Rich v. State

230 Md.App. 537

148 A.3d 377

Otis RICH

v.STATE of Maryland

No. 601 Sept. Term, 2010

Court of Special Appeals of Maryland.

Filed: November 1, 2016

Submitted by: Pro se, for appellant.

Submitted by: Cathleen C. Brockmeyer (Douglas F. Gansler, Attorney General on the brief), Baltimore, MD, for Appellee.

Panel: Berger, Nazarian, Krystal Q. Alves, (Specially Assigned), JJ.

ON MOTION FOR RECONSIDERATION

Nazarian, J.Otis Rich pled guilty in the Circuit Court for Baltimore City to possession with intent to distribute a controlled substance in 1993, possession with intent to distribute and conspiracy to distribute a controlled substance in 2001, and second-degree assault in 2002. In April 2009, he pled guilty in the United States District Court for the District of Maryland to conspiracy to distribute cocaine, and was given an enhanced sentence as a career offender. Shortly thereafter, he filed three separate petitions for writ of error coram nobis in the Circuit Court for Baltimore City, challenging the validity of his 1993, 2001, and 2002 guilty pleas on the basis that his pleas were not voluntary and that counsel had rendered ineffective assistance. The circuit court denied his petitions in three separate orders entered in 2010, and Mr. Rich appealed.

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 21 U.S.C. § 846. As a result of his previous convictions in the Circuit Court for Baltimore City, he was given an enhanced sentence of 188 months as a "Career Offender."¹ In April 2009, Mr. Rich filed three separate petitions for writ of error coram nobis , each challenging the validity of a guilty plea he entered in a previous prosecution in the Circuit Court for Baltimore City.

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 surrounding it.² We do know, however, that before Mr. Rich's term of probation ended, the circuit court determined that Mr. Rich had violated probation, and in 1995 he was sentenced to serve three years and six months. It appears as well that Mr. Rich filed a motion for modification of his sentence on January 4, 1994, but did not seek leave to appeal the guilty plea. He since has completed his sentence.

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 street. 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.

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-degree 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 as 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, which presented the question of whether the failure to seek appeal in a criminal case may be construed as a waiver of the right to file a petition for coram nobis relief. 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.

Mr. Rich claims (and the circuit court assumed as to all three guilty pleas) that he suffered collateral consequences in the form of an enhanced federal sentence. That all said, he is eligible for coram nobis relief only if: (1) he is challenging his convictions based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal; (2) he can rebut the presumption of regularity that attaches to each criminal case; (3) he faces significant collateral consequences from the convictions; (4) the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and (5) he is not entitled to another statutory or common law...