Abrams v. State

WOODWARD, Judge. This appeal arises out of an Alford plea 1 tendered in the Circuit Court for Prince George’s County by appellant, Kayode Abrams, to three counts of uttering on June 16, 1994. The circuit court accepted appellant’s plea and sentenced him to one year of imprisonment on each of the three counts, to run concurrently, and suspended the execution of the sentence in lieu of a period of two years’ probation. On September 1, 2006, appellant filed a Petition for Writ of Error Coram Nobis, alleging, inter alia, that appellant’s guilty plea was both unconstitutional and violative of Maryland Rule 4-242(c) because a factual basis for the plea had not been set forth on the record.

After conducting a hearing on appellant’s petition, the circuit court denied the same by order dated October 4, 2006. 2 Appellant filed a timely Notice of Appeal on October 26, 2006. In this appeal, appellant claims that the trial court erred in denying his coram nobis petition because the record of his Alford plea contained neither a factual basis in support of the plea nor an adequate explanation of the elements of the crime. In response, the State raises a more fundamental issue, which was not presented to the trial court: Whether appellant is entitled to coram nobis relief when a probation before judgment under Article 27, section 641 3 was granted on all charges ⁶⁰⁴ and appellant successfully completed the probation thereunder. For the reasons set forth herein, we shall affirm the judgment of the circuit court.

BACKGROUND On March 29, 1994, an indictment was filed in the Circuit Court for Prince George’s County, charging appellant with nine counts of uttering and one count of theft over $300. The statement of charges for these offenses, originally filed in the district court, was filed in the circuit court on April 6, 1994. On June 16, 1994, appellant withdrew his not guilty plea and entered an Alford plea to three counts of uttering. The remaining six counts of uttering and one count of theft over $300 were nol prossed by the State.

The following relevant part of the plea colloquy then ensued between the court and appellant. THE COURT: [Defense counsel] tells me you want to plead guilty to three counts of uttering, which accuses you of offering a forged instrument to obtain some benefit you are not entitled to which carries a possible maximum of 10 years. It is a felony. Do you understand that? [APPELLANT]: Yes, ma’am.

THE COURT: [Appellant], did you get a copy of the statement of charges in your case where it sets out what it is you are supposed to have done? [APPELLANT]: Yes. THE COURT: Did you read it and understand it? [APPELLANT]: Yes, ma’am. THE COURT: Did you go over it with your attorney together with all possible defenses? [APPELLANT]: Yes, ma’am. THE COURT: Do you believe if your case went to trial that would be the State’s evidence against you? [APPELLANT]: Yes, ma’am. ⁶⁰⁵ THE COURT: Anything about the proceedings you don’t understand? [APPELLANT]: No, ma’am.

THE COURT: Anybody offer you anything other than this plea agreement or threaten you in order to cause you to enter this plea? [APPELLANT]: No, ma’am. THE COURT: Are you entering it freely and voluntarily? [APPELLANT]: Yes, ma’am. THE COURT: The [c]ourt finds the plea is freely, voluntarily, and knowingly, intelligently given. Find the factual basis set out in the statement of charges, takes judicial notice of the statement of charges, finds jurisdiction.

Accordingly, enter pleas under the provisions of North Carolina v. Alford to counts 7,8 and 9. At no time did the court, the prosecutor, or defense counsel give an oral statement of facts in support of the plea. Defense counsel did not object to the plea colloquy or the court’s acceptance of appellant’s plea. Thereafter, the court sentenced appellant to one year for each of the three uttering charges, to run concurrently, and suspended all but one day, giving appellant credit for one day of time served.

The court then imposed two years’ probation. The court also ordered appellant to pay restitution of $530 to NationsBank. Appellant did not thereafter file a petition for leave to appeal, for a writ of habeas corpus, or for relief under the Maryland Post Conviction Procedure Act. On June 23, 1994, appellant filed a Motion for Reconsideration of Sentence, which the court ordered to be held in abeyance.

