Unger v. State, 427 Md. 383

Unger was convicted in 1976 of felony murder, armed robbery, and handgun offenses, with advisory jury instructions informing jurors they were judges of the law.
Postconviction relief vacated Unger’s judgments and granted a new trial, relying on Adams (2008) which held advisory instructions violated due process and that waiver could be overridden by later changes in the law.
State v. Adams (2008) held that failure to object to advisory instructions was a waiver under the then-current law, affecting postconviction relief.
This Court granted certiorari and later overruled Adams’ waiver conclusion, holding Stevenson and Montgomery announced a new retroactive state constitutional standard under Article 23.
Court concluded that the failure to object to advisory jury instructions does not constitute waiver under § 7-106(c)(2) because Stevenson and Montgomery create a new standard, retroactive to pre-Stevenson trials.
The Court remanded to affirm the circuit court’s judgment, reversing the Court of Special Appeals and denying the State’s certiorari dismissal motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 12-202 permits certiorari review	Unger: cross-application arguments should be reviewable; §12-202 does not bar review.	State: §12-202 deprives review when Court of Special Appeals denied/limited leave.	Jurisdiction exists; §12-202 does not bar merits review.
Did Stevenson and Montgomery create a new retroactive Article 23 standard	Stevenson/Montgomery announced a new standard; waiver defenses may be overridden.	Adams held no new standard; waiver applies.	Stevenson and Montgomery did create a new retroactive standard; waiver not controlling.
Was trial counsel's failure to object to advisory instructions deficient representation	Yes, under Adams as interpreted retroactively; failure to object prejudiced Unger.	No, under new standard there was no deficiency; proper to rely on retroactive change.	Not deficient under the retroactive new standard; no ineffective assistance.
Was Unger’s waiver of the advisory-instruction claim proper	Waiver should be excused by new Article 23 standard.	Waiver still governs under §7-106 unless explicitly overridden.	Waiver overridden by retroactive new standard; waiver inapplicable to the issue.
Should the case be remanded for relief given retroactive change	New standard requires relief for due process violation.	Adams dictates waiver; relief not warranted.	Remand affirmed relief consistent with the retroactive standard; new trial not necessary here.

Stevenson v. State, 289 Md. 167 (Md. 1980) (Article 23 interpreted to limit jury law-deciding power to non-constitutional issues)
Montgomery v. State, 292 Md. 84 (Md. 1981) (Affirms Stevenson limiting jury's role to the law of the crime)
State v. Adams, 406 Md. 240 (Md. 2008) (Postconviction ruling on advisory instructions; later overruled by this Court)
Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 2000) (Due process violation for advisory jury instructions; waiver issue discussed)
Bowen v. Annapolis, 402 Md. 587 (Md. 2007) (Appellee may argue alternative grounds; cross-appeal limitations noted)
Williams v. State, 292 Md. 201 (Md. 1981) (Pre-Stevenson context on the breadth of jury's law-deciding role)
State v. Cates, 417 Md. 678 (Md. 2011) (Appellate discretion to consider waived issues under Rule 8-131 )
Elliott v. State, 417 Md. 413 (Md. 2010) (Affirmative discretion to reach waivers under Rule 8-131)