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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2916 September Term, 2008

JOSE F. LOPEZ v. STATE of MARYLAND

Eyler, Deborah S., Matricciani, Sharer, J. Frederick (Retired, Specially Assigned) JJ.

Opinion by Sharer, J.

Filed: May 10, 2012

Appellant, Jose F. Lopez, filed a petition for post-conviction relief, as amended and supplemented, in the Circuit Court for Montgomery County. Following a hearing, the court denied appellant's petition on the grounds that laches barred any relief.

Appellant timely appealed and presents the following question, as slightly reframed, for our review: Did the post-conviction court erroneously deny post-conviction relief on the basis of laches? We hold that laches is available to bar certain post-conviction relief in cases where sentence was imposed before October 1, 1995. However, because the record in this case is insufficient to determine whether appellant's petition is barred by laches, we shall vacate the judgment and remand for further proceedings consistent with the following opinion.

BACKGROUND
Appellant, represented by counsel, was tried by a jury in Case Numbers 39037 and 40877, both involving Cecilia R., 25 years old at the time of the offenses. Ms. R. testified that appellant attacked her in her residence at approximately 11:00 p.m. on July 22, 1985. She was asleep on her bed when she awakened to find appellant on top of her, holding a knife and a towel. Appellant used the towel to try to cover her eyes. After taking some of her money, appellant then attempted to have vaginal intercourse with her. Ms. R. testified that she could "feel his penis at the mouth of my vagina." Appellant also threatened to kill her and, because she suffered from asthma, she thought appellant was going to suffocate her. Ms. R. identified appellant in court as her assailant. The jury convicted appellant of attempted first degree rape, attempted robbery with a dangerous and deadly weapon, and

burglary. Approximately a week after appellant's conviction in the above cases, the State and appellant, still represented by counsel, entered into a plea agreement in Case Numbers 39361, 39362, 39281, and 40129, all involving different victims than Ms. R. The agreement called for the State to recommend, and the Court to accept, a sentence of no more than two consecutive life sentences, accompanied by a waiver of any appellate relief in the cases involving Ms. R., as well as an agreement by the State not to prosecute appellant for any future crimes then unindicted or under investigation. After appellant waived his right to a jury trial and agreed to plead guilty on the record, the State called Officer Donald Freitag, of the Montgomery County Police Department, who investigated a series of burglaries and rapes in the Silver Spring area in 1984 and 1985. The pertinent facts of those cases follow: In Case Number 39361, on August 21, 1984, appellant broke into the home of 74-year-old Sylvia D. and forced her to submit to vaginal intercourse. In Case Number 40129, on July 9, 1985, at approximately 1:30 a.m., appellant broke into the home of 41-year-old Sharon E. and assaulted her with intent to commit rape. In Case Number 39281, again on July 9, 1985, at approximately 3:30 a.m., appellant broke into the home of 81-year-old Edna M., threatened to kill her with a knife, and forced her to submit to vaginal intercourse.

In Case Number 39362, on July 16, 1985, at approximately 2:00 a.m., appellant broke into the home of 85-year-old Lubba K. and forced her to submit to vaginal intercourse.
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The court accepted the pleas and found appellant guilty of the aforementioned offenses. On May 14, 1986, appellant appeared with counsel for sentencing in these cases, and the court imposed the sentences as follows: In Case Number 40877, appellant was sentenced to life imprisonment for attempted first degree rape; In Case Number 39281, appellant was sentenced to a consecutive sentence of life imprisonment for first degree rape. The court then sentenced appellant to concurrent sentences for the remaining offenses, as follows: Life for first degree rape and twenty years for burglary in Case Number 39361; Twenty years for attempted armed robbery and twenty years for burglary in Case Number 39037; Twenty years for burglary in Case Number 39281; Twenty years for second degree rape and twenty years for burglary in Case Number 39362; Twenty years for burglary and fifteen years for assault with intent to rape in Case Number 40129. The aggregate sentence, therefore, was two consecutive life terms and concurrent terms of life plus 155 years.1

