Holmes v. State

429 added). Kaye, “[mjarriage Judge Chief simply put As children,” major- yet producing much more than about only offering such as “how gaping questions ity open leaves in the hospital visit loved one a sick heterosexuals in encouraging furthers the State’s interest conceivably ... id. at have children.” See couples to opposite-sex C.J., sheer breadth (Kaye, dissenting). N.E.2d at 31 are, pursuant marriage appurtenant the benefits 2-201, couples § made unavailable same-sex Family Law Id. credit.” “impossible to justification renders Romer v. Ev- C.J., (Kaye, dissenting) (citing N.E.2d at 32. 1620, 1629, ), 635, 116 134 L.Ed.2d 855 ans S.Ct. U.S. (1996)).

932 A.2d 698 Lendro Thomas Darrell HOLMES a/k/a Maryland. STATE Term, 140, Sept. 2006. No. Appeals Maryland.

Court Sept. 21, 2007. Pierce, Allison E. Assistant Public Defender (Nancy S. Forster, Defender, Baltimore), brief, on Public for petition- er. Ince,

Mary Ann Assistant Attorney General F. (Douglas Gansler, General of Attorney Maryland, Baltimore), brief, for respondent. *, RAKER, BELL, C.J., CATHELL

Argued before BATTAGLIA, M. and ALAN HARRELL, GREENE (Retired, assigned), JJ. specially WILNER BATTAGLIA, J. task with the this Court judice presents sub case plea guilty who enters a an individual

determining whether leave to file an does not but who his waives resulting and sentence conviction challenging his and sentence subsequently challenge when error for a writ of coram through petition parole probation. We not incarcerated or on individual is individual waives his that an presumption that a shall hold if arises for a of error coram nobis file a writ right to having been individual, entering after appeal, file for leave informed of Because the appeal. an for leave to does not file presumption in the case did rebut present to excuse his waiver, circumstances” “special nor demonstrate affirm appeal, an for leave we shall failure file Special Appeals. the Court of judgment

I. Introduction Thomas,1 Lendro Darrell Holmes petitioner, a/k/a weapon, assault with robbery deadly with with a charged deadly weapon, robbery, a concealed carrying intent to commit injure. weapon with intent openly carrying deadly pled subsequently that entries reflect Thomas docket * retired, Cathell, J., hearing participated in and conference of now Court; being this after recalled while active member of this case Constitution, IV, 3A, participated he pursuant Article Section also to the adoption opinion. of this in the decision and brief this that his correct name is 1. stated in his before Court Petitioner although guilty proceeding in he at his Lendro Thomas Thomas. As Petitioner's his correct name was Leadio testified that hearing acknowledged at the coram on December counsel of Darrell was convicted in under name Petitioner confusion, we will refer to Petitioner In order to avoid further Holmes. by the surname Thomas. deadly robbery weapon at a hearing City, during Circuit Court for Baltimore which court name, residence, questioned Thomas and determined his age, his date of birth and under was not the influence of alcohol or drugs, patient he had been a in a mental institution, he understood the terms his plea agreement:2 Holmes, right. now, All Mr.

[COURT]: Thomas. Thomas. [STATE]: It’s a plea? Is it [COURT]: Yes. [STATE]: is, FOR It [COUNSEL THOMAS]: Your Honor. plea? What is the [COURT]: date, years Three from that all [STATE]: same suspended year. one but All right. suspend Three all one year.

[COURT]: but CLERK]: Probation? [COURT Probation to be determined

[STATE]: wisdom court, which is extensive. All right. got He has years

[COURT]: two left. It will be years probation. right. two All Holmes, your CLERK]: Mr. [COURT correct name? Leadio Thomas. [THOMAS]: CLERK]: Who?

[COURT Leadio [THOMAS]: Thomas. you spell [COURT CLERK]: How do that? [THOMAS]: L-E-A-D-I-O. your [COURT CLERK]: That’s real name? Yes [THOMAS]: [COURT CLERK]: Address? 2123 North [THOMAS]: Smallwood Street. pled guilty during “group” guilty plea hearing. Rodney 2. Thomas a Tooks, Bennett, Moody, Jacqueline Delroy Diggs Ronald also guilty pleas; party appeal. entered none of is a them to this or apartment? a house Is that CLERK]: [COURT House. [THOMAS]: code? Zip CLERK]:

[COURT 16,21216. [THOMAS]: of birth? CLERK]: Date [COURT [THOMAS]: 12/21/62. you? old are CLERK]: How

[COURT Twenty-nine. [THOMAS]: you. Thank Okay. CLERK]:

[COURT qualify like me to you THOMAS]: FOR Would [COUNSEL now, Your Honor? them Please.

[COURT]: Now, I’m ask you going THOMAS]: FOR [COUNSEL you ques- If don’t understand questions. all same has answer so tion, everybody But your raise hand. Okay? the answers. Now can down stenographer take any any drugs under influence of alcohol here anyone today? No.

[THOMAS]: Has ever been anybody THOMAS]: FOR [COUNSEL under the care of institution or in a mental patient psychiatrist? No.

[THOMAS]: Now, here everyone does THOMAS]: FOR [COUNSEL is, That plea bargain? of his and her understand the terms any have anybody Does going what the sentence is be. about it? questions No.

[THOMAS]: Now, anybody else FOR does THOMAS]: [COUNSEL questions? have other No.

[THOMAS]: colloquy, informing Thomas continued Thomas’ counsel his waiving he would be by entering guilty plea, him, trial, against the witnesses to cross-examine self-incrimination, right against his to which indicated Thomas his understanding: Now, FOR All under- right. you

[COUNSEL THOMAS]: you stand that when have a such all bargain as we have today, here it means will trial in there not be a the case. words, you other will not to trial. The will go witnesses into You come the courtroom. will not cross-examine any we will produce witnesses and of our own. What happen will is that the will attorney judge state’s read to the a series of he feels he could if a prove facts there were trial. that? everybody Does understand Yes. [THOMAS]: Now, FOR you

[COUNSEL THOMAS]: if had wanted to trial, you have could have had either a jury trial or court A trial. trial means that twelve jury are selected to people evidence, hear the they decide whether think they you A guilty. are innocent or court trial means the judge, himself, evidence, listens and he decides whether he you thinks are innocent if guilty. you And had had a trial, regardless you jury whether had a trial or a court trial, prove the State would have to you are charges beyond these a reasonable doubt before could you guilty. be found Does everybody understand that? [THOMAS]: Yes. Now, you FOR plead guilty,

[COUNSEL THOMAS]: when you give rights, a number up including what called a against right self-incrimination. What that is nobody means you can make against yourself be witness own your you case. But when plead guilty, you give up that right. Does that? everybody understand Yes. [THOMAS]: questioned by

Thomas was also his counsel whether regarding appellate right. he understood his More Thomas particularly, was informed pleading guilty, forfeiting he was (an right to a direct from his conviction and sentence instead, “automatic” appeal) and that the had take appeal (“permission” for leave to file an appeal): Now, guilty, you plead after THOMAS]: FOR

[COUNSEL You still appeal. can have automatic you do not If an appeal. to take higher permission the court ask only it could grant that higher permission, court should ground be four One would grounds. hear an on hear case. court had the to this power or not this whether to given whether the sentence ground second would be The third ground The you by judge legal was sentence. represented you adequately be have been would whether you you, I to each of are attorney. And want ask your attorney far? your so satisfied with services Yes [THOMAS]: be final would ground FOR THOMAS]:

[COUNSEL freely voluntarily. entered into and plea was whether know, has you each Now, bargain, than the which plea other Has you? to you promised else been offered anything guilty? you you plead or forced threatened anybody No. [THOMAS]: doing freely Is so everybody FOR THOMAS]:

[COUNSEL voluntarily today? and Yes.

[THOMAS]: Now, anybody does have THOMAS]: FOR [COUNSEL your plea we here or about doing about what are questions arrangement? No.

[THOMAS]: know- entered The court then found that Thomas’ of facts from and heard statement ingly voluntarily, plea, and sentenced Attorney, accepted guilty Thomas’ State’s years imprisonment, year with all but one Thomas three two years probation: and suspended, of the advice questions. I no On the basis have

[COURT]: I find that each understands given responses, and and willingly trial rights knowingly, her full and rights voluntarily relinquishing electing pro- those and plea. of a I find that this way being ceed action is All knowingly, willingly voluntarily. taken and I’ll right. hear the statement of facts. honor, Thomas, Diggs Your as to Mr. Mr.

[STATE]: 1992, they September, the 20th of were in 1700 block of North Avenue where were Barnes and West also Carl time, Thompson. Dionne At Mr. and Mr. Thom- Diggs two approached people. as those One of them produced out a pellet money, what turned to be demanded gun, received from Mr. Barnes and received from Ms. $41 $13 Thompson. The were police called. Officer Sexton Philip along Anthony Malocky, they comes Officer re- a description They ceive of the defendants. canvas the area. The are A pellet gun defendants arrested. is recov- time, at pellet ered Your Honor. It was found to be a The gun brought the crime lab. victims are where up to are, the defendants and it’s a It’s a show-up ID. short time robbery. and a short distance after the initial That’s the as to and Diggs. facts Mr. Thomas Mr. FOR No

[COUNSEL additions corrections THOMAS]: facts, to the statement of Your Honor. Well, wait a minute. Let make a on finding

[COURT]: me I I Diggs yet. and Thomas. don’t think did No, you FOR didn’t. [COUNSEL THOMAS]: right. AH [COURT]: statement of facts read Attorney State’s accep- forms sufficient factual basis for to—you guilty pleas calling only tance as were one count, count, to the first as both? Yes, Your Honor.

[STATE]: right. All I will each accept guilty pleas [COURT]: the defendants and enter a finding. Thomas, FOR any- [COUNSEL Mr. is there THOMAS]: you thing say judge sentencing? would like to to the to prior No, sir. [THOMAS]: FOR are for ready sentencing.

[COUNSEL THOMAS]: We Thomas, three years, to sentence As Mr. [COURT]: court costs. years probation, one two year, all but suspend 9/20/92, And also start THOMAS]: FOR [COUNSEL Honor. Your case, Yes, Diggs Mr. each effective

[COURT]: 9/20. the time to be served Thomas, beginning portion Mr. right. All is 9/20. right Thomas of his

Thereafter, advised again Thomas’ counsel conviction and leave to for to file an thirty within writing must be filed such days: you me advise each of Let THOMAS]: FOR

[COUNSEL Gentlemen, have you your each time. your rights at this to the Court to make an permission right ask If ask Maryland. want to you Special Appeals days in writing thirty it within have do permission, you ask Secondly, you each have today. from ninety days have sentence. You your to review judge And, finally, him to review reconsider. which ask Thomas, your to ask to have you have the Mr. could panel judges. They of three reviewed sentence it. could They the same or reduce either leave the sentence you have right, it. If want to ask for you not increase under- days. everybody it Now does thirty to do within rights? their stand Yes.

[THOMAS]: appeal an for leave Thomas did not file Special Maryland pursu Appeals conviction to the Court 12-302(e) and Judicial Proceed ant of the Courts to Section (1974, Repl.Vol.),3 and has Article, Maryland Code 1989 ings his sentence. completed Article, 12-302(e) Proceedings

3. of the Courts and Judicial Section (1974, Repl.Vol.)stated: Maryland “Section 12-301 does Code following plea judgment a permit a final entered from sought judgment shall be a circuit court. Review of such a appeal.” application for leave to 2004, was drug weapon Thomas convicted of various and in the offenses United States District Court for the District Maryland. a robbery Because his 1992 conviction for weapon, deadly he was classified as a “career offender” under the Sentencing being Federal Guidelines.4 Prior to sentenced court, in an federal effort avoid enhanced recidivist guideline, filed, sentencing Thomas in the Circuit Court City, Baltimore a Petition Writ of Error Coram Nobis challenging validity of his 1992 conviction and sentence. hearings At January December and 24, 2005, February argued Thomas that his guilty plea was knowing neither nor and voluntary therefore that resulting conviction should be upon vacated based five defects that alleged during proceeding: he occurred the guilty plea

(1) Mr. Thomas was given group plea with four other (2) time; defendants at same Mr. Thomas was never (3) were; told what charges him Mr. against Thomas (4) faced; was not informed the maximum he Mr. penalty was if plead Thomas not asked he wanted to guilty—instead he was told that was what he and doing; Mr. Thomas was not told of his to a speedy public trial.

