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Opinions – 11/14/11: Maryland Court of Appeals

Criminal Law

Conspiracy to commit attempted armed robbery

BOTTOM LINE: Because armed robbery statute proscribed both the commission of a robbery and the attempt to commit that offense, conspiracy to commit attempted armed robbery was a cognizable crime.

CASE: Stevenson v. State, No. 106, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-1027-23, 14 pages.

FACTS: On October 29, 2007, Terry Stevenson, acting in concert with three other men, made an unsuccessful attempt to rob Kevin Williams. As a result of this botched attempted robbery, a grand jury returned an indictment against Stevenson, charging him with multiple offenses including attempted armed robbery, reckless endangerment, and three counts of conspiracy. Following a jury trial, Stevenson was convicted of conspiracy to commit attempted armed robbery, and reckless endangerment.

The circuit court merged the conspiracy counts for the purposes of sentencing, and imposed a sentence of 15 years’ imprisonment. Stevenson appealed to the Court of Special Appeals, which reversed his reckless endangerment conviction, but affirmed the judgment of conviction for conspiracy to commit attempted robbery with a dangerous weapon.

Stevenson appealed to the Court of Appeals, raising the question of whether conspiracy to commit attempted armed robbery, a doubly inchoate crime, was a cognizable offense. The Court of Appeals answered the question in the affirmative, and affirmed the judgment of the Court of Special Appeals.

LAW: Stevenson argued that conspiracy to attempt, a doubly inchoate crime, was not a cognizable offense. Specifically, Stevenson contended that, logically, “one simply does not conspire to attempt, one conspires to do.”

However, in Townes v. State, the Court of Appeals held that conspiracy to attempt to obtain money by false pretenses was “a cognizable crime.” Townes v. State, 314 Md. 71 (1988). The Townes court reasoned, “If we mechanically assemble the building blocks of the crime of conspiracy in the context of this case, it would seem that the crime of conspiracy to attempt to commit the crime of obtaining money by false pretenses fits the established mold. Obtaining money by false pretenses is a crime. Attempting to obtain money by false pretenses is a separate, self-standing crime. Accordingly, if a criminal conspiracy consists of an agreement to commit a crime, and an attempt to obtain money by false pretenses is a crime, it follows that the crime of conspiracy to attempt to obtain money by false pretenses fits the legal definition of conspiracy.” Id.

A person intending to commit a crime intends also to attempt to commit that crime. The intent to attempt is viewed as correlative to and included within the intent to consummate. Accordingly, one who conspires to commit a crime concurrently conspires to attempt to commit that crime. Id. at 74–77.

Consistent with the reasoning employed in Townes, federal appellate courts have held that, if a separate federal statute specifically proscribes the crime of attempt, it is an offense against the United States and therefore an appropriate object of the federal conspiracy statute. Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis 1, 58 (1989). Those courts have affirmed convictions for conspiracy to attempt the commission of a crime in instances in which the conspiracy failed to realize an object offense for which the statutory definition of the crime prohibited both the attempt and the substantive crime. Id. at 60. Conspiracy to attempt convictions have been affirmed in cases involving botched bank robberies. Id.

Similarly, in United States v. Clay, while affirming convictions “for conspiring to attempt to enter and attempting to enter a savings and loan association,” the United States Court of Appeals for the Seventh Circuit stated, “It is well-settled that a single conspiracy may have a multiplicity of objects…” United States v. Clay, 495 F.2d 700 (7th Cir.1974). Clay was cited with approval by the United States Court of Appeals for the Ninth Circuit in United States v. Dearmore. See United States v. Dearmore. , 672 F.2d 738 (9th Cir.1982). While affirming the conviction of a defendant found guilty of conspiracy to commit attempted bank robbery, and rejecting the argument that an attempt cannot be a proper object of a conspiracy because conspiracy by definition contemplates a completed criminal action, the Dearmore Court stated, “Conspiracy is made criminal in order to strike against the special dangers incident to group activity…Thus, convictions for conspiracy have been upheld even when it was impossible for the conspirators to achieve their objective and even when the objective itself would not be unlawful if committed by an individual.” Id. at 740.

Likewise, in United States v. Mowad, the United States Court of Appeals for the Second Circuit affirmed convictions for “dealing in firearms without a license, attempting to export firearms without an export license, and conspiracy to commit the two foregoing offenses.” United States v. Mowad, 641 F.2d 1067, 1069 (2d Cir.1980). Citing Clay with approval, the Mowad Court rejected the argument that conspiracy-to-attempt the commission of a substantive offense could not, as a matter of law, state a crime. Id.

Stevenson argued that the holding in Townes had been overruled by Mitchell v. State. Mitchell v. State, 363 Md. 130 (2001). However, the Mitchell court held that where the charge is made and the evidence shows that the defendant conspired to kill another person unlawfully and with malice aforethought, the conspiracy is necessarily one to commit murder in the first degree. Id. at 149. Thus, while Mitchell made it clear that a “conspiracy to attempt a second degree murder” is not a cognizable offense, that case was in no way inconsistent with Townes, under which a “conspiracy to attempt a first degree murder” is a cognizable offense.

Section 3–403 of the Criminal Law Article, in pertinent part, provides that a person may not commit or attempt to commit robbery: (1) with a dangerous weapon; or (2) by displaying a written instrument claiming that the person has possession of a dangerous weapon. The analysis employed by the Clay, Dearmore, and Mowad Courts was fully applicable to Maryland’s armed robbery statute which, like the federal bank robbery statute, proscribes both the commission of a robbery and the attempt to commit that offense. Based on this reasoning, conspiracy to commit attempted armed robbery is a cognizable crime.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Stevenson further argued that the law as it exists today would have sufficiently criminalized his behavior, and that because the State’s evidence was sufficient to support a “conspiracy to commit robbery” conviction, the charge of “conspiracy to attempt to commit robbery” was not recognizable. However, while it is always a defense to prove that one is less culpable than charged, it is not a defense to prove that one is more culpable than charged. State v. Rich, 415 Md. 567 (2010). Thus, one does not defend against a charge of second-degree murder by proving that one was really guilty of first-degree murder; to prove culpability at a given level, the State is not required to disprove greater culpability.

Whenever there is doubt as to the appropriate level of guilt, the defendant, of course, receives the benefit of the doubt and is convicted only at the lower level. A defendant is never, however, entitled to total exculpation simply because there is ambiguity as to his level of guilt. Different levels of culpability are not neatly abutting and mutually exclusive so as to render one necessarily inconsistent with the other. Id. at 583 n. 3.

Criminal Law

Witness intimidation

BOTTOM LINE: Even though differing inferences could have been drawn from letter written by incarcerated defendant instructing the recipient of the letter to “leave his brother alone” and not to testify in upcoming criminal case against defendant’s brother, there was sufficient evidence to support to support defendant’s conviction of intimidating or influencing a witness.

CASE: Tracy v. State, No. 32, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Barbera, Eldridge & John (Retired, Specially Assigned)). RecordFax No. 11-1027-21, 31 pages.

FACTS: Sheryl L., a Maryland resident, had been dating Marshall Ebling, the half-brother of the Matthew Tracy, the defendant in the present case. Sheryl’s relationship with Ebling ended in a fight on December 12, 2007. After the breakup, a criminal case was filed against Ebling in which Sheryl was the complainant and victim.

On December 28, 2007, while Matthew Tracy was incarcerated in a Maryland prison, he wrote a letter to Sheryl. In the letter, Tracy stated that he was writing in regard to Tracy’s ex-boyfriend. Tracy further stated in the letter, “I’ve decided to write to you first instead of getting my people involved. I’m pretty sure you know who I run with…Everything will be fine as long as you and your man leaves my little brother alone.”

Sheryl received Tracy’s letter on January 30, 2008, and turned it over to the State’s Attorney for Caroline County. On February 8, 2008, Tracy was charged with witness retaliation in violation of Maryland Code, Criminal Law Article §9–303 (Count 1), and of trying to influence, intimidate or impede a witness in violation of CL §9-305 (Count 2). As a result of Tracy’s demand for a jury trial, his case was transferred to the circuit court.

During Tracy’s criminal trial in circuit court, the jury received undisputed evidence that Ebling was arrested after Sheryl notified the police that he had broken her car windshield, and the criminal charges arising out of that incident were scheduled for trial on February 11, 2008. Sheryl testified that, in January of 2008, Ebling told her that she would be getting a letter. Ebling testified that no such conversation ever took place, that he had never told Tracy about his upcoming trial, and that he had told Tracy about threats he had received from a neighbor named Joey. According to Ebling, Tracy wrote the letter to put a stop to those threats.

The jury ultimately convicted Tracy of both Count 1 and Count 2. For the conviction on Count 1, the circuit court imposed a sentence of 5 years’ imprisonment, all of which was suspended. For the conviction on Count 2, the circuit court imposed a 4-year sentence to the custody of the Commissioner of Correction, consecutive to any sentence that Tracy was then serving and had received but was not yet serving. No portion of that sentence was suspended.

Tracy appealed to the Court of Special Appeals, which affirmed Tracy’s convictions on both counts. Tracy then appealed to the Court Appeals, which held that the State’s evidence was sufficient to establish that Tracy violated §9–305(a) of the Criminal Law Article, and therefore affirmed the judgment of the Court of Special Appeals with regard to Count 2.

The Court of Appeals held, however, that the threat, “I will have you harmed if you testify” was proscribed by CL §9–302 rather than by CL §9–303, and therefore reversed the judgment affirming Tracy’s conviction on Count 1.

LAW: On appeal, Tracy argued that the evidence was insufficient to prove the State’s case argument that, by writing the above-described letter to Sheryl, Tracy intended to “chase her off the witness stand” in violation of CL §§9-303 and/or 9-305.

However, the finder of fact has the ability to choose among differing inferences that might possibly be made from a factual situation. Smith v. State, 415 Md. 174 (2010). That is the fact-finder’s role, not that of an appellate court. The term “inference” refers to the logical process that takes place when, within the context of a group of propositions (i.e., an “argument”), one proposition (the “conclusion”) is arrived at and affirmed on the basis of other propositions (the “premises”) that are accepted at the beginning point of the process. Douglas Lind, Logic and Legal Reasoning 4–5 (2001). In other words, an inference is a factual conclusion that can rationally be drawn from other facts. Clifford S. Fishman, Jones on Evidence §4:1 (7th ed. 1992 & Supp.2009–2010).

As such, a reviewing court does not second-guess the jury’s determination where there are competing rational inferences available; rather, it gives deference to the inferences that a fact-finder may draw. State v. Smith, 374 Md. 527, 534 (2003). Thus, an appellate court need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence. Id. at 557. The pertinent question is not whether an appellate court might have reached a different conclusion from that of the trial court, but whether the trial court had before it sufficient evidence upon which it could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the offense charged. Dixon v. State, 302 Md. 447, 455 (1985).

Here, the State’s evidence was clearly sufficient to prove beyond a reasonable doubt that Tracy’s letter was written with the intent to prevent Sheryl from testifying against his half-brother in the upcoming criminal case. As such, the evidence was sufficient to show that Tracy engaged in an act to influence or intimidate a witness in violation of CL §9-305 (Count 2).

Therefore, the judgment of the Court of Special Appeals affirming Tracy’s conviction on Count 2 was affirmed.

COMMENTARY: In addition, the Court of Appeals exercised its discretion to consider whether Tracy’s conduct as charged in Count 1 constituted a violation of CL §9–303 or CL §9–302. In Count 1 of the charging document, Tracy was charged with threatening to harm Sheryl if she testified for the State in the case of State v. Marshall Ebling, rather than because she had reported Ebling’s past criminal conduct. Tracy argued that his conviction under CL §9–303 should be reversed because that statute does not proscribe threats uttered with the intent to prevent a victim or witness from taking action in the future.

CL §9-303 provides that a person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for giving testimony in an official proceeding, or for reporting a crime or delinquent act. Thus, the threat, “I will harm you because you testified” is proscribed by CL §9–303(a)(1). However, CL §9–303 is not applicable to threats uttered in an effort to prevent a victim or witness from taking action in the future. The threat, “I will harm you if you report the crime” is proscribed by CL §9–302(a)(2)(iii). And the threat, “I will harm you if you testify” is proscribed by CL §9–302(a)(1).

Here, Tracy’s act of threatening Sheryl if she took certain actions in the future was proscribed by CL §9-302, not by §9-303. When a defendant has been charged and convicted under an inapplicable statute, the resulting sentence is an illegal sentence which may be challenged at any time. Moosavi v. State, 355 Md. 651, 662–63 (1999). Therefore, in the interest of judicial economy, the judgment affirming Tracy’s conviction on Count 1 was reversed.

Criminal Procedure

Juror access to extrinsic evidence

BOTTOM LINE: The trial court abused its discretion in denying defendant’s motion for mistrial without first conducting a voir dire of the jury to ascertain the nature and scope of potential prejudice resulting when a juror gained access to extrinsic evidence and, therefore, defendant was denied his right to a fair trial by an impartial jury.

