Damien Gary Clark v. State of Maryland, No. 25, September Term, 2022

RIGHT TO COUNSEL – NO-COMMUNICATION ORDER – ACTUAL DENIAL OF ASSISTANCE OF COUNSEL – PREJUDICE – Supreme Court of Maryland* held that trial counsel’s failure to object to trial court’s order prohibiting communication between defendant and counsel during overnight recess in criminal trial, without any curative action, resulted in actual denial of assistance of counsel in violation of Sixth Amendment to United States Constitution and, under Strickland v. Washington, 466 U.S. 668 (1984), prejudice is presumed.

Supreme Court of Maryland held that where defendant alleges ineffective assistance of counsel based on trial counsel’s failure to object to no-communication order preventing communication between trial counsel and defendant during overnight recess in criminal trial, presumption of prejudice is warranted under Articles 21 and 24 of Maryland Declaration of Rights, independent of Sixth Amendment to United States Constitution.

Supreme Court of Maryland declined to adopt “actual deprivation” standard, which would require that, where trial court issues no-communication order preventing communication between defendant and trial counsel during overnight recess, as a condition precedent, postconviction petitioner must prove that petitioner would have actually spoken with counsel in order to establish actual denial of assistance of counsel and therefore be entitled to presumption of prejudice. Such approach is inconsistent with Sixth Amendment to United States Constitution, Articles 21 and 24 of Maryland Declaration of Rights, Supreme Court of United States’s holdings in Strickland, Geders v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272 (1989), and Supreme Court of Maryland’s case law.

* At the time of the grant of the petition for a writ of certiorari in this case, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Circuit Court for Howard County Case No. C-13-CR-18-000001 Argued: March 3, 2023 IN THE SUPREME COURT OF MARYLAND* No. 25 September Term, 2022 ______________________________________ DAMIEN GARY CLARK v. STATE OF MARYLAND ______________________________________ Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Opinion by Watts, J. Materials Act (§§ 10-1601 et seq. of the State Biran, J., concurs.** Government Article) this document is authentic. Fader, C.J., Booth and Gould, JJ., dissent. 2024.04.26 ______________________________________ 12:08:24 -04'00' Filed: August 31, 2023 Gregory Hilton, Clerk *At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. **Two opinions received the votes of the same four Justices in this case. One is by Justice Shirley M. Watts, which Justice Michele D. Hotten, Justice Jonathan Biran, and Justice Angela M. Eaves join. Justice Watts’s opinion has been designated the Majority Opinion in this case. The other opinion has been designated the Concurring Opinion of Justice Biran, which Justice Watts, Justice Hotten, and Justice Eaves join. In this case, we must determine whether trial counsel’s failure to object to a trial court’s order prohibiting any consultation about the case, i.e., a no-communication order, between Damien Gary Clark, Petitioner, and trial counsel during an overnight recess prior to the final day of testimony in Mr. Clark’s murder trial resulted in the actual denial of the assistance of counsel, as guaranteed by the Sixth Amendment, such that prejudice is presumed under the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This determination is necessary to resolve Mr. Clark’s contention that he was provided ineffective assistance because of trial counsel’s failure to object to the no- communication order by the trial court. If Mr. Clark was denied the assistance of counsel in violation of the Sixth Amendment, under the framework set forth by the Supreme Court of the United States in Strickland concerning the presumption of the prejudice, Mr. Clark need not show prejudice; rather, prejudice would be presumed. On the other hand, if there was no actual denial of the assistance of counsel, Mr. Clark must prove both deficient performance and prejudice under Strickland. On postconviction review, the Circuit Court for Harford County ruled that the no- communication order, and trial counsel’s failure to object, denied Mr. Clark the assistance of counsel in violation of the Sixth Amendment and presumed prejudice, ordering a new trial. The Appellate Court of Maryland1 reversed the judgment of the circuit court, reasoning that no “actual deprivation” of the assistance of counsel occurred, and concluded period of time during such a critical stage of the trial was error. As such, the circuit court

correctly concluded that trial counsel’s failure to object was objectively unreasonable and that counsel’s performance was deficient. We reach the same conclusion. Accordingly, we reverse the judgment of the Appellate Court of Maryland and uphold the circuit court’s order of a new trial for Mr. Clark, as trial counsel’s performance was deficient and Mr.

Clark was prejudiced.

BACKGROUND

Trial and Direct Appeal

On April 18, 2018, in the Circuit Court for Howard County, Mr. Clark was charged with second-degree murder, attempted second-degree murder, and first- and second-degree assault resulting from an altercation in a convenience store between him and two other men. During the fight, Mr. Clark wounded the two men with a knife, resulting in one’s death. At trial, Mr. Clark raised the issue of self-defense.

On the fourth day of trial, February 14, 2019, Mr. Clark testified. Mr. Clark’s direct-

examination concluded at the end of the day, and he was due to return to the witness stand the following day for cross-examination. Before adjourning, the trial judge instructed Mr.

Clark that he could not to speak to anyone about the case, including his own lawyers, prior to resumption of his testimony:

THE SHERIFF: Sir, why don’t you go back to your counsel?

THE COURT: And, Mr. Clark, before you do.

[MR. CLARK]: Yes, sir.

THE COURT: You can’t talk to anybody about the case this evening even Mr.

Garcia and Ms. Mantegna.[2] Okay?

[MR. CLARK]: Okay.

THE COURT: You can’t talk to anybody. It sounds counter intuitive.

[MR. CLARK]: Yes.

THE COURT: You can’t talk to your own attorney about the case.

[MR. CLARK]: I understand, sir.

THE COURT: Okay. You’re welcome to step down. Go back to [the] trial table.

[MR. CLARK]: Okay. All right.

Mr. Clark’s trial counsel failed to object to the instruction from the trial court. The next day, Mr. Clark underwent cross-examination, and the defense rested.

On February 19, 2019, the jury found Mr. Clark guilty of voluntary manslaughter, attempted second-degree murder, and two counts of second-degree assault. The jury acquitted Mr. Clark of second-degree murder and first-degree assault. The trial court sentenced Mr. Clark to 50 years of incarceration.

On June 29, 2020, the Appellate Court of Maryland affirmed the convictions in an

unreported opinion. See Damien Gary Clark v. State of Maryland, No. 486, Sept. Term, 2019, 2020 WL 3498463, at *1 (App. Ct. Md. June 29, 2020). Addressing Mr. Clark’s contention that the trial court deprived him of his Sixth Amendment right to counsel with its instruction, the Appellate Court concluded that Mr. Clark’s argument was not preserved because of the lack of an objection, despite acknowledging that the contention had merit.

See id. at *7-8. The Appellate Court declined to “hold on direct appeal . . . that the failure

to object constitutes ineffective assistance of counsel as a matter of law” because of the lack of a developed record on the matter, although the Appellate Court could not “think of any reason why counsel would opt not to object to the trial judge’s instruction that Mr.

Clark not consult with his attorney overnight.” Id. at *8. Without the ability to assess “the possibility, however slim, that counsel had a legitimate strategic or tactical reason for letting the instruction go,” the Appellate Court left the issue for Mr. Clark to pursue in postconviction proceedings. Id.

Postconviction Proceedings in the Circuit Court

On February 19, 2021, Mr. Clark filed a petition for postconviction relief and reiterated the argument that the trial court’s instruction and his trial counsel’s failure to object violated his Sixth Amendment right to counsel. On July 29, 2021, the circuit court held a hearing on Mr. Clark’s petition and the State of Maryland’s, Respondent’s, response.

Mr. Clark’s trial counsel, Tony Garcia, testified that, at the time of Mr. Clark’s trial, he had been practicing criminal law for over 20 years, including time as a prosecutor and defense attorney, and he had tried over 100 trials of all types.

In response to a question from Mr. Clark’s postconviction counsel regarding his reason for not objecting to the trial court’s no-communication order, Mr. Garcia testified:

“At the time, I didn’t think there was anything for us to talk about that evening. We had

talked that morning, I guess when I delivered the suit to him. We talked during the trial, right before lunch. I believe, you know, at every break.” Mr. Garcia testified: “[T]he answer is that I just didn’t have anything to go over with him because I thought he was doing good on the witness stand.” Mr. Garcia elaborated that at the time he could not call and speak to Mr. Clark in the jail, but had to meet him in person and “the issue would have been, did I want to go back downstairs in the sheriff’s lockup and see [Mr. Clark] that day[.]” However, Mr. Garcia added that “at the end of each day, I would always ask [Mr.

Clark] if he had any questions or anything like that.” In response to Mr. Clark’s postconviction counsel’s question about whether he was familiar with Geders v. United

States, 425 U.S. 80 (1976), Mr. Garcia testified that he was not, but that he knew that Mr.

Clark had a right to speak with him: “I know he had a right to talk to me and if he said he had anything to say, I would have talked to him.”

On cross-examination, Mr. Garcia testified that he had extensively prepared Mr.

Clark for his testimony, both direct- and cross-examination, and that he did not have any concerns at the conclusion of Mr. Clark’s direct-examination that he would have addressed

in a meeting with him. Mr. Garcia testified that he could have objected, but that in the moment he “didn’t have anything to ask [Mr. Clark],” and Mr. Clark “didn’t say, hey, I want to talk to you.” The State asked Mr. Garcia: “Had Mr. Clark said, I want to speak to my attorney, would you have advocated on his behalf[?]” and Mr. Garcia responded:

“Absolutely.” Mr. Garcia testified that, looking back, his reaction was “wow, I should have objected but was I going to meet with him or say anything that night? The answer is

no. And he didn’t ask me.” Significantly, although Mr. Clark testified at the postconviction hearing, he was not asked, and did not testify, about the no-communication order or whether he had wanted to speak with counsel during the recess.

Mr. Garcia was not asked and offered no testimony as to whether, independent of his observation that Mr. Clark did not say he wanted to speak with him while in the courtroom, he knew whether Mr. Clark developed the desire to speak with him later during the recess or whether Mr. Clark had wanted to waive the right to counsel. Mr. Garcia also offered no testimony as to whether it would have been desirable or advantageous for him to speak to Mr. Clark about matters other than his testimony, such as a potential plea bargain, rebuttal witnesses for the State, or next steps in the trial.

On September 28, 2021, the circuit court granted Mr. Clark’s requested postconviction relief, ordering a new trial. The circuit court held that the no-

communication order was an error in direct conflict with the Supreme Court’s precedent in Geders and violated Mr. Clark’s Sixth Amendment rights. The circuit court concluded that

“[n]one of trial counsel’s testimony indicated that there was a legitimate strategic or tactical reason for letting the instruction go.” (Cleaned up). The circuit court characterized Mr.

