Circuit Court for Baltimore County
Case No. 03-K-10-001691
UNREPORTED*
IN THE APPELLATE COURT
OF MARYLAND
No. 1440
September Term, 2021______________________________________SEAMUS ANTHONY COYLEv.
STATE OF MARYLAND______________________________________
Nazarian,
Reed,
Zic,
JJ.
______________________________________
Opinion by Reed, J.
Dissenting Opinion by Nazarian, J.
______________________________________
Filed: March 25, 2024

*This is an unreported opinion. This opinion may not be cited as precedent within the ruleof stare decisis. It may be cited for its persuasive value only if the citation conforms to Md.
Rule 1-104 (a)(2)(B).

— Unreported Opinion —______________________________________________________________________________In the instant appeal, the Appellant, Seamus Anthony Coyle was charged bycriminal indictment in the Circuit Court for Baltimore County with first-degree murder,
conspiracy to commit first-degree murder, conspiracy to commit first-degree assault, anduse of a handgun in the commission of a felony. Following a jury trial that spanned fourdays, the jury found Coyle guilty of first-degree murder, conspiracy to commit first-degree
murder, and use of a handgun in the commission of a crime of violence. Following
sentencing1, Coyle exercised his right to a direct appeal to this Court and alleged various
errors by the trial court. On appeal, we affirmed the convictions.
Coyle subsequently filed a Petition for Post-Conviction Relief, and a hearing washeld on the Petition on October 22, 2020. Following the hearing, the trial court denied thePetition for Post-Conviction Relief. Next, Coyle filed an Application for Leave to Appeal,
which we granted on November 17, 2021. In bringing this appeal, Appellant presents threeissues for appellate review, which we reorder and restate as follows:
I.

II.

III.

Under the Public Defender Act, was Coyle’s right to effective counsel
violated when counsel failed to timely file the petition for writ ofcertiorari?
When the Office of the Public Defender appointed counsel andapproved the petition of certiorari being filed, was Coyle entitled toeffective assistance of counsel?
Did the trial court err in holding that Coyle must establish that his
petition for writ of certiorari would have been granted by the Supreme
Court of Maryland?2

1

The court sentenced Coyle to concurrent sentences of life in prison for first degree
murder, twenty-five (25) years for conspiracy to commit murder, and five (5) years without
possibility of parole for the use of a handgun in the commission of a crime of violence.
2

Appellant identifies the following three questions for appellate review in his brief:1

— Unreported Opinion —______________________________________________________________________________For the reasons outlined infra, we affirm the trial court and deny Coyle the right to file abelated petition for writ of certiorari to the Supreme Court of Maryland.
FACTUAL & PROCEDURAL BACKGROUNDOn March 1, 2010, William Raymond Porter was shot and killed at a Hess gas
station in Towson. An investigation into the shooting revealed that Walter Bishop shot the
decedent after Porter’s wife, Karla Porter hired him and supplied a firearm for thecommission of the crime. The investigation also revealed other people participated in theconspiracy to kill Mr. Porter, including Seamus Coyle (Ms. Porter’s nephew) and Meagan
Porter (Ms. Porter’s daughter). Coyle was charged as a co-conspirator in the murder. At
trial, the State’s theory was that Coyle arranged for Bishop to commit the murder on Ms.
Porter’s behalf. The evidence showed that Ms. Porter contacted various people in an
attempt to hire someone to kill her husband, including her daughter’s boyfriend.
At trial, the State introduced evidence to prove their theory by displaying phonerecords that demonstrated a pattern of communication. First, Ms. Porter would call her
nephew and then he would immediately call Bishop. Further evidence of the conspiracy

I.

II.

III.

Was Mr. Coyle denied his right, under the Public Defender statute, to theeffective assistance of assigned public defender appellate counsel who failed
to timely file a petition for writ of certiorari?
When the Office of the Public Defender appointed counsel to Mr. Coyle andapproved of assigned counsel’s determination that a petition for writ ofcertiorari should be filed, was Mr. Coyle entitled to the effective assistanceof counsel in filing such a petition?
Must prejudice be presumed when, due to ineffective assistance of counsel,
Mr. Coyle was denied the right to file a petition for writ of certiorari and did
the post-conviction court err in holding that Mr. Coyle must establish that thepetition would have been granted?
2

— Unreported Opinion —______________________________________________________________________________

included testimony that all three parties met at two meetings to discuss the plan to kill Mr.
Porter.3 Further evidence from the trial will be discussed as needed later in the opinion.
Following the jury trial, the jury found Coyle guilty of first-degree murder,
conspiracy to commit first-degree murder, and use of a handgun in a crime of violence or
felony. The trial court sentenced him to concurrent sentences of life in prison for firstdegree murder, twenty-five (25) years for conspiracy to commit murder, and five (5) years
without possibility of parole for use of a handgun in a crime of violence. Coyle timely filed
an appeal following his convictions and alleged that the trial court committed error
throughout the course of the trial.4 On appeal, this Court affirmed the trial court in an
unreported opinion. Seamus Anthony Coyle v. State, No. 0997, Sept. Term 2012, filed: July11, 2014. Following the decision, counsel for the Appellant was preparing to file a Petition
for Writ of Certiorari but missed the deadline to file with the Supreme Court of Maryland.
On June 29, 2020, Coyle filed a Petition for Post Conviction Relief and Request for
Hearing. Coyle alleged various errors by both trial counsel and appellate counsel. Namely,

The parties met at a local Wal-Mart where Bishop agreed to Ms. Porter’s plan tomurder her husband. The second meeting was at the Bel-Loc Diner where Ms. Porter gave
Bishop a firearm to use in the commission of the murder.
3

Coyle presented four issues for review on his direct appeal: “(1) Did the trial court
err in excluding Walter Bishop’s statement as inadmissible hearsay? (2) Did the trial court
err in excluding Meagan Porter’s complete videotaped statement as inadmissible hearsay?
(3) Did the trial court err in precluding Appellant from presenting particular character
evidence regarding whether Appellant “gets into conflict or arguments,” was a “combative
person,” or had a “tendency to engage in hostile conduct?” and (4) Did the trial court err
in denying Appellant’s motions for judgment of acquittal based on the sufficiency of theevidence?”43

— Unreported Opinion —______________________________________________________________________________

Coyle argued that trial counsel rendered ineffective assistance of counsel by failing to seek
accommodations for his hearing impairment, failing to object to questions during voir dire,failing to strike a juror, failing to object to the state’s improper closing argument, andfailing to file a motion to modify sentence at the conclusion of trial. Coyle also argued forrelief by alleging that appellate counsel was ineffective by failing to meet the deadline tofile his Petition for Writ of Certiorari on time to the Supreme Court of Maryland. The State
filed an Answer to the Petition responding to each point in the Petition and requested that
the Petition be denied.
The post-conviction court held a hearing on the Petition on October 22, 2020. The
court issued a Memorandum Opinion and Order Denying Post Conviction Relief on March
18, 2021. The court ultimately concluded that there was no basis for relief based on Coyle’s
various arguments. As to Coyle’s argument that his appellate counsel was ineffective, thecourt ruled that Coyle did not suffer prejudice under the Strickland test and, even further,stated that “there is not the slightest possibility that the Court of Appeals of Maryland5
would have granted Certiorari in this action had a Petition been timely filed.” Furthermore,
the court denied Coyle’s Petition for Post Conviction Relief in its entirety.
Following the decision by the court, Coyle filed an Application for Leave to Appeal
to this Court on April 19, 2021, which was granted. The instant appeal followed.

5

On December 14, 2022, the name of the Court of Appeals was changed to theSupreme Court of Maryland.
4

— Unreported Opinion —______________________________________________________________________________DISCUSSIONI.

