Serrano v. State

DAVID SERRANO v. STATE OF MARYLAND

No. 32

No. 361

ALA No. 65

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

July 9, 2020

Circuit Court for Wicomico County

Case No. 22-K-10-000728

UNREPORTED

Berger, Nazarian, Arthur, JJ.

Opinion by Nazarian, 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.

In 2010, David Serrano pleaded guilty to second-degree rape and to commission of a sexual offense in the first degree. The Circuit Court for Wicomico County sentenced him to forty-five years' incarceration, ordered extended sexual offender parole supervision under Md. Code (2001, 2008 Repl. Vol.), § 11-723 of the Criminal Procedure Article ("CP"), and ordered him to register as a Tier III sex offender under the Maryland Sex Offender Registration Act ("MSORA") (CP § 11-701, et seq.).

Ever since, and on multiple occasions, Mr. Serrano has sought resentencing or to withdraw his guilty plea. His challenges have included variations of the same arguments he makes here—that his sentence breached the binding plea agreement, which he asserts did not include a supervision requirement, and that his plea was not knowing and voluntary because the circuit court did not inform him of, or ask whether he understood, that his sentence included supervision. He also raises a new argument—that his sentence is illegal because the circuit court purportedly ordered him to register under the 2010 amendments to MSORA, which he asserts did not apply to him. In this appeal, his fourth, we answer three questions:

(1) Does the law of the case bind us to our earlier decision that the sentence did not breach the plea agreement, and if not, was Mr. Serrano's sentence rendered illegal by the imposition of supervision?

(2) Should this Court grant Mr. Serrano's application for leave to appeal the circuit court's denial of his motion to withdraw his guilty plea, in which he argued that his plea was not knowing and voluntary because the circuit court allegedly failed to inform him of the supervision requirement before he pled guilty? and

(3) Did the circuit court err in denying Mr. Serrano's motion to correct an illegal sentence, in which he argued that the circuit court erred in classifying him as a Tier III sex offender under the 2010 amendments to MSORA?

We affirm the denials of his motions to correct and deny Mr. Serrano's application for leave to appeal.

I. BACKGROUND

Although it started with a guilty plea, this case has a lengthy procedural history with a déjà vu quality to it.

A. Mr. Serrano's Guilty Plea.

Mr. Serrano was charged with sexually assaulting two young sisters in separate incidents that occurred when each girl was eight or nine years old. On November 19, 2010, he pleaded guilty to first-degree sexual offense committed between February 1 and August 2, 2010 and second-degree rape committed between October 1, 2008 and April 30, 2009. At the start of the plea hearing, the State indicated that in exchange for Mr. Serrano's guilty plea, it would nol pros the remaining counts, and it asked the court "to be bound to a sentence of a 25 year mandatory minimum as to count 5 [first-degree sexual offense against B.B.] and 20 years consecutive [] as to count 13 [second-degree rape of E.N.]." Neither the State nor the court mentioned extended sexual offender parole supervision at that point.

From there, the court engaged in an exchange with Mr. Serrano about the rights he was waiving, the terms of incarceration, and his mental state. After that, the court determined that Mr. Serrano "knowingly and voluntarily waive[d] his right to a jury trial." Mr. Serrano then pleaded guilty on the record, and the prosecutor stated that Mr. Serrano would have to register as a Tier III sex offender for life and be subject to lifetime supervision. Here are the relevant excerpts:

THE COURT: And you heard earlier, Mr. Serrano, this is abinding plea agreement, in other words we've discussed, meaning I and the attorneys have discussed this previously and I have agreed to be bound by the proposed sentence. But just for the record you should know that under the facts of this case first degree sexual offense otherwise would carry a sentence of life in prison without parole. Second degree rape carries a maximum penalty of 20 years. Do you understand the proposed sentence if you're found guilty?

THE DEFENDANT: Yes, sir.

THE COURT: You also have to understand that later, after your guilty plea is accepted and you're found guilty, you cannot attempt to withdraw those guilty pleas simply because you're not happy with the sentence. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: You have to do this voluntarily, you have to do this knowingly. If you don't have a complete understanding or if you have any questions just stop me and ask [defense counsel] and he'll explain it to you.

Now it's a two step process. First if you wish to plead guilty you must give up or waive your right to a jury trial and I'm going to ask you if you're under the influence of drugs, medication or alcohol. Are you under the influence of any type of medication today?

THE DEFENDANT: No, sir.

THE COURT: Drugs or alcohol? Alcohol or other drugs I should say.

