Rivera v. State

LAWRENCE F. RODOWSKY, J., Retired, Specially Assigned. Appellant, Juan Rivera (Rivera), asks us to reverse the denial by the Circuit Court for Montgomery County of his petition for a writ of error coram nobis. By that writ, he sought to have the court find invalid his guilty plea to a charge ⁶⁹⁷ that arose out of allegations of sexual child abuse. Motivating Rivera’s petition is incarceration by the United States Immigration and Customs Enforcement agency (ICE) and threatened deportation.

Before us, Rivera launches many attacks on his guilty plea, none of which do we find persuasive. There is a history behind Rivera’s guilty plea. He is the father of a daughter, A.R., born February 17, 1989. Rivera is a native and citizen of Peru.

Sometime prior to January 1, 1997, he entered the United States at a place and on a date unknown to ICE. About August 23, 2000, Rivera adjusted his immigration status to that of a lawful permanent resident. In 2003, Rivera and his wife, A.R.’s mother, were engaged in a divorce proceeding in Montgomery County. On August 12 of that year, an evaluator from the Family Division of the circuit court met with Rivera in connection with custody issues in the domestic litigation.

Although there were no allegations of sexual child abuse against Rivera that were known to the evaluator, he told the evaluator that his wife’s allegations against him were totally made up. According to the State’s proffer of proof at the guilty plea hearing, Rivera further stated to the evaluator “that on one occasion, [A.R.] came into his room at night, and got into bed with him and his wife, [A.R.] got in between the two adults. The defendant stated, he grabbed [A.R.] and subsequently got an erection. Juan Rivera stated, that he realized it was his daughter, and pulled away.” Also according to the State’s proffer, A.R., at age fourteen, was interviewed by Child Protective Services on September 12, 2003.

She stated “that her father had committed an anal intercourse act with her, when she was approximately eight years old.” This had occurred during 1997 in Gaithersburg. A.R.’s mother was also interviewed and, per the State’s proffer, stated that Rivera “had approached her in 1997, and apologized for abusing [A.R.]. He stated he had been rubbing [A.R.’s] back and ended on top of her.” Rivera was arrested October 8, 2003. The charging document, No. 004D00137631, alleged second- and third-degree ⁶⁹⁸ sexual offenses and child abuse, carrying maximum potential penalties of forty-five years.

The sentencing guidelines were ten to twenty-one years. By letter of November 14, 2003, to defense counsel, the State offered to accept a plea to one count of third-degree sex offense, carrying a maximum penalty of ten years imprisonment and, under the guidelines, probation to two years. Expiration date of the offer was Monday, December 8, 2003. Under defense counsel’s normal procedure, copies of all communications from the State’s Attorney are forwarded to the client.

Rivera did not accept the State’s offer. A five-count indictment was filed against him on January 15, 2004, in Criminal No. 99237. Count I alleged sexual child abuse in violation of former Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 35C.

That offense is a felony, punishable by up to fifteen years imprisonment. A sentence under former § 35C could be imposed “separate from and consecutive to or concurrent with a sentence for any offense based upon the act or acts establishing the abuse.” § 35C(b)(3). The second count charged second-degree sex offense, a felony carrying imprisonment for up to twenty years. The remaining counts charged third-degree sexual offense.

The original trial date for the case was June 7 before Judge Johnson, but, at the request of Rivera, trial was postponed beyond the Hicks date, with the approval of the administrative judge, to October 12, 2004, for trial before Judge Scrivener. 1 Negotiations between the State and defense counsel underlay the postponement. By letter of August 12, 2004, the State offered to amend Count I of the indictment in Criminal No. 99237 to charge violation of Maryland Code (1974, 2002 Repl. Vol.), § 3-8A-30 of the Courts and Judicial Proceedings Article (CJ). That statute in relevant part provided: “(a) In general. — It is unlawful for an adult wilfully to contribute to, encourage, cause or tend to cause any act, ⁶⁹⁹ omission, or condition which results in a violation, renders a child delinquent or in need of supervision. “(b) Child need not be found to have committed violation. — A person may be convicted under this section even if the child has not been found to have committed a violation or adjudicated delinquent or in need of supervision. ... “(c) Penalty. — An adult convicted under this section is subject to a fine of not more than $2,500 or imprisonment for not more than 3 years, or both.

