State of Maryland v. Travis Thaniel, No. 936, September Term, 2017
Opinion by Battaglia, J.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL: The right to the effective
assistance of trial counsel is grounded in the Sixth Amendment, made applicable to the
States through the Fourteenth Amendment. A claim of ineffective assistance of trial
counsel comprises two elements:          that counsel’s performance was objectively
unreasonable under prevailing professional norms, and that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. The petitioner bears the burden of proof.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF COUNSEL GENERALLY — Strickland v.
Washington — PERFORMANCE PRONG:                         Judicial scrutiny of counsel’s
performance must be highly deferential; accordingly, a reviewing court begins with a
strong presumption that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. The reasonableness of
counsel’s challenged conduct must be judged on the facts of the particular case, viewed
as of the time of counsel’s conduct. The petitioner must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment,
whereupon a reviewing court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF COUNSEL GENERALLY — Strickland v.
Washington — PREJUDICE PRONG: An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment. Ineffectiveness claims alleging a deficiency in
attorney performance are subject to a general requirement that the petitioner affirmatively
prove prejudice, defined as “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” A
“reasonable probability,” and, under Maryland law, its equivalent, a “substantial
possibility,” is a probability sufficient to undermine confidence in the outcome. That
standard lies between, on the one hand, a showing that the errors had some conceivable
effect on the outcome of the proceeding, and a showing by a preponderance of the
evidence that counsel’s errors affected the outcome.
CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF COUNSEL GENERALLY — Strickland v.
Washington — BOTH ELEMENTS MUST BE ESTABLISHED TO OBTAIN
RELIEF: Because deficient performance and prejudice are elements of an ineffective
assistance claim, both of which must be proven by a postconviction petitioner, there is no
reason for a court deciding an ineffective assistance claim to approach the inquiry in a
specific order or even to address both components of the inquiry if the petitioner makes
an insufficient showing on one. If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, that course should be followed.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE CLAIM BASED UPON FAILURE TO OBJECT
TO STRUCTURAL ERROR: It remains an open question whether, under some
circumstances, prejudice may be presumed where trial counsel’s deficient performance
has resulted in the procedural default of a structural error. In the specific case where that
structural error is a violation of the defendant’s right to a public trial through closure of
the courtroom during voir dire, the Supreme Court has held that prejudice must be
proven.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR AGREEING TO THE
CLOSURE OF THE COURTROOM DURING VOIR DIRE: In the instant case, trial
counsel had a reasonable basis for agreeing to the closure of the courtroom during voir
dire, given the evidence that trial counsel had acted, at least in part, to avoid a possible
outbreak of violence between spectators sympathetic to his client and spectators
sympathetic to the victim. Therefore, the postconviction court erred in finding that trial
counsel had performed deficiently. Moreover, under Weaver v. Massachusetts, 137 S. Ct.
1899 (2017), rendered shortly after the postconviction court’s ruling but fully applicable
to this case, the petitioner here has failed to demonstrate prejudice, whether measured
under the usual Strickland standard or the alternative standard (whether the public trial
violation rendered petitioner’s trial fundamentally unfair) assumed in Weaver.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE ACT —
WAIVER: Under the Maryland Uniform Postconviction Procedure Act, as interpreted
by the Court of Appeals, a defendant may forego a broad spectrum of rights—indeed, all
rights that do not require a knowing and voluntary waiver—which fall within the
category of tactical decisions by counsel or involve procedural defaults.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE — WAIVER
— FREESTANDING CLAIM THAT CLOSURE OF THE COURTROOM
DURING VOIR DIRE VIOLATED PETITIONER’S RIGHT TO PUBLIC TRIAL:
Because trial counsel affirmatively waived the petitioner’s right to public trial during voir
dire, the petitioner’s postconviction claim that his right to public trial was thereby
violated is conclusively waived.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO
OBJECT WHEN THE TRIAL COURT AND COUNSEL ADDRESSED A JUROR
NOTE IN PETITIONER’S ABSENCE: In the instant case, trial counsel waived the
petitioner’s presence at a bench conference, during jury deliberations, at which court and
counsel addressed a note from the jury. Because Maryland Rule 4-231(c) expressly
allowed trial counsel to do so, trial counsel did not act unreasonably in waiving the
petitioner’s presence. Moreover, the petitioner has failed to show that, had trial counsel
ensured that he was present at the bench conference, there is a reasonable probability that
the outcome of the trial would have been different. Accordingly, the postconviction court
erred in granting relief on this claim.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: The right to the
effective assistance of appellate counsel derives from an amalgamation of the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. Generally, claims
of ineffective assistance of appellate counsel are governed by the same test applicable to
claims of ineffective assistance of trial counsel—the two-prong test of Strickland v.
Washington.

      In the appellate context, a reviewing court assessing appellate counsel’s
performance must bear in mind that counsel is not required to argue every possible issue
on appeal. Counsel need not (and should not) raise every nonfrivolous claim, but rather
may select from among them to maximize the likelihood of success on appeal.

       To satisfy the prejudice prong, the petitioner must establish to a reasonable
probability that, but for his counsel’s failure to raise an issue, he would have prevailed on
his appeal. As applicable to an ineffective assistance claim based upon the failure to raise
an unpreserved issue, a petitioner would have prevailed on appeal only if the appellate
court would have found plain error.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR FAILING TO
RAISE THE ISSUE OF THE TRIAL COURT’S PURPORTED ERROR IN
ADDRESSING A JUROR NOTE IN THE PETITIONER’S ABSENCE: Because
trial counsel did not object to the petitioner’s absence at the bench conference at issue,
any claim that the trial court erred in conducting that bench conference in the petitioner’s
absence was unpreserved. Although there is no hard-and-fast rule that appellate counsel
has no obligation whatsoever to raise an unpreserved issue, it is nonetheless true that,
under these circumstances, the petitioner bore a high burden—he was required to show
that there is a reasonable probability that the appellate court would have granted him
relief on his underlying claim under the plain error doctrine. Because the petitioner made
no such showing, the postconviction court erred in granting relief on this claim.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
CUMULATIVE EFFECT OF MULTIPLE ATTORNEY ERRORS:                                             If a
postconviction petitioner establishes that trial counsel committed multiple errors, a
reviewing court, in assessing whether the petitioner is entitled to a new trial, must
consider the cumulative effect of all those errors, and it is possible that a petitioner is
entitled to a new trial even if no single error, considered in isolation, resulted in sufficient
prejudice.

