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Appeal of attempted murder case might be undone by Maryland governors’ lost say on parole

The stripping of Maryland governors from parole decisions on life-sentenced inmates this month might end the appeal of an Eastern Shore man who pleaded guilty in 2015 to attempted murder but later said he would have gone to trial, had his attorney told him then that his chance for early release would rest with the governor.

On Tuesday, the Maryland attorney general’s office told the 4th U.S. Circuit Court of Appeals that the basis for Paul Martin Hurst’s ineffective assistance of counsel claim no longer applies.

The governor, in fact, has no final say in whether to grant early release following the General Assembly’s enactment – over Gov. Larry Hogan’s veto – of the parole-reform legislation, Senate Bill 202, Assistant Attorney General Jer Welter wrote in a letter to the 4th Circuit.

“By repealing the gubernatorial approval requirement, S.B. 202 places Mr. Hurst in exactly the position he was told he would be in at his plea hearing: not subject to gubernatorial approval for parole,” Welter wrote. “We therefore respectfully submit that the legislation’s enactment has either rendered Mr. Hurst’s claim moot or cured any arguable prejudice from the misinformation he received.”

Hurst’s appellate attorney, Michael E. Lawlor, did not immediately return telephone and email messages Wednesday seeking comment on the state’s letter and whether the 2021 repeal of the governor’s role in parole affects the legal advice Hurst received in 2015.

In the 4th Circuit appeal, Lawlor wrote in June that the trial attorney’s failure to apprise Hurst of the governor’s role constituted ineffective assistance of counsel due to the historic reticence of Maryland governors to grant parole to those sentenced to “life in prison,” as Hurst was, albeit with all but 40 years suspended under the plea agreement.

Trial counsel mistakenly believed the governor’s final say applied only to straight life terms and not those suspended to a defined number of years, Lawlor wrote.

Hurst would have opted for a trial had he known the plea would essentially guarantee he would spend 40 years in prison with no real chance for parole beginning after 50% of his sentence, or 20 years, added Lawlor, of Brennan, McKenna & Lawlor Chtd. in Greenbelt.

“Appellant (Hurst) demonstrated that but for trial counsel misadvising him, and failing to correct the trial court’s misrepresentation about his parole eligibility, there is a reasonable probability that he would have pleaded not guilty and proceeded to trial,” Lawlor wrote. “The consequence of this misadvice is enormous given the state of Maryland’s parole system for individuals serving life sentences, specifically, appellant’s understanding that gubernatorial approval for parole is essentially non-existent in Maryland.”

Supporters of SB 202 noted this essential nonexistence of gubernatorial parole for life-sentenced inmates in successfully urging the General Assembly to pass the legislation and later to override Hogan’s veto.

Sen. Delores G. Kelley, D-Baltimore County and the bill’s chief Senate sponsor, told her colleagues before the override vote that the measure will ensure that the decision to release an inmate is made by the neutral Parole Commission and not swayed by the political considerations of governors who might be “led by the headline of the day.”

In vetoing the bill in May, Hogan had called the measure “nothing more than an unfounded and unnecessary power grab and another instance of the legislative branch seeking to diminish the authority of the governor.”

Hogan added he was the first governor in more than 20 years to have paroled an inmate who had been given a life sentence. In all, Hogan said he has granted 34 paroles and commuted 23 life sentences.

Hurst pleaded guilty in 2015 in Wicomico County Circuit Court to kicking, stomping and beating housemate Zach Swanson with a shovel and stick. Hurst then used a box cutter and a knife in trying to cut a tattoo off Swanson’s arm before resorting to lighter fluid and a match in August 2014.

Swanson suffered third-degree burns, a broken nose and ribs, internal bleeding, and liver and spleen lacerations. His burned arm had to be amputated.

Carey Lee Edwards, another housemate who participated in the Hebron attack, also pleaded guilty to attempted first-degree murder and was sentenced to life in prison with all but 30 years suspended. Edwards is not party to Hurst’s appeal.

U.S. District Judge Theodore D. Chuang rejected Hurst’s federal court challenge to his plea agreement based on ineffective assistance of counsel.

Chuang said the U.S. Supreme Court has never held misinformation on parole eligibility as constituting ineffective assistance of counsel. Chuang added that “the evidence does not unequivocally establish that Hurst necessarily would have proceeded to trial had he been properly advised” in light of the strong evidence against him.

“(A) defendant facing likely conviction may rationally choose the benefits of a plea agreement, even one that is not entirely favorable, that offers a better resolution than would be likely after trial,” Chuang wrote in his memorandum opinion in March.

The 4th Circuit has not stated when it will rule on Hurst’s appeal.

The case is docketed at the 4th Circuit as Paul Martin Hurst v. Walter West, No.21-6468.