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Convicted rapist gets one more hearing

A convicted rapist will be able to pursue post-conviction relief more than 25 years after his conviction unless prosecutors can show, by a preponderance of the evidence, that his delay was unreasonable and that the time lag has prejudiced the prosecution in trying to defend against the appeal.

A Montgomery County Circuit Court judge had rejected Jose F. Lopez’s 2005 bid to challenge his 1986 jury conviction for the first-degree rape, attempted robbery and burglary of a 25-year-old woman the previous year, as well as his 1986 guilty pleas to having sexually assaulted four other women ages 85, 81, 74 and 41. Judge Joseph A. Dugan Jr. called it unreasonable to expect the state to defend the matter as county prosecutors presumably no longer have the case files and the victims are either dead or otherwise unavailable.

But the intermediate Court of Special Appeals, in remanding the case Thursday, said the prosecution’s inability to defend must be proven rather than presumed.

“[W]hile the state proffered that the state’s attorney no longer had a file in these cases, the record does not reveal any attempt to locate or contact any of the victims, particularly the younger ones,” retired Judge J. Frederick Sharer wrote for a three-judge panel of the court.

“While it was not unreasonable for the state and the court to assume that some of the victims were unavailable, there is no clear indication in this record, either by way of proffer, stipulation, public record or otherwise, that this assumption was well founded,” added Sharer, who sat by special assignment. “While the state’s attorney may have lost the files in these cases, the names of the victims, their ages and the location of the crimes were well documented.”

Montgomery County State’s Attorney John McCarthy, who prosecuted Lopez as an assistant state’s attorney 25 years ago, said he welcomes the opportunity to argue just why it would be unreasonable to permit a convicted rapist to pursue post-conviction relief so many years later after most of his victims have died.

“It cannot possibly be the law that someone can sit for decades on legal claims, wait for the victims to die and then raise these claims when they cannot possibly testify,” McCarthy said Friday. “Anything that brings finality to a criminal matter and can ensure public confidence in the judicial system we embrace.”

The Court of Special Appeals’ decision focused on the common-law doctrine of laches, which holds that the time available for a criminal appeal eventually expires in the interest of ensuring finality.

A 1995 Maryland law limits to 10 years the amount of time after sentencing in which a convict has to appeal. But that law does not apply to Lopez’s case because he was sentenced before the Oct. 1, 1995, effective date of that statute.

McCarthy praised the Court of Special Appeals court for recognizing that laches could attach to Lopez’s case and other pre-1995 convictions — a question the trial judge practically begged the appellate court to resolve.

“We are welcoming the opportunity to put forth the evidence that the court will require,” McCarthy said. “The significance here is not the remand. The significant is the court is recognizing the doctrine of laches applies in the area of post conviction.”

If McCarthy cannot meet the preponderance of evidence burden, Lopez will be able to pursue his underlying contention that he received ineffective assistance of counsel back in 1986 when he was represented by two assistant Montgomery County public defenders. Those lawyers have since moved on to higher posts — Paul B. DeWolfe is now Maryland’s chief public defender, and Ricardo D. Zwaig is a district court judge in Howard County.

DeWolfe, whose office is pressing Lopez’s claim of ineffective assistance, said he remembers the case from more than a quarter-century ago but would not discuss it, noting it is the subject of the appeal.

“It’s absolutely the client’s right in any case to raise post-conviction issues,” DeWolfe said Friday. “I fully support his right to make that case in court.”

Zwaig was at a judicial conference in Annapolis on Friday and unreachable for comment, according to an aide.

Lopez was sentenced for the five sexual assaults and related offenses on May 14, 1986, which was about three weeks after the Chernobyl nuclear disaster in the then-Soviet Union.

He filed for post-conviction relief on April 15, 1997, but withdrew that petition in February 1998, according to the Court of Special Appeals’ reported opinion.

Lopez, representing himself, renewed his petition on Oct. 3, 2005, alleging ineffective assistance of counsel.

The Montgomery County State’s Attorney’s Office filed an opposition on March 23, 2006, saying the allegations were waived or without merit.

The public defender’s office began representing Lopez on Dec. 10, 2007, and filed a supplementary petition.

McCarthy responded by arguing that Lopez’s appeal was barred by the doctrine of laches.

After Dugan accepted that argument in January 2009, Lopez sought review by the Court of Special Appeals.

Judges Deborah S. Eyler and Albert J. Matricciani Jr. joined Sharer’s opinion.



Lopez v. Maryland, CSA No. 2916, Sept. Term 2008. Reported. Opinion by Sharer, J. (retired, specially assigned). Argued on briefs. Filed May 10, 2012.


Did the post-conviction court erroneously deny post-conviction relief on the basis of laches?


Yes; While the defense of laches is available, the state must prove by a preponderance of evidence that there was an unreasonable or impermissible delay in asserting the claim or the delay prejudiced the state.


Piedad Gomez for appellant; Mary Ann Ince for appellee.

RecordFax # 12-0510-00 (37 pages).