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Perry v. State12/10/1999
ivalent of a pre-trial suppression hearing and the issue was admissibility vel non, the harmless error standard of Dorsey v. State, supra, 276 Md. 638, 350 A.2d 665 applies and that the judgment must be set aside unless we are convinced that the error was harmless beyond any reasonable doubt. Neither party is entirely correct.
This dispute arises largely because of the unusual posture of the case. In Perry's direct appeal, he argued, first, that the trial court erred in permitting further reference to and evidence regarding the tape and in failing to instruct the jury to disregard all prior testimony regarding the tape. As noted above, his argument was premised, in part, on the mistaken assumption that the tapes had not yet been admitted into evidence when he made his wiretap law objection. Recognizing, nonetheless, the lurking problem of waiver or non-preservation, Perry argued, alternatively, that counsel's failure to make a timely objection to the evidence amounted to Constitutionally ineffective assistance of counsel.
Although the two arguments are independent and quite different -one involving a statutory rule of evidence and the other the State and Federal Constitutional rights to the assistance of counsel - we considered them together. As to the issue of admissibility, we noted that, ordinarily, that issue would be resolved at a pre-trial suppression hearing at which each of the parties would have the opportunity to present the relevant facts and argument, that, because no such hearing was held, the parties did not have that opportunity, that the issue was complex and required further factual development, and that it would be inappropriate for us then to resolve it on the incomplete record made at trial. We determined that "in order to approach the instant matter fairly, the parties should be given substantially the same opportunity to develop a factual record, and legal arguments based thereon, in presenting and responding to Perry's belated suppression motion that they would have enjoyed in presenting and responding to a pre-trial suppression motion." Perry, supra, 344 Md. at 226, 686 A.2d at 287.
For much the same reason, we rejected Perry's invitation to resolve the ineffective assistance of counsel argument in the direct appeal. As to that also, we noted "the lack of fact-findings bearing on whether there was a violation and whether it was willful." Id. at 227, 686 A.2d at 287. Accordingly, we made clear that our affirmance of the judgment was without prejudice to Perry's raising on post-conviction review both his contention that the evidence should have been excluded under the Maryland wiretap law and his complaint, if that contention were held to have been waived or not otherwise preserved, that counsel was ineffective in not making a more timely objection.
The post-conviction court, unfortunately, seemed to lose sight of the fact that both issues were before it, the second dependent on the first, and that led it, erroneously, to conclude that the harmless error standard of Dorsey "is not appropriate in a post-conviction proceeding." The court did not believe that it had "the power to reverse the trial court for an alleged error of law," and thus, although it conducted the suppression hearing, it said that it did so merely "to determine whether an error was committed by trial counsel sufficient to support a claim of ineffective assistance of counsel under the guidelines of Strickland and Oken."
The Post Conviction Procedure Act is not limited to claims of ineffective assistance of counsel. Maryland Code, Article 27, ยง 645A(a)(1) permits a person convicted of a crime and either incarcerated or on parole or probation, who claims that the sentenc
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