Chapter 27 CRIMINAL APPEALS IN MARYLAND—THE DEFENSE PERSPECTIVE

• Jurisdiction: Maryland

Chapter 27 CRIMINAL APPEALS IN MARYLAND—THE DEFENSE PERSPECTIVE

Marc A. DeSimone, Jr.

The appellate process serves a vital and fundamental role in our criminal justice system; it ensures the procedural and substantive regularity of any criminal conviction. While civil and criminal appeals are, by and large, governed by the same procedural rules, the stakes are unique, as "[n]o sum of money, no portion of land, can give rise to a judicial contest, equally interesting with that in which the life and liberty of a man is at stake."¹ The gravity of a criminal appeal gives rise to a concomitant obligation on the part of counsel to competently navigate the appellate process, identify the client's best chances for success, and vigorously pursue those points, as "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client."² The criminal justice system functions fairly and effectively only when we, as attorneys, ensure that it has functioned fairly and effectively. This chapter aims to provide insight into how to successfully litigate a criminal appeal in Maryland.

I. THE RIGHT TO APPEAL FROM A CRIMINAL CONVICTION

There is no constitutional right to appeal from a criminal conviction.³ The criminal appeal exists solely as a matter of legislative grace.⁴ The late Justice Scalia even suggested that because "a State could, as far as the federal Constitution is concerned, subject its trial-court determinations to no review whatever, it could a fortiori subject them to review which consists of a nonadversarial reexamination of convictions by a panel of government experts."⁵

In Maryland, there is a statutory right to appeal in a criminal case.⁶ Regardless of its source, "[w]hen the right to appeal exists, it is of such importance that the trial judge is required to assure that the defendant is advised of it '[i]mmediately after imposing sentence.' "⁷ The appellant may exercise this right even if they cannot pay the costs to litigate the appeal, secure the transcripts, or retain counsel.⁸ The criminal appellant (like a criminal defendant at trial) has the right to the effective assistance of counsel on appeal.⁹

II. WHEN, WHERE, WHY AND HOW TO NOTE A CRIMINAL APPEAL

Except in limited circumstances, an appeal may only be taken from a final judgment; in the criminal context, the "'[c]onviction' and 'sentence' are legally distinct," Buckner v. State, 11 Md. App. 55, 59, 272 A.2d 828, 831 (1971), and there is no final judgment until the jury (or judge) has rendered a verdict and a sentence has been imposed.¹⁰ Thus, an appeal noted after conviction but prior to sentencing is premature.¹¹ The State may note an appeal in only limited and enumerated instances.¹² A criminal defendant may not appeal from a plea of guilty (except a "conditional plea of guilty entered pursuant to Md. Rule 4-242(d), and the only appellate recourse is via an Application for Leave to Appeal.

The appeal must be noted within 30 days after the judgment is entered, i.e., imposition of sentence, Md. Rule 8-202(a), unless the defendant filed a motion under Md. Rule 4-331(a) within 10 days after the verdict, in which case the appeal must be noted within 30 days after the circuit court has ruled on the motion.¹³

Once there has been an appealable final judgment, "counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing."¹⁴ If counsel fails to either consult with the client concerning the appeal, or fails to perfect the appeal if the client desired an appeal, "[a]s a matter of Maryland case law, a defendant in a criminal case denied his right to a desired appeal through no fault of his own, and who has been diligent in attempting to assert his appeal rights, is entitled to a belated appeal, without the necessity of presenting any other evidence of prejudice."¹⁵

As in any case, counsel has the obligation to inform the client of the advantages, and potential disadvantages, of an appeal so that the client may knowingly exercise the right to appeal. The advantages are obvious; reversal of a conviction, freedom from incarceration, and relief from the collateral consequences of that conviction.¹⁶

In some cases, there may be disadvantages in going forward with the appeal. Most appeals do not permanently end the case or the client's criminal exposure; they merely entitle the client to a new trial. Should the client be retried and reconvicted, due process "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial."¹⁷ Thus, if a client is resentenced after a successful appeal, the client's second sentence will usually be "capped" by the first sentence.¹⁸ The client is at risk of a greater sentence, however, if the greater sentence is not vindictive, i.e., when it is "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."¹⁹ Accordingly, if the client has received a sentence less than the maximum possible sentence, counsel should ascertain whether the client could be exposed to a "Pearce risk," properly counsel the client as to the client's options, and inform the client of any potential risk of a greater sentence.

