*1 WITH DIRECTIONS THE TO REVERSE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUN- TY AND TO REMAND THE THE CASE TO CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FUR- THER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE IN COURT OF BE SPECIAL APPEALS TO PAID BY THE RESPONDENT.
v. Maryland. STATE of Edward JEFFERSON Maryland. STATE of Term, Sept. Nos. 1992. Appeals Maryland.
Court
Jan. 1993. McElroy Motion for Reconsideration
Denied March 1993. *2 Offutt, Gary Handwerger, S. Norman Asst. De- Public Harris, Defender, brief), fender (Stephen E. Public on Balti- more, for petitioner. Graeff, (J. Curran, Joseph Grill Asst. Gen.
Kathryn Atty. Jr., Gen., brief), Baltimore, respondent. Atty. MURPHY, C.J., ELDRIDGE,
Argued before RODOWSKY, McAULIFFE, CHASANOW, KARWACKI BELL, M. and ROBERT JJ.
KARWACKI, Judge.
In each of these cases we are concerned with whether the petitioner, upon guilty plea, who had been convicted *3 relief our Post waived his under (PCPA), (1957, Procedure Act Maryland Conviction Code 645A-J, raise the Repl.Vol.) by failing Art. § in alleged by application error which resulted his conviction for leave to that conviction and the sentence thereon Special Appeals. the Court of
I. pertinent Article 645A in provides part: “(a) aside or Right proceeding institute set sentence; correct time initial filing proceeding.—(1) of (2) (3) to the of this Subject provisions paragraphs subsection, person convicted of a crime and either any or imprisonment incarcerated under sentence of death or confined or parole probation, including any person on or on or as a result of a parole probation proceeding before the District Court claims that the sentence or judg- who in imposed ment was violation of the Constitution of the or United States the Constitution or laws of this or jurisdiction impose the court was without sentence, or that the sentence exceeds the maximum law, sentence is otherwise or that authorized alleged upon any ground attack to collateral subject under a writ otherwise be available error which would nobis, or other common-law of coram corpus, habeas writ proceeding a under institute statutory remedy, may or to set aside county in court for the this subtitle the circuit has not sentence, alleged error provided correct the or in the litigated or waived finally previously been conviction, any in or in other resulting proceedings relief has taken to secure that the proceeding from his conviction. deemed to have been allegation error
“(c) When subtitle, waived.—(1) allega- of this purposes For a shall deemed to be waived when tion of error be made, knowing- intelligently and petitioner could have but trial, make, trial, allegation before at failed to such ly (whether petitioner actually or not the took direct in appeal), such an or any corpus on a habeas guilty plea,
conviction based peti- said actually instituted coram nobis subtitle, tioner, this prior petition under petitioner, instituted said proceeding actually other shall ex- allegation unless the failure to make such be circumstances. The burden special cused because circumstances shall proving the existence of such upon petitioner. be
“(2) made allegation When an of error could have been *4 trial, trial, at on direct by petitioner a before (whether an petitioner actually or not said took such in a appeal), for leave corpus on a in habeas or coram guilty plea, any based in by petitioner, nobis instituted said actually subtitle, pro- or in other prior petition any a under this ceeding actually petitioner, instituted said but was made, in fact so there shall be a rebuttable and failed to petitioner intelligently knowingly that said allegation.” make such
140
We construed these provisions governing waiver in Cur-
132,
tis v.
(1978).
284 Md.
We reasoned
the legislature
did not require
intelligent and
knowing
errors,
waiver
case
all
but
only
respect
with
to errors
deprived
petitioner
fundamental constitutional rights.1 As to those fundamen
rights,
tal
intelligent
knowing
requires
waiver
that the
petitioner’s
knowledge
right
and the petitioner’s
personal
right
waiver of the
be reflected on the record. As
to lesser or
rights,
non-fundamental
the petitioner will be
deemed to have waived
claim of
error if
petitioner’s counsel failed to exercise a prior opportunity to
Curtis,
recognized
1.
rights
we
requiring
fundamental constitutional
intelligent
knowing
right
waiver to include: Sixth Amendment
(Johnson
Zerbst, supra);
rights
to counsel
surrendered
(Machibroda
States,
487,
510,
v. United
368 U.S.
82 S.Ct.
7 L.Ed.2d
(1962));
rights
jeopardy
(Green
under double
clause
v. United
States,
184,
221,
(1957));
355 U.S.
78 S.Ct.
141 knowledge of personal a lack of notwithstanding raise it except when deprived2, petitioner of which right circum- excused error allege failure to stances. affecting fundamental of error allegation an
When
made
could have been
rights
constitutional
knowing
intelligent
waiver
Curtis,
distinguished the
we
2.
rights
waiver re-
from the
constitutional
for fundamental
standard
latter,
adopted the
regard
we
rights. With
to the
quirement for lesser
to
or counsel
of the defendant
Supreme Court that failure
view of
intelligent
know-
require
right
affirmatively
did not
assert the
examples:
several
We referred to
v. Zerbst.
ing
Johnson
waiver under
legitimate
prejudice default
showing
and actual
of cause
absent
Henderson,
(Francis
425 U.S.
upheld
v.
requirement
procedural
state
536,
jail
1708,
(1976)); right
tried in
not to be
L.Ed.2d 149
S.Ct.
48
96
1691,
501,
Williams,
48 L.Ed.2d
(Estelle
96 S.Ct.
425 U.S.
clothing
v.
defendant’s
product
when
(1976));
protection work
doctrine
no
126
Nobles,
(United
422 U.S.
v.
States
investigator
defense witness
called as
(1975)); voluntary
2160,
consent
to
225,
141
45 L.Ed.2d
95 S.Ct.
2041,
218,
Bustamonte,
S.Ct.
36
(Schneckloth
93
412 U.S.
v.
search
jury
grand
(1973));
composition of federal
bias in
race
L.Ed.2d 854
States,
(Davis
411
procedural
v. United
pursuant
rules
prior
trial
to
233,
1577,
(1973)).
