Garrison v. State

DALE R. CATHELL, Judge (specially assigned). Appellant William R. Garrison was convicted in the District Court of Maryland sitting in Baltimore. City of assault and four related traffic offenses. Appellant asked his attorney to perfect an appeal to the circuit court in the matter.

The appeal never was filed. ¹³¹ In his pro se petition for post conviction relief and during the post conviction hearing, appellant alleged that because of his attorney’s failure to file an appeal on his behalf, he was denied his right to a direct appeal to the circuit court for a trial de novo. He requested in his petition the right to file a belated appeal. Finding that appellant failed to present substantive evidence supporting the likelihood of success on the merits as to his guilt or innocence, thus essentially finding that appellant had failed to present evidence of prejudice, the post conviction court denied relief. Appellant appealed to the Court of Special Appeals, and we granted certiorari before that court heard arguments in this case.

I. Facts The facts of this case are not seriously disputed. Appellant William R. Garrison initially was charged with assault with intent to murder, assault, and trespass for acts occurring on July 17, 1995. He also was charged with four traffic offenses: attempting to elude, driving through a red signal, failing to remain at the scene of an accident involving property damage, and reckless driving. On September 26, 1995, after the State nol prossed the assault with intent to murder charge, appellant was tried in the District Court and found guilty of the assault charge and traffic offenses.

He was sentenced on December 5, 1995, to a two-year term of incarceration for the assault charge and to time served plus fines for the traffic offenses. Evidence presented at the post conviction hearing indicated that on the day he was convicted in the District Court, appellant asked his attorney to file an appeal on his behalf. 1 Appellant’s attorney agreed with appellant, suggesting that he should appeal the judgment, but told appellant an appeal could not be filed until after sentencing. Counsel later wrote appellant a letter encouraging him to appeal his conviction, and ¹³² appellant responded in a letter that he unquestionably desired an appeal. On his own volition and prior to sentencing, appellant wrote to the Circuit Court for Baltimore City requesting appeal forms.

Appellant received in response a letter asking for his case number. After sentencing, appellant again told his attorney that he desired to file an appeal. At some point, appellant’s father helped in arranging representation with appellant’s trial attorney for the appeal, but that attorney did not pursue the appeal. Appellant also made numerous statements to other parties during this time indicating his desire and intent to file an appeal.

After his sentencing and still within the time permitted for filing an appeal, appellant again wrote to the circuit court stating his desire to appeal the District Court judgment. The circuit court informed appellant by a letter dated December 12, 1995, that he must file his appeal with the District Court. Appellant wrote to the District Court to request the required forms, but on December 29, 1995, he was moved to a different institution before he received a response. After he was transferred, appellant again requested appeal forms from the District Court.

The District Court’s response did not arrive, however, until after the deadline to file an appeal had passed. During the time in which his appeal could have been perfected, appellant also requested assistance in filing his appeal from the Office of the Public Defender’s Post Sentence Assistance Unit, but an assistant public defender did not respond to appellant’s request until after the deadline to file an appeal had passed. Although not completely clear from the District Court docket entries, it appears that at all times during which appellant was attempting to have his counsel perfect an appeal and while he was actively seeking assistance from the respective courts and the Public Defender’s office, he was incarcerated. Appellant filed a pro se petition for post conviction relief with the circuit court on June 19, 1996, requesting a belated appeal for a trial de novo in the circuit court.

Appellant ¹³³ alleged in his petition that he had been denied his right to a direct appeal. The hearing judge denied appellant’s request for relief, stating that “[bjecause the [appellant] failed to present evidence required to support his request for a belated appeal, it is unnecessary to determine whether counsel’s performance was deficient.” Appellant presents one question for review: Does a post-conviction petitioner seeking a de novo appeal to the circuit court from a District Court conviction based on counsel’s failure to file [a] requested appeal need to present evidence of the District Court proceedings to prove that his appeal is likely to be successful in order to qualify to receive the belated appeal?

