Graves v. State

GRAEFF, J. On March 10, 1998, Gregory Graves, appellant, pleaded guilty in the Circuit Court for Prince George’s County to one count of robbery with a deadly weapon, Case Number 97-1476B, and two counts of use of a handgun in the commission of a felony or crime of violence, Case Numbers 97-1468B and 97-1477B. The court sentenced appellant to concurrent 20 year terms for each count, with all but five years suspended, followed by five years of probation. On October 26, 2011, appellant filed a Petition for Writ of Error Coram Nobis, alleging that the convictions subjected him to a potentially greater sentence in pending federal court charges. The circuit court granted appellant’s petition with respect to the robbery conviction and his handgun conviction in Case Number 97-1477B.

It denied, however, his petition with respect to the handgun conviction in Case Number 97-1468B. On appeal from the denial of his petition with respect to Case Number 97-1468B, appellant presents three questions for our review, 1 which we have reordered, reworded, and ³⁴³ consolidated into the following questions 2 : 1. Did the circuit court err in finding that appellant waived his right to coram nobis relief? 2. Did the circuit court err in denying appellant’s petition for writ of error coram nobis because his guilty plea was involuntary?

For the reasons set forth below, we answer both questions in the affirmative, and therefore, we shall reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND At the March 10, 1998, plea hearing, appellant and his co-defendant, Jeffery McDowney, pleaded guilty to several charges involving robberies of restaurants in Prince George’s County. Mr. McDowney entered his pleas prior to appellant. With respect to Case Number 97-1468, 3 the conviction at issue here, which involved a robbery of a Little Caesar’s Pizza restaurant, the prosecutor read the following facts that would have been adduced at trial: [T]he evidence would show that on June 15th, 1997 approximately 2055 hours Mr. McDowney and co-defendant Mr. Graves entered Little Caesar’s Pizza restaurant on Silver ³⁴⁴ Hill Road, Suitland, Prince George’s County, Maryland.

Mr. McDowney threatened to smack one of the employees in the face with a gun if she didn’t shut up. The witness ran to the back of the establishment to call 911. The defendant Mr. McDowney displayed the handgun, and demanded funds from a Tekia Govan. The co-worker Mr. Reid was told to open the register, and he complied.

And Mr. McDowney and Mr. Graves fled with fifty-five dollars in U.S. currency from the restaurant located at the aforesaid address[.] In that case the State would call Vincent Reid and co-employee Tekia Govan, Alphonso Hayes, and Terrell Jones of the Prince George’s County Police Department. After the prosecutor read the facts underlying the co-defendant’s and appellant’s additional pleas, which are not at issue here, the court accepted Mr. McDowney’s pleas and sentenced him. Immediately thereafter, the court began its plea colloquy with appellant. The court asked appellant: “Now, you were here when [the prosecutor] was reading off all the facts of those different individual robberies.

Did you hear what he said?” Appellant responded in the affirmative. Appellant also agreed that he had “talked this matter over” with his attorney, that his attorney had answered all his questions about the case, that he had “read over the sheet that talks about your rights that [he] would have had, had [he] gone to trial,” and that he understood those rights and he was giving them up. Appellant’s attorney then informed the court that appellant would enter pleas in case 97-1468B, Count 2, the handgun charge, 20 years, suspend all but 5. As to case 97-1477B, Count number 2, 20 years, suspend all but 5, another handgun charge.

And as to case 97-1476B, 20 years suspend all but 5. Five years probation, and all the pleas are to run concurrently. Appellant acknowledged that he understood the agreement he was making, that he was making the plea because he “really [was] guilty of the[] charges,” and that no one made any ³⁴⁵ promises or forced him to enter his plea. The court determined that there was “a factual basis on which to accept the plea, and the plea [was] freely, voluntarily, understanding^ made.” It then accepted the plea and sentenced appellant to concurrent 20 year terms for each count, with all but five years suspended, followed by five years of probation.

