Rosales v. State

Wilfredo Rosales v. State of Maryland, No. 6, September Term, 2018. Opinion by Getty, J. APPEAL AND ERROR—EFFECT OF DELAY OR FAILURE TO TAKE PROCEEDINGS Maryland Rule 8-202, which requires that a notice of appeal shall be filed within thirty days after entry of the final judgment is a claim-processing rule, not jurisdictional. Therefore, the ground for dismissal of an untimely appeal is not jurisdictional, but is for failure to comply with the Maryland Rules. The Rule is also subject to waiver and forfeiture.

EVIDENCE—IMPEACHMENT BY PRIOR CONVICTION—PRIOR CRIMES, WRONGS OR ACTS Pursuant to Maryland Rule 5-609, a witness’ prior convictions under Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. § 1959 are admissible for witness impeachment. VICAR convictions involve criminal acts that are relevant to a witness’ credibility. Therefore, the convictions are admissible for purposes of witness impeachment. Circuit Court for Prince George’s County Case No. CT121814X Argued: September 7, 2018 IN THE COURT OF APPEALS OF MARYLAND No. 6 September Term, 2018 WILFREDO ROSALES v. STATE OF MARYLAND Barbera, C.J. Greene, *Adkins, McDonald, Watts, Hotten, Getty, JJ.

Opinion by Getty, J. Filed: April 17, 2019 *Adkins, J., now retired, participated in the Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. hearing and conference of this case while an active member of this Court; after being recalled 2019-04-25 09:55-04:00 pursuant to the MD. Constitution, Article IV, Section 3A, she also participated in the decision Suzanne C. Johnson, Clerk and adoption of this opinion. In this case we are asked to determine whether a witness’ prior convictions for committing a violent crime in aid of racketeering in violation of 18 U.S.C. § 1959 (“VICAR offenses”) are admissible for witness impeachment under Maryland Rule 5-609. Specifically, the Defendant sought to impeach the State’s witness with the witness’ conviction of conspiracy to commit assault with a dangerous weapon in aid of racketeering and threatening to commit a crime of violence in aid of racketeering.

We hold that a witness’ prior convictions for VICAR offenses are admissible for witness impeachment. Convictions for VICAR offenses cross the conceptual dividing line between crimes involving the basic level of dishonesty required to commit any crime and those characterized by inherent deceitfulness, furtive conduct, and disregard for societal cohesiveness. Individuals who choose to involve themselves with an enterprise engaged in racketeering activity and who choose to commit or conspire to commit violent acts with the express purpose of aiding such an enterprise are also likely willing to lie under oath, as judged by our standard outlined in State v. Giddens, 335 Md. 205 (1994). The trial court erred in excluding the witness’ prior convictions for impeachment purposes at trial.

However, we hold further that the exclusion of these convictions was harmless beyond a reasonable doubt. Therefore, the Court of Special Appeals’ affirmation of the trial court’s exclusion of the convictions is reversed, but Mr. Rosales is not granted a new trial. After we granted certiorari, the State raised for the first time the issue of jurisdiction and contended that this Court did not have jurisdiction to reach the merits. As a result, we also address this Court’s jurisdiction and review our prior classification of Maryland Rule 8-202 as a “jurisdictional” rule that required immediate dismissal of an appeal for lack of jurisdiction.

For the following reasons, we determine that this Court has jurisdiction to reach the merits. Although in the past this Court has considered the thirty-day time limitation for noticing an appeal within Maryland Rule 8-202 as “jurisdictional,” that deadline is based on a rule and not on a statute. Therefore, the basis for dismissal for failure to file a notice of an appeal within thirty days is not lack of jurisdiction, but failure to comply with the Maryland Rules. Furthermore, appellate courts must also consider waiver and forfeiture before dismissing an appeal.

As explained in detail below, jurisdiction in this case is consistent with Maryland Rule 8-202. BACKGROUND A. Underlying Facts This case involves an encounter between a former member of the Mara Salvatrucha (“MS-13”) gang, Hector Hernandez-Melendez (“Mr. Hernandez-Melendez”), a.k.a. “Scrappy,” and a group of current MS-13 members. Mr. Hernandez-Melendez was walking to his girlfriend’s home on September 26, 2012 at about 7:00 p.m. through the Langley Hampshire Neighborhood Park in Langley Park, Prince George’s County, Maryland. While Mr. Hernandez-Melendez was resting on a swing, Wilfredo Rosales (“Mr. Rosales”) and six other men approached Mr. Hernandez-Melendez and asked if he was Scrappy.

