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Rosales v. State

Court of Appeals of Maryland

April 17, 2019

WILFREDO ROSALES
v.
STATE OF MARYLAND

          Argued: September 7, 2018

          Circuit Court for Prince George's County No. CT121814X

          Barbera, C.J. Greene, [*] Adkins, McDonald, Watts, Hotten, Getty,

          OPINION

          GETTY, J.

         In this 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).

         The 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.

         After 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.

         For the 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.

         BACKGROUND

         A. Underlying Facts

         This 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.

         An 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.

         According to Mr. Hernandez-Melendez, he "walk[ed] through" Mr. Rosales in 2006.[1] 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.

         B. The Trial

         The 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.

         Prior 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."

         After 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.

         C. Post-Trial Proceedings

         Mr. 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.

         On 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.

         The 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.

         In an 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?

         As explained more fully below, we answer yes.

         On 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 REVIEW

         "The 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.

         DISCUSSION

         A. Appellate Jurisdiction of this Court

         In the 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.

         "In 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.

         The statute contains no time provision for entry of an appeal. Cf. Cts. & Jud. Proc. ยง 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 ...


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