216
36 L.Ed.2d
93 S.Ct.
U.S.
holdings, e.g.,
subsequent
in our
position is further reflected
This
dimension
not one of constitutional
information
defect in criminal
665,
(1989)); cautionary jury
State,
(Treece
A.2d 1054
Md.
547
v.
313
testify
right not to
regarding
Fifth Amendment
defendant’s
instruction
or counsel
defendant
protection waivable
is a constitutional
160,
(1989);
State,
v.
(Hardaway
Md.
II.
A. January On John Harold McElroy appeared with counsel for trial in the Circuit Court for Baltimore County on him inter alia with distribution of charging indictments (PCP). Phencyclidine called, McElroy’s When case was Assistant Attorney State’s advised the court: plea negotiations
“There have been myself between pleas PCP, counsel. The would inbe distribution of Honor, Your guilty plea a that the anticipates State will result in a sentence guidelines within the of four years to eight return, And in years. pros nol balance 88- 5347 and all the defense, course, counts 5347. The is free to argue less.” Thereafter, the court questioned McElroy determined that he was 30 years age, possessed a tenth grade education, and could read and write English language. The inquiries court’s also established McElroy that had never patient been a mental institution and that he was not then under the influence of alcohol or any drugs. The continued: colloquy
“THE
case,
COURT:
By pleading guilty
this
you
subject yourself
years
$25,000
to 20
fine on the first
count,
charges
you
did distribute PCP and will
requesting
possible
be
presentence, since the guidelines
guideline
recommend a
of four years to eight years.
argue
Your
is free to
attorney
anything less than object
(Davis
improper
jury
alibi evidence
instruction
(1979)).
Md.
“THE And COURT: to the Court have a You still yourself be it, to do so it would but Appeals review Special the jurisdiction The first grounds. limited to four illegal I gave or not Court; is whether the second this you freely or not are sentence; is whether the third *7 being repre- I and am sure entering plea this voluntarily want Shaw, any questions you have you Mr. do sented proceeding? to prior him or the ask of Court No, sir. “THE DEFENDANT: satisfied that The Court is right. “THE All COURT: and given intelligently voluntarily plea freely, count. Let’s on the first guilty accept plea will a seat.” may You have plea. for the hear the basis facts, accepted the court hearing After the statement of PCP. of distribution McElroy guilty found plea and guilty court the trial attorney, request McElroy’s theAt which revealed investigation pre-sentence ordered a record. Neverthe- extensive criminal McElroy Mr. had an complied with hearing prosecutor less, sentencing at a sentence bargain and recommended plea part his pre-sentence light eight years, although four twenty year to a twelve subject defendant was report the guidelines. sentencing term under to fifteen 30, 1989, sentenced McElroy was March On 26,1988, commencing October years imprisonment, for leave apply which to thirty days he had within advised for Appeals. Motions Special the Court of denied, were filed or reduction of sentence modification but no application for to appeal leave from the conviction and sentence on his guilty plea was filed.
On August McElroy filed a petition conviction relief. He asserted that his guilty plea was not entered knowingly intelligently because the trial judge had failed to comply with Maryland Rule 4-2433 which provides pertinent 3. Rule part: 4-243 "(a) Agreement.—The may of Conditions for defendant enter into an agreement contendere Attorney with the State’s for a or nolo condition, any proper including on one or more of the following: "(1) Attorney That the State’s charging will amend the document to offense, charge specified charging specified offense or add a or will file a new document; "(2) Attorney That the State’s prosequi pursuant will enter a nolle 4-247(a) charges against Rule or move to mark certain the defendant pursuant 4-248(a); stet on the docket to Rule "(3) Attorney agree That the entry judgment State’s will to the of a acquittal charges defendant; pending against on certain "(4) charge That the State will not the defendant with the commis- offenses; sion of certain other "(5) recommend, Attorney That the oppose, State’s will or make sentence, respect no disposition, particular comment to the court with to a action; judicial or other "(6) parties plea agreement That the proposing will submit a sentence, particular disposition, judicial judge or other action to a (c) pursuant consideration to section of this Rule. “(b) Sentencing.—The Attorney Recommendations of State’s Attorney respect recommendation of the particular State’s with to a sentence, disposition, judicial pursuant or other action made to sub- (a)(5) binding section advise the of this Rule is not on the court. The court shall Attorney defendant at or before the time the State's makes a recommendation, recommendation that the court is not bound *8 may impose penalties that it offense to which the defendant provided by the maximum law the pleads guilty, imposition and that of a penalty by more severe than the one recommended the State’s Attor- ney grounds plea. will not be for withdrawal of the “(c) Sentence, Agreements Disposition, of or Other Judicial Ac- tion.— “(1) plea agreement Presentation to the Court.—If a has been (a)(6) pursuant reached plea guilty to subsection of this Rule for a of sentence, contemplates particular or nolo contendere which disposi- a tion, action, judicial or other the defense counsel and the State’s Attorney the and, judge shall advise agreement the of the terms of the when pleads. judge may accept reject defendant The plea then or the accepted, may approve agreement if the or defer decision as to its approval investigation rejection pre-sentence proceedings until after such judge as the directs.” he alleged that that bargains. Specifically, governs plea him the court was not not advised judge trial had as to sentence recommendation by prosecutor’s bound a sentence more than that, imposed if the court severe right no to withdraw recommended, McElroy had the one 4-243(b). plea. his Md.Rule before the hearing
A
was held
November
offered no
County. McElroy
Court
Baltimore
Circuit
November
hearing.
at
On
evidence
a
petition. McElroy filed
McElroy’s
denied
hearing judge
The
to
that denial.
appeal
for leave
timely application
Special
granted
application.
of
Appeals
Court
requested
parties
ad-
appellate
intermediate
court
right
had
his
McElroy
the issue of whether
waived
dress
his
failure to raise
claim an
conviction review his
on his
appeal
for leave to
entered
application
judgment
hearing argument,
Special
After
the Court of
guilty plea.
had
his
Appeals
McElroy
held that
waived
(1992).