Right to Counsel under the Public Defender Statute
A. Parties’ Contentions

Coyle contends that he had a right to appellate counsel to file a writ of certiorari to
the Supreme Court of Maryland under the Public Defender Act (“PDA”), as amended in2008. He argues that the statute extends the right to counsel for all stages of an appeal,
including the filing of discretionary appeals such as a petition for writ of certiorari.
Specifically, Coyle argues that the statute was amended in 2008 to remove specificlanguage that the right to counsel only encompassed an appeal through the intermediateappellate court. Finally, Coyle argues that the rights conferred in the Public Defender Act
trump the right to counsel as set forth in Md. Rule 4-214, discussed in further detail infra.
We disagree with all of these contentions.
The State responds by arguing that Coyle does not have the right to counsel under
the Public Defender Act to file discretionary appeals. The State disagrees that the Public
Defender Act prevails over Md. Rule 4-214. After reviewing the legislative history for the
Public Defender Act, the State contends that the Act was not substantively changed in2008. The State further argues that deletions were made to the Act to remove specificlanguage that was determined to be surplusage.
B. Standard of Review

5

— Unreported Opinion —______________________________________________________________________________“[W]here an order [of the trial court] involves an interpretation and application of
Maryland constitutional, statutory or case law, our Court must determine whether the trial
court’s conclusions are legally correct under a de novo standard of review.” Mayor andCity Council of Baltimore v. Thornton Mellon, LLC, 478 Md. 396, 410 (2022) (internal
citation and quotations omitted). Due to the argument that Coyle had a right to counsel
under statutory authority, we conduct a de novo review.
C. Analysis
Coyle asserts his claim that he had a right to counsel for his discretionary appeal
under the Public Defender Act as enacted in Md. Code Ann., Crim. Proc. § 16-204. In
whole, this statute provides:
Representation provided by Public Defender(a) Representation of an indigent individual may be provided in accordance withthis title by the Public Defender or, subject to the supervision of the Public
Defender, by the deputy public defenders, district public defenders, assistantpublic defenders, or panel attorneys.
Proceedings eligible for representation(b) (1) Indigent defendants or parties shall be provided representation under thistitle in:(i)a criminal or juvenile proceeding in which a defendant or party isalleged to have committed a serious offense;(ii)
a criminal or juvenile proceeding in which an attorney isconstitutionally required to be present prior to presentment being
made before a commissioner or judge;(iii) a postconviction proceeding for which the defendant has a right to an
attorney under Title 7 of this article;(iv) any other proceeding in which confinement under a judicial
commitment of an individual in a public or private institution may
result;(v)
a proceeding involving children in need of assistance under § 3-813
of the Courts Article; or(vi) a family law proceeding under Title 5, Subtitle 3, Part II or Part III of6

— Unreported Opinion —______________________________________________________________________________

the Family Law Article, including:
1. for a parent, a hearing in connection withguardianship or adoption;
2. a hearing under § 5-326 of the Family Law Article
for which the parent has not waived the right tonotice; and3. an appeal.
(2)(i) Except as provided in subparagraph (ii) of this paragraph,
representation shall be provided to an indigent individual in all stages ofa proceeding listed in paragraph (1) of this subsection, including, incriminal proceedings, custody, interrogation, bail hearing before aDistrict Court or circuit court judge, preliminary hearing, arraignment,
trial, and appeal.
(ii) Representation is not required to be provided to an indigent individual atan initial appearance before a District Court commissioner.
CP § 16-204 (emphasis added). Coyle also relies on Md. Rule 4-214(b), which defines theextent of the duty of appointed counsel. Md. Rule 4-214(b) states:
When counsel is appointed by the Public Defender or by the court,
representation extends to all stages in the proceedings, including but notlimited to custody, interrogations, preliminary hearing, pretrial motions
and hearing, trial, motions for modification or review of sentence or new
trial, and appeal. The Public Defender may relieve appointed counsel andsubstitute new counsel for the defendant without order of court by giving
notice of the substitution to the clerk of the court. Representation by the
Public Defender’s office may not be withdrawn until the appearance of that
office has been stricken pursuant to section (d) of this Rule. The
representation of appointed counsel does not extend to the filing ofsubsequent discretionary proceedings including petition for writ ofcertiorari, petition to expunge records, and petition for post conviction
relief.
Md. Rule 4-214(b) (emphasis added).
In further support of his argument that he had a right to counsel, Coyle cites to Statev. Flansburg, 345 Md. 694 (1997). In Flansburg, the Supreme Court of Maryland held thatthe defendant had a right to effective assistance of counsel when his trial counsel failed to7

— Unreported Opinion —______________________________________________________________________________

file a motion for modification of sentence following a probation hearing Id. at 703. Whileon probation for a sexual offense, Flansburg was convicted of battery and second-degree
murder. Id. at 696. The trial court revoked his probation and reimposed the full sentence at
a probation revocation hearing. Id. Following that hearing, the defendant requested that his
probation attorney file a motion for modification of his sentence, which his counsel failed
to do. Id. On appeal, the Supreme Court of Maryland determined that Flansburg had a rightto counsel under the Public Defender Act. Id. at 699. Under the PDA, as codified in CP §16-204, indigent defendants are guaranteed the right to counsel for probation hearings,
including the period right after when a motion to modify would be filed. Id. at 700-01.
Specifically, the Court held that the right to counsel was found in Section (b)(4) of the
Public Defender Act, which provides representation in “[a]ny other proceeding where
possible incarceration pursuant to a judicial commitment of individuals in institutions of apublic or private nature may result…” The Court reiterated that the right to counsel does
encompass the right to effective assistance of that counsel. Id. at 703. The Court clarified
that the right to counsel under the Public Defender Act encompasses effective assistancebecause “the entitlement to assistance of counsel would be hollow indeed unless theassistance were required to be effective.” Id. (quoting Wilson v. State, 284 Md. 664, 671,
cert. denied, 446 U.S. 921). As such, the Court held that the defendant could file a belated
motion for reconsideration of sentence.6 Id. at 468.

The Supreme Court’s decision in Flansburg left open the question of the trial
court’s discretion to revise a sentence following a belated motion for modification. State v.
Schlick, 465 Md. 566, 577 (2019). In Schlick, the Supreme Court considered the role of68

— Unreported Opinion —______________________________________________________________________________

However, Flansburg is distinguishable from the instant case based on the factual
scenario at play. The appeal in Flansburg arose following a probation revocation hearing
where there is an explicit guarantee of representation for indigent defendants in the statute.
In Coyle’s case, he claims that he had a right to counsel to file a discretionary appeal thatis not directly contemplated or explicitly stated by the Public Defender Act. Whereas inFlansburg, the petitioner had filed a motion to modify which is contemplated by the statute.
We can find no direct caselaw on the question of whether Coyle had a right tocounsel under the Public Defender Act for filing his discretionary appeal. So we turn toconsider the statutory construction and legislative history of the Public Defender Act. First,
we must determine whether the plain meaning of the language of the statute establishes aright to representation when a discretionary appeal is determined to be needed. Wheninterpreting a statute, “our statutory interpretation focuses primarily on the language of thestatute to determine the purpose and intent of the General Assembly.” Phillips v. State, 451
Md. 180, 196 (2017). Furthermore, “[w]e first look to the language of the statute todetermine its plain meaning, and we neither add nor delete language as to reflect an intent
not evidenced in the plain and unambiguous language of the statute.” Connor v. State, 223
Md. App. 1, 15 (2015) (internal citations omitted). If the plain language of the statute is

Flansburg and held that the trial court retains revisory authority over a belated motion forreconsideration pursuant to the operation of Md. Rule 4-345(e) (“[u]pon a motion filed
within 90 days after imposition of a sentence … in a circuit court whether or not an appeal
has been filed, the court has revisory power over the sentence except that it may not revise
the sentence after the expiration of five years from the date the sentence originally was
imposed on the defendant and it may not increase the sentence.”) Id. at 574, 587.
9