Garcia’s testimony as conceding that he should have objected to the order. Because “[t]he

Sixth Amendment right to counsel belongs solely to the individual on trial and cannot be waived by his attorney[,]” the circuit court concluded that Mr. Garcia could not waive Mr.

Clark’s right to counsel, which was violated because Mr. Clark “may have desired to

[consult with counsel], but was not able to due to the trial court’s instruction.” The circuit court viewed the facts of the case as essentially the same as in Geders. The circuit court held that Mr. Clark “was prejudiced by trial counsel’s failure to object not only because he was deprived of his Sixth Amendment right to counsel during the overnight recess, but also because he was not able to raise the issue on appeal due to trial counsel’s failure to object to the erroneous instruction.” The State filed an application for leave to appeal, which the Appellate Court of Maryland granted.

Opinion of the Appellate Court of Maryland On July 28, 2022, a divided panel of the Appellate Court of Maryland reversed the circuit court’s judgment. See Clark, 255 Md. App. at 331, 279 A.3d at 1123. The Appellate

Court distinguished this case from both Geders and Perry v. Leeke, 488 U.S. 272 (1989), because, in those cases, trial counsel had objected to the order, whereas in Mr. Clark’s case, trial counsel had not. See Clark, 255 Md. App. at 339, 279 A.3d at 1127-28. The Appellate

Court held that, “although an order to the defendant not to discuss his or her testimony with anyone during an overnight recess is improper, it does not, by itself, constitute a deprivation of the right to counsel.” Id. at 345, 279 A.3d at 1131. Rather, according to the Appellate

Court, to show that the no-communication order “resulted in a violation of the defendant’s

Sixth Amendment right to counsel, there must be some evidence that there was an actual

deprivation of counsel.” Id. at 345, 279 A.3d at 1131. In reaching this conclusion, the Appellate Court relied on decisions by courts in other jurisdictions that had utilized an

“actual deprivation” standard, such as the Third Circuit’s holding in Bailey v. Redman, 657

F.2d 21 (3d Cir. 1981) (per curiam), cert. denied, 454 U.S. 1153 (1982), which the Court found to be more persuasive than the case cited by Mr. Clark for the opposite proposition.

See Clark, 255 Md. App. at 342-45, 279 A.3d 1129-31. The Appellate Court concluded that Mr. Clark was not entitled to the presumption of prejudice and had failed to demonstrate prejudice. See id. at 345-47, 279 A.3d 1131-32.

The Appellate Court discussed Weaver v. Massachusetts, 582 U.S. 286 (2017), which the Appellate Court stated held “that a violation of the right to a public trial requires automatic reversal on direct appeal, but when it is raised as part of an ineffective assistance of counsel claim, it is still analyzed under the Strickland framework.” Clark, 255 Md. App. at 339, 279 A.3d at 1128. The Appellate Court quoted cases in which this Court has discussed ineffective assistance of counsel, such as Newton v. State, 455 Md. 341, 168

A.3d 1 (2017), cert. denied, ___ U.S. ___, 138 S. Ct. 665 (2018), and Ramirez v. State, 464

Md. 532, 212 A.3d 363 (2019), cert. denied, ___ U.S. ___, 140 S. Ct. 1134 (2020). See

Clark, 255 Md. App. at 339-40, 279 A.3d at 1128. Based on this case law, the Appellate

Court concluded that, “because this case is before us in the posture of review of a post-

conviction claim of ineffective assistance of counsel, we do not address the merits of the trial court error.” Id. at 340, 279 A.3d at 1128.

The Appellate Court described the “lens” for addressing Mr. Clark’s claim: the Strickland test, requiring the defendant to prove both deficient performance of counsel and that prejudice resulted. Clark, 255 Md. App. at 340, 279 A.3d at 1128. The Appellate

Court concluded that Mr. Clark’s ineffective assistance of counsel claim failed because he had “failed to prove that he was prejudiced by counsel’s failure to object to the court’s instruction.”3 Clark, 255 Md. App. at 340, 279 A.3d at 1128. The Appellate Court explained that Mr. Clark needed to establish prejudice by showing either “(1) that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; or (2) that the result of the proceeding was fundamentally unfair or unreliable.” Id. at 340, 279 A.3d at 1128 (quoting State v. Syed, 463 Md. 60, 86, 204 A.3d 139, 154 (2019)) (internal quotation marks omitted). The Appellate Court noted that prejudice is presumed “in certain Sixth Amendment contexts,”

such as when “(1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s

counsel had an actual conflict of interest.” Id. at 341, 279 A.3d at 1129 (quoting Ramirez, 464 Md. at 573, 212 A.3d at 387) (internal quotation marks omitted).

But, the Appellate Court stated, “to show a deprivation of the right to counsel in this

context, there must be a showing that the instruction actually prevented the defendant and defense counsel from communicating.” Id. at 341, 279 A.3d at 1129. The Appellate Court concluded that an objection by counsel to a court’s instruction not to communicate

“indicates that, ‘absent the court’s instruction, Defendant would have met with his counsel.’” Id. at 342, 279 A.3d at 1129 (quoting Wallace v. State, 851 So. 2d 216, 220

(Fla. Dist. Ct. App.), review denied, 860 So.2d 980 (Fla. 2003), cert. denied, 540 U.S. 1187

(2004)). The Appellate Court reasoned that there was no prejudice to Mr. Clark because

“there was no objection to the instruction, nor was there any showing that the court’s instruction deprived [Mr. Clark] of the right to assistance of counsel.” Id. at 342, 279 A.3d at 1129. The Appellate Court observed that trial counsel’s postconviction testimony indicated that he had nothing to discuss with Mr. Clark, and that Mr. Clark testified but

“did not testify that he would have talked to counsel absent the court’s instruction.” Id. at

342, 279 A.3d at 1129.

In a dissenting opinion, the Honorable Douglas R. M. Nazarian concluded that “Mr.

- 10 -

Clark’s Sixth Amendment rights were violated, in real life terms and in constitutional

terms, when the court wrongly forbade him from conferring with counsel[,]” “because the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away.” Clark, 255

Md. App. at 348-49, 279 A.3d at 1133 (Nazarian, J., dissenting). The dissent distinguished

the cases relied on by the majority in setting an “actual deprivation” standard. See Clark, 255 Md. App. at 360, 279 A.3d at 1140 (Nazarian, J., dissenting). The dissent pointed out

that Bailey, 657 F.2d 21, was the basis for the Fourth Circuit’s reasoning in Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), and, in turn, in Perry, which the Supreme

Court rejected in that case. See Clark, 255 Md. App. at 360-62, 279 A.3d at 1140-41

(Nazarian, J., dissenting). The dissent distinguished United States v. Nelson, 884 F.3d

1103 (11th Cir. 2018), factually, because in that case the defendant’s lawyer requested to speak with the defendant during an overnight recess about topics other than the defendant’s testimony, which the trial court granted, whereas Mr. Clark was forbidden from discussing

not only his testimony but also any other matters about trial with his lawyer. See Clark, 255 Md. App. at 362-64, 279 A.3d at 1141-42 (Nazarian, J., dissenting). Similarly, the dissent distinguished the facts of Wallace, 851 So. 2d 216, because the instruction to not communicate in that case applied to a lunch recess that was more like Perry’s 15-minute break than the overnight prohibition in Geders and here. See Clark, 255 Md. App. at 364-

65, 279 A.3d at 1143 (Nazarian, J., dissenting). Unlike the majority, the dissent found

persuasive Martin v. United States, 991 A.2d 791, 795-96 (D.C. 2010), a case in which the District of Columbia Court of Appeals relied on the Supreme Court’s emphasis that “the right to counsel does not depend upon a request by the defendant, and courts indulge in - 11 - every reasonable presumption against waiver[,]” such that the government has the burden to prove a valid waiver of the right. Clark, 255 Md. App. at 365-67, 279 A.3d at 1143-44

(Nazarian, J., dissenting) (cleaned up).

The dissent pointed out that, in Perry, the Supreme Court held “‘that a showing of prejudice is not an essential component of a violation of the rule announced in Geders’” and that the rule announced in Geders “makes no mention of any requirement that a defendant prove an actual real-time desire to meet with counsel during the overnight recess as a condition of proving that they were deprived of the assistance of counsel.” Clark, 255

Md. App. at 362, 279 A.3d at 1141 (Nazarian, J., dissenting) (citations omitted). The dissent explained that Mr. Clark presented a straightforward Geders claim and determined

that, “under the binding and most analytically congruent cases—Geders, Perry, and Wooten-Bey[ v. State, 76 Md. App. 603, 547 A.2d 1086 (1988), aff’d, 318 Md. 301, 568

A.2d 16 (1990)]—the trial court’s no-communication directive” deprived Mr. Clark of his

Sixth Amendment right to confer with counsel by its very nature. Id. at 367, 371, 279 A.3d

at 1144, 1146 (Nazarian, J., dissenting). The dissent would have concluded that, as a result, Mr. Clark was entitled to a presumption of prejudice. See id. at 349, 279 A.3d at 1134

(Nazarian, J., dissenting). The dissent faulted the majority’s holding regarding Mr. Clark’s need to show prejudice as erroneously establishing the proposition that “the court can take

away a defendant’s right to counsel unless he proves that he planned to use it right then, never mind the court ordering him not to.” Id. at 377, 279 A.3d at 1150 (Nazarian, J., dissenting). The dissent observed that the Supreme Court has emphasized the significance of a fair trial in ineffective assistance of counsel cases, and reiterated that an actual denial

- 12 - of the assistance of counsel relieves the defendant of proving prejudice because “[t]he presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Id. at 355, 279 A.3d at 1137 (Nazarian, J., dissenting) (quoting United States v. Cronic, 466 U.S. 648, 659

(1984)).

Petition for a Writ of Certiorari

On, August 15, 2022, Mr. Clark petitioned for a writ of certiorari, raising the following four issues:

I. As a matter of first impression, does requiring a criminal defendant to retroactively prove his desire to defy the trial court’s order against speaking with his attorney about his case during an overnight recess violate his constitutional right to counsel?

II. Does permitting counsel to neglect or waive his client’s right to speak with him during an overnight recess violate that client’s constitutional right to counsel?

III. Was the post-conviction court’s ruling that prejudice was found from trial counsel not preserving the issue for appeal correct?

IV. Is not objecting to the violation of a criminal defendant’s right to counsel due to mere ignorance of the law deficient performance?

On November 18, 2022, we granted the petition. See Clark v. State, 482 Md. 141, 284

A.3d 848 (2022).

DISCUSSION4

The Parties’ Contentions

Mr. Clark contends that requiring him to demonstrate that he was prejudiced as a Amendment. The State, therefore, understandably did not make any argument as to Article

21 and Article 24. In most cases, I would be in favor of at least asking for supplemental briefing before deciding an issue that had not been briefed and argued. However, it is not

as if the unbriefed/unargued issue in this case is unrelated to the issue that was briefed and argued by the parties. To the contrary, they are as closely related as two issues can be. All parties understand that both the United States and the Maryland Constitutions afford criminal defendants a right to the effective assistance of counsel.

