Shortall v. State

Panel: Meredith, Graeff, Arthur, JJ. * Meredith, J. ^{823 64} At the conclusion of a jury trial in the Circuit Court for Dorchester County, Purnell Shortall, appellant, was convicted of five misdemeanor counts of failure to comply with COMAR 26.04.02.02E for disposing of sewage in a manner which may cause pollution of the ground surface, and five misdemeanor counts of failure to comply with COMAR 26.04.02.02F for disposing of sewage without an approved permit. 1 After sentencing, ⁶⁵ Shortall did not appeal, but, within a year, he filed a petition for post-conviction relief, claiming ineffective assistance of counsel. The post-conviction court denied his petition for post-conviction relief. Thereafter, Shortall filed an application for leave to appeal the post-conviction court's ruling. We initially denied Shortall's application for leave to appeal, but Shortall timely filed a motion for reconsideration, which we granted to permit him to pursue an appeal raising the following question: Whether the post-conviction court erred in not finding that Mr. Shortall was denied his right to effective assistance of counsel when defense counsel failed to object to the trial court's instruction on the continuing violation theory?

For the reasons explained herein, we conclude that trial counsel was ineffective in failing to object to the incorrect instruction regarding multiple separate violations. We conclude that Shortall should have been convicted of only a single violation of each regulation, and we will vacate the four additional convictions as to each regulation. Facts and Procedural History There was evidence at trial of the following. On December 5, 2012, Richard Littlefield and Brian Baumgartner, who were both licensed environmental health specialists with the Maryland Department of the Environment, performed a routine inspection at the property of Shortall Building Supplies in Cordova, Maryland.

During this inspection, the inspectors observed a white four-inch PVC pipe connected to a building on the property that was used for vehicle maintenance. The pipe "extend[ed] from a slope at the rear of the property directed towards the" nearby woods. Upon further investigation, the inspectors discovered evidence that "there was a recent discharge of sewage," namely, human feces and toilet paper, "lying on the ground just beyond the end of the pipe." ⁶⁶ The following day, Ann Morse, the Director of Environmental Health for the Talbot County Health Department, visited the property of Shortall Building Supplies. During her conversation with Shortall, Shortall "admitted [to Morse] that it was a ⁸²⁴ discharge pipe from the bathroom, that he put it there, and that he put the bathroom in the building." No specific corrective action was ordered at that time.

On December 7, Morse returned with Nony Howell, who was a regional consultant for onsite wastewater with the Maryland Department of Environment. At that time, Howell told Shortall that "the only corrective action to be taken was to stop using the pipe for now." Howell also told Shortall that he would have to cap the line. On January 24, 2013, Howell returned to the property and noticed a sign over the bathroom door directing employees not to use the bathroom. The originally observed discharge was still present on this date.

Michelle Burroughs, Regulatory Compliance Engineer for the Maryland Department of the Environment, visited the property on March 15, 2013, to investigate a "potential unauthorized discharge to the waters of the State." Burroughs tested the sink near the bathroom in the maintenance building, and observed that the water from the sink flowed out of the discharge pipe. Burroughs told Shortall that the use of this pipe was "unauthorized discharge to waters of the State ...." On May 3, Burroughs returned to the property and saw that Shortall had capped the line. On May 16, when Burroughs made her final visit to the property, the pipe was covered with dirt. Shortall was charged with five separate violations of two regulations under Title 26 of the Maryland Code of Regulations, for a total of ten regulatory violations.

COMAR 26.04.02.02E stated: "A person may not dispose of sewage , body, or industrial wastes, in any manner which may cause pollution of the ground surface, the waters of the State, or create a nuisance." (Emphasis added.) COMAR 26.04.02.02F, stated: " A person may only dispose of sewage , body, or ⁶⁷ industrial wastes in accordance with an approved on-site sewage disposal permit or other method of disposal approved by the Approving Authority." (Emphasis added.) According to the Maryland Code (1982, 2014 Repl. Vol.), Environment Article ("Env."), § 9-343(a)(1), an individual who violates "any provision of or fails to perform any duty imposed by a ... regulation ... is guilty of a misdemeanor ...." Furthermore, Env. § 9-343(a)(3) states: " Each day on which a violation occurs is a separate violation under this subsection." (Emphasis added.) 2 At the request of the State, the trial court gave the following non-pattern jury instruction regarding the multiple charges of violating the two regulations: [THE COURT]: The Defendant is charged with the same listed offense on different dates. Essentially you'll have five-you'll have a charge that has five alleged dates, another charge that has five alleged dates. Pursuant to Maryland law for these specific charges every day on which a violation is still present constitutes a separate offense until the date the violation is corrected .