CASE: Johnson v. State, No. 137, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, Greene, Adkins & BARBERA) (Judge Murphy dissenting). RecordFax No. 11-1027-27, 22 pages.

FACTS: An early-morning robbery occurred at a McDonald’s restaurant on Howard Street. Janice Roberts, the victim of the robbery and manager of the McDonald’s, testified that she reported to work at the McDonald’s at 3:00 a.m., on the day of the crime. She unlocked the door, crossed the room to turn off the alarm and, upon returning to the door to re-lock it, was confronted by a man wearing a black coat, jeans, and what appeared to be fake dreadlocks. The man pushed through the door and, once inside, put a gun to Roberts’ back and told her, “Go to the back and give me the money.” Roberts recognized the man as someone who patronized the McDonald’s. By means of a photo array, Roberts later was able to identify the man she recognized as Shawn Johnson.

While Roberts was opening the safe and retrieving the money inside, Johnson answered a ringing cell phone. After receiving the money from Roberts, Johnson fled through the back door of the restaurant and into the alley behind it.

Roberts immediately called 9–1–1. Roberts gave the police a description of the robber. Upon arrival at the scene, police found a man in the alley behind the McDonald’s, later identified as Stanford Reid, Johnson’s 18-year-old cousin. The police seized from Reid the deposit bag containing the stolen money, an unloaded handgun wrapped in a coat, and two cell phones. The police also found in the alley a wig of fake dreadlocks.

Reid testified as a State’s witness that he served as the lookout during the robbery. He stood at a bus stop near the entrance to the McDonald’s. Reid testified that he had two cell phones at that time. Reid testified that he received a cell phone call from Johnson at 3:08 a.m., who told him to retrieve from the alley the proceeds from the robbery. As he walked out of the alley toward Howard Street, the police arrested him.

The two cell phones were admitted into evidence during Reid’s testimony. Both cell phones were powerless, evidently because the batteries had been removed.

The jury began deliberations at approximately 2:15 p.m. Soon thereafter, the jury sent a note to the court asking about the cell phones. The court instructed the jury that it had received all the evidence and they must rely their own memory.

At approximately 4:15 p.m., the jury sent another note to the court, asking the court what they should do if they could not agree. The court again instructed the jury to investigate the case for themselves and that their decision must be based on the evidence, along with all reasonable and logical inferences that flow therefrom. The jury was then excused for the weekend.

The jury resumed deliberations on the following Monday morning. Within thirty minutes, the jury sent a note stating that one of the jurors had turned on the cell phone (using her own battery) and found a call was placed to Johnson at 3:08 AM. The jurors asked what they should do with that information.

Defense counsel moved for a mistrial, which the court denied. The jury found Johnson guilty of robbery, second degree assault, conspiracy to commit armed robbery, and theft of property with a value over $500. Johnson moved for a new trial based on the jury conduct in question. The court denied the motion. The Court of Special Appeals affirmed the trial court’s refusal to declare a mistrial.

Johnson appealed to the Court of Appeals, which reversed.

LAW: The Sixth Amendment guarantees “a…public trial by an impartial jury.” U.S. Const. amend. VI. See also Article 21 of the Maryland Declaration of Rights. Implicit in that right is the right to have the jury’s verdict be “based solely on the evidence presented in the case.” Couser v. State, 282 Md. 125, 138 (1978). Thus, consideration by the jury of extrinsic evidence implicates the defendant’s constitutional right to a fair trial before an impartial jury.

Serious juror misconduct “raise[s] fundamental concerns” regarding “whether the jury would reach their verdict based solely upon the evidence presented at trial or whether it would be improperly influenced,” Jenkins v. State, 375 Md. 284, 299 (2003), and thereby run afoul of the protections afforded by the Sixth Amendment and Article 21.

Often the extreme remedy of mistrial is not mandated. Depending upon the nature, scope, and timing of the misconduct, the judge may have reasonable means of curing any possible prejudice to the defendant.

Other times, the juror misconduct is such that prejudice to the defendant must be presumed. In those situations, a mistrial is the proper remedy unless the State overcomes the presumption of prejudice.

Jenkins involved the post-trial discovery that during trial a juror had “non-incidental, intentional and personal” contact with a State’s witness, in direct violation of the court’s instructions. Jenkins, 375 Md. at 319. The Court of Appeals recognized that “the strong possibility of prejudice [to the defendant] invokes the presumption,” id. at 329, which the State was unable to rebut. Id. at 340–44. As a consequence, Jenkins was entitled to a new trial.

“Generally, appellate courts review the denial of a motion for a mistrial under the abuse of discretion standard.” Dillard v. State, 415 Md. 445, 455 (2010). In cases such as this, though, a proper exercise of discretion must be prefaced by an adequate investigation. “[T]he court has a duty to fully investigate allegations of juror misconduct before ruling on a motion for a mistrial, and…failure to conduct a voir dire examination of the jurors before resolving the issue of prejudice is an abuse of the trial judge’s discretion.” Id. at 461.

The defendant need not make a specific request that the trial court perform a voir dire of the jurors as part of its investigation into the jury’s misconduct because, “[o]nce the parties raise the issue of [jury misconduct], the trial judge must conduct a meaningful inquiry that will resolve the factual questions.” Id. at 459.

In Dillard, the State learned during trial and informed the court that, following the testimony of the State’s primary law enforcement witness, two jurors patted the witness on the back and commended him for doing a good job. Id. at 448. At the defendant’s request, the trial court brought the jurors into the courtroom and identified the offending jurors but did not inquire into their motives for the improper contact. Because the juror misconduct raised questions regarding the juror’s ability to reach an impartial verdict, and the trial court failed to conduct a meaningful inquiry into the factual questions raised by the misconduct, the Court of Appeals reversed the trial court’s denial of the defendant’s motion for a mistrial, as an abuse of the court’s discretion. Id. at 457–58.

In this case, the trial court was careful at several points during trial to instruct the jury not to engage in any sort of outside investigation. Moreover, when the jury informed the court of the juror’s access to the electronically stored data in the cell phones, the court reminded the jury of the court’s “direct instruction” to rely solely on the evidence presented and “not to investigate the case for yourself.” The court then admonished the jurors that they disregard whatever they heard or saw on the cell phone and that they cannot use anything they saw and/or heard once that battery was placed into the phone. The court asked if anyone was unable to comply with the instructions, to which there were no responses.

The information the juror accessed from the cell phone—that a call had been placed to Johnson at a time at or near when the victim testified the robber received a cell phone call—was of central importance to what the jury ultimately had to decide.

Notwithstanding the obvious potential for prejudice to Johnson, the court took no steps to develop facts related to the effect the extrinsic information had on the jury. The court did not ascertain either the identity of the investigating juror who obtained the information from the cell phone, who among the remaining jurors was aware of what that juror had learned, or the degree to which the extrinsic and highly prejudicial information had upon some or all of the jurors. See Jenkins, 375 Md. at 331.

There was no way of knowing whether further investigation would have supplied enough information to permit the court to remedy the juror’s misconduct short of granting a mistrial.

Given the nature of the misconduct and the degree to which the extrinsic information obtained as a result could impair Johnson’s right to a fair trial by an impartial jury, the court could not reasonably rely simply on a general admonishment to the jurors that they must disregard the new, wrongly-obtained information.

In circumstances like these, the good faith of the jurors alone is not enough to guarantee that those same jurors can put aside information, prejudicial to the defendant, that comes to their attention through improper means.

Because a trial court’s discretion to grant or deny a motion for mistrial can be properly exercised only when sufficient facts are known to the court, Dillard, 415 Md. at 461, and the trial court did not have sufficient facts, the court’s denial of Johnson’s motion for a mistrial was an abuse of discretion.

DISSENT: According to the dissent, the circuit court had a sufficient factual basis for concluding that there was not a manifest necessity to declare a mistrial. Johnson’s trial counsel never requested that the circuit court conduct an individual voir dire of each juror, and, therefore, the circuit court’s failure to do so was not an abuse of discretion.

PRACTICE TIPS: “The presence of alternate jurors during the jury deliberations…sufficiently imping[es] upon the defendant’s constitutional right to a jury trial…to create a presumption of prejudice;” see Stokes v. State, 379 Md. 618, 638 (2004), and a new trial was required because Rule 5–606 prevents a juror from impeaching his or her own verdict, and, as such, there was no opportunity either to prove or rebut potential prejudice resulting from the improper influence. Id. at 641–42.

Criminal Procedure

Motion to correct sentence

BOTTOM LINE: Defendant’s motion to correct illegal sentence, pursuant to Rule 4–345(a), challenging the requirement that he register as a sex offender, was dismissed as moot because, having completed his sentence, he no longer had a sentence to correct.
CASE: Barnes v. State, No. 124, Sept. Term 2010 (filed Oct. 27, 2011) (Judges Harrell, Greene, ADKINS & Eldridge (retired, specially assigned)) (Judges Murphy, Eldridge & Murphy dissenting). RecordFax No. 11-1027-25, 21 pages.

FACTS: Kenneth Barnes was charged with second-degree rape, assault with intent to commit rape, third-degree sexual offense, fourth-degree sexual offense, and assault.

In August 1998, Barnes appeared before the circuit court on the sexual offense charges. Barnes agreed to an Alford plea on the single count of third-degree sexual offense, and in exchange the state agreed not to prosecute the remaining charges. Pursuant to an agreement with Barnes’s counsel, the court imposed a ten-year suspended sentence with a four-year period of supervised probation. During this proceeding, the court imposed the conditions of Barnes’s probation, including instructions that he continue receiving psychiatric treatment and not have contact with the complaining witness or the prosecutor. The court did not expressly order that Barnes register as a sexual offender.

Following Barnes’s conviction, the Maryland Division of Parole and Probation provided him with a form stipulating that Article 27, §692B required him to register as a sexual offender with the Maryland Division of Parole and Probation. Barnes signed the form.

Barnes finished his four-year supervisory probation in August 2002 without incident. During this period of probation, he complied with all registration requests. After his period of probation ended, however, Barnes moved to a new address and failed to notify his supervising authority as required by law. See CP §§11–701, 11–704, 11–705, 11–707.

Thus, in 2005, the State charged Barnes with failing to notify the Department of Public Safety and Correctional Services or the Baltimore City Police Department of his change in address. Barnes pleaded guilty and received a new three-year suspended sentence with a three-year supervisory probation. As a condition of his new probation, Barnes was required to live with his mother.

In October 2005, it was discovered that Barnes was no longer living with his mother. Thus, Barnes was convicted of violating his probation and ordered to serve the remainder of his three-year sentence for failing to report his change of address. Barnes was released on parole on March 21, 2007, and arrested on a parole re-take warrant in May 2007, because of an anonymous complaint that filed against Barnes. In May 2008, the State released Barnes from incarceration. Barnes is not currently incarcerated or on probation.

Barnes filed a motion to correct an illegal sentence on the grounds that the courts that had convicted him of third-degree sexual assault in 1998 and failing to notify his supervising authority of his change in address in 2005 lacked the power to require him to register as a sex offender” The circuit court denied Barnes’s motion. The Court of Special Appeals affirmed the circuit court’s denial of Barnes’s motion on the grounds that his 2005 sentence was proper because he was subject to Maryland’s registration statute at that time.

Barnes appealed to the Court of Appeals, which vacated the decision of the Court of Special Appeals.

LAW: Pursuant to Rule 4–345(a), a “court may correct an illegal sentence at any time.” In permitting a court to correct an illegal sentence at any time, Rule 4–345(a) “creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.” State v. Griffiths, 338 Md. 485, 496 (1995).

Accordingly, if a sentence is “illegal” within the meaning Rule 4–345(a), “the defendant may file a motion in the trial court to ‘correct’ it, notwithstanding that (1) no objection was made when the sentence was imposed, (2) the defendant purported to consent to it, or (3) the sentence was not challenged in a timely-filed direct appeal.” Chaney v. State, 397 Md. 460, 466 (2007).

Yet, “[a] motion to correct an illegal sentence ordinarily can be granted only where there is some illegality in the sentence itself or where no sentence should have been imposed.” Evans v. State, 382 Md. 248, 278–279 (2004). “In other words, a motion to correct an illegal sentence “is not an alternative method of obtaining belated appellate review of the proceedings that led to the imposition of judgment and sentence in a criminal case.” State v. Wilkins, 393 Md. 269, 273 (2006).

Nor is a Rule 4–345(a) motion an end-run around appellate jurisdictional requirements. “Not every procedural irregularity, even in a capital sentencing proceeding, results in ‘a sentence not permitted by law.’” Burch v. State, 346 Md. 253, 289 (1997).

In State v. Kanaras, 357 Md. 170 (1999), the Court of Appeals held that a Rule 4–345(a) motion was not the appropriate vehicle for an inmate’s claim that the Parole Commissioner’s order prohibiting certain inmates from participating in pre-parole programs effectively transformed the inmate’s life sentence with the possibility of parole into a life sentence without the possibility of parole. Id. at 170. The illegality was in the Commissioner’s conduct; it did not inhere in the inmate’s sentence, which was lawful for the crime for which he was convicted. Id. at 185. Post conviction actions, such as habeas corpus or coram nobis, were appropriate “for challenging the validity of incarceration[,]” whereas a Rule 4–345(a) motion was “not specifically or exclusively designed to challenge the ‘validity’ of incarceration.” Id. at 184.

