MEDLEY v. WARDEN, 219 Md. 688 (1959)

149 A.2d 915

MEDLEY v. WARDEN OF MARYLAND PENITENTIARY

[P.C. No. 6, September Term, 1958.]Court of Appeals of Maryland.
Decided April 10, 1959.

POST CONVICTION PROCEDURE ACT — Counsel — Appointment of, in Every Case Where Petitioner Without Funds, If Not Waived — No Waiver in Instant Case. Where petitioner, seeking relief under the Post Conviction Procedure Act [Code (1958 Supp.), Art. 27, secs. 645A et seq.], did not expressly request the appointment of counsel, but, in his affidavit that he was a pauper

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(which was uncontroverted), asserted that he had no funds “wherewith to provide for any or any part of legal assistance for his defence”, he was held not to have “voluntarily and intelligently” waived the right to counsel, which, in the absence of express waiver, must be appointed in every case where the petitioner is without funds. p. 689

J.E.B.

Decided April 10, 1959.

John P. Medley instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.

Application granted, and case remanded for further proceedings.

Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PER CURIAM.

In this application for leave to appeal under the Post Conviction Procedure Act, Code (1958 Supp.), Art. 27, secs. 645 et seq., it appears that counsel was not appointed in the lower court. The petitioner did not, in express terms, request the appointment of counsel, but his affidavit that he was a pauper, which was not controverted, also asserted that he had no funds “wherewith to provide for any or any part of legal assistance for his defence”. We think this falls short of a showing that the petitioner “voluntarily and intelligently” waived the right to counsel, as suggested in Byrd v. Warden of the Maryland Penitentiary, 219 Md. 681, 147 A.2d 701. In the absence of express waiver, counsel must be appointed in every case where the petitioner is without funds, for the reasons stated in Hobbs v. Warden of Maryland Penitentiary, 219 Md. 684, 686, 148 A.2d 380, 382.

Application for leave to appeal granted, and case remanded for further proceedings.

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