Summary
In Brown, there was a question whether the execution of the sentence had been stayed under a rule of the Supreme Bench of Baltimore City. The Court found that it had been and thus there was no final judgment from which an appeal would lie. There was no such question involved in Colter nor is there in the instant case.
Summary of this case from McCoy v. WardenOpinion
[P.C. No. 26, September Term, 1959.]
Decided November 23, 1959.
POST CONVICTION PROCEDURE ACT — Allegedly Perjured Testimony Used At Trial — Insufficiency Of Evidence. Complaints (1) that allegedly perjured testimony was used at the petitioner's trial, and (2) that the evidence was insufficient to support his conviction, were not sufficient to support his petition under the Post Conviction Procedure Act. As to (1), the Court observed that there was no allegation that the State knowingly used such testimony. pp. 583-584
POST CONVICTION PROCEDURE ACT — Belated Appeal, On Ground Of Alleged Indigency — Denied Under Circumstances Of Case. The petitioner in this post conviction proceeding sought a belated appeal on the ground of his alleged indigency when he was convicted in 1947, but no appeal was taken, and there was no showing or suggestion that he tried to appeal within the time allowed, either by filing an order of appeal, by seeking a transcript of the proceedings or otherwise. Under these circumstances the Court held that the petitioner had not been deprived of his constitutional rights, even though his failure to seek an appeal may have been due to indigency. p. 584
POST CONVICTION PROCEDURE ACT — Counsel Appointed At Hearing Under — Record Did Not Show Incompetence Of. The record did not support an allegation that the counsel appointed to represent the petitioner at his hearing under the Post Conviction Procedure Act was incompetent. p. 584
J.E.B.
Decided November 23, 1959.
William P. Brown instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Reporter's Note: Certiorari denied, Supreme Court of the United States, May 16, 1960.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The applicant, Brown, was found guilty by a jury on a charge of assault with intent to rape in 1947 and was sentenced to twenty years imprisonment, subsequently commuted to eighteen years. By his application under the Post Conviction Procedure Act he complains of various alleged errors or irregularities and of allegedly perjured testimony at his trial and of the insufficiency of the evidence to support his conviction. None of these is sufficient to support his application under the Act. As to the alleged perjured testimony, there is no allegation that the State knowingly used such testimony. See State v. D'Onofrio, 221 Md. 20, 155 A.2d 643.
The principal relief sought by this application is a belated appeal on which the applicant's complaints with regard to his trial could be urged. The ground upon which an appeal is sought at this time is the applicant's alleged indigency in 1947. The docket entries show that no appeal was taken, and there is no showing or suggestion that the applicant made any effort to appeal within the time allowed for an appeal either by filing an order of appeal, by seeking a transcript of the proceedings or otherwise. Under such circumstances, it has been held by this Court that a defendant has not been deprived by the State of his constitutional rights under the doctrine of Griffin v. Illinois, 351 U.S. 12, even though his failure to seek an appeal may have been due to indigency. Smith v. Warden, 214 Md. 666, 136 A.2d 381, cert. den. 356 U.S. 963; Person v. Warden, 217 Md. 650, 141 A.2d 743, cert. den. 358 U.S. 853; Davis v. Warden, 217 Md. 662, 143 A.2d 77. Therefore, although the learned trial judge dismissed the application for a different reason, the dismissal was correct.
The allegation of incompetence of counsel appointed to represent the applicant at his Post Conviction Procedure Act hearing seems to us without support in the record.
Application denied.