CRIMINAL PROCEDURE — POSTCONVICTION PROCEDURE —
CUMULATIVE EFFECT OF MULTIPLE ATTORNEY ERRORS: In the instant
case, the only errors the petitioner established were trial counsel’s failure to file timely
motions for modification of sentence and for sentence review by a three-judge panel.
The only relief to which he is entitled is the right to file belated motions seeking those
avenues of relief. Because the petitioner has otherwise failed to show that either trial
counsel or appellate counsel performed deficiently, his cumulative prejudice claim
(which presupposes those non-existent errors) must fail.
Circuit Court for Baltimore City
Case Nos. 104173062 - 63

                                                  REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND

                                                    No. 936

                                             September Term, 2017

                                   ______________________________________


                                           STATE OF MARYLAND

                                                        v.

                                              TRAVIS THANIEL

                                   ______________________________________

                                        Eyler, Deborah S.,
                                        Meredith,
                                        Battaglia, Lynne A.
                                           (Senior Judge, Specially Assigned),

                                                     JJ.
                                   ______________________________________

                                            Opinion by Battaglia, J.
                                   ______________________________________

                                        Filed: August 29, 2018




        2018-08-29 13:51-04:00
       In 2005, a jury, sitting in the Circuit Court for Baltimore City, convicted Travis

Thaniel, appellee, of first-degree murder of Shawn Boston, attempted second-degree

murder of Catherine Jones, and use of a handgun in the commission of a crime of

violence. The court thereafter sentenced Thaniel to life imprisonment for first-degree

murder and consecutive terms of thirty years for attempted second-degree murder and

twenty years for use of a handgun in the commission of a crime of violence. A panel of

this Court affirmed his convictions on direct appeal.       Thaniel v. State, No. 1374,

September Term, 2005 (filed Sept. 25, 2007), cert. denied, 402 Md. 354 (2007).

       Thaniel subsequently filed a postconviction petition, raising claims of ineffective

assistance of both trial and appellate counsel. The postconviction court granted his

petition and ordered a new trial. The State thereafter filed an application for leave to

appeal, which we granted and transferred the case to our appellate docket. The State now

raises the following questions for our consideration:

            I.   Whether the postconviction court erred in concluding that
                 trial counsel was ineffective in agreeing to close the
                 courtroom during jury selection;

           II.   Whether the postconviction court erred in concluding that
                 trial counsel was ineffective in failing to object when the
                 trial court and counsel addressed a note from the jury in
                 Thaniel’s absence;

          III.   Whether the postconviction court erred in concluding that
                 appellate counsel was ineffective in failing to raise on
                 appeal an unpreserved claim that the trial court erred in
                 addressing a note from the jury in Thaniel’s absence; and

          IV.    Whether the postconviction court erred in concluding that
                 the cumulative effect of trial counsel’s alleged errors
                 warranted postconviction relief.
       We find merit in the State’s contentions and shall vacate the postconviction court’s

order but remand, because the State has not challenged one of the postconviction court’s

rulings, by which it found that trial counsel had been ineffective in failing to file motions

to modify sentence and for sentence review by a three-judge panel. Because that ruling

stands, we shall direct that the postconviction court issue an order permitting Thaniel to

file belated motions to modify sentence and for sentence review by a three-judge panel.

                                     BACKGROUND

       On February 6, 2004, Shawn “Peanut” Boston was driving his car through East

Baltimore, accompanied by Catherine Jones, the mother of his son. Thaniel v. State, No.

1374, September Term, 2005, slip op. at 3, 4-5. At approximately 9:00 p.m., while they

were stopped at a traffic light, Thaniel entered the vehicle and sat in the rear seat. Id. at

2, 5. “As they turned onto Eager Street, near her grandmother’s residence, [Thaniel] said

‘Man, you know what’s up. Kick that shit out.’” Id. at 5. Boston muttered, “Aw, shit,”

stopped the car, took an item from beneath his seat, and handed it to Thaniel. Id. Thaniel

then said, “this was for my man E,” and, in Jones’s words, “started shooting” Boston and

Jones. Id.

       Boston died from “multiple gunshot wounds.” Id. at 3. Ms. Jones survived but

was seriously injured and endured an extensive hospital stay. When police detectives

first attempted to interview her about the shooting, seventeen days afterwards, she “could

mouth words, but she could not talk.” Id. She stated, at that time, that “she had not seen

the shooter and that no one else” had been in the car with her, besides Boston. Id. She

further stated that she was “scared and wanted protection.” Id. at 3-4. Ultimately, Jones

                                             2
decided to cooperate with the police, having decided that Thaniel “shouldn’t get away

with this because he tried to take my life, and he took my son’s father[’s] life.” Id. at 5.

       There were two other witnesses to the shooting, Latisha Privette and Jerome

Wiggs. Privette had been a passenger in Wiggs’s car on the night of the shooting. Id. at

2. As they turned onto Eager Street, she observed a man exiting the back of a vehicle and

“shooting through” the driver’s side window of the vehicle as he did so. Id. Although

she could not see the shooter’s face, she described him as “tall and dark skinned,”

wearing a ski cap, “with a thick build.” Id. & n.4. Privette called 911 and told the

operator what she had seen. Id. at 2.

       Wiggs also observed the man shooting through the driver’s side window of

Boston’s car. He described the shooter as wearing “baggy clothes” and a skull cap and

“estimated that he [had] heard ‘at least ten shots.’” Id. Wiggs stated that he then “got the

hell out of there.” Id. at 3.

       In addition to the two eyewitnesses to the crime, a third person, Quante Bell, an

acquaintance of Thaniel and Jones, gave a statement to police. In April of 2004, several

months after Boston’s murder, Bell had been arrested in an unrelated case. While being

interrogated, he told Baltimore City Police Detective Raymond W. Laslett, the lead

detective in the Boston case, that he had been privy to a conversation between his brother

and Thaniel. According to Bell, Thaniel had told Bell’s brother that he had shot Boston

in the chest. (Later, at Thaniel’s trial, Bell would disavow his statement, which was then

introduced into evidence as a prior inconsistent statement.)



                                              3
       In June of 2004, a grand jury returned two indictments, charging Thaniel with a

variety of offenses related to the February 6th shooting. The first indictment charged

Thaniel with first-degree murder of Shawn Boston; use of a handgun in the commission

of a crime of a felony or violence; and wearing, carrying, or transporting a handgun. The

second charged him with attempted first- and second-degree murder of Catherine Jones;

first- and second-degree assault of the same victim; use of a handgun in the commission

of a crime of a felony or violence; and wearing, carrying, or transporting a handgun. In

June of 2005, a trial was held on those charges.

