Jones v. State

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Thomas Wayne Jones v. State of Maryland No. 57, September Term, 2001 APPEAL AND ERROR It was not an abuse of discretion for the Court of Special A ppeals to excuse the State s failure to raise an argument in its opening brief, whe n the State h ad already raise d the argum ent in its Application for Leave to Appeal and reply brief, where (1) the exercise of discretion resulted in little, if any, unfairness or prejudice to the defendant and (2) the exercise of discretion strongly furthered the interests of judicial eco nomy. Md. Ru le 8-131(a). Circuit Co urt for Princ e Georg e s Coun ty Case No.: CT-931532B IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2001 THOMAS WAYNE JONES v. STATE OF MARYLAND Bell, C.J. *Eldridge Raker Wilner Cathell Battaglia Bloom, Theodore G. (retired, specially assigned), JJ. Opinion by Raker, J. Bell, C.J., and Cathell, J., dissent Filed: February 18, 2004 *Eldridge, J., now retired, participated in the hearing and conference of this case while an active mem ber of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Petitioner presents a single question for review in this Court: Whether the Court of Special Appeals exceeded the outer limits of its discretion by improperly excusing the State s procedural default and remanding this case to the circuit court for further pro ceedings. T his case is a post-conviction proceeding. The primary question before the post-conviction hearing court was whether trial counsel was ineffective for failing to object at trial to the admissibility of a hearsay statement. We hold that the Court of Special Appeals has the discretion, in the context of a post-conviction proceeding, to excuse a procedural default or waiver and did not abuse its discretion in this instance. In December 1996, petitioner Thomas Wayne Jones was tried and convicted in the Circuit Court for Prince George s County of the first degree felony murder of Gary Gulston and other related offenses, including kidnapping, robbery with a deadly weapon, and use of a handgun in a fe lony. The trial court sentenced Jones to life without the possibility of p arole for the felony murder conviction and consecutive terms of twenty years each for the handgun and armed robbery offenses; the remaining offenses were merged for sentencing purposes. In an unreported opinion, the Court of Special Appeals affirmed the conviction. Jones filed no appea l from that ju dgment. In November 1998, Jones filed a petition for post-conviction relief pursuant to the Maryland Post C onvictio n Proc edure A ct, Md . Code (1957 , 1996 Repl. Vol.) Art. 27 , § 645A,1 alleging that he had received in effective a ssistance of trial and app ellate counsel in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution. As one of his bases for post-conviction relief, Jones argued that his trial and appellate counsel were constitutionally deficient because they failed to object to the admiss ibility of a hearsay state ment con tained with in the written statement of Derrick Smith, a State witness. At Jones s trial, Smith in a written statement2 had described how he, Jones, and D on Gu trick, ano ther par ticipant in the crim inal epis ode, had planned and committed the robbery of Gary Gulston s home that resulted in the felony murder for which Jones w as convicte d. Within th e written state ment, Sm ith stated that Gutrick h ad told him that we k illed him , mean ing that G utrick an d Jone s had k illed Ga ry Gulsto n. Because Jones s counsel never objected to the admiss ibility of this incriminating statement by Gutrick as hearsay conta ined within Smith s w ritten statemen t, Jones claimed in his post-conviction petition that he received ineffective assistance of counsel at trial. The post-conviction court that adjudicated Jones s petition agreed with Jones and issued an order granting Jones a new trial, stating that [Jones s counsel s] trial perform ance, althou gh gener ally excellent, did f all 1 The Maryland Post Conviction Procedure Act was recodified as the Uniform Postconviction Procedure Act, Md. Code (2001, 2003 Cum. Supp.) Tit. 7 of the Criminal Procedure Article. 2 Smith, having been convicted at the time of Jones s trial, was called as a State s witness but unexpectedly denied knowledge of and participation in the murders and related events. The State therefore offered Smith s written statement into evidence. -2- below a standard of reas onable ness w hen he failed to object to [Don Gutric k s state ment]. The State filed an Applicatio n for Lea ve to Ap peal to the C ourt of Sp ecial App eals pursuant to the Unif orm Pos t Convictio n Proced ure Act, Md. Code (2001 , 2003 C um. Su pp.) § 7-109 of the Criminal Procedure Article. The State presented several legal arguments for the admissibility of the incriminating statement, among which was the argument that Don Gutrick s remark was clearly admissible as a statement of a coconspirator made during the course of and in furtherance of the conspiracy. See Maryland Rule 5-803(a)(5); Perry v. State, 344 Md. 204, 231-35, 686 A.2d 274, 287-89 (1996). This argument had not been raised in the post-conviction court, nor was it raised in the State s opening brief to the intermediate appellate court. In its reply brief, however, the State again stated the coconspirator exception to the hearsay rule as an alternative theory for the statement s adm issib ility. Because of the S tate s failure to raise this theory initially upon appeal, Jones s counsel filed a motion to strike that portion of the State s reply brief. The Court of Special Appea ls agreed, and found that the legal theory, raised for the first time in the reply brief, was not properly before the court and therefore would not be considered on the merits by that court. After the Court o f Special A ppeals affirmed the decision of the post-conv iction court, the State filed a Motion to Reconsider, arguing that the court had erred in refusing to consider the co-conspirator exception theory presented in the Application for Le ave to Appeal and the reply brief. Although the Court of Special Appeals rejected the legal grounds -3- of the State s motion, it revised its opinion and, in the exercise of its discretion, ordered a limited remand so that the post-conviction court might determine whether the hearsay statement was adm issible unde r the co-con spirator exce ption to the hearsay rule. The Court of Special Appeals explained its action as follows: The cases cited above elucidate for us that, in a criminal case, the State can be found to have waived a valid claim, even if the waiver leads to the reversal of a conviction. On the other hand, when the State fails to raise an imp ortant argum ent, an app ellate court ordinarily has dis cretion to rev iew the rec ord or the trial judg e's ruling in its effort to reach a sound result. Similarly, the appellate court generally retains discretion to consider an argument that is belatedly raised. In light of the importance of the issue presented w ith regard to the co-conspirator exception, we have determined, in the exercise of our discretion, that a remand is appropriate, so that the parties will have an opportunity to fully litigate before the post-conviction court the question of w heth er G utric k's statement was adm issible under the c o-conspira tor exceptio n to the hearsay rule. M oreover, w e believe a re mand is ap propriate because resolution of the issue in the context of a post-conviction proceedin g will require careful an alysis of the entire record, appropriate briefing, and, perhaps, further examina tion of def ense cou nsel and ap pellate coun sel. In reaching our decision to remand, we perceive that this is not a case in w hich the Sta te made a ta ctical decision to forego raising the co-conspirator exception. Instead, it seems to have inadverten tly omitted the argument from its initial brief after including it in the Application. Further, in contrast to some of the cases we have con sidered, the State eventually raised the co-conspirator issue in its reply brief; it did not fail altogether to raise the matter un til after we ruled, as happened in some of the cases that we cited. Nor did it make the kinds of damaging or misleading concessio ns below that we saw in other cases that we discussed. To the co ntrary, the State has steadfastly maintained -4- that Smith's entire statement was adm issible and h as persisted in its claim t hat Jon es's con viction s hould b e uphe ld. State v. Jones, 138 Md.App. 178, 241-242, 771 A.2d 40 7, 444 (20 01). Jones n oted a timely petition for wr it of certi orari, w hich w e grante d. 365 M d. 266, 7 78 A.2 d 382 ( 2001) . Before this Court, petitioner contends the intermediate appellate court abused its discretion by considering the unp reserved issu e and ord ering the rem and to the p ostconviction court. He contends that by exercising its discretion to permit the post-conviction hearing court to determine the admissibility of the hearsay statement under the co-conspirator exception, the Court of Special Appeals effectively held the State to a lower standard for preservation of post-conviction and appe llate argume nts than it does for criminal defendants. Fina lly, petitioner argues that Maryland appellate courts have consistently applied the principle of waive r to preclude c onsideration of argum ents raised b elatedly, such as in this post-conviction proceeding in which the argument was raised for the first tim e in the reply brief. The end result, says petitioner, was an appearance of p artiality by the intermediate appellate co urt and a sec ond chan ce by the State to resurrect a de ad argum ent. The State claims that the co-co nspirator arg ument be latedly raised in its rep ly brief was a subsidiary of its bedrock theory that trial counsel did not render ineffective assistance, a theory that the State properly raised and maintained throughout the post-conviction proceedings. The pos t-conviction court could not resolve the claim of ineffective assistance of counsel without first determining whether the hearsay statement would have been admissible in any event. Thus, it was not an abuse of discretion for the Court of Special -5- Appea ls to order a remand on an issue that w as necessarily included within the S tate s overarching objection to Jones s ineffective assistance of counsel claim. If Jones s trial counsel could not have pre vented admission o f Smith s written statem ent in any event, then Jones could not win his Sixth Amendment claim. The action by the Court of Special Appeals, according to the State, was a routine exercise of appellate judicial discretion pursua nt to M aryland R ule 8-1 31(a). I. The Court of Special A ppeals exe rcised its autho rity twice when it ordered a remand to the post-co nviction co urt. First, the court exercised its discretion to consider an unpreserved argument. Although that court did no t address the merits of the State s theory under the co-conspirator exception, the court took up the belated argument implicitly when it decided to remand the case back to the post-conviction court. This act by the Court of Special Appeals is sufficient for us to determine that the