George Cameron Seward v. State of Maryland, No. 12, September Term, 2015, Opinion
by Adkins, J.

MARYLAND CODE (2001, 2008 REPL. VOL., 2015 CUM. SUPP.), § 8-301 OF THE
CRIMINAL PROCEDURE ARTICLE (“CP”) — RIGHT OF DIRECT APPEAL:
Because a circuit court order granting a petition for writ of actual innocence is not a final
judgment, the State does not have the right to directly appeal that order under Maryland
Code (1973, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article
(“CJP”).
Circuit Court for Baltimore County
Case No.: 03-K-84-003827
Argued: September 29, 2015
                                     IN THE COURT OF APPEALS

                                          OF MARYLAND



                                               No. 12

                                        September Term, 2015



                                     GEORGE CAMERON SEWARD

                                                 v.

                                       STATE OF MARYLAND


                                         Barbera, C.J.
                                         Battaglia
                                         Greene
                                         Adkins
                                         McDonald
                                         Rodowsky, Lawrence F. (Retired,
                                          Specially Assigned),
                                         Cathell, Dale R. (Retired,
                                          Specially Assigned),

                                               JJ.



                                        Opinion by Adkins, J.



                                               Filed: January 27, 2016
       Maryland Code (2001, 2008 Repl. Vol., 2015 Cum. Supp.), § 8-301 of the Criminal

Procedure Article (“CP”) allows a person convicted of a crime to file a petition for writ of

actual innocence under certain circumstances and seek a new trial. In Douglas v. State, we

held that an order denying such a petition is appealable because it is a final judgment. 423

Md. 156, 170–71, 31 A.3d 250, 258–59 (2011). Today we resolve a question left open by

the decision in Douglas: does an order granting such a petition constitute a final judgment,

such that the State can appeal it directly? Because we conclude that the procedural context

is materially different when a court grants a petition for writ of actual innocence, the order

is not a final judgment, and the State cannot directly appeal it.

                         FACTS AND LEGAL PROCEEDINGS

       Around noon on July 26, 1984, a man knocked on Phyllis Diacont’s (“Diacont”)

door and asked to use her phone after claiming that his car had broken down. Shortly after

entering her home, the man raped, robbed, and shot Diacont. Diacont survived and later

identified George Cameron Seward (“Seward”) as her attacker.

       In 1985, before the Circuit Court for Baltimore County (“the trial court”), Louise

Stamathis (“Stamathis”) testified that Seward had worked at her dog grooming shop during

the summer of the attack on Diacont. Because she was caring for her ill husband, however,

Stamathis was unable to locate employment records and state whether Seward was at work

the week of the crime.

       The trial court found Seward guilty of first degree rape, first degree sex offense,

assault with intent to murder, breaking and entering of a dwelling house, using a handgun

in the commission of a felony, and robbery with a dangerous and deadly weapon. Diacont’s
testimony provided the only substantive evidence to identify Seward as her attacker.

Seward received two consecutive life sentences plus 73 years. The trial court merged the

additional counts.

       The Court of Special Appeals affirmed Seward’s convictions in an unreported

opinion. This Court denied Seward’s petition for writ of certiorari. Seward v. State, cert.

denied, 307 Md. 406, 514 A.2d 24 (1986).

       Between 1996 and 1997, Seward’s postconviction attorney located Stamathis’s

employment records.       After reviewing the records, Stamathis concluded it was

“impossible” that Seward could have left the dog grooming shop to attack Diacont.

       In 1997, Seward filed a petition for postconviction relief based on ineffective

assistance of counsel. He alleged that his trial attorney failed to properly present evidence

for an alibi defense. The Circuit Court for Baltimore County (“the postconviction court”)

denied Seward’s petition in 1999. The postconviction court concluded that Seward’s trial

attorney acted reasonably in investigating Stamathis as an alibi witness.

       The Court of Special Appeals denied Seward’s application for leave to appeal the

denial of postconviction relief.

       In 2009, the General Assembly enacted Maryland Code (2001, 2008 Repl. Vol.,

2015 Cum. Supp.), § 8-301 of the Criminal Procedure Article (“CP”), which states, in

pertinent part:

              A person charged by indictment or criminal information with
              a crime triable in circuit court and convicted of that crime may,
              at any time, file a petition for writ of actual innocence in the
              circuit court for the county in which the conviction was



                                             2
              imposed if the person claims that there is newly discovered
              evidence that:
                    (1) creates a substantial or significant possibility
                    that the result may have been different, as that
                    standard has been judicially determined; and
                    (2) could not have been discovered in time to
                    move for a new trial under Maryland Rule 4-331.