48,
B. (1974, 12-302(e) Courts Repl.Vol.), Md.Code person that a Proceedings requires and Judicial Article upon a circuit court seeking review of conviction based file 8-204(b)(l) provides Special Appeals. Md.Rule Court must that such be filed with clerk which judgment from the from days circuit court within Despite McElroy did sought. provisions, these not seek direct review his conviction the Court earlier, As he of his Appeals. noted was advised Special we appellate seek of the conviction would right review his before guilty plea result from the court’s acceptance accepted plea. Again, after the trial the trial court him, him that have judge “you advised judge sentenced Special take to the thirty days Court Appeals.”
146 argues
Under these circumstances the State McElroy that he petition waived claim makes in his for post conviction relief, 645A(a) supra. On the citing (c) PCPA, and § hand, other that McElroy asserts no waiver has occurred (1) provisions because the waiver do not apply where no was from taken a conviction upon (2) he guilty plea; based has the presump- rebutted tion that he intelligently and failed to raise knowingly (3) issue and he has shown circum- previously; excusing stances his failure raise allegation his error previously.
McElroy’s argument first was not made to Court Special Appeals nor in his for certiorari petition addressed us, to this Court. Consequently, issue is before State, address Maus v. 85, we decline to it. 311 105, Md. 1066, (1987). 532 A.2d 1076 regard
With McElroy’s argu second third ments, asserts, concedes, he the State and we that agree his claim that plea he was convicted which was not knowingly intelligently entered is one that asserts the right. Boykin deprivation of a fundamental constitutional Alabama, v. 243-44, 238, 1709, 1712-13, U.S. 395 89 S.Ct. 23 States, 274, Machibroda United (1969); L.Ed.2d 279-80 493, 487, 510, 513, 473, 368 82 U.S. S.Ct. 7 L.Ed.2d 478 Hersch v. (1962); 1254, Md. 317 562 A.2d Priet, State v. (1989); 349, 289 Md. (1981). Nevertheless, are not McEl persuaded we that roy has rebutted the set forth in Art. 645A(c)(2) he failed “intelligently knowingly make” contention he raises instant conviction failing to seek direct review his conviction Special and sentence the Court Appeals. The record proceedings of the trial judge court show that the trial McElroy appellate advised his review conviction which would result from acceptance the court’s before guilty plea accepted, his was and McEl roy judge assured the trial that he no questions had about right. At hearing, no evidence *10 knowing intelligent of the offered rebut 645A(c)(2). by Art. waiver mandated § illustration of good supra, Curtis v. provides presump- offered rebut kind of evidence that must be 645A(c)(2). In for in Art. provided tion of waiver degree of first Curtis, convicted petitioner had been ap- court by he represented at a trial where was murder the Court by was affirmed counsel. His conviction pointed There- denied certiorari. and this Court Special Appeals of counsel, filed his first Curtis after, represented by different was made allegation relief. No post for conviction petition been it, on Curtis had hearing petition, in that or at the genuine Amendment deprived of his Sixth his on direct trial or counsel at representation effective relief. hearing any post denied conviction court filed a attorney, then Curtis, by a third represented He claimed post conviction relief. petition second representation by denied and effective genuine he had been trial, and at the first appeal, his direct counsel at on moved to dismiss The State proceeding. conviction on that Curtis ground second failing to raise made therein had the claim waived motion, hearing petitioner’s on that earlier. At the issue proffered following facts: counsel (trial assistance counsel The issue of ineffective “3. at petition- and counsel counsel, counsel on direct raised hearing) has never been post-conviction er’s first case. prior court by petitioner trial counsel “4. Petitioner never advised was case that prior post-conviction appointed on his counsel the issue ineffective should have raised petitioner petition. his first post-conviction of counsel in assistance counsel never advised that trial “5. Petitioner was failure to raise ineffective for his have been may crime reducing the intoxication as voluntary defense of murder; nor was degree degree first second from have been may that trial counsel petitioner ever advised of “diminished for his failure to raise the issue ineffective responsibility” or for his failure to raise on direct evidentiary dealing issue with “double hearsay” testimony Mary Wedge and Mildred Curtis. “6. Petitioner with a layman grade seventh edu- (borderline I.Q. cation and an of 72 range intelligence). had petitioner’s Evidence been introduced at trial a chronic alcoholic who had suffered some damage brain as a result extended drinking nine- (19) teen Petitioner years. was not aware that he should have raised the issue of ineffective assistance of counsel at his post-conviction hearing. first
“7.
relied
entirely
Petitioner
his court-appointed
trial,
counsel at
on direct
and in
post-
...
his first
*11
conviction case. Petitioner would have raised the issue of
ineffective assistance of counsel in his prior post-convic-
petitioner
tion case
possible
had
known that there was a
counsel.” Id. 284 Md. at
issue of
assistance of
ineffective
135-36,
Accepting
proffered
as true for
purposes
motion,
on the
ruling
hearing
State’s
judge dismissed
petition.
Special
Court of
Appeals granted the
petitioner’s application for leave to
affirmed.
Curtis v.
459,
(1977).
Md.App.
37
“The
accepted
as true
the circuit court
purposes
of the State’s motion to dismiss on the
waiver,
ground of
clearly disclosed that Curtis did not
“intelligently and
to
knowingly”
previously
fail
raise the
matter of his trial counsel’s alleged
There-
inadequacy.
fore, the issue cannot
be deemed
have been waived.”
151,
Id.
