Shortall v. State

• Decision Date: 26 April 2018
• Docket Number: No. 0170, Sept. Term, 2017,0170, Sept. Term, 2017
• Citation: 237 Md.App. 60,183 A.3d 820
• Parties: Purnell A. SHORTALL v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

237 Md.App. 60

183 A.3d 820

Purnell A. SHORTALL

v.STATE of Maryland

No. 0170, Sept. Term, 2017

Court of Special Appeals of Maryland.

April 26, 2018

Argued by: Anthony G. Gorski (Peter C. Hershey, Rich & Henderson PC on the brief) all of Annapolis, MD, for Appellant.

Argued by: D'Arcy Byrnes Talley (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Meredith, Graeff, Arthur, JJ.^*

Meredith, J.

At the conclusion of a jury trial in the Circuit Court for Dorchester County, Purnell Shortall, appellant, was convicted of five misdemeanor counts of failure to comply with COMAR 26.04.02.02E for disposing of sewage in a manner which may cause pollution of the ground surface, and five misdemeanor counts of failure to comply with COMAR 26.04.02.02F for disposing of sewage without an approved permit.¹ After sentencing, Shortall did not appeal, but, within a year, he filed a petition for post-conviction relief, claiming ineffective assistance of counsel. The post-conviction court denied his petition for post-conviction relief. Thereafter, Shortall filed an application for leave to appeal the post-conviction court's ruling. We initially denied Shortall's application for leave to appeal, but Shortall timely filed a motion for reconsideration, which we granted to permit him to pursue an appeal raising the following question:

Whether the post-conviction court erred in not finding that Mr. Shortall was denied his right to effective assistance of counsel when defense counsel failed to object to the trial court's instruction on the continuing violation theory?

For the reasons explained herein, we conclude that trial counsel was ineffective in failing to object to the incorrect instruction regarding multiple separate violations. We conclude that Shortall should have been convicted of only a single violation of each regulation, and we will vacate the four additional convictions as to each regulation.

Facts and Procedural History

There was evidence at trial of the following. On December 5, 2012, Richard Littlefield and Brian Baumgartner, who were both licensed environmental health specialists with the Maryland Department of the Environment, performed a routine inspection at the property of Shortall Building Supplies in Cordova, Maryland. During this inspection, the inspectors observed a white four-inch PVC pipe connected to a building on the property that was used for vehicle maintenance. The pipe "extend[ed] from a slope at the rear of the property directed towards the" nearby woods. Upon further investigation, the inspectors discovered evidence that "there was a recent discharge of sewage," namely, human feces and toilet paper, "lying on the ground just beyond the end of the pipe."

The following day, Ann Morse, the Director of Environmental Health for the Talbot County Health Department, visited the property of Shortall Building Supplies. During her conversation with Shortall, Shortall "admitted [to Morse] that it was a discharge pipe from the bathroom, that he put it there, and that he put the bathroom in the building." No specific corrective action was ordered at that time.

On December 7, Morse returned with Nony Howell, who was a regional consultant for onsite wastewater with the Maryland Department of Environment. At that time, Howell told Shortall that "the only corrective action to be taken was to stop using the pipe for now." Howell also told Shortall that he would have to cap the line.

On January 24, 2013, Howell returned to the property and noticed a sign over the bathroom door directing employees not to use the bathroom. The originally observed discharge was still present on this date.

Michelle Burroughs, Regulatory Compliance Engineer for the Maryland Department of the Environment, visited the property on March 15, 2013, to investigate a "potential unauthorized discharge to the waters of the State." Burroughs tested the sink near the bathroom in the maintenance building, and observed that the water from the sink flowed out of the discharge pipe. Burroughs told Shortall that the use of this pipe was "unauthorized discharge to waters of the State ...." On May 3, Burroughs returned to the property and saw that Shortall had capped the line. On May 16, when Burroughs made her final visit to the property, the pipe was covered with dirt.

