Petitioner * CIRCUIT COURT FOR

______* IN THE

Petitioner * CIRCUIT COURT FOR v. * ______

STATE OF MARYLAND * CASE NO.: ______

Respondent *

* * * * * * * * * * * *

PETITION FOR POST CONVICTION RELIEF

The Petitioner, ______, pro se, submits this Petition for Post Conviction

Relief pursuant to the Post Conviction Procedure Act, Md. Code, Crim. Proc., §§ 7-101 through

7-109, and Md. Rules 4-401 through 4-408.

The petitioner provides the following information pursuant to Md. Rule 4-402:

(a) Indigency.— The petitioner is indigent. He lacks the funds to pay the costs of the proceeding and to hire counsel.

1. Name, number, and place of confinement.— The petitioner, inmate number ______, is committed to the Maryland Division of Correction and housed at ______.

2. Place, date, and outcome of trial.— On______, in the Circuit Court for ______County, the petitioner was tried by a jury and was found guilty of ______The Honorable ______, presiding. The court imposed the following sentence(s): ______.

3. Allegations of error.— The petitioner explains the allegation of errors below.

4. Statement of facts.— The petitioner provides facts supporting the allegations of error as needed. *Md. Rule 4-402(b) provides that the petition may, but need not, include a concise argument or citation of authority. 5. Relief sought.— The petitioner respectfully requests (check all that apply)

 new trial  re-sentencing hearing  belated motion for modification  belated application for review of sentence  other: ______

6. All previous proceedings, including appeals, motions for new trial and previous post conviction petitions, and the determinations made thereon.— a. A Motion for New Trial was / was not filed (select one) b. An appeal (select one)  was not filed;  was filed and was denied by the Court of Special Appeals. c. This is Petitioner’s first Petition for Post Conviction Relief.

7. Waiver.— The allegations of error contained here are not waived under Md. Code, § 7- 106 of the Criminal Procedure Article.

Ineffective Assistance of Counsel. Allegations of ineffective assistance of counsel need not be raised at trial or on direct appeal, or in any previous proceeding, to be available as a ground for relief in a post-conviction proceeding. E.g., Davis v. State, 285 Md. 19, 36 (1979) (“[C]ompetency of counsel may be raised for the first time under post-conviction procedures.”); O’Connor v. Warden, 6 Md. App. 590, 594 (1969) (“It has been repeatedly held that the allegation that trial counsel was incompetent need not be raised either at trial or on direct appeal in order to be available as a ground for relief . . . under the Post Conviction Procedure Act.”); see also Mosley v. State, 378 Md. 548, 560 (2003) (“Post- conviction proceedings are preferred with respect to ineffective assistance of counsel claims because the trial record rarely reveals why counsel acted or omitted to act, as such proceedings allow for fact-finding.”).

Waiver provision does not apply to fundamental rights. The waiver provision contained in Crim. Pro. §7-106(c) pertains only to non-fundamental rights. There is no waiver of fundamental rights for purposes of post-conviction. See e.g. Wyche v. State, 53 Md. App. 403 (1983) (if the right upon which the allegation is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding). Therefore, it was the legislature’s intent that allegations concerning the failure to advise a defendant of a fundamental right be reviewable on post conviction regardless of when it is raised.

REQUEST FOR APPOINTMENT OF COUNSEL & A HEARING

The Maryland Legislature mandated that each defendant receive the “assistance of counsel” and a hearing (Criminal Procedure Article §7-108(a)). Maryland Rules governing post- conviction envisioned that counsel would be appointed and amend the petition in order to

2 comply with the Md. Rule 4-402 (See Md. Rule 4-402(c) freely allowing for the amendments of petitions; see also Poole v. State, 203 Md. App. 1, 14 (2012)).

Dismissal of a petition for failing to comply with Md. Rule 4-402 is acceptable only if the pleading “is so deficient that the court cannot reasonably determine the nature of the complaint.”

Pfoff v. State, 85 Md. App. 296, 301 (1991). The Pfoff court acknowledged that pro se filings often do not properly articulate “the underlying facts, procedural history, and legal propositions….” These are not instances in which a petition should be denied. If the petition does substantially comply and the nature of the complaint is ascertainable, then the petition

“must be given due and fair consideration.” Further, it is mandatory for courts to hold hearings on a petitioner’s first petition petitions regardless of the merit of the allegations. See e.g. See

Vernon v. Warden, Md. Penitentiary, 11 Md. App. 340, 342 (1971).

Petitioner therefore requests appointment of counsel from the Office of the Public

Defender and a hearing.

ALLEGATIONS OF ERROR

(List why your trial was unfair, unconstitutional, or how you received ineffective assistance of counsel. You need to list at least 1 allegation, but you may add more as needed)

3 Respectfully submitted,

______(Signature)

______(Printed Name)

______(DOC Number)

______(Address)

______

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on ______a copy of the foregoing Petition for Post Conviction Relief was mailed first-class to Office of the State’s Attorney for ______County.

______(Signature)