Although the sentencing court did not specifically indicate whether these latter nine sentences were to be concurrent, "[t]here is a presumption that if the court does not (continued...) 3

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Post-conviction On April 15, 1997, appellant filed a petition for post conviction relief in all of the aforementioned cases, but withdrew this petition without prejudice on February 26, 1998.2 On October 3, 2005, appellant, unrepresented by counsel, filed identical petitions for post-conviction relief in the above six cases. In that petition, appellant alleged that his trial counsel, Paul B. DeWolfe3 and Ricardo D. Zwaig4 , provided ineffective assistance of counsel on a number of grounds. Appellant also contended that appellate counsel, presumably Assistant Public Defenders Dennis M. Henderson and Mitchell Egber, denied him effective assistance of appellate counsel, also on a number of grounds. The State filed an opposition to this petition on March 23, 2006, asserting that "[t]he [p]etitioner's allegations should be deemed waived, previously litigated or mere bold-faced [sic] allegations upon which relief can not be granted." On March 23, 2006, appellant, pro se, filed a motion to amend his petition for postconviction relief in all six cases, again asserting ineffective assistance of both trial and

(...continued) specify that a subsequently imposed sentence is to be consecutive to an earlier imposed sentence, the latter is concurrent." Gatewood v. State , 158 Md. App. 458, 482 (2004), aff'd on other grounds , 388 Md. 526 (2005).
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That petition is not included with the record on appeal. Mr. DeWolfe is currently the Public Defender for the State of Maryland. Ricardo D. Zwaig is now a judge of the District Court of Maryland for Howard

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appellate counsel. The State filed its opposition to this amended motion on April 12, 2006, again asserting the claims were waived or without merit. On December 10, 2007, after the Public Defender's Office entered its appearance on behalf of appellant in this post- conviction case, appellant filed a Supplement to Petition for Post Conviction Relief, again in all six cases. In its timely response to appellant's Petition for Post Conviction Relief as Amended and Supplemented, the State first asserted that appellant's petition should be denied on the ground of laches. Specifically, the State argued: The crimes committed by Lopez date from the summers of 1984 and 1985. One of Lopez's victims was 74 years old. Two other victims were 81 and 85 years old, respectively. Though Lopez's other two victims were 25 and 41 years old, respectively, when they were assaulted, the crimes against them were committed at least twenty years before Lopez filed his petition in October of 2005. It is hardly farfetched under these circumstances to suggest that the elderly victims are no longer alive and that the memories of the younger victims and other potential witnesses, even if they are still living, will have faded. Such circumstances, in the words of the Court of Appeals in [State v. Adams, 406 Md. 240 (2008)], "pose[] a real potential for serious hardship and prejudice to the State's ability to mount ... new prosecution[s]" were Lopez's convictions set aside either in the instant post conviction proceeding or on appeal were a belated appeal granted. The State also contended that, even if the claims were not barred by laches, appellant's allegations of error should be deemed waived. Specifically, the State contended that: [A]ll of those claims should be treated as waived by virtue of [appellant's] having not raised them at the time of his trial and/or at the time of the guilty plea proceeding and/or at the time of sentencing, as well as by virtue of [appellant's] having waived and/or having not exercised his appellate rights,
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be they the right to note an appeal as of right or the right to file an application for leave to appeal from the convictions based on his guilty plea. [5 ] On December 11, 2008, a hearing was conducted on the petition for post-conviction relief. At that hearing, the primary issue was whether appellant's petition was barred by laches. The State proffered that the State's Attorney no longer had a file on any of the cases. In asking the court to deny the petition under the doctrine of laches, the State noted that, "we've got victims here who I can't imagine are still alive and all of it, given the expiration of time, the lapse of time, memory problems, and issues like that." Appellant's post-conviction counsel primarily relied on Creighton v. State, 87 Md. App. 736 (1991), where this Court previously held laches did not apply under the thenexisting post-conviction statute. Recognizing that the General Assembly had enacted a 10year statute of limitations in 1995, after Creighton, appellant's counsel also noted that the limitation was only imposed prospectively. During its discussion with the post-conviction court, appellant's counsel also requested, should the court be inclined to dismiss the petition under laches, that appellant be permitted to testify, assisted by sworn interpreters, concerning his reasons for not filing the petition sooner. Specifically, it was proffered, appellant would testify to his attempts to obtain transcripts for purposes of appeal, the cost to reproduce those transcripts, and his attempts at obtaining assistance from the Public Defender.

