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II. PROCEDURAL HISTORY
Mr. Jones was convicted of the attempted first degree murder of Gerald Brown, use of a handgun in the commission of a crime of violence, conspiracy to commit first degree murder, and also the attempted second degree murder of Tawanda Robinson following a jury trial that concluded on May 10, 1991. On June 13, 1991, Mr. Jones was sentenced to life imprisonment, with respect to the attempted first degree murder and conspiracy to commit murder convictions, 20 years with respect to the conviction for use of a hand gun in the commission of a crime of violence to be served consecutive to the life sentence, and 20 years for the attempted second degree murder, to be served concurrent with the 20-year sentence.
The convictions and sentence were appealed immediately to the Maryland Court of Special Appeals. In the unreported per curiam decision, styled Hatchett v. State, No. 820 (September Term, 1991), the Court of Special Appeals affirmed the judgment in the Circuit Court.
On October 26, 1996, representing himself with limited assistance of an appointed attorney, Mr. Jones filed his first petition for post-conviction relief. The first petition challenged his convictions and sentence on grounds, among others, of the ineffective assistance of his trial counsel and the use at trial of evidence that Mr. Jones contended was perjured by the only witness that identified him as one of the participants in the attempted murder of which he was convicted. Upon review of the papers submitted, the Circuit Court denied relief to Mr. Jones.
On May 6, 1997, representing himself, Mr. Jones filed an application for leave to appeal the denial of post conviction relief to the Court of Special Appeals. On June 25, 1997, the Court of Special Appeals denied the application.
On April 24, 1998, representing himself, Mr. Jones filed a petition for habeas corpus relief in the Circuit Court for Baltimore City. That action was styled Phillip Alvin Jones v. Jack Kavanaugh, Case No. 98114933/CH686. His principal allegation in this habeas corpus proceeding was that he was denied effective assistance of counsel at trial because counsel failed to object to the trial judge’s instructions to the jury concerning possible verdicts. On July 19, 1999, determining that no hearing was warranted, the Circuit Court for Baltimore City denied post conviction relief.
In late 2002, Mr. Jones engaged the services of volunteer counsel to assist in reviewing the lawfulness of his conviction. As a result of the ensuing investigation, counsel and the private investigator engaged by counsel, located a witness to the shooting underlying the conviction, Jerome Beacon, a/k/a Jerome Harrington, who indicated in an attested statement that he was present to witness the crime, that he could not in the conditions identify any of the assailants, further that in his judgment no one could have identified the assailant, and that, having been questioned by police regarding the crime, he so advised the police. He further stated that other than present post-conviction counsel, he has never communicated with any attorney representing the Applicant. Accordingly this Second Petition was filed based on this uncovered testimony on or about February 11, 2005.
On or about April 1, 2005, the State of Maryland moved to dismiss the post-conviction petition on four stated grounds: (1) that the petition failed to contain its allegations of error; (2) that the petition failed to include a concise states of facts supporting the allegations of error; (3) that the petition failed to include a statement of all prior proceedings; and (4) that the petition failed to include a special statement of facts or special circumstances showing that the claims presented had not been waived. The State’s response alternatively responded to the Applicant’s petition allegations.
Following successive extensions granted the Applicant, Jones’ response to the State’s motion to dismiss the petition was filed on September 15, 2005. On December 15, 2005, the Circuit Court commenced proceedings in this case on the State’s Motion to Dismiss the Petition. The proceeding was conducted in the absence of the Applicant, with counsel for Jones objecting that the presence of the Applicant was necessary for fair consideration even of the issues presented by the State’s motion. At the time of the December 15, 2005 proceeding, Applicant Jones had been transferred for reasons of his own personal safety from confinement within a Maryland facility to confinement, subject to the jurisdiction of the State of Maryland, at a facility in the State of Washington under a cooperative agreement with that state. The only issue therefore addressed at the proceeding on December 15, 2005, was whether or not further proceedings on the Applicant’s Post-Conviction Petition could fairly be conducted without the Applicant’s being there. No issue was resolved at the end of the proceeding, and the Post-Conviction judge took the issue sub curia.
Around the end of 2005 and the beginning of 2006, the Circuit Court issued notice that further proceedings in the case would be set for February 28, 2006, and that for these proceedings arrangement would be made to bring the Applicant to Baltimore to be present at the proceeding. No indication was given relative to this scheduled proceeding that the Circuit Court expected to hear from witnesses regarding the merits of the Applicant’s post-conviction claims. Rather the only issue addressed that this proceeding was whether or not the Circuit Court was required to afford a hearing to the Applicant in view of his prior post-conviction and other challenges to his convictions and sentence.
