Skok v. State

²²⁸ SALMON, Judge. The appellant, Pasquale Skok, on February 18, 1994, pled guilty in the Circuit Court for Prince George’s County to possession of Cocaine (Case No. 1). He was sentenced to two years imprisonment with all but three days of the sentence suspended in favor of two years probation. Because he had already served three days in jail, he was released immediately after sentencing.

In taking the plea, the trial judge did not comply with the dictates of Maryland Rule 4-242(c) because she did not explain to appellant on the record the consequences of the plea. See State v. Thornton, 73 Md. App. 247, 253-54 , 533 A.2d 951 (1987). 1 Later in 1994, on October 17th, appellant entered a plea of nolo contendere, in the Circuit Court for Prince George’s County to another charge of possession of cocaine (Case No. 2). His sentence for the second offense was even more lenient than in Case No. 1. He was sentenced to one day incarceration, with credit for the one day he had already spent in jail.

Court costs were waived. In violation of Maryland Rule 4-242(d), 2 neither the trial judge, the prosecutor, nor the de ²²⁹ fense attorney made any on-the-record examination of the defendant to determine if he was entering the plea voluntarily with an understanding of the nature of the charges and the consequences of the plea. In both Cases Nos. 1 and 2 appellant was represented by counsel. Despite the facts that the plea in Case No. 1 had not been taken in compliance with Maryland Rule 4-242(c) and in Case No. 2 there was a failure to comply with Rule 4-242(d), neither counsel moved to withdraw the pleas pursuant to Maryland Rule 4-242(f). 3 Likewise, neither counsel filed a motion for leave to appeal in either Case Nos. 1 or 2.

Compare Md. Rule 8-204. 4 ²³⁰ On June 1, 1995, the United States Immigration and Naturalization Service initiated deportation proceedings against appellant, who is a native of Italy. The basis for the deportation was appellant’s plea of nolo contendere in Case No. 2 and his conviction in Case No. 1. More than two and one-half years after the commencement of the deportation proceedings, appellant filed, in both Case Nos. 1 and 2, a petition for a writ of coram nobis, a motion for new trial, and a petition for a writ of Audita Querela. 5 Both ²³¹ the petitions and the motions for new trial were based on the fact that the trial judges had failed to comply with Maryland Rule 4-242 when accepting appellant’s pleas. Circuit Court Judge Darlene Perry, in Case Nos. 1 and 2, denied both petitions and the motions for new trial.

Appellant noted this appeal and raises two questions: I. Did the circuit court err in denying appellant’s petition for writ of error coram nobis regarding the February 18, 1994 conviction and the October 17, 1994 nolo contendere plea?

II

Did the circuit court err in denying appellant’s motion for new trial under Maryland Rule 4-331 (b) based upon “mistake” or “irregularity” in the proceeding leading up to the February 18, 1994 conviction or in the October 17, 1994 acceptance of the nolo contendere plea? A. ISSUE I — WRIT OF ERROR CORAM NOBIS Appellant contends that Judge Perry erred in denying the petitions for writ of coram nobis. Before deciding the merits of this argument, we must first address the State’s argument that this Court has no jurisdiction to decide whether the writs should have been granted because no statute grants appellant the right to appeal the denial of a writ of coram nobis. In support of its argument that this Court lacks jurisdiction, the ²³² State relies on Ruby v. State, 121 Md.App. 168 , 708 A.2d 1080 , cert. granted, 351 Md. 7 , 715 A.2d 965 (1998).

In Ruby , the defendant in a criminal case filed a motion for new trial, which was denied, but Ruby’s trial counsel did not learn of the denial until ten weeks later. See id. at 172 , 708 A.2d 1080 . Defense counsel then filed a writ of coram nobis for the sole purpose of allowing a belated appeal. See id.

The trial court granted the writ. See id. We recognized that an appellate court would have no jurisdiction to hear Ruby’s belated appeal unless the writ of coram nobis had been properly granted. See id. at 173-74 , 708 A.2d 1080 .

