Shortall v. State

Purnell A. Shortall v. State of Maryland
Case No. 0170 September Term, 2017

HEADNOTE

CRIMINAL PROCEDURE – POST-CONVICTION RELIEF – INEFFECTIVE
ASSISTANCE OF COUNSEL – FAILURE TO OBJECT TO JURY
INSTRUCTION. In a case in which there is a potentially meritorious argument that the
instruction is erroneous, and there is no possible strategic benefit to the defendant from
having the jury receive the arguably incorrect instruction, defense counsel renders
deficient performance by failing to object and preserve that point for appeal pursuant to
Maryland Rule 4-325(e).

CRIMINAL LAW – DISPOSAL OF SEWAGE – SEPARATE VIOLATIONS. In
2012, Title 26 of the Maryland Code of Regulations provided in COMAR 26.04.02.02E:
“A person may not dispose of sewage, body, or industrial wastes, in any manner which
may cause pollution of the ground surface, the waters of the State, or create a nuisance.”
COMAR 26.04.02.02F provided: “A person may only dispose of sewage, body, or
industrial wastes in accordance with an approved on-site sewage disposal permit or other
method of disposal approved by the Approving Authority.” Violators can be prosecuted
pursuant to Maryland Code (1982, 2014 Repl. Vol.), Environment Article (“Env.”), § 9-
343(a)(1), which provides that an individual who violates “any provision of or fails to
perform any duty imposed by a . . . regulation . . . is guilty of a misdemeanor . . . .”
Furthermore, Env. § 9-343(a)(3) states: “Each day on which a violation occurs is a
separate violation under this subsection.” To prove a separate criminal violation of one of
these two regulations under Env. § 9-343(a)(3), there must be evidence of an act of
disposal occurring on each separate day.
Circuit Court for Dorchester County
Case No. K-14-015217

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0170

September Term, 2017

PURNELL A. SHORTALL

v.

STATE OF MARYLAND

Meredith,
Graeff,
Arthur,

JJ.*

Opinion by Meredith, J.

Filed: April 26, 2018

* Judge Christopher B. Kehoe did not
participate in the Court’s decision to designate
this opinion for publication pursuant to Md.
Rule 8-605.1.
 At the conclusion of a jury trial in the Circuit Court for Dorchester County,

Purnell Shortall, appellant, was convicted of five misdemeanor counts of failure to

comply with COMAR 26.04.02.02E for disposing of sewage in a manner which may

cause pollution of the ground surface, and five misdemeanor counts of failure to comply

with COMAR 26.04.02.02F for disposing of sewage without an approved permit. 1 After

sentencing, Shortall did not appeal, but, within a year, he filed a petition for post-

conviction relief, claiming ineffective assistance of counsel. The post-conviction court

denied his petition for post-conviction relief. Thereafter, Shortall filed an application for

leave to appeal the post-conviction court’s ruling. We initially denied Shortall’s

application for leave to appeal, but Shortall timely filed a motion for reconsideration,

which we granted to permit him to pursue an appeal raising the following question:

Whether the post-conviction court erred in not finding that Mr. Shortall was
denied his right to effective assistance of counsel when defense counsel
failed to object to the trial court’s instruction on the continuing violation
theory?

For the reasons explained herein, we conclude that trial counsel was ineffective in

failing to object to the incorrect instruction regarding multiple separate violations. We

conclude that Shortall should have been convicted of only a single violation of each

regulation, and we will vacate the four additional convictions as to each regulation.

1
These two regulations were recodified subsequent to the dates Shortall was
charged with violating COMAR 26.04.02.02E and 26.04.02.02F. As recodified, the
conduct previously prohibited by COMAR 26.04.02.02E is now prohibited by COMAR
26.04.02.02D; and the conduct previously prohibited by COMAR 26.04.02.02F is now
prohibited by COMAR 26.04.02.02E. The language of both regulations remains the same
as prior to recodification, and we will refer to the regulations in this opinion by the
numbers (and letters) in effect at the time charges were filed.
 Facts and Procedural History

There was evidence at trial of the following. On December 5, 2012, Richard

Littlefield and Brian Baumgartner, who were both licensed environmental health

specialists with the Maryland Department of the Environment, performed a routine

inspection at the property of Shortall Building Supplies in Cordova, Maryland. During

this inspection, the inspectors observed a white four-inch PVC pipe connected to a

building on the property that was used for vehicle maintenance. The pipe “extend[ed]

from a slope at the rear of the property directed towards the” nearby woods. Upon

further investigation, the inspectors discovered evidence that “there was a recent

discharge of sewage,” namely, human feces and toilet paper, “lying on the ground just

beyond the end of the pipe.”

