October 2014 Maryland Certiorari Grants

With Halloween right around the corner, the Court of Appeals of Maryland has decided to address some potential nightmare scenarios for criminal defendants — being stuck without legal representation, or having claims of actual innocence given short shrift by the justice system. Check out those cases and the rest of yesterday’s cert grants after the jump.

Alexander Dykes v. State of Maryland – Case No. 70

Issues – Criminal Law – 1) When it finds meritorious grounds for granting a motion to discharge counsel, what is the extent of the trial court’s authority to appoint counsel? 2) After finding meritorious reasons for discharge and after discharging both Petitioner’s public defender specifically and the Office of the Public Defender generally, did the trial court err in denying Petitioner’s repeated pretrial requests for court-appointed counsel on the grounds that he was now “on his own” and that it did not have the authority to appoint counsel?

Scott Shader, et ux. v. Hampton Improvement Assoc., Inc. – Case No. 75

Issues – Real Property – 1) Whether the trial court properly held that Respondent was not estopped from claiming that the covenant in question was still valid in light of a prior, unappealed ruling that the covenant had been waived by abandonment? 2) Whether the trial court properly held that the covenant at issue had not been waived or abandoned? 3) Whether beneficiaries of covenants can permit violations of one part of a covenant and still seek enforcement of other parts of the same covenant? 4) Whether the trial court abused its discretion in not granting pre-trial summary judgment, where collateral estoppel should have prevented the Respondent from re-litigating facts which had been found against it in an unappealed prior action?

State of Maryland v. Kevin Hardy – Case No. 73

Issues – Criminal Law – Did CSA incorrectly reverse the trial court’s denial of Respondent’s amended petition for writ of actual innocence without a hearing where Respondent did not satisfy the statutory requirements of Section 8-301 and where the CSA ruling was inconsistent with its own case authority on the issue?

State of Maryland v. Ronnie A. Hunt – Case No. 72

Issue – Criminal Law – Did CSA incorrectly reverse the trial court’s denial of Respondent’s amended petition for writ of actual innocence without a hearing where Respondent did not satisfy the statutory requirements of Section 8-301 and where the CSA ruling was inconsistent with its own case authority on the issue?

State of Maryland v. William Westray – Case No. 74
Petition and cross-petition both granted.

Issues – Criminal Law – 1) Did CSA err in determining that, where Respondent was represented by counsel and requested discharge of counsel, the trial court was required to determine and announce on the record that he was knowingly and voluntarily waiving the right to counsel? 2) Did the trial court abuse its discretion in denying Respondent’s request for the appointment of pro bono counsel on the grounds that it lacked the power to appoint pro bono counsel for Respondent?

Nancy Lee Kathryn Thompson, et al. v. UBS Financial Services, et al. – Case No. 76
Petition granted and protective cross-petition denied.

Issues – Torts – 1) Should this Court adopt RESTATEMENT (SECOND) OF TORTS § 242(2) and, in doing so, find that CSA erred in reversing the jury verdict for petitioners on conversion? 2) Did CSA err in reversing the jury verdict for petitioners on constructive fraud?

Lydia G. Wilcox, et al. v. Tristan J. Orellano – Case No. 77

Issue – Torts – Did CSA err in concluding that a stipulation of dismissal signed by both parties in a health care malpractice claim constituted a “voluntary dismissal … by the party who commenced the action” as intended by MD Code Ann., Courts & Jud. Proc. § 5-119(a)?

3 responses to “October 2014 Maryland Certiorari Grants”

  1. Anonymous Attorney says :

    The actual innocence cases, Hardy and Hunt, are curious choices for discretionary review. In both cases, petitioners raised “Kopera” claims, alleging that the false testimony of a State’s expert witness constituted newly discovered evidence that entitled them to new trials. Both petitions were dismissed without a hearing. Applying a recent COA decision directly on point (indeed, I would say materially indistinguishable, both factually and legally), Douglas v. State, 423 Md. 156 (2011), the COSA vacated and remanded for hearings. I wonder if the COA is inclined to reconsider Douglas–I cannot help but notice that, since Douglas was rendered, two new judges have been appointed to the COA.

  2. Michael Wein says :

    Anonymous Attorney,

    As you alluded, the Actual Innocence cases, are based on a Statutory “Writ of Actual Innocence” that was passed by the Md. General Assembly only a few years ago, discussed first in Douglas. There was a lot of interpretation left open as to exactly how such a remedy would function. (Though the Rules Cmte I believe did try to alleviate some of this) So technically, it’s distinguishable, as a statutory interpretation matter, that’s only had a few actual cases. The Federal “Actual Innocence” cases have a lot more case law, wherein Maryland only has a few cases that have interpreted the statute. With the Kulbricki case discussed in previous posts, which had some “Kopera” issues, perhaps the Court is seeking a way to harmonize these ‘alternative’ methods of relief of a Petition for Writ of Actual Innocence vs. seeking a traditional post-conviction remedy under the Post-Conviction Act. (The Post conviction Act, though, has more ways presumably for ‘waiver’, including not filing it within 10 years of conviction and sentence) Additionally, there’s been some case law I recall in the COSA, as to whether the trial Court is required to have a hearing before denying post-conviction relief, that may use some clarification. Though the two acts are technically distinguishable, there’sa lot of potential for overlap.


    • Anonymous Attorney says :

      The State’s cert petitions, interestingly enough, relied upon the Kulbicki opinion of COSA (which was reversed on other grounds). That opinion concluded that Kulbicki had waived his Kopera claim by failing to raise it in his direct appeal, since “a background investigation would have revealed that Kopera lacked the claimed college degrees.” 207 Md. App. at 444. Moreover, COSA agreed with the postconviction court’s finding that Kopera’s perjury was not material to the outcome of his trial. Id. at 446-48. Both of these conclusions are in tension with Douglas, but, in any event, there is one huge difference between Kulbicki and Douglas (as well as Hardy and Hunt): Kulbicki received a hearing on his claim, as he was entitled to under Criminal Procedure Article, 7-108, whereas none of the actual innocence petitioners did, since Criminal Procedure Article, 8-301(e)(2) allows a circuit court to dismiss a petition if it fails to assert grounds for relief.

      There is also an actual innocence case, Jackson v. State, 216 Md. App. 347, cert. denied, 438 Md. 740 (2014), not cited in the State’s cert petitions, that reached a similar conclusion to that in Kulbicki—namely, that the petitioner had failed to show “due diligence” in pursuing his Kopera claim, 216 Md. App. at 364-65, and that such evidence was, in any event, “merely impeaching” and therefore not material. Id. at 367-71. But Jackson, too, received a hearing below, and thus the standard of appellate review was merely abuse of discretion. Id. at 363-64.

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