For reasons discussed thoroughly below, the Ruby Court held that the writ was improperly granted and thus dismissed the appeal as untimely. Unlike Ruby , in the case at hand, the appeal from the action of the trial court was timely. In Jones v. State, 114 Md.App. 471 , 691 A.2d 229 , cert. denied, 346 Md. 27 , 694 A.2d 950 , cert. denied, — U.S.-, 118 S.Ct. 304 , 139 L.Ed.2d 234 (1997), the defendant, Jones, pleaded guilty in 1975 to the crime of assault with intent to murder and was sentenced to five years imprisonment. See id.

Seventeen years later he filed a writ of error coram nobis based on the (alleged) fact that his guilty plea was taken when he was under the influence of heroin. See id. at 473, 691 A.2d 229 . The trial judge denied the writ in March of 1994. See id. at 474 , 691 A.2d 229 .

Jones instructed his attorney to file an immediate appeal, but either the attorney failed to file the appeal or, if an appeal was filed, it was not properly recorded by the clerks. See id. In January 1996, the trial court granted Jones the right to file a belated appeal. See id.

In Jones , the principle issue, however, was whether an appeal could be taken from a denial of a writ of coram nobis. In Jones , Judge Getty for this Court said: The question remains whether the right of appeal in coram nobis actions survived the adoption of Art. 27, § 645A(e), as amended in 1965. We hold that it does. As we have stated herein, the Post Conviction Procedure Act was intended to replace habeas corpus and coram nobis ²³³ as a statutory remedy for collateral challenges to criminal judgments.

For the majority of cases it has succeeded. In those cases where the Post Conviction Act does not provide a remedy, however, the enactment of the new statute provided no reason for restricting appeals in habeas corpus cases. Gluckstern [v. Sutton], 319 Md. [634] at 662 [ 574 A.2d 898 (1990)]. The same reasoning should be applied to coram nobis.

The writ of error coram nobis remains available, therefore, as a remedy to mount a collateral attack upon a prior conviction or sentence. We see no justifiable reason for denying a right of appeal in a coram nobis petition when the right of appeal is available to those seeking redress under habeas corpus. The right of further review ought not depend upon the name of the vehicle bringing one to the tribunal. The paucity of coram nobis petitions, moreover, will not unduly burden the appellate courts.

We perceive no error in the chancellor granting a belated appeal from his Order denying appellant coram nobis relief. See Dowd v. United States ex rel. Cook, 340 U.S. 206 , 71 S.Ct. 262 , 95 L.Ed. 215 (1951), where the Supreme Court said that a judge “has power in a habeas corpus proceeding to dispose of the matter as law and justice require.” Accord: Beard v. Warden, 211 Md. 658, 661 , 128 A.2d 426 (1957), stating that a circuit court in a habeas corpus proceeding could order that a prisoner be granted a belated appeal from his original criminal conviction. Id. at 478-79, 691 A.2d 229 .

In the case sub judice, the Post Conviction Relief Act (the Act) is not available to appellant because the Act does not provide a remedy for persons whose sentences have been served and who are no longer on parole or probation. See Md. Ann.Code art. 27, § 645A(a). Therefore, appellant needed to seek relief outside the Act. To the extent that coram nobis relief may be available in certain instances, appellant has the right to appeal the denial of his request that the court issue a writ of coram nobis. ²³⁴ As to the merits of the petitions for a writ of coram nobis, neither of appellant’s petitions was based on facts not known to the trial judge when the plea was accepted.

Both were based on careless procedural errors committed by the trial judge, not upon facts unknown to the trial judge. This is fatal to appellant’s. claim. The Court of Appeals said in Jackson v. State, 218 Md. 25 , 145 A.2d 234 (1958): By the decided weight of authority * * * the [coram nobis ] remedy is not broad enough to reach every case in which there has been an erroneous or unjust judgment on the sole ground that no other remedy exists, but it must be confined to cases in which the supposed error inheres in facts not actually in issue under the pleadings at the trial, and unknown to the court when the judgment was entered, but which, if known, would have prevented the judgment. See also Hawks v. State, 162 Md. 30 [ 157 A. 900 (1932)]; Bernard, v. State, 193 Md. 1 [ 65 A.2d 297 (1949)]; Madison v. State, 205 Md. 425 [ 109 A.2d 96 (1954)]; Johnson v. State, 215 Md. 333 [ 138 A.2d 372 (1958)]; Johns v. State, 216 Md. 218 [ 140 A.2d 56 (1954)].

