Clark v. State

485 Md. 674

• Court: Court of Appeals of Maryland
• Decided: August 31, 2023
• Docket: 25/22
• Status: Published

Opinion

Damien Gary Clark v. State of Maryland, No. 25, September Term, 2022

RIGHT TO COUNSEL – NO-COMMUNICATION ORDER – ACTUAL DENIAL OF ASSISTANCE OF COUNSEL – PREJUDICE – Supreme Court of Maryland* held that trial counsel’s failure to object to trial court’s order prohibiting communication between defendant and counsel during overnight recess in criminal trial, without any curative action, resulted in actual denial of assistance of counsel in violation of Sixth Amendment to United States Constitution and, under Strickland v. Washington, 466 U.S. 668 (1984), prejudice is presumed.

Supreme Court of Maryland held that where defendant alleges ineffective assistance of counsel based on trial counsel’s failure to object to no-communication order preventing communication between trial counsel and defendant during overnight recess in criminal trial, presumption of prejudice is warranted under Articles 21 and 24 of Maryland Declaration of Rights, independent of Sixth Amendment to United States Constitution.

Supreme Court of Maryland declined to adopt “actual deprivation” standard, which would require that, where trial court issues no-communication order preventing communication between defendant and trial counsel during overnight recess, as a condition precedent, postconviction petitioner must prove that petitioner would have actually spoken with counsel in order to establish actual denial of assistance of counsel and therefore be entitled to presumption of prejudice. Such approach is inconsistent with Sixth Amendment to United States Constitution, Articles 21 and 24 of Maryland Declaration of Rights, Supreme Court of United States’s holdings in Strickland, Geders v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272 (1989), and Supreme Court of Maryland’s case law.

* At the time of the grant of the petition for a writ of certiorari in this case, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Circuit Court for Howard County Case No. C-13-CR-18-000001

Argued: March 3, 2023 IN THE SUPREME COURT

OF MARYLAND*

No. 25

September Term, 2022 ______________________________________

DAMIEN GARY CLARK v. STATE OF MARYLAND ______________________________________

Fader, C.J. Watts Hotten Booth Biran Gould Eaves,

JJ. ______________________________________

Pursuant to the Maryland Uniform Electronic Legal Opinion by Watts, J. Materials Act (§§ 10-1601 et seq. of the State Biran, J., concurs.** Government Article) this document is authentic. Fader, C.J., Booth and Gould, JJ., dissent. 2024.04.26 ______________________________________ 12:08:24 -04'00' Filed: August 31, 2023 Gregory Hilton, Clerk

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. **Two opinions received the votes of the same four Justices in this case. One is by Justice Shirley M. Watts, which Justice Michele D. Hotten, Justice Jonathan Biran, and Justice Angela M. Eaves join. Justice Watts’s opinion has been designated the Majority Opinion in this case. The other opinion has been designated the Concurring Opinion of Justice Biran, which Justice Watts, Justice Hotten, and Justice Eaves join. In this case, we must determine whether trial counsel’s failure to object to a trial

court’s order prohibiting any consultation about the case, i.e., a no-communication order,

between Damien Gary Clark, Petitioner, and trial counsel during an overnight recess prior

to the final day of testimony in Mr. Clark’s murder trial resulted in the actual denial of the

assistance of counsel, as guaranteed by the Sixth Amendment, such that prejudice is

presumed under the second prong of the test set forth in Strickland v. Washington, 466

U.S. 668 (1984). This determination is necessary to resolve Mr. Clark’s contention that he

was provided ineffective assistance because of trial counsel’s failure to object to the no-

communication order by the trial court. If Mr. Clark was denied the assistance of counsel

in violation of the Sixth Amendment, under the framework set forth by the Supreme Court

of the United States in Strickland concerning the presumption of the prejudice, Mr. Clark

need not show prejudice; rather, prejudice would be presumed. On the other hand, if there

was no actual denial of the assistance of counsel, Mr. Clark must prove both deficient

performance and prejudice under Strickland.

On postconviction review, the Circuit Court for Harford County ruled that the no-

communication order, and trial counsel’s failure to object, denied Mr. Clark the assistance

of counsel in violation of the Sixth Amendment and presumed prejudice, ordering a new

trial. The Appellate Court of Maryland1 reversed the judgment of the circuit court,

reasoning that no “actual deprivation” of the assistance of counsel occurred, and concluded

1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. that Mr. Clark could not show prejudice. See State v. Clark, 255 Md. App. 327, 331, 345,

347, 279 A.3d 1121, 1123, 1131-32 (2022). Under the Appellate Court’s approach, Mr.

Clark was required to demonstrate that he desired or wanted to speak with counsel during

the overnight recess and that as a result of the no-communication order he was “actually

deprived” of the opportunity to do so. Id. at 341-43, 345, 279 A.3d at 1129-31 (citation

omitted).

We hold that, given the length and scope of the no-communication order, preventing

communication between Mr. Clark and trial counsel about the case, and trial counsel’s lack

of objection which permitted the order to go into effect, the order presented a serious

impediment to Mr. Clark’s right to consult with counsel in violation of the Sixth

Amendment and Articles 21 and 24 of the Maryland Declaration of Rights and, under the

framework set forth in Strickland, prejudice is presumed. We conclude that Mr. Clark did

not need to show or demonstrate that he wanted to confer or would have conferred with his

counsel during the overnight recess but for the trial court’s order as a condition precedent

to the presumption of prejudice due to an actual denial of the assistance of counsel. Given

the duration of the order (which covered a lengthy overnight recess) and the scope of the

order (which applied to all communications about the case), the order prevented

communication between Mr. Clark and trial counsel and constituted the actual denial of

the assistance of counsel in violation of the Sixth Amendment and the Maryland

Declaration of Rights. Thus, prejudice is presumed.

The record shows no strategic or other value to trial counsel’s failure to object, and

the failure to safeguard Mr. Clark’s right to consult with counsel for such an extended

-2- period of time during such a critical stage of the trial was error. As such, the circuit court

correctly concluded that trial counsel’s failure to object was objectively unreasonable and

that counsel’s performance was deficient. We reach the same conclusion. Accordingly,

we reverse the judgment of the Appellate Court of Maryland and uphold the circuit court’s

order of a new trial for Mr. Clark, as trial counsel’s performance was deficient and Mr.

Clark was prejudiced.

BACKGROUND

Trial and Direct Appeal

On April 18, 2018, in the Circuit Court for Howard County, Mr. Clark was charged

with second-degree murder, attempted second-degree murder, and first- and second-degree

assault resulting from an altercation in a convenience store between him and two other

men. During the fight, Mr. Clark wounded the two men with a knife, resulting in one’s

death. At trial, Mr. Clark raised the issue of self-defense.

On the fourth day of trial, February 14, 2019, Mr. Clark testified. Mr. Clark’s direct-

examination concluded at the end of the day, and he was due to return to the witness stand

the following day for cross-examination. Before adjourning, the trial judge instructed Mr.

Clark that he could not to speak to anyone about the case, including his own lawyers, prior

to resumption of his testimony:

THE SHERIFF: Sir, why don’t you go back to your counsel?

THE COURT: And, Mr. Clark, before you do.

[MR. CLARK]: Yes, sir.

THE COURT: You can’t talk to anybody about the case this evening even Mr.

-3- Garcia and Ms. Mantegna.[2] Okay?

[MR. CLARK]: Okay.

THE COURT: You can’t talk to anybody. It sounds counter intuitive.

[MR. CLARK]: Yes.

THE COURT: You can’t talk to your own attorney about the case.

[MR. CLARK]: I understand, sir.

THE COURT: Okay. You’re welcome to step down. Go back to [the] trial table.

[MR. CLARK]: Okay. All right.

Mr. Clark’s trial counsel failed to object to the instruction from the trial court. The next

day, Mr. Clark underwent cross-examination, and the defense rested.

On February 19, 2019, the jury found Mr. Clark guilty of voluntary manslaughter,

attempted second-degree murder, and two counts of second-degree assault. The jury

acquitted Mr. Clark of second-degree murder and first-degree assault. The trial court

sentenced Mr. Clark to 50 years of incarceration.

On June 29, 2020, the Appellate Court of Maryland affirmed the convictions in an

unreported opinion. See Damien Gary Clark v. State of Maryland, No. 486, Sept. Term,

2019, 2020 WL 3498463, at *1 (App. Ct. Md. June 29, 2020). Addressing Mr. Clark’s

contention that the trial court deprived him of his Sixth Amendment right to counsel with

its instruction, the Appellate Court concluded that Mr. Clark’s argument was not preserved

because of the lack of an objection, despite acknowledging that the contention had merit.

2 Mr. Garcia and Ms. Mantegna were Mr. Clark’s two trial counsel.

-4- See id. at *7-8. The Appellate Court declined to “hold on direct appeal . . . that the failure

to object constitutes ineffective assistance of counsel as a matter of law” because of the

lack of a developed record on the matter, although the Appellate Court could not “think of

any reason why counsel would opt not to object to the trial judge’s instruction that Mr.

Clark not consult with his attorney overnight.” Id. at *8. Without the ability to assess “the

possibility, however slim, that counsel had a legitimate strategic or tactical reason for

letting the instruction go,” the Appellate Court left the issue for Mr. Clark to pursue in

postconviction proceedings. Id.

Postconviction Proceedings in the Circuit Court

On February 19, 2021, Mr. Clark filed a petition for postconviction relief and

reiterated the argument that the trial court’s instruction and his trial counsel’s failure to

object violated his Sixth Amendment right to counsel. On July 29, 2021, the circuit court

held a hearing on Mr. Clark’s petition and the State of Maryland’s, Respondent’s, response.

Mr. Clark’s trial counsel, Tony Garcia, testified that, at the time of Mr. Clark’s trial, he had

been practicing criminal law for over 20 years, including time as a prosecutor and defense

attorney, and he had tried over 100 trials of all types.

In response to a question from Mr. Clark’s postconviction counsel regarding his

reason for not objecting to the trial court’s no-communication order, Mr. Garcia testified:

“At the time, I didn’t think there was anything for us to talk about that evening. We had

talked that morning, I guess when I delivered the suit to him. We talked during the trial,

right before lunch. I believe, you know, at every break.” Mr. Garcia testified: “[T]he

answer is that I just didn’t have anything to go over with him because I thought he was

-5- doing good on the witness stand.” Mr. Garcia elaborated that at the time he could not call

and speak to Mr. Clark in the jail, but had to meet him in person and “the issue would have

been, did I want to go back downstairs in the sheriff’s lockup and see [Mr. Clark] that

day[.]” However, Mr. Garcia added that “at the end of each day, I would always ask [Mr.

Clark] if he had any questions or anything like that.” In response to Mr. Clark’s

postconviction counsel’s question about whether he was familiar with Geders v. United

States, 425 U.S. 80 (1976), Mr. Garcia testified that he was not, but that he knew that Mr.

Clark had a right to speak with him: “I know he had a right to talk to me and if he said he

had anything to say, I would have talked to him.”

On cross-examination, Mr. Garcia testified that he had extensively prepared Mr.

Clark for his testimony, both direct- and cross-examination, and that he did not have any

concerns at the conclusion of Mr. Clark’s direct-examination that he would have addressed

in a meeting with him. Mr. Garcia testified that he could have objected, but that in the

moment he “didn’t have anything to ask [Mr. Clark],” and Mr. Clark “didn’t say, hey, I

want to talk to you.” The State asked Mr. Garcia: “Had Mr. Clark said, I want to speak to

my attorney, would you have advocated on his behalf[?]” and Mr. Garcia responded:

“Absolutely.” Mr. Garcia testified that, looking back, his reaction was “wow, I should

have objected but was I going to meet with him or say anything that night? The answer is

no. And he didn’t ask me.” Significantly, although Mr. Clark testified at the

postconviction hearing, he was not asked, and did not testify, about the no-communication

order or whether he had wanted to speak with counsel during the recess.

Mr. Garcia was not asked and offered no testimony as to whether, independent of

-6- his observation that Mr. Clark did not say he wanted to speak with him while in the

courtroom, he knew whether Mr. Clark developed the desire to speak with him later during

the recess or whether Mr. Clark had wanted to waive the right to counsel. Mr. Garcia also

offered no testimony as to whether it would have been desirable or advantageous for him

to speak to Mr. Clark about matters other than his testimony, such as a potential plea

bargain, rebuttal witnesses for the State, or next steps in the trial.

On September 28, 2021, the circuit court granted Mr. Clark’s requested

postconviction relief, ordering a new trial. The circuit court held that the no-

communication order was an error in direct conflict with the Supreme Court’s precedent in

Geders and violated Mr. Clark’s Sixth Amendment rights. The circuit court concluded that

“[n]one of trial counsel’s testimony indicated that there was a legitimate strategic or tactical

reason for letting the instruction go.” (Cleaned up). The circuit court characterized Mr.

Garcia’s testimony as conceding that he should have objected to the order. Because “[t]he

Sixth Amendment right to counsel belongs solely to the individual on trial and cannot be

waived by his attorney[,]” the circuit court concluded that Mr. Garcia could not waive Mr.

Clark’s right to counsel, which was violated because Mr. Clark “may have desired to

[consult with counsel], but was not able to due to the trial court’s instruction.” The circuit

court viewed the facts of the case as essentially the same as in Geders. The circuit court

held that Mr. Clark “was prejudiced by trial counsel’s failure to object not only because he

was deprived of his Sixth Amendment right to counsel during the overnight recess, but also

because he was not able to raise the issue on appeal due to trial counsel’s failure to object

to the erroneous instruction.” The State filed an application for leave to appeal, which the

-7- Appellate Court of Maryland granted.

Opinion of the Appellate Court of Maryland

On July 28, 2022, a divided panel of the Appellate Court of Maryland reversed the

circuit court’s judgment. See Clark, 255 Md. App. at 331, 279 A.3d at 1123. The Appellate

Court distinguished this case from both Geders and Perry v. Leeke, 488 U.S. 272 (1989),

because, in those cases, trial counsel had objected to the order, whereas in Mr. Clark’s case,

trial counsel had not. See Clark, 255 Md. App. at 339, 279 A.3d at 1127-28. The Appellate

Court held that, “although an order to the defendant not to discuss his or her testimony with

anyone during an overnight recess is improper, it does not, by itself, constitute a deprivation

of the right to counsel.” Id. at 345, 279 A.3d at 1131. Rather, according to the Appellate

Court, to show that the no-communication order “resulted in a violation of the defendant’s

Sixth Amendment right to counsel, there must be some evidence that there was an actual

deprivation of counsel.” Id. at 345, 279 A.3d at 1131. In reaching this conclusion, the

Appellate Court relied on decisions by courts in other jurisdictions that had utilized an

“actual deprivation” standard, such as the Third Circuit’s holding in Bailey v. Redman, 657

F.2d 21 (3d Cir. 1981) (per curiam), cert. denied, 454 U.S. 1153 (1982), which the Court

found to be more persuasive than the case cited by Mr. Clark for the opposite proposition.

See Clark, 255 Md. App. at 342-45, 279 A.3d 1129-31. The Appellate Court concluded

that Mr. Clark was not entitled to the presumption of prejudice and had failed to

demonstrate prejudice. See id. at 345-47, 279 A.3d 1131-32.

The Appellate Court discussed Weaver v. Massachusetts, 582 U.S. 286 (2017),

which the Appellate Court stated held “that a violation of the right to a public trial requires

-8- automatic reversal on direct appeal, but when it is raised as part of an ineffective assistance

of counsel claim, it is still analyzed under the Strickland framework.” Clark, 255 Md. App.

at 339, 279 A.3d at 1128. The Appellate Court quoted cases in which this Court has

discussed ineffective assistance of counsel, such as Newton v. State, 455 Md. 341, 168

A.3d 1 (2017), cert. denied, ___ U.S. ___, 138 S. Ct. 665 (2018), and Ramirez v. State, 464

Md. 532, 212 A.3d 363 (2019), cert. denied, ___ U.S. ___, 140 S. Ct. 1134 (2020). See

Clark, 255 Md. App. at 339-40, 279 A.3d at 1128. Based on this case law, the Appellate

Court concluded that, “because this case is before us in the posture of review of a post-

conviction claim of ineffective assistance of counsel, we do not address the merits of the

trial court error.” Id. at 340, 279 A.3d at 1128.

The Appellate Court described the “lens” for addressing Mr. Clark’s claim: the

Strickland test, requiring the defendant to prove both deficient performance of counsel and

that prejudice resulted. Clark, 255 Md. App. at 340, 279 A.3d at 1128. The Appellate

Court concluded that Mr. Clark’s ineffective assistance of counsel claim failed because he

had “failed to prove that he was prejudiced by counsel’s failure to object to the court’s

instruction.”3 Clark, 255 Md. App. at 340, 279 A.3d at 1128. The Appellate Court

explained that Mr. Clark needed to establish prejudice by showing either “(1) that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different; or (2) that the result of the proceeding was

3 Because under Strickland, 466 U.S. at 697, the Appellate Court was “not required ‘to address both components of the inquiry if the defendant makes an insufficient showing of one[,]’” it focused on the prejudice issue and did not assess the performance of Mr. Clark’s trial counsel. Clark, 255 Md. App. at 340, 279 A.3d at 1128.

-9- fundamentally unfair or unreliable.” Id. at 340, 279 A.3d at 1128 (quoting State v. Syed,

463 Md. 60, 86, 204 A.3d 139, 154 (2019)) (internal quotation marks omitted). The

Appellate Court noted that prejudice is presumed “in certain Sixth Amendment contexts,”

such as when “(1) the petitioner was actually denied the assistance of counsel; (2) the

petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s

counsel had an actual conflict of interest.” Id. at 341, 279 A.3d at 1129 (quoting Ramirez,

464 Md. at 573, 212 A.3d at 387) (internal quotation marks omitted).

But, the Appellate Court stated, “to show a deprivation of the right to counsel in this

context, there must be a showing that the instruction actually prevented the defendant and

defense counsel from communicating.” Id. at 341, 279 A.3d at 1129. The Appellate Court

concluded that an objection by counsel to a court’s instruction not to communicate

“indicates that, ‘absent the court’s instruction, Defendant would have met with his

counsel.’” Id. at 342, 279 A.3d at 1129 (quoting Wallace v. State, 851 So. 2d 216, 220

(Fla. Dist. Ct. App.), review denied, 860 So.2d 980 (Fla. 2003), cert. denied, 540 U.S. 1187

(2004)). The Appellate Court reasoned that there was no prejudice to Mr. Clark because

“there was no objection to the instruction, nor was there any showing that the court’s

instruction deprived [Mr. Clark] of the right to assistance of counsel.” Id. at 342, 279 A.3d

at 1129. The Appellate Court observed that trial counsel’s postconviction testimony

indicated that he had nothing to discuss with Mr. Clark, and that Mr. Clark testified but

“did not testify that he would have talked to counsel absent the court’s instruction.” Id. at

342, 279 A.3d at 1129.

In a dissenting opinion, the Honorable Douglas R. M. Nazarian concluded that “Mr.

- 10 - Clark’s Sixth Amendment rights were violated, in real life terms and in constitutional

terms, when the court wrongly forbade him from conferring with counsel[,]” “because the

right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away.” Clark, 255

Md. App. at 348-49, 279 A.3d at 1133 (Nazarian, J., dissenting). The dissent distinguished

the cases relied on by the majority in setting an “actual deprivation” standard. See Clark,

255 Md. App. at 360, 279 A.3d at 1140 (Nazarian, J., dissenting). The dissent pointed out

that Bailey, 657 F.2d 21, was the basis for the Fourth Circuit’s reasoning in Stubbs v.

Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), and, in turn, in Perry, which the Supreme

Court rejected in that case. See Clark, 255 Md. App. at 360-62, 279 A.3d at 1140-41

(Nazarian, J., dissenting). The dissent distinguished United States v. Nelson, 884 F.3d

1103 (11th Cir. 2018), factually, because in that case the defendant’s lawyer requested to

speak with the defendant during an overnight recess about topics other than the defendant’s

testimony, which the trial court granted, whereas Mr. Clark was forbidden from discussing

not only his testimony but also any other matters about trial with his lawyer. See Clark,

255 Md. App. at 362-64, 279 A.3d at 1141-42 (Nazarian, J., dissenting). Similarly, the

dissent distinguished the facts of Wallace, 851 So. 2d 216, because the instruction to not

communicate in that case applied to a lunch recess that was more like Perry’s 15-minute

break than the overnight prohibition in Geders and here. See Clark, 255 Md. App. at 364-

65, 279 A.3d at 1143 (Nazarian, J., dissenting). Unlike the majority, the dissent found

persuasive Martin v. United States, 991 A.2d 791, 795-96 (D.C. 2010), a case in which the

District of Columbia Court of Appeals relied on the Supreme Court’s emphasis that “the

right to counsel does not depend upon a request by the defendant, and courts indulge in

- 11 - every reasonable presumption against waiver[,]” such that the government has the burden

to prove a valid waiver of the right. Clark, 255 Md. App. at 365-67, 279 A.3d at 1143-44

(Nazarian, J., dissenting) (cleaned up).

The dissent pointed out that, in Perry, the Supreme Court held “‘that a showing of

prejudice is not an essential component of a violation of the rule announced in Geders’”

and that the rule announced in Geders “makes no mention of any requirement that a

defendant prove an actual real-time desire to meet with counsel during the overnight recess

as a condition of proving that they were deprived of the assistance of counsel.” Clark, 255

Md. App. at 362, 279 A.3d at 1141 (Nazarian, J., dissenting) (citations omitted). The

dissent explained that Mr. Clark presented a straightforward Geders claim and determined

that, “under the binding and most analytically congruent cases—Geders, Perry, and

Wooten-Bey[ v. State, 76 Md. App. 603, 547 A.2d 1086 (1988), aff’d, 318 Md. 301, 568

A.2d 16 (1990)]—the trial court’s no-communication directive” deprived Mr. Clark of his

Sixth Amendment right to confer with counsel by its very nature. Id. at 367, 371, 279 A.3d

at 1144, 1146 (Nazarian, J., dissenting). The dissent would have concluded that, as a result,

Mr. Clark was entitled to a presumption of prejudice. See id. at 349, 279 A.3d at 1134

(Nazarian, J., dissenting). The dissent faulted the majority’s holding regarding Mr. Clark’s

need to show prejudice as erroneously establishing the proposition that “the court can take

away a defendant’s right to counsel unless he proves that he planned to use it right then,

never mind the court ordering him not to.” Id. at 377, 279 A.3d at 1150 (Nazarian, J.,

dissenting). The dissent observed that the Supreme Court has emphasized the significance

of a fair trial in ineffective assistance of counsel cases, and reiterated that an actual denial

- 12 - of the assistance of counsel relieves the defendant of proving prejudice because “[t]he

presumption that counsel’s assistance is essential requires us to conclude that a trial is

unfair if the accused is denied counsel at a critical stage of his trial.” Id. at 355, 279 A.3d

at 1137 (Nazarian, J., dissenting) (quoting United States v. Cronic, 466 U.S. 648, 659

(1984)).

Petition for a Writ of Certiorari

On, August 15, 2022, Mr. Clark petitioned for a writ of certiorari, raising the

following four issues:

I. As a matter of first impression, does requiring a criminal defendant to retroactively prove his desire to defy the trial court’s order against speaking with his attorney about his case during an overnight recess violate his constitutional right to counsel?

II. Does permitting counsel to neglect or waive his client’s right to speak with him during an overnight recess violate that client’s constitutional right to counsel?

III. Was the post-conviction court’s ruling that prejudice was found from trial counsel not preserving the issue for appeal correct?

IV. Is not objecting to the violation of a criminal defendant’s right to counsel due to mere ignorance of the law deficient performance?

On November 18, 2022, we granted the petition. See Clark v. State, 482 Md. 141, 284

A.3d 848 (2022).

DISCUSSION4

The Parties’ Contentions

Mr. Clark contends that requiring him to demonstrate that he was prejudiced as a

4 As the four questions presented are interrelated, we address them together.

- 13 - result of “trial counsel not objecting to the trial court’s order prohibiting their

communication . . . during an overnight recess eviscerates his constitutional right to the

effective assistance of counsel[.]” Mr. Clark contends that all binding precedent supports

determining a presumption of prejudice in this case, particularly Supreme Court of the

United States cases Geders, Perry, and Strickland. Mr. Clark argues that, in multiple

decisions addressing ineffective assistance of counsel, the Supreme Court has consistently

reaffirmed the presumption of prejudice resulting from denial of access to counsel during

a critical stage of trial, such as an overnight recess. Mr. Clark asserts that several United

States Courts of Appeals have upheld the Geders presumption of prejudice as applicable to

cases similar to his, and that the majority of State high courts that have considered the issue

have applied Geders’s presumption of prejudice to cases involving instructions not to

communicate.

