Rich v. StateRich v. State
2016 Repl. Vol.),
RESTITUTION ORDER OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Nazarian, J.
Otis Rich pled guilty in the Circuit Court for Baltimore City to possession
We stayed this case pending the Court of Appeals‘s decision in State v. Smith, 443 Md. 572, 117 A.3d 1093 (2015). With the benefit of Smith, a case fundamentally similar to this one, we hold that Mr. Rich did not waive his right to seek coram nobis relief, and we address the merits. On the merits, we affirm the court‘s decisions with respect to the 1993 and 2002 petitions, but vacate the court‘s decision as to his 2001 plea to conspiracy to distribute marijuana because we are unable to see in the transcript of that plea hearing where Mr. Rich was advised about the nature of the conspiracy charge, and we remand for further proceedings.
I. BACKGROUND
In January 2009, Mr. Rich pled guilty in the United States District Court for the District of Maryland to a charge of conspiracy to distribute cocaine in violation of
First, in 1993, Mr. Rich pled guilty to possession with intent to distribute a controlled substance. He was sentenced to a term of five years’ imprisonment with five years suspended, and placed on probation for a year and six months. No transcripts of this plea hearing are in the record, so we do not know the facts and circumstances
Second, on October 23, 2001, Mr. Rich pled guilty to possession with intent to distribute marijuana and conspiracy to distribute marijuana. The statement of facts placed on the record at the plea hearing indicated that a reliable source tipped off police that three men were selling marijuana on the steps of a row house in the 800 block of Collington Avenue, and storing marijuana in a vacant home on the same streеt. Based on this tip, police at the scene observed three men, later identified as Kenneth Cook, Calvin Armistead, and Mr. Rich, selling marijuana:
During the course of their observations, the officers observed approximately eight times where persons would hand United States currency to both Mr. Cook and Mr. Rich. The money would be collected on every occasion, and on every occasion, Mr. Cook and Mr. Rich would respond northbound from their location to a house which was later found to be 825 North Collington Avenue, a vacant house. Both were observed to reach into the front window of the house and respond back to the location of the person who would surrender currency to them. Mr. Cook and Mr. Rich were observed to hand unknown objects to these persons, who would accept the objects and walk out of the area.
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Officer John, along with Officer Norline, responded to the vacant house at 825 North Collington Avenue. Upon looking in the front window, on the floor approximately one foot beneath the window was a large, open plastic bag that contained 43 small ziplock bags that contained a plant-like substance, suspected marijuana. Next to that bag was a large ziplock bag containing five smaller sandwich baggies each containing approximately one ounce of suspected marijuana, for a total of five ounces. Next to that bag was a blue Gap bag that contained a brown paper bag that contained 67 small ziplock baggies of suspected marijuana.
On the possession count, Mr. Rich was sentenced to three years, all suspended, and placed on three years of supervised probation. On the conspiracy count, he was sentenced concurrently to three years, all suspended, and three years of supervised probation. Again, Mr. Rich did not move for leave to appeal the conviction, and he has completed this sentence.
Third, on April 19, 2002, Mr. Rich pled guilty to second-degreе assault and was sentenced to ten months of incarceration. The circumstances surrounding this charge, as placed on the record during the plea hearing, indicate that:
... On November 2nd, 2001, at 2100 Guilford Avenue, which is Parole and Probation, officers attempted to serve a parole retake warrant on the defendant standing to the left of defense counsel. The defendant became hostile, pushed and punched both Officer Teal and Sergeant Freeman, causing cuts and bruises. The defendant then escaped from the officers and jumped out a window. The
defendant was arrested at a later date ....
Mr. Rich was sentenced to ten months’ imprisonment, which he served without seeking leave to appeal.
In his April 2009 coram nobis petitions, Mr. Rich argued that he was entitled to relief because trial counsel had rendered ineffective assistance at all three plea hearings. He contends that his counsel failed to ensure that his guilty pleas were knowing and voluntary, failed to ensure that the court engaged in a full plea colloquy, and failed to seek leave to appeal or ask for a modification of sentence following all three convictions, even though Mr. Rich says he asked counsel to do so. As for the “significant collateral consequence” required to qualify for coram nobis relief, Mr. Rich argued that he received an enhanced federal sentence in 2009 аs a result of the three guilty pleas. Without holding a hearing on the matter, the circuit court denied all three petitions, and Mr. Rich filed a timely appeal.