The court may suspend sentence and place the adult on probation subject to the terms and conditions it deems to be in the best interests of the child and the public.” 2 The guidelines for this offense were “probation to probation.” The prosecutor’s August 12, 2004 letter included the following passages: “In previous conversations that you and I have had, there was a concern that a plea to this charge would make your client deportable. I have since had an opportunity to speak to Christine Carlson, Special Agent for U.S. Department of Homeland Security, Immigration and Customs Enforcement, who has informed me that a Contributing charge does not make a defendant eligible for deportation proceedings. It is a charge that INS does not ‘look behind’ as they would with a second degree assault. Please feel free to contact Ms. Carlson at 410-962-7449 to confirm this information. ⁷⁰⁰ “In light of the fact that your client is facing a substantial penalty should the State prevail at trial, it is the State’s position that he should entertain this very generous offer to prevent his daughter any further pain and trauma that would be incurred should she have to testify.

This offer is being extended to your client at this late juncture because the State is highly concerned as to the emotional well being of [A.R.]” 3 The offer was to expire by its terms on September 14, 2004. Negotiations continued, as evidenced by a letter dated October 4, 2004, from defense trial counsel to the prosecutor, with a copy to Rivera. The letter opened by stating: “This letter will confirm a telephone message I left for you on October 1, 2004, as well as our discussions last week. My client remains willing to plead guilty to a charge of contributing to a condition which would place his daughter in need of assistance, § 3-828(a) of the Courts Article.

He understands that this charge is a misdemeanor, and that it ordinarily carries a maximum possible sentence of three years and a fine of $2,500.00.” Maryland Code (2002), CJ § 3-828 defines the crime as follows: “(a) Prohibition. — An adult may not wilfully contribute to, encourage, cause or tend to cause any act, omission, or condition that renders a child in need of assistance. “(b) Child need not be adjudicated a CINA. — A person may be convicted under this section even if the child is not adjudicated a CINA.” “ ‘CINA’ means a child in need of assistance.” CJ § 3-801(g). “ ‘Child in need of assistance’ means a child who requires court intervention because: “(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and ⁷⁰¹ “(2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” CJ § 3 — 801(f). Counsel’s letter further stated: “The plea offer you have made requires that Mr. Rivera not be incarcerated at the original disposition, and that his suspended sentence be less than one year in duration (360 days is the preferred sentence to prevent immigration consequences). The duration of probation is up to the sentencing judge, and I understand you will argue that it should be long enough for [A.R.] to reach age 18. My client would agree to provide assistance to [A.R.] in connection with college tuition and other expenses. “It is also important to the plea — and already agreeable to you — that the petition include neutral language essentially tracking the wording of the statute, and without specific allegation of sexual abuse.

My client still disputes [A.R.’s] claims, but recognizes that situations within the home have contributed to her need for therapy and other support. He remains interested in her welfare, and wants to promote future family reunification. Of course, he understands that it will be a condition of probation that he have no contact with [A.R.] until and unless she initiates it.” On October 7, 2004, defense trial counsel hand-delivered to the prosecutor, with a copy to Rivera, a letter, reading in part as follows: “As we discussed last night, I had a meeting this morning with my client to review all of the terms of the proposed plea in this case, and to obtain a firm decision of the basic issue of plea versus trial. Having just met with him, I am able to report that he is prepared to go forward with the plea under the terms outlined in my letter to you of October 4, 2004, and your response of the same date.” 4 ⁷⁰² The agreement included a provision for Rivera to contribute to A.R.’s college tuition and for Rivera to be diagnostically examined. .