As Rule 4–345(a) simply permits a court to revise an illegal sentence, rather than to modify or overturn the underlying conviction, it follows that a court can no longer provide relief under that rule once a defendant has completed his or her sentence. In that instance, there is no longer a sentence to correct, and a court should dismiss the motion as moot unless special circumstances demand its attention. Cf. Cottman v. State, 395 Md. 729, 744 (2006).

In Sanchez v. State, 982 P.2d 149 (Wyo.1999), the Wyoming Supreme Court dismissed as moot the appellant’s motion to vacate an illegal sentence because he had completed the allegedly improper portion of the sentence. Following Sanchez’s conviction and sentencing for first-degree sexual assault, the trial court, at the request of defense counsel, crafted a more rehabilitative sentence in which Sanchez would complete some of his incarceration at the state hospital, where he could receive treatment and counseling. Id. at 150. Sanchez spent the allotted time at the state hospital and was then transferred to the penitentiary to serve the remainder of his sentence. More than ten years after the transfer, he filed a motion to vacate an illegal sentence and for complete dismissal, alleging that the trial court lacked the authority to require confinement at the state hospital. Although the Wyoming Supreme Court agreed, it affirmed the denial of Sanchez’s motion because “the issue complained of…no longer exist[ed.]” Id. at 150–151.

Barnes filed his motion to correct an illegal sentence on March 26, 2009. Yet, Barnes’s incarceration for his 2005 conviction had ended almost a year earlier, on May 29, 2008, and he was not subject to any consequences stemming from his convictions, other than the requirement that he register as a sex offender.

Because Barnes served his full sentence, there was no “sentence” to revise and the Court could “no longer fashion an effective remedy.” Cottman, 395 Md. at 744.

Accordingly, Barnes’s case was dismissed as moot.

COMMENTARY: Coram nobis is a common law writ of error that permits a defendant to collaterally attack “prior convictions that no longer impose restraints on [that] defendant[,]” such as incarceration or probation. Fairbanks v. State, 331 Md. 482, 486 (1993). “The purpose of the writ is to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.” Skok v. State, 361 Md. 52, 68 (2000). “[O]ne of the issues which [can] be raised [is] the voluntariness of a plea in a criminal case.” Id.

Barnes filed a coram nobis action on March 27, 2007, in which he argued that his Alford plea was defective because he had not been informed that, in so pleading, he would be subject to Maryland’s sex offender registration scheme. Six months after Barnes filed his action, the Court of Appeals issued Holmes v. State, 401 Md. 429, 475 (2007), in which it held that a defendant who fails to file an application for leave to appeal waives his or her right to coram nobis relief, unless that defendant can show “special circumstances” that would excuse waiver.

As Barnes had never appealed his Alford plea directly, he subsequently filed an amended petition for coram nobis, citing incompetence to stand trial at the time he pleaded guilty as his “special circumstance.” The circuit court denied his petition on the grounds that the evidence presented to the trial court at the time of Barnes’s plea indicated that he was competent at that time. Barnes then sought leave to appeal to the Court of Special Appeals, but was denied, and his subsequent petition for certiorari was also denied. See Barnes v. State, 410 Md. 560 (2009).

DISSENT: The plurality opinion takes the position that a motion to correct an illegal sentence should be dismissed as moot if the sentence has been served. However, according to the dissent, pursuant to the plain language of Rule 4–345(a), an illegal sentence may be corrected “at any time.” The rule does not state any limitation or qualification of the phrase “at any time.” See Rule 4-345(d).

Criminal Procedure

Petition for writ of actual innocence

BOTTOM LINE: The denial of a petition for writ of actual innocence, pursuant to CP §8–301, is an immediately appealable order; a petitioner is entitled to a hearing on the merits of the petition, provided the petition sufficiently pleads grounds for relief under the statute, includes a request for a hearing, and complies with the filing requirements of CP §8–301(b).
CASE: Douglas v. State, No. 146, Sept. Term, 2010; Curtis v. State, No. 147, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Greene, Murphy & BARBERA) (Judges Harrell, Battaglia & Adkins dissenting). RecordFax No. 11-1027-29, 33 pages.

FACTS: On January 26, 1990, Ellis Richard Douglas was involved in an altercation with several Baltimore police officers outside a bar. One officer saw Douglas sorting through what appeared to be packages of heroin or cocaine, approached him, and asked Douglas to come speak with his partner. Douglas initially complied with the officer’s request, but then turned and tried to run away.

When Douglas turned to flee, the officer noticed a .22 caliber handgun tucked into the small of Douglas’s back. A struggle ensued as other officers arrived on the scene. Douglas then pulled a .380 caliber handgun from his front waistband and fired four shots, striking several officers.

At trial, seven police officers involved in the altercation testified. Additionally, two ballistics experts testified regarding the ballistic evidence, Joseph Reese and Joseph Kopera.

The jury convicted Douglas of five counts of attempted second degree murder, five counts of assault, five counts of using a handgun in the commission of a crime of violence, and two counts of unlawfully wearing, carrying, and transporting a handgun. The Court of Special Appeals affirmed Douglas’s convictions.

In 2009, Douglas filed pro se in the circuit court a petition for writ of actual innocence pursuant to then-newly enacted CP §8–301. The circuit court denied the petition.

Douglas immediately appealed to the Court of Special Appeals. The Court of Appeals issued a writ of certiorari prior to arguments in the Court of Special Appeals.

In 1994, Lamont Anthony Curtis was involved in the shooting of James Sanders. During the investigation, an officer spoke with Curtis’s grandmother, Margaret Adkinson. He wrote her name on his report, as well as the name “Margaret Eri.”

At trial, the State attempted to impeach the credibility of a defense witness by arguing “Eri” was really a friend of Curtis’s named “Airy,” that “Airy” (or Eri) coerced Miles to testify on Curtis’s behalf. During deliberation, the jury asked who Margaret Eri was.

Curtis was convicted of attempted murder in the first degree, assault, and related handgun offenses. The Court of Special Appeals affirmed the convictions.

In 2010, Curtis filed a pro se petition for writ of actual innocence under CP §8–301. Curtis argued that the newly discovered evidence was an affidavit of his grandmother, Margaret Adkinson, in which she swore that she had never mentioned the name of “Airy,” or “Eri,” to the police. The circuit court denied Curtis’s petition for writ of actual innocence without a hearing.

The Court of Appeals issued, on its own initiative, a writ of certiorari case prior to arguments in the Court of Special Appeals.

The Court of Appeals reversed the order denying Douglas’s petition and affirmed the order denying Curtis’s petition. Douglas’s case was remanded for further proceedings.

LAW: The State filed a motion to dismiss both of the consolidated appeals on the ground that the denial of an order entered pursuant to CP §8–301 is not appealable.

In Maryland, criminal defendants do not have a constitutional right to appeal. Cubbage v. State, 304 Md. 237, 241 (1985). Instead, “the right to seek appellate review is statutory; the Legislature can provide for, or preclude, [it].” Fuller v. State, 397 Md. 372, 382 (2007). CP §8–301 is silent with regard to a right of appeal.

CJ §12–301 provides that a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. “[A] final judgment” is one that “either determine[s] and conclude[s] the rights of the parties involved or den[ies] a party the means to ‘prosecut[e] or defend[ ] his or her rights and interests in the subject matter of the proceeding.’” In re Billy W., 386 Md. 675, 688 (2005) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). Important is whether “any further order is to be issued or whether any further action is to be taken in the case.” Id. at 689.

The denial of a petition for writ of actual innocence is a final judgment under CJ §12–301. The ruling concludes a petitioner’s rights as to all claims based on the newly discovered evidence alleged in the petition. Once the court denies the petition, nothing remains pending in the case.

A denial under CP §8–301 also denies a petitioner “the means to ‘prosecut[e] or defend[ ] his or her rights and interest in the subject matter of the proceeding,’” In re Billy W., 386 Md. at 668 (quoting Rohrbeck, 318 Md. at 41), because CP §8–301(b)(5) requires the petitioner to “distinguish the newly discovered evidence claimed…from any claims made in prior petitions.” The requirement prevents a petitioner from re-filing a petition on the basis of the same allegedly newly discovered evidence.

Moreover, the final judgment requirement of CJ §12–301 aims to “prevent piecemeal appeals and…the interruption of ongoing judicial proceedings.” Stephens v. State, 420 Md. 495, 502 (2011) (quoting Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 665 (1983)). Because a denial of a petition for writ of actual innocence leaves no matter pending with the trial court, the conclusion that it is a “final judgment” under CJ §12–301 comports with the purpose of the statute.

Nevertheless, CJ §12–301 precludes appeals where “expressly denied by law.” The State asserted that the Uniform Postconviction Procedure Act (UPPA), codified at CP §§7–101 through 7–301, strips the right of appeal from actions brought under CP §8–301.

Under §7–107(b)(1), appellate review is precluded where a person challenges the validity of confinement by seeking the writ of habeas corpus or the writ of coram nobis or by invoking a common law or statutory remedy other than that title.

The purpose of the UPPA was to streamline “into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are…present[ly] available for challenging the validity of a sentence.” State v. Zimmerman, 261 Md. 11, 24 (1971). The UPPA does not eliminate alternative remedies, such as habeas corpus, coram nobis, or other common law or statutory remedies, though it restricts the right to appeal orders pursuant to those traditional remedies. Brady v. State, 222 Md. 442, 447 (1960).

But where the UPPA does not provide a remedy, the preclusive effects of CP §7–107(b)(1) do not apply. See Gluckstern v. Sutton, 319 Md. 634, 662 (1990).

Questions of guilt or innocence cannot be raised in petitions for postconviction relief. See, e.g., Thornton v. Md. Penitentiary, 241 Md. 715, 71 895 (1966) (per curiam). Further, a petition for postconviction relief “is not a substitute for a motion for a new trial.” Roe v. Patuxent Inst., 240 Md. 717, 719 (1965) (per curiam).

CP §8–301 provides a defendant an opportunity to seek a new trial based on newly discovered evidence that speaks to his or her actual innocence.

Furthermore, the legislative history of CP §8–301 reflects a legislative purpose that the statute extend the right to seek a new trial on the basis of newly discovered evidence beyond that afforded a convicted defendant under Rule 4–331(c).

Therefore, the UPPA’s appeal preclusion does not apply to claims arising under CP §8–301. Thus, the denial of a petition under CP §8–301 is a final judgment and may be appealed pursuant to CJ §12–301.

Accordingly, the State’s motion to dismiss was denied.

COMMENTARY: Under CP §8-301(e), the court shall hold a hearing on a petition for writ of actual innocence if the petition satisfies the requirements of subsection (b) and a hearing was requested. CP §8-301(e)(1). Furthermore, the court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted. CP §8-301(e)(2).

A petition must be “(1) be in writing; (2) state in detail the grounds on which the petition is based; (3) describe the newly discovered evidence; (4) contain or be accompanied by a request for a hearing if a hearing is sought; and (5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.” CP §8–301(b).

Furthermore, a petition for writ of actual innocence may be filed if there is newly discovered evidence that: “(1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and (2) could not have been discovered in time to move for a new trial under Maryland Rule 4–331.” CP §8–301(a).

The statute establishes only a burden of pleading grounds for relief, not of proving them, and a trial court may dismiss a petition without a hearing when one was requested, pursuant to CP §8–301(e)(2), only when a petitioner fails to satisfy the pleading requirement.

Douglas asserted that he was entitled to a hearing before the court denied his petition because he satisfied all of the procedural requirements of CP §8–301(b). The first requirement was easily satisfied because Douglas submitted his petition in writing. The petition also satisfied the second requirement that Douglas “state in detail the grounds on which the petition is based.” CP §8–301(b)(2). Douglas’s petition satisfied the third procedural requirement that Douglas “describe the newly discovered evidence.” CP §8–301(b)(3). Douglas also satisfied the fourth requirement under, which requires that the petition request a hearing if one is sought.

Douglas also satisfied CP §8–301(b)(5), that he “distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.” A petitioner may not file multiple petitions based on the same claim, but that does not prevent a petitioner from filing subsequent petitions asserting grounds of different newly discovered evidence. As this was Douglas’s first petition under CP §8–301, he had no claims to distinguish.

Furthermore, Douglas “assert[ed] grounds on which relief may be granted,” pursuant to CP §8–301(e)(2), when he alleged in his petition that Officer Kopera, an expert who had testified at the trial, had falsified his credentials. These allegations also asserted a basis that the newly discovered evidence “creates a substantial or significant possibility that the result [of Douglas’s trial] may have been different.” CP §8–301(a)(1).

Thus, Douglas’s petition satisfied the procedural requirements of CP §8–301(a)(1). He was entitled to the hearing on the petition he requested.