The case was originally docketed in our September 2010 term. On October 27, 2014, though, we issued a stay pending the Court of Appeals‘s decision in Graves v. State, 215 Md.App. 339, 343, 81 A.3d 516 (2013), cert. granted, 437 Md. 637, 89 A.3d 1104 (2014). In December 2014, the Court of Appeals dismissed Graves as moot, but the stay in Mr. Rich‘s case remained in place because, in the interim, the Court granted certiorari in State v. Smith to address the same issue. 439 Md. 327, 96 A.3d 143 (2014). After the Court decided Smith in July 2015, we lifted the stay and scheduled the case for argument in March 2016.
II. DISCUSSION
Unlike the circuit court, we have the benefit of significant legislative and judicial developments in the governing law that post-date the orders at issue. So although we are, of course, reviewing the circuit court‘s denial of Mr. Rich‘s three petitions for coram nobis relief,3 it is important for us to recognize the evolution, indeed the broadening, of coram nobis relief in the intervening six-and-a-half years, at least for certain categories of petitioners. Coram nobis remains an “extraordinary remedy” that allows a convicted defendant to “show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” State v. Smith, 443 Md. 572, 597, 117 A.3d 1093 (2015) (quoting Skok v. State, 361 Md. 52, 72-73, 760 A.2d 647 (2000)). This relief is available to aid defendants who, facing a relatively light sanction, “forego an appeal even if errors of a constitutional or fundamental nature may have occurred” and “[t]hen, when the defendant later learns of a substantial collateral consequence of the conviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation ...,” find it is too late to seek post-conviction relief. Skok, 361 Md. at 77, 760 A.2d 647 (citing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). Skok recognized enhanced sentencing as one such collateral consequence. Id.
The State‘s brief, filed before the case was stayed and thus before Smith, argues primarily that Mr. Rich waived his coram nobis claims and, if not, that they are barred by the equitable doctrine of laches. Those arguments were stronger before Smith, but in light of Smith, we disаgree that the claims are barred. From there, we reach the merits, and we find that Mr. Rich has met most of his threshold burdens as to one of his guilty pleas, and one needs further exploration.
A. Mr. Rich Has Not Waived His Coram Nobis Claims.
The State argues first that Mr. Rich was not entitled to coram nobis relief because he waived any challenge to his guilty pleas by not seeking leave to appeal them or filing a petition for post-conviction relief. The Court of Appeals‘s most recent treatment of waiver in this context, however, compels us to reject these contentions.
In Skok v. State, the leading case on waiver at the time of the circuit court rulings and the parties’ briefs, the Court of Appeals held that “the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction Procedure Act ... shall be applicable in a coram nobis proceeding.” 361 Md. at 79, 760 A.2d 647. But the General Assembly changed the law effective October 1, 2012, Md. Code (2001, 2008 Repl. Vol., 2015 Supp.), and
We disagree as well that Mr. Rich waived his coram nobis claims by failing to withdraw his guilty plea or seek post-conviction relief. Although the Maryland Post Conviction Procedure Act would seem to support the State‘s contention,4 it is enough under Smith that the record is silent as to whether Mr. Rich actually knew post-conviction relief was available,
We would eviscerate the beneficent purpose of [
CP § 8-401 ] if we were to hold that a person, suddenly faced with the serious collateral consequence of removal from this country, and with sound reasons for the failure to seek relief earlier, is foreclosed even from seeking the extraordinary relief afforded by the common law remedy of coram nobis simply by having failed to pursue an earlier-available avenue of relief, the opportunity for which closed before the reason for seeking such relief became manifest.
443 Md. at 609, 117 A.3d 1093 (internal citations omitted).
B. Mr. Rich‘s Claims Are Not Barred By Laches.
The State argues next that Mr. Rich‘s claims are barred by the equitable doctrine of laches. Laches is both an affirmative defense and an equitable defense, State Center, LLC v. Lexington Charles Ltd. P‘ship, 438 Md. 451, 480, 92 A.3d 400 (2014), so the State bears the burden of proving “by a preponderance of the evidence that: (1) there was an unreasonable or impermissible delay in asserting a particular claim, and (2) that the delay prejudiced the State.” Jones v. State, 445 Md. 324, 339, 126 A.3d 1162 (2015) (internal quotations and citatiоns omitted). We find that the State has not met its burden here.