       As jury selection was about to begin, the following exchange, which forms the

basis for one of Thaniel’s ineffective assistance claims, took place:

              [Trial counsel had just been excused from being in the
              courtroom momentarily while the bailiff arranged for the
              venire to enter the courtroom.]

              THE CLERK: When you do this selection should I have all
              of them wait outside? We’re going to use all 85 chairs.

              THE COURT: Oh, you mean for the -- when we select the
              jury?

              THE CLERK: Yeah.

              THE COURT: Are they -- are we going to need -- are we
              going to require all -- all the spaces in the courtroom?

              THE CLERK: To get them close up as possible so they [will]
              be able to hear their number.

              THE COURT: Well, they -- I can’t clear the courtroom for
              jury selection. I’m not allowed to do that.

              THE CLERK: Oh, okay.


                                             4
THE COURT: So I would suggest -- Mr. [prosecutor], and,
Mr. [trial counsel], could you approach for a second again,
please?

                            ***

THE CLERK: Mr. [trial counsel]?

THE COURT: Mr. [trial counsel], could you approach for a
minute, please?

                            ***

(Counsel and the defendant approached the bench, and the
following ensued:)

THE COURT: Okay.

       The clerk’s expressed some concern that there may be
not enough room for all the -- especially the way the people
are spread out now. Now, I -- I’m assuming that there are
some people here on behalf of the defendant and there’s some
people here on behalf of the victim.

[TRIAL COUNSEL]: I don’t know, Your Honor. I told my
people yesterday, anticipating this problem, that nothing
really of consequence is going to happen until the afternoon.
So I’m not sure --

THE COURT: Do we have -- do you have people here that
you recognize?

[TRIAL COUNSEL]: Anybody there?

THE COURT: People on behalf of the defendant?

[TRIAL COUNSEL]: Huh?

THE DEFENDANT: Yes. (Inaudible).

[TRIAL COUNSEL]: Yeah.



                             5
THE COURT: He heard that. Present in the courtroom?
Well, what I would suggest -- I don’t know who’s who. I
mean, I was going to have everybody move to one section
but I don’t want people who are at enmity with one
another sitting next to each other.

[THE STATE]: Right. I don’t think that would be a good
idea.

THE COURT: So, --

[TRIAL COUNSEL]: I -- I don’t care if you send them
outside, Judge. Because there’s no room.

THE COURT: I can’t on my motion clear the courtroom.

[TRIAL COUNSEL]: I was going to ask that -- them to step
out.

THE COURT: During jury selection?

[TRIAL COUNSEL]: Yes. Just because I figured that you --

THE COURT: I’ll do -- I’ll do it. But can I do that?

[TRIAL COUNSEL]: I’ll do it.

THE COURT: Is it -- is it --

THE CLERK: We usually do it, Your Honor.

THE COURT:         Does that in any way violate the
defendant’s constitutional rights?

THE CLERK: No. We -- we usually do it when we have a
large panel. We have (inaudible).

THE COURT: Yeah. You’re all agreeing that it’s not going
to violate his rights for a public trial --

[THE STATE]: Well, I can only deal with --



                               6
             [TRIAL COUNSEL]: We have no objection. We have no
             objection.

             THE COURT: All right. Fine. I’ll just ask them if they just
             could just step outside while we select the jury.

                    In fact, I might as well just excuse them until this
             afternoon because that’s all we’re going to do this morning.

                                          ***

             THE COURT: All right. Ladies and Gentlemen, who --
             those of you who are here as spectators in this case, I’m going
             to ask you, and this based upon an agreement between the
             State’s Attorney and the defense attorney, to step outside.

                    The reason why I’m asking you to do this is because
             we have a large number of jurors coming over here to select a
             jury from, and I can’t have -- I can’t -- it’s improper to leave
             the spectators and the jurors mixed up together in the -- in the
             audience of the courtroom.

                    So I’m going to ask you if you would please leave.
             And the -- we’re not going to actually start the trial in this
             case, the actual trial until this afternoon. So we’re not going
             to be actually doing anything other than jury selection
             between now and two o’clock.

                    So I am going to ask you, if you’re not a witness in
             this case, to please leave the courtroom. And you’re certainly
             welcome to come back at two o’clock and witness the trial.

                    Thank you very much.

(Emphasis added.)

      Jury selection proceeded in the closed courtroom. Afterwards, the courtroom was

reopened, as promised, and trial proceeded for three days.

      After three hours of deliberation, the jury sent two notes to the trial judge, notes 3

and 4, which are the subject of another of Thaniel’s postconviction claims. A bench

                                            7
conference ensued between the judge and counsel for both sides, out of Thaniel’s

presence:

             THE COURT: I have two questions here. One [note 3] is
             simply that the jurors want to -- it says, “We the jury
             respectfully request that all trial attendees be held in the
             courtroom until we have had an opportunity to vacate the
             building, and give us ample time to make it to our
             transportation.”

                    And every single juror (inaudible).

             [TRIAL COUNSEL]: Right. Yeah, okay.

             [THE STATE]: I heard there were some issues.[1]

             THE COURT: Oh, there were. There was a lot of tension
             here.

                     And then also [note 4] they have reached a verdict in
             the first count. They want to know whether -- well, I can’t
             show it to you. I’ve never had this happen before. They’ve
             actually reached a verdict of guilty on the first count. They
             want to know whether they have to go on to the second count.

             [TRIAL COUNSEL]: (Inaudible).

             THE COURT: They want to know whether they need to
             reach a verdict on second degree. Which they really don’t,
             because it merges.

             [TRIAL COUNSEL]: Right. Right.

             THE COURT: But the thing that I’m not sure of is whether
             they’ve reached a verdict on the other count -- the other
             charges which were submitted. And I have to find that out.


      1
         The Assistant State’s Attorney present for deliberations was a substitute for the
Assistant State’s Attorney who had tried the case. Presumably, the former’s remark
reflected what he had been told by the latter.

                                            8
                    Let me just tell you this. I am not going to do this
             right now. I’m going to take a luncheon recess, give
             everybody a chance to, you know, prepare. And then we’ll
             take the verdict at 2:00 -- do --

             [TRIAL COUNSEL]: Prepare for what?

             THE COURT: Prepare for what’s going to happen when
             the verdict is announced.

             [TRIAL COUNSEL]: All right.

             THE COURT: I mean I don’t want to put anybody in
             danger here.