In a memorandum, written order and Judge W. Michel Pier- son of the Circuit Court for City rejected Baltimore four of arguments, Thomas’ finding Thomas did not establish performance his counsel’s was affected “group plea”; that Thomas did not have to told be of the maximum he sentence faced acquiesced because agree- sentence; ment and agreed-upon the record reflected if that Thomas was asked he was pleading guilty and that he responded affirmatively; and that required Thomas was not be advised of his speedy public Judge trial. however, determined, Pierson that the record was not suffi- 2, 2005, May 4. On Thomas was sentenced in his federal case to thereafter, imprisonment months filed notice of Circuit; Appeals United States Court of for the Fourth the court affirmed Thomas’ conviction and sentence. of the Thomas understood the nature dent to show that him, concluding petition, Thomas’ but denied charges against that intelli- presumption not rebutted the that Thomas had challenge his convic- right waived his knowingly gently by filing an not proceeding in a writ error coram nobis tion original for leave to sentence: told was never

However, the contention that Mr. Thomas different him were stands charges against what the 4-242(c) specifically that: footing. requires Rule Maryland it guilty only after deter may accept “The court mines, of the on the record an examination defendant upon court, Attorney, the court conducted the State’s open thereof, defendant, any combination attorney the for the (1) under voluntarily, is with pleading that the defendant consequences charge the nature the and the standing of for the plea.” of the there is a factual basis plea; and aware of The test for whether the defendant has been made judge, offense whether the trial consid the nature record, ering fairly could that the defendant determine Priet, 289 charges. the nature of the State v. understood (1981). 267, 280[,424 Md. A.2d 356] correctly points compliance The State out that this explain that the court requirement require does understanding A charge. elements of the defendant’s of the charge may from the record. the court be inferred As Priet, charge the elements of the stated some cases However, in may apparent charge be from the itself. this case, transcript guilty plea proceeding nowhere to the court is there even identification of the supplied Therefore, charge petitioner guilty. to which is pleading support court that the record could does believe the trial court could make a determination conclusion that petitioner charges against understood nature of the him. chal- petitioner

The State waived his argues The State con- lenge guilty plea. the effectiveness of to file an failing waived this tends application for leave challenge the effectiveness of in other forum. In support of this proposi State, tion, cites McElroy v. 136, State 329 Md. 617 A.2d Skok[5] (1993). 1068 Petitioner in argues response that both and the recent Special decision the Court of Appeals State, Skok v. (2000), 361 Md. A.2d preclude 52[760 647] application of the waiver standard employed McElroy. Skok, held Appeals Court that ordinary concepts waiver to coram apply petitions. It stated that:

Basic principles applicable waiver are to issues raised v. United States Morgan, proceedings. coram nobis [502, 512, 247, 253, 346 248, U.S. 74 S.Ct. 98 L.Ed. 257.] Therefore, body ... the same of law concerning waiver litigation issue, and final anof which is applicable under Maryland Act, Code(1957, Post Conviction Procedure (b) 27, 1996 Repl.Vol., Supp.), §§ 1999 Art. through 645A (d), shall applicable be to a proceeding coram nobis See, Rose, e.g., v. challenging a criminal State conviction. 238, 243-250, 1314, (1997); 345 Md. 691 A.2d 1316-1320 1259-1263, State, v. Hunt 122, 132-139, 345 1255, Md. 691 A.2d denied, rt. 1131, 2536, 521 U.S. 117 138 S.Ct. ce Hernandez, State v. (1997); 721, L.Ed.2d 1036 344 Md. State, Walker v. (1997); A.2d 629, 690 526 343 Md. 640- State, 650, 429, 684 Oken v. (1996); A.2d 434-439 343 Md. denied, 256, 269-273, 30, (1996), cert. 681 A.2d 36-38 519 1079, 742, (1997); U.S. 117 S.Ct. Curtis 136 681 L.Ed.2d State, v. (1978). 132, 284 Md. A.2d State, In Curtis v. 132[, 284 Md. (1978), 395 A.2d 464] petitioner who had been convicted of murder sought to raise an allegation of ineffective assistance of counsel a post- petition. The State argued that allegation had been waived it in petition- because had been raised er’s direct or in his previous petition. upon It relied (c) Ann.Code, § Md. art. 645A as then effective. That provided statute that an allegation error was deemed have been waived when a petitioner intelligently know- (2000). 5. Skok Md. 760 A.2d 647 enunciated a allegation, and ingly failed to make such petitioner intelligently and presumption that the rebuttable it had not allegation to make such when knowingly failed provided It also that prior proceeding. made in a been consequences be relieved of the petitioner could argued The State special waiver under circumstances. rebut the circumstances” would

only finding “special rejected argument. this waiver. The court presumption of waiver of fundamental applied It 645A held Section Zerbst, of Johnson v. to which the waiver standard rights 82 L.Ed. 1461 304 U.S. 58 S.Ct. held established presumption It further

applicable. stipulated rebutted evidence or the statute could be intelligently showing facts that the did Curtis, In the previously. fail to raise the issue knowingly petitioner to facts that showed that was parties stipulated might not aware that his have been ineffective or counsel According- have the previously. he should raised issue the ly, presumption the court held that had been rebutted. in- Md. McElroy A.2d guilty pleas their challenged volved two defendants who Each under the Conviction Procedure Act. defendant Post the guilty plea judge claimed that his was defective because plea neglected explain, the on the guilty who conducted to record, all of Neither defendant had rights. the defendant’s following guilty filed to his appeal an leave again provisions of section plea. The court construed the 645A(e) a creating presumption petitioner a rebuttable allegation raise an of intelligently knowingly failed to rights where that affecting error fundamental constitutional proceeding, been made in a allegation prior could have rights by which the a applied because surrender right. a Each of the plea is fundamental constitutional file an applica- had been advised of his petitioners in appellate tion leave to order to seek review of the unlike guilty plea petitioners, conviction. Neither of Curtis, of the petitioner any explanation offered reason that he did seek review. Based on this circum-

stance, the Curtis distinguished court because that case there had been a showing pre facts rebutted the 147-148, 151, sumption. 329 Md. at 617 A.2d 1068. is

[I]t the court’s conclusion that under standards apply Act, waiver that the Post Conviction petitioner has failed to establish that waiver challenge of his the conviction was not knowing and Unlike the intelligent. Curtis, petitioner petitioner has offered no evidence whatsoever that his to challenge show failure his convic- intelligent knowing. However, tion challenges the assertion that these standards of waiver Skok, apply to a petition. coram nobis ex- court plained its writ expansion of coram nobis as follows: vast

Along majority appellate which courts matter, have considered the we scope believe that nobis, United v. Morgan, coram States as delineated is justified by contemporary public conditions and policy. Very case, often in a criminal because of a relatively light imposed reason, sanction or for some other defendant willing to even if forego errors of a constitution- al may Then, or fundamental nature have occurred. when the defendant later learns of substantial collateral conviction, consequence may it be too late and, if the appeal, defendant is not incarcerated or on parole probation, he or she will not challenge be able to a petition for a writ of habeas corpus under the Post Conviction Procedure Act. 361 atMd. A.2d 647. As petitioner argues, it seems from this that passage the defendant who is the paradigmat- ic candidate for the availability of the expanded writ of coram nobis is a who defendant has knowingly eschewed his conviction, i.e., right challenge to his who has intelligently and knowingly right waived to challenge the conviction. this Notwithstanding passage, conclusion, it is the court’s reasons, for two that the waiver standards embodied in the First, Post Conviction Act apply. do hold to otherwise to would be render meaningless the Skok statement made that these waiver standards apply—to conclude that the Second, it did not mean what said. Appeals Court with in fact consistent standards is these waiver applying was purpose in Skok. The court’s holding of the purpose the their who could not attack remedy persons provide to no they Conviction Act because under the Post convictions supervision. Such to sentence longer subject were the to such remedy by granting persons bemay provided if right they that would have to attack the same right provided is the they subject—and were so that the is conditioned the Post Conviction Act. That To that forth in the effectuate waiver standards set statute. to them with a remedy, necessary provide greater it is not they subject if were remedy they enjoyed would have than Furthermore, court provision the Act. the Act’s that the cir- “special the waiver standards in may apply decline power additional provides cumstances” court with an from of their waiver petitioners consequences relieve Therefore, necessary dispense when warranted. it is not Act in order to waiver standards have power to relief. grant (omission original) original).

(emphasis Special Appeals Thomas noted an the Court Thom unreported opinion, which affirmed Holmes a/k/a 2006). (filed Term Sept. as v. No. Nov. intermediate court with the circuit court appellate agreed it that Thomas be informed of the required was not pleading guilty, disagreed maximum he faced but penalty with the court that Thomas had to be informed of circuit charge pleading guilty, to which he was “identification” concluding guilty plea knowing Thomas’ voluntary: defendant significant

It is criminal told statutory name of the offense identifying common law 4-242(c) that the charged. requires with which was Rule the charge. defendant has an the nature understanding may The nature some crimes be deduced from description of the crime itself.

The upon charge statement facts which the was premised appellant’s was read into the record in presence. The State clearly robbery dangerous described with a weapon; fact, making reference to the of the specific “pellet gun” use “robbery.” course of the find that description We sufficient foundation for the trial court to determine that nature appellant charge understood the of the and the elements of the crime. dicta, Sharer,

(emphasis Judge original). J. Frederick writing for the three judge panel, opined Thomas waived right challenge plea his to whether his guilty intelligent was knowing because he failed to allegation raise the error for application appeal original an leave to his conviction: file, Appellant opportunity had to and was advised file, to appeal an leave to following his For 1992 conviction. reasons that remain unexplained, burden, failed to himself right. therefore, avail of that upon to appellant convince the coram nobis court that his failure of post-conviction to seek some form relief was knowing intelligent right. waiver of his

[*] ^{[*] [*]} argues that the Skok did Appellant court equate failure file an for leave from a with the waiver plea of the to challenge through a coram nobis at a time. interpret later To as appellant argues Skok would us require ignore Court’s that the waiver holding provisions the PCPA are applicable to coram proceedings. appel- We believe argument lant’s be without merit.

Finally, appellant claims that the legislature intended differ- ent provisions results under the waiver PCPA criminal pursue defendants’ who fail to a direct as appeal, contrasted those who fail seek leave to from a guilty plea. or language, “whether that because the

Appellant asserts in one an was included appeal,” took petitioner not the other, be the two subsections should and not subsection have find that waiver Appellant would us differently. read (1) a petitioner where only in three circumstances: occurs (2) to fails petitioner where a appeal; to file a direct fails (3) petitioner a files appeal; in a where raise the issue direct to raise the issue. appeal for leave to and fails an application logic appellant’s argument. to appreciate We fail a convicted guilty plea, a based on a Following conviction are: respect allegations to error defendant’s options (1) to for leave application appeal; the error allege PCPA, if a defendant does As we read the nothing. do waived, to subject allegation of error is deemed nothing, (2001). Ann., § Proc. 7-106 rebuttal. See Md.Code Crim. any raise allegation failure to appellant’s Because know- error, presumption intelligent of an statutory produce to has failed ing Appellant waiver arose. presumption. evidence to rebut this certiorari, writ of which Thomas’ for granted petition

We for review: questions three our posed

1) a but who does person guilty plea Does a who enters post leave to or a conviction application appeal

file an for later plea right waive his to petition challenging challenge resulting peti- a coram nobis tion?