Mr. Hernandez-Melendez said no. The group then asked Mr. Hernandez- Melendez to lift his shirt. When Mr. Hernandez-Melendez refused, he was thrown to the ground and stabbed by someone in the group. 2 An ambulance transported Mr. Hernandez-Melendez to Washington Hospital Center. After Mr. Hernandez-Melendez received care for his injuries, detectives arrived and questioned him.

He told the detectives that he did not recognize any of his attackers except for Mr. Rosales. He knew Mr. Rosales did not stab him but he believed that Mr. Rosales removed $150 from his wallet. He also believed Mr. Rosales was the instigator of the attack because Mr. Rosales was the only one in the group who would have recognized Mr. Hernandez-Melendez. According to Mr. Hernandez-Melendez, he “walk[ed] through” Mr. Rosales in 2006.1 However, after that encounter and prior to the incident in the park, Mr. Hernandez- Melendez had not had any contact with Mr. Rosales since 2006.

Mr. Hernandez-Melendez confirmed the identity of Mr. Rosales through photo identification. Based upon this identification, Mr. Rosales was arrested. B. The Trial The State charged Mr. Rosales with nine counts related to the assault of Mr. Hernandez-Melendez. On May 30, 2013, a jury trial began in the Circuit Court for Prince 1 “Walking through” is the description Mr. Hernandez-Melendez gave to the process of entering MS-13.

During the “walking through” period, an individual is not yet a full member of MS-13. An individual is inducted as a full MS-13 member after they are “jumped in.” Mr. Hernandez-Melendez testified that Mr. Rosales was “walking through” for a period of approximately four months before they lost contact. Mr. Hernandez- Melendez was not in contact with Mr. Rosales when Mr. Rosales allegedly “jumped in,” gaining full membership into MS-13. Sergeant Norris, who was accepted as an expert at trial to testify about MS-13 stated the following pertaining to “jumping in”: “A jump-in is basically you’re beaten.

It’s called a 13 or you’re beaten for 13 seconds. And when they do this, thirteen seconds isn’t by a stopwatch. It’s whoever’s counting. We’ve timed them going up to over a minute and a half to become a member.” 3 George’s County and Mr. Hernandez-Melendez testified in the State’s case.

During direct examination, Mr. Hernandez-Melendez testified about his prior experience as a member of MS-13. He stated that in his opinion, he was attacked as retaliation for testifying as a government witness against three MS-13 members in a federal homicide trial in Washington, D.C. in 2009. Prior to Mr. Rosales’ cross-examination of Mr. Hernandez-Melendez, the trial court heard argument on the State’s motion in limine to preclude Mr. Rosales from questioning Mr. Hernandez-Melendez about his 2011 conviction in the United States District Court for the District of Columbia for conspiracy to commit assault with a dangerous weapon in aid of racketeering and threatening to commit a crime of violence in aid of racketeering in violation of the federal statute, Violent Crimes in Aid of Racketeering Activity (“VICAR”), 18 U.S.C. § 1959 . The State asked the trial court to prohibit admission of the convictions under Maryland Rule 5-609.

The State argued that these were convictions that could not be used to impeach his credibility, contending that these crimes were neither infamous crimes nor crimes relevant to credibility. Mr. Rosales argued that these offenses were impeachable because they were relevant to credibility and were different from other crimes of violence. The trial court granted the State’s motion and ruled, “we are going to exclude any reference to his conviction, and we are going to exclude any questions as to what he was in jail for.” After the conclusion of the trial, the jury deliberated and found Mr. Rosales guilty of two of the nine counts—retaliation against a witness and participation in a criminal gang. On June 26, 2013, the trial court sentenced Mr. Rosales to twelve years of imprisonment 4 with six years suspended on the conviction for retaliation against a witness and a consecutive sentence of ten years with five years suspended on the conviction for participation in a criminal gang.