Id. at 27-28 , 145 A.2d 234 . The Jackson Court relied on this “decided weight of authority” and affirmed the trial court’s denial of a writ of coram nobis on the ground that the defendant had failed to allege facts unknown to the court when the judgment was entered. See id. at 27 , 145 A.2d 234 . In Ruby , we were called upon to decide the same question at issue in Jackson , viz: Whether coram nobis provided relief only in cases in which the defendant could show facts that were unknown at the time judgment was entered, which would have prevented the entry of judgment, or whether, as appellant contended, the writ of coram nobis was less restrictive and provided “a broad post-conviction remedy in the absence of [grounds for] other statutory relief.” Ruby, 121 Md.App. at 174 , 708 A.2d 1080 .

As mentioned earlier, the appellant in Ruby “requested and the court granted to appellant a writ of error coram nobis for ²³⁵ the sole and express purpose of permitting him to proceed with a ‘belated appeal’ from the denial of his motion for new trial.” Id. at 172 , 708 A.2d 1080 . After thoroughly reviewing the relevant authority concerning the issue of whether a writ of coram nobis could be granted when the facts upon which the petition for the writ of coram nobis were known to the trial judge when the judgment was entered, we said: The trial court’s grant of a writ of error coram nobis was inappropriate because the error appellant relies upon to validate the issuance of the writ does not relate to any fact not known at either the hearing on his motion for new trial or at appellant’s original trial that would have affected the entry of judgment. The indirect and ultimate purpose of appellant’s efforts is to place “newly discovered evidence” before the court and to correct an adjudicated issue of “fact” that appellant believes has been wrongly decided. A writ of error coram nobis does not lie for such purposes.

Hence, we are without jurisdiction to entertain any arguments appellant might have raised by the grace of that writ. Id. at 177 , 708 A.2d 1080 . The Ruby Court distinguished the Jones case. In Jones , the error relied upon by appellant to validate the issuance of the writ did relate to a previously unadjudicated fact not known or available to the trial judge when the original judgment was entered (plea allegedly made by defendant while under the intoxicating influence of heroin), which, if it had been known, would have affected the court’s entry of judgment.

See id. at 178-80, 708 A.2d 1080 . Appellant does not attempt to distinguish the Ruby case from the case sub judice. Instead, he boldly contends in his brief that we were wrong in Ruby in holding that a writ of coram nobis may be granted only in situations where the error inheres in facts unknown to the court when the judgment was entered, but which, if known, would have prevented the judgment. According to appellant, [t]he language contained in Ruby is in direct contradiction to the holding in United States v. Morgan, 346 U.S. 502 [74 ²³⁶ S.Ct. 247, 98 L.Ed. 248 ] (1954), which stated that defects of a fundamental magnitude in a criminal proceeding may be collaterally attacked by use of the Writ of Error Coram Nobis where no other means of relief is available.

Appellant’s reading of Morgan is too expansive. In fact, the Court in Morgan intimated that the principles it was enunciating should be narrowly construed. The Court said, “Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Morgan, 346 U.S. at 511 , 74 S.Ct. 247 . In Morgan, the defendant appeared in federal court without an attorney on December 19, 1939, and pled guilty to several counts in an indictment; he was sentenced by the United States District Court to four years imprisonment.

See id. at 503, 74 S.Ct. 247 . In 1950, after Morgan had completed his federal sentence, he was convicted in New York of the state crime of attempted burglary in the third degree. See id. at 513 , 74 S.Ct. 247 (Minton, J. dissenting). Because of his 1939 federal conviction, the New York Court sentenced Morgan as a multiple offender, causing him to receive a longer term than would otherwise have been the case.

See id. at 503-04 , 74 S.Ct. 247 . Approximately fourteen months after his New York state conviction and some twelve years after his federal conviction, Morgan filed an “Application for a Writ of Error Coram Nobis ” in the Federal District Court where he had been convicted in 1939. See id. at 504 , 74 S.Ct. 247 . Morgan asked that the conviction be set aside because “he neither had the assistance of counsel nor was informed of his constitutional right to counsel, and at the time was only nineteen years of age and without knowledge of the law.” Id. at 514 , 74 S.Ct. 247 (Minton, J., dissenting).