Mr. Clark contends that requiring him to prove at a postconviction hearing that he

would have spoken with trial counsel during an overnight recess in order to establish

prejudice is impractical. It would, Mr. Clark maintains, require a court to speculate about

what he would have wanted to discuss with counsel absent the trial court’s order, rather

than rely on the record. Mr. Clark argues that it would be unreasonable to expect him to

have objected to the trial court’s order in light of trial counsel’s failure to do so, and

similarly unreasonable to expect him to remember years later whether he wanted to speak

with trial counsel during the prohibited time. Mr. Clark contends that the Appellate Court

of Maryland’s decision requiring that a petitioner produce such proof places too heavy a

burden on the petitioner. Mr. Clark also asserts that requiring a showing of prejudice would

- 14 - infringe on the right to private communication with counsel, because such an approach

would improperly allow “a rule whereby private discussions between counsel and client

could be exposed in order to let the government show that the accused’s sixth amendment

rights were not violated.” (Quoting Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir.

1986)) (cleaned up).

Mr. Clark stresses that the Sixth Amendment right to counsel belonged to him and

not to trial counsel, and that trial counsel could not waive his right by failing to object. Mr.

Clark also argues that his trial counsel’s failure to preserve the issue by objecting was

prejudicial under Maryland case law, because “1) [] competent appellate counsel would

have chosen to raise such an issue, had it been preserved, and 2) [] the issue had a

reasonable probability of being successful on appeal.” (Quoting State v. Gross, 134 Md.

App. 528, 585, 760 A.2d 725, 755 (2000)) (internal quotation marks omitted).

The State responds that the Appellate Court of Maryland correctly reversed the

circuit court’s order for a new trial. The State argues that “the Appellate Court rightly held,

joining a consensus of authority from other courts, a Sixth Amendment deprivation of the

type recognized in Geders is not established unless a court’s no-communication directive

actually prevents the defendant and defense counsel from communicating.” (Emphasis in

original). According to the State, the result is that no presumption of prejudice applies and,

therefore, Mr. Clark’s failure to show prejudice dooms his claim under Strickland.

The State asserts that “a Geders error requires a showing that the directive caused

‘an actual “deprivation” of counsel[,]’ Nelson, 884 F.3d at 1109[,]” such as “‘by

demonstrating that [the defendant] wanted to meet with his attorney but was prevented

- 15 - from doing so by the instruction of the trial judge.’ Stubbs [], 689 F.2d [at] 1207 [].” The

State argues that this is not the same as “requiring the defendant to show prejudice resulting

from a deprivation of the right to counsel, in contravention of Perry,” instead, this requires

a defendant “to show that there was a deprivation of counsel in the first place.” The State

contends that this is the approach “adopted by every federal appellate court to directly

address the issue, including the Third, Fourth, and Eleventh Circuits[,]” as well as by seven

State appellate courts, and rejected only by the District of Columbia Court of Appeals. The

State asserts that, under this standard, Mr. Clark did not show that he was actually deprived

of consultation with his trial counsel, and, therefore, Mr. Clark was not entitled to a

presumption of prejudice.

The State argues that the cases cited by Mr. Clark, with a few exceptions, do not

speak to the “actual deprivation” standard but instead to the general principle that a Geders

violation does not require a showing of prejudice. The State asserts that following the

approach of these courts, and not requiring an objection, “would incentivize defendants

and their counsel not to object to directives that are improper under Geders.” (Emphasis

in original). The State argues that the actual deprivation standard deployed by the

Appellate Court in this case “does not treat a non-objection by counsel as a waiver of the

right to attorney-client consultation” because “the defendant can show that he would have

consulted with counsel but for the trial court’s no-communication directive[.]” According

to the State, Mr. Clark’s contention that this standard would result in the violation of a

defendant’s right to confer privately with counsel is overblown, because normally an

objection is all that is needed to show there was actual deprivation and, in cases lacking an

- 16 - objection, the defendant or counsel can testify to the deprivation. The State contends that,

in the absence of the presumption of prejudice, which it argues does not apply here, Mr.

Clark failed to show prejudice under Strickland, and his postconviction claim therefore

fails.

The State asserts that this Court’s decision in Newton forecloses the possibility that

Mr. Clark was prejudiced by his trial counsel’s failure to preserve the issue for appeal. This

is because, under Newton, the State argues, “it must be presumed that, upon being alerted

to its error, the trial court would have recognized and corrected it[,]” resulting in no issue

on direct appeal. The State asserts that such an approach is appropriate because “any other

rule would transform the Strickland prejudice inquiry into a loophole in the appellate

preservation requirement and the plain-error review standard[.]”

Standard of Review

“In reviewing a trial court’s ruling on a petition for postconviction relief, an

appellate court reviews for clear error the trial court’s findings of fact, and reviews without

deference the trial court’s conclusions of law, including a conclusion as to whether the

petitioner received ineffective assistance of counsel.” Ramirez, 464 Md. at 560, 212 A.3d

at 380 (citation omitted).

The Right to Effective Assistance of Counsel

As a bedrock principle, the Sixth Amendment to the United States Constitution

guarantees a criminal defendant the right to counsel. See U.S. Const. amend. VI. Under

Supreme Court of the United States precedent, “the right to the effective assistance of

counsel is recognized not for its own sake, but because of the effect it has on the ability of

- 17 - the accused to receive a fair trial.” Cronic, 466 U.S. at 658. In Strickland, a federal habeas

corpus case and the seminal case on the standard for attorney performance in a criminal

trial, the Supreme Court reiterated “that the right to counsel is the right to the effective

assistance of counsel.” Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397

U.S. 759, 771 n.14 (1970) (internal quotation marks omitted)). The Supreme Court stated

that the “Government violates the right to effective assistance when it interferes in certain

ways with the ability of counsel to make independent decisions about how to conduct the

defense[,]” and that counsel “can also deprive a defendant of the right to effective

assistance, simply by failing to render ‘adequate legal assistance[.]’” Id. (citations

omitted). The Supreme Court explained that “[i]n certain Sixth Amendment contexts,

prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether

is legally presumed to result in prejudice. So are various kinds of state interference with

counsel’s assistance.” Id. at 692 (citing Cronic, 466 U.S. at 659 & n.25). The Supreme

Court stated that “[p]rejudice in these circumstances is so likely that case-by-case inquiry

into prejudice is not worth the cost.” Id. (citing Cronic, 466 U.S. at 658).

In addition, the Supreme Court held that, “though more limited,” a presumption of

prejudice is warranted when counsel is burdened by an actual conflict of interest. Id. “In

those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of

counsel’s duties.” Id. The Supreme Court explained that, where an ineffective assistance

of counsel claim is based on an alleged conflict of interest, “the rule is not quite the per se

rule of prejudice that exists for the Sixth Amendment claims” based on an actual or

constructive denial of the assistance of counsel and certain types of State interference. Id.

- 18 - Rather, where an alleged conflict of interest is concerned, “[p]rejudice is presumed only if

the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that

‘an actual conflict of interest adversely affected [the defendant’s] lawyer’s performance.’”

Id. (citation omitted).

With respect to an actual or constructive denial of the assistance of counsel and

certain kinds of State interference, no affirmative showing or demonstration by the

defendant is required; rather, there is a per se rule of prejudice. See id. Under Strickland,

the actual or constructive denial of the assistance of counsel and the government’s

interference with assistance of counsel in certain instances are not treated differently—

instead, they are both entitled to a “per se” presumption of prejudice without a showing by

a defendant. Id.

Geders and Perry

Prior to Strickland, in Geders, 425 U.S. at 91, the Supreme Court considered on

direct appeal whether a trial court’s order directing petitioner not to consult with his

attorney during an overnight court recess, called between petitioner’s direct-examination

and cross-examination, violated petitioner’s Sixth Amendment right to the assistance of

counsel. The Supreme Court held that the trial court’s “order preventing petitioner from

consulting his counsel ‘about anything’ during a 17-hour overnight recess between his

direct- and cross-examination impinged upon his right to the assistance of counsel

guaranteed by the Sixth Amendment.” Id. Even though defense counsel had objected to

the order and indicated that a defendant and counsel should not be precluded from speaking

during an overnight recess, see id. at 82, the Supreme Court reversed the Fifth Circuit’s

- 19 - decision holding “that petitioner’s failure to claim any prejudice resulting from his inability

to consult with counsel during one evening of the trial was fatal to his appeal.” Id. at 86,

92; see also Perry, 488 U.S. at 279. The Supreme Court concluded that such an order

deprives the defendant of the “guiding hand of counsel” at a critical point in the proceeding.

Geders, 425 U.S. at 89 (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).

The Supreme Court’s holding in Geders teaches that it is the length and scope of the

no-communication order, not the defendant’s request or demonstrated desire for counsel,

that determines whether there has been a violation of the defendant’s Sixth Amendment

right to counsel. In Geders, id. at 88, the Supreme Court explained that overnight recesses

are important opportunities for a defendant and counsel to converse, share information, and

make decisions, which is critical to the right to counsel and the right to be heard “because

ordinarily a defendant is ill-equipped to understand and deal with the trial process without

a lawyer’s guidance.” The Court characterized the no-communication order as “a sustained

barrier to communication between a defendant and his lawyer[.]” Id. at 91. The Court

concluded that “[t]he challenged order prevented petitioner from consulting his attorney

during a 17-hour overnight recess, when an accused would normally confer with counsel.”

Id.

In Geders, id. at 92, the Supreme Court reversed the judgment of the Fifth Circuit,

which had denied the claim of a constitutional violation in the case because it could

“discern no actual harm . . . and [was] convinced that there was none[.]” United States v.

Fink, 502 F.2d 1, 9, (5th Cir. 1974), rev’d sub nom. Geders, 425 U.S. 80 (quoting United

States v. Leighton, 386 F.2d 822, 823 (2d Cir. 1967)) (ellipsis in original) (internal

- 20 - quotation marks omitted). The Fifth Circuit based its conclusion on the reasoning of the

Second Circuit, which had rejected the claim that a no-communication order was a

“violation of [a defendant’s] right to counsel” because “[a]t no time during, before, or after

the recess,[5] did either [the defendant] or his attorney indicate that they did in fact have

something to discuss which might have affected [the defendant]’s testimony or course of

action.” Fink, 502 F.2d at 9 (quoting Leighton, 386 F.2d at 823). In Geders, 425 U.S. at

86, 92, in reversing the Fifth Circuit, the Supreme Court characterized the Fifth Circuit as

having held in Fink, in reliance on Leighton, “that petitioner’s failure to claim any

prejudice resulting from his inability to consult with counsel during one evening of the trial

was fatal to his appeal.”

The Supreme Court referenced the conclusions of other courts “that an order

preventing a defendant from consulting his attorney during an overnight recess infringes

upon this substantial right”: United States v. Venuto, 182 F.2d 519 (3d Cir. 1950); People

v. Noble, 248 N.E.2d 96 (Ill. 1969); and Commonwealth v. Werner, 214 A.2d 276 (Pa.

Super. Ct. 1965). Geders, 425 U.S. at 89. Nothing in the Third Circuit’s Venuto opinion

indicates whether the defendant and counsel expressed a desire to consult overnight,

whereas the Supreme Court of Illinois’s decision in Noble, 248 N.E.2d at 99, related that

5 The recess at issue in Leighton was an “eighty-five minute luncheon recess” between the defendant’s direct- and cross-examination, Leighton, 386 F.2d at 823, which could place the no-communication order within the bounds of the Constitution per Perry, 488 U.S. at 280. In Geders, the Supreme Court distinguished Leighton based on the difference in the nature of the recess, making it “a matter we emphasize is not before us in this case.” Geders, 425 U.S. at 89 n.2 (citations omitted). The concurring opinion saw no reason to exclude shorter recesses from the rule set forth in the majority opinion. See Geders, 425 U.S. at 92 (Marshall, J., concurring).

- 21 - defense counsel “needed to discuss certain matters with defendant before the following

day.”6 In Werner, 214 A.2d at 277, the Pennsylvania appellate court held unconstitutional

an overnight no-communication order, requiring reversal even though the order limited

only consultation regarding the defendant’s testimony and defense counsel sought only to

be able to ask defendant “if there are any other witnesses he wants me to call” and otherwise

consented to the order. In all of these direct appeal cases, the courts rejected the argument

that the defendant had to show prejudice from the denial of access to counsel. See Venuto,

182 F.2d at 522; Noble, 248 N.E.2d at 100; Werner, 214 A.2d at 278.

After Geders, in Perry, 488 U.S. at 276-77, the Supreme Court expressly addressed,

in a habeas corpus case, the question of whether a demonstration of prejudice is necessary

to establish a violation of the Sixth Amendment right to counsel and set aside a conviction

based on a trial court’s no-communication order, or whether prejudice is presumed. The

petitioner sought a federal writ of habeas corpus after the Supreme Court of South Carolina

upheld his conviction despite the trial judge’s instruction that he not speak to his attorney

during a brief unexpected 15-minute break at the end of his direct-examination.7 See Perry,

488 U.S. at 274-75. The federal district court held that the defendant had a right to counsel

during the brief recess and that “he need not demonstrate prejudice from the denial of that

6 In later cases, both the Third Circuit and the Supreme Court of Illinois would adopt the “actual deprivation” rule. See Bailey, 657 F.2d at 23-24; People v. Brooks, 505 N.E.2d 336, 340-41 (Ill. 1987). 7 According to Perry, 488 U.S. at 274, the State trial court declared a 15-minute recess and ordered that the defendant not be allowed to talk with anyone during the break, including his lawyer. After the recess, the attorney requested a mistrial due to the no- communication order, which the State trial court denied. See id.

- 22 - right in order to have his conviction set aside.” Id. at 276 (citations omitted).

The Fourth Circuit, sitting en banc, reversed, relying on Cronic and Strickland, and

held “that trial errors of this kind do not pose such a fundamental threat to a fair trial that

reversal of a conviction should be automatic.” Perry, 488 U.S. at 276. Using a prejudice

analysis, the Fourth Circuit concluded that the evidence against the defendant was

overwhelming and “that there was no basis for believing that his performance on cross-

examination would have been different had he been given an opportunity to confer with

his lawyer during the brief recess.” Id.

In Perry, id. at 280, the Supreme Court of the United States held that a defendant

does not have “a constitutional right to confer with his attorney during [a] 15-minute break

in his testimony[.]” Significantly, though, as part of its rejection of the Fourth Circuit’s

reasoning, the Supreme Court held “that a showing of prejudice is not an essential

component of a violation of the rule announced in Geders.” Perry, 488 U.S. at 278-80.

The Supreme Court stated that, contrary to the Fourth Circuit’s conclusion, Strickland had

not modified the Geders rule to require a showing of prejudice to the defendant, but rather

had made clear that “‘[a]ctual or constructive denial of the assistance of counsel altogether’

is not subject to the kind of prejudice analysis that is appropriate in determining whether

the quality of a lawyer’s performance itself has been constitutionally ineffective.” Perry,

488 U.S. at 280 (quoting Strickland, 466 U.S. at 692) (alteration in original) (citations

omitted). The Supreme Court did not accept the Fourth Circuit’s rationale that “trial errors

of this kind do not pose such a fundamental threat to a fair trial that reversal of a conviction

should be automatic” and that the trial outcome would have been no different without the

- 23 - error. Id. at 280, 276.

Nonetheless, the Supreme Court affirmed the Fourth Circuit’s decision, explaining

that a judge’s instruction that a defendant may not “confer with his attorney during [a] 15-

minute break in his testimony” is not a constitutional violation. Perry, 488 U.S. at 280,

285. This is because a defendant does not have a “constitutional right to discuss []

testimony while it is in process” and would be unlikely to discuss anything other than the

testimony during such a brief recess. Id. at 283-84. A bar on attorney-client

communication during such a short break does not implicate

the normal consultation between attorney and client that occurs during an overnight recess [] encompass[ing] matters that go beyond the content of the defendant’s own testimony—matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.

Id. at 284. The difference between Geders and Perry, the Supreme Court explained, was

that in the context of a long recess, “the defendant’s right to unrestricted access to his

lawyer for advice on a variety of trial-related matters” controls, whereas in a short recess

nothing other than the testimony itself would likely be discussed. Perry, 488 U.S. at 284.

The Presumption of Prejudice

The actual denial of the assistance of counsel is one of the limited distinct

circumstances that the Supreme Court of the United States and this Court have consistently

recognized as resulting in a presumption of prejudice under Strickland in determining

whether trial counsel has rendered ineffective assistance of counsel in postconviction cases.

In accord with Supreme Court of the United States precedent, this Court has stated that,

in assessing a petitioner’s allegation of ineffective assistance of counsel, a

- 24 - court should presume that trial counsel’s performance prejudiced the petitioner only if: (1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s counsel had an actual conflict of interest.

Ramirez, 464 Md. at 572-73, 212 A.3d at 387.

In Ramirez, id. at 539-41, 212 A.3d at 368, this Court considered an ineffective

assistance claim based on trial counsel’s failure to strike a potentially biased juror who

during voir dire stated that his past experience as a crime victim would likely affect his

ability to render a fair and impartial verdict. We determined that the defendant proved

deficient performance based on trial counsel mistakenly moving to strike for cause another

juror rather than the one who had expressed possible bias. See id. at 568-69, 212 A.3d at

385. Despite trial counsel’s deficient performance, we concluded that the petitioner needed

to prove prejudice, because trial counsel’s failure to move to strike a juror was not one of

the narrow circumstances in which prejudice is presumed. See id. at 573, 212 A.3d at 388.

We determined that the petitioner’s allegation of structural error, even if valid, did not

relieve him “of the obligation to prove prejudice[,]” and that he failed to do so. Id. at 573,

577, 212 A.3d at 388, 390.

In Ramirez, id. at 539, 574, 212 A.3d at 367, 388, we stated that the actual denial of

the assistance of counsel is one of a select few “circumstances under which ‘a presumption

of prejudice is appropriate[,]’ which obviates the need for ‘inquiry into the [] conduct of

the trial.’” (Quoting Cronic, 466 U.S. at 660) (alterations in original). In accord with

Supreme Court of the United States precedent, in dicta, we described the actual denial of

the assistance of counsel as occurring “where ‘counsel was either totally absent, or

- 25 - prevented from assisting the [petitioner] during a critical stage of the proceeding.’” Id. at

574, 212 A.3d at 388 (quoting Cronic, 466 U.S. at 659 n.25) (alteration in original).8 We

did not hold that a defendant is required to prove that the defendant wanted to communicate

with counsel, or prove anything at all, to demonstrate that counsel was prevented from

rendering assistance during a critical stage of the proceeding.9 See Ramirez, 464 Md. at

572-73, 212 A.3d at 387. Rather, we reiterated the holding of long-standing case law of

the Supreme Court of the United States that the actual denial of the assistance of counsel

is one of three limited circumstances in which there is no need for an inquiry as to prejudice.

See id. at 572-73, 212 A.3d at 387.

The Supreme Court of the United States has stated that such “circumstances [] are

so likely to prejudice the accused that the cost of litigating their effect in a particular case

is unjustified.” Cronic, 466 U.S. at 658 (footnote omitted). Put differently, “the likelihood

that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens

v. Taylor, 535 U.S. 162, 166 (2002) (citations omitted). “Violations of the rule against

8 Courts have described the second form of the denial of the assistance of counsel, constructive denial, as when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” or when, despite counsel’s availability “to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate[.]” Cronic, 466 U.S. at 659-60. 9 In Ramirez, 464 Md. at 574, 212 A.3d at 388, the description of the actual denial of the assistance of counsel appeared in a paragraph of the opinion describing Supreme Court case law setting forth the three circumstances under which the presumption of prejudice applies. With this statement, this Court did no more than quote existing Supreme Court case law. The resolution of the issue before the Court—whether prejudice should be presumed for trial counsel’s deficient performance during voir dire—did not turn on the description of the actual denial of the assistance of counsel quoted from Supreme Court case law.

- 26 - flatly prohibiting consultation between a criminal defendant and his lawyer during a

substantial recess are treated as complete denials of counsel (even though they are of

limited duration), and so require reversal even if no prejudice is shown.” United States v.

Santos, 201 F.3d 953, 966 (7th Cir. 2000) (citations omitted).

In Ramirez, 464 Md. at 561, 212 A.3d at 380, this Court made clear that, as to a

claim of ineffective assistance that does not fall within one of the three presumed prejudice

exceptions, the petitioner has the burden to establish “that the deficient performance

prejudiced the defense.” (Quoting Strickland, 466 U.S. at 687). Prejudice in this context

means “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different[,]” which we have clarified means a “substantial

or significant possibility that the verdict . . . would have been affected.” Id. at 561, 212

A.3d at 380-81 (quoting Strickland, 466 U.S. at 694; Syed, 463 Md. at 86-87, 204 A.3d at

154) (ellipsis in original) (internal quotation marks omitted).

This Court has not permitted an encroachment on the three circumstances under

which prejudice is presumed post-conviction. We have held that the requirement to show

prejudice may apply where a postconviction petitioner alleges structural errors, but only so

long as the error is not within one of the three presumption of prejudice exceptions. See

id. at 575, 212 A.3d at 389. For instance, no presumption of prejudice applies when a

postconviction petitioner challenges trial counsel’s failure to invoke the “automatic right

to remove the case to another county[,]” oppose “the presence of an alternate juror during

deliberations[,]” or object to a “public-trial right violation.” Id. at 565-66, 212 A.3d at 382-

83 (cleaned up). This is so because, although “[t]he purpose of the structural error doctrine

- 27 - is to ensure insistence on certain basic, constitutional guarantees that should define the

framework of any criminal trial[,]” in some instances, “the reasons an error is deemed

structural may influence the proper standard used to evaluate an ineffective-assistance

claim premised on the failure to object to that error.” Weaver, 582 U.S. at 294-95.

Therefore, aside from an error falling within the three presumption of prejudice categories,

a structural error that may warrant automatic reversal on direct appeal can be held to a

higher standard and require a showing of prejudice when it is alleged in postconviction

proceedings based on ineffective assistance of counsel. See id. at 302. As we explained

in Ramirez, 464 Md. at 577, 212 A.2d at 390, this distinction is not accurate for cases

involving “any of the circumstances under which the presumption of prejudice applies[,]”

such as “[a]ctual or constructive denial of the assistance of counsel[.]” (Quoting

Strickland, 466 U.S. at 692) (first alteration in original).

“Actual Denial” vs. “Actual Deprivation”

In contrast to this Court’s longstanding case law concerning the applicability of the

presumption of prejudice where a defendant was actually or constructively denied the

assistance of counsel, some courts have applied a standard indicating that the presumption

of prejudice is available with respect to an unobjected-to no-communication order only for

those petitioners who can prove that they desired to speak with their counsel but were

prevented from doing so by the trial court’s no-communication order. See, e.g., Bailey,

657 F.2d at 23-24 (habeas corpus case involving unobjected-to order); Nelson, 884 F.3d at

1109 (direct appeal involving unobjected-to order); People v. Brooks, 505 N.E.2d 336,

340-41 (Ill. 1987), abrogated on other grounds by People v. R.D., 613 N.E.2d 706 (Ill.

- 28 - 1993) (direct appeal involving unobjected-to order).10 Consistent with this Court’s case

law, however, other courts have treated a lengthy or overnight unobjected-to no-

communication order itself as a denial of the assistance of counsel, without requiring a

showing of an intent by the defendant or counsel to speak with each other but for the order.

See, e.g., United States v. Torres, 997 F.3d 624, 627 (5th Cir. 2021) (direct appeal

involving unobjected-to order); Martin, 991 A.2d at 795 (same); see also Mastracchio v.

Houle, 416 A.2d 116, 117, 122 (R.I. 1980) (postconviction case involving objected-to order

where defense counsel moved to be allowed to speak with defendant during weekend-long

recess but advised that he did not at the time anticipate needing to do so). The latter

approach, which is undeniably consistent with the Sixth Amendment right to counsel, the

Maryland Declaration of Rights, and case law of the Supreme Court of the United States

and this Court, is the approach that, absent an exception to the principle of stare decisis,

we must follow.

Specifically, various courts have concluded that a lengthy no-communication

instruction itself deprives the defendant of the assistance of counsel. See Mastracchio, 416

A.2d at 122 (holding in a postconviction context “that applicant was deprived of his Sixth

Amendment right to counsel during his trial by virtue of the order that he not consult with

counsel during the weekend recess”). This conclusion results from the Supreme Court’s

holding in Geders, in that it “reversed without pausing to inquire as to prejudice,” and was

10 Bailey, a habeas corpus case, appears to be the genesis of this approach. See, e.g., Brooks, 505 N.E.2d at 340-41; Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th Cir. 1986) (en banc), abrogated on other grounds by Perry, 488 U.S. 272; Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982).

