Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
Beginning in 2000 with Skok vs. State, 361 Md. 52 (2000) the Maryland appellate courts have wrestled with the application of the writ of coram nobis, particularly as it arises in the context of non-U.S. citizens seeking to withdraw prior guilty pleas or vacate convictions and also for those seeking to vacate prior convictions because of the use of the prior conviction(s) as predicates for recidivist statutes.
In Skok the Court of Appeals (COA) held that an expansion of the scope of coram nobis, as delineated in United States vs. Morgan, 246 U.S. 502 (1954) was justified by contemporary conditions and public policy since all too often criminal defendants who receive a relatively light sanction thereafter forgo an appeal, even if there were errors of a constitutional or fundamental nature that may have occurred. Later, when the defendant learns that he is facing a substantial collateral consequence arising from the conviction, it is too late to appeal. If at that time, the defendant was not incarcerated or on parole or probation, the conviction could not be challenged by a petition for a writ of habeas corpus or a petition under the post-conviction act.
The Skok Court pointed out that serious collateral consequences of criminal convictions had become much more frequent both because of the proliferation of recidivist statutes and because of changes in federal immigration laws resulting in a plethora of deportation proceedings against non-citizens based on relatively minor criminal convictions. The Court noted that Maryland Rule 4-242 had recently been amended requiring that, as part of the guilty plea colloquy, the judge taking a guilty plea was required to advise the defendant of the potential consequences of a guilty plea including the possibility of deportation, detention or ineligibility for citizenship. The Court concluded that in light of these serious collateral consequences there should be a remedy for a convicted person who is not incarcerated, not on parole or probation, and who is suddenly faced with a significant collateral consequence resulting from his conviction so long as he can legitimately challenge the conviction on constitutional or fundamental grounds. Such a person should be able to file a motion for coram nobis relief regardless of whether the alleged infirmity in the conviction is considered an error of fact or an error of law.
In expanding the scope of coram nobis relief to challenge criminal convictions, Skok cautioned that this expanded relief was subject to several important qualifications, specifically that the grounds for challenging the criminal conviction must be of constitutional, jurisdictional or of fundamental character. The Court further noted that a presumption of regularity attaches to the criminal case and the burden of proof is on the coram nobis petitioner to prove otherwise. Additionally, the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction at the time of the filing of the coram nobis petition and basic principles of waiver would be applicable to issues raised in coram nobis proceedings. Where the issue had been finally litigated in a prior proceeding, and there are no intervening changes in the applicable law or compelling case law, the issue may not be re-litigated in a coram nobis action. Finally, Skok reminded that one is not entitled to challenge a criminal conviction by a coram nobis proceeding if another statutory or common law remedy is then available and, accordingly, coram nobis relief would not ordinarily be available to a person who is incarcerated or on parole or probation.
Coram nobis proceeding can encompass issues concerning voluntariness of a guilty or nolo contendre plea and whether the record shows that the plea was understandingly and voluntarily made under the principles of Boykin vs. Alabama, 395 US 238 (1969).
On December 7, 2015, in Jones vs. State (2015 WL8109905), the COA issued an opinion addressing the issue of when and whether the doctrine of laches may bar the right to seek coram nobis relief. The Jones Court held that the doctrine of laches may bar the right to seek coram nobis relief and held that the facts in Jones barred his right to seek coram nobis relief. It further held that for purposes of determining whether the doctrine of laches bars coram nobis relief, delay begins when the petitioner knew or should have known of the facts underlying the alleged error. For purposes of determining whether the doctrine of laches bars coram nobis relief, prejudice may involve not only the State’s ability to defend against the coram nobis petition but also the State’s ability to re-prosecute the case.
In 1999 Jones plead guilty to a drug offense. It was not until 13 years later, in 2012, that he filed a petition for coram nobis relief seeking to vacate his conviction when he was then facing sentencing as an armed career criminal in federal court. His 1999 conviction was being used as a predicate offense for an enhanced sentence in federal court.
After accepting the guilty plea in 1999, Jones was advised of his right to file an application for leave to appeal but did not so. Jones failed to move to withdraw his guilty plea, move for a new trial, move to set aside an unjust or improper verdict, or petition for post convictions relief. In 2005 Jones pled guilty to violation of probation and received a sentence of 3 years incarceration and did nothing to vacate his guilty plea at that time.
In his coram nobis petition, Jones contended that his guilty plea was involuntary because he had not been advised of the elements of the offense or the nature of the charge to which he pled guilty. He argued that the transcript of the guilty plea proceeding made it unclear whether he had pled guilty to the use of a minor for the purpose of distributing heroin or to possession of heroin with intent to distribute. At the coram nobis proceeding the arresting officer testified that after reviewing the statement of charges and an offense report that he had no independent recollection of Jones or the arrest and that he could not find any police records relating to Jones’ case. The Court of Special Appeals reversed the circuit court’s granting of relief and held that the doctrine of laches barred granting the coram nobis petition. State v. Jones, 220 Md. App. 238 (2014).
