Boundless at the Trial Level, Toothless on Appeal: Maryland’s Law on Sentencing.
A few weeks ago, our Editor-in-Chief, Steve Klepper, wrote a piece entitled “Mental Illness and Maryland’s Toothless Review of Criminal Sentences” regarding the unreported decision, Robbins v. State. In Robbins (Nazarian, J.), the Court lamented, in dicta, about the lack of meaningful appellate review of a classic “over-sentence” for a defendant who suffered from severe mental health issues. In contrast, on March 8, 2023, the Appellate Court of Maryland chose to report Robson v. State, ACM-REG-0764-2022) (Moylan, J.) a decision affirming the trial court’s sentence that was substantially above the State’s recommendation, and without any of the regrets expressed in Robbins. Robson precisely makes Mr. Klepper’s point: a sentencing judge has boundless discretion and the appellate court’s review is toothless. Robson also suggests that changes in the status quo is unlikely without legislative action or new caselaw emanating from the Supreme Court of Maryland.
Read More…Kenneth Ravenell seeks Rehearing En Banc
On May 9, 2023, Kenneth Ravenell filed a Petition for Rehearing En Banc of the panel majority’s holding that Mr. Ravenell was not entitled to a jury determination on the applicability of the statute of limitations after Mr. Ravenell raised the defense at trial.
By way of background, Mr. Ravenell was acquitted of six of the seven charges against him, the sole count of conviction was for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). At trial, Mr. Ravenell moved for judgment of acquittal arguing, inter alia, that the government had not proven that the money laundering conspiracy lasted into the applicable statute of limitations period, past July 2, 2014. The district court denied the motion for acquittal, finding that the government had shown evidence of acts associated with the conspiracy past July 2, 2014, and that there was no evidence of withdrawal from the conspiracy on Mr. Ravenell’s behalf. At the end of the defense case, Mr. Ravenell renewed his motion which the court again denied.
Read More…Mental Illness and Maryland’s Toothless Review of Criminal Sentences
By Steve Klepper (Twitter: @MDAppeal)
Not many unreported opinions of the Appellate Court of Maryland receive coverage in the Washington Post. But Thursday’s edition included an article by Justin Jouvenal on the new unreported opinion in Alain Jean Marie Robbins v. State. I urge you to read the opinion—authored by Judge Nazarian and joined by Judges Berger and Leahy—particularly pages 26 to 29.
Reluctantly affirming the second-degree assault convictions of a woman who kicked deputies while in an acute mental health crisis, the Court wrote that in our “admittedly gratuitous appellate opinion, Ms. Robbins was grossly over-charged, over-prosecuted, and over-sentenced when what she really needed was help.” Although the sentence was “suspended save for time served,” the defendant “still has five consecutive five-year suspended sentences hanging over her head and, although currently at liberty, she stands one non-technical probation violation away from exposure to a quarter-century in prison.”
This opinion hit hard, especially when I later learned of the heartbreaking testimony by the defendant’s teenage son at sentencing.
Read More…Much Ado About Something: Freedom from Targeted Searches and Seizures Based on the Alleged Odor of Cannabis
By Michele D. Hall,[*]
Guest Contributor
In the last moments of the General Assembly’s 2023 legislative session, the House passed HB1071, which prohibits police from stopping or searching a person or vehicle based solely on (1) the odor of cannabis, (2) possession or suspicion of possession of cannabis, or (3) currency in proximity to cannabis without other indicia of distribution. HB1071 fundamentally changes the status quo. Currently, police routinely rely on the alleged odor of cannabis to search vehicles. The bill was a priority of the Legislative Black Caucus because marijuana laws are disproportionately enforced in communities of color.
Despite this fundamental change, Monday’s post “The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause” suggests that HB1071 is not significant because its substantive outcome was inevitable. The author argues that once marijuana is legal on July 1, “I think the Court would likely hold that the smell of marijuana, without more, is no longer probable cause to believe that the vehicle contains contraband or evidence of a crime. In other words, with or without HB1071, it is likely that vehicle searches based solely on the smell of marijuana are a thing of the past.”
It is not lost upon me that the quote from which the author draws the article’s title is: “It is a tale told by an idiot, full of sound and fury, signifying nothing,” from William Shakespeare’s Macbeth. For the author the noise around the change brought by HB1071is nothing more than sound and fury, which ultimately signifies nothing because the Supreme Court of Maryland would have reached this same result eventually.
Read More…The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause
Last Monday was the conclusion of the 2023 General Assembly session and it was even more chaotic than usual. Minutes before midnight, House Republicans were shouting at House Speaker Adrienne Jones and attempting to leave the chamber before the House was adjourned. I will leave it to others to comment on the state of Maryland politics. What interests me is the bill that caused the last-minute ruckus.
