BERESKA v. State

RAKER, J. This case is an appeal from the denial of appellant’s “Motion to Revise Judgment based on Mistake or Irregularity, or in the Alternative, Petition for Writ of Error Coram Nobis,” filed in the Circuit Court for Calvert County on January 22, 2009. Appellant raises a single issue for our review, which he articulates as follows: “Whether the Maryland General Assembly violated the Ex Post facto Clauses of the Maryland and United States Constitutions when it enacted a sentencing law, and applied it retroactively to conduct committed prior to enactment, with the new, more onerous law, prohibiting probation before judgment, whereas the former law authorized probation before judgment?” ⁶⁶⁸ After briefing, oral argument, and supplemental briefing, we perceive that this case can be resolved by answering a single dispositive question: “Did the Circuit Court for Calvert County have any authority or jurisdiction on August 9, 2004 to permit appellant to withdraw his guilty plea entered on March 14, 1996, and then to permit him to enter a guilty plea to a reduced charge?” Procedural Background Appellant George John Bereska, Jr. entered a guilty plea in the Circuit Court for Calvert County on March 14,1996, to the offense of third-degree sexual assault, based on his conduct in June and July of 1995. The court sentenced appellant to six years of incarceration with all but thirty days suspended, and five years of supervised probation. In October, 1995, the General Assembly amended Md.Code, Article 27 (1974, 1995 Cum.

Supp.), § 641, 1 precluding the grant of probation before judgment (hereinafter “PBJ”) for the offense of third-degree sexual assault. Appellant nonetheless filed a timely motion to modify his sentence, requesting PBJ pursuant to Art. 27, § 641. The circuit court held this matter sub cuña until 2004, by which time appellant had completed serving his term of incarceration and probationary period. Pursuant to an agreement between appellant and the State, on August 9, 2004, the circuit court permitted appellant to withdraw his guilty plea, permitted the State to amend the charging document and permitted appellant to enter a guilty plea to the offense of child abuse, in violation of Art. 27, § 35C, a lesser offense for which PBJ remains available.

The State had all along opposed PBJ, but agreed now not to ⁶⁶⁹ oppose PBJ so long as appellant waived the right to seek expungement of the court record, and appellant did so. On November 30, 2007, appellant filed a motion “[t]o revise judgment based on fraud, mistake or irregularity, or in the alternative, petition for writ of error coram nobis.” Appellant argued that the 1995 statutory amendment, effective October 1, 1995, eliminating the possibility of PBJ for third-degree sexual offenses violated his rights under the Ex Post Facto Clause of the United States Constitution, 2 and the parallel clause in the Maryland Declaration of Rights. 3 His coram nobis petition was based on the argument that he had received ineffective assistance of counsel, in that his attorney failed to recognize this ex post facto issue at the 2004 hearing. The court denied appellant’s motion. Appellant was allowed to file a substantially similar motion in 2009, and the court again denied the motion.

Before this Court, appellant argues that the ex post facto law doctrine precludes any retroactive effect of the revised Art. 27, § 641, and that the expungement waiver in the new plea agreement was invalid, because the plea to a lesser count was not necessary to obtain PBJ under the ex post facto clauses of the Maryland and federal constitutions. Ultimately, what appellant sought in this appeal is a restored right to seek expungement of his court record relating to his 1995 conduct. ⁶⁷⁰ Following briefing and oral argument, this Court ordered the parties to file supplemental briefs addressing the question of the circuit court’s jurisdiction, in 2004, to allow appellant to withdraw his original 1996 guilty plea and enter a new plea to a different offense. In response to the Court’s request to brief the jurisdictional basis for the circuit court’s actions, appellant states that the circuit court had no jurisdiction to permit appellant to withdraw his 1996 guilty plea because the motion to withdraw the plea was untimely and there were no grounds advanced that would have supported withdrawal of the plea. He prays that this Court rule that applying the PBJ prohibition to appellant’s sexual offense conviction would violate the Ex Post Facto Clause of the Maryland and United States constitutions, and “remand the case to the circuit court with instructions to enter a probation before judgment without the condition that Mr. Bereska waive his right to expungement of the charges.” We shall hold that the Circuit Court for Calvert County lacked the jurisdiction to vacate the guilty plea and judgment of conviction entered on March 14, 1996, and that appellant’s ex post facto argument is not before the Court at this time.