- 29 - “persuaded that foreclosing consultation with counsel inevitably impairs the effective

assistance of counsel when the prohibition extends over as long a period as an overnight

recess.” United States v. DiLapi, 651 F.2d 140, 148 (2d Cir. 1981).

The difference in the two approaches is not one of semantics. Under an “actual-

deprivation” approach, as “a condition precedent” to a Sixth Amendment violation, there

must be “a demonstration, from the trial record,” that the defendant desired to confer with

counsel or that counsel desired to confer with the defendant but was “precluded from doing

so by the [trial] court.” Nelson, 884 F.3d at 1109. Courts following the above approach

characterize this demonstration as a distinct question that must be answered separate from

any prejudice to the defendant from a no-communication order. See Bailey, 657 F.2d at

24. An objection to the no-communication order is considered a way to show an actual

deprivation, but a defendant could also rely on other evidence to show it. See Nelson, 884

F.3d at 1109-10.

To be sure, some dictionary definitions of “denial” and “deprivation” may be similar

or even synonymous.11 But case law has not treated “actual denial” and “actual

11 The dictionary definitions of “denial” include a “refusal to satisfy a request or desire[,]” or “refusal to grant or allow something[.]” Denial, Merriam-Webster (2023), https://www.merriam-webster.com/dictionary/denial [https://perma.cc/DA94-8NXA]; see also Denial, Oxford English Dictionary (2023), https://www.oed.com/search/dictionary/ ?scope=Entries&q=denial [https://perma.cc/B6YQ-28XT] (“The act of saying ‘no’ to a request or to a person who makes a request; refusal of anything asked for or desired.”). The relevant definitions of “deprivation” are “the state of being kept from [] enjoying[] or using something” or “an act or instance of withholding or taking something away from someone or something[.]” Deprivation, Merriam-Webster (2023), https://www.merriam- webster.com/dictionary/deprivation [https://perma.cc/PA4R-3R39]; see also Deprivation, The Britannica Dictionary (2023), https://www.britannica.com/dictionary/deprivation

- 30 - deprivation” as the same. Courts using the actual deprivation standard have required a

substantive showing or demonstration of a defendant’s desire or need to speak with counsel

as a condition precedent to finding prejudice. Those courts have sometimes described this

requirement as an issue of deprivation rather than a denial of the assistance of counsel.

See, e.g., Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (en banc),

abrogated on other grounds by Perry, 488 U.S. 272; Stubbs, 689 F.2d at 1207. The actual

denial standard as used by this Court and the Supreme Court in Geders, Strickland, and

Perry does not require that the defendant make a demonstration or showing of a desire or

need to consult with counsel but rather is based on the scope and duration of the preclusion

of access to counsel. So, although the dictionary definitions of the words denial and

deprivation may be similar or the same, case law has treated the terms denial and

deprivation differently.

Like the Supreme Court of the United States, this Court has never held in any

context that the right to counsel in a criminal trial depends on a request by the defendant.

We have consistently stated in our postconviction case law that the actual denial and

constructive denial of the assistance of counsel are two of three narrow grounds under

which prejudice is presumed, and we have never required a demonstration or showing by

a petitioner as a condition precedent to the presumption of prejudice due to an actual or

constructive denial of the assistance of counsel. See Ramirez, 464 Md. at 572-73, 212 A.3d

at 387.

[https://perma.cc/DQE9-KG2N] (“[T]he state of not having something that people need[,] the state of being deprived of something[.]”).

- 31 - In fact, the Supreme Court of the United States has stated that, “[t]o preserve the

protection of the Bill of Rights for hard-pressed defendants, [] every reasonable

presumption against the waiver of fundamental rights[ is indulged].” Glasser v. United

States, 315 U.S. 60, 70 (1942). A waiver of the right to counsel is not valid unless it is “an

intentional relinquishment or abandonment of a known right or privilege.” Johnson v.

Zerbst, 304 U.S. 458, 464 (1938). The Supreme Court has explained that the burden is on

the State to prove such intentional relinquishment, as has been “reiterated in many cases[,]”

and “the right to counsel does not depend upon a request by the defendant.” Brewer v.

Williams, 430 U.S. 387, 404 (1977). Similarly, this Court has required a knowing and

intelligent waiver even when a defendant explicitly consents to defense counsel’s absence

during a critical stage of trial. See State v. Wischhusen, 342 Md. 530, 540, 677 A.2d 595,

600 (1996).

Weaver: Structural Error and Ineffective Assistance of Counsel

In Weaver, 582 U.S. at 300-01, the Supreme Court held that a violation of the

constitutional right to a public trial, which on direct appeal would result in automatic

reversal without inquiry into prejudice, is not entitled to a presumption of prejudice when

it is raised in an ineffective assistance of counsel challenge. The Court’s decision

necessitated applying two “intertwined” doctrines, structural error and ineffective

assistance of counsel, because “the reasons an error is deemed structural may influence the

proper standard used to evaluate an ineffective-assistance claim premised on the failure to

object to that error.” Id. at 294.

The Supreme Court described structural errors as those that “should not be deemed

- 32 - harmless beyond a reasonable doubt” in order “to ensure insistence on certain basic,

constitutional guarantees that should define the framework of any criminal trial.” Id. at

294-95 (citation omitted). The Court outlined “three broad rationales” that lead to an error

being structural: the right at issue serves an interest other than protecting against erroneous

conviction; “the effects of the error are simply too hard to measure”; and “the error always

results in fundamental unfairness.” Id. at 295-96. The Court determined that, “while the

public-trial right is important for fundamental reasons, in some cases an unlawful closure

might take place and yet the trial still will be fundamentally fair from the defendant’s

standpoint.” See id. at 299. The Court discussed the requirement that an ineffective

assistance of counsel challenge must normally meet the Strickland requirements of

deficient performance and prejudice, and that “the ultimate inquiry must concentrate on

‘the fundamental fairness of the proceeding.’” Weaver, 582 U.S. at 299-300 (citation

omitted). The Court concluded that no presumption of prejudice applied because “not

every public-trial violation will in fact lead to a fundamentally unfair trial”; nor would “the

failure to object to a public-trial violation always deprive[] the defendant of a reasonable

probability of a different outcome.” Id. at 300-01. But the Court was careful to caution

that its reasoning and holding did not call “into question the Court’s precedents determining

that certain errors are deemed structural and require reversal because they cause

fundamental unfairness, either to the defendant in the specific case or by pervasive

undermining of the systemic requirements of a fair and open judicial process.” Id. at 301

(citation omitted).

- 33 - Additional Maryland Case Law

In addition to having done so in Ramirez, in other cases, this Court has described

the narrow exceptions under which prejudice is presumed for Strickland purposes. In

Bowers v. State, 320 Md. 416, 423, 425, 578 A.2d 734, 737-38 (1990), a postconviction

case, we stated that, in Perry, the Supreme Court revisited Strickland, and that “situations

in which prejudice is presumed” include “actual or constructive denial of counsel[.]” In

Redman v. State, 363 Md. 298, 310-11, 768 A.2d 656, 663 (2001), also a postconviction

case, this Court stated that “[t]he Supreme Court fashioned an exception to the Strickland

prejudice prong” in Cronic with the presumption of prejudice applying where there is an

actual or constructive denial of the assistance of counsel.

In Walker v. State, 391 Md. 233, 246-47, 892 A.2d 547, 554-55 (2006), another

postconviction case, we described the presumption of prejudice as applying “where the

accused was completely denied counsel . . . includ[ing] [] when counsel was either totally

absent, or prevented from assisting the accused during a critical stage of the proceeding[,]”

where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial

testing[,]” and “where the accused faces circumstances in which it is not likely that any

attorney could provide effective assistance.” (Cleaned up). This Court has never held that,

to establish that counsel was prevented from rendering assistance during a critical stage of

the proceedings, a defendant is required to demonstrate that the defendant wanted to, or

would have taken advantage of the opportunity to, speak with counsel. Instead, adhering

to the approach taken by the Supreme Court of the United States, in postconviction and

direct appeal cases, this Court has evaluated based on the facts of the case whether “counsel

- 34 - was either totally absent, or prevented from assisting the accused[.]” Id. at 246-47, 892

A.2d at 555 (quoting Cronic, 466 U.S. at 659 n.25).

In Walker, id. at 244, 892 A.2d at 553, this Court upheld the denial of a petition for

postconviction relief where the petitioner argued “that because his defense counsel did not

participate at trial, he was denied effective assistance of counsel[.]” We disagreed with the

petitioner’s contention that, “because his trial counsel, although present in the courtroom,

failed to subject the State’s case against [him] to ‘meaningful adversarial testing,’” a

presumption of prejudice was warranted under Cronic. Walker, 391 Md. at 247, 892 A.2d

at 555. The petitioner had left the State prior to trial but after counsel had been appointed

to represent him, and the petitioner was tried in absentia, with defense counsel strenuously

objecting to the proceeding as unconstitutional but otherwise generally not participating in

the trial because he believed that the petitioner would not want him to do so. Id. at 238-

41, 892 A.2d at 549-51.

We concluded that there was no presumption of prejudice because we read Cronic’s

exception as very narrow, meaning that defense counsel’s “failure must be complete[,]”

which it was not in petitioner’s case. Walker, 391 Md. at 247, 892 A.2d at 555 (quoting

Florida v. Nixon, 543 U.S. 175, 190 (2004)) (internal quotation marks omitted). We did

not discuss any requirement that for the presumption of prejudice to apply the defendant

must demonstrate that he actually desired or needed to confer with counsel or sought to

have counsel ask questions or present arguments that counsel did not.

Case Law of Courts in Other Jurisdictions

In Bailey, 657 F.2d at 23-24, a case that predated Strickland, the Third Circuit

- 35 - affirmed the denial of petitioner’s habeas corpus claim based on a no-communication order,

“based not on appellant’s failure to prove the exact ‘prejudice’ caused by his inability to

meet with counsel; rather, . . . based on his failure to demonstrate that he was actually

‘deprived’ of his right to consult with his attorney.” Before an overnight recess during

cross-examination of the petitioner, the trial court ordered him not to discuss his testimony

with anybody, including his lawyer, but defense counsel did not object.12 See Bailey, 657

F.2d at 22-23. The Third Circuit distinguished Geders and its own precedent, Venuto, 182

F.2d 519, because in those cases “there was an indication that absent the court’s instruction,

the defendant would have met with his counsel” and because “[t]he defendants’ attorneys

in both of these cases argued vigorously at the time of the imposition of the restriction that

the trial court’s instruction was improper and violated their clients’ rights to consult with

counsel.” Bailey, 657 F.2d at 23-24 & n.4 (cleaned up). In contrast, in Bailey, the Third

Circuit concluded that the petitioner “did not question or object to the court’s instruction

[]or . . . present[] evidence to corroborate his assertion that he failed to do so because of

the ‘chilling’ effect of the court’s admonition.” Id. at 24 (footnote omitted). On this last

point, the Third Circuit discounted “an affidavit signed by the appellant almost five years

after his conviction, and following the D.C. Court of Appeals decision in Jackson” 13 as

12 The order came in the third week of a four-week trial. See Bailey, 657 F.2d at 22. In addition to the lack of objection to the order, the petitioner did not raise the issue on direct appeal. See id. at 23. 13 In Jackson v. United States, 420 A.2d 1202, 1203, 1205 & n.8 (D.C. 1979) (en banc), the District of Columbia Court of Appeals reversed a conviction due to an order prohibiting the defendant from discussing his testimony or anything else with anyone over a lunch recess, despite counsel’s failure to object, on the basis of plain error, and established

- 36 - insufficient. Bailey, 657 F.2d at 24 n.5.

The Third Circuit elaborated on the distinction between prejudice and the

requirement of showing deprivation of consultation with counsel:

“Prejudice” is the effect that restricting communication may have on a defendant’s trial; that is, how, if at all, the defendant’s trial strategy was affected by the deprivation of his right to consult with counsel. We do not require a defendant to demonstrate the “prejudice” to his case because we do not want to infringe on the confidentiality of attorney-client communications. See Venuto, 182 F.2d at 522. However, a defendant need not disclose confidential information in order to prove that he has been “deprived” of an opportunity to meet with counsel. To show a “deprivation” of his sixth amendment rights, a defendant must merely demonstrate that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction.

The distinction between the “deprivation” of a right and the “prejudice” that may result therefrom is not a new one. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court held that the mere possibility that a defendant’s attorney may have a conflict of interest is insufficient to demonstrate a deprivation of the defendant’s sixth amendment rights. Only an actual conflict of interest would establish such a violation. The Court carefully noted that its requirement that a defendant show an actual conflict does not constitute a requirement that the defendant demonstrate prejudice. Id. at 349-50, 100 S.Ct. at 1718-1719. A showing that one has been “deprived” of his right to effective counsel is a predicate to relief; a showing of “prejudice” is not.

Bailey, 657 F.2d at 24 (cleaned up).14

a per se rule that such orders are violations of the Sixth Amendment right to assistance of counsel. The Court of Appeals concluded that an objection is not necessary to establish a violation because of the fundamental nature of the right to counsel and because defense counsel might be reluctant to object to a trial judge’s order in front of the jury. See id. at 1205 & n.7. 14 In Nelson, 884 F.3d at 1104, the Eleventh Circuit considered a challenge to a conviction where, “just before an overnight recess that occurred while [the defendant] was on the stand, the court granted his lawyer’s request to speak to him ‘about matters other than his testimony.’” On direct appeal, the defendant challenged the trial court’s action as

- 37 - In contrast, in Martin, 991 A.2d at 793, the District of Columbia Court of Appeals

held, on direct appeal, that a trial judge’s order that the defendant not speak with anyone

over a weekend-long recess that interrupted his cross-examination constituted reversible

error even though defense counsel did not object or otherwise address the order. The

District of Columbia Court of Appeals observed that, in Geders and Perry, the Supreme

Court held “that an order prohibiting a defendant from conferring with his counsel during

an overnight (or other significant) interruption of his testimony is a denial of the

defendant’s Sixth Amendment right to counsel that requires reversal without any showing

of prejudice.” Martin, 991 A.2d at 793 (footnote omitted). The District of Columbia Court

of Appeals noted that, under its precedent, “an unconstitutional prohibition on a testifying

defendant’s communication with his attorney during a recess is reversible error ‘regardless

of whether prejudice was demonstrated, and despite [the defendant’s] failure to remonstrate

against the court’s order.’” Martin, 991 A.2d at 793-94 (alteration in original) (footnote

omitted). The District of Columbia Court of Appeals concluded that, because the

“deprivation of counsel’s assistance is presumptively prejudicial” and violates a

“transcendent” right under Jackson, the plain error standard applies. Martin, 991 A.2d at

794 (internal quotation marks omitted).

The District of Columbia Court of Appeals was unconvinced by the government’s

error under Geders, asserting that he should have been allowed to speak about any topic with his lawyer. See Nelson, 884 F.3d at 1106. The Eleventh Circuit reasoned that, “because the trial record doesn’t indicate that either [the defendant] or his lawyer had any intention or desire to discuss his testimony during the recess, [the defendant] can’t show that he was actually deprived of his right to counsel” under Eleventh Circuit precedent. Id. at 1107.

- 38 - argument that the defendant had to demonstrate “deprivation of his Sixth Amendment

rights” with a showing “that he wanted to meet with counsel, but was prevented from doing

so by the court’s instruction.” Id. at 795 (cleaned up). The District of Columbia Court of

Appeals concluded that this framing was incorrect because, under Geders, Perry, and

Jackson, the order itself was erroneous, so the government was effectively arguing that

“the constitutional error was innocuous in the absence of evidence affirmatively showing

that appellant actually wanted to confer with his attorney (or vice versa).” Martin, 991

A.2d at 795. That argument was foreclosed by Jackson, the District of Columbia Court of

Appeals concluded, which “found plain error requiring reversal on a record devoid of

evidence that appellant ‘actually’ wanted to exercise his Sixth Amendment rights.” Martin,

991 A.2d at 795 (footnote omitted). In any case, the District of Columbia Court of Appeals

determined that the government’s reasoning was flawed:

In essence, the government is arguing that appellant waived his Sixth Amendment right to the assistance of counsel by his failure to assert it—in other words, by his silence—when the trial judge erroneously undertook to curtail his exercise of the right. But “a valid waiver [of Sixth Amendment rights] cannot be presumed from a silent record.” For a waiver of the right to counsel to be valid, it must be “an intentional relinquishment or abandonment of a known right or privilege.” As the Supreme Court has emphasized, “the right to counsel does not depend upon a request by the defendant, and ... courts indulge in every reasonable presumption against waiver.” Thus, the burden is on the government to establish a valid waiver in this case, not on appellant to disprove it.

The government has not carried that burden in this case. The basic defect in its position is that the requisite knowledge and intent to support a finding of waiver cannot be inferred from the mere fact that appellant and defense counsel failed to object to the court’s sequestration order. As noted above, sequestration orders are appropriate when directed at ordinary witnesses; for aught that appears in the record, appellant and counsel (like the judge and the prosecutor) mistakenly believed them to be appropriate

- 39 - when directed at testifying defendants too. Ignorance of one’s rights is not to be equated with a valid waiver.

Id. at 795-96 (alteration, ellipsis, and emphasis in original) (footnotes omitted).

And, in Mastracchio, 416 A.2d at 117, the Supreme Court of Rhode Island

considered a defendant’s postconviction challenge to being “forbidden by the trial justice

to talk with his counsel concerning any matter relating to the case during a weekend recess

in the trial.” When the trial court “admonished applicant not to discuss the case with his

attorney during the weekend recess[,]” defense counsel asked the court that he “be allowed

* * * to talk to the Defendant not about any of his testimony[,]” but about “anything else[,]”

although he did not “anticipate anything” at the time. Id. (ellipsis in original). Defense

counsel stated that he wanted to be able to discuss anything “which may become relevant

over the weekend.” Id. The trial court denied the defendant’s request and defense counsel

noted an exception, but it “was neither briefed nor argued on direct review.” Id. at 117-18.

The Supreme Court of Rhode Island held that the defendant “was deprived of his Sixth

Amendment right to counsel during his trial by virtue of the order that he not consult with

counsel during the weekend recess” and had not waived the challenge. Id. at 122. The

Supreme Court of Rhode Island declined to follow a Fourth Circuit opinion’s reasoning

“that the reliability of the factfinding process was but slightly impaired by forbidding

consultation between lawyer and defendant during an overnight recess[,]” and anchored its

holding in the Supreme Court of the United States’s “high regard [] for the right to counsel

and the presumed adverse effect of its denial upon the integrity of the factfinding

- 40 - process[.]” Id.15

Application of the Principles Above to this Case

The Sixth Amendment Right to Counsel

After a careful review of the authorities above, we decline to adopt an “actual

deprivation” standard which would require that, where a trial court issues a no-

communication order between a defendant and trial counsel during trial and counsel fails

to object, a postconviction petitioner must prove that the petitioner would have actually

spoken with counsel in order to establish the actual denial of the assistance of counsel and

therefore be entitled to a presumption of prejudice under Strickland. Such an approach is

inconsistent with the Sixth Amendment to the United States Constitution, Articles 21 and

24 of the Maryland Declaration of Rights, the Supreme Court of the United States’s

holdings in Strickland, Geders, and Perry, and this Court’s case law.

The “actual deprivation” standard conflicts with the right to counsel guaranteed by

the Sixth Amendment. The right to counsel is automatic; a suggestion that it is available

only to those defendants who prove they actually need the assistance of counsel

countermands this fundamental constitutional guarantee. Yet, this is essentially what the

15 In Torres, 997 F.3d at 627, the Fifth Circuit held that a trial court’s prohibition on the defendant “from speaking with his counsel during a 13-hour overnight recess declared in the middle of his direct examination, right before the end of the trial the next day” fell “squarely within the Geders rule[.]” After the trial court instructed the defendant not to speak with anyone, “not even” counsel, about his testimony, defense counsel asked: “I’m not sure, did you just say I cannot talk to my client?”, and the court responded in the affirmative, to which counsel responded simply: “Thank you.” Torres, 997 F.3d at 626. As the case was on direct appeal and defense counsel had made no objection, the Fifth Circuit reviewed the order for plain error, and focused on whether it affected any “substantial rights.” Id. at 628.

- 41 - “actual deprivation” standard requires. It is a fundamental principle that a criminal

defendant does not have to prove that the defendant will utilize a lawyer to benefit from

the Sixth Amendment right at a critical stage of a criminal proceeding. This principle must

not be disregarded in favor of a requirement that, in order to have the right to counsel during

an overnight recess in the middle of a criminal trial, defendants must establish that they

actually want or need to speak with counsel during the recess. The “actual deprivation”

standard abrogates what should be an unfettered right to counsel at a critical stage of a

criminal proceeding, i.e., trial. Although courts in other jurisdictions may have adopted

this standard, this Court is not bound by their decision to adopt a rule that is inconsistent

with the underpinnings of the Sixth Amendment and conflicts with our case law and the

case law of the Supreme Court of the United States.

In this case, a violation of the Sixth Amendment right to counsel resulted from trial

counsel’s failure to object to the trial court’s order preventing Mr. Clark and trial counsel

from communicating about the case during an overnight recess, which necessarily

interfered with “the defendant’s right to unrestricted access to his lawyer for advice on a

variety of trial-related matters that is controlling in the context of a long recess,” Perry, 488

U.S. at 284 (citing Geders, 425 U.S. at 88), and “prevented [counsel] from assisting the

[defendant] during a critical stage of the proceeding[,]” Cronic, 466 U.S. at 659 n.25

(citations omitted). The Sixth Amendment’s guarantee of the defendant’s right to consult

with counsel, like the right to counsel of choice, is “a particular guarantee of fairness” that

must be provided by the courts. United States v. Gonzalez-Lopez, 548 U.S. 140, 146

(2006). Barring all communication between a defendant and trial counsel about the case

- 42 - for such a long period of time during a criminal trial eviscerates that right, and a defendant

should not be required to prove or show how the right would have been exercised to

demonstrate prejudice.

The right to counsel at critical stages of criminal proceedings is an absolute and

unqualified right. This Court has even recognized that it requires government-provided

counsel in the context of certain civil cases and when “an indigent defendant [appears] at

an initial hearing before a District Court Commissioner.” DeWolfe v. Richmond, 434 Md.

444, 464, 76 A.3d 1019, 1031 (2013) (footnote omitted). The actual deprivation standard

restricts the right to counsel and is inconsistent with our case law. Indeed, an adoption of

such a standard would abrogate, if not overrule, case law regarding the presumption of

prejudice in cases of both “actual or constructive denial” of the assistance of counsel.

Under the State’s theory, application of the “actual deprivation” rule would also require

petitioners in cases of the alleged constructive denial of the right to counsel to prove that

they somehow sought, desired, or wanted their counsel to act or object in instances where

counsel made no objections or arguments. See, e.g., Bowers, 320 Md. at 425, 578 A.2d at

738; Redman, 363 Md. at 310-11, 768 A.2d at 663.

That the Supreme Court and this Court have consistently spoken about the actual or

constructive denial of the right to assistance of counsel as a presumptively prejudicial

constitutional violation and never mentioned the words “actual deprivation” or required a

defendant to demonstrate or prove anything as a condition precedent to the presumption

applying is not an issue of mere semantics. Rather, the emphasis on the “denial” of the

right reflects how a lengthy no-communication order itself prevents access to counsel

- 43 - during a critical stage of a criminal proceeding. The focus is on the order’s interference

with Mr. Clark’s right to counsel, by creating a “sustained barrier to communication[,]”

Geders, 425 U.S. at 91, during a “critical stage” of the criminal proceeding and

“prevent[ing counsel] from assisting the [defendant] during a critical stage of the

proceeding,” Cronic, 466 U.S. at 659 n.25, not on Mr. Clark’s mindset at the time.

The Maryland Declaration of Rights

Although under our case law interpreting the Sixth Amendment and the case law of

the Supreme Court of the United States, the “actual deprivation” test is inappropriate, this

conclusion is also warranted by our precedent establishing “that the due process right to

counsel under Article 24 of the Declaration of Rights is broader than the right to counsel

under Article 21 or the Sixth Amendment[,]” which “has been reaffirmed by this Court on

numerous occasions.” Richmond, 434 Md. at 460, 76 A.3d at 1028 (citations omitted).