Maryland has additional statutory protections against an increased sentence after a successful appeal. Specifically, if there is a successful appeal, and a new conviction, the court "may not impose a sentence more severe than the sentence previously imposed for the offense unless: (1) The reasons for the increased sentence affirmatively appear; (2) The reasons are based upon additional objective information concerning identifiable conduct on the part of the defendant; and (3) The factual data upon which the increased sentence is based appears as part of the record."²⁰ Further, keep in mind that the Supreme Court of Maryland has held that the reference to "offense" in § 12-702(b) does not mean "simply one count in a multi-count charging document, but rather the entirety of the sentencing package that takes into account each of the individual crimes of which the defendant was found guilty."²¹ Thus, the prohibition upon a greater sentence for the "offense" in § 12-702 refers only to the aggregate total sentence for all counts, and upon remand "a defendant's sentence will be considered to have increased under § 12-702(b) only if the total sentence imposed after retrial or on remand is greater than the originally imposed sentence."²²

There is no right of appeal from a guilty plea; a criminal defendant who has pled guilty may only file an Application for Leave to Appeal (AFLA).²³ Similarly, an AFLA is the only appellate recourse from the revocation of probation, and the resolution of a post-conviction proceedings.²⁴ An AFLA should be treated in the same manner as a Petition for Writ of Certiorari; you should focus on the importance of the issues presented, first, and the likely result, second, to persuade the court to utilize its discretionary ability to hear the case due to the institutional importance of resolving the issue, and not the acute importance to the appellant. The AFLA "shall be filed in duplicate with the clerk of the lower court," and must be filed within 30 days after the entry of "the judgment or order from which the appeal is sought."²⁵ Chapter 29 of this treatise addresses postconviction appeals in more detail.

Maryland has recently recognized a defendant's ability to enter a "conditional plea of guilty."²⁶ Under this rule, and with the consent of the court, in the circuit court a defendant may enter a conditional guilty plea and, in writing, "may reserve the right to appeal one or more issues specified in the plea that (A) were raised by and determined adversely to the defendant, and, (B) if determined in the defendant's favor would have been dispositive of the case."²⁷ The right of appeal under this rule "is limited to those pretrial issues litigated in the circuit court and set forth in writing in the plea."²⁸

III. THE NUTS-AND-BOLTS OF A CRIMINAL BRIEF

The requisite content of a criminal appellate brief, the manner of legal analysis, and the common methods of persuasion are no different than in any other appeal.²⁹ A criminal appeal, however, may call for different application of those techniques than in other appeals, and certainly calls for a different style of persuasion than that which would succeed at trial.

Persuasion is an art more than a science; it relies on fostering three indispensable ingredients: (1) ethos (the ethical appeal of the party or the speaker); (2) pathos (the emotional, compassionate, or sympathetic appeal of the case); and (3) logos (the logical appeal of your argument).³⁰ Logos is the application of legal rules to facts to demonstrate how and why your desired conclusion is correct. The use of logos is no different in a criminal appeal than in any other case. The positive use, and avoiding the negative impact, of pathos and ethos raises unique concerns in a criminal appeal.

There is a time and place for everything under the sun. An appeal is an intellectual enterprise; it involves the application of legal rules to unique facts and, in appropriate cases, an intellectual discourse as to which rule is the proper rule to apply in a given situation. These are battles best fought from the head, and not the heart, and an argument which may win the day in front of a jury may fall on deaf appellate ears. However, if your desired conclusion is not only legally correct but also is the right thing to do on a human, moral...