Facts On December 5, 1995, appellant George John Bereska, Jr. was indicted by the Grand Jury for Calvert County for second-degree sexual assault in violation of Art. 27, § 464A, in connection with his conduct with a twelve year-old boy in June and July of 1995. On March 14, 1996, appellant pled guilty in the Circuit Court for Calvert County to a third-degree sexual offense under Art. 27, § 464B. At his May 17 sentencing hearing, the court sentenced appellant to a term of incarceration of six years, with all but thirty days suspended, and five years of supervised probation. At the time appellant committed the criminal acts underlying his guilty plea, PBJ was available for a third-degree sexual offense, under Art. 27, § 641.

Effective October 1, 1995, however, the General Assembly amended the Maryland Code ⁶⁷¹ to eliminate the possibility of PBJ for third-degree sexual offenses. 4 This change went unnoticed by appellant, the circuit court, and the assistant State’s attorney at the May, 1996 sentencing. On August 14, 1996, appellant filed a motion under Rule 4-345, seeking modification or reduction of sentence. Among other requests, appellant’s August, 1996 motion for modification sought PBJ. The court declined to grant PBJ at that time, but agreed to hold appellant’s motion sub cuña.

In November of 1998, having completed 1,000 hours of community service, appellant requested a hearing on his motion for modification. The court declined to grant a hearing, but indicated that it might consider PBJ when appellant completed his five years of probation. In 2001, appellant completed his term of probation, 5 and on May 21, 2002, he requested a hearing on his motion for modification, held sub curia in the circuit court. The State filed a memorandum in opposition to appellant’s request for PBJ.

The State’s 2002 opposition memorandum raised for the first time the issue that PBJ, now governed by Md.Code (2001, 2006 Cum. Supp.), Crim. Proc. Art., § 6-220, was unavailable for the charge to which appellant had pled guilty in 1996, third-degree sexual assault.

At the time, defense counsel conceded this point. The court agreed that PBJ was unavailable in cases of third-degree sexual assault. All parties ⁶⁷² involved were in agreement that PBJ could not be applied to appellant’s third-degree sexual assault conviction. In 2002, no one raised the notion that applying the revised statute to appellant might create ex post facto issues.

Appellant and the State apparently reached an agreement that appellant should have the benefit of PBJ, and they contrived a plan involving the withdrawal of the 1996 guilty plea and the entry of a guilty plea to an amended, lesser charge, which they believed would avoid the 1995 change in the law and allow appellant the benefit of PBJ. In exchange for agreeing to this plea revision, the State required that appellant agree not to seek expungement of the court record. On August 9, 2004, the circuit court held a hearing and permitted appellant to withdraw his March 14,1996 guilty plea to third-degree sexual assault, and to enter a new plea to child abuse. The court granted PBJ and, pursuant to the agreement of the parties, ordered that appellant not seek expungement of his criminal record as provided under Md.Code, Crim.

Proc. Art. (2001, 2006 Cum. Supp.), § 10-105, Expungement of record after charge is filed. The following significant discussion took place in the courtroom: [DEFENSE COUNSEL]: Mr. Bereska, as you are aware, you were before His Honor on March 14th of 1996, at which time you entered a plea of guilty to the crime of sexual offense in the third degree....

We have had numerous conversations regarding this matter, and before we accept your plea to the new crime of sexual abuse of a minor, you have to withdraw your plea as entered on March 14th of 1996 to third degree sexual offense. Would you like to do that at this time? [APPELLANT]: Yes. [COURT]: I just want to ask Mr. Bereska one question, and that is, your attorney asked if there had been any promises or threats made to your to do any of these things. I am assuming that you are setting aside or not including with that negative answer ... the plea discussions that your ⁶⁷³ attorney and [the Prosecutor] have had and that I have had. So those discussions are promises to some extent, but when he asked if you if there were any promises made, I assume your reference to “no” meant any additional promises other than what has been put forth in front of us today.