2) right challenge guilty his his 1992 Did waive through petition? a coram nobis

plea conviction 3) consti- petitioner’s guilty plea entered violation of Was during guilty at no principles point

tutional when charge of the to which hearing was he informed plea statutory maximum guilty penalty was pleading that charge? for Md. 918 A.2d

Holmes Thomas v. a/k/a (2007). having if pleads guilty, We hold that an individual who for right application informed of his to file an leave been sentence, from his conviction and file does not such an appeal, for leave to application a rebuttable presumption arises that he has challenge waived his conviction in subsequent nobis proceeding. coram Because Thomas did waiver, presumption not rebut the nor “special demonstrate circumstances” to excuse failure file an challenge leave to appeal, his his conviction and writ of through sentence error coram nobis waived.6

II. Discussion Thomas contends that a who person enters does not file an but leave to resulting conviction, the right challenge does not waive to his in a proceeding. conviction coram nobis He that under argues Article, Section 7-106 of the Criminal Procedure Maryland (2001),7 Code presumption rebuttable that an individual challenge 6. Because we find that Thomas waived his his to through proceedings, ques- coram we do not address tion three. provides: 7. 7-106 Section title, (a) finally litigated.—For purposes allega- When of an this litigated finally tion of error is when: (1) appellate an of court the State decides of on the merits allegation: (1) appeal; on direct or (ii) any application appeal on consideration of an for leave to filed subtitle; § under 7-109 of this (2) jurisdiction, original hearing, a court of a after full and fair allegation petition decides on the in a merits for a writ of nobis, corpus of habeas or a writ error coram decision unless the on clearly the merits (b) erroneous. error.—(l)(i) allegation Except provided Waiver subpar- as (ii) agraph paragraph, allegation of this an of error is waived when a petitioner intelligently knowingly could made have but failed to allegation: make the trial; before 1. trial; 2. appeal, petitioner 3. on direct whether appeal; or not the an took application appeal 4. in an for leave a to conviction based on a guilty plea; began in a corpus proceeding 5. habeas or coram nobis

petitioner; upon a challenge his his conviction based waives application an actually if the files only applies individual allegation raise the error. leave to and fails to appeal for did not include Assembly that because the General He asserts 7-106(b) failing effect of addressing the in Section provision a appeal post-conviction file an for leave to application Legisla- appeals, it when it addressed direct relief as did apply the waiver provisions could not have intended ture filed. for for is not Thomas application when an leave file equated this the failure to contends that Court has also with waiver under the Post for leave an Skok v. Act, our decision citing Procedure Conviction (2000) support. Md. 760 A.2d presump- that even were rebuttable argues Thomas also case, “special to arise in this circum- tion of waiver justify which failure file an stances” exist subtitle; prior petition 6. in a under this petitioner began. proceeding 7. (ii) other that the allegation be if 1. to make an of error shall excused Failure special exist. circumstances petitioner proving special has the circum- 2. burden stances exist. allegation of When have made an error at could (l)(i) proceeding paragraph error, forth in of this subsection but did not set presumption allegation is a make there rebuttable knowingly petitioner intelligently allega- failed to make the tion. (c) judicial imposes that Constitution new stan- decision Effect of dard.—(1) applies on the of This subsection after decision merits allegation proceeding allegation an an of error or after a in which may error been have waived. any title, Notwithstanding provision allegation an other this may finally litigated error been or waived not be considered to have binding under this title if a court whose decisions are on the lower courts of the State holds that: (i) Maryland of the Constitution United States Constitution procedural imposes proceedings State criminal or substantive previously recognized; standard not and (ii) applied retrospectively is be and would standard intended to thereby validity petitioner’s affect the sentence. (2001), § 7-106 of Criminal Procedure Article. Section Md.Code change without former 7-106 was derived substantive from Section (b) (d) through Maryland 27 of the Code.2001 Md. 645A Article Laws, Chap. 10. appeal leave to his 1992 conviction because his sentence was significantly below the maximum authorized sentence for rob bery deadly with a weapon and because Thomas did not anticipate subject that he be would to an enhanced penalty as a recidivist federal Additionally, court. Thomas contends that he has rebutted the presumption of waiver because did not intelligently knowingly and waive challenge his to his conviction because he did know that his right file an for leave appeal included the right to challenge whether he entered knowingly guilty plea. He also asserts guilty plea because his was not entered and intelligently knowingly, he could not intelligently have knowingly right waived his to file for leave to appeal, citing Parker v. State, Md.App. (2005), 866 A.2d 885 for support. State,

The" conversely, urges us to hold that an individual who a guilty plea enters but who does not file an application for leave to appeal challenging his conviction waives the to challenge any in a subsequent errors coram proceed- ing. argues State the rebuttable presumption of 7-106(b)(l)(i)(4) waiver under Section of the Criminal Proce- Article, (2001) (“[A]n dure Maryland Code allegation of error waived when a could have made but intelligently knowingly failed to make the ... allegation an applica- tion for leave to a conviction based on a guilty plea ”), .... arises when an allegation error is not raised application for leave to appeal, whether the application is filed or not. The State also asserts that “special circumstances” do case, not exist in this and that Thomas has not presented any evidence to rebut the presumption that he intelligently and knowingly waived his file an application for leave to challenge his conviction.

We have taken the opportunity most recently explore applicability of a writ of error coram nobis to the voluntariness of a criminal in Skok v. 361 Md. 760 A.2d 647 (2000). case, In that pled Skok possession of cocaine and was sentenced to imprisonment years for two with all but suspended. time served Skok subsequently entered a plea of nolo contendere to another charge possession of cocaine day with credit for one imprisonment sentenced and was file an case did Skok In neither jail. in day spent one the the upon Based his conviction. for leave cases, the United in the two criminal him against judgments subsequently Service and Naturalization Immigration States Skok, who subse- against proceedings deportation initiated alleging coram for a writ error petition filed a quently vacated. The him be should judgments against Skok’s denying an order initially issued circuit court recon- motion for denied Skok’s and also prejudice” “without nobis “is an error coram sideration, the writ of stating that case.” relief in this not appropriate and is remedy extreme Appeals Special at 651. Court at 760 A.2d Id. that error and held of the circuit court judgment affirmed common law. remedy at a limited nobis relief was coram Court, reversed writing for this Eldridge, C. Judge John recognized in doing, so Appeals Special Court of nobis was utilized law, of error coram the writ common validity regularity affecting in errors fact correct judgment: in this Court was nobis case the first coram Apparently (1838), Bowie, where Court 9 & J. at 437 Hawkins v. G. follows: coram nobis as proceeding the nature of a described nobis, in an error coram lies to correct A writ of error is; if fact, record as there be in Court where the the same clerk, of the it through default process, error Court, writ of error sued in the same shall be reversed justices.... thereon before the same law, justices, which is the default But of an error writ of judgment by reverse the same Court cannot error, ought this error error; a writ of but nor without Court, justices, by before other redressed another be writ error.... cause, first, inquire, reviewing this design,

It is our class, which fall within that assigned the errors whether law, be according principles to the rules may, nobis; writ of error coram and corrected revised fact, errors errors of for such namely, they whether be only, judgment, can warrant the same Court to reverse a because, fact, in the Judges. error is not error of the Therefore, reversing judgment, reversing the such is not judgment. their own

A description more detailed of the writ of error nobis coram was set forth for the in Judge Delaplaine Court Madison (1954). 205 Md. 109 A.2d 96 The in Court that, Madison also out under pointed practice, modern trial may having motion to the court be made instead of the writ Chancery, issued out of and that coram nobis was not to determine falsely. available whether witnesses testified (205 The in explained Court Madison thus Md. at 99): A.2d

At common law the ancient writ of error coram nobis has been available to correct errors of fact. It has been allowed, time, affecting without limitation of for facts the validity regularity judgment, the and has been in used both civil and criminal cases. While the occasions infrequent, for its use have been no one has doubted its availability. It is still available in Maryland both civil In England and criminal cases. the writ of coram nobis writs, was issued out of like Chancery other but the procedure by motion the case is now the accepted American practice. present brought case was not on However, a writ of coram nobis. since the courts now act rectify on motion to such mistakes of fact as origi- were nobis, nally reviewable coram it appropriate say (1) that coram nobis will not lie to'correct an issue of fact which adjudicated, has been even though wrongly deter- (2) mined, or to determine whether any witnesses testified (3) trial, falsely at the present newly discovered evidence, or strike out a conviction on the ground prosecuting the witness was mistaken his identifi- cation of the accused as person who committed the crime. The purpose of the writ is to bring before court which brought facts were not into issue at the trial case, of the and which were material to validity which, regularity proceedings, if known court, would have prevented judgment. It is manifest allow the court which if writ were available to wheth- subsequently to decide judgment was entered had testified who testified at the trial er the witnesses had, out and, they to strike if it should decide falsely, beginning, be the judgment might then the judgment, end, of litigation. rather than the (omissions in

Skok, 66-68, 760 A.2d at 654-55 361 Md. at and coram to voluntariness of a regard With original). relief, about the historical and Judge Eldridge opined nobis writ and deter extraordinary context of the contemporary of coram had been scope mined that the traditional legal errors of a constitutional encompass broadened to individual, longer no fundamental when the who is proportion or on or is faced with serious parole probation, incarcerated collateral of his conviction: consequences in a

Although scope of the issues which could be raised narrow, proceeding may traditional coram nobis have been which raised noteworthy it is that one of the issues could be As plea Judge was the voluntariness of a a criminal case. Bernard, Delaplaine again stated for the Court in 1, 4, (1949), 193 Md. 65 A.2d the writ error coram will lie to set aside a [of nobis] fraud, coercion, duress, judgment by obtained or or where violence, was procured by force, intimidation, or where at the time of the trial defen- insane, dant was when such facts were not known to the entered, judgment trial court when the or where the fraud, force, prevented by accused was or fear from presenting defensive facts which could have been used at trial, when such facts were not known to the court when the was entered. The writ not lie to judgment will adjudicated correct an issue of fact which has been even determined; though wrongly alleged nor for false testi- trial; mony newly at the nor for discovered evidence. Consequently, Morgan, as result of United States v. courts, scope both federal and state of a coram nobis As set forth Professor proceeding has been broadened. (3 Practice and Procedure Crimi- Wright Wright, Federal (1982), omitted), 2d, 592, § footnotes nal 429-432 enough scope of coram nobis broad present-day [t]he validity errors of fact that affect the encompass only errors of proceedings, legal but also regularity legal The convic- proportion. a constitutional or fundamental the result of proper tion is to have been presumed the burden is on the defendant to show proceedings, that “in broadly the Court said Morgan otherwise. unfortunates, courts should act behalf of the federal relief,” if record makes doing justice plain extraordinary it said that courts should use “this but also compelling circumstances such action remedy only under justice.” to achieve to allow encouraged case has lower courts Morgan coram nobis on behalf of a

challenges of a conviction yet serving who has not commenced his sen- defendant it. The completed Supreme tence or has service of Court but not expressly recognized, has a different dissimilar context, life that most criminal convic- “the obvious fact of legal in fact entail adverse collateral conse- tions do a convic- challenge Coram nobis is available quences.” consequences. tion in order to remove these * * * Moreover, consequences collateral of criminal con- serious years. in recent frequent victions have become much more have of recidivist past proliferation few decades seen addition, country. apparently In throughout statutes laws, in changes immigration because of recent federal administration, been a regulations, plethora there has non-citizens on rela- proceedings against based deportation convictions. tively minor criminal there light consequences, of these serious collateral person for a convicted who is remedy should be not on or parole probation, incarcerated and who is sudden- ly consequence faced with a collateral of his or significant conviction, her can con- legitimately challenge and who or fundamental grounds. viction on constitutional Such person should be able to file a motion for coram nobis relief in regardless alleged infirmity of whether the the conviction is considered an error of fact or an error of law.

Skok, 75-78, 68-69, 361 Md. at 760 A.2d at 659-61 Therefore, the writ of (emphasis original). error coram nobis is available not to correct errors of fact only that affect of a validity regularity judgment, but also to correct legal constitutional or fundamental errors for a petitioner who is not parole probation incarcerated and not on and who is conviction; faced with consequences serious collateral of his we so recognized this Skok: case,

Very often in a criminal relatively light because of a reason, imposed sanction or for some other a defendant is willing forego even if errors of a constitutional Then, may or fundamental nature have occurred. when the later learns a substantial collateral conse- defendant conviction, and, quence may it be too late to appeal, if parole is not incarcerated or on or probation, defendant he or she will not be able to challenge the conviction petition a writ corpus habeas or a under the Post Conviction Procedure Act. (footnote omitted) added).