Unlike Douglas’s petition, Curtis’s petition for writ of actual innocence contained only one claim of newly discovered evidence: an affidavit from his grandmother, indicating that she is willing to testify in court that she never mentioned the name “Airy,” or “Eri,” to the police.

Curtis indicated in his petition that he wanted to obtain an affidavit from his grandmother stating that she never mentioned the name “Airy,” or “Eri,” to the police, but could not because of his grandmother’s health and his own incarceration. Evidence that is known but unavailable does not constitute “newly discovered evidence.” See Argyrou v. State, 349 Md. 587, 600 n. 9 (1998).

Thus, Curtis’s claim did not meet the requirements to obtain a hearing under CP §8–301.

DISSENT: According to the dissent, the creation of the petition for writ of actual innocence as a mechanism for convicted defendants in criminal cases to seek a new trial based on newly discovered evidence clearly did not provide for an appeal from the denial of such a petition.

CJ §12–301, in a criminal law context, grants a right of direct appeal from a final judgment of conviction and sentencing, whether as the result of an initial trial or a court-ordered re-trial. See Sigma, 297 Md. at 665–66. The distinction to be made is between the underlying criminal case and a collateral attack on a criminal judgment. See State v. Matthews, 415 Md. 286, 308 (2010). The former, including denials of motions for a new trial filed under Rule 4–331, are the type of final judgments for which §12–301 serves as statutory authority for the availability of an appeal. The latter, now including petitions for writ of actual innocence, are dependent on other statutory authority, if any, for a right of appeal. As for petitions for a writ of actual innocence, none exist.

PRACTICE TIPS: A motion under HG §8-507, a petition for commitment for substance abuse treatment, is more akin to a habeas corpus action than a motion to modify sentence under Rule 4–345—which could possibly be appealed—because relief under HG §8–507 “does not affect the length of a sentence[,]…initiates a statutory cause of action separate from the conviction, and may be filed repeatedly ‘at any other time the defendant voluntarily agrees to participate in treatment.’” Fulller v. State, 397 Md. 372, 382 (2007) (quoting HG §8–507).


Notice of intent to admit chemist’s report

BOTTOM LINE: At retrial, following a mistrial on charges of possession of cocaine with intent to distribute, the State’s failure to provide defendant with notice that it intended to seek admission of the chemist’s report without the presence of the chemist, pursuant to CJ §10-003, precluded admission of report.

CASE: Harrod v. State, No. 69, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Eldridge (retired, specially assigned)). RecordFax No. 11-1027-22, 21 pages.

FACTS: Darryl Harrod was initially charged in a two-count indictment with possession with the intent to distribute cocaine and assault in the second degree. During Harrod’s first jury trial, a chemist called by the State appeared, was qualified as an expert witness and testified from her report regarding the identity of the controlled substance as cocaine and its weight of 8.93 grams; she was subjected to cross-examination by Harrod’s counsel.

After the jury sent two notes indicating impasse, the trial judge, upon Harrod’s motion, declared a mistrial as to the possession with intent to distribute charge and took a not guilty verdict as to the assault charge.

Harrod retained new counsel. Five days prior to the date scheduled for Harrod’s retrial, Harrod’s new attorney filed an motion for continuance, which stated that, due to a family emergency, defense counsel would not be available, or if she was available, would not be prepared to try the case. In reliance upon defense counsel’s representations, the State informed its witnesses that the trial was most likely going to be continued and it did not assure the chemist’s appearance. However, the administrative judge denied the motion and the retrial began on the original date.

At the retrial, counsel for the State moved to have the testimony of the chemist from the first trial admitted into evidence. Defense counsel objected, stating that she had not had an opportunity to cross-examine the State’s chemist, but she did not specifically challenge the availability of the chemist.

The State also moved to have the substance and the chemist’s report identifying it as cocaine admitted into evidence, to which defense counsel objected. The trial judge, referencing CJ §10–1003, ruled that the chemist report was admissible without the chemist unless Harrod filed a written demand prior to the retrial. Thereafter, the judge permitted the State to both admit and read the testimony of the chemist into evidence, as well as to admit her report. Harrod was convicted and sentenced to seven years’ imprisonment.

Harrod noted an appeal to the Court of Special Appeals, asserting that the trial court’s admission of the chemist’s report and testimony violated his rights under the Confrontation Clause of the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36 (2004), and Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The intermediate appellate court declined to reach the constitutional arguments based on its view that Harrod had failed to object regarding the availability of the chemist in the trial court. The Court of Special Appeals also rejected Harrod’s argument that the trial court’s admission of the chemist’s report violated CJ §10–1003.

Harrod appealed to the Court of Appeals, which reversed.

LAW: CJ §10–1001 provides that, “without the necessity of the chemist or analyst personally appearing in court,” a “report signed by the chemist or analyst who performed the test” may serve as “prima facie evidence” that the “material was or contained the substance therein stated.”

Under CJ §10–1003(a), upon written demand of a defendant, the prosecution shall require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. CJ §10–1003(a)(3) provides that the provisions of CJ §§ 10–1001 and 10–1002 are applicable only when a copy of the report or statement to be introduced is mailed, delivered, or made available to counsel for the defendant, at least 10 days prior to the introduction of the report or statement at trial.

The grant of a mistrial upon a defendant’s request or consent does not preclude a retrial. Bell v. State, 286 Md. 193, 202 (1979). The grant of a mistrial is “tantamount to a holding that there had been no trial at all,” which does not “deny either the accused or the State the opportunity to litigate directly their rights on retrial.” Cook v. State, 281 Md. 665, 670–671 (1978). Similarly, the effect of the grant of a new trial, at least in the usual context, “is to leave the cause in the same condition as if no previous trial had been held.” Cottman v. State, 395 Md. 729 (2006).

Whether a mistrial in a criminal context restores the parties to their original pretrial positions does not appear to be answered in Maryland. Nevertheless, the grant of a mistrial in a criminal case does create a “tabula rasa” and requires the litigants to observe pretrial procedures once again. See State v. Bitz, 404 P.2d 628 (Idaho 1965).

Thus, it was necessary to determine what the parties’ responsibilities were prior to retrial. According to CJ §10–1003(a)(3), the State is required to give timely notice by “mail[ing], deliver[ing], or ma[king] available to counsel for the defendant” a “copy of the report or statement to be introduced” in order to admit it as substantive evidence without the presence of the chemist under §10–1001. The mistrial revived the State’s obligation.

Under §10–1003(a)(3), the State is the beneficiary of providing notice, because the chemist’s report can be admitted under §10–1001 without the presence of the chemist at trial. When the Court of Appeals has addressed the obligations of one who was benefitted from notice, it has recognized the burden of proof is his. See Sloan v. Grollman, 113 Md. 192 (1910).

Thus, as the party to benefit, the State clearly bore the burden of producing proof of compliance prior to retrial, which it failed to shoulder.

While the Court of Appeals has not directly discussed the effect of the State’s failure to observe the notice requirements in §10–1003, the Court of Special Appeals has unwaveringly characterized the State’s failure to provide notice as fatal to the admission of a chemist report without the presence of the chemist. See Best v. State, 79 Md.App. 241 (1989); Gillis v. State, 53 Md.App. 691 (1983). See also State v. Neal, 30 P.3d 1255 (Wash.2001).

Section 10–1003(a)(3) disqualifies the State from admitting a chemist report without the chemist, unless it timely mails, delivers, or makes available a copy of the report to the defendant. The State did not comply with the dictates of the statute, substantially or strictly.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: The State argued that the failure to provide timely notice was harmless, because Harrod had “actual notice” of the contents of the chemist report as well as the chemist’s former testimony.

When performing harmless error review, the Court of Appeals conducts an independent assessment of the “impact of the erroneous ruling upon the defendant’s trial and the effect it ha[d] upon the decisional process,” irrespective of whether the error could be labeled “as constitutional or nonconstitutional.” Dorsey v. State, 276 Md. 638, 658 (1976). The result of harmless error review depends upon “our own independent review of the record,” in order to determine whether we are “able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” Id. at 659.

In Anderson v. State, 420 Md. 554 (2011), in the context of a prosecution for sexual abuse of a minor, the Court of Appeals considered whether the admission of a doctor’s report into evidence, despite it being inadmissible hearsay, was harmless beyond a reasonable doubt. In framing our analysis, the Court instructed that harmless error was “determined by examining the use that the State made” of the inadmissible doctor’s report. Id. at 569. The State continually reemphasized the statements made by the victim in the doctor’s report during closing argument, many of which inculpated the defendant, which precluded the Court from declaring beyond a reasonable doubt that the erroneous reception of the doctor’s report was harmless. See also Parker v. State, 408 Md. 428 (2009).

In order to support a conviction for possession with intent to distribute a controlled dangerous substance, the State introduced the chemist’s report to prove that the “40 rocks of white chalky [substance]” seized from Harrod’s person was “crack cocaine” and totaled “8.93 grams” in weight. Certainly, both the identity of the rocks as controlled dangerous substances, as well as their weight, were adduced to satisfy the elements of the charge of possession of cocaine, in violation of CL §5–602(2).

The chemist report and its attendant testimony were adduced to satisfy proof of the elements of the crime, and thus, their admission was not harmless.

Professional Responsibility


BOTTOM LINE: Disbarment was the appropriate sanction where Respondent engaged in a pattern of mishandling client funds, through the commingling of client funds with personal funds, and engaged in the practice of law after suspension.
CASE: Attorney Grievance Commission of Maryland v. Agiliga, AG No. 21, Sept. Term, 2010 (filed Oct. 26, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Adkins, Barbera & Eldridge (retired, specially assigned)). RecordFax No. 11-1026-22, 15 pages.

FACTS: Alexander Agiliga was admitted to the Bar of Maryland on June 23, 1993. On October 30, 2008 he was decertified from the practice of law for failing to file a report concerning his pro bono services. On April 6, 2009 he was suspended from the practice of law because he failed to pay his assessment from the Client Security Trust Fund.

Elizabeth Sarumi retained Agiliga for her personal injury claim and was treated by Prime Care Chiropractic. Ms. Sarumi’s total bills were $3225. Geico paid $1883 directly to Prime Care Chiropractic, leaving a balance of $1341.

Agiliga signed a medical assignment, agreeing to pay Prime Care Chiropractic out of any settlement. The case settled. However, Prime Care Chiropractic was not paid and has yet to be paid. Six “patient status letters” were sent to Agiliga without response. Agiliga had no records regarding the amount of settlement or any other recollection concerning this case.

A second client, Janay Perry, who also had a personal injury claim, was treated by Prime Care Chiropractic. Once again a doctor’s lien was signed. The case was settled and, again, no payment was received from Agiliga. Seven letters were sent to him regarding Ms. Perry. No response was received. The unpaid balance regarding Perry is $2080. Agiliga had no records pertaining to this case, including the amount of settlement.

Ablavi Amegee and Koffivi Adedze Doglan retained Agiliga together for their personal injury case. They received treatment at Riggs Chiropractic Clinic. Riggs accepted partial payment and no money is owed to the Riggs Clinic. While their case settled in November 2008, payment was not made to the clients until March 2009.

Agiliga testified that all of the above omissions were caused by his own dire financial situation. He was “locked out” of his law office and had no access to his files or his mail. Once he obtained access, he reviewed his files and resolved them appropriately.

Agiliga further agreed that he did not maintain an escrow account, but had a “business” account separate from his personal one.

The Attorney Grievance Commission of Maryland, through Bar Counsel, acting pursuant to Rule 16–751, filed a petition for disciplinary or remedial action against Agiliga, in which it alleged that Agiliga violated several Maryland Rules of Professional Conduct (MRPC)

Pursuant to Rule 16–752(a), the case was referred to the circuit court for a hearing. The trial judge issued findings of fact and conclusions of law.

The trial judge found by clear and convincing evidence that Agiliga violated MRPC 1.1 (Competence) by failing to maintain records concerning the cases of Perry and Sarumi. Minimal records existed regarding Amegee and Doglan. Agiliga also failed to pay the money owed to Riggs Chiropractic and Prime Care Chiropractic. He also failed to keep an escrow account.

The trial judge also concluded that Agiliga violated MRPC 1.3 (Diligence) when he failed to disburse settlement funds to Amegee and Doglan for at least three months, and had not yet paid the health care providers. Furthermore, he did not respond to their inquiries nor maintain a current address with them.

The trial judge further found that Agiliga violated MRPC 1.15 (Safekeeping Property). Agiliga failed to maintain an escrow account, failed to notify the treatment providers in a prompt manner of the settlements of Perry and Sarumi, failed to promptly disburse funds to Amegee and Doglan, and failed to maintain the funds separately to which Prime Care Chiropractic was entitled in both the Perry and Sarumi cases.

The trial concluded that Agiliga violated MRPC 1.16 (Declining or Terminating Representation) by failing to disburse the money due to Amegee and Doglan for an unreasonable length of time after the case had settled.

Furthermore, Agiliga continued to practice law while decertified and suspended, in violation of MRPC 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law).