The COA noted that in State vs. Smith, 443 Md. 572 (2015) it had addressed the issue of waiver of the right to seek coram nobis relief and held that Criminal Procedure Article § 8-401 applied retroactively such that a coram nobis petitioner did not waive the right to pursue coram nobis relief by failing to file an application for leave to appeal, not moving to withdraw a guilty plea or not filing for post-conviction relief when those avenues of relief were available. The COA commented that Judge Raker’s dissenting opinion in Holmes vs. State 401 Md. App. 429 (2007) had noted that the doctrine of laches may bar coram nobis relief.
Now, in Jones, after reviewing the doctrine of laches generally the COA made clear that "lest there be any doubt, however, we hold that the doctrine of laches may bar the right to seek coram nobis relief" and "[w]e unequivocally hold that the doctrine of laches may, as an affirmative defense in a coram nobis action, bar an individual’s ability to seek coram nobis relief."
The COA then addressed the issue of unreasonable delay and prejudice based upon the facts in Jones. The COA first rejected Jones’ position that delay begins only when a petitioner may file a facially valid coram nobis petition. It agreed with the State’s position that delay begins when the petitioner knew or should have known of the facts of the underlying alleged error, in this case, in 1999 on the date of the guilty plea proceedings. The COA stated that it "would be absurd to essentially reward Jones for committing a new crime by allowing him to now challenge his 13 year old conviction, and seek to invalidate his bargained for plea agreement, on the grounds that, 13 years later, he contends that he did not understand the elements of the offense to which he pled guilty."
The COA next rejected Jones’ attempt to compare his case to both Skok and Smith indicating that in both of those instances the sentences received were relatively light and in contrast Jones was initially sentenced to 6 years imprisonment with all but 18 months suspended and later to an additional 3 years after he violated the terms of his probation. Moreover, neither Skok nor Smith committed new crimes after the initial convictions that lead to the threat of their removal from the United States. Unlike Jones, both Skok and Smith were faced with immigration consequences stemming from prior guilty pleas whereas Jones had committed a new crime that resulted in federal prosecution and it was only after that conviction that he sought coram nobis relief.
In assessing the prejudice from the delay the COA held that for purposes of determining whether laches bars an individual’s ability to seek coram nobis relief, prejudice involved not only the State’s ability to defend against the coram nobis petition but also the State’s ability to re-prosecute the case. To establish prejudice, the State need not prove that the delay makes it impossible to re-prosecute a petitioner; instead, the State must simply prove that the delay places the State in a less favorable position for purposes of re-prosecuting the petitioner. In Jones, due to the circumstances and specifically the arresting officer’s inability to remember the case and locate the case folder, the State was placed in a substantially less favorable position.
SELECTED CASES DISCUSSING CORAM NOBIS ISSUES:
Padilla requires advice re: immigration consequences of a guilty plea
In Padilla v. Kentucky, 559 U.S. 356 (2010) the Supreme Court made clear that failure to advise of possible immigration consequences resulting from a guilty plea is a serious collateral consequence. Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than forty years and had served in the United States Armed Forces during the Vietnam War. Padilla faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. The Supreme Court held that under the Sixth Amendment, an attorney representing a non-citizen, in order to provide constitutionally effective representation, must inform the noncitizen client of the risk of deportation that follows a criminal conviction.
Pitt says that failure to advise of possible enhanced sentencing from future criminal convictions is not a basis for coram nobis relief
In Pitt v. State, 144 Md. App. 49 (2002), the collateral consequence was an enhanced federal sentence that stemmed from unrelated conduct of Pitt that occurred after he pleaded guilty in 1992. The Court said that this consequence could not have been known to the court when Pitt’s plea was taken, and thus, the court was not required to inform Pitt of possible enhanced penalties if, in the future, he should again be found in violation of the criminal law. Indeed, the court could not be expected to predict Pitt’s future behavior.
Pitt’s guilty plea was made knowingly and voluntarily. The transcript of the guilty plea proceeding unequivocally established that Pitt knew he was not merely pleading guilty to simple possession of cocaine. He was expressly informed that the charge at issue was possession with intent to distribute cocaine and the statement of facts showed that Pitt was found "delivering a quantity of cocaine." Pitt’s own attorney added that he "had passed a bag" to someone else and Pitt acknowledged that his lawyer had advised him of the definition of possession with intent to distribute.
