State v. Rich

Getty, J. “I am reminded, in this connection, of a story of an old Dutch farmer, who remarked to a companion once that ‘it was not best to swap horses when crossing streams. ’ ” —Abraham Lincoln, Remarks in Response to Lincoln’s Nomination by the National Union League (June 9,1864) In June 2009, the respondent, Otis Rich, filed a petition for writ of error coram nobis challenging the voluntariness of his 2001 guilty plea to conspiracy to distribute marijuana. In response to the petition, the State asserted that Mr. Rich’s claims were without merit and should be denied without a hearing. The coram nobis court agreed with the State, and denied Mr. Rich’s petition without a hearing. When Mr. Rich appealed the decision to the Court of Special Appeals, the State asserted for a second time that the record of the 2001 plea hearing was sufficient to establish that the guilty plea was knowing and voluntary.

Moreover, the ⁴⁵² State’s primary argument on appeal was that Mr. Rich waived the right to seek coram nobis relief by failing to file an application for leave to appeal his 2001 guilty plea. Thus, the State urged the intermediate appellate court to affirm the coram nobis court’s denial of Mr. Rich’s petition without a hearing. Mr. Rich’s appeal was then delayed for five years, during which time this Court decided State v. Smith, 443 Md. 572 , 117 A.3d 1093 (2015). In Smith , we held that a defendant does not waive the right to seek coram nobis relief by failing to file an application for leave to appeal a guilty plea.

Id. at 595 , 117 A.3d 1093 . Following our decision in Smith , the Court of Special Appeals lifted the stay on Mr. Rich’s appeal, and set the case for consideration in March 2016. At no point after our decision in Smith , or after the Court of Special Appeals lifted the stay on Mr. Rich’s appeal, did the State supplement or amend its earlier arguments in its brief to account for the evolution in coram nobis jurisprudence that had occurred in the intervening five years since the State filed its initial brief. The Court of Special Appeals decided Mr. Rich’s appeal in August 2016.

The intermediate appellate court held, pursuant to Smith , that Mr. Rich had not waived his coram nobis claim by failing to file an application for leave to appeal his 2001 guilty plea. On the merits of his claim, the Court of Special Appeals determined, based on the record of the 2001 plea hearing, that Mr. Rich’s guilty plea was not knowing and voluntary, and therefore the coram nobis court erred by denying him relief based on this ground. The Court of Special Appeals then remanded the case for the coram nobis court to consider whether Mr. Rich was suffering significant collateral consequences as a resiilt of his convictions. Following the Court of Special Appeals’ decision, the State filed a motion for reconsideration in that court.

In its motion, the State argued, for the first time, that the record of the 2001 plea hearing was inadequate for the intermediate appellate court to determine whether Mr. Rich’s guilty plea was knowing and voluntary. Thus, the State requested, midstream, that ⁴⁵³ the Court of Special Appeals order a remand for the comm nobis court to conduct an evidentiary hearing on the merits of Mr. Rich’s claim. The Court of Special Appeals denied the motion for reconsideration, and reissued its opinion. Before this Court, the State asks us to determine whether the Court of Special Appeals erred by denying its motion for reconsideration requesting a remand on the merits of Mr. Rich’s claim.

For the reasons that follow, we hold that the Court of Special Appeals did not abuse its discretion in denying the motion, and therefore we affirm. BACKGROUND A. The Guilty Pleas On December 29, 1993, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to possession with intent to distribute a controlled dangerous substance. The circuit court sentenced Mr. Rich to five years of incarceration, all suspended, and eighteen months of supervised probation. On October 23, 2001, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to possession with intent to distribute marijuana and conspiracy to distribute marijuana.

The plea hearing took place simultaneously with the plea hearing of another, wholly unrelated defendant named Michael Thomas. 1 At the hearing, Mr. Thomas’ defense attorney, Tom Kane, qualified both his client and Mr. Rich prior to the circuit court accepting the guilty pleas. Mr. Rich’s defense attorney, John Denholm, said very little at the hearing. After explaining to both defendants the rights they were giving up by choosing to plead guilty, Mr, Kane addressed the four potential grounds for appellate review of a guilty plea: MR. KANE: The fourth ground has a couple parts.

