iterating that, in the post-conviction context, ineffective assistance of counsel claims are best reviewed by a trial court rather than an appellate court
How later courts described this case
- iterating that, in the post-conviction context, ineffective assistance of counsel claims are best reviewed by a trial court rather than an appellate court
- noting that “the adversarial process found in a post-conviction proceeding generally is the preferable method in order to evaluate counsel’s performance, as it reveals facts, evidence, and testimony that may be unavailable to an appellate court using only the original trial record”
- explaining that a postconviction proceeding is one vehicle for obtaining collateral review of a conviction
- noting that collateral review under the UPCA "is not an appeal of the judgment[ but] rather[ ] . . . is a collateral attack designed to address alleged constitutional, jurisdictional, or other fundamental violations that occurred at trial"
Written by the judges who cited it.
The opinion
Concurring Opinion by
WILNER, J.
I concur in the judgment because I agree that the record before us, being the same record that was before the Court of Special Appeals, is inadequate to permit a determination of whether the evidence was legally sufficient to support the conviction. I offer the following comment, however.
*574 Maryland Rule 4-324(a) permits a defendant, at the close of the evidence offered by the State and, in a jury trial, at the close of all of the evidence, to move for judgment of acquittal on one or more counts or on one or more degrees of an offense that is divided into degrees. The Rule requires, however, that the defendant “shall state with particularity all reasons why the motion should be granted.” This Court has held that, if such a motion is not made, an appellate court will not review the case to determine the sufficiency of the evidence. The issue-perhaps the most important one in the case — is regarded as waived, unpreserved. Wersten v. State, 228 Md. 226 , 179 A.2d 364 (1962). We have also held that, even if such a motion is made, the failure of the defendant to particularize his/her complaint — to point out how and why the evidence is legally insufficient — also withdraws the issue from appellate review. See State v. Lyles, 308 Md. 129 , 517 A.2d 761 (1986); Muir v. State, 308 Md. 208 , 517 A.2d 1105 (1986); and cf. Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989).
A lawyer is not required to make a motion for judgment of acquittal unless there is a reasonable basis for the motion, and, indeed, it likely would be a violation of Rule 3.1 of the Code of Professional Responsibility for the lawyer to make such a motion frivolously — without a reasonable basis in the record. 1 Nonetheless, it has become routine in criminal cases for counsel to file such a motion, regardless of the state of the record. There are two reasons, both pragmatic. Nothing is lost by filing the motion, but everything may be lost if one is not filed. In the heat of the battle, one may never know for certain whether the presiding judge might entertain some doubt about the legal sufficiency of the evidence and be inclined to grant the motion, in whole or in part. Whether any group of appellate judges would find the evidence insuffi *575 cient would, in that situation, be irrelevant, for if the trial judge grants a judgment of acquittal, that ends the matter, at least to the extent of the acquittal. On the other hand, if the motion is not made, the issue is lost, both at the trial and appellate levels. The trial judge is not given the opportunity to rule and the appellate court is not given the opportunity to find the evidence insufficient, even if the trial judge would have found otherwise. From the point of view of a Strickland analysis, the issue, as to both prongs — deficient performance and prejudice — will, in most cases, depend entirely on whether a reviewing court, in post conviction proceedings, concludes that there was a proper basis for such a motion.
If a motion is made but not particularized, the situation may be worse. There is always the chance that, even if not particularized, the motion may be granted by the trial judge, who might well conclude on his or her own analysis that the evidence is insufficient. If that happens, of course, the issue will disappear and will never surface in either an appeal or a post conviction proceeding. The concern we face is when such a motion is not granted. If an unparticularized motion is not granted, the defendant has lost the right of appellate review^ just as if the motion had never been made at all, but that loss may be made worse by the assumption that, in making even the generalized motion, the lawyer believed that there was some basis for it. The deficiency withdraws from appellate review an issue that the lawyer presumably believed existed.
The end result will be the same — post conviction relief will be unavailable, because of the prejudice prong of Strickland, unless the reviewing court finds that the evidence as to at least one conviction was legally insufficient. I would find it difficult, however, to justify a conclusion that there was not deficient performance. If the lawyer believed that there was enough of a basis for the motion to make it, how could it not be deficient performance to fail to make it in such a way as to make it effective? This is one instance in which simply making a motion “for the record” has no effect (unless, fortuitously, it is granted).
*576 This is an area in which trial judges can, and should, provide some meaningful assistance. A motion for judgment of acquittal asks the judge to end the case, or at least part of the case. The judge is entitled to know every possible basis for the motion, and should not permit counsel to rest on an unparticu-larized motion, unless, as sometimes happens, the judge intends to grant the motion based on his or her own analysis. It is a simple matter to ask counsel, “on what ground,” or to ask counsel to explain what necessary element is missing. I do not suggest that the judge has any legal duty or responsibility to make that inquiry, and, even when made, it will not necessarily result in all proper grounds being stated, but (1) it might help in some cases, and (2) it will not leave the record showing only a legally useless motion.
. Rule 3.1 states that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.”