Lopez v. State

• Citation: 205 Md.App. 141,43 A.3d 1125
• Decision Date: 10 May 2012
• Docket Number: No. 2916,Sept. Term, 2008.,2916
• Parties: Jose F. LOPEZ v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

205 Md.App. 141

43 A.3d 1125

Jose F. LOPEZ

v.STATE of Maryland.

No. 2916, Sept. Term, 2008.

Court of Special Appeals of Maryland.

May 10, 2012.

Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., MATRICCIANI and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

SHARER, J.

Appellant, Jose F. Lopez, filed a petition for post-conviction relief, as amended and supplemented, in the Circuit Court for Montgomery County. Following a hearing, the court denied appellant's petition on the grounds that laches barred any relief.

Appellant timely appealed and presents the following question, as slightly reframed, for our review:

Did the post-conviction court erroneously deny post-conviction relief on the basis of laches?

We hold that laches is available to bar certain post-conviction relief in cases where sentence was imposed before October 1, 1995. However, because the record in this case is insufficient to determine whether appellant's petition is barred by laches, we shall vacate the judgment and remand for further proceedings consistent with the following opinion.

BACKGROUND

Appellant, represented by counsel, was tried by a jury in Case Numbers 39037 and 40877, both involving Cecilia R., 25 years old at the time of the offenses. Ms. R. testified that appellant attacked her in her residence at approximately 11:00 p.m. on July 22, 1985. She was asleep on her bed when she awakened to find appellant on top of her, holding a knife and a towel. Appellant used the towel to try to cover her eyes. After taking some of her money, appellant then attempted to have vaginal intercourse with her. Ms. R. testified that she could “feel his penis at the mouth of my vagina.” Appellant also threatened to kill her and, because she suffered from asthma, she thought appellant was going to suffocate her. Ms. R. identified appellant in court as her assailant. The jury convicted appellant of attempted first degreerape, attempted robbery with a dangerous and deadly weapon, and burglary.

Approximately a week after appellant's conviction in the above cases, the State and appellant, still represented by counsel, entered into a plea agreement in Case Numbers 39361, 39362, 39281, and 40129, all involving different victims than Ms. R. The agreement called for the State to recommend, and the Court to accept, a sentence of no more than two consecutive life sentences, accompanied by a waiver of any appellate relief in the cases involving Ms. R., as well as an agreement by the State not to prosecute appellant for any future crimes then unindicted or under investigation.

After appellant waived his right to a jury trial and agreed to plead guilty on the record, the State called Officer Donald Freitag, of the Montgomery County Police Department, who investigated a series of burglaries and rapes in the Silver Spring area in 1984 and 1985. The pertinent facts of those cases follow:

In Case Number 39361, on August 21, 1984, appellant broke into the home of 74–year–old Sylvia D. and forced her to submit to vaginal intercourse.

In Case Number 40129, on July 9, 1985, at approximately 1:30 a.m., appellant broke into the home of 41–year–old Sharon E. and assaulted her with intent to commit rape.

In Case Number 39281, again on July 9, 1985, at approximately 3:30 a.m., appellant broke into the home of 81–year–old Edna M., threatened to kill her with a knife, and forced her to submit to vaginal intercourse.

In Case Number 39362, on July 16, 1985, at approximately 2:00 a.m., appellant broke into the home of 85–year–old Lubba K. and forced her to submit to vaginal intercourse.

The court accepted the pleas and found appellant guilty of the aforementioned offenses.

On May 14, 1986, appellant appeared with counsel for sentencing in these cases, and the court imposed the sentences as follows:

In Case Number 40877, appellant was sentenced to life imprisonment for attempted first degree rape;

In Case Number 39281, appellant was sentenced to a consecutive sentence of life imprisonment for first degree rape.

The court then sentenced appellant to concurrent sentences for the remaining offenses, as follows:

Life for first degree rape and twenty years for burglary in Case Number 39361;

Twenty years for attempted armed robbery and twenty years for burglary in Case Number 39037;

Twenty years for burglary in Case Number 39281;

Twenty years for second degree rape and twenty years for burglary in Case Number 39362;

Twenty years for burglary and fifteen years for assault with intent to rape in Case Number 40129.