— Unreported Opinion —______________________________________________________________________________

ambiguous, the Court proceeds to consider other indicia to reveal the General Assembly’s
intent including the history of the statute. Mihailovich v. Dep’t of Health & Mental
Hygiene, 234 Md. App. 217, 224 (2017), cert. denied, 457 Md. 396 (2018). Specifically,
we examine “the structure of the statute, how the statute relates to other laws, the statute’s
general purpose, and the relative rationality and legal effect of various competing
constructions.” Id. (quoting Hailes v. State, 442 Md. 488, 495-96.
Section 16-204 of the Criminal Procedure Article is found in Title 16, which
delineates the statutory authority of the Office of the Public Defender (“OPD”). Other
subtitles under Title 16 govern the structure of OPD, reporting mandates, appropriations,etc. Subtitle 2 provides general mandates on the functions of OPD including terminating
representation, powers and duties of public defenders, panel attorneys, and conflicts, etc.
As noted above, Coyle relies on § 16-204(b)(2)(i) for his claim that he had a rightto counsel. In relevant part, that statute provides: “…representation shall be provided to an
indigent individual in all stages of a proceeding listed in paragraph (1) of this subsection,
including, in criminal proceedings, custody, interrogation, bail hearing before a District
Court or circuit court judge, preliminary hearing, arraignment, trial, and appeal.” CP § 16204(b)(2)(i). Subsection (b)(2)(ii) carves out that representation is not required at an initial
appearance before a District Court commissioner. CP § 16-204(b)(2)(ii). The statutedirectly references paragraph 1, which guarantees representation to an indigent defendant“in a criminal…proceeding in which a defendant or party is alleged to have committed aserious offense.” CP § 16-204(b)(1). The plain meaning of the statute is to provide

10

— Unreported Opinion —______________________________________________________________________________

representation to indigent defendants through the services of OPD at every step of acriminal case. The parties agree that the purpose of the statute is clear. However, theirviews diverge on the statute’s impact on the appellate process. We find that the plain
meaning of the statute is not apparent to an observant citizen who is making an inquiry.
The statute makes clear that the Public Defender will represent individuals who have an
appeal. Only after an inquiry into the law that governs in these cases is it clear that thisstatute does not extend to discretionary appeals.
The General Assembly revised the statute in 2008. Specifically, the phrase “before
the District Court of Maryland, the various courts within the State of Maryland, and the
Court of Special Appeals” was removed from subsection (b)(1)(i). 2008 Md. Laws, ch. 15.7
Coyle argues that this removal signals the legislature’s intent to expand the scope of OPD’srepresentation through all stages of an appeal. The elimination of the specific language
makes this a compelling argument that the legislature wanted to expand the scope of publicdefender services on appeal. The State however points to the Revisor’s Note that
accompanied the revisions in 2008. The Revisor’s Note for Section 16-204 states that“[t]his section is new language derived without substantive change from former Art. 27A,
§4(b), (d)(1), and the second sentence of (a).” Furthermore, the Revisor’s Note says, “[i]nsubsection (b)(1)(i) of this section, the former phrase ‘before the District Court of7

Before the statute was amended in 2008, § 16-204(b)(1)(i) provided representation
in “a criminal or juvenile proceeding in which a defendant or party is alleged to havecommitted a serious offense before the District Court of Maryland, the various circuit
courts within the State of Maryland, and the Court of Special Appeals.”11

— Unreported Opinion —______________________________________________________________________________

Maryland, the various courts within the State of Maryland, and the Court of Special
Appeals’ is deleted as surplusage.” (Emphasis added).
The Revisor’s Note from the General Assembly directly refutes Coyle’s claim thatthe amendment in 2008 expands the scope of representation to all stages of an appeal. The
General Assembly notes that the 2008 amendments are “derived without substantive
change.” As we have noted before “[w]hile there is no substantive change, as the Revisor’s
Note states, the change in language signifies a clarification.” Payne v. State, 243 Md. App.
465, 492 (2019).8 A general tenet of statutory interpretation is to “read the statute as awhole to ensure that no word, clause, sentence or phrase is rendered surplusage,
superfluous, meaningless or nugatory.” State v. Fabien, 259 Md. App. 1, 19 (2023).
Furthermore, “[a] change in the phraseology of a statute as part of a recodification willordinarily not be deemed to modify the law unless the change is such that the intention of
the Legislature to modify the law is unmistakable.” Office & Prof. Employees Int’l v. MTA,
295 Md. 88, 100 (1982). “[R]ecodification of statutes is presumed to be for the purpose ofclarity rather than change of meaning.” Hoffman v. Key Fed, Sav. & Loan Ass’n, 286 Md.
28, 37 (1979).

Furthermore, “even a change in the phraseology of a statute by a

codification will not ordinarily modify the law unless the change is so radical and material
that the intention of the Legislature to modify the law appears unmistakably from thelanguage of the Code.” Id.

Although the change in the statute in Payne was amended from “any” to “a” in achild pornography statute, the Revisor’s Note for §16-204 expressly that the changes were“derived without substantial change”. See Payne, 243 Md. App. at 492.
812

— Unreported Opinion —______________________________________________________________________________In this instance, the Revisor’s Note states that the phrase that specifically delineatesvarious court levels was deleted as surplusage. Black’s Law Dictionary defines surplusage
as “redundant words in a statute or legal instrument; language that does not add meaning.”
Surplusage Definition, Black’s Law Dictionary (11th ed. 2019). Because the statute wasamended without substantive change and language was deleted as surplusage, we conclude
that § 16-204 does not convey the right to counsel for the filing of a discretionary appeal.
There is no clear intention of the legislature to modify the law in 2008.
Alongside direction on the right to counsel promulgated by the legislature, theSupreme Court of Maryland has provided insight on this issue through Rule 4-214.
Specifically, Rule 4-214(b) states that “[t]he representation of appointed counsel does notextend to the filing of subsequent discretionary proceedings including petition for writ ofcertiorari…” Under Coyle’s interpretation of these various authorities, the provisions of
the judiciary and legislature would be in conflict. Coyle correctly asserts that in the instanceof an actual conflict, we would apply the later adopted. See Schlick v. State, 238 Md. App.
681, 691 (2018), aff’d, 465 Md. 566 (2019). However, “we prefer to harmonize rather thanfind inconsistency.” Id. (quoting Savage Manufacturing Co. v. Magne, 154 Md. 46, 54(1927)). In conclusion, the amendments to § 16-204 did not expand the right to counsel.
Therefore, this statute is not in conflict with Rule 4-214. Under Rule 4-214(b),representation of appointed counsel does not extend to a discretionary petition for writ ofcertiorari. To be sure this would also not be the best method for enacting legislative changes
that were in direct conflict with the common law of the United States and Maryland.

13

— Unreported Opinion —______________________________________________________________________________The parties point to countervailing authority where our sister states have decided
the question of whether the right to counsel extends to the filing of discretionary appeals.9
However, because the right to counsel is specifically delineated within Maryland’s
statutory scheme and Rules, out-of-jurisdiction authority is not dispositive of this issue.
We conclude that Coyle does not have a right to counsel under the interplay of CP § 16204 and Rule 4-214(b) or as they are interpreted in concert or together. There was no“unmistakable” intention of the legislature to modify the law. Office & Prof. Employees
Int’l, 295 Md. at 100.
II.

