Bodeau v. State

Edward Andre Bodeau v. State of Maryland, No. 1365, September Term 2019 Opinion by Kehoe, J. PETITION FOR WRIT OF ERROR CORAM NOBIS — SCOPE A petition for a writ of error coram nobis is an equitable action by which the petitioner can challenge a conviction based on constitutional, jurisdictional, or fundamental grounds in order to escape the collateral consequences of an allegedly wrongful conviction after having discharged the sentence for that conviction. CORAM NOBIS — LACHES Because a coram nobis proceeding is equitable in nature, the doctrine of laches may be asserted as a defense. If the court concludes that the petitioner has unreasonably delayed in bringing the petition, and the delay has prejudiced the non-moving party, then the court may deny relief. Because laches is an affirmative defense, the party asserting it must prove both unreasonable delay and prejudice by a preponderance of the evidence.

CORAM NOBIS — LACHES — DELAY AND UNREASONABLE DELAY Passage of time by itself does not constitute laches. A party asserting laches as a defense must demonstrate that the delay was unreasonable. The first step in determining when delay becomes unreasonable is to identify when the petitioner’s claim became ripe, that is, when (i) the petitioner knew or should have known of the trial error, and (ii) a judicial remedy existed to rectify the error. CORAM NOBIS — CHALLENGE TO A CONVICTION BASED UPON AN INSTRUCTION THAT THE JURY WAS THE JUDGE OF THE LAW AS WELL AS THE FACTS In Edward Bodeau’s 1979 trial on a charge of daytime burglary, the court told the jurors that its instructions were “advisory” and “not binding.” Bodeau did not object to this instruction.

He filed an appeal and later a petition for post-conviction relief, both of which were unsuccessful. In neither of these proceedings did he challenge the jury instructions. In his coram nobis petition, Bodeau asserted that the jury as judge of the law instructions rendered his conviction constitutionally invalid. In the context of this case, such a claim became ripe only after: (1) the Court of Appeals held that, at least as to “bedrock characteristics” of the American notion of a fair trial, such an instruction was unconstitutional (Montgomery v. State, 292 Md. 84, 91 (1981); (2) the Court of Appeals held that a coram nobis petition could address errors of law as well as errors of fact (Skok v. State, 361 Md. 52, 67 (2000); and (3) the Court of Appeals held that such a claim could be asserted in a coram nobis action even if there was no objection at trial (Unger v. State, 427 Md. 383, 391 (2012).

Bodeau’s claim became ripe at some time after the opinion of the Court of Appeals in Unger was filed. The forty-odd years between the time of Bodeau’s conviction and the filing of Unger was delay. In the context of the appellate arguments in this case, the unreasonable delay calendar began to run at some point during the seven years that passed after Unger was filed and before Bodeau filed his coram nobis petition. CORAM NOBIS — LACHES — DELAY AND PREJUDICE In the present case, the State demonstrated that its ability to retry Bodeau on the 1971 charges was prejudiced by the passage of time.

But the State failed to show that any of this prejudice occurred after the date that the Unger opinion was filed. Additionally, the State failed to show that it had made any effort to locate its most important witness, a co- defendant who testified against Bodeau. The circuit court therefore erred when it denied the petition on the basis of laches. 2 Circuit Court for Montgomery County Case No. 11896C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1365 September Term, 2019 ____________________________________ EDWARD ANDRE BODEAU v. STATE OF MARYLAND ____________________________________ Kehoe, Leahy, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. ____________________________________ Opinion by Kehoe, J. ____________________________________ Filed: October 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-10-01 13:35-04:00 Suzanne C. Johnson, Clerk Contents Introduction Background Analysis A. The State’s laches defense 1.

The writ of error coram nobis 2. The laches defense 3. The standard of review 4. The challenged laches conclusions a.