Seward filed a petition for writ of actual innocence in the Circuit Court for Baltimore

County (“Circuit Court”) in 2010.

       At the hearing on this petition, Stamathis testified, based on her employment

records, that Seward was at work the day of the crime. Discussing her policy and

procedures, she explained that her employees, including Seward, usually worked between

eight o’clock and four o’clock, ate lunch at the shop, and did not leave during the day.

Moreover, Stamathis testified that her employees could not leave without her opening the

doors to the shop, which she kept locked.

       The Circuit Court granted Seward a new trial in 2012. Based on Stamathis’s

employment records, the Circuit Court concluded that a substantial possibility existed that

the result of Seward’s trial could have been different. At trial, the State had relied “solely”

on Diacont’s identification of Seward as her attacker. The records showed that Seward

“could not have been at the scene of the crime while the crime was occurring.”

       The Circuit Court also concluded that the records could not have been discovered

in time to move for a new trial under Maryland Rule 4-331, i.e., that Seward’s trial attorney

had acted with “due diligence.” After reviewing the postconviction court’s analysis of

Seward’s trial attorney’s performance, the Circuit Court refused to conclude that the

attorney “could have done anything else to obtain” the records. Finally, the Circuit Court


                                              3
decided that the records were newly discovered evidence—although Seward and the State

knew the records existed during trial, the parties did not then know the records’ exculpatory

nature.

          The State filed a notice of appeal, but Seward moved to dismiss, citing the State’s

limited authority to appeal as established by statute. In a reported opinion, the Court of

Special Appeals denied Seward’s motion to dismiss, concluding that the State can appeal

an order granting a petition for writ of actual innocence. State v. Seward, 220 Md. App. 1,

5, 102 A.3d 798, 801, cert. granted, 441 Md. 666, 109 A.3d 665 (2014). On the merits of

the State’s appeal, the intermediate appellate court concluded that Seward’s petition must

be denied. Id. at 27, 102 A.3d at 813–14. It concluded that the Circuit Court erred by

applying the wrong standard for due diligence. Id. at 17–18, 102 A.3d at 808. Rather than

remand for further proceedings, the intermediate appellate court reversed, reasoning that

the records were not newly discovered evidence under a proper due diligence analysis. Id.

at 25–26, 102 A.3d at 812–13.

          We granted Seward’s Petition for Writ of Certiorari on the following questions:

                1. In a case of alleged innocence, where the State concedes
                   the new alibi evidence of innocence is “material,” and the
                   Circuit Court also held that “[i]f the trial judge had known
                   that the records existed that showed that the Petitioner
                   could not have been at the scene of the crime while the
                   crime was occurring, there is a substantial possibility that
                   he would not have found the Petitioner guilty;” (Ex. 2 at 4)
                   can an appellate court rest a decision to reverse the granting
                   of a Writ of Actual Innocence on the belief that trial counsel
                   failed to investigate [] the alibi, without considering the
                   evidence of all the things trial counsel actually did to locate
                   the alibi evidence?



                                                4
              2. Does the State have the right to appeal a Circuit Court
                 decision granting a Writ of Actual Innocence under Md.
                 Code, Criminal Procedure § 8-301, in light of: (1) this
                 Court’s prior precedent in Douglas v. State, 423 Md. 156[,
                 31 A.3d 250] (2011); and (2) the General Assembly’s
                 decision not to put any appellate right in the statute?

              3. Did the Court of Special Appeals err in mischaracterizing
                 the record evidence and factual findings by the Circuit
                 Court to the extent that the Court’s decision rests on a
                 misunderstanding of the record?

Because we answer no to the second question, we reverse the judgment of the Court of

Special Appeals.

                               STANDARD OF REVIEW

       The right of appeal is entirely statutory in Maryland. Pack Shack, Inc. v. Howard

Cnty., 371 Md. 243, 247, 808 A.2d 795, 797 (2002). Thus, we examine Maryland Code

(1973, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJP”)

to resolve a question of law—whether the State has a right to appeal an order granting a

petition for writ of actual innocence under CP § 8-301. We do so without according

deference to the intermediate appellate court’s ruling.