On February 28, 2005, the Circuit Court conducted a second proceeding on the Applicant’s Second Post-Conviction Petition. The State’s Motion to Dismiss the Petition was still an open issue, not having previously been resolved by the Circuit Court. In the proceeding on February 28, 2005, the State augmented its written arguments to embrace the questions that the Circuit Court had raised on December 15, 2005, regarding whether the Circuit Court was required to consider the Applicant’s claims at all in view of prior determinations by the court in earlier challenges submitted by or on behalf of the Applicant.
Throughout this proceeding, the parties addressed the sole issue of whether there remained any requirement that the Circuit Court afford a hearing to the Applicant. The only witness to testify at this proceeding was the Applicant. His testimony was limited by the Court to explore the circumstances surround his prior challenges, the contention that the prior challenges did not embrace the issues currently before the Circuit Court, and the extent and nature of limitations operating on the Applicant in the prior proceedings that prevented him from raising the issues presented in his Second Post-Conviction Petition.
There was no indication at the February 28, 2006 proceeding that that proceeding was a hearing on the merits of the Second Post-Conviction Petition. Indeed, the Circuit Court questioned counsel for the Applicant regarding the witnesses whom counsel proposed to examine if the Applicant were afforded a hearing by the Circuit Court. At the conclusion of the proceeding on February 28, 2006, the State’s Motion to Dismiss the Petition was still undecided. The proceeding adjourned with the Circuit Judge taking sub curia the issues presented by the State’s Motion to Dismiss. The clear expectation of the parties was that in due course, the Circuit Court would either grant the State’s Motion to Dismiss the Petition, and thereby dispose of the Applicant’s Second Petition for Post-Conviction Relief, or deny the State’s motion to dismiss, and, as a consequence, schedule a proceeding in which the merits of the Applicant’s second petition could be heard.
The matters in this case remained undecided for one day more than 20 months. At that time, on October 29, 2007, the Circuit Court neither granted nor denied the pending motion to dismiss the petition that had been the subject and focus of the prior proceedings in the case. Rather, the Circuit Court denied relief, determining in its Memorandum and Opinion that “[o]n February 28, 2006, a hearing on the second Petition for Post Conviction was held before the undersigned judge.”
This application for leave to appeal that decision of October 29, 2007, is timely submitted.
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II. PROCEDURAL HISTORY
Mr. Jones was convicted of the attempted first degree murder of Gerald Brown, use of a handgun in the commission of a crime of violence, conspiracy to commit first degree murder, and also the attempted second degree murder of Tawanda Robinson following a jury trial that concluded on May 10, 1991. On June 13, 1991, Mr. Jones was sentenced to life imprisonment, with respect to the attempted first degree murder and conspiracy to commit murder convictions, 20 years with respect to the conviction for use of a hand gun in the commission of a crime of violence to be served consecutive to the life sentence, and 20 years for the attempted second degree murder, to be served concurrent with the 20-year sentence.
The convictions and sentence were appealed immediately to the Maryland Court of Special Appeals. In the unreported per curiam decision, styled Hatchett v. State, No. 820 (September Term, 1991), the Court of Special Appeals affirmed the judgment in the Circuit Court.
On October 26, 1996, representing himself with limited assistance of an appointed attorney, Mr. Jones filed his first petition for post-conviction relief. The first petition challenged his convictions and sentence on grounds, among others, of the ineffective assistance of his trial counsel and the use at trial of evidence that Mr. Jones contended was perjured by the only witness that identified him as one of the participants in the attempted murder of which he was convicted. Upon review of the papers submitted, the Circuit Court denied relief to Mr. Jones.
On May 6, 1997, representing himself, Mr. Jones filed an application for leave to appeal the denial of post conviction relief to the Court of Special Appeals. On June 25, 1997, the Court of Special Appeals denied the application.
On April 24, 1998, representing himself, Mr. Jones filed a petition for habeas corpus relief in the Circuit Court for Baltimore City. That action was styled Phillip Alvin Jones v. Jack Kavanaugh, Case No. 98114933/CH686. His principal allegation in this habeas corpus proceeding was that he was denied effective assistance of counsel at trial because counsel failed to object to the trial judge’s instructions to the jury concerning possible verdicts. On July 19, 1999, determining that no hearing was warranted, the Circuit Court for Baltimore City denied post conviction relief.