Unreasonable delay b. Prejudice to the State 5. Bodeau’s add-on arguments B. Whether to reach the merits of Bodeau’s petition C. The State’s add-on argument Conclusion Introduction Almost five decades after his 1971 conviction for daytime burglary, appellant Edward Bodeau sought to vacate the conviction by filing a petition for a writ of error coram nobis in the Circuit Court for Montgomery County. He asserted that the daytime-burglary conviction was constitutionally infirm, obtained after the trial court explained to the jury that its instructions on applicable legal principles were “advisory only.” Bodeau also alleged that even though he had long since served his sentence for the 1971 conviction, he was suffering collateral consequences: The conviction had been used as a predicate offense for the mandatory life-without-parole sentence that he has been serving since he was convicted of armed robbery in 1989.

After a hearing, the circuit court denied Bodeau’s coram nobis petition. The court’s decision was not based on the petition’s merits. Instead, the court ruled that coram nobis relief was barred by the equitable doctrine of laches—that Bodeau had unreasonably delayed in bringing his challenge to the advisory-only instructions, prejudicing the State’s ability to reprosecute Bodeau for the daytime burglary should a new trial be awarded. Bodeau’s appeal asks us to decide whether the circuit court erred in denying his coram nobis petition on laches grounds.

In concluding that the court did err, we add a footnote to the “tortured history” of advisory-only instructions in Maryland. State v. Adams-Bey, 449 Md. 690, 695 (2016). We address the extent to which a petitioner in Bodeau’s situation can be said to have unreasonably delayed in challenging his conviction before the Court of Appeals held in Unger v. State, 427 Md. 383 (2012), that a failure to have objected to advisory-only instructions in a pre-1981 criminal trial would not amount to a waiver of the issue. We will hold that Bodeau’s failure to file a petition for a writ of error coram nobis was not unreasonable until, at the earliest, Unger was filed.

It was only then that the Court of Appeals held that a failure to have objected to advisory-only instructions in a pre-1981 criminal trial did not amount to a waiver of the issue. This was critical for Bodeau because his 1971 trial counsel had not objected to the advisory only instruction. We will reverse the circuit court’s judgment and remand the case for further proceedings. -2- Background Bodeau’s life sentence without parole In August 1971, a Montgomery County jury tried Bodeau on charges of daytime burglary and theft of property valued at $100 or more. At the time, daytime burglary (or housebreaking) was considered a crime of violence in Maryland.1 Before sending the jury to deliberate, the trial court told the jurors that, under Maryland’s constitution, they were “the sole judges of the law” and that, accordingly, its instructions were “advisory only” and “not binding.” The court then instructed the jury on several legal principles, including the applicable burden of proof and the elements required to meet that burden for each of the offenses charged.

Bodeau did not object to any of these instructions. The jury convicted Bodeau on both counts, and the court sentenced him to concurrent seven-year terms of incarceration for each offense. Bodeau unsuccessfully appealed his convictions to this Court, and the Court of Appeals denied his petition for a writ of certiorari. Bodeau’s subsequent petition for post-conviction relief was also denied.

None 1 Daytime burglary was considered a “crime of violence” at the time of Bodeau’s 1989 sentencing. See Md. Code (1957, repl. vol. 1992), art. 27, § 643B(b) (defining “crime of violence” to include “daytime housebreaking”). In 1994, the General Assembly declassified daytime burglary as a crime of violence, but this change applied only prospectively to those sentenced after the statute was amended. See 1994 Md. Laws ch. 712 (amending § 643B by “deleting burglary and daytime housebreaking from the list of offenses that constitute crimes of violence for the purpose of certain mandatory minimum sentences,” but also noting that the change “shall apply prospectively only to defendants who are sentenced after the effective date of this Act”). -3- of Bodeau’s contentions in either proceeding were based on the trial court’s advisory-only instructions.

Eighteen years later, in November 1989, Bodeau faced another Montgomery County jury. This time, he was convicted of armed robbery. The prosecution sought a sentence of life imprisonment without the possibility of parole. This sentence was mandated by a four- strikes statute, Md. Code (1957, repl. vol. 1992), art. 27, § 643B(b),2 which then provided: Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole.

