Stovall v. State

MURPHY, C.J. In this appeal from the Circuit Court for Prince George’s County, Darren R. Stovall, appellant, presents two questions for our review: 1. Whether the Circuit Court erred in its belief (1) that the legislature intended a narrow reading, limited to only two circumstances, when it adopted the “in the interests of justice” standard for the reopening of a closed post conviction proceeding, and (2) that the court was therefore not authorized, in this case, to exercise discretion to reopen, which is particularly erroneous in light of this Court’s understanding that, under the “in the interests of justice” standard, the grounds for exercising discretion are “virtually open ended?” ⁷¹⁵ 2. Whether serious attorney error, by post conviction counsel, in failing to post convict trial counsel for three serious attorney errors and appellate counsel for one serious attorney error, all four of which prejudiced the defendant, creates entitlement to post conviction relief, based on ineffective assistance of post conviction counsel, under the Due Process Clause of the Fourteenth Amendment, as interpreted in Evitts v. Lucey, 469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985)? The first question is of no consequence whatsoever to the merits of this appeal because (1) the circuit court concluded that “a reopening may be appropriate when the petitioner proves both that he received ineffective assistance from post conviction counsel and that, as a result of that ineffective assistance of counsel, there is a substantial or significant possibility that the ultimate verdict of the trier of fact would have been affected in a manner adverse to the petitioner,” and (2) appellant was granted a full and fair opportunity to argue for post conviction relief on the theory that “his post conviction counsel was incompetent for failing to litigate any of the four issues ... through which [appellant] could have obtained post conviction relief, but for the incompetency of ... [his] post conviction counsel in failing to post convict trial counsel or appellate counsel, for their ineffective assistance.” Thus, the issue of whether the circuit court (in the words of appellant’s brief) “applied a very narrow and incorrect standard for determining when the legislature authorized the reopening of a closed post conviction proceeding” is moot. 1 We hold that a post conviction petitioner (1) is entitled to the effective assistance of post conviction counsel, and (2) ⁷¹⁶ has a right to reopen a post conviction proceeding by asserting facts that—if proven to be true at a subsequent hearing— establish that post conviction relief would have been granted but for the ineffective assistance of the petitioner’s post conviction counsel.

We shall therefore consider the merits of appellant’s arguments that: A. Post conviction counsel was incompetent in the failure to post convict appellate counsel for failing to appeal the preserved reversible error of insufficiency of the evidence to convict Mr. Stovall of robbery and felony murder. B. Post conviction counsel was incompetent in the failure to post convict trial counsel for failing to obtain a ruling on his motion in limine as to the “prior bad acts/other crimes” evidence of the alleged robbery of [another robbery victim]. C. Post conviction counsel was incompetent in failing to post convict trial counsel for not arguing double jeopardy, based on prior jeopardy—not between the second and third trials, but between the first and second trials. D. Post conviction counsel was incompetent in the failure to post convict trial counsel for failing to file a motion for modification or reduction of sentence.

The circuit court concluded that “[appellant] is unable to convince me that, even assuming arguendo, that [appellant’s post conviction counsel’s] representation of [appellant] at his first post conviction hearing was ‘ineffective,’ for any of the reasons asserted, that as a result of that, there is a ‘substantial or significant possibility that the verdict of the trier of fact would have been affected.” We agree with that conclusion as to issues A, B and C. We are persuaded, however, that under State v. Flansburg, 345 Md. 694, 694 A.2d 462 (1997), appellant is entitled to file a belated motion for reconsideration of sentence. Background Appellant’s petitions for post conviction relief stem from three jury trials involving the same incident. The Hon ⁷¹⁷ orable Graydon S. McKee, III, presided over all three jury trials. Appellant was represented in all three trials by the same attorney.