Right to Counsel under the Due Process Clause
A. Parties’ Contentions

Alternatively, Coyle contends that he had a right to counsel as a matter of due
process under Article 24 of the Maryland Declaration of Rights. He argues that the9Compare Villados v. State, 148 Haw. 386, 477 P.3d 826 (2020) (affirming thatappellate counsel was ineffective when she did not file an application for writ of certiorari
after saying that she would and allowing the application to the Supreme Court to proceed),
People v. Williams, 736 P.2d 1229 (Colo. App. 1986) (holding that the defendant had
ineffective assistance of counsel when appellate counsel did not file an application for awrit of certiorari when that petition is an application of law under the Colorado
Constitution), Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007) (concluding that thedefendant was entitled to effective assistance to pursue a petition for review on direct
appeal and allowing the defendant to re-petition the court, with State v. Carruth, 21 So.3d
764, 769 (Ala. Crim. App. 2008)) (holding that the defendant did not have a right to counsel
for a discretionary appeal under Alabama’s statutory scheme and, therefore, counsel could
not have been ineffective), People v. James, 111 Ill. 2d 283, 281, 489 N.E.2d 1350, 1354
(1986) (ruling in accordance with the United State Supreme Court decision in Torna that“the defendant was not deprived of his constitutional right to the effective assistance ofcounsel when his appellate counsel failed to seek discretionary review of [his] attempted
murder conviction.”).
14

— Unreported Opinion —______________________________________________________________________________

constitutional right to counsel is broader than a right to counsel under the Sixth
Amendment. At oral argument, counsel for Coyle argued that Wainwright v. Torna, relied
on by the State, does not apply in this case.
The State replies to this argument by arguing that the Supreme Court of the UnitedStates has already answered the question of whether an untimely filing of a discretionary
appeal violates due process. The State cites to Wainwright v. Torna, 455 U.S. 586 (1982)
to support this proposition.
B. Standard of Review“[W]here an order [of the trial court] involves an interpretation and application of
Maryland constitutional, statutory or case law, our Court must determine whether the trial
court’s conclusions are legally correct under a de novo standard of review.” Mayor andCity Council of Baltimore v. Thornton Mellon, LLC, 478 Md. 396, 410 (2022) (internal
citation and quotations omitted). For this issue, Coyle argues that he had a right to counsel
under the Maryland constitution and, therefore, we review this claim de novo.
C. Analysis
The Due Process Clause of the Maryland Declaration of Rights is contained in
Article 24 and sets forth “[t]hat no man ought to be taken or imprisoned or disseized of his
freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or
deprived of his life, liberty or property, but by judgment of his peers, or by the Law of theland.” Md. Const. Decl. of Rts. Art. 24. Article 24 of the Maryland Declaration of Rights
conveys a broader right to counsel than under the Sixth Amendment of the United States15

— Unreported Opinion —______________________________________________________________________________

Constitution. Clark v. State, 485 Md. 674, 717 (2023). As the Supreme Court of Maryland
has noted, “the due process right to counsel under Article 24 is broader than the right tocounsel under Article 21 or the Sixth Amendment.” DeWolfe v. Richmond, 434 Md. 444,
460-61 (2013). Specifically, the right to counsel under Article 24 is not limited to “criticalstages of criminal proceedings” unlike Article 2110 or the Sixth Amendment. Id. at 459-60.
As the State posits, Maryland courts have generally “interpreted Article 24 to apply
in like manner and to the same extent as the Fourteenth Amendment of the Federal
Constitution. Washington v. State, 450 Md. 319, 340 (2016) (quoting Attorney General v.
Waldron, 289 Md. 683, 704 (1981)). In effect, decisions of the Supreme Court of the UnitedStates interpreting the Fourteenth Amendment function as “practically direct authorities.”
Id. at 340-41.
In a per curiam opinion, in Torna, the Supreme Court of the United States addressed
the right to counsel to pursue discretionary state appeals. Wainwright v. Torna, 455 U.S.
586, 587 (1982) (per curiam). In this case, the defendant was convicted of several felonies

Article 21 of the Maryland Declaration of Rights guarantees “a right to counsel,
including appointed counsel for an indigent in a criminal case involving incarceration.”
Rutherford v. Rutherford, 296 Md. 347, 357-64 (1983). This right extends to every criticalstage of the proceedings. Id. The full text of Article 21 says:
That in all criminal prosecutions, every man hath a right to be informed of
the accusation against him; to have a copy of the Indictment, or charge, indue time (if required) to prepare for his defence; to be allowed counsel; to be
confronted with the witnesses against him; to have process for his witnesses;
to examine the witnesses for and against him on oath; and to a speedy trial
by an impartial jury, without whose unanimous consent he ought not to befound guilty.
1016

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in the state of Florida. Id. at 586. On appeal, the Florida Supreme Court denied his
application for a writ of certiorari because the application was untimely. The defendant
filed a writ of habeas corpus in federal court that continued up to the United States Supreme
Court. Id. The Court reversed the Court of Appeals and pursuant to prior precedent, heldthat the defendant had no constitutional right to counsel. Id. at 587. Therefore, because he
had no right to counsel, “he could not be deprived of the effective assistance of counsel by
his retained counsel’s failure to file the application timely.” Id. In a footnote, the Court
added that the defendant was not deprived of due process because his counsel failed totimely file the petition or because the Florida Supreme Court dismissed the action. Id. at588, n.4.
Before Torna, the Supreme Court of the United States considered a defendant’s rightto appointed counsel for discretionary appeals in Ross v. Moffitt, 417 U.S. 600 (1974). In
Ross, after being convicted of forgery in two counties in North Carolina, the defendantsought discretionary review in the North Carolina Supreme Court. Id. at 604. The Court ofAppeals for the Fourth Circuit held that the defendant was entitled to appointed counsel
furnished by the state for his discretionary state and federal appeals. Id. at 604-05. The
Supreme Court reversed the Fourth Circuit and held that the Fourteenth Amendment did
not mandate free counsel for an indigent defendant in a discretionary federal or state appeal.
Id. at 610; 617. The Court reasoned that neither the Due Process Clause nor the Equal
Protection Clause required the states to ensure representation for an indigent defendant’s
discretionary appeal. Id. at 611-16.

17

— Unreported Opinion —______________________________________________________________________________In response to the defendant’s due process argument, the Court reasoned that “there
are significant differences between the trial and appellate stages of a criminal proceeding.”
Id. at 610. The Court continued that “[t]he defendant needs an attorney on appeal not as ashield to protect him against being ‘haled into court’ by the State and stripped of his
presumption of innocence, but rather as a sword to upset the prior determination of guilt.”
Id. at 610-11. The Court concluded that the due process clause did not mandate appointed
counsel for indigent individuals for discretionary appeals. Id. at 611.
The Court also examined whether the equal protection clause conferred the right tocounsel for discretionary appeals. Id. at 611-16. The Supreme Court opined that thefunction of a state Supreme Court is different than an appellate court that hears appeals asa matter of right. Id. at 615. The Court summarized the function of the North Carolina
Supreme Court and, by extension, other state supreme courts as:
The critical issue in that court, as we perceive it, is not whether there has
been ‘a correct adjudication of guilt’ in every individual case, see Griffin v.
Illinois, 351 U.S., at 18, 76 S.Ct., at 590 but rather whether ‘the subject matterof the appeal has significant public interest,’ whether ‘the cause involves
legal principles of major significance to the jurisprudence of the State,’ orwhether the decision below is in probable conflict with a decision of theSupreme Court.
Id. The Court continued to state, “the fact that a particular service might be of benefit to an
indigent defendant does not mean that the service is constitutionally required.” Id. at 616.
Moreover, the Court reasoned that:
The duty of the State under our cases is not to duplicate the legal arsenal that
may be privately retained by a criminal defendant in a continuing effort toreverse his conviction, but only to assure the indigent defendant an adequate
opportunity to present his claims fairly in the context of the State’s appellate18

— Unreported Opinion —______________________________________________________________________________

process.
Id. at 616. The Supreme Court reversed the decision of the Fourth Circuit and held that theguarantees of the Fourteenth Amendment do not mandate appointed counsel to a defendantthat seeks discretionary review. Id. at 619.11
The parties disagree about the precedential value that Torna has in the instant case.
At oral argument, counsel for Coyle argued that Torna is distinguishable from the present
case because Coyle’s claim involves a panel attorney instead of a private counsel, as was
the case in Torna.12 Coyle argues that because his appellate counsel was a panel attorneyassigned pursuant to OPD’s statutory authority pursuant to CP § 16-20813, then Torna does
11