Unlike made no McElroy effort rebut the that he claim waived the that his plea guilty was not knowingly intelligently entered failing to raise that issue in an application for leave appeal the conviction and sentence guilty based on his Likewise, the Court of Special Appeals. there is no circumstances any special record this evidence review appellate his failure to seek direct excuse would the Court He was advised that his and sentence. conviction pur for that an available resource was Special Appeals review he had to seek such within pose and told that he judge He assured the trial days of his conviction. reasons, has failed For these he right. understood that 645A(c)(1) 27, him Art. imposed upon the burden meet Washington circumstances. such prove Cf. (1966) circum Warden, 243 Md. (special petitioner proved conviction stances found where he had issue earlier not raised mental illness which he from a suffering because was counsel). assisting him from his prevented his under the waived to relief summary, McElroy knowingly guilty plea on claim that his PCPA his issue in by failing made to raise that intelligently Special to the Court Furthermore, appellate failure to seek that his Appeals. special circumstances. not excused by review was III.
A. City for Baltimore December In the Circuit Court degree to second pleaded Edward Jefferson *12 violence, murder, handgun a and use of a crime plea to a pursuant assault. These were entered pleas the sentences to agreement provided that the total of which years. imposed for these offenses would not exceed be Furthermore, if the court would prosecutor agreed the that sentences the with the limitation the accept pleas the length no as to State would make recommendation free argue be to sentences and that defense counsel would the pleas accepted for after lesser sentences. The were herself directed Jefferson judge inquiry trial assured entering voluntarily, he with pleas freely, that was a factu- consequences. hearing After knowledge full al basis for the pleas, accepted the court them and Jeffer- son was convicted the crimes to which he had pleaded guilty. The trial judge ordered a presentence report a for set date sentencing.
At sentencing hearing on January after defense counsel for argued totalling sentences less than 30 allocution, years Jefferson made an the court addressed the assistant attorney: state’s
“THE perimeters COURT: Within the agreement, say does State want something? STATE’S Only, Your
“[ASSISTANT ATTORNEY]: Honor, presentence that there little in the very report mitigate which would toward a lesser sentence than that agreed which upon.” was judge imposed trial a 30 year sentence for second
degree murder, a concurrent 15 sentence year for handgun offense, a year concurrent 10 sentence for the assault. filed timely application Jefferson from those judgments Special Ap- the Court of peals. that application Jefferson raised 12 issues. His leave to was denied. Subsequently, petition he filed the relief in conviction the instant case, alleging pleas that his guilty were not since voluntary they by plea agreement were induced breached prosecutor at the sentencing hearing. Specifically, Jefferson posits agreement the State breached the make no recommendation sentencing at when the assistant attorney state’s very commented “there is little in the presentence report mitigate which would toward a lesser agreed upon.” sentence than that which was The post hearing judge concluded that the plea agreement State had breached and that Jefferson’s claim for relief upon based breach was not waived his failure raise the issue his application to the Court Special Appeals for leave from judgments entered on his pleas. Consequently, hearing judge ordered that be given Jefferson should option *13 withdrawing or of judge another being re-sentenced before The of to trial. Court guilty pleas his for leave to application granted the State’s Appeals Special granting the order from order and vacated relief. post conviction Jefferson
B. hearing post conviction testify did not at Jefferson presump- to rebut the other evidence offered any nor was 645A(c)(2): Art. tion created § made by could have been allegation error “When trial, trial, in an at ... petitioner before ... guilty plea, based on a leave to a conviction made, in shall be a rebuttable fact so there but was not and know- petitioner intelligently that said allegation.” to make failed such ingly State plea agreement by alleged breach pleas on Decem guilty in record of his fully documented hearing January 1990. sentencing ber in the Jefferson made the claim which Consequently, been made his petition should have conviction Special Ap Court addressed supra, II.B., Part For the reasons set forth peals. in Curtis Jefferson, McElroy, like and unlike State, intelligently have and know supra, is deemed to that the State’s present his his claim ingly waived pleas his plea agreement induced breach he rights constitutional which him the fundamental denied Miller v. entering those pleas. surrendered when Cf. (1974). Also, he has 249, 255, 322 A.2d 272 Md. ex prove circumstances would failed waiver. cuse that
IV. Special Appeals agree We with Court petitioners both of these claims of 645A(c) under the provisions cases have been waived *14 the PCPA. Accordingly, shall we affirm the judgments the intermediate court in appellate both cases. AFFIRMED,
JUDGMENTS WITH COSTS. BELL, JJ., CHASANOW and ROBERT M. dissent. BELL, J., ROBERT M. dissenting CHASANOW, in which J. concurs. cases, each of petitioners these the to pled
charged offense pursuant plea agreement. to a In McEl- roy, agreement the called for the to State recommend “a guidelines sentence the years eight within four to years”, the on range computed the basis of information available during negotiations, the and to pros remaining nolle the charges. The permitted defendant was “to argue for less.” In Jefferson, the plea agreement contemplated a sentence not to 30 years. exceed The State bound itself to make no sentence, recommendation as to length while the defense could for a lesser argue sentence. Neither was defendant informed, by else, the trial court or anyone during the 4-242(c), voluntariness inquiry, Maryland see Rule he that could plea withdraw his in the event that the court did not accept either the if State’s recommendation or the State plea agreement. breached the sentenced, McElroy was following pre-sentence investi- guidelines gation. range on the computed the basis of information that developed during investigation was differ- and, indeed, ent higher, than on substantially that the basis of which negotiated. was sentenced McElroy was higher guidelines range.1 within While he was twice advised by right court of the and the limited issues he could on appeal, raise at no time was McEl- 1. Although majority plea agree- holds that State abided its ment, that, did, the record unequivo- reflects extent it it not was recommending eight cal. indeed While a sentence between four and years be," "because that is what is determined the Guidelines to with,” opportunity it would "stick the State did not miss an obvious, point quite out what was that "the Guidelines determined presentence twenty years." are twelve to absolute, being right was roy told appel of the intermediate the discretion dependent solely 12- (1974, Repl.Vol.) Maryland late Code court. See § Article; 8- Md.Rule 302(e) of the Courts & Jud.Proc. (1974, Repl. 204(f)(1)-(5). Code Maryland See also 12-202(4) Jud.Proc. of the Courts & Cum.Supp.) Vol.1992 actually he right was never told that McElroy Article.2 for leave had to file was told, he to file the had Nor he moreover raise, it, justifying issues review possible all preserve any issue reversal order review. *15 presentence a investi- sentenced after
