Cirincione v. State2/2/1998
t to take cognizance of `plain error' despite the waiver issue, literally apply only to direct appellate review of a judgment." 343 Md. at 647, 684 A.2d at 438. Appellant cannot use post conviction review in such a manner so as to secure a second round of direct appellate review. See Kelly v. Warden, Maryland Penitentiary, 243 Md. 717, 718, 222 A.2d 835, 836 (1966) ("The Post Conviction Procedure . . . is not a substitute for an appeal or a means of obtaining a belated appeal.").
While appellant's argument based on plain error fails, he has called our attention to a page in the Walker opinion where the Court of Appeals noted, "his Court has taken the position that a court, in a post conviction proceeding, can excuse a waiver [of a non-fundamental right] based upon an earlier procedural default if the circumstances warrant such action." 343 Md. at 647-48, 684 A.2d at 438 (emphasis added). The Court itself noted the uncertain origin of this authority to excuse, since waivers of non-fundamental rights are not governed by the Act and since Maryland's rules of appellate procedure do not directly apply. Id. at 647, 684 A.2d at 438. Although Maryland courts have recognized the distinction between waivers of fundamental and non- fundamental rights since 1978, the first time the Court of Appeals ever spoke of such an excusal was in Oken v. State, 343 Md. 256, 273-74, 681 A.2d 30, 38 (1996), when it claimed such discretion under Rule 8-131. Prior to that time, a finding of waiver had always been dispositive, and the Court of Appeals had gone so far as to hold that a waived claim was "not . . . a proper subject for review in [a post conviction] proceeding." Trimble v. State , 321 Md. 248, 257, 582 A.2d 794, 798 (1990). The Walker Court premised its discretion to excuse on Oken but also indicated some measure of reliance on Foster v. State, 305 Md. 306, 503 A.2d 1326 (1986), which was not a post conviction case. More recently, in Hunt v. State, 345 Md. 122, 152, 691 A.2d 1255, 1269 (1997), discretion to excuse was again based squarely on Rule 8-131. But see State v. Rose, 345 Md. 238, 250, 691 A.2d 1314, 1320 (1997) (reversing this Court's grant of post conviction relief and remanding with instructions to affirm the circuit court's denial without allowing for this Court to consider whether to excuse the petitioner's waiver).
Since discretion to excuse apparently exists, the question arises of what standards shall govern the exercise of that discretion. The question is not made any easier by the unclear source of this discretion. There has yet to be a reported case in which an appellate court of Maryland has actually exercised this discretion and excused a waiver of a non-fundamental right on post conviction review, which may itself be telling. We can find only two pronouncements bearing directly on this issue, both of which may arguably be dicta. In Curtis, the Court of Appeals said that post conviction waiver of non-fundamental rights is "to be governed by case law or any pertinent statutes or rules." 284 Md. at 149-50, 395 A.2d at 474. This Court has also commented that "general legal principles" of waiver apply to non- fundamental rights on post conviction review. State v. Torres, 86 Md. App. 560, 568, 587 A.2d 582, 586 (1991). These broad statements do not provide much practical guidance, and they appear to import into the post conviction realm without discrimination concepts of waiver developed for direct appellate review.
We find the Post Conviction Procedure Act instructive here as the "pertinent statute," in spite of the fact that it is not directly applicable to waivers of non-fundamental rights. Under the Act, if a petitioner asserts a claim of error pertaining to a fundamental right but
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