Regardless of any other law to the contrary, the provisions of this section are mandatory. At the time of his 1989 sentencing, the State asserted that Bodeau had been convicted of seven at least arguably predicate offenses for the purposes of § 643B(b).3 There were 2 The current version of the Maryland Code contains a substantially similar four-strikes law. See Md. Code, § 14-101(b)(1) of the Criminal Law Article (“Except as provided in subsection (f) of this section, on conviction for a fourth time of a crime of violence, a person who has served three separate terms of confinement in a correctional facility as a result of three separate convictions of any crime of violence shall be sentenced to life imprisonment without the possibility of parole.”); id. § 14-101(b)(2) (“Notwithstanding any other law, the provisions of this subsection are mandatory.”). The current version of the statute also provides that, except for certain registered sex offenders, a person given a mandatory life sentence for crimes of violence “may petition for and be granted parole” if the person is at least sixty years old and has served at least fifteen years of the life sentence imposed.

Id. § 14-101(f). 3 His other convictions included two convictions for burglary (September 7, 1973, in Fairfax County, Virginia); a conviction for breaking and entering (January 31, 1974, in Alexandria, Virginia); a conviction for armed bank robbery (March 26, 1976, in the U.S. District Court for the Eastern District of Virginia); a conviction for robbery (August 26, 1976, in Fairfax County, Virginia); and a conviction for armed robbery and use of a handgun (December 15, 1976, in Montgomery County, Maryland). -4- two issues before the sentencing court, neither of which appears to have been fully resolved. The first was the degree to which Bodeau’s federal and Virginia convictions could be treated as predicate offenses in light of differences between the elements of the offenses as established by the laws of those jurisdictions, and the elements of the offenses that were then considered “crimes of violence” for purposes of Art. 27, § 643B(b). The second was whether Bodeau had actually served separate terms of confinement for each predicate conviction. Ultimately, the sentencing court concluded that there were at least three predicate convictions (one being the 1971 daytime burglary conviction), and that Bodeau had served separate terms for each of them.

On this basis, Bodeau received a life sentence without the possibility of parole. Bodeau’s petition for a writ of error coram nobis Almost thirty years into his life sentence, on January 25, 2019, Bodeau filed a petition for a writ of error coram nobis in the Circuit Court for Montgomery County seeking to invalidate his 1971 daytime-burglary conviction. Bodeau contended that the conviction was constitutionally infirm because the trial judge had given the jury improper “advisory only” instructions. See Stevenson v. State, 289 Md. 167, 180 (1980) (explaining that, under Article 23 of the Maryland Declaration of Rights, the jury “is the final arbiter of disputes as to the substantive law of the crime, as well as the legal effect of the evidence,” but that “all other aspects of law . . . are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body”); Montgomery v. State, 292 Md. 84, 91 (1981) (holding, in light of Stevenson, that the trial court erred in instructing the jury that its instructions on the law were “advisory” and that the jury “could pay no attention” to them). -5- The instructional error, Bodeau contended, was structural and therefore not subject to harmless-error analysis, State v. Waine, 444 Md. 692, 705 (2015); was preserved despite his failure to object, Unger v. State, 427 Md. 383, 391 (2012); and, at least in the context of post-conviction relief, was a “constitutional infirmity . . . of the sort that will always invalidate the conviction,” State v. Adams-Bey, 449 Md. 690, 708 (2016) (cleaned up).

Bodeau claimed he was entitled to coram nobis relief because, despite having fully served his sentence for the daytime-burglary conviction, he continued to suffer collateral consequences. As noted above, the 1971 conviction was used by the State to justify the mandatory life-without-parole sentence he received for his 1989 armed robbery conviction. Without the 1971 conviction, Bodeau asserted, he would not have been subject to the four- strikes statute at his 1989 sentencing for armed robbery and instead would have faced a maximum punishment of twenty years in prison without the possibility of parole. In its answer to Bodeau’s petition, the State did not contest the propriety of the advisory-only instructions given at the 1971 daytime-burglary trial.