Is that correct? [APPELLANT]: That’s correct, Your Honor. [COURT]: Okay. The Court will accept the withdrawal of the plea that was entered on March 14th, 1996. At that time, the plea was amended to count one, which is a third degree sexual offense. [DEFENSE COUNSEL]: So at this point, Your Honor, I would make a motion to amend count one to child abuse under Article 27, Section 35C. [Defense counsel then advised appellant that he was waiving his right to a jury trial by pleading guilty to child abuse.] [DEFENSE COUNSEL]: [Y]ou are entering this plea freely, voluntarily, and of your own free will? [APPELLANT]: Yes, I am. [DEFENSE COUNSEL]: Your Honor? [COURT]: [Prosecutor], is the State satisfied? [PROSECUTOR]: Yes, Your Honor. [COURT]: The Court is familiar with the facts of the situation and does not need to review those again, nor have the State read those into the record. The Court is therefore satisfied that this plea is — that there is sufficient factual basis for the plea and that this plea is given knowingly, intelligently, and voluntarily, and understandingly, and the Court will accept the plea of guilty to third degree sexual offense or fourth— [PROSECUTOR]: Child abuse, Your Honor. [COURT]: Excuse me, child abuse, under Article 27, Section— [PROSECUTOR]: 35C. ⁶⁷⁴ [COURT]: 35C. [DEFENSE COUNSEL]: Your Honor, with the understanding that the Court has accepted Mr. Bereska’s plea, I would at this time in light of the voluminous amount of material that has transpired back and forth between the Court and the State ask that the Court afford Mr. Bereska the benefit of probation before judgment pursuant to now Section 6-220 of the Criminal Procedure Article of the Annotated Code of Maryland.

Mr. Bereska, you have the right of allocution, which means that you can address the Court before he imposes a sentence. Would you like to do so? [APPELLANT]: Yes, I would. Quite simply, Your Honor, I would just like to thank the Court and the State for giving me this opportunity. I sincerely mean that. [COURT]: Okay.

Do you understand that you give up the right to an automatic appeal in this matter.... [APPELLANT]: Yes, I do, Your Honor. [COURT]: Alright. Let me just ask the State if it has anything to present in terms of the victims or anything like that? [PROSECUTOR]: No, Your Honor, I do not. As you are aware we did contact the victims, for the record we did contact the victims and his parents. At first they were objecting to this.

Then I received a letter from private counsel regarding a civil suit, and they were withdrawing their objection to the entry of a probation before judgment. Therefore, as I told [defense counsel], the State would be deferring to the Court on that decision. [COURT]: Okay. Well, Mr. Bereska, I know this has been a very difficult eight or nine, ten years, whatever it’s been. Certainly the Court has been provided with a lot of information about you, not only by your counsel, but also by the doctor who did the independent evaluation for us, Dr. Weiner.

The safeguards that have been built into this agreement are the not seeking expungement, so that record will always be there. It will not show a conviction, but it ⁶⁷⁵ will show that there was the — -this matter did come up and there was a plea to this, to this count as set forth by counsel today. I hope you can not put me in a position where I come back and wonder if I did the right thing. I am confident today that you won’t, but it’s something you have to deal with every day and make sure it doesn’t happen.

So the Court is going to sign the Order that counsel has submitted this 9th day of August---- [DEFENSE COUNSEL]: And, Mr. Bereska, let me just advise you very briefly. You have ten days to file a motion for a new trial and ninety days to ask the Court to modify your sentence. However, in light of the Order that has been signed, there is in essence very little, if anything, to modify. As the Court has indicated, it has been a very long road for you, and we all wish you the very, very best.