court ex ercised the type of appella te discretion that permits consideration of unpreserved arguments. The Cou rt of Special A ppeals exerc ised a sec ond, distinct t ype of aut hority when it decided to remand the issue to the post-conviction court. This sort of authority is distinct from the discretion to consider unpreserved arguments or to excuse a procedu ral default or waiver, because a remand of an issue requires that the issue, in some way or another, be properly before the remanding appellate court in the first place. In other words, the decision -6- to consider an unpreserved argument was antecedent to the decision to remand. Maryland Rule 8-13 1(a) perm its the appellate courts to consider unpreserved issues: (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived unde r Rule 2-322, over a person may be raised in and decided b y the appellate court whether or not raised in and dec ided by the trial co urt. Ord inarily, the 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 exp ense an d delay o f anoth er appe al. The first sentence of the Rule sets forth the general principle that the question of subject matter jurisdiction may be raised at any time and thu s may be raised properly for the first time on app eal. See Lan e v. State, 348 Md. 272, 278, 703 A.2d 180, 183 (1997 ). The second sentence of the Ru le articulates the ordinary and strong presumption that appellate rev iew is limited to those issues raised at the trial level. W e are conc erned in this c ase with the second aspect of Rule 8-1 31(a). The second se ntence of Rule 8-13 1(a) sets forth the general proposition that an appellate court ordinarily will not consider an issue that was not raised or decided by the trial court. The p lain lang uage o f the rul e, however, makes clear that the prohibition is not absolute. See Crown Oil v. Glen, 320 M d. 546, 5 61, 578 A.2d 1 184, 1191 (1990) (noting that, inasmuch as Rule 8-131(a) employs the term ordinarily, it permits exceptions, and appellate courts have occasion ally decided cases on issues not pre viously raised). The word ord inarily in Rule 8-131(a) anticipates that an appellate court will, on appropriate occasion, -7- review unpreserved issues. This has been the practice of the Maryland appellate courts, as well as of the federal courts a nd our sister state s, dating well be fore R ule 8-1 31(a). See Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507, 510 (1991) (noting that Rule 8-131(a) is simply enunciato ry of the practice which h as existed sin ce 1825) ; see also Anno t., Issue First Raised on Appeal, 76 A.L .R. Fed . 522 (1 986). In State v. Bell, 334 Md. 178, 638 A.2d 10 7 (1994), w e conclud ed: It is clear from the plain language of Rule 8-131(a) that an appellate court s review of arguments not raised at the trial level is discretio nary, not m andato ry. The use of the w ord ord inarily clearly contemplates both those circumstances in which an appellate court will not revie w issues if th ey were not p reviously raised a nd thos e circum stances in whic h it will. Id. at 188, 638 A.2d at 113. Thus, under the Rule, an appellate court has discretion to excuse a waiver o r procedu ral default and to consider an issue even though it was not properly raised or preserved by a party. In this case, the default is tw o-fold. In the first instance, th e State failed to present the co-conspirator theory to the post-conviction hearing co urt. Compounding that error, the State did no t raise the argu ment in its op ening brief on appea l, subjecting it to the rule that an appellate court ordinarily will not consider an issue raised for the first time in a reply b rief. Fearnow v. C&P Telephone, 342 Md. 363, 384, 676 A.2d 65, 75 (1996). There is no fixed formula for the determination of when discretion should be exercised, and the re are no bright lin e rules to conclu de that d iscretion has bee n abus ed. See State v. Hutchinson, 287 Md. 198, 202, 411 A.2 d 1035, 1 038 (198 0) (refusing to set forth a -8- fixed formula for determining when the exercise of appella te discretion in considering an unpreserved issue is proper). We have, however, laid out in prior cases, by explanation and example , principles to guide the courts when consideration of unpreserved issues might be proper . The primary purpose of Rule 8-131(a) is to ensure f airness for a ll parties and to promote the ord erly admi nistration of law . See Conyer s v. State, 367 Md. 571, 594, 790 A.2d 15, 29 (20 02). A lthough the interests of fairness generally are furthered by requiring the issues to be brought first to the attention of the trial court so that the trial court may pass upon it in the first instance, the appellate court has the discretion to excuse the default and consider the issue. Id. This discre tion should be exercise d only whe n it is clear that it will not work an unfair prejudice to the parties or to the court. While the authority to review unpreserved issues is discretionary, it should not be exercised when it will work an unfair prejudice to the parties. Bell, 334 Md. at 191, 638 A.2d at 114. Th erefore, the a nimating p olicy behind R ule 8-131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration. Thus, when p resented w ith a plausible e xercise of th is discretion, ap pellate courts should make two determinations concerning the prom otion or subversion of 8-131(a) s twin goals. First, the appellate court should consider whether the exercise of its discretion w ill work unfair prejudice to eith er of the parties. Id. at 189-90, 638 A.2d at 113-14. For example, with respect to the parties, a new argument presented by the State would w ork -9- unfair prejudice to a criminal defendant if its validity depended upon evidence not adduced at the trial le vel. Id. In such a case, an appellate court s consideratio n of the arg ument w ould most likely be an abu se of its discre tion under R ule 8-131 (a) becaus e it would b e manife stly unfair to the defendant who had no opportunity to respond to the argument with his own evidence to the contrary. Similarly, unfair prejudice may result if counsel fails to bring the position of her client to the attention of the lower court so that that court can pass upon and correct any errors in its own proceedings. Id. In addition, the reviewing court should look to the reasons for the def ault or waiv er. The co urt should c onsider w hether the f ailure to raise the issue was a considered, deliberate one, or whether it was inadvertent and unintention al. See, e.g., Conyers, 367 Md. at 595-596, 790 A.2d at 30. Second, the appellate court shou ld consider whether the exercise of its discretion w ill promote the orderly adm inistration of ju stice. This sim ply means tha t the Rule se eks to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the term ination o f litigatio n. See, e.g., Crown Oil, 320 Md. at 562-63, 578 A.2d at 1191. Although this policy goal does not require that the case be remanded back to the court, it does imply tha t an appellate court should feel less constrained by the ordinary course of issue preserv ation whe n its decision to raise an unpreserved issue will not effect but will improv e the ef ficienc y of judic ial adm inistratio n. See id. Fina lly, we note that we do not reverse the Court of Special Appeals for the exercise of its discretion unless it has clearly been abused. -10- While this Court retains its own independent discretion to hear unpreserved arguments, Squire v. Sta te, 280 Md. 132, 134, 368 A.2d 1019, 1020 (1977), that does not mean we review the discretionary functions of the lower appellate co urt de novo. To the contrary, we respect the judgment of the Court of Special Appeals in determining whether it needed to consider the issue for the proper execution of justice, and unless upo n our review that court abused its discretion under the Rule, we will no t substitute our jud gmen t for the irs. Fearnow, 342 Md. at 384, 676 A.2d at 75; Ritchie v. D onnelly, 324 Md. 344, 375, 597 A.2d 432, 447 (1991 ); see also Hutchinson, 287 Md. at 204 n.1, 41 1 A.2d at 1038 n.1 (applying abuse of discretion s tandard to Court of Special Appea ls s discretion to take cognizance of and correct plain error). Turning now to the case sub judice and applying the analytic framew ork and standard of review outlined above, we hold that the Court o f Special A ppeals did n ot abuse its discretion to consider the unpreserved argument on appeal under Rule 8-131(a). We find little if any prejudice generated against either petitioner or the post-conviction court by the Court of Special Appeals s exercise of discretion in this matter; furthermore, we find the second policy goal of Rule 8 -131(a), ord erly and effic ient judicial ad ministration, stro ngly favors the outc ome d etermin ed by the interme diate ap pellate c ourt. Putting our ruling in context, it is helpful to imagine hypothetically wh at would happen if the Court of Special Appeals had not exercised its d iscretion and had only affirmed the post-conviction court. In that case, Jones w ould receive a n ew trial, and the State sure ly would submit Smith s written statement, upon which Jones s new trial counsel, this time, -11- would just as surely object to Gutrick s hearsay statem ent within S mith s written statement. Now, the State would respond with the co-conspirator exception argument that was foreclosed to it by the post-co nviction pro ceedings, a nd the trial cou rt would d ecide this matter of law. E ssentially, the scena rio would unfold whereby the question regarding the coconspirator exception would be fully litigated even if there was no remand and petitioner s position prev ailed in this Co urt. T he only difference betwee n the abov e hypothetical sc enario and the current decision by the Court of Special Appea ls to litigate the qu estion in pos tconviction proceedings is that the former requires the extreme and exp ensive me asure of b oth empaneling a new jury and relitigating every single issue and fact relevant to Jones s conviction. The absurdity of this is made even more clear when it is understood that depriving the post-conviction court from determining this legal issue could result in the hearsay statement re aching the jury in the same manner a s in Jones s original trial nothing will have changed. On the other hand, pursuant to the Court of Special Appeals s order to remand, the post-conviction judge will have the opportunity to determine the question of law, the admissibility of Derric k Smith s s tatement. If th e judge de termines tha t the statemen t is inadmissible, then Jones will receive his new trial. If, on the other hand, the judge determines that the statem ent is admiss ible, the post-c onviction c ourt will deny his postconviction petition for relief based on ineffective assistance of counsel because in that case his right s were never v iolated. -12- Fina lly, we note, as did the Court of Special A ppeals, that the State has never wavered from its positio n that the stateme nt was admiss ible in its e ntirety, and that therefore Jones was afforded sufficient assistance of counsel. The State did not make a tactical decision to forgo, waive, or concede the argument that the statement was admissible under the