Justice Douglas wrote a dissenting opinion to the majority opinion in Ross joined
by Justices Brennan and Marshall. Id. at 619 (Douglas, J., dissenting). Justice Douglas
would have affirmed the decision of the Fourth Circuit and held that an indigent defendant
had the right to appointed counsel for discretionary appeals. Id. (Douglas, J., dissenting).
Justice Douglas echoed the Fourth Circuit decision and noted that “in the context ofconstitutional questions arising in criminal prosecutions, permissive review in the state’s
highest court may be predictably the most meaningful review the conviction will receive.”
Id. (Douglas, J., dissenting). Justice Douglas further discussed the importance of counsel
in discretionary appeals and said “[c]ertiorari proceedings constitute a highly specialized
aspect of appellate work. The factors which (a court) deems important in connection withdeciding whether to grant certiorari are certainly not within the normal knowledge of an
indigent appellant.” Id. at 621 (Douglas, J., dissenting) (quoting Boskey, The Right toCounsel in Appellate Proceedings, 45 Minn.L.Rev 783, 797 (1961)). The dissenting
justices would have found the defendant had a right to counsel because “the same conceptsof fairness and equality, which require counsel in a first appeal of right, require counsel inother and subsequent discretionary appeals.” Id. (Douglas, J., dissenting). This dissent has
not evolved into the law of the land or been followed in courts around the country.
12

We were unable to find any representation agreement in the record between the
OPD and the Appellant.
CP §16-208 governs the Office of the Public Defender’s authority to appoint panel
attorneys. OPD exercised this authority to assign Coyle’s case to his appellate counsel. In
relevant part, the statute provides: “[e]xcept in cases in which an attorney in the Office13

19

— Unreported Opinion —______________________________________________________________________________

not apply in this case. We disagree. We agree with the State’s argument that under thestrong authority of the United State Supreme Court’s decision in Torna and Ross that Coyle
was not deprived of due process when his appellate counsel failed to timely file his petition
for writ of certiorari.
III.

Ineffective Assistance of Counsel
A. Parties’ Contentions

Appellant argues alternatively that if Coyle did not have an explicit right to counsel,
then he was entitled to effective assistance once OPD agreed that a panel attorney should
submit a petition for writ of certiorari. Coyle further argues that when OPD provided
counsel, he was entitled to enjoy effective assistance of counsel. We disagree with both ofthese assertions. Coyle urges this Court to not apply the traditional Strickland analysis for
his ineffective assistance claim but instead to presume that Coyle was prejudiced when his
appellate counsel failed to file the petition for writ of certiorari.
The State argues that the Strickland test for ineffective assistance should apply if
Coyle does have a right to counsel. The State cites to the findings of the postconviction
court to assert that the court properly applied the requisite factors. The postconviction court
ruled that it was unclear whether counsel’s performance was sufficiently deficient under
Strickland. We disagree.14

provides representation, the district public defender, subject to the supervision of the Public
Defender shall appoint an attorney from an appropriate panel to represent an indigent
individual.” CP §16-208(b)(1).
14
The State also contends that the trial court properly ruled that there was not areasonable probability that the results of the proceeding below would not have been20

— Unreported Opinion —______________________________________________________________________________

B. Standard of Review
Our review of a post-conviction court’s findings regarding ineffective assistance ofcounsel is a mixed question of law and fact. The factual findings of the post-conviction
court are reviewed for clear error. The legal conclusions, however, are reviewed de novo.
The appellate court exercises its own independent analysis as to the reasonableness, andprejudice therein, of counsel’s conduct. State v. Syed, 463 Md. 60, 73 (2019).
C. Analysis
We begin by analyzing Coyle’s claim that once the OPD exercised their authority
to appoint a panel attorney, he was entitled to effective assistance of counsel. At first glance
there appears to be merit to this argument. Because there was a conflict of interest to
represent Coyle, OPD exercised their discretionary power to panel the case out to a memberof the private bar. The Public Defender Act sets forth the discretionary power to appoint
panel attorneys that is frequently exercised by OPD. Specifically, CP § 16-208(b)(1) states:“[e]xcept in cases in which an attorney in the Office provides representation, the district
public defender, subject to the supervision of the Public Defender, shall appoint an attorneyfrom an appropriate panel to represent an indigent individual.” §16-208(b)(2) continues
that “[p]anel attorneys shall be used as much as practicable.” §16-204(a) tracks with theother statutes in the PDA and states that “[r]epresentation of an indigent individual may beprovided in accordance with this title by the Public Defender or, …panel attorneys.” Thedifferent but for counsel’s error. We disagree with this finding. Finally, the State seeks to
distinguish the line of cases that were cited by Coyle to stand for the proposition thatprejudice should be presumed in this matter.
21

— Unreported Opinion —______________________________________________________________________________

statute provides no clear prohibition against the assignment of attorneys in a discretionary
appeals status.
As discussed supra, Coyle did not have a right to counsel under the PDA or under
Article 24 of Maryland’s Declaration of Rights. However, OPD did exercise theirperceived authority under the PDA to assign a panel attorney to Coyle for his appeal. OPD
paneled the case to Attorney Brian Edmunds and approved of his preparation of a petition
for writ of certiorari to the Supreme Court of Maryland. Coyle argues that this action
entitled him to effective assistance of counsel. Coyle argues that if there is no requirement
for panel attorneys to render effective assistance, then there is no recourse for indigent
individuals with claims of ineffective assistance. The State responds to this argument bycomparing the current case to the factual scenario in Torna.
Justice Marshall briefly discusses the underlying facts in his dissenting opinion to
the per curiam opinion in Torna. 455 U.S. at 588-90 (Marshall, J., dissenting). In Torna,
the defendant’s retained counsel “promised him that he would seek review in the Florida
Supreme Court.” Id. at 589. Defendant’s counsel failed to timely file his application andthe defendant was “deprived of his right to seek discretionary review by the State’s highest
court.” Id. The application was filed one day late after a secretary in the private attorney’s
office got lost on the way to the Clerk’s Office and arrived after it had already closed. Id.
The State asks this Court to rule that Coyle was not entitled to effective assistance ofcounsel according to the same logic as the United States Supreme Court applied in Torna.
However, the United States Supreme Court in Torna ruled that the defendant did not have22

— Unreported Opinion —______________________________________________________________________________a constitutional right to counsel to file a discretionary appeal under the Sixth Amendment.
455 U.S. at 587. However, Appellant has pointed out that, in the present case, his attorney
was not a member of the private bar but instead a panel attorney appointed pursuant to
OPD’s statutory authority in the PDA. This is not a compelling argument as we haveanalyzed in another portion of this opinion. The PDA did not confer or upon amendment
provides for a right to counsel in a discretionary appeal. While it is understandable why amanager in the OPD might look at the statute and believe that it was appropriate to appoint
counsel. Our duty as a court requires us to analyze and recognize precedent in this case.
We have also heard the arguments of appellant’s counsel. Coyle asserts that his claim is
not predicated on the Sixth Amendment right to counsel and is distinguishable from Tornain this regard. Therefore, they are in effect recognizing that there is not a right to counsel
when there is a discretionary appeal. OPD elected to panel the case to an outside attorney
pursuant to their explicit authority contained in CP §16-204(a).
However, this decision did not entitle Coyle to the assistance of counsel under thelaw.15 First the right to an outside attorney is derivative of the PDA, per the Appellant,
which does not allow for a discretionary appeal because of the common law. Also, the Ross
case cited earlier in this opinion clearly holds that the right to counsel to file a discretionary
appeal is not provided under the law. In Ross, the Supreme Court reversed the Fourth
Circuit and held that the Fourteenth Amendment did not mandate free counsel for an