It is possible that, if we asked the State for supplemental briefing regarding Article

21 and Article 24, the State would recognize that there are “some persuasive reasons why a presumption of prejudice is sensible in a case like this, and why it may be important to recognize such a presumption [under the Maryland Constitution] to preserve the right to the effective assistance of counsel regardless of whether there has been a showing of an

actual denial of that right,” as the State and my dissenting colleagues understand the meaning of the phrase “actual denial.” Dissenting Op. of Fader, C.J., at 7; see also Perry

v. State, 357 Md. 37, 85 & n.11 (1999) (in an ineffective assistance of counsel case, disagreeing with a position taken by Justice Lewis Powell in a concurring opinion in Kimmelman v. Morrison, 475 U.S. 365, 391 (1986), and subsequently also by the United

States Court of Appeals for the Seventh Circuit, and explaining that this Court’s conclusions “announced in this Opinion … constitute our construction of the independent

Maryland Constitutional provision [Article 21]”). However, for present purposes, I will

assume that, if we were to ask for supplemental briefing, the State would argue that: (1) the State wins under the Sixth Amendment; (2) Article 21 and Article 24 should not be read to provide any broader protection to criminal defendants than the Sixth Amendment does in this context; and (3) therefore, the State wins under an Article 21 and Article 24 analysis.

The Court does not need to wait for the State to tell us that before deciding whether we agree or disagree. We already know that the Majority disagrees with the threshold premise that the State prevails under the Sixth Amendment.^[1]

As Justice Watts has explained, the Majority believes that the United States

Supreme Court would decide this case in Mr. Clark’s favor under the Sixth Amendment.

But, ultimately, whether the Supreme Court agrees with the Majority under the Sixth

Amendment does not affect my conception of the right to counsel under Articles 21 and 24. The right to counsel is arguably the most important right enshrined in Maryland’s

Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth

Amendment provides the same amount of protection as Article 21 and Article 24 do in this context, it will answer in the affirmative. But if I am wrong about that, then I will be proud that Maryland provides a more robust right to counsel in this context under Article 21 and Article 24.

I do not want to waste anybody’s time. That includes the State, but even more so, Mr. Clark. He is entitled to a new trial. The Majority is right to order that now, rather than wait to do so until the next term of Court.

Justices Watts, Hotten, and Eaves have authorized me to state that they join this opinion.

Circuit Court for Howard County Case No. C-13-CR-18-000001

Argued: March 3, 2023 IN THE SUPREME COURT

OF MARYLAND*

No. 25

September Term, 2022 ______________________________________

DAMIEN GARY CLARK v. STATE OF MARYLAND ______________________________________

Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________

Dissenting Opinion by Fader, C.J., which Booth and Gould, J.J. join. ______________________________________

Filed: August 31, 2023 with the Majority that a presumption of prejudice arises under Strickland, 466 U.S. at 692, and Mr. Clark would prevail. If it does not, however, then Mr. Clark cannot prevail.

As a starting point, none of the cases on which the Majority opinion predominantly relies—Geders; Perry v. Leeke, 488 U.S. 272 (1989); Strickland; or Ramirez v. State, 464

Md. 532 (2019)—held, either expressly or implicitly, that a no-communication order

always results in an actual denial of the assistance of counsel for purposes of the Strickland analysis. In both Geders and Perry, the no-communication orders at issue were contested at trial, so the issue was not presented. See Geders, 425 U.S. at 82 (stating that petitioner’s counsel objected to the no-communication instruction); Perry, 488 U.S. at 274 (stating that

counsel moved for a mistrial based on the no-communication instruction). In Strickland, the United States Supreme Court established a presumption of prejudice when there has been an “[a]ctual . . . denial of the assistance of counsel altogether,” 466 U.S. at 692, but did not identify the circumstances in which an actual denial occurs, much less explore whether an actual denial results from a no-communication order. And in Ramirez, this

Court briefly discussed the actual denial exception to the requirement to prove prejudice under Strickland—and, as I discuss below, adopted a definition of actual denial—but also did not discuss whether a no-communication order necessarily results in an actual denial of the assistance of counsel because there was no such order in that case. 464 Md. at 574-

75.

The Majority nonetheless treats those cases as establishing that the phrase “actual denial” necessarily encompasses a no-communication order. By contrast, Justice Gould interprets the phrase as encompassing the failure to object to a no-communication order only if there is some evidence—any evidence—that the order actually inhibited communication between a defendant and counsel. Dissenting Op. of Gould, J. at 30-32.

On that issue, Justice Gould has the more sound analysis.

First, I have no qualms with the Majority’s definition of denial as a “‘refusal to satisfy a request or desire[,]’ or ‘refusal to grant or allow something[.]’” Maj. Op. at 31 n.11 (quoting two dictionary definitions of “denial”). But “denial,” as used by the United

States Supreme Court in Strickland and applied here, does not stand alone; it is modified

by “actual.”3 In this context, “actual” means “existing in fact or reality” and “existing or occurring at the time.” Actual, Merriam-Webster’s Collegiate Dictionary 13 (11th ed.

2014); see also Actual, New Oxford American Dictionary 16 (3d ed. 2010) (defining

“actual” as “existing in fact; typically as contrasted with what was intended, expected, or believed”). “Actual denial” thus refers to a refusal that exists in fact, i.e., that has effect.

The Majority’s understanding of “actual denial” effectively strips the modifier “actual”

away, thus broadening the exception identified in Strickland beyond its plain meaning and beyond what the United States Supreme Court and this Court have previously recognized.

Second, the Majority’s reliance on Ramirez for its different understanding of “actual

denial” is misplaced. In Ramirez, relying on United States v. Cronic, 466 U.S. 648 (1984), this Court included the following definition: “Actual denial of the assistance of counsel occurs where ‘counsel was either totally absent, or prevented from assisting the [petitioner] during a critical stage of the proceeding.” 464 Md. at 574 (alteration in original) (quoting

Cronic, 466 U.S. at 659 n.25). Mr. Clark has not claimed that his counsel was totally absent, nor could he.^[4] In making the case that Mr. Clark’s counsel was “prevented from

assisting [him] during a critical stage of the proceeding,” the Majority relies on the following definitions of “prevent”: “‘to keep from happening or existing’ and ‘to deprive of power or hope of acting or succeeding[.]’” Maj. Op. at 54-55 (quoting two dictionary definitions). However, both of those definitions instead bolster the plain language understanding of “actual denial.” An action does not “keep [something] from happening or existing” if that thing would not have happened or existed anyway, nor does an action

“deprive” someone of something that the individual would not have had otherwise.

(Emphasis added).

Third, the Majority includes several statements to the effect that neither the United

States Supreme Court nor this Court has ever “required a defendant to demonstrate or prove anything as a condition to the presumption applying[.]” See, e.g., Maj. Op. at 43-44; see also id. at 19 (“With respect to an actual or constructive denial of the assistance of counsel

and certain kinds of State interference, no affirmative showing or demonstration by the defendant is required; rather, there is a per se rule of prejudice.”), id. at 35 (“This Court has never held that, to establish that counsel was prevented from rendering assistance during a critical stage of the proceedings, a defendant is required to demonstrate that the defendant wanted to, or would have taken advantage of the opportunity to, speak with counsel.”), id. at 69-70 (“Prejudice is presumed without the requirement that the defendant satisfy any condition precedent.”). But 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). To trigger a presumption of prejudice under Strickland, therefore, a defendant must identify the existence of one of those three circumstances. If any of them exist, then nothing further is required to invoke the presumption of prejudice.

But that does not obviate the need to at least identify, in this case, an actual denial of the assistance of counsel. And, in my understanding of it, that is all the analysis in Justice

Gould’s dissent would require: some demonstration that a circumstance that must exist to give rise to a presumption of prejudice does, in actuality, exist. That demonstration can be

made by an objection at trial, some other indication from trial that the defendant and counsel would have spoken but for the no-communication order, or some evidence put forward at a subsequent proceeding to that effect. See Dissenting Op. of Gould, J. at 37-

38.

To the extent the Majority’s decision today purports to apply federal constitutional law, the Majority has effectively added a fourth exception in which this Court will presume prejudice for purposes of applying Strickland, which is when a court issued a no- communication order. I dissent from that portion of the Majority’s holding because I think that controlling precedent concerning federal constitutional law mandates it. See Ramirez, 464 Md. at 574-75 (concluding that “[t]he [United States] Supreme Court’s opinions in Strickland and Cronic establish that the presumption of prejudice applies only under three

circumstances” and that if it “applied under any circumstance other than [those] three, the Supreme Court would have stated as much in its thorough discussion of the presumption of prejudice in Cronic” (citations omitted)).

B. The Majority’s State Constitutional Holding

In addition to its reliance on federal constitutional law, the Majority also concludes

that the no-communication order under review violated Articles 21 and 24 of the Maryland Declaration of Rights. Maj. Op. at 2, 44-48, 69-70. In doing so, the Majority identifies

some persuasive reasons why a presumption of prejudice is sensible in a case like this, and why it may be important to recognize such a presumption to preserve the right to the effective assistance of counsel regardless of whether there has been a showing of an actual denial of that right. Id. at 60-61, 62-63. I am convinced that those concerns are worth further exploration and may ultimately lead me to conclude that the order in this case violated Mr. Clark’s rights under the Constitution of Maryland.

The problem with drawing that conclusion here, however, is that not only was it not raised or decided in the courts below, see Md. Rule 8-131(a) (“Ordinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary

or desirable to guide the trial court or to avoid the expense and delay of another appeal.”), but it also was neither briefed nor argued by the parties in this Court. We have commented on the limited circumstances in which it is appropriate for an appellate court to review any unpreserved issue: “We usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.” Ray v. State, 435 Md. ^[1], 22

(2013) (quoting Conyers v. State, 354 Md. 132, 151 (1999)) (emphasis added). This is not such a situation.

The Majority is correct that we may interpret our Maryland Constitution to offer broader protection than the United States Constitution, and that we have sometimes done so. See, e.g., Leidig v. State, 475 Md. 181, 234-42 (2021) (addressing a claim concerning

the right to confrontation of witnesses under Article 21 in light of a lack of clarity in decisions of the United States Supreme Court under the Sixth Amendment to the United

States Constitution). As a general matter, I welcome the opportunity to explore claims

properly brought, or at a minimum properly briefed and argued, by litigants under the Maryland Constitution. However, I am not aware of a circumstance in which we have decided to do so without the benefit of any argument and analysis by the parties, much less the thorough briefing and argument we ordinarily treat as a prerequisite to addressing

unpreserved issues of any variety. For that reason, although there is much to commend in the Majority’s brief analysis addressing our State Constitution, I would not rule on that basis without first (1) providing the parties with notice that the Court is considering ruling on that basis, (2) inviting the parties to submit briefs addressing that issue, and (3) setting this case in for re-argument.

