Mendoza v. State

WAYNE NIGEL MENDOZA v. STATE OF MARYLAND

No. 0293

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

December 17, 2015

UNREPORTED

Wright, Graeff, Davis, Arrie W. (Retired, Specially Assigned), JJ.

Opinion by Davis, 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 June 2, 2006, appellant, Wayne Mendoza,¹ pled guilty in the Circuit Court for Montgomery County, pursuant to the terms of a plea agreement, to one count of conspiracy to commit robbery and one count of robbery. Appellant was sentenced pursuant to the terms of the plea agreement. Accordingly, appellant was sentenced to thirteen years of incarceration for robbery, with all of the sentence suspended except for eight years, followed by two years of supervised probation and one year for conspiracy to commit robbery. The effective date for both sentences was October 9, 2003, and appellant is no longer serving a sentence in this case.

On January 31, 2014, appellant, a citizen of Trinidad and Tobago, was detained by the United States Immigration and Customs Enforcement Agency ("ICE"). Appellant asserts that he faces permanent deportation from the United States as a result of his plea. On May 21, 2014, he filed a Petition for Writ of Error coram nobis in the Circuit Court for Montgomery County, while still detained by ICE. Appellant was subsequently released from detention in October 2014 as a protectee under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment "(Convention Against Torture")², a temporary formof relief.³ Appellant was required to report to the United States Citizenship and Immigration Services ("USCIS"), a branch of the Department of Homeland Security, every other month. Appellant is subject to detention and removal, if and when, the United States determines that he no longer faces torture in his home country of Trinidad and Tobago.

An evidentiary hearing was held on January 8, 2015 and appellant's petition was denied in a written Memorandum and Order on March 30, 2015 by the Circuit Court. On April 7, 2015, appellant filed the instant appeal, in which he raises the following questions:

1. Was [appellant's] guilty plea entered into knowingly and voluntarily when the convicting court failed to apprise him of the nature of the charges and the elements of the offenses to which he was pleading guilty?

2. Did the Circuit Court err in denying the petition for writ of error coram nobis on the ground that he was not facing a "significant collateral consequence?"

FACTS AND LEGAL PROCEEDINGS

A. Background

On October 7, 2003, appellant and two accomplices robbed an employee at a Papa John's Pizza establishment in Chevy Chase, Maryland by entering through a rear door and pointing what appeared to be a handgun, later determined to be a BB gun, at the employee.The amount of money stolen was $959. On July 5, 2003, appellant and another individual robbed an employee of Sarku Japan, a restaurant in the food court of the Montgomery Mall in Bethesda, Maryland, as she was waiting in line to make a night deposit at a bank drop box in the mall. The amount of money stolen was $3,900.

Appellant was indicted on April 27, 2006 in the Circuit Court for Montgomery County on four charges: conspiracy to commit robbery, robbery and two counts of conspiracy to commit armed robbery. The State proffered a proposed plea agreement at a hearing on May 31, 2006.

Appellant has a prior conviction from 2003 in the District of Columbia, when he was 20 years old. He indicated that, due to his convictions, he was ineligible to apply for a green card. With respect to his conviction in the District of Columbia, appellant indicated that he was sentenced under the Youth Rehabilitation Act and was eligible to have his record expunged. There is no indication that this has been accomplished.

B. The June 2, 2006 Circuit Court Guilty Plea Colloquy

On June 2, 2006, appellant entered a guilty plea in the Circuit Court for Montgomery County to one count of conspiracy to commit robbery and one count of robbery. At the plea hearing, the court advised appellant of his right to a jury trial, the possibility of serious consequences to his immigration status should he plead guilty, the surrender of the majority of his appellate rights and the possibility that the plea could violate any probation he was serving. The court did not expressly ask appellant whether he knew or understood theelements of robbery or conspiracy to commit robbery, nor did the court expressly ask appellant's counsel or appellant whether appellant had been advised of the elements of the offenses. Appellant read the charging documents, he reviewed the discovery in his case and he affirmed that he discussed the plea agreement with his counsel. The pertinent exchanges between the parties are as follows:

THE COURT: Do you understand what you're doing here today?

[APPELLANT]: Yes, ma'am.

THE COURT: Tell me what you're doing.