On October 26, 2011, appellant filed a Petition for Writ of Error Coram Nobis, requesting that the court vacate his convictions on all three counts. He argued that the pleas must be vacated for three reasons: (1) “in the plea colloquy, there [wa]s no mention of the elements of the charges, no description of the nature of the charges,” and “no mention that [appellant] and his attorney discussed the nature or elements of the charges”; (2) “the court failed to examine [him] on the record that he understood his rights under Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), and as required under Maryland Rule 4-242(c)(1);” and (3) the statements of facts proffered by the State was insufficient as a matter of law to find him guilty of the charges. Appellant filed a declaration asserting that, before he entered his pleas, his attorney did not review with him the elements of the offenses and did not explain his appellate rights. He stated that he did not understand “that it was the responsibility of the judge and my attorney to make sure I understood these things.” He contended that, had his attorney “advised [him] that there was not a sufficient factual basis to prove the elements of the charged crimes, [he] would not have accepted the plea offer and pleaded guilty.” Appellant stated that he was facing significant collateral consequences as a result of his conviction, asserting that he was scheduled to go to trial the next week in the United States District Court for the District of Maryland on robbery charges.

He asserted that, if his state convictions were “not vacated, they will dramatically increase his federal sentence.” 4 ³⁴⁶ On December 7, 2011, the State filed its Response in Opposition to Writ of Error Coram Nobis. It argued that coram nobis relief was unavailable to appellant because he waived his right to seek such relief by failing to file an application for leave to appeal the judgments of conviction. On the merits, the State asserted: “[T]he record more than adequately shows that, based on the totality of the circumstances, [appellant’s] plea was entered voluntarily and intelligently, with an understanding of his trial rights.” On January 6, 2012, the court held a hearing on appellant’s petition. At the outset of the hearing, the State conceded that coram nobis relief was warranted for two of the convictions.

With respect to Case Number 97-1476B, the prosecutor agreed that the record did not indicate the charge to which appellant was pleading. With respect to Case Number 97-1477B, the prosecutor acknowledged that appellant pled guilty to a handgun charge, but the facts in the record indicated that appellant had used a knife in the robbery associated with that charge. 5 Based on these admitted deficiencies, the court granted appellant’s petition relating to those convictions, Case Numbers 97-1476B and 97-1477B, vacating the convictions and ordering a new trial. With respect to Case Number 97-1468B, appellant’s counsel argued that there was “nothing on the record to reflect the specific offense” to which appellant pleaded guilty, and there was nothing to indicate that appellant understood the nature of the offense, which was described at the hearing only as a handgun charge. Counsel also asserted that the factual basis ³⁴⁷ offered by the State in support of the charge was inadequate, as the facts “merely reflected] that [he] was present” during the robbery and “almost all the facts concern what the co-defendant Mr. McDowney did.” The State responded: “[U]nfortunately this is a case where trial counsel only put on the record that [appellant] was pleading to the handgun charge,” and “the State is not in a good position to argue that on the record [appellant] was advised of the nature and elements of the offenses as required” under Maryland law.

The State argued, however, that it was “hanging [its] hat on” the argument that appellant waived his right to coram nobis relief by not filing an application for leave to appeal from his guilty plea. Regarding the sufficiency of the statement of facts, the State argued that appellant’s act of “entering the establishment while the co-defendant committed the crime and then fleeing with the co-defendant and the money is sufficient.” Appellant’s trial counsel testified at the coram nobis hearing that, prior to the guilty plea on March 10, 1998, he discussed with appellant the elements of the crime of use of a handgun during the commission of a crime of violence. He stated that, after the plea was entered, appellant did not indicate that he wanted to appeal the plea, as “[h]e seemed very happy with the terms.” At the conclusion of the hearing, the court denied appellant’s petition for coram nobis relief with respect to Case Number 97-1468B for the following reasons: (1) the trial court “explicitly determined] that there was a factual basis on which to accept the plea”; (2) the plea was “freely, voluntarily, and understandingly made”; and (3) appellant waived his right to pursue coram nobis relief because he did not file an application for leave to appeal his convictions within thirty days of his sentence. With respect to the references by appellant’s attorney and the court to Case Number 97-1468B as the “handgun” charge or use of a handgun charge, the court found that, although appellant’s claim was waived, this reference was adequate, noting: “There is reference to a ³⁴⁸ handgun____to use of a handgun.