The following day, Ann Morse, the Director of Environmental Health for the

Talbot County Health Department, visited the property of Shortall Building Supplies.

During her conversation with Shortall, Shortall “admitted [to Morse] that it was a

discharge pipe from the bathroom, that he put it there, and that he put the bathroom in the

building.” No specific corrective action was ordered at that time.

On December 7, Morse returned with Nony Howell, who was a regional

consultant for onsite wastewater with the Maryland Department of Environment. At that

time, Howell told Shortall that “the only corrective action to be taken was to stop using

the pipe for now.” Howell also told Shortall that he would have to cap the line.

2
 On January 24, 2013, Howell returned to the property and noticed a sign over the

bathroom door directing employees not to use the bathroom. The originally observed

discharge was still present on this date.

Michelle Burroughs, Regulatory Compliance Engineer for the Maryland

Department of the Environment, visited the property on March 15, 2013, to investigate a

“potential unauthorized discharge to the waters of the State.” Burroughs tested the sink

near the bathroom in the maintenance building, and observed that the water from the sink

flowed out of the discharge pipe. Burroughs told Shortall that the use of this pipe was

“unauthorized discharge to waters of the State . . . .” On May 3, Burroughs returned to

the property and saw that Shortall had capped the line. On May 16, when Burroughs

made her final visit to the property, the pipe was covered with dirt.

Shortall was charged with five separate violations of two regulations under Title

26 of the Maryland Code of Regulations, for a total of ten regulatory violations.

COMAR 26.04.02.02E stated: “A person may not dispose of sewage, body, or industrial

wastes, in any manner which may cause pollution of the ground surface, the waters of the

State, or create a nuisance.” (Emphasis added.) COMAR 26.04.02.02F, stated: “A

person may only dispose of sewage, body, or industrial wastes in accordance with an

approved on-site sewage disposal permit or other method of disposal approved by the

Approving Authority.” (Emphasis added.) According to the Maryland Code (1982, 2014

Repl. Vol.), Environment Article (“Env.”), § 9-343(a)(1), an individual who violates “any

provision of or fails to perform any duty imposed by a . . . regulation . . . is guilty of a

3
misdemeanor . . . .” Furthermore, Env. § 9-343(a)(3) states: “Each day on which a

violation occurs is a separate violation under this subsection.” (Emphasis added.)2

At the request of the State, the trial court gave the following non-pattern jury

instruction regarding the multiple charges of violating the two regulations:

[THE COURT]: The Defendant is charged with the same listed offense
on different dates. Essentially you’ll have five – you’ll have a charge that
has five alleged dates, another charge that has five alleged dates. Pursuant
to Maryland law for these specific charges every day on which a
violation is still present constitutes a separate offense until the date the
violation is corrected. Counsel, any exceptions to the jury instructions
given?

[THE STATE]: No, Your Honor.

[DEFENSE COUNSEL]: No, Your Honor.

(Emphasis added.)

Following Shortall’s conviction of five separate counts of violating each

regulation, the court sentenced Shortall to two years in prison, all but 90 days suspended,

plus five years of supervised probation and a fine and community service.

Shortall failed to appeal, but he filed a petition for post-conviction relief, asserting,

inter alia, that defense counsel’s failure to object to the above-quoted jury instruction

deprived him of effective assistance of counsel because the instruction misstated the law

and exposed him to multiple convictions for “a violation.” At Shortall’s post-conviction

hearing, Shortall’s trial counsel testified that his decision not to object resulted from his

own research and interpretation of this unsettled area of law. He said:

2
Env. § 9-343 was last amended in 2004.

4
 [DEFENSE COUNSEL]: I don’t know that I would call [the proposed
jury instruction] unusual. I was concerned about the jury instruction
regarding the continuing nature offense. And [the State] . . . had cited
various cases. We pulled those cases and read them and felt she had
accurately represented the law as we understood it.

