per se rule in Maryland

2006In United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), decided the same day as Strickland , the Supreme Court established that certain deficient performances of counsel justified a per se presumption of ineffectiveness under the Sixth Amendment.

2006In United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), decided the same day as Strickland , the Supreme Court established that certain deficient performances of counsel justified a per se presumption of ineffectiveness under the Sixth Amendment.

2023Bailey, 657 F.2d at 24 (cleaned up).14 a per se rule that such orders are violations of the Sixth Amendment right to assistance of counsel.

2023Bailey, 657 F.2d at 24 (cleaned up).14 a per se rule that such orders are violations of the Sixth Amendment right to assistance of counsel.

2023But the United States Supreme Court and this Court have both stated that the presumption of prejudice applies in only three instances: (1) the “[a]ctual . . . denial of the assistance of counsel altogether”; (2) the “constructive denial of the assistance of counsel altogether”; and (3) “when counsel [was] burdened by an actual conflict of interest[.]” Ramirez, 464 Md. at 574 (alterations in original) (quoting Strickland, 466 U.S. at 692 ).

2023But the United States Supreme Court and this Court have both stated that the presumption of prejudice applies in only three instances: (1) the “[a]ctual . . . denial of the assistance of counsel altogether”; (2) the “constructive denial of the assistance of counsel altogether”; and (3) “when counsel [was] burdened by an actual conflict of interest[.]” Ramirez, 464 Md. at 574 (alterations in original) (quoting Strickland, 466 U.S. at 692 ).

2005The majority has decried the need for and denied any intention to announce a per se rule with respect to laches in election cases. 387 Md. at 671-72, 876 A.2d at 705.

2005The majority has decried the need for and denied any intention to announce a per se rule with respect to laches in election cases. 387 Md. at 671-72, 876 A.2d at 705.

2004See Richards v. Wisconsin, 520 U.S. 385, 392-93 , 117 S.Ct. 1416, 1420-21 , 137 L.Ed.2d 615, 622 (1997) (stating, “[i]f a per se exception were allowed for each category of criminal investigation that included a considerable [ ] risk of danger to officers or destruction of evidence, the knock-and-announce element of the P’ourth Amendment’s reasonableness requirement would be meaningless”); see also State v. Lee, 374 Md. 275, 308 , 821 A.2d 922, 941 (2003).

2004See Richards v. Wisconsin, 520 U.S. 385, 392-93 , 117 S.Ct. 1416, 1420-21 , 137 L.Ed.2d 615, 622 (1997) (stating, “[i]f a per se exception were allowed for each category of criminal investigation that included a considerable [ ] risk of danger to officers or destruction of evidence, the knock-and-announce element of the P’ourth Amendment’s reasonableness requirement would be meaningless”); see also State v. Lee, 374 Md. 275, 308 , 821 A.2d 922, 941 (2003).

2025Instead of a per se rule, the Court declared 32 that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.[25] Id. at 480 .

2020See Strickland, 466 U.S. at 688 (holding that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances”); Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (rejecting a per se rule that an attorney is ineffective if the attorney fails to file a notice of appeal in a criminal case, because such a rule is inconsistent with “the circumstance-specific reasonableness inquiry required by Strickland”); State v. Borchardt, 396 Md. 586, 603, 604 (2007) (observing that “[t]he deficient performance inquiry includes a context-dependent consideration of th

2020But selling heroin is not enough in itself to support a finding of gross negligence involuntary manslaughter, and the Court of Appeals declined to recognize “a per se rule providing that all heroin distribution resulting in death constitutes gross negligence . . . .” Id. at 167, 169 (“[D]istribution, alone, does not always amount to gross negligence.”).

2020First, this was the first overdose-related involuntary manslaughter case to reach our Court after the Court of Appeals issued Thomas, 464 Md. at 169–72, and the first opportunity to identify situations that would or wouldn’t satisfy Thomas’s new standard.1 After analyzing the facts of this case against the Thomas factors, we concluded that “[i]nterpreting Thomas to assume knowledge of a drug’s contents with its riskiness on the part of all low-level, infrequent dealers would lead to the per se rule Thomas warned against[,]” and that “if this drug sale qualifies as grossly negligent, we struggl

2000Embracing a less stringent rule for conflict of interest claims than for general ineffective assistance claims, quoting Cuyler v. Sullivan, 446 U.S. at 348 , 100 S.Ct. 1708 , the Court, in dictum, stated: [T]he rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above.