coconspirator argument and, indeed, had clearly set forth the legal theory in its Application for Leave to Appeal. The State s failure to mention it again in its opening brief therefore appears to have been an inadvertent and pure oversight. While such a mistake is serious, we do not think it w as an abu se of discre tion for the lo wer app ellate court to excuse it in light of the fact that Jones will suffer no prejudice (except the loss of a new trial he may never have been entitled to in the first pla ce) and the substantial jud icial resources that will be saved by adjudication of this co llateral matter. II. Initia lly, we addressed only the propriety of the antecedent determination by the Court of Special Appeals to consider, in the exercise of its discretion, the unpreserved argument because the propriety of the Court of Special Appeals s limited remand was raised solely by the State. In this regard, petitioner vigorously denounce d the State s understan ding of h is argument, stating as follows: In this Court, Petitioner did not focus his challenge on the [decision by the Court of Special Appeals to order a limited remand]. Instead, Petitio ner respec tfully requested that this Court find that the Court of Special Appea ls erred prior to that -13- by failing to hold the State to the w ell-established rules for record /claim p reserva tion . . . . Whether the Court of Special Appeals abused its discretion is the primary question before this Court. Petitioner s Reply Brief at 2-3. The dissent believes that petitioner raises the propriety of the remand and that the issue should be addressed,3 even though it was the petitioner who asked that the issue not be addressed. Because the heart of the dissent s argument relates to the reman d, we w ill respon d. The dissent s cha racterization o f the hearsa y issue as integr al and not collateral (and therefore inappropriate for limited remand) is without merit. The hearsay issue in the instant case is part and parcel of the larger issue before the reviewing court the claim of ineffective assistance of counsel and that larger issue is indisputably a collateral matter. The fact that the hearsay issue is integral to determination of the collateral Sixth Amendment challenge 3 The dissent s belief that petitioner argued that the intermediate appellate court abused its discretion in ordering the limited remand belies petitioner s express statement that the propriety of the lim ited rem and [is ] not rele vant to th e quest ion bef ore this C ourt. Petitioner s Reply Brief at 3. The dissent relies o n the que stion presen ted in petitioner s opening brief which is manifestly ambiguous as to whether the question relates to just the excuse of the procedural default or to both the default and the limited reman d, see dissenting op. at 4; a sentence in petitioner s reply brief that, taken in context, clearly furthered petitioner s argument that the lim ited rem and issu e shou ld not b e decid ed by this C ourt, see Petitioner s Reply Brief at 3; dissenting op. at 4; and a heading in petitioner s reply brief that is irrelevant to the dissent s (mistaken) belief about the question petitioner wanted this Cou rt to address, see dissenting op. at 4-5. Petitioner did not present a single argument apart from his core argument that the remand was improper because the antecedent excuse of the procedural default was improper (which we address) in either its opening or reply brief that addressed the issue of the limited rem and and, to the contrary, exp ressly asked this C ourt not to addr ess it. -14- is irreleva nt to the q uestion of wh ether the matter is approp riate for reman d. The crux of the dissent s argument appears to rest on the mistaken belief and novel suggestion that post-conviction proceedings are the equivalent of a trial, and that the approp riate question is whethe r the issue is collateral to . . . the proceedings out of which they arise. Dissenting op. at 11 (em phases ad ded). This h as never b een the law in this State, nor should it be. By definition, a post-conviction proceeding is collateral, and thus the issues adjudicated in that proceeding are ipso facto collateral and appropriate for remand. The disse nt s view th at this case falls within our case law on limited remands as set forth in Gill v. State, 265 M d. 350, 2 89 A.2 d 575 (1972), and its progeny is wrong. Of course, as the d issent co rrectly note s, Gill is not limited to its f acts; noneth eless, this case is not a Gill case and does not fall within the rationale of Gill. The issue in Gill was the voluntariness of a confession, a matter which is a mixed question o f law and fact specially designated for the ultimate determination by a jury. In Gill, we held as follows: [A] remand solely for a red eterm inati on of the confess ion's voluntariness can never be p ermitted in a jury trial since eve n if the trial judge again concludes the statement was voluntary, that only establish es, prim a facie, i t was u ncoerc ed. The jury still must have the o pportunity to consider the evidence pertaining to its voluntariness before de ciding wh ether the acc used is guilty or innocent. This inviolable jury function would be eliminated unless th e judgm ent wa s revers ed and a new trial awa rded. Id. at 358-59, 289 A.2d at 590 (emphases add ed). Under M aryland law, the jury must find a confession to be voluntary beyond a reasonable doubt before the statement may be consid ered. See Britting ham v. S tate, 306 Md. 654 , 665, 511 A.2d 4 5, 50 (1986). -15- III. In sum, the comparison of the two alternatives open to the intermediate appellate cou rt makes clear (1) that it was not manifestly unfair or prejudicial to Jones for the Court of Special Appeals to take up the issue of the co-conspirator exception, and (2) that the interests of judicial econ omy are stron gly furthered, not subverted, by exercise of appellate discretion. It would be unreasonable and inconsistent for this Court to conclude, particularly under the deferential standard afforded such judicial discretion, that the Court of Special Appeals abused its discretion un der Rule 8 -131(a) to re ach a result th at promoted th e Rule s tw in policy goals. We w ill not do so, and instead affirm the Court of Special Appeals s exercise of judicial discretion in this case. JUDGMENT AFFIRMED, WITH COSTS TO BE PAID BY PETITIONER. -16- IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2001 THOMAS WAYNE JONES v. STATE OF MARYLAND Bell, C.J. *Eldridge Raker Wilner Cathell Battaglia Bloom, Theodore G. (Retired, Sp ecially Assigned), JJ. Dissenting Opinion by Bell, C. J. in which Cathell, J., joins. Filed: February 18, 2004 *Eldridge, J., now retired, participated in the hearing and conference of this case while an active mem ber of this C ourt; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also parti cipated in the decision and adoption of this opinion. This case involves the propriety of the Court of Special Appeals remand of this case, pursuant to Maryland Rule 8-131 and Maryland Rule 8-604, to the post co nviction co urt to consider an issue, substantive in fact, to the underlying post conviction proceedings,4 that could have been, but was not, raised during the post conviction trial, or at any time in the intermediate appellate co urt until the Sta te submitted its reply brief in that c ourt. 5 As the majority states, ___ Md. ___, ___, ___ A. 2d __ _, ___ (2004) [slip op . at 5], the Court of Special A ppeals exe rcised discre tion on tw o occasion s: when it considered, the issue in this case, even though it was neither raised in, nor decided by the trial court, and when it ordered a re mand to the post conviction court for the specific purpose of addressing the State s argument that State Witness Smith s statement would have been admissible under the co-conspirator exception to the hearsay rule. An appellate court s exercise of discretion to consider issues not previou sly presented before the lower court is governed by Maryland Rule 8-131, section (a) of which addresses the scope of appellate review. It provides: (a) Gen erall y. The issue s of jurisdictio n of the trial court over the subject 4 There is no automatic right of appeal in post conviction cases; a party aggrieved by the decision of the post conviction court must se ek leav e to app eal, see Maryland Code (1957, 1996 Replacement Volume ) Article 27, §§ 645E and 645-I, now Maryland Code (2001) § 7-109 of the Criminal Procedure Article; Maryland Rule 8-204. The State was granted leave to appea l in this ca se. 5 In supp ort of its a pplicatio n for lea ve to ap peal, it arg ued, inter alia, that It is clear from the contex t of this statement and the other evidence presented at trial that Donald Gutrick s remark to Derrick Smith was made before the criminal enterprise that started at 6804 A lpine St. was over. ... The remark was clearly admissible as a statement of a coconspirator made during the course of and in f urthera nce of the con spiracy. State v. Jones, 138 M d. App . 178, 22 8, 771 A .2d 407 , 436-3 7 (200 1). It did not make that argument in its initial brief filed in the Cou rt of Specia l Appeals , howev er, making it only when it filed its reply brief. matter and, unless waived u nder Ru le 2-322, ov er a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ord inarily, the 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 co urt or to a void th e expe nse and delay of a nother appea l. Md. Rule 8-131(a). 6 Pursuant to this rule, an appellate court may consider an issue raised for the first time on appeal if it determines that to do so is necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. Exercising its discretion, the Court of Special Appeals initially chose not to review the State s co-co nspirator arg ument, ne wly raised on appeal, and struck the portion of the State s reply brief raising it. State v. Jones, 138 M d. App . 178, 23 1, 771 A .2d 407 , 439 (2001). Upon consideration of the State s su bsequen tly filed Motion for Reconsideration,7 6 This Court has made clear that this section s use of the word ordinarily indicates that it merely states the usu al rule an d is not a bsolute . Gindes v. Khan, 346 Md. 143, 151, 695 A.2d 163, 167 (1997). Thus, an appellate court s decision to review arguments not raised at trial is discre tionary, no t mand atory. State v. Be ll, 334 Md. 178, 188, 638 A.2d 107, 113 (1994). 