Carter v. State (Ct. of Special Appeals)

Filed March 7, 2007. Opinion by Chief Judge Joseph F. Murphy, Jr.

Appellant was convicted by a jury in the Circuit Court for Cecil County of two felonious violations of the Maryland Controlled Dangerous Substances Act and of the False Statement to a Law Enforcement Officer offense proscribed by Md. Code Criminal Law Article § 9-502. Appellant conceded that the State’s evidence was sufficient to establish that he committed both CDS violations but appealed to reverse the false statement charge, vacate the other judgments of conviction, and remand for a new suppression hearing and new trial. The Court reviewed only the first of Appellant's four questions (the second and third questions were not preserved and the fourth question was declined), specifically, whether the circuit court erred by failing to comply with Rule 4-215 before finding that Appellant had waived his right to counsel. The Appellant argued, with agreement from the State, that at no time prior to the trial date or on the trial date did a circuit court judge provide the advice required by Rule 4-215(a) (1)-(5), which reads in part:

Rule 4-215. Waiver of counsel.

(a) First appearance in court without counsel. At the defendant's first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall:

1. Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel.
2. Inform the defendant of the right to counsel and of the importance of assistance of counsel.
3. Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.
4. Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.
5. If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.

As a consequence, reversal is required.

The full opinion is available in PDF.

Dawson v. State (Ct. of Special Appeals)

Filed March 1, 2007. Opinion by Judge Lawrence F. Rodowsky; Concurring and dissenting opinion by Chief Judge Joseph Murphy.

As part of a plea bargain, Dawson, who originally was charged with sexually touching his 16-year-old stepdaughter, entered an Alford plea to one count of child abuse. An Alford plea is a device a defendant uses to plead guilty for purposes of accepting a plea bargain without actually admitting guilt. See, North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). When Dawson learned that he would be required to register as a sex offender under MD CP Code Ann. § 11-704, he attempted to withdraw his guilty plea. The trial court denied the request to withdraw, holding that there was no constitutional requirement that a defendant be advised that the consequences of a guilty plea would include registration as a sex offender.

On appeal, Dawson argued that a guilty plea to child abuse did not require registration because child abuse is a "general, 'non-sexual' crime" and all of the charges of sexual offenses against him had been dropped. The court disagreed, noting that the definition of "abuse" under the charging statute, Article 27, MD Code Ann. § 35C, included sexual abuse of a child. Because the alleged abuse was not "completely unrelated" to a sexual offense, Dawson could be ordered to register.

Dawson also argued that he could not have made a constitutionally valid knowing and voluntary guilty plea unless he was advised that one of the consequences would be registration as a sex offender. The court declined to decide this issue, noting that the case could be resolved on non-constitutional grounds. The court held that the proper issue under MD Rule 4-242 was whether the withdrawal of the guilty plea served the interest of justice, not whether the plea was constitutionally invalid. Because the trial court had not applied the correct standard, the court reversed and remanded for further proceedings.

In a separate opinion, Chief Judge Murphy opined that Dawson was entitled to withdraw his guilty plea under Rule 4-242, but that subsequently he could be tried for the offense and, if convicted, could be required to register.

The opinion is available in PDF.

State v. Garnett (Ct. of Special Appeals)

Filed February 2, 2007. Opinion by Chief Judge Joseph F. Murphy, Jr.

From the official headnote of the case:

CRIMINAL PROCEDURE; LAW OF THE CASE DOCTRINE; MOTION TO CORRECT
ILLEGAL SENTENCE: Although Md. Rule 4-345(a) does not entitle a defendant to relitigate an “illegal sentence” issue actually decided by the Court of Appeals or the Court of Special Appeals, that rule would be meaningless if the law of the case doctrine were extended to sentences that could have been -- but were not -- challenged as illegal at the time an appellant filed his or her first appellate brief. The law of the case doctrine therefore prohibits a defendant from attempting to once again present an “illegal sentence” argument that has been presented to and rejected by an appellate court.

The procedural history of the case was set forth in the previous trip to the Court of Appeals (in Garnett I) and was not repeated in this opinion, other than to note that in Garnett I, the order of restitution entered against Garnett was a penal sanction to which she was subject, despite a finding of guilty but not criminally responsible. As such, it was not subject to discharge in bankruptcy, and the State's motion to allow garnishment should have been allowed. On remand, Garnett sought to dismiss the garnishment motion, claiming the restitution order was illegal because she was found guilty but not criminally responsible and could not be held to account for the crimes for which she was convicted. The circuit court granted Garnett's motion to dismiss, and this appeal followed.

On consideration, the court concluded that the law of the case doctrine did not preclude raising the illegal sentence issue, since the Court of Appeals in Garnett I had noted the issue had not been before it. Further, the court rejected the State's claim that recent legislative changes to the Victim's Rights Act had effectively overruled the holding in Pouncey v. State, 297 Md. 264 (1983), finding that no sentence of restitution should have been imposed on Garnett, concluding that the illegal sentence of restitution was appropriately corrected, and affirming the judgment.

This opinion is available in PDF format.

Johnson v. State (Ct. of Special Appeals)

Decided December 26, 2006 -- Opinion by Judge Paul E. Alpert, Concurring Opinion by Chief Judge Joseph F. Murphy, Jr.

Appellant sought to exclude evidence obtained pursuant to a search warrant and supporting documentation authorizing a search of the residence, car and person of both Appellant and an unidentified third party, on the grounds that the State did not provide Appellant an opportunity to inspect that warrant with respect to the third party. The trial court refused to exclude such evidence and the Court of Special Appeals upheld the trial court, noting that:

1) Appellant had no standing to challenge on constitutional or other ground the validity of warrant against the third party;

2) The State had an interest in maintaining the confidentiality of confidential informants, an interest conceded by the Appellant;

3) Appellant had not requested an in camera review of redacted version of the warrant materials for the purpose of obtaining of possible exculpatory evidence;

4) Appellant had not preserved the issue in prior proceedings of whether the application for the warrant for the unidentified person may have tainted the warrant application for the search of Appellant's person and property; and

5) The State did not call or intend to call the unidentified person as a witness against the Defendant, and therefore the material was not discoverable under Rule 4-263(c)(2).

Chief Judge Murphy noted in a brief concurring opinion that the case at bar did not present the issues of the use of the warrant material for the unidentified person for cross-examination purposes or for proving a tainted warrant application by the strategic misinformation or omissions by an affiant to produce the illusion of probable cause.

The full opinions are available in WPD and PDF.

State v. Rollins (Ct of Special Appeals)

Filed: December 13, 2006 - Opinion by Chief Judge Joseph F. Murphy, Jr.

Evidence; Criminal Procedure, Cross-examination of the defendant about his or her testimony in an unrelated criminal case: A defendant who testifies in an unrelated case does not thereby submit to a discovery deposition. Nor does a defendant’s unrelated case testimony "open the door" to cross-examination questions that are of consequence only to the defendant's upcoming case, and have nothing to do with the direct examination testimony.

If, however, a criminal defendant who is awaiting trial and represented by counsel elects to testify on behalf of another criminal defendant in an unrelated case, the State may cross-examine the defendant about his or her unrelated case testimony, as long as the record shows that

• the judge presiding in the unrelated case had advised the defendant of the possibility that the State may be able to use the defendant's testimony during the defendant’s trial; and


• the unrelated case testimony was given by the defendant either on (a) direct examination, or (b) cross-examination that was, pursuant to Md. Rule 5-611(a), "limited to the subject matter of the direct examination."
  

The full opinion is available in WPD and PDF.