Opinion
[App. No. 20, September Term, 1961.]
Decided October 24, 1961.
POST CONVICTION PROCEDURE ACT — Contentions That (1) Arrest And Search Were Illegal — (2) No Preliminary Hearing Had — (3) Applicant Was Held Incommunicado By Police — (4) Coerced Confession — (5) And Attorney Erroneously Advised Applicant To Plead Guilty — Cannot Be Raised In A Post Conviction Case Since They Could Have Been Raised On Appeal. p. 673
POST CONVICTION PROCEDURE ACT — Contention Of Ignorance Of And Failure To Be Advised Of Right To Seek New Trial And Appeal Was Without Merit. The applicant's complaint as to ignorance of and failure to be advised of his right to seek a new trial and an appeal did not include any allegation that any official of the State deceived him or prevented him from asking for a new trial or noting an appeal, and, therefore, was held to be without merit. p. 673
H.C. Decided October 24, 1961.
John Wesley Trader instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
The applicant plead guilty to breaking and entering in the Circuit Court for Wicomico County and was sentenced to six years. Because he had come to believe that his constitutional rights to due process and equal protection had been violated, mainly, he says, because of "Two or three law books at the Penitentiary," he filed a petition for post conviction relief in which he complained that he had been arrested without a warrant, had been the victim of an illegal search, had had no preliminary hearing, had been held incommunicado by the police, had confessed to the police only because of coercion, had been erroneously advised to plead guilty by his attorney, and that he had been ignorant of, and had not been advised of, his rights to seek a new trial or to seek an appeal.
Judge Duer found no merit in any of his contentions. He noted that the applicant had admitted at the post conviction hearing that he was guilty; that his complaints of mistreatment by the police, which he says induced the confession, were figments of his imagination, and that, in any event, the confession had not been used at the trial.
None of the petitioner's contentions, except the last, can serve as a ground for relief under the Post Conviction Procedure Act, since they could have been raised on appeal. Price v. Warden, 220 Md. 643, and see cases cited in 7 M.L.E., "Criminal Law," Secs. 864-5, pp. 595-6. His complaint as to ignorance of and failure to be advised of his right to seek a new trial and an appeal does not include any allegation that any official of the State deceived him or prevented him from asking for a new trial or noting an appeal. There is no more merit to this contention than there was found to be in similar contentions in McClung v. Warden, 221 Md. 596, and Brown v. Warden, 221 Md. 582, in both of which leave to appeal was denied.
Application denied.