7 In that motion, the State presented yet another argument for the first time, contending in effect, that its belated argument was not waivable, because the issue is whether defense counsel was or was not ineffective, regardless of whether the State proposes a valid basis to justify defense counsel s performance. Jones, 138 Md. App. at 232, 771 A.2d at 439. The intermediate appella te court r ejected that argu ment, which it characterized as being that even if [the State] d id not timely offe r a valid reason to show that defense counsel was not ineffective, an appellate court has an independ ent obligation to determine whether the defense attorney's perform ance wa s, in fact, constitutionally deficient. Id. at 234, 771 A.2d at 440. It explained: In our view, the logical extension of the State's position is that there are no time constraints that apply with respect to a claim by the State that defense counsel was not constitutionally ineffective. If the State is permitted to raise a new but valid argument for the first time in its reply brief, or in a motion to reconsider after an appellate ruling is issued, then it could also raise an -2- the Court of Special A ppeals cha nged its min d and exe rcised its discre tion to consider the unpres erved a rgume nt. Id. at 241, 771 A.2d at 444. It is clear that an appellate court in this State may remand a criminal case to the trial court for further proceedings. Maryland Rule 8-604, in pertinent part, provides: (a) Generally. As to each party to an appeal, the Court shall dispose of an appeal in one of the following ways: (1) dismiss the appeal pursuant to Rule 8-602; (2) affirm the judgm ent; (3) vacate or reverse th e judgme nt; (4) mod ify the judgm ent; (5) remand the action to a lower co urt in accord ance with section (d) of this Rule; or (6) an appropriate combination of the above. (b) Affirmance in Part and R eversal, M odification, o r Reman d in Part. If the Court concludes that error affects a severable part of the action, the Court, as to that severable part, may reverse or modify the judgment or remand the action to a lower court for further proceedings and, as to the other parts, affirm the judgm ent. * * * * (d) Remand. (1) Generally. If the Court concludes that the subs tantial merits of a case will not b e determin ed by affirm ing, reversin g or mod ifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower argument for the first time long after the Court has ruled. Moreover, applying the State's reasoning, it would be incumbent upon the Court to consider the possible universe of reasons justifying a lawyer's strategy or course of action, even if the State never raises such a point. In the extreme, the State's position means that its failure to justify defense counsel's representatio n is virtually irrelevant, because it is incumbent on the appellate court to determine whether there is a ny basis to sustain t he repr esentati on aff orded b y defens e coun sel. Id. -3- court shall conduct any further proce edings ne cessary to determine the action in a ccordanc e with the o pinion and order of the app ellate court. (2) Criminal Case. In a crim inal case, if the appellate court reverses the judgment for error in the sentence or sentencing procee ding, th e Cou rt shall rem and the case fo r resente ncing. See Gill v. State, 265 Md. 350 , 357, 289 A. 2d 5 75, 578-79 (197 2).8 The majority believes that only one of the two exercises of discretion by the Court of Special Appeals is properly before this court on review; namely the propriety of the antecedent determination by the Court of Special Appeals to consider, in the exercise of its discretion, the unp reserve d argum ent. The prop riety of the limited remand decision, it says, was raised by the S tate and, in ef fect, rejected, certainly not adopted, by the petitioner, as the following argument from the petitioner s reply brief indicates: In this Court, Petitioner did not focus his challenge on the [decision by the Court of Special Appeals to order a limited remand]. Instead, Petitio ner respec tfully requested that this Court find that the Court of Special Appea ls erred prior to that by failing to hold the State to the well-established rules for record /claim p reserva tion. . . . Whether the C ourt of Specia l Appeals abused its d iscretion is the primary question before this Court. Id. at ___, _ __ A.2 d at ___ [slip op . at 12], quoting Petitioner s Reply Brief at 2-3. Construing that one paragraph as an intentional restriction of the petition er s argum ent in this Court, it believ es that the issu e of limited re mand is n ot an issue b efore this co urt. 8 In a Committee note, citing Gill v. State, 265 Md. 350 , 289 A.02d 57 5 (1972); Weiner v. State, 290 Md. 425, 438, 430 A.2d 588, 596 (1981); and Reid v. State, 305 Md. 9, 17, 501 A.2d 43 6, 440 (1985), the Court stated its intention not to change existing case law regarding limited remands in criminal cases. -4- A review of the petitioner s initial and reply briefs, clearly discloses that the petitioner argued that the intermediate appellate cou rt abused its discretion both in excu sing the State s waive r of an u nprese rved iss ue and in orde ring a lim ited rem and. To start with, the q uestion pre sented in the petitioner s initial brief addresses and challenges the propriety of the reman d. It reads: Did the Court of Special A ppeals exc eed the ou ter limits of its discretion by improper ly excusing the State s procedural default of an issue at both the p ostconviction hearing and on this appeal, resurrecting one of the State s undeniab ly dead c laims, and remanding this case to the circuit court for further post-conviction proceedings? Petitioner s Brief at 5-6 (emphas is added). F urthermo re, in its reply brief, in the very portion of the argumen t on which the majority relies, th e petitioner ch aracterizes the preservation issue as the primary, not the only, question before the Court. He also stated that [c] ertai nly, under the circumstances of this case, a limited remand was the wrong solution because it unfairly prejudiced Petitioner. Petitioner s Reply Brief at 2. Moreover, one of the headings to the arguments that the petitioner advanced in his Reply Brief was THE STATE ERRONEOUSLY TRIES TO CONVINCE THIS COURT THAT THE COURT OF SPECIAL APPEALS ISSUED A LIMITED REMAND FOR REASONS OTHER THAN TO CONSID ER T HE C LAIM THE STA TE FA ILED TO P ROP ERL Y PR ESER VE. Petitioner s Reply Brief at 3. Although the issue of remand may have been sec ondary to the petitioner s primary argumen t, the propriety of the Court of Special Appeals initial exercise of discretion to consider an unpreserved a rgument, I believe, should b e fully addressed. The ma jority s -5- analysis, to the extent that it does address the issue, is simply wrong. It is clear that an appellate court in this State may remand a criminal case, to the trial court for further proceedings. It is also well settled that, given the purpose and application of Rule 8-604 (d), the remand can be for a limited, o r restricte d, purp ose. Southern v. State, 371 Md. 9 3, 104- 105, 807 A .2d 13, 2 0 (200 2). See also McM illian v. State, 325 Md. 272, 296-97, 600 A.2 d 430, 44 2 (1992); Bailey v. State, 303 M d. 650, 496 A.2d 6 65 (1985); Warrick v. State, 302 M d. 162, 486 A.2d 18 9 (1985); Mahammitt v. State, 299 Md. 82, 86, 472 A.2d 477, 479 (1984); Wiener v. State, 290 Md. 425 , 438, 430 A.2d 5 88, 596 (1981). Nevertheless, we have stated that Rule 8-604 (d ) is neither an antidote for the errors of the State or of counsel nor a m ethod to correct errors c omm itted dur ing the tr ial itself. Southern, 371 Md. at 104, 807 A.2d at 19, citing Reid v. State, 305 Md. 9, 17, 501 A.2d 436, 440 (1985); Comptroller of T reasury v. Panitz, 267 Md. 29 6, 301, 297 A.2d 289, 292(1972 ); Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 659, 229 A.2d 412, 416 (1967). Where, therefore, the issue to be resolved on the limited rem and is collateral to the proceedings out of which the issue aro se, a limite d rema nd is pro per. See Edmon ds v. State, 372 Md. 314, 339-342, 812 A.2d 1034, 1048-50 (2002) (challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)); Warrick v . State, 326 Md. 696, 707-708, 607 A.2d 24, 30 (1992) (remand for in camera examination to determine whether defendant entitled to disclosure of informant's identity, and whether defendant prejudiced by nondisclosure); McMillian, supra, 325 M d. at 288, 600 A.2d at 438 (remand to determine voluntariness of consent to search proper where, because the trial court erron eously -6- determined that a police entry was justified by exigent circumstances, the trial court failed to consider the illegal entry along with the other eviden ce in deciding the issue initially); Reid v. State, 305 Md. 9, 17-18, 501 A.2d 436, 440 (1985) (limited remand to determine authenticity of two letters submitted by death p enalty defendant as to his goo d character); Bailey, supra, 303 Md. at 658-59, 496 A.2d at 669-70 (remand to consider whether defendant prejudiced proper where, due to an erroneous discovery ruling, the court did not consider the issue); Warrick, supra, 302 M d. at 172-74, 486 A.2d at 194-95 (remand proper where, because of the application of too narrow an interpretation o f a discove ry rule to motion to compel discovery, record fails to demonstrate whether State possessed material or information that it should h ave prod uced); Maham mitt, supra, 299 Md . at 86, 472 A.2d at 479 (where re cord revea ls little other than that the defendant was not tried within 180 days, limited remand to determine whether there was a violation o f the 180 d ay rule appropriate); Wiener, supra, 290 M d. at 438, 43 0 A.2d a t 596 ( H ere, the hearin g to determine the facts underlying Wiener s motion cla iming den ial of the righ t to the effective assistance of counsel was collateral to the criminal trial itself ). Con vers ely, when the error giving rise to the issue to be addressed on limited remand is one that is inte gral to the pro ceedings in which it oc curred, the a ppropriate mandate would not be a remand for further proceedings to resolve the issue. Rather, the appropriate mandate would be a rema nd for ne w trial. Gill v. State, 265 M d. 350, 2 89 A.2 d 575 ( 1972) . In Gill, the issue was whether the def endan t s conf ession w as volu ntary. Id. At trial, the defendant argued that his confession was coerced; however, only one of the two officers to whom the -7- defendant confessed testified as to the circumstances under which the confession was given. Further, the officer that the defendant maintained coerced his confession while they were alone did not testify. Nevertheless, the court admitted the confession into evidence over the defendant s objection. The Court of Special Appeals agreed with the defendant s assertion that the failure of the police officers involved to take the stand to deny a direct accusation by the appellan t would in dicate that the State had f ailed to mee t its constitutiona l burden to prove voluntariness of the confession. Id. at 353, 289 A.2d at 577, quoting Gill v. State, 11 Md. App. 378, 384, 274 A.2d 667, 670 (1971) (Gill I). Rather than remand th e case to the trial court for n ew trial, the intermed iate appellate court ordered the case returned to the trial court for a redetermination of the question of voluntariness after taking additional testimony . Id. at 354, 289 A.2d at 577, quoting Gill I, 11 Md. App. at 384, 274 A.2d at 670. The trial court reconfirmed its prior voluntariness ruling and the Court of Special Appea ls affirmed the judgment in an unrepo rted op inion. Id. at 354-55, 289 A. 2d at 577-78. We reversed, holding that althoug h Rule 1071 (a ),9 the predecessor to Ru le 8-604 (d), may 9 Maryland Rule 1071 (a) provided: a. For Furth er Proceed ings. If it shall appear to this Court that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment from which the appeal was taken, or that the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of the pleadings, introduction