August 2018 Maryland Certiorari Grants

By Steve Klepper (Twitter: @MDAppeal)

On Friday, the Court of Appeals of Maryland granted certiorari in three criminal cases and one civil case. All three criminal grants were on petitions by the State.

One that jumps out is In re G.R., where the State challenges an unreported Court of Special Appeals opinion that struck $65 from a restitution award in a juvenile case. For comparison, the filing fee for a certiorari petition is $61. It is a good reminder that neither the unreported status of an opinion nor a small amount in controversy is an insurmountable barrier to convincing the Court of Appeals that guidance would be desirable and in the public interest. Even when the State is the petitioner in a criminal appeal, certiorari is likely but far from inevitable. Although the docket and filings are not publicly available in a juvenile appeal like In re G.R., it must have been a heck of a petition from the Criminal Appeals Division.

Because Senior Judge Harrell sat on the In re G.R. Court of Special Appeals panel, he would be recused from hearing the case in the Court of Appeals. His absence reduces the odds that the Court of Appeals opinion will begin with an explanation of the pop culture origins of the phrase “The $64 Question.”

The full list of certiorari grants, with questions presented, is below.

Commissioner of Labor and Industry v. The Whiting-Turner Contracting Company – Case No. 30, September Term, 2018(Reported COSA Opinion by Graeff, J.)

Issues – Labor & Employment – 1) Did Petitioner correctly determine that Respondent’s failure to follow the shoring-tower manufacturer’s instructions to use gooser braces in assembling a shoring tower supporting a concrete slab, which resulted in serious injury and death, constituted a recognized hazard within the meaning of § 5-104(a) of the Labor & Employment Article (“L&E”)? 2) Did Petitioner correctly determine that Respondent’s use of an undersized spacer beam in the upper support system of a shoring tower constituted a recognized hazard within the meaning of L&E § 5-104(a)?

In re: G.R. – Case No. 32, September Term, 2018 (Unreported COSA opinion by Beachley, J.)

Issue – Criminal Procedure – Where a robbery victim whose house keys are stolen takes the reasonable and prudent action of replacing the locks that corresponded to the stolen keys, are the costs associated with replacing those compromised locks a “direct result” of the robbery for the purposes of ordering restitution?

State of Maryland v. Purnell Shortall – Case No. 31, September Term, 2018 (Reported COSA opinion by Meredith, J.)

Issues – Criminal Procedure – 1) Did CSA misapply the Strickland v. Washington, 466 U.S. 668 (1984), standard when it reversed the post-conviction court’s determination that counsel was not ineffective for failing to object to a continuing violation jury instruction? 2) Assuming CSA correctly determined that trial counsel was ineffective, did CSA err by ordering the vacating of Respondent’s convictions instead of remanding for a new trial?

State of Maryland v. Patrick Joseph Thomas a/k/a Patrick Joseph Patrick – Case No. 33, September Term, 2018 (Reported COSA opinion by Friedman, J.)

Issues – Criminal Law – 1) As a matter of first impression, may a seller of heroin be convicted of a murder-related offense where the buyer of the heroin dies after ingesting it? 2) Did CSA assume facts not in evidence and otherwise usurp the role of the fact-finder when it held that, as a matter of law, the State presented insufficient evidence of gross negligence and causation to sustain Respondent’s manslaughter conviction?