Almost two years later, on June 7, 1996, a hearing was held on the motion for reconsideration. At the conclusion of the hearing, the circuit court granted the motion and ordered that the entry of the judgments of conviction be stayed pursuant to Article 27, section 641. The court then placed appellant on unsupervised probation for a period of one day. ⁶⁰⁶ On June 8, 2005, appellant entered a guilty plea in the United States District Court for the Eastern District of Virginia (Alexandria Division) to the charge of conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1) & 846. Appellant was sentenced to ten years’ imprisonment on September 9, 2005.

As a result of the guilty findings on the uttering charges, appellant was ineligible for a “safety valve” provision under the Federal Sentencing Guidelines, 4 which would have entitled him to a possible reduction of his sentence. In particular, but for the uttering offenses, appellant would have had only one “criminal history point” and would have been eligible under the Guidelines for a sentence of seventy to eighty-seven months, as opposed to the mandatory ten years that was imposed. On September 1, 2006, appellant filed a Petition for Writ of Error Coram Nobis. In the petition, appellant averred that he “face[d] severe collateral consequences” from the uttering convictions and therefore a writ of error coram nobis vacating the convictions was proper.

In particular, appellant challenged the June 16, 1994 convictions on the basis that, inter alia 5 his guilty plea was not supported by a factual basis on the record during the plea hearing, which is required by Maryland Rule 4-242(c), as well as the Maryland and federal constitutions. On September 22, 2006, a hearing on appellant’s coram nobis petition was held in the Circuit Court for Prince George’s County. At the start of the hearing, the State advised the court that the only issue in dispute was whether appellant’s guilty plea was constitutional. The State (and the court) agreed that all other elements for a coram nobis petition were satisfied, including that appellant was facing “serious collateral consequence[s].” Appellant argued that, under Maryland Rule 4-242(c) and the Maryland and federal ⁶⁰⁷ constitutions, “a factual basis for the guilty plea [must] [ ] be spread upon the record in open court by either the [c]ourt, the prosecutor, or the defense attorney.” In other words, a public, on-the-record recitation of the evidence against a defendant is required as part of a guilty plea hearing.

At the conclusion of the hearing, the court made its ruling from the bench, denying appellant’s petition for coram nobis relief. The following relevant colloquy took place between defense counsel and the court: [DEFENSE COUNSEL]: But there is evidence here that in the record, crystal clear, that neither the Judge nor the defense attorney, nor the State spread upon the record the contents of the statement of charges, which is required under Bradshaw versus Stumpf [ 545 U.S. 175 , 125 S.Ct. 2398 , 162 L.Ed.2d 143 (2005)], and I submit under 242, Maryland Rule 4-242 and the Parker [v. State, 160 Md.App. 672 , 866 A.2d 885 (2005) ] case. That’s all I have. THE COURT: [Defense counsel], I’m going to find that there is no such requirement under either Maryland Rule 4-242(c), under the Maryland Declaration of Rights or Constitution, or under the United States Constitution.

So I am going to deny your petition for writ of error coram nobis. And I find that the rule was complied with completely. That rule being once again Rule 4-242(c). That Judge Perry clearly explained the nature of the charge of uttering to the defendant.

Once again, referring to page 3, line 16, the Court: “She tells me you want to plead guilty to three counts of uttering, which accuses you of offering a forged instrument to obtain some benefit you are not entitled to, which carries a possible maximum of ten years.” So the defendant was informed of the nature of the charges. Judge Perry then went on [ ] [to] page 5, line 25, and then there’s a 6 over on the right, and then it skips down to line 1: “Mr. Abrams, did you get a copy of the statement of charges in your case where it sets out what it is you are supposed to have done?” ⁶⁰⁸ I think that clearly refers to the statement of the charges filed February 16th, '94, which is present in the court file and not the indictment. [DEFENSE COUNSEL]: Can we have on the record, since you’re making findings, the date he pled guilty, so we can link that up? THE COURT: Sure. And the defendant pled guilty in this case on June 16th, 1994. [DEFENSE COUNSEL]: Four months later.

