Coleman v. State

³⁴² KRAUSER, C.J. In 1999, Orlando Ray Coleman, appellant, pleaded guilty, in the Circuit Court for Anne Arundel County, to possession with intent to distribute cocaine. That court accepted the plea, found Coleman guilty, and sentenced him to a term of five years’ imprisonment, with all but ten days suspended, to be followed by a period of five years of supervised probation. Twelve years later, Coleman filed a petition for writ of error coram nobis in the circuit court. In that petition, he asserted, for the first time, that his 1999 guilty plea was defective because, when he entered the plea, he was not advised of the maximum sentence he was facing or of the nature or elements of possession with intent to distribute.

The denial of that petition by the Anne Arundel circuit court prompted this appeal. BACKGROUND 1998-1999 Proceedings In February 1998, Coleman was arrested and charged with possession with intent to distribute a controlled dangerous substance (crack cocaine), possession of a controlled dangerous substance (crack cocaine), and with resisting arrest. That same month, the Commissioner filed a report with the District Court of Maryland for Anne Arundel County certifying that, when Coleman appeared for his initial appearance, the Commissioner informed him “of each offense with which he [was] charged and of the allowable penalties, including mandatory penalties, if any.” In April 1998, the case was transferred from the District Court to the Circuit Court for Anne Arundel County. The “Information” filed in the circuit court charged Coleman with the same offenses that were set forth in the Statement of Charges that had been filed in the District Court.

This charging document also specifically noted that the penalty for possession with intent to distribute was “20yr/$25,000.” ³⁴³ On January 21, 1999, Coleman appeared in the Anne Arun-del County circuit court with counsel for a plea hearing. 1 At that hearing, the State informed the court that, pursuant to a plea agreement, Coleman would plead guilty to possession with intent to distribute cocaine and that, upon acceptance of that plea, the State would nol pros the remaining charges. The State further advised the court that it would be recommending a “lengthy sentence, the majority of it being suspended with only a small portion to be served at the Anne Arundel County Detention Center.” It then added that, because defense counsel had “done a lot of work in assisting Mr. Coleman in getting into a college on the Eastern Shore, as part of the [sentencing] recommendation” it “would be requesting that as part of the probation he complete the SAT’s.” Moreover, it would not object if Coleman’s probation were “to be transferred to the Eastern Shore” to accommodate his college schedule. The court elicited from Coleman that he was then 19 years old, a high school graduate, and he was not under the influence of any drugs or medicine which might affect his understanding of the court proceedings that day. The court confirmed that Coleman understood the terms of the plea agreement, as reflected in the following exchange: THE COURT: All right, sir, my understanding of the agreement that you made with the State as expressed by the State’s Attorney was, that you would plead guilty to Count Number 1, which I understand to be possession with intent to distribute and the drug is cocaine.

That the State would Nolle Pros, which is the same thing as dismissing any remaining counts in the indictment or information. That the State is affirmatively recommending that you receive a lengthy jail sentence, mostly suspended and any unsuspended portion will be spent in the Anne Arundel County Detention Center. That you be placed on a ³⁴⁴ period of supervised probation and the State requests that I order you to take your SAT Exam. Is that your understanding of the plea agreement, sir?

COLEMAN: Yes. THE COURT: Do you understand that the Court is not bound by this recommendation made by the State and that the matters of sentencing and probation are completely up to the Court? COLEMAN: Yes. After ensuring that Coleman understood the rights he would be waiving by entering a guilty plea, the circuit court specifically advised him with respect to his appellate rights, that “[t]he only thing that you would be able to do is file a motion for leave to appeal and it will be up to the Appellate Court as to whether they wish to grant you the right of appeal.” When asked if he understood that advisement, Coleman indicated that he did and then, when asked if he had any questions about his appellate rights, he responded that he did not.

As the court’s examination of Coleman progressed, it asked him whether he had “had time to talk” with his attorney and whether he was “satisfied with the services” rendered by his counsel. Coleman replied: “Yes.” Upon completion of its examination, the court concluded that Coleman was entering his plea knowingly and voluntarily. The State then proffered the following factual summary in support of that plea: [Ojfficers of the Annapolis City Police Department would have been called to testify. The sum and substance of their testimony would have been that on February 19th of 1998, Officers Amoya (phonetic), Lowe (phonetic) and Bristo (phonetic) were dispatched to 708 New Town Drive in Annapolis, Anne Arundel County, in reference to a report of subject in the area involved in controlled dangerous substance activity. ³⁴⁵ When the officers arrived they were in marked vehicle and uniform.