Justice Booth and Justice Gould advise that they join this dissenting opinion.

Circuit Court for Howard County Case No. C-13-CR-18-000001 Argued: March 3, 2023 overnight recess, the blame no longer lies with the court, but instead must lie with defendant’s counsel.

The Sixth Amendment is not necessarily offended, however, if a defendant cannot access his lawyer during a lengthy recess for reasons other than a trial court’s improper order. So the question then becomes: Was defense counsel’s failure to object, as a factual

matter, the causal agent for defendant’s inability to communicate with counsel during the overnight recess? We should ask that question because, for example, if defense counsel was going to be unavailable during the entire overnight recess anyway, you can’t blame his failure to object for the fact that they did not communicate. Similarly, if the defendant had no desire or inclination to speak with counsel in the first place, counsel’s failure to object did not have any effect on their ability to communicate.

Moreover, unlike when a defendant timely objects to the improper order during the trial, to ask that question in a post-conviction proceeding does not insert the court into an

area in which it has no business. The defendant already had his trial, no trial is perfect, and before the court grants the defendant a do-over, it’s not unfair for the court to require the defendant to at least show that he would have wanted to communicate with counsel had he been allowed to do so. Not what he would have wanted to discuss or how he would have taken advantage of the opportunity to speak with counsel—which always was and should remain none of the court’s business—just whether he wanted to do so. Post-conviction courts are not in the business of granting a windfall of a new trial.

Therein lies the fault line between the Majority’s analysis and mine. Ineffective assistance of counsel claims are governed by Strickland, which requires a defendant to prove that counsel’s deficient performance—not the trial court’s improper order—denied him his Sixth Amendment right to the effective assistance of counsel. Strickland requires proof that but-for counsel’s deficient performance, the outcome would likely have been different. A defendant is relieved of that burden if, as a factual matter, counsel’s deficient performance—here, counsel’s failure to object to the improper order—prevented him from communicating with counsel. When that happens, Strickland demands that we presume that the outcome would have been different, and that the defendant should be entitled to a new trial.

The Majority, however, concludes that it’s too much to ask in a Strickland claim whether the defendant wanted to speak with counsel during the overnight recess, let alone would have done so. As the Majority sees it, that the no-communication order was per se reversible error is enough to find that Mr. Clark was denied his Sixth Amendment right to the effective assistance of counsel. In effect, but without saying so, the Majority disregards settled precedent by bypassing Strickland and reviewing the trial court’s unobjected-to error under the plain error doctrine.

Moreover, the Majority provides an alternative holding based on issues neither

raised nor briefed by either party—Articles 21 and 24 of the Maryland Declaration of Rights. In doing so, the Majority not only departs from settled principles of judicial restraint, but overturns this Court’s recent reaffirmation of the well-established principle that we review ineffective-assistance-of-counsel claims under the United States

Constitution and the Maryland Declaration of Rights using the same standards.

Accordingly, for the reasons more fully explained below, I respectfully dissent.

BACKGROUND FACTS AND PROCEEDINGS The Trial

In February 2019, Appellant, Damien Gary Clark, was tried before a jury in the Circuit Court for Howard County on charges of second-degree murder, manslaughter, attempted second-degree murder, and several counts of assault. Mr. Clark was accused of stabbing two men during an altercation in a convenience store, causing the death of one and serious injury to the other.

Mr. Clark’s trial took five days. The State called 18 witnesses and presented 76 exhibits. Defense counsel tried to establish, through its cross-examination of the State’s

witnesses, that the victims could have been high on marijuana, that they beat up Mr. Clark, that Mr. Clark had two black eyes from the fight, that the victims blocked Mr. Clark’s exit

from the convenience store, that Mr. Clark’s wife, Felicia Cox, tried to break up the fight, that the victims could have easily exited the store, and that the surviving victim pushed Ms.

Cox after she grabbed his hoodie.

The State rested on the fourth day of trial. Mr. Clark testified in his case-in-chief and successfully moved to admit two exhibits. In his testimony, Mr. Clark walked the jury

through the entire encounter, from start to finish. He also narrated videos taken by the various security cameras at the store. Mr. Clark sought to establish that he stabbed the two men in defense of himself and his wife. He called no other witness.

After Mr. Clark completed his direct testimony, the court decided to recess for the night and scheduled the State’s cross-examination to begin the next morning. The court then instructed Mr. Clark, as follows: [THE COURT]: You can’t talk to anybody about the case this evening even [trial counsel] and [the paralegal]. Okay?

[MR. CLARK]: Okay.

[THE COURT]: You can’t talk to anybody. It sounds counterintuitive.

[MR. CLARK]: Yes.

[THE COURT]: You can’t talk to your own attorney about the case.

[MR. CLARK]: I understand, sir.

Mr. Clark’s defense counsel did not object to the court’s instruction. The next morning, the State cross-examined Mr. Clark.

Mr. Clark’s claim of self-defense was ultimately successful in part. The jury acquitted him of second-degree murder and assault in the first-degree, and convicted him of voluntary manslaughter, two counts of second-degree assault, and attempted second- degree murder. He was sentenced to 50 years in prison.

The Direct Appeal

Mr. Clark noted an appeal. He contended, among other things, that the trial court denied him his Sixth Amendment right to counsel “after a critical day of testimony,” when it instructed him not to speak with his attorney during the overnight recess. The State countered that because Mr. Clark neglected to object to the court’s instruction at trial, he failed to preserve the issue for appeal. The State urged the Court not to review the issue for plain error.^[3] In his reply brief, Mr. Clark asked the Court to conduct a plain error review.

In an unreported opinion, the Appellate Court of Maryland concluded that Mr.

Clark’s argument was not preserved for review and affirmed his convictions. Clark v. State, No. 486, Sept. Term, 2019 (filed June 29, 2020). Although the Appellate Court did not say so expressly, in so ruling, it declined to conduct plain error review. The Court also opined that Mr. Clark’s Sixth Amendment claim appeared meritorious, but that the proper way to raise it would be a post-conviction claim of ineffective assistance of counsel.

The Post-Conviction Hearing

Mr. Clark subsequently filed a petition for post-conviction relief, alleging 12 claims of error by his trial counsel, including his counsel’s failure to object when the trial court improperly barred Mr. Clark from communicating with counsel.^[4]

On July 29, 2021, the circuit court held a post-conviction hearing. Mr. Clark’s post- conviction counsel called Mr. Clark’s trial counsel as the first witness. Trial counsel was

questioned extensively about his trial strategy and thought processes behind many of the alleged errors or omissions. Trial counsel testified that, at the time of Mr. Clark’s trial, he had been practicing criminal law for almost 20 years and had worked on approximately 40 homicide cases. When asked why he did not object to the trial court’s improper instruction, trial counsel explained:

At the time, I didn’t think there was anything for us to talk about that evening. We had talked that morning, I guess when I delivered the suit to him. We talked during the trial, right before lunch. I believe, you know, at every break. It’s not like I can leave here and call him. You know, I can’t call into [Jessup Correctional Institute] at that time, they have it now, because of all the COVID. So, the issue would have been, did I want to go back downstairs in the sheriff’s lockup and see him that day? And before we went down—at the end of each day, I would always ask him if he had any questions or anything like that. So, the answer is that I just didn’t have anything to go over with him because I thought he was doing good on the witness stand.[5]

Trial counsel acknowledged that, although at the time of trial, he was not specifically aware of Geders, he was aware that Mr. Clark was entitled to confer with him, stating:

[A defendant] always has a right to confer with me but if you’re asking me, did I read that particular case, United States versus Geders and know it specifically, that case, no. I know he had a right to talk to me and if he said he had anything to say, I would have talked to him.

When cross-examined by the State, trial counsel elaborated upon his failure to object:

For Mr. Clark’s testimony, we practiced, without having a stopwatch, maybe eight to ten hours. We went to him. We went to [Jessup Correctional Institute]. We first would go over his notes. He would say, you know, after we got past a point, I advise him, you know, this is the risk of testifying and with the wife’s situation. Then he said he want to testify. So we rehearsed. I would ask him direct and then I would have another young lady with me, (indiscernible), cross. And then we swapped and sometimes I would be the prosecutor and she would be the person and he would answer questions and we would go over the phrases he uses, the words he uses, his facial expression, you know, his pace, how to respond when confronted with evidence and how to do [sic]. And then we’d say, you know, try this or try that or why don’t you do this or why don’t you do that. We did that for many hours.

The State also asked trial counsel whether, at the conclusion of Mr. Clark’s direct

testimony, he had any concerns that he had wanted to address with Mr. Clark during the overnight recess, to which he responded:

No. We talked all day. We talked in the morning, every break, lunch break or break to do this and that and sit at the trial table, go back and forth. After lunch before we sat down, we talked. [Or] if we wanted to go down, we’d go down and talk to him. At the end of the incident, you know, at the end of that day, I think he was sitting up here but I didn’t have anything to ask him, and he didn’t say, hey, I want to talk to you. And so, I guess I could have objected for the record that if the judge was wrong, I think the judge is wrong but, you know, I didn’t have anything—I’d be lying if I said I had something to say and we were prevented from saying it.

The following exchange then occurred:

[THE STATE]: Had [Mr. Clark] said, I want to speak to my attorney, would you have advocated on his behalf to—

[TRIAL COUNSEL]: Absolutely.

[THE STATE]: And just so I have—just so this record is clear in terms of what was happening at that point in time in the trial, it was the end of a day of testimony, right? It was the end of the day. The attorneys were going home. [Mr. Clark] was being returned to the Detention Center. And everyone was due to return first thing in the morning and start right away. Is that fair?

[TRIAL COUNSEL]: Yes.

[THE STATE]: And so, it wasn’t a situation where we’re taking a two-hour break for everyone to work on the case, right?

[TRIAL COUNSEL]: That’s correct.

[THE STATE]: It was the end of the day. The day’s work was over.

[TRIAL COUNSEL]: That’s correct.

[THE STATE]: We all know at night attorneys might look over notes, et cetera, but he wasn’t coming to your office that night. Is that fair?

[TRIAL COUNSEL]: No.

[THE STATE]: He was at the Detention Center.

[TRIAL COUNSEL]: And we can’t call him.

[THE STATE]: All right. You couldn’t even call him. And he went immediately back on the stand the next day. Is that your recollection?

[TRIAL COUNSEL]: Yes.