Jefferson was also his after counsel had sentencing hearing, the gation. At recommended, the than that for lesser sentence argued a to make no agreement State, disregard in apparent sentence, a stated: specific recommendation of little in the Honor, very Your there “Only, a lesser mitigate toward which would presentence report upon.” agreed was sentence than that which years imprisonment, to 30 The Jefferson court sentenced Attorney just State’s that “what the noting process the the during Both volun- correct.” utterly said seems to be Jefferson imposed, sentence was tariness and after inquiry to apply he could for leave was advised that such consequences of probable also told him that the court Like it would be denied. an be that application would consequences not informed that the McElroy, Jefferson was it, all including or of within not filing application of not post right to the to error was waive possible reversible not raised. relief as to all issues conviction 12-202(4) Appeals granting prohibits from the Court 2. Section Special Appeals has denied the Court of in a case which certiorari guilty plea judgment granted appeal from entered in or leave to the appel- only proceeding. prohibition to the intermediate That extends granting denying application. Williams v. or late court’s action in (1981). may This Court 292 Md. always on the Id. court’s decision merits. review that Both petitioners subsequently petitions filed con- post relief, McElroy having sought viction without first to leave appeal guilty plea from the and Jefferson his applica- after tion for leave had been denied Court Special Appeals. In each case the of Special Appeals Court granted leave to appeal the circuit court’s decision on the petition. In conviction circuit court de- McElroy, nied post conviction relief and in Jefferson, the lower court case, granted the relief. each appellate intermediate petitioners court held that “knowingly had and intelli- gently challenge their validity waived guilty plea proceedings in the lower court.” holds, law,
The majority as a matter of that failure raise breach of agreement by application for leave from plea, whether not an was, fact, filed, is a “knowing and intelligent” waiver According majority, petitioner issue.3 where a has does file pled guilty who leave or, if one, he or file she does does not raise the issue in the presented proceeding, presump tion waiver obviates the need for the trial make court to determination factual the inaction or whether omission knowing intelligent. Unless the adduces evidence of circumstances which excuse his or would *16 her failure to file an application appeal, for leave to the In conclusively words, issue is waived. other the majority position the that takes the of and presumption knowing intelligent waiver, (1957, Maryland see Code Repl.Vol.) 1992 27, 645A(c), is, Art. though characterized as in rebuttable § fact, conclusive; in effect and who to defendant fails a allege issue the on which is in sought conviction relief an application appeal plea, leave to from a in the guilty of the offer of can proffer, absence affirmative evidence or he presumption rebut the if or she can only establish case, petitioner argument In 3. each the had a valid that the State plea agreement, majority they by breached its which the holds waived failing argument to make the in an
155 This raise issue. to the failure to the circumstances excuse made, of argument the the Court is much like the that State Curtis in rejected, we Special adopted, and Appeals State, (1978).4 138-39, 464, 468 132, 284 Md. presumption
I The of waiv- disagree emphatically.5 most statute, a one. rebuttable is, by very er the terms reported 4. in that case: As held, maintains, Special Appeals that as the Court of State results language, mere failure to raise an issue the above the under waiver, only finding “special circum- presumption and a of in a of the the effect of will rebut the or alleviate stances” Moreover, prof- argues as State that facts such those waiver. the case, showing accepted petitioner that did not and in this fered previously question of “intelligently knowingly’ the fail raise counsel, “special inadequacy not circum- of do constitute trial rebutting presumption. stances” the 645A(c) by interpretation and the Court § This State manifestly Special Appeals is erroneous. hence, unsupportable Although majority’s position is 5. I think the does, only it argument the issue it I think sake of I will address for the McEIroy argument by petitioner appropriate note advanced that majority to address wheth- properly is the Court. The declines before provisions do petitioner McElroy’s argument that the waiver er the a not from apply seek leave to not when defendant does Special holding guilty plea, it was neither made the Court of position, taking Appeals petition in his certiorari. wrong. majority simply McEIroy issue on his own in Court Whether raised the dispositive. appellate court's Special Appeals is The intermediate upon clearly premised interpretation of the very its decision statutory filing requiring for leave as of an scheme plea judgment. guilty McEI prerequisite as a to review of 435, granted, Md.App. A.2d cert. 326 Md. roy v. 599 (1992). noting inappropriate it was how A.2d 137 In addition conviction, proceed way than rather for the guilty plea, that filing application for leave to from the court, itself, parties opinion acknowledged that the asked court’s to, specific pertaining though not questions, each to brief two terms, (1957, Repl.Vol.) Maryland Art. Code construction 645A(c): § (a) was convicted on a Whether defendant who facts appellate based on who desires review apparent guilty plea record of the would be Appeal Application for Leave to must seek such review 12-302(e); pursuant Cts. & art. Jud.Proc. (b) of error in such a case that could have been Whether claim *17 by Application Appeal pursuant to 12- § for Leave to filed raised an 302(e) purposes subsequent is waived for review under the Post Conviction Procedure Act if it was not so when raised. 