The trial court further concluded that Agiliga did not maintain an escrow account as required by Rule 16–603. When he accepted the settlement funds in the case of Amegee and Doglan he violated Rule 16–604.

Finally, the bank records reflected that $12,100 was deposited in the account for the benefit of Amegee and Doglan. After taking a one third fee, $8075 should have remained for the benefit of the clients. The balance at the end of the month was $7,702.

The trial judge concluded that the failure to maintain sufficient funds on his clients’ behalf violated MRPC Rule 8.4 (Misconduct), BOP §10–306 and Rule 16–609. Additionally, each chiropractic clinic was entitled to funds which they never received. All of these omissions constituted conduct prejudicial to the administration of justice.

With respect to mitigation, the trial court found by a preponderance of the evidence that Agiliga was facing serious financial challenges that affected his practice and that none of his actions or omissions were the result of a deliberate intent to defraud. Agiliga testified forth rightly and did not attempt to evade or avoid questions.

The Court of Appeals disbarred Agiliga.

LAW: Neither Bar Counsel nor Agiliga filed exceptions to the findings of fact and conclusions of law made by the hearing judge. Thus, the Court “treat[ed] the [hearing judge’s] findings of fact as established for the purpose of determining appropriate sanctions, if any.” Rule 16–759(b)(2)(A).

Agiliga’s conduct in commingling client funds with his own funds was clearly willful and intentional and was not negligent. Upon his receipt of client funds, Agiliga failed to pay medical providers in accordance with assignments and authorizations to pay. Agiliga failed to use an escrow account and, instead, placed client funds into his operating account. He then failed to safeguard and preserve those funds when his operating account was allowed to fall below the amount of client funds that were deposited therein. In addition, Agiliga failed to maintain any ledgers or documentation to explain what monies were collected on behalf of clients and how those funds were disbursed.

Further, Agiliga engaged in the unauthorized practice of law while decertified and suspended by the Court of Appeals for failure to pay his Client Protection Fund assessment and failure to file his pro bono report.

“The public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed.” Attorney Grievance Comm’n. v. Gore, 380 Md. 455, 472 (2004). Agiliga’s actions were willful and dishonest. Whether he intended to defraud clients was immaterial to his deliberate invasion of their funds. By depositing client funds into his operating account and spending any portion of those funds, Agiliga intentionally misappropriated client money.

The misappropriation of entrusted funds “‘is an act infected with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment.’” Attorney Grievance Comm’n v. Nussbaum, 401 Md. 612, 644 (2007) (quoting Attorney Grievance Comm’n v. Cherry–Mahoi, 388 Md. 124, 161 (2005)).

Agiliga did not present any compelling extenuating circumstances to justify his placement of client funds into his operating account and spending them. Although he urged as justification for his conduct the fact that his landlord locked him out of his office for a period of time, that circumstance in itself in no way justified placing entrusted monies into his operating account and spending them.

Similar to the situation in Attorney Grievance Comm’n v. Stern, 419 Md. 525 (2011), Agiliga’s personal injury clients signed authorizations such that health care providers would be paid for services rendered from any recoveries obtained in their cases. Not unlike the facts in Stern, rather than remit payment to all health care providers that were owed payment, Agiliga misappropriated entrusted funds. Moreover, even at this late date, all the client funds that he spent have not been returned to the clients or disbursed to the health care providers as required.

Agiliga’s conduct in misusing client funds, failing to use an escrow account to safeguard client funds, failing to keep records to document the receipt and disbursement of client funds, and engaging in the unauthorized practice of law, all of which was unmitigated, warranted the imposition of the sanction of disbarment.

Professional Responsibility

Unauthorized practice of law

BOTTOM LINE: The continuation of the indefinite suspension previously imposed on attorney was the appropriate sanction because attorney engaged in the unauthorized practice of law while suspended.

CASE: Attorney Grievance Commission of Maryland v. Brisbon, Misc. Docket AG No. 28, Sept. Term, 2010 (filed Oct. 26, 2011) (Judges Bell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-1026-23, 23 pages.

FACTS: Brenda Brisbon was admitted to the Maryland Bar on December 20, 1977. She was indefinitely suspended from the practice of law on March 17, 2005.

On August 23, 2010, the Attorney Grievance Commission of Maryland filed a petition for disciplinary or remedial action against Brisbon. The hearing judge found that in 2006 or 2007, Brisbon opened an office as an “Immigration Consultant” in Baltimore, Maryland. On Brisbon’s “Immigration Consultant” stationary, she listed the same telephone number and facsimile number she had used for her law practice. Brisbon also produced business cards with the same address.

In June 2008, Kobina Nkrumah met with Brisbon at her office. Nkrumah advised Brisbon that he had recently married an American citizen and that he wanted his new wife to sponsor him for status as a permanent resident in the United States. Brisbon agreed to fill out the necessary forms for this process and submit the forms to the United States Citizenship and Immigration Services (USCIS). Nkrumah and Brisbon agreed that the fee for these services would be $1,000.

In July 2008, Mr. Mkrumah and his wife met with Brisbon. At that meeting, Brisbon prepared several forms. Although three of the forms had signature lines for the “person preparing” such forms, Brisbon failed to sign any of the forms or note that she prepared the forms. The Nkrumahs provided Brisbon with two money orders in the total amount of $1,365 payable to the USCIS to cover the filing fees. Brisbon agreed to accompany the Nkrumahs to their interview with the United States Immigration Officer for an additional fee of $200.

Brisbon filed with the USCIS the documents she prepared on behalf of the Nkrumahs. With these documents, she also submitted a cover letter, in which identified she identified herself as an immigration consultant.

Brisbon sent a letter to Mr. Nkrumah stating that there had been difficulties regarding one of the forms. Brisbon’s letter was not on her immigration consultant letterhead. Brisbon never gave the Nkrumahs any document that would have identified her as an immigration consultant.

Brisbon failed to appear at the Nkrumah’s interview with the Immigration Officer because she was admitted to the hospital the day before the interview and was not discharged until after the interview.

The parties stipulated that Brisbon never told the Nkrumahs that she was not currently admitted to the Maryland State Bar and could not practice law.

The hearing judge concluded that Brisbon “engaged in the unauthorized practice of law” in acting as an “immigration consultant” for Mr. Nkrumah, and his wife, and, as a result, violated Maryland Lawyers’ Rules of Professional Conduct (MRPC) 1.1, 1.4, 1.5, 5.5, and 8.4(a), (b), (c) and (d). Brisbon noted seven exceptions to the hearing judge’s findings of fact and conclusions of law.

The Court of Appeals continued the indefinite suspension of Brisbon.

LAW: “To determine what is the practice of law we must look at the facts of each case and determine whether they ‘fall[ ] within the fair intendment of the term.’” Atty. Griev. Comm’n v. Hallmon, 343 Md. 390, 397 (1996) (quoting In re Application of Mark W., 303 Md. 1, 8 (1985)).

The purpose of Rule 5.5 “is to protect the public from being preyed upon by those not competent to practice law—from incompetent, unethical, or irresponsible representation.” In re Application of R.G.S., 312 Md. 626, 638 (1988). That “goal…is achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such as courts and certain administrative agencies.” Id.

“To determine whether an individual has engaged in the practice of law, the focus of the inquiry should ‘be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.’” Hallmon, 343 Md. at 397 (quoting In re Discipio, 645 N.E.2d 906, 910 (1994)). “Where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law.” Lukas v. Bar Ass’n of Montgomery County, 35 Md.App. 442, 448 (1977).

The General Assembly enacted the Maryland Immigration Consultant Act (MICA), codified in CL §§14–3301 to –3306. The legislative history of this statute makes it clear that MICA was enacted to curtail some of the “egregious practices that…immigration consultants [had engaged in].”

MICA defines an immigration consultant as “a person that provides nonlegal advice, guidance, information, or services to a client on an immigration matter for a fee.” CL §14–3301(c).

“Legal services” are defined as “the legal representation of an individual” and includes “providing forms to an individual, completing forms on behalf of an individual, filing forms on behalf of an individual, advising an individual to file forms, or applying for a benefit on behalf of an individual.” CL §14-3301(e).

Brisbon engaged in an in-depth interview with Mr. Nkrumah in which she obtained significant personal and other legal information with the obvious intention of developing information to prepare the appropriate forms for an application to the USCIS to adjust Mr. Nkrumah’s status to a permanent resident. In doing so, Brisbon necessarily analyzed what legally needed to be done, made a determination as to which forms would be needed for the application, and provided Mr. Nkrumah with a list of documents that he had to produce so that such documents could be attached to the proper forms submitted to the USCIS.

At the July 2008 meeting, Brisbon finalized which forms were needed to obtain Mr. Nkrumah’s permanent resident status. She also prepared a form for an employment authorization for Mr. Nkrumah.

Under federal regulations, the practice of immigration law includes “the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the [USCIS].” 8 C.F.R. §1.1(i).

Brisbon agreed to appear with the Nkrumahs in an interview with officials at the USCIS. Although she ultimately failed to appear, Brisbon engaged in the practice of law when she agreed to appear. See 8 C.F.R. §1.1(i).

Thereafter, Brisbon prepared additional forms. The appropriate preparation of some of these forms contained terms that “require[d] more than the most elementary knowledge of the law, or more than that which the ordinary or average laymen may be deemed to possess.” Lukas, 35 Md.App. at 448.

It was clear that Brisbon “provided legal services” and engaged in the “unauthorized practice of law” when she acted as an immigration consultant for the Nkrumahs. Accordingly, the hearing judge’s finding that Brisbon violated Rule 5.5 was sustained.

As Brisbon’s other exceptions to the hearing judge’s conclusions of law had no merit unless the Court found that she was not engaged in the unauthorized practice of law, these exceptions were also overruled.

COMMENTARY: “[T]he purpose of attorney disciplinary proceedings is not to punish the erring attorney, only to protect the clients whom attorneys serve.” Attorney Grievance Comm’n v. Elmendorf, 404 Md. 353, 363 (2008). “[T]he public is best protected when sanctions are imposed commensurate with the nature and the gravity of the misconduct and the intent with which it was committed.” Attorney Grievance Comm’n v. Taylor, 405 Md. 697 (2008).

The American Bar Association’s Standards for Imposing Lawyer Sanctions, reprinted in LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT (2003) (ABA Standards), set forth four questions: (1) What is the nature of the ethical duty violated?; (2) What was the lawyer’s mental state?; (3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct?; and (4) Are there any aggravating or mitigating circumstances? See ABA Standards, Standard 3.0, at 17.

Mitigating factors include: “Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.” Attorney Griev. Comm. v. Glenn, 341 Md. 448, 488 (1996) (quoting ABA Standards, Standard 9.32, at 41–42).

Brisbon told the hearing judge that she had no intention of ever practicing law again. Nor did she intend to work as an immigration consultant. This is partly due to her declining health, and partly due to her plans to go to Africa in the near future to pursue a non-legal job there.

Because Rule 16–760(f) provides for the protection of the public by authorizing Bar Counsel to take further action against Brisbon in the event that she ever again engages in the unauthorized practice of law, in light of Brisbon’s failing health and intent to return to her homeland, the indefinite suspension previously imposed on Brisbon was continued.

PRACTICE TIPS: Under federal regulation, a person appearing before the USCIS may only be “represented by an attorney in the United States…,an attorney outside of the United states…or an accredited representative.” 8 C.F.R. §103.2(a)(3). An accredited representative is a person representing “a non-profit religious, charitable, social service or similar organization established in the United States and recognized as such by the Board [of Immigration Appeals].” 8 C.F.R. §292.1(a)(4). See also 8 C.F.R. §292.2(a).

Real Property

Ground Rent Registry Statute

BOTTOM LINE: Because the retroactive application of the extinguishment and transfer provisions of the Ground Rent Registry Statute leads to the abrogation of vested rights and the taking of property without just compensation, those provisions are unconstitutional under Maryland’s Declaration of Rights and Constitution.

CASE: Muskin v. State Department of Assessments and Taxation, No. 140, Sept. Term 2010 (filed Oct. 25, 2011) (Judges HARRELL, Battaglia, Greene, Murphy & Barbera) (Judges Bell & Adkins dissenting). RecordFax No. 11-1026-21, 44 pages.

FACTS: Charles Muskin was the trustee of two trusts owning 300 ground rent leases located in Baltimore City.

The Maryland General Assembly passed Chapter 290 of the Laws of 2007, which required the State Department of Assessments and Taxation (SDAT) to create and maintain an online registry of properties subject to ground leases. RP §8–703(a).

The new statute required ground rent holders to complete and submit a form and registration fee to the SDAT by September 30, 2010. RP §§8–704 and 8–707(a). If a ground rent owner failed to register by the deadline, the new statute mandated that the reversionary interest of the ground lease holder under the ground lease is extinguished and the ground rent is no longer payable to the ground lease holder. The extinguishment of the ground lease would vest a fee simple title in the leasehold tenant. RP §8–708(a)(c).