In order to demonstrate prejudice, the State must demonstrate that the delay in bringing the claim placed it in a less favorable position to defend against the claim and to re-prosecute the defendant. Id. at 357, 126 A.3d 1162. In Jones, the State was able to meet its burden by eliciting testimony from a police officer during the hearing on a coram nobis petition challenging a defendant‘s prior drug conviction. Id. at 360, 126 A.3d 1162. The officer was the only eyewitness, and had prepared the defendant‘s statement of charges and offense report thirteen years earlier. But at the time of the hearing, the officer had no independent recollection of the defendant, nor could he locate the petitioner‘s case file. Id. The Court held that the prejudice to the State resulting from the delay was enough for the doctrine of laches to bar the petition.
In Mr. Rich‘s case, no coram nobis hearing was ever held, and because the State never pled or attempted to prove a laches defense in the circuit court, the court made no findings regarding any prejudice resulting from the delay in filing his petitions for relief. In its brief to this Court, the State assumes that the police officers and other witnesses would be unable to recall the circumstances surrounding Mr. Rich‘s drug-related offenses stretching back sixteen years. That may be true, but the record contains no evidence on which we could ground such a finding оr the next-step conclusions that Mr. Rich‘s delay in seeking coram nobis relief prejudiced the State‘s ability to defend against the coram nobis petition or re-prosecute Mr. Rich. To adopt the State‘s position on this record would, in essence, be to hold that the passage of time, without more, satisfies these prejudice requirements, a leap we decline to take.
C. Mr. Rich Is Entitled To A Remand With Regard To His 2001 Guilty Plea.
On the merits of his coram nobis petition, Mr. Rich bore the burden to bring a valid constitutional challenge to each proceeding, to rebut the presumption of regularity that attaches to criminal cases, and to demonstrate that he faces significant collateral consequences from his convictions. Jones, 445 Md. at 338, 126 A.3d 1162. Mr. Rich brings two interrelated
A guilty plea is not voluntary unless it “consti-tute[s] an intelligent admission that [the defendant] committed the offense,” and the defendant received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see also State v. Daughtry, 419 Md. 35, 48, 18 A.3d 60 (2011). For that reason,
“Our jurisprudence, in determining the validity of a guilty plea, has focused always on whether the defendant, based on the totality of the circumstances, entered the plea knowingly and voluntarily.” Id. at 69, 18 A.3d 60. And although the complex nature of some crimes may require an еxplanation of each element of each charge, no specific litany is uniformly required. Id. at 72, 18 A.3d 60 n.19. In some cases, the nature of the crime may be readily apparent from the crime itself; in others, the factual basis proffered to support the plea may describe the offense in sufficient detail to pass muster under
In Daughtry, the Court of Appeals vacated a defendant‘s guilty plea, holding that it was deficient under
Smith clarified that when a defendant brings a coram nobis petition attacking the constitutionality of a guilty plea in trial court, the ultimate issue for the appellate court is whether the defendant understood the nature of the charges, regardless of what the trial court could determine from the record before it. 443 Md. at 653, 117 A.3d 1093. And to that end, testimony from counsel indicating that he or she advised the defendant of the nature of the charges is admissible in order to determine whether the defendant plead guilty voluntarily, and with an understanding of the nature of the charge. Id. at 654, 117 A.3d 1093.
In addition, the Sixth Amendment and Article 21 of the Maryland Declaration of Rights entitle a defendant to effective assistance of cоunsel. Taylor v. State, 428 Md. 386, 399, 51 A.3d 655 (2012). Under the test announced by the Supreme Court in Strickland v. Washington, a defendant who claims that he has received ineffective assistance must show first that counsel‘s performance was deficient, and second that the defective performance prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, the defendant has the burden of proving that counsel made errors so serious as to deny the assistance guaranteed by the Sixth Amendment. Taylor, 428 Md. at 399, 51 A.3d 655. “In regard to the first, ‘performance’ prong of Strickland, the defendant must demonstrate that counsel‘s alleged acts or omissions, based on ‘the facts of the particular case, viewed as of the time of counsel‘s conduct,’ fell ‘outside the wide range of professionally competent assistance.‘” See id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
Whether Mr. Rich‘s counsel rendered ineffective assistance is a mixed question of law and fact, and we will not disturb the circuit court‘s factual findings unless they are clearly erroneous. We will, however, exercise our own independent judgment as to the reasonableness of counsel‘s conduct and any prejudice that resulted. State v. Prado, 448 Md. 664, 678-80, 141 A.3d 99, 107-09 (2016). On this point, Mr. Rich argues that counsel failed to ensure that there was an adequate on-the-record explanation of the nature of the charges he faced, and that as a result, his guilty pleas were not voluntary, knowing, or intelligently made.