Pursuant to the agreement, the State instituted Criminal No. 101007 by a one-count information charging that Rivera “did willfully contribute to, and encourage, and cause, and tend to cause an act, and omission, and condition that rendered a child in need of assistance, in violation of [CJ § ] 3-828[.]” On October 12, 2004, the parties appeared before Judge Scrivener for the purpose of taking Rivera’s guilty plea to the newly filed charge. Criminal No. 99237 was at that time postponed, ultimately until after Rivera’s sentencing. The prosecutor explained the terms of the plea bargain. Defense counsel generally concurred, but further advised the court as set forth below. “I’ve made up a set of documents which I would eventually like to be incorporated in the court file, in a confidential sealed envelope, that deal with our plea negotiations.

Because they set forth quite a large number of terms which we have all carefully worked out, and thought about, in this ' matter. “A lot of this is because of immigration consequences, and the record should reflect that my client is a permanent resident, and that some of the terms of this plea have been worked out in terms, because of his potential immigration consequences.” The court then questioned Rivera to determine whether he was entering his guilty plea freely and voluntarily. He was forty-four years old at the time and his formal education had reached university level. He was not under the influence of medicine, drugs or alcohol. The court continued: “Q Have you had a chance to discuss the charges in this case, as well as the terms of this plea, with your attorney? “A Yes. “Q Do you have any questions you want to ask either your attorney or the Court, before we go any further? ⁷⁰³ “A No. “Q If at any time this morning you have a question, or want to ask either your attorney or the Court, you are free to do that at any time, and I want you to stop and ask, okay? “A Thank you.” When Rivera answered affirmatively to the court’s question whether he was on probation, defense trial counsel interrupted to correct the record and advise the court that Rivera was on pretrial supervision in the matter before the court.

The court continued the voir dire. “Q Okay. Do you understand that you do not have to plead guilty in this case? “A I understand that. “Q That you have an absolute right to a trial. If you elected to go forward with the trial, which is actually scheduled for today, you have a number of constitutionally protected rights. I just want to go over those with you, briefly, to be sure that you understand what you give up when you elect to plead guilty. “So, if you elected to go to trial, first of all you could be tried either in front of just a judge, or a judge and a jury.

Your attorney would have a chance to question witnesses that the State would call, and to call witnesses on your behalf. At trial, you would be free to testify, to talk about what happened, but you have an absolute right not to testify and to remain silent. If you elected to do that, no one could think badly of you, or draw any adverse inference if you did. You could not be found guilty at trial, unless all 12 jurors unanimously agreed you were guilty beyond a reasonable doubt. “Are you sure you want to waive all of your rights to trial and go forward with a plea of guilty? “A Yes, I am sure.” After determining there were no promises or threats, the court turned to immigration consequences. ⁷⁰⁴ “Q If you are not a citizen of the United States, a finding of guilty could have immigration consequences for you.

Have you had a chance to discuss that issue with your attorney, if you have any concerns about that? “A Yes, I had the chance to discuss with my attorney. “Q And this plea has been negotiated in light of those immigration consequences, am I right? “A Right, yes.” The court found the plea to be voluntary and that Rivera understood what he was doing. At that point, the State proffered the anticipated testimony from the custody evaluator, from Mrs. Rivera, and from A.R., that has been reviewed above. The proffer included Rivera’s version of the occurrence. Defense counsel confirmed that the statement to the custody evaluator presented Rivera’s version of the events.

The court entered a finding of guilty, and deferred sentencing. There was no need for a presentence investigation, in the view of the defense. Sentencing was held on January 24, 2005, at which time the State nol prossed Criminal No. 99237. Rivera received a suspended sentence of 360 days, and he was placed on supervised probation for two years, subject to the conditions of no contact with A.R., payment of a specified minimum toward A.R.’s college tuition, and undergoing a diagnostic examination, to be followed up by therapy, if recommended.