             [TRIAL COUNSEL]: No, I understand. But why’s it going
             to be better? I just want -- I just want to get it over with quite
             frankly.

             THE COURT: Well, I know you do.

             [TRIAL COUNSEL]: When’s -- when’s -- when’s it going to
             be better at?

             THE COURT: Because the --

             [TRIAL COUNSEL]: -- better after lunch?

             THE COURT: Because -- well, I just feel more comfortable
             doing it.

             [TRIAL COUNSEL]: Judge?

             THE COURT: I have to -- the Sheriff -- the Sheriff needs to
             be made aware of all of this. They need to be prepared.
             I’m sorry. But that’s what I’m going to do.

(Emphasis added.)

      Further discussion ensued concerning the appropriate response to the jury’s

question about the form of the verdict. The court then recessed for lunch, at 12:30 p.m.,


                                             9
intending for the jury to resume deliberations at 2:00 p.m., but less than half-an-hour

later, the court reconvened to accept the jury’s verdict. Before the jury had been brought

in, the trial judge stated for the record that, given “the security issues involved here,”

Thaniel would “remain shackled” while the verdict was taken.

       The jury found Thaniel guilty of first-degree murder of Shawn Boston, attempted

second-degree murder of Catherine Jones, first- and second-degree assault of Jones,

wearing, carrying, or transporting a handgun, and use of a handgun in the commission of

a crime of violence. It acquitted Thaniel of attempted first-degree murder of Jones. After

the jury had been polled and its verdict hearkened, the Sheriff escorted them out of the

courtroom.

       Sentencing was deferred so that a presentence investigation (“PSI”) report could

be prepared. Thaniel, as noted earlier, received the maximum sentence: an aggregate

sentence of life imprisonment plus fifty years.         The convictions for first- and

second-degree assault of Jones and wearing, carrying, or transporting a handgun were

merged for sentencing purposes.

       Thaniel appealed, contending that the trial court had erred in admitting into

evidence Jones’s identification of him as the shooter and that it had further erred in

admitting into evidence the audio recording of Bell’s out-of-court statement to the police.

In an unreported opinion, a panel of this Court rejected both claims and affirmed.

Thaniel v. State, No. 1374, September Term, 2005.




                                            10
      In 2015, Thaniel filed a pro se postconviction petition, which was later

supplemented, with the assistance of counsel. In the supplemental petition, Thaniel

raised the following claims:

              I.      Ineffective assistance of trial counsel for failing to object
                      to the lack of a unanimous verdict;

             II.      Ineffective assistance of trial counsel for failing to object
                      when the trial court violated Maryland Rules 4-231(b) and
                      4-326(d), governing jury communications;

            III.      Ineffective assistance of trial counsel for waiving
                      Thaniel’s right to a public trial;

            IV.       Ineffective assistance of trial counsel for failure to file a
                      motion for modification of sentence and an application for
                      sentence review by a three-judge panel;

             V.       The cumulative effect of trial counsel’s errors amounted
                      to ineffective assistance; and

            VI.       Ineffective assistance of appellate counsel for failing to
                      raise the issues of lack of unanimous verdict and
                      violations of the rules governing jury communications.

      Following a hearing on the supplemental petition, the postconviction court granted

relief as to all but the first claim and ordered that Thaniel be awarded a new trial.

Regarding the ineffective assistance claim related to jury communications, the

postconviction court found that the juror notes at issue, notes 3 and 4, “pertained to the

action,” under Maryland Rule 4-326(d),2 thereby triggering Maryland Rule 4-231(b),


      2
          At the time of Thaniel’s trial, Maryland Rule 4-326(d) provided:

                   (d) Communications with jury. The court shall notify the
                   defendant and the State’s Attorney of the receipt of any
                                                                                      (continued)
                                                 11
which entitles a defendant to be “physically present at . . . every stage of the trial,” with

exceptions not relevant here.3 The court further found that Thaniel had not been notified

by trial counsel of his right to be present while the trial court addressed the issues raised

in those notes. As for the fourth note, which asked whether the jury, having found

Thaniel guilty of the flagship count, should consider lesser-included offenses, the

(continued)
                communication from the jury pertaining to the action as
                promptly as practicable and in any event before responding to
                the communication. All such communications between the
                court and the jury shall be on the record in open court or shall
                be in writing and filed in the action.
       3
           At the time of Thaniel’s trial, Maryland Rule 4-231 provided in pertinent part:

                                             ***

                (b) Right to be present — Exceptions. A defendant is
                entitled to be present at a preliminary hearing and every stage
                of the trial, except (1) at a conference or argument on a
                question of law; (2) when a nolle prosequi or stet is entered
                pursuant to Rules 4-247 and 4-248; or (3) at a reduction of
                sentence pursuant to Rules 4-344 and 4-345.

                (c) Waiver of right to be present. The right to be present
                under section (b) of this Rule is waived by a defendant:

                       (1) who is voluntarily absent after the
                       proceeding has commenced, whether or not
                       informed by the court of the right to remain; or

                       (2) who engages in conduct that justifies
                       exclusion from the courtroom; or

                       (3) who, personally or through counsel, agrees
                       to or acquiesces in being absent.

                                             ***

                                              12
postconviction court found that Thaniel had not demonstrated prejudice. As for the third

note, however, which “indicated a safety concern [by the jurors] with how courtroom

attendees might react to the verdict,” the postconviction court concluded that “it cannot

say that the State has met its burden of showing, beyond a reasonable doubt, that the

violation was harmless,” and it granted relief as to that claim.

       Regarding Thaniel’s ineffective assistance claim based upon the closure of the

courtroom during voir dire, the postconviction court found that “the total closure of the

courtroom for the full day it took to conduct the voir dire process in [Thaniel’s] case

amounted to more than a de minim[i]s interference with [his] right to a public trial” and

that trial counsel’s “failure to have objected to the closure therefore deprived [Thaniel] of

his right to effective assistance of counsel.”

       Regarding Thaniel’s ineffective assistance claim based upon trial counsel’s failure

to file a motion for modification of sentence and an application for sentence review by a

three-judge panel, the postconviction court granted relief but did not specify a remedy,

presumably because it was ordering a new trial on the other claims. To the extent that the

postconviction court ruled that Thaniel is entitled to relief on this claim, the State has not

challenged that ruling.