of additional evidence, or otherwise, then this Court, instead of entering a f inal order affirming, reversing or modifying the judgment from which the appeal was taken, may order the case to be remanded to the low er cour t. Upon reman d to the lo wer co urt, such further proceedin gs shall be had by amendment of the pleadings, introduction of additional evidence, making of additional parties, or otherwise, as may be necessary for determining the action upon its merits as if no appeal had been taken and the judgment from which the appeal was taken had not been entered; -8- be suitable to correct proced ures subsid iary to the crimina l trial, it can never b e utilized to rectify prejudicial errors committed during the trial itself. Id. at 357, 2 89 A.2 d at 579 . Noting this State s well-settled two-tier practice employed to determine the voluntariness of a defendant s confession, the Court concluded that the admissibility of a confession is always an integral part of the trial. This is not o nly true of t he con fession , per se, but it also encompasses the entire process of ascertaining, prima facie, that it was legally obtained. Id. We further stated: [t]herefore, it becomes quite appa rent that a remand solely for a redetermination of the confession's voluntariness can never be permitted in a jury trial since even if the trial judge again concludes the statement was volunta ry, that only establishes, prima facie, it was unco erced. The jury still must have the opportunity to conside r the eviden ce pertaining to its voluntariness before deciding whether the accused is g uilty or innocen t. This inviolable jury function would be eliminated unless the judgment was reversed and a n ew trial a warde d. Id. at 358-59, 289 A.2d at 580. The Gill holding is not limited to its facts. We relied on Gill to reverse a limited remand ordered by the Court o f Special A ppeals in Lipinski v. S tate, 95 Md. App. 450, 622 A.2d 145 (1993) (Lipinski I). In Lipinski, the only contested iss ue was w hat sanction should have been applied after the trial judge, in enunciating his decision at the defendant s bench trial, relied on a flawed definition of de liberate a nd prem editated , Lipinski v. S tate, 333 provided, however, that the order entered by this C ourt in remanding said case, and the opinion of this Court on which sa id order is pa ssed, shall be conclusive as to the points finally decided thereby. In such an order remanding a case this Court will express the purpose for so rem anding an d in its opinion filed with said order will dete rmine all qu estions wh ich may hav e been pro perly presen ted. -9- Md. 582, 583-84, 636 A.2d 994, as discussed in Willey v. State, 328 Md. 126, 613 A.2d 956 (1992). The interm ediate appe llate court remanded the case to the trial court with the direction that it consider th e evidenc e in accord ance with the standard enunciated . . . in Willey . . ., as to whether [Lipinski] acted with premeditation and deliberation. Lipinski, 333 Md. at 584, 636 A.2d at 995. We held: Here, the definition by the judge of the crime charged w as not subs idiary to the crim inal t rial. T he co urt's analysis of the crime of premeditated murder was prejudicially erroneou s, and the erro r was com mitted durin g the trial itself. Rule 8 -604(d ) may no t be utilize d to recti fy that erro r. Id. at 592, 636 A.2d at 998-99. Similarly, in Mitchell v . State, 337 Md. 509, 654 A.2d 1309 (1995), we considered whether a new trial, rather than a limited remand, is re quired w hen a trial cou rt fails to conduct a sufficient inquiry to determine whether a criminal defendant's reasons for appearing at trial without counsel are meritorious before ruling that the defendant had waived the right to c ounse l by inactio n. Id. at 511, 624 A.2d at 1310. We held that a new trial was the proper sanction, holding that a limited remand was not appropriate because the issue of whether Mitchell waived his right to counsel was not subsidiary to the criminal trial. Id. at 515, 624 A.2d at 1312. Explaining, we said: The key to determining the propriety of the limited remand is whether the required inquiry was so intertwined with the trial that a limited rema nd could cause the defendant to suffer great prejudice. The controlling factor is not, as the intermediate appellate court stated, whether the error occurred during the trial; it is whether the error adversely affected th e defend ant's right to a fa ir trial. If the case at bar were remanded for a determination of whe ther Mitchel l's reason for appearing without co unsel wa s meritoriou s, Mitchell w ould have to -10- reconstruct his actions of over two years ago. He must also recall the dates and contents of conversations with representativ es of the O ffice of the Public Defender, in addition to how much money had been paid and how much money was owed to the private attorney he had previously attempted to retain. The potential prejudice to Mitche ll is obvious, and a limited remand in this case w ould be funda menta lly unfair. Id. at 517, 624 A.2d at 1313, citing Gill, 265 M d. at 357 , 289 A .2d at 57 9. . Our most recent pronouncement on this subject was made in Southern v. State, supra, 371 Md. 93, 807 A.2d 13. We granted certiorari in that case to consider whether it was proper for the Co urt of Spe cial Appeals to ord er a limited rem and to allow the State to introduce evidence supporting the legality of an initial stop, where the defense challenged its legality at a suppression hearing and the State failed to introduce any evidence on that issue. Id. at 96, 807 A.2d at 15. Although it recognized that once the defendant challenged the propriety of the stop, the State had the bu rden to pre sent eviden ce justifying its actions , id. at 105-106, 807 A.2d at 20, citing DiPasqu ale v. State, 43 Md. App. 574, 578, 406 A.2d 665, 667 (197 9), the interm ediate appe llate court held that the con stitutionality of the stop had not been resolved and, therefore granted a remand permitting the State to, in essence, reopen the suppressio n proceed ing in order to introduce new evidence regarding the initial stop. Id. at 106, 8 07 A.2 d at 21. We rejected that appro ach, and noted that the trial court denied the defen dant s M otion to Su ppress des pite the fact th at the State did not m eet its burden of proof on the issue. Accordingly, we elucida ted that Rule 8-604 d oes not afford parties who fail to meet their burdens on issues raised in a completed suppression hearing an opportun ity to reopen the suppression proceeding for the taking of additional evidence after the appellate court has held the party has failed to meet its evidentiary burden. Id. at 105, -11- 807 A.2d at 19-20. W e furthermore stated that [t]he Court of Special Appeals went astray when it attempted to afford the State the opportunity to relitigate, in the same case, an issue it had failed to litigate and prove. Id. at 110, 807 A.2d at 23. We concluded: The purpose of the remand was not to correct a procedural error, but to affo rd the State an additional opportunity to do that which it previously failed to do - present evidence on the initial stop. This is not a case where the motions hearing judge simp ly did not rule, it is a case where the State, which had the burden of proof on the constitutionality of the initial detention at the suppression hearing, admits that it did not present sufficient e vidence to support the constitutionality of the stop. Without taking additional evidence at a renew ed hea ring, the State ob viously ca nnot m eet its bu rden. Id. at 106, 8 07 A.2 d at 21. In this case, the trial and the direct appeal of the judgment thereby rendered have long since ended . Those judgm ents w ere not a t issue in this case . At issue was, rather, the propriety of the trial court s ruling at the post conviction hearing that the petitioner s trial counsel rendered the petitioner ineffective assistan ce. Whethe r the Smith h earsay stateme nt, as a statement of an alleged participant with the petitioner in the criminal activity, was admissible against the p etitioner as the s tatement of a co-conspirator is integral to, if not critical to , the reso lution o f that issu e. To be sure, post co nviction procee dings th emselv es are co llateral to the trial. When issues ordinarily cognizable on post con viction are pursued in the context of the trial, i.e., by litigating the comp etence of c ounsel on direct appe al, see, e.g., Harris v. Sta te, 299 Md. 511, 517, 474 A .2d 890 , 892-9 3 (198 4), 10 10 the admissibility of a statement bearing on a This Court has pointed ou t, In Re: Parris W., 363 Md. 717, 726, 770 A.2d 202, 207 (2001), that -12- defendant s guilt or innocence may be a proper subject for a limited remand because the issue is collateral to the substantive merits of the trial. Where, how ever, a s in this case the judgment rendered at trial is final, the post conviction proceedings are being pursued separately to attack that jud gment co llaterally, and those proceedin gs are the on ly proceedings extant, the post conviction proceedings are the equivalent of a trial inasmuch as it becomes the relevant judicial proceeding. In this context, inquiring as to the relevance and connection of an issue to the trial is not the appropriate question. The appropriate question is whether the issue is collateral to, or integral to, the proceedings out of which they arise; in this case, the post conviction proceedings. In the case sub judice, the petitioner challenged his conviction in post conviction proceedings on the basis that his trial and appellate counsel rendered ineffective assistance. As to trial counsel, he alleged th at the ineffe ctive assistanc e occurred when h e failed to object to the ad mission of the S mith he arsay state ment. A lthough the State defended counsel s effectiveness, it did not do so on the grounds that the statement wa s admissible pursuant to the co-conspirator s exception to the hearsay rule, the grounds it now pursues and on the bas is of w hich the case ha s been r eman ded. Rather, the State argue d that coun sel did It is the general rule that a claim of ineffective assistance of counsel is raised most appropriate ly in a post-conv iction proce eding pur suant to Maryland Code (1958, 1996 Repl. V ol., 2000 Supp.) Article 27, § 645A . See, e.g., Austin v. State, 327 Md. 375, 394, 609 A.2d 728, 737 (199 0) ; Johnson v. State, 292 Md. 405, 434-35, 439 A .2d 542, 559 (198 2). The primary reason behind the rule is that, ordinarily, the trial record does not illuminate the basis for the challenged acts or omissions of counsel. See Johnson, 292 Md. at 434-35, 439 A.2d at 559. See also Mosley v. S tate, 378 M d. 548, 5 62, 836 A.2d 6 78, 686 , (2003 ). -13- object to the statem ent and tha t it was admissible under Nance as a prior inconsistent statement. In fact, the State never argued the co-conspirator exception during the post conviction hearing. Furthermore, although it referred to the exception in the Application for Leave to Appeal, the State failed to make the argument in its initial brief to the Court of Specia l Appe als. Gill, its progeny and, indeed, all of the cases in which a special or limited remand have been ordered