We evaluate each of Mr. Rich‘s plea agreements against this legal backdrop. Ultimately, and as we explain, Mr. Rich doesn‘t state a valid constitutional challenge as to his 1993 and 2002 guilty pleas and his coram nobis petitions for those pleas must fail. His 2001 guilty plea is a different story, at least in part.
1. The 1993 and 2002 pleas were knowing and voluntary.
The absence of a hearing transcript for the 1993 plea proceedings prevents Mr. Rich from meeting his burden to prove that his plea was deficient. A presumption of regularity attaches to criminal proceedings, which means that we “presume[] that the trial court proceedings were correct and the burden rests on the challenger to show otherwise.” Harris v. State, 406 Md. 115, 122, 956 A.2d 204 (2008) (quoting Morgan, 346 U.S. at 512, 74 S.Ct. 247). Without a transcript, we cannot evaluate Mr. Rich‘s claims, and we
In 2002, Mr. Rich pled guilty to a charge of second-degree assault against a police officer. The plea hearing featured the following colloquy:
THE COURT: So you‘re 27 years old. How far did you go in school?
MR. RICH: I got my diploma.
THE COURT: So you can read and write the English language without any difficulty?
MR. RICH: Yes. THE COURT: Are you today under the influence of any drugs, alcohol, or anything that affects your ability to understand what you‘re doing?
MR. RICH: No, sir.
THE COURT: Have you ever been treated by a psychiatrist or a psychologist for any type of mental disоrder related to your not understanding what was going on around you?
MR. RICH: No, sir.
...
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THE COURT: ... the only other question would be on the voluntariness of your plea. Now, I ask you, aside from plea negotiations in this case, has anyone offered you anything, forced you in any way to plead guilty in this way?
MR. RICH: No.
THE COURT: Then, I am satisfied that you understand what you‘re doing here today and that you are tendering a free and voluntary plea.
We are satisfied that this plea colloquy complies with
Nor does this Court‘s decision in State v. Hicks, 139 Md.App. 1, 773 A.2d 1056 (2001), compel us to find the 2002 plea colloquy deficient. There, we held that evidence that the defendant was not advised on the burden of proof, the standard of proof, or the presumption of innocence was sufficient to support the circuit court‘s finding that the defendant‘s guilty plea was not knowing or voluntary. Id. at 11, 773 A.2d 1056. In Mr. Rich‘s hearing, by contrast, the court informed him that by pleading guilty he would forego a trial at which the State would be required to prove his guilt beyond a reasonable doubt. Viewed in its entirety, the 2002 plea colloquy satisfies us that Mr. Rich understood the charges against him and that he was
2. Mr. Rich‘s 2001 guilty plea to conspiracy to distribute marijuana was not knowing and voluntary.
In 2001, Mr. Rich pled guilty to two counts, possession with intent to distribute marijuana, and conspiracy to distribute marijuana. But the portion of the plea proceedings relevant to determining whether Mr. Rich‘s plea was knowing and voluntary discussed only the possession with intent to distribute charge:
[CO-DEFENDANT‘S COUNSEL]: The fourth ground has a couple parts. One is whether or not you understand the charge. Mr. Thomas and Mr. Rich, you‘re both pleading guilty to possession kind of offenses and possession can be either actual possession, meaning it‘s on a part of you—in your pockets, holding it in your hand like a pen—or constructive possession, meaning that‘s in the vicinity of where you are, and you are exercising dominion, meaning ownership, and control over it, meaning that if somebody tried to take it, you could stop them, such as my briefcase over on one of the chairs. I‘m not touching it in any way, but I‘m in constructive possession of that.
Possessing it with the intent to distribute it means you‘re having the intent to transfer that possession from you to somebody else. That could be giving it away, it could be selling it, as long as the possession transfers. There doesn‘t have to be any money involved. A gift is a transfer of possession. So that‘s the possessing it with the intent to give it to somebody else, as opposed to us[ing] it all for yourself.
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Mr. Rich, you understand you‘re charged with marijuana and that‘s another one of those substances that the Legislature says you can‘t have?
MR. RICH: Yes.
[CO-DEFENDANT‘S COUNSEL]: Is there anything about the charge of possessing it with the intent to distribute that you don‘t understand?
MR. RICH: No.