THE DEFENDANT: No, sir.

THE COURT: How old are you?

THE DEFENDANT: 27.

THE COURT: Did you ever finish high school?

THE DEFENDANT: No, sir.

THE COURT: What's the highest grade you completed?

THE DEFENDANT: I got my GED.

THE COURT: You got your GED.

Were you on parole or probation during the period of time alleged in these events?

THE DEFENDANT: No, Sir.

THE COURT: And you're familiar with the events that the State is going to tell me about, correct?

THE DEFENDANT: Yes, sir.

THE COURT: Do you wish to give up your right to a jury trial?

THE DEFENDANT: Yes, sir.

THE COURT: The Defendant knowingly and voluntarily waives his right to a jury trial.

Has anybody forced you against your will to plead guilty to these two charges?

THE DEFENDANT: No, sir.

THE COURT: Have they promised you anything other than what [] the prosecutor, said constitutes the binding plea agreement in this case?

THE DEFENDANT: No, sir.

THE COURT: Are you pleading guilty to committing a first degree sexual offense on [B.B.] sometime between February and August of 2010 because you are guilty of that crime?

THE DEFENDANT: Yes, sir, I am.

THE COURT: Are you pleading guilty to second degree rape on [E.N.] during the period of October 2008 through April of 2009 because you are guilty of that crime?

THE DEFENDANT: Yes, sir, I am.

THE COURT: The Defendant knowingly and voluntarily enters guilty pleas to Counts 5 and 13, he understands the nature of the charges and the consequences of his guilty pleas.

Is there anything else I should ask the Defendant prior to my hearing the facts from the State []?

[THE STATE]: I don't believe so, Your Honor.

As a result of the Defendant's convictions he will have to register as a tier three sex offender for life and be subject to lifetime supervision by the sex offender management team. . . .

The State read into the record the statement of anticipated evidence. The girls' mother offered a victim impact statement. The court and the State stated againMr. Serrano's previous criminal convictions and the term of incarceration the State was seeking ("as to count five, the 25 year mandatory minimum, and as to count 13, 20 years in the Division of Corrections"). The Court told Mr. Serrano that he "know[s] what the sentence is going to be," asked Mr. Serrano whether he wanted to say anything, and Mr. Serrano offered his own statement.

When Mr. Serrano was done speaking, the court stated that the "first thing" it would do is sign the "requirement of lifetime sexual offender registration and supervision." Both the State and Mr. Serrano's defense attorney assisted the court in filling out the applicable form, with no objection from Mr. Serrano's counsel:

THE COURT: All right. The first thing I'm doing is signing the requirement of lifetime sexual offender registration and supervision.

THE CLERK: Judge, you have to make those findings on the record, check whatever it is.

THE COURT: All right, do both of you have this document as far as what block should be checked off?

[THE STATE]: No, Your Honor.

[DEFENSE COUNSEL]: I do not.

THE COURT: Is he a sexually violent predator?

[THE STATE]: Your Honor, no, I don't believe, he would just be a tier three offender.

[THE STATE]:¹ The second block would be checked because it's 3-305, I believe.

[THE STATE]: Yes, Your Honor.

THE COURT: 3-602 as well?

[THE STATE]: No, Your Honor. That's the sex abuse of aminor, he did not plead guilty to that.

THE COURT: I thought the child was nine years old under count five.

[THE STATE]: She is, Your Honor, but he plead [sic] guilty to the first degree sex offense as to her.

THE COURT: All right. How about the next block?

[THE STATE]: No, Your Honor.

THE COURT: So it's just the one block that's checked?

[THE STATE]: Yes, Your Honor.

THE COURT: Any objection, [Defense Counsel]?

[DEFENSE COUNSEL]: No Your Honor.

The court then stated Mr. Serrano's sentence: twenty-five years for count five and twenty (consecutive) years for count thirteen.

B. Mr. Serrano's Initial Applications For Leave To Appeal.

Mr. Serrano didn't appeal directly, but later filed a petition for post-conviction relief. In February 2012, the post-conviction court denied his petition for relief, but granted him leave to file a belated notice of appeal as to certain issues. Mr. Serrano filed an application for leave to appeal from the denial of his post-conviction petition and an application for leave to appeal from his guilty plea. We denied both applications summarily.

C. Mr. Serrano's First Motion To Correct An Illegal Sentence And Our Decision In Serrano I.

In April 2012, Mr. Serrano, acting pro se, filed his first motion to correct an illegal sentence. He argued that sex offender supervision...