McNeil v. Warden of the Maryland House of Correction , 233 Md. 602 ( 1963 )

Per Curiam.

The applicant, Fred L. McNeil, was convicted of assault in the Municipal Court of Baltimore City, and sentenced to two years in the House of Correction. No appeal was taken.

He now seeks leave to appeal from denial of post conviction relief by Judge J. Harold Grady below. In his original petition he contended that: (1) he was illegally imprisoned because he was innocent, and (2) he received too great a sentence. In an amended petition the applicant further contended (3) that he was deprived of due process of law, in view of the recent Supreme Court case of Gideon v. Wainwright, 372 U. S. 335, in that he was not provided with counsel to represent him in the Municipal Court.

As to the first and second contentions, the leave to appeal will be denied. The first question merely relates to the weight and sufficiency of the evidence which is not a ground for relief under the Post Conviction Procedure Act. Washington v. Warden, 225 Md. 623. The second contention, even if reviewable, is not sound since the sentence was within the reasonable discretion of the trial judge and was not shown to have constituted cruel and unusual punishment. Messina v. State, 212 Md. 602, 607. With respect to the third contention, regarding the application of Gideon v. Wainwright, supra, to the facts of the instant case, leave to appeal will be granted, as to that question only.

Application denied as to all contentions except (3); as to contention (3), leave to appeal granted and case transferred to regular docket.