The record contained a clear reference to the statutory maximum period of incarceration that Pitt faced, although it was not characterized as the statutory maximum. Defense counsel said that, "[i]n this particular case, Your Honor, ... after the presentence report is completed and sentencing is set ... Mr. Pitt face[s] a 20-year suspended sentence, all except one year, a period of active probation, five years" was sufficient to put Pitt on notice of the maximum sentence. Pitt v. State, 144 Md. App. 49, 66, 796 A.2d 129, 139 (2002).
Coram nobis granted based upon insufficient plea litany
In State v. Hicks, 139 Md. App. 1, 7-8, 773 A.2d 1056, 1060 (2001), the trial court properly granted Hicks' petition for coram nobis relief on four grounds: (1) Hicks was not given advice as to the burden of proof or the standard of proof, and was not advised that he would be presumed innocent; (2) Hicks was not advised of the nature of charges against him; (3) there was an inadequate juvenile waiver investigation and evaluation of Hicks at the time of his guilty plea; and (4) Hicks's guilty plea was neither voluntary nor intelligent.
Failure to advise as to elements of offense of use of handgun results in coram nobis relief
In Graves v. State, 215 Md. App. 339, 357-58, 81 A.3d 516, 526-27 (2013) cert. granted, 437 Md. 637, 89 A.3d 1104 (2014) and appeal dismissed, 441 Md. 61, 105 A.3d 489 (2014), the only portion of the plea colloquy that related to whether the plea was knowing and voluntary was Grave’s affirmative response to the court's inquiry of whether he had "talked this matter over with [his] attorney." Neither the court, the prosecutor, nor appellant's attorney stated on the record the nature and elements of the crime of use of a handgun in a felony or crime of violence. Defense counsel did not indicate at the plea hearing that he had explained the nature and elements of the crime to Graves and he did not represent that he understood the charge.
The CSA rejected the State’s argument that "[t]he plea record establishes that Graves fully understood that he was pleading guilty to the crime of using a handgun in the commission of a felony or crime of violence" because the crime is "readily understandable from the label of the crime itself."
On appeal the State sought to raise the fact that Graves did not prove that he was suffering serious collateral consequences as a result of the conviction, however, the CSA refused to consider that argument as the State had not raised it in the circuit court.
State failed to preserve issue that petitioner failed to prove suffering serious collateral consequences - record established that petitioner advised of elements of offense - petitioner was not required to be advised that if he went to trial he could not be compelled to testify against himself
In Gross v. State, 186 Md. App. 320 (2009), the State accurately pointed out that although Gross alleged in his petition for coram nobis relief that he was suffering significant collateral consequences as a result of his conviction, he failed to prove such collateral consequences at the post-conviction hearing. The CSA credited the State’s argument but then observed that if the argument that the State made on appeal had been put forth at the hearing on Gross' petition for coram nobis relief, the State's argument might well have been grounds for an affirmance, assuming the court did not allow Gross to reopen his case. But this argument was not raised or decided during the circuit court hearing. Moreover, if the issue had been raised in the circuit court there is a good chance that the coram nobis court would have granted Gross permission to reopen. The CSA held that the issue was waived by the State.
The CSA then addressed the question of whether a representation to the plea judge by the defendant that his counsel had discussed with him the elements of the charges he faced will suffice to show that the defendant's plea was voluntarily and knowingly entered. The CSA held that when a defendant, in response to questioning by the court, says on the record that he has discussed the elements of the crime to which he is pleading guilty with his attorney, that representation is sufficient to show that the plea was knowingly entered into.
Gross further argued that his plea was involuntary in that he was not advised that if he had gone to trial he would have been able to invoke his right against self-incrimination. The CSA noted that this argument was made and rejected in Davis v. State, 278 Md. 103, 361 A.2d 113 (1976), where the defendant complained that the plea judge had failed to advise him that if he elected to stand trial he could not be compelled by the State to testify against himself. (But compare State v. Daughtry, 419 Md. 35, 76, 18 A.3d 60, 84 (2011) when the only hook upon which the State hangs its hat in arguing that a defendant enters a plea of guilty knowingly and voluntarily is that the defendant is represented by counsel and that the defendant discussed the plea with his or her attorney, such a plea colloquy is deficient and the guilty plea must be vacated).
Probation before judgment is a "conviction" for coram nobis purposes - sufficient factual basis for guilty plea - petitioner sufficiently advised of potential immigration consequences
In Rivera v. State, 409 Md. 176, 183-84, 973 A.2d 218, 223 (2009), the coram nobis court denied Rivera's petition, determining that the trial judge complied with the mandates of Maryland law when accepting Rivera's plea and that Rivera was never given any guarantees that his guilty plea would not later invoke deportation investigations and proceedings. The circuit court noted that every effort was made to try to protect Rivera from the deportation consequences which he is now facing but it also stated that it was convinced that Rivera knew there was no guarantee that deportation would not occur and it was also satisfied from the record that the nature of the charge was adequately explained to Rivera.