One is whether or not you understand the charge. Mr. Thomas and ⁴⁵⁴ Mr. Rich, you’re both pleading guilty to possession kind of offenses and possession can be either actual possession, meaning it’s on a part of you—in your pockets, holding it in your hand like a pen—or constructive possession, meaning that’s in the vicinity of where you are, and you are exercising dominion, meaning ownership, and control over it, meaning that if somebody tried to take it, you could stop them, such as my briefcase over on one of the chairs. I’m not touching it in any way, but I’m in constructive possession of that. Possessing it with the intent to distribute it means you’re having the intent to transfer that possession from you to somebody else.

That could be giving it away, it could be selling it, as long as the possession transfers. There doesn’t have to be any money involved. A gift is a transfer of possession. So that’s the possessing it with the intent to give it to somebody else, as opposed to use it all for yourself. * * * And, Mr. Rich, you understand you’re charged with marijuana and that’s another one of those substances that the Legislature says you can’t have?

MR. RICH: Yes. MR. KANE: Is there anything about the charge of possessing it with the intent to distribute it that you don’t understand?

MR. RICH: No. Neither Mr. Kane nor Mr. Denholm explained to Mr. Rich, at the plea hearing, the nature of the charge of conspiracy to distribute marijuana. After the circuit court found that Mr. Rich’s guilty plea was knowing and voluntary, the prosecutor read into the record the statement of facts supporting his plea: During the course of their observations, the officers observed approximately eight times where persons would hand United States currency to both Mr, Cook and Mr. Rich. The money would be collected on every occasion, and on every occasion, Mr. Cook and Mr. Rich would respond northbound ⁴⁵⁵ from their location to a house which was later found to be 825 North Collington Avenue, a vacant house.

Both were observed to reach into the front window of the house and respond back to the location of the person who would surrender currency to them. Mr. Cook and Mr. Rich were observed to hand unknown objects to these persons, who would accept the objects and walk out of the area. During the course of those observations, Mr. Armistead was observed to be standing with both Mr. Cook and Mr. Rich, and was observed to approach a late-model black Ford pickup truck, who pulled to the side of the street,... Through the information that was received, the observations made, and the actions of Mr. Cook, Mr. Rich, and Mr. Armistead, the officers believed that all three were working together to sell narcotics in the block and were keeping the narcotics in the vacant house at 825 North Collington Avenue.

Based on this statement of facts, the circuit court found Mr. Rich guilty of possession with intent to distribute marijuana and conspiracy to distribute marijuana. The court sentenced Mr. Rich to three years of incarceration, all suspended, and three years of supervised probation. On April 19, 2002, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to second-degree assault. The circuit court sentenced Mr. Rich to ten months of incarceration.

On January 9, 2009, Mr. Rich pleaded guilty in the United States District Court for the District of Maryland to conspiracy to distribute cocaine and possession of cocaine with intent to distribute. As part of his plea agreement, Mr. Rich “agreed” that he was a “career offender pursuant to U.S.S.G. § 4B1.1.” 2 The federal court sentenced Mr. Rich to 188 ⁴⁵⁶ months (15 years and 8 months) of incarceration. Mr. Rich is currently serving this sentence at a federal penitentiary. B. Coram Nobis Proceedings On June 29, 2009, Mr. Rich, acting pro se, filed three petitions for writ of error coram nobis in the Circuit Court for Baltimore City, challenging each of his three guilty pleas in the circuit court, respectively. 3 Specifically, and of particular relevance to this appeal, Mr. Rich argued, with respect to his 2001 guilty plea to conspiracy to distribute marijuana, that he was never informed of the elements of the conspiracy charge.

Therefore, Mr. Rich asserted, his guilty plea to this charge was not knowing and voluntary, in violation of Maryland Rule 4-242(c). 4 Mr. Rich submitted an affidavit and a transcript of the 2001 plea hearing in support of his claims. On August 10, 2009, the State filed answers to each of Mr. Rich’s petitions, requesting that the coram nobis court deny each petition without a hearing. On September 1, 2009, Mr. Rich filed responses to the State’s answer in each of the three cases, each one requesting that the coram nobis court vacate his conviction “or in the alternative, conduct an evidentiary hearing.” On February 5, 2010, the coram nobis court entered orders in each of the three cases denying Mr. Rich’s petitions without ⁴⁵⁷ a hearing. In each of the orders, the court “assume[d], without deciding,” that Mr. Rich was suffering collateral consequences as a result of his guilty plea in the circuit court.