Nevertheless, the State argued three reasons why Bodeau’s coram nobis petition should be denied. First, said the State, Bodeau would lose on the merits: He could not establish that he was “suddenly” facing “significant collateral consequences” as a result of the 1971 conviction. His enhanced life-without-parole sentence was a “foreseeable and predictable criminal punishment.” Second, the State contended that even without the 1971 conviction for daytime burglary, “the State would still be able to establish that other convictions could serve as the predicate for the enhanced sentence.” Third, the State asserted that, even if Bodeau could make out a prima facie case for coram nobis relief, relief was barred by the -6- equitable doctrine of laches. According to the State, Bodeau had unreasonably delayed in bringing his challenge to the advisory-only instructions, and this delay had impeded the State’s ability to reprosecute him for the daytime burglary charge should a new trial be awarded.4 The circuit court held a two-day hearing on Bodeau’s petition in May 2019.

The parties elaborated on the arguments made in their filings, focusing principally on the laches defense raised by the State. Just as they do in this appeal, the parties disputed when Bodeau began to “delay” in asserting his rights (as early as 1971 or as late as 2012) and whether that delay (as long as forty-eight years or as short as seven years) was “unreasonable.” The parties also disputed the degree to which any unreasonable delay by Bodeau had prejudiced the State’s ability to reprosecute him should a new trial be awarded. Several facts relevant to the prejudice question were established at this hearing through proffers by the State that were not challenged by Bodeau: 1. Two civilian witnesses were called at Bodeau’s daytime-burglary trial: the homeowner–victim and a neighbor–witness.

At the time of the May 2019 hearing, the homeowner–victim was ninety-four years old, still living at the same address but with no memory of the events surrounding the burglary. The neighbor–witness died in 2003. 2. Bodeau’s co-defendant testified against him at trial. The State did not address the testifying co-defendant’s availability at the May 2019 hearing before the circuit court. 4 In passing, the State made an additional argument in its answer.

Because the court file for Bodeau’s 1971 trial had been destroyed, the State said, Bodeau “could not meet his burden of refuting the presumption of regularity attendant to his conviction much less of establishing the error he claimed.” The State does not make this argument on appeal. -7- 3. The detective who had handled the case and testified at Bodeau’s 1971 trial had retired and—at the time of the hearing—was living in Rehobeth Beach, Delaware. The State’s attempts to reach the officer by email were unsuccessful. The State had not subpoenaed the officer to see what he recalled of the case. 4.

The original court file for the case was destroyed in 2006. The records were shredded according to standard records-retention protocol. The docket entries from the case were still available to the State, however. 5. Neither the State’s Attorney’s office nor the investigating police department still had a file on the case.

All physical evidence that would have been stored with these files was also unavailable. There was no testimony or proffer as to when these records were rendered unavailable. 6. A transcript from the 1971 trial exists.5 On August 13, 2019, on the basis of the parties’ arguments and the facts established at the hearing, the circuit court denied Bodeau’s coram nobis petition with a written opinion and order. The court concluded that the relief Bodeau sought was barred by the doctrine of laches: First, [Bodeau] unnecessarily waited seven years from the Unger [v. State, 427 Md. 383 (2012),] decision to file his Petition for Writ of Error Coram Nobis . . . . [T]his is an unreasonable delay.

The fact that [Bodeau] would 5 The State observes on appeal—but, so far as we can tell, did not argue to the circuit court—that the trial transcript is “copied sideways and practically illegible.” According to the State’s brief, “it [would be] reasonable to infer that the chance of unearthing a legible version of the transcript decreased with every passing year.” We believe that whether such an inference is reasonable is initially a matter for the circuit court. With that said, we point out that the State’s premise may not be correct. Part of the transcript submitted to the circuit court at the coram nobis hearing was copied sideways. But the record transmitted to us by the Circuit Court for Montgomery County Clerk’s Office also contains what appears to be a full-sized photocopy of the original typed transcript of Bodeau’s trial.

It was certainly not photocopied sideways. Whether either transcript could fairly be characterized as “practically illegible” is not before us. -8- have been entitled to a new trial under Unger was made very clear in 2012 when the Court of Appeals handed down [its] ruling. [Bodeau] knew or should have known that this ruling would have impacted his circumstances when the Unger decision was published in 2012. Second, the State met [its] preponderance of the evidence burden with compelling evidence that one of its key witnesses in this prosecution is deceased and another is incapacitated. Without these key witnesses, the State is most certainly put in a “less favorable position” to reprosecute [Bodeau].