***

[THE STATE]: And so essentially zero business minutes in a strange way of saying that?

[TRIAL COUNSEL]: Yes.

[THE STATE]: Okay. And do you recall the next morning before he testified whether he expressed any indication to you or [the paralegal] in your presence that he had questions of you or wanted to talk to you?

[TRIAL COUNSEL]: No. We had come back in the morning. The sheriff brought him out to sit at the table. [The paralegal], myself—[the paralegal], the other lawyer who was assisting, and myself were sitting at the table, you know, are you okay? You know . . . we’re going to do this. We’re [going to] do that or whatever. We talked at the trial table with him.[6]

6 The Majority asserts that:

[Trial counsel] was not asked and offered no testimony as to whether, independent of his observation that Mr. Clark did not say he wanted to speak with him while in the courtroom, he knew whether Mr. Clark developed the desire to speak with him later during the recess or whether Mr. Clark had wanted to waive the right to counsel. [Trial counsel] also offered no testimony as to whether it would have been desirable or advantageous for him to speak to Mr. Clark about matters other than his testimony, such as a potential plea bargain, potential rebuttal witnesses for the State, or next steps in the trial.

Maj. op. at 6-7.

[THE STATE]: All right. So, you actually communicated with him, but you just didn’t talk about the substance—

[TRIAL COUNSEL]: Yes.

[THE STATE]: —of his testimony?

[TRIAL COUNSEL]: Yes. Yeah.

[THE STATE]: And that was really—I don’t want to—was that [your] perception of the spirit of [the trial judge’s] order?

[TRIAL COUNSEL]: Uhm.

[THE STATE]: If you don’t know, I’m not going ask you to—

[TRIAL COUNSEL]: I don’t know the spirit of his order. When I read it now, reading it at the post-conviction, I say wow, I should have objected but was I going to meet with him or say anything that night? The answer is no. And he didn’t ask me.

The post-conviction court found that the trial court’s instruction was inconsistent with the holding in Geders. The post-conviction court also found that trial counsel’s

performance was deficient, stating that there was no evidence of “a legitimate strategic or tactical reason for letting the instruction go.” According to the court, although trial counsel did not believe that there was a need to speak with Mr. Clark that evening, the right to assistance of counsel belonged to Mr. Clark, and Mr. Clark may have wanted to consult with counsel but was not allowed to by the court.

In addition, the post-conviction court found that trial counsel’s failure to object to the instruction prejudiced Mr. Clark “not only because he was deprived of his Sixth

Amendment right to counsel during the overnight recess, but also because he was not able to raise the issue on appeal due to trial counsel’s failure to object to the erroneous instruction.” On that basis, the post-conviction court granted Mr. Clark a new trial.

The Appellate Court of Maryland’s Decision on the Post-Conviction Appeal

The Appellate Court reversed the judgment of the post-conviction court. State v. Clark, 255 Md. App. 327, 347-48 (2022). In doing so, it rejected Mr. Clark’s argument that, under Geders, the trial court’s instruction denied him effective assistance of counsel and that he was therefore entitled to the presumption of prejudice. Id. at 346. The Court instead applied the test for ineffective assistance of counsel established in Strickland.

Under Strickland, a defendant seeking to prove ineffective assistance of counsel must prove

“that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” 466 U.S. at 687.

The Appellate Court determined that, in the absence of an objection to the instruction at trial, Mr. Clark needed to show that he was, in fact, deprived of the right to counsel in order to enjoy a presumption of prejudice based on the actual denial of counsel under Strickland. Thus, he needed to show that he wanted to speak to counsel or that counsel wanted to speak to him, and that they would have done so absent the instruction.

Clark, 255 Md. App. at 345. In the absence of such evidence, the Court concluded that Mr. Clark was required to show actual prejudice, which meant he had to “articulate how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 346

(quoting Ramirez v. State, 464 Md. 532, 564 (2019), cert. denied, 140 S. Ct. 1134 (2020)).

Because Mr. Clark made no argument that, but for the lack of overnight consultation, the result of the trial would have been different, the Court found that he failed to prove he was prejudiced by counsel’s failure to object to the court’s instruction. Id. at 346. Having resolved Mr. Clark’s Strickland claim under the prejudice prong, the Court declined to address the performance prong of the test. Id. at 340.

Judge Douglas Nazarian dissented, stating, in part:

Under Geders and the cases that follow it, Mr. Clark’s Sixth Amendment rights were violated, in real life terms and in constitutional terms, when the court wrongly forbade him from conferring with counsel. The deprivation happened when the court ordered it, and certainly no later than the following morning, when the overnight recess ended. This is because the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away. . . .

. . . Although the deprivation that occurred here is identical to the deprivation in Geders, the majority required him to prove retroactively that he actually had planned to exercise the Sixth Amendment right the trial court forbade him from exercising . . . . He is worse off in constitutional and real-life terms for his counsel’s indisputably deficient performance . . . .

Id. at 348-49 (Nazarian, J., dissenting).

Mr. Clark filed a petition for certiorari, which this Court granted. Clark v. State, 482 Md. 141 (2022).

DISCUSSION

The Majority’s Improper Alternative Holding Under the Maryland Declaration of Rights

Mr. Clark did not ask us to address his post-conviction claim under the Maryland Declaration of Rights, but instead predicated his claim solely on the Sixth Amendment to

the United States Constitution. Nevertheless, even though the parties did not brief the issues, the Majority alternatively holds that Mr. Clark’s right to the effective assistance of counsel under Articles 21 and 24 of Maryland’s Declaration of Rights was violated. Maj. op. at 2, 44-48. In so holding, the Majority violates settled principles of judicial restraint regarding issues not raised by the parties. Moreover, the Majority implicitly overturns this

Court’s confirmation that ineffective-assistance-of-counsel claims under the Maryland Declaration of Rights and the Sixth Amendment are governed by the same standards— specifically, the standards articulated in Strickland. For these two reasons, the Majority’s sua sponte alternative holding based on State law is improper. See Cnty. Council of Prince

George’s Cnty. v. Offen, 334 Md. 499, 508 (1994).

We are “bound[ed] by a limited scope of review[.]” Id. As we have stated:

An appellate court ordinarily will consider only an issue which is properly raised by the parties in the appellate court, unless the issue concerns the jurisdiction of the trial court or the appellate court.[7] The failure of an

7 There is only a “‘narrow category of issues’ that courts of appeal will ‘sua sponte address’ even if not raised by an appellant.” Turner v. Md. Dep’t of Health, 245 Md. App. 248, 268 (2020). “This category includes the jurisdiction of the intermediate appellate court, the jurisdiction of the trial court, and the certain fundamental questions of policy relating to the trial court’s exercise of jurisdiction.” Joseph H. Munson Co. v. Sec’y of State, 294 Md. 160, 169 (1982); see also Renaissance Centro Columbia, LLC v. Broida, 421 Md. 474, 488 (2011).

appellant to raise an issue in the appellate court is usually deemed a waiver as to the issue.

Moats v. City of Hagerstown, 324 Md. 519, 524-25 (1991); see also Foster v. State, 305

Md. 306, 315 (1986) (the failure to make a contention in a party’s “briefs and oral

arguments constitutes a waiver or abandonment of them”); Health Servs. Cost Rev. Comm’n v. Lutheran Hosp. of Md., Inc., 298 Md. 651, 664 (1984) (“This Court has consistently held that a question not presented or argued in an appellant’s brief is waived or abandoned and is, therefore, not properly preserved for review.”).

Mr. Clark did not advance any arguments predicated on the Maryland Declaration of Rights. Thus, the State was never given an opportunity to address these important issues.

The alternative basis for the Majority’s holding does not fall within the “narrow category of issues” that this Court addresses sua sponte.

Moreover, the Majority does not rest its alternative basis on settled principles of law. Rather, the Majority is making new constitutional law without the input of the parties.

Quoting DeWolfe v. Richmond, 434 Md. 444 (2013), the Majority asserts “‘that the due

process right to counsel under Article 24 of the Declaration of Rights is broader than the right to counsel under Article 21 or the Sixth Amendment[,]’ which ‘has been reaffirmed by this Court on numerous occasions.’” Maj. op. at 44.

But the holding in Richmond was that “under Article 24 of the Maryland Declaration of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing

before a District Court Commissioner.” 434 Md. at 464. That holding does not state, suggest, or imply that a court may bypass the two-pronged analysis established by Strickland. Moreover, Richmond did not address the issue tackled by the Majority here: whether Article 24 or Article 21 of the Declaration of Rights provides broader rights than the Sixth Amendment for ineffective assistance of counsel claims. Here, the question is not whether Mr. Clark had the right to counsel in his criminal trial but whether his right to counsel was violated by counsel’s failure to object to the no-communication order.

Richmond does not answer that question.

Then, citing Perry v. State, 357 Md. 37 (1999), the Majority declares that “in ineffective assistance of counsel cases, we have held that Article 21 provides protections

to a criminal defendant’s right to counsel above and beyond that determined by the Supreme Court as to the Sixth Amendment.” Maj. op. at 44. There are multiple reasons why Perry does not support this proposition.

First, we specifically noted in Perry that ineffective-assistance-of-counsel claims under Article 21 are governed by the same standards as under the Sixth Amendment. As we stated:

We have traditionally regarded the right to counsel guaranteed under Article 21 as being the same right provided by the Sixth Amendment, and, in construing Article 21, we have followed and applied the decisions of the Supreme Court interpreting the Federal provision. See State v. Tichnell, 306 Md. 428, 440, 509 A.2d 1179, 1185, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986) (“There is no distinction between the right to counsel guaranteed by the Sixth Amendment and Art. 21 of the Maryland Declaration of Rights....”); Lodowski v. State, 307 Md. 233, 513 A.2d 299 (1986); Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985). In the context of ineffective assistance claims raised in post-conviction proceedings, we have therefore tended to focus on the Sixth Amendment jurisprudence, even when the claim is based on Article 21 as well, and, as a result, have applied a Strickland/Fretwell analysis to those claims. State v. Colvin, 314 Md. ^[1], 23-24, 548 A.2d 506, 517 (1988). We do so in this case as well.

357 Md. at 85 n.11. The Majority abandons this finding, again, without input from the parties.

Second, in Perry, we did not purport to expand a criminal defendant’s right to counsel “above and beyond” that afforded under the Sixth Amendment, as the Majority contends. Rather, we clarified that right only in the absence of Supreme Court precedent

on that question. Perry, 357 Md. at 85 n.11 (“With respect to the particular issue now in point, however, there is no controlling Supreme Court precedent supporting the Seventh

Circuit Court’s ruling. The issue is therefore an open one, both as a matter of Maryland law and, indeed, as a matter of Federal law outside the Seventh and Eleventh Circuits.”).