In late 2002, Mr. Jones engaged the services of volunteer counsel to assist in reviewing the lawfulness of his conviction. As a result of the ensuing investigation, counsel and the private investigator engaged by counsel, located a witness to the shooting underlying the conviction, Jerome Beacon, a/k/a Jerome Harrington, who indicated in an attested statement that he was present to witness the crime, that he could not in the conditions identify any of the assailants, further that in his judgment no one could have identified the assailant, and that, having been questioned by police regarding the crime, he so advised the police. He further stated that other than present post-conviction counsel, he has never communicated with any attorney representing the Applicant. Accordingly this Second Petition was filed based on this uncovered testimony on or about February 11, 2005.
On or about April 1, 2005, the State of Maryland moved to dismiss the post-conviction petition on four stated grounds: (1) that the petition failed to contain its allegations of error; (2) that the petition failed to include a concise states of facts supporting the allegations of error; (3) that the petition failed to include a statement of all prior proceedings; and (4) that the petition failed to include a special statement of facts or special circumstances showing that the claims presented had not been waived. The State’s response alternatively responded to the Applicant’s petition allegations.
Following successive extensions granted the Applicant, Jones’ response to the State’s motion to dismiss the petition was filed on September 15, 2005. On December 15, 2005, the Circuit Court commenced proceedings in this case on the State’s Motion to Dismiss the Petition. The proceeding was conducted in the absence of the Applicant, with counsel for Jones objecting that the presence of the Applicant was necessary for fair consideration even of the issues presented by the State’s motion. At the time of the December 15, 2005 proceeding, Applicant Jones had been transferred for reasons of his own personal safety from confinement within a Maryland facility to confinement, subject to the jurisdiction of the State of Maryland, at a facility in the State of Washington under a cooperative agreement with that state. The only issue therefore addressed at the proceeding on December 15, 2005, was whether or not further proceedings on the Applicant’s Post-Conviction Petition could fairly be conducted without the Applicant’s being there. No issue was resolved at the end of the proceeding, and the Post-Conviction judge took the issue sub curia.
Around the end of 2005 and the beginning of 2006, the Circuit Court issued notice that further proceedings in the case would be set for February 28, 2006, and that for these proceedings arrangement would be made to bring the Applicant to Baltimore to be present at the proceeding. No indication was given relative to this scheduled proceeding that the Circuit Court expected to hear from witnesses regarding the merits of the Applicant’s post-conviction claims. Rather the only issue addressed that this proceeding was whether or not the Circuit Court was required to afford a hearing to the Applicant in view of his prior post-conviction and other challenges to his convictions and sentence.
On February 28, 2005, the Circuit Court conducted a second proceeding on the Applicant’s Second Post-Conviction Petition. The State’s Motion to Dismiss the Petition was still an open issue, not having previously been resolved by the Circuit Court. In the proceeding on February 28, 2005, the State augmented its written arguments to embrace the questions that the Circuit Court had raised on December 15, 2005, regarding whether the Circuit Court was required to consider the Applicant’s claims at all in view of prior determinations by the court in earlier challenges submitted by or on behalf of the Applicant.
Throughout this proceeding, the parties addressed the sole issue of whether there remained any requirement that the Circuit Court afford a hearing to the Applicant. The only witness to testify at this proceeding was the Applicant. His testimony was limited by the Court to explore the circumstances surround his prior challenges, the contention that the prior challenges did not embrace the issues currently before the Circuit Court, and the extent and nature of limitations operating on the Applicant in the prior proceedings that prevented him from raising the issues presented in his Second Post-Conviction Petition.
There was no indication at the February 28, 2006 proceeding that that proceeding was a hearing on the merits of the Second Post-Conviction Petition. Indeed, the Circuit Court questioned counsel for the Applicant regarding the witnesses whom counsel proposed to examine if the Applicant were afforded a hearing by the Circuit Court. At the conclusion of the proceeding on February 28, 2006, the State’s Motion to Dismiss the Petition was still undecided. The proceeding adjourned with the Circuit Judge taking sub curia the issues presented by the State’s Motion to Dismiss. The clear expectation of the parties was that in due course, the Circuit Court would either grant the State’s Motion to Dismiss the Petition, and thereby dispose of the Applicant’s Second Petition for Post-Conviction Relief, or deny the State’s motion to dismiss, and, as a consequence, schedule a proceeding in which the merits of the Applicant’s second petition could be heard.
The matters in this case remained undecided for one day more than 20 months. At that time, on October 29, 2007, the Circuit Court neither granted nor denied the pending motion to dismiss the petition that had been the subject and focus of the prior proceedings in the case. Rather, the Circuit Court denied relief, determining in its Memorandum and Opinion that “[o]n February 28, 2006, a hearing on the second Petition for Post Conviction was held before the undersigned judge.”
This application for leave to appeal that decision of October 29, 2007, is timely submitted.
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