Flansburg v. State, 822

• Decision Date: 01 September 1994
• Docket Number: No. 822,822
• Parties: John FLANSBURG, v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 394

103 Md.App. 394

653 A.2d 966

John FLANSBURG, v. STATE of Maryland.

No. 822, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Feb. 10, 1995.

Jennifer Page, Law Student admitted pursuant to Rule 16 (Stephen E. Harris, Public Defender and Nancy S. Forster, Asst. Public Defender on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City on the brief), Baltimore, for appellee.

Argued before BISHOP, ALPERT and CATHELL, JJ.

ALPERT, Judge.

We consider in this appeal whether a claim that ineffective assistance of counsel arising out of a probation revocation proceeding may be reviewed in a post conviction proceeding under Article 27, § 645A. We shall hold that it may.

On December 5, 1985, appellant, John Flansburg, pled guilty in the Circuit Court for Baltimore City to one count of a second degree sex offense. He was sentenced to seven years, with four years suspended, and five years probation upon release. In 1990, after his release and while still on probation appellant was convicted of battery. Approximately a year later, appellant was convicted of second-degree murder, again while still on probation. On May 21, 1991, appellant admitted that he had violated his probation and submitted to the judgment of the court. The Honorable Clifton J. Gordy, Jr. revoked appellant's probation and directed execution of the three-year suspended sentence, to be served consecutively to a fifteen-year sentence imposed for his murder conviction.

Appellant was represented by a public defender at the probation revocation hearing. After the hearing, appellant asked his attorney on two occasions to file a motion for modification or reduction of the three-year sentence directed to be executed. His attorney neglected to file the motion and submitted an affidavit to the court admitting that he was requested to file the motion but failed to do so within 90 days as required by Maryland Rule 4-345.

On February 5, 1994, appellant filed a petition for post conviction relief with the Circuit Court for Baltimore City, contending that he was denied his Sixth Amendment right to effective assistance of counsel by virtue of his attorney's failure to file the motion for modification. Appellant requested that the court conduct a hearing on the matter and grant a belated motion to modify Judge Gordy's sentence.

Appellant's petition was dismissed by the court in a written opinion. The court found that Maryland's Post Conviction Procedure Act, Md.Ann.Code art. 27, §§ 645A-J, did not permit review of "the procedural regularity of a probation revocation proceeding, apart from a challenge to the underlying conviction." Appellant subsequently filed an application for leave to appeal with this Court. We granted appellant's application and ordered the parties to brief the following question, which has heretofore not been addressed by the Maryland courts:

Whether the manner in which a revocation of probation hearing is conducted may be reviewed by a post conviction proceeding instituted under the Maryland Post Conviction Procedure Act?

Discussion

a. The Right To Effective Assistance of Counsel At Probation Revocation Proceeding

The State argues preliminarily that appellant's claim of ineffective assistance of counsel must fail because appellant did not have a constitutional right to an attorney at the probation revocation proceeding in the circuit court. Where there is no constitutional right to counsel, the State argues, a defendant cannot be deprived of his or her Sixth Amendment right to effective assistance of counsel.

We disagree. Appellant clearly had a statutory right to an attorney at the probation revocation proceeding below. Maryland Rule 4-215(a) requires that the court "[i]nform the defendant of the right to counsel" at his probation hearing and conduct an waiver inquiry if he appears without an attorney. ¹ The Court of Appeals has held that this right is not only statutorily protected, but is guaranteed by the constitution. Vincenti v. State, 309 Md. 601, 604, 525 A.2d 1072 (1987); Maus v. State, 311 Md. 85, 111-12, 532 A.2d 1066 (1987); Bryan, 284 Md. at 158 n. 5, 395 A.2d 475. ² Thus contrary to the State's contentions, a defendant has a constitutional right to an attorney at a probation revocation proceeding. Once granted, the "right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970) (citations omitted). ³ We hold, therefore, that appellant had a constitutional right to counsel at his probation revocation hearing and, therefore, had the right to have a reasonably competent counsel represent him. Whether the failure on the part of his attorney to file the motion for modification would actually constitute ineffective counsel in violation of appellant's Sixth Amendment right is not before us. ⁴ This is a mixed question of law and fact which must be addressed after a full factual inquiry. Strickland v. Washington, 466 U.S. 668, 698 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The question remains, however, whether appellant's Sixth Amendment claim may be heard in a proceeding brought under Maryland's Post Conviction Proceeding Act.