                                      DISCUSSION

       Critical to each party’s argument is Douglas v. State, in which we held that “a denial

of a petition for writ of actual innocence is a final judgment under [CJP] § 12-301.” 423

Md. at 174, 31 A.3d at 261. Seward argues that the State cannot seek a direct appeal under

CJP § 12-301 because, unlike in Douglas, there is no final judgment here. An order

granting a petition for writ of actual innocence is merely an interlocutory order. Seward

also relies on Douglas to argue that an action under CP § 8-301 is part of the underlying


                                             5
criminal case. Finally, he alleges that the legislative history of CP § 8-301 does not justify

the State’s appeal.

       The State counters that it can directly appeal a decision in a CP § 8-301 case because

the Douglas Court concluded that such a decision was a final judgment under CJP § 12-301.

The State then argues that an action under CP § 8-301 is a civil proceeding, collateral to

the criminal case, as is true of a postconviction or coram nobis proceeding. Notably, it

emphasizes that CP § 8-301 appears under Title 8 of the Criminal Procedure Article: “Other

Postconviction Review.” Finally, the State finds the legislative history of CP § 8-301

instructive in that the General Assembly deleted a proposed right to appeal from the text

of CP § 8-301 because CJP § 12-301 already authorized that right.

       “It is an often stated principle of Maryland law that appellate jurisdiction, except as

constitutionally authorized, is determined entirely by statute, and that, therefore, a right of

appeal must be legislatively granted.”       Gisriel v. Ocean City Bd. of Supervisors of

Elections, 345 Md. 477, 485, 693 A.2d 757, 761 (1997). Because the State tethers its right

to appeal directly to CJP § 12-301, we begin with the pertinent part of that statute:

              Except as provided in § 12-302 of this subtitle, a party may
              appeal from a final judgment entered in a civil or criminal case
              by a circuit court. The right of appeal exists from a final
              judgment entered by a court in the exercise of original, special,
              limited, statutory jurisdiction, unless in a particular case the
              right of appeal is expressly denied by law.

It is our role “to define and give content to the meaning of the term, ‘final judgment.’” See

Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 664, 467 A.2d 483, 485 (1983) (citations




                                              6
omitted). The State reads this statute as authorizing its appeal because the order entered

by the Circuit Court was “a final judgement.”1

       The State construes Douglas as affirming that CJP § 12-301 applies “in actual

innocence cases.” The State would have us read Douglas for the proposition that any

decision in an actual innocence case constitutes a final judgment. But the State fails to

confront a patent difference between Douglas and this case. Although we held that the

Circuit Court’s decision in Douglas was a final judgment under CJP § 12-301, the

procedural context was materially different. The question in Douglas was whether “an

order denying a petition for writ of actual innocence” is a final judgment and, thus, “an

automatically appealable order[.]” 423 Md. at 164, 31 A.3d at 255 (emphasis added). As

we have interpreted CJP § 12-301, a judgment granting a new trial and a judgment denying

a new trial are not to be treated the same.

       In Douglas, we defined a final judgment as:

              one that “either determine[s] and conclude[s] the rights of the
              parties involved or den[ies] a party the means to ‘prosecut[e]
              or defend[] his or her rights and interests in the subject matter
              of the proceeding.’” Important is whether “any further order is
              to be issued or whether any further action is to be taken in the
              case.”

Id. at 171, 31 A.3d at 259 (citations omitted). An interlocutory order, on the other hand,

exists when “‘there are pending proceedings in which issues on the merits of the case



       1
        The State aptly avoids grounding its argument in the text of Maryland Code (2001,
2008 Repl. Vol., 2015 Cum. Supp.), § 8-301 of the Criminal Procedure Article (“CP”)
because, as we said in Douglas v. State, “[CP] § 8-301 is silent with regard to a right of
appeal.” 423 Md. 156, 170, 31 A.3d 250, 258 (2011).

                                              7
remain to be decided.’” Id. at 172, 31 A.3d at 260 (citation omitted). Moreover, the

purpose of CJP § 12-301 is to permit appeals only from final judgments “to ‘prevent

piecemeal appeals and . . . the interruption of ongoing judicial proceedings.’” Id., 31 A.3d

at 259 (citations omitted).

       We concluded in Douglas that an order denying a petition for a writ of actual

innocence was final because the order “conclude[d] a petitioner’s rights as to all claims

based on the newly discovered evidence alleged in the petition.” Id. at 171, 31 A.3d at

259. “[N]othing remains pending in the case” when the circuit court denies such a petition.

Id.

       We grounded our conclusion in the statutory requirements of CP § 8-301. One

element of the statute “requires the petitioner to ‘distinguish the newly discovered evidence

claimed . . . from any claims made in prior petitions.’” See id. (quoting CP § 8-301(b)(5)).