Alternatively, the circuit court denied Rivera coram nobis relief on the ground that the court lacked jurisdiction to hear the petition. The court reasoned that because a probation before judgment was ultimately entered in Rivera's case, "there was no criminal conviction that took place" and that a criminal conviction is required in order for a petitioner to have standing to seek coram nobis relief. The COA rejected this ruling that a probation before judgment did not constitute a "conviction" for purposes of qualifying for relief under a coram nobis petition.
The COA observed that circuit court complied with Rule 4–242(e) by advising Rivera of the possibility that he might face immigration consequences, asking him if he had consulted his attorney, and informing him that he could ask either his attorney or the court if he had any additional questions. While it did appear that at the time Rivera's plea was entered, that the State and the trial judge did not expect the consequences that ultimately ensued, the record does not reflect that the State or the trial judge made Rivera any assurances about the actions that ICE would or would not pursue in the future.
The COA found that the record revealed that there was a sufficient factual basis for Rivera's plea and stated that when determining if there is a factual basis for a plea, a trial court has "broad discretion as to the sources" it may consider including the statement of facts proffered by the State as the circuit court did in this case. The facts proffered by the State provided a sufficient factual basis to support the conclusion that Rivera violated § 3–828 of the Courts and Judicial Proceedings Article.
Nature of offense and elements properly explained to coram nobis petitioner
In Abrams v. State, 176 Md. App. 600, 609-10, 933 A.2d 887, 892-93 (2007), Abrams was sufficiently advised as to the nature of the offense and the elements of the offense of uttering when the court asked him, as part of the guilty plea colloquy: "[Your counsel] tells me you want to plead guilty to three counts of uttering, which accuses you of offering a forged instrument to obtain some benefit you are not entitled to which carries a possible maximum of 10 years. It is a felony. Do you understand that?" Abrams responded: "Yes ma'am." In addition, the court asked if Abrams had read and understood the statement of charges setting forth the facts underlying the uttering charges.
Routine consequences of criminal conviction not "significant" collateral consequences
In Richburg v. State, 2015 WL 5920312, Md. Ct. Spec. App. June 12, 2015 (unreported), Richburg pled guilty to theft for using fraudulently prepared documents to purchase a Land Rover automobile. He served his sentence of one year of incarceration and two years of probation without incident but later filed a petition for a writ of coram nobis relating to his conviction. Richburg’s assertion was that he was entitled to coram nobis relief for routine consequences of a criminal conviction. Richburg maintained that he proved four significant collateral consequences to his conviction: (1) potential denial of admission to a state bar, should he decide to pursue admission; (2) the loss of an opportunity to modify a 2004 suspended sentence of one year of incarceration with five years of probation, to a sentence of probation before judgment; (3) the loss of a business contract after a client discovered his conviction; and (4) an enhanced penalty of one day of incarceration in a separate 2010 conviction for theft. The CSA rejected his assertion that the circuit court erred in finding that he failed to establish significant collateral consequences resulting from his conviction warranting coram nobis relief. Routine consequences of a criminal conviction—such as strained business relationships, potential restrictions from joining professional organizations, and marginal increases in future criminal sentences—constitute collateral consequences but do not warrant coram nobis relief. The court found that the consequences he alleged were routine, not extraordinary, and that he did not prove that he suffered significant collateral consequences flowing from his conviction noting that the consequences that Richburg described are those consequences that flow naturally and inevitably from a conviction, particularly a conviction of this nature and such were not extraordinary consequences within the meaning of coram nobis, which was intended to be an extraordinary remedy to be used in those exceptional cases where there was some very significant consequence that flowed from a conviction that was perhaps unanticipated and unforeseen.
Failure to provide correct advice as to immigration consequencesis a basis for coram nobis relief
In Prado v. State, 225 Md. App. 201 (2015), Prado established that his trial counsel did not provide him with the correct "available advice" about the deportation risk. Taken as a whole, the advice given was sometimes conflicting and, in fact, trial counsel agreed that he told Prado that deportation, as a result of this case, was "possible" when in fact it was inevitable. Prado's trial attorney's conduct "[fell] below an objective standard of reasonableness," and did not meet the prevailing professional norms of most criminal attorneys.
Prado established the first prong of the Strickland analysis. The CSA remanded the case to the circuit court to reach the second prong, as to whether there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceedings would have been different.