Third, just like in Jones [v. State, 445 Md. 324 (2015),] the State would be unfairly prejudiced if they would have to rely on the transcripts of the original trial to reprosecute [Bodeau]. Lastly, the State provided evidence that both the original court and state files for this case were destroyed years ago. This, too, would greatly prejudice the State because important information that it relied on for trial [is] no longer available for the State to reprosecute [Bodeau]. (Cleaned up.) Bodeau timely appealed the denial of his coram nobis petition to this Court.

Analysis A. The State’s laches defense In his appeal, Bodeau contends that the circuit court erred in concluding that the doctrine of laches barred his coram nobis petition. For several reasons, he says, the defense does not apply under the facts of this case. First, Bodeau maintains that any calculation of delay in filing for coram nobis relief must begin after the Court of Appeals’ decision in Unger v. State, 427 Md. 383 (2012). Until Unger was decided, Bodeau contends, any attempt by him to seek coram nobis relief would have been futile because his failure to object to the advisory-only instructions at his 1971 trial would have amounted to a waiver of the issue.

It was only after Unger was decided, Bodeau argues, that his claim to coram nobis relief became “ripe.” Measured from the time of the Unger decision, Bodeau says, his delay in seeking coram nobis relief could -9- not be considered “unreasonable.” Because the litigants involved in Unger and its progeny were seeking post-conviction relief, Bodeau says he could have reasonably concluded that those decisions would not have applied to his case, “even if he had read the Unger decision on the day it came out.”6 Second, Bodeau argues that even assuming he delayed unreasonably in filing his coram nobis petition, the State failed to establish that it was prejudiced by this delay. Although the 2003 death of the neighbor–witness and the fading memory of the ninety-four-year-old homeowner–victim would impede the State’s ability to retry Bodeau for the daytime burglary, these events could not fairly be attributed to his unreasonable delay in seeking coram nobis relief. The neighbor–witness died before Unger was decided, and the State presented no evidence suggesting the homeowner–victim’s memory diminished between 2012 and the date Bodeau filed his coram nobis petition. The State also did not establish the unavailability of two other critical witnesses: the co-defendant who testified against Bodeau and the detective, since retired, who had handled the case.

Even without these witnesses, Bodeau argues, the State has trial transcripts that could be used as a substitute for live witness testimony. Additionally, says Bodeau, the State “did not pinpoint what ‘important information’ was lost” when the original court and prosecution files for the case were destroyed. 6 At oral argument, Bodeau’s counsel also asserted that it took the Office of the Public Defender some time to identify potential coram nobis claimants who, after Unger, could make unpreserved challenges to advisory-only instructions given at their jury trials. We will not address the merits of this contention for the reasons explained in footnote 15 of this opinion. - 10 - Third, as we understand his argument, Bodeau suggests that the circuit court’s prejudice conclusions were erroneous because the State could not establish a “compelling interest” in retrying him to ensure that his 1989 life-without-parole sentence for armed robbery remained intact. Specifically, he says, the State “did not confirm that it would try . . .

Bodeau again if his 1971 convictions were reversed” and “did not argue why it still had a compelling interest in keeping . . . Bodeau, who is 66 years old, behind bars for the rest of his life.” Finally, apart from his unreasonable-delay and prejudice arguments, Bodeau suggests that “the merits of [his] coram nobis petition also strongly weigh against applying the doctrine of laches.” He emphasizes that the instructional error alleged was structural—not subject to harmless-error analysis—and “of the sort that will always invalidate the conviction,” State v. Adams-Bey, 449 Md. 690, 708 (2016)—at least in post-conviction proceedings. If Bodeau were still serving his sentence for daytime burglary, he would undoubtedly be entitled to a new trial through post-conviction-relief proceedings. Fairness, Bodeau maintains, requires that Bodeau receive the same relief in the coram nobis context.

