Opinion
[App. No. 145, September Term, 1965.]
Decided July 26, 1966.
POST CONVICTION PROCEDURE ACT — Counsel, Alleged Inadequacy Of — Contention As To, Is Not Restricted To Allegations Of Fraud Or Collusion — Relief Is Available If Representation Is So Deficient As To Go To Very Fairness Of Trial — Such Deficiency As Will Warrant Relief Is Not Alleged, Where, As In Present Case, Complaint Is Grounded Upon Advice To Plead Guilty, Which, Standing Alone, Amounts To Exercise Of Tactical Judgment — Record Supported Express Finding Below That Petitioner Was Adequately Represented By Experienced Counsel Who Was In Case From Time Of Preliminary Hearing. p. 701
POST CONVICTION PROCEDURE ACT — Claim That Trial Judge Was Prejudiced By Statements Made By State's Attorney Held Without Merit, Where Petitioner Pleaded Guilty And Sentence Imposed Was Within Statutory Limit — Not A Matter For Review Under Act. p. 702 Decided July 26, 1966.
Application for leave to appeal from the Circuit Court for Garrett County (GETTY, J.).
Gordon E. Nash instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before the entire Court.
Petitioner, after pleading guilty, was convicted in the Circuit Court for Garrett County on July 27, 1964, on two counts of sodomy and was sentenced to ten years (later reduced to seven) in the Maryland House of Correction. On June 14, 1965, a petition for relief was filed under the Uniform Post Conviction Procedure Act, a hearing was held before Judge Getty on November 22, 1965, and relief was denied. An application for leave to appeal was filed and is hereby denied for the reasons stated in Judge Getty's opinion with the exception of the statement of law as to the unavailability of post conviction relief when a claim is based on incompetent representation by trial counsel and when based on the alleged prejudice of the trial judge. While relief can be given on these grounds, the facts in this case do not merit it.
As was stated in Hyde v. Warden, 235 Md. 641, 646, the contention of inadequacy of counsel is not restricted in our post conviction procedure to allegations of fraud or collusion and relief is available if the representation is so deficient as to go to the very fairness of the trial, Pressley v. Warden, 242 Md. 405. Such deficiency as to warrant relief is not alleged, however, when, as here, the complaint is grounded on the advice to plead guilty which, standing alone, amounts to an exercise of tactical judgment. Furthermore, Judge Getty's express finding that petitioner was adequately represented by experienced counsel who was part of the case from the time of the preliminary hearing supported as it is by the record disposes of the matter.
The claim that statements made at the trial by the state's attorney prejudiced the judge is without merit because the petitioner pleaded guilty and the sentence imposed was within the statutory limit and therefore is not a matter of review under the Act. Davis v. Warden, 235 Md. 637.
Application denied.