Monday, May 1, 2017
Is the State Right That the Right to the Effective Assistance of Counsel is Distinct From the Right to Counsel?
In his opinion granting Adnan a new trial, Judge Welch cited to Curtis v. State, 395 A.2d 464 (Md. 1978), which held that (1) the right to counsel is a fundamental right; (2) fundamental rights require "intelligent and knowing" waiver; and (3) Curtis did not intelligently and knowingly waive his claim of ineffective assistance of counsel. Judge Welch then found that Adnan had similarly not intelligently and knowingly waived his claim of ineffective assistance of counsel with regard to the cell tower evidence.
The State has tried to distinguish Curtis, claiming in its Brief of Appellant that "Curtis dealt with a total abandonment by counsel...." In its new Reply Brief and Appendix of Cross-Appellee, the State tries to strike a similar chord, but is its argument convincing?
Here's the pertinent portion of the State's Reply Brief:
So, what does Maryland precedent say on the issue of whether the right to counsel and the right the effective assistance of counsel are "distinct concepts"? Let's start with State v. Flansburg, 694 A.2d 462 (Md. 1997), where the defendant claimed that he received the ineffective assistance of counsel because his lawyer at a probation revocation hearing did not file a motion for modification of reimposed sentence. The State countered that the defendant only had the statutory right to counsel in connection with the hearing and not a Constitutional right to the effective assistance of counsel. The Court of Appeals of Maryland disagreed, concluding as follows:
Finally, the State in its reply brief and in oral argument suggests that even if Flansburg had a statutory right to counsel in connection with his request to file a motion for modification of the sentence, such right should not include the same type of "effective assistance" which is associated with a constitutional right of counsel. This argument was fully answered by the Court in Wilson v. State....There, referring specifically to the right to counsel under the Public Defender Act, Judge Orth for the Court stated:
"Entitlement to assistance of counsel would be hollow indeed unless the assistance were required to be effective. It follows that a criminal defendant has the right to the effective assistance of counsel on the direct appeal of the judgment entered upon his conviction of a serious crime."
Regardless of the source, the right to counsel means the right to the effective assistance of counsel.
Finding a violation of the defendant's right to the effective assistance of counsel, the court awarded him the "post conviction remedy of permission to file a belated motion for reconsideration of sentence."
Five years later, in Stovall v. State, 800 A.2d 31 (Md. 2002), the Court of Special Appeals of Maryland awarded a different defendant the similar remedy of permission to file a belated motion for modification of sentence based upon ineffective assistance. As support, the court cited Flansburg for the proposition that, "under Maryland law, convicted persons have a right to the assistance of counsel with respect to proceedings under the Post Conviction Procedure Act, and 'the right to counsel means the right to the effective assistance of counsel.'"
Another two years later, in 2004, the Court of Special Appeals of Maryland again cited Flansburg for this proposition, although it ultimately didn't find ineffective assistance of counsel. See Harris v. State, 862 A.2d 516 (Md. 2004) ("The right to effective assistance of counsel applies even when the right arises under statutory law....State v. Flansburg...("Regardless of the source, the right to counsel means the right to the effective assistance of counsel.")).
In 2009, in In re Adoption/Guardianship of Chaden M., 984 A.2d 420 (Md.App. 2009), the Baltimore City Department of Social Services filed a Petition for Guardianship, seeking to terminate the parental rights of April C. The public defender representing April C. filed an untimely objection to this petition. April C. thus claimed that she received the ineffective assistance of counsel. In response, the Court of Special Appeals cited Flansburg for the proposition that, "[r]egardless of the source, the right to counsel means the right to the effective assistance of counsel." The court then concluded "that the right to assistance of counsel in a TPR case includes the right to effective assistance of counsel," and allowed April C. to file a belated objection.
In 2012, the Court of Special Appeals decided Poole v. State, 203 Md.App. 1 (Md.App. 2012), which I've previously discussed on this blog. Poole was the case where the defendant timely brought a PCR petition before the ten year deadline and then, after being appointed counsel, added new ineffective assistance of counsel claims to that petition after the ten year deadline. The Court of Special Appeals "freely allowed" this amendment because the initial petition was brought before the deadline expired. According to the court,
This conclusion is supported by CP § 7-108. That statute provides that "[e]xcept as provided in subsection (b) of this section, a person is entitled to assistance of counsel and a hearing on a petition filed under this title." It is fundamental that "'the right to counsel means the right to the effective assistance of counsel.'" Stovall v. State...)(quoting State v. Flansburg.... In the context of postconviction proceedings, the right to effective assistance of counsel necessarily includes the right to add non-frivolous issues developed by counsel, which were not included in the original petition.
Based on all of the above case law, it seems pretty clear that Maryland courts do not treat the right to counsel and the right to the effective assistance of counsel as "distinct concepts." Also, in four of these five cases, the Maryland courts used the concept of assistance=effective assistance to allow defendants to bring belated claims that might otherwise have been waived. Indeed, the Poole case specifically involved the Court of Special Appeals allowing a defendant to bring new ineffective assistance of counsel claims to a timely filed PCR petition, a factual scenario very similar to the factual scenario in the Adnan Syed case.*
The final-takehome from this line of cases is that Maryland vigorously defends defendants' right to effective assistance of postconviction counsel. See, e.g., Stovall v. State. This takes me back to the futility argument I've made before. The Court of Special Appeals could obviously find that Adnan did not waive his ineffective assistance/cell tower claim and proceed to review the merits of that claim and Judge Welch's opinion. On the other hand, what if the court were inclined to find that Adnan did "waive" this claim? Wouldn't that just set the stage for Adnan making a viable claim for ineffective assistance of PCR counsel, allowing him to file a belated claim, like the litigants in Flansburg, Stovall, and Chaden M.?
*But there is possibly a key difference between these two cases that I will discuss in a future post.