For its part, the State argues that the circuit court correctly determined that laches barred coram nobis relief. If it is assumed that the Court of Appeals’ decision in Unger marks the beginning of Bodeau’s delay in challenging the advisory-only instructions, the State contends, then that seven-year delay was unreasonable. This is because “Bodeau advances no reason for the . . . delay, although even under his logic, the day Unger was - 11 - decided, he had incentive to make the claim he advances now.”7 The State says it was prejudiced by this delay for most of the reasons noted by the circuit court but concedes that “if the length of delay is measured from the 2012 Unger decision, the 2003 death of . . . a witness to the burglary . . . should not be attributed to Bodeau for the purposes of determining prejudice to the State.” The State is not satisfied, however, that Bodeau’s delay in making his challenge to the advisory-only instructions actually began with the 2012 decision in Unger. Instead, it argues that the correct starting point for measuring delay was the Court of Appeals’ decision in Stevenson v. State, 289 Md. 167 (1980), for it was in that case, the State says, the Court of Appeals first held that “instructions that did not clearly tell the jury that the court’s instructions on the law were binding were inconsistent with Article 23 of the Maryland Constitution.” If not in 1980, the State argues, then Bodeau’s delay began in 2000 when a federal appellate court held that an advisory-only instruction similar to the instruction given at Bodeau’s 1971 trial violated constitutional due process.

See Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 2000). According to the State, this put Bodeau “on notice . . . of his potential cause of action to challenge the 1971 conviction.” A determination that either of these cases marked the starting point for the calculation of Bodeau’s delay “would shear Bodeau’s arguments concerning prejudice of force.” This is because, the State notes, the neighbor–witness did not die until 2003, the court file for the 7 As we note below, it is the party asserting the laches defense who bears the burden of proving, by a preponderance of the evidence, that the delay in making a claim was unreasonable and that this unreasonable delay was prejudicial. - 12 - case was not destroyed until 2006, and it would be “reasonable to infer that [the homeowner–victim’s] memory was better several decades ago than it is today.” Finally, the State takes issue with Bodeau’s suggestion that, to establish prejudice, it needed to show some “compelling interest” in reprosecuting him that would outweigh his interest in challenging the concededly unconstitutional advisory-only instructions. “[I]n evaluating the prejudice that may give rise to a successful defense of laches,” says the State, “there simply needs to be a showing that the party asserting the defense . . . would be at a disadvantage in correcting the alleged error.” The State argues that a laches defense does not fail, rendering “old claims . . . actionable,” simply because a reprosecution “is not worth the effort.” Whether the State actually plans to retry Bodeau, were his petition granted, “should not enter into the calculus of prejudice.” Even if some balancing of interests were required, the State asserts that it has a “strong interest in ensuring that convictions are legitimate,” “an interest in enforcing its laws,” and “an interest in maintaining finality of convictions that were valid when entered, at least when the State can make the factual showing necessary for laches.” Although we do not adopt wholesale the reasoning of either party, we agree with Bodeau that the circuit court erred in concluding that the laches defense applied in this case. 1. The writ of error coram nobis A common-law writ of error coram nobis is an equitable action by which a petitioner may escape the collateral consequences of an allegedly wrongful conviction after having discharged the sentence for that conviction. Moguel v. State, 184 Md. App. 465 , 471–72 - 13 - (2009); Ruby v. State, 353 Md. 100, 106 (1999); see also Holmes v. State, 401 Md. 429, 475 (2007) (Raker, J., dissenting) (explaining that, like a habeas corpus proceeding or a proceeding under Maryland’s Post Conviction Procedure Act, the writ is used to collaterally challenge a criminal judgment of conviction).

It is a “civil matter procedurally independent of the underlying judgment being contested.” Ruby, 353 Md. at 107 .8 As the Court of Appeals recently summarized the state of the law, a convicted petitioner is entitled to coram nobis relief only if: 1. the petitioner challenges a conviction based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal; 2. the petitioner rebuts the presumption of regularity that attaches to the criminal case; 3. the petitioner faces significant collateral consequences from the conviction; 4. the issue as to the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and 5. the petitioner is not entitled to another statutory or common law remedy (for example, the petitioner cannot be incarcerated in a State prison or on parole or probation, as the petitioner likely could then petition for post- conviction relief). Jones v. State, 445 Md. 324, 338 (2015) (cleaned up and formatting altered). Even when a petitioner meets these prerequisites for coram nobis relief, a writ is appropriately issued only if there are “circumstances compelling such action to achieve justice.” Coleman v. State, 219 Md. App. 339 , 353–54 (2014). 8 The procedural rules for writ of error coram nobis actions are set out in Md. Rules 15-1201 to -1207. - 14 - The scope of the issues that could traditionally be raised in a coram nobis petition was relatively narrow. The writ could be used to attack only convictions that resulted from certain “errors of fact” not litigated at trial but nonetheless were “material to the validity and regularity of the proceedings.” Skok v. State, 361 Md. 52, 67 (2000) (quoting Madison v. State, 205 Md. 425, 432 (1954)).