THE COURT: Four months later. “Mr. Abrams, did you get a copy of the statement of charges in your case where it sets out what you are supposed to have done?” I think that clearly refers to the Statement of Charges and not the indictment. The defendant responds, “Yes.” “The Court: Did you read it and understand it? “The Defendant: Yes, ma’am. “The Court: Do you believe if your case went to trial, that would be the State’s evidence against you? “The Defendant: Yes, ma’am.” The Statement of Charges clearly is rather lengthy and sets out a long recitation of what the defendant had done, even including the defendant’s, I guess, confession to Sergeant Clint that he thought something was in fact wrong with the checks. The Court then goes on [ ] [to] page 6, line 22, “The Court finds the plea is freely, voluntarily, and knowingly, and intelligently given. I find a factual basis as set out in the Statement ] of Charges.” Takes judicial notice of the Statement of Charges.

Finds jurisdiction and accordingly enters a plea. Since I do not think it’s required under Rule 4r-242(c) that the factual basis must be spoken out loud and verbalized, that it is sufficient to refer to the [statement of Charges. On that basis I’m going to deny the petition for error coram nobis. ⁶⁰⁹ It is from the aforementioned decision that appellant filed a timely appeal. Additional facts will be included as necessary for our discussion of the issues presented in this appeal.

DISCUSSION I. Preliminarily, the State contends that appellant is not entitled to coram nobis relief because such relief is available only to persons convicted of a crime, and appellant ultimately received a probation before judgment pursuant to Article 27, section 641, which is not a “conviction” under Maryland law. The State, however, concedes that this issue was not raised in or decided by the trial court and thus ordinarily would not be preserved for our review. See Md. Rule 8-131(a). Nevertheless, the State argues that “the circuit court was without jurisdiction to consider [appellant’s] request for coram nobis relief in connection with a nonexistent conviction,” and an issue of jurisdiction may be raised at any time under Rule 8-131(a).

Appellant responds by asserting that this issue is not “a question of the lower court’s ‘jurisdiction;’ ” rather, “it is simply a matter of [a]ppellant’s eligibility to seek coram nobis relief.” Thus, according to appellant, the issue has not been preserved for our review. Moreover, even if the issue is preserved, appellant claims that he is not disqualified from seeking coram nobis relief because “the probation before judgment that [a]ppellant received pursuant to the guilty plea in the present matter does count as a ‘conviction’ in the federal sentencing scheme.” Indeed, because of the guilty finding on the uttering charges, appellant was treated as ineligible for a lesser sentence under the Federal Sentencing Guidelines. We need not decide whether this issue is one of jurisdiction, which is not subject to waiver, or simply one of eligibility for coram nobis relief, which is waivable. We shall assume, without deciding, that the issue is jurisdictional and thus properly before us, because we agree with appellant’s contention that, under the facts of this case, the probation before ⁶¹⁰ judgment received by appellant constitutes a “conviction” for purposes of qualifying for relief under a coram nobis petition.

We explain. On June 7,1996, the circuit court granted appellant’s motion for reconsideration of the sentence on the uttering charges, stayed the entry of judgment pursuant to Article 27, section 641, and placed appellant on probation for one day. 6 Article 27, section 641 7 stated, in pertinent part: (a) Probation after plea or finding of guilt; terms and conditions; waiver of right to appeal from judgment of guilt. — (l)(i)l. Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate____ (c) Fulfillment of terms of probation. — Upon fulfillment of the terms and conditions of probation, the court shall discharge the person from probation. The discharge is final disposition of the matter.