Muskin did not register the trusts’ ground rent leases with the SDAT by the deadline, filing instead an action in the circuit court requesting a declaratory judgment that Chapter 290 was unconstitutional and an injunction prohibiting the SDAT from issuing extinguishment certificates regarding the trusts’ ground leases. The circuit court denied Muskin’s motion for summary judgment, granted the SDAT’s summary judgment motion, and issued a declaratory judgment stating that Chapter 290 was constitutional.

Having granted certiorari prior to the Court of Special Appeals deciding the appeal, the Court of Appeals reversed the judgment of the circuit court and remanded.

LAW: Article 24 of the Maryland Declaration of Rights, guaranteeing due process of law, and Article III, §40 of the Maryland Constitution, prohibiting governmental taking of property without just compensation, have been shown, through a long line of Maryland cases, to prohibit the retrospective reach of statutes that would result in the taking of vested property rights. See Dua v. Comcast Cable of Md. Inc., 370 Md. 604, 604 (2002).

If a retrospectively-applied statute is found to abrogate vested rights or takes property without just compensation, it is irrelevant whether the reason for enacting the statute, its goals, or its regulatory scheme is “rational.” Id.

Retrospective statutes are those “acts which operate on transactions which have occurred or rights and obligations which existed before passage of the act.” Langston v. Riffe, 359 Md. 396, 406 (2000). There is no bright line rule for determining what constitutes retrospective application, but retrospective statutes are those that “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” John Deere Const. & Forestry Co. v. Reliable Tractor, Inc., 406 Md. 139, 147 (2008) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994)).

In John Deere, the Court of Appeals adopted the Supreme Court’s Landgraf factors analysis for retrospectivity that evaluates “fair notice, reasonable reliance, and settled expectations” to determine “the nature and extent of the change in law and the degree of connection between the operation of the new rule and a relevant past event.” Landgraf, 511 U.S. at 270.

A ground rent lease, common in Baltimore City, is a renewable 99 year lease where the fee simple owner of a property receives an annual or semi-annual payment (ground rent) and retains the right to re-enter the property and terminate the lease if the leaseholder fails to pay. Kolker v. Biggs, 203 Md. 137, 141 (1953).

The unique form of property represented by a ground rent is a fungible asset, freely bought and sold, and passed down through generations. Ground rent owners rely reasonably on the future income from ground rents or the ability to sell the fee simple interest on the open market or in the future, if necessary.

The terms of the ground rent lease are fixed over the 99 year lease period and the conditions that create a reversionary interest in the property are predetermined. Before Chapter 290, owners of ground rent properties had no reason to believe that their interests were anything but well-settled, and had a reasonable basis to rely on the continuation of the state of the law permitting ground rent leases to continue.

The registration requirement of Chapter 290 is prospective in application, in that it regulates future action of ground rent owners; however, the extinguishment and transfer provisions of the statute are retrospective in application because, upon failure to register timely, the SDAT is required to reach back in time and divest the reversionary interest of the ground rent owner and cancel his right to receive future ground rent from the leaseholder. Once the extinguishment provision is triggered, Chapter 290 does not provide for additional remedies, such as an appeal or opportunity for a hearing.

A ground rent lease creates a bundle of vested rights for the ground rent owner, a contractual right to receive ground rent payments and the reversionary interest to re-enter the property in the event of a default or if the leaseholder fails to renew. These two rights cannot be separated one from the other; as such, vested rights analysis must consider them together.

A vested right is “something more than a mere expectation based on the anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of a property.” Allstate Ins. Co. v. Kim, 376 Md. 276, 298 (2003). The ground rent owner has a legal title that is vested and a firm expectation for the future enjoyment of ground rent payments. The right to re-enter the property or eject the leaseholder secure the ground rent owner’s future enjoyment of ground rental income.

Vested rights include “that which is regarded as a property right under Maryland property law.” Dua, 370 Md. at 631. There can be no reasonable doubt that the reversionary interest to real property and the contractual right to receive ground rent are vested rights under Maryland law. Heritage Realty, Inc. v. Mayor & City Council of Balt., 252 Md. 1 (1969).

Accordingly, the extinguishment and transfer provisions of Chapter 290 are unconstitutional.

There exists, however, an exception to this general prohibition that applies solely to remedies and rules of evidence. The Legislature has the power to alter the rules of evidence and remedies, which in turn allows statutes of limitations and evidentiary statutes to affect vested property rights. Thistle v. Frostburg Coal Co., 10 Md. 129, 145 (1856).

The statute affecting vested real property and contractual rights in the present case did not purport to do so by establishing a remedy or rule of evidence. Chapter 290 purports to regulate vested rights, but in effect removes all remedies and extinguishes those rights completely. The “abrogation or suspension of a remedy, necessary to enforce the obligation of an existing contract…is…void.” State, use of Isaac v. Jones, 21 Md. 432, 437 (1864).

The extinguishment and transfer provisions of Chapter 290 cut off all remedies, while divesting impermissibly the real property and contractual vested rights of ground rent owners.

In addition to being a retrospective statute that impairs vested rights, Chapter 290 takes private property impermissibly from the ground lease owner and transfers it to the lease holders, without just compensation.

Article III, §40 of the Maryland Constitution prohibits laws that authorize the taking of private property, without just compensation.

The Legislature, under the State’s police power, has some ability to regulate and restrict the rights of private property owners without providing just compensation. Stevens v. Salisbury, 240 Md. 556, 563 (1965). This power is exercised commonly in the form of: (1) taxation of private property, and (2) requiring land use approvals, such as zoning and subdivision requirements.

While the registration requirement generally of Chapter 290 is an appropriate use of the State’s police powers, the extinguishment and transfer of the ground rent owner’s reversionary interest in the property as a consequence of non-registration by a certain date cannot be construed as simply a regulation. The loss of the reversionary interest necessarily means the loss of the future ground rent income, and the inability to re-enter the property if the leaseholder chooses not to renew the ground rent lease. These are substantial harms to the ground rent owner; harms for which the State provides no just compensation.

Thus, the registration provisions of Chapter 290 remain intact, and continue to protect ground lease tenants against unfair ejectments by providing a centralized registry, with clear information on their ground rent obligations, such that they can avoid any future unintentional defaults. However, the extinguishment and transfer provisions of Chapter 290 were determined to be unconstitutional.

COMMENTARY: Muskin also argued that a triable issue existed whether the process of complying with Chapter 290’s registration requirement is “so unreasonably harsh and costly” that it results in an “as-applied” regulatory taking and, as such, the trial court erred in granting the SDAT’s motion for summary judgment.

To determine whether a regulatory taking occurred, the Court must look to the facts of the individual case and consider the following factors: “(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action.” Neifert v. Dep’t of the Env’t, 395 Md. 486, 517 (2006).

Muskin asserted that the costs of preparing the Ground Rent Registry forms would exceed $25 per ground rent, and may exceed $50 per ground rent because he would be required to conduct a title search for each ground lease to determine the year the ground lease was created.

However, the instruction on the registration form directs the filer to complete this section merely “[t]o the best of the filer’s knowledge,” which implies an acceptable margin of error in the declarant’s statement. See Cotton v. Frazier, 95 S .W.2d 45, 47 (1936).

Without a requirement for extraordinary accuracy dictating a title search, Muskin’s economic impact argument was reduced to the mandatory registration fee, $10 for the first ground lease, and a maximum of $5 for each additional ground lease. RP §8-703(c). The registration fee is a one-time fee that, when compared with the median annual rent of $48 asserted in Muskin’s affidavit, collected through the lifetime of the ground lease, does not interfere unreasonably with the investment-backed expectations of ground lease holders.

The registration requirement of Chapter 290 is an appropriate use of the State’s police power to regulate private property. Thus, the registration provisions of Chapter 290 are not so “unreasonably harsh and costly” that it constituted a regulatory taking.

DISSENT: According to the dissent, the Maryland Declaration of Rights and Constitution permits the state to impose prospective conditions on the retention of a vested right so long as the holder of the right has an objectively reasonable time and opportunity to protect it by complying with the statute. See U.S. v. Locke, 471 U.S. 84 (1985); Texaco, Inc. v. Short, 454 U.S. 516 (1982). Muskin had an objectively reasonable time and opportunity to protect his vested rights without incurring undue cost or burden. The difficulties he perceived, and his claim that a full title search was required, were objectively unreasonable and could have been easily addressed by calling the Department. His failure to do so was insufficient to show a lack of reasonable opportunity or a denial of due process.

PRACTICE TIPS: Even in the absence of an express severability clause in legislation that is found defective in some severable part, there “is a strong presumption that if a portion of an enactment is found to be invalid, the intent is that such portion be severed.” Bd. v. Smallwood, 327 Md. 220, 245 (1992).


Assumption of risk

BOTTOM LINE: In lawsuit for injuries that occurred when plaintiff slipped and fell on black ice on premises owned and maintained by defendants, trial court improperly granted summary judgment in favor of defendants on the basis of assumption of risk, where it was unclear from the record whether plaintiff had subjective knowledge of the risk of ice or whether the risk was one that “a person of normal intelligence” in plaintiff’s position must have understood.

CASE: Poole v. Coakley & Williams Construction, Inc., No. 130, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-1026, 46 pages.

FACTS: On November 12, 2008, George Poole filed suit in circuit court against Coakley & Williams Construction, Inc., and Forsgate Ventures II, LLC. Poole alleged that on December 21, 2005, he was walking through the parking lot toward the back entrance of his place of employment at 22610 Gateway Center Drive in Clarksburg, Maryland, when he slipped, fell, and injured himself on what he surmised to be “black ice” while wading through a stream of water that created a path through an otherwise icy parking lot. At the time of the incident, Poole was a courier for Diagnostic Pathology Services, Incorporated.

Poole alleged that, due to construction at the Gateway Center, water was being pumped into the parking lot where he was walking, resulting in a stream of water an inch deep and between two and three feet wide running through the lot into a drain. Poole alleged that he could not see the black ice. Poole’s original complaint did not allege a specific injury but stated only that he had suffered “severe and permanent injuries to his body” that would permanently limit him to working part-time, and Poole claimed damages in the amount of $1,000,000.

On October 15, 2009, nearly one year after filing the original complaint, Poole filed an amended complaint naming Transwestern/Carey Winston, LLC, and The Brickman Group Ltd. LLC as defendants. The amended complaint alleged that as the management company for the Gateway Center, Transwestern had a duty to maintain the parking lot in a safe condition. Additionally, Poole claimed that Brickman, the company under contract for snow and ice removal for the property, had the duty to properly remove snow and ice from the premises, including the duty to prevent, warn of, or remove black ice and water so that it was safe for all users of the building to traverse the parking lot.

Brickman moved to dismiss the amended complaint for violation of the statute of limitations, and the motion was granted. Prior to trial, Coakley, Forsgate, Transwestern, Diagnostic, and Judd moved for summary judgment. The trial judge granted summary judgment in favor of each of the original defendants and third-party defendants on the ground that Poole had assumed the risk of his injury. The trial judge also found that the statute of limitations had expired as to Poole’s claim against Transwestern.

Poole appealed this ruling to the Court of Special Appeals, contesting the grant of summary judgment in favor of Coakley, Forsgate, and Transwestern, as well as the earlier motion to dismiss in favor of Brickman. Coakley filed a cross-appeal on the grounds that the trial judge erred in granting Judd’s motion for summary judgment on Coakley’s third-party complaint.

The Court of Appeals, on a writ of certiorari issued on its own initiative, reversed the grant of summary judgment entered in favor of Coakley and Forsgate. The Court affirmed the grant of summary judgment in favor of Transwestern and the dismissal in favor of Brickman. Finally, the Court reversed the trial judge’s grant of summary judgment in favor of Judd.

LAW:     Assumption of the risk rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk. Crews v. Hollenbach, 358 Md. 627, 640–41 (2000). If established by the evidence, assumption of the risk functions as a complete bar to recovery. Warner v. Markoe, 171 Md. 351, 360 (1937). It is well-settled in Maryland that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff had knowledge of the risk of the danger, appreciated that risk, and voluntarily confronted the risk of danger. ADM P’ship v. Martin, 348 Md. 84, 90–91 (1997).

While an assumption of the risk defense, properly asserted, may be grounds for entering summary judgment for a defendant, this is true only when the undisputed facts permit but one reasonable determination, namely, that the plaintiff has assumed the risk as a matter of law. Hooper v. Mougin, 263 Md. 630, 635 (1971). Thus, in the usual case, the plaintiff’s knowledge and appreciation of the danger will be a question for the jury. However, where it is clear that any person of normal intelligence in the plaintiff’s position must have understood the danger, the issue must be decided by the court. must be decided by the court. Gibson v. Beaver, 245 Md. 418, 421 (1967). Here, the parties contested whether the court properly determined, as a matter of law, that Poole had knowledge of the risk of slipping and falling on black ice.

In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied; thus, a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him. Id. at 421. Use of the phrase “objective test” in Maryland case law has created confusion because it suggests further overlap with the doctrine of contributory negligence, when the concepts are, in fact, distinct. Contributory negligence means negligence which contributes to cause a particular accident which occurs. By contrast, assumption of risk means voluntarily incurring that risk of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. Thus, while contributory negligence defeats recovery because it is a proximate cause of the accident which happens, assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. Warner v. Markoe, 171 Md. 351, 359-60 (1937).