Counsel, any exceptions to the jury instructions given? [THE STATE]: No, Your Honor. [DEFENSE COUNSEL]: No, Your Honor. (Emphasis added.) Following Shortall's conviction of five separate counts of violating each regulation, the court sentenced Shortall to two years in prison, all but 90 days suspended, plus five years of supervised probation and a fine and community service. ⁸²⁵ Shortall failed to appeal, but he filed a petition for post-conviction relief, asserting, inter alia , that defense counsel's failure to object to the above-quoted jury instruction deprived him of effective assistance of counsel because the instruction misstated the law and exposed him to multiple convictions for "a violation." At Shortall's post-conviction hearing, Shortall's trial counsel testified that his decision not to object resulted ⁶⁸ from his own research and interpretation of this unsettled area of law. He said: [DEFENSE COUNSEL]: I don't know that I would call [the proposed jury instruction] unusual. I was concerned about the jury instruction regarding the continuing nature offense.

And [the State] ... had cited various cases. We pulled those cases and read them and felt she had accurately represented the law as we understood it. Defense counsel explained that his initial trial strategy was "to exclude anything ... that would reference a continuing violation. So we researched that.

And coupled with our research and the cases that [the State] had provided we did not think that we had the legal argument." In addition to this research, defense counsel testified that he contacted local attorneys who specialize in this area of law for guidance: [SHORTALL'S POST-CONVICTION COUNSEL]: And what was the scope of what you evaluated for purposes of that [proposed jury] instruction? In other words, you said you looked at the cases that [the prosecutor] provided. Did you look beyond those cases for example in other States or Federal jurisdictions? [DEFENSE COUNSEL]: Honestly I believe we called your office. Peter (inaudible). [SHORTALL'S POST-CONVICTION COUNSEL]: [My law firm]? [DEFENSE COUNSEL]: Yes, and spoke with you.

But outside of that we had-no, I can't say that definitively we looked at any Federal regulations or other States. We researched Maryland law to see ... what we could do with the continuum [sic]. The post-conviction court found that Shortall's defense counsel's failure to object did not constitute deficient performance, and the court therefore denied Shortall's ineffective assistance of counsel claim. The court also ruled, in the alternative, that there was no prejudice.

The post-conviction court's opinion stated: ⁶⁹ Petitioner claims that the "continuing violation" instruction given to the jury was a misrepresentation of § 9-343(a)(3) of the Environment Article and resulted in convictions for crimes he did not commit. The instruction given to the jury was: The Defendant is charged with the same listed offense on different dates. Essentially you'll have five-you'll have a charge that has five alleged dates, another charge that has five alleged dates. Pursuant to Maryland law for these specific charges every day on which a violation is still present constitutes a separate offense until the date the violation is corrected.

(Trial Transcript 8/6/14, at 37) The Environment[ ] Article § 9-343(a)(3) provides, "Each day on which a violation occurs is a separate violation under this subsection." Petitioner argues that the phrase "is still present" in the jury instruction materially differs from the statute's actual term: "occurs." In particular, Petitioner contends that the statute, by use of the term "occurs," requires the State to prove an actual affirmative "occurrence" on a particular date in order for the Petitioner to be convicted for an offense ⁸²⁶ on that date. Petitioner argues that he was convicted on ten counts 1 not because the State proved an "occurrence" on each of the ten dates, but rather, because disposed waste remained on the site for the days covered by the counts. [Footnote 1: The ten counts refer to five counts of disposing [of] waste in a manner which may cause pollution of the ground surface and five counts of disposing [of] waste without an approved on-site sewage disposal permit.] He also contends that convictions under the continuing violation doctrine are particularly unjust, as the Petitioner incurred criminal charges during the period of time he was awaiting direction from the State agency as to how to remedy the alleged infractions. In short, the Petitioner contends that the continuing violation doctrine is inapplicable to these charges, and trial counsel's failure to object to a continuing violation instruction constituted prejudicial error. ⁷⁰ The State argues otherwise, arguing (1) that the continuing violation doctrine applies and (2) that, even if it does not apply, there was no prejudice since the trial court merged the counts at issue for sentencing. In interpreting § 9-343(a)(3), the State contends, inter alia , that the nature of environmental crimes renders them continuing in nature, and the "still present" language in the jury instruction conforms to the statute.

Duncan v. State , 282 Md. 385 , 390 [ 384 A.2d 456 ] (1978) is the controlling authority on the continuing violation doctrine and holds: Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty. There is no Maryland case law known to the Court that addresses whether the continuing violation doctrine applies to the environmental crimes charged in this case . The State, citing what the State claims to be analogous federal case law, argues that the continuing violation doctrine must apply to environmental laws, given the nature of the offenses.

The Petitioner argues that [t]he federal cases cited by the State concern federal law, utilizing different terminology, and thus do not provide guidance in the instant case. After careful consideration, and applying the Strickland standard, this Court cannot find that trial counsel was deficient for failing to object to the continuing violation instruction. Trial counsel testified at the September 11, 2015 Post-Conviction hearing that he researched the case law, consulted with other attorneys, and came to the conclusion that the jury instruction regarding the continuing violation was correct. This is a reasonable interpretation of the law, as there is no controlling Maryland authority as to whether the continuing violation doctrine applies in cases involving environmental crimes , and, logically, the adverse impact of disposing of pollutants obviously continues until the remedy is imposed.

