said application should be renewed.” 221 Md. at 617 , 157