State v. Gutierrez

GREENE, Judge. This appeal arises from the conviction of Rosendo Gutierrez for second degree sexual offense. Gutierrez, appellee, entered an Alford 1 plea to one count of a fourteen count indictment on April 30, 1990, in the Circuit Court for Anne Arundel County (Silkworth, J., presiding). On July 7, 1999, Judge Silkworth sentenced appellee to twenty years, with all but ten years suspended, and five years probation upon release.

Gutierrez ⁴⁶⁷ did not file an application for leave to appeal from the Alford plea. On October 22, 2002, Gutierrez filed a petition for post conviction relief in the Circuit Court for Anne Arundel County. He argued that his plea was accepted in violation of the federal Constitution. Specifically, he asserted that he was not advised of his privilege against self-incrimination pursuant to the Fifth Amendment, and his right to confront his accusers pursuant to the Sixth Amendment.

A hearing on the matter was held on March 7, 2003, before another member of the bench. In a written Memorandum Opinion and Order dated March 12, 2008, the post conviction judge granted relief and ordered a new trial. The State filed an application for leave to appeal from the grant of post conviction relief. We granted the application on June 24, 2003, and transferred the matter to the regular appeal docket.

Issue We asked the parties to brief and argue the first question presented, and appellant presents the second question for our review: 1. Should Gutierrez’s allegation regarding a defective guilty plea be deemed waived? 2. Did Gutierrez knowingly and voluntarily enter a guilty plea? In regard to the first question presented, we hold that appellee waived his right to challenge his plea by failing to file for leave to appeal from the entry of the guilty plea.

In addition to the waiver question, and in the exercise of our de novo review, we find that appellee entered the plea knowingly and voluntarily. Facts Appellee entered his Alford plea based on an agreed statement of the facts read into the record by the State’s Attorney. The State proffered the following facts: On more occasions ⁴⁶⁸ than the victim can remember between September 12, 1986, and September 11, 1990, while the victim was between the age of seven and ten years of age, appellee sexually assaulted her. 2 Specifically, appellee would ask the victim to bring alcoholic beverages to his bedroom. 3 Once in the room, appellee would ask the child to lay next to him in his bed. On some occasions appellee would undress the child.

On other occasions, because it happened so often, she would automatically undress herself. Appellee would- then fondle her breasts, vagina, and buttocks with his hands or his penis. At various times, appellee performed cunnilingus on the victim, attempted to force her to perform fellatio on him, inserted his fingers or his penis into the child’s anus, placed his fingers inside the child’s vagina, and he would have her masturbate him to the point of ejaculation. These events occurred in appellee’s bedroom, the victim’s bedroom, the bathroom, and on family vacations.

If called -to testify, the victim would have stated that the abuse made her feel dirty and ashamed. She would also testify that she felt that if she complied with his demands that he would not abuse her sister. The court found that the statement of facts was sufficient to support the plea and entered a verdict of guilty. Sentencing was deferred until July 7, 1999.

On October 22, 2002, appellee filed a petition for post conviction relief claiming he was not advised by the trial court of his privilege against self-incrimination and his right to confront his accusers. A hearing on the petition was held on March 7, 2003. During the hearing, appellee testified that he did not recall being advised of his rights on the record. He stated that he had entered the Alford plea because he was guilty of some of the charges but denied some of the other ⁴⁶⁹ charges.

He also testified that he told his trial counsel that he did not want a trial because “[he] was aware that [he] was guilty. And [he] didn’t want to bring the victims into a trial or anything like that[.]” The State called Gregory Walters, appellee’s trial attorney, to testify. Mr. Walters testified that it was his policy in the 200-300 cases that he handled as an assistant public defender to go through the defendant’s rights at the first meeting. Specifically, he said: As a matter of practice on any first meeting with any client who is accused of a criminal matter, I went through their rights.

Their right to a trial and a jury trial. Their right against self-incrimination. Any potential defenses they may have. Their understanding of the charges against them.