Id. at 760 A.2d at 660 (emphasis Thomas contends that because he is suffering serious collat- conviction, eral consequences as a result of his 1992 being that he was sentenced to an enhanced penalty under the federal recidivist sentencing guidelines, is entitled to coram nobis Skok, however, relief. This recognized Court is, of coram “scope challenge nobis to criminal convictions however, subject to several important qualifications.” Id. at 78, 760 A.2d qualification, at 661. One such Judge Eldridge “[bjasic iterated, principles is that the of waiver applicable are to issues proceedings,” raised coram nobis id. at 454 502, Morgan, States 346 U.S. United 661, citing

A.2d at (1954), in 252-53, 248, 98 L.Ed. 256-57 511-12, 74 S.Ct. litiga- of stated that “[c]ontinuation Court Supreme which any or waiver of and exhaustion judgment after final tion through [the should be allowed of review statutory right under circumstances remedy only extraordinary coram nobis] and referred justice,” achieve action to compelling such Zerbst, 1461 L.Ed. 58 S.Ct. Johnson v. 304 U.S. there occurs when (1938), noted that waiver wherein the Court a known or of abandonment relinquishment is an intentional facts depends upon particular which privilege, of each case. circumstances adopted applied, to be this Court principles defining Mary contained in the to waiver pertaining provisions

those (b) Act, through 645A Procedure Section land Post Conviction (1957, (d) Repl.Vol., Code Maryland of Article Supp.):8 waiver and final

Therefore, concerning of law body the same Mary- issue, under applicable an which litigation of Skok, (b) (d) provided: through 645A applicable in Section 8. As finally (b) litigated.—For the allegation deemed to be When error subtitle, to be allegation error shall be deemed purposes an of this rendered a appellate court of the State has finally litigated when an thereof, upon any upon appeal or either direct on the merits decision pursuant appeal filed application for leave to of an consideration subtitle; original jurisdiction, after § or when a court 645-1 of this hearing, on the merits thereof has rendered a decision a full and fair corpus error coram habeas or a writ of upon a for a writ of nobis, clearly upon petition is the merits of such unless said decision erroneous. waived.—(1) (c) For the allegation error deemed to have been When subtitle, allegation deemed to be of error shall be purposes this made, intelligently and but petitioner could have waived when trial, trial, make, allegation knowingly before failed to such (whether actually as took such or not said direct based on a application for leave to a conviction appeal), in an actually proceeding any corpus guilty plea, habeas or coram subtitle, prior petition petitioner, in a under this said instituted petitioner, unless actually said proceeding instituted other allegation be excused because of shall the failure to make such proving of such the existence special The burden circumstances. upon petitioner. special circumstances shall be Act, (1957, Repl. 1996 Procedure Code land Post Conviction (b) 27, (d), be Vol., through § 645A shall 1999 Art. Supp.), a crimi proceeding challenging nobis a coram applicable See, Rose, e.g., State v. 238, 243- 345 Md. nal conviction. State, Hunt v. (1997); 345 250, 1314, 691 A.2d 1316-1320 denied, cert. 1259-1263, 1255, 122, 132-139, A.2d Md. 691 (1997); 2536, L.Ed.2d 1036 1131, 117 S.Ct. 138 521 U.S. Hernandez, (1997); v. 721, State Md. 690 A.2d 526 344 State, 429, v. 629, 640-650, Walker 434- 684 A.2d 343 Md. State, v. 269-273, Oken (1996); 256, 681 A.2d 343 Md. 439 denied, 742, cert. 1079, (1996), 117 30, 519 U.S. S.Ct. 36-38 State, 284 Md. 132, Curtis v. (1997); 395 L.Ed.2d 136 681 (1978). A.2d 464

Skok, Therefore, 79, A.2d at in order 361 Md. at 760 662. case,9 we present to the body applicable understand of law to the cases themselves. turn by petitioner allegation of error been made a When could have trial, trial, (whether at on direct or not said before actually appeal), leave a took such an in an guilty plea, any corpus habeas or coram conviction based on a in prior actually petitioner, proceeding instituted said in subtitle, actually proceeding petition any other under this made, petitioner, but fact so there shall instituted said was not in petitioner intelligently and presumption that be a rebuttable said knowingly allegation. failed to make such (d) imposes recog- Decision standard not that Constitution heretofore any notwithstanding purposes of this subtitle nized.—For hereof, allegation provision be to have other no of error shall deemed where, finally litigated subsequent or waived decision been upon subsequent any proceeding which the merits thereof or waived, allegation may any court whose said otherwise have been binding upon are the lower courts of this State holds decisions upon Maryland imposes of the United or of the Constitution States procedural proceedings State criminal or substantive standard applied recognized, which such is intended to be theretofore standard thereby validity petition- retrospectively and would affect the er’s or sentence. 27, (b)-(d). (1957, § Repl.Vol., Supp.), Art. 645A

Md.Code 1999 change as Section 645A was recodified without substantive Laws, 7-106 of Criminal Procedure Article. 2001 Md. Section Chap. 10. State, Conyers v. 9. Since Skok was decided we have decided (2002), we held that under Section 367 Md. 790 A.2d which In Curtis (1978), Md. 395 A.2d 464 petitioner was convicted at a first-degree trial of murder and was sentenced to life which imprisonment, was affirmed on Thereafter, Curtis, appeal. represented by counsel different counsel, from his trial/appellate filed a under the Post Act, Conviction Procedure which was denied. While Curtis incarcerated, remained he then post initiated a second convic petition, by yet tion represented attorney, alleging third the first time that his Sixth Amendment right to effective trial, assistance of counsel was appeal, violated on direct the first during post conviction proceeding. prof Curtis fered that he would have raised the issue of ineffective assis tance of counsel previously but for the fact that he was never by advised trial/appellate by his counsel nor counsel on his post first conviction petition that he should have raised the issue; entirely that he relied upon trial/appellate counsel upon and his counsel during post his first conviction petition; and that he grade had a seventh education IQ. and a low granted circuit court the State’s motion to dismiss the petition, holding that the matter of inadequacy of counsel had been waived because of Curtis’ failure to raise it at the first post conviction proceeding. The Court of Special Appeals af firmed, iterating that the failure attorney of Curtis’ at the first post proceeding conviction to raise the matter of trial and appellate counsel’s inadequacy resulted in waiver because Curtis was not required intelligently and knowingly waive the issue himself. Curtis required this Court to inter

The issue in presented pret provisions the waiver of the Post Conviction Procedure (c) Maryland, Act of Section 645A Maryland Article (1957, Code 1976 Repl.Vol.), specifically whether the “intelli gent knowing” (c), waiver in standard subsection was in applicable all circumstances when a defendant could have raised an allegation of error in a post but petition (c), petitioner 645A could not waive what he or she “could not

reasonably know.” Id. at 790 A.2d at 29. to state as stated then and continue provisions not. Those did 7—106(b), part: applicable in Section

(c) to have been waived.— error deemed allegation When subtitle, allegation error shall of this an purposes For the made, when a could have petitioner deemed be waived be make, allega- failed to such intelligently knowingly but (whether trial, trial, or tion before at direct any habeas actually appeal), took such an petitioner said actually by instituted said proceeding or coram nobis corpus subtitle, in any this or under petitioner, prior petitioner, said un- actually by instituted proceeding other shall excused allegation to make such be less the failure proving The burden of because circumstances. special shall upon existence of circumstances be special such petitioner. by error have been an could made allegation

When (whether trial, trial, on direct petitioner before any petitioner actually appeal), took such not said instituted corpus proceeding actually habeas or coram subtitle, in a under petitioner, prior petition said this petition- instituted proceeding actually other said er, made, be in fact so there shall a rebuttable but intelligently knowingly presumption that said allegation. failed to make such (1957, Article 645A

Maryland Repl.VoL), Code Section (c). Assembly not “in- We ascertained that General did (c) that the of ‘waiver’ set forth tend definition subsection for the time determine all cases the to raise first action, in a prior regardless issue the nature counsel, defaults, procedural tactical decisions of prior Curtis, 141, 284 Md. at 395 A.2d at omissions counsel.” Instead, the intelligent knowing 469. we held that waiver (c) 645A “in those applicable only standard Section the waiver v. Zerbst concept circumstances where Johnson 391, 822, 9 L.Ed.2d 837 Fay U.S. 83 S.Ct. Noia[372 458

(1963)][10] i.e., applicable,” [is] situations which require litany Curtis, 149, with the defendant.11 284 Md. at 395 A.2d at 474. situations,” noted, “Other beyond we “are scope of subsec (c), tion governed by to be case pertinent law or statutes or decisions, rules. Tactical when made compe authorized attorney, tent as well legitimate procedural as requirements, will normally bind a Id. at 149-50, criminal defendant.” 395 A.2d at 474.

In considering Curtis’ allegation that he was deprived Sixth Amendment to effective assistance of counsel at trial appeal, and on we question stated that the of the constitu- tional adequacy of trial and appellate counsel’s representation governed intelligent and knowing standard of waiver (c), under Section 645A and that his contention could only be (c) deemed purposes waived for of Section 645A if Curtis knowingly and intelligently failed to raise it previously. Id. at 150, 395 A.2d at 474. Accepting true, the proffered facts as we concluded that “Curtis did not ‘intelligently and knowingly’ fail to previously raise the matter of his trial appellate] [and counsel’s alleged inadequacy. Therefore, the issue cannot be 151, deemed to have been waived.” Id. at 395 at A.2d 475. Oken v. 256, cert. (1996), Md. 681 A.2d 30 denied, 1079, 519 U.S. (1997), S.Ct. 136 L.Ed.2d 681 after having been murder, convicted trial of first-degree offense, first-degree sexual burglary, and the of handgun use violence, a crime of Oken was sentenced to death. He filed a direct after appeal, which this Court only reversed burglary conviction. Oken subsequently filed a under Act, the Post Conviction Procedure which was denied after a Court, hearing. Before this after granted we applica- Oken’s (1963). 10. 372 U.S. 83 S.Ct. 9 L.Ed.2d H., 684, 700, 11. See In re Blessen 392 Md. 898 A.2d (remarking heightened "intelligent knowing” standard for requires waiver c

o

l

l of his for petition from the denial appeal for leave tion dire, relief, to the court’s voir challenge a trial Oken raised any the venire to ask whether allegedly which had failed Oken had not penalty bias. Because pro-death had a panel this confronted direct Court was appeal, raised the issue on had error under Section waived the again with whether (c).12 propounding pro-death that the argued Oken 645A not be waived was a that could question bias penalty intelligently and waived that knowingly he had not because the direct so that the failure raise issue right, the that ask not constitute waiver. We held could by have been waived questions bias could pro-death penalty intelligent and and on direct that failure to raise the issue 645A apply waiver did under Section standard of knowing nevertheless, (c). Id. argued, A.2d at 38. Oken failure to raise the justify existed to that circumstances Rule Maryland 8- of error on direct under allegation in 131,13 intervening law being change there was an that Oken, (c), applied applicable the same as 645A as 12. Section Skok delineated in footnote 8. then, provided provide, Maryland Rule and continues 13. 8-131 part: pertinent (a) Generally. jurisdiction trial over the issues of court 2-322, and, person subject matter unless waived under Rule over may by appellate court whether or not be raised in and decided Ordinarily, appellate by the trial court. raised in decided by any plainly appears other issue unless it court will decide court, by the trial but the record to have been raised in or decided guide may necessary an issue if or desirable to Court decide such appeal. expense delay of or another trial court to avoid (b) Appeals—Additional Court of Limitations. provided by the Appellate Prior Decision. Unless otherwise order certiorari, reviewing by granting a decision rendered the writ of Appeals acting Special or court in an the Court of circuit ordinarily only appellate capacity, Appeals consider the Court of will petition or been raised in the certiorari issue has preserved cross-petition review the Court of and that has been Appeals. an issue raised in a for certiorari or Whenever involves, expressly implicitly, cross-petition either the assertion error, Appeals may Court of the trial court committed non-prejudicial error even whether was harmless consider Illinois, 2222, Morgan 719, when v. 504 U.S. 112 S.Ct. 119 (1992), 492 by Supreme L.Ed.2d was decided the Court and did his counsel not have sufficient time to raise the issue on rejected argument, concluding direct We this appeal. the voir identify of a defendant to conduct dire to prospec jurors tive who harbored in disqualifying biases favor of the death in penalty recognized by Supreme had fact been the Court and this Court in other than in Morgan cases advance Oken, 273-74, direct appeal. Oken’s 343 Md. at 681 A.2d at 38. (1996),

In v. Walker 343 Md. A.2d petitioner was convicted a trial of at assault intent After was murder. his conviction affirmed the Court Special Appeals, petitions post Walker two filed relief, both which were denied. In peti neither those tions he challenge did the assault with intent to murder jury instruction, to attorney which his did not he object; subse filed a quently petition post third conviction relief while incarcerated, asserting that trial court had erroneously the jury instructed regarding intent element. After the “ping-ponged” case between the circuit court and Court of certiorari, Special Appeals, granted we in part to consider (c) provisions whether the Section 645A waiver applied.14 We accuracy concluded because an issue over the of a jury instruction of an concerning require elements offense does not waiver, intelligent knowing the failure of Walker’s attorneys object to the jury subsequently instruction or challenge jury instruction on direct appeal constituted Id. at waiver. 684 A.2d at argued, 437-38. Walker though prejudice the matter of harm or was not raised in the cross-petition. or in a Appellate Except provided No Prior Decision. as otherwise 8-304(c), Appeals Rule when the Court of issues writ certiorari pending Special Appeals review case Court of in the before a Court, has Appeals decision been rendered Court will cognizable by consider those issues that have would been the Court of Appeals. Special (c), Walker, applicable 14. applied Section 645A as was the same as Skok and stated in footnote 8. nevertheless, allege previously the error was that his failure to circumstances, con- because the instruction by special excused iterating rejected argument, We “plain error.” stituted case, and so was not an issue Walker’s that intent was Id. at 684 A.2d 439. of a fair trial. deprived Hernandez, (1997), 690 A.2d 526 State Md. drug offenses. to various guilty plea entered a filed an charges, two of the Hernandez pled guilty After he for leave to Special Appeals with the Court of convictions, other among resulting contending entered. The voluntarily was things guilty plea that his summarily denied. incarcerated, for Hernandez, application then filed an while relief, of his the voluntariness post raising conviction held that the the circuit court which was denied when plea, had when the finally litigated of voluntariness been issue Special Court of denied Hernandez’s Appeals we the issue under appeal. finally leave to When considered (b) (a)(1) 27, (1957, of Article Code Maryland 645A and Section finally that the issue was not Repl.Vol.),15 1996 we concluded 15. (b) 27, (1957, (a)(1) Maryland Code 1996 645A and of Article Section Hernandez, Repl.Vol.), applied stated: as sentence; (a) Right proceeding or institute to set aside correct time Subject para- filing proceeding.—(1) provisions the of initial subsection, (3) any person graph this convicted of a crime and imprisonment either incarcerated under sentence of death or or and parole parole probation, including person or confined or on on probation proceeding of a District Court or as a result before the who imposed judgment or claims that the sentence violation the United or Constitution or law of this Constitution of States the State, jurisdiction impose or the court was without the sentence, that he sentence exceeds the maximum authorized law, upon subject to or that the sentence is otherwise collateral attack any ground alleged error which would otherwise be available nobis, corpus, a writ of coram or other com-

under writ habeas remedy, may proceeding statutory mon-law or institute under this county circuit court for the to set aside correct the subtitle the sentence, alleged previously provided the error has been finally litigated proceedings resulting or waived in the in the convic- litigated because there was no decision on the merits of his dicta, claim. In we noted that because Hernandez had filed an alleged for leave to in which he that his guilty plea voluntary, was not he had not waived his assert error in petition post to secure conviction relief. 728, Id. at 690 A.2d at 530. 122, 1255, denied,

