Simpson v. State

TEREZ SIMPSON, a/k/a TEREZ JACKSON, v. STATE OF MARYLAND

No. 720

No. 1372

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

June 15, 2018

Circuit Court for Baltimore City

Case Nos. 508242001 809260022 809027026

UNREPORTED

Graeff, Nazarian, Fader, JJ.

Opinion by Graeff, 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 January 28, 2009, Terez Simpson, aka Terez Jackson, appellant, pleaded guilty to one count of attempted distribution of heroin in the Circuit Court for Baltimore City.¹ The court sentenced appellant to four years' imprisonment, all suspended, with three years of supervised probation.

On January 4, 2010, in the same court, appellant pleaded guilty, on two different indictments, to one count of first degree assault and one count of attempted distribution of cocaine. On the charge of first degree assault, the court sentenced appellant to ten years' imprisonment, all but time served suspended, with five years of supervised probation. On the charge of attempted distribution of cocaine, the court sentenced appellant to two years' imprisonment, to be served consecutively to the ten years' imprisonment, all but time served suspended, with five years of supervised probation.

On January 27, 2017, after appellant was charged with additional offenses in the United States District Court for the District of Maryland, he filed two petitions for writ of error coram nobis. In his first petition, appellant argued that his guilty plea on January 28, 2009, to one count of attempted distribution of heroin, was not made freely and voluntarily because he did not agree to the factual basis for the plea proffered by the State. In his second petition, appellant argued that his guilty pleas on January 4, 2010, to first degree assault and attempted distribution of cocaine, were not freely and voluntarily made becausethe elements of each charge were not explained to him. The court rejected the claims raised in both petitions.

In this consolidated appeal, appellant presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Was appellant's guilty plea to the charge of attempted distribution of heroin involuntary because he disputed the factual basis that the State proffered in support of the plea?

2. Were appellant's guilty pleas to charges of first degree assault and attempted distribution of cocaine involuntary because the court failed to apprise him of the nature of the charges and the elements of the offenses to which he was pleading guilty?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Guilty Pleas

A.January 28, 2009, Guilty Plea

In late 2008, appellant was charged with multiple narcotics violations. On January 28, 2009, he pleaded guilty to one count of attempted distribution of heroin. He stated that he was making the guilty plea voluntarily and of his own free will. He stated that he was 18 years old, had not been threatened or promised anything to accept a plea, could read, write, and understand English, was not under the influence of alcohol or drugs, had never been a patient in a mental institution or under the care of psychologist or psychiatrist,understood the details of the plea agreement, and understood the nature of the charge.² Appellant further acknowledged that, by pleading guilty, he was giving up a "certain number of legal constitutional rights, privileges, and defenses," including the right to a trial by jury or a bench trial, the right to confrontation, and the right to remain silent. Appellant stated that he understood that he was giving up his right to an appeal, and he would have the opportunity to seek leave to appeal only in certain limited circumstances.

Based on the foregoing, the court stated that it was "satisfied tentatively" that appellant's plea was being made knowingly, intelligently, and voluntarily, and it requested a proffer of facts to evaluate the factual basis for appellant's plea. The State proffered the following facts:

[THE STATE]: On or about December 22nd, 2008 at approximately 9 a.m., an officer was in a[] covert location observing the 3900 block of Belvedere Avenue. At that time, he observed co-Defendant Davis approach the [appellant]. They talked to the [appellant], exited the area, and then returned a few minutes later with suspected CDS [controlled dangerous substances]. He - the [appellant] gave the suspected CDS to co-Defendant Davis in exchange for U.S. currency. At that time, the officers believe - the officer believed he had observed a hand-to-hand CDS transaction. The [appellant] was placed under arrest. Recovered were three bags of marijuana, $28 in U.S. currency. Recovered from the co-Defendant Davis was one vial of heroin from his pocket.