15

This analysis may have been different if the petition for writ of certiorari had
been timely filed.
23

— Unreported Opinion —______________________________________________________________________________

indigent defendant in a discretionary federal or state appeal. Ross, 417 U.S. at 610, 617.
The Court reasoned that neither the Due Process Clause nor the Equal Protection Clauserequired the states to ensure representation for an indigent defendant’s discretionary
appeal. Id. at 611-16.
Because he was not entitled to a panel attorney, we decline to reach the issue of
whether he was entitled to effective assistance of counsel. And, after concluding that Coyle
was not entitled to effective assistance by his panel attorney, we are not required to consider
whether the assistance that he received was in fact ineffective.
If we did consider this issue, we would conclude that counsel’s performance wasineffective. Following his appointment as a panel attorney, Mr. Edmunds drafted thepetition. According to his affidavit, counsel worked “extensively” and “around the clock”
to compile a compelling petition. See Affidavit of Brian T. Edmunds. On the day that thepetition was due to be filed, counsel was finishing up the document to transmit it to OPD
by noon, so they could file it with the Court. However, due to unexpected delays concerning
the first day of school for counsel’s children, he was not able to meet the noon deadline.
Counsel decided to personally deliver the petition to Annapolis for filing. Further
complications ensued including a computer crash and unexpected gridlock traffic, leading
counsel to not be able to reach Annapolis before the clerk’s office closed. Counsel
characterizes the failure to timely file this petition and having to inform Coyle as “the worst
professional experiences of [his] career.”16

16

Coyle’s appellate counsel’s Declaration states in full:24

— Unreported Opinion —______________________________________________________________________________I an attorney admitted to practice by the Court of Appeals of Maryland. Since
my admission in 2002, I have worked in various capacities as a litigator,
including an extensive practice as an appellate litigator.
In or about 2012, the Public Defender appointed me to represent thePetitioner, Seamus Anthony Coyle, in his direct appeal to the Court ofSpecial Appeals. I prepared and filed Mr. Coyle’s opening and reply briefs
and motions in that court and argued before the panel assigned to hear Mr.
Coyle’s appeal.
It was and remains my view that [sic] the Court of Special Appeals erred
when it affirmed Mr. Coyle’s conviction. I felt that some of the issues in thecase presented questions for which the Court of Appeals should grant a writof certiorari.
I discussed seeking a writ with both the Office of the Public Defender andMr. Coyle and was authorized to file a petition.
I prepared the petition for a writ of certiorari that has been attached as an
exhibit to Mr. Coyle’s petition for post-conviction relief. As with the otherpapers I prepared for Mr. Coyle, I worked extensively on the petition to try
to give him the best chance possible of prevailing. Concerned that Mr. Coyle
had been convicted in error, I labored as hard as I could to try to give him achance of reversing that error.
I worked around the clock on Mr. Coyle’s petition, but had a difficult time
getting to the point where I felt it sufficient for the difficult task. On the duedate, I turned to finalizing the petition with the goal or revising it, shortening
it, proofreading it, and sending it to the Office of the Public Defender by
noon, in time for the Office to print and deliver it to the Court of Appeals.
I am a bit of a perfectionist, though, and had an unexpected development in
the morning relating to the first day of school for my children, whichcoincided with the deadline. At around noon, I was still struggling withbalancing the need to shorten the petition and still present the arguments
strongly. I felt that I could still improve it and did not want to sacrifice thestrength of the arguments. I therefore decided that I should continue to workon it a bit more, print it myself, and personally deliver it to Annapolis forfiling, I thought that I could get it done, and that it would give Mr. Coyle abetter chance if I did.
25

— Unreported Opinion —______________________________________________________________________________The postconviction court also relied on the Strickland standard when it held that“the Petitioner did not suffer prejudice, within the meaning intended by the Supreme Courtof the United States in Strickland” and “counsel’s calamities on the morning when heintended to file the Petition are simply not the type of professional errors recognized by theSupreme Court as reaching Constitutional significance under Strickland.”In Strickland v. Washington, the United States Supreme Court articulated a two-part
test to analyze an ineffective assistance of counsel standard in a death penalty case. 466
U.S. 668, 687 (1984). The Court held that for an ineffective assistance claim, the defendantmust show: (1) “that counsel’s performance was deficient”; and (2) “that the deficientperformance prejudiced the defense.” Id. Before implementing this standard, the Strickland
Court traced the foundations of the right to counsel conveyed by Sixth Amendment and theI was badly mistaken. I encountered difficulties with the computer andprinting, including a computer crash. I completed the petition and printed
copies and left just before 3:00pm, which gave me a little more than 90
minutes to make the 39-mile drive from the Bethesda area to the Court ofAppeals, a drive that usually took me about 45 minutes, since it is almost
entirely highway. I thought that rush hour traffic would not have picked up
on the Capital Beltway by then. But as I drove south to the Beltway, enteringfrom the Wisconsin Avenue ramp there was heavy, standstill traffic. I wasstuck on the Beltway, without an alternative, until well after it became
obvious that I could never make it to the Court of Appeals on time. From theroad, I called both the Clerk’s Office and the Office of the Public Defender
to see if anything could be done to get the petition timely to the Court, butthere were no options to avoid the petition being marked as late and notconsidered.
This error, and having to inform Mr. Coyle of it, remain the worst
professional experiences of my career. I truly thought I could both perfect
the petition, which I thought was necessary, and still timely file it. I waswrong.
26

— Unreported Opinion —______________________________________________________________________________

right to constitutional effective assistance of counsel that flows therefrom. Id. at 685-86.
Maryland jurisprudence has applied the Strickland standard to evaluate ineffective
assistance claims in Sixth Amendment right to counsel cases. Newton v. State, 455 Md.
341, 355 (2017).
In its postconviction opinion, the court denied the ineffective assistance claim andas to the first prong found that “it is far from clear that every lawyer who misses a filingdeadline in a criminal case is guilty of Strickland-level ineffectiveness.” We agree with thecourt that the bare fact that appellate counsel missed the deadline is not dispositive ofwhether counsel’s representation fell below the standard. However, looking at the full
factual record, Coyle’s appellate counsel had promised him that he would file the petition
to the Supreme Court of Maryland. Through a series of unfortunate events, counsel missed
the deadline to transmit the petition to OPD for filing and subsequently ran out of time tofile the petition in person before the Clerk’s Office closed. At oral argument, neither party
disputed that counsel’s representation fell below an objective standard of reasonableness.
In fact, appellate counsel characterized this experience as “the worst professional
experiences of [his] career.”At the postconviction hearing, the court expressly denied Coyle’s argument that hesuffered prejudice due to appellate counsel’s failure to file the petition for writ of certiorari.
Specifically, the trial court stated that the Court of Special Appeals “thoroughly but easily
dealt” with the issues in Coyle’s appeal and that the appeal was “patently without merit.”
The court succinctly analyzed the likelihood of a different result in the hearing if the27

— Unreported Opinion —______________________________________________________________________________

petition had been filed on time by stating “there is not the slightest possibility that the Courtof Appeals of Maryland would have granted Certiorari in this action had a Petition beentimely filed.” Finally, the trial court found that Coyle did not suffer prejudice ascontemplated by the standard in Strickland.
Although we decline to reach the issue, we will note that the ineffective assistanceanalysis that the postconviction court employed is a convoluted issue. We do not feel thesame certainty as the postconviction court to extrapolate whether the Supreme Court would
have granted certiorari had the petition been timely filed.17
CONCLUSION
Accordingly, we affirm the decision of the Circuit Court for Baltimore County
because Appellant did not have a right to counsel for his discretionary appeal to the17

