Circuit Court for Cecil County
Case No. 07-K-06-000806


                                                REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                             OF MARYLAND


                                                  No. 785

                                           September Term, 2013

                                 ______________________________________


                                         WILLIAM LOUIS KRANZ

                                                     v.

                                         STATE OF MARYLAND

                                 ______________________________________


                                      Woodward, C.J.,
                                      Graeff,
                                      Berger,

                                                     JJ.

                                 ______________________________________


                                            Opinion by Berger, J.

                                 ______________________________________

                                      Filed: August 30, 2017
       William Louis Kranz, appellant, was convicted, following a jury trial in the Circuit

Court for Cecil County, of two counts each of assault in the first degree and reckless

endangerment. The court then sentenced Kranz to a total term of five years’ imprisonment,

to be followed by three years’ supervised probation.

       Thereafter, Kranz filed a petition, under the Maryland Uniform Postconviction

Procedure Act, seeking to vacate his convictions on the ground that the State had

committed a Brady violation -- that, at the time of his trial, an Assistant State’s Attorney

in Cecil County, although not involved in Kranz’s criminal case, was representing the two

victims in that case in a separate civil action against Kranz, arising out of the same incident,

but that that conflict had not been disclosed to the defense. The postconviction court ruled

that the State had, indeed, failed to make a required disclosure to Kranz, but it nonetheless

denied his petition on the basis that the State’s nondisclosure was not “material” because

it did not “create a reasonable probability of a different result.”

       Subsequently, Kranz filed an application for leave to appeal from that decision,

which this Court granted. It, therefore, appeared that the issue before us was whether the

postconviction court had erred in concluding that the State’s nondisclosure was not

“material” and, concomitantly, whether the postconviction court had applied the correct

materiality standard under the facts of this case.1          However, unbeknownst to the


       1
         Generally, the materiality standard in a case alleging a Brady violation is “whether
there is a ‘reasonable probability’ that disclosure of the suppressed evidence would have
led to a different result.” Yearby v. State, 414 Md. 708, 717 (2010) (quoting Kyles v.
Whitley, 514 U.S. 419, 434 (1995)). A different standard applies, however, in cases where
“the undisclosed evidence demonstrates that the prosecution’s case includes perjured
applications panel, sometime after Kranz had filed his application for leave to appeal but

prior to the granting of that application, Kranz completed serving his sentence, including

the three-year probationary period.

       In its brief, the State has included a motion to dismiss, asserting that, upon the

completion of Kranz’s sentence, this Court was divested of appellate jurisdiction and

therefore must dismiss this appeal. For the reasons that follow, we shall grant that motion.

                                      BACKGROUND

       We quote the memorandum opinion of the postconviction court for factual

background:

                      Kranz was convicted of first degree assault and reckless
              endangerment by a jury in the Circuit Court for Cecil County,
              for shooting victims Brandi Schaffer and George McSwain
              when they were accidentally driving on his property. After his
              conviction, but before sentencing, Kranz learned that Ms.
              Schaffer and Mr. McSwain had filed a civil suit against him
              over the same incident. They were seeking damages in excess
              of one million dollars. They obtained Kevin Urick as counsel
              in the civil suit.

                     Mr. Urick (hereafter ASA Urick) serves as a full time
              [A]ssistant [S]tate’s [A]ttorney while also maintaining a




testimony and that the prosecution knew, or should have known, of the perjury.” United
States v. Agurs, 427 U.S. 97, 103 (1976). In that case, a “new trial is required if ‘the false
testimony could . . . in any reasonable likelihood have affected the judgment of the jury[.]’”
Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264,
271 (1959)). Whether the latter standard should apply in a case such as this, where the
prosecution apparently failed to disclose a conflict of interest, which, arguably, created an
appearance that the prosecution had a financial interest in obtaining a conviction, is unclear,
and, given our disposition of this appeal, we need not further consider that question.


