Summary
In Kelly v. Warden, 243 Md. 717, 222 A.2d 835 (1966), we stated flatly that the Uniform Post Conviction Procedure Act was "not a substitute for an appeal or a means of obtaining a belated appeal."
Summary of this case from Wilson v. StateOpinion
[App. No. 137, September Term, 1965.]
Decided October 3, 1966.
POST CONVICTION PROCEDURE ACT — Where Applicant's Conviction Became Final Well Before Decision In Schowgurow v. State, 240 Md. 121, He Did Not Come Within Ambit Of That Case. p. 718
POST CONVICTION PROCEDURE ACT — No Substitute For An Appeal Or Means To Obtain A Belated Appeal — Allegations That Original Trial Judge Was Biased, And That Conviction Resulted From Use Of Fruits Of Illegal Arrest, Could Have Been Made Upon Direct Appeal, But None Was Taken — Rebuttable Presumption Arose That Applicant Intelligently And Knowingly Waived Such Allegations — No Showing That He Was Denied A Right To Appeal, Or Of Any Other Facts Which Might Rebut Presumption. pp. 718-719 Decided October 3, 1966.
Application for leave to appeal from the Criminal Court of Baltimore (CULLEN, J.).
Arthur Kelly instituted a second proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before HAMMOND, C.J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.
On 12 August 1964 applicant was convicted, for the second time, of robbery with a deadly weapon. He was sentenced to twenty years in the Maryland Penitentiary. No appeal was taken from that conviction. The details of his first conviction will be found in Kelly v. Warden, Maryland Penitentiary, 230 F. Supp. 551 (D. Md. 1964); Kelly v. Warden, 229 Md. 642, 184 A.2d 622 (1962).
On 26 October 1965, Kelly filed his present post conviction petition in which he raised three contentions, all of which were found to be without merit by Judge Cullen below. We also find them to be without merit.
Applicant claims he is entitled to the benefit of our decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). His conviction having become final well before Schowgurow, he does not come within the ambit of that case. Sturgis v. Warden, 241 Md. 728, 217 A.2d 341 (1966).
In addition, applicant claims that Judge Harris (who presided at his non-jury trial) was biased and that his [Kelly's] conviction resulted from the use of the fruits of an illegal arrest. The Post Conviction Procedure provided by Code, Art. 27, § 645A-645J (1957, Cum. Supp. 1965) is not a substitute for an appeal or a means of obtaining a belated appeal. Montgomery v. Director of Patuxent Institution, 235 Md. 672, 202 A.2d 758 (1964). These allegations of error "could have been made on direct appeal" but Kelly took no appeal. There arises, therefore, a "rebuttable presumption that * * * [Kelly] intelligently and knowingly" waived such allegation. Code, Art. 27, § 645A (1957, Cum. Supp. 1965). Applicant has made no showing that he was denied a right of appeal or any other facts which might rebut the presumption.
Application denied.