Moreover, in ineffective assistance of counsel cases, we have held that Article 21 provides

protections to a criminal defendant’s right to counsel above and beyond that determined by

the Supreme Court as to the Sixth Amendment. See Perry v. State, 357 Md. 37, 85 & n.11,

741 A.2d 1162, 1188 & n.11 (1999). Article 21 sets forth multiple rights, including the

right to counsel, while Article 24 protects the right to due process.

Article 24 provides:

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.

The right to counsel under Article 24 of the Maryland Declaration of Rights is

- 44 - broader than the right to counsel under the Sixth Amendment. We have repeatedly

recognized “that the protections provided under Article 24 are broader than those found in

the United States Constitution” and “that the due process right to counsel under Article 24

[] is broader than the right to counsel under Article 21 or the Sixth

Amendment[.]” DeWolfe, 434 Md. at 457 n.9, 460, 76 A.3d at 1026 n.9, 1028 (citations

omitted). For instance, unlike the right to counsel under Article 21 and the Sixth

Amendment, the right to counsel under Article 24 is not necessarily limited to critical

stages of criminal proceedings. See id. at 459-60, 76 A.3d at 1028. In Richmond, id. at

456-57, 76 A.3d at 1026, we held that, under Article 24, an indigent defendant has a right

to counsel at an initial appearance before a District Court Commissioner, and we expressly

refrained from deciding whether there is such a right under Article 21 or the Sixth

Amendment.

Article 21 provides:

That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

The right to counsel under Article 21, in ineffective assistance of counsel cases, has

been found to be broader than the right to counsel under the Sixth Amendment.16 One case

16 In addition, recently, in Leidig v State, 475 Md. 181, 234-42, 256 A.3d 870, 901- 05 (2021), after previously having held that the right to confrontation of witnesses under Article 21 is read in pari materia with the right to confrontation under the Sixth

- 45 - demonstrating this is Perry, 357 Md. at 85, 741 A.2d at 1188, in which “we reject[ed] as a

matter of independent Maryland law under Article 21 [] the notion that a defendant is never

prejudiced under a Strickland-type analysis when reliable, though legally inadmissible,

evidence is admitted against him or her.” (Footnote omitted). We acknowledged that

“[w]e have traditionally regarded the right to counsel guaranteed under Article 21 as being

the same right provided by the Sixth Amendment, and, in construing Article 21, we have

followed and applied the decisions of the Supreme Court interpreting the Federal

provision.” Perry, 357 Md. at 85 n.11, 741 A.2d at 1188 n.11 (citations

omitted). Nonetheless, we adopted our own “construction of the independent Maryland

Constitutional provision” and observed that, “[i]f the Supreme Court were to rule upon the

issue, we obviously would be bound by its judgment when interpreting the Sixth

Amendment, . . . but it would not serve, on its own, to alter the declaration made in [Perry]

regarding Article 21.” Id. at 85 n.11, 741 A.2d at 1188 n.11.

We reached a similar conclusion in Taylor v. State, 428 Md. 386, 410, 51 A.3d 655,

669 (2012), in which we held that a “presumption of prejudice applies when a defendant

alleges ineffective assistance of counsel based on an attorney’s personal conflict of interest

due to the attorney’s filing suit against the client before trial for unpaid legal fees arising

from the very action where the attorney is representing the client[.]” We observed that

different jurisdictions had reached different results in deciding whether a presumption of

Amendment, this Court held that Article 21 should be read differently with respect to the right to confront witnesses than the Supreme Court has interpreted the Sixth Amendment, and determined under Article 21 the basis for assessing whether a statement contained in a scientific report is testimonial.

- 46 - prejudice can be based on a conflict of interest that does not involve representing multiple

defendants at the same time. See id. at 410 n.13, 51 A.3d at 669 n.13. We concluded that

the presumption was warranted in Taylor, regardless of whether the right to counsel was

“rooted in the Sixth Amendment [] or Article 21[].” Id. at 410 n.13, 51 A.3d at 669 n.13. In

other words, the right to counsel under Article 21 was broad enough for the presumption

of prejudice to apply in Taylor, even if it did not under the Sixth Amendment.17

In this case, the State’s “actual deprivation” approach would permit a trial court to

deny a defendant the robust right to the effective assistance of counsel guaranteed by the

Maryland Declaration of Rights—a right that this Court has held to provide broader

protection than its federal equivalent—unless the defendant can prove that the defendant

wanted to exercise or would have exercised the right. Just as we concluded in Taylor that

a presumption of prejudice was warranted based on the right to counsel guaranteed by

Article 21 of the Maryland Declaration of Rights, we now hold that where a defendant

alleges ineffective assistance of counsel based on trial counsel’s failure to object to a no-

communication order preventing all communication between trial counsel and a defendant

17 We are aware that, in other cases, we have stated “that Article 21 and the Sixth Amendment [] are to be read in pari materia” and that Article 21 “does not afford any right to counsel which is more expansive than that afforded by the Sixth Amendment.” Grandison v. State, 425 Md. 34, 56, 64, 38 A.3d 352, 365, 370 (2012) (citations omitted). Nonetheless, we have never overruled Perry or Taylor, which remain good law and continue to show that the right to counsel under Article 21 is, in at least some respects, broader than the right to counsel under the Sixth Amendment. Indeed, in Richmond, 434 Md. at 458 n.11, 76 A.3d at 1027 n.11, we reaffirmed that, under Perry, 357 Md. at 85-87 & n.11, 741 A.2d at 1188-1189 & n.11, “the Right-to-Counsel Clause of Article 21 is an ‘independent Maryland Constitutional provision,’ and [] Supreme Court decisions under the Sixth Amendment would not be binding with regard to the Right-to-Counsel Clause of Article 21.”

- 47 - about the case during an overnight recess in a criminal trial, a presumption of prejudice is

warranted under our own “construction of the independent Maryland Constitutional

provision[s,]” Articles 21 and 24 of the Maryland Declaration of Rights. Perry, 357 Md.

at 85 n.11, 741 A.2d at 1188 n.11. And a defendant need not make any showing or

demonstration of a desire or need to speak with counsel, as a condition precedent, for

prejudice to be presumed under Maryland’s Constitutional provisions. In other words, a

presumption of prejudice is warranted in such circumstances under Articles 21 and 24 of

the Maryland Declaration of Rights, regardless of whether it may be warranted under the

Sixth Amendment.

Relevant Sixth Amendment Case Law

The most on-point governing precedent from the Supreme Court of the United

States interpreting the Sixth Amendment right to counsel establishes two categories of no-

communication orders and determines constitutionality based on whether a denial-of-

access order fits into one category or the other. In Geders and Perry, the Supreme Court

made no distinction between the application of the presumption of prejudice on direct

appeal and in the postconviction context in finding a violation of the Sixth Amendment

right to counsel based on a no-communication order. See Geders, 425 U.S. at 85-86, 88-

92; Perry, 488 U.S. at 275-85. The Supreme Court held in Perry that its holding in Geders,

that a lengthy overnight no-communication order constitutes an unconstitutional denial of

the assistance of counsel and warrants a presumption of prejudice, is applicable to

ineffective assistance of counsel cases and, specifically, that the holding was incorporated

into Strickland. See Perry, 488 U.S. at 279-280 (describing how Strickland’s citation of

- 48 - Geders set apart cases of actual or constructive denial of the assistance of counsel

“altogether” from other challenges under Strickland that require “determining whether the

quality of a lawyer’s performance itself has been constitutionally ineffective”).

The circumstance that the actual denial of the assistance of effective counsel

altogether may be due to either government interference or deficient performance by

counsel was not discussed by the Supreme Court in Strickland as a distinguishing factor

for conduct warranting a presumption of prejudice. Rather, in Strickland, 466 U.S. at 692,

the Supreme Court concluded that a per se presumption of prejudice applies both to certain

types of government interference and to the actual or constructive denial of the assistance

of counsel. The limitation or difference in the application of the presumption of prejudice

in Strickland was said to apply to cases of attorney conflict of interest for which the

Supreme Court set forth a two-part test to be applied in determining whether a presumption

of prejudice is warranted. See id. (“Prejudice is presumed only if the defendant

demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual

conflict of interest adversely affected his lawyer’s performance.’”).18

That said, in Geders, the Supreme Court classified as unconstitutional, without a

18 In the case of a no-communication order, trial counsel’s failure to object allows the order to take effect, as we assume the trial judge would have followed the law and corrected the error had counsel objected. See Newton, 455 Md. at 361, 168 A.3d at 12-13 (quoting Strickland, 466 U.S. at 694). So, defense counsel’s deficient performance, if any, is inaction, i.e., a failure to object. In a postconviction matter where ineffective assistance of counsel is alleged based on trial counsel’s failure to object to a no-communication order, our focus in determining whether a presumption of prejudice is warranted is on the constitutionality or unconstitutionality of the order, just as it would be on direct appeal and as was the Supreme Court of the United States’ focus in Perry, a federal habeas corpus case. See Perry, 488 U.S. at 278-80, 284.

- 49 - showing of prejudice, those no-communication orders that cover a significant range of

time—certainly overnight or longer, perhaps slightly shorter. Although Geders involved a

direct appeal, there is no difference in the approach. The logic behind this approach is that

prohibitions on consultation for such periods of time are likely to infringe on the

defendant’s “right to unrestricted access to his lawyer for advice on a variety of trial-related

matters[.]” Perry, 488 U.S. at 284. The same concern is not present in the second category

of cases: no-communication orders governing brief recesses amidst the defendant’s

testimony, which Perry designates as constitutional because of their brevity, the likelihood

that nothing other than testimony would be discussed, and the trial court’s power to require

continuity of testimony in these circumstances. The constitutional infirmity of Geders-like

no-communication orders is “driven by the recognition that certain types of conduct are in

general so antithetic to effective assistance . . . that a case-by-case analysis simply is not

worth the cost of protracted litigation[,]” Scarpa v. Dubois, 38 F.3d 1, 12 (1st Cir. 1994),

cert. denied, 513 U.S. 1129 (1995) (emphasis in original), whereas brief Perry-like orders

do not implicate such an adverse effect on the effective assistance of counsel generally.

The Supreme Court has endorsed a rule for overnight blanket bans on communication

between defendant and counsel because they “pose such a fundamental threat to a fair trial

that reversal of a conviction should be automatic.” Perry, 488 U.S. at 276, 280.

In Geders, the Supreme Court implicitly rejected the kind of argument made by the

State in this case. In Geders, 425 U.S. at 86, the Supreme Court reversed the Fifth Circuit’s

conclusion that no Sixth Amendment violation resulted from the no-communication order

because, despite the objection, it could “discern no actual harm and [was] convinced that

- 50 - there was none”—reasoning that the Fifth Circuit adopted from the Second Circuit’s

conclusion of no prejudice in another case because the defendant and counsel never

“indicate[d] that they did in fact have something to discuss[.]” See Fink, 502 F.2d at 9

(quoting Leighton, 386 F.2d at 823) (cleaned up). By treating the question of whether there

was a desire to exercise the right to consult with counsel as a question of prejudice and

overturning the Fifth Circuit’s decision in Geders, and affirmatively stating in Perry that

prejudice is irrelevant to the actual denial of the assistance of counsel analysis in the context

of lengthy no-communication orders, the Supreme Court held that such an order itself is

violative of Sixth Amendment rights, without the need to inquire into the defendant’s intent

to consult with counsel. This Court has agreed with that approach. See Wooten-Bey v.

State, 318 Md. 301, 307, 568 A.2d 16, 19 (1990) (“There is a distinction between the ‘actual

or constructive denial of the assistance of counsel altogether,’ and whether the quality of

the lawyer’s performance itself has been constitutionally ineffective.” (Cleaned up)). The

Supreme Court and this Court have put significant weight on the fundamental nature of the

right to counsel for a criminal defendant, and the Supreme Court has held that the right

should not be impeded with lengthy, blanket no-communication orders.

The Supreme Court’s incorporation of Geders into its analysis in Strickland, and its

clarification of the above point in Perry, instruct that the presumption of prejudice for

denial of the assistance of counsel does not vary based on whether it is challenged on direct

appeal or in a deficient performance of counsel context. To the contrary, we have stated

that “[i]n United States v. Cronic, . . . decided the same day as Strickland, the Supreme

Court established that certain deficient performances of counsel justified a per se

- 51 - presumption of ineffectiveness under the Sixth Amendment.” Walker, 391 Md. at 246,

892 A.2d at 554 (citation omitted). Indeed, in Strickland, 466 U.S. at 692-93, the Supreme

Court directed that in cases of actual or constructive denial of the assistance of counsel,

courts are to presume prejudice rather than assess whether defense counsel’s errors

“actually had an adverse effect on the defense.” Yet, in this case, the State suggests that

we do precisely the opposite by looking to whether Mr. Clark can prove that he actually

would have spoken with counsel during the overnight recess. It is not clear how the “actual

deprivation” test is different from the “actual[] . . . adverse effect” test that the Supreme

Court has held does not apply to this type of no-communication order. Id.; Geders, 425

U.S. at 91.

Although neither case pertained to a claim involving the actual denial of the

assistance of counsel, both Weaver and Ramirez guide our holding, because the cases

reinforce the principle that the actual denial of the assistance of counsel is one of three

limited exceptions in which a postconviction petitioner is not required to prove prejudice

and that the actual denial of the assistance of counsel is a form of structural error that is

treated the same on direct appeal and in postconviction proceedings. In Weaver, 582 U.S.

at 290, the Supreme Court of the United States did not have occasion to address an issue

involving the actual denial of the assistance of counsel; rather, the question before the

Supreme Court involved alleged structural error in the form of a limit on a defendant’s

right to a public trial. The Supreme Court held that a violation of the constitutional right

to a public trial, which would on direct appeal result in automatic reversal without inquiry

into prejudice, is not entitled to a presumption of prejudice when it is raised in an

- 52 - ineffective assistance of counsel challenge. See id. at 290, 300-01. In Weaver, id. at 301,

however, the Supreme Court made clear that “certain errors are deemed structural and

require reversal because they cause fundamental unfairness[.]”

Following the lead of the Supreme Court of the United States in Weaver, in Ramirez,

464 Md. at 575-77, 212 A.3d at 389-90, this Court refused to expand the three exceptions

to the requirement to prove prejudice under Strickland to include an additional category of

structural error—an attorney’s deficient performance during voir dire in jury selection

process. In Ramirez, 464 Md. at 572-73, 212 A.3d at 387, this Court made clear that there

are three limited exceptions to a defendant’s need to demonstrate prejudice post-

conviction: (1) the actual denial of the assistance of counsel; (2) the constructive denial of

the assistance of counsel; and (3) an actual conflict of interest. This Court made equally

clear that these three exceptions are treated no differently on postconviction as structural

error than on direct appeal—instead, these exceptions are entitled to a presumption of

prejudice in both contexts, while other types of structural error may not be. See id. at 572-

73, 212 A.3d at 387; see also id. at 562, 212 A.3d at 381 (contrasting the general rule in

ineffective assistance of counsel cases that petitioner had the burden “to satisfy both the

performance prong and the prejudice prong” with the contexts in which “prejudice is

presumed,” including “actual or constructive denial of the assistance of counsel” (cleaned

up)).

Our statement in Ramirez, quoting the Supreme Court’s description of the actual

denial of the right to counsel, as occurring “where ‘counsel was either totally absent, or

prevented from assisting the [petitioner] during a critical stage of the proceeding,’” id. at

- 53 - 574, 212 A.3d at 388 (quoting Cronic, 466 U.S. at 659 n.25), demonstrates that this Court

has long been aware that the actual denial of the assistance of counsel is described as

counsel either being totally absent or being prevented from assisting, and we have never

interpreted anything about the word “prevent” to require that a postconviction petitioner

demonstrate or prove that the petitioner would have spoken with counsel in order to be

entitled to a presumption of prejudice. Rather, this Court has consistently stated that the

denial of the assistance of counsel is a form of error that requires no showing of prejudice

on direct appeal or post-conviction—no more, no less. See Ramirez, id. at 574-75, 212

A.3d at 388-89.

This makes sense because, at the risk of stating the obvious, dictionary definitions

of the word “prevent” do not give rise to a requirement that there must be a demonstration

or showing that something is desired or needed to happen in order for the word “prevent”

to apply. The word prevent is defined in relevant part as “to keep from happening or

existing” and “to deprive of power or hope of acting or succeeding[.]” Prevent, Merriam-

Webster (2023), https://www.merriam-webster.com/dictionary/prevent [https://perma.cc/

2L8F-5FKU]; see also Prevent, Oxford English Dictionary (2023), https://www.oed.com/

search/dictionary/?scope=Entries&q=prevent [https://perma.cc/WCL9-SCTY]. (Prevent

means “[t]o preclude the occurrence of (an anticipated event, state, etc.)[.]”). Nothing

about the definition of the word prevent requires proof by a defendant that the defendant

wanted to speak with counsel in order for the defendant to have been prevented from doing

so. For example, consider how the word prevent is used in the following sentence: “The

gate prevented access to the driveway.” It is not necessary to prove that anyone wanted to

- 54 - use the driveway to establish that the gate prevented or blocked access. In addition, the

word prevent is not used as part of the description of the actual denial of the assistance of

counsel where counsel is “totally absent[.]” Cronic, 466 U.S. at 659 n.25. The approach

espoused by the State sets up the dichotomous situation that a defendant would be required

to demonstrate that the defendant wanted or needed to speak with counsel where assistance

was prevented, but no such demonstration would be required where counsel was totally

absent. This could not have been what the Supreme Court of the United States intended

when describing the complete denial of the assistance of counsel. See id. at 659 & n.25.

Constructive Denial of the Assistance of Counsel

In the same vein, the “actual deprivation” test is at odds with precedent holding that

prejudice is presumed from the constructive denial of the assistance of counsel, i.e., counsel

is present but “fails to subject the prosecution’s case to meaningful adversarial testing” or

the context makes the provision of effective assistance nigh impossible, regardless of

counsel’s skills. See Cronic, 466 U.S. at 659; Ramirez, 464 Md. at 574, 212 A.3d at 388.

In such a circumstance, we do not require the defendant to demonstrate how the attorney’s

actions (or lack thereof) caused an actual deprivation of counsel based on a defendant’s

desire to speak with counsel or desire to have counsel behave differently. Instead, the focus

is on the interference with counsel’s assistance or defense counsel’s inadequate actions.

See Perry, 488 U.S. at 279; Strickland, 466 U.S. at 686. For example, we would not have

expected the defendant in Brooks v. Tennessee, 406 U.S. 605 (1972) to demonstrate how

the law requiring him to testify first for the defense or not at all deprived him of effective

- 55 - assistance of counsel.19 Nor would the lack of an objection or contemporaneous

demonstration by a defendant of the desire for different counsel mean the defendant was

not constructively denied counsel when defense counsel’s own conduct constituted

constructive denial, such as defense counsel’s absence “during cross-examination of [a]

key government witness by [an] attorney for a codefendant[.]” Redman, 363 Md. at 312-

13, 768 A.2d at 664 (cleaned up).

Plainly, constructive denial of the assistance of counsel hinges on the actions of

counsel or the court, not on whether the defendant can prove a contemporaneous request

or desire for different conduct. This is because the conduct at issue threatens the fairness

of the trial so significantly that an individualized prejudice analysis is inappropriate. See

Perry, 488 U.S. at 280. In our controlling case law, the subjective perspective of the

defendant has no bearing on the constructive denial of the assistance of counsel assessment.

As a result, the adoption of an “actual deprivation” test would in effect overrule precedent

on both actual denial and constructive denial of the assistance of counsel. Applying the

doctrine of stare decisis, nothing has changed in the law or facts to merit departure from

precedent under which prejudice is presumed in cases of actual or constructive denial of

the assistance of counsel, without a petitioner satisfying any conditions precedent. There

is no basis for overruling our past decisions. Nor is there any basis in our precedent for a

new approach.

19 In Strickland, 466 U.S. at 686, the Supreme Court cited Brooks, along with Geders, as examples of governmental interference with the right to counsel that merits a presumption of prejudice.

- 56 - Actual Deprivation Test: Practical Concerns

Contrary to this binding precedent, the actual deprivation standard renders the

“presumed prejudice” rule of Strickland, with respect to the actual denial of the assistance

of counsel, which has long been incorporated into our case law, meaningless. The idea that

“actual deprivation” or prejudice may be shown in a postconviction proceeding by the

existence of an objection to a no-communication order is illusory. When defense counsel

objects to a trial court’s no-communication order, and is overruled, the issue will almost

always be resolved on direct appeal. Therefore, when an objection is raised, a no-

communication order will not normally lead to any Strickland claim. It is only in the

context of the lack of an objection by trial counsel that a petitioner would likely bring an

ineffective assistance of counsel claim after a finding of lack of preservation on direct

appeal, as in this case. And only in this circumstance would the presumption of prejudice

have any significance. So, the State’s suggestion that the primary and most effective way

of showing “actual deprivation” would be an objection, would put in place the exact

mechanism that would obviate the need for a Strickland ineffective assistance of counsel

claim in the first place.

Instead, the unlucky defendant with counsel who failed to raise an objection to an

obvious Geders violation would be required to prove “actual deprivation” by some unclear

method, with various associated problems discussed below. The approach would

effectively make obsolete the Supreme Court’s application of the presumption of prejudice

for those “circumstances that are so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified[,]” such as the “obvious” circumstance of a

- 57 - Geders-like “denial of the assistance of counsel” during a critical stage of trial. Cronic,

466 U.S. at 658-59 & n.25 (footnote omitted). Case law makes clear that the Supreme

Court of the United States views orders interfering with counsel-defendant communication

overnight as being of such constitutional magnitude as to justify a presumption of prejudice

in ineffective assistance claims. An “actual deprivation” rule would make this exception

to Strickland’s prejudice prong all but meaningless and run contrary to the importance the

Supreme Court of the United States and this Court have placed on the right to counsel.

The “actual deprivation” test, in a case like this, where the trial court forbade Mr.

Clark from any communication about the case with his counsel or anyone else overnight

in the midst of trial, puts the defendant in a no-win situation. As observed by Mr. Clark,

whether the defendant independently objects to the order is generally not a question asked

at trial, because objecting is solely counsel’s responsibility. But, when defense counsel

does not object, due to the existence of the blanket no-communication order, the defendant

cannot even ask counsel about the propriety of the order or let counsel know that the

defendant wishes to speak with counsel. In the absence of an objection by counsel, a

defendant who obeys the order cannot consult with counsel and thus cannot speak with

counsel about the order, and counsel is unable to even advise the defendant how to

potentially preserve the right to counsel (by, say, telling the court the next day that the

defendant wanted to speak with counsel but could not), and likely would not even think to

do so because of counsel’s failure to notice the Geders violation.

In this instance, defense counsel, the one person whom the defendant relies on for a

“guiding hand” in the trial, Geders, 425 U.S. at 89, has indicated that the order is legitimate

- 58 - by not objecting, and the defendant cannot ask that person whether the situation might be

otherwise. This distinguishes the situation from any other error to which defense counsel

does not object and counsel and the defendant may discuss the circumstance. Simply put,

the Sixth Amendment right to counsel should not be restricted in such a way during a

criminal trial.

Critical to our conclusion is the nature of the no-communication order in this case:

it was for overnight and applied to any discussion of the case with defense counsel or

anyone else. The importance of the length is obvious in light of Perry, which distinguishes

from this case the cases from other jurisdictions relied on by the State that concerned lunch

or other brief recesses. See, e.g., Wallace, 851 So. 2d at 217; Brooks, 505 N.E.2d at 340.

The all-encompassing, i.e., blanket nature, of the no-communication order pertaining to

any discussion whatsoever about the case also distinguishes it from cases cited by the State

in which orders applied only to discussion of the defendants’ testimony. See, e.g., Bailey,

657 F.2d at 22 (per curiam); Stubbs, 689 F.2d at 1206; Crutchfield, 803 F.2d at 1104.

Although federal circuits are in unanimous agreement that an objected-to restriction on

discussion of testimony is reversible error, a ban on discussion of testimony alone when

not objected to may be treated differently. That is because, with a ban on discussion of

testimony, a defendant could still ask counsel most questions, perhaps alerting counsel that

the defendant has a question about testimony, perhaps persuading counsel to object after

all. In the case of a blanket ban on discussion of the case, however, this could not happen.

As a practical matter, once an unobjected-to blanket no-communication order is

issued, a defendant believes that communication with counsel about the case is not possible

- 59 - and the order itself chills a defendant’s desire or wish to speak with counsel. The actual

deprivation test requires a defendant to prove in retrospect that the defendant would have

done something, i.e., spoken with counsel, that the court ordered the defendant not to do,

and that the defendant may have, as a result, abandoned, given up, or not developed any

aspiration to do. Further, a court’s inquiry into whether the defendant wanted to exercise

this fundamental right to counsel could easily veer into a consideration of whether the

reason the defendant wished to converse with counsel was legitimate or important enough.