[CO-DEFENDANT‘S COUNSEL]: Okay. The other part of this fourth ground is whether or not you‘re doing this of your own free will and volition. Now, the Court is allowed to tell you ahead of time what sentence you‘re going to get, but no one can make any other promises.
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Mr. Rich, has anyone promised you anything except the sentence?
MR. RICH: No.
[CO-DEFENDANT‘S COUNSEL]: Has anyone threatened you or coerced you in any way?
MR. RICH: No.
[CO-DEFENDANT‘S COUNSEL]: In other words, you‘re doing this of your own free will and volition? This is what you want to do?
MR. RICH: Yes.
The court then found on the record that Mr. Rich entered a knowing and voluntary guilty plea to both counts.
Mr. Rich contends that this plea colloquy is deficient because the court did not establish on the record the elements of the second count, conspiracy to distribute marijuana.
We disagree. Again, our first task is to determine whether, under the totality of the circumstances, Mr. Rich understood the nature of the conspiracy charge. The circuit court was correct when it found that as a general matter, the court is not required to go through the “specific litany” of explaining each element of the crimes charged. Daughtry, 419 Md. at 72 n.19, 18 A.3d 60. But the record must reflect that Mr. Rich understood the essential nature of the crime of conspiracy, that is, “the agreement between two or more pеople to achieve some unlawful purpose or to employ unlawful means in achieving a lawful purpose.” State v. Payne, 440 Md. 680, 712, 104 A.3d 142 (2014) (quoting State v. Johnson, 367 Md. 418, 424, 788 A.2d 628 (2002)). And unlike the situation in Smith, the circuit court decided Mr. Rich‘s coram nobis petitions without a hearing, so there is no testimony apart from the plea hearing itself from which we can evaluate Mr. Rich‘s understanding of the charges.
This plea colloquy didn‘t explain to Mr. Rich the essential nature of a conspiracy, i.e., an agreement to achieve an unlawful purpose. And we disagree that the essential nature of the charge was self-evident, or even that it was communicated by the prosecutor‘s factual proffer describing Mr. Rich working with two other men to sell marijuana. Indeed, the colloquial use of “conspiracy” may evoke a much larger-scale plot than its legal definition; therefore, we cannot assume that Mr. Rich understood the essential nature of the conspiracy charge to which he was pleading guilty without any explanation from the court. See Smith, 443 Md. at 619, 117 A.3d 1093 (Barbera, C.J., concurring) (counting conspiracy as among those crimes that are not readily understandable from the label of the crime itself); Daughtry, 419 Md. at 72, 18 A.3d 60 (explaining that the complex nature of some crimes demands some additional explanation beyond simply pronouncing its name).
Under the circumstances, Mr. Rich has met his burdens to show a constitutional deficiency in his 2001 guilty plea, and to rebut the presumption of regularity with regard to that guilty plea.6 We already have decided that he hasn‘t waived his claim for coram nobis relief, and there does not appear to be any other form of legal or equitable relief available to him. This leaves, then, the question of whether he faces significant collateral consequences from the convictions, and the record on this point is muddled. See Jones, 445 Md. at 338, 126 A.3d 1162. The circuit court did not address the question—it assumed, without deciding, that its “ruling... will have a collateral impact [on his] federal sentence,” then addressed the merits. Mr. Rich alleges that his 2001 plea, together with his 1993 plea, form the basis for his enhanced federal sentence.7 See Skok, 361 Md. at 77, 760 A.2d 647 (recidivist sentencing can present serious collateral consequences for defendants with prior convictions). But the State disputes the collateral impact of these convictions as a factual matter—it contends that Mr. Rich stipulated to “Career Offender Status” when he entered his federal guilty plea. Whether, and to what extent, Mr. Rich‘s 2001 guilty plea in fact caused his federal sentence
to be enhanced and, if it did, whether that impact qualifies as a collateral consequence justifying coram nobis relief are questions the circuit court should resolve in the first instance. Accordingly, we vacate the portion of the judgment denying his coram nobis petition as to the 2001 plea and remand for further proceedings, see
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT.
Notes
United States Sentencing Guidelines (“USSG“) § 4B1.1 defines a “сareer offender” as follows:
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. The Guidelines go on to define a “crime of violence” as: [A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that: “(1) has an еlement the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Mr. Rich framed the questions as follows in his brief;
- Did Appellant knowingly and voluntarily enter guilty plea[s]?
- Did Appellant receive ineffective assistance of counsel during guilty plea proceedings?