Creighton v. State

Decision Date01 September 1990
Docket NumberNo. 89,89
Citation87 Md.App. 736,591 A.2d 561
PartiesWallace CREIGHTON v. STATE of Maryland. Post Conviction,
CourtCourt of Special Appeals of Maryland

Scott Whitney of the Public Defender's office in Baltimore, for applicant.

No response filed by the State.

Submitted before WILNER, C.J., and BISHOP and ALPERT, JJ.

WILNER, Chief Judge.

In 1963, applicant was convicted by a jury in the Criminal Court of Baltimore (now the Circuit Court for Baltimore City) of first degree murder, for which he was sentenced to life imprisonment. Twenty-six years later, on December 29, 1989, he filed a petition for relief under the Post Conviction Procedure Act seeking (1) a new trial by reason of certain errors alleged to have been committed at his trial and (2) a belated appeal by reason of the failure of his attorney to perfect an appeal from the judgment.

After an evidentiary hearing, Judge Thomas Ward issued an order denying relief. In this application for leave to appeal, applicant does not contest any of the rulings made by Judge Ward with respect to the allegations of trial error. His complaint pertains only to the disallowance of a belated appeal.

(1) Allowance of Belated Appeal

Belated appeals are somewhat of an anomaly. Subject to certain exceptions not relevant here, the Maryland rules have long required that appeals be filed within 30 days after the entry of judgment. In one of the earliest cases reaching this Court, we noted that "[t]here is no provision in the Maryland Rules, or elsewhere, authorizing the lower court to extend the time within which an Order for Appeal to this Court shall be filed." Cornwell v. State, 1 Md.App. 576, 577-78, 232 A.2d 281 (1967). Appeals not filed within the time allowed "must be dismissed." Riviere v. Quinlan, 210 Md. 76, 77, 122 A.2d 332 (1956).

The allowance of a "belated" appeal--one filed after the 30-day (or other allowable) period has run--obviously is inconsistent with this bedrock rule. It is justified--indeed compelled--in certain circumstances arising in criminal cases, however, by supervening principles of due process, and, in those circumstances, it has been allowed. See Coates v. State, 180 Md. 502, 25 A.2d 676 (1942); Beard v. Warden, 211 Md. 658, 128 A.2d 426 (1957); Lloyd v. Warden, 217 Md. 667, 143 A.2d 483 (1958); State v. Shoemaker, 225 Md. 639, 171 A.2d 468 (1961). Belated appeals have been allowed where it is shown that the defendant requested an appeal, but either his request was not honored or an appeal noted was summarily dismissed because of (1) actions or omissions by State officials, Sewell v. Warden, 235 Md. 615, 618, 200 A.2d 648 (1964); (2) actions or omissions by trial counsel, State v. Shoemaker, supra; (3) actions or omissions by appellate counsel, Wilson v. State, 284 Md. 664, 672-73, 399 A.2d 256 (1979); or (4) State laws that violate due process, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 1055 (1956).

(2) This Case

The judgment in this case was entered on June 28, 1963. On July 24, 1963, applicant, through an attorney, Nelson R. Kandel, Esq., filed a Notice of Appeal. The notice appears to be signed by Mr. Kandel; it was in proper form; and it was date-stamped and docketed by the clerk on July 24. The next, and last, notation on the docket is the cryptic statement entered on August 24, 1963, "Appeal to Court of Appeals of Maryland expired by non compliance of rules."

In his amended petition for post-conviction relief, the applicant states:

"The record indicates that on July 24, 1963, Nelson R. Kandell [sic] entered his appearance in the Petitioner's case. On that same date, a notice of appeal was filed that was signed by the Petitioner and Mr. Kandel. Subsequently, on August 24, 1963, the docket entries indicate that the 'Appeal to Court of Appeals of Maryland expired by noncompliance of rules'.

The Petitioner contends that he desired to proceed at all times with his appeal, that he did not cause his appeal to be dismissed and that he relied upon his attorney to perfect his appeal. He alleges that under these circumstances, he should be entitled to receive the opportunity to file a belated appeal. Shoemaker v. State, 225 Md. 639 (1961).

The above allegation has not been litigated in prior proceedings and because it pertains to a fundamental right accruing to the Petitioner, it has not been waived by his failure to raise it in prior proceedings."