The Morgan court noted at the outset that motions in the nature of writs of coram nobis were not specifically authorized by any federal statute. See id. at 506, 74 S.Ct. 247 . The question presented was whether Congress had impliedly authorized the power of the courts to grant such writs by the “all ²³⁷ writs section” of the Judicial Code, 28 U.S.C. § 1651 (a). See id.

Section 1651(a) provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (Footnote omitted.) The Morgan Court, in a five-four decision, held that federal courts were impliedly authorized to issue writs of coram nobis under section 1651(a). See id. at 506-07, 511, 74 S.Ct. 247 . To come under the umbrella of the “All Writs Act,” Morgan was required to show, inter alia, that the writ was “agreeable to the usage and principles of law.” See id. at 506 , 74 S.Ct. 247 .

The Morgan majority was of the view that a writ of coram nobis was agreeable to the usage and principles of common law and therefore could be issued by a federal court. See id. at 506-11, 74 S.Ct. 247 . In arriving at this conclusion, the Court referred to 2 Tidd’s Practice 1136-37 (4th American ed. 1856), where Mr. Tidd expressed the belief that the writ of coram nobis could be issued only in cases in which there was an error in fact — not an error of law. See Morgan, 346 U.S. at 507 n. 9, 74 S.Ct. 247 .

Tidd said: [I]f a judgment in the King’s Bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court, by writ of error coram nobis, or quae carom nobis resident; so called, from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, before the king himself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict, or interlocutory judgment; for error in fact is not the error of the judges and reversing it is not reversing their own judgment. So, upon a judgment in the King’s Bench, if there be error in the process, or through the default of the clerks, it may be reversed in the same court, by writ of error coram nobis: * * *. ²³⁸ Id. at 507 n. 9, 74 S.Ct. 247 (quoting 2 Tidd’s Practice, supra, 1136-37). The Morgan Court rejected the limited scope of the writ as set forth in Tidd’s Practice and held that a writ of coram nobis could be issued even if the writ was not based on a fact unknown to the Court when judgment was entered. See id. at 507-08, 74 S.Ct. 247 .

The Court said: Although the scope of the remedy at common law is often described by references to the instances specified by Tidd’s Practice, its use has been by no means so limited. 6 The ²³⁹ House of Lords in 1844 took cognizance of an objection through the writ based on a failure properly to swear witnesses. It has been used, in the United States, with and without statutory authority but always with reference to its common law scope — for example, to inquire as to the imprisonment of a slave not subject to imprisonment, insanity of a defendant, a conviction on a guilty plea through the coercion of fear of mob violence, failure to advise of right to counsel. An interesting instance of the use of coram nobis by the court of Errors of New York is found in Davis v. Packard, 8 Pet. 812, 8 L.Ed. 957 . It was used by the Court of Errors, and approved by this Court, to correct an error “of fact not apparent on the face of the record” in the trial court, to wit, the fact that Mr. Davis was consul-general of the King of Saxony and therefore exempt from suit in the state court.

Id. (citations omitted) (footnote omitted). As previously noted, the majority in Morgan rejected, in a somewhat oblique fashion, the holding in cases from other jurisdictions (such as Maryland), when it observed: There are suggestions in the Government’s brief that the facts that justify coram nobis procedure must have been unknown to the judge. Since respondent’s youth and lack of counsel were so known, it is argued, the remedy of coram nobis is unavailable.

One finds similar statements as to the knowledge of the judge occasionally in the literature and cases of coram nobis. Such an attitude may reflect the rule that deliberate failure to use a known remedy at the time of trial may be a bar to subsequent reliance on the defaulted right. The trial record apparently shows Morgan was without counsel. He alleges he was nineteen, without knowledge of law and not advised as to his rights.

The record is barren of the reasons that brought about a trial without legal representation for the accused. As the plea was “guilty” no details of the hearing appear. In this state ²⁴⁰ of the record