involved direct appeals of a criminal judgment. It is not surprising, therefore, that all of them spoke of issues collateral to the trial. What is most instructive and significant, ho wever, is the distinction tha t Gill drew between prejudicial error committed at trial and subsidiary procedures. There are proceedings other than criminal trials at which prejudicial error can occur and on which subsidiary procedures can impinge. Post conviction proceedings are an example and the facts of the case sub judice are illustrative.11 Whether the co-conspirator exception applies to the Smith hearsay statement to render it admissible is not at all subsid iary to the post conviction proceedings or collateral to the 11 Although this court, in Gill and its progeny, addressed the propriety of a limited remand within the context of an initial trial and direct appeal from that trial, there is nothing in the language of 8-604(d) that leads me to believe that the discretion to order a limited remand and the attendant limitation on that discretion is confined only to that context. To be sure, the language of the provision states that a court may remand a matter [i]f the court concludes that the substantial merits of a case will not be determined by affirming, reversing, or modifying the judgment , (emphasis added). All other references to the integral matters within the provision are likewise presented in terms of the propriety to remand a case and at no time does the rule use language indicating that it is applicable only to a trial . A post conviction proceeding most certainly qualifies as a case for the purpose of deciding the merits of the underlying substantive issue; namely, in this case, whether or not counsel was ineffective and although the entire case in post conviction proceedings is collateral to a trial, that fact does not make the post conviction case collateral to itself. -14- issue being litigated; namely whether the petitioner s counsel was ineffective. Rather, that determination is directly and critically related to the issue of ineffective counsel. In fact, the outcome of that issue is dispositive as to whether the trial counsel acted in a manner that amounted to ineff ective a ssistanc e. An erron eous ruling on this issue, w hich is integra l to the post con viction allega tions, certainly w ould be pr ejudicial. In this case there is no allegation that the trial or the appellate courts in the original matter made an y prejudicially erroneou s ruling. In fac t, the argum ent at issue in th is case and for the consideration of which the Court of Special Appeals ordered remand was never raised by the State nor considered by the trial court or the appellate court on review. Thus, the purpose of the remand is not to correct an erroneous ruling; rather it is for the purpose of permitting a determination of whether, even though the issue was never raised or argued during the original trial or appeal, an erroneous ruling might have been committed. In light of my assertion that the State s proposed co-conspirator exception argument would be integral to the outcome of the post conviction proceedings, and considering my stance that an erroneou s ruling on th e newly pos ited argum ent wou ld certainly prejudice the petitioner, it is clear the Court of Special Appeals erred in ordering a limited reman d. Mo reover , I believe that when it first considered the issue, the intermediate appellate court properly and accurately analyzed the effect of exc using the State s failure to preserve the co-conspirator exception argumen t: In our view, the logical extension of the State's position is that there are no time constraints that apply with respect to a claim by the State that defense counsel was not constitutionally ineffective. If the State is permitted to raise a new but valid argument for the first time in its rep ly brief, or in a mo tion to -15- reconsider after an ap pellate ruling is issued, then it could also raise an argument for the first time long after the Court has ruled. Moreover, applying the State's reasoning, it would be incumbent upon the Court to consider the possible universe of reasons justifying a lawyer's strategy or course of action, even if the State never raises such a point. In the extreme, the State's position means that its failure to justify defense counse l's representation is virtually irrelevant, because it is incumbe nt on the ap pellate court to determine whether there is a ny basis to sustain t he repr esentati on aff orded b y defens e coun sel. Jones v. Sta te, supra, 138 M d. App . at 234, 7 71 A.2 d at 440 . As indicated, the Court of Special Appeals recognized and intended that, on remand, additional evidence could be p resented, as w ell as additional argument. As we have also discussed, the purpo se of the rem and in this case was not to correct a procedural error, but to allow the State to prese nt an argum ent that it failed to present time ly to the post conviction court. That is precisely what we held, in Southern, to be inapp ropriate. Th e intermed iate appellate court in this ca se, as it did in Southern, went astray w hen it attemp ted to afford the State the opportunity to relitigate, in the same case, an issue it had failed to litigate and prove. Id. at 110, 807 A.2d at 23.12 The Court of Special A ppeals also abused its d iscretion w hen it elected , pursuant to Rule 8-131 (a), 13 to consider the State s co-conspirator statement argument despite the 12 Even it the majority was correct, and remand was appropriate and not an abuse of discretion, the appropriate remand would not be a limited one. At best, consistent with Gill, the appropriate remand would be fore a new post conviction hearing. 13 The majority expands the scope of Rule 8-131 (a) to include within the ambit of decide, excusing a waiver or procedural default. ___ Md. ___, ___, ___ A. 2d ___, ___ (2004) [slip op. at 7]. I am not at all sure that that is appropriate. The Rule does not mention waiver or proced ural defau lt and, in fact, speaks in terms of deciding, i.e. [o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raise d in o r dec ided by the trial c ourt, but t he C ourt may decide such an issu e if necessary or desirable to guide the trial court or to avoid the expense and delay of another -16- State s failure to preserve it for the court s review, having failed to raise that argument either during the post conviction proceedings or in its initial appellate brief. First, it is clear, as the majority acknowledges, that the usual rule is that the appellate court will not consider argumen ts raised for the first time on appeal or, perhaps in the case of applications for leave to appeal, for the first time in th e reply brief. Imp licit in such a ru le is that refusal to consider new argumen ts on appe al is the more desirable, consistent and fair course of action. To overcome this usual or generally preferred rule, to deviate from the usual practice, the circumstances must be su ch to ensu re fairness f or all parties [o r] promote the orderly administration of law. State v. Be ll, 334 Md. 178, 189, 638 A.2d 107, 113 (1994) (citations appea l. The case s on wh ich the ma jority relies do not support such an expanded meaning of decide. In Brice v . State, 254 Md. 65 5, 661-62, 255 A .2d 28, 31 (1969), the C ourt actually decided the issue allegedly not presented at trial, on the record presented. In Basoff v. State, 208 Md. 643, 650, 119 A.2d 917, 921 (1956), the defendant failed to object at trial to the admissibility of the testimony of a State s witness, prompting the Court, in rejecting the argum ent, to comm ent Appellant made no objection at the trial of the case to the policew oma n's testimony as to Mrs. Thomas' statements. Therefore, we cannot consider the objection here. One of our rules resp ecting app eals provides: "In no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the C ourt below." Rules of the Court of Appeals, rule 9. This rule applies to both civil and criminal cases. When a party has the option either to object or not to objec t, his failure to exe rcise the optio n while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal. Th e Court of Appea ls adopted th e rule to ensu re fairness for all parties to cases a nd to pr omote the ord erly admi nistration of the la w. (Citing Courtney v. S tate, 187 M d. 1, 48 A.2 d 430 (19 46); Davis v. State, 189 Md. 269, 55 A.2d 702 (194 7); Banks v. State, 203 Md. 488, 495, 102 A.2d 267 (1954). In Banks, the Court also referred to the predece ssor of Rule 8-131, but only to explain why, given the defendant s failure to object to proceeding with trial in the absen ce of a sten ographe r, it would not address the substance of the issue. -17- omitted ). In Bell, the defendant was tried and convicted in the Circuit C ourt for B altimore C ity on narcotics charges. The evidence on which the conviction was based consisted o f drugs in a vial, which the police observed in plain view, and drugs in a gym bag discovered after, the State argued and trial court held, consistent with the State s argument, the police conducted an inventory search. On appeal, in its initial brief, the State added an additional argument that the second search w as appropriate under the Carroll doctrine.14 The Court of Special Appea ls reversed the judgment of the Circuit Court, holding that the second search was not a valid inventory search. It declined to consider the State s Carroll argument because it had not been ra ised during trial. In this Court, the State argued, relying on Robeso n v. State, 285 Md. 498, 502, 403 A.2d 1221, 1 223 (1 979), cert. denied, 444 U.S. 1021, 100 S. Ct. 680, 62 L. Ed. 2d 654 (1980), that the intermediate appellate court erred by refusing to consider the Carroll argumen t, reasoning that an appellate court may affirm a trial court on grounds that had not been relied upon by either, the trial court or the parties. Bell, 334 Md. at 187, 638 A.2d at 112. Affirming the Court of Special Appeals, we first noted that the decision to consider grounds not raised a t trial is disc retionar y, not man datory. Id. at 188-89, 638 A .2d at 113. Further, we explained, this discretion should be exercised o nly when it is clear that it will not work an 14 In Carroll v. United States, 267 U.S. 132, 45 S . Ct. 280, 69 L. Ed. 543 (1925), the Supreme Court announced a vehicle exception to the warrant requirement, which allowed police to search an automobile without a warran t if there wa s probable cause to believe that the automobile contained illegal goods and there was an attendant exigency, so long as the search was terminated once the police uncovered the stolen goods. -18- unfair prejudice to the parties or to the court. Id. at 189, 6 38 A.2 d at 113 . More over, we expoun ded: A criminal defendant could suffer unfair prejudice, if, for example, the defendant s response to a new argument posited by the State on appeal depends on eviden ce wh ich wa s not of fered in the trial co urt. In this regard, we are persuaded by the reasoning of the Supreme Court when it declined to consider an alternative justification for an arrest that was raised for the first time on appeal: We do not think that these belated contentions are open