In Hunt v. 345 Md. 691 A.2d cert. (1997), U.S. S.Ct. 138 L.Ed.2d 1036 by jury was convicted of first-degree murder and sentenced to death. After a proceedings number courts, State federal Hunt for the fourth appeared time Court, challenging before this denial his second conviction post relief. We considered whether waiver (c) provisions of Section 645A applied and concluded that allegations Hunt’s of error were not controlled intelli waiver, gent knowing standard of and because Hunt made trial, the tactical not to decision raise his at challenges appeal, direct or in his first post petition, 143, 150, 157, were Id. challenges waived.16 A.2d 1265, 1268, 1272. Rose, (1997), State 345 Md. 691 A.2d 1314

petitioner was jury convicted after a first-degree trial of murder and to life imprisonment, sentenced which was af- appeal. firmed on failed raise any challenge Rose to the constitutionality of the reasonable doubt provided instruction

tion, proceeding petitioner or in other the that has taken to relief secure from his conviction. (b) allegation finally litigated.—For When error deemed be to of subtitle, purposes allegation of this an of error shall be deemed to be finally litigated appellate when of court the State has rendered a thereof, upon on the upon any decision merits either direct or pursuant consideration of an for leave filed subtitle; § of original jurisdiction, 645-1 this or when a court of after hearing, a full and fair has rendered a decision on the merits thereof upon petition corpus for a writ of habeas a writ error coram nobis, upon unless said petition clearly decision the merits of such is erroneous. (c), Hunt, applicable 16. 645A applied Section as in was the same as in provided Skok as 8. footnote under the Post subsequently petition filed a and jury to the Act, ground his sole for relief as alleging Procedure Conviction at his assistance counsel denied effective was incarcerated, trial; denied. While still his was he alleged in which petition post filed a conviction Rose second jury to the was provided doubt instruction the reasonable post con circuit court denied constitutionally defective. error had been allegation of relief, finding that Rose’s viction trial, or at the at on appeal, it was not raised because waived of Special The Court petition hearing. first conviction post court however, of the circuit judgment vacated the Appeals, intelligent knowing on remand of for consideration (c).17 of Section 645A waiver standard of certiorari and for a writ the State’s granted We with the agreeing Special Appeals, the Court of reversed challenge had his court that Rose waived circuit post petition. in a jury instruction reasonable doubt reaching our conclusion based A.2d at 1320. In Id. at (c), iterated that interpreting Section 645A we upon our cases from the is derived Consti- because an asserted “simply Maryland, States or Constitution tution of the United ‘intelligent knowing’ make the necessarily ... does not Id. at 691 A.2d at 1319. applicable.” of waiver standard instructions involving jury deficient allegations We held that standard of by intelligent knowing were not controlled “may waived failure effectively waiver but be object at trial or their failure to attorney defendant or 691 A.2d at 1318. appeal.” raise the issue on direct Id. upon the cases principles from Skok and Application Eldridge yields relied various conclu- Judge which Skok (b) (d) through 645A Preliminarily, although Section do sions. proceedings their when the apply terms coram (Sec- probation, parole incarcerated or (a) “any person a crime provides tion 645A convicted imprison- under sentence death or and either incarcerated Rose, (c), applied applicable the same as 17. 645A as Section 8. Skok as articulated in footnote ment on or ... parole probation may institute a proceeding subtitle.”),18 [the under Post Conviction Procedure Act] (b) Shok we specifically § stated “Art. 645A through (d), applicable shall be to a coram proceeding challeng ing a criminal conviction.” 361 Md. 760 A.2d at 662 (citations omitted). (b) (d) Because Section 645A through did apply, and now Section 7-106 of the Criminal Procedure Article, Maryland Code apply, argues does Thomas 7-106(b) the language of Section excepts defendant who does an not file application leave to his conviction appeal sentence from its provisions waiver because it allegedly differ entiates between failure to raise an allegation of error in appeal application direct and in an appeal: for leave to allegation petitioner [A]n error is waived when a could have made but intelligently knowingly failed to make allegation:

[**] ^[*] 3. appeal, on direct whether or not the took an appeal;

4. in an application leave to conviction based on a guilty plea.... 7—106(b)(l)(i)(3)-(4) Article,

Section of the Criminal Procedure (2001). Maryland Code Thomas contends that because the Assembly General not provision did include a in Section 7- 106(b) addressing the failure to file an for leave to appeal, as it did in involving situations failure to take direct appeals, waiver does when apply not for leave to filed, is as adverse to when it is and the alleged error included. so arguing, he relies footnote five the dissent in McElroy v. Md. 617 A.2d 1068 (1993),which states: Tomlinson, Past, Maryland: See Edward A. Post-Conviction in

18. Pres- Future, (1986) ("The ent scope Md. L.Rev. remedy specified as basically unchanged Act has remained since remedy any person 1958. The is available to convicted of a crime and imprisonment either incarcerated under sentence of death or or on parole probation.”). in for leave to appeal, filing application an is clear [I]t a defen- of error any allegations and all is included which post to have, seeking may precedent not a condition dant is relief. of 645A(c)(l) that, unlike in the case makes clear Section of allegation an does waive appeal, a defendant not direct of by way application have raised error could been application. an by filing such appeal simply leave to subtitle, an of this purposes For the provides: That section to waived when a shall be deemed be allegation of error made, intelligently knowingly could have but trial, make, trial, at on direct before allegation failed to such an petitioner actually took such or not {whether to a conviction in an for leave appeal), application in or coram nobis any corpus on a habeas guilty plea, based petitioner, prior actually instituted said proceeding subtitle, any other proceeding under or in this failure to actually unless the petitioner, instituted said of special make such shall be excused because allegation the existence of such proving circumstances. burden petitioner. special upon circumstances shall be 645A(c)(2), largely tracking language Section 645A(c)(l), is of effect. This difference treatment similar to appeal clearly of direct for leave appeals applications Legislature presumption indicates that the intended that the To only in the case of direct construe apply appeals. way requires language other similar to that statute to the appeals used in with direct be added connection applications appeal. leave provision pertaining 645A(c)(l) Moreover, § and were amended in 1988 to be 295, see enacted Ch. Acts legislation consistent (e) (1980, Maryland which subsection Code added RepLVol.) § 12-302 of the Courts & Judicial Proceed- Article, pleas entered on ings judgments and made subject only appeal. to review for leave to which preamble also Ch. Acts See provides: that, purpose person

FOR the if clarifying fails under certain an allege circumstances to error conviction, to appeal for leave a certain allegation deemed to be the purposes waived for of a post conviction proceeding; clarifying presumption a certain relating error; failure to make a certain allegation general- ly relating to waiver of allegations of error in a certain appeal. effected,

When amendment was the parenthetical condi- Code; pertaining tion to direct in the appeals already nevertheless, chose Legislature to include such language with to the for to respect application leave appeal provision. the provision pertaining ap- Because to direct has peals interpreted been to mean that an failure to raise waiver, issue direct appeal constitutes a whether or anot taken, direct was appeal Legislature is to presumed have had knowledge when interpretation it added the language pertaining applications to for leave it appeal, to a must have intended different result those cases involv- Thus, ing applications for leave to appeal. history provision holding also contradicts the of the intermedi- appellate ate court. (Bell Chasanow,

Id. at 157-58 n. 617 A.2d at n. 5 1079 (some omitted) JJ., dissenting) citations (emphasis original). however, Skok, recognize, Thomas fails to a case which was decided to subsequent McElroy, involved the failure to file an application appeal, for leave to and this no Court had (b) (d) qualms in 645A applying through Section to the failure Rather, to file entire application. illogical it would be to a permit defendant to application who fails file an to for leave to appeal be to coram able seek nobis relief without confront- ing provisions 645A, the waiver similarly Section while a diligently situated defendant who files an for application leave to appeal would confront a that he presumption intelligently and knowingly any allegation waived of error not raised Following earlier. a a guilty plea, conviction based on a convicted options defendant’s to respect allegations error are to raise in an application them for leave appeal, to not intend for a did Certainly Assembly not. General an application not file and does pleads guilty who defendant an easier to be afforded to his conviction appeal for leave than a defendant who review post secure conviction avenue to him. review is available appellate what pursues this provisions supports waiver history The legislative Assembly amended the General conclusion. to, Act Procedure of the Post Conviction provisions waiver of error shall be allegation that “an provide relevant part, made, could have but be waived when a deemed to make, ... allegation knowingly failed such intelligently and conviction on a based in an leave (1957, (1988); Bill Md.Code House guilty plea....” (c). 645A The Supp.), Article Section Repl.Vol., that, “clarify[ person Bill 1176 if a ] of House purpose in an allege an error fails under certain circumstances conviction, allega- for leave to a certain of a purposes post to be waived tion deemed Proceedings Senate Judicial proceeding.” similarly expli- Bill 1176 Analysis Bill House Committee’s former the amendment filled waiver gap cated that provisions: bill, person convicted of a crime and incarcer-

Under this or is considered have waived parole probation ated or on by way post error of a right pursue allegation an made, have proceeding where the defendant could conviction make such an intelligently knowingly and failed to but a conviction allegation application appeal in an for leave guilty plea. based on a been made in an allegation an of error could have

Where on a appeal guilty for leave to a conviction based application not, presumption was is that the there a rebuttable but and failed to make such an person intelligently knowingly allegation. law, right allegation to make an error existing

Under person if the proceeding in a is waived could post made, have but and intelligently knowingly failed to make trial, trial, such allegation an before at on direct appeal (whether taken), or not appeal habeas corpus instituted, coram proceeding actually in a prior peti- error, tion under this statute to correct an in any other proceeding instituted actually person.