b. Review of Claim of Ineffective Assistance of Counsel under Maryland's Post Conviction Procedure Act

Section 645A of the Post Conviction Procedure Act grants a person convicted of a crime the right to institute a proceeding to set aside or correct a sentence. Md.Ann.Code, art. 27, § 645A(a). According to subsection (e) of 645A, this remedy "is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court...." Id. 645A(e). The purpose of section 645A is "to consolidate into one statutory procedure all the remedies previously available for collaterally challenging the validity of a criminal conviction or sentence." Barr v. State, 101 Md.App. 681, 687, 647 A.2d 1293 (1994). In a comment to the Uniform Post Conviction Procedure Act, upon which Maryland's law is based, it was noted:

The aim of [section 645A] is to bring together and consolidate into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence of imprisonment.... [It] is aimed to incorporate and protect all rights presently available under habeas corpus, coram nobis, or other remedies. The change is a procedural one.

Uniform Acts, Post-Conviction Procedure Act, 11 U.L.A. 486-87 § 1 (1974).

Section 645A(a) sets forth the types of claims cognizable under the Act:

the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ or coram nobis, or other common-law or statutory remedy....

(emphasis added).

A "collateral attack" of a sentence typically involves matters outside the record which the defendant could not have raised during trial or on appeal. ⁵ In numerous decisions, the Maryland courts have indicated that a claim of ineffective assistance of counsel is such a "collateral attack" which may properly be heard in a post conviction proceeding. Pressley v. Warden, 242 Md. 405, 408, 219 A.2d 25 (1966); Hamm v. Warden, 238 Md. 633, 635, 209 A.2d 785 (1965); Bryant v. Warden, 235 Md. 658, 660, 202 A.2d 721 (1964); Hyde v. Warden, 235 Md. 641, 646-47, 202 A.2d 382 (1964); Ward v. State, 52 Md.App. 88, 94-95, 447 A.2d 101 (1982). Indeed, a post conviction proceeding, rather than a direct appeal to this Court, has long been considered the "normal" or more appropriate avenue for adjudication of a claim of ineffective assistance of counsel. Colvin v. State, 299 Md. 88, 112-13, 472 A.2d 953 (1984), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984); Harris v. State, 295 Md. 329, 337-38, 455 A.2d 979 (1983); McCloud v. State, 77 Md.App. 528, 536-37, 551 A.2d 151 (1989), rev'd on other grounds, 317 Md. 360, 564 A.2d 72 (1989); Watkins v. State, 59 Md.App. 705, 714, 478 A.2d 326 (1984). In Johnson v. State, 292 Md. 405, 434-35, 439 A.2d 542 (1982), the Court of Appeals opined:

[U]nder the settled rules of appellate procedure, a claim of ineffective assistance of counsel not presented to the trial court generally is not an issue which will be reviewed initially on direct appeal, although competency of counsel may be raised for the first time at a section 645A post conviction proceeding.

(Citations omitted).

The rationale for this historical preference is that the circuit court, in a post conviction proceeding, is better able to conduct fact-finding into allegations of ineffective counsel and determine whether an attorney's conduct meets the applicable standards of competence. Colvin, 299 Md. at 113, 472 A.2d 953. In Johnson, the Court explained:

In essence, it is because the trial record does not ordinarily illuminate the basis for the challenged acts or omissions of counsel, that a claim of ineffective assistance of counsel is more appropriately made in a post conviction proceeding pursuant to [§ 645A].... Upon such a collateral attack, there is presented an opportunity for taking testimony, receiving evidence, and making factual findings concerning the allegations of counsel's incompetence. By having counsel testify and describe his or her reasons for acting or failing to act in the manner complained of, the post conviction court is better able to determine intelligently whether the attorney's actions met the applicable standard of competence. Where ... the record...