       As for Thaniel’s claim based upon the cumulative effect of trial counsel’s

purported errors, the postconviction court concluded that, having found ineffective

assistance as to the juror communications, the closure of the courtroom, and the failure to

file post-trial motions for modification and sentence review, it found prejudice accruing

from the cumulative effect of those errors.           Finally, regarding Thaniel’s claim of

                                                 13
ineffective assistance of appellate counsel, the postconviction court found that, because

“the issue of the jury communications was meritorious,” appellate counsel rendered

ineffective assistance in failing to raise that issue in Thaniel’s direct appeal.

       The State filed a timely application for leave to appeal, contending that the

postconviction court had erred in failing to apply the analytical framework of Strickland

v. Washington, 466 U.S. 668 (1984), to the claims at issue. We granted that application

and transferred the case to the regular appeals docket.

                                STANDARD OF REVIEW

       The ultimate question of whether counsel was ineffective “is a mixed question of

law and fact.” Newton v. State, 455 Md. 341, 352 (2017) (citing Harris v. State, 303 Md.

685, 698 (1985)). We “defer to the factual findings of the postconviction court unless

clearly erroneous,” but we review its ultimate legal conclusions without deference,

“‘re-weigh[ing]’ the facts in light of the law to determine whether a constitutional

violation has occurred.” Id.

                                        DISCUSSION

                INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       The right to the effective assistance of trial counsel is grounded in the Sixth

Amendment, made applicable to the States through the Fourteenth Amendment.

Strickland v. Washington, supra, 466 U.S. at 685-86. A claim of ineffective assistance of

trial counsel comprises two elements:         that counsel’s performance was objectively

unreasonable “under prevailing professional norms,” id. at 688, and that there is a

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

                                              14
proceeding would have been different.” Id. at 694. The petitioner bears the burden of

proof. Id. at 687.

       “Judicial scrutiny of counsel’s performance must be highly deferential,” id. at 689;

accordingly, a reviewing court begins with a “strong presumption” that counsel “rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 689-90. We “must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” Id. at 690. It is the petitioner’s burden to “identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment,”

whereupon a reviewing court “must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.” Id.

       “An error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Id. at 691. “[I]neffectiveness claims alleging a deficiency in attorney performance are

subject to a general requirement that the defendant affirmatively prove prejudice,” id. at

693, defined as “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”         Id. at 694.    A “reasonable

probability,” in turn, “is a probability sufficient to undermine confidence in the

outcome.” Id. That standard lies between, on the one hand, a showing “that the errors

had some conceivable effect on the outcome of the proceeding,” id. at 693, and, on the



                                            15
other hand, a showing by a preponderance of the evidence that counsel’s errors affected

the outcome. Id. at 693-94.

       Finally, because deficient performance and prejudice are elements of an

ineffective assistance claim, both of which must be proven by a postconviction petitioner,

“there is no reason for a court deciding an ineffective assistance claim to approach the

inquiry” in a specific order “or even to address both components of the inquiry” if the

petitioner “makes an insufficient showing on one.” Id. at 697. “In particular, a court

need not determine whether counsel’s performance was deficient before examining the

prejudice suffered” by the petitioner “as a result of the alleged deficiencies.” Id. “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

. . . that course should be followed.” Id.

Whether the postconviction court erred in finding trial counsel ineffective for agreeing
                  to the closure of the courtroom during voir dire

       The State challenges the postconviction court’s conclusion that Thaniel’s trial

counsel was ineffective in agreeing to the closure of the courtroom during voir dire.

According to the State, Thaniel failed to demonstrate either that his trial counsel had

performed deficiently in doing so or that he had suffered prejudice as a result.4 We agree.


       4
         At the postconviction hearing, the State further contended that, because trial
counsel had affirmatively stated that he did not object to the closure of the courtroom
during voir dire, Thaniel’s claim of ineffective assistance, based upon trial counsel’s
actions in that regard, had been waived. The postconviction court found that the direct
claim, that the closure of the courtroom had violated Thaniel’s right to a public trial,
would have been waived had it been raised but that his ineffective assistance claim, based
upon counsel’s waiver of his right to public trial, had not been waived. The State does
not challenge that ruling before us.

                                             16
       The postconviction court, without applying or even acknowledging the Strickland

test, found that “the total closure of the courtroom for the full day it took to conduct the

voir dire process” during Thaniel’s trial “amounted to more than” a de minimis

interference with his right to a public trial and that trial counsel’s failure “to have

objected to the closure therefore deprived” Thaniel of his right to effective assistance of

counsel. The postconviction court erred in so ruling.

       The decision of the Supreme Court in Weaver v. Massachusetts, 582 U.S. __, 137

S. Ct. 1899 (2017), rendered one month after the ruling of the postconviction court in the

instant case, is dispositive of this claim. In that case, Weaver was standing trial for

first-degree murder and unlawful possession of a handgun, and the pool of potential

jurors was so large that it exceeded the capacity of the courtroom. Id. at 1905-06. “As

all of the seats in the courtroom were occupied by the venire panel, an officer of the court

excluded from the courtroom any member of the public who was not a potential juror.”

Id. at 1906. Accordingly, when Weaver’s mother and her minister sought entry to the

courtroom “to observe the two days of jury selection, they were turned away.” Id.

       When she subsequently informed trial counsel that she had been excluded from the

courtroom, he “did not discuss the matter” with Weaver, nor did he object, because he

“believed that a courtroom closure for [jury selection] was constitutional.” 5 Id. Weaver


       5
         Weaver’s trial, like Thaniel’s, had taken place prior to the decision of the
Supreme Court in Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), which, in the
words of the Weaver Court, “made it clear that the public-trial right extends to jury
selection as well as to other portions of trial.” Weaver v. Massachusetts, 582 U.S. __,
137 S. Ct. 1899, 1906 (2017). In fact, prior to the decision in Presley, “Massachusetts
                                                                            (continued)
                                            17
was thereafter convicted of both charges, the Commonwealth having presented “strong

evidence of” his guilt, including a confession he had given to police. Id. The trial court

imposed a sentence of life imprisonment for first-degree murder and an additional

sentence for the handgun offense. Id.

       Five years later, Weaver filed a motion for new trial,6 raising, among other things,

a claim that his trial counsel “had provided ineffective assistance by failing to object to

the courtroom closure.” Id. Following an evidentiary hearing, the Massachusetts trial

court denied Weaver’s motion, finding that, although trial counsel had performed

deficiently, Weaver had failed to prove that he was thereby prejudiced. Id. On appeal,

the Supreme Judicial Court of Massachusetts affirmed the trial court’s denial of Weaver’s

new trial motion, holding that, although the closure of the courtroom during voir dire had

been structural error, an ineffective assistance claim based upon an unpreserved structural

error nonetheless required a showing of prejudice, which Weaver had failed to prove and,

indeed, did not challenge on appeal. Comm. v. Weaver, 54 N.E.3d 495, 520-21 (Mass.

