Monday, August 8, 2016
Another Case Where Maryland Found the "Knowing & Intelligent" Waiver Standard Applies to an IAC Claim
In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent. Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.
In its Application for Leave to Appeal (ALA), the State claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." Later, the State claimed that, "it is not surprising that the State has not found, after conducting a preliminary review, a single Maryland appellate case since Curtis that has applied that standard to an ineffective assistance of counsel claim."
I've been out of town the last week for the SEALS Conference, so I had my first chance to assess the State's claim this morning. A five minute search produced the 2008 opinion of the Court of Appeals of Maryland in State v. Adams, 958 A.2d 295 (Md. 2008). In Adams, Raymond Adams "was charged with kidnapping, robbery with a deadly weapon, six counts of first degree rape, and three counts of first degree sex offense." At the end of trial, the judge gave special advisory jury instructions that Adams did not challenge on direct or collateral (postconviction) appeal. Adams also did not initially allege that his trial counsel was ineffective based upon failure to challenge these instructions.
As Adams noted in his Appellee's Brief, 2005 WL 6498900,
At the post conviction hearing, Appellee's post conviction counsel admitted that he had failed to allege ineffective assistance of counsel against appellate counsel, for failure to pursue on appeal the objection made by trial counsel to the jury instructions.
As a result, when Adams challenged both the jury instructions and his counsel's failure to challenge those instructions, the Court of Appeals of Maryland had to address the issue of waiver. Like Judge Welch, the Court of Appeals of Maryland noted the dichotomy between fundamental and non-fundamental rights. According to the court,
In Curtis, we distinguished the minimum standards for waiver of a fundamental constitutional right from the standards for waiver of other rights....Fundamental constitutional rights require an affirmative waiver from a defendant....
An erroneous jury instruction, even on reasonable doubt, is not such a fundamental right requiring an affirmative “knowing and intelligent” waiver under UPPA.
So, Adams waived his objection to the jury instructions themselves because those instructions did not involve a fundamental right. On the other hand, Adams did not waive his claim that his trial counsel was ineffective based upon his failure to challenge those instructions. According to the court,
Adams contends that his trial counsel was ineffective for failing to object to the jury instructions on jurisdiction. Unlike most of his other post-conviction claims, this contention has been not waived by inaction in the prior proceedings.
This is because an ineffective assistance claim involves a fundamental right, which requires knowing and intelligent waiver.
The point is made even more clearly by the dissent, which noted that
in an action under the Post Conviction Procedure Act, the nature of the issue presented will ordinarily determine the applicability of § 7–106(b) and (c). For example, waiver of a claim that trial counsel's representation was so inadequate that the defendant was denied his constitutional right to the assistance of counsel requires an “intelligent and knowing waiver” by the defendant; accordingly, the waiver provisions of the Post Conviction Procedure Act are applicable. Curtis v. State...and cases there cited. On the other hand, waiver with respect to most issues does not require “intelligent and knowing” action by the defendant, and, with regard to those issues, the waiver provisions of the Post Conviction Procedure Act are not directly applicable. Some Post Conviction Procedure Act cases present both types of issues, i.e., issues governed by the Act's waiver provisions and issues that are not strictly governed by the statutory provisions.... It should also be noted, however, that some of this Court's opinions have not always drawn an explicit distinction between the applicability of the Act's waiver section and the circumstances when that section does not apply.