to the government in this Court and accordingly we have no occasion to consider their soundness. To perm it the Government to inject its new theo ry into the case a t this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court, petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine Finley or adduce evidence of his ow n to rebut the contentions that the Government makes here for the first time. Id. 334 Md. at 190, 638 A.2d at 113-14, quoting Giorden ello v. United States, 357 U.S. 480, 488, 78 S. Ct. 1245, 1251, 2 L. Ed. 2d 1503, 1510- 11 (19 58). See also, Crown Oil and Wax Co. of Delaw are v. Glen Construction Co. of VA, 320 Md. 546, 561, 578 A.2d 1184, 1191 (1990) (holding that the court could p roperly consider a new theo ry upon app eal pursuan t to its discretion under Rule 8-131 even when the issue was raised for the first time in the petitioner s appellate brief because, although a new issue, it only constituted an additional argument that the Court could adequately decide based upon the facts before the court); Gindes v. Khan, 346 Md. 143, 151, 695 A.2d 163, 167 (1997) (declining to exercise discretion to direct entry of final judgment where the issue sought to be presented was not in the case and, with regard to Rule 8-131, [t]h e factual rec ord in this case is quite c onfused ); Taub v. -19- State, 296 Md. 439, 441-42, 463 A.2d 819, 820 (1983) (deciding the dispositive issue, one of statutory construction , although n ot raised or d ecided in th e trial court); United States v. Ordonez, 737 F.2d 793 , 801 (9 th Cir. 1984) (holding [w]e decline to speculate on the state of this record that the trial court would have been satisfie d that suffic ient found ational facts were presented to satisfy the co-conspirator exception, if the prosecutor had arg ued this theory in a timely manner. For us to sustain a theory of admissib ility not presen ted below , would unfairly rob appe llants of the o pportunity to argue the weight, sufficiency and trustworthiness of the eviden ce to establish a prope r founda tion before the trial judge, o r to offer pro of to controvert the facts now relied upon by the government. ) Bell and the other cases cited are instructive as to when an appellate court, pursuant to Rule 8-13 1, may consid er, and dec ide, an issue n ot presented to the trial court; they differentiate the situation in which the record is sufficient to allow the appellate court to decide the issue and the situation where the record is insufficient. As in Bell, in this case, because the State failed to raise, during the post conviction proceedings, the argument that Smith s statement was admissible under the co-conspirator exception to the hearsay rule, the petitioner was nev er given a c hance to c ounter that a rgumen t at that level. As a result, the record was never dev eloped with regard to that argument; consequently, the Court of Special Appea ls was unable to exercise its discretion to decide that issue and it would not have been fair, in any event, because the defendant was never afforded the opportunity to meet this new argum ent. Crown Oil and Wax Co. of Delaware v. Glen Construction Co. of VA, supra, 320 Md. 546 at 561, 578 A.2d 1184 at 1191 (19 90). All the intermed iate appellate c ourt could -20- have done w as to forgive the State s waiver of the co-conspirator argument and, in so doing give the State a second opportunity to prevail in the post conviction arena on the appellate level. Having excused the waiver of the unpreserved issue, as to which the record was insufficient to permit a decision on the merits, the Court of Special Appeals had no choice but to order a limited re mand pursua nt to Ru le 8-60 4. But a limited remand, it is well settled, is appropriate only when the issue to be decided is one co llateral to the case before the trial court. For all intents and purposes, as the only remaining forum, the trial before the lower court in this matter, was the post-convictio n hearing. W hether the sta tement is ad missible under the co-conspirator exception to hearsay rule is not collateral to the post conviction case, it is integral, if not c ritical, to it. Certainly, the Court of Special Appeals believed that to be the case , why else would it remand the issue to the post conviction court for the limited purpo se of d etermin ing its ad missibili ty. The majority proposes a two part test for determining whether a plausible exercise of discretion under Rule 8-131 (a) is appropriate: the appellate court should consider whether the exercise of its discretion w ill work un fair prejudice to either the parti es or the trial cou rt, ___ Md. at ___, ___ A. 2d at ___ [slip op. at 8] and the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice. Id. at ___, ___ A. 2d at __ _ [slip op. at 8] It giv es sh ort sh rift to the f ormer, stating simp ly : We find little if any prejudice generated against either petitioner or the post-conviction court by the Court of Special Appeals exercise of discretion in this matter. Id. at ___, ___ A. 2d -21- at ___ [slip o p. at 9]. On th e other han d, it finds that the second policy goal of Rule 8- 131(a), orderly and efficient judicial administration, strongly favors the outcome determined by the intermediate appellate court. Id. at ___, ___ A. 2d at __ _ [slip op. at 9 ]. In support, the majority posits: [I]t is helpful to imagine hypothetically what would happen if the Court of Special Appeals had not exercised its discretion and had only affirmed the postconviction court. In that case Jones would receive a new trial, in which the State surely would submit Smith s written statement, upon which Jones new trial counsel, this time, would just as surely object to Gutrick s hearsay statement within Sm ith s written state ment. No w, the State would respond with the co-consp irator exception argumen t that was fo reclosed to it b y the postconviction proceedings, and the trial court would decide this matter of law. ... The absurdity of this is made even more clear when it is understood that depriving the post-conviction court from determining this purely legal issue could result in the hearsa y statement reaching the jury in precisely the same manner a s in Jones o riginal trial nothing will hav e chan ged. Id. at ___, ___ A.2d at ___ [slip op. at 9-10]. To the majority, expediency demands that the Court of Special Appeals decision to remand this case to the Circuit Court for a limited purpose be upheld, notwithstanding the State s patent failure to abide by the procedural rules of the court. An important factor for the majority is the fact that the issue the State neglected to raise in the post conviction proceedings or in its initial appellate brief would be admissible even if the remand were a general one for a new trial. It is better to ensure that procedural integrity is reserved than that we send the message that, in post conviction cases, the State need not conce rn itself with compliance with the procedural rules, and that it will be able, at any time, even when the appellate process is co mplete, to correct even egregious procedural defaults, as in this case, simply by invok ing judicial ec onomy. It bea rs repeating th at -22- the logical extension of the State's position is that there are no time constraints that apply with respect to a claim by the State that defense counsel was not constitutiona lly ineffective. If the State is permitted to raise a new but valid argument for the first time in its rep ly brief, or in a mo tion to reconsider after an appellate ruling is issued, then it could also raise an argument for the first time long after the Court has ruled. Moreover, applying the State's reasoning, it would be incumbent upon the Court to consider the possible universe of reasons justifying a lawyer's strategy or course of action, even if the State never raises such a point. In the e xtreme, the S tate's position m eans that its fa ilure to justify defense c ounsel's repre sentation is virtually irrelevant, b ecause it is incumbent on the appellate court to determine whether there is any basis to sustain the representation afforded by defense counsel. Jones v. State, supra, 138 Md. App. at 234, 771 A.2d at 44 0. If the ma jority is correct, not only the Court of Special Appeal s initial, very accurate analysis of the effect of excusing the State s failure to preserve th e co-cons pirator argum ent, but also ou r characteriza tion of this Court s rules of proced ure as - pre cise rub rics to b e follow ed - is jus t so mu ch rheto ric. The majority also fails to consider th at orderly administration of justice is not limited to ensuring that we save time and expense or to ensuring that we accelerate the termination of litigation. To be sure, the Maryland Rules of Procedure also were enacted to ensure the orderly and eq uitable a dminis tration o f justice . See Md. Rule 1-201, which reads, in relevant part: These rules shall be construed to secure simplicity in p rocedure, f airness in administration, and elimination of unjustifiable expense and delay. See also Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 12 8, 130 (19 60) (explain ing that [t]h e Rules are established to promote the orderly and efficient ad ministration o f justice and are to be read and followed. ); Steward v. State, 334 Md. 213, 216, 638 A.2d 754, 755 (1994) (holding that the Maryland Rules of Procedure are not guides to the practice of law bu t precise rubr ics established to promote the orderly and efficient administration of justice and [that they] are to be read and -23- followed. )(citation omitted). I submit that, in terms of judicial ec ono my, when pondering the propriety of the exercise of its discretion to consider new arguments on ap peal, the appellate court must consider whether the failure to consider the issue w ould result in a waste in judicial resources, and whether, as the majority acknowledges, but refuses substantive ly to address, the failure of the party submitting the additional argument prior to appeal so egregiously violates the procedural rules that it com promises th e simplicity of procedure an d fairness in admin istration. The law in Maryland is clear, when a post-conviction defendant could have, but failed to assert an allegation of error at a prior proceeding, the allegation is deemed to have been waived and he or she may not raise it on appea l. See Md. Code, (2001) § 7-106 of the Criminal Procedure Article.15 The cases are legion in which an appellate court has refused 15 As relevant, M aryland Cod e, ( 2001) § 7-106 of the Crimin al Procedure A rticle provides: (b) Waiver of allega tion of error. - (1) (i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, whether or not the petitioner took an ap peal; 4. In an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that the petitioner began. (ii) 1. Failure to make an allegation of error shall be excused if special -24- to entertain a defendant s argument when he or she has failed to raise the issue at a prior hearing. See Oken v . State, 343 M d. 256, 6 81 A.2 d 30 (1 994), Hunt v. S tate, 345 Md. 122, 142, 691 A .2d 125 5, 1265 (1997 ), Ware v. S tate, 360 M d. 650, 692, 759 A.2d 764, 786 (2000), Conyers v. S tate, 354 Md. 132, 148, 729 A.2d 910, 918 (1 999), Walker v. State, 338 Md. 253, 262 , 658 A.2d 239, 243 (1995). Fu rthermore, a defenda nt who f ails to raise an argument regarding in effective a ssistance of counsel a t trial, bears the burden of proving special circumstances to justify w hy he or s he did n ot raise th e issue a t a prior p roceed ing. As the Court of Special Appeals acknowledged, there is no reason not to hold the S tate to the same standard and determine that when the State fails to raise an issue before the postconviction court, it may not properly raise the issue on appeal absent a showing of special circum stances . Jones, 138 M d. App . 