Discharge of a person under this section shall be without judgment of conviction and is not a ⁶¹¹ conviction for purposes of any disqualification or disability imposed by law because of conviction of crime. In Myers v. State, 303 Md. 639, 640 , 496 A.2d 312 (1985), the Court of Appeals was called upon to construe section 9-104 of the Courts and Judicial Proceedings Article, 8 which provides that “[a] person convicted of perjury may not testify,” in light of Article 27, section 641. The question before the Court was: “[W]hether a person who is found guilty of perjury, but who is given probation before judgment is competent to testify.” Id. The appellant in Myers had moved to strike the testimony of his wife on the ground that she was incompetent to testify because she had previously been found guilty of perjury.

Id. at 640-41 , 496 A.2d 312 . The circuit court denied the appellant’s motion because, although his wife had been found guilty of perjury, she had received a probation before judgment and therefore had not been convicted of perjury pursuant to Maryland law. Id. at 641 , 496 A.2d 312 . In establishing the legal framework for its analysis, the Court observed: At common law a person was not “convicted” of a crime until the court entered a judgment on the finding of guilt.

In today’s usage, however, the meaning of “convicted” and “conviction” turns upon the context and purpose with which those terms are used. For example, in its general and popular sense “conviction” means the establishment of guilt prior to, and independent of, the judgment of the court. By contrast, in its legal and technical sense this term means the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. Id. 642-43 , 496 A.2d 312 (emphasis added) (citations omitted).

The Court then addressed the “context” of the case before it, namely section 9-104, which declares that persons convicted ⁶¹² of perjury are incompetent to testify. Id. at 642 , 496 A.2d 312 . The Court stated that “[wjhere, as here, the statute under consideration imposes a legal disability, courts have defined ‘conviction’ in its legal and technical sense.” Id. at 643 , 496 A.2d 312 . Under Maryland case law, the Court explained, the “legal and technical sense” “equated a ‘conviction’ with the judgment of the court on the verdict and not with the mere determination of guilt.” Id. at 643, 645 , 496 A.2d 312 .

The Court concluded: Accordingly, unless the context in which the word is used indicates otherwise, a “conviction” is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty. Thus, as we see it, a person is not “convicted” of an offense until the court enters a judgment upon the verdict of guilty. Id. at 645 , 496 A.2d 312 (emphasis added). In later cases, whether a probation before judgment constituted a “conviction” again depended on the context and purpose of the use of the term “conviction.” In Shilling v. State, 320 Md. 288, 290 , 577 A.2d 83 (1990), the appellant was found guilty of driving while intoxicated in violation of Md.Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), § 21-902(a) of the Transportation Article (“Trans.

Art.”) 9 and given a probation before judgment. This disposition was granted by the trial court notwithstanding the court’s awareness that, within the previous five years, the appellant had been found guilty of a violation of Trans. Art. § 21-902(b) 10 and received a probation before judgment. Id.

The State appealed, claiming that the appellant was a subsequent offender under Md.Code (1957, ⁶¹³ 1987 Repl.Vol., 1989 Cum.Supp.) Article 27, § 641(a)(2) and thus could not be granted a second probation before judgment. Id. One of the arguments made by the appellant on appeal was that he was eligible for a probation before judgment because the State failed to give him prior notice under Maryland Rule 4-245, which requires such notice to one who, because of a prior conviction, is subject to an additional or mandatory statutory punishment. Id. at 296, 577 A.2d 83 .

This Court disagreed, holding that, because a probation before judgment was not a prior conviction, the State did not have to give the required notice. State v. Shilling, 75 Md.App. 233, 239 , 540 A.2d 1184 (1988). The Court of Appeals granted certiorari to address the issue, among others, of whether a probation before judgment for a violation of Trans. Art. § 21-902 was a “prior conviction” under Maryland Rule 4-245.

Shilling, 320 Md. at 296 , 577 A.2d 83 . The Court of Appeals began its analysis by referring to Myers , wherein it was “pointed out that the word ‘conviction’ has different meanings and may vary according to the context and purpose of the statute in which it appears. We noted that probation before judgment was a conviction in certain instances, but not a conviction in others.” Id. (emphasis added).