When allegation an of error could have been made but was not, there is a presumption rebuttable the person and intelligently knowingly allega- failed to make such an tion. The law current does not specifically apply to allege failure to the error an for application leave to appeal a conviction based on a guilty plea. Committee,

Senate Judicial Bill Proceedings Analysis to (1988). House Bill 1176 The Fiscal Note to House Bill 1176 further remarked that “clarifies a person bill has right waived his challenge when he fails to allege error when appealing conviction based on a plea.” Depart- Services, (1988). ment of Fiscal Fiscal Note to House Bill 1176 clear, therefore, It is Assembly that the General intended to appeals applications treat direct and appeal for leave to consis- tently purposes of the waiver analysis; waiver occurs when alleged not, an could have error been raised but was whether an to appeal leave is filed or not. argues

Thomas that he did not and intelli knowingly fail file gently for leave to appeal because he he alleges knowingly did not intelligently and enter his guilty plea. Specifically, Thomas asserts that he not could intelligently knowingly have waived his to file for leave to because he was informed of the maximum sentence have he could received and because against informed of nature of the him charges ergo, guilty plea essence, was not intelligent knowing. Thomas conflates whether he knowingly and intelligently waived his to file an application for leave to the voluntariness of his guilty plea, relying upon Court Special Appeals’s opinion Parker v. 160 Md.App. 672, 866 A.2d at and again on the dissent in McElroy, atMd. 617 A.2d at 1068. at at 866 A.2d Md.App. Parker in three criminal separate pleas various

petitioner entered cases, to theft plead guilty Parker in two of the cases in 1996: theft over case, guilty to $300, pled Parker and in a third over handgun a contendere to a of nolo plea and entered $300 consequences informed Parker was never violation. to determine how addressed specifically nor was he pleas, his any in plea he understood his or whether pleading he was at cases, present Parker was not cases; in one of the the three any for applications He did not file plea hearing. his convictions and sentences. resulting from the appeal leave to under federal court being sentenced Seeking avoid subsequently sentencing guidelines, Parker recidivist federal alleging that his coram nobis petitions filed for writs error knowing voluntary. The circuit not and guilty pleas were Court explanation, and the petitions court denied the without court appellate intermediate Special Appeals reversed. determined, context, Parker could first post-Skok his for writ of error coram proceed in federal significant consequences collateral because he faced and plea and nolo contendere guilty pleas court because of The court then concluded that not incarcerated. nolo contendere were guilty pleas Parker’s and therefore, and he did not knowingly voluntarily, and entered “The important nobis relief: right waive his to seek coram must present guilty plea is that be point, purposes, i.e., subject it to the Johnson v. intelligent knowing, is case, appellant’s petitions In the present Zerbst standard. met, is no was not and thus there indicate this standard (cita Parker, 686, 866 A.2d at 893 Md.App. waiver.” omitted) original). (emphasis tions

Parker, however, proceedings was not advised right applications to file leave to so that about his waived his knowingly intelligently not have he could result, the case from the distinguishable file. As a case, informed expressly because Thomas was present to file an for leave to only of his guilty plea freely was entered challenge whether his voluntarily, that application but in must have been filed thirty within writing days hearing. Whether not the Parker, standards for voluntariness were conflated it is clear that Parker not could have intelligently and knowingly waived his to an right file to appeal leave Skok, because he was never advised right. of that its and predecessors, specifically that colloquy. mandate McElroy 1068, atMd. 617 A.2d at McElroy appeared with pled counsel and to distribution of PCP. At his guilty plea hearing, McElroy was informed that guilty plea his limited right appeal; his on him judge told right appeal he had the to the of Special Court Appeals, only but grounds, limited he including whether freely voluntarily entered guilty plea. McElroy his After was years imprisonment, sentenced to fifteen he was advised thirty had days he within which apply for leave to appeal to the Special Appeals; Court of not an did file application for leave to appeal. Subsequently, McElroy filed a petition for post conviction relief alleging guilty plea his was intelligent knowing not because the trial court did not advise him that the court was not bound prosecutor’s recommendation, sentence and that if the imposed court sentence more severe than the one recommended he had no right to withdraw his plea. The circuit court denied McEl- roy’s petition on its merits. The Court of Special Appeals granted McElroy’s application appeal for leave to the denial his petition post conviction relief and held he had waived post conviction review. raised,

When this Court confronted the issues majority did not address whether the waiver provisions when applied an application filed, for leave to was instead, but applied the provisions and held that McElroy had because, rebutted the presumption waiver unlike what proffered Curtis, was to the court by 284 Md. 395 A.2d at McElroy no made effort to rebut the that he presumption waived the claim that his guilty plea not knowingly intelligently failing entered raise that issue sentence the conviction and for leave of Special Appeals. to the Court guilty plea on his based A.2d at 1074. We also conclud- Md. at McElroy, 329 review was not appellate to seek McElroy’s ed that “failure circumstances,” that he was by any explaining special excused Special in the Court of of his to seek review advised asserted, McElroy understood: majority which Appeals, any special Likewise, is no evidence this record there direct would excuse his failure to seek circumstances that He was review of his conviction and sentence. appellate Special of was an available Appeals advised that the Court such and told that he had to seek purpose for that resource his He assured the days review within 30 conviction. right. he For these rea judge trial understood that him sons, upon he the imposed has failed to meet burden 645A(c)(l) circumstances. special § to such prove Art. (1966) Warden, 316, 220 A.2d 607 Washington v. 243 Md. Cf. found conviction (special post petition circumstances where post in earlier that he had not raised issue proved er suffering he from a because was proceeding assisting him from his coun prevented mental illness which sel). 148-49,

Id. 617 A.2d at 1074-75. at Thomas, however, bring tries to himself within again that he did McElroy by asserting rationale dissent through transcript of waiver presumption rebut 158-63, 1079- on the record. Id. at 617 A.2d at what occurred (Bell JJ., dissenting). Thomas contends and Chasanow 82 adequately was not informed and was McElroy, that like he relief, his or how to obtain and potential not aware of defenses therefore, failed intelligently knowingly he could not have and appeal. in an for leave to Id. application to raise them Thomas, however, right informed of to file expressly was his challenge whether his appeal for leave to application he freely voluntarily, was and and affirma- guilty plea entered rights, unlike tively appellate indicated that he understood his in the Unlike McElroy those infirmities described dissent. repre- emphasized McElroy, Thomas was what dissent sented counsel his during coram nobis he had proceeding; and hearing presented why evidence as to his to file failure his application appeal for leave was not intelligent and knowing, hearing rejected. judge which the

Thomas also alleges his failure to file his for because, leave was not and intelligent knowing, while ability he was advised of his seek appellate remedies involuntariness, never advised that he could challenge State, lack guilty plea knowledge. his Kang (2006), Md. 899 A.2d 843 we discussed the waiver colloquy sufficiency and determined that its “depend[s] upon the facts case,” of each circumstances and that the record must indicate defendant has been informed nature of waived, be and that the court has ascertained the right. 111-12, defendant’s “awareness” of that Id. 899 A.2d at 851-52. If asserting Thomas is that the trial court must use the term “knowing” when defendant informing pleading to file an for leave to challenge whether his guilty plea freely was entered voluntarily, he fails to to any authority cite for such. Davis v. (noting Md. A.2d 113 that guilty plea hearing litany “specific does not require enumeration” waived). Rather, rights Zerbst, under the Johnson v. 304 U.S. 464, 1023, 1466, at 58 standard, S.Ct. at 82 L.Ed. at knowing connotes “an or relinquishment intentional of abandonment a privilege”; known the record reflects that specifically Thomas was advised and understood his right to file an application for leave to appeal challenge plea. his guilty Pierson Judge expressly found that Thomas had waived his right to secure by coram nobis relief intelli- knowingly and gently failing file an application for leave to his sentence, conviction and a of which finding modify we do not Hunt, 166, absent clear error. 345 at Md. 691 A.2d 1276. Thomas, nevertheless, argues that “special circumstances” exist to excuse allegation his failure to raise his of error an application for to appeal leave his 1992 conviction because he received a sentence below the maximum authorized sentence by law for the crime he was accept convicted. To Thomas’

473 extend the of the require would us to argument plead to all who exception circumstances” individuals “special maximum that are less than the receive sentences guilty and law, pleas. is of See guilty which the hallmark authorized (1991) State, 515, 518, 710, 711 v. 321 Md. A.2d Dotson defendants who plea agreements benefit (recognizing of trial the acquittal following the “give up possibility as of disposition part lenient included certainty relatively a would render coram agreement”). exception Such an plea relief, limited of the extraordi- contrary to the nature writ, general exception. rather than the See nary rule Skok, at 658 that the writ (noting Md. at 760 A.2d “extraordinary remedy”). error coram nobis is to file an application failure Thomas also contends by “special excused from his conviction is for leave in 1992 that he could because did not know circumstances” guidelines. the federal sentencing sentenced 2005 under be federal enhancements were pled guilty, In when Thomas clearly, offenders and Thomas’ available career enhancements warning enough possible were and sentence U.S.C., U.S.S.G., criminal violation. 18 subsequent for a (effective 1, 1987). See Booze 4B1.1 November Section (2001) (“[I]t State, 402, 408, 780 A.2d is Md.App. of the enhanced the conviction itself that warns a defendant 4-242, Further, Maryland in 1992 and while Rule penalty.”). now,19 to inform the defendant of direct requires judge 228, 242, plea, of the Yoswick v. 347 Md. consequences 4-242(c) provided: Maryland Rule 19. only Guilty.—The may accept guilty after it Plea court determines, upon an of the defendant on the record in examination court, attorney open Attorney, court conducted the State's thereof, (1) defendant, the defendant for the combination understanding voluntarily, of the pleading nature charge plea; consequences there is a factual plea. may accept plea of even for the The court basis guilt. Upon accept though refusal the defendant does not admit plea guilty, plea guilty. of the court shall enter a of not laws, 2001, changes immigration response in federal In to recent Skok, 77, 4-242 was 361 Md. at 760 A.2d at 661. The

Rule amended. court, required guilty accepting amendment the before the defendant's 474 251, (1997),

700 A.2d the failure to advise of collateral consequences then now have been and the basis vacate Rule, plea; a now is in the guilty explicated provides: it which concerning consequences of advice the collateral “[0]mission of plea a does not itself mandate that plea the be declared invalid.” The enhanced recidivist received penalty by Thomas sentencing the federal guidelines under for his unrelated future criminal conduct was a consequence collateral of his see Hawkins v. guilty plea, 302 Md. (1985) (remarking A.2d punishment under repeat crime, only offender statutes “is for the new being greater habitually crimes”), where the defendant commits and there court, fore, the circuit before accepting guilty plea was not to advise him of the of required possibility being sentenced the future as a recidivist. conclusion, of,

In because Thomas informed and under- stood, his to file for appeal, leave and plea, or nolo contendere to inform the a defendant that if is not citizen, detention, may deportation, ineligibility

United States he 4-242(c) face or (e) provides: citizenship. for Rule and now (c) guilty. may plea Plea accept guilty only The court a it after determines, upon an examination of the defendant on the record in court, open Attorney, attorney court conducted the the State’s the defendant, thereof, any (1) the combination the defendant pleading voluntarily, understanding the nature of the charge (2) consequences the plea; of the there is factual addition, plea. accepting plea, basis for the before the court (e) comply may accept shall with section of this Rule. The court guilty though plea of guilt. Upon even the defendant does not admit accept plea guilty, refusal to plea the court enter a shall of not guilty. (e) Consequences Guilty Collateral of a Plea of or Nolo Contendere. contendere, accepts plea Before the court court, or nolo defendant, Attorney, attorney State’s for the (1) by entering combination thereof shall advise the defendant citizen, plea, if the defendant is not a United States the defendant may detention, consequences face deportation, additional or ineli- gibility citizenship that the defendant should consult with defense represented counsel if the defendant is and needs additional concerning potential consequences plea. information concerning consequences omission of advice plea collateral of a does itself mandate that the be declared invalid.

475 a rebuttable appeal, for to leave application not file an did to his right challenge his that he waived arose presumption Thomas did not through proceeding. a coram nobis conviction circum- “special did he establish nor presumption, rebut for leave to application to file an his failure to excuse stances” conviction and thus, challenge to his right his and appeal, petition a coram nobis writ of error through sentence waived. APPEALS OF SPECIAL OF THE COURT

JUDGMENT COSTS. AFFIRMED WITH JJ., GREENE,

BELL, C.J., RAKER, Dissent. BELL, C.J., and J., RAKER, dissenting, joined GREENE, J.: writ coram nobis heart out of the cuts the majority waived to chal- holding

Maryland by for writ of coram nobis through petition his a lenge conviction appeal for leave application his failure file an If a person relief. petition post-conviction for guilty plea or a petition or a for leave to must first file an relief, error nobis ever will a writ of coram post-conviction for effect, Skok v. majority overrules appropriate? be (2000), State, 52, sub 361 760 A.2d 647 silentio. Md. guilty plea

I who enters a but who person would hold or a post- leave does file not waive the challenging does conviction in a resulting coram challenge to later petition. I would remand the matter Circuit petitioner satisfied for that court to consider whether Court relief, question requirements particularly threshold for his failure to attack the valid reasons exist of whether conviction earlier. nobis, proceeding habeas corpus

A writ coram like a of error Post Convic- proceeding Maryland under the Uniform Act, collaterally challenge be used to may tion Procedure 647; 52, Skok, 760 v. Ruby 361 Md. A.2d judgment. criminal (1999). 100, 673, It is an 724 A.2d 353 Md. extraordinary remedy, employed only be upon compelling circumstances. Skok at 760 A.2d 647 (citing United States 502, 511-12, 252-53, Morgan, 74 S.Ct. U.S. (1954)). pursuant L.Ed. 248 Relief to a writ coram of error justified “only nobis is under compelling circumstances such to achieve where justice” only action “sound reasons” exist for the failure to seek earlier appropriate relief. United 502, 511-12, v. Morgan, 252-53, States 346 U.S. 74 S.Ct. (1954). 98 L.Ed. 248 One of the issues which bemay raised of coram is the way nobis voluntariness of a a Skok, 68, criminal case. Md. at A.2d at 361 760 656. 52, 647,

In Skok v. Md. A.2d 361 760 we the explored of a writ of error applicability coram nobis to the claim of an court, involuntary courts, This other plea. like state em- the of the leading Supreme braced rationale case Court proceedings, coram nobis United v. Morgan. States We stat- ed as follows:

