State v. Shortall

463 Md. 324

205 A.3d 985

STATE of Maryland

v.Purnell SHORTALL

No. 31, Sept. Term, 2018

Court of Appeals of Maryland.

April 2, 2019

Argued by D'Arcy B. Talley, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Anthony G. Gorski (Peter C. Hershey, Rich and Henderson, P.C., Annapolis, M.D.), on brief, for Respondent/Cross-Petitioner.

Argued before: Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Lawrence F. Rodowsky (Senior Judge, Specially Assigned), JJ.

Rodowsky, J.

The principal issue in this certiorari review of an action under the Post-Conviction Procedure Act, Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.) §§ 7-101 through 7-109 of the Criminal Procedure Article (CP), is whether the Respondent, Purnell Shortall, was deprived of his constitutional right to the effective assistance of counsel when counsel did not object to a certain, non-pattern, jury instruction in a prosecution under environmental laws. As we explain below, we shall hold that he was so deprived under the peculiar facts of this case.

Whether the unchallenged instruction was correct turns on the construction of the statute and regulations underlying the criminal charges against Shortall. They are set forth below.

Maryland Code (1982, 2014 Repl. Vol.), Title 9, "Water, Ice, and Sanitary Facilities," Subtitle 3, "Water Pollution Control," § 9-343(a)(1) and (3) of the Environmental Article (Env.), which read in relevant part:

"(a) Violating subtitle, rules, regulations, orders, or permits . — (1) A person ... who violates any provision of or fails to perform any duty imposed by a rule, regulation, order, or permit adopted or issued under this subtitle, is guilty of a misdemeanor[.]

...

"(3) Each day on which a violation occurs is a separate violation under this subsection."

Former COMAR 26.04.02.02.E, now D (Reg. D), which reads:

"D. A person may not dispose of sewage, body, or industrial wastes in any manner which may cause pollution of the ground surface, the waters of the State, or create a nuisance."

And former COMAR 26.04.02.02.F, now E (Reg. E), which reads:

"E. A person may only dispose of sewage, body, or industrial wastes in accordance with an approved on-site sewage disposal permit or other method of disposal approved by the Approving Authority."

The unchallenged instruction requested by the State told the jury that "[p]ursuant to Maryland law for these specific charges every day on which a violation is still present constitutes a separate offense until the date the violation is corrected."

Background Facts

At all relevant times Shortall owned, either directly or through a legal entity controlled by him, the property at or near 11523 Cordova Road in Cordova, Talbot County, Maryland, where he conducts a building supply business. In addition to the main building on the property, and at least 500 to 600 feet from it, on the south/southeast side of the property is a maintenance building. Body waste disposal from the main building is directed to an approved septic system. This case concerns body waste disposal from the maintenance building.

On December 5, 2012, two inspectors from the Maryland Department of the Environment were on the Shortall property for a routine inspection when they observed some human feces and toilet paper on the ground near the open end of a PVC pipe that was protruding from an earthen embankment about ten to fifteen feet from the maintenance building. The inspectors traced the pipe to a toilet and sink that had been installed, sans permit, in a restroom in the maintenance building. Inspectors, from the Maryland Department of the Environment, from the Talbot County Health Department, or from both, visited the site on December 6 and 7, 2012, January 24, 2013, and March 15, 2013. The witnesses for the State in Shortall's criminal prosecution testified as to what they observed at or near the open end of the PVC pipe on the follow-up visits to the property, but that evidence is not relevant to this certiorari review, as we explain infra . A Regulatory Compliance Engineer for the Maryland Department of the Environment inspected the pipe on May 3, 2013, and found the end tightly capped.

Procedural History

Although initially filed in the Circuit Court for Talbot County, the criminal charges against Shortall were immediately removed on February 20, 2014, to the Circuit Court for Dorchester County. The criminal information was drawn by a special prosecutor from the Attorney General's Office. That document consisted of twenty counts, ten of which were dismissed by the court at the conclusion of the State's case. Five of the remaining counts respectively charged in the language of Reg. D that, on one of the days of the five pre-capping inspections, Shortall had violated Reg. D "by disposing of sewage in any manner which may cause pollution[.]" The other five remaining counts respectively charged in the language of Reg. E that, on one of the days of the same five pre-capping inspections, Shortall had violated Reg. E "by failing to dispose of sewage in accordance with an approved permit[.]"