2000Embracing a less stringent rule for conflict of interest claims than for general ineffective assistance claims, quoting Cuyler v. Sullivan, 446 U.S. at 348 , 100 S.Ct. 1708 , the Court, in dictum, stated: [T]he rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above.

2014See Ross v. State Bd. of Elections, 387 Md. 649, 671 , 876 A.2d 692, 705 (2005) (citing Fulani v. Hogsett, 917 F.2d 1028 , 1031 (7th Cir.1990); Kay v. Austin, 621 F.2d 809, 813 (6th Cir.1980); MacGovern v. Connolly, 637 F.Supp. 111, 115 (D.Mass.1986); Barthelmes v. Morris, 342 F.Supp. 153, 160-61 (D.Md. 1972)).

2005Thus, the courts are free, if the equities so require, to assess the facts of a purely equitable action independent of a statutory time limitation applicable at law. *671 We also recognize that some federal courts have adopted a per se rule with respect to the application of laches to claims arising out of elections, stating that “any claim against a state electoral procedure must be expressed expeditiously.” Fulani v. Hogsett, 917 F.2d 1028,1031 (7th Cir.1990) (noting that “any claim against a state electoral procedure must be expressed expeditiously” because “[a]s time passes, the state’s in

2014See Ross v. State Bd. of Elections, 387 Md. 649, 671 , 876 A.2d 692, 705 (2005) (citing Fulani v. Hogsett, 917 F.2d 1028 , 1031 (7th Cir.1990); Kay v. Austin, 621 F.2d 809, 813 (6th Cir.1980); MacGovern v. Connolly, 637 F.Supp. 111, 115 (D.Mass.1986); Barthelmes v. Morris, 342 F.Supp. 153, 160-61 (D.Md. 1972)).

2005Thus, the courts are free, if the equities so require, to assess the facts of a purely equitable action independent of a statutory time limitation applicable at law. *671 We also recognize that some federal courts have adopted a per se rule with respect to the application of laches to claims arising out of elections, stating that “any claim against a state electoral procedure must be expressed expeditiously.” Fulani v. Hogsett, 917 F.2d 1028,1031 (7th Cir.1990) (noting that “any claim against a state electoral procedure must be expressed expeditiously” because “[a]s time passes, the state’s in

2014See Ross v. State Bd. of Elections, 387 Md. 649, 671 , 876 A.2d 692, 705 (2005) (citing Fulani v. Hogsett, 917 F.2d 1028 , 1031 (7th Cir.1990); Kay v. Austin, 621 F.2d 809, 813 (6th Cir.1980); MacGovern v. Connolly, 637 F.Supp. 111, 115 (D.Mass.1986); Barthelmes v. Morris, 342 F.Supp. 153, 160-61 (D.Md. 1972)).

2005Thus, the courts are free, if the equities so require, to assess the facts of a purely equitable action independent of a statutory time limitation applicable at law. *671 We also recognize that some federal courts have adopted a per se rule with respect to the application of laches to claims arising out of elections, stating that “any claim against a state electoral procedure must be expressed expeditiously.” Fulani v. Hogsett, 917 F.2d 1028,1031 (7th Cir.1990) (noting that “any claim against a state electoral procedure must be expressed expeditiously” because “[a]s time passes, the state’s in

2014See Ross v. State Bd. of Elections, 387 Md. 649, 671 , 876 A.2d 692, 705 (2005) (citing Fulani v. Hogsett, 917 F.2d 1028 , 1031 (7th Cir.1990); Kay v. Austin, 621 F.2d 809, 813 (6th Cir.1980); MacGovern v. Connolly, 637 F.Supp. 111, 115 (D.Mass.1986); Barthelmes v. Morris, 342 F.Supp. 153, 160-61 (D.Md. 1972)).

2005Thus, the courts are free, if the equities so require, to assess the facts of a purely equitable action independent of a statutory time limitation applicable at law. *671 We also recognize that some federal courts have adopted a per se rule with respect to the application of laches to claims arising out of elections, stating that “any claim against a state electoral procedure must be expressed expeditiously.” Fulani v. Hogsett, 917 F.2d 1028,1031 (7th Cir.1990) (noting that “any claim against a state electoral procedure must be expressed expeditiously” because “[a]s time passes, the state’s in

1992The law is well settled, however, that “[requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1177 , 55 L.Ed.2d 426, 433 (1978).