And then, eventually, to the facts of—the specific facts of the matter. With regard to appellee’s right to testify or not to testify, Mr. Walters advised appellee: That he has an absolute right not to testify on his own behalf under the Fifth Amendment. That that right can— he can waive that right. But by invoking that right that cannot be used against him by either the judge or a jury to determine his guilt or innocence.

Mr. Walters also testified that he went through the rights litany with appellee at their first meeting, at a subsequent meeting regarding the State’s offer, and again in the “bull pen” before coming to court to make the Alford plea. On March 12, 2003, the circuit court ruled in a Memorandum Opinion and Order that Gutierrez had not voluntarily entered his plea because he was not fully advised on the record of his constitutional rights, and, therefore, did not knowingly and intelligently waive those rights. The court ordered a new trial. The State subsequently filed an application for leave to appeal from that decision.

On June 24, 2003, we granted leave to appeal and transferred the case to the regular appeal docket. ⁴⁷⁰ Standard of Review In Harris v. State, 303 Md. 685, 697-98 , 496 A.2d 1074 (1985), the Court of Appeals summarized our standard of review of claims based on constitutional rights. The Court said: When a claim is based upon a violation of a constitutional right it is our obligation to make an independent constitutional appraisal from the entire record. Davis v. North Carolina, 384 U.S. 737, 741-742 , 86 S.Ct. 1761, 1764 , 16 L.Ed.2d 895 (1966); Watson v. State, 282 Md. 73, 84 , 382 A.2d 574 , cert denied, 437 U.S. 908 , 98 S.Ct. 3100 , 57 L.Ed.2d 1140 (1978). But this Court is not a finder of facts; we do not judge the credibility of the witnesses nor do we initially weigh the evidence to determine the facts underlying the constitutional claim.

It is the function of the trial court to ascertain the circumstances on which the constitutional claim is based. So, in making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error. We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as. claimed. Walker v. State, 12 Md.App. 684, 691-695 , 280 A.2d 260 (1971); Dennis v. Warden, 6 Md.App. 295, 315 , 251 A.2d 909 , cert. denied, 255 Md. 740 (1969).

Applying the principles outlined in Harris , we turn to the issues presented. Waiver of a Fundamental Right The first issue presented is whether appellee waived his right to challenge his conviction pursuant to the Uniform Postconviction Procedure Act, Md.Code (2001) § 7-101 et seq. of the Criminal Procedure Article, by failing to raise the issues in an application for leave to appeal his Alford plea to this Court. The State raised the issue of waiver in its answer to the petition for post Conviction relief but did not argue the issue ⁴⁷¹ before the post conviction court. At oral argument before this Court, the State conceded that it had not pursued the issue before the circuit court judge and made no argument regarding the issue being raised in its answer.

Despite this Court’s request that the parties brief and argue the issue of waiver, appellee did not address this issue. 4 We elect, however, because of the importance of the issue and the desire to guide future trial courts, to address the matter pursuant to our authority under Maryland Rule 8-131(a). See also Conyers v. State, 367 Md. 571 , 790 A.2d 15 (2002)(discussing the Court’s authority to address issues not argued at the trial level). The issue of waiver in a post conviction proceeding has been discussed on a number of occasions by the Maryland Appellate Courts. See McElroy v. State, 329 Md. 136, 145-49 , 617 A.2d 1068 (1993); State v. Magwood, 290 Md. 615, 624 , 432 A.2d 446 (1981); Curtis v. State, 284 Md. 132, 149-50 , 395 A.2d 464 (1978); State v. Thornton, 73 Md.App. 247, 261 , 533 A.2d 951 (1987); Wyche v. State, 53 Md.App. 403, 405-06 , 454 A.2d 378 (1983).