The aggregate sentence, therefore, was two consecutive life terms and concurrent terms of life plus 155 years.¹

Post-conviction

On April 15, 1997, appellant filed a petition for post conviction relief in all of the aforementioned cases, but withdrew this petition without prejudice on February 26, 1998.²

On October 3, 2005, appellant, unrepresented by counsel, filed identical petitions for post-conviction relief in the above six cases. In that petition, appellant alleged that his trial counsel, Paul B. DeWolfe ³ and Ricardo D. Zwaig ⁴, provided ineffective assistance of counsel on a number of grounds. Appellant also contended that appellate counsel, presumably Assistant Public Defenders Dennis M. Henderson and Mitchell Egber, denied him effective assistance of appellate counsel, also on a number of grounds.

The State filed an opposition to this petition on March 23, 2006, asserting that “[t]he [p]etitioner's allegations should be deemed waived, previously litigated or mere bold-faced [sic] allegations upon which relief can not be granted.”

On March 23, 2006, appellant, pro se, filed a motion to amend his petition for post-conviction relief in all six cases, again asserting ineffective assistance of both trial and appellate counsel. The State filed its opposition to this amended motion on April 12, 2006, again asserting the claims were waived or without merit.

On December 10, 2007, after the Public Defender's Office entered its appearance on behalf of appellant in this postconviction case, appellant filed a Supplement to Petition for Post Conviction Relief, again in all six cases.

In its timely response to appellant's Petition for Post Conviction Relief as Amended and Supplemented, the State first asserted that appellant's petition should be denied on the ground of laches. Specifically, the State argued:

The crimes committed by Lopez date from the summers of 1984 and 1985. One of Lopez's victims was 74 years old. Two other victims were 81 and 85 years old, respectively. Though Lopez's other two victims were 25 and 41 years old, respectively, when they were assaulted, the crimes against them were committed at least twenty years before Lopez filed his petition in October of 2005. It is hardly farfetched under these circumstances to suggest that the elderly victims are no longer alive and that the memories of the younger victims and other potential witnesses, even if they are still living, will have faded. Such circumstances, in the words of the Court of Appeals in [State v. Adams, 406 Md. 240, 958 A.2d 295 (2008) ], “pose[ ] a real potential for serious hardship and prejudice to the State's ability to mount ... new prosecution[s]” were Lopez's convictions set aside either in the instant post conviction proceeding or on appeal were a belated appeal granted.

The State also contended that, even if the claims were not barred by laches, appellant's allegations of error should be deemed waived. Specifically, the State contended that:

[A]ll of those claims should be treated as waived by virtue of [appellant's] having not raised them at the time of his trial and/or at the time of the guilty plea proceeding and/or at the time of sentencing, as well as by virtue of [appellant's] having waived and/or having not exercised his appellate rights, be they the right to note an appeal as of right or the right to file an application for leave to appeal from the convictions based on his guilty plea.⁵

On December 11, 2008, a hearing was conducted on the petition for post-conviction relief. At that hearing, the primaryissue was whether appellant's petition was barred by laches. The State proffered that the State's Attorney no longer had a file on any of the cases. In asking the court to deny the petition under the doctrine of laches, the State noted that, “we've got victims here who I can't imagine are still alive and all of it, given the expiration of time, the lapse of time, memory problems, and issues like that.”

Appellant's post-conviction counsel primarily relied on Creighton v. State, 87 Md.App. 736, 591 A.2d 561 (1991), where this Court previously held laches did not apply under the then-existing post-conviction statute. Recognizing that the General Assembly had enacted a 10–year statute of limitations in 1995, after Creighton, appellant's counsel also noted that the limitation was only imposed prospectively.

During its discussion with the post-conviction court, appellant's counsel also requested, should the court be inclined to dismiss the petition under laches, that appellant be permitted to testify, assisted by sworn interpreters, concerning his reasons for not filing the petition sooner. Specifically, it was proffered, appellant would testify to his attempts to obtain transcripts for purposes of appeal, the cost to reproduce those transcripts, and his attempts at obtaining assistance from the Public Defender.

The court initially indicated, “but I don't know that I, I don't know that I really even need to hear testimony.” The court was informed that transcripts of appellant's trial, guilty plea, and sentencing were available. ⁶ The court stated:

That doesn't change the ultimate issue, the ultimate issue being this was a guilty plea and he was advised as to what was going on and the condition of the plea was that he...