Argued: September 7, 2018
Circuit Court for Prince George's County No. CT121814X
Barbera, C.J. Greene, [*] Adkins, McDonald, Watts, Hotten,
case we are asked to determine whether a witness' prior
convictions for committing a violent crime in aid of
racketeering in violation of 18 U.S.C. § 1959
("VICAR offenses") are admissible for witness
impeachment under Maryland Rule 5-609. Specifically, the
Defendant sought to impeach the State's witness with the
witness' conviction of conspiracy to commit assault with
a dangerous weapon in aid of racketeering and threatening to
commit a crime of violence in aid of racketeering. We hold
that a witness' prior convictions for VICAR offenses are
admissible for witness impeachment. Convictions for VICAR
offenses cross the conceptual dividing line between crimes
involving the basic level of dishonesty required to commit
any crime and those characterized by inherent deceitfulness,
furtive conduct, and disregard for societal cohesiveness.
Individuals who choose to involve themselves with an
enterprise engaged in racketeering activity and who choose to
commit or conspire to commit violent acts with the express
purpose of aiding such an enterprise are also likely willing
to lie under oath, as judged by our standard outlined in
State v. Giddens, 335 Md. 205 (1994).
trial court erred in excluding the witness' prior
convictions for impeachment purposes at trial. However, we
hold further that the exclusion of these convictions was
harmless beyond a reasonable doubt. Therefore, the Court of
Special Appeals' affirmation of the trial court's
exclusion of the convictions is reversed, but Mr. Rosales is
not granted a new trial.
we granted certiorari, the State raised for the first time
the issue of jurisdiction and contended that this Court did
not have jurisdiction to reach the merits. As a result, we
also address this Court's jurisdiction and review our
prior classification of Maryland Rule 8-202 as a
"jurisdictional" rule that required immediate
dismissal of an appeal for lack of jurisdiction.
following reasons, we determine that this Court has
jurisdiction to reach the merits. Although in the past this
Court has considered the thirty-day time limitation for
noticing an appeal within Maryland Rule 8-202 as
"jurisdictional," that deadline is based on a rule
and not on a statute. Therefore, the basis for dismissal for
failure to file a notice of an appeal within thirty days is
not lack of jurisdiction, but failure to comply with the
Maryland Rules. Furthermore, appellate courts must also
consider waiver and forfeiture before dismissing an appeal.
As explained in detail below, jurisdiction in this case is
consistent with Maryland Rule 8-202.
case involves an encounter between a former member of the
Mara Salvatrucha ("MS-13") gang, Hector
Hernandez-Melendez ("Mr. Hernandez-Melendez"),
a.k.a. "Scrappy," and a group of current MS-13
members. Mr. Hernandez-Melendez was walking to his
girlfriend's home on September 26, 2012 at about 7:00
p.m. through the Langley Hampshire Neighborhood Park in
Langley Park, Prince George's County, Maryland. While Mr.
Hernandez-Melendez was resting on a swing, Wilfredo Rosales
("Mr. Rosales") and six other men approached Mr.
Hernandez-Melendez and asked if he was Scrappy. Mr.
Hernandez-Melendez said no. The group then asked Mr.
Hernandez-Melendez to lift his shirt. When Mr.
Hernandez-Melendez refused, he was thrown to the ground and
stabbed by someone in the group.
ambulance transported Mr. Hernandez-Melendez to Washington
Hospital Center. After Mr. Hernandez-Melendez received care
for his injuries, detectives arrived and questioned him. He
told the detectives that he did not recognize any of his
attackers except for Mr. Rosales. He knew Mr. Rosales did not
stab him but he believed that Mr. Rosales removed $150 from
his wallet. He also believed Mr. Rosales was the instigator
of the attack because Mr. Rosales was the only one in the
group who would have recognized Mr. Hernandez-Melendez.
to Mr. Hernandez-Melendez, he "walk[ed] through"
Mr. Rosales in 2006. However, after that encounter and prior to
the incident in the park, Mr. Hernandez-Melendez had not had
any contact with Mr. Rosales since 2006. Mr.
Hernandez-Melendez confirmed the identity of Mr. Rosales
through photo identification. Based upon this identification,
Mr. Rosales was arrested.