Officer Amoya observed three subjects in the area. Officer Amoya got out of his vehicle [and] he began to approach, Defendant Orlando Ray Coleman, seated to the left of counsel in the navy blue sweatshirt jacket. Mr. Coleman, on this date, was wearing blue nylon pants and a white sweatshirt. When the officer got out of his vehicle he asked Mr. Coleman if he lived in the neighborhood, Mr. Coleman said no.

At this time as the officer was walking toward Mr. Coleman, Mr. Coleman had his hand in his back pocket, he retrieved and was handing before the officer actually asked for it, his identification, which was a Maryland driver’s license. The officer made a call on the radio checking the identification. At that time the officer asked Mr. Coleman if he had any guns, drugs, weapons or any contraband on his person. Mr. Coleman indicated that he did not.

The officer then asked for consent to search his person, Mr. Coleman stated, sure, I ain’t got nothing on me. At that point, the officer began a search of the Defendant’s person, when the officer reached into Mr. Coleman’s right front pocket he immediately retrieved a clear sandwich baggie that the officer observed contained numerous pink self sealing baggies that each had off white rock like substance in each of those baggies. The officer had no [sic] removed the bag completely from the pocket and as soon as the officer began pulling on the bag, Mr. Coleman began to pull away from the officer. He began running, a foot chase ensued with Officer Amoya and the other two officers.

Mr. Coleman was apprehended and the bag, sent it to the laboratory for analysis, the analysis revealed that it was, in fact, 83 individual glassine baggies each containing what was analyzed and found to be cocaine, a Schedule 2 controlled dangerous substance. The total weight of the cocaine was 9.9 grams. The State would call experts who’ve been qualified before this court in the area of controlled dangerous substance packaging, street value, distributing methods. That [sic] would testily that that quantity of cocaine, the way it ³⁴⁶ was packaged and the close proximity that it was in and the $217 that Mr. Coleman had in his left pants pocket all would indicate an intent to distribute.

And that quantity of cocaine would have a street value of approximately $1,000. The events occurred in Anne Arundel County. The witnesses would identify the Defendant, Orlando Ray Coleman, standing left of counsel to be the person in possession of that quantity of cocaine. (Emphasis added.) After defense counsel stated that the foregoing factual summary was “a correct informational statement,” the court found Coleman guilty of the charge of possession with intent to distribute cocaine.

When the court turned to the question of sentencing, the State advised that, although Coleman had no “adult criminal convictions,” he had “one juvenile adjudication that did involve a quantity of cocaine[.]” Upon recommending nothing more than that the court “follow[ ] the recommendations,” the State fell silent. Defense counsel next addressed the court. He stated that he had met with Coleman “on a consistent basis” prior to trial and that, when Coleman was “picked up on this particular case, ... he [Coleman] figured he’d get incarcerated for a large period of time — an enormous period of time and for that reason he had just sort of given up the hope of attending college.” Then after outlining, for the court, the steps he had taken to assist Coleman in furthering his education, he urged the court to permit Coleman “this opportunity to pursue that educational goal[.]” The courtroom clerk thereupon noted that the sentencing guidelines in this case were “one to three ... because he [had] the one juvenile record.” The court subsequently sentenced Coleman to a term of five years’ imprisonment. While that term of imprisonment was greater than the sentence recommended by the guidelines, “because of the quantity of cocaine in this case,” the court suspended all but ten days of that sentence and imposed a five-year period of supervised probation upon release. ³⁴⁷ In advising Coleman of his post-trial rights, the court informed him that he had “the right to ask for leave to appeal” and that he would have to do so “in writing within the next 30 days.” Coleman, nonetheless, never filed an application for leave to appeal nor did he ever file a petition for post-conviction relief. 2 Petition for Coram Nobis Relief More than twelve years after pleading guilty in the Anne Arundel County circuit court to possession with intent to distribute cocaine, Coleman pleaded guilty in the United States District Court for the District of Maryland, in 2011, to possession with intent to distribute heroin.

Because of his 1999 Maryland state drug distribution conviction, Coleman believed he was subject to an enhanced sentence as a “career offender,” 3 and, citing those grounds, he filed a petition for writ of error coram nobis in the Anne Arundel County circuit court. In that petition, he challenged, for the first time, the validity of his 1999 state guilty plea, 4 claiming that his plea was not entered knowingly or voluntarily because, when he entered that plea, he was not advised of the maximum penalty he was facing nor informed of the elements and nature of the offense to which he was pleading guilty. ³⁴⁸ He further asserted that he did not “knowingly and intelligently” waive his right to file a petition for coram nobis relief and that “any failure on his part to pursue this claim earlier [was] excused by special circumstances.” 5 Discounting the circuit court’s advisement regarding his appeal rights, he maintained that that advisement was “inadequate to convey even the rudiments of perfecting an application for leave to appeal under Maryland Rule 8-204” because, among other things, the court did not inform him “where or in which court the application must be filed” and did not specifically inform him that he “could challenge his conviction as well as his sentence.” In its opposition to the petition, the State asserted that Coleman had waived his right to file a petition for writ of error coram nobis by failing to file an application for leave to appeal and that there were no “special circumstances” excusing his failure to do so. The State also maintained that Coleman’s guilty plea was lawfully entered. The coram nobis court ultimately denied the petition, without a hearing, see Md. Rule 15-1206(a), but issued a thirteen page “Statement of Reasons” for its decision.

