State v. Breeding

STATE OF MARYLAND v. ROBERT BREEDING

No. 2709

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

December 8, 2016

UNREPORTED

Meredith, Arthur, Sharer, J. Frederick (Senior Judge, SpeciallyAssigned), JJ.

Opinion by Meredith, 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.

After the Circuit Court for Allegany County granted the petition filed by Robert Breeding, appellee, for a writ of error coram nobis, the State, appellant, appealed. The coram nobis court held that Breeding was entitled to a new trial because the trial court erred in accepting his guilty plea in July 2008 without announcing on the record --- as then required by Maryland Rule 4-242(c) --- that the court found the plea to be voluntary.

QUESTION PRESENTED

The State presents a single question: "Did the circuit court improperly grant Breeding's request for coram nobis relief?"

Because we conclude that the coram nobis court did not apply the correct standard for analyzing -whether Breeding's plea was entered knowingly and voluntarily, as clarified in Part II of the Court of Appeals's opinion in State v. Smith, 443 Md. 572, 649-56 (2015), we will vacate the judgment of the Circuit Court for Allegany County, and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 16, 2008, appellee was charged with two counts of perjury. The charges were filed by the State's Attorney for Allegany County, and stemmed from false testimony that appellee had given, under oath, in his divorce proceedings. The record reveals that appellee --- who was a retired Maryland State Trooper and an active duty Lieutenant Colonel in the United States Military --- desired to end his first marriage and enter into a second marriage with his paramour. Appellee filed two complaints for divorce, and then dismissed one of the complaints, but, with the intent of deceiving his wife, proceeded on the other complaint. He showed his wife only the complaint that hadbeen dismissed. Because she did not realize a second complaint had been filed, she took no action to contest the divorce, and, after the court granted appellee a divorce, his wife remained unaware for many months that she was no longer married to appellee. She learned that she was divorced when she saw an announcement in the local newspaper reporting appellee's marriage to another woman.

In order to unilaterally obtain the divorce, appellee had testified under oath that he and his wife had been living separate and apart for over a year, and that there were no unresolved property or custody-related issues. Appellee's testimony on both of these points was false. The divorce was granted, uncontested by appellee's wife, who remained under the impression that appellee's suit for divorce had been dismissed, and that her marriage was intact.

As noted, appellee was charged with two counts of perjury. He appeared before the Circuit Court for Allegany County on July 1, 2008, for the purpose of entering a guilty plea. As amended, effective January 1, 2008, Maryland Rule 4-242(c) provided:

The court may not accept a plea of guilty until after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. In addition, before accepting the plea, the court shall comply with section (f) of this Rule. The court may accept the plea of guilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty.

(Emphasis added.)

After the court solicited from appellee some identifying information, the following colloquy occurred:

[BY THE COURT]: Mr. Breeding it appears you've been charged with two criminal offenses in this case through a statement of charges. In the past you should have been served and provided with your copy of those charges. Did that happen?

[BY APPELLEE]: Yes Your Honor.

Q. Have you had a chance to read the charges and to review the charges with your attorney?

A. Yes Your Honor.

Q. Do you understand these charges?

A. Yes Your Honor.

Q. Have you also had an opportunity to discuss with your attorney any and all possible defenses you might have to these charges?

A. Yes Your Honor.

Q. And finally, have you had an adequate opportunity to discuss the terms of this plea with your attorney?

A. Yes Your Honor.

Q. All right. You hesitated, which is fine, do you have any desire to have any further conversations with your attorney now out of my hearing or presence on any aspect of this case?

A. No Your Honor. The, the hesitation is just to, to review in my mind just to make sure that I checked all the blocks.

Q. Very well. Then sir referring to the two charges, the first reads that on or about June 11, 2007 in the Allegany County Circuit Court did on exam, did on examination as a witness duly swear, sworn to testify in the Circuit Court um, under oath, unlawfully and falsely swore that you had been separated for at least a year, the matter so sworn being material and the testimony being willfully corrupt andfalse. That sir in essence is the charges of perjury as a witness in court. Do you plead guilty or not guilty to that charge?