State charged Mr. Rosales with nine counts related to the
assault of Mr. Hernandez-Melendez. On May 30, 2013, a jury
trial began in the Circuit Court for Prince George's
County and Mr. Hernandez-Melendez testified in the
State's case. During direct examination, Mr.
Hernandez-Melendez testified about his prior experience as a
member of MS-13. He stated that in his opinion, he was
attacked as retaliation for testifying as a government
witness against three MS-13 members in a federal homicide
trial in Washington, D.C. in 2009.
to Mr. Rosales' cross-examination of Mr.
Hernandez-Melendez, the trial court heard argument on the
State's motion in limine to preclude Mr. Rosales
from questioning Mr. Hernandez-Melendez about his 2011
conviction in the United States District Court for the
District of Columbia for conspiracy to commit assault with a
dangerous weapon in aid of racketeering and threatening to
commit a crime of violence in aid of racketeering in
violation of the federal statute, Violent Crimes in Aid of
Racketeering Activity ("VICAR"), 18 U.S.C. §
1959. The State asked the trial court to prohibit admission
of the convictions under Maryland Rule 5-609. The State
argued that these were convictions that could not be used to
impeach his credibility, contending that these crimes were
neither infamous crimes nor crimes relevant to credibility.
Mr. Rosales argued that these offenses were impeachable
because they were relevant to credibility and were different
from other crimes of violence. The trial court granted the
State's motion and ruled, "we are going to exclude
any reference to his conviction, and we are going to exclude
any questions as to what he was in jail for."
the conclusion of the trial, the jury deliberated and found
Mr. Rosales guilty of two of the nine counts-retaliation
against a witness and participation in a criminal gang. On
June 26, 2013, the trial court sentenced Mr. Rosales to
twelve years of imprisonment with six years suspended on the
conviction for retaliation against a witness and a
consecutive sentence of ten years with five years suspended
on the conviction for participation in a criminal gang.
Rosales filed an initial notice of appeal on October 16, 2013
and a motion to permit a notice of appeal past the filing
date. The circuit court granted the motion. The initial
appeal was docketed in the Court of Special Appeals as No.
1835, September Term 2013. Mr. Rosales voluntarily dismissed
this appeal in October 2014.
September 27, 2016, Mr. Rosales filed a Petition for
Postconviction Relief. Among other allegations, Mr. Rosales
alleged ineffective assistance of his trial counsel because
he had requested that trial counsel file an appeal and trial
counsel did not timely file the appeal. A hearing on the
petition was scheduled for February 1, 2017. Prior to the
start of the hearing, the State agreed that Mr. Rosales was
entitled to file a belated appeal. During the hearing, the
State and Mr. Rosales briefly went on the record to inform
the postconviction court that they had reached an agreement.
Specifically, the State said:
Your Honor, in this case, trial counsel filed a notice of
appeal past the filing date, and then tried to get it
recognized. . . which he wasn't able to do. We are
willing to-I think it's the right thing to grant a
belated appeal, and to hold the rest of the post-conviction
issues in abeyance for Mr. Rosales.
postconviction court agreed to sign the proposed consent
order, and the order was docketed. The consent order
authorized a belated notice of appeal and ordered that the
postconviction petition be withdrawn without prejudice. In
the consent order, Mr. Rosales was permitted to re-file a
petition "after the appellate process is concluded,
provided the filing occurs within ten (10) years from [the]
original sentencing date." Mr. Rosales subsequently
filed the belated appeal.
unreported opinion filed on December 11, 2017, the Court of
Special Appeals affirmed the judgment of the trial court,
holding that the trial court properly concluded that Mr.
Hernandez-Melendez's prior convictions involved violent
crimes that were not relevant to credibility and were
non-impeachable crimes under Maryland Rule 5-609. Rosales
v. State, No. 2659, Sept. Term, 2016, 2017 WL 6312861,
at *8 (Md. Ct. Spec. App. Dec. 11, 2017). Regarding
jurisdiction, the Court of Special Appeals noted in a
footnote that Mr. Rosales was given a belated opportunity to
file a notice of appeal through postconviction relief.
Id. at *1. The footnote stated,
"[a]ppellant's initial appeal was voluntarily
dismissed as untimely filed. Appellant subsequently filed a
Petition for Post-Conviction Relief based on his
counsel's failure to note a timely appeal, and he was
given the right to file a belated notice of appeal."