The State also briefly contended that appellant's post conviction claims were also meritless. 6

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The court initially indicated, "but I don't know that I, I don't know that I really even need to hear testimony." The court was informed that transcripts of appellant's trial, guilty plea, and sentencing were available.6 The court stated: That doesn't change the ultimate issue, the ultimate issue being this was a guilty plea and he was advised as to what was going on and the condition of the plea was that he had, that this was the deal. That he was going to get this sentence and he was going to get this sentence for, in consideration for what had gone down, what had happened in all these other cases and the ongoing investigations. It doesn't change the fact, does it, that he still waited and he waited and he waited and he waited, he didn't file anything until 2005 or 1997 he files and he withdraws it? After appellant's counsel referred to some of the allegations in the petitions, including, through his interpreter, whether appellant understood the terms of the guilty plea, the court asked the State whether it was necessary to take testimony during the postconviction hearing. The State initially referred to the merits of its laches argument, and then, considering that all the transcripts were currently available, stated "I can't imagine what his testimony is going to add." After further argument, the State did observe that appellant's trial counsel, Mr. DeWolfe, was "on call." After hearing further argument from counsel, the court agreed with the State that laches barred appellant's petition. The court first referred to the transcript of the plea hearing, concerning whether appellant knowingly, intelligently and voluntarily waived his right to jury trial, stating:

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The record on appeal only includes a portion of the trial transcripts. 7

Now, in this case, in this case with this defendant Mr. Lopez had been through a full blown trial that lasted over four or five days. He had been in trial. He knew what jury selection was because he sat through it with Mr. DeWolfe and Mr. DeWolfe's co-counsel. He knew what it was to cross-examine a witness because he'd seen it done. He knew what a jury deliberation was, he knew what jury instructions were, he knew what opening statements and closing arguments are. He knew what his right to testify or not testify was. He knew what a motion to suppress was. He knew all of those things. It's ridiculous to think that the attorney that's involved in advising him in this case, who handled the trial in this case, didn't advise him what he was giving up when he was on appeal, what an appeal was. It's just ridiculous. Mr. DeWolfe is the Public Defender for Montgomery County. He's been employed in that capacity, he's tried hundreds of cases, many serious cases, and I've known him for a long time. But for any attorney it's ridiculous to think that when you're involved in a plea of guilty that you're not going to discuss your, to your, with your client his right to appeal. Whether he fully understands it, whether any client fully understands it that doesn't have a full blown legal education, they certainly seem to as almost immediately after they get into prison, but he had been involved in a full blown trial so he knew what it was. The court then reviewed the trial transcript, quoting the portions where appellant's trial counsel advised appellant of his right to a jury trial. The court also referred to the sentencing transcript, noting that Mr. DeWolfe asked for a recommendation for appellant to the Patuxent Institution. Noting the seriousness of the underlying crimes, the court commented on the favorable deal afforded to appellant, because "the facts of these cases were so outrageous that the State would have taken the position that they were going to try each and every case they could have in order to put him in jail for as long as possible." The court next addressed the factual bases of the underlying pleas as we have set them out, supra. The court then stated:
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And when I look at all of these claims, and I look at when they've been raised in light of the prejudice to the State, it just seems overwhelmingly in favor of, if this isn't a case that should be dismissed for laches, I'm not sure which one -- Well, I just think that the court has recognized that there comes a point in time when we have to say that this is just ridiculous. Too much time has gone by. Common sense tells us it doesn't make sense in this case. In reviewing the cases separately, the court noted that three of the victims - 85, 81, and 74 years old at the time of the crimes in 1984 and 1985 - were most likely deceased.7 The court noted that because of the guilty pleas, there is no recorded testimony of any of those three victims. In part, the court observed "[n]ow, if this isn't the time to apply laches and say, sorry, way too much time has gone by and I guess back, well I guess we can say, she would have been only 105 in 2005, I just think it's ludicrous." The State did note that appellant received life sentences on the initial rape convictions. In addition, while discussing the case of one of the three elderly victims, the court noted, in part: If this, if that [sic], 104 years old and five months before we even take into account any appeals or anything else, to ask the State to come forward now and do that based on, I told Mr. DeWolfe that he should have, he should take an appeal for me and he didn't. I think if this isn't a situation where laches would apply and where the State should take the time, the Court should take the time to have Mr. Lopez testify with respect to this, again, I just think it's absolutely, totally and completely unfair.