For example, if Mr. Clark had asserted at the postconviction hearing that he wished to ask

his attorney about a relatively insignificant issue, such as how long the cross-examination

would take, a court would be invited to undertake the exact sort of weighing of harm that

Geders and Perry do not allow.

This brings up the difficulty of determining what is sufficient to show an “actual

deprivation” of Mr. Clark’s right to counsel in this context. The State’s proposed test for

“actual deprivation” is unworkable. Certainly, aspects of the State’s proposed rule are

consistent with the approach of other jurisdictions: for instance, the State contends that an

objection would satisfy the rule, but as discussed, if an objection were made, the matter

likely would have been resolved on direct appeal and not be before a postconviction court

on the issue of ineffective assistance of counsel. The State indicates that, in the absence of

an objection, “there may be sufficient indication in the record on direct appeal to satisfy

the actual-deprivation standard.” (Citation omitted). However, beyond the trial record, the

State contends that a defendant could demonstrate that a desire to meet with counsel

existed through testimony at the postconviction hearing, and “the credibility of [such] an

- 60 - assertion . . . would be enhanced by the disclosure of some degree of concrete detail about

the topics of the desired communication.” The suggestion regarding the need for testimony

at a postconviction hearing is in effect a recognition of the unlikelihood that a defendant at

trial would be in any position to express a desire on the record (during trial) to meet with

counsel in the face of an unobjected-to order not to do so. In any event, it is not difficult

to imagine the inevitable challenge to a defendant’s credibility that such testimony would

encounter during a postconviction hearing.

In addition, requiring such testimony would threaten attorney-client confidentiality

and potentially give rise to tension between a defendant’s Sixth Amendment right to

counsel and the Fifth Amendment right against self-incrimination. Obviously, in an

ineffective assistance of counsel proceeding, the petitioner waives attorney-privilege as to

“communications, and the opinions based upon them [] relevant to the determination of the

quality of counsel’s performance.” State v. Thomas, 325 Md. 160, 174, 599 A.2d 1171,

1177-78 (1992) (citations omitted). But the rationale for the waiver pertains to the need of

the petitioner to show that counsel acted deficiently, and to allowing counsel to defend

counsel’s actions, whereas requiring a defendant to testify about matters that the defendant

would have liked to talk to counsel about may exceed issues related to the waiver necessary

to pursue the postconviction matter. For instance, suppose a defendant wished to discuss

the possibility of a guilty plea. The defendant would face the difficult dilemma of choosing

between disclosing at a postconviction hearing the incriminating desire to plead guilty in

order to satisfy the actual deprivation of counsel test or remaining silent and not being able

to satisfy the test. Ultimately, as noted by the dissent in the Appellate Court, the practical

- 61 - result of the State’s proposed “actual deprivation” approach would be to foreclose a

petitioner’s options, when no objection was made at trial, due to the difficultly of

establishing after the fact a defendant’s contemporaneous desire to meet with counsel. See

Clark, 255 Md. App. at 359, 279 A.3d at 1139-40 (Nazarian, J., dissenting). The State’s

suggestion that a petitioner could satisfy its new test through testimony at a postconviction

hearing does not make this new rule any less harsh. It remains one that a petitioner will

unlikely ever be able to satisfy.

On the other hand, the acceptance of the defendant’s trial counsel’s testimony

concerning the need for consultation with the defendant presents another problem: trial

counsel is an interested party. The lawyer who served as trial counsel in an ineffective

assistance of counsel case has an inherent conflict and potential bias to avoid reputational

harm, or even civil liability, stemming from an ineffective assistance of counsel finding.

And in any case, the lawyer’s perspective would represent only one side of the story, with

the presentation of the side of the person to whom the right to counsel belongs, i.e., the

defendant’s perspective, being severely hampered by the impediments discussed above. In

addition, trial counsel may not know whether the defendant desired to confer with counsel

at the time of the no-communication order and would not know whether the defendant

developed the desire to speak with counsel at some point during the duration of the order.

Consider the circumstances of this case. At the postconviction hearing, Mr. Garcia

testified that “at the end of each day, I would always ask [Mr. Clark] if he had any questions

or anything like that.” The only reasonable inference to draw from this testimony is that

the no-communication order prevented Mr. Garcia from doing what he had done at the end

- 62 - of the prior days of trial—asking Mr. Clark if he had any questions. Yet, Mr. Garcia did

not testify to this at the postconviction hearing. Rather, Mr. Garcia testified, among other

things, that, “[a]t the time, I didn’t think there was anything for us to talk about that

evening.” We can also infer that, at trial, at the end of the day, Mr. Clark understood full

well why Mr. Garcia deviated from his normal practice—because, based on what the judge

had just said, Mr. Garcia had no choice and could not to talk to him—which, of course,

would have chilled any effort by Mr. Clark to initiate their typical end-of-day conversation

himself.

So, in this case, we have an attorney who, as a result of a no-communication order,

apparently deviated from his normal practice of asking the defendant at the end of the day

if he had any questions, and who testified at the postconviction hearing, without knowing

the defendant’s mindset, that he did not think there was anything for them to talk about,

and a defendant who, if he had any questions or wanted to talk with his attorney about the

case, could not do so for a full overnight recess on the day before his cross-examination

was to begin the next day. In this case, trial counsel had no way to know what questions

or concerns Mr. Clark may have had going into the overnight recess before the final day of

his testimony in his murder trial. Trial counsel’s failure to object to the no-communication

order, permitting the order to remain in effect, prevented consultation by Mr. Clark with

counsel that would have revealed whether Mr. Clark wanted to speak with counsel about

the case.

Incentivizing Trial Counsel to Not Object

There is little reason to believe that permitting the Sixth Amendment right to counsel

- 63 - to apply as it should, without requiring a showing of “actual deprivation,” would

incentivize defense counsel to not object to erroneous no-communication orders because,

as the State contends, they “would be able to build an automatic do-over into the case.”

This view overlooks the countervailing incentive for the defense to raise an objection at

trial to preserve an issue for direct appeal, so that a defendant is not potentially in prison

for years awaiting the outcome of an even more uphill postconviction effort. Additionally,

the hypothetical proposed by the State that “a defendant in Clark’s shoes could strategically

acquiesce to the trial court’s erroneous prohibition—a costless maneuver if the defense did

not intend to consult during the recess anyway—and, if convicted, simply demand an

automatic reversal and new trial” is no different from what would happen if defense

counsel objected on the record and the trial court failed to cure the error, because on direct

appeal an objected-to impermissible extended prohibition on consultation with counsel

results in a new trial without a showing of prejudice. In contrast, under the actual

deprivation approach, it is actually the prosecutor who would have an incentive to stay

silent if defense counsel fails to object to a no-communication order because of the higher

bar for a defendant at the postconviction stage.

In reality, there is little cause to expect defense counsel to strategically fail to object

to a lengthy no-communication order, when an objection, if sustained, would cure the error

and, if not sustained, would more quickly and assuredly result in a new trial for the

defendant on direct appeal. Here, the lengthy overnight no-communication order in

question is universally regarded as unconstitutional and normally requires reversal upon

objection, so positing that defense counsel would knowingly refrain from objecting to such

- 64 - an order borders on absurd.

Case Law from Other Jurisdictions, and Bailey is No Longer Good Law

The State cites cases in support of adopting the “actual deprivation” rule that are not

persuasive—most of them involve distinctive factual circumstances, such as particularly

brief recesses and more limited prohibitions on communication. Take Bailey, which has

influenced other courts’ adoption of the “actual deprivation” rule. In Bailey, 657 F.2d at

22-23 & n.2 (per curiam), the ban on communication concerned only testimony, and the

issue was not raised until nearly three years after trial, while here Mr. Clark raised the issue

immediately in his direct appeal. As discussed above, the difference in the scope of the

no-communication orders is significant; Mr. Clark, unlike the defendant in Bailey, was

subject to a complete overnight ban on all communication regarding the case with counsel

or anyone else the evening and night before the final day of testimony at trial. We simply

cannot conclude that a blanket prohibition on communication about the case between

defendant and counsel for the entirety of the last night before his testimony ended, and,

indeed, the last night before all testimony at trial ended, does not inherently undermine the

fairness of the proceeding.

Most of the decisions adopting the Third Circuit’s reasoning in Bailey have applied

the “actual deprivation” test to no-communications orders that were either much shorter

than the one at issue in Bailey and here, or, like Bailey, restricted only discussion of

testimony. In Wallace, 851 So.2d at 217 n.1, the court barred all consultation during a 75-

minute lunch recess. Similarly, in Brooks, 505 N.E.2d at 340, the court prohibited all

communication with counsel during a 60-minute lunch recess. In Stubbs, 689 F.2d at 1206,

- 65 - the court barred discussion of a defendant’s testimony during a lunch recess of unknown

length, but likely lasting approximately 60 minutes, as the court referred to it as “the lunch

hour.” In Crutchfield, 803 F.2d at 1104-05, the length of the recess during which the

defendant was told not to speak to counsel regarding his testimony was disputed, but, at

most, it was a two-hour lunch break. Therefore, the no-communication orders in Wallace,

Brooks, Stubbs, and Crutchfield were akin to the order in Perry, 488 U.S. at 280, which the

Supreme Court held constitutional based on the brevity of the denial, not any inquiry into

the defendant’s interest in conferring with counsel. In Parker v. State, 469 S.E.2d 410, 413

(Ga. Ct. App. 1996), the court’s order covered a significant amount of time, a weekend

recess, but barred discussion of testimony only. As discussed, this distinction is significant,

as the order did not pose the total barrier to communication that the Supreme Court decried

in Geders, 425 U.S. at 91.

In addition, the Third Circuit’s reasoning in Bailey fails to grapple with the well-

established principle that a defendant does not waive the right to counsel with silence—

waiver “must be knowing and intelligent.” Walker, 391 Md. at 257, 892 A.2d at 561

(citations omitted); id. at 257, 892 A.2d at 561 (“Even if a defendant absconds prior to trial,

the right to effective assistance of counsel is not waived automatically.”); see also

Wischhusen, 342 Md. at 540, 677 A.2d at 600 (holding that a waiver analysis is required

even when a defendant expressly consents to defense counsel’s absence during a critical

stage of trial). We find persuasive the District of Columbia Court of Appeals’s logic in

Martin on the topic of waiver. Because Mr. Clark’s right to counsel did not depend on him

demonstrating that he would consult with counsel, Mr. Clark’s failure to object to such an

- 66 - extreme no-communication order could not have waived the right. See Martin, 991 A.2d

at 796; Brewer, 430 U.S. at 404. Instead, a waiver by Mr. Clark of the right to counsel

during a critical stage of the proceedings had to be intentional, and the Supreme Court has

instructed that we should “indulge in every reasonable presumption against waiver.”

Brewer, 430 U.S. at 404 (citations omitted); Zerbst, 304 U.S. at 464; State v. Renshaw, 276

Md. 259, 265-66, 347 A.2d 219, 224 (1975).

With all of that said, the foremost problem with the Third Circuit’s reasoning in

Bailey, 657 F.2d at 24, is that it justified the “actual deprivation” rule by relying on a

requirement in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) that, where a defendant objects

to multiple representation,20 “a reviewing court cannot presume that the possibility for a

conflict has resulted in ineffective assistance of counsel[,]” rather, “a defendant who

objects to multiple representation must have the opportunity to show that potential conflicts

impermissibly imperil his right to a fair trial.”21 In Bailey, 657 F.2d at 24, relying on the

Supreme Court’s holding in Cuyler, 446 U.S. at 349-50, the Third Circuit stated that “[t]he

distinction between the ‘deprivation’ of right and the ‘prejudice’ that may result therefrom

20 In Cuyler, 446 U.S. at 337, two privately retained lawyers represented both Mr. Sullivan and two other people who were charged with the same murders. 21 In Cuyler, 446 U.S. at 350, the Supreme Court held that, where the defendant had shown that multiple representation in the case involved a possible conflict of interest, “the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” The Supreme Court concluded that “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief[, b]ut until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. at 349-50.

- 67 - is not a new one[,]” and “[a] showing that one has been ‘deprived’ of his right to effective

counsel is a predicate to relief[.]” (Footnote omitted). But, after Cuyler, in Strickland, 466

U.S. at 692, the Supreme Court identified the three circumstances under which prejudice

would be presumed and the Supreme Court did not require the showing of any condition

precedent for the actual or constructive denial of the assistance of counsel. In contrast, in

Strickland, 466 U.S. at 692, the Supreme Court maintained the requirement that the

presumption of prejudice in a conflict-of-interest claim requires a showing (i.e., that

counsel actively represented conflicting interests and that an actual conflict adversely

affected counsel’s performance), which is not needed under the per se rule of presumed

prejudice for the actual or constructive denial of the assistance of counsel.

Because the Supreme Court issued Strickland after the Third Circuit’s Bailey

decision, Strickland supersedes the reasoning in Bailey, 657 F.2d at 24, that Cuyler

supports “[t]he distinction between the ‘deprivation’ of a right and the ‘prejudice’ that may

result[,]” where the actual denial of assistance to counsel is concerned. Under Strickland,

466 U.S. at 692, Cuyler-like claims warrant a more limited presumption of prejudice than

Geders-like claims, unlike in cases of actual or constructive denial of the assistance of

counsel, to which the per se presumption of prejudice rule applies. In short, the reasoning

in Bailey is based on a type of ineffective assistance of counsel claim—conflict of

interest—for which the Supreme Court has required that the defendant fulfill conditions

precedent before the presumption of prejudice is warranted; whereas, with respect to claims

of actual and constructive denial of the assistance of counsel, no showing or demonstration

by a defendant as a condition precedent is required to warrant a presumption of prejudice.

- 68 - See Strickland, 466 U.S. at 692. Thus, Bailey’s basis for its “actual deprivation” rule in

claims based on the actual denial of the assistance of counsel, although adopted by some

courts in other jurisdictions, is no longer good law.

Conclusion

We hold that trial counsel’s failure to object to the trial court’s order prohibiting all

communication between defendant and counsel about the case during an overnight recess

in a criminal trial, without any curative action, resulted in the actual denial of the assistance

of counsel in violation of the Sixth Amendment to the United States Constitution and, under

Strickland, prejudice is presumed. Further, trial counsel’s failure to object to the no-

communication order resulted the actual denial of the assistance of counsel in violation of

Articles 21 and 24 of the Maryland Declaration of Rights and a presumption of prejudice

is warranted under our own interpretation of independent Maryland Constitutional

provisions. Trial counsel’s failure to object to such an order resulted in an unconstitutional

impediment to the defendant’s right to counsel under the Sixth Amendment and the

Maryland Declaration of Rights that merits reversal without a requirement that the

defendant prove prejudice. Prejudice is presumed without the requirement that the

defendant satisfy any condition precedent.

We stress that the circumstances under which a petitioner asserting ineffective

assistance of counsel need not show prejudice remain narrow, and include only the limited

exceptions of the actual denial of the assistance of counsel, constructive denial of the

assistance of counsel, and conflict of interest. In this case, due to the actual denial of the

assistance of counsel, prejudice is presumed. The circuit court correctly reached the same

- 69 - conclusion, properly ordering a new trial for Mr. Clark.22

JUDGMENT OF THE APPELLATE COURT OF MARYLAND REVERSED. RESPONDENT TO PAY COSTS.

22 In failing to object to the trial court’s no-communication order for the duration of an overnight recess before the last day of testimony in the trial—a clear violation of Mr. Clark’s Sixth Amendment right to counsel as described in Geders—Mr. Clark’s trial counsel’s performance was deficient. Thus, with prejudice presumed, Mr. Clark has satisfied the burden of establishing the two components necessary to demonstrate the ineffective assistance of counsel—deficient performance and prejudice—and is entitled to a new trial, as the circuit court in this case ordered. See Ramirez, 464 Md. at 539, 212 A.3d at 367.

- 70 - Circuit Court for Howard County Case No. C-13-CR-18-000001 Argued: March 3, 2023

IN THE SUPREME COURT

DAMIEN GARY CLARK

v.

STATE OF MARYLAND ______________________________________

Concurring Opinion of Biran, J., which Watts, Hotten, and Eaves, JJ., join. ______________________________________

Filed: August 31, 2023

* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. I am pleased to join the Majority Opinion in this important case. I write separately

to explain why I believe it is appropriate for the Majority to base its holding, in part, on

Articles 21 and 24 of the Maryland Declaration of Rights, despite the lack of briefing and

argument concerning these independent state law grounds. As Chief Justice Fader and

Justice Gould explain in their dissenting opinions, we typically refrain from deciding issues

that are not preserved and have not been thoroughly briefed and argued by the parties

before us. I do not endorse a different course of action here lightly. However, we are not

foreclosed, in an appropriate case, from departing from our normal practice. See Md. Rule

8-131(a) (“Ordinarily, an appellate court will not decide any other issue unless it plainly

appears by the record to have been raised in or decided by the trial court[.]” (emphasis

added)); Md. Rule 8-131(b)(1) (“Unless otherwise provided by the order granting the writ

of certiorari, in reviewing a decision rendered by the Appellate Court or by a circuit court

acting in an appellate capacity, the Supreme Court ordinarily will consider only an issue

that has been raised in the petition for certiorari or any cross-petition and that has been

preserved for review by the Supreme Court.” (emphasis added)); see also Jones v. State,

379 Md. 704, 712-13 (2004) (“The word ‘ordinarily’ in Rule 8-131(a) anticipates that an

appellate court will, on appropriate occasion, review unpreserved issues. This has been the

practice of the Maryland appellate courts, as well as of the federal courts and our sister

states, dating well before Rule 8-131(a).”); MAS Assocs., LLC v. Korotki, 475 Md. 325,

365 (2021) (“The use of the term ‘ordinarily’ in Maryland Rule 8-131(b)(1) implies that

this Court possesses the discretion to consider issues that were not necessarily raised in the petition or order for a Writ of Certiorari.” (some internal quotation marks and citation

omitted)).

In my view, exceptional circumstances exist that warrant the departure from our

ordinary practice here. They are: (1) the failure of the Supreme Court to explicitly answer

the question with which we are presented in the 39 years since the Court decided Strickland

v. Washington, 466 U.S. 668 (1984); and (2) the close relationship between the preserved

Sixth Amendment question and the unpreserved Maryland constitutional question in this

case.

I agree with the Majority Opinion that the answer to the question presented here is,

and should be, the same under the Sixth Amendment as it is under Articles 21 and 24 of

the Maryland Declaration of Rights. However, despite the recurring nature of the problem

throughout the nation – trial court orders that preclude communication between criminal

defendants and their attorneys during overnight recesses that occur in the midst of

defendants’ trial testimony – the United States Supreme Court has not decided whether the

presumption of prejudice of which it spoke in Strickland, 466 U.S. at 692, applies to claims

of ineffective assistance of counsel based on trial counsel’s failure to object to such orders.

In this regard, this case resembles Leidig v. State, 475 Md. 181 (2021), in which we held

that the Supreme Court’s failure to provide a conclusive answer to a Sixth Amendment

Confrontation Clause question over the course of several years warranted this Court’s

answering it under Article 21’s confrontation provision.

I recognize that, in Leidig, the petitioner made alternative arguments under the Sixth

Amendment and Article 21. Here, Mr. Clark only made his argument under the Sixth

-2- Amendment. The State, therefore, understandably did not make any argument as to Article

21 and Article 24. In most cases, I would be in favor of at least asking for supplemental

briefing before deciding an issue that had not been briefed and argued. However, it is not

as if the unbriefed/unargued issue in this case is unrelated to the issue that was briefed and

argued by the parties. To the contrary, they are as closely related as two issues can be. All

parties understand that both the United States and the Maryland Constitutions afford

criminal defendants a right to the effective assistance of counsel.

It is possible that, if we asked the State for supplemental briefing regarding Article

21 and Article 24, the State would recognize that there are “some persuasive reasons why

a presumption of prejudice is sensible in a case like this, and why it may be important to

recognize such a presumption [under the Maryland Constitution] to preserve the right to

the effective assistance of counsel regardless of whether there has been a showing of an

actual denial of that right,” as the State and my dissenting colleagues understand the

meaning of the phrase “actual denial.” Dissenting Op. of Fader, C.J., at 7; see also Perry

v. State, 357 Md. 37, 85 & n.11 (1999) (in an ineffective assistance of counsel case,

disagreeing with a position taken by Justice Lewis Powell in a concurring opinion in

Kimmelman v. Morrison, 475 U.S. 365, 391 (1986), and subsequently also by the United

States Court of Appeals for the Seventh Circuit, and explaining that this Court’s

conclusions “announced in this Opinion … constitute our construction of the independent

Maryland Constitutional provision [Article 21]”). However, for present purposes, I will

assume that, if we were to ask for supplemental briefing, the State would argue that: (1) the

State wins under the Sixth Amendment; (2) Article 21 and Article 24 should not be read to

-3- provide any broader protection to criminal defendants than the Sixth Amendment does in

this context; and (3) therefore, the State wins under an Article 21 and Article 24 analysis.

The Court does not need to wait for the State to tell us that before deciding whether

we agree or disagree. We already know that the Majority disagrees with the threshold

premise that the State prevails under the Sixth Amendment.1

As Justice Watts has explained, the Majority believes that the United States

Supreme Court would decide this case in Mr. Clark’s favor under the Sixth Amendment.

But, ultimately, whether the Supreme Court agrees with the Majority under the Sixth

Amendment does not affect my conception of the right to counsel under Articles 21 and

24. The right to counsel is arguably the most important right enshrined in Maryland’s

Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth

Amendment provides the same amount of protection as Article 21 and Article 24 do in this

context, it will answer in the affirmative. But if I am wrong about that, then I will be proud

that Maryland provides a more robust right to counsel in this context under Article 21 and

Article 24.

1 The State could not argue that, if the Court disagrees with the State on the Sixth Amendment ground, the Court should affirm the judgment of the Appellate Court under Article 21 and/or Article 24. See Leidig, 475 Md. at 241 n.25 (observing that, “[i]f the Supreme Court subsequently interprets the Sixth Amendment Confrontation Clause to provide greater protection than we afford to a criminal defendant under Article 21, Maryland courts will, of course, be bound to apply such a new Sixth Amendment standard”).

-4- I do not want to waste anybody’s time. That includes the State, but even more so,

Mr. Clark. He is entitled to a new trial. The Majority is right to order that now, rather than

wait to do so until the next term of Court.

Justices Watts, Hotten, and Eaves have authorized me to state that they join this

opinion.

-5- Circuit Court for Howard County Case No. C-13-CR-18-000001

Dissenting Opinion by Fader, C.J., which Booth and Gould, J.J. join. ______________________________________

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Respectfully, I dissent. I would affirm the Appellate Court’s decision concerning

the application of federal constitutional law to this case. Because the parties did not brief

or argue any issues with respect to the possible application of Maryland constitutional law,

I would not address those issues without first soliciting briefing from the parties and setting

this case in for re-argument.

A fundamental disconnect between the very thorough majority opinion and the

equally thorough principal dissent, authored by Justice Gould, is over the meaning of the

phrase “actual denial.” The Majority views it as settled by precedent that an unobjected-

to and uncorrected no-communication order constitutes an actual denial of the assistance

of counsel, regardless of whether it is proven, probable, possible, or even conceivable that

the defendant and counsel would have spoken but for that directive. See, e.g., Maj. Op. at

29, 56-57 (asserting that the result the Majority reaches is compelled by principles of stare

decisis). Justice Gould, by contrast, understands actual denial to include a component of

actuality, meaning that the denial must have been real and existed in fact. See Dissenting

Op. of Gould, J. at 26.

The primary law applied in both the Majority opinion and in Justice Gould’s dissent

is federal constitutional law, specifically the intersection of two aspects of the law

concerning the Sixth Amendment right to the effective assistance of counsel: (1) the right

to consult with counsel over extended breaks in testimony identified in Geders v. United

States, 425 U.S. 80 (1976), and its progeny; and (2) the requirements for proving a

deprivation of the right to the effective assistance of counsel identified in Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny. There is good reason the opinions focus primarily on federal constitutional law, as Mr. Clark’s claim was raised based solely on

federal law and the parties’ briefs, with one small exception, concern only federal law.1

The first exploration of the potential application of Article 21 and Article 24 of the

Maryland Declaration of Rights to this matter comes in the Majority opinion. See Maj.