Defense counsel explained that his initial trial strategy was “to exclude

anything . . . that would reference a continuing violation. So we researched that. And

coupled with our research and the cases that [the State] had provided we did not think

that we had the legal argument.” In addition to this research, defense counsel testified

that he contacted local attorneys who specialize in this area of law for guidance:

[SHORTALL’S POST-CONVICTION COUNSEL]: And what was the
scope of what you evaluated for purposes of that [proposed jury]
instruction? In other words, you said you looked at the cases that [the
prosecutor] provided. Did you look beyond those cases for example in other
States or Federal jurisdictions?

[DEFENSE COUNSEL]: Honestly I believe we called your office. Peter
(inaudible).

[SHORTALL’S POST-CONVICTION COUNSEL]: [My law firm]?

[DEFENSE COUNSEL]: Yes, and spoke with you. But outside of that we
had – no, I can’t say that definitively we looked at any Federal regulations
or other States. We researched Maryland law to see . . . what we could do
with the continuum [sic].

The post-conviction court found that Shortall’s defense counsel’s failure to object

did not constitute deficient performance, and the court therefore denied Shortall’s

ineffective assistance of counsel claim. The court also ruled, in the alternative, that there

was no prejudice. The post-conviction court’s opinion stated:

Petitioner claims that the “continuing violation” instruction given to
the jury was a misrepresentation of § 9-343(a)(3) of the Environment

5
Article and resulted in convictions for crimes he did not commit. The
instruction given to the jury was:

The Defendant is charged with the same listed offense on
different dates. Essentially you’ll have five – you’ll have a
charge that has five alleged dates, another charge that has five
alleged dates. Pursuant to Maryland law for these specific
charges every day on which a violation is still present
constitutes a separate offense until the date the violation is
corrected. (Trial Transcript 8/6/14, at 37)

The Environment[] Article § 9-343(a)(3) provides, “Each day on which a
violation occurs is a separate violation under this subsection.”

Petitioner argues that the phrase “is still present” in the jury
instruction materially differs from the statute’s actual term: “occurs.” In
particular, Petitioner contends that the statute, by use of the term “occurs,”
requires the State to prove an actual affirmative “occurrence” on a
particular date in order for the Petitioner to be convicted for an offense on
that date. Petitioner argues that he was convicted on ten counts[FN1] not
because the State proved an “occurrence” on each of the ten dates, but
rather, because disposed waste remained on the site for the days covered by
the counts. [Footnote 1: The ten counts refer to five counts of disposing
[of] waste in a manner which may cause pollution of the ground surface
and five counts of disposing [of] waste without an approved on-site sewage
disposal permit.]

He also contends that convictions under the continuing violation
doctrine are particularly unjust, as the Petitioner incurred criminal charges
during the period of time he was awaiting direction from the State agency
as to how to remedy the alleged infractions. In short, the Petitioner
contends that the continuing violation doctrine is inapplicable to these
charges, and trial counsel’s failure to object to a continuing violation
instruction constituted prejudicial error.

The State argues otherwise, arguing (1) that the continuing violation
doctrine applies and (2) that, even if it does not apply, there was no
prejudice since the trial court merged the counts at issue for sentencing. In
interpreting § 9-343(a)(3), the State contends, inter alia, that the nature of
environmental crimes renders them continuing in nature, and the “still
present” language in the jury instruction conforms to the statute.

6
 Duncan v. State, 282 Md. 385, 390 (1978) is the controlling
authority on the continuing violation doctrine and holds:

Ordinarily, a continuing offense is marked by a continuing
duty in the defendant to do an act which he fails to do. The
offense continues as long as the duty persists, and there is a
failure to perform that duty.

There is no Maryland case law known to the Court that addresses
whether the continuing violation doctrine applies to the environmental
crimes charged in this case. The State, citing what the State claims to be
analogous federal case law, argues that the continuing violation doctrine
must apply to environmental laws, given the nature of the offenses. The
Petitioner argues that [t]he federal cases cited by the State concern federal
law, utilizing different terminology, and thus do not provide guidance in the
instant case.

