Monroe v. Director of Patuxent Institution
Monroe v. Director of Patuxent Institution
Opinion of the Court
delivered the opinion of the Court.
At a non-jury trial before Judge W. Albert Menchine in the Circuit Court for Baltimore County, William R. Monroe, represented by experienced and competent counsel of his choice, was convicted of armed robbery. After an investigation by the Probation Department, a sentence of twelve years was imposed on January 15, 1959, with a recommendation that the prisoner be confined in the Patuxent Institution.
On May 8, 1959, Monroe filed a petition under the Post Conviction Procedure Act in which he alleges insufficiency of the evidence to convict, improper admission of evidence, prejudice by the court because of his past record, and ineptitude and lack of diligence of his lawyer at the trial.
There remains one other matter for consideration that was not raised properly below and is not properly before us. At the post conviction hearing, after Monroe’s appointed counsel (who Judge Raine noted had been most diligent and thorough in his preparation and presentation of the case) had argued his client’s contentions referred to above and Judge Raine had rejected them from the bench, the lawyer, seemingly as an afterthought, told the court of his client’s claim that he had attempted a timely appeal from his original judgment and sentence. It appears that on April 17, 1959, Monroe had written a letter which was referred to the Administrative Officer of the Courts of Maryland, asking for a free transcript of the proceedings of his original trial for use in appealing (one was furnished him later). The Administrative Officer advised him on April 20 that the docket entries of the Circuit Court for Baltimore County showed that he had been sentenced on January 15, 1959, that the time for appeal had expired on February 16, 1959, and that the docket entries did not show that any appeal had been filed. Monroe replied on April 21 that he had sent his notice of appeal on February 10 and did not know what could have happened to it. On April 24, the Administrative Officer again told Monroe that there was no letter on file in the Circuit Court for Baltimore County requesting an appeal, and added: “May I suggest that you proceed under the Post Conviction Procedure Act, a copy of which I enclose. In this way it may be determined whether in fact you did file an appeal and within the time required.”
Notwithstanding this advice, Monroe’s petition for post conviction relief, prepared by him, and filed on May 8, set forth only the contentions which have been referred to and made no mention of, or reference to, an attempt to appeal. His letter to the Court of Appeals, which was treated as an application for leave to appeal from denial of post conviction relief, likewise made no reference to any attempt to appeal from his original judgment and sentence.
It is manifest that under the statute any ground which is claimed or is to serve as a basis for relief must be set forth in either an original or amended petition. The case before us is a patent example of actual waiver (which the statute directs to be inferred in such case) by failure to state a known ground for relief in the petition. The Administrative Officer explicitly and specifically told Monroe that he should raise his alleged attempt to appeal in his post conviction proceeding. In the face of this clear warning, he failed to do so. His counsel, who had made a thorough investigation of the case and who advised the court that he thought none of Monroe’s rights had been violated as far as the attempt to appeal was concerned, did not see fit to amend the petition and to rely on that ground, as this Court said at page 591 of 221 Md. in Niblett v. Warden, supra, counsel should do and the trial court should require if a valid ground had been omitted from the petition. It is our view that there has been a clear waiver of any reliance on the attempt to appeal on February 10 referred to in Monroe’s letter to the Administrative Officer of
Application denied.
Concurring Opinion
concurs in the foregoing opinion as to denying leave to appeal on account of alleged insufficiency of evidence, improper admission of evidence, prejudice by the court because of the applicant’s past record and ineptitude and lack of diligence of his trial counsel, but is of the opinion that the case should be remanded to permit amendment of the petition to present any facts which the applicant may be able to adduce in support of his claim for a belated appeal.
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