Id. at *n.1. Neither party had raised any issue
about jurisdiction before the Court of Special Appeals. Mr.
Rosales petitioned this Court for a writ of certiorari, which
this Court granted on March 6, 2018.
Mr. Rosales presents one question for our review:
1. Were the complainant's prior convictions for
committing violent crimes in aid of racketeering activity,
i.e., for conspiracy to commit assault with a
dangerous weapon in aid of racketeering activity and
threatening to commit a crime of violence in aid of
racketeering activity, admissible for purposes of impeachment
under Maryland Rule 5-609?
explained more fully below, we answer yes.
August 28, 2018, after briefing this Court on the merits, the
State raised for the first time a lack of appellate
jurisdiction in the Court of Special Appeals and this Court
and filed a Motion to Vacate and Remand with Instructions to
Dismiss for Lack of Jurisdiction. The State argued dismissal
of this matter was mandatory and that the Court of Special
Appeals should have never addressed the merits of this case.
Mr. Rosales filed a response on September 4, 2018, arguing
that the State waived any claim for lack of jurisdiction in
this matter. Accordingly, we will also address the
jurisdiction issue below.
standard of appellate review of an evidentiary ruling turns
on whether the trial judge's ruling was based on a pure
question of law, on a finding of fact, or on an evaluation of
the admissibility of relevant evidence." Brooks v.
State, 439 Md. 698, 708 (2014). Whether or not a crime
bears upon credibility or is an infamous crime under Maryland
Rule 5-609 is a question of law. State v. Giddens,
335 Md. 205, 213 (1994). Questions of law are reviewed under
the de novo standard. Brooks, 439 Md. at
708-09. Accordingly, we will review the trial court's
ruling on the evidence without any deference.
Appellate Jurisdiction of this Court
State's Motion to Vacate and Remand with Instructions to
Dismiss for Lack of Jurisdiction, the State argues that this
Court lacks jurisdiction for two reasons. First, the consent
order did not make the prerequisite findings that would
warrant a court granting a belated opportunity to appeal as
postconviction relief. Second, under Maryland Rule 4-407, the
consent order is not a final judgment. Mr. Rosales argues
that the State waived any jurisdictional claim because the
State did not raise the jurisdictional issue earlier and that
the postconviction proceeding was sufficient under the
Maryland Rules. For the following reasons, this Court
concludes it has jurisdiction to reach the merits of this
case and declines to vacate and remand this matter with
instructions to dismiss for lack of jurisdiction.
Maryland, appellate jurisdiction, except as constitutionally
created, is statutorily granted." Schuele v. Case
Handyman & Remodeling Servs., LLC, 412 Md. 555, 565
(2010) (citing Gruber v. Gruber, 369 Md. 540, 546
(2002); Kant v. Montgomery Cty., 365 Md. 269, 273
(2001)). "[M]atters of jurisdiction are always before
this [C]ourt and are exceptions to the general rule that we
will consider only such questions as have been raised and
decided below." Carrier v. Crestar Bank, N.A.,
316 Md. 700, 722 (1989) (quoting Webb v. Oxley, 226
Md. 339, 343 (1961)). Appellate jurisdiction is codified in
§ 12-301 of the Courts and Judicial Proceeding Article
("Cts. & Jud. Proc.") of the Maryland Code,
which states in its entirety:
Except as provided in § 12-302 of this subtitle, a party
may appeal from a final judgment entered in a civil or
criminal case by a circuit court. The right of appeal exists
from a final judgment entered by a court in the exercise of
original, special, limited, statutory jurisdiction, unless in
a particular case the right of appeal is expressly denied by
law. In a criminal case, the defendant may appeal even though
imposition or execution of sentence has been suspended. In a
civil case, a plaintiff who has accepted a remittitur may
cross-appeal from the final judgment.
statute contains no time provision for entry of an appeal.
Cf. Cts. & Jud. Proc. § 12-401(e)
("Except as provided in paragraph (2) of this
subsection, an appeal shall be taken by filing an order for
appeal with the clerk of the District Court within 30 days
from the date of the final judgment from which
appealed.") (illustrating a statutory ...