[APPELLANT]: Pleading guilty to two counts; one count of conspiracy to robbery, and another count of robbery.

THE COURT: Okay. Have you seen and read the charging document, that indictment in this case, the indictment?

[APPELLANT]: Yes, ma'am.

THE COURT: All right. You understand that that document, that indictment is not evidence against you? It's simply the document that brings the case into court.

[APPELLANT'S COUNSEL]: Thank you, Your Honor.

THE COURT: Your request for a postponement is denied.

* * *

THE COURT: You also give up most, not all but most appeal rights. There's a few — couple of technical things that you could appeal. For instance, if you were really 17 now, and you should be in juvenile court and not her [sic] that would be something that you could raise after a plea. But that's why I asked how old you are.

[APPELLANT]: Right.

THE COURT: If I took this plea wrong in a very improper manner then you might be able to appeal that. But for the most part you give up your appeal rights when you plead guilty. Do you understand that?

[APPELLANT]: Yes, I do.

THE COURT: If you are not a U.S. citizen, if you are not a U.S. citizen pleading guilty may have some serious consequences for your immigration status. Did you discuss that with your attorney?

[APPELLANT]: Yes, I did.

THE COURT: Okay. Are you satisfied that you know where you stand in that respect?

[APPELLANT]: Yes, I am.

THE COURT: Okay. Do you have any questions about anything I've said so far or asked you?

[APPELLANT]: No.

THE COURT: And don't be afraid to have a question.

[APPELLANT]: No, I don't, no.

THE COURT: Do you want any further conference with your attorney?

[APPELLANT]: No.

The court accepted appellant's plea based on the following relevant facts proffered by the State:

[State]: Thank you. Your Honor, I'm going to start with count one, which is a guilty plea to conspiracy to commit robbery. If the State had proceeded with a trial in this matter the State would have proven the following information through witnesses and evidence that would have been presented at trial. Back on the 7th of October of 2003, Papa Johns Pizza, which is just by Wisconsin Avenue, just south of East-West Highway several block [sic]. Papa Johns Pizza was the victim of a robbery.

Specifically — excuse me, Your Honor, one moment. Papa Johns is located at 7204 47th Street in Chevy Chase, which is in Montgomery County, Maryland. Just after midnight on October 7, Jamal Shabazz, who was a Papa Johns' employee, was in the rear office counting the day's proceeds. At that time, three unknown suspects entered the establishment through a rear door, which had been left propped open earlier by other employees who had the trash detail. The suspects were described by height, weight, and some of their clothing, and they all three were African-American. One of them had what was thought to be a handgun, but was later determined to be a BB gun. And they initiated the robbery by putting the gun — pointing the gun towards Mr. Shabazz and demanding money. Shabazz immediately relinquished custody of a cash register drawer that he'd been counting, and $959 was taken. If called to testify the State would have put on a witness that testified — would have testified that appellant and certainly they had not [sic] permission to take that $950 by force from Papa Johns Pizza.

The State then read the proffer for the second count:

[State]: As to count two, the robbery of Sarku Japan, if the State had proceeded with the trial, the State would have proven that, back on July 5th, 2003 [. . .] Sarku Japan, which is located inside — it's a restaurant in the food court of Montgomery mall, which is on Democracy Boulevard in Bethesda here in our county, Montgomery County, Sarku Japan was the victim of a robbery. At 9:50 [P.M.] an employee named Ms. Que of Sarku Japan was standing in line waiting to make the night deposit drop in the Chevy Chase night deposit box that's located inside the mall. While in line she observed suspects sitting on a bench near the ATM where she was doing the night drop. If called to testify, one of those suspects would have testified that he, along with appellant, were present and they took a cash bag that was going to be deposited with a total of $3900 in United States currency and they ran away. If called to testify, the victim would have testified that the other person there fits the description of the [appellant] in this case . . . . The defendant for both counts would be identified as a young man seated to the right of his attorney at defense trial table wearing the green jumpsuit. That case occurred in Montgomery County, Maryland as well. And certainly, the defendant had no permission to take anything by force or without force from the victim, Ms. Que who worked for Sarku Japan.

The court subsequently accepted appellant's guilty plea.

C. The January 8, 2015 Coram...