Please ensure Javascript is enabled for purposes of website accessibility

Law Digest — Court of Appeals, Court of Special Appeals — July 30, 2020

Maryland Court of Appeals

Criminal Procedure; Appeals: Although a case potentially presented the important issue of whether, under State v. Adams, 171 Md. App. 668 (2006), aff’d in part and rev’d in part, 406 Md. 240 (2008), a petitioner for postconviction relief seeking right to file belated motion for modification of sentence pursuant to Maryland Rule 4-345(e) based on ineffective assistance of counsel must establish that he or she timely requested that trial counsel file such motion, because the bases underlying the trial court’s order denying postconviction relief and the intermediate appellate court’s reversal and remand for filing of belated motion for modification of sentence were unclear, the merits of the appeal could not be reached, and, therefore, the Court of Appeals, without affirming or reversing, remanded the case to the Court of Special Appeals with instruction that the Court of Special Appeals clarify the basis for its order reversing the circuit court judgment. State v. Day, No. 67, Sept. Term, 2019.  

Maryland Court of Special Appeals

Labor & Employment; Jurisdiction: In a labor dispute about the number of holiday-leave hours to which university police were entitled, the union’s suggestion that the parties’ memorandum of understanding effectively “amended” an incorporated statutory definition to expand the scope of issues grievable under the incorporated statutory procedure was conceptually untenable because, unless the General Assembly provides that statutorily prescribed jurisdictional limits are a mere default, parties cannot expand the jurisdiction of an administrative agency by contract. Merryman and Fraternal Order of Police Lodge 146 v. University of Baltimore, No. 649, Sept. Term, 2019.

Maryland Court of Appeals

Criminal Procedure

Appeals

BOTTOM LINE: Although a case potentially presented the important issue of whether, under State v. Adams, 171 Md. App. 668 (2006), aff’d in part and rev’d in part, 406 Md. 240 (2008), a petitioner for postconviction relief seeking right to file belated motion for modification of sentence pursuant to Maryland Rule 4-345(e) based on ineffective assistance of counsel must establish that he or she timely requested that trial counsel file such motion, because the bases underlying the trial court’s order denying postconviction relief and the intermediate appellate court’s reversal and remand for filing of belated motion for modification of sentence were unclear, the merits of the appeal could not be reached, and, therefore, the Court of Appeals, without affirming or reversing, remanded the case to the Court of Special Appeals with instruction that the Court of Special Appeals clarify the basis for its order reversing the circuit court judgment.

CASE: State v. Day, No. 67, Sept. Term, 2019 (filed July 10, 2020) (Judges Barbera, McDonald, WATTS, Hotten, Getty, Booth  & Biran).

FACTS: After imposition of a sentence in a criminal case, a defendant may seek modification of that sentence pursuant to Maryland Rule 4-345(e). To obtain such review, Maryland Rule 4-345(e)(1) provides that the defendant must file a motion seeking modification within 90 days after imposition of the sentence. In State v. Schlick, 465 Md. 566, 577, the Court of Appeals reaffirmed that when a defendant directs his or her lawyer to file a motion to modify the sentence, the lawyer’s failure to file a timely motion may constitute ineffective assistance of counsel. To remedy counsel’s ineffectiveness, the postconviction court may permit a defendant to file a belated motion for modification of sentence.

In this case, a jury in the circuit court convicted James Day of first-degree burglary, robbery, and conspiracy to commit robbery. The circuit court sentenced Day to a total of 50 years’ imprisonment. After unsuccessfully pursuing a direct appeal and sentence review by a three-judge panel, Day petitioned for postconviction relief, contending that trial counsel provided ineffective assistance of counsel by failing to file a motion for modification of sentence pursuant to Maryland Rule 4-345(e) when he had allegedly asked trial counsel to do so.

At a hearing on the petition, Day gave seemingly inconsistent testimony concerning whether he asked trial counsel to file a motion for modification on his behalf. Day testified that trial counsel did not advise him of options for attempting to have his sentence modified and that he learned about the possibility of filing a motion for modification of sentence through a jailhouse lawyer, but that he asked trial counsel at the sentencing proceeding to “do a reconsideration.” For his part, trial counsel testified that he had no recollection of Day’s asking him to do anything to try to modify the sentence or specifically asking him to file a motion for modification of sentence.