A conclusion whether the Supreme Court would have granted the petition for writof certiorari is full of speculation. “In recent years the Supreme Court of Maryland has
granted roughly 15% of petitions for certiorari in civil cases and 12% in criminal cases.”Petitions for Certiorari—View from the Bar, Appellate Practice for the Maryland Lawyer:
State and Federal, Chap. 18 (2023). See also Steve Klepper, Maryland Certiorari Statistics,
2020 Term (June 28, 2021) (available at: https://mdappblog.com/2021/06/28/marylandcertiorari-statistics-2020-term/).
“For example, in FY 2021, 36 of 263 petitions (approximately 14%) were granted incivil cases and 30 of 235 (approximately 13%) in criminal cases.” In FY 2020, “35 of 240
petitions (approximately 15%) were granted in civil matters and 27 of 237 petitions(approximately 11%) in criminal matters.” Petitions for Certiorari—View from the Bench,Appellate Practice for the Maryland Lawyer: State and Federal, Chap. 19 (2023) (citing
Maryland Judiciary Statistical Abstract, Fiscal Year 2021, at Table CA-5, archived athttps://perma.cc/Y7QE-UHFB.)Based on these statistics, we do not agree with the postconviction court that “there
is not the slightest possibility that the Court of Appeals of Maryland would have granted
Certiorari in this action had a Petition been timely filed.”28

— Unreported Opinion —______________________________________________________________________________

Supreme Court of Maryland.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED;COSTS TO BE PAID BY THE
APPELLANT.

29

— Unreported Opinion —______________________________________________________________________________

Circuit Court for Baltimore County
Case No. 03-K-10-001691
UNREPORTED*
IN THE APPELLATE COURT
OF MARYLAND
No. 1440
September Term, 2021______________________________________SEAMUS ANTHONY COYLEv.
STATE OF MARYLAND______________________________________
Nazarian,
Reed,
Zic,
JJ.
______________________________________
Dissenting Opinion by Nazarian, J.
______________________________________
Filed: March 25, 2024

*This is an unreported opinion. This opinion may not be cited as precedent within the ruleof stare decisis. It may be cited for its persuasive value only if the citation conforms to Md.
Rule 1-104 (a)(2)(B).

30

— Unreported Opinion —______________________________________________________________________________

I appreciate the clean analytical path between the majority’s two criticalconclusions in this case: first, the conclusion, with which I agree, that Seamus Coyle did
not have an enforceable constitutional or statutory right to counsel at the certiorari stageof his direct appeal, and second, the conclusion that Mr. Coyle couldn’t have suffered aconstitutional or statutory injury from the deprivation of a right to counsel he never had. In
between these two milestones, though, I remain stuck on a point our Supreme Court madefirst in Wilson v. State, 284 Md. 664, 671 (1979), cert. denied, 446 U.S. 921 (1980), thenreiterated in State v. Flansburg, 345 Md. 694, 703 (1997): “Entitlement to assistance ofcounsel would be hollow indeed unless the assistance were required to be effective.” Mr.
Coyle may not have been entitled to demand a lawyer at the certiorari stage under the Sixth
Amendment to the Constitution of the United States, Articles 21 and 24 of the Maryland
Declaration of Rights, or the Public Defender Act, Md. Code (2008, 2018 Repl. Vol.),§ 16-204 of the Criminal Procedure Article (“CP”). But he had a lawyer, and properly so.
The Office of the Public Defender had the authority to appoint a lawyer to represent Mr.
Coyle at the certiorari stage of the case and there is no dispute that the Office did so here
pursuant to that authority. And once Mr. Coyle had that properly and publicly appointed
lawyer,18 he was entitled to have that lawyer assist him effectively.
I agree with my colleagues that on the record developed in the circuit court,
counsel’s failure to file a petition for writ of certiorari satisfied the deficient performance

It makes no difference that Mr. Coyle’s publicly appointed counsel was a private
lawyer appointed by the Office of the Public Defender. What matters is that the Office had
the authority to appoint counsel here, see CP § 16-208(c), and did.
118

— Unreported Opinion —______________________________________________________________________________

prong of the Strickland v. Washington analysis. 466 U.S. 668 (1984). From there, I would
hold that counsel’s failure to file the petition under these circumstances prejudiced Mr.
Coyle and that he should be granted the opportunity to file a belated petition for writ ofcertiorari. The majority concludes otherwise and, with respect, I dissent.
I.
I agree with my colleagues that Mr. Coyle did not have an enforceable right tocounsel at the certiorari stage of his direct appeal under the Constitution of the UnitedStates, the Maryland Constitution, or the Public Defender Act. Were we writing on a blankslate, I am inclined to agree with Justice Thurgood Marshall, in his dissent in Wainwrightv. Torna, 455 U.S. 586, 588 (1982), that we should recognize that a defendant has aconstitutional right to counsel to pursue discretionary appeals (and thus that Ross v. Moffitt,
417 U.S. 600 (1974), was decided wrongly), and that counsel’s failure to file a petition for
writ of certiorari when the defendant relied on counsel’s promise to do so would be a
violation of the defendant’s due process rights. Torna, 455 U.S. at 588–89 (Marshall, J.,dissenting). The federal and Maryland constitutional rights to counsel extend through one
layer of appellate review, see Wilson, 284 Md. at 671, as does the right to a public defenderin Maryland for those who qualify. CP § 16-204(b)(2)(i). But intermediate appellate courts
sometimes reach the wrong answers on important issues in criminal cases—or, more to thepoint, superior courts sometimes reach different final conclusions. See, e.g., State v.
Bircher, 446 Md. 458 (2016), reversing Bircher v. State, 221 Md. App. 376 (2015);
Spencer v. State, 450 Md. 530 (2016), reversing Spencer v. State, No. 493, Sept. Term
2

— Unreported Opinion —______________________________________________________________________________

2014 (Md. App. Oct. 2, 2015); Norman v. State, 452 Md. 373, reversing Norman v. State,
No. 1408, Sept. Term 2015 (Md. App. Aug. 11, 2016); Devincentz v. State, 460 Md. 518(2018), reversing Devincentz v. State, No. 1297, Sept. Term 2016 (Md. App. Sept. 25,
2017); Rogers v. State, 468 Md. 1 (2020), reversing State v. Rogers, 240 Md. App. 360(2019); see also Lewis v. State, 470 Md. 1 (2020), reversing Lewis v. State, 237 Md. App.
661 (2018); Clark v. State, 485 Md. 674 (2023), reversing Clark v. State, 255 Md. App.
327 (2022). The opportunity for certiorari review can mean the difference between a newtrial or no new trial, incarceration or freedom or, in the federal system or many other states,
life or death. I struggle to understand why the right to counsel covers only one round ofappellate review when the judiciary provides an opportunity to ask for a second.
In any event, the majority’s analysis in this case leaves Mr. Coyle completely
without a remedy for failures on the part of the counsel he actually had. This case literallyis the post-conviction forum available for him to raise ineffective assistance of counsel
during his direct appellate process, but the Court holds today that he can’t raise an
ineffective assistance claim arising at the certiorari stage because he had counsel as amatter of discretion rather than of right. The majority follows a well-trod path, but not, in
my view, a path we are compelled to take.
II.
Ultimately, it doesn’t matter that Mr. Coyle didn’t have an affirmative, enforceable
right to a lawyer grounded in a constitution or statute. What matters is that he had alawyer—in this case, a lawyer appointed for him by the Office of Public Defender under3