The Court found that, under the express language of Article 27 § 641(a)(2), the appellant’s first probation before judgment made him a subsequent offender for any violation of Trans. Art. § 21-902 within the next five years and ineligible for a probation before judgment for such subsequent offense. Id. at 293, 577 A.2d 83 . The purpose of Rule 4-245, according to the Court, is to inform a defendant of the State’s intention to seek enhanced punishment and to provide an opportunity to challenge the State’s allegation of a prior conviction or violation of the statute.

Id. at 297 , 577 A.2d 83 . Given the appellant’s status as a subsequent offender and the purpose of Rule 4-245, the Court concluded that the appellant’s probation before judgment was a “prior conviction” under Rule 4-245 ⁶¹⁴ and thus the State was required to give notice before the appellant could be sentenced as a subsequent offender. Id. On the other hand, in Gakaba v. State, 84 Md.App. 154, 155 , 578 A.2d 299 , cert. denied, 321 Md. 385 , 582 A.2d 1255 (1990), this Court held that a probation before judgment did not qualify as a “conviction” as that term is used under the Maryland Post Conviction Procedure Act.

We reasoned: Our holding is consistent with the probation before judgment statute. That statute provides in Art. 27, § 641(a)(1)® that probation before judgment may not be entered unless the defendant consents in writing to the stay of judgment. Then, § 641(a)(3) goes on to provide that by consenting to the stay, the defendant “waives the right to appeal from the judgment of guilt by the court at any time.” Because a defendant may not seek a direct appeal from a probation before judgment, it seems logical that he should also be forbidden from collaterally attacking a probation before judgment under the Post Conviction Act. Id. at 156, 578 A.2d 299 .

In the case sub judice, the term “conviction” is used in the context, and according to the purpose, of a petition for writ of error coram nobis. The seminal case in Maryland on the coram nobis writ is Skok v. State, 361 Md. 52 , 760 A.2d 647 (2000). There, the Court of Appeals conducted an in-depth analysis of the history of the writ of error coram nobis and, following the reasoning of the Supreme Court in United States v. Morgan, 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 (1954), expanded the scope of coram nobis relief in Maryland. The Skok Court explained that the original purpose behind the writ of error coram nobis was a narrow one; it served to “ ‘bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.’ ” 11 361 ⁶¹⁵ Md. at 68, 760 A.2d 647 (quoting Madison v. State, 205 Md. 425, 432 , 109 A.2d 96 (1954)).

By “ ‘the decided weight of authority, [the writ was] not broad enough to reach every case in which there has been an erroneous or unjust judgment, on the sole ground that no other remedy exists[.]’ ” Id. at 69, 760 A.2d 647 (quoting Keane v. State, 164 Md. 685, 692 , 166 A. 410 (1933)). The Court, however, observed that the “[m]ore recent cases and sound public policy warrant a somewhat broader scope of coram nobis.” Id. at 70, 760 A.2d 647 . The Skok Court identified Morgan as the leading case concerning the nature and scope of a coram nobis proceeding, wherein the Supreme Court held that “coram nobis should be available to raise ‘fundamental’ errors in attempting to show that a criminal conviction was invalid under the circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” 361 Md. at 72-73 , 760 A.2d 647 . In adopting the broadened scope of coram nobis relief announced in Morgan, the Skok Court opined: Along with the vast majority of appellate courts which have considered the matter, we believe that the scope of coram nobis, as delineated in United States v. Morgan, is justified by contemporary conditions and public policy.

Very often in a criminal case, because of a relatively light sanction imposed or for some other reason, a defendant is willing to forego an appeal even if errors of a constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a substantial collateral consequence of the conviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation, ⁶¹⁶ he or she will not be able to challenge the conviction by a petition for a writ of habeas corpus or a petition under the Post Conviction Procedure Act. Moreover, serious collateral consequences of criminal convictions have become much more frequent in recent years. The past few decades have seen a proliferation of recidivist statutes throughout the country.