The State pointed out that the sentence in the case of the 85 year old victim was a 20 year concurrent sentence and that "he's probably beyond entitlement to relief on the grounds that the 20 years has, they were concurrent sentences," and that "that sentence would have expired probably before he even filed his petition...."
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With respect to the two younger victims, who would have been 58 and 64 years old at the time of the hearing, the court continued that, assuming these victims were still alive, healthy, and could be located, there was a transcript for only the trial involving Ms. R., and that both of them would be asked questions concerning their memory of events that occurred 23 years in the past. The court continued: If members of our community, people, reasonable people with common sense were to hear that the Court had this issue before it and I think they would be shocked to find that somebody could come back and say, wait a second, I want you to throw out my convictions, even though I had two attorneys at the time. I freely and voluntarily waived all my rights on the record. I had gone through one full blown trial and was facing three consecutive lifes [sic] plus all kinds of additional years and I, for the reasons that I've indicated in my petition, want new trials, want my cases thrown out and want new trials when one of the victims would be 108, one 104 and one 98, they just wouldn't believe that the Court would, you know, there would be a valid legal reason to consider something this old. It defies common sense. And I don't think the law should defy common sense, should completely defy common sense. After noting the chronology in this case, the court additionally stated: Forgetting all the waiver issues and everything else that are involved, there is, it seems to me when we look at this equitable doctrine, what would be fair and what would be absolutely, totally unfair to grant him the relief he requests after this length of time to go by based on the facts of these cases. Based on the facts of these cases where we have victims, at least two that would now on this very day be over 100 years old, well over 100 years old assuming they were alive, and in all probability are now passed away. The probabilities are that all of the victims in this case, excuse me, that all of the elderly victims in this case are now deceased. After a question from appellant's counsel seeking clarification of the court's ruling, the court made clear that it was denying the petition on the grounds of laches.

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No, no, no, I'm trying, I'm glad you did. Because I'm trying to frame it for them so that they can take a look and see, sorry, there is no such thing as a case where laches applies. And I think they need to take a look at the issue, because I think there has to be some finality in these cases. And I think in this case if you look at what the State, what the State's position would be after all these years and the reasons for the relief requested, that's what I'm talking about, the reasons for the relief requested, would they outweigh the unfairness to the State. And I just don't think they, looking at them even on their, just on the allegations as they're raised, not examining them, not going by, not going through them, not considering waiver, not considering but just I have to, I think, take an overall look at the allegations if I'm talking about fairness and to see what they are and what their basis is. And in looking at that and in looking at the unfairness to the State and the unfairness to the victims of these crimes after guilty pleas at least in four of them, two of which carry life sentences that he served, one of them being the consecutive life sentence, I think that that's what I'm doing in this case. Counsel then inquired whether the court was ruling that appellant could not testify, and the court agreed that was its ruling, stating, "well, the record is what the record is." On this last point, the following colloquy occurred between the court and appellant's counsel at the hearing: [COUNSEL]: I just wanted to be clear that Mr. Lopez is not being allowed to testify as to his reasons for why his petition was filed in 1995. I want that to be clear on the record. THE COURT: And they may say that was a fatal flaw applying laches that I should have let him testify and give all his reasons. But in looking at the allegations

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