State v. Waine, 122 A.3d 294

In 1976 Peter S. Waine was tried for two first‑degree murders and larceny; the trial judge gave the Article 23 "advisory only" jury instruction and defense counsel did not object; jury convicted.
Waine’s direct appeal failed and he did not initially obtain postconviction relief; decades later he sought reopening based on changed law.
In 2012 this Court decided Unger v. State, holding that prior Maryland precedent (Stevenson, Montgomery) had announced a new state‑constitutional rule that advisory‑only Article 23 instructions could not be waived and applied Unger retroactively.
Waine relied on Unger to reopen his 1976 postconviction application; the circuit court granted relief, concluding the advisory instruction violated due process and warranted a new trial.
The State petitioned to overrule Unger and challenged (1) the circuit court’s reopening discretion and (2) the proper standard for reviewing advisory instructions.
The Court (majority) declined to overrule Unger, held the circuit court properly exercised discretion to reopen, and ruled that advisory‑only instructions are structural error requiring vacatur (new trial).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Should Unger be overruled?	Waine: Unger should stand; it correctly recognized a new state constitutional standard and respects stare decisis.	State: Unger departed from stare decisis and was wrongly decided; resurrect Adams/Stevenson.	Court: Declines to overrule Unger; not persuaded Unger is clearly wrong or archaic.
Was reopening the postconviction proceeding proper?	Waine: Unger’s retroactive rule meets the "interests of justice" standard to reopen.	State: Trial court abused discretion and reopening is not mandatory.	Court: Reopening is discretionary; here the court properly exercised discretion to reopen.
What is the correct test for advisory Article 23 instructions?	Waine: Unger framework applies; advisory instruction vitiates beyond‑reasonable‑doubt guarantee.	State: Use case‑by‑case "reasonable likelihood" ambiguity test (Estelle/Boyde).	Court: Advisory Article 23 instructions are not ambiguous but erroneous; Sullivan shows denial of beyond‑reasonable‑doubt is structural error.
Effect of advisory instruction error on conviction (harmless error?)	Waine: Error is structural and not subject to harmless‑error review; conviction must be vacated.	State: Error should be assessed under harmless‑error or reasonable‑likelihood standards.	Court: Error is structural (denial of right to jury verdict beyond reasonable doubt) — not subject to harmless‑error analysis; new trial ordered.

Unger v. State, 427 Md. 383 (Md. 2012) (held prior advisory‑instruction precedent announced a new state constitutional rule and applied it retroactively)
Stevenson v. State, 289 Md. 167 (Md. 1980) (earlier interpretation limiting jury’s law‑deciding role to "law of the crime")
Montgomery v. State, 292 Md. 84 (Md. 1981) (reinforced Stevenson’s interpretation of Article 23)
State v. Adams, 406 Md. 240 (Md. 2008) (held failure to object to advisory instruction was waiver; later overruled by Unger)
Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 2000) (held Maryland advisory instruction could violate Due Process by permitting jury to ignore reasonable‑doubt standard)
In re Winship, 397 U.S. 358 (U.S. 1970) (established requirement of proof beyond a reasonable doubt)
Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (holding misdescription of burden of proof causes structural error not amenable to harmless‑error review)
Estelle v. McGuire, 502 U.S. 62 (U.S. 1991) (articulated "reasonable likelihood" test for ambiguous jury instructions)
Victor v. Nebraska, 511 U.S. 1 (U.S. 1994) (addressed standards for evaluating jury instructions)
Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991) (distinguished structural errors from trial errors for harmless‑error analysis)
Gray v. State, 388 Md. 366 (Md. 2005) (discussed when change in law justifies reopening postconviction proceedings)