When an order denies a petition based on allegedly newly discovered evidence, the

petitioner can never refile “on the basis of the same [] evidence.” Id. at 172, 31 A.3d at

259. The order, then, prohibits the petitioner from further “‘prosecut[ing] or defend[ing]

his . . . rights and interests in the subject matter of the proceeding.’” Id. at 171, 31 A.3d at

259. (citation omitted).

       Douglas teaches that an order denying a petition is final because the order forecloses

the right to raise a claim of actual innocence based on a particular piece of evidence. Once

a circuit court denies the petition regarding that evidence, no “further action is to be taken

in the case.” Id. (citation omitted).




                                               8
       In direct contrast, the Circuit Court’s order here does not prohibit the State from

further prosecuting and defending its rights and interests in the newly discovered evidence.

Because the Circuit Court granted Seward a new trial, the State may exercise its right to

prosecute Seward at that trial and attack the newly discovered evidence.                  See id.

Indisputably, “‘further action is to be taken in th[is] case.’” Id. (citation omitted).

       The Circuit Court’s order put in motion proceedings to resolve “‘issues on the merits

of the case.’” Id. at 172, 31 A.3d at 260 (citation omitted). Following the order, the Circuit

Court for Baltimore County summoned Seward for his new trial. In effect, the Circuit

Court’s order “[has kept] the parties in court to litigate the claims remaining between

them.” Schuele v. Case Handyman & Remodeling Servs., LLC, 412 Md. 555, 571–72, 989

A.2d 210, 219–20 (2010) (An order denying a motion to compel arbitration “is not final”

because the order “effectively keeps the parties in court to litigate the claims remaining

between them” rather than putting them out of court.). To permit the State to appeal this

order subverts the purpose of CJP § 12-301: “‘to prevent piecemeal appeals and . . . the

interruption of ongoing judicial proceedings.’” Douglas, 423 Md. at 172, 31 A.3d at 259

(citation omitted). The Circuit Court’s order is thus interlocutory and not appealable until

after entry of a final judgment.

       Indeed, we have previously held that an order granting a motion for a new trial is

not a final judgment, and thus, not immediately appealable. Snyder v. Cearfoss, 186 Md.

360, 366–67, 46 A.2d 607, 609–10 (1946), abrogated on other grounds by Buck v. Cam’s

Broadloom Rugs, Inc., 328 Md. 51, 54–57, 612 A.2d 1294, 1296–97 (1992). Addressing

an appeal of the grant of a new trial, we explained: “It is generally recognized that the effect


                                               9
of granting a motion for a new trial is to leave the cause in the same condition as if no

previous trial had been held.” Id. at 367, 46 A.2d at 610. Hence, we concluded that there

was “no final judgment” and granted the motion to dismiss the appeal. Id.; see also Dean

v. State, 302 Md. 493, 499, 489 A.2d 22, 25 (1985) (“It is clear that the order [granting the

defendant’s motion for a new trial] from which the State sought to appeal in this case was

not an appealable final order . . . .”), abrogated on other grounds by Bienkowski v. Brooks,

386 Md. 516, 547, 873 A.2d 1122, 1140 (2005).

       The State’s attempts to distinguish Dean, made at oral argument, were unavailing.

The State pointed out that Dean was not yet sentenced at the time he moved for a new trial,

whereas Seward was sentenced years ago. But as discussed supra, what concerns us for

purposes of finality is not the date of sentencing, but rather whether “there are pending

proceedings in which issues on the merits of the case remain to be decided.” Douglas, 423

Md. at 172, 31 A.3d at 260 (citation omitted). The Circuit Court’s order certainly leaves

“the merits of the case . . . to be decided.” Id.2

       Rather than confront these precedents, the State would have us focus on the question

of whether CP § 8-301 is part of the underlying criminal case or is a collateral, civil

proceeding. But that distinction is unhelpful. CJP § 12-301 provides a right of appeal “in

a civil or criminal case.” (emphasis added). The appeal must, however, be “from a final



       2
         We are similarly unpersuaded by the State’s secondary argument that the State’s
appeal in Dean was from a single trial judge to a court sitting in banc. As we said, “[t]here
[was] no different standard” for appealability “to a court in banc from that to the Court of
Special Appeals.” Dean v. State, 302 Md. 493, 497, 489 A.2d 22, 24 (1985), abrogated on
other grounds by Bienkowski v. Brooks, 386 Md. 516, 547, 873 A.2d 1122, 1140 (2005).