In contrast, here, unlike in Perry, the Majority resolves Mr. Clark’s Sixth Amendment claim by applying existing Sixth Amendment jurisprudence.

Third, the language from Perry that the Majority cites for the proposition that

Article 21 protections go “above and beyond” those under the Sixth Amendment, Maj. op. at 46-48, does not actually say that. Rather, in Perry, we simply reiterated that, despite

treating the rights to counsel under Article 21 and the Sixth Amendment in pari materia, we retain the authority to interpret Article 21 independently—just as all state courts do in matters of state law, so long as they respect federal constitutional requirements. 357 Md. at 85 n.11. As we stated there:

The conclusions announced in this Opinion on this issue constitute our construction of the independent Maryland Constitutional provision. If the Supreme Court were to rule upon the issue, we obviously would be bound by its judgment when interpreting the Sixth Amendment, and we certainly would give due and respectful consideration to it in any future construction of Article 21, but it would not serve, on its own, to alter the declaration made in this Opinion regarding Article 21.

Id. That we have the authority to provide criminal defendants greater protections under the Maryland Constitution than under the federal Constitution, however, does not require

us to do so, and we should not do so without providing the parties with notice and opportunity to address the issues. As we recently confirmed in Newton v. State:

We have repeatedly stated that “[t]here is no distinction between the right to counsel guaranteed by the Sixth Amendment of the U.S. Constitution and Article 21 of the Maryland Declaration of Rights.” In [State v.] Colvin, we flatly rejected a request to depart from Strickland and establish an ineffective-assistance of counsel test under the Maryland Constitution. 314 Md. at 23-24, 548 A.2d 506. Instead, we held that the Strickland standard applies to ineffective-assistance-of-counsel claims under the Maryland Constitution and considered the matter “settled.” Id.

455 Md. 341, 362 (2017), cert. denied, 138 S. Ct. 665 (2018) (citations omitted); see also

State v. Tichnell, 306 Md. 428, 440 (1986) (quoting Harris v. State, 303 Md. 685, 695 n.3

(1985)).

In sum, the Majority resolves this case on alternative grounds not raised by the parties and overturns our recent pronouncement that ineffective-assistance-of-counsel

claims under Article 21 and the Sixth Amendment are governed by the same Strickland standard. And the Majority does this without requesting input from the parties. To say that I disagree with this approach would be an understatement.

Claims Under the Sixth Amendment

The Sixth Amendment to the United States Constitution provides, in relevant part, that the accused in criminal cases “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Inherent in the right to assistance of counsel is the right to the effective assistance of counsel. Strickland, 466 U.S. at 686. A defendant’s right to the effective assistance of counsel can be violated in two ways:

(1) through direct governmental interference; or (2) through trial counsel’s failure to

“render ‘adequate legal assistance[.]’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344

(1980)).

The primary case on which Mr. Clark relies, Geders, exemplifies the first type of Sixth Amendment claim: governmental interference. See Strickland, 466 U.S. at 686

(citing Geders for the proposition that “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense”).

In Geders, at the conclusion of the defendant’s direct examination, but before the prosecutor’s cross-examination began, the court recessed for the night. 425 U.S. at 82. At the prosecutor’s request, the court instructed Geders not to discuss the case with anyone.

Id. Geders’ attorney objected, “explaining that he believed he had a right to confer with his client about matters other than the imminent cross-examination, and that he wished to discuss problems relating to the trial with his client.” Id. The trial court responded that it trusted counsel to “properly confine the discussion,” but did not trust the defendant to abide

by any restrictions. Id. The court promised to give defense counsel time to meet with the defendant after cross-examination. Id. Defense counsel persisted in his objection, at one point stating that “[t]here are numerous strategic things that an attorney must confer with his client about” and gave, as one example, the topic of whom defense counsel should call as the next witness. Id. at 82-83, 83n.1. The court was unmoved. Id. at 83 n.1. Geders was subsequently convicted. Id. at 85.

On appeal to the United States Court of Appeals for the Fifth Circuit, Geders argued, among other things, that the trial court violated his Sixth Amendment right to communicate with counsel during a critical stage of the trial. United States v. Fink, 502 F.2d 1, 8 (1974).8

The Court disagreed, finding that the trial court did not commit reversible error, reasoning

that Geders had failed to show that he was harmed by the deprivation of counsel during the overnight recess. Id. at 8-9. In other words, the Fifth Circuit rejected Geders’ appeal because he had failed to show prejudice from the trial court’s improper instruction.

The United States Supreme Court reversed. Geders, 425 U.S. at 91. The Court determined that the trial court violated Geders’ right to counsel because the court’s order precluded him from discussing anything with his attorney during the 17-hour overnight

recess. Id. The Court did not mention, let alone expressly impose, a requirement of prejudice, and in subsequent cases the Court confirmed that a showing of prejudice is not

required in such circumstances in a direct appeal.^[9] See, e.g., Perry v. Leeke, 488 U.S. 272, 279-80 (1989) (confirming that a Geders violation requires no showing of prejudice);

Weaver v. Massachusetts, 582 U.S. 286, 305 (2017) (holding that, on direct appeal, a preserved claim of structural error entitles a defendant to automatic reversal).

8 Geders’ appeal was consolidated with that of his co-defendant, Michael Fink. ^[9] The Court in Geders did not expressly state that a showing of prejudice was not required. However, by reversing the Fifth Circuit—which had rejected Geders’ claim because he had failed to show prejudice—the Court implicitly determined that a showing of prejudice was not required.

As noted above, the second way a defendant can be deprived of his right to the effective assistance of counsel is by defense counsel’s failure to “render ‘adequate legal

assistance[.]’” Strickland, 466 U.S. at 686 (quoting Cuyler, 446 U.S. at 344). Claims of ineffective assistance of counsel are governed by the two-part test articulated in Strickland—known as the performance and prejudice prongs:

First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. Courts need not address these prongs in any specific order, and if a claim fails under one prong, the other prong need not be addressed. Id. at 697; Newton, 455 Md. at

356. Here, the Appellate Court addressed and resolved the claim solely on the prejudice prong.

Prejudice Under Strickland To establish prejudice under Strickland, the defendant must “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. The Supreme Court defined

“reasonable probability” in this context as a “probability sufficient to undermine confidence in the outcome.” Id. The Court explained that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

This Court has echoed that point, explaining that “[a] proper analysis of prejudice . . . should not focus solely on an outcome determination, but should consider

‘whether the result of the proceeding was fundamentally unfair or unreliable.’” Oken v. State, 343 Md. 256, 284 (1996) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993));

see also Newton, 455 Md. at 357 (finding that prejudice is proven by showing that the outcome of the trial would have been different or that the error rendered the trial

“fundamentally unfair”).

There are, however, “very narrow” circumstances when prejudice under Strickland is presumed. Walker v. State, 391 Md. 233, 247 (2006); Ramirez, 464 Md. at 564. If one of the narrow exceptions applies, instead of requiring the defendant to prove the result probably would have been different but for counsel’s errors, the court will presume that the result would have been different but for counsel’s errors. See Strickland, 466 U.S. at

692-94.

“[P]rejudice is presumed when counsel is burdened by an actual conflict of interest” because “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” Id. at 692. Prejudice is also presumed when there is an “[a]ctual or constructive denial of the assistance of counsel altogether” or with “various

kinds of state interference with counsel’s assistance.” Id. (citing United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)). As we held in Ramirez, “a court should presume that trial counsel’s performance prejudiced the petitioner only if: (1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s counsel had an actual conflict of interest.”10 464 Md. at

573. We also confirmed that “[a]bsent these three circumstances, the presumption of prejudice does not apply, and the petitioner must prove prejudice.” Id.

The Test for the Actual Denial Exception Under Strickland and Ramirez

Sixth Amendment claims based on ineffective assistance of counsel are entirely

“different matters[s]” from Sixth Amendment claims based on “direct governmental interference.” Perry, 488 U.S. at 279. One key difference is that in “contrast” to a direct appeal, “[p]ostconviction courts . . . assess ineffective-assistance-of-counsel claims through the Strickland lens and do not address the merits of particular trial court errors.”

Ramirez, 464 Md. at 566.

The Majority goes astray by relentlessly training its focus on the consequences of the trial court’s improper order.^[11] However, to satisfy Strickland, the causal agent of the 10 The Majority downplays the significance of this passage by mischaracterizing it as just something that this court “has stated[.]” In fact, in Ramirez, we specifically began the passage with the phrase “We hold that . . . ” 464 Md. at 572-73. This was a holding, not a mere statement. ^[11] See, e.g., Maj. op. at 27 (“Violations of the rule against flatly prohibiting consultation between a criminal defendant and his lawyer during a substantial recess are treated as complete denials of counsel (even though they are of limited duration), and so require reversal even if no prejudice is shown.” (quotation omitted)), 29 (“Consistent with this Court’s case law, however, other courts have treated a lengthy or overnight unobjected- to no-communication order itself as a denial of the assistance of counsel, without requiring a showing of an intent by the defendant or counsel to speak with each other but for the order.”), 43 (“Barring all communication between a defendant and trial counsel about the case for such a long period of time during a criminal trial eviscerates that right, and a defendant should not be required to prove or show how the right would have been exercised to demonstrate prejudice.”), 44 (“Rather, the emphasis on the ‘denial’ of the right reflects prejudice—presumed or actual—must be defense counsel’s deficient performance, not the trial court’s erroneous order. The Supreme Court made that clear in Strickland by using

the “but for” language identified above. The Court in Strickland also made that clear when, in referring the prejudice requirement, it stated that “the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 (emphasis added). From a grammatical standpoint, this sentence unambiguously identifies counsel’s

“deficient performance” as the causal agent of the necessary prejudice.

Indeed, we made this same point in Ramirez, where we quoted Strickland verbatim and said:

To satisfy the prejudice prong, a petitioner “must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”

Ramirez, 464 Md. at 561 (quoting Strickland, 466 U.S. at 687). Further, in Ramirez, we

expressly identified counsel’s deficient performance as the causal agent when applying the test for presuming prejudice in ineffective-assistance-of-counsel claims. Again, notice the grammatical structure of our holding in Ramirez that, although quoted above in full, I

how a lengthy no-communication order itself prevents access to counsel during a critical stage of a criminal proceeding. The focus is on the order’s interference with Mr. Clark’s right to counsel, by creating a ‘sustained barrier to communication[.]’”), 50 (“The logic behind this approach is that prohibitions on consultation for such periods of time are likely to infringe on the defendant’s ‘right to unrestricted access to his lawyer for advice on a variety of trial-related matters[.]’”) (“The constitutional infirmity of Geders-like no- communication orders is ‘driven by the recognition that certain types of conduct are in general so antithetic to effective assistance . . . that a case-by-case analysis simply is not worth the cost of protracted litigation[.]’”).

truncate here: “We hold that, in assessing a petitioner’s allegation of ineffective assistance

of counsel, a court should presume that trial counsel’s performance prejudiced the petitioner only if . . . the petitioner was actually denied the assistance of counsel[.]” Id. at

572-73 (emphasis added). So, whether we presume or require proof that the outcome was

unfair or unreliable, Strickland and Ramirez compel us to focus on the consequences of trial counsel’s failure to object to the court’s improper instruction, not the consequences of the instruction itself.

