205 A.3d 985
Md.2019Background
- Shortall owned property with a maintenance building whose toilet and sink discharged via an uncapped PVC pipe; inspectors observed human waste at the pipe outlet on December 5, 2012. Follow-up inspections on other dates observed the uncapped pipe but not additional observed disposal. The pipe was capped on May 3, 2013.
- Shortall was charged under Maryland Env. § 9-343(a)(1) and regulations (former COMAR 26.04.02.02.D and .E) with ten counts (two regulatory violations on five inspection dates); ten counts later remained after others were dismissed.
- The State requested and the trial court gave a non-pattern jury instruction that "every day on which a violation is still present constitutes a separate offense until the date the violation is corrected" (continuing-violation instruction). Defense counsel did not object.
- The jury convicted Shortall on ten counts; sentencing merged eight convictions into two based on the December 5 observations. Shortall did not appeal but later filed a post-conviction petition alleging ineffective assistance of counsel for failing to object to the instruction.
- The post-conviction court denied relief. The Court of Special Appeals reversed, holding the instruction conflicted with the statute/regulations and that counsel was ineffective under Strickland for not preserving the objection; it vacated eight convictions and remanded for resentencing on the two valid counts.
- The Court of Appeals affirmed the Court of Special Appeals: counsel’s failure to object was deficient because the statute and regs plainly required proof of a discrete disposal on each charged day, and the unchallenged instruction materially expanded the elements; prejudice existed as to the eight vacated convictions. A new trial on all counts was denied.
Issues
| Issue | State's Argument | Shortall's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective under Strickland for not objecting to the continuing-violation jury instruction | Instruction was legally permissible; continuing-violation theory supports treating each day the violation persisted as a separate offense | Instruction contradicted plain statutory/regulatory language requiring an act of "dispose" on each charged day; counsel should have objected | Held counsel was ineffective: failure to object was objectively unreasonable given the plain language of statute/regulations and lack of controlling authority supporting the instruction |
| Whether Shortall suffered prejudice from counsel’s failure to object | Any error was harmless because the December 5 observations supported convictions and sentencing merged others into those convictions | Prejudice exists because eight convictions rested solely on the erroneous instruction and those convictions were not crimes under the correct construction | Held prejudice shown: reasonable probability that the erroneous instruction caused the eight additional convictions, so relief was warranted for those convictions |
| Whether the State should get a new trial on all counts | A new trial would allow correct application of the law to the evidence | Opposes full retrial; relief should be limited to correcting the improperly obtained convictions | Held no full retrial: State cannot take a second bite at the apple; convictions that depended only on the erroneous instruction were vacated but two convictions based on December 5 stand |
| Whether Shortall is entitled to a new trial on the two December 5 counts | N/A (State sought retrial) | The December 5 convictions are valid and any error did not prejudice those counts | Held no new trial for those two counts; convictions on December 5 are harmless as to the instructional error |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Duncan v. State, 282 Md. 385 (continuing-offense analysis; continuing offense requires a continuing duty)
- Testerman v. State, 170 Md. App. 324 (failure to preserve a clear statutory-construction defense can constitute ineffective assistance)