C. Post-Trial Proceedings Mr. Rosales filed an initial notice of appeal on October 16, 2013 and a motion to permit a notice of appeal past the filing date. The circuit court granted the motion. The initial appeal was docketed in the Court of Special Appeals as No. 1835, September Term 2013. Mr. Rosales voluntarily dismissed this appeal in October 2014.

On September 27, 2016, Mr. Rosales filed a Petition for Postconviction Relief. Among other allegations, Mr. Rosales alleged ineffective assistance of his trial counsel because he had requested that trial counsel file an appeal and trial counsel did not timely file the appeal. A hearing on the petition was scheduled for February 1, 2017. Prior to the start of the hearing, the State agreed that Mr. Rosales was entitled to file a belated appeal.

During the hearing, the State and Mr. Rosales briefly went on the record to inform the postconviction court that they had reached an agreement. Specifically, the State said: Your Honor, in this case, trial counsel filed a notice of appeal past the filing date, and then tried to get it recognized. . . which he wasn’t able to do. We are willing to—I think it’s the right thing to grant a belated appeal, and to hold the rest of the post-conviction issues in abeyance for Mr. Rosales. The postconviction court agreed to sign the proposed consent order, and the order was docketed.

The consent order authorized a belated notice of appeal and ordered that the postconviction petition be withdrawn without prejudice. In the consent order, Mr. Rosales was permitted to re-file a petition “after the appellate process is concluded, provided the 5 filing occurs within ten (10) years from [the] original sentencing date.” Mr. Rosales subsequently filed the belated appeal. In an unreported opinion filed on December 11, 2017, the Court of Special Appeals affirmed the judgment of the trial court, holding that the trial court properly concluded that Mr. Hernandez-Melendez’s prior convictions involved violent crimes that were not relevant to credibility and were non-impeachable crimes under Maryland Rule 5-609. Rosales v. State, No. 2659, Sept. Term, 2016, 2017 WL 6312861 , at ⁸ (Md. Ct. Spec.

App. Dec. 11, 2017). Regarding jurisdiction, the Court of Special Appeals noted in a footnote that Mr. Rosales was given a belated opportunity to file a notice of appeal through postconviction relief. Id. at ¹ . The footnote stated, “[a]ppellant’s initial appeal was voluntarily dismissed as untimely filed.

Appellant subsequently filed a Petition for Post- Conviction Relief based on his counsel’s failure to note a timely appeal, and he was given the right to file a belated notice of appeal.” Id. at *n.1. Neither party had raised any issue about jurisdiction before the Court of Special Appeals. Mr. Rosales petitioned this Court for a writ of certiorari, which this Court granted on March 6, 2018. Mr. Rosales presents one question for our review: 1.

Were the complainant’s prior convictions for committing violent crimes in aid of racketeering activity, i.e., for conspiracy to commit assault with a dangerous weapon in aid of racketeering activity and threatening to commit a crime of violence in aid of racketeering activity, admissible for purposes of impeachment under Maryland Rule 5-609? As explained more fully below, we answer yes. On August 28, 2018, after briefing this Court on the merits, the State raised for the first time a lack of appellate jurisdiction in the Court of Special Appeals and this Court and 6 filed a Motion to Vacate and Remand with Instructions to Dismiss for Lack of Jurisdiction. The State argued dismissal of this matter was mandatory and that the Court of Special Appeals should have never addressed the merits of this case.

Mr. Rosales filed a response on September 4, 2018, arguing that the State waived any claim for lack of jurisdiction in this matter. Accordingly, we will also address the jurisdiction issue below. STANDARD OF REVIEW “The standard of appellate review of an evidentiary ruling turns on whether the trial judge’s ruling was based on a pure question of law, on a finding of fact, or on an evaluation of the admissibility of relevant evidence.” Brooks v. State, 439 Md. 698, 708 (2014). Whether or not a crime bears upon credibility or is an infamous crime under Maryland Rule 5-609 is a question of law.

State v. Giddens, 335 Md. 205, 213 (1994). Questions of law are reviewed under the de novo standard. Brooks, 439 Md. at 708–09. Accordingly, we will review the trial court’s ruling on the evidence without any deference.

