Opinion
[App. No. 59, September Term, 1960.]
Decided March 20, 1961.
POST CONVICTION PROCEDURE ACT — Counsel At Hearing Under, Competency Of — Complaint To Trial Court, Or Showing Of Fraud, Bad Faith Or Collusion With State Officer — No Prejudice In Unsuccessful Request To Withdraw Petition. Allegations of incompetent representation at post conviction hearings must be specific, indicating, for example, that the petitioner had no opportunity to make such a complaint to the lower court, or that there was evidence that counsel was guilty of fraud, bad faith or collusion with an officer of the State. In the instant proceeding, where the petitioner claimed that his court-appointed counsel at the post conviction hearing was incompetent because he attempted to withdraw the petition for relief without the petitioner's knowledge or consent, there was no support of the claim with any such allegations as those set out above, and, furthermore, there was no showing of prejudice to the petitioner, since the lower court denied counsel's request for withdrawal and considered the petition on its merits. pp. 672-673
POST CONVICTION PROCEDURE ACT — Free Transcript Of Original Trial — Petitioner Not Entitled To, As Of Right, And No Showing Of Any Useful Purpose. The Post Conviction Procedure Act does not require that a free transcript of the original trial be furnished, and a petitioner is not entitled, as of right, to one (nor was there any showing that it would serve any useful purpose in the instant proceeding brought under the Act). p. 673
J.E.B.
Decided March 20, 1961.
Ralph E. Phillips 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 HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
Ralph E. Phillips (applicant) was convicted of robbery and rape in the Criminal Court of Baltimore on February 27, 1959, and was sentenced to five years in the Maryland Penitentiary on the first count and twenty years on the second count, to run concurrently. He was represented by court-appointed counsel and filed no motion for a new trial or appeal from the judgment and sentence.
Phillips filed application in the Criminal Court for relief under the Post Conviction Procedure Act which was denied by Judge Manley, sitting in the Criminal Court, on January 4, 1961, after again appointing counsel for applicant and having a hearing. Prior to the ruling on the merits, applicant's counsel had requested that the application for relief be withdrawn without prejudice because it did not make out a case. The trial judge, acting within his discretion under the terms of Art. 27, § 645F, Code (1960 Cum. Supp.), denied the request.
Applicant raised several familiar grounds for relief in the trial court. However, in his application for leave to appeal to this Court, applicant has narrowed his contentions to one, namely that his court-appointed counsel at his hearing under the Post Conviction Procedure Act was incompetent because he attempted to withdraw the petition for relief under the Act and that this action was taken completely without his knowledge or consent. He also requests this Court to order the court below to supply him with a free transcript of his original trial.
The contention of the applicant in this Court is anything but novel, and the explanation offered to show why his counsel was incompetent adds little weight. There are numerous cases which hold that allegations of incompetent representation at such hearings must be specific, indicating, for example, that applicant had no opportunity to make such complaint to the trial court or that there was evidence that counsel was guilty of fraud, bad faith or collusion with an officer of the State. Diggs, alias Green v. Warden of Md. Penitentiary, 221 Md. 624, 157 A.2d 453 (1960); Jackson v. Warden of Md. Penitentiary, 211 Md. 599, 125 A.2d 840 (1956); Haynie v. Warden of Md. Penitentiary, 210 Md. 668, 124 A.2d 285 (1956). Applicant fails to support this contention with any such allegations. Furthermore, since the trial court denied counsel's request for withdrawal and considered the application on its merits, there is no showing of prejudice to applicant.
Applicant's request for a free transcript of his original trial, which was denied in the trial court, is also without merit. The Act does not require that a transcript be furnished. Applicant is not entitled as of right to such transcript (nor is there any showing by applicant that it would serve any useful purpose). Truesdale v. Warden, 221 Md. 617, 157 A.2d 281 (1960); Ingram v. Warden, 221 Md. 597, 155 A.2d 668 (1959); Townshend v. Warden, 222 Md. 617, 159 A.2d 854 (1960).
In view of applicant's failure to state any proper ground for relief under the Post Conviction Procedure Act, the application will be denied.
Application denied.