The traditional basis for distinguishing the two doctrines is that assumption of risk is a matter of knowledge of the danger and voluntary acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable person, however unaware, unwilling, or even protesting the plaintiff may be. Prosser and Keeton §68, at 482. There is, however, another distinction between the doctrines which has not heretofore been fully explained in Maryland, namely that the standard for imputing knowledge to a plaintiff under assumption of the risk is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence. If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. Prosser and Keeton §68 at 487. As such, the doctrine of assumption of risk will not be applied as a matter of law unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. Schroyer v. McNeal, 323 Md. 275, 283 (1991).

Maryland’s jurisprudence, however, has suggested that the trial judge apply an “objective standard” when determining the appropriateness of applying the defense as a matter of law. This “objective standard” language stands for the proposition that there are certain risks which any one of adult age must be taken to appreciate, and, in those cases, a simple denial from a plaintiff concerning his or her knowledge of such a risk will not be sufficient to avoid judgment for the defendant as a matter of law. Gibson, 245 Md. at 421. In cases in which Maryland courts have approved the entry of judgment as a matter of law based on assumption of the risk, the danger has been one that any person in the plaintiff’s position must have understood, meaning either a foreseeable consequence of engaging in an activity, or an otherwise patent or obvious danger.

It is a matter of common knowledge that ice is slippery. However, “black ice” is a unique weather condition that does not necessarily pose the same risk as snow or visible “white ice.” Black ice is difficult to see because it reflects less light than regular ice and therefore does not appear glossy or slick. See American Meteorological Society, Glossary of Meteorology 88 (2nd ed.2000). In the present case, the record suggested that the presence of black ice was more akin to an “unusual danger,” so that consideration by the trier of fact was necessary to determine if it was “assumed or not.” Bull S.S. Lines, 196 Md. at 526.

Moreover, the trial judge implied that Poole had knowledge of the existence of “black ice,” as a matter of law, because of he testified to his awareness of black ice just after his fall. Apparently, the trial judge reasoned that Poole could not have identified the substance immediately after his fall without some prior knowledge that black ice was present. This analysis applied by the trial judge was not the proper test for the knowledge prong of the assumption of the risk defense. Rather , the pertinent question was what Poole knew or must have known at the time of or just prior to the encounter with the dangerous condition, not what he surmised or hypothesized immediately after his fall.

For these reasons, the ultimate question of Poole’s knowledge of the presence of black ice under the stream of water was for the jury to decide. On the basis of this record, the trial judge should not have drawn the conclusion that Poole, as a matter of law, actually knew of the risk of slipping on “black” ice, because it was unclear whether he had subjective knowledge of the risk, nor was the risk one that “a person of normal intelligence” in Poole’s position “must have understood.” Schroyer, 323 Md. at 283–84. Therefore, summary judgment was improper, and the judgment of the trial court was reversed.

COMMENTARY: The Court of Appeals also addressed Coakley’s cross-appeal, in which Coakley sought reversal of the trial judge’s entry of summary judgment in Judd’s favor, so that Coakley could preserve its indemnity and contribution claims against Judd. Coakley impleaded Judd by filing a third-party complaint alleging that if any water did drain into the parking lot, causing the black ice to form, then it was Judd who caused the condition while it was performing work on the fire sprinkler systems of the building unit at the Gateway Center that Coakley was constructing. Coakley’s opposition to Judd’s motion for summary judgment alleged generally that if the trial judge determined that summary judgment was not available to Coakley on Poole’s claim, it could not be available to Judd on the claims in the third-party complaint. Coakley attached its contract with Judd as an exhibit to its motion. The trial judge granted Judd’s motion for summary judgment on the claims in the third-party complaint.

Third party complaints are for the purpose of suing a person who is not already a party to the action and who is or may be liable to the defendant for all or part of a plaintiff’s claim against the defendant. Goldstein & Baron Chartered v. Chesley, 375 Md. 244, 255 n. 1 (2003). Consequently, when an impleaded party files a motion for summary judgment on the third-party claim, the issue is not whether the defendant is liable to the plaintiff; rather, the issue is whether there is a genuine dispute of fact on the issue of whether the third-party defendant may be liable to the defendant if the defendant is found liable to the plaintiff. The defendant is not required to present evidence of his own liability; he is only required to present sufficient evidence of the third-party defendant’s contingent liability. Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 109 Md.App. 217, 283 (1996).

Here, the contract presented to the trial judge constituted sufficient evidence of Judd’s contingent liability to Coakley for all or any part of plaintiff’s claim against it. See Allen & Whalen, Inc. v. John Grimberg Co., 229 Md. 585, 586–87, 590 (1962). Articles 4 and 5 of the contract between Judd and Coakley provided that Judd would “assume liability” for “injury” as a result of its negligence and that Judd would indemnify Coakley against claims for “injuries to persons.” Accordingly, Coakley met its burden by proving that Judd might be liable for Poole’s injury because the contract between Coakley and Judd covered liability and because it was determined, upon review, that Poole’s claim against Coakley could not be resolved on summary judgment. See e.g., Hartford, 109 Md.App. at 284.

Accordingly, the entry of summary judgment in favor of Judd was reversed.

PRACTICE TIPS: In Maryland, the general rule is that the running of limitations against a cause of action begins upon the occurrence of the alleged wrong, unless there is a legislative or judicial exception which applies. One such exception is the “discovery rule,” which tolls the accrual date of the action until such time as the potential plaintiff either discovers his or her injury, or should have discovered it through the exercise of due diligence. The discovery rule protects plaintiffs in a position where it was not reasonably possible to have obtained notice of the nature and cause of an injury.


Health Care Malpractice Claims Act

BOTTOM LINE: The filing requirements of the Health Care Malpractice Claims Act doctrine are procedural, mandating application of those requirements under Maryland choice-of-law principles, and, therefore, plaintiff was required to comply with the Act’s filing requirements.
CASE: Lewis v. Waletzky, Misc. No. 3, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, Greene & BARBERA) (Judges Murphy & Adkins dissenting). RecordFax No. 11-1027-28, 27 pages.

FACTS: Katherine Lewis, once a resident of Washington, D.C. and currently a resident of Minnesota, was formerly a patient of Dr. Jeremy Waletzky, a physician licensed to practice in Maryland. Waletsky’s office was in Chevy Chase or Bethesda.

From October 2000 until January 2005, Waletzky was Lewis’ psychiatrist and treated her at his Chevy Chase office. Waletzky prescribed several psychotropic medications to Lewis and also prescribed antipsychotic and/or neuroleptic drugs. All of the prescribed medications were filled in pharmacies in Washington, DC and ingested by Lewis while she was in Washington, DC.

After withdrawing from the antipsychotic drugs, Lewis began to experience side effects and she was eventually diagnosed with a permanent neurological disorder known as Tardive Dyskinesia/Dystonia caused by the antipsychotics she had taken.

Lewis sued Waletzky in federal district court. Waletzky filed a motion to dismiss the complaint, arguing that Lewis was required to have complied with the filing requirements of the Health Care Malpractice Claims Act (the Act), CJ §§3–2A–01 through 3–2A–10. Lewis responded that she was not subject to the Act because the injury occurred in Washington, D.C. and therefore D.C. law governed her malpractice suit.

The district court considered the filing requirements of the Act to be substantive tort law; the court therefore focused on Maryland’s application of lex loci delicti. Pursuant to lex loci delicti, D.C. law, which at that time had no specific procedural requirements for medical malpractice claims, would govern the litigation. The district court determined, however, that the Act’s filing requirements implicated strong public policy sufficient to require Lewis’s compliance with those requirements, thereby invoking the public policy exception to lex loci delicti. The district court therefore dismissed the case.

The 4th Circuit determined that the choice-of-law issue involves a question of unresolved Maryland law and, thus, certified the following question to the Court of Appeals: Does Maryland recognize the public policy exception, or any other exception, to lex loci delicti based on the Maryland Health Care Malpractice Claims Act, which requires a plaintiff to comply with certain mandatory administrative filings prior to filing a medical malpractice lawsuit in a Maryland court?

The Court of Appeals found that the doctrine of lex loci delicti did not apply. The filing requirements are procedural, mandating application of those requirements under Maryland choice-of-law principles, as the law of the forum. Therefore, Lewis was required to comply with the Act’s filing requirements.

LAW: The Act created the Health Care Alternative Dispute Resolution Office (HCADRO) for the purpose of establishing and administering an arbitration process for medical malpractice claims prior to court action.

CJ §3–2A04(a)(1)(i) requires the plaintiff, as a condition precedent to proceeding, to file with the Director of the HCADRO his or her medical malpractice claim. CJ §3–2A–04(a). Within 90 days of filing that claim, the plaintiff must also file with the Director of HCADRO a certificate of a qualified expert, which must contain the qualified expert’s attestations to a “departure from [the] standards of care, and that the departure…is the proximate cause of the alleged injury.” CJ §3–2A–04(b)(1)(i)(1).

Adherence to the Act’s procedures is necessary to maintain a claim that is subject to the Act. Kearney v. Berger, 416 Md. 628 (2010). In that regard, the Court of Appeals has not hesitated to dismiss a claim because the plaintiff failed to comply with the Act’s administrative filing requirements. See id. at 657–58.

A federal court, in a diversity action, must apply the substantive law of the state in which it sits, including that state’s choice-of-law principles. Lab. Corp. of Am. v. Hood, 395 Md. 608 (2006).

Under the doctrine of lex loci delicti, when a Maryland state court is confronted with multistate tort litigation, that court must apply the law of the place of injury as to all matters of substantive law. Id. Procedural matters, however, are always governed by the law of the forum. Erie Ins. Exch. v. Heffernan, 399 Md. 598, 632–33 (2007).

If the Act’s filing requirement is substantive, lex loci delicti controls and, absent invocation of the public policy exception, a Maryland court would not enforce the Act’s filing requirements. If, however, the filing requirements are procedural, a Maryland court would require compliance.

The Court of Appeals has applied lex loci delicti, to enforce the Guest Statutes of other jurisdictions. In White v. King, 244 Md. 348 (1966), the plaintiff brought a tort claim in Maryland to recover for injuries resulting from a car accident that occurred in Michigan. Id. at 351. Michigan’s Guest Statute at the time limited an automobile passenger’s ability to recover damages from the driver for injuries to situations involving intentional misconduct or gross negligence. Id. The Court of Appeals applied lex loci delicti and held that Michigan’s Guest Statute applied, and, therefore, the question of whether the accident was caused by gross negligence should have been submitted to the jury. Id. at 362. See also Harford Mut. Ins. Co. v. Bruchey, 248 Md. 669 (1968).

In Heffernan. Mr. and Mrs. Heffernan purchased two uninsured/underinsured motorist policies from Erie Insurance Exchange. Heffernan, 399 Md. at 606. Pursuant to those policies, Erie guaranteed to pay to the Heffernans all damages “that the law entitles you” to recover from an uninsured or underinsured motorist. Id. at 609. The Heffernans’ daughter was killed in an automobile accident in Delaware, while traveling as a passenger in an underinsured motor vehicle. Id. at 605–06.

During litigation that followed in federal district court, the court certified to the Court of Appeals certain questions of law. The Court of Appeals determined that the contractual language, “that the law entitles you,” did not raise a question of contractual interpretation, but, instead, of tort liability and damages. Id. at 619–20. As such, the question was one involving substantive tort law, for which lex loci deliciti applied. Id.

The Court further found that the statutory cap on non-economic damages and the principle of contributory negligence were matters of substantive tort law and the respective public policy undergirding each was insufficient to override lex loci delicti. Id. at 635–36. With respect to the statutory cap on non-economic damages, the Court rejected the notion raised by Erie that the provision was part of Maryland’s procedural law. Id. at 633. Accordingly, the Court held that Delaware law, which did not limit noneconomic damages and followed comparative negligence principles, would govern the Heffernan litigation. Id. at 635.

In Jacobs v. Adams, 66 Md.App. 779 (1986), the intermediate appellate court had before it three tort cases filed in Maryland circuit courts involving automobile accidents that occurred in D.C. Id. at 783. Each case presented the same choice-of-law issue: whether Maryland courts should enforce D.C.’s no-fault insurance statute, which barred all civil suits to recover for personal injury resulting from automobile accidents unless medical expenses exceeded $5,000, and, if applied to the plaintiffs’ claims, would bar them. Id. Maryland’s no-fault insurance scheme had no such limitation. Id. at 787.

To answer that question, the Court of Special Appeals had to decide, among other issues, whether the no-fault insurance provision at issue was substantive, to which lex loci delicti would control, or procedural, and thereby governed by Maryland law.

