Opinion
No. 21, September Term, 1967.
Decided December 21, 1967.
POST CONVICTION PROCEDURE — Hearing Must Be Held Before Judge Other Than Original Trial Judge Unless Petitioner Assents. Notwithstanding the fact that petitioner's entry of guilty pleas would normally have operated as a waiver of all nonjurisdictional defects, the Court of Special Appeals granted his application for leave to appeal and remanded the case for further proceedings, where the same judge who had presided over petitioner's original trial heard, without petitioner's assent, his petition for post conviction relief. Rule BK 44 c. p. 643
Decided December 21, 1967.
Application for leave to appeal from the Circuit Court for Prince George's County (POWERS, J.).
Vernon A. Montague instituted a second proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application for leave to appeal granted and case remanded for further proceedings not inconsistent with the opinion.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
This is an application for leave to appeal from a summary denial of post conviction relief by Judge Ralph W. Powers in the Circuit Court for Prince George's County on March 1, 1967. The Petitioner entered guilty pleas to charges of robbery and second degree murder before Judge Powers in 1964 and was sentenced to thirty eight years in the Maryland Penitentiary on June 2, 1964. His first post conviction petition was denied by Judge Dorsey in 1965. The Court of Appeals denied his application for leave to appeal in Montague v. Warden, 243 Md. 697.
In this application, the petitioner points out that Judge Powers was precluded, in the absence of the petitioner's assent, from hearing his post conviction petition since he (Judge Powers) presided over the petitioner's original trial. Rule BK 44 (c) of the Maryland Rules of Procedure provides: "The hearing may be before any judge except a judge who sat at the trial at which the petitioner was convicted, unless the petitioner assents to a hearing before such judge." While no hearing may be necessary, Jones v. Warden, 2 Md. App. 343, nevertheless, in accordance with our holding in Taylor v. Director, 1 Md. App. 23, the application for leave to appeal is granted and the case remanded for further proceedings, notwithstanding the fact that a guilty plea, freely and voluntarily made, operates in proceedings such as this as a waiver of all non-jurisdictional defects, constitutional or otherwise. Treadway v. Warden, 243 Md. 680; Curnyn v. Warden, 1 Md. App. 450.
Application granted and case remanded for further proceedings not inconsistent with this opinion.