A. Guilty Your Honor.

Q. Now sir there's a second charge that reads also on June 11th . . . now help me with this gentlemen, this is a second piece of testimony offered on the same day? I see . . .

[BY THE STATE]: That's correct Your Honor.

[BY THE COURT]: Okay. So then there was apparently a second occurrence on the same date, June 11th, [20]07 ah, and I'll read that on examination as a witness sworn to testify in this Circuit Court [. . .] an oath was administered that's, you unlawfully and falsely swore that your wife had reached an amicable resolution, I beg your pardon, that he and his wife had reached an amicable resolution and had been concluded . . . and had even concluded custody and property agreements regarding their marital property and children. First sir, do you understand the charge as I read it?

[BY APPELLEE]: Yes Your Honor.

Q. Understanding that charge, do you plead guilty or not guilty, recognizing that apparently is a second and distinct charge of perjury?

A. Guilty Your Honor, yes.

Q. Then these questions for you sir, have you and can you hear me clearly and distinctly?

A. Yes Your Honor.

Q. Are you now under the influence of alcohol, narcotics or medication?

A. No Your Honor.

Q. Ah, you can read and write sir?

A. Yes sir.

Q. You're a citizen of the United States?

A. I am Your Honor.

Q. Are you presently under the care of any type of mental health care provider?

A. No Your Honor.

Q. I would advise you sir it's your absolute right to plead not guilty to both and all of these charges. Should you plead not guilty, it will be the burden of the State to try to prove you're guilty. They must prove that beyond a reasonable doubt. Do you understand?

A. Yes Your Honor.

Q. You are presumed to be innocent of these charges. This presumption will stay with you throughout your trial, cannot be overcome unless the State can prove guilt beyond a reasonable doubt. When and if you plead guilty, you forfeit that presumption. Is that clear sir?

A. Yes Your Honor.

Q. If you pled not guilty, you would have the right to a speedy public trial where you could see, hear, question and confront every witness. You could present witnesses and evidence on your own behalf. You could elect to have your guilt or innocence decided by judge or jury. If you selected jury, 12 persons would be selected at random from this County. You could participate in their selection. They could not convict you of any crime unless unanimous in their belief that your guilt had been established beyond a reasonable doubt. You will lose that presumption of innocence if you plead guilty. Is that clear sir?

A. Yes Your Honor.

Q. If you pled not guilty, no one could force you to testify, no one could assume significance from your silence. If you were having a jury trial, if asked, I would instruct the jury on that point of law. The same point of law would apply if you were having a judge trial. On the other hand, you could take the witness stand, testify in your own defense, if that was your choice. Is that clear sir?

A. Yes Your Honor.

Q. Other consequences of pleading guilty include that your right of appeal to an entity or court known as an appellate court becomes very limited. Also if you're now on parole or probation, this conviction could be a reason to revoke that parole or probation. Is that clear sir?

A. Yes Your Honor.

Q. Now sir my understanding is you're pleading guilty to two separate charges . . . of perjury, perjury as a witness in a court proceeding. Is that what you believe you're doing sir?

A. Yes Your Honor.

Q. I would advise you sir that the penalty associated with each conviction would be up to 10 years in jail. Do you understand?

A. Yes Your Honor.

Q. Um . . . is this classified as a felony or misdemeanor gentlemen? And on the nature of perjury is there any aspect regarding consequences of perjury that your client needs to be reminded of, such as affects on voting, testifying in the future? Perjury is a many headed monster.

[BY APPELLEE'S COUNSEL]: As to, as far as felony or misdemeanor Your Honor, quite frankly I, I'm not sure. He has been advised he won't be able to vote and he won't be able to testify in any other proceedings, he won't be able to sign anything under Affidavit and there could be repercussions for any future um . . . .

[BY THE COURT]: All right, then Mr. Breeding . . . .

[BY APPELLEE'S COUNSEL]: . . . time, nexus to the criminal . . .

[BY THE COURT]: I'm

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