The circuit court denied postconviction relief. The circuit court found that Day’s assertion that he asked trial counsel to file a motion for modification of sentence was “not supported by the record” and that, even if Day had made such a request, the claim for ineffective assistance of counsel “would fail nonetheless.” Day filed an application for leave to appeal to the Court of Special Appeals, which summarily reversed and remanded with instruction to permit Day to file a belated motion for modification of sentence.

The State appealed to the Court of Appeals, which, without affirming or reversing, remanded the case to the Court of Special Appeals, with instruction that the Court of Special Appeals clarify the basis for its order reversing the circuit court judgment.

LAW: This case presented the issue of whether a petitioner for postconviction relief seeking the right to file a belated motion for modification of sentence pursuant to Maryland Rule 4-345(e), based on ineffective assistance of counsel, must establish that he or she timely requested that trial counsel file such a motion. As such, the matter potentially involved the issue of whether State v. Adams, 171 Md. App. 668 (2006), aff’d in part and rev’d in part, 406 Md. 240 (2008), stands for the proposition that, to establish ineffective assistance of counsel based on the failure to file a motion for modification of sentence, a postconviction petitioner need not demonstrate that he or she requested that trial counsel file such a motion, and whether that is good law. In Adams, the Court of Special Appeals affirmed a trial court’s ruling that defense counsel provided ineffective assistance of counsel in not filing a motion for modification of sentence. Id. at 716.

Notably, in Adams, the Court of Special Appeals did not specify whether the defendant in that case had ever asked his trial counsel to file a motion for modification of sentence. The Court of Special Appeals appeared to imply that a defendant is not required to request that trial counsel file a motion for modification of sentence in order for trial counsel to be required to file such a motion, i.e., that it is per se deficient performance for trial counsel to fail to timely file a motion for modification of sentence absent express instructions to not do so, given that there is no down side to filing the motion. However, in the present case, it was not clear from the order of the Court of Special Appeals whether it applied Adams.

The State contended that it was not per se ineffective assistance of counsel for defense counsel to not file a motion for modification of sentence pursuant to Maryland Rule 4-345(e), but rather that a defendant must establish that he or she specifically directed his or her attorney to file such a motion and the attorney failed to do so. Day responded that the Court of Special Appeals correctly determined that he was entitled to file a belated motion for modification of sentence where the uncontested evidence demonstrated that he asked trial counsel to file the motion and trial counsel failed to do so. Day contended that the Court of Special Appeals granted relief because it determined that the circuit court clearly erred in finding that the record did not support the allegation that he asked trial counsel to file a motion for modification.

Although the case raised issues of importance, the merits could not be reached because the basis underlying the intermediate appellate court’s order reversing and remanding the matter for the filing of a belated motion for modification of sentence could not be determined. Given that the order of the Court of Special Appeals was unclear, neither affirmance nor reversal would be proper. Instead, the appropriate course was remand to the Court of Special Appeals in order for the Court of Special Appeals to provide clarification as to its interpretation of Adams and whether it granted permission for the filing of a belated motion for modification of sentence based on Adams or on any other ground, such as a determination that the circuit court’s finding that there was no support in the record for Day’s assertion that he requested that trial counsel file a motion for modification was clearly erroneous.

Accordingly, he case was remanded to the Court of Special Appeals without affirming or reversing for further proceedings

COMMENTARY: The circuit court’s order denying postconviction relief was also ambiguous. It was unclear whether the circuit court considered and did not credit Day’s testimony that he asked trial counsel to seek reconsideration, or whether the circuit court did not consider the testimony at all. In the order denying postconviction relief, the circuit court found that Day’s assertion that he asked trial counsel to file a motion for modification of sentence was “not supported by the record.” It was difficult to discern from the circuit court’s statement whether the circuit court considered Day’s testimony at the hearing on the petition for postconviction relief that he asked his trial counsel to file a motion for modification of sentence and found Day not credible, or whether the circuit court did not take the testimony into account in its determination of the issue. However, whether the issue raised by the State as to the applicability of Adams was properly before the Court of Appeals could be determined by first addressing the basis of the order of the Court of Special Appeals.

 

PRACTICE TIPS: Maryland courts use a two-prong test for resolving a claim of ineffective assistance of counsel. The first prong is known as “the performance prong,” and the second prong is known as “the prejudice prong.” Generally, where a petitioner alleges ineffective assistance of counsel, the burden rests on him or her to satisfy both the performance prong and the prejudice prong.