After careful consideration, and applying the Strickland standard,
this Court cannot find that trial counsel was deficient for failing to object to
the continuing violation instruction. Trial counsel testified at the
September 11, 2015 Post-Conviction hearing that he researched the case
law, consulted with other attorneys, and came to the conclusion that the
jury instruction regarding the continuing violation was correct. This is a
reasonable interpretation of the law, as there is no controlling Maryland
authority as to whether the continuing violation doctrine applies in
cases involving environmental crimes, and, logically, the adverse impact
of disposing of pollutants obviously continues until the remedy is imposed.
In short, this is an unsettled question of law, and there are merits to
both positions. Viewed in that light, the Court cannot find that trial
counsel’s failure to object to the continuing violation instruction was
deficient. State v. Borchardt, 396 Md. 586 (2007).

But even assuming, arguendo, that trial counsel’s conclusion
regarding the continuing violation jury instruction fell below the objective
standard of reasonableness, the Court cannot grant relief unless the Court
finds that the Petitioner suffered prejudice as a result of trial counsel’s
deficiency. In this case, the continuing violation counts were merged for
sentencing. Thus, there was no prejudice and there is no basis exists [sic]
to grant relief.

(Bold emphasis added; italics in original.)

Additional facts relevant to this appeal are discussed in greater detail below.

7
 Standard of Review

The Sixth Amendment to the United States Constitution provides that a criminal

defendant has the right to effective assistance of counsel in a criminal trial. U.S. CONST.

amend. VI. This right applies, through the Due Process Clause of the Fourteenth

Amendment, to defendants in state criminal proceedings. State v. Jones, 138 Md. App.

178, 204-05 (2001), aff’d, 379 Md. 704 (2004). Article 21 of the Maryland Declaration

of Rights provides similar protections. See Taylor v. State, 428 Md. 386, 399 (2012).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a

two-pronged test for reviewing claims of ineffective assistance of counsel. In Taylor,

supra, 428 Md. at 399-400, the Court of Appeals described the two-pronged Strickland

test as follows:

Under both the Sixth Amendment and Article 21 of the Maryland
Declaration of Rights, a criminal defendant is entitled to the assistance of
counsel, which means “the right to the effective assistance of counsel.”
Duvall v. State, 399 Md. 210, 220–21, 923 A.2d 81, 88 (2007) (quoting
Strickland, 466 U.S. at 686, 104 S.Ct. 2052) (quotation mark omitted). The
defendant who claims that he or she received ineffective assistance of
counsel, as a general rule under the test announced in Strickland and
followed ever since, must make two showings: “First, the defendant must
show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense.” 466 U.S. at 687, 104 S.Ct. 2052. In regard to the
first, “performance” prong of Strickland, the defendant must demonstrate
that counsel’s alleged acts or omissions, based on “the facts of the
particular case, viewed as of the time of counsel’s conduct,” fell “outside
the wide range of professionally competent assistance.” Id. at 690, 104
S.Ct. 2052. In regard to the second, “prejudice” prong, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been

8
 different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

(Emphasis added.)

The first prong of the Strickland test requires a defendant to establish specific

deficient “acts or omissions” of defense counsel. Strickland, supra, 466 U.S at 690. See

also State v. Borchardt, 396 Md. 586, 604 (2007) (“Before deciding to act, or not to act,

counsel must make a rational and informed decision on strategy and tactics based upon

adequate investigation and preparation.”). But there is a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance,”

Strickland, supra, 466 U.S. at 689, and that counsel “made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. The Court of Appeals has

emphasized that, in order to satisfy this first prong, a defendant must also demonstrate

“that counsel’s actions were not the result of trial strategy.” Coleman v. State, 434 Md.

320, 338 (2013) (reversing this Court and the post-conviction court and holding: “We do

not see how trial counsel’s failure to object because of his ignorance of the law could

possibly be seen as sound trial strategy or a strategic choice.”). In analyzing alleged

deficiencies, a reviewing court must “avoid the post hoc second-guessing of decisions

simply because they proved unsuccessful . . . .” Evans v. State, 396 Md. 256, 274 (2006).

Further, the Supreme Court explained in Strickland, supra, 466 U.S. at 690-91:

[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular

9
 investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel’s
judgments.

The second Strickland prong, which requires that any deficient performance

actually prejudice the defendant, was discussed by the Court of Appeals in State v.