In August, 2004, it appeared that this matter was finally concluded. On November 30, 2007, over three years later, with different counsel retained, appellant filed a motion “to revise judgment based on fraud, mistake, or irregularity, or in the alternative, petition for writ of error coram nobis.” Appellant asserted also that “[t]he real question in this case is the appropriate procedural vehicle to secure for Mr. Bereska the relief to which he is entitled.” Appellant alleged in his 2007 motion that his 1996 guilty plea was affected by mistake or irregularity under Rules 4-331(b) and 4-345(b) because no one noticed the ex post facto issue at the 2004 hearing. He argued that the 1995 statutory amendment eliminating the possibility of PBJ for third-degree sexual offenses, which took effect on October 1, 1995, had violated his rights under the Ex Post Facto clauses of the federal Constitution and the Maryland Declaration of Rights. Appellant’s reasoning was that the circuit court had indicated its willingness to consider PBJ all along; that the elimination of PBJ as a possibility for appellant’s third-degree sexual offense could not have been applied to him under the Ex Post ⁶⁷⁶ Facto Clause; and that therefore, his waiver of his right to seek expungement in exchange for the plea to a charge for which PBJ remains available, child abuse, likewise violated the Ex Post Facto Clause.

In other words, if PBJ was available to appellant despite the statutory change, the State could not properly extract a concession from appellant (the “no ex-pungement” condition), in return for agreeing not to oppose a new plea which was not necessary in order to make PBJ possible. From this argument rooted in the ex post facto law doctrine, appellant concluded that because no one noticed the ex post facto issue at the 2004 hearing, “the [2004] plea was entered into as a result of mistake or irregularity on the part of the State, the defense, and the Court.” In his 2009 motion he stated as follows: “Three things occurred — withdrawal of the guilty plea, entry of a second guilty plea to a different crime, and waiver of the right to seek expungement — all because of a mistake or [ir]regularity when the State, the Court, and defense counsel all failed to properly apply the Ex Post Facto Clauses of the federal and state constitutions. This occurred because they all failed to appreciate that the ‘no PBJ’ provision could not be constitutionally applied to Mr. Bereska. This Court should exercise jurisdiction should, because of the mistake and irregularity, and sign an Order, permitting Mr. Bereska to seek expungement.” Appellant’s fraud and mistake theories were argued more fully in his initial, 2007 motion.

He argued as follows: “Unlike in Minger [v. State, 157 Md.App. 157 , 849 A.2d 1058 (2004) ], in which the court exercised jurisdiction when it had no jurisdiction, in Mr. Bereska’s case, the Court believed it had no jurisdiction when it did have jurisdiction. The Court mistakenly believed that it lacked jurisdiction to grant a PBJ under Mr. Bereska’s original plea, causing him to -withdraw his original plea and enter into a more restric ⁶⁷⁷ tive plea. A mistake occurred within the meaning of Md. Rules 4 — 331(b) and 4 — 345(b), and this Court has the power to correct the mistake by correcting its judgment. Alternatively, the withdrawal of Mr. Bereska’s original plea and entry of a new, more restrictive plea, based on mutual mistake, constituted an irregularity within the meaning of Md. Rules 4 — 331(b) and 4-345(b).

In this case, the Court, the State, and the defense ‘ought not’ to have required Mr. Bereska to withdraw his original plea and enter a more restrictive plea in order to make Mr. Bereska eligible for a PBJ, when, in fact, Mr. Bereska was already eligible for PBJ and already had the right to seek expungement under the original plea agreement.” The alternative coram nobis portion of appellant’s 2007 and 2009 motions were based on the argument that appellant had received ineffective assistance of counsel, in that defense counsel had failed to recognize, and press, the ex post facto argument detailed above in advance of the August, 2004 hearing. This ineffective assistance, appellant argued, resulted in the loss of his right to seek expungement of his court record. The circuit court denied appellant’s initial motion on March 12, 2008. In its Order, the circuit court found as follows: “[Tjhat it was the legislature’s clear intent that the statute at issue, Maryland Annotated Code, Criminal Procedure Article § 6 — 220(d)(3), be applied to any defendant not yet convicted at the time the statute became effective.