In each case, the coram nobis court found that Mr. Rich had failed to meet his burden to show that his guilty plea was not knowing and voluntary. Regarding the 2001 guilty plea to conspiracy to distribute marijuana, the coram nobis court rejected Mr. Rich’s contention that his plea was not knowing and voluntary because he was not informed of the elements of the conspiracy charge. The coram nobis court acknowledged that Mr. Rich “was not dictated the elements of conspiracy,” but noted that “it is not necessary to disclose the specific elements of each charge on the record for a crime.” The coram nobis court concluded that “[t]he statement of facts [read at the plea hearing] clearly indicated that two or more persons were combining to commit a criminal or unlawful act, which satisfies the requirement! ] of State v. Priet,” 289 Md. 267 , 424 A.2d 849 (1981) that the defendant must be aware of the nature of the charge to which he is pleading guilty. Mr. Rich appealed from the denials of his petitions. 5 C. Proceedings in the Court of Special Appeals On November 18, 2010, Mr. Rich, acting pro se, filed a brief in the Court of Special Appeals.

On April 1, 2011, Mr. Rich filed a corrected brief. On August 9, 2011, Benjamin C. Sutley entered his appearance on behalf of Mr. Rich. In October 2011, Mr. Sutley filed a second corrected brief on behalf of Mr. Rich. 6 In his briefs, Mr. Rich argued that the coram nobis court erred in denying his petitions because, inter alia, his ⁴⁵⁸ guilty pleas in the circuit court were not knowing and voluntary. The State filed its brief in the Court of Special Appeals on December 9, 2011.

In its brief, the State argued that Mr, Rich was not entitled to coram nobis relief for five reasons: 1) Mr. Rich waived any claim of error regarding his guilty pleas by failing to seek leave to appeal from each of them; 2) Mr. Rich’s claims of error are barred by laches; 3) Mr. Rich is not suffering any collateral consequences from his convictions in the circuit court; 4) Mr. Rich’s pleas in each case were knowing and voluntary; and 5) Mr. Rich’s trial counsel was not ineffective for failing to file a motion for modification of sentence in each case. Specifically, regarding the fourth argument, the State asserted, “The records of the 2001 and 2002 plea hearings are sufficient to permit this Court to find that the totality of the circumstances compel the conclusion that both pleas were entered knowingly and voluntarily.” Therefore, the State requested that the Court of Special Appeals affirm the coram nobis court’s denials of Mr. Rich’s petitions without a hearing. On October 27, 2014, the Court of Special Appeals ordered that Mr. Rich’s appeal be stayed pending a decision by this Court in State v. Graves, 437 Md. 637 , 89 A.3d 1104 (2014) (granting certiorari). This Court granted certiorari in Graves on April 18, 2014 to determine whether § 8-401 of the Criminal Procedure Article (“CP”) applies retrospectively.

CP § 8-401, enacted in 2012, provides that “[t]he 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.” On December 5, 2014, this Court dismissed Graves as moot prior to oral argument. State v. Graves, 441 Md. 61 , 105 A.3d 489 (2014). Meanwhile, on July 18, 2014, this Court granted certiorari in State v. Smith to determine whether the coram nobis petitioner in that case had waived her right to seek coram nobis relief by failing to file an application for leave to appeal her conviction, and whether the petitioner had satisfied her burden of ⁴⁵⁹ proving that her guilty plea was not knowing and voluntary. 443 Md. at 576 , 117 A.3d 1093 . We heard oral arguments in Smith on December 10, 2014.

On' December 12, 2014, the Court of Special Appeals ordered that Mr. Rich’s appeal remain stayed pending a decision by this Court in Smith . This Court issued its opinion in Smith on July 13, 2015. On December 8, 2015, the Court of Special Appeals issued an order lifting the stay in Mr. Rich’s appeal, requesting that the Appellee’s (State’s) Brief be filed on or before January 15, 2016, and scheduling the case for consideration in March 2016. In response to this order, the State informed the Court of Special Appeals that it had already filed its Appellee’s Brief in December 2011, and did not request to amend or supplement that previously filed brief.