DISCUSSION A. Appellate Jurisdiction of this Court In the State’s Motion to Vacate and Remand with Instructions to Dismiss for Lack of Jurisdiction, the State argues that this Court lacks jurisdiction for two reasons. First, the consent order did not make the prerequisite findings that would warrant a court granting a belated opportunity to appeal as postconviction relief. Second, under Maryland Rule 4- 407, the consent order is not a final judgment. Mr. Rosales argues that the State waived any jurisdictional claim because the State did not raise the jurisdictional issue earlier and that the postconviction proceeding was sufficient under the Maryland Rules.

For the 7 following reasons, this Court concludes it has jurisdiction to reach the merits of this case and declines to vacate and remand this matter with instructions to dismiss for lack of jurisdiction. “In Maryland, appellate jurisdiction, except as constitutionally created, is statutorily granted.” Schuele v. Case Handyman & Remodeling Servs., LLC, 412 Md. 555, 565 (2010) (citing Gruber v. Gruber, 369 Md. 540, 546 (2002); Kant v. Montgomery Cty., 365 Md. 269, 273 (2001)). “[M]atters of jurisdiction are always before this [C]ourt and are exceptions to the general rule that we will consider only such questions as have been raised and decided below.” Carrier v. Crestar Bank, N.A., 316 Md. 700, 722 (1989) (quoting Webb v. Oxley, 226 Md. 339, 343 (1961)). Appellate jurisdiction is codified in § 12-301 of the Courts and Judicial Proceeding Article (“Cts. & Jud. Proc.”) of the Maryland Code, which states in its entirety: Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.

In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment. The statute contains no time provision for entry of an appeal. Cf.

Cts. & Jud. Proc. § 12- 401(e) (“Except as provided in paragraph (2) of this subsection, an appeal shall be taken by filing an order for appeal with the clerk of the District Court within 30 days from the date of the final judgment from which appealed.”) (illustrating a statutory time limitation in the context of an appeal from a district court to a circuit court). 8 Currently, no statute sets forth a time limitation for an appeal from a final judgment of a circuit court in a criminal matter such as this one. Instead, the time limitation is governed by the Maryland Rules. Maryland Rule 8-202(a) details the time limitation for a party to file an appeal from a final judgment in the circuit court.

Specifically, the Rule states, in pertinent part, “[e]xcept as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” Md. R. 8-202(a). This current scheme did not always exist. Until the adoption of the 1957 Maryland Code, there was a time limitation for appeals set forth in both statute and rules. Specifically, the predecessor statute to the current appellate jurisdiction statute contained a time limitation to notice an appeal.

Additionally, the Maryland Rules also contained different time provisions within the Rules for noticing an appeal based on the type of action, such as a criminal or a civil action, that was appealed. With the adoption of the 1957 Code, the thirty-day time limitation for appeals from a circuit court to an appellate court was eliminated from the statute. Compare Md. Code (1951), Art. 5 § 6 (“All appeals, or writs of errors, allowed from any judgment or determination of a court of law, to the Court of Appeals2 of this State, other than from decisions on questions arising under the insolvent law, shall be taken within thirty days from the date of such judgment or determination. . . .”) with Md. Code (1957), Art. 5 § 6 (“Any party may appeal to the Court of Appeals from a final decree, or order in the nature 2 Maryland’s intermediate appellate court, the Court of Special Appeals, was established in 1966 and thus is not referenced in the statutes of the 1950s. 9 of a final decree, entered by a court of equity.”). It is significant that from the 1957 Code to present, no statute has set forth a time limit for an appeal in a case such as this one.

Thus, the General Assembly removed the time limitation for appeals in the 1957 code and this Court exclusively adopted the time limitation as a part of Maryland Rule 812.3 In a committee note to Maryland Rule 812, the Court’s Standing Committee on Rules of Practice and Procedure stated: The committee invited attention to the fact that by this Rule the time for taking an appeal is uniformly made thirty days in all cases, civil as well as criminal. Since the adoption of this Rule a great many procedural provisions in statutes providing different times for appeal have been repealed. Thus far, this Court has failed to acknowledge this change in the statutory scheme.4 We have continued to refer to the requirement of Maryland Rule 8-202(a) and its predecessors as “jurisdictional.” Therefore, if an appellant failed to comply with the thirty- day filing requirement, we would, in dismissing the appeal for that reason, frequently refer to a lack of “jurisdiction.” Our prior case law evidences this reliance on statutory jurisdiction. In 1858, in Porter v. Timanus, this Court reviewed several orders and decrees from the Orphans Court for Howard County. 12 Md. 283 (1858).