Thus, this court finds that the statute was appropriately applied to the defendant, and therefore, there was no mistake as to law or fact regarding the defendant’s sentence.... ” Appellant represented to the court that he was not notified of this initial denial of this motion to revise the sentence, and he filed a new motion arguing substantially the same grounds on ⁶⁷⁸ January 22, 2009. 6 The circuit court again denied appellant’s motion on February 24, 2009, stating as follows: “[T]he Court will take no action on the defense Motion as the Court already ruled on the issues raised therein in a previous motion.” Appellant noted an appeal from the denial of this second motion, and raised the following issue before this Court: “Whether the Maryland General Assembly violated the Ex Post Facto clauses of the Maryland and United States Constitutions when it enacted a sentencing law, and applied it retroactively to conduct committed prior to enactment, with the new, more onerous law, prohibiting probation before judgment, whereas the former law authorized probation before judgment?” In March, 2010, this Court directed the Clerk of the Court of Special Appeals to require the parties to answer the question of whether the circuit court had jurisdiction on August 9, 2004, to vacate a guilty plea entered in the circuit court on March 14, 1996. In response, appellant conceded that the circuit court had no jurisdiction to allow him to withdraw his 1996 guilty plea. Appellant stated as follows, in relevant part: “The Circuit Court had no authority under Md. Rule 4-242[ 7 ] to withdraw the plea because (1) the motion to withdraw ⁶⁷⁹ the plea was untimely, and (2) there were no grounds advanced that would have supported withdrawal of the plea. The Court had no authority to withdraw the guilty plea pursuant to the Modification Motion under Md. Rule 4-345(e) because that Rule only permits the Court to modify or reduce a ‘sentence,’ and it does not permit a Circuit Court to reverse or vacate a ‘conviction.’ When a Court lacks authority to act, it cannot acquire authority to act because the parties agree to the Court’s action.

Thus, the consent of the parties could not — and did not — confer authority on the Circuit Court to withdraw Mr. Bereska’s 1996 guilty plea.” From these propositions, appellant prayed that this Court issue an order which “strik[es] the guilty plea that Mr. Beres-ka entered on August 9, 2004,” “reinstates] the guilty plea that Mr. Bereska entered on March 14, 1996,” and which “reinstates] the Motion for Modification or Reduction of Sentence that was [being] held sub curia in 2004.” According to appellant, this Court should then “rul[e], consistent with Mr. Bereska’s argument ... that it would violate the prohibition against ex post facto laws to apply the 1995 ‘no PBJ’ sentencing law, effective October 1, 2005, retroactively....” In other words, appellant requests that this Court undo the effects of the jurisdictionally defective 2004 hearing, and then consider, and credit, appellant’s Ex Post Facto Clause argument. Appellant urges that the trial court should be directed to “enter a probation before judgment without the condition that Mr. Bereska waive his right to expungement of the charges.” The State responded that the circuit court, as a court of general jurisdiction, possessed “fundamental jurisdiction” in this matter, but that the exercise of jurisdiction at the 2004 hearing was improper because the court relied upon Rule 4-345 to allow the withdrawal of a guilty plea. Notwithstanding the error, the State argues that any error in executing the ⁶⁸⁰ plea exchange was merely an improper exercise of its jurisdiction, and not an extrajurisdictional act. Consequently, it is not void as a matter of law.

If the act was merely improper, the State continues, appellant should not prevail, because the circuit court acted not only in the absence of any objection by appellant, but at his behest. Because the court acted within its jurisdiction and because it was acting in favor of appellant, at appellant’s request, this Court should allow the plea exchange to stand, and should deny appellant’s request to strike the “no expungement” condition. Alternatively, the State argues, even if the circuit court acted without jurisdiction, appellant is still not entitled to the relief he seeks. This Court lacks a basis to reinstate appellant’s motion for modification, for several reasons: (1) there is no basis to reinstate his expired motion for modification; (2) there is no basis to rule on the constitutionality vel non of the 1995 amendment to Art. 27, § 641 precluding PBJ for offenses that occurred before the effective date of the amendment; and (3) there is no basis to remand this case with instructions to enter PBJ on the guilty plea.