“Along with majority the vast of appellate courts which have matter, considered the we that the believe coram scope nobis, as justified delineated United States v. Morgan, is by contemporary public policy. Very conditions and often case, in a criminal relatively because of a sanction light reason, or for other a imposed some defendant to willing if forego appeal even errors of a constitutional or funda- Then, nature may mental have occurred. when the defen- later a dant learns of substantial consequence collateral conviction, and, may it be too if appeal, late parole defendant is not incarcerated or on or probation, he or she will challenge not be able to for a petition petition writ of habeas or a under corpus Conviction Post Procedure Act.” 77, 760 Id. at A.2d at 660. recognized the “scope

We challenge coram nobis to is, however, criminal subject important convictions to several qualifications.” Id. 760 661. at A.2d at We that the noted three necessary grant essential conditions pursuant relief coram nobis were the grounds challenging constitutional, jurisdictional or must be criminal conviction character, is on proof petitioner the burden of fundamental to the that attaches regularity presumption rebut the coram nobis procedure, criminal underlying consequences facing significant collateral suffering must be 78-79, at at A.2d 661-62. Id. from the conviction. applica- waiver are basic addition, principles noted that we 661-62. Id. at 760 A.2d at nobis proceedings. to coram ble waiver, stated as follows: we Discussing raised applicable of waiver are issues principles “Basic an issue Similarly, where proceedings. nobis coram and there litigated prior proceeding, in a finally has been or con in the law intervening changes applicable are no law, in a may relitigated not be trolling case issue Therefore, body same of law coram nobis action. issue, of an which is concerning litigation waiver and final Conviction Procedure applicable Maryland under the Post Art. (1957, Act, ReplVol., Supp.), Code (b) (d), § be to a coram through applicable 645A shall a criminal conviction.” proceeding challenging (some internal citations 760 A.2d at 661-662 Skok omitted). majority Based on this concludes that language, relief if the failed to petitioner a waives coram nobis individual leave to file a for application appeal petition file an for to or majority’s reliance this lan relief. post-conviction guage support holding misplaced. to its is Skok, Judge Eldridge for the discussed the

Writing Court might by moving reasons a defendant not an error challenge plea by way post-conviction to a or action. He withdraw stated as follows: case, a

“Very relatively light criminal often a because willing forego ... a to imposed sanction defendant is if or appeal even errors a constitutional fundamental Then, when the defendant later may nature have occurred. the convic- consequence learns of a substantial collateral tion, to ... he or will not may it be too late she appeal, a writ challenge by petition be able to the conviction a for corpus habeas under the Post petition Conviction Act.” Procedure

Skok, at 361 Md. 760 A.2d at 660. The situation Judge common, and, fact, Eldridge very addressed is reflects the Court, in both circumstances Skok and case at bar. This Skok, not majority today could have meant what the holds. suffering Petitioner contends that because he is serious i.e., consequences conviction, collateral result as a of his 1992 that he was sentenced to an enhanced penalty under the guidelines, federal is sentencing recidivist entitled to the same coram nobis relief Skok enjoyed. Petitioner argues that, Skok, like he has waived not his seek error coram relief he did application because not file an for leave to his conviction and appeal sentence.

This is argument persuasive. The procedural similarities between Skok illustrate that this Court in Skok did not for waiver apply mean collateral attacks on guilty pleas where no for leave to was filed. Skok held a guilty may that the voluntariness of be in a raised coram nobis when it proceeding previously even had not been petitioner, pled guilty; raised. Like Skok Skok never filed an leave to and a his request withdraw guilty plea; post-conviction and Skok did not file relief plea. voluntariness of his raising Id. at Despite 760 A.2d at 649. failure to his prior raise claim issue, the action at Skok have found to waived the common law to file a of error writ coram nobis. See id. at 760 A.2d 661-662. stated We as follows:

“The concerning pleas issues not previously Skok’s have clearly been and Skok litigated, facing substantial collat- Skok, eral from his two consequences convictions. being incarcerated or on parole probation as result of convictions, presently has no common other law or circumstances, statutory remedy. Under Skok was a hearing entitled to under his motion for coram nobis relief.”

479 suffering is Similarly, petitioner A.2d at 663. 760 Id. he is incarcer Because consequences.1 collateral serious of no other avenue he too has ated, parole probation, infirmity of the constitutional concerning His relief. claims was No waiver litigated. been never before his have in the instant case— should hold true in Skok. The same found application for failure to file no waiver for there should be relief. appeal post-conviction to leave He asserts that argument. a second Petitioner presents 7-106(b) to defendants apply § does not language waiver appeal for leave because application an who do file the case of did not address Assembly specifically General they though such even application who never file an those a direct appeal. those who fail to file address specifically 7- language Section contrasts Specifically, petitioner 106(b)(l)(i)(4) of Mary- Article the Criminal Procedure for leave pertaining applications Code land 7—106(b)(l)(i)(3) direct language concerning in Section 7—106(b)(l)(i) as states follows: appeal. Section “(b) error.—(l)(i) Except pro- as allegation Waiver (ii) an allegation of this subparagraph paragraph, vided have but petitioner error waived when a could made allegation failed make the intelligently knowingly or not an appeal, 3. on whether took direct appeal; “a

4. for leave an ...” plea; on guilty based 7-106(b)(l)(i) (2001, § the Crim- Cum.Supp.),

Md.Code added). then Article Petitioner (emphasis inal Procedure apply does not when argues waiver Morgan, U.S. 74 S.Ct. L.Ed. 1. In United States v. (1954), respondent Morgan pled guilty federal court and had had later, years year prison he was sentence. Several served four longer sentenced to a in a New York State court convicted prior as a offender because of the federal conviction. term second Supreme enhanced as a serious collater- Court considered this sentence consequence. al 480 filed,

leave to appeal is not as compared to when an applica- tion is filed and the alleged error is omitted. essence, petitioner asks us to adopt footnote five from Judge

Chief Robert Bell’s dissent in McElroy 329 136, (1993). Md. case, A.2d 1068 In that McElroy ap- peared with counsel and pled guilty to distribution of PCP. Id. at 617 A.2d at 1072. He had never filed an application for leave to appeal from guilty plea but subsequently filed a petition for post-conviction relief alleging that his guilty plea was involuntary on the grounds that it was not and intelligent knowing the because trial court did not advise him that the court was not bound by prosecutor’s the sentence recommen- dation, and that if the court imposed a sentence more severe than the one recommended he had no right to withdraw his plea. 143-45, Id. at 617 A.2d at 1072. The Circuit Court McElroy’s merits, denied petition on its not on waiver. Id. at 145, 617 A.2d at 1073. The Court of Special Appeals granted McElroy’s application for leave appeal the denial of his post-conviction relief. Id. That court held McEl- roy had waived his right post-conviction review. Id.

When this raised, Court confronted the issues the majority explicitly declined to address the question of whether the waiver provision Maryland contained the Post Conviction Act, 645A(c) Procedure Section of Article 27 of Maryland Code2 applied when an application for leave to appeal a applicable 2. As McElroy, pertinent part § 645A read as follows: "(c) allegation waived.—(1) When error deemed to have been For subtitle, purposes allegation of this of error shall be deemed to made, petitioner be waived when a intelligently could have but make, knowingly trial, trial, failed to allegation such before at (whether direct or not the actually took such an appeal), in an for leave to a conviction based on a guilty plea, any corpus habeas proceeding or coram actually petitioner, subtitle, instituted said prior petition in a under this proceeding actually other petitioner, instituted said unless the failure allegation to make such shall be excused because of special circumstances. proving The burden of the existence of such special upon petitioner.” circumstances shall be at Id. at 617 A.2d filed. sentence (1957, Repl.Vol.), Art. Md.Code (discussing 645A). Instead, majority allegation § assumed 645A, § held that majority Applying was waived. error he had presumption had to rebut McElroy failed allegation and that intelligently waived the knowingly circumstances McElroy prove any special also failed to Id. at 617 A.2d 1074-75. excuse waiver. might dissent, however, consider the issue and determined did Assembly explicitly the had not stated waiver because General appeal when an for leave to a conviction applied application filed, the as it had for direct appeals, and sentence is not provi intended the waiver must have Assembly General leave to is never apply application appeal to when an for sion filed. The footnote reads as follows: § of an for requires filing application

“Unless 645A the appeal alleged an error to have oc- preserve leave pursuant in to which application curred the proceedings an McElroy, who did not file such required, petitioner is allegations said to have waived the of application, cannot be § I 645A error Court. believe that presently before I application not so reach this conclusion require. by does statutory rules of construction.” ordinary further require “Those us look no than rules it convey meaning used to language Legislature to have. those interpreted wished the statute to be When unambiguous, ordinarily go are we need not words clear and further, completeness, in the we any although, interest at may purpose compare look the statute “(2) allegation by petition- error been When an could have made trial, trial, (whether petition- er before on direct or not said actually appeal), er took such an in an leave to plea, any corpus a conviction on a habeas or coram based proceeding actually by petitioner, prior instituted said in a subtitle, any proceeding actually other under this made, by petitioner, but in fact so shall instituted said was not there presumption petitioner intelligently be a that said rebuttable knowingly allegation.” such failed to make (1957, Repl.Vol.), § Md.Code Art. 27 645A. by

result obtained plain use of the language with the purpose the statute. are give We also to effect to the statute, entire neither adding, nor deleting, words order give it a meaning not otherwise evident the words actually Finally, used. we seek to give the statute a reason- interpretation, able not one that illogical is or incompatible with common sense.”

“When these rules of statutory construction are it applied, clear filing an application for leave to appeal, which is included all allegations of error a defen- have, dant may is not a condition precedent to seeking post conviction relief.” 645A(c)(l) that,

“Section makes clear unlike in the case of direct appeal, a does not waive an allegation defendant error that could have been raised by way ” leave to appeal simply filing such an application. That section provides: subtitle,

“For the purposes of this allegation of error shall be deemed to be waived when a could made, have but intelligently make, and knowingly failed to trial, such allegation trial, before on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave appeal to a conviction based on guilty plea, in any habeas coram corpus or proceeding actually instituted said in petitioner, a prior petition subtitle, under this or in any other proceeding actually instituted said petitioner, unless the failure to make allegation such shall be excused special because of circumstances. The proving burden of the existence of such special upon circumstances shall be added).” petitioner. (Emphasis 645A(c)(2), “Section largely tracking the language 645A(c)(l), is of similar effect. This difference in treatment of direct appeals and applications for leave to appeal clearly indicates Legislature that the intended that the presumption apply only in the case of direct appeals. To construe the statute any way other requires that language similar to that be added to appeals in connection with direct used to appeal.” for leave pertaining applications to provision 645A(c)(l) in to “Moreover, § were amended 295, in see Ch. legislation with enacted be consistent (e) Maryland Code which added subsection to Acts of (1980, § of the Courts & Judicial Repl.Vol.) 12-302 Article, entered on judgments and made Proceedings only on for leave pleas subject application to review 1988, the preamble See also Ch. Acts of appeal.” which provides: that, if fails person purpose clarifying

“FOR the an error allege under certain circumstances to conviction, certain appeal for leave to for the of a allegation purposes is deemed to be waived a certain post proceeding; clarifying presump- allegation to make a certain relating tion to failure error; allegations generally relating to waiver appeal.” error a certain effected, con- parenthetical

“When the amendment was Code; appeals already dition to direct pertaining nevertheless, chose not to include such Legislature language respect to the for leave provision pertaining ap- Because the to direct provision. to mean that failure to raise an peals interpreted has been waiver, whether or not a issue on direct constitutes a taken, Legislature presumed direct and the appeal was when it added the knowledge interpretation have had of that for leave to it language pertaining applications appeal, must have intended a different result those cases involv- Thus, history for leave to ing applications appeal. provision holding also contradicts the intermedi- ate appellate court.” (Bell

Id. at 156-58 n. 617 A.2d at 1078-79 n. 5 (some Chasanow, JJ., omitted, dissenting) internal citations added). emphasis first Chasanow, agree

I Judge Judge Chief Bell and would hold that for person who does not file an

484 right does not waive the to file a guilty plea leave to where a many writ error coram nobis. There are cases defendant, disposi- with the pleading guilty, after is satisfied therefore, incentive to tion in the case and has no reason or consequences If collateral of the plea. significant set aside that were unforeseen the defen- sentence arise after the defendant plea bargain dant at the time of the and the defendant is longer parole, is no incarcerated relief, he thereby ineligible petition post-conviction to file a for a writ opportunity petition should be afforded the she error coram nobis. LACHES rule no It to be the common law that there was appears within which to file a for a writ of petition time limitation Romero, nobis, 76 N.M. coram laches. State v. except perhaps 449, 837, (citing 415 P.2d 840 James W.M. Moore & Judgments, B.A. Federal From Civil Rogers, Elizabeth Relief (1946); 372, 623, 207 Or. Huffman, 55 YALE L.J. 674 State (1956)). 831, 507, also 346 at Morgan, 297 P.2d 852 See U.S. (coram allowed “without limita- petition 74 S.Ct. at 250 time”). Nonetheless, the to file for coram nobis tion of discussion Just as the supra. relief is not unlimited. See apply of waiver to principles Skok Court noted that basic hand, this case the consideration of inquiry prompts for a scope laches as a limitation on the writ coram nobis. of error elements of the doctrine of laches Maryland, essential opposing party.

