Summary
In Evans v. Warden, 8 Md. App. 26, 257 A.2d 474 we held the same standards must be met by retained counsel, and upon counsel's failure to comply with the rule, in cases arising after its effective date, a belated appeal must be granted.
Summary of this case from Murray v. DirectorOpinion
No. 85, September Term, 1969.
Decided October 15, 1969.
ATTORNEYS — Duty To Advise Client Of Right To Appeal. Privately paid counsel, like those who are publicly paid, must advise their clients of the right to direct appeal. Rule 719 b 6. p. 27
POST CONVICTION PROCEDURE — Application For Leave To Appeal — Time For Filing — Contents — Case Remanded For Determination Of Whether Applicant Was Advised Of Right To Appeal. Application for leave to appeal must be filed within thirty days of the final order and must specify the errors alleged. Rule BK46. pp. 27-28
Application for leave to appeal was granted and applicant's case remanded for determination of the question of whether he had been advised by counsel of his right to appeal. Rule 719 b 6. p. 27
Application for leave to appeal from the Circuit Court for Queen Anne's County (TURNER, J.).
Izone Wardell Evans instituted a proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application granted and case remanded for further proceedings in accordance with opinion.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Izone Wardell Evans pro se.
Francis B. Burch, Attorney General, and J. Thomas Clark, State's Attorney for Queen Anne's County, for respondent.
Izone Wardell Evans, now an indigent, herein applies for leave to appeal from an order of Judge B. Hackett Turner, Jr., presiding in the Circuit Court for Queen Anne's County denying relief prayed in applicant's first petition under the Uniform Post Conviction Procedure Act. The application is granted and the case remanded to the Circuit Court for further proceedings.
Applicant raises a total of 19 contentions in an original handwritten petition and two amendments thereto. In his 13th contention (incorrectly numbered 14th by applicant) applicant contends his counsel was incompetent. At the hearing, an outdated criteria was used to determine the responsibility of trial counsel to advise clients of their right to appeal. If Evans' trial counsel had been court-appointed, Maryland Rule 719 b 6 (effective September 1, 1967) would control. However, even though Evans' trial counsel was privately retained and thus beyond the written scope of Maryland Rule 719 b 6, the requirements of that rule apply to privately retained counsel on the theory that one who retains private counsel at his own expense is entitled to equally effective counsel as other defendants whose counsel are paid by the state. Hence, privately paid counsel, like publicly paid, must now advise their clients of the right to direct appeal. For a full discussion of the rule see Rhodes v. Warden, 7 Md. App. 423, 256 A.2d 351.
Since the hearing judge made no factual finding on the presence or absence of such advice, the application is granted and the case is remanded for the determination of this question and the granting of a belated appeal if the circumstances warrant that relief. Of course, it is possible, even though the advice was not given, Evans otherwise knew of his right to appeal as an indigent and intentionally waived that right.
Since some, if not all, of the other contentions could be raised on direct appeal, we will make no disposition of them, preserving, however, the applicant's right to apply for leave to appeal as to them in the event his right to direct appeal is ultimately denied. Such application must, of course, be filed within thirty days of the final order in these proceedings and must specify the errors alleged. Maryland Rule BK 46 (b).
Application granted and case remanded for further proceedings in accordance with this opinion.