Within ninety days of the sentencing, Rivera filed a motion to reconsider the sentence. It was held in abeyance. That motion was heard (Scrivener, J.) on January 16, 2007, at which time the court struck the finding of guilty and, pursuant to Maryland Code (2001), § 6-220 of the Criminal Procedure Article, placed Rivera on supervised probation before judgment (PBJ) for an additional seven months. On March 23, 2007, federal authorities arrested Rivera as a result of removal proceedings that had been instituted against him.

He was incarcerated at the Dorchester County Detention Center, where he apparently remains. Rivera petitioned for coram nobis relief on May 1, 2007, and the matter was ⁷⁰⁵ heard (Rupp, J.) on July 12, 2007. Defense trial counsel, Rivera, and the prosecutor testified. Rivera said that, prior to his plea, he and his counsel talked “[a] lot” about Rivera’s concerns over possible deportation. “[S]everal times,” his counsel talked to him about his potential for deportation, and it was Rivera’s understanding that pleading guilty to the contributing charge would not affect his legal status in the United States.

If he had been told that his plea of guilty would result in his being deported, he would not have pleaded. Defense trial counsel testified that a very important goal of the representation was to resolve the case in a way that would not permit Rivera to be deported. In one of his meetings with the prosecutor, she advised him that an ICE agent, Christine Carlson, had advised her that “a plea to contributing to a CINA ... would not trigger deportation proceedings even if the proffered facts suggested a sexual offense.” He considered that this was confirmed in the prosecutor’s letter to counsel of August 12, 2004. Further, counsel unsuccessfully had tried to reach Ms. Carlson directly, and he advised Rivera of his lack of success.

Defense counsel testified that he would not have recommended the plea if he knew that what happened was going to happen. On cross-examination, defense counsel explained how, because of the “rather hidden issues” on deportation, he had consulted with an immigration lawyer. He was advised that there were no cases on the contributing to a CINA charge, but, in five states, the crime of contributing to the delinquency of a minor had been held, based on the wording of the particular statute, to be a crime of moral turpitude on which deportation could be based. Defense counsel was asked if he had told his client that there would be no risk of deportation.

Counsel replied: “I don’t have a recollection of saying there is no risk because intellectually, I believe, that immigration regulations and policies including administrations can change and you never know. So, I don’t believe I would have said there is no risk. But, I can’t, I really just don’t have a recollec ⁷⁰⁶ tion of saying that to the client and I’m inclined to think I would not have said that.” And further, he testified: “I can’t say that I said there is no risk. I’m telling you as honestly as I can that I probably would have thought in my own mind that there is always some potential risk so that if I did comment on it, I might have said, you know, it’s a who knows proposition.

But, I can tell you we entered the plea.” The prosecutor testified that, when defense counsel complained to her in her office that he had been unable to reach Ms. Carlson, the prosecutor reached Ms. Carlson by telephone and, with defense counsel present, placed the call on a speakerphone. Ms. Carlson advised them that, at that particular time, ICE was not looking behind contributing charges and that her request in several other contributing cases, that the agency look behind the charge, had been refused. The prosecutor said that she “would never tell a defense attorney that there is no risk that his client would get deported.” In denying the coram nobis petition, the court found that defense counsel had not guaranteed Rivera that his guilty plea would insulate him from subsequent deportation proceedings. The court observed that, at the time the plea was entered, the risk of deportation was minimal.

Indeed, the court file reflected that, in the fall of 2005, Rivera had been authorized by the court to leave the country in order to travel to Peru and that he had been allowed to re-enter this country. The court found that every effort had been made to try to protect Rivera from deportation consequences, and the court was “convinced that Mr. Rivera knew there was no guarantee that it would not occur.” With respect to the voir dire, the coram nobis court found that Judge Scrivener had taken the guilty plea correctly and that Rivera had been advised of his rights. Alternatively, the court held that, because of the PBJ, there was no criminal conviction, so that the court had no jurisdiction to hear the petition. This appeal followed.