                                              2
               private practice.[2] As an ASA, Mr. Urick worked under the
               State’s Attorney, Christopher Eastridge: the prosecuting
               attorney in Mr. Kranz’s criminal trial. ASA Urick was in no
               way involved in the criminal prosecution of Mr. Kranz and had
               no contact with Mr. Eastridge regarding preparation for the
               case. However, Mr. Eastridge was aware of ASA Urick’s
               representation of Ms. Schaffer and Mr. McSwain in the civil
               suit and at no time disclosed this information to Mr. Kranz nor
               to his attorney.

                       Mr. Kranz’s criminal trial may reasonably be
               considered close as he was tried twice as a result of a hung jury
               in his first trial.[3] In the latter trial the [S]tate’s case was put
               on primarily by use of circumstantial evidence as the [S]tate
               was not able to present any direct evidence against Mr. Kranz.
               Likewise, victims Ms. Schaffer and Mr. McSwain were the
               [S]tate’s key witnesses. The record states that neither Ms.
               Schaffer nor Mr. McSwain could positively identify Mr. Kranz
               as the shooter and instead could only testify as to seeing a
               shadowy figure immediately prior to the shots being fired. Mr.
               Kranz’s trial counsel cross-examined both witnesses but
               ultimately was unsuccessful in persuading the jury to find in
               favor of Mr. Kranz.

                       After the jury’s verdict but prior to being sentenced, Mr.
               Kranz was notified of the civil suit filed against him by Ms.
               Schaffer and Mr. McSwain. Subsequently, he notified his trial
               counsel of the information. Prior to sentencing defense
               counsel filed a motion for new trial that did not include claims
               regarding a Brady violation by the [S]tate for failing to disclose
               ASA Urick’s representation of Ms. Schaffer and Mr. McSwain
               in the civil suit. The trial court denied this motion. Mr. Kranz
               filed an appeal on August 17, 2009.


       2
         It appears that Urick still maintains a private practice in Cecil County but no longer
works as an Assistant State’s Attorney in that county. See “Kevin Urick, Attorney at Law,
Attorney Profile,” available at http://www.kevinurick.net/attorney_profile.html (last
visited June 28, 2017).
       3
         Not only was there a mistrial declared after the first trial, as a result of a hung jury,
but, furthermore, the jury at the retrial deliberated three days before reaching a verdict.

                                                3
                          On September 23, 2009 another motion for new trial
                was filed. A hearing for this new trial motion was held on
                December 11, 2009 before Judge Kahl. This motion was
                denied. Subsequently, the Court of Special Appeals issued
                Judge Moylan’s unreported opinion on November 9, 2010
                affirming Judge Kahl’s denial of Mr. Kranz’s motion for a new
                trial.[4]

Kranz v. State, No. 07-K-06-000806, slip op. at 2-3 (Cecil Cnty. Cir. Ct. May 20, 2013).

       Kranz was sentenced, on July 31, 2009, to two consecutive five-year sentences for

the first-degree assault convictions, the latter suspended, to be followed by three years’

probation.5 He was thereafter released (apparently through operation of diminution credits,

see Correctional Services Article, §§ 3-701 to 3-711), and his probation concluded on April

7, 2015.6 Thereafter, on August 31, 2016, his application for leave to appeal from the

denial of his postconviction petition was granted. As we shall see, that timeline is crucial

to our disposition of the instant appeal.


       4
         In fact, this Court concluded that Kranz’s September 23, 2009 motion for new trial
was not properly before it because that motion had been filed after the notice of appeal was
filed, and no notice of appeal was filed after the September 23, 2009 motion was denied.
Kranz v. State, No. 1548, Sept. Term, 2009, slip op. at 2-3 (filed Nov. 9, 2010). The panel
opinion went on to conclude that, even had a proper appeal been taken from the denial of
the September 23, 2009 motion for new trial, Kranz could not have prevailed because the
allegation raised would have had to qualify as newly discovered evidence, under Maryland
Rule 4-331(c), but it was clear from the record that it did not. Id., slip op. at 16-17.
       5
           The reckless endangerment convictions were merged for sentencing purposes.
       6
         The record submitted to this Court does not contain sufficient information for us
to determine the factual basis for this statement. Attached to the State’s motion to dismiss,
however, is a letter, from Eleanor McMullen, Special Assistant to the Director of the
Division of Parole and Probation, addressed to appellee’s counsel, stating the supporting
facts. In his reply brief, Kranz does not challenge those factual assertions, claiming instead
that they do not support the legal conclusion that his appeal should be dismissed. We shall
therefore assume the veracity of the assertions stated in that letter. Md. Rule 5-201(b), (c).
                                              4
                                       DISCUSSION