II

Discussion Appellant’s request was premised upon the argument that he was denied the right to an appeal to the circuit court because of his attorney’s failure to file an appeal. In its written Order filed March 28, 1997, the post conviction hearing court denied appellant’s request for a belated appeal. After analyzing several cases, the trial court stated: At the post conviction hearing, [appellant] presented evidence in the form of testimony and documents to support his contention that he made several unsuccessful attempts to perfect an appeal himself as well as making requests of his attorney to file an appeal on his behalf. Because [appellant] failed to present evidence required to support his request for a belated appeal, it is unnecessary to determine whether counsel’s performance was deficient.

Where [appellant’s] ease falls short is that he did not present any substantive evidence regarding the District Court trial or the issues about which he ivas ccmcemed. [Appellant] implies, but does not in any sense demonstrate, that the evidence before the District Court was not legally sufficient to sustain his assault conviction. Without knowing what that evidence was, or what any newly discovered or now available evidence might be, this Court has no more ¹³⁴ idea now that the post conviction hearing has occurred than it did prior to the hearing as to why [appellant] believes he would have prevailed on appeal. At a minimum, he should have presented an explanation and analysis of the evidence before, and rulings by the District Court, or a transcript of those proceedings with similar analysis, and/or testimony concerning newly discovered or now, but not then available evidence so that this Court could make some assessment as to whether there was indeed a colorable basis for the appeal, a substantial possibility that the result, on appeal would have been different or whether the appeal would have any merit or was likely to succeed. [Emphasis added; footnote omitted; citations omitted.] Appellant initially requests that we reverse and permit him to file a belated appeal as a post conviction remedy because he was denied his right to an appeal through no fault of his own. Alternatively, as to this issue, appellant requests that this case be remanded for a hearing to determine whether his right to effective assistance of counsel was violated so that he should be granted a belated appeal as post conviction relief.

We shall not directly address the issue of effective assistance of counsel. Appellant also argues that the post conviction court erred in requiring him to present evidence from the District Court. He contends that the cases interpreted by the hearing judge as imposing a requirement that a post conviction petitioner show a likelihood of success on the substantive merits of his appeal are, even if properly interpreted by the circuit court, either inapplicable to de novo appeals from the District Court or are distinguishable. Appellant bases the second part of his argument primarily on the inherent differences between de novo appeals from the District Court, which require no record from the lower court, and appeals from the circuit court to either the Court of Special Appeals or this Court, which usually are on the record.

We shall base our decision on the provisions relating to de novo appeals from the District Court to the circuit court and on the Maryland case law relating to requests for belated appeals in criminal cases. ¹³⁵ Appellee gives some credence to appellant’s argument that the circuit court erred in requiring appellant to show a likelihood of success on the substantive merits of the appeal of his District Court convictions in order to prevail on his post conviction request for a belated de novo appeal. Nonetheless, appellee argues we should remand the case to the circuit court for further proceedings because the post conviction court explicitly chose not to resolve the issue of whether appellant’s counsel executed his services deficiently by not noting the appeal. We hold that the hearing court erred in imposing a requirement that appellant show prejudice by presenting evidence from the District Court proceedings to prove that he was likely to succeed on the merits of an appeal from his underlying convictions. Moreover, we shall direct the trial court to grant petitioner a belated appeal.

We explain. A. De Novo Trials A defendant convicted in the District Court of Maryland is guaranteed a right to appeal that conviction to the circuit court. Stone v. State, 344 Md. 97, 105 , 685 A.2d 441, 444 (1996) (“An appeal from a judgment of the District Court is an appeal as a matter of right.”); Burch v. State, 278 Md. 426, 428 , 365 A.2d 577, 578 (1976) (noting that section 12-401 of the Courts and Judicial Proceedings Article “grants to a criminal defendant, without qualification, the right to appeal from a final judgment in the District Court.”). The Maryland Code dictates that this appeal “shall be tried de novo.” Md. Code (1973, 1995 Repl.Vol., 1997 Supp.), § 12-401(f) of the Courts and Judicial Proceedings Article (CJ); Md. Rule 7-102(b). 2 Notice of appeal must be filed within thirty days after the entry of the judgment or order by the District Court.