If this Court finds the circuit court acted without jurisdiction, the State concludes, the proper result is for this Court to remand the matter to the circuit court to reinstate the 1996 guilty plea. Specifically as to appellant’s proposed remedy that this Court reinstate his motion to modify his sentence, the State contends that because appellant’s five-year probation term had expired by the time of the 2004 hearing, there was no sentence remaining to be modified. To complicate matters even further, the State relies on the Court of Appeals’s 2004 amendment to Rule 4-345, which added the limitation to the Rule that a court “may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant.” Md. Rule 4-345(e) (June 2004 Supp.). Applicable Law Under the common law, Maryland courts possessed certain inherent powers over cases, including the authority to modify ⁶⁸¹ or vacate judgments, during the “term of court” in which the case was heard.

Black’s Law Dictionary defines term of court as “[t]he period or session during which a court conducts judicial business.” Black’s Law Dictionary 1609 (9th ed. 2009). In Maryland, at least until 1951, courts had the power to set aside or change their judgments during the term of court. See State v. Butler, 72 Md. 98, 100 , 18 A. 1105 (1890); State v. Robinson, 106 Md.App. 720, 722 , 666 A.2d 909, 910 (1995). Since 1951, the power has been set forth in the Maryland Rules of Practice and Procedure.

The Maryland rule addressing term of court applicable at the time of appellant’s guilty plea was as follows: Rule 1206. Term of Court — Jury Sessions. The courts of the respective counties shall hold terms each year beginning as indicated herein and continuing until the beginning of the next term. The jury sessions shall coincide with the terms of the court, unless otherwise indicated. e.

Calvert County. The third Monday in April and October. The Court of Appeals described the significance of the term of a court as follows: “It is well established and has been the law in this state, from the earliest days, that a court retains power over its own judgments and orders in both civil and criminal cases during the term at which they are entered or made. Seth v. Chamberlaine, 41 Md. 186, 194 [ (1874) ]; State v. Butler, 72 Md. 98 , [100,] 18 A. 1105 [, 1106, (1890) ].

This is also the Federal rule (United States v. Benz, 282 U.S. 304 , 51 S.Ct. 113 , 75 L.Ed. 354 [ (1931) ])....” State ex rel. Czaplinski v. Warden, 196 Md. 654, 657 , 75 A.2d 766, 767 (1950). The United States Supreme Court described term of court as follows: “The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be ‘in the breast ⁶⁸² of the court’ making them, and subject to be amended, modified, or vacated by that court.” Benz, 282 U.S. at 306 , 51 S.Ct. at 113 (internal citation omitted).

The inherent authority of courts to modify or vacate judgments terminated at the end of the term in which the particular judgment was entered. See Greco v. State, 347 Md. 423, 427-28 , 701 A.2d 419, 421 (1997) (stating that the “authority to modify a judgment existed only during the term of court at which the judgment was entered.”). Courts lacked the power to vacate or modify sentences after the term of court, under the rationale that “when a sentence has been passed, and has become enrolled, the jurisdiction of the court is concluded and the court has no further authority.” Czaplinski, 196 Md. at 658 , 75 A.2d at 768 ; see also Thompson v. State, 275 Ga.App. 566 , 621 S.E.2d 475, 477 (2005) (stating that “when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea, the trial court lacks jurisdiction to allow the withdrawal of the plea.”). As Judge J. Dudley Digges wrote for the Court of Appeals in Ayre v. State, 291 Md. 155 , 433 A.2d 1150 (1981): “ ‘[I]n Maryland all judgments are under the control of the court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases.’ Madison v. State, 205 Md. 425, 431 , 109 A.2d 96, 99 (1954).

In the absence of a statute or rule either modifying or rescinding this power, such authority survives.” Id. at 159-60, 433 A.2d at 1153 . The power of the court to revise sentences has been modified by the rule of the Court of Appeals, which provides that in all criminal cases, except cases involving bastardy, desertion, and non-support, the court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of appeal. See Rule 4-345. ⁶⁸³ Coram nobis, a civil matter, independent of the underlying action from which it arose, is available without limitation of time or terms