In 2000, the Court of Appeals expanded the scope of coram nobis relief in Maryland to reach errors of law as well as errors of fact, provided the legal errors are “of a constitutional or fundamental nature.” Id. at 77. This expansion came with an important preservation caveat: The rules of “waiver and final litigation of an issue,” applicable in actions brought under Maryland’s Post Conviction Procedure Act, constrain the right to seek coram nobis relief. Skok, 361 Md. at 79 . Generally, the writ is “allowed without limitation of time.” Madison, 205 Md. at 432 .

But because the ability to grant coram nobis relief “arises out of the court’s equity jurisdiction,” Moguel, 184 Md. App. at 473 , the time-conscious equitable defense of laches applies to coram nobis petitions, Jones, 445 Md. at 343 (“[W]e unequivocally hold that the doctrine of laches may, as an affirmative defense in a coram nobis action, bar an individual’s ability to seek coram nobis relief.”); see also Moguel, 184 Md. App. at 471 (“We hold that the doctrine of laches is a defense to a petition for writ of error coram nobis filed for the purpose of challenging a criminal conviction.”). 2. The laches defense The doctrine of laches is an affirmative equitable defense against “stale” claims, “based upon grounds of sound public policy by discouraging fusty demands for the peace of society.” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451 , 585 - 15 - (2014) (quoting Ross v. State Board of Elections, 387 Md. 649 668 (2005)). Courts have long required “conscience, good faith, and reasonable diligence” of those who appeal to their equitable powers. Nelson v. Hagerstown Bank, 27 Md. 51, 64 (1867) (emphasis in original) (quoting 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America 734 n.1 (Isaac Fletcher Redfield ed., 9th ed. 1866)).

Courts sitting in equity may refuse their aid in cases “where the party has slept upon his rights[] and acquiesced for a great length of time.” Id. The laches defense applies where (1) an “unreasonable delay in the assertion of one party’s rights” (2) “results in prejudice to the opposing party.” Jones v. State, 445 Md. 324, 339 (2015) (cleaned up); see also Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667 (2014) (describing laches as “unreasonable, prejudicial delay in commencing suit” (emphasis added)). As laches is an affirmative defense, the party that asserts it must prove the defense by a preponderance of the evidence. Id. at 339 (citing Lopez v. State, 205 Md. App. 141, 175 (2012)).

The applicability of the laches defense is not determined by reference to any “inflexible rule.” State Center, 438 Md. at 590 (quoting Parker v. Board of Election Supervisors, 230 Md. 126, 130 (1962)). Instead, what amounts to laches—a term derived from “the old French word for laxness or negligence,” Buxton v. Buxton, 363 Md. 634, 645 (2001)— turns on the totality of the circumstances presented by each case. Jones, 445 Md. at 339 . “The passage of time, alone, does not constitute laches but is simply one of the many circumstances from which a determination of what constitutes an unreasonable and unjustifiable delay may be made.” Buxton, 363 Md. at 645 (cleaned up). More than a simple - 16 - accounting of the days, weeks, or years passed since the events giving rise to the action, what matters to courts is the “reasonable diligence” (or lack thereof) demonstrated by the petitioner against whom the defense has been raised.

