By: Morgan Love
The Supreme Court of Maryland held that defendant’s counsel was deficient in failing to consult with the defendant about a motion to modify his sentence and subsequently failing to file said motion. Davis v. State, 490 Md. 359, 399, 335 A.3d 950, 973 (2025). The court further held that these failures prejudiced the defendant by denying him the chance to have the court consider a motion to modify his sentence. Id. at399, 335 A.3d at 973.Finally, the court held that a defendant does not have to request a motion for sentence modification to prove ineffective assistance of counsel. Id. at 393, 335 A.3d at 969-70.
In July 2013, Harry Davis Jr. (“Davis”) was sentenced to seventy-two years of incarceration. This sentence represented the maximum penalty provided by Maryland’s sentencing guidelines. During his sentencing hearing, the circuit court informed Davis that he had thirty days to file an appeal and ninety days to move for the court to modify his sentence.
In October 2021, Davis moved for postconviction relief, arguing that his trial attorney was ineffective for failing to file a motion to modify his sentence. At a hearing on the motion in January 2023, Davis’s trial attorney testified that he did not recall having further communications or meetings with Davis after his 2013 sentencing hearing. Davis confirmed this lack of communication in his own testimony. The record did not state whether Davis requested that his attorney file a motion for modification. The circuit court denied postconviction relief, prompting Davis to appeal.
In November 2024, after hearing oral arguments on appeal, the Appellate Court of Maryland sent a certification to the Supreme Court of Maryland to answer two questions of law. The first question was whether the defendant must demonstrate that he asked trial counsel to file a motion for sentence modification in order to prove ineffective assistance of counsel. If the defendant is not required to demonstrate this request, the second question before the court was whether the framework in Roe v. Flores-Ortega should be used to address claims of ineffective assistance of counsel based on an attorney’s failure to file a sentence modification motion.
The court began its analysis by overruling State v. Adams and Rich v. State, two conflicting cases from the Appellate Court of Maryland. Davis, 490 Md. at 390-91, 335 A.3d at 968. The Adams ruling was found to contradict the holding in Flores-Ortega, in which the Supreme Court of the United States rejected Adams’ “per se deficiency rule” and held that failures to consult are not automatically unreasonable. Id. at 391, 335 A.3d at 968. Rich was also overruled because it wrongly presumed that claims for ineffective assistance of counsel were precluded if the record did not show that the defendant requested a motion for modification. Id. at 391, 335 A.3d at 968.
In addressing the instant case, the court articulated the standard applied to claims of ineffective assistance of counsel, using the two-part test outlined in Strickland v. Washington. Davis, 490 Md. at 378, 335 A.3d at 961. The first part, known as “the performance prong,” requires a showing that the attorney’s performance was deficient, meaning his or her representation was not objectively reasonable according to the norms of the profession. Id. at 379, 335 A.3d at 961. The petitioner has the burden of overcoming the strong presumption that counsel’s conduct was reasonable. Id. at 379, 335 A.3d at 961.The second part of the test, known as “the prejudice prong,” requires the defendant to show he or she was prejudiced by the attorney’s deficient performance. Davis, 490 Md. at 379, 335 A.3d at 961. In demonstrating prejudice, there must be a reasonable likelihood that the outcome of the proceeding would have been different but for the attorney’s unprofessional mistakes. Id. at 379, 335 A.3d at 961.Prejudice may be established by showing that counsel’s unprofessional conduct deprived the defendant of the chance to have a proceeding that would have occurred otherwise. Id. at 395, 335 A.3d at 971.
In applying the Strickland test, the court relied on the framework used in Flores-Ortega to determine whether the attorney’s failure to consult with the defendant regarding a motion for modification constituted deficient performance. Davis, 490 Md. at 391-92, 335 A.3d at 969. Although there is no rule requiring counsel to consult with the defendant about a motion for modification in every case, there are some instances where counsel may have a duty to consult. Id. at 392-93, 335 A.3d at 969. This duty may arise when the defendant has expressed to counsel a desire to file a motion for modification of sentence, or “when there is reason to think that a rational defendant would want to file” said motion. Id. at 393, 335 A.3d at 969.
Here, the court found that the lack of contact between Davis and his attorney after his 2013 sentencing hearing demonstrated an unreasonable failure to consult. Davis, 490 Md. at 393-94, 335 A.3d at 970. The court determined that Davis’s trial attorney had a duty to consult with Davis about filing a motion for modification because any reasonable defendant in his circumstances would likely want to move for a modification. Id. at 394-95, 335 A.3d at 970. Specifically, the fact that Davis received the greatest possible sentence permitted by the guideline range led the court to believe he would have wanted to move for a modification. Id. at 394-95, 335 A.3d at 970.Thus, the court concluded that the attorney’s failure to consult was conduct that fell below an objective standard of reasonableness and constituted deficient performance. Id. at 395, 335 A.3d at 970.
Regarding the second prong, the court held that prejudice is not presumed and must be proved by the defendant. Davis, 490 Md. at 397, 335 A.3d at 972. Here, the court ruled that prejudice was established because there was a “reasonable probability” that Davis would have liked to file a motion for modification and that motion would have been filed but for counsel’s failure to consult with him. Id. at 397, 335 A.3d at 972.It was likely that Davis would have wanted to move for a modification because there was no detriment to him in doing so and he already expressed a desire to reexamine his convictions when he filed his appeal. Id. at 397, 335 A.3d at 972.As a result of this prejudice, Davis lost the opportunity to move for modification. Id. at 397-98, 335 A.3d at 972. Since both parts of the Strickland test were met, the court reversed the circuit court’s ruling and remanded the case to allow Davis to belatedly file a motion for a sentence modification. Davis, 490 Md. at 399, 335 A.3d at 973.
The Davis decision clarified the standard used to address claims of ineffective assistance of counsel when an attorney fails to consult with the defendant about filing a motion for sentence modification and fails to file said motion. The court’s ruling broadens defendants’ opportunities for postconviction relief by permitting a claim of ineffective assistance of counsel even when the defendant did not request that counsel file the motion. Additionally, the ruling makes clear that defense attorneys should consult with their clients about filing a motion for modification, even if the client does not raise the issue themselves. Finally, Davis eliminates the contradictions of prior decisions and provides a clear framework for Maryland courts to use in future ineffective assistance of counsel proceedings.
Morgan Love is a second-year law student at the University of Baltimore School of Law and is the incoming Comments Editor for Law Forum. She received her Bachelor’s degrees in Psychology and Criminology & Criminal Justice from the University of Maryland, College Park. After graduating college, Morgan took a gap year and worked as a Legal Secretary at the Baltimore County State’s Attorney’s Office. Morgan worked at Prisoner Rights Information System of Maryland during her 1L summer and continued there throughout her 2L year at UB. She also served as a Law Scholar for Civil Procedure I and Property during her 2L year. This summer, Morgan will be working as a Summer Associate at Kramon & Graham, and this fall, she is looking forward to serving as a student attorney in the Criminal Defense and Advocacy Clinic
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