As I indicated, the only-handgun charge is use of a handgun.” This timely appeal followed. DISCUSSION The writ of coram nobis is a collateral challenge to a criminal conviction, an “ ‘extraordinary remedy’ ” that is justified “ ‘only under circumstances compelling such action to achieve justice.’ ” Skok v. State, 361 Md. 52, 72 , 760 A.2d 647 (2000) (quoting United States v. Morgan, 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 (1954)). It is a “remedy for a convicted person who is not incarcerated and not on parole or probation.” Id. at 78, 760 A.2d 647 . To be eligible for coram nobis relief, several requirements must be met: (1) “the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional or fundamental character,” id. at 78 , 760 A.2d 647 ; (2) the “coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction,” id. at 79 , 760 A.2d 647 ; (3) the claim for which coram nobis relief is sought cannot be waived or finally litigated, id.; and (4) the petitioner must show prejudice.

Miller v. State, 196 Md.App. 658, 681 , 11 A.3d 340 (2010), vacated on other grounds, 423 Md. 474 , 32 A.3d 1 (2011). In the present case, appellant raises a constitutional challenge to his guilty plea, which he contends entitles him to coram nobis relief. Specifically, he argues that his plea was involuntary for three reasons: (1) “the convicting court failed to apprise him of the nature of the charges and the elements of the offenses to which he was pleading guilty”; (2) “the court failed to apprise him of his right to a jury trial and the corollary rights associated with such trial”; and (3) “the facts presented to the court were insufficient to establish his guilt of the charged offense.” The State argues that the circuit court properly denied the petition for coram nobis. Initially, it contends that the court properly found that appellant waived his right to coram nobis “by not filing an application for leave to appeal the entry of his ³⁴⁹ plea and sentence and by not pursuing post conviction relief.” 6 On the merits, the State argues that appellant failed to meet his burden of establishing that he was entitled to coram nobis relief because: (1) he “failed to establish that he was suffering significant collateral consequences from his conviction”; and (2) he “failed to establish a defect in his plea.” I. Waiver We begin with the issue of waiver.

The State argues that the circuit court properly found that appellant waived his right to challenge his conviction because he failed to file an application for leave to appeal his guilty plea. Appellant contends that he did not waive his right to coram nobis relief, noting that, subsequent to the hearing in this case, the General Assembly enacted legislation providing that a failure to seek an appeal does not waive the right to seek coram nobis relief. At the time of the hearing in this case, Holmes v. State, 401 Md. 429, 445-46 , 932 A.2d 698 (2007), was the prevailing law on the issue of waiver. In that case, the Court of Appeals held: [I]f 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 ³⁵⁰ corara nobis proceeding, and defendant’s right to challenge his conviction and sentence through a petition for writ of coram nobis was waived.

In an apparent reaction to Holmes , the Maryland General Assembly enacted Maryland Code (2013 Supp.) § 8-401 of the Criminal Procedure Article (“CP”), which provides as follows: “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.” 7 The State contends, however, that this statute does not apply to this case because it went into effect October 1, 2012, after the circuit court issued its decision. Whether “a statute operates retrospectively, or prospectively only, ordinarily is one of legislative intent.” Langston v. Riffe, 359 Md. 396, 406 , 754 A.2d 389 (2000) (quoting Spielman v. State, 298 Md. 602, 607 , 471 A.2d 730 (1984)). In determining this intent, “[statutes are presumed to operate prospectively; consequently, absent manifest legislative intent to the contrary, statutes may not be given retrospective or retroactive application.” Gregg v. State, 409 Md. 698, 714 , 976 A.2d 999 (2009). The Court of Appeals has explained, however, that there are “exceptions to the presumption that legislation is to be applied prospectively.” Gregg, 409 Md. at 714 , 976 A.2d 999 .

