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Nash v. Warden of Maryland House of Correction , 243 Md. 700 ( 1966 )


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  • 243 Md. 700 (1966)
    222 A.2d 163

    NASH
    v.
    WARDEN OF MARYLAND HOUSE OF CORRECTION

    [App. No. 145, September Term, 1965.]

    Court of Appeals of Maryland.

    Decided July 26, 1966.

    Before the entire Court.

    PER CURIAM:

    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.

    *702 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.