Heffernan v. State

EYLER, JAMES R., J. Following a jury trial in the Circuit Court for Montgomery County, Delores Craft O’Brien Heffernan, appellant, was convicted of two counts of obtaining property with a value over $500, by presenting a bad check. The sentencing court imposed a ninety-day term of incarceration for each count, which was to be served consecutively. Appellant appealed and presents the following questions, which we quote: 1. Is the evidence insufficient to sustain the convictions for obtaining property by bad check where the checks were written for rent and a security deposit and if so, was [appellant] denied her right to effective assistance of counsel where her trial attorney failed to argue the motion for judgment of acquittal with particularity? 2.

Did the trial court abuse its discretion in denying appellant’s motion to set aside the verdict on the basis that bad checks for rent and a security deposit may not be prosecuted under the bad check statute? For reasons that follow, we are unable to address the merits of the first question, and we answer no to the second question. Accordingly, we affirm the judgments of the trial court. FACTUAL AND PROCEDURAL BACKGROUND In late October 2009, appellant saw an advertisement in a local newspaper for a basement apartment owned by Constance Heckert.

On November 1, 2009, after visiting the apartment at 11410 Stonewood Lane in Rockville, appellant and Ms. Heckert executed a lease agreement. The term of the lease was one year with a rental of $11,400, payable in $950 monthly installments. The lease also required a security deposit in the amount of $950. Ms. Heckert testified that, in accordance with her usual practice, she required payment of the first month’s rent and payment of the security deposit at the time she entered into the lease.

Appellant gave Ms. Heckert two checks dated ²³⁴ November 1, 2009, each in the amount of $950, one for the security deposit and one for the first month’s rent. Ms. Heckert testified that she “deposited [the cheeks] right away” and, on November 10, left to spend the winter in Florida. Ms. Heckert testified that, prior to leaving for Florida, she gave appellant an extra key to her home, so appellant could water plants. According to Ms. Heckert, she also instructed appellant to pay rent by directly depositing money in Ms. Heckert’s bank account.

In order to do this, Ms. Heckert stated that she provided appellant with the necessary information and deposit slips. Ms. Heckert testified to the following. On November 21, she discovered that appellant’s November 1 checks bounced due to insufficient funds. Two days later, on November 28, appellant promised to pay Ms. Heckert the amount owed.

On November 26, Ms. Heckert called appellant again because appellant failed to pay any money owed. The following day, appellant promised that, on November 30, she would deposit money into Ms. Heckert’s account. On December 2, 2009, appellant “called to say she had put in $1,000 after 6 o’clock,” but in fact she had deposited $340. Appellant claimed to have deposited an additional $950 that day, but in fact, the total amount appellant deposited into Ms. Heckert’s account between November 30-December 4, 2009 was $750.

On December 17, Ms. Heckert returned to her home in Rockville because she “knew that something was really -wrong.” Upon her arrival, she discovered that items of personalty were missing and that there was damage to both her home and appellant’s apartment. Appellant testified to the following. While seeing the apartment for the first time, she informed Ms. Heckert that she could not immediately move in due to her financial situation. Appellant explained that she could not move in because she would not receive enough money to cover rent until November 15, after which time she could enter into a lease.

Appellant asked Ms. Heckert if she would be willing to take postdated checks, but Ms. Heckert was unwilling to oblige. While Ms. ²³⁵ Heckert was unwilling to take postdated checks, she was willing to refrain from cashing the rent check until November 15. Specifically, Ms. Heckert said: “We can start the lease today and, if you give me the checks, I will hold the checks until you tell me when is appropriate to deposit them.” Ms. Heckert stated that she would not cash the security deposit check until November 30. Appellant testified that there were many problems with her apartment.

She stated that she contacted Ms. Heckert on either November 20 or November 23 about problems with the heating and ventilation. Ms. Heckert was unwilling to resolve the problem to appellant’s satisfaction, and as a result, according to appellant, she informed Ms. Heckert that she was vacating the premises. Appellant also explained that she deposited $750.00, not the $950.00 owed for the first month’s rent, because she and Ms. Heckert had an agreement that appellant would clean Ms. Heckert’s house for $200.00. Appellant did not deposit the additional $950.00 owed for the security deposit because, according to her testimony, Heckert said “forget about the other check since [appellant] was prorating and moving out.” After appellant’s motion for judgment of acquittal was denied, the jury convicted appellant of two counts of obtaining property with a value over $500.

Subsequently, appellant, despite having counsel of record, filed, without counsel’s signature, an “Emergency Motion To Set Aside Jury Verdict As A Matter of Law.” In the motion, appellant argued that bad checks for rent are not subject to criminal penalties. In support of her motion, appellant attached a copy of the District Court of Maryland’s webpage, which provided that bad checks in payment “under a contract” cannot be deemed a criminal violation. Specifically, in pertinent part, the attached page provided: What is a Bad Check Violation? A bad check violation occurs when a person gives another person or business a bad check for an immediate exchange of goods or services. ²³⁶ Two conditions must be met to charge an individual with a bad check violation: • An immediate exchange of goods or services.