178, 22 8-29, 7 71 A.2 d 407, 4 37 (20 00) . Oken is particularly instructive. In that case, Oken was convicted of murder. 343 Md. at 263, 681 A.2d at 33. At his trial, he requested that voir dire include certain reverseWitherspoon questions that he proposed, to identify prospective jurors who harbored any convictions in support of the death penalty in violation of Morga n v. Illinois, 504 U.S. 719, 726, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), and Evans v . State, 333 Md. 660, 637 A.2d 117, cert. denied, 513 U.S. 833, 11 5 S. Ct. 1 09, 130 L. Ed. 2 d 56 (1 994). Id. at 268-69, 681 circumstan ces exist. 2. The petitioner has the burden of proving that special circum stances exist. (2) When a petitioner could have made an allegation of e rror at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligen tly and kn owing ly failed to make that alleg ation. -25- A.2d at 36. The court refused to ask the questions he requested, but Oken did not raise the issue on direct appeal. He subsequently filed a petition for postconviction relief, in which one of the issues was the trial court s refusal to voir dire the venire as to reverse Witherspoon. He also ra ised the issue in his initial brief b efore this Court. 16 Id. at 269, 681 A.2d at 36. In response to the State s argument that the petitioner waived his right to raise the reverse-Witherspoon voir dire argument on post-conviction or on appeal from the postconviction court because he d idn t raise the issue on direct appeal, the petitioner argued that there were special circumstances - his appellate counsel did not have adequate time, after Morgan was decided, to become familiar with the reverse-Witherspoon requirements that existed at the time of the petitioner s trial, id. at 273-74, 681 A.2d at 38-39 - that excused the waive r. This Court held that Oken had waived his right to assert the issue. In so holding, we noted that, notwithstanding the Morgan decision, there was ample precedent defining a defendant s right during voir dire [to] identify prospective jurors who harbored disqualifying biases in favor of the death penalty. Id. 343 Md. at 273-74, 681 A.2d at 38. Given that 16 In his petition for post conviction relief, Oken alleged that the trial court erred when it failed to ask questions that satisfactorily identified those prospective jurors who harbored a predisposition toward the death penalty and that his trial counsel and appellate counsel were ineffective for failing to raise the reverse-Witherspoon objection at the trial and on direct appeal respectively. After the post-conviction court found that the trial judge asked sufficient questions of the jurors, Oken appealed to this court, and in its initial brief alleged only trial court error as it pertained to the reverse-Witherspoon question. In other words, the petitioner dropped the claims of ineffective assistance of counsel as it pertained to th eir alleged failu re to object d uring voir d ire or assert the a rgumen t on direct ap peal. -26- preceden t, this Court stated, the petitioner offered n o special circumstances that wo uld obviate his respon sibility to rais e the issu e on ap peal. Accordingly, we refused to exercise our discretion un der Rule 8 -131 to excuse the waive r.17 Id. See also Bell, supra, 334 Md. at 191, 638 A.2d at 114 (holding that [t]he State may not lead the de fendant and the trial court down a primrose path, only to leave them stranded when, on ap peal, the State deems it advantageous to chang e its strate gy ). See also, Giordenello v. United States, 357 U.S. 480, 488, 78 S. Ct. 12 45, 1251 , 2 L. Ed. 2d 1503, 15 10-11 (19 58) ( [W ]e [do no t] think that it would be sound judicial adm inistration to sen d the case b ack to the District Court for a special hearing on the issue of proba ble cause w hich wo uld determ ine wheth er the verdic t of guilty and the judgment already entered should be allowed to stand. The facts on which the Government now relies to uphold the arrest were fully known to it at the time of trial and there are no special circumstan ces suggesting such a n exceptional course ). In addition to the long-standing law and precedent regarding waiver in collateral review, this Court has also consistently held that an appellate court will not address an argument that the app ellant first raises in the reply brief. Health Svcs. Co st Review Co mm n 17 I acknowledge that in Oken, this Court also decided th at, even if the petitioner had not waive d the rig ht to asse rt the vo ir dire arg umen t, we would have foun d no error. Interestingly, because the issue was raised before the trial court and before the postconviction court, this court had a sufficient record upon which to rely to address the substantive issue. In this case, as indicated, the record was not developed on the issue of coconspirato rship as to permit the intermediate appellate co urt to have decided the issue. The State s waiver and its failure to establish a su fficient record upon which the appe llate court could rely in exercising its discretion to c onsider the new issue constitute pro cedural fa ult sufficient to render the Court of Special Appeal s exercise of discretion to consider the new argument an abuse of discretion. -27- v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55, 61 (1984 ). Logan v. Town of Somerset, 271 Md. 4 2, 67, 31 4 A.2d 436, 44 9-50 (1 974), Harmon v. State Roads Commission, 242 Md. 24, 30-32, 217 A .2d 513, 516-17 (1 966). Under our pre ceden ts, see Basoff v. State, 208 M d. 643, 650, 119 A.2d 917, 921 (1956); Banks v . State, 203 Md. 488, 495, 102 A.2d 267 (19 54), 18 there is no dispute that the State waived the argument that Smith s statement was admissible as the statement of a coconspirator in the furtherance of a conspiracy w hen it failed to raise the issue before the post conviction court. In most cases, the failure of a defendant to raise a claim at post-conviction hearing alone, results in the refusal of the appellate court to co nsider that cla im on app eal. This is because, when a defendant could have, but fails to raise an argument, the presumption arises th at the fa ilure to ra ise the ar gume nt was a tactica l decisio n. The majority maintains, however that the failure to raise the co-conspirator argument was inadvertent and that, in any event, the State never wavered from its position that the statement was admissible in its entirety, and that therefore, Jones was afforded effective assistance of counsel. ___ Md. at ___, ___ A.2d at ___ [slip op. at 10]. That one does not waver in making an argu ment on a particular grou nd does not preserv e another ground on which that argument could have b een based ; persistence, if f or the wro ng reason , will not, and, in tru th, sh ould not, c arry th e day. 18 Both Basoff and Banks involved defendants who failed to raise issues in the trial court. By parity of reasoning, when the defendant, in post conviction proceedings raise issues, which the State does not controvert, although it could have done so, the issue not contro verted m ust be d eemed waive d. -28- Further, the majority holds that [t]he State did not make a tac tical decision to forgo, waive, or concede the argument that the statement was admissible under the co-conspirator argum ent... Id. at ___, ___ A.2d at ___ [slip op. at 11]. But that i s merely a conclusion; we are not pro vided w ith any ba sis for w hy the ma jority so co nclude s. The State most assuredly knew the requirements of the Maryland R ules as they perta in to objections at trial and the law as it pertains to waiver in post-conviction proce edings. If, as th e majority posits, th e State simply overlooked a viable argument, despite that argument s availability to the State on post-conviction, we certainly should not reward the State s ineffectiveness by allowing it to circumvent the rules. This is particularly so in light of our almost absolute denial of the same oppor tunity to crim inal def endan ts. Moreover, and even more telling, the State only raised the issue of co-conspirator admissibility once, in the application for leave to appeal, when it sought to challenge the post conviction court s decision. The State never argued, or even raised, that issue at the post conviction trial and it failed to include it as an argument in its initial brief in the Court of Specia l Appe als. Tha t smack s, far fro m inad vertenc e, of a ta ctical de cision. The majority, in overlook ing its consiste nt procedu ral errors, wo uld allow the S tate to raise issues on appeal from the grant of post-conviction relief that it never raised before the post-conviction court and that it never properly raised on appeal, despite its consistent refusal to afford the same opportunity to criminal post-conviction defen dants. In effect, it allows the State, for tactical reasons and secure in the knowledge that it will be considered, notwithstanding multiple procedural defaults, to refrain from prese nting som e of its -29- | arguments, perhaps the dispositiv e one, until, as a last resort, it must do so, so long as an argument can be made that the interests of judicial economy are satisfied. If judicial economy is the overriding interest, however, one wonders why we have procedural rules applicable to collateral review at all. This case suggests an answer: to hold criminal defenda nts to procedural requirements to which the State, which is allowed to assert new | claims as, and when, it chooses to do so, need not adhere. I believe that th e majority, in affirming the intermediate appellate court has announced a rule that treats the State and criminal defenda nts guilty of the sam e procedu ral default qu ite diff eren tly, with the State being treated m uch better. In light of its failure to preserve the coconspirator issue for review during the post-conviction proceedings or even to raise the issue on appeal in a timely fashion, the State should not be allowed another opportunity to present evidence on the poin t. I repeat, this Co urt consisten tly has denied th at opportun ity to defen dants o n appe al from post-co nviction procee dings. In addition to ensuring that we dispose of cases in the most expedient fashion possible, the overriding goal of R ule 8-131 (a) is to ensure that neither party is unf airly prejud iced. I would hold that the decision of the Court of Special Appeals to exercise discretion, under Rule 8-131(a), to consider the State s unpreserved argument is an abuse of its discretion. I dissent. Judge Cathell joins in the views herein expressed. -30- |

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