53, McElroy, Md.App. at 599 A.2d at majority 1217-18. The acknowledges issue was raised fact, therefore, point that this is so. At 144. In in, specifically by, and also decided the intermediate appellate court. Moreover, petition, McElroy presented in his certiorari ques- five Questions closely tions. questions 3 and 4 track the the Court of Special Appeals required parties They to address. are: 3. Must a plea defendant who was convicted on a appellate who desires would be such review an review of the conviction based on facts that apparent guilty plea in the record seek by Application Appeal pursuant for Leave to to CTS. 12-302(e)? & JUD.PROC.CODEANN. §§ 4. Is a claim of error in such a case that could have been raised Application Appeal pursuant Leave to filed to CTS. & 12-302(e) JUD.PROC.CODE purposes ANN. §§ waived for of subse- quent review under the Post Conviction Procedure Act if it was not so raised? together, singly, they Taken proper adequately or even raise the issue of the 645A(c); necessarily construction of implicit ques- § in these tions is whether a defendant application must seek for leave to in order could McElroy’squestion ordinarily proceedings to obtain review of an issue that Indeed, application have been reviewed for leave to assumes, arguendo, that a claim of error by application must be raised for leave to from a issue; guilty plea, adequately presents also having made that assumption, it asks whether waiver occurs even when the defendant is scope misadvised as to the nature and proce- trial review fundamentally, summing up dure. More why the reasons this Court certiorari, grant McElroy should provides noted: "Petitioner’s case opportunity this Court with an unusual provi- to construe the waiver sions of the Uniform Post Conviction Act" and analysis appellate "[t]he intermediate [the in Petitioner’s court] inconsistent, internally case ... seems provides for it that a defen- remedy dant waives a to a understanding for not his agreement appeal, despite application because he fails to note an for leave to very the fact that knowledge presumably this lack of means he will not know appeal.” Unless requesting that he had basis for requires filing 645A of an appeal ings pursuant preserve alleged proceed- error to have occurred in the required, to which the McElroy, application, who did not file such an cannot be said to have allegations waived the presently of error before the Court. I believe require. § 645A does not so I reach this applica- conclusion ordinary statutory tion of the rules of construction. require Those rules us to look no further language than to the Legislature convey meaning used to it wished the statute to be interpreted to have. When those words unambiguous, are clear and further, ordinarily 73, go any we need not 323 Md. Mustafa (1991); Brewing G. Heileman Co. v. Stroh
157
755,
1225,
Co.,
746,
(1987); In re
Brewery
Md.
521 A.2d
1230
308
674, 685,
976,
1-162,
982
Investigation
307 Md.
516 A.2d
Criminal
(1986);
No.
Industries, Inc.,
Md.
Comptroller
Treasury
Fairchild
303
v.
of
280, 284,
341,
(1985), although,
of
in the interest
493 A.2d
343
compare
completeness,
may
purpose of the statute and
we
look at the
language
purpose
by
plain
of
with the
the result obtained
use
232,
Co., Md.
State Farm Mut. Auto Ins.
323
the statute. Sabatier v.
73,
250,
1098,
(1991); Mustafa,
application for He appeal.6 leave to acted without benefit (e) (1980, Maryland Repl.Vol.) added subsection Code 12- Article, Proceedings judgments 302 of the Courts & Judicial entered on and made guilty pleas subject only to review for leave preamble
to provides: See Ch. also Acts of to which *19 that, clarifying purpose person FOR the if a fails under certain allege circumstances to an error in an for leave to conviction, appeal allegation a certain is deemed to be waived purposes proceeding; clarifying for the certain of a a relating allega- to failure to make a certain error; generally relating allegations tion of error in a certain to waiver of appeal. effected, parenthetical per- When the amendment was taining Legislature application condition Code; nevertheless, appeals already to direct was in the language respect chose not to include such with to the provision. provision for leave to Because the pertaining appeals interpreted to direct has been to mean that failure waiver, to raise an issue on direct a direct Md. constitutes a whether or not taken, Warden, Kelly Penitentiary, was see Md. 243 717, 718-19, Warden, (1966); 222 A.2d 836 Meadows v. Md. 710, 713, (1966); Penitentiary, 243 Md. 222 A.2d 251 Austin v. Director, Inst., (1965), Patuxent Md. Legislature presumed knowledge is to have had of that interpretation language pertaining applications when it added the appeal, for leave to it have must intended a different result in those Thus, involving applications history cases for leave to provision holding appel- that late court. also contradicts the of the intermediate only apply appeal—at filings, 6. Not did Jefferson for leave to least his captioned appeal pursuant Maryland "Motion for an Rule 1311” Incompetence Representation," and "Motion to Show And Farce were here, very point although so treated—but he raised the admittedly, at issue artfully may applica- not as as it have been done. In the alleged: tion he ) Attorney 3. That the Petitioner didn’t see to that the Petitioner [sic] have a fair trial And Sentence! )4. That the Petitioner was Promise various Deal’s within the [sic] Bargain Agreement Attorney! Petitioner Plea. with his behalf of his Plea was made to the Petitioner in 6.) made That the Honorable any Promise [******] the State or His Judge never asked the Petitioner was he Attorney in which Bargain promise to Plea pro- court of the circuit transcript or even the of counsel Presuming a atypical.7 That is not ceedings, however. under these of an error intelligent waiver knowing unrepresented the defendant is circumstances—where not transcript—is only a and does not even have counsel unfair, is unrealistic as well. but does is to majority as the provision
To read the waiver
“virtually
and to
out of the statute
key
read certain
words
intelligent
concept
of ‘waiver’ as
away with
[do]
of Second
Guilty
Feel he is innocence [sic]
which the Petitioner
Degree Murder.
Agree
7.)
Attorney
to A 10
Defense
talked and
That the State and the
Attorney
His
year's cap
Promise to the Petitioner
which was
agin’s
Bargain Guilty
Charge’s
exchange
or all
For A Plea
Petitioner!
convey
together,
allegations
are sufficient to
These
taken
about,
alia,
complaining
inter
was
interested reader that Jefferson
required,
agreement.
consid-
That should be all that
breached
se,
proceeding pro
without aid of
ering
that the
demonstrates,
and,
graphically
operating
transcript
as his
enough
majority, however.
intellectually.
for the
It is not
at a deficit
holdings
Special Appeals require, as their
Court of
What it and the
demonstrate,
applicant
appeal meet an unmeet-
is that
only
possible issues in
applicant not
must raise all
able burden: the
the
artfully, well.
application,
he or she must do so
as
but
4-214(b)
repre-
pertinent part provides
"The
Maryland
7.