According to appellant’s brief, “[o]n November 21, 1989, [appellant] was indicted, in Case No. 89-2616B, for first degree murder, second degree murder, voluntary manslaughter, and a weapons offense .... [and][o]n July 16, 1990, [appellant] was indicted, in Case No. 91-1309C, for first degree felony murder and robbery, based on the same transaction as in Case No. 89-2616B.” From our judicial notice of the circuit court records, 2 however, we conclude that only one murder indictment was returned against appellant. 3 On November 21, 1989, the Prince George’s County Grand Jury returned the following indictment: The Grand Jurors of the State of Maryland, for the body of Prince George’s County, on their oath do present that PERRY ANTONIO BRASHEARS and DARREN REGINAL STOVALL, late of Prince George’s County, aforesaid, between the 31st day of August, nineteen hundred and eighty nine, and the 1st day of September, nineteen hundred and eighty nine, at Prince George’s County, aforesaid, feloniously, wilfully and of their deliberately premeditated malice aforethought, did kill and murder Ed Williams IV, in violation of the Common Law of Maryland, and against the peace, government and dignity of the State. (Murder) SECOND COUNT The Grand Jurors of the State of Maryland, for the body of Prince George’s County, on their oath do present that PERRY ANTONIO BRASHEARS and DARREN REGI ⁷¹⁸ NAL STOVALL, late of Prince George’s County, aforesaid, between the 31st day of August, nineteen hundred and eighty nine, and the 1st day of September, nineteen hundred and eighty nine, at Prince George’s County, aforesaid, did unlawfully carry a dangerous weapon openly, to wit: knife, with the intent of injuring a person in an unlawful manner, in violation of Article 27, Section 36 of the Annotated Code of Maryland, 1957 edition, as amended, and against the peace, government and dignity of the State. (Carry dangerous weapon openly) Those charges were considered by the first jury. On June 8, 1990, Judge McKee declared a mistrial because the first jury was deadlocked.

At this point, the State entered a nolle prosequi to the “carrying openly” charge. On July 16, 1990, a superseding indictment was returned against appellant. On that date, however, the Grand Jury indicted only Willie Boris Chestnut III and Kevin Joseph Feagan for the murder of Mr. Williams. Appellant was charged as follows in the second count of that indictment: The Grand Jurors of the State of Maryland, for the body of Prince George’s County, on their oath do present that WILLIE BORIS CHESTNUT III, KEVIN JOSEPH FEAGAN and DARREN REGINAL STOVALL, late of Prince George’s County, aforesaid, between the 31st day of August, nineteen hundred and eighty nine, and the 1st day of September, nineteen hundred and eighty nine, in the County aforesaid, feloniously did rob Ed Williams IV, and violently did steal from him United States currency, in violation of the Common Law of Maryland, and against the peace, government and dignity of the State.

(Robbery) On January 31, 1991, the second jury found appellant not guilty of first degree premeditated murder, and lesser included offenses, but deadlocked on the felony murder and robbery charges. Judge McKee declared a mistrial as to those charges. On April 23, 1991, appellant’s trial counsel filed a motion to dismiss based on collateral estoppel. Judge McKee denied ⁷¹⁹ that motion.

This Court affirmed that decision in an unreported opinion (Stovall v. State, No. 1893, September Term, 1991, unreported opinion filed November 17, 1991.) On May 11, 1992, appellant was tried on the felony murder and robbery charges. On May 18, 1992, the third jury convicted him of those offenses. Judge McKee denied a motion for a new trial and imposed a life sentence, with all but twenty-five years suspended. Appellant’s trial counsel thereafter failed to file a motion for modification of sentence.

Appellant appealed his convictions to this Court on August 31, 1992. The lawyer who represented appellant argued that the circuit court erred by (1) refusing to bind the State to a stipulation from a prior trial as to the testimony of the medical examiner; (2) restricting appellant’s examination of two witnesses, who were also former co-defendants, with respect to their plea bargains; and (3) permitting the prosecutor to make improper references to “non-evidence” during the State’s rebuttal argument. On September 22, 1993, this Court affirmed the judgment of the circuit court. (Stovall v. State, No. 1383, September Term, 1992, unreported opinion filed September 22, 1993.) On October 25, 1996, appellant filed a petition for post conviction relief.

His post conviction counsel alleged that (1) the circuit court committed reversible error by not granting the motion to dismiss and by not estopping the State from trying appellant a third time; (2) the State failed to establish a prima facie case of robbery, which required that the felony murder conviction be vacated; and (3) trial counsel rendered ineffective assistance of counsel by (a) not asserting all available defenses, (b) arguing alibi to the jury when trial counsel should have known that alibi would not prevail, (c) arguing perfect and imperfect self-defense when trial counsel should have known self-defense is not a valid defense to felony murder. On May 5, 1997, the circuit court denied the petition. Appellant filed an application for leave to appeal, which this Court denied on November 11,1997. ⁷²⁰ On August 19, 1997, appellant filed a motion to reopen his post conviction proceeding, arguing that (1) collateral estoppel, res judicata, and/or double jeopardy precluded the State from retrying the felony murder and robbery counts during the third trial; (2) the circuit court committed reversible error by not granting the motions for judgment of acquittal; and (3) appellate counsel rendered ineffective assistance of counsel, based on his failure to raise two issues on appeal. 4 On March 13, 1998, the circuit court denied appellant’s motion. On March 23, 1998, appellant filed an application for leave to appeal, which this Court denied on June 23,1998.

