Post Conviction in Maryland. What it is and what it isn’t.
Who?
Everyone who is convicted of a crime in Maryland has the right to file a petition for post conviction relief if they are incarcerated, on probation or on parole. If none of these apply, you may be able to file a Petition for Writ of Error Coram Nobis, but that will be covered in a different post.
When?
If you were convicted after 1995, you have ten years from the date of your sentence to file. YOU MUST FILE WITHIN YOUR TEN YEAR DEADLINE IN ORDER TO PRESERVE THIS RIGHT. Your hearing may take place after your ten year deadline and you may even supplement with additional claims after your ten year deadline, but your initial petition must be filed by your deadline. If you were convicted before 1995, the ten year deadline does not apply, but I will cover that in more detail in another post.
Where?
You file in the court where you had your trial or guilty plea. Your post conviction will be heard by a different judge than the judge who presided over your trial or guilty plea.
What?
Typically people raise claims of ineffective assistance of counsel in a post conviction petition. Under the 6th Amendment of the United States Constitution you are entitled to effective assistance of counsel. In order to prevail on a post conviction petition you must show two things:
1.) that trial counsel made a mistake; and,
2.) “prejudice.” Prejudice simply means that the mistake was a serious one that potentially changed the outcome of the trial. In other words, only a serious error counts for purposes of post conviction relief.
Claims of prosecutorial misconduct can also be raised in a post conviction petition. e.g., There was a cooperating State’s witness, maybe a jailhouse informant, who testified against you in your case. That witness got a deal in exchange for his cooperation. That deal was not disclosed to you and your attorney.
You are entitled to a hearing on your first post conviction petition.
During your post conviction proceedings, the burden is on you to persuade the court that something went wrong in your trial or guilty plea. For example, if you want to argue that your trial counsel was ineffective for failing to put on an alibi witness, you cannot simply make a bald allegation. You must present evidence regarding the alibi itself.
If you win your post conviction, the remedy is a new trial. It is not the same as a “not guilty.” You are placed in the same position that you were in at the time that you were charged. The State can retry you. A post conviction win is, with some exceptions, sort of like a do over.
You are entitled to representation on post conviction. If you cannot afford private counsel, you will be appointed a public defender.
I will cover Motions to Reopen a Closed Post Conviction in another post.
If you lose your post conviction, you may file an Application for Leave to Appeal within thirty days off the date of the decision. I will explain that right in more detail in another post.
What it is not:
The post conviction phase of your case is not really about your guilt or innocence. It is about the process and whether the process worked the way that it is supposed to.
The kinds of claims that may be raised at the post conviction phase of your case are limited. The post conviction hearing is not a new trial and is not, in and of itself, a chance to retry your case.
A post conviction petition is not a guaranteed opportunity to negotiate your way into a lower sentence.
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how long do the state to respond to a post conviction
15 days under the rules, but they routinely flout this requirement with no consequence
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What all do I need to have in my pcr applications for the allegations against my lawyer and case, do I have to write it in a legal way and have other cases supporting it. Or can I just tell them simply in my words the issue.
How long does it take to get a Post Conviction? Ms.
You should consult with an attorney. You have the right to be represented by the Office of the Public Defender on post conviction if you cannot afford a private attorney.
I would like to known how how a applicants motion for modification of sentence works ?do they give you a hearing date or do you have to file paper work ?I’ve already been granted it so what is my nexted step?Can you email me info please
Simply wanna state that this is extremely helpful, Thanks for taking your time to write this.
I have some questions. Could I call and have a free consultation? My husband and I can not afford a private attorney. His case is already listed in post conviction.
In a case where a defendant always maintained self defense and trial lawyer did not call witnesses to “prove” this claim, do the witnesses have to testify at the post conviction?
I found this page looking for more info on PCR. It has been very helpful. I was told, by my friend, that the ‘courts’ did not want to go to trial and that they now want to make a deal. I was unsure what that meant and started looking into it. Based on this I am not sure that sounds correct. I have been given the impression that release could happen within months despite multiple felony charges.
For the past twenty years I have worked as a prison law clerk in the State of Florida handling postconviction cases, and have been a paralegal for forty years in both Maryland and Florida. The one caveat: I worked those twenty years in the law library as a prisoner. Released August 1, 2017.
I’m doing some cases for a firm called Postconviction Solutions, LLC, via the internet and two of those cases happen to be DC cases.
What I am looking for is freelance out-of-office to review cases, write an analysis and draft motions. If you are interested my home phone is 410-956-3084.
I filed a PCR because I know for a fact that nothing illegal was found on my computer. How do I get forensics done on the computer in evidence to prove it?
I’d have to know more about the case to be able to comment.
Every case is different. Generally speaking, if the allegation in post conviction is that a lawyer was ineffective for not putting on witnesses who could have substantiated a claim of self defense, then yes, the Petitioner needs to put on the witnesses who were available to testify at the time of the trial. You should consult with a post conviction attorney directly about this issue.