Rule
filing of subse-
appointed
does
extend to the
counsel
sentation
quent
*20
including
petition
discretionary proceedings
writ of certiorari
petition
relief." A discre-
expunge
for
conviction
to
records and
proceeding
in
tionary proceeding as used in this context means
grant
relief. In
has the discretion whether or not
which the court
certiorari,
appeal,
Walston
application
like a writ of
see
for leave to
559,
391,
(1973),
Co.,
565-66,
Md.
298 A.2d
395-96
v. Sun Cab
court has
267
grant
deny
application,
the discretion whether it will
8-204(f)(l)-(5),
applicant
right
further
has no
see Md.Rule
and
(1974,
Repl.Vol.)
Maryland
See
Code
1989
review of that decision.
Article; Williams,
207,
12-202(4)
Md. at
Cts. & Jud.Proc.
292
of the
§
Under its the majority could as just easily that, henceforth, require all appeals from criminal convic- tions must be noted defendants without benefit either of transcript counsel or and that any issue not raised in that pro waived, se defendant will be deemed absent has, circumstances. A defendant typical who most, education, at an high school but no knowledge law, and who has just imprisonment been sentenced to undoubtedly will be able carefully comprehensibly prepare, draft and file an to appeal. leave It is safe to say significant that a recognize number will not the waiver effect of a failure to craft and file carefully this “discretionary” application Special with Court of Ap- peals. majority also fails to distinguish between the defen-
dant’s burden to establish the existence of “special circum- stances” to excuse the allege, failure to in the application appeal, leave to error sought be raised on post or her his burden of rebutting presump- knowing tion of and intelligent waiver. Those are burdens different and are triggered by different factors. Section 645A(c) them; separately addresses the explicit statement in the second paragraph to the effect that the presump- rebuttable, tion is while the explains first how to handle “special circumstances” and they when become I relevant. *21 (c) read subsection as this Court did Curtis: (c) that, declares paragraph The first of subsection Act, “an alle- of the Post Conviction Procedure purposes shall deemed to be waived when a gation of error be made, intelligently knowing- and petitioner could have but make, prior proceeding. in a allegation” such ly failed Legislature contemplated The test for “waiver” which the raise, “intelligent knowing” and failure clearly unknowing petitioner to not the failure of counsel or an (c) paragraph goes The first of subsection raise an issue. knowing there is a and intelli- provide on to that where “shall previously, to raise an issue failure gent failure circumstances,” of with special excused because be the existence of being upon petitioner prove burden Thus, “special the matter of cir- circumstances. special where there is an only pertinent cumstances” becomes knowing petitioner previ- failure of the intelligent and affirmatively an issue. the record ously raise Where intelligent knowing and there was not an shows “excuse,” raise, and the nothing failure to there is no circumstances” has presence “special or absence relevance. (c) provides paragraph
The second subsection could have been made allegation where an error made, in fact so there petitioner previously, “but was not shall be a rebuttable petitioner that said presumption allega- failed to make such intelligently knowingly speak The statute does not (Emphasis supplied.) tion.” waiver, presumption in terms of a conclusive absent circumstances, as viewed the State and Rather, Special Appeals. it is a Court issue, have raised an intelligent knowing failure to stipulated failure can be evidence or rebutted did not showing petitioner “intelligently facts fail to raise the issue knowingly” previously.
Id., Thus, 139, 289 Md. at at 468-69. intelligently
It is where the fact only issue, failed to raise an or where he is unable knowingly *22 to rebut presumption the intelligent an and knowing failure, that he must “special show circumstances” order to excuse his failure.
Id.
at
To be one logically may assume that a defendant who enters into plea agreement, requires whether it the State to remain silent as to the sentence or to make a specific recommendation, sentencing will know that the is, State has violated its agreement. course, true, It quite clear, will, the proceeding itself in that circum- stance, provide the defendant with all that he or she needs allege the State’s breach of the plea agreement. It is true, neither clear nor necessarily however, that the defen- dant, not having been advised by counsel or the court of the consequences of violation, know, the State’s will or will appreciate, the violation entitles him relief, or her to the nature of that relief or how to obtain it. It is also far obvious, from in the effect, absence of advice to that the defendant’s sole avenue relief is by raising issue application be reviewed an that, leave to by that failure to raise the issue in a discretionary applica- tion for to appeal, leave to a review of the merits is lost violation, forever. The for a remedy plea agreement violation, unlike the of the is far from lay obvious to a fact person.8
The situation is problematic even more when the defen- dant is advised as to improperly his or her post judgment does, indeed, holding 8. The require in this case more of the defendant who, counsel, application without appeal, seeking files an for leave to absolutely, relief to which he or she is not than it does of a defendant latter, attorney filing or an a direct In the the defendant or 8-201, attorney only appeal, need file a notice of Md.Rule before record, being given opportunity study including the tran- script proceedings being required specify and before grants contrast, By way he or she wishes reviewed. applicant application, for leave to must days state in the within 30 disposition “a why judgment concise statement of the reasons should be specify allegedly reversed or modified and ... the errors 8-204(b)(2). committed the lower court." Md.Rule may that he or she not A who is advised rights. defendant and, appropri- where for leave file an may be such ate, upon bases possible availability aware not be held be may predicated, that defendant does When, consequently, option. of that reasonably not may he or she appeal, apply allege failed to intelligently to have knowingly and be said application. in that raised error which could have been knowing intelligent opinion, In my the circumstances adequately rebutted waiver *23 pro se proceeded That Jefferson these cases. both transcript the or the aid of of counsel without assistance filed his he proceedings court when the circuit post conviction matters of which are for leave Moreover, the notice. entitled to take obviously court was did, nature considered, obviously as it could have court factor, course, Another alleged. violation alleged a waiver.9 the State even whether not, have, did raise the but the defendant could Whether in an plea agreement violation issue of the State’s plea is a from a pos- fact, knowledge depends upon question therefore, that in significant, defendant. It is by sessed In find waiver. judge did the trial neither of these cases determined, that implicitly, trial albeit judge McElroy, his intelligently waive knowingly did not the defendant review; consid- having after only conviction on the voluntariness bearing ered evidence plea agreement did the failure of State abide relief. McElroy’s petition deny the court rejected argue The trial court Jefferson, the State waiver. 9. did because, view, argument "the State must demonstrate in its possible previously understood the aware of and ‘was Jefferson ” 565, 560, Torres, Md.App. (Quoting [ground State v. 86 for relief].’ 132, 140, State, (1991), quoting 284 Md. 395 Curtis v. A.2d 584 587 (1978) Md. and Jourdan v. 275 A.2d (1975)). neglected waiver issue in to raise the The State McElroy. The trial judge seen, as we Jefferson, expressly have held did not waive the State’s breach of the plea agreement.
