Chumak v. State

ALEKSEY CHUMAK v. STATE OF MARYLAND

No. 1356

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

February 22, 2017

UNREPORTED

Wright, Arthur, Reed, JJ.

Opinion by Reed, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On September 21, 2006, Aleksey Chumak, appellant, entered an Alford plea¹ in the Circuit Court for Charles County and was convicted of first-degree assault. At his sentencing hearing four months later, appellant was sentenced to five years' incarceration, with all but six months suspended, and four years' probation. On January 23, 2014, appellant filed the underlying Petition for Writ of Error Coram Nobis, which, after some procedural hiccups, was denied a year-and-a-half later on June 4, 2015. Appellant noted timely appeal, and presents three questions for our review, which we have combined into one:

Did the circuit court err in denying appellant's Petition for Writ of Error Coram Nobis?

For the following reasons, we answer in the negative, and affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying appellant's arrest aren't crucial to our holding here, but because he challenges the "factual basis" for his Alford plea, we briefly summarize the statement of facts as presented in his brief.

On June 4, 2006, a party was thrown at appellant's parents' house in Charles County, Maryland. At some point that evening, appellant "observed a dispute between two individuals who had not been invited to the party," and approached them to "ascertain theextent of the argument." After one of the disputants accused appellant of "grabb[ing] his female companion," another individual pushed appellant, resulting in a fight. Both sides said the fight then began to escalate, but the parties disagree on the manner in which it did.

At the sentencing hearing, the responding officer told the court that witnesses at the scene described to her that after appellant pushed the individual back, appellant pulled a silver handgun from his waistband and fired "[a] couple shots . . . into the air." The officer was told that appellant then struck the individual in the face with the gun, in between his nose and his upper lip. Witnesses also told the officer that appellant then pointed the gun in the direction of another individual, yelled he would "kill every m---erf---er here," and fired two more shots near that individual's head.

Appellant's "version," as he puts it, is that at that point, the handgun was inside his parents' house, not in his possession. Rather, he explains that after the fight concluded, "two cars arrived and approximately 10-15 people exited from the cars," whereupon appellant was "struck with a brick" and attacked by the cars' occupants. "In the meantime," appellant's parents returned, and "the mother was attacked by one of the car occupants." According to appellant, he then ran into the house, retrieved the gun, and fired two shots into the air in an effort to disperse the crowd.

The police soon reported to appellants' house, and, after taking witnesses' accounts, appellant was arrested and charged with, inter alia, first-degree assault. On September 21, 2006, appellant entered his Alford plea to one count of first-degree assault in exchange for the dismissal of the other charges stemming from the same incident. After the State explained the nature of the agreement, the following colloquy took place:

[Defense Counsel]: That's correct, Your Honor. And all the parties have signed off on the plea agreement.

Is that correct, Mr. Chumak?

[Appellant]: Yes, sir.

THE COURT: Okay. Is your full name Aleksey Chumak?

[Appellant]: Yes, sir.

* * *

THE COURT: Have you had any drugs, medication, or alcohol in the past two days?

[Appellant]: No, sir.

THE COURT: Do you read, write, and understand the English language?

[Appellant]: Yes, sir.

THE COURT: How far have you gone in school?

[Appellant]: To college.

THE COURT: Have you discussed this case with your attorney?

[Appellant]: Yes, sir.

THE COURT: Are you satisfied with his services, up to this point?

[Appellant]: Yes, sir.

THE COURT: Now, I'm told you want to enter a plea of guilty to Count 3, which is first[-]degree assault. Is that correct?

[Appellant]: Yes, sir.

Then, after further discussing the nature of the plea agreement, and after ensuring appellant understood how a trial would have worked and that he was foregoing any right to one, the following colloquy took place:

THE COURT: State, what evidence would you produce if the case went to trial?