Rivera presents the following questions: ⁷⁰⁷ “1. Did the coram nobis court have jurisdiction to hear the case? “2. Did the coram nobis court err in denying Appellant’s petition for writ of error coram nobis where the record of his guilty plea failed to comply with the dictates of Maryland Rule 4-242? “3. Did the coram nobis court err in denying the petition where the record at the coram nobis hearing established that Appellant did not enter the guilty plea knowingly, intelligently, and voluntarily? “4.

Did the coram nobis court err in denying the petition where the record at the coram nobis hearing established that Appellant was denied the effective assistance of counsel in connection with his guilty plea?” I The coram nobis court ruled that it had no jurisdiction to hear the petition “because there is no conviction that took place.” A circuit court, however, has subject matter jurisdiction to entertain a petition for a writ of coram nobis. More precisely, the question is whether Rivera is entitled to coram nobis relief inasmuch as his judgment of conviction was stricken, and he was placed on PBJ. The answer is furnished by Abrams v. State, 176 Md.App. 600 , 933 A.2d 887 (2007). Abrams, in June 1994, entered an Alford plea 5 in a Maryland circuit court to three counts of uttering.

He was sentenced to one year confinement, that sentence was suspended, and he was placed on two years probation. In June 1996, the sentencing court granted a motion to reconsider the sentence and converted it to PBJ. That probation was for one year. In 2005, Abrams pleaded guilty to a drug charge in a federal district court which sentenced him to a mandatory confinement of ten years.

He was ineligible for a lesser sentence under the Federal Sentencing Guidelines because, for that ⁷⁰⁸ purpose, the Maryland PBJ was considered a conviction of uttering. Contending that his guilty plea to the state charges was invalid, Abrams sought coram nobis relief in the sentencing court. One issue on Abrams’s appeal from the denial of that relief was whether PBJ was to be considered a conviction conferring standing on Abrams to seek the writ. This Court held that the detriment suffered by Abrams under the Federal Sentencing Guidelines was a significant collateral consequence, so that Abrams’s PBJ should be viewed as a conviction for coram nobis purposes.

We reasoned: “[W]hether a probation before judgment is a ‘conviction’ depends upon the context and purpose for which that term is used. In the context of a coram nobis petition, the term ‘conviction’ or ‘convicted’ is used to identify a person eligible for relief under the petition as one who, inter alia, is facing significant collateral consequences because of having been found guilty of a criminal offense. It is essentially irrelevant whether the disposition on the guilty finding is a judgment of conviction, i.k, a sentence, or a stay of entry of a judgment, ie., a probation before judgment. The critical issue is whether the finding of guilt did or will in fact cause significant collateral consequences to the person petitioning for coram nobis relief.

Here, appellant’s probation before judgment was treated as a ‘conviction’ for purposes of the Federal Sentencing Guidelines and, as a result, appellant was subject to a mandatory penalty of ten years’ imprisonment.” 176 Md.App. at 616-17 , 933 A.2d at 897 . The deportation faced by Rivera is as significant a collateral consequence of his PBJ as was the foreclosure of a lesser sentence than ten years in Abrams . Consequently, the fact that the charges against Rivera ultimately were resolved by PBJ does not deprive him of standing to petition for the writ. 6 ⁷⁰⁹ II Rivera next contends that the record of his guilty plea proceeding failed to comply with the dictates of Maryland Rule 4-242. He presents three aspects to the argument: (A) the plea court failed fully to advise Rivera of his constitutional rights that were being waived; (B) the plea court failed to explain the elements of the offense; and (C) there was no factual basis for the plea set forth on the record.

Maryland Rule 4-242, in relevant part, provides: “(c) Plea of guilty. The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. The court may accept the plea of guilty even though the defendant does not admit guilt.

Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty.” 7 As explained below, there was no legal error, in accepting the initial guilty plea, “of a constitutional or fundamental ⁷¹⁰ proportion” that would entitle Rivera to coram nobis relief. Holmes, 401 Md. at 451, 932 A.2d at 711. A When taking the guilty plea, the court advised Rivera that he was waiving his privilege against compulsory self-incrimination, his right to a jury trial, and his right to confront his accusers. These were the rights referred to by the Court in Boykin v. Alabama, 395 U.S. 238, 243 , 89 S.Ct. 1709, 1712 , 23 L.Ed.2d 274 (1969).

Rivera contends, however, that he was not advised on the record of the presumption of innocence or of the right to a speedy and public trial. This, he says, is now required by Metheny v. State, 359 Md. 576 , 598 n. 14, 755 A.2d 1088 , 1100 n. 14 (2000). Metheny imposes no such requirement. There, in answer to a contention that the proffered factual basis for a guilty plea must satisfy the beyond a reasonable doubt standard, the Court held that the guilty plea waived “ ‘the right to insist that the prosecution’s proof at trial establish guilt beyond a reasonable doubt.’ ” Id. at 598 , 755 A.2d at 1100 .

In footnote 14, on which Rivera relies, the Court, in dicta, listed some of the other rights which are waived by a guilty plea. In addition to the three Boykin rights, the Court included the right to present witnesses, and the right to a speedy and public trial. The Metheny Court did not hold that a guilty plea would be invalid if the latter two rights were not the subject of advice on the record. Factually, in the case before us, the court advised Rivera that twelve jurors would have to agree unanimously that he was guilty beyond a reasonable doubt.

This embraces the presumption of innocence. Further, the court advised Rivera of his “absolute right to a trial.” 8 ⁷¹¹ Rivera contends that under Rule 4-242(c) the court was obliged to, but failed to, determine that the plea of guilty was entered “with understanding of the nature of the charge.” He equates this requirement with the plea court’s explaining the elements of the offense to the accused or ascertaining from counsel whether counsel previously had explained the elements to the accused. We shall consider this contention (1) as of the time of the guilty plea, October 12, 2004, and (2) as of the time of the coram nobis hearing, July 12, 2007. Specifically, Rivera dissects CJ §§ 3-828 and 3-801 into these six elements: “(1) An adult “(2) Willful[ly] contributing to, encouraging, causing or tending to cause “(3) An act, omission, or condition rendering “(4) A child requiring court intervention “(5) A child who has been abused or neglected and “(6) Parents’ inability or unwillingness to give proper care and attention.” 1 In the fall of 2004, the requirements to satisfy the guilty plea rule, particularly concerning the defendant’s knowledge of the nature of the crime, were as set forth in the landmark opinion by Chief Judge Robert C. Murphy, writing for the Court, in State v. Priet, 289 Md. 267 , 424 A.2d 349 (1981).

More recently, the Court of Appeals applied Priet in Lovell v. State, 347 Md. 623 , 702 A.2d 261 (1997). That was an appeal from a death sentence, based upon a guilty plea to first-degree murder. Lovell sought to have his guilty plea stricken because there was no explanation on the record indicating that premeditation, deliberation, and wilfulness had been explained to him, particularly in the distinction between first-degree murder and the intent-to-kill variety of second-degree murder. ⁷¹² Id. at 633 , 702 A.2d at 265-66 . Rejecting this contention, the Court said: “It was settled, however, in State v. Priet, 289 Md. 267 , 424 A.2d 349 (1981), involving the predecessor to Rule 4-242(c), that the required ‘understanding of the nature of the charge’ is not a requirement ‘that the precise legal elements comprising the offense be communicated to the defendant as a prerequisite to the valid acceptance of his guilty plea.’ Priet, 289 Md. at 288 , 424 A.2d at 359 .

Understanding the nature of the offense affords the defendant ‘a basic understanding of its essential substance, rather than of the specific legal components of the