See Md. Rule 15-1207(a) (the court shall prepare a statement setting forth each ground upon which the petition is based and the court’s ruling with respect to each ground). The court explained that Coleman had waived his right to file a petition for coram nobis relief because he had not filed an application for leave to appeal following his conviction and that there were no “special circumstances” excusing that omission. The coram nobis court further stated that, even if Coleman had not waived his right to file such a petition, his claim was without merit. Relying upon State v. King, 71 Md.App. 229 , ³⁴⁹ 233, 524 A.2d 807 (1987), which held, among other things, that “it is not reversible error to fail to advise the accused of the statutory maximum sentence he or she might have received” when the sentence actually imposed pursuant to a plea bargain “is well below the statutory maximum and the accused is informed as to the precise sentence he or she will receive,” the coram nobis court explained that the sentence Coleman received was “exactly what he [had] bargained for” and that any error in not advising him of the maximum possible sentence was “harmless.” And, as for the failure to be advised on the record of the elements and nature of the offense of possession with intent to distribute, the coram nobis court declared that that offense “is so simple in meaning that it can be readily understood by a lay person.” In response to that decision, Coleman noted this appeal.

QUESTIONS PRESENTED Coleman presents two questions for our review: I. Does the enactment of Chapter 437, Acts of 2012 (codified as Maryland Code 2001, 2008 Repl.Vol.2012 Supp.) Criminal Procedure Article § 8-401 bar a determination that Appellant waived his right to challenge his conviction by writ of error coram nobis?

II

Did the trial court err in determining that Appellant’s plea of guilty was knowingly and voluntarily entered, with understanding of the nature of the charge and the consequences of the plea? DISCUSSION Waiver In Holmes v. State, 401 Md. 429 , 932 A.2d 698 (2007), the Court of Appeals held that, if “an individual who pleads guilty, having been informed of his right to file an application for leave to appeal from his conviction and sentence, does not file such an application for leave to appeal, a rebuttable presumption arises that he has waived the right to challenge his conviction in a subsequent coram nobis proceeding.” Id. ³⁵⁰ at 445-446, 932 A.2d 698 . In 2012, the General Assembly, in an apparent reaction to Holmes , enacted § 8-401 of the Criminal Procedure Article of the Maryland Code (2008 Repl.Vol., 2013 Supp.). It provides: “The failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” This law became effective October 1, 2012.

Although Crim. Proc., § 8-401 became effective after he filed his petition for writ of error coram nobis, Coleman maintains that it applies retroactively to his case. We addressed this issue in Graves v. State, 215 Md.App. 339 , 81 A.3d 516 (2013), cert. granted, 437 Md. 637 , 89 A.3d 1104 (2014), and concluded that, because Crim. Proc., § 8-401, was “both procedural and remedial in nature,” it does, indeed, “operate retroactively[.]” Id. at 351-352, 81 A.3d 516 .

And thus, Graves did not waive his right to petition for coram nobis relief “by failing to challenge his guilty plea in an application for leave to appeal.” Id. at 352 , 81 A.3d 516 . As Coleman is in precisely the same position, the same is true here. 6 Coleman did not waive his right to seek coram nobis relief by not filing an application for leave to appeal following his 1999 conviction and sentence. The State also asserts that Coleman waived his right to coram nobis relief by failing to challenge the validity of his guilty plea in a post-conviction proceeding. The State, however, did not raise that issue below, and, thus, it is not properly before us.

Id.; Md. Rule 8-131 (a) (An appellate court ordinarily will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court.”). The Merits First, Coleman claims that his guilty plea was not entered knowingly or voluntarily, noting that the record of the plea proceeding does not reflect that he was ever advised of the maximum penalty he was facing. He points out that a ³⁵¹ conviction for possession with intent to distribute entailed, at that time, a maximum sentence of twenty years’ imprisonment, yet “no numbers were utilized at all,” he stresses, “in describing the State’s recommendation or the length of the sentence that would or could be imposed.” Relying on Bryant v. State, 47 Md.App. 551 , 424 A.2d 1115 (1981), that was reversible error, claims Coleman. In Bryant , the defendant pleaded guilty