[The State]: Your Honor, had this matter gone to trial, some of the State's evidence would have been that on June 4th of this year, there was a party at a residence in Charles County, Maryland. A [sic] argument broke out at that party, and during the course of the argument an individual identified as the [appellant] pulled out a silver handgun, fired a number of shots into the air, and then pointed the gun in the general direction of [one of the disputants], [and] fired two more shots. Police officers responded to the scene. The [appellant] admitted to having the gun and to, at least, firing shots into the air. And shell casings were recovered at the scene.

All events occurred in Charles County, Maryland.

[Defense Counsel]: Your honor, we take no exception.

THE COURT: Now, do you understand the maximum penalty is up to 25 years [sic] incarceration?

[Appellant]: Yes, sir.

THE COURT: Aside from the agreement previously mentioned, has anyone else promised you anything or threatened you in any way to cause you to plead guilty?

[Appellant]: No, sir.

THE COURT: And are you pleading guilty because you're aware of the nature of the government's evidence and expect that if you went to trial you'd be convicted of the offense you're pleading guilty to, or something more severe?

[Appellant]: Yes, sir.

THE COURT: And do you understand if we accept your plea, you're waving you right to have a direct appeal to the Court of Special Appeals? The onlyway the case could be reviewed would be if the Court of Special Appeals granted an application for leave to appeal, and that you'd be limited to the issues of whether the court had jurisdiction; whether the sentence was legal; whether the plea was knowingly and intelligently made; and whether counsel was competent. Do you understand that?

[Appellant]: Yes, sir.

THE COURT: I make a finding there's a factual basis for the plea, and it was voluntarily and understandingly made.

* * *

Thereafter, per the plea agreement, the State entered a nolle pros to the remaining counts, and the circuit court postponed sentencing, pending a pre-sentence investigation.

Approximately four months later, the circuit court held a two-day sentencing hearing on January 26 and 31, 2007. Apparently, "without [a]ppellant's knowledge and acquiesce," the attorney that represented appellant at the plea hearing² sent a second attorney to represent appellant in the sentencing hearing, with whom appellant "had never communicated with . . . prior to the time of sentencing," and only spoke to for "approximately 5-10 minutes" prior to the hearing. After two days of testimony, appellant was sentenced, within the terms of the plea agreement, to five years' imprisonment, with all but six months suspended, and four years of probation.

On February 1, 2007, appellant's same counsel filed a Motion for Reconsideration of Sentence and asked that the motion be held in abeyance until further supplemented. On March 16, 2007, a Supplemental Motion for Reconsideration of Sentence was filed by thesame counsel again, asking that the circuit court hold the matter in abeyance "until such time as future supplements be provided," which, as it turned out was May 8, 2007, where another supplemental motion was filed, this time adding appellant's mother's statement for the court's consideration. The circuit court eventually ruled on the motions, but the only relief that was granted by the court in response to those pleadings was appellant's release to home detention.

Over four years later, on December 7, 2011, appellant, this time represented by new counsel, filed a new Motion for Reconsider Sentence, asking the court to grant a probation before judgment. Another year after that, on December 18, 2012, appellant filed another Motion for Reconsideration of Sentence and for Probation Before Judgment, again represented by different counsel, so that he may "qualify for Federal Government Contracts."

The underlying Petition for Writ of Error Coram Nobis was filed by present counsel on January 23, 2014. The petition alleged that appellant's Alford plea was defective due to the same ineffective assistance of counsel and trial court error claims as he brings now. On May 2, 2014, the State filed a response, also making the same claims that it brings before us now; namely, (1) the claims were waived, (2) the petition was barred by laches, (3) the petition failed to plead significant collateral consequences from the conviction, and (4) the claims asserted in the petition were meritless.

After some procedural complications not relevant here, a hearing on the coram nobis petition was held on June 4, 2015, with appellant being the only witness to testify. He testified that he owned a heating and air conditioning business, which had two employeesand made around $100,000 in gross revenue a year. According to appellant, he was finding it difficult to acquire residential customers due to increased competition, and he was unable to acquire any federal government contracts, like those he had at his previous job, because of his felony conviction.

He further testified that his lawyer negotiated the plea agreement with the State's Attorney's Office and advised him to agree to the deal in order to avoid the possibility of being found guilty at trial of all charged offenses...