Maryland Court of Special Appeals

Labor & Employment

Jurisdiction

BOTTOM LINE: In a labor dispute about the number of holiday-leave hours to which university police were entitled, the union’s suggestion that the parties’ memorandum of understanding effectively “amended” an incorporated statutory definition to expand the scope of issues grievable under the incorporated statutory procedure was conceptually untenable because, unless the General Assembly provides that statutorily prescribed jurisdictional limits are a mere default, parties cannot expand the jurisdiction of an administrative agency by contract.

CASE: Merryman and Fraternal Order of Police Lodge 146 v. University of Baltimore, No. 649, Sept. Term, 2019 (filed July 13, 2020) (Judges KEHOE, Beachley & Eyler, J. (Senior Judge, Specially Assigned)).

FACTS: In January 2018, the University of Baltimore altered the work schedules of its police officers, shifting them from working five eight-hour days each week to working four ten-hour days. The University and the union representing its police officers, Fraternal Order of Police Lodge 146, disagreed about whether this schedule change affected the number of paid-leave hours officers would receive for holidays throughout the year. The controversy led Lodge 146, through its president, Keith Merryman, to invoke the grievance procedure established by the General Assembly to resolve certain disputes between employees and the component institutions of the University System of Maryland, codified in Maryland Code, §§13-201 to 13-207 of the Education Article (“Educ.”), which had been incorporated into Article 11 of the memorandum of understanding (“MOU”) between the parties. The statute specifically excludes from the scope of “grievable” issues complaints that pertain to the general level of wages, wage patterns, fringe benefits, or other broad areas of financial management and staffing.

The dispute came before an administrative law judge. The ALJ ultimately sided with Lodge 146 on the merits, concluding, after an evidentiary hearing, that “the University unilaterally changed the definition of workday to ten hours and this change applies to the allocation of holiday leave for University police officers.” The ALJ then ordered the parties to determine the number of holiday hours wrongfully withheld from officers since the ten-by-four schedule took effect so that the University could credit those hours to the affected officers.

The University sought judicial review of the ALJ’s decision in the circuit court. The University maintained that the ALJ erred in deciding that the issue was “grievable” and, ultimately, in deciding the change to officers’ work schedules altered the number of paid holiday hours they were entitled to. The University also argued that even if the ALJ could properly hear the case and was right on the merits, the ALJ had no authority under the statutory grievance procedures to provide a remedy that would “change the scope of fringe benefits” and “impact the finances and management control of the University.”

The circuit court reversed in part and affirmed in part the ALJ’s decision. The circuit court affirmed the ALJ’s decision “with respect to the conclusion that on January 3, 2018, the University unilaterally changed the definition of a workday to ten hours and this change affected the allocation of holiday leave for the police officers.” However, the circuit court reversed “with respect to all other conclusions” of the ALJ.

Lodge 146 appealed to the Court of Special Appeals, which vacated the judgment of the circuit court and remanded the case.

LAW: Before the merits of Lodge 146’s case could be addressed, it was necessary to determine the jurisdictional question of whether the dispute between Lodge 146 and the University was properly before the administrative law judge. Article 11 of the parties’ MOU stated that in the event of an alleged violation or disagreement over any of the provisions of the agreement, officers would have the right to file a grievance in accordance with Educ. §13-203. The agreement then expressly incorporated the relevant provisions of the Education Article, including the statutory definition of “grievance.” As defined in Educ. §13-203, the term “grievance” means “any cause of complaint arising between a classified employee or associate staff and his employer on a matter concerning discipline, alleged discrimination, promotion, assignment, or interpretation or application of University rules or departmental procedures over which the University management has control. However, if the complaint pertains to the general level of wages, wage patterns, fringe benefits, or to other broad areas of financial management and staffing, it is not a grievable issue.” Educ. §13-201(c).

The University argued the holiday-leave dispute did not fit within this statutory definition. Because the dispute was not a “grievance” within the meaning of Educ. §13-201(c), the University claimed, the dispute could not be resolved by resort to the statutory grievance procedures specified under Article 11 of the MOU. Therefore, it asserted, the ALJ was without jurisdiction.