                                               I.

       This appeal turns upon an issue of statutory construction, which is a question of law

that we review de novo. Moore v. State, 388 Md. 446, 452 (2005). The canons of statutory

construction are well settled and begin with the “cardinal rule”—that is, we must “ascertain

and effectuate the intent of the Legislature.” Jamison v. State, 450 Md. 387, 396 n.9 (2016)

(citation and quotation omitted). “In ascertaining legislative intent, we first examine the

plain language of the statute, and if the plain language of the statute is unambiguous and

consistent with the statute’s apparent purpose, we give effect to the statute as it is written.”

Id.

                                              II.

       Maryland Code (2001, 2008 Repl. Vol.), Criminal Procedure Article (“CP”),

§ 7-101, the first section of the Maryland Uniform Postconviction Procedure Act, provides

as follows:

              This title applies to a person convicted in any court in the
              State who is:

                      (1) confined under sentence of imprisonment; or

                      (2) on parole or probation.

(Emphasis added.)

       That provision, known as the “custody” requirement, Obomighie v. State, 170 Md.

App. 708, 712 n.2, cert. denied, 396 Md. 13 (2006) (citing McMannis v. State, 311 Md.

534, 539 (1988)), “is jurisdictional in nature.” Id. at 713. In Obomighie, we examined the


                                               5
application of that jurisdictional requirement to a person who, at an earlier stage of a

postconviction proceeding, had been eligible to seek relief under the Act, but subsequently,

during the pendency of that proceeding, became ineligible because he had finished serving

his sentence. For reasons that will become clear, Obomighie bears closer scrutiny.

       Obomighie had been convicted of assault in the second degree and sentenced to a

term of eighteen months’ imprisonment, all of which was suspended in favor of eighteen

months’ supervised probation. Id. at 710. While on probation, he filed a postconviction

petition, but, before a hearing could be scheduled and his petition heard, Obomighie

completed serving his sentence. Id. The postconviction court subsequently conducted a

hearing and “entered an order dismissing the case for want of jurisdiction because

Obomighie was no longer on probation.” Id.

       He filed an application for leave to appeal from that ruling, which this Court granted,

and, thereafter, we affirmed the postconviction court’s order, dismissing Obomighie’s

petition for lack of jurisdiction. Especially pertinent here, we noted that the “apparent

conflict” between CP § 7-101, “which limits the scope of the title, and the jurisdiction of

the circuit court, to persons imprisoned or on parole or probation,” and CP § 7-102,7 which

(subject to the ten-year statute of limitations, CP § 7-103), “on its face, permits initiating”



       7
         CP § 7-102(a) provides in pertinent part that, subject to various enumerated
conditions (including the ten-year statute of limitations in CP § 7-103), “a convicted person
may begin a proceeding under this title in the circuit court for the county in which the
conviction took place at any time,” provided that his claims are cognizable under the
statute.