In addition, apparently because of recent changes in federal immigration laws, regulations, and administration, there has been a plethora of deportation proceedings against non-citizens based on relatively minor criminal convictions. In light of these serious collateral consequences, there should be a remedy for a convicted person who is not incarcerated and not on parole or probation, who is suddenly faced with a significant collateral consequence of his or her conviction, and who can legitimately challenge the conviction on constitutional or fundamental grounds. Such person should be able to file a motion for coram nobis relief regardless of whether the alleged infirmity in the conviction is considered an error of fact or an error of law. Id. at 77-78 , 760 A.2d 647 (emphasis added).

In the case sub judice, the State argues that, because a probation before judgment is not a conviction under Maryland law, appellant is not entitled to coram nobis relief. The State points to the language of the Skok opinion, wherein the Court of Appeals stated that coram nobis relief should be available for “a convicted person who is not incarcerated and not on parole or probation, who is suddenly faced with significant collateral consequences of his or her conviction, and can legitimately challenge the conviction on constitutional or fundamental grounds.” Id. at 78 , 760 A.2d 647 (emphasis added). We disagree. Under Myers and its progeny, whether a probation before judgment is a “conviction” depends upon the context and purpose for which that term is used.

In the context of a coram nobis petition, the term “conviction” or “convicted” is ⁶¹⁷ used to identify a person eligible for relief under the petition as one who, inter alia, is facing significant collateral consequences because of having been found guilty of a criminal offense. It is essentially irrelevant whether the disposition on the guilty finding is a judgment of conviction, i.e., a sentence, or a stay of entry of a judgment, i.e., a probation before judgment. The critical issue is whether the finding of guilt did or will in fact cause significant collateral consequences to the person petitioning for coram nobis relief. Here, appellant’s probation before judgment was treated as a “conviction” for purposes of the Federal Sentencing Guidelines and, as a result, appellant was subject to a mandatory penalty of ten years’ imprisonment.

More importantly, the Court of Appeals made clear in Skok that the overriding public policy behind coram nobis relief in Maryland is to afford a remedy to a person who is faced with significant collateral consequences of his or her “conviction.” 361 Md. at 77 , 760 A.2d 647 . These collateral consequences are often imposed by jurisdictions other than Maryland, under whose laws a Maryland probation before judgment is treated in the same manner as a “conviction” under their laws. Under these circumstances, to hold that a probation before judgment is not a “conviction” would be contrary to the clear public policy underlying coram nobis relief. For these reasons, we hold that, where a probation before judgment subjects a person to significant collateral consequences, such probation before judgment constitutes a “conviction” for purposes of coram nobis relief.

Accordingly, in the case sub judice, appellant’s probation before judgment qualifies as a “conviction” in a coram nobis proceeding, because his probation before judgment prevented him from receiving a sentence less than a mandatory ten years under the Federal Sentencing Guidelines.

II

In Hams v. State, 303 Md. 685, 697-98 , 496 A.2d 1074 (1985), the Court of Appeals set forth the appellate standard of review for a constitutional challenge to a guilty plea: ⁶¹⁸ When a claim is based upon a violation of a constitutional right it is our obligation to make an independent constitutional appraisal from the entire record. But this Court is not a finder of facts; we do not judge the credibility of the witnesses nor do we initially weigh the evidence to determine the facts underlying the constitutional claim. It is the function of the trial court to ascertain the circumstances on which the constitutional claim is based. So, in making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error.

We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed. (Citations omitted); accord State v. Gutierrez, 153 Md.App. 462, 470 , 837 A.2d 238 (2003). Also relevant to our discussion of the instant case is Maryland Rule 4-242(c), which governs the entry of guilty pleas. It states: Plea of guilty.

The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. The court may accept the plea of guilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty.[ 12 ] A. Appellant assigns error to his guilty plea on the basis that the trial court’s explanation of