So let’s now consider whether Mr. Clark is entitled to a presumption of prejudice.

Of the three available exceptions identified in Ramirez, Mr. Clark does not contend that

either the constructive denial12 or conflict-of-interest exceptions apply. That leaves the “actual denial” exception as the lone basis to support a presumption of prejudice.

Following the Supreme Court’s lead, this Court adopted a specific test for applying the “actual denial” exception. In Ramirez, just two paragraphs after listing the three exceptions, we explained that “[a]ctual denial of the assistance of counsel occurs where

‘counsel was either totally absent, or prevented from assisting the [petitioner] during a critical stage of the proceeding.’” 464 Md. at 574 (quoting Cronic, 466 U.S. at 659 n.25).

Notice two grammatical features from this definition.^[13] First, notice the use of the word

“prevented.” This means the “actual denial” exception requires that defense counsel be prevented from doing something he otherwise would have done; the test doesn’t contemplate theoretical possibilities.

Second, notice the use of the passive voice—we didn’t say who or what was doing the “prevent[ing].” But, again, there are only two theoretical possibilities: (1) the trial court’s error; or (2) defense counsel’s deficient performance. As explained above, just two paragraphs earlier, we had already identified the causal agent in a Strickland claim as counsel’s deficient performance. Unlike in a direct appeal, it would be legally impossible

in a Strickland claim to blame the trial court’s error on the lack of communication because, as explained below, we must presume that the trial court would have rescinded its no- communication order had counsel objected.

In sum, a faithful application of Ramirez tells us that: (1) the causal agent at the heart of our inquiry is defense counsel’s deficient performance; and (2) to get the benefit of the “actual denial” exception to the requirement of proving prejudice, defense counsel’s

deficient performance must prevent defense counsel from rendering some form of assistance to the defendant that he otherwise would have provided.^[14]

13 We can disregard the “totally absent” part of the test—neither Mr. Clark nor the Majority contend that defense counsel was totally absent. ^[14] The Majority tries to evade application of Ramirez’s test for “actual denial,” shrugging it off as doing nothing “more than quot[ing] existing Supreme Court caselaw.”

Using Ramirez’s carefully articulated framework, we can now apply the “actual denial” exception to the facts of this case. Here, defense counsel’s deficient performance was his failure to object to the no-communication order, and the assistance of counsel that was allegedly prevented was communicating with Mr. Clark. So, the question boils down to whether defense counsel’s failure to object to the no-communication order “prevented” defense counsel and Mr. Clark from communicating with each other “during a critical stage of the proceeding.” See Ramirez, 474 Md. at 574.

To understand whether counsel’s failure to object prevented any communications with Mr. Clark, we must contemplate what would have happened if defense counsel had objected. In doing so, we must assume that had counsel objected, the trial court would have recognized its error and withdrawn the “no-communication order.” See Newton, 455 Md. at 361.15 But that just means that had trial counsel objected, he and Mr. Clark would have been permitted to communicate during the overnight recess. Then what?

It does not necessarily follow that they would have spoken during the recess. In Geders, defense counsel expressly told the court that he wanted to communicate with his client during the recess, 425 U.S. at 82-83, so there was no dispute that the trial court’s instruction prevented such communication. And although the Supreme Court recognized

that defense counsel and defendants often use overnight recesses to discuss the status of the case, trial strategies, plea bargain offers, and other matters, id. at 88, neither the Supreme Court nor this Court has ever held that the Sixth Amendment requires defense counsel to use an overnight recess to discuss such matters, regardless of the circumstances.

Here, as Mr. Clark’s trial counsel testified, the reason he did not speak up when the court issued the improper instruction was that he had nothing to discuss with Mr. Clark, and Mr.

Clark expressed no desire to speak with him. Notably, although Mr. Clark took the stand and contradicted his counsel on other issues, he did not dispute counsel’s testimony on this issue; that is, he did not say that he did, in fact, want to speak with counsel.

Let’s change the facts slightly. Hold every fact constant except assume that, earlier in the day, defense counsel told Mr. Clark that he was going straight from court to the opera and would be unavailable to talk during the overnight recess. Under this scenario, Mr.

Clark would have been in the exact same position he was in when he took the stand the next morning. So, if the court had not issued its no-communication order, and there was no evidence that Mr. Clark had any desire to speak with counsel during the recess, would we say he suffered an “actual denial” of counsel when his attorney went to the opera?

Would we say that the result of his trial was unreliable because his counsel went to the opera? I think not.

There could be many legitimate reasons for defense counsel not to communicate

with the defendant during an overnight recess. For example, depending on the circumstances, defense counsel may want to deprive the prosecutor of any basis to imply that the defendant was coached during the recess. Indeed, in Geders, the Supreme Court expressly noted that whether the witness was coached during a recess is fair game for cross- examination and closing argument. 425 U.S. at 89-90. Alternatively, defense counsel could have determined that he and the defendant had already fully discussed all relevant strategic decisions, that he was fully prepared for the next day’s proceedings, and that he would serve his client best by turning off his cell phone and going to bed early to be rested and refreshed the next day.^[16]

Here, of course, I am assuming that trial counsel’s failure to object constituted deficient performance. But in its effect—which is what matters under Strickland’s prejudice prong—defense counsel’s failure here to object to the no-communication order is indistinguishable from a legitimate strategic decision by counsel not to speak with the defendant during the overnight recess or trial counsel’s decision to go to the opera. I perceive no reason to presume that Mr. Clark’s trial was unfair or that its result was unreliable—the hallmark of prejudice—when an identically-situated defendant who did not communicate with counsel for a different reason would enjoy no such presumption.

Unless, of course, there was evidence that Mr. Clark wanted to confer or would have conferred with his counsel during the overnight recess. If such evidence existed, then Mr.

Clark’s lack of communication with counsel would have put him on a different footing

than the hypothetical defendant who did not communicate with counsel for other reasons, including legitimate ones. That is, with evidence that Mr. Clark wanted to or would have communicated with counsel if his attorney had objected to the instruction, we could then say that counsel’s failure to object prevented him from rendering assistance he otherwise

would have rendered—that defense counsel’s failure to object caused an actual denial of counsel. And with that causal connection established, we could then presume, as

Strickland demands, that the outcome of Mr. Clark’s trial was unreliable.

The Majority tries to recast the meaning of “prevent” as this Court used it in Ramirez in defining the “actual denial of counsel” by disclaiming any requirement that “a postconviction petitioner demonstrate or prove that petitioner would have spoken with

counsel in order to be entitled to a presumption of prejudice.” Maj. op. at 54. In doing so, the Majority refers to various dictionary definitions of “prevent,” claiming that “[n]othing about the definition of the word prevent requires proof by a defendant that the defendant wanted to speak with counsel in order for the defendant to have prevented from doing so.”

Id. at 55.

The Majority first cites to Merriam Webster’s definition of prevent: “to keep from happening or existing” and “to deprive of power or hope of acting or succeeding.” Id. at

54. The Majority next cites to an Oxford English Dictionary definition of prevent: “[t]o

preclude the occurrence of (an anticipated event, state, etc.)”. Id. at 54-55. In my mind, these definitions confirm that the word “prevent” necessarily implies that something would have happened but for the thing doing the preventing.

The Majority offers an example of a sentence that it contends demonstrates that prevent means something other than, well, prevent. The Majority asks us “to consider how

the word prevent is used in the following sentence: ‘The gate prevented access to the driveway.’” Id. at 55. The Majority asserts that, as used in this sentence, “[i]t is not necessary to prove that anyone wanted to use the driveway to establish that the gate prevented or blocked access.” Id. This is a flawed analogy. Remember, the inquiry here is whether there was an “actual” denial of counsel, not a theoretical one. The statement that a gate prevented access to a driveway is merely a general description of an existing condition, and the use of the word “prevented” necessarily implies that the driveway would ordinarily be accessible. If I’m in a different country when the gate was blocking access to the driveway, one cannot appropriately say that the gate prevented me from accessing the driveway. Similarly, if the defendant and defense counsel had no desire or inclination to communicate during a recess, one cannot say that defense counsel’s failure to object prevented such communication.

I would hold, therefore, that under Strickland, if defense counsel’s alleged deficient performance is the failure to object to a trial court’s improper order barring all communications between the defendant and his counsel, the defendant does not enjoy a presumption of prejudice without showing at least some evidence that counsel’s failure to object either prevented communication or created a chilling effect on such communications. In addition to being based on Strickland and Ramirez, my view is informed by several considerations.

First, my proposed holding would preserve the careful distinction between direct appeals from trial errors and ineffective-assistance-of-counsel claims based on the failure of counsel to object to a trial error. This is true even if we assume, as many courts have,17 that a trial court’s Geders violation constitutes a structural error.^[18] The distinction between these two types of claims, in the context of an underlying

structural trial error, was addressed in Weaver v. Massachusetts, 582 U.S. at 294-99. There, during jury selection for the defendant’s trial on criminal charges, all of the seats in the courtroom were occupied by potential jurors, barring public access for two days of the jury selection process. 582 U.S. at 290. The denial of the defendant’s right to a public trial was a structural error that would have entitled him to a new trial had defense counsel preserved

the issue for direct appeal. Id. at 293. But because defense counsel failed to object, the matter came before the Supreme Court in the context of a claim of ineffective assistance of counsel. Id. In rejecting this claim, the Court focused on, inter alia, the difference between public trial violations preserved for direct appellate review and those raised in a post-conviction proceeding. Id. at 294-99.

The Court explained that when a defendant preserves an issue by timely objecting

to the trial court’s improper ruling, the trial court can correct its error or further explain the basis for its decision. Id. at 302–03. But if the issue is first raised in a post-conviction

claim of ineffective assistance of counsel, the court is deprived of that opportunity. Id. In Maryland, giving the trial court the opportunity to make the correct decision is, of course, the fundamental rationale behind our firmly entrenched preservation requirement. See

Robinson v. State, 410 Md. 91, 103 (2009) (explaining that the two purposes of Maryland Rule 8-131(a), ensuring fairness to all parties and the promotion of the orderly

warrants reversal of the defendant’s convictions, and cannot be deemed harmless. See id. at 303 n.5, 768 A.2d at 659 n.5.