On May 11, 1999, appellant filed another motion to reopen the closed post conviction proceeding. The circuit court filed an order setting a hearing date and instructing the parties to address the issues of (1) the circuit court’s authority to reopen a closed post conviction proceeding, (2) the standard for reopening a closed post conviction proceeding, and (3) any limitation on the reopening of a closed post conviction proceeding. On December 21, 1999, the circuit court held a hearing on appellant’s motion to reopen. The circuit court ultimately denied that motion, and this appeal followed.

The Post Conviction Petitioner’s Right to Effective Assistance of Counsel A post conviction petitioner has a right to reopen a petition upon a showing that the petitioner’s post conviction counsel rendered ineffective assistance during the post conviction proceedings. The Maryland Public Defender Act, in pertinent part, provides: § 4. Duty to provide legal representation. (b) Included proceedings.—Legal representation shall be provided indigent defendants or parties in the following proceedings: ⁷²¹ (3) Postconviction proceedings under Article 27, Annotated Code of Maryland, when the defendant has a right to counsel pursuant to § 645A of that article; Article 27 has been transferred to the Criminal Procedure Article, effective October 1, 2001.

Section 645A(f) has been transferred to § 7-108 of the Criminal Procedure Article without any substantive change. That section provides: (f) Right to counsel and hearing.—(1) Subject to paragraph (2) of this subsection, a petitioner is entitled to the assistance of counsel and a hearing on a petition filed under this section. (2) If a defendant seeks to reopen a postconviction proceeding under subsection (a)(2)(ii) of this section, the court shall determine whether assistance of counsel or a hearing should be granted. A defendant has a broader right to counsel under the Maryland Public Defender Act than under the United States Constitution.

McCarter v. State, 363 Md. 705, 713 , 770 A.2d 195 (2001); State v. Flansburg, 345 Md. 694, 700 , 694 A.2d 462 (1997). Even if they do not have a federal constitutional right to counsel in post conviction proceedings, indigent persons who are entitled to petition for relief under the Maryland Post Conviction Procedure Act have a statutory right to counsel under the Maryland Public Defender Act, and “[rjegardless of the source, the right to counsel means the right to the effective assistance of counsel.” State v. Flansburg, supra, 345 Md. at 703 , 694 A.2d 462 . In Flansburg , Mr. Flansburg was represented by counsel from the Office of the Public Defender when the circuit court revoked his probation and reimposed the portion of the sentence that had been suspended when he was placed on probation. Id. at 696 , 694 A.2d 462 .

Following the hearing, he made two timely written requests that counsel file a motion for modification of sentence. Id. After learning that his counsel never filed that motion, he filed a petition for post conviction relief, claiming that he was denied effective assistance of counsel. Id. ⁷²² The Flansburg Court rejected the State’s argument that even though appellant might have a statutory right to counsel, “such right should not include the same type of ‘effective assistance’ which is associated with a constitutional right to counsel.” Thus, under Maryland law, convicted persons have a right to the assistance of counsel with respect to proceedings under the Post Conviction Procedure Act, and “the right to counsel means the right to the effective assistance of counsel.” Id. at 703 , 694 A.2d 462 .

Other jurisdictions have reached similar conclusions. In Lozada v. Warden, State Prison, 223 Conn. 834 , 613 A.2d 818 (1992), the appellant filed a second petition for habeas corpus on the ground that he was denied effective assistance of counsel in his first habeas corpus proceeding. Connecticut provides by statute for the appointment of counsel for an indigent person “in any habeas corpus proceeding arising from a criminal matter ...” Id. at 821. The State asserted that there was no right to effective assistance of habeas corpus counsel “because there is no statutory reference to the qualifications of counsel and, therefore, no remedy is available should counsel prove ineffective.” Id.

The court disagreed with that argument, holding that “[i]t would be absurd to have the right to appointed counsel who is not required to be competent.” Id. It went on to state that the Strickland