Erica focuses on post-sentencing criminal practice, bringing to bear her experience, skills, and creativity.
AREAS OF EXPERIENCE
Erica’s experience focuses on post-sentencing criminal practice, including:
POST CONVICTION PETITIONS
In Maryland, a post conviction is filed after a direct appeal. You raise claims of ineffective assistance of counsel (trial and/or appellate counsel) or prosecutorial misconduct. You must file in the same court where your trial or plea was heard.
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.
PETITIONS FOR ACTUAL WRIT OF INNOCENCE
In 2009, the Maryland Legislature passed law permitting Maryland defendants to file a Petition for Writ of Actual Innocence. In order to prevail a defendant must present: 1) Newly discovered evidence. 2) That could not be discovered in time to move for a new trial. 3) That creates a substantial possibility that the result (of the trial) may have been different.
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.
APPEAL TO THE COURT OF SPECIAL APPEALS
If you are convicted after a trial or if the court denies your Motion to Correct Illegal Sentence or Petition for Writ of Actual Innocence, you have the right of direct appeal to the Court of Special Appeals. Maryland has two appellate courts, the Court of Special Appeals and the Court of Appeals, which is Maryland’s highest court.
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.
MOTIONS FOR MODIFICATION OF SENTENCE
Also known as Motion for Reconsideration of Sentence, this motion MUST be filed within 90 days of the date of your sentence. Typically, you file within 90 days and ask the court to hold it in abeyance or sub curia. That simply means you ask the court to hold the motion and not make a decision right now.
MOTIONS FOR DRUG TREATMENT
Under Maryland Health General Article 8-505, 8-507, the court may order a defendant to be evaluated to see if he has a substance abuse problem and is amenable to drug treatment.
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.
PETITIONS FOR WRIT OF ERROR CORAM NOBIS
This pleading is similar to a post conviction petition because you raise claims of ineffective assistance of counsel. You file a coram nobis petition when you are not in custody, on parole, or on probation.
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.
MOTIONS TO REOPEN
You may file a Motion to Reopen if you have lost post conviction. Unlike a post conviction, there is no deadline to file and no limit on the number of Motions to Reopen that you may file.
However, you are not guaranteed a hearing and the vast majority of these Motions are denied without a hearing. You must allege that the lawyer who represented you on post conviction was ineffective because she failed to raise a particular post conviction claim at the time of your initial post conviction. You are arguing that your closed post conviction should be reopened because new counsel has found errors. These are errors that post conviction counsel made in overlooking specific claims against trial counsel. If you lose, 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.
MOTIONS TO CORRECT ILLEGAL SENTENCE
A motion to correct illegal sentence may be filed at any time under Maryland Rule 4-345(a). The illegality must inhere in the sentence itself. What constitutes an illegal sentence that can be addressed by this rule is a fairly complex and nuanced area of the law.
One example is a sentence that is in excess of a binding plea. Another example is a sentence that is longer than what was spoken by the court at the time of sentencing. Yet another example is being sentenced for a crime for which you were not indicted. This crime is not a lesser included offense of the crime for which you were indicted. If you lose, you have the right of direct appeal in the Court of Special Appeals.
PETITIONS FOR WRIT OF CERTIORARI TO COURT OF APPEALS
If you lose your appeal in the Court of Special Appeals, you have the option of seeking cert in the Court of Appeals, Maryland’s highest court. The Court of Appeals is not required to hear your case and does not take most cases. First you must file a Petition for Writ of Certiorari with the Court of Appeals.
The Petition is your opportunity to persuade Maryland’s highest court that your case presents an interesting issue. The issue will potentially impact other cases in the future or will, perhaps, resolve some conflict in the current case law. The petition must be filed approximately 45 days from the date the Court of Special Appeals decision is filed or within 15 days after the mandate is filed. If the Court of Appeals deems your issue “cert worthy” then it will issue a briefing order and schedule oral argument.
APPLICATIONS FOR LEAVE TO APPEAL
If you lose your Post Conviction or Motion to Reopen you have 30 days to file an Application for Leave to Appeal with the Court of Special Appeals. Unlike a direct appeal, the Court of Special Appeals does not have to hear your case. The Court of Special Appeals grants Applications for Leave to Appeal in only a tiny number of cases.
An attorney may not accompany you to your parole hearing, but an attorney can review your base file, make a presentation to a parole commissioner on your behalf, and submit documents to your file including a home plan, letters of reference, etc.