Sherrod v. State
| Decision Date | 02 August 2021 |
| Docket Number | 1329-2020 |
| Parties | KEVIN LEE SHERROD v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City Case Nos.: 194266024-26
Shaw Geter, Zic, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
On May 26, 1995, Kevin Lee Sherrod, appellant, pleaded guilty in the Circuit Court for Baltimore City to first-degree murder, two counts of attempted first-degree murder, and use of a handgun in the commission of a crime of violence. On July 6, 1995 the court sentenced him to life imprisonment for first-degree murder, a concurrent term of life imprisonment for one of the counts of attempted first-degree murder, a concurrent term of 30 years' imprisonment for the other count of attempted first-degree murder, and a concurrent term of 20 years' imprisonment for the handgun offense.[1]
The factual background of appellant's offenses is immaterial to the resolution of the issues in this appeal. Suffice it to say that appellant went to the home of his estranged girlfriend, who was the mother of his 21-month old daughter produced a pistol, shot, but did not kill, both his ex-girlfriend and his daughter, and shot and killed his ex-girlfriend's brother.
In 2019, appellant, acting pro se, filed a paper titled "motion to reopen post conviction proceedings or in the alternative second petition for post conviction relief pursuant to the 2nd post conviction provision of Article 27 § 645A and the ex post facto prohibitions."[2] In it, he contended that, for two reasons he was entitled to file a second petition for post-conviction relief even though the General Assembly, in 1995, reduced, from two to one, the number of post-conviction petitions a person could file. For reasons more fully explained below, according to appellant, the General Assembly made that legislative change, and then repealed it just days later. Also, he claims that change in the law that effectuated the reduction in the number of petitions a person could file violated certain case law and provisions of the Maryland Declaration of Rights and the United States Constitution. He also contended that he was denied his right to effective assistance of counsel for failing to file a motion for modification or reduction of sentence.
On June 12, 2020, the circuit court summarily denied appellant's petition/motion. Appellant sought leave to appeal that decision, which, on January 29, 2021, we granted and transferred the case to our regular docket. In this appeal, appellant claims that the circuit court erred and/or abused its discretion in denying his petition/motion. We disagree and affirm.
In 1995, the General Assembly passed, and the governor signed into law, two bills that affected the same statutory provision (then Article 27 § 645(a)(2)) concerning the filing of post-conviction petitions in Maryland. One of the laws (Ch. 110) reduced, from two to one, the number of post-conviction petitions a person could file, and, in place of the second petition, created a new provision permitting the court to reopen previously concluded post-conviction proceedings "in the interests of justice."[3] The other bill (Ch. 258) created a ten-year time limit to file a post-conviction petition which began running upon imposition of sentence.
Chapter 110 of the 1995 Laws of Maryland was signed by the governor on April 11, 1995 and became effective on October 1, 1995. The law was intended to apply to all criminal cases regardless of when they occurred. That meant that a post-conviction petitioner had until October 1, 1995 to file a second petition. Grayson v. State, 354 Md. 1, 5 (1999). In pertinent part, Chapter 110 read as follows:
Chapter 258 of the 1995 Laws of Maryland was signed by the governor on May 9, 1995 and became effective on October 1, 1995. This law was not intended to have any retroactive application, and therefore the 10-year deadline had no application to post-conviction proceedings in which the sentence had been imposed before the effective date of the act. In pertinent part, Chapter 258 read as follows:
Appellant first contends that, because the governor signed Chapter 258 after he signed Chapter 110, that Chapter 258, which contains the two-petition limit in subsection (a)(2)(I), repealed the one-petition limit in Chapter 110 "[d]ays later." Therefore, according to him, he is entitled to file a second petition. He asserts that the two-petition limit was not removed until Article 27 § 645A was moved into the Criminal Procedure Article in 2001.
We first note that "[i]t is a settled principle of Maryland law that the General Assembly is presumed to be aware of legislation it has enacted." Montgomery Cty. v. Robinson, 435 Md. 62, 78 (2013) (citation omitted). Moreover, "[t]he circumstances surrounding [an] amendment [to the law] must be considered … in order to determine the legislature's intent." In re Crim. Investigation No. 1-162, 307 Md. 674, 689 (1986). In addition, "[l]egislative enactments treating the same subject matter should generally be construed harmoniously, especially if enacted at the same time." Id. at 690.
We find it unlikely in the extreme that the General Assembly intended to pass a law, and then repeal it just days later. In context, the two laws can be, and were, easily harmonized into Article 27 § 645A. Appellant ignores the fact that subsection (a)(2)(I), which was not affected by Chapter 258, is merely repeated in that session law because, at that time, it represented the existing law. Appellant's argument also fails to acknowledge that capitalization in a session law indicates matter added to existing law. Finally, if appellant were correct, it would lead to the absurd result that the two-petition limit would have no effect on persons sentenced prior to October 1, 1995 because, as noted earlier, Chapter 258 had no effect on persons sentenced prior to that date.
Alternatively, appellant contends that, for two reasons, Chapter 110, which reduced the number of petitions a person could file, should not be applied retroactively. He claims that, pursuant to Mason v. State, 309 Md. 215 (1987), the elimination of the second petition is not allowed because it interferes with "substantive rights previously enjoyed." He also asserts that the elimination of the second petition violated the prohibitions on ex post facto laws found in the Maryland Declaration of Rights and United States Constitution.
In Mason, in the absence of any indication from the General Assembly about whether the 1986 change in the law which created the two-petition limit was to be applied prospectively or retrospectively, the Court of Appeals determined that the two-petition limit should not be given retrospective application, and therefore, persons sentenced before the effective date of that law (July 1, 1986) could file an unlimited number of petitions. That is not the situation with Chapter 110. Chapter 110 included uncodified language explicitly making the two-petition limit fully retroactive to persons sentenced before the effective date of that law (October 1, 1995), and also contained language permitting the court to process second petitions filed before the effective date of the law "in due course." That uncodified language is as follows:
As such, appellant's reliance on Mason is misplaced because that case dealt with the situation where the General Assembly was silent as to retrospectivity and, in this case, the General Assembly was not.
Appellant next contends that the elimination of the second petition violated the prohibitions on ex post facto laws found in the Maryland Declaration of Rights and United States Constitution.
The question of whether the application of a statute violates the ex post facto clauses of the federal and state constitutions is a legal issue. See, e.g., In re Nick H., 224 Md.App. 668, 681 (2015). Consequently, we conduct review of the decision of the circuit court de novo.
Article I, Section 10, of the United States Constitution provides that "[n]o State ... shall pass any ... ex post facto Law[.]" Article 17 of the Maryland Declaration of Rights likewise declares: "That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and...
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