Leonardtown, MD — A St. Mary’s County judge has approved an appeal to the state appellate court system of a 20-year old trial in which a man was convicted of manufacture and distribution of cocaine. Tyrone Butler, 44, formerly of Morganza, can now have that conviction heard by the Maryland Court of Special Appeals even though appeals normally have to be filed within 90 days of sentencing, which was in May of 1995.
Butler had filed what is called a Writ of Error Coram Nobis, which is a legal term that applies to alleged errors during trial. Normally such writs are heard in the appeals court to order a remand back to the original lower court in which the sentence was imposed. This time St. Mary’s County Circuit Court Judge Karen Abrams ruled that the appeals court should review the possibility of an error by Butler’s attorney Richard Fritz, who is now St. Mary’s County State’s Attorney.
The hearing in St. Mary’s County Circuit Court on Tuesday featured arguments from Butler’s attorney William Welch, III of Baltimore and Deputy State’s Attorney Ted Weiner. No one testified.
Butler contended in an affidavit presented to the court that Fritz did not advise him of his right to appeal the sentence of 10 years in jail, suspended to four years. That sentence was imposed by the late Judge John Hanson Briscoe.
Fritz told the Bay Net that he does not remember the specific case but that he always advised clients of their appeal rights when he was a practicing defense attorney.
The court record for the 1995 trial does not indicate whether or not Butler was advised of his right of appeal. Under questioning by Weiner, Welch admitted he has learned that a transcript of the trial could be obtained at the cost of $900, though neither side had ordered it. Judge Abrams said that was up to the appeals court to consider.
The issue has become critical to Butler after almost 20 years because of his recent drug conviction in federal district court (he also has another conviction from 2002). The sentencing guidelines consider prior convictions, and with that 1995 sentencing Butler could be considered a “career offender” by federal court definition. That would mean he would be subject to 188-235 months incarceration instead of 70 to 87 months.
Welch wrote in a brief to the court that Butler is “going blind because of glaucoma.” He wrote of Butler’s drug problem: “The addiction that runs in his family has cost him greatly.” He goes on the say, “Warehousing him until he goes completely blind would be cruel and unusual.”
Judge Abrams in her opinion granting the Writ of Coram Nobis” noted the “collateral consequences resulting from his conviction,” namely the greatly expanded sentence. That is one of the factors to be considered in granting such a writ.
Judge Abrams wrote: “The court finds that trial counsel’s performance was ineffective as it deprived Petitioner of his right to consultation regarding an appeal.”
Welch in his filing with the court, noted that Butler had attempted to contact Fritz to find if he still had the file in the case. Welch contended that Fritz “did not respond until after the Attorney Grievance Commission became involved.” Welch added, “Then trial counsel wrote that he no longer had Butler’s file.”
When Welch attempted to bring that before Judge Abrams at the Tuesday hearing, Weiner objected on behalf of his boss, saying it wasn’t pertinent.
An appeal is not automatic. Welch would have to file the appeal for his client within the new 90-day window opened by the judge.