At the onset of the opinion, this Court declared two of the orders “not open for review” and dismissed them from the appeal “on the ground[s] that [the appeal of the orders] was not taken in thirty days, as required by the act 3 This Rule is now Maryland Rule 8-202(a). 4 We thank the Standing Committee on Rules of Practice and Procedure for recently bringing this inconsistency to our attention. See Standing Comm. on Rules of Practice & Procedure, No. 195, Notice of Proposed Rules Changes (2018). 10 of 1818, ch. 204, sec. 1.” Id. In Porter, the thirty-day requirement was set forth in the statute. Therefore, a failure to comply with the statute divested this Court of authority to reach the merits of the appeal.

Error arose when this Court began characterizing the thirty-day requirement as “jurisdictional” after the adoption of the 1957 Code. This language occurred in Houghton v. Cty. Com’rs. of Kent Cty., when this Court referred to the dismissal of an appeal under the Maryland Rule 1012, now Rule 8-202(a), as a “jurisdictional” rule.5 305 Md. 407, 413 (1986) (“Consequently, the present appeal was taken more than thirty days from the final judgment of the circuit court. The requirement of Rule [8-202] and its predecessors, that an order of appeal be filed within thirty days of a final judgment, is jurisdictional; if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed.”), superseded by Rule on other grounds as stated in Hiob v. Progressive Am.

Ins. Co., 440 Md. 466 (2014). In Houghton, this Court used a string citation of the “jurisdictional” precedent as far back as Porter to support the incorrect proposition that the thirty-day requirement in the Rules at that time was a “jurisdictional” rule. The use of the string citation failed to distinguish the cases from those that were decided after the statutory change. 5 We note that prior to our decision in Houghton, this Court at times applied the Rule as a jurisdictional bar even though the specific term “jurisdiction” was not used.

See e.g., Clinton Petroleum Servs., Inc. v. Norris, 271 Md. 665 (1974) (“This [Rule] is mandatory. Thus, we have no alternative but to dismiss the appeal. . . .”). 11 Reliance on Houghton has continued. See, e.g., Griffin v. Lindsey, 444 Md. 278 , 285–86 (2015) (“The 30-day requirement for notices of appeal ‘is jurisdictional; if [it] is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed.’”) (citing Houghton, 305 Md. at 413 ); Keys v. State, 195 Md. App. 19 , 27–28 (2010) (citing Houghton, 305 Md. at 413 ) (“With respect to a notice of appeal, the requirement that it ‘be filed within thirty days of a final judgment is jurisdictional; if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed.’”). We now recognize that this interpretation of Maryland Rule 8-202(a) and its predecessors is incorrect in that we have failed to account for the 1957 Code adoption that removed the thirty-day requirement from the statute.

The Supreme Court of the United States recently clarified an interpretation of an analogous federal statute in Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13 (2017). In Hamer, the United States Court of Appeals for the Seventh Circuit determined that it lacked jurisdiction to reach the merits of an appeal because the appeal was untimely filed pursuant to Federal Rule of Appellate Procedure 4(a)(5)(C), which limited the time for filing an appeal in certain circumstances. Id. at 18 .

The Seventh Circuit stated the untimely filing mandated dismissal of the appeal. Id. After a review of the issue, the Supreme Court vacated the Seventh Circuit’s dismissal stating, “a time limit prescribed only in a court-made rule. . . is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee.” Id. at 16 . Ultimately, the Supreme Court held that the time limitation for an extension of time to file a notice of appeal pursuant to Federal Rule Appellate Procedure 12 4(a)(5)(C) was a claim-processing rule, subject to waiver or forfeiture, and not a jurisdictional statute requiring immediate dismissal.

