Holmes v. State

932 A.2d 698

401 Md. 429

Darrell HOLMES a/k/a Lendro Thomas v. STATE of Maryland.

No. 140, Sept. Term, 2006.

Court of Appeals of Maryland.

September 21, 2007.

Allison E. Pierce, Assistant Public Defender (Nancy S. Forster, Public Defender, of Baltimore), on brief, for petitioner.

Mary Ann Ince, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore), on brief, for respondent.

Argued before BELL, C.J., RAKER, CATHELL^*, HARRELL, BATTAGLIA, GREENE and ALAN M. WILNER (Retired, specially assigned), JJ.

BATTAGLIA, J.

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

I. Introduction

In 1992, petitioner, Darrell Holmes a/k/a Lendro Thomas,¹ was charged with robbery with a deadly weapon, assault with intent to commit robbery, carrying a concealed deadly weapon, and openly carrying a deadly weapon with the intent to injure. The docket entries reflect that Thomas subsequently pled guilty to robbery with a deadly weapon at a hearing in the Circuit Court for Baltimore City, during which the court questioned Thomas and determined his name, his residence, his date of birth and age, that he was not under the influence of alcohol or drugs, that he had not been a patient in a mental institution, and that he understood the terms of his plea agreement:²

[COURT]: All right. Mr. Holmes, now, or Thomas.

[STATE]: It's Thomas.

[COURT]: Is it a plea?

[STATE]: Yes.

[COUNSEL FOR THOMAS]: It is, Your Honor.

[COURT]: What is the plea?

[STATE]: Three years from that same date, all suspended but one year.

[COURT]: All right. Three suspend all but one year.

[COURT CLERK]: Probation?

[STATE]: Probation to be determined by the wisdom of the court, which is extensive.

[COURT]: All right. He has got two years left. It will be two years of probation. All right.

[COURT CLERK]: Mr. Holmes, your correct name?

[THOMAS]: Leadio Thomas.

[COURT CLERK]: Who?

[THOMAS]: Leadio Thomas.

[COURT CLERK]: How do you spell that?

[THOMAS]: L-E-A-D-I-O.

[COURT CLERK]: That's your real name?

[THOMAS]: Yes

[COURT CLERK]: Address?

[THOMAS]: 2123 North Smallwood Street.

[COURT CLERK]: Is that a house or apartment?

[THOMAS]: House.

[COURT CLERK]: Zip code?

[THOMAS]: 16, 21216.

[COURT CLERK]: Date of birth?

[THOMAS]: 12/21/62.

[COURT CLERK]: How old are you?

[THOMAS]: Twenty-nine.

[COURT CLERK]: Okay. Thank you.

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

[COURT]: Please.

[COUNSEL FOR THOMAS]: Now, I'm going to ask you all the same questions. If you don't understand the question, raise your hand. But everybody has to answer so the stenographer can take down the answers. Okay? Now is anyone here under the influence of any alcohol or any drugs today?

[THOMAS]: No.

[COUNSEL FOR THOMAS]: Has anybody ever been a patient in a mental institution or under the care of a psychiatrist?

[THOMAS]: No.

[COUNSEL FOR THOMAS]: Now, does everyone here understand the terms of his and her plea bargain? That is, what the sentence is going to be. Does anybody have any questions about it?

[THOMAS]: No.

[COUNSEL FOR THOMAS]: Now, does anybody else have any other questions?

[THOMAS]: No.

Thomas' counsel continued the colloquy, informing Thomas that by entering a guilty plea, he would be waiving his right to trial, his right to cross-examine the witnesses against him, and his right against self-incrimination, to which Thomas indicated his understanding:

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

[THOMAS]: Yes.

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

[THOMAS]: Yes.

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

[THOMAS]: Yes.

Thomas was also questioned by his counsel regarding whether he understood his appellate right. More particularly, Thomas was informed that by pleading guilty, he was forfeiting his right to a direct appeal from his conviction and sentence (an "automatic" right of appeal) and that instead, he had the right to file an application for leave to appeal ("permission" to take an appeal):

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

[THOMAS]: Yes

[COUNSEL FOR THOMAS]: The final ground would be whether the plea was entered into freely and voluntarily. Now, other than the plea bargain, which you each know, has anything else been offered to you or promised to you? Has anybody threatened you or forced you to plead guilty?

[THOMAS]: No.

[COUNSEL FOR THOMAS]: Is everybody doing so freely and voluntarily today?

[THOMAS]: Yes.

* * *

[COUNSEL FOR THOMAS]: Now, does anybody have any questions about what we are doing here or about your plea arrangement?

[THOMAS]: No.

The court then found that Thomas' plea was entered knowingly and voluntarily, heard the statement of facts from the State's Attorney, accepted Thomas' guilty plea, and sentenced Thomas to three years imprisonment, with all but one year suspended, and two years probation:

[COURT]: I have no questions. On the basis of the advice given and the responses, I find that each understands his or her rights to a full trial and is knowingly, willingly and voluntarily relinquishing those rights and electing to proceed by way of a guilty plea. I find that this action is being taken knowingly, willingly and voluntarily. All right. I'll hear the statement of facts.

[STATE]: Your honor, as to Mr. Diggs and Mr. Thomas, on the 20th of September, 1992, they were in the 1700 block of West North Avenue where also were Carl Barnes and Dionne Thompson. At that time, Mr. Diggs and Mr. Thomas approached those two people. One of them produced what turned out to be a pellet gun, demanded money, and received $41 from Mr. Barnes and received $13 from Ms. Thompson. The police were called. Officer Philip Sexton comes along with Officer Anthony Malocky, and they receive a description of the defendants. They canvas the area. The defendants are arrested. A pellet gun is recovered at the time, Your Honor. It was found to be a pellet gun at the crime lab. The victims are brought up to where the defendants are, and it's a show-up ID. It's a short time and a short distance after the initial robbery. That's the facts as to Mr. Thomas and Mr. Diggs.

[COUNSEL FOR THOMAS]: No additions or corrections to the statement of facts, Your Honor.

[COURT]: Well, wait a minute. Let me make a finding on Diggs and Thomas. I don't think I did yet.

[COUNSEL FOR THOMAS]: No, you didn't.

[COURT]: All right. The statement of facts read by the State's Attorney forms a sufficient factual basis for acceptance of the guilty pleas as to — you were calling only one count, the first count, as to both?

[STATE]: Yes, Your Honor.

[COURT]: All right. I will accept the guilty pleas of each of the defendants and enter a guilty finding.

[COUNSEL FOR THOMAS]: Mr. Thomas, is there anything you would like to say to the judge prior to sentencing?

[THOMAS]: No, sir.

[COUNSEL FOR THOMAS]: We are ready for sentencing.

[COURT]: As to Mr. Thomas, the sentence is three years, suspend all but one year, two years probation, court costs.

[COUNSEL FOR THOMAS]: And also to start on 9/20/92, Your Honor.

[COURT]: Yes, effective 9/20. In each case, Mr. Diggs and Mr. Thomas, the beginning portion of the time to be...