are to the delay prejudice inexcusable 1276, Lamone, 233, 243-44, 398 Md. 919 A.2d 1283 Liddy v. Elections, 649, 668-70, (2007); 387 Md. 876 Ross v. Board of Buxton, (2005); 634, Buxton v. 363 Md. 645- A.2d 703-04 (2001); A.2d Parker v. Board Elec. 158-59 Of (1962). 126, 130, 230 Md. 186 A.2d Sup’rs, have the doctrine of applied Several federal courts See, relief. equitable petitions post-conviction laches to (9th Cir.1994) States, e.g., (holding Telink v. United F.3d

485 in applying that the district court did not abuse its discretion nobis); in year delay filing after a five a writ of coram laches Cir.1992) States, (7th (holding v. 961 F.2d 1339 Oliver United § supported doctrine of laches the denial of a 2255 motion delay years); when there was unreasonable seventeen Cir.1983) Darnell, (7th (holding States v. 716 F.2d 479 United of laches for coram nobis applicable petitions the doctrine applying relief and it to bar claims of ineffective assistance of delay). after a involuntary guilty plea twenty-year counsel and in reasoning language The courts base their from United Morgan, emphasizing public policy goal finality States v. judgments Supreme that the United States noting Court limited the of coram nobis to cases where appropriate “sound reasons” existed for failure to seek earlier Darnell, 480-81; 479, relief. United States v. 716 F.2d see States, (1994); 24 47-48 also Telink v. United F.3d cf. (2nd Cir.1996) States, (holding Foont v. 93 F.3d United language in “sound Morgan requiring United States delay not amount reasons” does only requires doctrine of laches but the consideration of surrounding petitioner’s reasons to the delay, prejudice government).

The factual circumstances of Oliver v. United States illus- necessity utility trate both the and the of the doctrine of in assessing appropriateness laches re- post-conviction case, pled guilty lief. Oliver to two related federal States, charges bank 1973. Oliver v. United 961 F.2d (7th Cir.1992). At the proceedings, time of the Oliver yet begun had not to serve the sentence the federal he charges serving imposed by because was a life sentence later, State of Indiana. Id. at 1341. years Fourteen proceedings,” seeking Oliver filed a “motion for records of transcript sentencing. of his The district court denied the motion and informed Oliver that he first needed to 3006A, § pursuant § file a 2255 motion to 18 U.S.C. order get copy transcripts. Id. Three years passed motion, § before Oliver filed the alleging during his guilty plea was not advised of his to confront his Id. self incrimination. right against accusers or no avail- transcripts longer were court found that district delay the long be located and they could not able because States’ of destruction of United the routine date filing meant Id. Attorney’s passed. notes had motion, finding proce- § 2255 denied the

The district court barred Oliver’s that the doctrine of laches defects and dural Oliver, of States Court F.2d at 1341. The United claim. upheld Circuit for the Seventh Appeals in justified finding laches, the district court holding that bringing in his section seventeen-year delay “that Oliver’s ability respond in government its prejudiced 2255 action court and that the district allegations” merits of Oliver’s to the Id. delay in Oliver’s unreasonable. justified finding was also in this of laches Circuit’s at 1342. Seventh the impor- in that took into account an outcome case resulted post-conviction available avenue of maintaining an tance of reality and the constitutionally guilty pleas infirm challenge de- adequately often be unable to may the government by long they preceded when are challenges such against fend delay. States, (9th Telink, Cir.1994),3 Inc. United F.3d

In for the Ninth Circuit Appeals the United States Court in coram of laches a writ of applied the doctrine similarly laches, court stated: Discussing nobis action. a writ error coram nobis is a petition

“Because conviction, filing the time for attack on a criminal collateral of limitations. subject specific to a statute a is petition Rather, subject equitable to the doctrine petition action which bars an period, a limitations laches. Unlike a claim if unreasonable time laches bars strictly by lapse, ‘[Ljaches is not to the defendant. delay prejudice causes circuit, a writ of Although notes that in that federal 3. the court in Telink original proceeding, step criminal and in nobis is a in the error coram of a civil Maryland, coram nobis is in the nature a writ of error proceeding, immaterial as to whether the doctrine the difference is applies laches to coram nobis. limitation, time; principally like a mere matter of but the claim to be question inequity permitting upon change enforced—an founded some inequity ” property parties.’ condition or relations of the omitted). (internal at 45 citations The court held that the Id. petition time available to file a coram nobis should be based on “flexible, limitation,” (quoting time Id. at 47 Dar equitable nell, 480), 716 F.2d at that a could at district court 47. time the doctrine of laches to bar a claim. Id. at apply judge evaluating Laches is a valuable tool for the trial Oliver, prevent for coram As it can nobis. unfairly prejudiced by evidentiary from government being delay. from unexcused Unlike resulting long, destruction waiver, prejudice it allows the trial court to consider both the In government delay. balancing to the and the reasons for factors, flexibility the two the trial court has more to allow proceed of coram nobis to those cases where fairness writs post- to be heard on the matter of opportunity demands erroneously applying conviction relief. the waiver con- 7-106(b)(l)(i) §in Article of tained of the Criminal Procedure Code, trial not consider the Maryland judge did the delay plea reasons for or the merits of the claim that was I constitutionally permit invalid. would remand this case to petitioner proceed in the Circuit Court and to demonstrate elements, satisfy including that he can all the “sound reasons” delay, justify coram nobis relief. Voluntary Intelligent Guilty and Plea claim,

As to the merits of Petitioner’ if the Circuit Court action, I finds that laches does not bar the coram nobis would plea involuntary hold that the was and that he should be permitted plea to withdraw the because he was not informed pleading guilty of offense to which he was The Circuit requirement petition- Court found that there was no to inform er of the possible charges pled maximum sentence for the he to, but determined that his was guilty plea constitutionally infirm because he was of of the charge not advised the nature to which he was of pleading guilty. Special Ap- Court agreed with peals the Circuit Court that need not 488 faced, disagreed he but penalty informed of the maximum

be infirm because constitutionally petitioner’s plea during guilty plea into the record of facts read statement the nature of the to inform Petitioner of hearing was sufficient guilty. to which he pled of the crime charge and the elements and would hold Special Appeals with the disagree I Court he constitutionally infirm because plea was petitioner’s he was charge nature of the to which was not advised of the informed of the and because he was pleading guilty guilty plea. faced as a result of his maximum penalty valid, must be guilty plea that to be a It is fundamental State, 359 Metheny v. voluntarily intelligently. entered State, 1088, 1102 (2000); 576, 601, v. 755 A.2d Yoswick Md. Priet, (1997); 228, 239, 289 Md. 700 A.2d State Md. (1981); 267, 274-75, Davis v. 278 Md. 424 A.2d (1976). Rule 4-242 sets 103, 118, Maryland 361 A.2d a acceptance guilty plea, requir for the procedure forth the questions counsel to ask the defendant ing either the court or open the record in plea the voluntariness of his concerning petitioner’s guilty plea proceed at the time of court. 4-242(c) as follows: ing, provided Rule “(c) guilty. may plea guilty The court accept Plea of determines, an examination of the defen- upon after it only court, the court conducted open dant on the record defendant, attorney for the Attorney, State’s thereof, is pleading defendant combination charge of the nature of the voluntarily, understanding (2) there is a factual plea; consequences may accept plea for the The court plea. basis guilt. Upon the defendant does not admit though even shall guilty, the court enter accept plea refusal to not guilty.” (1992).4 Rule 4-242 Md. charge

A be informed of the nature of the defendant must A of facts the State pleading. proffer to which he or she is laws, 2001, immigration 4- response changes federal Rule 4. In Skok, 77, currently provides. See 361 Md. at 242 was amended to as it is insufficient to amounting robbery to a conduct that includes which he or charge of the of the nature advise a defendant in fact robbery Even a plea. though a entering guilt is she the occurred, entering plea been a could have a defendant of either theft or assault. lesser included offenses have a basic that the defendant Certainly, requirement the pleading or she is charge the to which he understanding of the individual of the the trial court to inform requires guilty guilty Because a pleading guilty. he or she is charge to which all the that constitutes is an “admission of conduct plea charge,” Metheny, 359 Md. at formal criminal elements of a Sutton 289 Md. (quoting 755 A.2d at 1101 (1981)), unless voluntary and cannot be 424 A.2d understanding charge of the possesses the individual a it cannot be said that pleading guilty, which he or she is court, accept- requires before 661. The amended Rule the 760 A.2d at ing guilty plea, to inform the defendant if he a or nolo contendere citizen, may deportation, face is a United States he or she or she detention, 4-242(c) citizenship. Maryland ineligibility Rule and or (e) states as follows: “(c) may accept plea guilty only guilty. a of after it Plea of The court determines, upon the an examination of the defendant on record court, Attorney, attorney open the court conducted the the State’s defendant, thereof, (1) any for the or combination the defendant understanding pleading voluntarily, of the nature of the is with (2) consequences plea; charge the there is a factual and the of addition, plea, plea. accepting the the court basis for the before (e) comply may accept shall with section of this Rule. The court plea guilty though guilt. Upon even the defendant does not admit plea accept plea guilty, enter a of not refusal court shall guilty.” (e) Consequences Guilty Nolo Collateral of a Plea Contendere. "contendere, accepts plea Before court or nolo court, defendant, Attorney, attorney the State’s for the (1) by entering combination thereof shall advise the defendant citizen, plea, if the defendant is not a United States defendant detention, deportation, may consequences or ineli- face additional gibility citizenship that the defendant should consult represented needs additional defense counsel if the defendant consequences plea. concerning potential information concerning consequences plea omission of advice the collateral invalid.” does not itself mandate that the be declared intelligently and if the indi- guilty plea voluntarily is entered charge pleading guilty. to what he is vidual does not know judice, case sub transcript In the a review of the from the was not informed guilty plea hearing petitioner confirms robbery deadly with a pleading guilty weapon; that he was not, counsel, refer to count of the the court did nor did his specific pleading indictment nor to the offense to which he was in the courtroom not indicate that guilty. The voir dire does petitioner charge the court or counsel advised of the which guilty plea. he was entering contends, however, charged was petitioner

The State the state- only robbery deadly weapon, with with a and that during guilty plea proceeding ment of facts read was inform of the petitioner charge sufficient to nature are mis- robbery deadly weapon. arguments with a Both petitioner charged The docket entries reflect that was placed. deadly weapon, with a assault with intent robbery commit, robbery, carrying deadly weapon, a concealed and injure, with the intent to and openly carrying deadly weapon of the were of at the 1992 charges disposed guilty plea that all hearing.

Moreover, during the statement of facts read into record was not sufficient to advise guilty plea proceeding petition- to which he was charge pleading guilty. er of the nature specified only September The statement of facts that on 1992, petitioner two in the 1700 block of approached people City, North Avenue in Baltimore produced pellet gun, West received from the money, collectively demanded $54.00 individuals. It is not evident from the statement of facts two robbery with a petitioner pleading guilty deadly was weapon opposed as of the other crimes for which he charged charges was or the lesser included such as theft or 4-242(c) required assault. Rule the trial court to ensure that understood the nature of the to which he charge pleading guilty accepting plea. was before his The court did so, petitioner’s plea constitutionally do therefore infirm. guilty plea was not entered asserts also that

Petitioner he was not informed voluntarily intelligently because maximum statutory consequences plea, of his one of he is Both charge pleading. to which penalty for the rejected Special Appeals Circuit Court the Court found that trial court was petitioner’s argument and statutory penalty him the maximum to advise required peti- based on the fact that The State’s is argument faced. therefore, upon, mutually agreed tioner’s sentence I hold maximum irrelevant. Because would statutory advised of the nature of adequately was not petitioner I would not address charge pleading guilty, to which was permit I remand case to argument. second would this this proceed in the Circuit Court and to demonstrate satisfy justify he can all the elements coram relief. have me to Bell authorized Judge Judge

Chief Greene they join expressed dissenting the views in this state that opinion.

Case Details

Case Name: Holmes v. State

Court Name: Court of Appeals of Maryland

Date Published: Sep 21, 2007

Citation: 932 A.2d 698

Docket Number: 140, Sept. Term, 2006

Court Abbreviation: Md.