Sanmartin Prado, 448 Md. 664 (2016), wherein the Court stated: “As to the second

prong, we have explained that ‘the standard to be used is whether there is a substantial or

significant possibility that the verdict of the trier of fact would have been affected.’” Id.

at 682 (quoting Coleman, supra, 434 Md. at 331). In Newton v. State, 455 Md 341, 355

(2017), the Court of Appeals described two ways in which a defendant can establish

prejudice under this second prong:

To establish the second prong — prejudice — the defendant must
show either: (1) “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different”; or (2) that “the result of the proceeding was fundamentally
unfair or unreliable.” Coleman, 434 Md. at 340–41, 75 A.3d 916 (citations
omitted). The Strickland Court explained, “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694, 104 S.Ct. 2052.

In Mosley v. State, 378 Md. 548, 572-73 (2003), the Court of Appeals declined to

consider the defendant’s arguments on direct appeal regarding the alleged ineffective

assistance of trial counsel. The Court of Appeals stated that it would instead “adhere to

our long-standing view that ineffective assistance of counsel claims are best tested in

post-conviction proceedings and that review of such claims on direct appeal is limited to

the rare exception where the record is sufficiently developed and the critical facts are not

in dispute.” Id.

10
 In Jones, supra, 138 Md. App. at 209, we articulated the standard for appellate

review of a post-conviction court’s findings:

We “will not disturb the factual findings of the post-conviction court unless
they are clearly erroneous.” Wilson v. State, 363 Md. 333, 348, 768 A.2d
675 (2001). But, a reviewing court must make an independent analysis to
determine the “ultimate mixed question of law and fact, namely, was there
a violation of a constitutional right as claimed.” Harris v. State, 303 Md.
685, 699, 496 A.2d 1074 (1985). In other words, the appellate court
must exercise its own independent judgment as to the reasonableness of
counsel’s conduct and the prejudice, if any. Oken [v. State], 343 Md.
[256] at 285, 681 A.2d 30 [(1996)]. As we said in State v. Purvey, 129 Md.
App. 1, 10, 740 A.2d 54 (1999), cert. denied, 357 Md. 483, 745 A.2d 437
(2000): “Within the Strickland framework, we will evaluate anew the
findings of the lower court as to the reasonableness of counsel’s
conduct and the prejudice suffered. . . . As a question of whether a
constitutional right has been violated, we make our own independent
analysis by reviewing the law and applying it to the facts of the case.”

(Emphasis added.) Accord Sanmartin Prado, supra, 448 Md. at 679.

DISCUSSION

In his brief, Shortall contends that he received ineffective assistance of counsel

because his defense counsel failed to object to the jury instructions proposed by the State

regarding the multiple charges of violating the two regulations. Shortall argues that the

State’s reliance on a continuing violation theory to bring five separate charges for each

regulatory violation, as opposed to one count for each regulation, was “legally

unfounded.” He maintains that there was no evidence of additional sewage disposal

beyond the feces and toilet paper that were first observed on the first date of inspection.

Shortall asserts: “The mere presence of the same evidence of a prior crime simply

cannot, as a matter of law, constitute separate chargeable criminal offenses for each day

the State and/or County decided to visit the property.” Shortall further contends: “There

11
was no strategy [of defense counsel] here, no tactics or balancing of benefits or

drawbacks of a particular position.” Shortall claims that he suffered prejudice from

defense counsel’s failure to object to the jury instruction because, as a result of this

instruction, the jury considered, and convicted him of, ten crimes instead of just two.

The State points to Env. § 9-343(a)(3), and argues that Shortall’s defense counsel

did not provide ineffective assistance of counsel because, the State contends, “[t]he

continuing violations jury instruction was an accurate statement of the law.” The State

concedes: “There is no directly controlling Maryland case law that either interprets the

specific language of § 9-343(a), or a ‘continuing violation doctrine’ in environmental

criminal cases.” Nevertheless, the State asserts that its interpretation of Env. § 9-

343(a)(3) is supported by “the plain language and specific wording of the statute itself,”

and “case[ law] that addresse[s] the application of ‘continuing violations’ in other

contexts.” The State argues that Shortall’s defense counsel acted reasonably in not

objecting to the jury instruction because counsel performed his own research and came to

a similar conclusion.

The State further asserts that, even if defense counsel’s failure to object could be

deemed “deficient,” Shortall suffered no prejudice as a result because (a) it is likely that

the trial judge would have overruled the objection, and (b) the continuing violation counts

were merged for sentencing in any event.