                                              6
a postconviction proceeding “at any time,” was resolved by the Court of Appeals in

McMannis,8 which held, in effect, that the “custody” requirement of CP § 7-101 takes

precedence over CP § 7-102. Obomighie, 170 Md. App. at 712. That is to say, “McMannis

makes it clear that petitions may be ‘filed at any time,’” but “only by persons who are either

confined, or on parole or probation.” Id. at 712-13. And that is true despite the fact that

the purpose of the Maryland Uniform Postconviction Procedure Act is remedial, Douglas

v. State, 423 Md. 156, 175 (2011); in other words, the remedies afforded by that Act are

expressly limited to those who satisfy the “custody” requirement.9

       In the instant case, we must resolve a different apparent conflict regarding which

statute (CP § 7-101 or CP § 7-109) governs appeals in postconviction proceedings. The

latter statute provides in pertinent part:

               (a) Within 30 days after the court passes an order in accordance
               with this subtitle, a person aggrieved by the order, including
               the Attorney General and a State’s Attorney, may apply to the
               Court of Special Appeals for leave to appeal the order.




       8
          McMannis interpreted Maryland Code (1957, 1982 Repl. Vol., 1987 Cum. Supp.),
Art. 27, § 645A, the statutory predecessor to the current Title 7 of the Criminal Procedure
Article, but the specific provisions at issue are substantially similar. In fact, the only
significant substantive difference between the 1987 version of the Act and the present one
is that the former was less restrictive of a petitioner’s right to file, as it lacked the ten-year
statute of limitations in the present statute, which was enacted in 1995. 1995 Md. Laws,
ch. 258.
       9
        Indeed, the Douglas Court acknowledged that, although the Maryland Uniform
Postconviction Procedure Act has a remedial purpose, there are circumstances for which it
does not provide a remedy. Douglas v. State, 423 Md. 156, 175 (2011). We think that the
“custody” requirement delineates some of those circumstances.
                                                7
       According to Kranz, this provision confers appellate jurisdiction upon this Court,

regardless of whether or not he was in custody, at the time we purported to grant his

application for leave to appeal, so long as he was in custody when the circuit court ruled

on his postconviction petition. We disagree.

       For the same reason that McMannis and Obomighie held that the “custody”

requirement of CP § 7-101 takes precedence over the filing provisions of CP § 7-102, we

conclude that the “custody” requirement must also take precedence over the appeals

provisions of CP § 7-109. That is because CP § 7-101 states, without qualification, that

“[t]his title applies to a person convicted in any court in the State who is” in “custody,”

whether incarcerated or on parole or probation. “This title,” of course, refers to the entirety

of Title 7 of the Criminal Procedure Article (that is, the Maryland Uniform Postconviction

Procedure Act), including the appeals provisions of CP § 7-109.

       To be eligible for relief under Title 7, the convicted person must, as we explained

in Obomighie, be presently either incarcerated or on parole or probation, because CP

§ 7-101 “uses the present tense when it states that ‘[t]his title applies to a person . . . who

is . . . on parole or probation.’”     170 Md. App. at 711 (emphasis added).             And,

concomitantly, as we further explained, the language, in CP § 7-101, setting forth those to

whom the Act applies, “is equivalent, under the doctrine of expressio unius, to saying that

people who do not meet [the ‘custody’ requirement] are ineligible” for postconviction relief

“because they are outside the scope of the statute.” Id.

       Throughout the time period during which Kranz filed his postconviction petition,

the circuit court ruled on that petition, and Kranz filed an application for leave to appeal

                                              8
from the circuit court’s ruling, Kranz was in “custody” within the meaning of the Maryland

Postconviction Procedure Act. However, during the pendency of his application for leave

to appeal, Kranz completed serving his sentence, thereby attaining the status of a person

who is “ineligible” for postconviction relief because he is “outside the scope of the statute.”

Id. For the same reason that the change in Obomighie’s status, during the pendency of his

postconviction petition, from a person in “custody” to one no longer in “custody,” divested

the circuit court of jurisdiction to rule on the petition in that case, id. at 713, the change in

Kranz’s status, during the pendency of his application for leave to appeal, from a person in

“custody” to one no longer in “custody,” divested us of appellate jurisdiction. We,

therefore, are constrained to grant the State’s motion to dismiss this appeal.

                                     APPEAL DISMISSED. COSTS TO BE DIVIDED
                                     EQUALLY BETWEEN THE APPELLANT AND
                                     CECIL COUNTY.




                                               9