House Bill 1071 would enact Criminal Procedure § 1-211, which prohibits a police officer from stopping or searching a person, a car, or a boat based solely on: 1) the smell of burnt or raw marijuana; 2) possession or suspicion of possession of marijuana not exceeding the “personal use” amount; 3) currency near marijuana absent other indicia of an intent to distribute; or a combination of any of these three factors. HB 1071 also provides that an officer investigating a person solely for driving under the influence of marijuana may not search an area of the vehicle that is not readily accessible to the driver or “reasonably likely to contain evidence relevant to the condition of the driver[.]” Finally, HB 1071 contains an exclusionary provision that prohibits evidence “discovered or obtained in violation of this section, including evidence discovered or obtained with consent,” from being admitted at a trial or other proceeding.
Read More…Adnan Syed’s Convictions Reinstated for the Victims’ Right to Attend in Person
The Serial continues. On March 28, 2023, the Appellate Court of Maryland reinstated Adnan Syed’s convictions and sentence to life in prison plus 30 years, because it found that the trial court violated the victim’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of Criminal Procedure § 8-301.1(d) (Lee v. State, et al, No. 1291, September Term 2022, Opinion by Hon. Kathryn Graeff).
The Appellate Court found that, although the victim’s representative, Young Lee, did attend the vacatur hearing virtually, and had no right to be heard, he had the right to receive notice sufficient to allow him to attend in person. The Court further found that the subsequent entry of a nolle prosequi did not render this appeal moot because it was a nullity.
The Lee decision is the first time that the ACM expands the Court’s control over a nolle prosequi entered by the State in favor of a victim’s rights, and to the defendant’s detriment. The dissent (Hon. Stuart Berger), disagrees with the majority in two ways. First, Judge Berger would have held that the appeal was moot, and second, that the victim’s rights to notice and to be present were not violated.
Read More…Is Evidence of Innocence Exculpatory Enough?
The Maryland Supreme Court’s last opinion of 2022, Carver v. State, 482 Md. 469 (2022) (Hotten, J.) (Gould, J., dissenting), analyzed the cumulative impact of newly discovered evidence and held that the newly discovered evidence did not “speak to” petitioner’s innocence, and therefore, did not require granting a writ of actual innocence. However, Justice Gould’s pointed dissent illustrates the existing controversy over the application of the standard for how much newly discovered evidence is enough to warrant a new trial. Both the Majority and the Dissent agreed on the standard to apply. Still, in practical terms, does a petitioner have to show that the State’s evidence of guilt is insufficient? That is precisely how Justice Gould reads the Majority’s application of the standard, which effectively raises the bar for petitioners and turns the “substantial possibility of a different outcome” test into the functional equivalent of a preponderance of the evidence standard.
Read More…Enter Judge Pamela Harris
Adam Farra
Guest contributor
Remember when that partisan street fight broke out after Pamela Harris was nominated to the Fourth Circuit by President Obama? David Fontana wrote in The New Republic that “liberals should rally behind” then-nominee Harris because she – “more than any other Obama judicial nominee” (whew!) – would “be a sympathetic vote to liberal causes,” would “give rise to the next generation of liberal legal elites,” and would “be an eloquent and inspiring champion of liberal jurisprudence.” Carrie Severino blisteringly responded in National Review that the Senate “should be deeply skeptical of her ability to put the law ahead of her political views,” and National Review did multiple pieces attacking her candidacy. The questioning at her confirmation hearing tracked this line of attack. Confirmed with 50 votes (no filibuster after Harry Reid triggered the nuclear option), Judge Harris fortified Obama’s transformation of the Fourth Circuit.
A few years have passed – and were the commentators right? Is she a liberal lion and a conservative’s worst nightmare?
Fourth Circuit Proves Infertile Ground for Heller Expansion
By Stuart Berman
Guest contributor
In its 2008 decision in District of Columbia v. Heller[1], the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago[2] that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.
Md. High Court: No Post-Conviction DNA Test Requests After Alford Pleas
By John Grimm
The Court of Appeals recently held that defendants who plead guilty or enter an Alford plea are not eligible to request post-conviction DNA testing pursuant to Criminal Procedure § 8-201. Section 8-201 allows anyone convicted of a crime of violence to request DNA testing of evidence in their case, and § 8-201(d)(1) requires the court to order the requested testing if two conditions are satisfied:
(i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.
Md. Code Ann., Crim. Pro. § 8-201(d)(1). If the results of the DNA test are favorable to the petitioner, the court must open or reopen a post-conviction proceeding, or order a new trial. Id. § 8-201(i)(2).
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