Post Conviction 101: The Basics

Post Conviction in Maryland.  What it is and what it isn’t.

Post convictions are lost far more often than they are won.  Your post conviction is your last guaranteed opportunity to appear before a judge.  Consult with an experienced attorney.  Call Erica J. Suter at 301.880.7118. Collect calls accepted. ejsuter@ericasuterlaw.com

Who?

Everyone who is convicted of a crime in Maryland has the right to file a petition for post conviction relief if they are incarcerated, on probation or on parole.  If none of these apply, you may be able to file a Petition for Writ of Error Coram Nobis, but that will be covered in a different post.

When?

If you were convicted after 1995, you have ten years from the date of your sentence to file.  YOU MUST FILE WITHIN YOUR TEN YEAR DEADLINE IN ORDER TO PRESERVE THIS RIGHT.  Your hearing may take place after your ten year deadline and you may even supplement with additional claims after your ten year deadline, but your initial petition must be filed by your deadline.  If you were convicted before 1995, the ten year deadline does not apply, but I will cover that in more detail in another post.

Where?

You file in the court where you had your trial or guilty plea.  Your post conviction will be heard by a different judge than the judge who presided over your trial or guilty plea.

What?

Typically people raise claims of ineffective assistance of counsel in a post conviction petition.  Under the 6th Amendment of the United States Constitution you are entitled to effective assistance of counsel.  In order to prevail on a post conviction petition you must show two things:

1.) that trial counsel made a mistake; and,

2.) “prejudice.”  Prejudice simply means that the mistake was a serious one that potentially changed the outcome of the trial.  In other words, only a serious error counts for purposes of post conviction relief.

Claims of prosecutorial misconduct can also be raised in a post conviction petition. e.g., There was a cooperating State’s witness, maybe a jailhouse informant, who testified against you in your case.  That witness got a deal in exchange for his cooperation.  That deal was not disclosed to you and your attorney.

You are entitled to a hearing on your first post conviction petition.

During your post conviction proceedings, the burden is on you to persuade the court that something went wrong in your trial or guilty plea.  For example, if you want to argue that your trial counsel was ineffective for failing to put on an alibi witness, you cannot simply make a bald allegation.  You must present evidence regarding the alibi itself.

If you win your post conviction, the remedy is a new trial.  It is not the same as a “not guilty.”  You are placed in the same position that you were in at the time that you were charged.  The State can retry you.  A post conviction win is, with some exceptions, sort of like a do over.

You are entitled to representation on post conviction.  If you cannot afford private counsel, you will be appointed a public defender.

I will cover Motions to Reopen a Closed Post Conviction in another post.

If you lose your post conviction, you may file an Application for Leave to Appeal within thirty days off the date of the decision.  I will explain that right in more detail in another post.

What it is not:

The post conviction phase of your case is not really about your guilt or innocence.  It is about the process and whether the process worked the way that it is supposed to.

The kinds of claims that may be raised at the post conviction phase of your case are limited.  The post conviction hearing is not a new trial and is not, in and of itself, a chance to retry your case.

A post conviction petition is not a guaranteed opportunity to negotiate your way into a lower sentence.

Post Conviction and Appellate Criminal Defense Attorney practicing throughout Maryland and DC, business owner, mother of two. Since establishing the Law Offices of Erica J. Suter, LLC in 2011, the life sentences of ten of my clients have been modified or vacated. I have also obtained relief for clients who were not serving life. I try to treat my clients the way that I would want to be treated if I were sitting on the other side of the table, with dignity, respect, and honesty. I love teaching and will share what I've learned with anyone who is interested. I have been selected to the National Asian Pacific American Bar Association's Best Lawyers Under 40, as a Super Lawyer Rising Star (Washington, DC and Maryland), for membership in the National Trial Lawyers Top 100 Lawyers, and as a Maryland Top 40 Under 40 Criminal Defense Lawyer. I earned my JD from Georgetown University, my MA from the University of Chicago, and my BA from Bates College. http://www.ericasuterlaw.com Follow me on twitter @suterlaw email me at ejsuter@ericasuterlaw.com

Please note: I reserve the right to delete comments that are offensive or off-topic.

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