Pfoff v. State, 129

• Decision Date: 01 September 1990
• Docket Number: No. 129,129
• Citation: 583 A.2d 1097,85 Md.App. 296
• Parties: Thomas Lauren PFOFF v. STATE of Maryland. Post Conviction,
• Court: Court of Special Appeals of Maryland

Page 296

85 Md.App. 296

583 A.2d 1097

Thomas Lauren PFOFF v. STATE of Maryland.

Post Conviction No. 129, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Jan. 11, 1991.

Thomas Lauren Pfoff, pro se.

No answer filed on behalf of the State.

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

WILNER, Chief Judge.

On November 26, 1985, Thomas Lauren Pfoff, the applicant, was convicted by a jury in the Circuit Court for Baltimore County of first-degree sexual offense and kidnapping. Judge Hinkel presided at the trial. It appears that applicant filed a motion for new trial, which was denied. The convictions were affirmed by this Court in an unreported per curiam opinion, Pfoff v. State, No. 369, September Term, 1986, filed December 11, 1986.

Applicant filed his first post-conviction petition under Md.Ann.Code art. 27, §§ 645A-645J on February 20, 1987. That petition was denied by the Honorable William M. Nickerson, then a judge of the Circuit Court for Baltimore County. An application for leave to appeal was denied by this Court in Pfoff v. State, Application for Leave to Appeal, No. 76, September Term, 1987, filed December 28, 1987 (unreported), cert. denied, 314 Md. 193, 550 A.2d 381 (1988).

Applicant then sought Federal habeas corpus relief, complaining of ineffective assistance of counsel at his trial. The case was heard by the Honorable Walter E. Black of the United States District Court for the District of Maryland. Judge Black noted that applicant had presented three reasons why he believed that he had received ineffective assistance from his trial counsel:

(1) Counsel allowed the State to introduce perjured testimony from the prosecutrix based on a "free sketch" map which counsel knew to be inaccurate.

(2) Counsel knowingly permitted the State to use false evidence contained in a medical report and subsequently allowed the jury to be instructed with such evidence.

(3) Counsel allowed the petitioner to be prejudiced at his sentencing.

Judge Black determined that, while applicant had exhausted his second and third complaints in the State post-conviction proceeding, he had not raised the first complaint in the State courts. The judge reached this conclusion on the basis that the "State court argument merely raise[d] counsel's lack of diligence in asserting the alleged perjury, [whereas] the instant claim alleges serious intentional misconduct on the part of counsel, including collusion with the prosecution and intentional suppression of favorable evidence."

Judge Black dismissed the habeas corpus petition and directed applicant to file another State post-conviction petition.

Applicant filed his second post-conviction petition on July 26, 1990, and in it again complained that his trial counsel had rendered ineffective assistance. In setting forth his allegations of error, applicant simply repeated the three complaints which Judge Black had listed in his memorandum. Applicant did not offer any additional factual information to support his allegations.

The second petition was assigned, inappropriately, to Judge Hinkel. In an order issued September 26, 1990, Judge Hinkel dismissed the petition, without a hearing, on the ground that the issues contained in the petition had previously been resolved in the first post-conviction case. No reference was made in the order to Judge Black's contrary conclusion with respect to the first complaint, although a copy of Judge Black's memorandum opinion and order is in the record and was apparently attached to the post-conviction application.

Applicant now seeks leave to appeal Judge Hinkel's order, complaining that Judge Hinkel, who presided at his trial, should not have ruled upon the post-conviction action without his (applicant's) consent. Applicant's complaint has merit. Md.Rule 4-406(b) expressly provides that a judge who presides at trial may not also decide a petitioner's post-conviction case unless the petitioner consents. There is nothing in the record to show that the required consent was given, and, as the matter was disposed of without a hearing, it does not appear that applicant had any practical ability to object. As a consequence, this case must be remanded for another proceeding before another judge. Taylor v. Director, 1 Md.App. 23, 226 A.2d 358 (1967).

Upon remand, applicant must develop a proper record as to precisely what issues were before Judge Nickerson in the first petition and clarify just what complaints he is making in this petition. As we indicated, Judge Black concluded that the first complaint made in the Federal habeas corpus petition had not previously been presented to the State court, whereas Judge Hinkel apparently concluded that it had been presented to and resolved by Judge Nickerson. Because applicant's first petition for post-conviction relief is not in the record before us, we cannot determine whether Judge Black or Judge Hinkel was correct.

Ordinarily, we would conclude the Opinion at this point, as we have already set forth the reasons for our decision in the case. Because appellate opinions in these cases are so rarely published, however, and because we are beginning to see a number of recurring departures from the requirements governing post-conviction proceedings, we are taking the liberty of reviewing some of those requirements in order to remind petitioners, prosecutors, judges, and the bar generally of their existence. According to the 1989-90 Annual Report of the Maryland Judiciary, 231 such petitions were filed in the circuit courts in FY 1990. During the same year, this Court disposed of 135 applications for leave to appeal from the denial of post-conviction relief. These proceedings are not an insignificant part of our judicial business. They are obviously important to the petitioner, as well as to the State, and they sometimes present issues of law or fact that require very careful consideration. They should not be treated cavalierly by anyone.

The petitioner is the person who must initially set forth the allegation of error. Md.Rule 4-402 requires that the petition include "[t]he allegations of error upon which the petition is based," a "concise statement of facts supporting the allegations of error," a statement of "all previous proceedings, including appeals, motions for new trial and previous post conviction petitions, and the determinations made thereon," and a "statement of the facts or special circumstances which show that the allegations of error have not been waived." A petitioner is entitled to relief under the Post Conviction Procedure Act only if his complaint (1) is substantively cognizable under the Act and (2) has not "been previously and finally litigated or waived...." Md.Ann.Code art. 27, § 645A(a). See also § 645A(b) and (c) defining when an issue has been "finally litigated" or "waived." Because these are conditions precedent to relief, it is important that the petition address them with adequate precision to allow the court to rule upon them.

We are aware, of course, that most petitioners under the Act are untrained in the law, that many proceed pro se, and that often the underlying facts, procedural history, and legal propositions are not well articulated. Of course, if the petition is so deficient that the court cannot reasonably determine the nature of the complaint, it may be denied on that basis, as failing to comply with the requirements of the Rule. But where that is not the case--where, despite some vagueness in the language, the nature of the complaint is ascertainable--the court may not use imprecise language as an excuse not to give full consideration to the complaint. Petitioners may, indeed should, be held to substantial compliance with the requirements of Rule 4-402(a), but if the petition does substantially comply, it must be given due and fair...