We disagree with the post-conviction court’s conclusion that there was no

deficient performance. Even if there is, as the post-conviction court concluded, no

“controlling” appellate opinion on point, the plain language of the regulations at issue and

12
Env. § 9-343(a)(3) do not support ten separate convictions for the two regulatory

violations that were established by the evidence adduced at trial. There was no

conceivable benefit to Shortall to be gained by not objecting to the non-pattern jury

instruction that did not closely track the wording of either the regulations at issue or Env.

§ 9-343(a)(3). And trial counsel’s failure to raise an objection placed the defendant in the

position of not having preserved a fruitful issue for appeal. See Maryland Rule 4-325(e)

(“No party may assign as error the giving or the failure to give an instruction unless the

party objects on the record promptly after the court instructs the jury, stating distinctly

the matter to which the party objects and the grounds of the objection.”).

“Whether a jury instruction was a correct statement of the law is a question of law,

which we review without deference.” Seley-Radtke v. Hosmane, 450 Md. 468, 482

(2016). The trial court does not have discretion to instruct the jury incorrectly with

respect to the elements of a criminal offense. The Court of Appeals explained in Seley-

Radtke: “As this Court has observed, . . . even in areas where a trial court has discretion,

‘no discretion is afforded to trial [court]s to act upon an erroneous conclusion of law.’

John Hopkins Hosp. v. Pepper, 346 Md. 679, 700, 697 A.2d 1358, 1368 (1997).” Id.

Moreover, when the criminal charge is a statutory offense, we generally focus on

the language of the statute, which in this instance incorporates by reference the

regulations that are the basis of the charges against Shortall. As this Court explained in

Jason Nathaniel Carter v. State, ___ Md. App. ___, No. 290, September Term 2017, slip

op. at 14, 2018 WL 1611319 at *8 (filed April 2, 2018):

13
 To determine the elements of a statutory offense, we use the
standard tools of statutory interpretation. State v. Bey, 452 Md. 255, 265
(2017). Where the plain language of the statute, within the statutory scheme
and in light of the legislative purpose of the statute, is clear and
unambiguous, no further inquiry is necessary. Id. at 265-66. We must give
“words their natural and ordinary meaning,” Davis v. State, 426 Md. 211,
218 (2012), and “the statute must be given a reasonable interpretation, not
one that is absurd, illogical or incompatible with common sense,” Bey, 452
Md. at 266.

Normally, where the plain language of a statute is clear, our inquiry
into the legislative intent ends. Id. at 265.

As noted above, Shortall was charged with five separate violations of two specific

regulations, and the court submitted a total of ten charges to the jury. These regulations

each prohibit the affirmative act of disposing of sewage in certain situations; specifically,

“[a] person may not dispose of sewage in a manner that may cause pollution . . .”

(COMAR 26.04.02.02E); and “[a] person may only dispose of sewage” in accordance

with an approved on-site sewage disposal permit (COMAR 26.04.02.02F). Neither of

these regulations imposes a duty to remediate, regardless of whether that may be

addressed in other regulations that were not the basis for the criminal charges against

Shortall.3

Env. § 9-343(a)(3) states: “Each day on which a violation occurs is a separate

violation under this subsection.” (Emphasis added.) The regulations Shortall was

3
For an example of a regulation that does impose a continuing duty to remediate
the impact of an improper discharge, see COMAR 26.13.04.03B, which states:

A transporter shall clean up any hazardous waste discharge that occurs
during transportation or take such action as may be required or approved by
federal, State, or local officials so that the hazardous waste discharge no
longer presents a hazard to human health or the environment.

14
charged with having violated each use the word “dispose,” and impose a duty to avoid

taking a specific action, with no mention of a duty to mitigate or remediate the harm to

the environment that may have been caused by the disposal. Pursuant to this plain

language, the State was required to prove that an act of disposal had “occur[red]” on

“[e]ach day” the State charged as a separate violation of either COMAR 26.04.02.02E or

26.04.02.02F.4

At trial, the State offered no evidence to prove that Shortall committed separate

acts of disposal of sewage on the five separate dates that were the basis of the charges

submitted to the jury. Richard Littlefield and Brian Baumgartner both testified that they

were the first to discover evidence of unpermitted disposal of human waste during their

inspection of Shortall’s property on December 5. Ann Morse testified that, after

confirming the existence of the originally observed discharge from the pipe on December

6, she returned to the property again on December 7 and found “[t]he same discharge

pipe that I had seen the day before . . . there with the toilet tissue and . . . human waste.”