Id. at 22 . The Supreme Court reasoned that only Congress may determine a federal court’s subject-matter jurisdiction. Id. at 17 . Therefore, a time limit in a court rule only qualifies as jurisdictional if Congress sets forth the limitation in statute.

Id. “A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving ‘to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.’” Id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). The Court further explained: This Court and other forums have sometimes overlooked this distinction, “mischaracterize[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.” But prevailing precedent makes the distinction critical. Failure to comply with a jurisdictional time prescription, we have maintained, deprives a court of adjudicatory authority over the case, necessitating dismissal—a “drastic” result.

The jurisdictional defect is not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal. In contrast to the ordinary operation of our adversarial system, courts are obliged to notice jurisdictional issues and raise them on their own initiative. Id. (citations omitted).

The mandatory claim-processing rules that the Courts promulgate on the other hand are less rigid. Id. As explained above, some opinions of this Court have referred to the thirty-day time limitation in the Maryland Rules as “jurisdictional,” failing to recognize that the thirty-day requirement no longer appears in the statute. We now recognize that Maryland Rule 8- 202(a) is a claim-processing rule, and not a jurisdictional limitation on this Court.

Despite 13 this recognition, Maryland Rule 8-202(a) remains a binding rule on appellants, and this Court will continue to enforce the Rule. We are not concluding that it is inappropriate for a court to dismiss an untimely appeal. Rather, we are stating that the appropriate grounds for dismissal of an untimely appeal is to dismiss for a failure to comply with the Maryland Rules, instead of for lack of jurisdiction. Further, as the Rule is not jurisdictional, a reviewing court must examine whether waiver or forfeiture applies to a belated challenge to an untimely appeal.

Proper characterization of Maryland Rule 8-202(a) as a claim-processing rule permits us to consider the basis for review of Mr. Rosales’ belated appeal. This Court has consistently recognized that a belated appeal can be granted as a postconviction remedy for constitutionally ineffective assistance of counsel. See, e.g., Garrison v. State, 350 Md. 128 , 142–43 (1998) (“[W]hen an accused can show that appellate review of his conviction has been frustrated by his trial or appellate attorney’s inaction in failing to file timely an appeal that an accused has promptly and diligently requested be filed, or when, through no fault of his own, an accused’s desired appeal is not timely filed on his behalf, a belated appeal may be a proper remedy under post conviction procedures.”). Postconviction proceedings commence upon the filing of a petition for postconviction relief in the circuit court in which the defendant was convicted.

Md. R. 4- 401(a). A hearing is promptly held on the petition “unless the parties stipulate that the facts stated in the petition are true and that the facts and applicable law justify the granting of relief.” Md. R. 4-406(a). Upon the conclusion of the hearing, “[t]he judge shall prepare and file or dictate into the record a statement setting forth separately each ground upon which the petition is based, the federal and state rights involved, the court’s ruling with 14 respect to each ground, and the reasons for the action taken thereon.” Md. R. 4-407(a). Additionally, the judge shall issue “an order either granting or denying relief.” Md. R. 4- 407(b). “The statement and order constitute a final judgment when entered by the clerk.” Md. R. 4-407(d).

In this case, the postconviction court did not follow the appropriate postconviction procedures. Mr. Rosales and the State entered into a consent agreement signed by the postconviction court to permit a belated appeal. A hearing was not held on the merits of the ineffective assistance of counsel claim and the postconviction court did not issue a statement of reasons or order. Further, the consent order reserved Mr. Rosales’ right to refile a postconviction petition upon the conclusion of these appellate proceedings.

Ordinarily, we would dismiss Mr. Rosales’ appeal for failure to comply with the Rule’s thirty-day deadline and the absence of the postconviction court’s proper findings under the Postconviction Act to grant a belated appeal. However, this Court believes it is evident from the record of the postconviction hearing that the State was conceding ineffective assistance of counsel with respect to the failure of Mr. Rosales’ counsel to file a timely appeal. The record indicates that Mr. Rosales, the State, and the postconviction court agreed that a belated appeal was a proper remedy. Further, this issue has proceeded through the appellate system without the State filing a motion under Maryland Rule 4-408 or objecting to a review on the merits by the Court of Special