Release on Bond Pending Criminal Appeals in Maryland

By Megan E. Coleman

There is a paucity of Maryland appellate opinions addressing the denial of bail pending an appeal after a criminal conviction. There exists one opinion in the Court of Appeals authored in 1970[1] and six opinions in the Court of Special Appeals authored between 1972 and 1984.[2]

By no means does this dearth of recent appellate cases indicate that defendants nowadays are getting bail pending appeal every time they ask for it. Rather, very few defendants ask for bail pending appeal, and those who do rarely seek appellate review after their request for release is denied.

Why is that? Why isn’t it more appealing to ask for an appeal bond?

As a basic principle, a convicted defendant has no right to bail pending appeal. Rather, such relief lies within the sound discretion of the trial judge.

Maryland Rule 4-349 outlines the factors to be considered by the trial judge in determining whether to grant a request for bail pending appeal after a criminal conviction. Not only must the trial judge consider factors similar to those for pre-trial release, but the rule clearly shifts the burden to the defendant to establish that the defendant poses no danger to the community and no risk of flight.

No longer does the defendant have the presumption of innocence on his side. In cases where the defendant has been convicted of a violent felony, arguments that the defendant is not going to be a danger to the community become less persuasive. Similarly, sentencing guidelines in those instances recommend lengthy periods of incarceration, so trial courts view these lengthy sentences as motivation for a convicted defendant to flee should he be released pending appeal.

The rule also requires that the defendant establish that a criminal appeal will not be frivolous or taken to cause undue delay. Criminal defendants only have a small chance of success on appeal, yet, because a direct appeal from a criminal conviction is a matter of right, every criminal defendant seeks a direct appeal, regardless of the merits of their arguments. Even in cases where error may be established on appeal, trial judges know that errors are often deemed harmless by the appellate courts.

Yet another obstacle for the convicted defendant seeking bail is that the defendant must make his plea for release to the very judge that presided over his trial – the rule requires that. Try getting relief by telling the trial judge how meritorious the appeal will be, in other words, how wrong the trial judge was in all of its rulings.

Moreover, under the rule, the defendant is only entitled to a hearing if the trial judge is considering revoking a previous order of release. A defendant is not entitled to a hearing if he is requesting release after having previously been detained pre-trial.

All of the above is not meant to imply that trial judges never release convicted defendants pending appeal. Criminal defense practitioners should not be dissuaded from utilizing this rule in the right type of case. So, what is the “right” type of case?

If, before the criminal conviction, the defendant was on pre-trial release, and had no history of violence or failures to appear at court, the defendant is off to a good start. Now, couple that with one of the following: (i) the case presents an issue of first impression, i.e., the trial court made a dispositive ruling that was not based on Maryland precedent; (ii) the case presents the type of error that typically results in reversible error, rather than harmless error; (iii) the trial court indicated that its ruling, or the jury’s verdict, was a close call; or (iv) the defendant’s sentence would result in eligibility for release in less time than it would take to exhaust the appellate process.

If the trial court grants release pending appellate review, the defendant’s sentence of imprisonment is stayed pursuant to Maryland Rule 4-348. Unless the trial court orders otherwise, the defendant will be permitted to remain out on appeal bond to prosecute his appeal, until the “termination of the appeal” at which point he will have to surrender to serve any required sentence. See Maryland Rule 4-349(c).

When is the “termination of the appeal”? Rule 4-349 does not tell you, but Rule 4-348(a) does. The termination of the appeal includes the time for filing a petition for writ of certiorari in any appellate court, including the United States Supreme Court. Therefore, just because the defendant may not prevail in the Court of Special Appeals, does not mean that he must surrender when that opinion issues. Rather, his appeal bond should continue for the duration of the time to exhaust all of his appellate rights.

In cases in which the defendant has been denied an appeal bond, there is relief that the defendant may seek; but you will not find it articulated in Maryland Rules 4-348 or 4-349. Rather, you must look to Maryland Rule 8-422(b), (c), and (d). After an appeal has been filed, and after a motion by a defendant seeking an appeal bond was denied in the lower court, the defendant may seek review in the Court of Special Appeals. The Court of Special Appeals, with or without a hearing, may (1) deny the motion; (2) increase, decrease, or fix the amount of the bond; (3) enter an order as to the surety or security of the bond, or the conditions of the stay; or (4) enter an order directing further proceedings in the lower court. Similarly, the Court of Appeals may consider a motion, and those options, with or without a hearing.

There is no real way to assess the trends of the appellate courts on issues of appeal bond because whether relief is granted or denied at the appellate level, it is done so quietly, rarely making its way into a reported decision.

If you have a case in federal court, consideration of requests for an appeal bond will be delineated by the following statutes and rules: 18 U.S.C. §§ 3142, 3143, 3145(c); Federal Rules of Criminal Procedure Rule 38; and Federal Rules of Appellate Procedure Rule 9.

The best you can do for your client is to be aware that these rules exist, be aware that there are circumstances that justify the request for an appeal bond at the trial level, and be aware that there is recourse at the appellate level.


[1] Whiteley v. Warden, Md. Penitentiary, 258 Md. 634 (1970).

[2] Bigley v. Warden, Md. Correctional Institution for Women, 16 Md. App. 1 (1972); Lewis v. Warden of Maryland House of Correction, 16 Md. App. 339 (1972); Long v. State, 16 Md. App. 371 (1972); Washburn v. Sheriff, Cecil County, 16 Md. App. 611 (1973); Gillis v. Commissioner, Dept. of Corrections, 52 Md. App. 26 (1982); and Hurley v. State, 59 Md. App. 323 (1984).

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