In short, this is an ⁷¹ unsettled question of law, and there are merits to both positions . Viewed in that light, the Court cannot find that trial counsel's failure to object to the continuing violation instruction was deficient. State v. Borchardt , 396 Md. 586 [ 914 A.2d 1126 ] (2007). But even assuming, arguendo , that trial counsel's conclusion regarding the continuing violation jury instruction fell below the objective standard of reasonableness, the Court cannot grant relief unless the Court finds that the Petitioner suffered prejudice as a result of trial ⁸²⁷ counsel's deficiency.

In this case, the continuing violation counts were merged for sentencing. Thus, there was no prejudice and there is no basis exists [sic] to grant relief. (Bold emphasis added; italics in original.) Additional facts relevant to this appeal are discussed in greater detail below. Standard of Review The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to effective assistance of counsel in a criminal trial.

U.S. CONST. amend.

VI

This right applies, through the Due Process Clause of the Fourteenth Amendment, to defendants in state criminal proceedings. State v. Jones , 138 Md. App. 178 , 204-05, 771 A.2d 407 (2001), aff'd , 379 Md. 704 , 843 A.2d 778 (2004). Article 21 of the Maryland Declaration of Rights provides similar protections. See Taylor v. State , 428 Md. 386 , 399, 51 A.3d 655 (2012).

In Strickland v. Washington , 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the Supreme Court announced a two-pronged test for reviewing claims of ineffective assistance of counsel. In Taylor , supra , 428 Md. at 399 -400 , 51 A.3d 655 , the Court of Appeals described the two-pronged Strickland test as follows: Under both the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, a criminal defendant is entitled to the assistance of counsel, which means "the right ⁷² to the effective assistance of counsel." Duvall v. State, 399 Md. 210 , 220-21, 923 A.2d 81 , 88 (2007) (quoting Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 ) (quotation mark omitted). The defendant who claims that he or she received ineffective assistance of counsel, as a general rule under the test announced in Strickland and followed ever since, must make two showings: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense." 466 U.S. at 687 , 104 S.Ct. 2052 . In regard to the first, "performance" prong of Strickland , the defendant must demonstrate that counsel's alleged acts or omissions, based on "the facts of the particular case, viewed as of the time of counsel's conduct," fell "outside the wide range of professionally competent assistance." Id. at 690 , 104 S.Ct. 2052 . In regard to the second, "prejudice" prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694 , 104 S.Ct. 2052 .

(Emphasis added.) The first prong of the Strickland test requires a defendant to establish specific deficient "acts or omissions" of defense counsel. Strickland , supra , 466 U.S at 690 , 104 S.Ct. 2052 . See also State v. Borchardt , 396 Md. 586 , 604, 914 A.2d 1126 (2007) ("Before deciding to act, or not to act, counsel must make a rational and informed decision on strategy and tactics based upon adequate investigation and preparation."). But there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, supra , 466 U.S. at 689 , 104 S.Ct. 2052 , and that counsel "made all significant decisions in the exercise of reasonable professional judgment." Id. at 690 , 104 S.Ct. 2052 .

The Court of Appeals has emphasized that, in order to ⁸²⁸ satisfy ⁷³ this first prong, a defendant must also demonstrate "that counsel's actions were not the result of trial strategy." Coleman v. State , 434 Md. 320 , 338, 75 A.3d 916 (2013) (reversing this Court and the post-conviction court and holding: "We do not see how trial counsel's failure to object because of his ignorance of the law could possibly be seen as sound trial strategy or a strategic choice."). In analyzing alleged deficiencies, a reviewing court must "avoid the post hoc second-guessing of decisions simply because they proved unsuccessful ...." Evans v. State , 396 Md. 256 , 274, 914 A.2d 25 (2006). Further, the Supreme Court explained in Strickland, supra , 466 U.S. at 690 -91 , 104 S.Ct. 2052 : [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. The second Strickland prong, which requires that any deficient performance actually prejudice the defendant, was discussed by the Court of Appeals in State v. Sanmartin Prado , 448 Md. 664 , 141 A.3d 99 (2016), wherein the Court stated: "As to the second prong, we have explained that 'the standard to be used is whether there is a substantial or significant possibility that the verdict of the trier of fact would have been affected.' " Id. at 682 , 141 A.3d 99 (quoting Coleman, supra , 434 Md. at 331 , 75 A.3d 916 ). In Newton v. State , 455 Md. 341 , 355, 168 A.3d 1 (2017), the Court of Appeals described two ways in which a defendant can establish prejudice under this second prong: To establish the second prong-prejudice-the defendant must show either: (1) "a reasonable probability that, but for ⁷⁴ counsel's unprofessional errors, the result of the proceeding would have been different"; or (2) that "the result of the proceeding was fundamentally unfair or unreliable." Coleman , 434 Md. at 340 -41 , 75 A.3d 916 (citations omitted). The Strickland Court explained, "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694 , 104 S.Ct. 2052 .

In Mosley v. State , 378 Md. 548 , 572-73, 836 A.2d 678 (2003), the Court of Appeals declined to consider the defendant's arguments on direct appeal regarding the alleged ineffective assistance of trial counsel. The Court of Appeals stated that it would instead "adhere to our long-standing view that ineffective assistance of counsel claims are best tested in post-conviction proceedings and that review of such claims on direct appeal is limited to the