Nevertheless, addressing without even whether those findings are erroneous or clearly considering whether the have, not, defendant issue, could but did raise the decides, law, as a majority matter of that the presumption of knowing intelligent despite waiver was rebutted express implied or findings non-waiver the trial judge. position defendant, The majority’s apparently is that a in all cases, adduce, must beyond reasonably glean- what may be case, evidence, ed from the record of the affirmative proffer, make a the presumption rebut or to show circumstances. Neither Curtis nor other case cited the majority supports that conclusion. simply Curtis re- quires that the presumption be rebutted by evidence and noted that a proffer acceptable was an method of producing that evidence. did suggest Curtis not even that the evi- dence to the presumption rebut must extrinsic to the be record. The special circumstances, issue of as we have holds, shown and arises after Curtis the factual determina- tion of waiver has made. The majority approach, been because of its restrictive presumption may view how the *24 rebutted, effect, merges be the two determinations. While it petitioners would have been wise for the to have explained why they did not proceed by application for leave appeal, base, thereby covering my it is submission not they required were do so since either the State did not contest their to a post hearing conviction or the court found the objections lacking State’s merit. The court not below was erroneous or expressly impliedly finding non-waiver.
The knowing intelligent of an allegation waiver implicated error is a applica- whenever defendant files an tion for leave to he or When she does not include application within the later allegations sought to be conviction, post raised on the post pre- conviction statute sumes that it was done knowingly intelligently. and, hence, of that strength presumption, the nature and of the quality necessary depends upon evidence to rebut it totality surrounding of the circumstances the applica- filing. apparent tion and its Where it is that the application se, defendant, counsel, pro acting is filed a without by presumption particularly strong. is not It is weaker still the application transcript when is filed without benefit of a plea of the The defendant’s education- guilty proceeding.10 level, al and literacy as indicated the record and the application,11 are additional factors to consid- significant be presumption ered. The evidence to rebut the will necessary differ, necessarily, depending upon strength of the presumption. the record reflects application When se defendant, to appeal pro leave filed a of minimal intelligence and literacy transcript without benefit of a proceedings, a court post very conviction could well conclude that those same factors very sufficiently rebutted of knowing intelligent waiver. The copy transcript 10. Whether a defendant has a of the a fact appear only by implication. that will leave to in the record An days entry judgment must be filed within 30 of the 8-204(b)(l). guilty plea. Maryland Ordinarily on the See Rule this is permit reporter prepare an insufficient amount of time to the court event, transcript proceedings. of the because the allowed, mandatory appeal is one from which a is not unless other- so, reporter ordinarily prepare wise ordered to do the court will not transcript. Accordingly, may seeking it be assumed that a defendant proceeding, represented by leave to counsel or ings. from a whether not, transcript proceed- will not have benefit of the guilty plea proceed- 11. The filed in the ing ordinarily proceeding. will be in the record of Maryland 4-402(a)(l). See conviction relief Rule Should the defendant seek se, pro certainly petition that he or she filed will occurs, be in the record. As sometimes the defendant will file documents, e.g. additional letters or motions. Perusal of the docu- quite ments filed the defendant will be instructive as to his or her possible, McElroy, mental acumen. It is also transcript as was the case in that a guilty plea proceeding will be filed with the Post event, *25 ability Conviction Petition. defendant In that the intellectual may colloquy determining be revealed in the directed at voluntarily. whether the defendant’s was entered the situation is different when record reveals that the filed counsel. Because it in- application may was be options ferred that counsel informed the defendant of the her, him the consequences available to of a failure to them, a of pursue greater knowledge may level be attrib- And, reason, uted to the defendant. for that the court may exacting different and more the require evidence rebut require the court affirmative of presumption, may evidence knowledge of the need to defendant’s lack have short, finding earlier raised the issue. In does waiver from the fact that a automatically flow This is so where the triggered. especially person- waiver defendant, record, al attributes of the as revealed case, In that presumption. are such as to undermine or not the defendant has adduced additional affir- whether or offered evidence extrinsic to the rec- testimony mative ord, non-waiver, the trial court could determine prove that presumption was rebutted. cases, determined, court post conviction both explicitly, and in
McElroy, implicitly Jefferson, allegation pertaining defendant did not of error waive An plea agreement. appellate State’s violation findings court is to defer to such on review unless required finding by erroneous. Neither conviction clearly I Accordingly, court erroneous. would reverse clearly in each case Special Appeals of the Court judgment of the merits.12 and remand to that court for consideration he has authorized me to state that Judge Chasanow expressed concurs the views herein. analysis accept majority’s apply if
12. The same would one were to necessary conclusion that it is to file an for leave to review, preserve, any allegation order by way error which could have been raised