At trial, the State relied on a continuing violation theory, but we cannot determine from the record before us when Shortall first learned of that. It is clear, however, that on August 4, 2014, the day preceding the first day of trial, the State had distributed its requested instructions, including No. 13, which stated that "every day on which a violation is still present constitutes a separate offense until the date the violation is corrected."

When the State rested its case on the first day of trial, August 5, 2014, Shortall moved for judgments of acquittal on all counts. In the course of that argument the court asked the State, "[w]hat proof do we have that there was any ... human waste deposited there after December 5th?" The prosecutor replied: "It's a continuing violation offense by the penalty Statute of itself until the matter is stopped, until the pipe is capped until it's ... physically not possible to do it anymore."

After it was determined on the second trial day, August 6, 2014, that Shortall would not testify, the court and counsel reviewed the requested instructions in chambers. The court included in its jury charge the State's continuing violation instruction, verbatim. Defense counsel had no exceptions.

In its opening summation the State told the jury that it could charge Shortall for every day on which the water had not been turned off in the bathroom. Defense counsel argued that the State's "continuing offense charge" was "somewhat offensive" because the inspectors had said that "on December 5 [Shortall] disposed of waste" but thereafter the inspectors had talked "about the same waste, the same sewage." Counsel submitted that Shortall had not "committed a new crime."

The jury found Shortall guilty on the ten remaining counts and sentence was imposed on September 15, 2014. He did not appeal.

Shortall filed for post-conviction relief in the Circuit Court for Dorchester County through his present appellate counsel on April 20, 2015. He alleged, inter alia , the denial of effective assistance of counsel based on the trial counsel's failure to object to the continuing violation instruction. Set forth below is trial counsel's entire response at the post-conviction hearing to questioning by Shortall concerning the lack of exception to the instruction complained of.

"[I]nititally we wanted to exclude anything that would be -- that would reference a continuing violation. So we researched that. And coupled with our research and the cases that [the State] had provided we did not think that we had the legal argument . We met in chambers to go over all of the jury instructions and it is my recollection the continuing violation matter came up and [the trial judge] questioned [the State] about that and then accepted that jury instruction. And [the trial judge] raised that issue.

"Q. And did you discuss your concern to that issue with [the trial judge]?

"A. No. At that point I was resolved to I thought that the State was correct .

"Q. And what was the scope of what you evaluated for purposes of that instruction? In other words, you said you looked at the cases that [the State] provided. Did you look beyond those cases for example in other States or Federal jurisdictions?

"A. Honestly, I believe we called your office.

....

"A. Yes, and spoke with you. But outside of that we had -- no, I can't say that definitively we had looked at any Federal regulations or other States. We researched Maryland law to see if we could -- what we could do with the continuum."

(Emphasis added).

The post-conviction court denied Shortall's petition. With respect to the trial counsel's above quoted conclusion that court said:

"This is a reasonable interpretation of the law, as there is no controlling Maryland authority as to whether the continuing violation doctrine applies in cases involving environmental crimes, and, logically, the adverse impact of disposing of pollutants obviously continues until the remedy is imposed. In short, this is an unsettled question of law, and there are merits to both positions."

The Court of Special Appeals, on reconsideration of Shortall's petition, granted him leave to appeal the question of alleged ineffective assistance based on the unchallenged jury instruction. That court affirmed the two verdicts of respectively violating Regs. D and E on December 5, 2012, and remanded for a resentencing hearing on those two guilty verdicts. Shortall v. State , 237 Md. App. 60, 183 A.3d 820 (2018). The court held that the unchallenged instruction was not a correct statement of the law. Id. at 81, 183 A.3d at 832. The court then held that trial counsel was ineffective under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in failing to except.

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a

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