The facts sufficient to prove that a right has been waived differ depending on whether the issue being raised relates to a fundamental right. Fundamental rights are “basic rights of constitutional origin, whether federal or state, that have been guaranteed to a criminal defendant in order to preserve a fair trial and the reliability of the truth-determining process.” Wyche, 53 Md.App. at 406 , 454 A.2d 378 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 236 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973)). A non-fundamental right will be deemed waived by a showing that the defendant had an opportunity to raise the issue in a prior proceeding but failed to do so. Wyche, 53 Md.App. at 407 , 454 A.2d 378 (citing Davis v. State, 285 Md. 19 , 400 A.2d 406 (1979)).

A fundamental right, however, ⁴⁷² requires a determination that the failure to raise the issue in a prior proceeding was “intelligent and knowing.” Curtis v. State, 284 Md. 132, 149-50 , 395 A.2d 464 (1978); State v. Thornton, 73 Md.App. 247, 261 , 533 A.2d 951 (1987). In Wyche , this Court summarized the waiver rule. We wrote: When the court finds that the possibility existed for a petitioner to have previously raised a particular allegation but he did not do so, the allegation will be deemed waived because of the failure to have previously raised it only if the right upon which the allegation is premised is a non-fundamental right. Conversely, if the right upon which the allegation is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding.

Fundamental rights as we have said, may be waived only where the petitioner intelligently and knowingly effects the waiver. 53 Md.App. at 407 , 454 A.2d 378 . A waiver of a constitutional right is “intelligent and knowing” when it is “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Thornton, 73 Md.App. at 253 , 533 A.2d 951 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)). We discussed the requirements of an “intelligent and knowing” waiver in Wyche v. State, 53 Md.App. 403 , 454 A.2d 378 (1983). We concluded that a waiver is “intelligent and knowing” when: 1.

The record expressly reflects that the defendant had a basic understanding of the nature of the right which was relinquished or abandoned; and 2. The record expressly reflects acknowledgment that the relinquishment or abandonment of that right was made or agreed to by the defendant. Id. at 406 , 454 A.2d 378 . Appellee based his motion for post conviction relief on the failure of the trial court to advise him of his privilege against self-incrimination and the right to confront his accusers.

These two rights are clearly fundamental. The issue this Court must resolve is whether appellee made an “intelli ⁴⁷³ gent and knowing” waiver of his right to complain about the denial of fundamental rights by failing to file an application for leave to appeal his Alford plea. By its terms the Uniform Postconviction Procedure Act provides that “an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation ... in an application for leave to appeal a conviction based on a guilty plea.” Md.Code (2001), § 7-106(b)(l)(i)(4) of the Criminal Procedure Article. “When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (l)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.” Id. at § 7—106(b)(2). In the event that a petitioner fails to make the allegation of error, the failure “shall be excused if special circumstances exist.” Id. at § 7-106(b)(l)(ii)(l).

The burden of proving the special circumstances is on the petitioner. Id. at § 7—106(b)(1) (ii) (1). Furthermore, in the case of applications for leave to appeal a conviction based on a guilty plea, the waiver provisions apply whether or not an application was filed. McElroy, 329 Md. at 149 , 617 A.2d 1068 (Bell, C.J. and Chasanow, J. dissenting).

See also State v. Hernandez, 344 Md. 721, 727-28 , 690 A.2d 526 (1997)(Hemandez is distinguishable from the case sub judice and McElroy because neither Gutierrez nor McElroy filed applications for leave to appeal, whereas Hernandez did). In State v. Thornton, 73 Md.App. at 258 , 533 A.2d 951 , quoting from the Court of Appeals in Curtis v. State, 284 Md. at 140 , 395 A.2d 464 , we discussed the interplay of the waiver sections: “Where the petitioner establishes that he did not in fact intelligently and knowingly fail to raise an issue previously, such issue cannot be deemed to have been waived. He need not, in addition, establish ‘special circumstances.’ It is only where the petitioner in fact intelligently and knowingly failed to raise an issue, or where he is unable to rebut the presumption of an intelligent and knowing failure that he ⁴⁷⁴ must show ‘special circumstances’ in order to