Applicable Law

A. The requirements of a Writ of Error Coram Nobis

Under Maryland Rule 15-1202, a petition for a writ of coram nobis must include:
1. The identity of the petitioner as the person subject to the judgment and sentence;
2. The place and date of trial, the offense for which the petitioner was convicted, and
the sentence imposed;
3. A statement of all previous proceedings, including appeals, motions for new trial,
post conviction petitions, and previous petitions for writ of error coram nobis, and
the results of those proceedings;
4. The facts that would have resulted in the entry of a different judgment and the
allegations of error upon which the petition is based;
5. A statement that the allegations of error have not been waived;
6. The significant collateral consequences that resulted from the challenged
conviction;
7. The unavailability of appeal, post conviction relief, or other remedies; and
8. A demand for relief.
B. Maryland Constitution
Petitioners main contention is that his due process rights were violated. Maryland
Constitution, Declaration of Rights Article 24 defines due process rights. Article 24 reads:
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.
Petitioner specifically contends that his due process rights were violated on the basis of jury
instructions that were purely advisory-only. Maryland Constitution, Declaration of Rights Article
23, defines rights in relation to jury trials. Article 23 reads:
In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of
fact, except that the Court may pass upon the sufficiency of the evidence to
sustain a conviction.
Article 23 has been interpreted by the Maryland Court of Appeals with further regard to criminal
defendants and will be further discussed below.
C. Case Law Regarding Advisory-Only Jury Instructions

The standard which guides the analysis of a trial court providing jury instructions that are
advisory only was set forth by Stevenson v. State, 289 Md. 167 (1980), Montgomery v. State,
292 Md. 84 (1981) and State v. Adams, 406 Md. 240 (2008).
In each case (Stevenson, Montgomery and Adams), the Maryland Court of Appeals
interpreted Article 23 of the Maryland Declaration of Rights. On each occasion, the Court held
that a judge presiding over a criminal trial must instruct the jury that instructions on the law are
advisory with respect only to the law of the crime and the legal effect of the evidence. See
Stevenson, 289 Md. 167 at 180. Additionally, the Court held that a judge presiding over a
criminal trial must instruct the jury that the judges instructions regarding all other points of
law, such as the States burden of proof beyond a reasonable doubt and presumption of
innocence, are binding. Id. See also, Montgomery, 292 Md. 84 at 89; Adams 406 Md. 240 at
256. Prior to Stevenson, trial judges in criminal cases instructed juries that instructions on the law
were advisory only, without exception.
Unger v. State, 427 Md. 383 (2012), reaffirmed these prior rulings regarding the
importance of providing binding jury instructions on all other points of law. The Court of
Appeals emphasized that a judges instructions to the jury concerning the burden of proof, the
presumption of innocence, proof beyond a reasonable doubt, and other matters implicating
federal constitutional requirements, must be binding upon the jury. Id. at 388 n.2. Additionally,
the Court held that the prior decision in Stevenson would be given retroactive effect to all
convictions that occurred prior to 1980. The Unger Court also determined that the Stevenson and
Montgomery decisions established a new state constitutional standard, and therefore, failure
to object to advisory only jury instructions in criminal trials prior to Stevenson [do] not constitute
as a waiver. Id. at 247.

The Court upheld the Unger decision in State v. Waine, 444 Md. 692; 122 A.3d 294
(2015) and granted Waines motion to reopen his post-conviction proceeding (awarding Waine,
based on Unger, a new trial). The Waine Court observed that Unger has retrospective
application to specific advisory only instructions Id. at 300, and a change in the law intended
to apply retroactively meets the interests of justice standard for reopening a petition for
postconviction relief. Id. at 703. The Court also established advisory only jury instructions as a
structural error. Specifically, the Waine Court held that ambiguity is not the issue in Article 23
advisory only jury instructions; rather, such instructions are clear, but erroneous, as they give the
jury permission to disregard any or all of the courts instructions, including those bedrock due
process instructions1 on the presumption of innocence and the States burden of proving the
defendants guilt beyond a reasonable doubt. Id. at 704, and the trail courts giving [of]
advisory only jury instructions [is] a structural error not susceptible to harmless error analysis
and that the conviction must be vacated. Id. at 705. In sum, the application of jury instructions
that provide the jury with a discretion to disregard any or all of the courts instructions are
deficient and constitute as a structural error.
Standard of Review
The Waine Court evaluated the standard for courts to apply when hearing a challenge to
advisory only jury instructions. In Waine, the State suggested that these cases should be

1 In Montgomery v. State, 292 Md. 84, the court held that there are certain bedrock
characteristics of the criminal justice system. These characteristics include: (1) The accused is
presumed innocent until proved guilty by the State by evidence beyond a reasonable doubt. (2)
The state has the burden to produce evidence of each element of the crime establishing the
defendants guilt. (3) The defendant does not have to testify and the jury may infer no guilty
because of his silence. (4) The evidence to impeach the defendant bears only on his credibility
and may not be used to prove the substance of the offense. (5) The evidence is limited to the
testimony (and reasonable inferences therefrom) and the exhibits admitted into evidence. (6)
Evidence does not include the remarks of the trial judge nor the arguments of counsel. Id. at 91.

considered on a case-by-case basis to determine whether there is a reasonable likelihood that

jurors understood the courts Article 23 instruction as allowing them to convict a defendant on
less than proof beyond a reasonable doubt. Id. at 703. The Court also found that advisory only
jury instructions cannot be reviewed under a harmless error standard because they constitute as
a structural error. Id. at 705. Overall, the Waine Court emphasized that when a trial court judge
provides advisory only jury instructions, the conviction must be vacated. Id. at 705.