Op. at 44-48. I will therefore divide my comments between the Majority’s analysis of the

federal constitutional issues, which are properly before us, and the Maryland constitutional

issues, which are not.

A. Mr. Clark’s Federal Constitutional Claims

The critical issue in dispute is whether a no-communication order necessarily results

in an actual denial of the assistance of counsel.2 See Strickland, 466 U.S. at 691-92 (stating

that “any deficiencies in counsel’s performance must be prejudicial to the defense in order

to constitute ineffective assistance under the [United States] Constitution” and then

identifying the “[a]ctual . . . denial of the assistance of counsel altogether” as an instance

in which such prejudice from such deficiencies is presumed). If it does, then I would agree

1 In his reply brief, Mr. Clark quotes Article 21 of the Maryland Declaration of Rights in the course of making an argument about the “constitutional right to counsel,” but he does not argue that it has any different meaning from the Sixth Amendment to the United States Constitution. 2 I agree with Justice Gould that under Strickland, analytically, the relevant causal relationship must exist between counsel’s deficient performance in not objecting to the no- communication order and any actual denial of the assistance of counsel. Dissenting Op. of Gould, J. at 23-25. However, because we must assume that an objection would have caused the trial court to correct its error, Newton v. State, 455 Md. 341, 361 (2017), there is effectively no difference between asking whether counsel’s failure to object resulted in an actual denial of the assistance of counsel and whether the court’s no-communication order itself effected such a denial.

2 with the Majority that a presumption of prejudice arises under Strickland, 466 U.S. at 692,

and Mr. Clark would prevail. If it does not, however, then Mr. Clark cannot prevail.

As a starting point, none of the cases on which the Majority opinion predominantly

relies—Geders; Perry v. Leeke, 488 U.S. 272 (1989); Strickland; or Ramirez v. State, 464

Md. 532 (2019)—held, either expressly or implicitly, that a no-communication order

always results in an actual denial of the assistance of counsel for purposes of the Strickland

analysis. In both Geders and Perry, the no-communication orders at issue were contested

at trial, so the issue was not presented. See Geders, 425 U.S. at 82 (stating that petitioner’s

counsel objected to the no-communication instruction); Perry, 488 U.S. at 274 (stating that

counsel moved for a mistrial based on the no-communication instruction). In Strickland,

the United States Supreme Court established a presumption of prejudice when there has

been an “[a]ctual . . . denial of the assistance of counsel altogether,” 466 U.S. at 692, but

did not identify the circumstances in which an actual denial occurs, much less explore

whether an actual denial results from a no-communication order. And in Ramirez, this

Court briefly discussed the actual denial exception to the requirement to prove prejudice

under Strickland—and, as I discuss below, adopted a definition of actual denial—but also

did not discuss whether a no-communication order necessarily results in an actual denial

of the assistance of counsel because there was no such order in that case. 464 Md. at 574-

75.

The Majority nonetheless treats those cases as establishing that the phrase “actual

denial” necessarily encompasses a no-communication order. By contrast, Justice Gould

interprets the phrase as encompassing the failure to object to a no-communication order

3 only if there is some evidence—any evidence—that the order actually inhibited

communication between a defendant and counsel. Dissenting Op. of Gould, J. at 30-32.

On that issue, Justice Gould has the more sound analysis.

First, I have no qualms with the Majority’s definition of denial as a “‘refusal to

satisfy a request or desire[,]’ or ‘refusal to grant or allow something[.]’” Maj. Op. at 31

n.11 (quoting two dictionary definitions of “denial”). But “denial,” as used by the United

States Supreme Court in Strickland and applied here, does not stand alone; it is modified

by “actual.”3 In this context, “actual” means “existing in fact or reality” and “existing or

occurring at the time.” Actual, Merriam-Webster’s Collegiate Dictionary 13 (11th ed.

2014); see also Actual, New Oxford American Dictionary 16 (3d ed. 2010) (defining

“actual” as “existing in fact; typically as contrasted with what was intended, expected, or

believed”). “Actual denial” thus refers to a refusal that exists in fact, i.e., that has effect.

The Majority’s understanding of “actual denial” effectively strips the modifier “actual”

away, thus broadening the exception identified in Strickland beyond its plain meaning and

beyond what the United States Supreme Court and this Court have previously recognized.

Second, the Majority’s reliance on Ramirez for its different understanding of “actual

denial” is misplaced. In Ramirez, relying on United States v. Cronic, 466 U.S. 648 (1984),

this Court included the following definition: “Actual denial of the assistance of counsel

occurs where ‘counsel was either totally absent, or prevented from assisting the [petitioner]

3 As discussed below, in Strickland, “denial” is also modified by “constructive.” 466 U.S. at 692. Because Mr. Clark’s claim is of an actual denial of the assistance of counsel, I focus my discussion on that.

4 during a critical stage of the proceeding.” 464 Md. at 574 (alteration in original) (quoting

Cronic, 466 U.S. at 659 n.25). Mr. Clark has not claimed that his counsel was totally

absent, nor could he.4 In making the case that Mr. Clark’s counsel was “prevented from

assisting [him] during a critical stage of the proceeding,” the Majority relies on the

following definitions of “prevent”: “‘to keep from happening or existing’ and ‘to deprive

of power or hope of acting or succeeding[.]’” Maj. Op. at 54-55 (quoting two dictionary

definitions). However, both of those definitions instead bolster the plain language

understanding of “actual denial.” An action does not “keep [something] from happening

or existing” if that thing would not have happened or existed anyway, nor does an action

“deprive” someone of something that the individual would not have had otherwise.

(Emphasis added).

Third, the Majority includes several statements to the effect that neither the United

States Supreme Court nor this Court has ever “required a defendant to demonstrate or prove

anything as a condition to the presumption applying[.]” See, e.g., Maj. Op. at 43-44; see

also id. at 19 (“With respect to an actual or constructive denial of the assistance of counsel

and certain kinds of State interference, no affirmative showing or demonstration by the

defendant is required; rather, there is a per se rule of prejudice.”), id. at 35 (“This Court

has never held that, to establish that counsel was prevented from rendering assistance

during a critical stage of the proceedings, a defendant is required to demonstrate that the

4 The issue before us is not whether Mr. Clark’s counsel was present to object to the no-communication order, as he indisputably was, but whether he provided ineffective assistance of counsel by not objecting when the order was given in his presence.

5 defendant wanted to, or would have taken advantage of the opportunity to, speak with

counsel.”), id. at 69-70 (“Prejudice is presumed without the requirement that the defendant

satisfy any condition precedent.”). But the United States Supreme Court and this Court

have both stated that the presumption of prejudice applies in only three instances: (1) the

“[a]ctual . . . denial of the assistance of counsel altogether”; (2) the “constructive denial of

the assistance of counsel altogether”; and (3) “when counsel [was] burdened by an actual

conflict of interest[.]” Ramirez, 464 Md. at 574 (alterations in original) (quoting

Strickland, 466 U.S. at 692). To trigger a presumption of prejudice under Strickland,

therefore, a defendant must identify the existence of one of those three circumstances. If

any of them exist, then nothing further is required to invoke the presumption of prejudice.

But that does not obviate the need to at least identify, in this case, an actual denial of the

assistance of counsel. And, in my understanding of it, that is all the analysis in Justice

Gould’s dissent would require: some demonstration that a circumstance that must exist to

give rise to a presumption of prejudice does, in actuality, exist. That demonstration can be

made by an objection at trial, some other indication from trial that the defendant and

counsel would have spoken but for the no-communication order, or some evidence put

forward at a subsequent proceeding to that effect. See Dissenting Op. of Gould, J. at 37-

38.

To the extent the Majority’s decision today purports to apply federal constitutional

law, the Majority has effectively added a fourth exception in which this Court will presume

prejudice for purposes of applying Strickland, which is when a court issued a no-

communication order. I dissent from that portion of the Majority’s holding because I think

6 that controlling precedent concerning federal constitutional law mandates it. See Ramirez,

464 Md. at 574-75 (concluding that “[t]he [United States] Supreme Court’s opinions in

Strickland and Cronic establish that the presumption of prejudice applies only under three

circumstances” and that if it “applied under any circumstance other than [those] three, the

Supreme Court would have stated as much in its thorough discussion of the presumption

of prejudice in Cronic” (citations omitted)).

B. The Majority’s State Constitutional Holding

In addition to its reliance on federal constitutional law, the Majority also concludes

that the no-communication order under review violated Articles 21 and 24 of the Maryland

Declaration of Rights. Maj. Op. at 2, 44-48, 69-70. In doing so, the Majority identifies

some persuasive reasons why a presumption of prejudice is sensible in a case like this, and

why it may be important to recognize such a presumption to preserve the right to the

effective assistance of counsel regardless of whether there has been a showing of an actual

denial of that right. Id. at 60-61, 62-63. I am convinced that those concerns are worth

further exploration and may ultimately lead me to conclude that the order in this case

violated Mr. Clark’s rights under the Constitution of Maryland.

The problem with drawing that conclusion here, however, is that not only was it not

raised or decided in the courts below, see Md. Rule 8-131(a) (“Ordinarily, an appellate

court will not decide any other issue unless it plainly appears by the record to have been

raised in or decided by the trial court, but the Court may decide such an issue if necessary

or desirable to guide the trial court or to avoid the expense and delay of another appeal.”),

but it also was neither briefed nor argued by the parties in this Court. We have commented

7 on the limited circumstances in which it is appropriate for an appellate court to review any

unpreserved issue: “We usually elect to review an unpreserved issue only after it has been

thoroughly briefed and argued, and where a decision would (1) help correct a recurring

error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if

there is a subsequent collateral attack on the conviction.” Ray v. State, 435 Md. 1, 22

(2013) (quoting Conyers v. State, 354 Md. 132, 151 (1999)) (emphasis added). This is not

such a situation.

The Majority is correct that we may interpret our Maryland Constitution to offer

broader protection than the United States Constitution, and that we have sometimes done

so. See, e.g., Leidig v. State, 475 Md. 181, 234-42 (2021) (addressing a claim concerning

the right to confrontation of witnesses under Article 21 in light of a lack of clarity in

decisions of the United States Supreme Court under the Sixth Amendment to the United

States Constitution). As a general matter, I welcome the opportunity to explore claims

properly brought, or at a minimum properly briefed and argued, by litigants under the

Maryland Constitution. However, I am not aware of a circumstance in which we have

decided to do so without the benefit of any argument and analysis by the parties, much less

the thorough briefing and argument we ordinarily treat as a prerequisite to addressing

unpreserved issues of any variety. For that reason, although there is much to commend in

the Majority’s brief analysis addressing our State Constitution, I would not rule on that

basis without first (1) providing the parties with notice that the Court is considering ruling

on that basis, (2) inviting the parties to submit briefs addressing that issue, and (3) setting

8 Justice Booth and Justice Gould advise that they join this dissenting opinion.

9 Circuit Court for Howard County Case No. C-13-CR-18-000001 Argued: March 3, 2023

September Term, 2022

______________________________________

Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves,

Dissenting Opinion by Gould, J., which Fader, C.J., and Booth, J., join. ______________________________________

* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. The issue here is whether, in a post-conviction claim of ineffective assistance of

counsel predicated on trial counsel’s failure to object to the court’s improper order barring

the defendant from communicating with counsel during the overnight recess, the defendant

is entitled to a presumption of prejudice under Strickland v. Washington, 466 U.S. 668

(1984). Although this is an issue of first impression in this Court, established Sixth

Amendment jurisprudence from both this Court and the United States Supreme Court

provides a clear analytical path for resolving this question. That path is animated by the

well-settled proposition that direct appeals alleging certain trial court errors are subject to

a less exacting standard than ineffective-assistance-of-counsel claims predicated on

defense counsel’s failure to object to such errors.

If trial counsel preserves for appeal a court’s improper order barring communication

between the defendant and his counsel during an overnight recess (“no-communication

order”), there is no question that, under Geders v. United States, 425 U.S. 80 (1976),1 in a

direct appeal, the defendant would automatically be entitled to a new trial. If defense

counsel objects to the improper order, the defendant is not required to establish a record in

the trial court that, but for the improper order, the defendant and counsel would have

communicated during the recess. Nor would the defendant have to demonstrate on appeal

that the result at trial would have been different but for the improper order. The reason is

simple: such an order plainly violates the Sixth Amendment under Geders; the objection

1 In Geders, the United States Supreme Court held that an order restricting a defendant from consulting with counsel “about anything” during an overnight recess violated the defendant’s Sixth Amendment right to the assistance of counsel. 425 U.S. at 91. tells the trial court that the order is improper and that the defendant and his counsel want

to, at a minimum, keep the line of communication open during the overnight recess; and

no defendant should be required to disclose what he intends to do with his right to counsel

as a condition of keeping it.2

Think of it this way: Before the court issued the improper no-communication order,

it wasn’t the court’s business whether the defendant and his counsel would have

communicated during the recess, and it certainly does not become the court’s business after

the court issues the improper order. So if the defendant timely objects to the no-

communication order, and the court refuses to rescind the order, we simply don’t trust the

outcome—no questions asked.

Although both claims are grounded in the Sixth Amendment, a direct appeal from a

Geders violation is analytically distinct from an ineffective assistance of counsel claim.

This distinction is particularly acute when the deficient performance was counsel’s failure

to object to an improper no-communication order. In a direct appeal, the defendant’s

objection notified the trial court that the order was unlawful, and yet the court refused to

rescind it. So, the court is to blame for the fact that defendant was denied access to counsel

and a new trial, therefore, is automatic. But in a claim for ineffective assistance of counsel,

we assume that if counsel had timely objected, the court would have done the right thing

and rescinded the order. Thus, if defendant was denied access to counsel during an

2 Thus, an objection to an improper no-communication order is not, for preservation purposes, treated like an objection to the exclusion of evidence which, to be preserved, must be accompanied by a proffer of the substance of the excluded evidence. A Geders violation is, and should be, treated differently than a garden-variety evidentiary ruling. 2 overnight recess, the blame no longer lies with the court, but instead must lie with

defendant’s counsel.

The Sixth Amendment is not necessarily offended, however, if a defendant cannot

access his lawyer during a lengthy recess for reasons other than a trial court’s improper

order. So the question then becomes: Was defense counsel’s failure to object, as a factual

matter, the causal agent for defendant’s inability to communicate with counsel during the

overnight recess? We should ask that question because, for example, if defense counsel

was going to be unavailable during the entire overnight recess anyway, you can’t blame

his failure to object for the fact that they did not communicate. Similarly, if the defendant

had no desire or inclination to speak with counsel in the first place, counsel’s failure to

object did not have any effect on their ability to communicate.

Moreover, unlike when a defendant timely objects to the improper order during the

trial, to ask that question in a post-conviction proceeding does not insert the court into an

area in which it has no business. The defendant already had his trial, no trial is perfect, and

before the court grants the defendant a do-over, it’s not unfair for the court to require the

defendant to at least show that he would have wanted to communicate with counsel had he

been allowed to do so. Not what he would have wanted to discuss or how he would have

taken advantage of the opportunity to speak with counsel—which always was and should

remain none of the court’s business—just whether he wanted to do so. Post-conviction

courts are not in the business of granting a windfall of a new trial.

Therein lies the fault line between the Majority’s analysis and mine. Ineffective

assistance of counsel claims are governed by Strickland, which requires a defendant to

3 prove that counsel’s deficient performance—not the trial court’s improper order—denied

him his Sixth Amendment right to the effective assistance of counsel. Strickland requires

proof that but-for counsel’s deficient performance, the outcome would likely have been

different. A defendant is relieved of that burden if, as a factual matter, counsel’s deficient

performance—here, counsel’s failure to object to the improper order—prevented him from

communicating with counsel. When that happens, Strickland demands that we presume

that the outcome would have been different, and that the defendant should be entitled to a

new trial.

The Majority, however, concludes that it’s too much to ask in a Strickland claim

whether the defendant wanted to speak with counsel during the overnight recess, let alone

would have done so. As the Majority sees it, that the no-communication order was per se

reversible error is enough to find that Mr. Clark was denied his Sixth Amendment right to

the effective assistance of counsel. In effect, but without saying so, the Majority disregards

settled precedent by bypassing Strickland and reviewing the trial court’s unobjected-to

error under the plain error doctrine.

Moreover, the Majority provides an alternative holding based on issues neither

raised nor briefed by either party—Articles 21 and 24 of the Maryland Declaration of

Rights. In doing so, the Majority not only departs from settled principles of judicial

restraint, but overturns this Court’s recent reaffirmation of the well-established principle

that we review ineffective-assistance-of-counsel claims under the United States

Constitution and the Maryland Declaration of Rights using the same standards.

Accordingly, for the reasons more fully explained below, I respectfully dissent.

4 BACKGROUND FACTS AND PROCEEDINGS The Trial

In February 2019, Appellant, Damien Gary Clark, was tried before a jury in the

Circuit Court for Howard County on charges of second-degree murder, manslaughter,

attempted second-degree murder, and several counts of assault. Mr. Clark was accused of

stabbing two men during an altercation in a convenience store, causing the death of one

and serious injury to the other.

Mr. Clark’s trial took five days. The State called 18 witnesses and presented 76

exhibits. Defense counsel tried to establish, through its cross-examination of the State’s

witnesses, that the victims could have been high on marijuana, that they beat up Mr. Clark,

that Mr. Clark had two black eyes from the fight, that the victims blocked Mr. Clark’s exit

from the convenience store, that Mr. Clark’s wife, Felicia Cox, tried to break up the fight,

that the victims could have easily exited the store, and that the surviving victim pushed Ms.

Cox after she grabbed his hoodie.

The State rested on the fourth day of trial. Mr. Clark testified in his case-in-chief

and successfully moved to admit two exhibits. In his testimony, Mr. Clark walked the jury

through the entire encounter, from start to finish. He also narrated videos taken by the

various security cameras at the store. Mr. Clark sought to establish that he stabbed the two

men in defense of himself and his wife. He called no other witness.

After Mr. Clark completed his direct testimony, the court decided to recess for the

night and scheduled the State’s cross-examination to begin the next morning. The court

then instructed Mr. Clark, as follows:

5 [THE COURT]: You can’t talk to anybody about the case this evening even [trial counsel] and [the paralegal]. Okay?

[THE COURT]: You can’t talk to anybody. It sounds counterintuitive.

[THE COURT]: You can’t talk to your own attorney about the case.

Mr. Clark’s defense counsel did not object to the court’s instruction. The next

morning, the State cross-examined Mr. Clark.

Mr. Clark’s claim of self-defense was ultimately successful in part. The jury

acquitted him of second-degree murder and assault in the first-degree, and convicted him

of voluntary manslaughter, two counts of second-degree assault, and attempted second-

degree murder. He was sentenced to 50 years in prison.

The Direct Appeal

Mr. Clark noted an appeal. He contended, among other things, that the trial court

denied him his Sixth Amendment right to counsel “after a critical day of testimony,” when

it instructed him not to speak with his attorney during the overnight recess. The State

countered that because Mr. Clark neglected to object to the court’s instruction at trial, he

failed to preserve the issue for appeal. The State urged the Court not to review the issue

6 for plain error.3 In his reply brief, Mr. Clark asked the Court to conduct a plain error

review.

In an unreported opinion, the Appellate Court of Maryland concluded that Mr.

Clark’s argument was not preserved for review and affirmed his convictions. Clark v.

State, No. 486, Sept. Term, 2019 (filed June 29, 2020). Although the Appellate Court did

not say so expressly, in so ruling, it declined to conduct plain error review. The Court also

opined that Mr. Clark’s Sixth Amendment claim appeared meritorious, but that the proper

way to raise it would be a post-conviction claim of ineffective assistance of counsel.

3 As we stated in Newton v. State:

Plain error review is “reserved for those errors that are compelling, extraordinary, exceptional or fundamental to assure the defendant of a fair trial.” Before we can exercise our discretion to find plain error, four conditions must be met: (1) “there must be an error or defect—some sort of ‘deviation from a legal rule’—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant”; (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute”; (3) “the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings’”; and (4) the error must “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.”

455 Md. 341, 364 (2017), cert. denied, 138 S. Ct. 665 (2018) (internal citations omitted).

7 The Post-Conviction Hearing

Mr. Clark subsequently filed a petition for post-conviction relief, alleging 12 claims

of error by his trial counsel, including his counsel’s failure to object when the trial court

improperly barred Mr. Clark from communicating with counsel.4

On July 29, 2021, the circuit court held a post-conviction hearing. Mr. Clark’s post-

conviction counsel called Mr. Clark’s trial counsel as the first witness. Trial counsel was

questioned extensively about his trial strategy and thought processes behind many of the

alleged errors or omissions. Trial counsel testified that, at the time of Mr. Clark’s trial, he

had been practicing criminal law for almost 20 years and had worked on approximately 40

homicide cases. When asked why he did not object to the trial court’s improper instruction,

trial counsel explained:

At the time, I didn’t think there was anything for us to talk about that evening. We had talked that morning, I guess when I delivered the suit to him. We talked during the trial, right before lunch. I believe, you know, at every break. It’s not like I can leave here and call him. You know, I can’t call into [Jessup Correctional Institute] at that time, they have it now, because of all the COVID. So, the issue would have been, did I want to go back downstairs in the sheriff’s lockup and see him that day? And before we went down—at the end of each day, I would always ask him if he had any questions or

4 In addition, Mr. Clark alleged deficient performance in that counsel allegedly: failed to request a “defense of others” instruction; failed to subpoena Ms. Cox; failed to subpoena “multiple individuals who were present during the fight”; failed to adequately cross-examine the surviving victim; failed to object to “irrelevant testimony about the knife in Mr. Clark’s car”; failed to make an “adequate” motion for judgment of acquittal; failed to object to cumulative testimony about the victims’ injuries; failed to apply for a three- judge panel to review Mr. Clark’s sentence; failed to consult with Mr. Clark about applying for a three-judge panel review; filed an untimely and inadequate motion for a new trial; and elicited damaging evidence of Mr. Clark appearing angry.

8 anything like that. So, the answer is that I just didn’t have anything to go over with him because I thought he was doing good on the witness stand.[5]

Trial counsel acknowledged that, although at the time of trial, he was not

specifically aware of Geders, he was aware that Mr. Clark was entitled to confer with him,

stating:

[A defendant] always has a right to confer with me but if you’re asking me, did I read that particular case, United States versus Geders and know it specifically, that case, no. I know he had a right to talk to me and if he said he had anything to say, I would have talked to him.

When cross-examined by the State, trial counsel elaborated upon his failure to

object:

For Mr. Clark’s testimony, we practiced, without having a stopwatch, maybe eight to ten hours. We went to him. We went to [Jessup Correctional Institute]. We first would go over his notes. He would say, you know, after we got past a point, I advise him, you know, this is the risk of testifying and with the wife’s situation. Then he said he want to testify. So we rehearsed. I would ask him direct and then I would have another young lady with me, (indiscernible), cross. And then we swapped and sometimes I would be the prosecutor and she would be the person and he would answer questions and we would go over the phrases he uses, the words he uses, his facial expression, you know, his pace, how to respond when confronted with evidence and how to do [sic]. And then we’d say, you know, try this or try that or why don’t you do this or why don’t you do that. We did that for many hours.

The Majority contends that “[t]he only reasonable inference to draw from this 5

testimony is that the no-communication order prevented [trial counsel] from doing what he had done at the end of the prior days of trial—asking Mr. Clark if he had any questions.” Maj. op. at 63. I disagree. Trial counsel said he “always” asked Mr. Clark if he had any questions “at the end of each day[.]” In my view, counsel’s use of the words “always” and “each day” means that the court’s no-communication order didn’t stop him from asking. 9 The State also asked trial counsel whether, at the conclusion of Mr. Clark’s direct

testimony, he had any concerns that he had wanted to address with Mr. Clark during the

overnight recess, to which he responded:

No. We talked all day. We talked in the morning, every break, lunch break or break to do this and that and sit at the trial table, go back and forth. After lunch before we sat down, we talked. [Or] if we wanted to go down, we’d go down and talk to him. At the end of the incident, you know, at the end of that day, I think he was sitting up here but I didn’t have anything to ask him, and he didn’t say, hey, I want to talk to you. And so, I guess I could have objected for the record that if the judge was wrong, I think the judge is wrong but, you know, I didn’t have anything—I’d be lying if I said I had something to say and we were prevented from saying it.

The following exchange then occurred:

[THE STATE]: Had [Mr. Clark] said, I want to speak to my attorney, would you have advocated on his behalf to—

[TRIAL COUNSEL]: Absolutely.

