Ward v. State

Thompson, J., delivered the opinion of the Court. On February 2, 1979, Anthony Tyrone Ward, the applicant, was convicted by a jury in the Criminal Court of Baltimore (Perrott, J.), of burglary and was sentenced to three years’ imprisonment consecutive "with any sentence for violation of parole.” The conviction was affirmed by this Court in an unreported per curiam opinion, Ward v. State, No. 1049, September Term, 1979, filed April 30, 1980. A petition for reduction of sentence was denied on March 31, 1981. On November 18, 1981, applicant filed his first petition seeking post conviction relief.

(Art. 27, Sec. 645A — 645J). A hearing on the petition was held on December 30, 1981, and was denied by a "Memorandum Opinion” filed January 5, 1982. Applicant sought leave to appeal that denial. In an unreported opinion, Ward v. State, Application for Leave to Appeal, No. 136, September Term, 1981 we neither granted nor denied the application but remanded the case for the hearing judge to file a written memorandum containing "findings of facts” on the competency of counsel issue.

The hearing judge’s second "Memorandum Opinion” was filed on April 22, 1982 and, pursuant to our prior mandate, the record was returned to us. The only issue presented in this application is whether applicant’s trial counsel was ineffective because he failed to request certain jury instructions. The Hearing Judge’s Ruling In denying applicant’s complaints of trial counsel incompetency, the hearing judge stated that 'Tt]he trial record, when viewed as a whole, demonstrates that petitioner was afforded a high level of legal representation.” He did not, however, set forth any reasons to support his findings. In view of this blanket conclusion, we are unable to properly ⁹⁰ evaluate the merits of the present application.

As we must again remand this case, we shall expound upon the mandated procedure where a hearing judge is required to determine whether trial counsel rendered incompetent representation. The Law In State v. Lloyd, 48 Md. App. 535, 540 , 429 A.2d 244 (1981), we reviewed the law regarding competency of counsel and explained: "The test to be applied in determining if a defendant in a criminal case was denied effective assistance of trial counsel is whether under all of the circumstances of the particular case a defendant was afforded genuine and effective representation. Slater v. Warden, 241 Md. 668, 673 , 217 A.2d 571 (1966); State v. Mahoney, 16 Md. App. 193, 201 , 294 A.2d 471 (1972). See also Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) where the Court, relying on McMann v. Richardson, 397 U.S. 759 (1970), held that the test for judging effective assistance of counsel is not whether representation was so poor as to make a farce of the trial, but whether the defense counsel’s representation was within the range of competence demanded of attorneys in criminal cases.

Moreover, the burden is on the defendant to prove that defense counsel’s representation was not effective. State v. Hardy, 2 Md. App. 150, 156, 233 A.2d 365 (1967). 'Each case wherein ineffective assistance of counsel is asserted, must necessarily be decided upon the facts of that case.’ Thomas v. State, 516 S.W.2d 761, 765 (Mo. Ct. App. 1974).” Thus, when a hearing judge is required to determine whether trial counsel rendered incompetent representation he must not only ascertain what trial counsel did or failed to do, he must also weigh counsel’s actions in the context of the ⁹¹ particular case. Where, as here, the incompetency claim is based on counsel’s actions with respect to jury instructions, the following three step analysis provides an appropriate means to resolve the question.

Step One. Determine if defense counsel erred. The first determination under the facts of this case is whether defense counsel was wrong in failing to object or in failing to offer appropriate instructions. We shall consider both types of errors separately. a.

Failure to object to incorrect instruction If the petitioner claims that the trial judge gave an improper instruction to which his defense counsel did not object, 1 the hearing judge must first examine the instruction itself. If the instruction was a proper statement of law there would be no error in the defense counsel’s failure to object and, in such case, the post conviction complaint should be dismissed. If, on the other hand, the petitioner is correct in his claim that the trial judge gave an incorrect instruction, counsel’s failure to object to the incorrect instruction would constitute error. The mere existence of this type of error does not, however, warrant a finding of incompetency absent an inquiry by the hearing judge into the reason for counsel’s neglect.

This determination is accomplished in step two. b. Failure by defense counsel to request appropriate instruction. If the basis for petitioner’s claim of error is that his counsel failed to request a particular instruction, the hearing judge must make two determinations. First, he must determine whether the unrequested instruction correctly sets forth the ⁹² law.

If it is not a correct statement of the law, the post conviction claim must be denied for failure to show error. If the unrequested instruction provides an accurate statement of the law, the hearing judge must, as his second determination, decide whether considering the particular circumstances of the trial, the instruction would have been appropriate. For example, if a counsel defending a murder charge fails to request a self-defense instruction, no post conviction relief would lie for the omission if the self-defense issue was not fairly generated by the facts. 1A See, Street v. State, 26 Md. App. 336 , 338 A.2d 72 , cert. denied, 275 Md. 756 (1975). If the hearing judge determines that the unrequested instruction would not have been appropriate, the conclusion mandates a finding that the post conviction relief be denied.

On the other hand, if the hearing judge determines that the unrequested instruction both correctly states the law and was appropriate, he must conclude that trial counsel erred in not requesting it. This error, however, does not necessarily signify the existence of incompetent representation. Before such determination can be made, the hearing judge must assess the reason for counsel’s action. This requires the hearing judge to proceed to step two.

Step Two. Determine reason for counsel’s action. In this second step the hearing judge must analyze the reasoning behind counsel’s erroneous action to determine whether it was justifiable or non-justifiable. If defense counsel commits an error but the reason for his action is justifiable, his action will not be viewed as incompetency.

Because a justifiable reason will preclude a finding of incompetency, the hearing judge must consider counsel’s motivation for his erroneous action. For example, if counsel’s action regarding the erroneous jury instruction 2 was effectuated as a legitimate "trial tactic,” the probity of his action is not subject to second guessing by post conviction review. ⁹³ Davis v. State, 40 Md.