Lodge 146, in turn, essentially conceded that the dispute was not a “grievance” within the meaning of Educ. §13-201. However, it maintained that by providing for holiday leave in their memorandum of understanding, the parties made it a contractual benefit and, in so doing, placed holiday leave outside the realm of fringe benefits or other policies “over which the University management has control.” Educ. § 13-201. To support its assertion that the dispute was a “simple contract dispute” not tied to University policy, Lodge 146 cited Walker v. Department of Human Resources, 379 Md. 407, 422 (2004).

In Walker, employees of the Baltimore City Department of Social Services invoked a statutory grievance procedure under Md. Code, tit. 12 of the State Personnel and Pensions Article, to resolve their claim that the department had wrongfully denied them “standby” pay. Walker, 379 Md. at 416. Standby pay was specifically addressed in the parties’ memorandum of understanding. Id. at 422. The Court of Appeals ultimately concluded that the dispute was not grievable under the statutory scheme chosen by the employees. The Court reasoned that once agency’s prior discretionary practice of paying standby pay became a contractual obligation, it was no longer a policy over which the Department management had control. Id. at 422.

Thus, in extremely broad strokes, Walker suggested that when a dispute arises about how to interpret an agreement between two parties, the parties may be required to resort to a dispute-resolution mechanism provided for by the terms of the agreement itself. See id. at 422. However, no one in Walker contended that the dispute-resolution mechanism outlined in the parties’ memorandum of understanding expanded or otherwise amended the statutorily defined jurisdiction conferred upon the administrative body which would ultimately resolve the parties’ dispute. By contrast, Lodge 146’s argument in the present case was centered on its belief that the parties could and did confer jurisdiction upon the ALJ by expanding the scope of grievances subject to the statutory procedures incorporated into the parties’ agreement. This distinction was decisive.

The scope of the dispute-resolution mechanism provided for in the MOU between Lodge 146 and the University was fixed by the General Assembly. Lodge 146’s suggestion that the parties’ MOU effectively “amended” Educ. §13-201(c) to expand the scope of issues grievable under the Educ. §13-203 procedure was conceptually untenable. It is widely acknowledged that “parties cannot confer jurisdiction, in its fundamental sense, upon a court by consent. Stewart v. State, 287 Md. 524, 527–28 (1980). For the same fundamental reasons, parties cannot expand the jurisdiction of an administrative agency by contract.

There was no indication that the General Assembly intended that a state college or university could modify by contract the limits imposed upon the grievance process by Educ. §13-201(c). If the General Assembly had intended to make these statutorily prescribed limits a mere default, it could have said so. As such, the ALJ acted in excess of her jurisdiction, and the proper disposition of the judicial-review proceeding was to reverse the administrative decision in its entirety.

Accordingly, the circuit court judgment was vacated, and the case was remanded for entry of a judgment consistent with this opinion.

COMMENTARY: Even if the parties could, by mutual agreement, expand the jurisdiction conferred upon the administrative law judge by the General Assembly, Lodge 146 agreed that it could not grieve a complaint about the general level of “fringe benefits.” Educ. §13-201(c). A dispute about the number of holiday-leave hours to which University police were entitled most certainly pertained to the general level of “fringe benefits” provided to the officers, and Lodge 146’s attempt to recast the dispute as a matter of determining “how many hours are in a holiday” fell flat. What Lodge 146 sought – and what the ALJ ultimately awarded – was that University police officers would receive 22 more hours of annual paid holiday leave than the University currently awarded employees. Clearly, this matter pertained to the general level of fringe benefits. However, because the ALJ was without jurisdiction to adjudicate the dispute between Lodge 146 and the University of Baltimore, the merits of the ALJ’s decision or the propriety of the remedy were not reached.

 

PRACTICE TIPS: In an appeal from a judgment entered in a judicial-review proceeding, the Court of Appeals bypasses the judgment of the circuit court and looks directly at the challenged administrative decision, but the scope of appellate court review is limited. The appellate court accords significant deference to an agency’s findings of fact, affirming if there is “substantial evidence” to support the agency’s findings and conclusions.” The appellate court reviews de novo an agency’s legal conclusions, except that it gives some degree of deference to an agency’s interpretation of ambiguity in a statute that it regularly “administers.”

 

 

1 of 1 article

0 articles remaining

Grow your business intelligence with The Daily Record. Register now for more article access.