1992The law is well settled, however, that “[requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1177 , 55 L.Ed.2d 426, 433 (1978).

2023Rather, in Strickland, 466 U.S. at 692 , the Supreme Court concluded that a per se presumption of prejudice applies both to certain types of government interference and to the actual or constructive denial of the assistance of counsel.

2023In contrast, in Strickland, 466 U.S. at 692 , the Supreme Court maintained the requirement that the presumption of prejudice in a conflict-of-interest claim requires a showing (i.e., that counsel actively represented conflicting interests and that an actual conflict adversely affected counsel’s performance), which is not needed under the per se rule of presumed prejudice for the actual or constructive denial of the assistance of counsel.

2022We declined, though, “to impose a per se rule of reversal where the denial of access was brief, limited in scope, and where the trial judge gave counsel and [Mr. Wooten-Bey] time to confer when it became apparent they needed to do so, thus curing any constitutional defect.” Id.

2022We held only that “where the deprivation is short enough so that prejudice cannot be presumed and it is apparent that the proceeding was fundamentally fair, a per se rule of reversal and retrial will not be applied.” Id.

2007In addition, see State v. Lee, 374 Md. 275 , 289 n. 9, 821 A.2d 922 , 930 n. 9 (2003), pointing out that, under the Richards opinion, the Fourth Amendment holding in Henson , "to the extent that Henson sanctioned a per se rule in drug cases, ... is no longer good law.” See also Davis and Adams v. State, 383 Md. 394 , 413 n. 13, 859 A.2d 1112 , 1123 n. 13 (2004). .

2007In addition, see State v. Lee, 374 Md. 275 , 289 n. 9, 821 A.2d 922 , 930 n. 9 (2003), pointing out that, under the Richards opinion, the Fourth Amendment holding in Henson , "to the extent that Henson sanctioned a per se rule in drug cases, ... is no longer good law.” See also Davis and Adams v. State, 383 Md. 394 , 413 n. 13, 859 A.2d 1112 , 1123 n. 13 (2004). .

2023App. 256, 273 (2014) (quoting Hill, 418 Md. at 75 ).

2023The Maryland common law test similarly looks to “the totality of the circumstances affecting the interrogation and confession,” Hill v. State, 418 Md. 62, 75 (2011), but applies a per se rule of exclusion for statements that were “‘the product of an improper threat, promise, or inducement by the police.’” Madrid v. Statex, 474 Md. 273, 317 (2021) (quoting Lee v. State, 418 Md. 136, 158 (2011)).

2021Id. at 722 , 824 A.2d at 141 (emphasis added); Hemming v. State, 469 Md. 219, 259 , 229 A.3d 825, 849 (2020) (“the Carter Court promulgated a per se rule, under which the State 19 is not permitted to object to such a stipulation and, if requested by a defendant, the [circuit] court must grant or accept the stipulation.”).

2021Id. at 722 , 824 A.2d at 141 (emphasis added); Hemming v. State, 469 Md. 219, 259 , 229 A.3d 825, 849 (2020) (“the Carter Court promulgated a per se rule, under which the State 19 is not permitted to object to such a stipulation and, if requested by a defendant, the [circuit] court must grant or accept the stipulation.”).

2007It stated, however, that “[a]lthough we do not adopt a per se rule, we regard the loyalty of each Maryland lawyer to a client to be of the ‘utmost importance,’ which is not to be ‘diminished, fettered, or threatened in any manner by his loyalty to another client.’ ” Graves, 94 Md.App. at 667 , 619 A.2d at 132 (quoting Allen v. District Court, 184 Colo. 202 , 519 P.2d 351, 353 (1974) (en banc)).

2007It stated, however, that “[a]lthough we do not adopt a per se rule, we regard the loyalty of each Maryland lawyer to a client to be of the ‘utmost importance,’ which is not to be ‘diminished, fettered, or threatened in any manner by his loyalty to another client.’ ” Graves, 94 Md.App. at 667 , 619 A.2d at 132 (quoting Allen v. District Court, 184 Colo. 202 , 519 P.2d 351, 353 (1974) (en banc)).

2005Lykins, 288 Md. at 84-85 , 415 A.2d at 1121—22.

2005Lykins, 288 Md. at 84-85 , 415 A.2d at 1121—22.

2026See M&S Furniture Sales, 249 Md. at 544 .