A bounced check is not always a bad check violation. For example, payments under a contract, such as checks for rent, utilities, or car payments are not bad check violations. Debtors must be pursued through civil litigation in these instances.... The court denied appellant’s motion by written order.

Additional facts will be supplied as necessary in our discussion of the issues. DISCUSSION I Statutory Provisions and Contentions of Parties The relevant statutory provisions are as follows: Criminal Law Article (CL) § 8-103 of the Maryland Code Annotated (Md.Code Ann.) (2002, 2010 Supp.) provides in pertinent part: (a) Issuing check with knowledge of insufficient funds.—A person may not obtain property or services by issuing a check if: (1) the person knows that there are insufficient funds with the drawee to cover the check and other outstanding checks; (2) the person intends or believes when issuing the check that payment will be refused by the drawee on presentment; and (3) payment of the check is refused by the drawee on presentment. (Emphasis added). Pursuant to CL § 8-101 (h), the term “Property has the meaning stated in § 7-101 of this article,” and pursuant to § 8-101(j), “Service” includes: ²³⁷ (1) labor or professional service; (2) telecommunication, public utility, toll facility, or transportation services; (3) lodging, entertainment, or restaurant service; and (4) the use of computers, data processing, or other equipment.

(Emphasis added). CL § 7-101 provides the following definition for the word property: (i) Property.— (1) “Property” means anything of value. (2) “Property” includes: (i) real estate; (ii) money; (iii) a commercial instrument; (iv) an admission or transportation ticket; (v) a written instrument representing or embodying rights concerning anything of value, or services, or anything otherwise of value to the owner; (vi) a thing growing on or affixed to, or found on land, or part of or affixed to any building; (vii) electricity, gas, and water; (viii) a bird, animal, or fish that ordinarily is kept in a state of confinement; (ix) food or drink; (x) a sample, culture, microorganism, or specimen; (ad) a record, recording, document, blueprint, drawing, map, or a whole or partial copy, description, photograph, prototype, or model of any of them; (xii) an article, material, device, substance, or a whole or partial copy, description, photograph, prototype, or model of any of them that represents evidence of, reflects, or records a secret: 1. scientific, technical, merchandising, production, or management information; or ²³⁸ 2. designed process, procedure, formula, invention, trade secret, or improvement; (xni) a financial instrument; and (xiv) information, electronically produced data, and a computer software or program in a form readable by machine or individual. (Emphasis added).

Appellant contends that CL § 8-103 does not apply to her because “a leasehold interest in a rental apartment does not meet the definition of ‘property’ or ‘services’ applicable to the bad check statute.” In addition, appellant argues that appellant did not “obtain” anything in exchange for the checks, explaining that appellant obtained possession because of the signed lease, not because of the checks. At the very least, appellant argues, the statute is ambiguous, and because it is a penal statute, it should be strictly construed. Appellant acknowledges, however, that the issue of legal sufficiency was not argued in support of her motion for judgment of acquittal, as required by Md. Rule 4-324(a). She argues that the failure to do so constituted ineffective assistance of counsel.

Appellant recognizes that, ordinarily, we would not review an ineffective assistance claim on direct appeal but rather leave it for a post-conviction proceeding. Nevertheless, appellant argues that we should address the issue because the critical facts are not in dispute and the trial record “is sufficiently developed” to allow us to review the issue before us. In addition, appellant points out that she has no other means of obtaining review because she has served her sentence and, thus, cannot bring a post-conviction proceeding. See Testerman v. State, 170 Md.App. 324, 343 , 907 A.2d 294 (2006), cert. dismissed, 399 Md. 340 , 924 A.2d 308 (2007).

In addition, she cannot satisfy the requirement of alleging and proving significant collateral consequences in order to maintain a coram nobis action. See Md. Rule 15-1202(b)(1)(F). Finally, in the alternative, appellant argues that if we do not review the question of legal sufficiency in the context of ²³⁹ ineffective assistance of counsel, we should review it in the context of the circuit court’s denial of appellant’s motion to set aside the verdict.

II

Preservation and Ineffective Assistance of Counsel There is no dispute that appellant’s counsel failed to preserve the claim before us. Counsel did not make the arguments that appellant now urges on appeal. To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient and that it prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

While we do not readily perceive a trial strategy that would explain defense counsel’s failure to raise the issue of legal sufficiency, we do note that counsel refused to endorse the argument when raised by appellant in her post-verdict motion. Nevertheless, even though the record is sufficient to enable us to address the merits, as we shall explain, the result would not have been different. Consequently, appellant cannot satisfy the prejudice prong of Strickland .

III

Motion to Set Aside the Verdict Appellant’s final contention is that the court abused its discretion in denying her motion to set aside the verdict. The court abused its discretion, appellant argues, because it “summarily denied the motion, by written order, and thereby denied [appellant’s] request that her motion ‘be heard on an emergency basis.’ As a result, the court’s basis for denying the motion is unknown.” Appellant urges us to reach the question of legal sufficiency in this context. Ordinarily, in a case tried before a jury, we will not reach the merits of a challenge to the legal sufficiency of the evidence in the context of