The Jacobs Court stated: “There is no reason to classify an issue as procedural, and hence controlled by the law of the forum, unless it affects the manner in which the forum administers justice. If the law of the state wherein an accident occurred does not grant the affected parties the right to bring a suit, then there is no need for the application of any procedural laws. It is only after the rights of parties have been established by the laws of the situs that the forum may determine how those rights shall be exercised.” Id. at 790–91.

Accordingly, the Court of Special Appeals held that D.C.’s no-fault insurance law was substantive. Id. at 791. The court found it dispositive that the law “did not restrict, limit, define, qualify, or otherwise simply modify the cause of action [which would indicate that the provision was one of procedure,] but declared it to be wholly unavailable.” Id.

The Court of Special Appeals’s analysis in Jacobs establishes the appropriate analytical framework in distinguishing substantive from procedural provisions of law.

Procedural provisions of law are those that generally “restrict, limit, define, qualify, or otherwise simply modify” an existing cause of action. Put differently, procedural matters are those that simply affect the manner in which the forum administers justice.

CJ §3–2A–04(b)(1)’s certificate of qualified expert has been described as “an indispensable part of [the process to reduce the number of medical malpractice court suits] because it helps weed out non-meritorious claims.” Kearney, 416 Md. at 658.

Compliance with the Act’s filing requirements is a condition precedent to maintenance of suit. Though of obvious importance to the Act, these filing provisions in no way establish, deny, or define a cause of action. These provisions do not define the standard of care to be applied; nor do they prescribe how liability is to be determined. Instead, the provisions are part of a legislative scheme intended to control the manner in which Maryland administers justice, by controlling access to Maryland courts.

The plain language of CJ §3–2A–10 provides that, with the exception of CJ §§ 3–2A–08A and 3–2A–09, “the provisions of this subtitle shall be deemed procedural in nature and may not be construed to create, enlarge, or diminish any cause of action not heretofore existing.” CJ §3–2A–10.

Thus, the doctrine of lex loci delicti did not apply under the circumstances present here. The filing requirements are procedural, mandating application of those requirements under Maryland choice-of-law principles, as the law of the forum.

Accordingly, Lewis was required to comply with the Act’s filing requirements.

DISSENT: According to the dissent, the focus of the parties was on whether the public policy exception to lex loci delicti should be invoked. The majority, however, strayed from this issue to resolve a question the federal court had not asked and the parties had not briefed: whether the Act’s filing requirement is substantive or procedural. In the view of the dissent, the parties should be given the opportunity to address whether the Act is procedural or substantive for purposes of a choice-of-law analysis, before the case is dismissed.

PRACTICE TIPS: When determining which law controls the enforceability and construction of a contract, lex loci contractus is applied. See Kramer v. Bally’s Park Place, Inc., 311 Md. 387, 390 (1988). In choice-of-law issues involving workers’ compensation statutes, a balance of interests analysis is applied. See Powell v. Erb, 349 Md. 791, 792–93 (1998).

Workers’ Compensation

Wage earning capacity

BOTTOM LINE: For purposes of workers’ compensation claim, claimant’s “wage earning capacity” included capacity to earn overtime compensation.

CASE: Montgomery County v. Deibler, No. 120, Sept. Term, 2010 (filed Oct. 27, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins & BARBERA). RecordFax No. 11-1027-24, 24 pages.

FACTS: Captain Kenneth Deibler was a firefighter employed by Montgomery County. Deibler injured his knee on November 28, 2006, and again on March 5, 2008, both in work-related accidents. Those injuries, and the resulting physical restrictions, forced Deibler from his regular duties as a firefighter into a reduced working role.

The parties referred to Deibler’s income as an “hourly wage.” Before his injuries, Deibler was paid bi-weekly for 96 hours of non-overtime work as a firefighter. After his injuries, Deibler could not physically perform the tasks of his job, and he was therefore placed on “light duty.” He worked 80 hours every two weeks, or 40 hours per week, performing less physically strenuous tasks. However, his reduction in hours did not affect his salary; the County boosted his hourly wage and maintained all of his cost of living adjustments and benefits, to ensure that he earned the same amount of base pay as he had been making before his injuries.

However, Deibler, while temporarily partially disabled, experienced a reduction in his overtime hours and overtime compensation. Before his injuries, Deibler worked 15–20 hours of overtime per week in promotional and training activities, in addition to the biweekly 96 hours of firefighter duties. In the 14 weeks leading up to each injury, Deibler worked an average of 11.9 and 15.4 overtime hours per week, respectively. After the injuries, Deibler was physically incapable of working the same training and promotional overtime activities. While Deibler was working light duty, his average weekly overtime fell to about one hour per week after each injury. As a consequence, and, notwithstanding that the County boosted Deibler’s base salary to offset his reduction in hours, Deibler’s income dropped significantly.

Deibler filed separate claims with the Worker’s Compensation Commission, requesting disability compensation for the loss of income stemming from each injury. The cases were consolidated, and the Commission ordered that Deibler should receive temporary partial disability compensation for the periods of time in which he worked light duty after both injuries. Implicit in the Commission’s order was its determination, pursuant to L.E. §9–615(a), that Deibler’s loss in overtime compensation qualified as a lessening of his wage earning capacity.

The County sought filed a petition in circuit court seeking judicial review of the Commission’s decision. The circuit court affirmed the Commission’s order, and the County appealed to the Court of Special Appeals. Before argument in that court, the Court of Appeals issued a writ of certiorari to consider question of whether the term “wage earning capacity” included the capacity to earn overtime compensation. The Court of Appeals held that a claimant’s “wage earning capacity” included capacity to earn overtime compensation, and affirmed the circuit court’s decision.

LAW: Section 9–615 of the Maryland Code (1999, 2008 Repl.Vol.), Labor and Employment Article (“L.E.”) creates a two-part process for compensating temporary partial disabilities that result from work accidents or occupational diseases. First, to be eligible for compensation, an employee’s “wage earning capacity” while temporarily, partially disabled must be “less” than that employee’s pre-disability wage earning capacity. L.E. §9–615(a)(1). Then, if the employee is found to be eligible for compensation, the compensation owed the employee is calculated by halving the difference between the employee’s pre-disability average weekly wage, and post-disability wage earning capacity. L.E. §9–615(a)(1)(i) & (ii). This case focused on the first part of the statute, calling for a determination as to whether a loss of the ability to work overtime, and its associated loss in overtime compensation, qualifies as a lessening of an employee’s wage earning capacity for the purposes of L.E. §9–615.

The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. Gardner v. State, 420 Md. 1, 8 (2011). In that task, a court must look first to the language of the statute, giving it its natural and ordinary meaning. Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357 (2010). When the meaning of that plain language is “clear and unambiguous,” this interpretive task is at an end. Id. at 359. However, when the meaning of the plain language is ambiguous, it is necessary to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Breitenbach, 366 Md. at 473, 784 A.2d. at 572.

When interpreting the Workers’ Compensation Act, additional principles of interpretation entered the equation. Foremost, the Act is a remedial statute. Design Kitchen & Baths v. Lagos, 388 Md. 718, 724 (2005). The Act must be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Id. At the same time, a court may not stifle the plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail. Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 (2001). Thus, when the language is plain, the court may not invent or infer an ambiguity that does not exist in order to interpret the Act more favorably to the claimant. Id.

Within this framework, it was necessary to determine whether the term “wage earning capacity” in L.E. §9–615 contemplates compensation earned for overtime work. L.E. §9–615(a), titled “Amount of payment,” provides, in pertinent part, that if the wage earning capacity of a covered employee is less while temporarily partially disabled, the employer or its insurer shall pay the covered employee compensation that equals 50 percent of the difference between: (i) the average weekly wage of the covered employee; and (ii) the wage earning capacity of the covered employee in the same or other employment while temporarily partially disabled. The Act provides no express direction on how the phrase “wage earning capacity” is to be interpreted, either to include or exclude overtime compensation.

Wage earning capacity reasonably could be interpreted to include only the capacity to earn guaranteed remuneration for work, which would exclude overtime compensation. Alternatively, wage earning capacity reasonably could be interpreted to encompass the capacity to earn any type of remuneration an employee receives for work, including overtime compensation. Because the phrase is subject to more than one equally reasonable interpretation, it is ambiguous. Gardner v. State, 420 Md. 1, 11 (2011). To resolve this ambiguity, it was necessary to look past the plain language of the Act and employ all the resources and tools of statutory construction at the court’s disposal. Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 27 (2007).

The phrase “wage earning capacity” appears nowhere in the Maryland Code, other than in L.E. §9–615. Furthermore, neither “wage,” nor “earning,” nor “capacity” is defined in Subtitle 1, the Act’s Definition and General Provisions subtitle. Moreover, the Act does not mention the word “overtime,” in any context. The direct legislative history of the Act is similarly sparse, and Maryland case law likewise provides little guidance in divining the meaning of “wage earning capacity.” As such, it was necessary to interpret Title 9 of the Labor and Employment Article language without the assistance of the traditionally-used interpretive aids.

As such, it was first necessary to determine the commonly understood meaning of “wage earning capacity.” See Stachowski v. Sysco Food Serv. of Baltimore, Inc. The County urged that wage earning capacity must be interpreted to exclude overtime wages, citing two editions of Black’s Law Dictionary for the assertion that “earning capacity” connotes a measure of the ability to work. Using those definitions, the County argued that the ability to earn overtime is separate from the ability to work, and that overtime is not a reflection of an employee’s ability to perform the tasks of a job but is instead the product of the employer’s need.

However, the County’s interpretation was incomplete. L.E. §9–615 does not hinge temporary partial disability compensation on earning capacity alone. The law provides for compensation when “the wage earning capacity of a covered employee is less.” L.E. §9–615(a)(1). Put another way, L.E. § 9–615 is concerned with whether a disabled employee has lost any part of the employee’s pre-disability capacity to earn a wage. The question, then, was whether overtime compensation can fairly be characterized as a wage. See Buckler v. Willett Constr. Co., 345 Md. 350, 354 (1997).

Black’s Law Dictionary defines “wage” as payment for labor or services, and notes that “wages” include every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, bonuses, and the reasonable value of board, lodging, payments in kind, tips, and any similar advantage received from the employer. Black’s Law Dictionary 1610 (8th ed.2004). Self-evidently, overtime compensation falls within this definition. Overtime pay is a form of remuneration for an employee’s personal service, that is, compensation based on labor performed and time worked. Moreover, wage is a broad term, including “every form of remuneration payable for a given period.” Id.

Consistent with the broad dictionary definition of “wage,” the use of that word in the phrase “wage earning capacity,” strongly suggests that the legislature intended “wage” to include overtime compensation. It then would follow that, when an employee is restricted by disability from performing overtime labor, and thus from earning overtime compensation, the employee is restricted from earning a wage. The employee’s wage earning capacity would be “less,” for purposes of L.E. §9–615(a)(1), as the result of the disability. Based on this reasoning, “wage,” as that term is used in the phrase “wage earning capacity” in L.E. §9–615(a), includes compensation paid for overtime hours worked prior to temporary partial disability.

Here, Leiber testified that he worked 800–1000 hours of overtime in a calendar year. In the 14 weeks leading up to each of Appellee’s injuries, he worked an average of 11.9 and 15.4 overtime hours, respectively. After his injuries, Appellee’s overtime compensation dipped to one overtime hour per week, costing him $760 and $761 dollars per week, respectively. In total, the 42 weeks Leiber spent on “light duty,” cost him roughly $32,240. The numbers show that Leiber’s occupation, firefighting, called for him to work a steady stream of overtime hours, and missing those hours proved to be a $30,000 hardship.Accordingly, the Circuit Court properly found that the Commission correctly determined that Deibler’s wage earning capacity was “less,” under L.E. §9–615(a), entitling him to compensation payment in accordance with the calculation scheme set forth in that section.

Accordingly, the circuit court judgment was affirmed.

COMMENTARY: The County further argued that, by including past overtime in the determination of an employee’s current wage earning capacity, an employee would be compensated for work that does not exist at the time of the disability, creating a windfall for the employee and unfairly burdening the employer (and its insurer) in the process. However, the County’s “windfall” argument ignored the second of the two aspects of L.E. §9–615(a). Disability payments are based on the difference between average weekly wage and wage earning capacity, not pre- and post-disability wage earning capacity.

The statutory calculation directly responds to the County’s concern by dampening the effect of any inordinate spike in overtime hours worked. The average weekly wage calculation entails a fairly deep accounting of the employment history of the employee, averaging the amount of time worked over 14 weeks. COMAR The extra overtime worked during the three weeks before the injury would be diluted by the absence of overtime worked during the prior 11 weeks. Thus, even if an employee can show, by using the spike in overtime, that his or her wage earning capacity is “less” during the period of temporary partial disability, the compensation calculation ensures that the employee enjoys no windfall, but is fairly compensated for the amount of wages earned on a more regular basis. An equitable distribution of the burden of workplace accidents is thus maintained.

PRACTICE TIPS: Approximately 55 percent of workers are employed in jobs that receive overtime pay. Overtime, generally, represents 2.7 percent of the cash compensation those workers receive for their job. Thus, when workers lose overtime compensation, they lose one of the few benefits they receive as a direct cash payment.