The items that . . . were recovered were submitted to ECU. They were analyzed and found to be heroin, a schedule I narcotic. At this time, the State would offer into evidence as State's Exhibit 1 a copy of the analysis after having previously shown it to Defense counsel.

[DEFENSE COUNSEL]: No objection.³

[THE STATE]: If called to testify, the officers would identify the [appellant] standing to my left with counsel and all events occurred in Baltimore City, State of Maryland.

Following the State's proffer, the court asked appellant whether he agreed with the State's contention that the police officer would testify to the facts as presented. The following exchange ensued:

THE COURT: [Appellant], do you agree that's what the police officer would say? Did you hear what she said?

[APPELLANT]: I don't know what he would say.

THE COURT: You don't know what he would say?

[APPELLANT]: No.

THE COURT: Well, do you agree that's what happened?

[APPELLANT]: No.

THE COURT: That's not what happened?

At this point, defense counsel requested to confer with appellant.

After defense counsel conferred with appellant, the court asked the State if it could produce the police officer to testify to the proffered facts. Before the State could respond, appellant stated: "I'm pretty sure that's what he would say." No objection to the facts or other additional facts were offered to the court. The State then confirmed that it could produce the police officer to testify to the facts it proffered to the court.

The court indicated that the facts were "sufficient to find [appellant] guilty." Appellant was given an opportunity to allocute, but he stated only that he "just want[ed] to go home to [his] family." The court then sentenced appellant. Informing appellant that he was "getting an opportunity," which the court "hope[d] [he would] take advantage of," the court imposed a sentence of four years' imprisonment, all suspended, with three years of supervised probation.⁴

B.January 4, 2010, Guilty Pleas

Approximately one year later, on January 4, 2010, appellant pleaded guilty in the same court to two charges on two separate indictments. With respect to the first indictment, which charged appellant with robbery, first degree assault, second degree assault, theft of property valued less than $500, and conspiracy to commit robbery, appellant pleaded guilty to first degree assault. With respect to the second indictment, which charged appellant with attempted distribution of cocaine and possession of cocaine, appellant pleaded guilty to attempted distribution of cocaine.

At the beginning of the plea hearing, the court discussed the two indictments. With respect to the first indictment, the court stated:

All right. So what are we doing with [appellant]? Let's see, while on foot patrol, Officer Alvarez flagged down by witnesses. Stated that the victim was surrounded by a group of males who were punching and kicking him. When the officer arrived at the victim, all males had fled and victimwas bleeding from the head and semi-conscious. Victim . . . gave written statement claiming he was walking when the males began approaching him. One male took the phone from [the victim's] waistband. . . . Was robbed, punched.

The court then noted that the second indictment involved police observations of apparent drug transactions.

After a discussion regarding the weaknesses in the robbery charge in the first indictment, the State recommended proceeding with the charge of first degree assault. Defense counsel asked the court to consider the following sentence:

[I]f the State wants eight, suspend all but a year, I would ask the Court to consider ten, suspend all but time served on the [first degree assault] count.⁵ And one year, suspend all but time served on the attempted distribution count and simply entering a guilty verdict on that.

The State agreed to the request, and the court stated: "All right. Talk to [appellant] and see if he wants it." The State then put the terms of the plea agreement on the record:

Your Honor, in case ending in 001 [the first indictment], the State would be calling Count 2 of the indictment, first-degree assault. The agreed-upon disposition is ten years, suspending all [but] time served with five years of supervised probation. Additionally, the State would be calling . . . Count 1 of [the second] indictment attempted distribution of cocaine. The agreed-upon disposition is two years, suspending all [but] time served, five years of supervised probation to be served consecutive to the ten years suspended.

The court then questioned appellant, who stated that he was 19 years old, had completed the tenth grade, and could read, write, and understand the English language. Appellant stated that he was not under the influence of drugs or alcohol, had never been apatient in a mental institution, and was not currently being treated by a mental health professional. Appellant acknowledged that, if he was on probation or parole, he could be charged with violating...