                                              10
judgment.” CJP § 12-301. We have already answered that question. The Circuit Court’s

order is not a final judgment.3

       In its closing volley, the State argues that the General Assembly failed to include a

right to appeal for either the petitioner or the State from CP § 8-301 because that right

already lies in CJP § 12-301. This argument, however, presumes that the right of appeal

in CJP § 12-301 is available to the State. It is not. The State has again misunderstood

Douglas. In Douglas we said it “would be redundant” for CP § 8-301 to have “explicit

language” that “authorizes the right of appeal from a final judgment.” 423 Md. at 173, 31

A.3d at 260. The redundancy, however, followed from our conclusion that the denial of a

petition for writ of actual innocence was a final judgment, and thus, within the scope of

CJP § 12-301. Id. at 171, 31 A.3d at 259. Legislative history had nothing to do with that

conclusion. Id. at 173, 31 A.3d at 260.

       Finally, we recognize that our decision serves a legitimate interest that CP § 8-301

advances. Prior to the enactment of CP § 8-301, the Office of the Public Defender (“OPD”)

explained in a 2009 joint report: “Once convicted, a defendant faces almost insurmountable



       3
         The State says that a CP § 8-301 proceeding is like a postconviction or coram nobis
proceeding. But because the right of appeal is entirely statutory in Maryland, Pack Shack,
Inc. v. Howard Cnty., 371 Md. 243, 247, 808 A.2d 795, 797 (2002), the State’s argument
misses the mark. The statutes creating these proceedings are different. The General
Assembly has provided an appeal process in postconviction cases. See CP § 7-109.
Maryland Rule 15-1207 also states that an order on a petition for writ of error coram nobis
is a final judgment. Thus, a right of appeal is available to the State via Maryland Code
(1973, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJP”).
See Skok v. State, 361 Md. 52, 65, 760 A.2d 647, 654 (2000) (“As a coram nobis case is an
independent civil action, an appeal from a final judgment in such an action is authorized
by the broad language of [CJP § 12-301].”). By contrast, CP § 8-301 is silent on this issue.

                                            11
obstacles to obtaining relief on the grounds that he, in fact, did not commit the crime

alleged.” Governor’s Office of Crime Control and Prevention & Office of the Public

Defender, Barriers to Post Conviction Review 7 (2009).4 Among other things, OPD

discussed time limitations in Md. Rule 4-331, id. at 8, a rule which CP § 8-301 expands,

see Fiscal and Policy Note Revised, S. 486.5 A direct appeal by the State delays and

therefore obstructs the interest in relief that CP § 8-301 can provide in the form of a new

trial as an incarcerated individual must wait, sometimes years, pending appeals, before

realizing the fruits of that relief. See Harris v. Davis S. Harris, P.A., 310 Md. 310, 314–

15, 529 A.2d 356, 358 (1987) (The requirement of a final judgment “prevent[s] piecemeal

appellate review of trial court decisions which do not terminate the litigation,” and which

would otherwise “repeatedly interrupt and delay lower court proceedings.”).

                                    CONCLUSION

      Because the State had no right to appeal the Circuit Court’s order granting Seward

a petition for writ of actual innocence, we reverse the judgment of the Court of Special

Appeals.

                                          JUDGMENT OF THE COURT OF
                                          SPECIAL APPEALS REVERSED. CASE

      4
        The joint report was required as part of the 2008 amendments to CP § 8-201. See
S.B. 211, 2008 Gen. Assemb. Reg. Sess. (Md. 2008).
      5
          In the Fiscal and Policy Note, the summary of then-current law explains that
defendants may file motions for a new trial under Maryland Rule 4-331, including within
one year if based on newly discovered evidence and under certain circumstances. Fiscal
and Policy Note Revised, S. 486, at 2. The Fiscal and Policy Note explains that a petition
for writ of actual innocence has the same content requirements as a motion under Md. Rule
4-331 based on newly discovered evidence, but that “[t]he petition may be filed at any
time.” Id. at 1–2 (emphasis added).

                                            12
REMANDED TO THAT COURT WITH
DIRECTIONS TO GRANT THE MOTION
TO DISMISS THE NOTICE OF APPEAL
AND TO REINSTATE THE ORDER OF
THE CIRCUIT COURT FOR BALTIMORE
COUNTY GRANTING THE NEW TRIAL.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY RESPONDENT.




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