Shortall was charged with five separate violations of two regulations under Title 26 of the Maryland Code of Regulations, for a total of ten regulatory violations. COMAR 26.04.02.02E stated: "A person may not dispose of sewage , body, or industrial wastes, in any manner which may cause pollution of the ground surface, the waters of the State, or create a nuisance." (Emphasis added.) COMAR 26.04.02.02F, stated: "A person may only dispose of sewage , body, or industrial wastes in accordance with an approved on-site sewage disposal permit or other method of disposal approved by the Approving Authority." (Emphasis added.) According to the Maryland Code (1982, 2014 Repl. Vol.), Environment Article ("Env."), § 9–343(a)(1), an individual who violates "any provision of or fails to perform any duty imposed by a ... regulation ... is guilty of a misdemeanor ...." Furthermore, Env. § 9–343(a)(3) states: "Each day on which a violation occurs is a separate violation under this subsection." (Emphasis added.)²

At the request of the State, the trial court gave the following non-pattern jury instruction regarding the multiple charges of violating the two regulations:

[THE COURT]: The Defendant is charged with the same listed offense on different dates. Essentially you'll have five—you'll have a charge that has five alleged dates, another charge that has five alleged dates. Pursuant to Maryland law for these specific charges every day on which a violation is still present constitutes a separate offense until the date the violation is corrected . Counsel, any exceptions to the jury instructions given?

[THE STATE]: No, Your Honor.

[DEFENSE COUNSEL]: No, Your Honor.

(Emphasis added.)

Following Shortall's conviction of five separate counts of violating each regulation, the court sentenced Shortall to two years in prison, all but 90 days suspended, plus five years of supervised probation and a fine and community service.

Shortall failed to appeal, but he filed a petition for post-conviction relief, asserting, inter alia , that defense counsel's failure to object to the above-quoted jury instruction deprived him of effective assistance of counsel because the instruction misstated the law and exposed him to multiple convictions for "a violation." At Shortall's post-conviction hearing, Shortall's trial counsel testified that his decision not to object resulted from his own research and interpretation of this unsettled area of law. He said:

[DEFENSE COUNSEL]: I don't know that I would call [the proposed jury instruction] unusual. I was concerned about the jury instruction regarding the continuing nature offense. And [the State] ... had cited various cases. We pulled those cases and read them and felt she had accurately represented the law as we understood it.

Defense counsel explained that his initial trial strategy was "to exclude anything ... that would reference a continuing violation. So we researched that. And coupled with our research and the cases that [the State] had provided we did not think that we had the legal argument." In addition to this research, defense counsel testified that he contacted local attorneys who specialize in this area of law for guidance:

[SHORTALL'S POST–CONVICTION COUNSEL]: And what was the scope of what you evaluated for purposes of that [proposed jury] instruction? In other words, you said you looked at the cases that [the prosecutor] provided. Did you look beyond those cases for example in other States or Federal jurisdictions?

[DEFENSE COUNSEL]: Honestly I believe we called your office. Peter (inaudible).

[SHORTALL'S POST–CONVICTION COUNSEL]: [My law firm]?

[DEFENSE COUNSEL]: Yes, and spoke with you. But outside of that we had—no, I can't say that definitively we looked at any Federal regulations or other States. We researched Maryland law to see ... what we could do with the continuum [sic].

The post-conviction court found that Shortall's defense counsel's failure to object did not constitute deficient performance, and the court therefore denied Shortall's ineffective assistance of counsel claim. The court also ruled, in the alternative, that there was no prejudice. The post-conviction court's opinion stated:

Petitioner claims that the "continuing violation" instruction given to the jury was a misrepresentation of § 9–343(a)(3) of the Environment Article and resulted in convictions for crimes he did not commit. The instruction given to the jury was:

The Defendant is charged with the same listed offense on different dates. Essentially you'll have five—you'll have a charge that has five alleged dates, another charge that has five alleged dates. Pursuant to Maryland law for these specific charges every day on which a violation is still present constitutes a separate offense until the date the violation is corrected. (Trial Transcript 8/6/14, at 37)

The Environment[ ] Article § 9–343(a)(3) provides, "Each day on which a violation occurs is a separate violation under this subsection."

Petitioner argues that the phrase "is still present" in the jury instruction materially differs from the statute's actual term: "occurs." In particular, Petitioner contends that the statute, by use of the term "occurs," requires the State to prove an actual affirmative "occurrence" on a particular date in order for the Petitioner to be convicted for an offense on that date. Petitioner argues that he was convicted on ten counts¹ not because the State proved an "occurrence" on each of the ten dates, but rather, because disposed waste remained on the site for the days covered by the counts. [Footnote 1: The ten counts refer to five counts of disposing [of] waste in a manner which may cause pollution

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