For example, “ ‘a statute effecting a change in procedure only, and not in substantive rights, ordinarily applies to all actions whether accrued, pending or future, unless a contrary intention is expressed.’ ” Id. at 714-15 , 976 A.2d ³⁵¹ 999 (quoting Mason v. State, 309 Md. 215, 219-20 , 522 A.2d 1344 (1987)). Another exception to the general principal that statutes apply prospectively are “[l]egislative enactments that have remedial effect and do not impair vested rights.” Id. at 715, 976 A.2d 999 . Remedial statutes generally are those that “ ‘provide a remedy or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries.’ ” Id. (quoting Langston, 359 Md. at 408 , 754 A.2d 389 ).

In Gregg, 409 Md. at 715 , 976 A.2d 999 , the Court of Appeals addressed whether an amendment to CP § 8-201, which permits the filing of a petition for post-conviction DNA testing, should be given retrospective effect. Id. The Court noted that the amendment “prescribes the standard by which the court assesses a petitioner’s entitlement to post[-]conviction DNA testing and it improves the existing remedy by making it easier for qualifying petitioners to establish entitlement to such testing.” Id. Accordingly, it held that the statute was “procedural in nature” and “also a remedial statute, as its purpose is to provide a remedy for persons convicted of serious crimes of which they are actually innocent.” Id.Accord State v. Matthews, 415 Md. 286, 296 , 999 A.2d 1050 (2010) (CP § 8-301, creating a Petition for Writ of Actual Innocence, is both procedural in nature and remedial and may be applied retroactively); Thompson v. State, 411 Md. 664, 680 , 985 A.2d 32 (2009) (right to appeal in CP § 8-201(k)(6) was remedial in nature because it allowed defendants “to reach the substantive issue of guilt by lowering the bar to obtaining a new trial and according greater access to this Court”).

Similarly, here, CP § 8-401 is both procedural and remedial in nature. As indicated, it appears to have been a “remedy” to the holding in Holmes , and it removes a procedural impediment to a coram nobis claim of error. See Langston, 359 Md. at 419 , 754 A.2d 389 (legislation that alters only “the procedural machinery involved in the enforcement” of substantive ³⁵² rights will operate retroactively). 8 Accordingly, we hold that CP § 8-401 operates retroactively and appellant did not waive his right to seek coram nobis relief by faffing to challenge his guilty plea in an application for leave to appeal. The State argues, however, that “even if Section 8-401 applied retroactively to [appellant’s] case, the waiver ruling of the coram nobis court in this case should still prevail.” Specifically, it contends that CP § 8-401 “applies only to situations where a finding of waiver was founded solely on a defendant’s failure to file a direct appeal,” and here, appellant also failed to move to withdraw his plea or seek relief pursuant to the Uniform Post Conviction Procedure Act during the time he was incarcerated.

In support of this argument, the State cites to the Court of Appeals decision in Skok, 361 Md. at 79 , 760 A.2d 647 , for the proposition that “[b]asic principles of waiver are applicable to issues raised in coram nobis proceedings,” such that the same body of law governing waiver in the Maryland Post Conviction Procedure Act context is applicable in coram nobis proceedings. The State raises this issue for the first time on appeal; it failed to raise this argument before the circuit court. Accordingly, it is not properly before us. See 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.”). 9 ³⁵³ II.

Collateral Consequences The State next contends that the circuit court properly denied appellant coram nobis relief because he “failed to establish that he was suffering significant collateral consequences from his conviction.” Specifically, it argues that the collateral consequence alleged by appellant was the prospect