In his Memorandum filed pursuant to Md. Rule 4-407, Judge Ward denied relief on two grounds. First, he stated that the applicant "alleged neither attorney error nor offered evidence to show why the appeal was dismissed" and that "the State has rebutted all of the [applicant's] allegations." Second, though recognizing that "[t]he Post Conviction Procedure Act imposes no time limits upon a petitioner," he nonetheless applied a theory of laches and found that applicant had "waived these allegations by his repeated failure to file his petition." The judge found no justification for the long delay and concluded that "[t]he State should not be prejudiced in its case by the lack of a petitioner's diligence."

We are not satisfied with the first reason given by the judge. Although some of the details given by applicant were rebutted, the facts that he desired to appeal, that an appeal was properly filed, and that, without his knowledge or consent, it was effectively abandoned were not rebutted.

Applicant was represented at trial and with respect to a motion for new trial by Tucker Deering, Esq. and William Toadvine, Esq., and he believed that they had been employed by his father to handle his appeal as well. He said that, after being in prison for about six months, he wrote to Mr. Deering to inquire about the appeal and that he received a letter in return stating that Deering was taking care of it. This aspect of his claim was rebutted. Mr. Deering denied any such employment, stating that his representation of applicant ended when the motion for new trial was rejected.

The undeniable fact is, however, that an appeal was filed on applicant's behalf--not by Mr. Deering but by Mr. Kandel. It was stipulated that Mr. Kandel had no recollection of filing the appeal, but there is nothing to suggest that the notice of appeal was not filed by Mr. Kandel--that the signature on it was not his. Nor is there any evidence that applicant ever desired to abandon the appeal. What we are left with, then, is a fair inference that the appeal was dismissed because Mr. Kandel, who filed it, failed to perfect it. 1 At the time, Md.Rule 825a required that the record be filed with the Court of Appeals within 30 days after the appeal was noted, unless that time was extended. Case law, taken in conjunction with Rule 825d, called for an appeal to be dismissed if the record was not filed within that period unless the appellant could affirmatively show that the delay was the fault of the State, the clerk, or the stenographer. The most reasonable inference, then, is that the appeal was dismissed on August 24, 1963--31 days after it was noted--for failure to transmit the record in conformance with Rule 825.

As noted, Judge Ward, applying a theory akin to laches, also found that applicant had waived his allegations by his "repeated failure to file his petition." There was, of course, a considerable delay--26 years. Applicant explained the delay thusly. From 1963 to 1970, he was at the penitentiary where, he said, there was no library, he could get no assistance in preparing a petition, and, "if you were caught writing anything to the courts ... you get your head busted and go to lockup for six months to a year." From 1970 to 1976, he resided at a Camp Center at Brockbridge. He did nothing during that period because "people that I talked to" told him "you wasting your time, nothing can be done, you don't have the kind of money that it takes to get this done or to hire a lawyer to handle it." From 1975 to 1978, he was hoping to get out on parole and devoted his effort to that. Then, in December, 1978, he escaped, remaining at large until April, 1985.

On this record, Judge Ward could properly find that the long delay was inexcusable; he was not obliged to credit applicant's excuses. Petitions for post-conviction relief were routinely filed all during that period by indigent prisoners in virtually every State correctional facility, including the penitentiary, and some of those petitions were successful. One need only look at the 48 pages of annotations under Md.Ann.Code art. 27, § 645A--the heart of the Post Conviction Procedure Act--to attest to the large number of petitions that were filed. The question, which appears not yet to have been decided, is whether laches, or waiver by inaction, applies to proceedings under the Act.

In Johnson v. Riddle, 562 F.2d 312 (4th Cir.1977), the Court applied a theory of laches to bar Federal habeas corpus relief where a claim similar to that made here--failure of counsel to file and perfect an appeal--was made 17 years after the conviction. Without much discussion, the Court held, in relevant part, at 314:

"Petitioner chose to raise these claims for the first time seventeen years after his trial and conviction, although nothing prevented him from doing so at a time when the State might have had a chance of reconstructing the record and surrounding events in an effort to explain why an appeal was never filed. We agree with the district court that petitioner's contention is raised too late to avail him.

. . . . .

In the present case, in contrast, we have only petitioner's allegation that he requested an appeal, and that counsel failed to perfect one. Based on this allegation, easily made after 17 years of silence but obviously difficult to disprove, petitioner would have us remand for an evidentiary hearing, where, presumably, the State should be required to rebut what, on its face, is a claim that might entitle petitioner to the relief he seeks....

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