(continued)
courts would often close courtrooms to the public during jury selection, in particular
during murder trials.” Id.
       6
         In Massachusetts, a motion for new trial functions similarly to a postconviction
petition in Maryland. See Mass.R.Crim.P. 30(a) (providing that “[a]ny person who is
imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any
time, as of right, file a written motion requesting the trial judge to release him or her or to
correct the sentence then being served upon the ground that the confinement or restraint
was imposed in violation of the Constitution or laws of the United States or of the
Commonwealth of Massachusetts”); id. § (b) (providing that the “trial judge upon motion
in writing may grant a new trial at any time if it appears that justice may not have been
done”).


                                              18
2016) (citing Comm. v. LaChance, 17 N.E.3d 1101, 1104 (Mass. 2014)).7 Weaver then

petitioned the Supreme Court for certiorari to consider whether an ineffective assistance

claim, based upon a procedurally defaulted structural error, requires a showing of

prejudice, and the Court granted that petition. Weaver v. Massachusetts, 580 U.S. __,

137 S. Ct. 809 (2017).

       The Supreme Court rendered a narrow decision, holding that, in the specific

context “of trial counsel’s failure to object to the closure of the courtroom during jury

selection,” Weaver, 137 S. Ct. at 1907, “Strickland prejudice is not shown automatically.”

Id. at 1911. “Instead,” instructed the Court, “the burden is on the [petitioner] to show

either a reasonable probability of a different outcome in his or her case or, as the Court

has assumed for these purposes,[8] to show that the particular public-trial violation was so

serious as to render his or her trial fundamentally unfair.” Id. (internal citation omitted).


       7
         In Commonwealth v. LaChance, 17 N.E.3d 1101 (Mass. 2014), the Supreme
Judicial Court had held that, “where the defendant has procedurally waived his Sixth
Amendment public trial claim by not raising it at trial, and later raises the claim as one of
ineffective assistance of counsel in a collateral attack on his conviction, the defendant is
required to show prejudice from counsel’s inadequate performance (that is, a substantial
risk of a miscarriage of justice) and the presumption of prejudice that would otherwise
apply to a preserved claim of structural error does not apply.” Id. at 1104 (citations
omitted).
       8
          Weaver maintained that, because the Strickland Court instructed that “the
ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged,” Strickland v. Washington, 466 U.S. 668, 696 (1984), it
follows that, under “a proper interpretation of Strickland, even if there is no showing of a
reasonable probability of a different outcome, relief still must be granted if the convicted
person shows that attorney errors rendered the trial fundamentally unfair.” Weaver, 137
S. Ct. at 1911. The Weaver Court therefore assumed without deciding that Strickland
prejudice could be established either by showing that, but for trial counsel’s deficient
                                                                                 (continued)
                                              19
       The Supreme Court observed that Weaver had “offered no evidence or legal

argument establishing prejudice in the sense of a reasonable probability of a different

outcome but for counsel’s failure to object.” Id. at 1912-13. As for whether the closure

of the courtroom during voir dire had rendered Weaver’s trial “fundamentally unfair,” the

Court noted that “the courtroom [had] remained open during the evidentiary phase of the

trial,” that the decision to close the courtroom had been “made by court officers rather

than the judge,” that “there were many members of the venire who did not become

jurors” but had observed the proceedings, and that the record had indicated no “basis for

concern, other than the closure itself.” Id. at 1913. Moreover, observed the Court,

Weaver had failed to show “that the potential harms flowing from a courtroom closure,”

such as juror misconduct during voir dire or “misbehavior by the prosecutor, judge, or

any other party,” had “[come] to pass.” Id. Therefore, the Court concluded, the violation

had not “pervade[d] the whole trial or [led] to basic unfairness,” and Weaver had failed to

show that trial counsel’s deficient performance had resulted in a fundamentally unfair

trial. Id. The Court thus affirmed the judgment of the Supreme Judicial Court, denying

Weaver’s ineffective assistance claim. Id. at 1913-14.

       The instant case is practically on all fours with Weaver. The only significant

difference between the two cases is that here, unlike in Weaver, there was not even

deficient attorney performance, which, in that case, the lower court had found, based


(continued)
performance, there was a reasonable probability of a different outcome, or that trial
counsel’s deficient performance rendered the trial fundamentally unfair. Id.

                                            20
upon trial counsel’s “serious incompetency, inefficiency, or inattention,” id. at 1907

(citations and quotations omitted), a finding that was not contested before the Supreme

Court. In contrast with Weaver, where trial counsel had acquiesced in the courtroom

closure because of ignorance of the law, in the instant case, the trial judge and trial

counsel had affirmatively agreed to the courtroom closure under circumstances

suggesting that trial counsel had a tactical reason for doing so. There was evidence in the

record that the reason trial counsel had agreed to the closure was, at least in part, his

desire to avoid a possible outbreak of violence between spectators sympathetic to his

client and spectators sympathetic to the victim.9       That distinction further weakens

Thaniel’s case in comparison with Weaver. See, e.g., Oken v. State, 343 Md. 256, 283

(1996) (observing that a postconviction petitioner must “overcome the presumption that

the challenged action might, under the circumstances, be considered sound trial

strategy”), cert. denied, 519 U.S. 1079 (1997); Robinson v. State, 410 Md. 91, 104, 111

(2009) (declining to apply plain error review to unpreserved claim of public trial

violation “under circumstances suggesting that the lack of objection might have been

strategic, rather than inadvertent”). Thaniel has failed to rebut the presumption that trial

counsel had agreed to the courtroom closure as a matter of trial strategy. We hold that

trial counsel did not render deficient performance, given the evidence (which was later

confirmed when the verdict was taken) that he sought to avoid an in-court confrontation

between the families of his client and that of the murder victim.

       9
         The postconviction court noted that the record “indicates concern about potential
friction during trial between the families of the victim and the defendant.”

                                            21
         In any event, Thaniel, like Weaver, has presented no evidence that, but for the

decision of trial counsel to agree to the closure of the courtroom during voir dire, there is

a reasonable probability that the outcome of his trial would have been different, nor has

he presented any evidence that that decision rendered his trial fundamentally unfair.