On cross-examination, Morse gave the following testimony:

[BY DEFENSE COUNSEL]: And when you went on December [6]th
what you saw reflected what was in the photographs from Mr. Littlefield?

[MORSE]: Yes.

[DEFENSE COUNSEL]: And when you went back on the 7th with Ms.
Howell that again reflected what was from the December 5th photograph?

4
The statute also provides in Env. § 9-343(a)(2): “In addition to any criminal
penalties imposed on a person convicted under this subsection, the person may be
enjoined from continuing the violation.”

15
 [MORSE]: Yes.

[DEFENSE COUNSEL]: And your site visit on December 6?

[MORSE]: Yes.

The only suggestion of any subsequent discharge came during Nony Howell’s

testimony. Howell testified that, when she returned to the site in January, she observed

that snow around the pipe had melted: “You can see – it had been a dusting of snow that

morning and you can see where there is discharge matter from the pipe has melted if you

will the snow . . . .” Howell explained, however, that she could not determine exactly

why the snow was melted: “[. . .] I don’t know if it snowed on top of it or if it melted

away just in that one section.” Her testimony was not sufficient to support a criminal

conviction for disposal of sewage on that date, or any other date subsequent to December

5, 2012. Aside from this observation by Ms. Howell, the State provided no evidence of

additional acts of sewage disposal. Even the prosecutor did not argue otherwise during

the State’s argument in opposition to Shortall’s motion for judgment when the trial judge

asked the prosecutor to identify the evidence that any waste was deposited after

December 5, 2012:

[THE COURT]: . . . What proof do we have that there was any – if the
jury would find that it was human waste [–] was any human waste
deposited there after December 5th[, the initial date of inspection]?

[THE STATE]: It’s a continuing violation offense by the penalty
Statute of itself until the matter is stopped, until the pipe is capped until
it’s –

[THE COURT]: Until it’s physically not possible –

[THE STATE]: Until it’s physically not possible to do it anymore.

16
 ***

It’s a continuing ongoing violation that can be charged
daily.

***

I would just note that the dates that we chose to charge
were based on dates that someone had actually been to the site –

[THE COURT]: These people were there.

[THE STATE]: (Continuing) – as opposed to just charging random
dates.

Moreover, there was evidence in this case that Shortall was ordered not to disturb

or clean up the discharged waste the inspectors observed on December 5, 2012.

In spite of the State’s failure to produce evidence of separate acts of disposal, the

State persuaded the trial court that the phrase “each day on which a violation occurs” in

Env. § 9-343(a)(3) supported the State’s proposed instruction that the jury was required

to apply a “continuing violation theory.” In support of this theory, the State said its

strongest Maryland case is Duncan v. State, 282 Md. 385 (1978), a case in which the

Court of Appeals held that the act of retaining stolen goods was not a continuing

violation. The Court explained in Duncan: “Ordinarily, a continuing offense is marked

by a continuing duty in the defendant to do an act which he fails to do. The offense

continues as long as the duty persists, and there is a failure to perform that duty.” Id. at

390 (emphasis added). The Duncan Court observed that “the criminal withholding of

money or property was not a continuing offense.” Id. at 391. And, similarly, the crime

of retention of stolen property is but a single offense: “[T]he crime was committed at the

17
time Duncan accepted and retained the coat. . . . Retaining the goods thereafter was no

more than a continuance of the result or effect of the original crime and not a continuing

course of criminal conduct.” Id. at 394. By analogy, a crime prohibiting an act of

improper disposal is complete when the person has improperly disposed of the sewage.

The State cited no Maryland authority that would permit a court to construe Env. §

9-343(a)(3) in the manner that was supposedly addressed by the trial court’s jury

instruction that, “[p]ursuant to Maryland law for these specific charges every day on

which a violation is still present constitutes a separate offense until the date the violation

is corrected.” As noted above, although there are indeed regulations that impose a

continuing duty to take corrective action after the initial violation of the regulation, the

specific language in the regulations that were the basis of the ten charges against Shortall

did not do so. Consequently, the trial court’s instruction was not a correct statement of

the law applicable to this case.