[THE STATE]: And just so I have—just so this record is clear in terms of what was happening at that point in time in the trial, it was the end of a day of testimony, right? It was the end of the day. The attorneys were going home. [Mr. Clark] was being returned to the Detention Center. And everyone was due to return first thing in the morning and start right away. Is that fair?

[TRIAL COUNSEL]: Yes.

[THE STATE]: And so, it wasn’t a situation where we’re taking a two-hour break for everyone to work on the case, right?

[TRIAL COUNSEL]: That’s correct.

[THE STATE]: It was the end of the day. The day’s work was over.

[THE STATE]: We all know at night attorneys might look over notes, et cetera, but he wasn’t coming to your office that night. Is that fair?

10 [TRIAL COUNSEL]: No.

[THE STATE]: He was at the Detention Center.

[TRIAL COUNSEL]: And we can’t call him.

[THE STATE]: All right. You couldn’t even call him. And he went immediately back on the stand the next day. Is that your recollection?

***

[THE STATE]: And so essentially zero business minutes in a strange way of saying that?

[THE STATE]: Okay. And do you recall the next morning before he testified whether he expressed any indication to you or [the paralegal] in your presence that he had questions of you or wanted to talk to you?

[TRIAL COUNSEL]: No. We had come back in the morning. The sheriff brought him out to sit at the table. [The paralegal], myself—[the paralegal], the other lawyer who was assisting, and myself were sitting at the table, you know, are you okay? You know . . . we’re going to do this. We’re [going to] do that or whatever. We talked at the trial table with him.[6]

6 The Majority asserts that:

[Trial counsel] was not asked and offered no testimony as to whether, independent of his observation that Mr. Clark did not say he wanted to speak with him while in the courtroom, he knew whether Mr. Clark developed the desire to speak with him later during the recess or whether Mr. Clark had wanted to waive the right to counsel. [Trial counsel] also offered no testimony as to whether it would have been desirable or advantageous for him to speak to Mr. Clark about matters other than his testimony, such as a potential plea bargain, potential rebuttal witnesses for the State, or next steps in the trial.

Maj. op. at 6-7.

11 [THE STATE]: All right. So, you actually communicated with him, but you just didn’t talk about the substance—

[THE STATE]: —of his testimony?

[TRIAL COUNSEL]: Yes. Yeah.

[THE STATE]: And that was really—I don’t want to—was that [your] perception of the spirit of [the trial judge’s] order?

[TRIAL COUNSEL]: Uhm.

[THE STATE]: If you don’t know, I’m not going ask you to—

[TRIAL COUNSEL]: I don’t know the spirit of his order. When I read it now, reading it at the post-conviction, I say wow, I should have objected but was I going to meet with him or say anything that night? The answer is no. And he didn’t ask me.

The post-conviction court found that the trial court’s instruction was inconsistent

with the holding in Geders. The post-conviction court also found that trial counsel’s

performance was deficient, stating that there was no evidence of “a legitimate strategic or

tactical reason for letting the instruction go.” According to the court, although trial counsel

did not believe that there was a need to speak with Mr. Clark that evening, the right to

The Majority is incorrect. As the above exchange shows, trial counsel did testify that he had spoken with Mr. Clark the next morning before the cross-examination began and asked him if he was okay and discussed what they were going to do. When Mr. Clark testified, he did not contradict trial counsel on this point.

Moreover, the Majority’s assertion that trial counsel “offered no testimony” on whether “it would have been desirable or advantageous for him to speak to Mr. Clark” about matters other than his testimony is likewise not correct. Id. Trial counsel testified that “I’d be lying if I said I had something to say and we were prevented from saying it.” 12 assistance of counsel belonged to Mr. Clark, and Mr. Clark may have wanted to consult

with counsel but was not allowed to by the court.

In addition, the post-conviction court found that trial counsel’s failure to object to

the instruction prejudiced Mr. Clark “not only because he was deprived of his Sixth

Amendment right to counsel during the overnight recess, but also because he was not able

to raise the issue on appeal due to trial counsel’s failure to object to the erroneous

instruction.” On that basis, the post-conviction court granted Mr. Clark a new trial.

The Appellate Court of Maryland’s Decision on the Post-Conviction Appeal

The Appellate Court reversed the judgment of the post-conviction court. State v.

Clark, 255 Md. App. 327, 347-48 (2022). In doing so, it rejected Mr. Clark’s argument

that, under Geders, the trial court’s instruction denied him effective assistance of counsel

and that he was therefore entitled to the presumption of prejudice. Id. at 346. The Court

instead applied the test for ineffective assistance of counsel established in Strickland.

Under Strickland, a defendant seeking to prove ineffective assistance of counsel must prove

“that counsel’s performance was deficient” and “that the deficient performance prejudiced

the defense.” 466 U.S. at 687.

The Appellate Court determined that, in the absence of an objection to the

instruction at trial, Mr. Clark needed to show that he was, in fact, deprived of the right to

counsel in order to enjoy a presumption of prejudice based on the actual denial of counsel

under Strickland. Thus, he needed to show that he wanted to speak to counsel or that

counsel wanted to speak to him, and that they would have done so absent the instruction.

Clark, 255 Md. App. at 345. In the absence of such evidence, the Court concluded that

13 Mr. Clark was required to show actual prejudice, which meant he had to “articulate how

specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 346

(quoting Ramirez v. State, 464 Md. 532, 564 (2019), cert. denied, 140 S. Ct. 1134 (2020)).

Because Mr. Clark made no argument that, but for the lack of overnight consultation, the

result of the trial would have been different, the Court found that he failed to prove he was

prejudiced by counsel’s failure to object to the court’s instruction. Id. at 346. Having

resolved Mr. Clark’s Strickland claim under the prejudice prong, the Court declined to

address the performance prong of the test. Id. at 340.

Judge Douglas Nazarian dissented, stating, in part:

Under Geders and the cases that follow it, Mr. Clark’s Sixth Amendment rights were violated, in real life terms and in constitutional terms, when the court wrongly forbade him from conferring with counsel. The deprivation happened when the court ordered it, and certainly no later than the following morning, when the overnight recess ended. This is because the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away. . . .

. . . Although the deprivation that occurred here is identical to the deprivation in Geders, the majority required him to prove retroactively that he actually had planned to exercise the Sixth Amendment right the trial court forbade him from exercising . . . . He is worse off in constitutional and real-life terms for his counsel’s indisputably deficient performance . . . .

Id. at 348-49 (Nazarian, J., dissenting).

Mr. Clark filed a petition for certiorari, which this Court granted. Clark v. State,

482 Md. 141 (2022).

14 DISCUSSION

The Majority’s Improper Alternative Holding Under the Maryland Declaration of Rights

Mr. Clark did not ask us to address his post-conviction claim under the Maryland

Declaration of Rights, but instead predicated his claim solely on the Sixth Amendment to

the United States Constitution. Nevertheless, even though the parties did not brief the

issues, the Majority alternatively holds that Mr. Clark’s right to the effective assistance of

counsel under Articles 21 and 24 of Maryland’s Declaration of Rights was violated. Maj.

op. at 2, 44-48. In so holding, the Majority violates settled principles of judicial restraint

regarding issues not raised by the parties. Moreover, the Majority implicitly overturns this

Court’s confirmation that ineffective-assistance-of-counsel claims under the Maryland

Declaration of Rights and the Sixth Amendment are governed by the same standards—

specifically, the standards articulated in Strickland. For these two reasons, the Majority’s

sua sponte alternative holding based on State law is improper. See Cnty. Council of Prince

George’s Cnty. v. Offen, 334 Md. 499, 508 (1994).

We are “bound[ed] by a limited scope of review[.]” Id. As we have stated:

An appellate court ordinarily will consider only an issue which is properly raised by the parties in the appellate court, unless the issue concerns the jurisdiction of the trial court or the appellate court.[7] The failure of an

7 There is only a “‘narrow category of issues’ that courts of appeal will ‘sua sponte address’ even if not raised by an appellant.” Turner v. Md. Dep’t of Health, 245 Md. App. 248, 268 (2020). “This category includes the jurisdiction of the intermediate appellate court, the jurisdiction of the trial court, and the certain fundamental questions of policy relating to the trial court’s exercise of jurisdiction.” Joseph H. Munson Co. v. Sec’y of State, 294 Md. 160, 169 (1982); see also Renaissance Centro Columbia, LLC v. Broida, 421 Md. 474, 488 (2011). 15 appellant to raise an issue in the appellate court is usually deemed a waiver as to the issue.

Moats v. City of Hagerstown, 324 Md. 519, 524-25 (1991); see also Foster v. State, 305

Md. 306, 315 (1986) (the failure to make a contention in a party’s “briefs and oral

arguments constitutes a waiver or abandonment of them”); Health Servs. Cost Rev.

Comm’n v. Lutheran Hosp. of Md., Inc., 298 Md. 651, 664 (1984) (“This Court has

consistently held that a question not presented or argued in an appellant’s brief is waived

or abandoned and is, therefore, not properly preserved for review.”).

Mr. Clark did not advance any arguments predicated on the Maryland Declaration

of Rights. Thus, the State was never given an opportunity to address these important issues.

The alternative basis for the Majority’s holding does not fall within the “narrow category

of issues” that this Court addresses sua sponte.

Moreover, the Majority does not rest its alternative basis on settled principles of

law. Rather, the Majority is making new constitutional law without the input of the parties.

Quoting DeWolfe v. Richmond, 434 Md. 444 (2013), the Majority asserts “‘that the due

process right to counsel under Article 24 of the Declaration of Rights is broader than the

right to counsel under Article 21 or the Sixth Amendment[,]’ which ‘has been reaffirmed

by this Court on numerous occasions.’” Maj. op. at 44.

But the holding in Richmond was that “under Article 24 of the Maryland Declaration

of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing

before a District Court Commissioner.” 434 Md. at 464. That holding does not state,

suggest, or imply that a court may bypass the two-pronged analysis established by

16 Strickland. Moreover, Richmond did not address the issue tackled by the Majority here:

whether Article 24 or Article 21 of the Declaration of Rights provides broader rights than

the Sixth Amendment for ineffective assistance of counsel claims. Here, the question is

not whether Mr. Clark had the right to counsel in his criminal trial but whether his right to

counsel was violated by counsel’s failure to object to the no-communication order.

Richmond does not answer that question.

Then, citing Perry v. State, 357 Md. 37 (1999), the Majority declares that “in

ineffective assistance of counsel cases, we have held that Article 21 provides protections

to a criminal defendant’s right to counsel above and beyond that determined by the

Supreme Court as to the Sixth Amendment.” Maj. op. at 44. There are multiple reasons

why Perry does not support this proposition.

First, we specifically noted in Perry that ineffective-assistance-of-counsel claims

under Article 21 are governed by the same standards as under the Sixth Amendment. As

we stated:

We have traditionally regarded the right to counsel guaranteed under Article 21 as being the same right provided by the Sixth Amendment, and, in construing Article 21, we have followed and applied the decisions of the Supreme Court interpreting the Federal provision. See State v. Tichnell, 306 Md. 428, 440, 509 A.2d 1179, 1185, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986) (“There is no distinction between the right to counsel guaranteed by the Sixth Amendment and Art. 21 of the Maryland Declaration of Rights....”); Lodowski v. State, 307 Md. 233, 513 A.2d 299 (1986); Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985). In the context of ineffective assistance claims raised in post-conviction proceedings, we have therefore tended to focus on the Sixth Amendment jurisprudence, even when the claim is based on Article 21 as well, and, as a result, have applied a Strickland/Fretwell analysis to those claims. State v. Colvin, 314 Md. 1, 23-24, 548 A.2d 506, 517 (1988). We do so in this case as well.

17 357 Md. at 85 n.11. The Majority abandons this finding, again, without input from the

parties.

Second, in Perry, we did not purport to expand a criminal defendant’s right to

counsel “above and beyond” that afforded under the Sixth Amendment, as the Majority

contends. Rather, we clarified that right only in the absence of Supreme Court precedent

on that question. Perry, 357 Md. at 85 n.11 (“With respect to the particular issue now in

point, however, there is no controlling Supreme Court precedent supporting the Seventh

Circuit Court’s ruling. The issue is therefore an open one, both as a matter of Maryland

law and, indeed, as a matter of Federal law outside the Seventh and Eleventh Circuits.”).

In contrast, here, unlike in Perry, the Majority resolves Mr. Clark’s Sixth Amendment

claim by applying existing Sixth Amendment jurisprudence.

Third, the language from Perry that the Majority cites for the proposition that

Article 21 protections go “above and beyond” those under the Sixth Amendment, Maj. op.

at 46-48, does not actually say that. Rather, in Perry, we simply reiterated that, despite

treating the rights to counsel under Article 21 and the Sixth Amendment in pari materia,

we retain the authority to interpret Article 21 independently—just as all state courts do in

matters of state law, so long as they respect federal constitutional requirements. 357 Md.

at 85 n.11. As we stated there:

The conclusions announced in this Opinion on this issue constitute our construction of the independent Maryland Constitutional provision. If the Supreme Court were to rule upon the issue, we obviously would be bound by its judgment when interpreting the Sixth Amendment, and we certainly would give due and respectful consideration to it in any future construction of Article 21, but it would not serve, on its own, to alter the declaration made in this Opinion regarding Article 21.

18 Id. That we have the authority to provide criminal defendants greater protections under

the Maryland Constitution than under the federal Constitution, however, does not require

us to do so, and we should not do so without providing the parties with notice and

opportunity to address the issues. As we recently confirmed in Newton v. State:

We have repeatedly stated that “[t]here is no distinction between the right to counsel guaranteed by the Sixth Amendment of the U.S. Constitution and Article 21 of the Maryland Declaration of Rights.” In [State v.] Colvin, we flatly rejected a request to depart from Strickland and establish an ineffective-assistance of counsel test under the Maryland Constitution. 314 Md. at 23-24, 548 A.2d 506. Instead, we held that the Strickland standard applies to ineffective-assistance-of-counsel claims under the Maryland Constitution and considered the matter “settled.” Id.

455 Md. 341, 362 (2017), cert. denied, 138 S. Ct. 665 (2018) (citations omitted); see also

State v. Tichnell, 306 Md. 428, 440 (1986) (quoting Harris v. State, 303 Md. 685, 695 n.3

(1985)).

In sum, the Majority resolves this case on alternative grounds not raised by the

parties and overturns our recent pronouncement that ineffective-assistance-of-counsel

claims under Article 21 and the Sixth Amendment are governed by the same Strickland

standard. And the Majority does this without requesting input from the parties. To say

that I disagree with this approach would be an understatement.

Claims Under the Sixth Amendment

The Sixth Amendment to the United States Constitution provides, in relevant part,

that the accused in criminal cases “shall enjoy the right . . . to have the Assistance of

Counsel for his defence.” U.S. Const. amend. VI. Inherent in the right to assistance of

19 counsel is the right to the effective assistance of counsel. Strickland, 466 U.S. at 686. A

defendant’s right to the effective assistance of counsel can be violated in two ways:

(1) through direct governmental interference; or (2) through trial counsel’s failure to

“render ‘adequate legal assistance[.]’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344

(1980)).

The primary case on which Mr. Clark relies, Geders, exemplifies the first type of

Sixth Amendment claim: governmental interference. See Strickland, 466 U.S. at 686

(citing Geders for the proposition that “[g]overnment violates the right to effective

assistance when it interferes in certain ways with the ability of counsel to make independent

decisions about how to conduct the defense”).

In Geders, at the conclusion of the defendant’s direct examination, but before the

prosecutor’s cross-examination began, the court recessed for the night. 425 U.S. at 82. At

the prosecutor’s request, the court instructed Geders not to discuss the case with anyone.

Id. Geders’ attorney objected, “explaining that he believed he had a right to confer with

his client about matters other than the imminent cross-examination, and that he wished to

discuss problems relating to the trial with his client.” Id. The trial court responded that it

trusted counsel to “properly confine the discussion,” but did not trust the defendant to abide

by any restrictions. Id. The court promised to give defense counsel time to meet with the

defendant after cross-examination. Id. Defense counsel persisted in his objection, at one

point stating that “[t]here are numerous strategic things that an attorney must confer with

his client about” and gave, as one example, the topic of whom defense counsel should call

20 as the next witness. Id. at 82-83, 83n.1. The court was unmoved. Id. at 83 n.1. Geders

was subsequently convicted. Id. at 85.

On appeal to the United States Court of Appeals for the Fifth Circuit, Geders argued,

among other things, that the trial court violated his Sixth Amendment right to communicate

with counsel during a critical stage of the trial. United States v. Fink, 502 F.2d 1, 8 (1974).8

The Court disagreed, finding that the trial court did not commit reversible error, reasoning

that Geders had failed to show that he was harmed by the deprivation of counsel during the

overnight recess. Id. at 8-9. In other words, the Fifth Circuit rejected Geders’ appeal

because he had failed to show prejudice from the trial court’s improper instruction.

The United States Supreme Court reversed. Geders, 425 U.S. at 91. The Court

determined that the trial court violated Geders’ right to counsel because the court’s order

precluded him from discussing anything with his attorney during the 17-hour overnight

recess. Id. The Court did not mention, let alone expressly impose, a requirement of

prejudice, and in subsequent cases the Court confirmed that a showing of prejudice is not

required in such circumstances in a direct appeal.9 See, e.g., Perry v. Leeke, 488 U.S. 272,

279-80 (1989) (confirming that a Geders violation requires no showing of prejudice);

Weaver v. Massachusetts, 582 U.S. 286, 305 (2017) (holding that, on direct appeal, a

preserved claim of structural error entitles a defendant to automatic reversal).

8 Geders’ appeal was consolidated with that of his co-defendant, Michael Fink. 9 The Court in Geders did not expressly state that a showing of prejudice was not required. However, by reversing the Fifth Circuit—which had rejected Geders’ claim because he had failed to show prejudice—the Court implicitly determined that a showing of prejudice was not required. 21 As noted above, the second way a defendant can be deprived of his right to the

effective assistance of counsel is by defense counsel’s failure to “render ‘adequate legal

assistance[.]’” Strickland, 466 U.S. at 686 (quoting Cuyler, 446 U.S. at 344). Claims of

ineffective assistance of counsel are governed by the two-part test articulated in

Strickland—known as the performance and prejudice prongs:

First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. Courts need not address these prongs in any specific order, and if a claim fails

under one prong, the other prong need not be addressed. Id. at 697; Newton, 455 Md. at

356. Here, the Appellate Court addressed and resolved the claim solely on the prejudice

prong.

Prejudice Under Strickland

To establish prejudice under Strickland, the defendant must “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 466 U.S. at 694. The Supreme Court defined

“reasonable probability” in this context as a “probability sufficient to undermine

confidence in the outcome.” Id. The Court explained that “[t]he benchmark for judging

any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced

a just result.” Id. at 686.

22 This Court has echoed that point, explaining that “[a] proper analysis of

prejudice . . . should not focus solely on an outcome determination, but should consider

‘whether the result of the proceeding was fundamentally unfair or unreliable.’” Oken v.

State, 343 Md. 256, 284 (1996) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993));

see also Newton, 455 Md. at 357 (finding that prejudice is proven by showing that the

outcome of the trial would have been different or that the error rendered the trial

“fundamentally unfair”).

There are, however, “very narrow” circumstances when prejudice under Strickland

is presumed. Walker v. State, 391 Md. 233, 247 (2006); Ramirez, 464 Md. at 564. If one

of the narrow exceptions applies, instead of requiring the defendant to prove the result

probably would have been different but for counsel’s errors, the court will presume that

the result would have been different but for counsel’s errors. See Strickland, 466 U.S. at

692-94.

“[P]rejudice is presumed when counsel is burdened by an actual conflict of interest”

because “it is difficult to measure the precise effect on the defense of representation

corrupted by conflicting interests.” Id. at 692. Prejudice is also presumed when there is

an “[a]ctual or constructive denial of the assistance of counsel altogether” or with “various

kinds of state interference with counsel’s assistance.” Id. (citing United States v. Cronic,

466 U.S. 648, 659 & n.25 (1984)). As we held in Ramirez, “a court should presume that

trial counsel’s performance prejudiced the petitioner only if: (1) the petitioner was actually

denied the assistance of counsel; (2) the petitioner was constructively denied the assistance

23 of counsel; or (3) the petitioner’s counsel had an actual conflict of interest.”10 464 Md. at

573. We also confirmed that “[a]bsent these three circumstances, the presumption of

prejudice does not apply, and the petitioner must prove prejudice.” Id.

The Test for the Actual Denial Exception Under Strickland and Ramirez

Sixth Amendment claims based on ineffective assistance of counsel are entirely

“different matters[s]” from Sixth Amendment claims based on “direct governmental

interference.” Perry, 488 U.S. at 279. One key difference is that in “contrast” to a direct

appeal, “[p]ostconviction courts . . . assess ineffective-assistance-of-counsel claims

through the Strickland lens and do not address the merits of particular trial court errors.”

Ramirez, 464 Md. at 566.

The Majority goes astray by relentlessly training its focus on the consequences of

the trial court’s improper order.11 However, to satisfy Strickland, the causal agent of the

10 The Majority downplays the significance of this passage by mischaracterizing it as just something that this court “has stated[.]” In fact, in Ramirez, we specifically began the passage with the phrase “We hold that . . . ” 464 Md. at 572-73. This was a holding, not a mere statement. 11 See, e.g., Maj. op. at 27 (“Violations of the rule against flatly prohibiting consultation between a criminal defendant and his lawyer during a substantial recess are treated as complete denials of counsel (even though they are of limited duration), and so require reversal even if no prejudice is shown.” (quotation omitted)), 29 (“Consistent with this Court’s case law, however, other courts have treated a lengthy or overnight unobjected- to no-communication order itself as a denial of the assistance of counsel, without requiring a showing of an intent by the defendant or counsel to speak with each other but for the order.”), 43 (“Barring all communication between a defendant and trial counsel about the case for such a long period of time during a criminal trial eviscerates that right, and a defendant should not be required to prove or show how the right would have been exercised to demonstrate prejudice.”), 44 (“Rather, the emphasis on the ‘denial’ of the right reflects

24 prejudice—presumed or actual—must be defense counsel’s deficient performance, not the

trial court’s erroneous order. The Supreme Court made that clear in Strickland by using

the “but for” language identified above. The Court in Strickland also made that clear when,

in referring the prejudice requirement, it stated that “the defendant must show that the

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 (emphasis

added). From a grammatical standpoint, this sentence unambiguously identifies counsel’s

“deficient performance” as the causal agent of the necessary prejudice.

Indeed, we made this same point in Ramirez, where we quoted Strickland verbatim

and said:

To satisfy the prejudice prong, a petitioner “must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”

Ramirez, 464 Md. at 561 (quoting Strickland, 466 U.S. at 687). Further, in Ramirez, we

expressly identified counsel’s deficient performance as the causal agent when applying the

test for presuming prejudice in ineffective-assistance-of-counsel claims. Again, notice the

grammatical structure of our holding in Ramirez that, although quoted above in full, I

how a lengthy no-communication order itself prevents access to counsel during a critical stage of a criminal proceeding. The focus is on the order’s interference with Mr. Clark’s right to counsel, by creating a ‘sustained barrier to communication[.]’”), 50 (“The logic behind this approach is that prohibitions on consultation for such periods of time are likely to infringe on the defendant’s ‘right to unrestricted access to his lawyer for advice on a variety of trial-related matters[.]’”) (“The constitutional infirmity of Geders-like no- communication orders is ‘driven by the recognition that certain types of conduct are in general so antithetic to effective assistance . . . that a case-by-case analysis simply is not worth the cost of protracted litigation[.]’”).

25 truncate here: “We hold that, in assessing a petitioner’s allegation of ineffective assistance

of counsel, a court should presume that trial counsel’s performance prejudiced the

petitioner only if . . . the petitioner was actually denied the assistance of counsel[.]” Id. at

572-73 (emphasis added). So, whether we presume or require proof that the outcome was

unfair or unreliable, Strickland and Ramirez compel us to focus on the consequences of

trial counsel’s failure to object to the court’s improper instruction, not the consequences of

the instruction itself.

So let’s now consider whether Mr. Clark is entitled to a presumption of prejudice.

Of the three available exceptions identified in Ramirez, Mr. Clark does not contend that

either the constructive denial12 or conflict-of-interest exceptions apply. That leaves the

“actual denial” exception as the lone basis to support a presumption of prejudice.