Indeed, it appears that the postconviction court treated this claim as if it had been a

preserved claim of structural error in a direct appeal. Thaniel’s claim was, in fact,

nothing of the sort, and his total inability to show Strickland prejudice bars relief on this

claim.

         In passing, we note that Thaniel raises several arguments in support of the

postconviction court’s ruling, but none of them has any merit. Thaniel claims that he

raised, in the postconviction court, a freestanding claim that the trial court’s structural

error in closing the courtroom during voir dire had violated his right to a public trial and

that we should affirm the postconviction court’s grant of relief on that ground. But he

ignores that trial counsel had affirmatively waived that freestanding claim of structural

error by agreeing to the closure of the courtroom, as the postconviction court correctly

recognized.10 See Curtis v. State, 284 Md. 132, 147 (1978) (observing that a “defendant

may forego a broad spectrum of rights [indeed, all rights that do not require a knowing

and voluntary waiver] which are deemed to fall within the category of tactical decisions

by counsel or involve procedural defaults”); accord State v. Rose, 345 Md. 238, 248-50


         10
          Thaniel concedes that the right to a public trial is not one of the fundamental
rights that requires a knowing and voluntary waiver by the defendant. Robinson v. State,
410 Md. 91, 107 (2009).

                                             22
(1997) (holding that a claim of a defective reasonable doubt jury instruction, an alleged

structural error, had been waived through a procedural default). Thus, Thaniel’s reliance

upon cases such as Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), Longus v.

State, 416 Md. 433 (2010), and Walker v. State, 125 Md. App. 48 (1999), is misplaced

because those cases were direct appeals where the error had been preserved. See Presley,

558 U.S. at 210-11; Longus, 416 Md. at 440-41 & n.3; Walker, 125 Md. App. at 62.

      Nor is Thaniel correct in contending that Weaver should not be applied

retroactively to this case. Weaver did not announce a fundamental change in the law but

merely applied existing precedent (i.e., Strickland) to a previously unexamined

circumstance, and, as such, is fully applicable to the instant case. See State v. Daughtry,

419 Md. 35, 77-78 (2011) (explaining that, where a judicial decision “sets forth and

applies the rule of law that existed both before and after the date of the decision,” the

decision “applies retroactively in the same manner as most court decisions”) (citations

and quotations omitted).

      We also reject Thaniel’s contention that the closure of the courtroom during voir

dire rendered his trial fundamentally unfair. There is no evidence whatsoever that any

specific juror would have been stricken had Thaniel’s family and friends been allowed in

the courtroom during voir dire. As in Weaver, “the courtroom remained open during the

evidentiary phase of the trial,” there were, presumably, “many members of the venire

who did not become jurors” but had observed the proceedings, and the record indicates

no “basis for concern, other than the closure itself.” Id. at 1913. As in Weaver, Thaniel

has failed to show “that the potential harms flowing from a courtroom closure,” such as

                                            23
juror misconduct during voir dire or “misbehavior by the prosecutor, judge, or any other

party,” had “[come] to pass,” and we similarly conclude that the public trial violation did

not “pervade the whole trial or lead to basic unfairness.” Id. The purported prejudice he

alleges that he suffered is purely speculative and provides no basis for vacating his

convictions.

Whether the postconviction court erred in finding trial counsel ineffective for failing to
object when the trial court and counsel addressed a juror’s note in Thaniel’s absence

       The State challenges the postconviction court’s conclusion that Thaniel’s trial

counsel was ineffective in failing to object when the trial court, in the presence of counsel

for both parties, addressed a juror’s note in Thaniel’s absence. According to the State,

the note on which the postconviction court granted relief, note 3, did not pertain to the

action; trial counsel properly waived Thaniel’s right to be present, under Rule 4-326(d);

and, in any event, Thaniel failed to demonstrate prejudice.          As for the latter two

contentions, we agree.11

       The postconviction court failed, in its analysis, to account for Rule 4-231(c),

which, at the time of trial, provided:

               (c) Waiver of right to be present. The right to be present
               under section (b) of this Rule is waived by a defendant:

                     (1) who is voluntarily absent after the
                         proceeding has commenced, whether or not
                         informed by the court of the right to remain;
                         or

       11
         We need not decide whether the juror note, requesting that the jury be
discharged prior to the spectators being permitted to leave the courtroom, pertained to the
action.

                                             24
                     (2) who engages in conduct that justifies
                     exclusion from the courtroom; or

                     (3) who, personally or through counsel, agrees
                     to or acquiesces in being absent.

Clearly, trial counsel acquiesced in Thaniel’s absence, as contemplated by the rule.

Thaniel’s presence, under those circumstances, was not subject to a knowing and

voluntary waiver, as the postconviction court seemed to assume. The postconviction

court failed to address the possibility that trial counsel’s waiver of Thaniel’s presence fell

within “the wide range of professionally competent assistance.” Strickland, 466 U.S. at

690.

       Moreover, the postconviction court concluded that “it cannot say that the State has

met its burden of showing, beyond a reasonable doubt, that the violation was harmless.”

In other words, the postconviction court applied the wrong legal standard in assessing

prejudice. Under the correct standard, Thaniel, not the State, bore the burden to show

that, but for trial counsel’s alleged error in failing to object to Thaniel’s absence from the

bench conference, there was a reasonable probability that the result of the trial would

have been different. Strickland, 466 U.S. at 694. Thaniel, however, utterly failed to

demonstrate any prejudice accruing from his absence from the bench conference where

the note was addressed.

       Thaniel, nonetheless, insists that his fundamental right to be present was violated

because his trial counsel failed to notify him of the juror notes and thereby thwarted his

ability to be present when the court determined its course of action in response to those


                                             25
notes. As the State points out, however, the cases upon which he relies, such as Denicolis

v. State, 378 Md. 646 (2003); Winder v. State, 362 Md. 275 (2001); and Stewart v. State,

334 Md. 213 (1994), all were direct appeals where neither trial counsel nor the

defendants had been notified of the juror notes at issue, and those cases therefore shed no

light upon Thaniel’s postconviction claim. Whereas those cases involved application of

the harmless error standard of Dorsey v. State, 276 Md. 638, 659 (1976), to

circumstances where no one on the defense side had been notified of the juror notes, the

instant case involves the application of an entirely different and more difficult standard,

the “reasonable probability” standard of Strickland, to a circumstance where trial counsel

had been fully informed of the notes and had waived Thaniel’s presence.            As we

explained in Patterson v. State, 229 Md. App. 630, 638-39 (2016), there is a “stark

contrast” between the harmless error standard and the “substantial possibility” standard

applicable in an actual innocence proceeding, the latter of which is, as the Court of

Appeals has explicated, substantively identical to the Strickland prejudice standard. See

Bowers v. State, 320 Md. 416, 426-27 (1990). Thaniel has not even attempted to meet his

burden to show that, but for trial counsel’s purported error, there is a reasonable

probability that the result of his trial would have been different.

            INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       There is a fundamental difference between the right to effective assistance of

appellate counsel and the right to effective assistance of trial counsel—whereas the latter

is a trial right, derived from the Sixth Amendment, Strickland, 466 U.S. at 684-86, the

former derives from an amalgamation of the Due Process and Equal Protection Clauses

                                              26
of the Fourteenth Amendment.12 Halbert v. Michigan, 545 U.S. 605, 616-17 (2005)

(observing that the right to appellate counsel is grounded in the Fourteenth Amendment);

Smith v. Robbins, 528 U.S. 259, 276 (2000) (observing that the right to appellate counsel

derives in part from the Equal Protection Clause and in part from the Due Process

Clause). Nonetheless, that doctrinal distinction is of little practical significance, because

a claim of either type of ineffective assistance of counsel is resolved under the same

framework—the two-prong test of Strickland. See Robbins, 528 U.S. at 285 (observing

that “the proper standard for evaluating” a claim that “appellate counsel was ineffective

in neglecting to file a merits brief is that enunciated in” Strickland) (citing Smith v.

Murray, 477 U.S. 527, 535-36 (1986)); Gross v. State, 371 Md. 334, 349 (2002), noting

that, “the same standards apply in assessing appellate counsel effectiveness” in either trial

or appellate context) (citations omitted).

       In applying the Strickland test to a claim of ineffective assistance of appellate

counsel, a reviewing court, assessing the performance prong, must keep in mind that

counsel is not required “to argue every possible issue on appeal.” Newton v. State, 455

Md. 341, 363 (2017) (quoting Gross, 371 Md. at 350). Thus, appellate counsel “need not

(and should not) raise every nonfrivolous claim, but rather may select from among them



       12
          The Supreme Court has iterated that “[t]he Federal Constitution imposes on the
States no obligation to provide appellate review of criminal convictions.” Halbert v.
Michigan, 545 U.S. 605, 610 (2005) (citing McKane v. Durston, 153 U.S. 684, 687
(1894)). If a state does provide such review, however, it “may not ‘bolt the door to equal
justice’ to indigent defendants.” Id. (quoting Griffin v. Illinois, 351 U.S. 12, 24 (1956)
(Frankfurter, J., concurring in judgment)).

                                             27
in order to maximize the likelihood of success on appeal.” Id. (quoting Robbins, 528

U.S. at 288).

       “To satisfy the prejudice prong, the [petitioner] must establish to a reasonable

probability that but for his counsel’s failure to raise an issue, he would have prevailed on

his appeal.” Id. (citing Robbins, 528 U.S. at 286). As applicable to an ineffective

assistance claim based upon the failure to raise an unpreserved issue, a petitioner would

have prevailed on appeal only if the appellate court would have found plain error. Id. at

364.

  Whether the postconviction court erred in finding appellate counsel ineffective for
          failing to raise an unpreserved claim in Thaniel’s direct appeal

       The State challenges the postconviction court’s conclusion that Thaniel’s appellate

counsel was ineffective for failing to raise, in Thaniel’s direct appeal, the unpreserved

claim that the trial court had erred in addressing juror note 3 in Thaniel’s absence.

According to the State, the postconviction court “did not appear to appreciate that this

claim was unpreserved” and that it could have been considered on appeal “only in the

unlikely event that this Court [had] exercised its discretion to review for plain error.”

Given the unlikelihood that we would have done so, the State maintains that Thaniel

failed to rebut the presumption that appellate counsel acted reasonably in declining to

raise this issue. We agree.

       A recent decision of the Court of Appeals, Newton v. State, 455 Md. 341, is

instructive. In Newton, the Court of Appeals considered the question before us—whether

appellate counsel could ever render ineffective assistance in failing to raise an


                                            28
unpreserved issue—but it did not give a definitive answer. The Newton Court did,

however, observe that it is “‘rare’ for the Court to find plain error,” id. (quoting Yates v.

State, 429 Md. 112, 131 (2012)), and cited examples in which it had done so, covering

such matters as “serious errors” in jury instructions and a biased trial judge. Id. at 364-65

(citing cases). To that short list we could add a recent decision in our Court, Hallowell v.

State, 235 Md. App. 484 (2018), in which we found plain error in giving a pattern jury

instruction, but only because of an intervening change in the law. Id. at 504-06.13

Because the error underlying Newton’s ineffective assistance claim, the presence of an

alternate juror during the deliberations, did not affect the defendant’s substantial rights

and would not have been deemed plain error on appeal, the Court concluded that Newton

could not satisfy the prejudice prong of Strickland. Newton, 455 Md. at 366.

       Newton is dispositive of Thaniel’s claim of ineffective assistance of appellate

counsel. Thaniel has utterly failed to show, or even suggest that, had appellate counsel

raised this unpreserved issue, there was a reasonable probability that this Court would

have granted plain error review. Indeed, given that trial counsel’s waiver of Thaniel’s

presence was permitted under Rule 4-231(c), we hold that there was no error at all, let

alone plain error.




       13
          See also Unger v. State, 427 Md. 383 (2012), which held that trial counsel’s
failure to object to advisory jury instructions, during a trial held prior to an intervening
change in the law which rendered such instructions unconstitutional, id. at 417, “did not
amount to deficient representation” under the Strickland performance prong. Id. at 411.

                                             29
                         Cumulative Effect of Purported Errors

       Having concluded that the postconviction court erred in granting relief as to all of

Thaniel’s claims, except those pertaining to modification of sentence and sentence

review, we further hold that the postconviction court erred in finding prejudice accruing

from the cumulative effect of trial counsel’s purported errors.

                                       JUDGMENT OF THE CIRCUIT COURT
                                       FOR BALTIMORE CITY VACATED. CASE
                                       REMANDED TO THAT COURT WITH
                                       INSTRUCTIONS TO GRANT APPELLEE
                                       THE RIGHT TO FILE BELATED MOTIONS
                                       FOR MODIFICATION OF SENTENCE AND
                                       FOR   SENTENCE    REVIEW   BY   A
                                       THREE-JUDGE PANEL. COSTS ASSESSED
                                       TO APPELLEE.




                                            30