On August 30, 2016, the Court of Special Appeals issued its decision in Mr. Rich’s appeal. In a reported opinion, the intermediate appellate court held, pursuant to Smith , that Mr. Rich’s claims for coram nobis relief were not waived or barred by laches. Addressing the merits of his claims, the court held that Mr. Rich’s 1993 and 2002 guilty pleas were knowing and voluntary. However, reviewing the 2001 guilty plea for conspiracy to distribute marijuana, the intermediate appellate court held that the plea colloquy was insufficient to ensure that Mr. Rich understood the nature of the conspiracy charge.

The Court of Special Appeals noted that the coram nobis “court decided Mr. Rich’s coram nobis petitions without a hearing, so there is no testimony apart from the plea hearing itself from which we can evaluate Mr. Rich’s understanding of the charges.” Therefore, the intermediate appellate court concluded that Mr. Rich’s 2001 guilty plea was not knowing and voluntary. Finally, the Court of Special Appeals noted that the coram nobis court did not address whether Mr, Rich is suffering significant collateral consequences from his convictions, which Mr. Rich would have to show in order to receive coram nobis relief. The intermediate appellate court noted that this issue is one that the coram nobis “court should resolve in the first instance.” Accordingly, the Court of Special Appeals vacated the judgment of the coram nobis court with ⁴⁶⁰ respect to the 2001 guilty plea, and remanded to the coram nobis court to consider the issue of collateral consequences. On September 16, 2016, the State filed a motion for reconsideration of the Court of Special Appeals’ opinion.

In its motion, the State requested, for the first time, that the Court of Special Appeals remand this matter to the [coram nobis] court for a hearing on [Mr.] Rich’s petition where [Mr.] Rich and the State have an opportunity to present evidence relevant to the coram nobis court’s consideration of whether, in fact, [Mr.] Rich was unaware of the nature of the conspiracy charge prior to pleading guilty to it in 2001. Contrary to the State’s previous assertions in the coram nobis court and in its brief to the Court of Special Appeals, the State now asserted, Because the [coram nobis] court did not hold a hearing on [Mr.] Rich’s coram nobis petitions, the record before [the Court of Special Appeals] was inadequate to permit the Court to resolve [Mr.] Rich’s coram nobis claim that he was unaware of the nature of the conspiracy charge that he pled guilty to in 2001. The State did not seek reconsideration of the Court of Special Appeals’ holdings that Mr. Rich’s claims were not waived or barred by laches, or that a remand was required on the issue of whether Mr. Rich was facing collateral consequences from his convictions. On November 1, 2016, the Court of Special Appeals denied the State’s motion for reconsideration, withdrew its original opinion, and filed a new reported opinion.

In the new opinion, the Court of Special Appeals added a footnote responding to the State’s belated request for a remand on whether Mr. Rich’s 2001 plea was knowing and voluntary: The State did not ask for a remand on this point or proffer evidence it would have put on at a hearing, had there been one, but argued in its brief that we should infer Mr. Rich’s understanding of the charges from his acknowledgement that counsel “help[ed] him understand what the trial would ⁴⁶¹ be all about and guid[ed] [him] in coming to th[e] decision” to plead guilty. Rich v. State, 230 Md.App. 537 , 559 n.6, 148 A.3d 377 (2016) (alterations in original). On November 15, 2016, the State petitioned this Court for a writ of certiorari, which this Court granted on January 9, 2017. State v. Rich, 451 Md. 251 , 152 A.3d 754 (2017).

The State presents one question for our review: Where the circuit court denied [Mr.] Rich’s coram nobis petition challenging his 2001 conviction without a hearing, in light of Smith v. State, 443 Md. 572 , 117 A.3d 1093 (2015) (Part II), did the Court of Special Appeals err in not remanding this matter to the Circuit Court for Baltimore City for a hearing to determine whether [Mr.] Rich, in fact, was unaware of the nature of a conspiracy charge at the time of his plea? STANDARD OF REVIEW In reviewing the Court of Special Appeals’ denial of the State’s motion for reconsideration, “our standard for review is whether the Court of Special Appeals abused its discretion in denying the motion.” Byrum v. Horning, 360 Md. 23, 33 , 756 A.2d 560 (2000). DISCUSSION A writ of error coram nobis “is an ‘extraordinary remedy’ justified ‘only under circumstances compelling such action to achieve justice.’ ” Smith, 443 Md. at 597 , 117 A.3d 1093 (quoting Skok v. State, 361 Md. 52, 72 , 760 A.2d 647 (2000)). “[C]oram nobis should be available to raise fundamental errors in attempting to show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” Id. (quoting Skok, 361 Md. at 72-73 , 760 A.2d 647 ). ⁴⁶² In Skok , this Court outlined five requirements for obtaining coram nobis relief: First, “the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional or fundamental character.” Skok, 361 Md. at 78 , 760 A.2d 647 (citing United States v. Morgan, 346 U.S. 602 , 612, 74 S.Ct. 247 , 98 L.Ed. 248 (1954)).