Following the Supreme Court’s lead, this Court adopted a specific test for applying

the “actual denial” exception. In Ramirez, just two paragraphs after listing the three

exceptions, we explained that “[a]ctual denial of the assistance of counsel occurs where

‘counsel was either totally absent, or prevented from assisting the [petitioner] during a

12 The “constructive denial” exception applies “where, even though counsel was neither absent nor prevented from assisting the petitioner during a critical stage of the proceeding, the circumstances still amount to a denial of the assistance of counsel.” Ramirez, 464 Md. at 574. Constructive denial occurs where, for example, “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing[.]” Id. A fair reading of the trial transcript would lead any reasonable observer to conclude that the failure to object to the trial court’s no-communication order did not prevent defense counsel from mounting a rigorous defense at every stage of the trial. Mr. Clark does not even invoke the constructive denial exception; thus, it’s not clear why the Majority does. Maj. op. at 43-44.

26 critical stage of the proceeding.’” 464 Md. at 574 (quoting Cronic, 466 U.S. at 659 n.25).

Notice two grammatical features from this definition.13 First, notice the use of the word

“prevented.” This means the “actual denial” exception requires that defense counsel be

prevented from doing something he otherwise would have done; the test doesn’t

contemplate theoretical possibilities.

Second, notice the use of the passive voice—we didn’t say who or what was doing

the “prevent[ing].” But, again, there are only two theoretical possibilities: (1) the trial

court’s error; or (2) defense counsel’s deficient performance. As explained above, just two

paragraphs earlier, we had already identified the causal agent in a Strickland claim as

counsel’s deficient performance. Unlike in a direct appeal, it would be legally impossible

in a Strickland claim to blame the trial court’s error on the lack of communication because,

as explained below, we must presume that the trial court would have rescinded its no-

communication order had counsel objected.

In sum, a faithful application of Ramirez tells us that: (1) the causal agent at the

heart of our inquiry is defense counsel’s deficient performance; and (2) to get the benefit

of the “actual denial” exception to the requirement of proving prejudice, defense counsel’s

deficient performance must prevent defense counsel from rendering some form of

assistance to the defendant that he otherwise would have provided.14

13 We can disregard the “totally absent” part of the test—neither Mr. Clark nor the Majority contend that defense counsel was totally absent. 14 The Majority tries to evade application of Ramirez’s test for “actual denial,” shrugging it off as doing nothing “more than quot[ing] existing Supreme Court caselaw.”

27 Using Ramirez’s carefully articulated framework, we can now apply the “actual

denial” exception to the facts of this case. Here, defense counsel’s deficient performance

was his failure to object to the no-communication order, and the assistance of counsel that

was allegedly prevented was communicating with Mr. Clark. So, the question boils down

to whether defense counsel’s failure to object to the no-communication order “prevented”

defense counsel and Mr. Clark from communicating with each other “during a critical stage

of the proceeding.” See Ramirez, 474 Md. at 574.

To understand whether counsel’s failure to object prevented any communications

with Mr. Clark, we must contemplate what would have happened if defense counsel had

objected. In doing so, we must assume that had counsel objected, the trial court would

have recognized its error and withdrawn the “no-communication order.” See Newton, 455

Maj. op. at 26 & n.9. But that is exactly the point—in Ramirez, we adopted the Supreme Court’s definition of “actual denial”; we should faithfully apply it here. Moreover, although the “actual denial” test was not the focal point of the decision in Ramirez, our adoption of the Supreme Court’s test was not superfluous, as the Majority implies. Id. In the second paragraph of Ramirez, this Court stated: “[t]his case requires us to determine whether trial counsel’s conduct fell below an objective standard of reasonableness, and, if so, whether a presumption of prejudice applies, or whether the petitioner must prove prejudice, where he alleges that trial counsel’s conduct resulted in structural error.” 464 Md. at 539. There, the alleged deficient performance was counsel’s failure to object to a trial court’s structural error. We specifically determined on our own “independent review” of the record that “there was no ‘[a]ctual or constructive denial of the assistance of counsel altogether[,]’ and Ramirez’s trial counsel was not ‘burdened by an actual conflict of interest.’” Id. at 577. In Ramirez, therefore, this Court both articulated and applied the actual denial of counsel exception.

28 Md. at 361.15 But that just means that had trial counsel objected, he and Mr. Clark would

have been permitted to communicate during the overnight recess. Then what?

It does not necessarily follow that they would have spoken during the recess. In

Geders, defense counsel expressly told the court that he wanted to communicate with his

client during the recess, 425 U.S. at 82-83, so there was no dispute that the trial court’s

instruction prevented such communication. And although the Supreme Court recognized

that defense counsel and defendants often use overnight recesses to discuss the status of

the case, trial strategies, plea bargain offers, and other matters, id. at 88, neither the

Supreme Court nor this Court has ever held that the Sixth Amendment requires defense

counsel to use an overnight recess to discuss such matters, regardless of the circumstances.

Here, as Mr. Clark’s trial counsel testified, the reason he did not speak up when the court

issued the improper instruction was that he had nothing to discuss with Mr. Clark, and Mr.

Clark expressed no desire to speak with him. Notably, although Mr. Clark took the stand

and contradicted his counsel on other issues, he did not dispute counsel’s testimony on this

issue; that is, he did not say that he did, in fact, want to speak with counsel.

Let’s change the facts slightly. Hold every fact constant except assume that, earlier

in the day, defense counsel told Mr. Clark that he was going straight from court to the opera

and would be unavailable to talk during the overnight recess. Under this scenario, Mr.

Clark would have been in the exact same position he was in when he took the stand the

15 This one assumption sets Mr. Clark apart from Geders. In Geders, defense counsel’s objection was overruled; here, we must presume defense counsel’s objection would have been sustained. 29 next morning. So, if the court had not issued its no-communication order, and there was

no evidence that Mr. Clark had any desire to speak with counsel during the recess, would

we say he suffered an “actual denial” of counsel when his attorney went to the opera?

Would we say that the result of his trial was unreliable because his counsel went to the

opera? I think not.

There could be many legitimate reasons for defense counsel not to communicate

with the defendant during an overnight recess. For example, depending on the

circumstances, defense counsel may want to deprive the prosecutor of any basis to imply

that the defendant was coached during the recess. Indeed, in Geders, the Supreme Court

expressly noted that whether the witness was coached during a recess is fair game for cross-

examination and closing argument. 425 U.S. at 89-90. Alternatively, defense counsel

could have determined that he and the defendant had already fully discussed all relevant

strategic decisions, that he was fully prepared for the next day’s proceedings, and that he

would serve his client best by turning off his cell phone and going to bed early to be rested

and refreshed the next day.16

Here, of course, I am assuming that trial counsel’s failure to object constituted

deficient performance. But in its effect—which is what matters under Strickland’s

prejudice prong—defense counsel’s failure here to object to the no-communication order

is indistinguishable from a legitimate strategic decision by counsel not to speak with the

16 I am not saying that these two possible reasons for trial counsel to render himself unavailable are per se reasonable strategic decisions. They are only hypothetical examples that I use merely to make my point. 30 defendant during the overnight recess or trial counsel’s decision to go to the opera. I

perceive no reason to presume that Mr. Clark’s trial was unfair or that its result was

unreliable—the hallmark of prejudice—when an identically-situated defendant who did

not communicate with counsel for a different reason would enjoy no such presumption.

Unless, of course, there was evidence that Mr. Clark wanted to confer or would have

conferred with his counsel during the overnight recess. If such evidence existed, then Mr.

Clark’s lack of communication with counsel would have put him on a different footing

than the hypothetical defendant who did not communicate with counsel for other reasons,

including legitimate ones. That is, with evidence that Mr. Clark wanted to or would have

communicated with counsel if his attorney had objected to the instruction, we could then

say that counsel’s failure to object prevented him from rendering assistance he otherwise

would have rendered—that defense counsel’s failure to object caused an actual denial of

counsel. And with that causal connection established, we could then presume, as

Strickland demands, that the outcome of Mr. Clark’s trial was unreliable.

The Majority tries to recast the meaning of “prevent” as this Court used it in Ramirez

in defining the “actual denial of counsel” by disclaiming any requirement that “a

postconviction petitioner demonstrate or prove that petitioner would have spoken with

counsel in order to be entitled to a presumption of prejudice.” Maj. op. at 54. In doing so,

the Majority refers to various dictionary definitions of “prevent,” claiming that “[n]othing

about the definition of the word prevent requires proof by a defendant that the defendant

wanted to speak with counsel in order for the defendant to have prevented from doing so.”

Id. at 55.

31 The Majority first cites to Merriam Webster’s definition of prevent: “to keep from

happening or existing” and “to deprive of power or hope of acting or succeeding.” Id. at

54. The Majority next cites to an Oxford English Dictionary definition of prevent: “[t]o

preclude the occurrence of (an anticipated event, state, etc.)”. Id. at 54-55. In my mind,

these definitions confirm that the word “prevent” necessarily implies that something would

have happened but for the thing doing the preventing.

The Majority offers an example of a sentence that it contends demonstrates that

prevent means something other than, well, prevent. The Majority asks us “to consider how

the word prevent is used in the following sentence: ‘The gate prevented access to the

driveway.’” Id. at 55. The Majority asserts that, as used in this sentence, “[i]t is not

necessary to prove that anyone wanted to use the driveway to establish that the gate

prevented or blocked access.” Id. This is a flawed analogy. Remember, the inquiry here

is whether there was an “actual” denial of counsel, not a theoretical one. The statement

that a gate prevented access to a driveway is merely a general description of an existing

condition, and the use of the word “prevented” necessarily implies that the driveway would

ordinarily be accessible. If I’m in a different country when the gate was blocking access

to the driveway, one cannot appropriately say that the gate prevented me from accessing

the driveway. Similarly, if the defendant and defense counsel had no desire or inclination

to communicate during a recess, one cannot say that defense counsel’s failure to object

prevented such communication.

I would hold, therefore, that under Strickland, if defense counsel’s alleged deficient

performance is the failure to object to a trial court’s improper order barring all

32 communications between the defendant and his counsel, the defendant does not enjoy a

presumption of prejudice without showing at least some evidence that counsel’s failure to

object either prevented communication or created a chilling effect on such

communications. In addition to being based on Strickland and Ramirez, my view is

informed by several considerations.

First, my proposed holding would preserve the careful distinction between direct

appeals from trial errors and ineffective-assistance-of-counsel claims based on the failure

of counsel to object to a trial error. This is true even if we assume, as many courts have,17

that a trial court’s Geders violation constitutes a structural error.18

17 See, e.g., Cronic, 466 U.S. at 659 n.25 (citing Geders as an example when stating that “[t]he Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding”); United States v. Triumph Cap. Grp., Inc., 487 F.3d 124, 131 (2d Cir. 2007) (“[I]t is well settled that, in the Geders context, ‘a violation of a defendant’s Sixth Amendment right to counsel . . . constitutes a structural defect which defies harmless error analysis and requires automatic reversal.’” (quoting Jones v. Vacco, 126 F.3d 408, 416 (2d Cir. 1997)); State v. Ring, 65 P.3d 915, 933 (Ariz. 2003) (en banc) (citing Geders as an example where “[t]he Supreme Court has defined relatively few instances in which we should regard error as structural”); United States v. Nelson, 884 F.3d 1103, 1107-08 (11th Cir. 2018) (leaning in favor of deciding, without deciding, that a Geders violation is a structural error). 18 As we stated in Ramirez:

A structural error is an error that inheres in the trial’s structure—i.e., “the framework within which the trial proceeds”—and that “affect[s] the trial from beginning to end, and necessarily render[s it] fundamentally unfair.” Redman v. State, 363 Md. 298, 303 n.5, 768 A.2d 656, 659 n.5 (2001) (cleaned up). Meanwhile, a trial error is “an error in the trial process itself”—i.e., “an error [that] occur[s] during the presentation of the case to the jury[.]” Id. at 303 n.5, 768 A.2d at 659 n.5 (cleaned up). On direct appeal, a structural error always

33 The distinction between these two types of claims, in the context of an underlying

structural trial error, was addressed in Weaver v. Massachusetts, 582 U.S. at 294-99. There,

during jury selection for the defendant’s trial on criminal charges, all of the seats in the

courtroom were occupied by potential jurors, barring public access for two days of the jury

selection process. 582 U.S. at 290. The denial of the defendant’s right to a public trial was

a structural error that would have entitled him to a new trial had defense counsel preserved

the issue for direct appeal. Id. at 293. But because defense counsel failed to object, the

matter came before the Supreme Court in the context of a claim of ineffective assistance

of counsel. Id. In rejecting this claim, the Court focused on, inter alia, the difference

between public trial violations preserved for direct appellate review and those raised in a

post-conviction proceeding. Id. at 294-99.

The Court explained that when a defendant preserves an issue by timely objecting

to the trial court’s improper ruling, the trial court can correct its error or further explain the

basis for its decision. Id. at 302–03. But if the issue is first raised in a post-conviction

claim of ineffective assistance of counsel, the court is deprived of that opportunity. Id. In

Maryland, giving the trial court the opportunity to make the correct decision is, of course,

the fundamental rationale behind our firmly entrenched preservation requirement. See

Robinson v. State, 410 Md. 91, 103 (2009) (explaining that the two purposes of Maryland

Rule 8-131(a), ensuring fairness to all parties and the promotion of the orderly

warrants reversal of the defendant’s convictions, and cannot be deemed harmless. See id. at 303 n.5, 768 A.2d at 659 n.5.

464 Md. at 539 n.1. 34 administration of the law, are “advanced by requiring counsel to bring the position of their

client to the attention of the lower court at trial so that the trial court can pass upon, and

possibly correct any errors in the proceedings” (emphasis added) (citations omitted));

Boulden v. State, 414 Md. 284, 297 (2010) (same); Blanks v. State, 406 Md. 526, 538

(2008) (same).

The United States Supreme Court in Weaver also explained that when a trial court

error is properly preserved for direct appellate review, the risk of memories fading and

evidence disappearing is reduced. 582 U.S. at 302. In contrast, “[w]hen an ineffective-

assistance-of-counsel claim is raised in postconviction proceedings, the costs and

uncertainties of a new trial are greater because more time will have elapsed in most cases.”

Id. Thus, the “profound importance of finality in criminal proceedings,” Strickland, 466

U.S. at 693, “is more at risk” when a trial court’s error is raised for the first time in a post-

conviction claim of ineffective assistance of counsel, Weaver, 582 U.S. at 302-03. The

Supreme Court cautioned against allowing such claims to be used for evading the

preservation requirement, “thus undermining the finality of jury verdicts.” Weaver, 582

U.S. at 302-03 (citation omitted).

Further, according to the United States Supreme Court, a direct appeal provides an

adequate record from which appellate courts can give guidance and instruction to trial

courts. Id. at 302. In contrast, as this Court has observed, “[p]ostconviction courts . . .

assess ineffective-assistance-of-counsel claims through the Strickland lens and do not

address the merits of particular trial court errors.” Newton, 455 Md. at 356; see also

Ramirez, 464 Md. at 383 (quoting Newton, 455 Md. at 356). The Court in Weaver

35 concluded that the foregoing differences “justify a different standard for evaluating a

structural error depending on whether it is raised on direct review or raised instead in a

claim alleging ineffective assistance of counsel.” 582 U.S. at 303.

This Court has consistently interpreted Weaver as “imposing a higher standard for

granting a new trial when a defendant raises a structural error on postconviction, rather

than on direct appeal.” Newton, 455 Md. at 356-57 (emphasis added); see also Ramirez,

464 Md. at 566. In Newton v. State, 455 Md. at 348, with defense counsel’s consent, an

alternate juror was present in the jury room during its deliberations, even though this Court,

in Stokes v. State, 379 Md. 618 (2004), held that sending the alternate juror into the

deliberations over counsel’s objection constituted reversible error. Newton’s counsel was

unaware of Stokes and therefore did not know to object, thus forming the basis for

Newton’s post-conviction claim of ineffective assistance of counsel. Newton, 455 Md. at

349-52. Newton argued that the trial court’s inclusion of the alternate juror in the jury

room was a structural error rendering the trial fundamentally unfair. Id. at 352. On that

basis, he argued that prejudice under Strickland should be presumed. Id. at 352-53.

We rejected Newton’s claim, observing that “Stokes was a direct appeal, and errors

that would result in automatic reversal on direct appeal may not warrant a new trial when

raised as part of a postconviction ineffective-assistance-of-counsel claim.” Id. at 359

(citing Weaver, 582 U.S. at 301). Noting that the Supreme Court in Weaver identified only

36 “a handful of circumstances that render a trial fundamentally unfair,”19 we concluded that

it was:

unfathomable that the mere presence of an alternate during jury deliberations—with the express consent of defense counsel and strict instructions to the juror to listen only—gives rise to nearly as grave constitutional concerns as the circumstances presented in the four cases above considered by the Supreme Court to be “fundamentally unfair.”

Id. at 361.

This Court also addressed the intersection between structural errors and defense

counsel’s failure to object to the same in Ramirez. There, trial counsel failed to object to

“the seating of a biased juror[,]” which Ramirez claimed resulted in a structural error

entitling him to the presumption of prejudice under Strickland. Ramirez, 464 Md. at 541.

Although we did not find that trial counsel caused a structural error by his failure to object,

we emphasized that in Weaver, the Supreme Court had “made clear that the distinction

between structural errors matters only on direct appeal—not in a postconviction

proceeding.” Ramirez, 464 Md. at 576. We reached that conclusion after carefully

reviewing decisions from this Court, as well as Weaver. See Ramirez, 464 Md. at 564-66,

574-76 (discussing Newton, 455 Md. 341, Redman v. State, 363 Md. 298 (2001), and

Bowers v. State, 320 Md. 416 (1990)). For example, referring to our opinion in Newton,

we stated in Ramirez:

19 Specifically, we referred to the following list of circumstances listed in Weaver: “the complete deprivation of counsel . . . ; the failure to give a reasonable doubt jury instruction . . . ; a biased judge . . . ; and the race-based exclusion of grand jurors . . . .” Newton, 455 Md. at 361 (internal citations omitted); see also Weaver, 582 U.S. at 295, 300-01 (listing these errors as fundamentally unfair structural errors). 37 This Court observed that, in Weaver, 137 S. Ct. at 1911, the Supreme Court held that, “even though a public-trial right violation requires automatic reversal on direct appeal, it is still analyzed under the Strickland framework when raised as part of an ineffective-assistance-of-counsel claim.” Newton, 455 Md. at 356, 168 A.3d at 9. This Court also noted that, in Weaver, 137 S. Ct. at 1912, the Supreme Court explained that there is “a higher standard for granting a new trial when a defendant raises a structural error on postconviction, rather than on direct appeal.” Newton, 455 Md. at 357, 168 A.3d at 10.

464 Md. at 576.

The Majority’s holding in this case obliterates the firmly entrenched distinction

between direct appeals in which a trial court’s error is preserved and ineffective-assistance-

of-counsel claims based on the failure to preserve.

Second, my proposed holding would not impose an onerous or unfair burden on the

defendant to secure the benefit of Strickland’s presumption of prejudice. In fact, it would

be setting the bar low. By their nature, claims for ineffective assistance of counsel often

open the door to the substance of communications between the defendant and trial counsel.

An ineffective-assistance claim based on counsel’s failure to object to the Geders violation

is the sort of claim that could (and should) be substantiated without opening that door. For

example, if Mr. Clark had testified that he would have wanted to revisit with counsel the

strategic issue of whether his wife (or any other potential witness) should testify—a tactical

decision he challenged in his post-conviction claim—the post-conviction court would have

had a sufficient basis to find that counsel’s failure to object to the Geders violation

prevented or chilled the possibility of such a communication, thereby entitling Mr. Clark

to a presumption of prejudice under Strickland. Such testimony would not have opened

38 the door for the State to cross-examine the defendant on the substance of his prior

discussions with counsel or the substance of what he specifically wanted to discuss.

Moreover, a defendant would not have to identify a specific strategic issue that he

wanted to discuss with counsel to clear the low hurdle I have proposed. If the post-

conviction court concludes based on the testimony before it that, for example, the defendant

wanted to have a general discussion about the trial, the day’s events, or defendant’s

concerns or anxieties about the case, that too would suffice to clear the low bar my

proposed holding would set. In other words, the mere fact that a defendant would have

discussed with counsel anything relevant to the trial or case, general or specific, would

justify a presumption of prejudice without requiring the defendant to divulge otherwise

confidential communications. See, e.g., Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981)

(per curiam). This would not be, as the Majority insists, an insurmountable hurdle for a

defendant.

Third, my proposed holding aligns the parties’ incentives in a way that promotes the

fair and efficient administration of justice. One clear benefit of the Majority’s holding is

that the State would have the incentive to speak up if the trial court issues an improper no-

communication order. But the State would have the same incentive to speak up under the

low bar I would set for establishing the actual denial of counsel.

But under the Majority’s holding, a defendant having no desire or need to speak

with counsel during the overnight recess might be better served if counsel did not object.

That way, the defendant could take a free shot at an acquittal while simultaneously securing

39 a strong basis for a new trial—the proverbial second bite at the apple—through a post-

conviction claim.

We prefer that the first trial be fair and error-free, obviating the need for a second

one. By incentivizing both sides to timely inform the trial court of a Geders violation, my

proposed holding would align the parties’ interests to minimize the likelihood that a new

trial would be necessary. The same cannot be said of the Majority’s holding.

Fourth, my proposed holding does not conflict with the concern expressed by Judge

Nazarian, and echoed by the Majority, that “the right to counsel was Mr. Clark’s, not his

counsel’s to waive or neglect away.” Clark, 255 Md. App. at 349 (Nazarian, J., dissenting).

Mr. Clark’s counsel’s failure to object waived only his right to raise the trial court’s

improper instruction on direct appeal. Moreover, if trial counsel “neglects away” a

defendant’s right to counsel, the defendant has recourse in a post-conviction claim applying

Strickland’s principles, including this Court’s formulation of the “actual denial”

presumption of prejudice expressed in Ramirez and applied above. I am aware of no

caselaw—and the Majority cites none—that would justify bypassing Strickland’s and

Ramirez’s requirements for this one type of ineffective-assistance-of-counsel claim.20

20 To the contrary, the rulings from federal and state courts that have considered Geders violations raised in the context of an ineffective-assistance-of-counsel claim have held that the defendant must show that a communication with counsel would have occurred. See, e.g., Bailey, 657 F.2d at 24-25; Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-07 (4th Cir. 1982) (in a habeas corpus matter claiming ineffective assistance of counsel based on counsel’s failure to object, the defendant was denied relief because there was no evidence that the defendant wanted to meet with counsel); Wallace v. State, 851 So. 2d 216, 217-18 (Fla. Dist. Ct. App. 2003) (denying post-conviction claim of ineffective assistance of counsel where defense counsel did not object to the trial court’s instruction

40 ***

There is no evidence that trial counsel’s failure to object to the court’s instruction

prevented or chilled communication with Mr. Clark during the overnight recess, and the

post-conviction court made no such finding. Because he did not establish an “actual

denial” of counsel, Mr. Clark was not entitled to the presumption under Strickland and

Ramirez that his counsel’s failure to object deprived him of a fair trial or a reliable verdict.

Thus he was required to establish prejudice.

The post-conviction court found prejudice in that trial counsel’s failure to object

deprived Mr. Clark of a viable appellate issue. As noted above, however, under Newton,

455 Md. at 361, we must assume that had trial counsel objected, the court would have

rescinded the instruction and in doing so, would have removed any basis to appeal it.

Having failed to establish presumed or actual prejudice under Strickland, Mr. Clark was

not entitled to post-conviction relief based on his counsel’s failure to object to the Geders

violation.

In holding otherwise, the Majority has conducted in effect, if not in name, a plain

error review of the trial court’s improper no-communication order. Generally, appellate

courts have the discretion to conduct plain error review of an unpreserved trial court error

“when the error is compelling, extraordinary, exceptional or fundamental to assure the

defendant a fair trial.” Savoy v. State, 420 Md. 232, 243 (2011) (cleaned up). That standard

may very well have been met here, but when the Appellate Court declined to conduct plain

not to talk during the lunch recess and there was no evidence that defendant or his counsel desired to communicate during the recess). 41 error review in his direct appeal, Mr. Clark initially petitioned this Court for writ of

certiorari but then withdrew it, depriving us the opportunity to address the issue.

The procedural posture here alone should have precluded the Majority from treating

Mr. Clark’s post-conviction claim as it would have treated a direct appeal from the no-

communication order. Instead, the Majority bypasses Strickland and violates Newton and

Ramirez by assessing the propriety of the trial court’s no-communication order and

analyzing Mr. Clark’s post-conviction claim as a straightforward Geders claim, which as I

have explained, it was not empowered to do.

Accordingly, I respectfully dissent.

Chief Justice Fader and Justice Booth have authorized me to state that they join this

42 The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/25a22cn.pdf