464 Md. at 539 n.1.

administration of the law, are “advanced by requiring counsel to bring the position of their

client to the attention of the lower court at trial so that the trial court can pass upon, and possibly correct any errors in the proceedings” (emphasis added) (citations omitted));

Boulden v. State, 414 Md. 284, 297 (2010) (same); Blanks v. State, 406 Md. 526, 538

(2008) (same).

The United States Supreme Court in Weaver also explained that when a trial court

error is properly preserved for direct appellate review, the risk of memories fading and evidence disappearing is reduced. 582 U.S. at 302. In contrast, “[w]hen an ineffective-

assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases.”

Id. Thus, the “profound importance of finality in criminal proceedings,” Strickland, 466

U.S. at 693, “is more at risk” when a trial court’s error is raised for the first time in a post-

conviction claim of ineffective assistance of counsel, Weaver, 582 U.S. at 302-03. The Supreme Court cautioned against allowing such claims to be used for evading the preservation requirement, “thus undermining the finality of jury verdicts.” Weaver, 582

U.S. at 302-03 (citation omitted).

Further, according to the United States Supreme Court, a direct appeal provides an adequate record from which appellate courts can give guidance and instruction to trial courts. Id. at 302. In contrast, as this Court has observed, “[p]ostconviction courts . . . assess ineffective-assistance-of-counsel claims through the Strickland lens and do not address the merits of particular trial court errors.” Newton, 455 Md. at 356; see also

Ramirez, 464 Md. at 383 (quoting Newton, 455 Md. at 356). The Court in Weaver concluded that the foregoing differences “justify a different standard for evaluating a structural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel.” 582 U.S. at 303.

This Court has consistently interpreted Weaver as “imposing a higher standard for granting a new trial when a defendant raises a structural error on postconviction, rather

than on direct appeal.” Newton, 455 Md. at 356-57 (emphasis added); see also Ramirez, 464 Md. at 566. In Newton v. State, 455 Md. at 348, with defense counsel’s consent, an

alternate juror was present in the jury room during its deliberations, even though this Court, in Stokes v. State, 379 Md. 618 (2004), held that sending the alternate juror into the deliberations over counsel’s objection constituted reversible error. Newton’s counsel was

unaware of Stokes and therefore did not know to object, thus forming the basis for Newton’s post-conviction claim of ineffective assistance of counsel. Newton, 455 Md. at

349-52. Newton argued that the trial court’s inclusion of the alternate juror in the jury room was a structural error rendering the trial fundamentally unfair. Id. at 352. On that basis, he argued that prejudice under Strickland should be presumed. Id. at 352-53.

We rejected Newton’s claim, observing that “Stokes was a direct appeal, and errors that would result in automatic reversal on direct appeal may not warrant a new trial when raised as part of a postconviction ineffective-assistance-of-counsel claim.” Id. at 359

(citing Weaver, 582 U.S. at 301). Noting that the Supreme Court in Weaver identified only “a handful of circumstances that render a trial fundamentally unfair,”19 we concluded that it was:

unfathomable that the mere presence of an alternate during jury deliberations—with the express consent of defense counsel and strict instructions to the juror to listen only—gives rise to nearly as grave constitutional concerns as the circumstances presented in the four cases above considered by the Supreme Court to be “fundamentally unfair.”

Id. at 361.

This Court also addressed the intersection between structural errors and defense counsel’s failure to object to the same in Ramirez. There, trial counsel failed to object to

“the seating of a biased juror[,]” which Ramirez claimed resulted in a structural error entitling him to the presumption of prejudice under Strickland. Ramirez, 464 Md. at 541.

Although we did not find that trial counsel caused a structural error by his failure to object, we emphasized that in Weaver, the Supreme Court had “made clear that the distinction between structural errors matters only on direct appeal—not in a postconviction proceeding.” Ramirez, 464 Md. at 576. We reached that conclusion after carefully

reviewing decisions from this Court, as well as Weaver. See Ramirez, 464 Md. at 564-66, 574-76 (discussing Newton, 455 Md. 341, Redman v. State, 363 Md. 298 (2001), and Bowers v. State, 320 Md. 416 (1990)). For example, referring to our opinion in Newton, we stated in Ramirez: This Court observed that, in Weaver, 137 S. Ct. at 1911, the Supreme Court held that, “even though a public-trial right violation requires automatic reversal on direct appeal, it is still analyzed under the Strickland framework when raised as part of an ineffective-assistance-of-counsel claim.” Newton, 455 Md. at 356, 168 A.3d at 9. This Court also noted that, in Weaver, 137 S. Ct. at 1912, the Supreme Court explained that there is “a higher standard for granting a new trial when a defendant raises a structural error on postconviction, rather than on direct appeal.” Newton, 455 Md. at 357, 168 A.3d at 10.

464 Md. at 576.

The Majority’s holding in this case obliterates the firmly entrenched distinction between direct appeals in which a trial court’s error is preserved and ineffective-assistance- of-counsel claims based on the failure to preserve.

Second, my proposed holding would not impose an onerous or unfair burden on the defendant to secure the benefit of Strickland’s presumption of prejudice. In fact, it would be setting the bar low. By their nature, claims for ineffective assistance of counsel often open the door to the substance of communications between the defendant and trial counsel.

An ineffective-assistance claim based on counsel’s failure to object to the Geders violation

is the sort of claim that could (and should) be substantiated without opening that door. For example, if Mr. Clark had testified that he would have wanted to revisit with counsel the strategic issue of whether his wife (or any other potential witness) should testify—a tactical decision he challenged in his post-conviction claim—the post-conviction court would have had a sufficient basis to find that counsel’s failure to object to the Geders violation prevented or chilled the possibility of such a communication, thereby entitling Mr. Clark to a presumption of prejudice under Strickland. Such testimony would not have opened the door for the State to cross-examine the defendant on the substance of his prior discussions with counsel or the substance of what he specifically wanted to discuss.

Moreover, a defendant would not have to identify a specific strategic issue that he wanted to discuss with counsel to clear the low hurdle I have proposed. If the post- conviction court concludes based on the testimony before it that, for example, the defendant wanted to have a general discussion about the trial, the day’s events, or defendant’s concerns or anxieties about the case, that too would suffice to clear the low bar my proposed holding would set. In other words, the mere fact that a defendant would have discussed with counsel anything relevant to the trial or case, general or specific, would justify a presumption of prejudice without requiring the defendant to divulge otherwise confidential communications. See, e.g., Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981)

(per curiam). This would not be, as the Majority insists, an insurmountable hurdle for a defendant.

Third, my proposed holding aligns the parties’ incentives in a way that promotes the fair and efficient administration of justice. One clear benefit of the Majority’s holding is that the State would have the incentive to speak up if the trial court issues an improper no-

communication order. But the State would have the same incentive to speak up under the low bar I would set for establishing the actual denial of counsel.

But under the Majority’s holding, a defendant having no desire or need to speak with counsel during the overnight recess might be better served if counsel did not object.

That way, the defendant could take a free shot at an acquittal while simultaneously securing a strong basis for a new trial—the proverbial second bite at the apple—through a post- conviction claim.

We prefer that the first trial be fair and error-free, obviating the need for a second one. By incentivizing both sides to timely inform the trial court of a Geders violation, my proposed holding would align the parties’ interests to minimize the likelihood that a new trial would be necessary. The same cannot be said of the Majority’s holding.

Fourth, my proposed holding does not conflict with the concern expressed by Judge

Nazarian, and echoed by the Majority, that “the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away.” Clark, 255 Md. App. at 349 (Nazarian, J., dissenting).

Mr. Clark’s counsel’s failure to object waived only his right to raise the trial court’s improper instruction on direct appeal. Moreover, if trial counsel “neglects away” a defendant’s right to counsel, the defendant has recourse in a post-conviction claim applying

Strickland’s principles, including this Court’s formulation of the “actual denial” presumption of prejudice expressed in Ramirez and applied above. I am aware of no

caselaw—and the Majority cites none—that would justify bypassing Strickland’s and Ramirez’s requirements for this one type of ineffective-assistance-of-counsel claim.^[20]

20 To the contrary, the rulings from federal and state courts that have considered Geders violations raised in the context of an ineffective-assistance-of-counsel claim have held that the defendant must show that a communication with counsel would have occurred. See, e.g., Bailey, 657 F.2d at 24-25; Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-07 (4th Cir. 1982) (in a habeas corpus matter claiming ineffective assistance of counsel based on counsel’s failure to object, the defendant was denied relief because there was no evidence that the defendant wanted to meet with counsel); Wallace v. State, 851 So. 2d 216, 217-18 (Fla. Dist. Ct. App. 2003) (denying post-conviction claim of ineffective assistance of counsel where defense counsel did not object to the trial court’s instruction ***

There is no evidence that trial counsel’s failure to object to the court’s instruction

prevented or chilled communication with Mr. Clark during the overnight recess, and the post-conviction court made no such finding. Because he did not establish an “actual

denial” of counsel, Mr. Clark was not entitled to the presumption under Strickland and Ramirez that his counsel’s failure to object deprived him of a fair trial or a reliable verdict.

Thus he was required to establish prejudice.

The post-conviction court found prejudice in that trial counsel’s failure to object

deprived Mr. Clark of a viable appellate issue. As noted above, however, under Newton, 455 Md. at 361, we must assume that had trial counsel objected, the court would have rescinded the instruction and in doing so, would have removed any basis to appeal it.

Having failed to establish presumed or actual prejudice under Strickland, Mr. Clark was not entitled to post-conviction relief based on his counsel’s failure to object to the Geders violation.

In holding otherwise, the Majority has conducted in effect, if not in name, a plain error review of the trial court’s improper no-communication order. Generally, appellate

courts have the discretion to conduct plain error review of an unpreserved trial court error “when the error is compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Savoy v. State, 420 Md. 232, 243 (2011) (cleaned up). That standard

may very well have been met here, but when the Appellate Court declined to conduct plain not to talk during the lunch recess and there was no evidence that defendant or his counsel desired to communicate during the recess).

error review in his direct appeal, Mr. Clark initially petitioned this Court for writ of certiorari but then withdrew it, depriving us the opportunity to address the issue.

The procedural posture here alone should have precluded the Majority from treating

Mr. Clark’s post-conviction claim as it would have treated a direct appeal from the no-

communication order. Instead, the Majority bypasses Strickland and violates Newton and Ramirez by assessing the propriety of the trial court’s no-communication order and analyzing Mr. Clark’s post-conviction claim as a straightforward Geders claim, which as I have explained, it was not empowered to do.

Accordingly, I respectfully dissent.

Chief Justice Fader and Justice Booth have authorized me to state that they join this opinion.

The correction notice(s) for this opinion(s) can be found here: https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/25a22cn.pdf