Second, “a presumption of regularity attaches to the criminal case, and the burden of proof is on the coram nobis petitioner.” Id. (citing Morgan, 346 U.S. at 512 , 74 S.Ct. 247 ). Third, “the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction.” Id. at 79, 760 A.2d 647 . Fourth, “[b]asic principles of waiver are applicable to issues raised in coram nobis proceedings.

Similarly, where an issue has been finally litigated in a prior proceeding, and there are no intervening changes in the applicable law or controlling case law, the issue may not be relitigated in a coram nobis action.” Id. (citation omitted) (citing Morgan, 346 U.S. at 512 , 74 S.Ct. 247 ). Fifth, “one is not entitled to challenge a criminal conviction by a coram nobis proceeding if another statutory or common law remedy is then available.” Id. at 80, 760 A.2d 647 . In Smith , this Court considered whether CP § 8-401 applies retrospectively to petitions for coram nobis relief filed prior to the statute’s effective date of October 1, 2012.

Smith, 443 Md. at 588 , 117 A.3d 1093 . CP § 8-401 provides that “[t]he 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.” After examining the statute, its legislative history, and this Court’s caselaw on the nature of coram nobis relief, the Smith Court held that the statute does apply retrospectively to all cases that were pending in court when the statute became effective. Smith, 443 Md. at 595 , 117 A.3d 1093 . In this case, the Court of Special Appeals applied this holding to Mr. Rich’s petitions, which were pending in that court on the statute’s effective date, and held that his claims for coram nobis relief were not waived.

Rich, 230 Md.App. at 549 , 148 A.3d 377 . The State does not contest this portion of the Court of Special Appeals’ decision. ⁴⁶³ The second issue in Smith was whether the coram nobis petitioner in that case had satisfied her burden to show that her guilty plea was not knowing and voluntary. Smith, 443 Md. at 649 , 117 A.3d 1093 . To address this issue, the Smith Court clarified the distinction between challenging a guilty plea on direct appeal versus doing so through the “extraordinary remedy” of coram nobis relief: Daughtry was an appeal of a conviction after a plea, not an appeal of a ruling on coram nobis.

Thus, as this Court expressly framed it, the issue in Daughtry was not just whether the defendant understood the nature of the charges, but also whether the trial court was correct “in determining whether [the] defendant understood the nature of the charges[.]” This distinction is vital, as, in a coram nobis case such as this one, the only issue is whether the defendant understood the nature of the charges—regardless of whether the trial court could determine as much. By contrast, in an appeal of a conviction after a plea such as the one in Daughtry, the ultimate issue depends on what the trial court could find, and that issue is necessarily limited to what happened at the plea hearing, which includes the entirety of what the trial court could find. Simply put, here, it does not matter what the trial court could find; what matters is whether Smith’s lawyer told Smith about the nature of the charges. Id, at 653, 117 A.3d 1093 (alterations in original) (distinguishing State v. Daughtry, 419 Md. 35 , 18 A.3d 60 (2011)).

In other words, a defendant can successfully challenge a guilty plea on direct appeal by showing that the trial court did not follow the procedural requirements of Maryland Rule 4-242(c), which includes finding, on the record, that “the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea.” However, when challenging a guilty plea through a petition for writ of error coram nobis, the defendant is only entitled to relief if he or she can establish that, at the time of the plea, he or she was not, in fact, “pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea,” regardless of ⁴⁶⁴ whether the trial court satisfied the procedural requirements of the Rule. Because of this distinction between what a defendant must show to successfully challenge a guilty plea on direct