The Court of Special Appeals Has Authority to Excuse Any Possible Waiver of Adnan's IAC/Cell Tower Claim

Maryland Court Rule 8-131(a) provides that

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

So, what does this Rule mean? It means that the Court of Special Appeals of Maryland can affirm Judge Welch's order granting Adnan a new trial even if it finds that he waived his ineffective assistance of counsel claim regarding the AT&T disclaimer. 

In Jones v. State, 843 A.2d 778 (Md. 2004), 

Thomas Wayne Jones was tried and convicted in the Circuit Court for Prince George's County of the first degree felony murder of Gary Gulston and other related offenses, including kidnapping, robbery with a deadly weapon, and use of a handgun in a felony.

After he was convicted, Jones filed a petition for postconviction relief. 

As one of his bases for post-conviction relief, Jones argued that his trial and appellate counsel were constitutionally deficient because they failed to object to the admissibility of a hearsay statement contained within the written statement of Derrick Smith, a State witness.

The PCR court agreed and granted Jones a new trial. Thereafter,

The State filed an Application for Leave to Appeal to the Court of Special Appeals....The State presented several legal arguments for the admissibility of the incriminating statement, among which was the argument that Don Gutrick's remark was "clearly admissible as a statement of a coconspirator made during the course of and in furtherance of the conspiracy."...This argument had not been raised in the post-conviction court, nor was it raised in the State's opening brief to the intermediate appellate court.

The Court of Special Appeals refused to consider this claim, concluding that this "legal theory, raised for the first time in the reply brief, was not properly before the court." The State then filed a Motion to Reconsider, and the Court of Special Appeals granted it and remanded for further proceedings, finding that when a party like

the State fails to raise an important argument, an appellate court ordinarily has discretion to review the record or the trial judge's ruling in its effort to reach a sound result. Similarly, the appellate court generally retains discretion to consider an argument that is belatedly raised.

Jones then appealed to the Court of Appeals of Maryland, with the State countering that the decision of the Court of Special Appeals "was a routine exercise of appellate judicial discretion pursuant to Maryland Rule 8-131(a)." The Court of Appeals agreed with the State, concluding that,

under the Rule, an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party.

According to the court,

when presented with a plausible exercise of this discretion, appellate courts should make two determinations concerning the promotion or subversion of 8–131(a)'s twin goals.

First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties....

Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice. This simply means that the Rule seeks to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation.

Judges Bell and Cathell dissented, grousing that

The majority expands the scope of Rule 8-131(a) to include within the ambit of “decide,” excusing a waiver or procedural default.... I am not at all sure that that is appropriate.

But that's the dissent. According to the majority opinion by Maryland's highest court, the Court of Special Appeals can excuse waiver, including the type of waiver that arguably applies in Adnan's case. As the Court of Appeals later noted in State v. Adams, 958 A.2d 295 (Md. 2008), "it is recognized that the Court of Appeals possesses discretion to excuse a waiver, outside of § 7-106, in a post-conviction proceeding...[a]pparently relying on Rule 8-131(a)."  

So, if the Court of Special Appeals were to find that Adnan had waived his IAC/cell tower claim, is there reason to believe that the Court of Special Appeals would excuse such waiver? Yes. As I noted in my post on Monday, there is reason to believe that Adnan would eventually get relief on his IAC claim, even if the court found waiver. Therefore, excusing any possible waiver could easily be seen as "saving time and expense and accelerating the termination of litigation." 

-CM