State Center, 438 Md. at 610 (quoting Hall v. Clagett, 48 Md. 223, 243 (1878)). As the Supreme Court explained in Holmberg v. Armbrecht, 327 U.S. 392 (1946), “laches is not, like limitation, a mere matter of time; but principally a question of the inequity of permitting a claim to be enforced[.]” Id. at 396 (cleaned up). What amounts to prejudice sufficient to sustain a laches defense is more straightforward: “anything that places [the party asserting the defense] in a less favorable position.” Buxton, 363 Md. at 646 (emphasis added) (quoting Parker, 230 Md. at 130–31). Although establishing “some prejudice,” Akin v. Evans, 221 Md. 125, 133 (1959), may not be a particularly high hurdle for the party raising the defense, a showing of prejudice is still an “essential element” of laches, Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 63 (1973).

Without prejudice, even when the party seeking relief has unreasonably delayed in asserting his or her rights, laches will not bar a purely equitable action. Ademiluyi v. Egbuonu, 466 Md. 80, 124 (2019); see also Inlet Associates v. Assateague House Condominium Ass’n, 313 Md. 413, 439 (1988) (“[M]ere delay in bringing an action is not sufficient to constitute laches if the delay has not worked a disadvantage to others.”). - 17 - 3. The standard of review A circuit court’s decision about whether the doctrine of laches bars a petition for coram nobis relief is an evaluative determination9 involving the application of law to fact. Cf.

Anderson v. Great Bay Solar I, LLC, 243 Md. App. 557, 611 (2019) (“[T]he question of whether laches has been established is a mixed question of fact and law.”). We review without deference the court’s conclusions about whether a delay in petitioning for relief was unreasonable and whether the unreasonable delay was prejudicial to the petitioner’s opponent. See Jones, 445 Md. at 337 & n.12 (citing State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451, 585 (2014)). To the extent that the appellant challenges the factual findings upon which these evaluative determinations are based, we review those findings for clear error.

Cunningham v. Feinberg, 441 Md. 310, 322 (2015) (“Appellate courts accept and are bound by findings of fact in the lower court unless they are clearly erroneous.” (cleaned up)). Whether the circuit court has applied the correct legal standard in its laches analysis is a question of law subject to de novo review. State v. Robertson, 463 Md. 342, 351 (2019) (“Errors of law and purely legal questions are reviewed de novo . . . .”). 9 We borrow this term from Randall H. Warner, All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101 , 119–21 (2005). The article provides a sort of taxonomy for the various “mixed questions of law and fact” confronted, in the first instance, by judges and juries, and reviewed with varying degrees of deference by appellate courts.

Id. at 101 . Warner describes “evaluative determinations” as “issues that—like negligence, probable cause, and reasonable suspicion—require a decision-maker to exercise judgment.” Id. at 120 . “Almost any time an issue uses words like ‘reasonable’ or ‘fair,’ it calls for an evaluative determination.” Id. - 18 - 4. The challenged laches conclusions To determine whether the circuit court correctly concluded that the doctrine of laches barred Bodeau’s petition for a writ of error coram nobis, we must answer two questions: Did the State prove, by a preponderance of the evidence, that Bodeau’s delay in petitioning for coram nobis relief was unreasonable? If so, did the State prove, by a preponderance of the evidence, that it was prejudiced by this unreasonable delay?

See Liddy v. Lamone, 398 Md. 233, 244 (2007) (“[L]aches ‘applies when there is an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to the opposing party.’” (quoting Frederick Road Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 117 (2000)). As we noted above, Bodeau contends that the court erred in accepting the State’s laches defense because his delay in filing was not unreasonable and that, alternatively, the State has not proved it was prejudiced by any unreasonable delay. We consider each issue in turn. a. Unreasonable delay To determine whether a delay in seeking coram nobis relief is unreasonable, a court must first decide when that delay began.

It must then ask when, if ever, that delay became unreasonable. Cf. Jones, 445 Md. at 344 (“In assessing whether the party unreasonably delayed before filing, the court first ascertains the length of the delay, then decides whether the delay was unreasonable. . . . Thus, a court’s first task is to determine when the delay began.”).

Outside the context of coram nobis petitions, courts assessing delay often ask when a particular claim—the claim against which the laches defense has been raised—accrued or - 19 - became “ripe.” See, e.g., State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451, 590 (2014) (“In determining whether a delay is unreasonable, we must analyze [first] when, if ever, the claim became ripe . . . .”); see