Md. Rule 7-104(a). ¹³⁶ In Hardy v. State, 279 Md. 489 , 369 A.2d 1043 (1977), we were called upon to examine whether a defendant convicted in the District Court had a right to a jury trial in the circuit court upon an appeal de novo. In that context, we explained that “de novo” generally means “afresh” or “anew,” and concluded that the legislature intended that term, as used in section 12-401 of the Courts and Judicial Proceedings Article, to mean that an appeal de novo “be treated as an original circuit court proceeding.” Id. at 494-95 , 369 A.2d at 1047 . See also Kleberg v. State, 318 Md. 411, 415 , 568 A.2d 1123, 1124 (1990) (quoting Hardy, 279 Md. at 494-95 , 369 A.2d at 1047 ). Accordingly, an appeal de novo to the circuit court “is treated as a wholly original proceeding as if the charges had not been heard before and no decision had been rendered.” State v. Jefferson, 319 Md. 674, 681 , 574 A.2d 918, 921 (1990) (citing Hardy, 279 Md. at 493 , 369 A.2d at 1046 ).

Consistent with our views expounded in Hardy and its progeny, this unqualified review in the circuit court is not simply a rehashing of the case presented in the District Court. Rather, because the appeal is actually a trial de novo, the State and the defendant, if they so choose, normally must produce evidence a second time. Huff v. State, 325 Md. 55, 66 , 599 A.2d 428, 433 (1991). See also Kirsner v. State, 296 Md. 567, 571 , 463 A.2d 865, 867 (1983) (noting that because appeals from the District Court are heard de novo, the circuit court cannot review any materials from the District Court proceedings).

Additionally, the parties in the circuit court de novo trial generally neither are limited to the evidence presented at the District Court trial nor are required to present the same evidence. 3 With regard to belated de novo appeals, Pennsylvania utilizes procedures similar to this State’s, where certain convictions entered in its District Courts can be appealed only to the Court of Common Pleas. In Commonwealth v. Jarema, 404 ¹³⁷ Pa.Super. 121, 590 A.2d 310 (1991), the Superior Court of Pennsylvania granted Jarema an appeal nunc pro tunc 4 for traffic violation convictions where the District Court judge may not have advised Jarema fully of his unqualified right of appeal to the Court of Common Pleas. In discussing Pennsylvania’s appeals procedures, the Court stated: “There are no preconditions or qualifying criteria which must be met before the right to appeal a [conviction in the District Court] attaches .... The right to appeal for trial de novo is emasculated if a defendant is not informed of his or her right to appeal and how to perfect such an appeal.” Id. at 123, 590 A.2d at 311-12 (citation omitted).

In Commonwealth v. Stock, 545 Pa. 13 , 679 A.2d 760 (1996), the defendant’s attorney told the defendant that his hearing for traffic citations to be held in the District Court had been postponed and that it was unnecessary for the defendant to attend the hearing. This information was incorrect, and the defendant was tried in absentia. He asked his attorney to appeal the convictions to the Court of Common Pleas for a trial de novo, but the attorney failed to file a timely appeal. Thus, the issue before the Supreme Court of Pennsylvania was “whether an appeal nunc pro tunc should be granted to a ¹³⁸ defendant in a summary criminal case where his privately retained attorney failed to perfect a timely appeal to the Court of Common Pleas.” Id. at 14 , 679 A.2d at 761 .

In reversing the Superior Court, the Supreme Court of Pennsylvania opined that “an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances.” Id. at 19 , 679 A.2d at 764 . Accordingly, because the defendant otherwise would be denied his appeal of right of the District Court convictions because of his attorney’s inaction, the circumstances of that case warranted granting the defendant the remedy of an appeal