If you were convicted after October 1, 1995, you have ten years from the date you were sentenced to file. You must be incarcerated, on parole, or on probation. You may amend with additional claims after you file and you are guaranteed a hearing.  The hearing will be before a different judge than the judge who presided over your trial or plea. Typically, if you are successful, you will receive a new trial. If you successfully raise ineffective assistance for failing to file a motion for modification of sentence, you win the right to file that motion belatedly. If your post conviction is denied, you have the right to file an Application for Leave to Appeal with the Court of Special Appeals. If you win, the prosecution has the right to file an Application for Leave to Appeal.

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The newly discovered evidence has to be argued in the context of all of the evidence against you. The Petitioner must convince a judge that if the newly discovered evidence was known at the time of the trial, the jury would not have convicted. The Petitioner must also demonstrate that the newly discovered evidence could not have been discovered by the trial attorney exercising due diligence. A 2015 Maryland Court of Appeals decision prevents those who have pleaded guilty from filing Petitions for Writ of Actual Innocence.  However, in 2018 the Maryland legislature passed a bill permitting those who pleaded guilty by way of an Alford plea to file.  If you lose, you have the direct right of appeal in the Court of Special Appeals. If you win, the prosecution cannot appeal.

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The right of “direct appeal” means the court will hear your case.  You must note your appeal within 30 days of the date that sentence was imposed from a trial or 30 days from date of the court’s decision in a Motion to Correct Illegal Sentence or Petition for Writ of Actual Innocence.  Noting your appeal means you inform the circuit court that you wish to appeal and you pay the filing fee.

After that, the Court of Special Appeals will issue a scheduling order that will inform you when your brief is due, when the State’s brief is due, and the potential dates for oral argument. Oral argument takes place in front of a panel of 3 judges in Annapolis. Criminal defendants are not transported to argument, but the arguments are open to the public. The defendant, now referred to as an Appellant, may raise issues of court error, i.e. whether the trial court made a mistake in overruling or sustaining objections during the trial and its ruling on motions. Ineffective assistance of counsel claims are usually not heard at this stage.

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The first step is to convince the court to order the evaluation, conducted by the Maryland Department of Health. If the evaluation indicates that the defendant is a good candidate for treatment, the next step is to persuade the court to suspend the balance of the defendant’s sentence. Afterwards, the court will place him on probation. He will be ordered into residential drug treatment at a facility designated by the Department of Health as a condition of probation.  

Once the residential, inpatient treatment is complete, the defendant remains on probation until he has completed his term of probation. If you lose a Motion for Drug Treatment, generally, you cannot appeal.  However, there is no limit on the number of petitions you may file or deadline for filing.  A change in the law (as of October 2018) requires defendants convicted of violent crimes to have served 50% of the sentence before a court may order them into treatment.

You also file a coram nobis if you receive a probation before judgment (PBJ).  In addition to alleging an ineffective assistance of counsel claim, you must also demonstrate “a significant collateral consequence.”  The court only recognizes two consequences as qualifying as significant collateral consequences:
1) Immigration consequences as a result of a conviction such as deportation. 2) Enhanced federal sentencing as a result of a prior conviction.