— Unreported Opinion —______________________________________________________________________________

the authority granted to it by the Public Defender Act. The Office wasn’t required by statuteto appoint a lawyer for him, but it had and exercised the discretionary authority to appointa lawyer for him in this case.
If Mr. Coyle didn’t have counsel, it would be on him to keep his case alive and raise
whatever arguments he wanted to raise. Compare Gideon v. Cochran, 370 U.S. 908 (1962)(granting pro se petition for writ of certiorari). Once Mr. Coyle had counsel, though, he
had the right to rely on them to represent him effectively, or at least not ineffectively.
Counsel’s professional obligations to Mr. Coyle flowed regardless of the nature of the caseor who was paying. See CP § 16-208(c)(1) (“The primary duty of a panel attorney is to theindigent individual represented by the panel attorney with the same effect and purpose as
though privately engaged and without regard to the use of public funds to provide theservice.”); see also Attorney Grievance Comm’n of Md. v. Willcher, 340 Md. 217, 221–23(1995) (disbarring attorney convicted for unlawful solicitation of money from an indigent
client appointed under the Criminal Justice Act.); Attorney Grievance Comm’n of Md. v.
Smith, 442 Md. 14, 29–32 (2015) (suspending prosecutor who failed to give required notice
to victims); Attorney Grievance Comm’n of Md. v. Hoerauf, 469 Md. 179, 217–18 (2020)(disbarring attorney for multiple rules violations in the course of defending clients incriminal cases). But unlike a civil client, criminal defendants have no effective remedy
against counsel, retained or paid, who commit malpractice or violate the Rules ofProfessional Conduct in the course of the representation. Sure, they can complain to the
Attorney Grievance Commission, but professional discipline against the lawyer doesn’t
4

— Unreported Opinion —______________________________________________________________________________(and can’t) resurrect the claim or argument that the lawyer failed to raise in the criminalcase. Whatever the outcome of the discipline case, a client who was convicted andsentenced stays convicted and sentenced. See Attorney Grievance Comm’n of Md. v. Jones,
484 Md. 155, 170–86 (2023); Hoerauf, 469 Md. at 193–207; cf. Attorney GrievanceComm’n of Md. v. Taniform, 482 Md. 272, 303–05 (2022) (client’s vulnerability to removalfrom United States can be an aggravating factor in attorney discipline cases).
Wilson and Flansburg fill the gap. “‘[T]he entitlement to assistance of counsel
would be hollow indeed unless the assistance were required to be effective.’” Flansburg,
345 Md. at 703 (quoting Wilson, 284 Md. at 671). Wilson established the first steps: adefendant has a constitutional right to counsel through a direct appeal and, importantly,
effective counsel, 284 Md. at 669–71, and a circuit court has the authority under the
Uniform Postconviction Procedure Act to remedy counsel’s failure to file a notice of appeal
by allowing a belated appeal. Id. at 671–80. Flansburg applied Wilson to a case involving
a defendant entitled to counsel under the Public Defender Act in connection with a motion
for modification of sentence and held that the right to counsel found in the Public Defender
Act encompasses the right to effective assistance of that counsel to the same extent as theright to counsel arising under the federal or Maryland constitutions.19 345 Md. at 698–703.

19

Portions of Flansburg relating to the time limits for granting a motion formodification of sentence have been superseded by statute, see State v. Schlick, 465 Md.
566, 576 n.3 (2019), but those statutory changes don’t affect the portion of the Court’s
analysis relating to the right to effective counsel.
5

— Unreported Opinion —______________________________________________________________________________The only distinction between this case and Flansburg is that Mr. Flansburg’s rightto a public defender, on the posture of his particular case, was mentioned expressly in the
Public Defender Act whereas Mr. Coyle’s arose through the Office’s discretionary
authority. So at most, I suppose, Mr. Coyle had the right to ask the Public Defender torepresent him. But he did ask, the Office exercised its discretionary authority and did agree
to provide counsel for him. In my view, that’s a distinction without a difference. I would
hold that, under Flansburg, Mr. Coyle had the right to effective counsel in this case by
virtue of the Office of Public Defender’s decision to appoint counsel to represent him in
connection with a petition for writ of certiorari.
III.
Having the right to effective counsel would give Mr. Coyle the corresponding
opportunity to prove that his counsel was ineffective. And in that regard, I agree that theclassic ineffective assistance analysis articulated in Strickland v. Washington, 466 U.S. at
687, should govern.20 Although the majority holds that Mr. Coyle had no right to counsel
or to bring an ineffectiveness claim, the opinion offers views on Mr. Coyle’s ineffective
assistance contentions, slip op. at 23–28, and I agree with my colleagues’ core conclusions.
I agree in full that on this record, counsel’s performance fell below an objective standardof reasonableness. Id. at 26. There is no way that counsel’s failure to file a petition for writof certiorari could be viewed as a reasonable tactical decision—as my colleagues explain,

20

Under Strickland, a defendant seeking to establish ineffective assistance ofcounsel must prove first that “counsel’s performance was deficient,” and second that “thedeficient performance prejudiced the defense.” 466 U.S. at 687.
6

— Unreported Opinion —______________________________________________________________________________

counsel promised Mr. Coyle that he would seek certiorari review, that he viewed thepetition as meritorious, and that he took all but one of the necessary steps to accomplishthat objective. Mr. Coyle relied to his detriment on counsel’s promises to file, and thepetition was late not because counsel consciously and deliberately declined to file it, butsolely because of technical and logistical failures on counsel’s part. In a different case,where the record reflected, for example, that counsel never promised to file a cert petition,that counsel advised against filing one, or that counsel’s analysis revealed no cert-worthy
question, the failure to file might not represent deficient performance. Here, though, I agree
that the first prong of Strickland was met.
The second Strickland prong, prejudice, seems a little trickier at first blush but
ultimately has a straightforward solution. The circuit court found in definitive terms that
Mr. Coyle wasn’t prejudiced because “there [wa]s not the slightest possibility that the[Supreme Court] of Maryland would have granted Certiorari in this action had a Petition
been timely filed.” But I share my colleagues’ reluctance, slip op. at 27 n.17, to be socertain. As eleven sets of law clerks (so far) can attest, my (in)ability to predict what our
superior courts will do, at the certiorari stage or the merits stage of any case, is a longrunning joke in the life of our Chambers.
To condition prejudice on a prediction of what the Supreme Court would do, though,is to frame the prejudice question too broadly. Nobody is claiming that the circuit court (orthis Court or anyone) could order the Supreme Court of Maryland to review Mr. Coyle’s
case as a remedy for counsel’s failure to file a timely cert petition. The only available
7

— Unreported Opinion —______________________________________________________________________________

remedy here is the opportunity to file a belated petition, just as courts award, routinely, theopportunity to file a belated direct appeal. See Rosales v. State, 463 Md. 552, 568–70(2019) (thirty-day deadline for filing notice of direct appeal is a claim-processing rule, notjurisdictional, and can be waived if not raised on appeal and the right to file belated appeal
awarded as post-conviction relief); Wilson, 284 Md. at 671–80. The proper question, then,is whether counsel’s deficient performance—his failure to file the petition on time—
prejudiced the defense. Strickland, 466 U.S. at 687. And we know that it did. Even if thepetition were a longshot at best, as nearly all are, a late petition is 100% certain to be denied,and for reasons that have nothing to do with its merits. If the likelihood of a grant wentfrom fifteen percent or twelve percent or five percent to absolute zero due to counsel’s
performance, Mr. Coyle was prejudiced, at least to the extent that counsel’s failure
deprived him categorically of the opportunity to have the Supreme Court consider, if deny,
the petition on the merits. That’s a narrow failure that can be remedied fully by a narrow
remedy.
Finding ineffective assistance in this case wouldn’t open our courts to a deluge ofcert-stage ineffective assistance claims. This analysis would apply only where the record
revealed counsel’s stated intention to seek discretionary review and a demonstrably
deficient failure to follow through on it, and at most would put the Supreme Court to atrickle of additional petitions to consider. It may well be that Mr. Coyle’s lacks merit, andI offer no views on whether it should or could or might be granted (my predictions wouldn’t
be worth much anyway). But the possibility that a petition could have merit and the impact8

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that it might have if it did makes this right worth viewing with appropriate breadth andremedying in this tailored manner.
I would, therefore, reverse the judgment of the circuit court, and I dissent,
respectfully, from the decision to affirm it.

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