Indeed, the post-conviction court did not conclude that the State’s instruction

regarding multiple convictions for a single discharge was a correct statement of the

applicable law. The post-conviction court ruled:

[T]here is no controlling Maryland authority as to whether the continuing
violation doctrine applies in cases involving environmental crimes, and,
logically, the adverse impact of disposing of pollutants obviously continues
until the remedy is imposed. In short, this is an unsettled question of law,
and there are merits to both positions.

But it does not logically follow that trial counsel provides effective assistance of

counsel by failing to object to a jury instruction that is based upon “an unsettled question

of law” and deviates from the statutory language in a material manner that is prejudicial

18
to the defendant. If there is a potentially meritorious argument that the instruction is

erroneous, and there is no possible strategic benefit to the defendant from having the jury

receive the arguably incorrect instruction, defense counsel renders deficient performance

by failing to preserve that point for appeal. Here, the instruction that had been proposed

by the State was not a pattern instruction that had been approved by any Maryland

appellate court or recognized authority on Maryland jury instructions; there was no

controlling Maryland case law addressing liability for multiple violations of these

regulations; the language of the instruction was materially different from the language of

the applicable statute; and the words used in the court’s non-pattern instruction made it

far more likely that the defendant would be convicted of multiple violations than would

have been the case if the court’s instruction had more closely tracked the words used in

the statute and regulations. All of these reasons for objecting to the instruction were – or

should have been – obvious to defense counsel, and should have prompted an objection

to preserve these arguments pursuant to Rule 4-325(e).

Even if the interpretation of Env. § 9-343(a)(3) as applied to these regulations was

an unsettled legal question, there was no good reason for defense counsel not to object to

the jury instruction given by the trial court. Regardless of whether the judge was likely to

overrule the objection, counsel would have preserved this issue for appellate review.

Failing to object altogether is not a reasonable “trial strategy” when there is no possibility

that this strategy could benefit Shortall’s interests, and no downside whatsoever that

could flow from preserving the legal argument for a possible appeal. See Walker v. State,

391 Md. 233, 263 (2006) (“[I]f a ‘trial strategy’ simply has no chance of furthering

19
counsel’s client’s interests, it cannot rightly, or in any sense, be considered ‘reasonable’

and is simply not entitled to even the slightest deference.”).

With regard to Strickland’s second prong (requiring a showing of prejudice),

Shortall correctly asserts: “The[] improper convictions stem directly from the legal errors

contained in the jury instructions . . . . Defense counsel’s failure to object to the

instructions prevented the formulation of a potential judicial remedy at trial, [and]

precluded direct review of the instructions on appeal . . . . ” We conclude that defense

counsel’s failure to object to the continuing violation instruction prejudiced Shortall.

Had counsel properly objected to the jury instruction, and urged the trial court to track the

language of the regulations and Env. § 9-343(a)(3) more accurately in any instruction

given, there is a “reasonable probability” that the result of the trial would have been

different. Coleman, supra, 434 Md. at 340-41. Shortall would have been subject to two

criminal convictions at the most, rather than ten.5

Moreover, we disagree with the post-conviction court’s finding that Shortall was

not prejudiced because the continuing violation counts merged for sentencing. Even

though these convictions merged for sentencing, ten convictions remain on Shortall’s

criminal record, at least eight of which directly resulted from defense counsel’s failure to

object to an erroneous jury instruction. That is prejudice to Shortall.

5
And, if the trial judge had given the same instruction despite an objection,
Shortall would have had the possibility of raising that point on appeal, rather than being
foreclosed from doing so. Although the verdict as to the two charges in counts 2 and 3
may have been the same, Shortall would have eight less criminal convictions on his
record.

20
JUDGMENT OF THE CIRCUIT COURT
FOR DORCHESTER COUNTY
REVERSED AS TO COUNTS 6, 7, 10, 11,
14, 15, 18, AND 19, AND AFFIRMED AS
TO COUNTS 2 AND 3. CASE REMANDED
FOR THE CIRCUIT COURT TO
CONDUCT A HEARING FOR
RESENTENCING AS TO COUNTS 2 AND
3. COSTS TO BE PAID BY DORCHESTER
COUNTY.

21