State v. Rich

STATE OF MARYLAND v. OTIS RICH

No. 83

COURT OF APPEALS OF MARYLAND

Argued: May 9, 2017

September Term, 2016

July 14, 2017

PETITION FOR WRIT OF ERROR CORAM NOBIS — APPELLATE REVIEW — MOTION FOR RECONSIDERATION — WAIVER OF ARGUMENT

In response to respondent's petition for writ of error coram nobis, the State consistently asserted, in both the coram nobis court and the Court of Special Appeals, that the record of respondent's 2001 plea hearing was sufficient to determine that his guilty plea was knowing and voluntary. The coram nobis court denied the petition without a hearing. The Court of Special Appeals then reviewed the record of the 2001 plea hearing, and determined that the respondent's 2001 guilty plea was not knowing and voluntary. On a motion for reconsideration, the State asserted, for the first time, that the record of the 2001 plea hearing was inadequate to determine whether the guilty plea was knowing and voluntary, and therefore a remand on this point was necessary. The Court of Special Appeals denied the motion for reconsideration.

The Court of Appeals held that the Court of Special Appeals did not abuse its discretion in denying the State's motion for reconsideration. By consistently asserting that the record of the 2001 plea hearing was sufficient to determine whether respondent's guilty plea was knowing and voluntary, and failing to argue that a remand was necessary prior to the Court of Special Appeals issuing its decision, the State effectively waived this argument on appeal.

Circuit Court for Baltimore City

Case Nos. 199252017, 293113001, 802108037

Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Opinion by Getty, J.

"I am reminded, in this connection, of a story of an old Dutch farmer, who remarked to a companion once that 'it was not best to swap horses when crossing streams.'"

—Abraham Lincoln, Remarks in Response to Lincoln's Nomination by the National Union League (June 9, 1864)

In June 2009, the respondent, Otis Rich, filed a petition for writ of error coram nobis challenging the voluntariness of his 2001 guilty plea to conspiracy to distribute marijuana. In response to the petition, the State asserted that Mr. Rich's claims were without merit and should be denied without a hearing. The coram nobis court agreed with the State, and denied Mr. Rich's petition without a hearing.

When Mr. Rich appealed the decision to the Court of Special Appeals, the State asserted for a second time that the record of the 2001 plea hearing was sufficient to establish that the guilty plea was knowing and voluntary. Moreover, the State's primary argument on appeal was that Mr. Rich waived the right to seek coram nobis relief by failing to file an application for leave to appeal his 2001 guilty plea. Thus, the State urged the intermediate appellate court to affirm the coram nobis court's denial of Mr. Rich's petition without a hearing.

Mr. Rich's appeal was then delayed for five years, during which time this Court decided State v. Smith, 443 Md. 572 (2015). In Smith, we held that a defendant does not waive the right to seek coram nobis relief by failing to file an application for leave to appeal a guilty plea. Id. at 595. Following our decision in Smith, the Court of Special Appeals lifted the stay on Mr. Rich's appeal, and set the case for consideration in March 2016. Atno point after our decision in Smith, or after the Court of Special Appeals lifted the stay on Mr. Rich's appeal, did the State supplement or amend its earlier arguments in its brief to account for the evolution in coram nobis jurisprudence that had occurred in the intervening five years since the State filed its initial brief.

The Court of Special Appeals decided Mr. Rich's appeal in August 2016. The intermediate appellate court held, pursuant to Smith, that Mr. Rich had not waived his coram nobis claim by failing to file an application for leave to appeal his 2001 guilty plea. On the merits of his claim, the Court of Special Appeals determined, based on the record of the 2001 plea hearing, that Mr. Rich's guilty plea was not knowing and voluntary, and therefore the coram nobis court erred by denying him relief based on this ground. The Court of Special Appeals then remanded the case for the coram nobis court to consider whether Mr. Rich was suffering significant collateral consequences as a result of his convictions.

Following the Court of Special Appeals' decision, the State filed a motion for reconsideration in that court. In its motion, the State argued, for the first time, that the record of the 2001 plea hearing was inadequate for the intermediate appellate court to determine whether Mr. Rich's guilty plea was knowing and voluntary. Thus, the State requested, midstream, that the Court of Special Appeals order a remand for the coram nobis court to conduct an evidentiary hearing on the merits of Mr. Rich's claim. The Court of Special Appeals denied the motion for reconsideration, and reissued its opinion.

Before this Court, the State asks us to determine whether the Court of Special Appeals erred by denying its motion for reconsideration requesting a remand on the meritsof Mr. Rich's claim. For the reasons that follow, we hold that the Court of Special Appeals did not abuse its discretion in denying the motion, and therefore we affirm.

BACKGROUND

A. The Guilty Pleas

On December 29, 1993, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to possession with intent to distribute a controlled dangerous substance. The circuit court sentenced Mr. Rich to five years of incarceration, all suspended, and eighteen months of supervised probation.

On October 23, 2001, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to possession with intent to distribute marijuana and conspiracy to distribute marijuana. The plea hearing took place simultaneously with the plea hearing of another, wholly unrelated defendant named Michael Thomas.¹ At the hearing, Mr. Thomas' defense attorney, Tom Kane, qualified both his client and Mr. Rich prior to the circuit court accepting the guilty pleas. Mr. Rich's defense attorney, John Denholm, said very little at the hearing. After explaining to both defendants the rights they were giving up by choosing to plead guilty, Mr. Kane addressed the four potential grounds for appellate review of a guilty plea:

MR. KANE: The fourth ground has a couple parts. One is whether or not you understand the charge. Mr. Thomas and Mr. Rich, you're both pleading guilty to possession kind of offenses and possession can be either actual possession, meaning it's on a part of you—in your pockets, holding it in yourhand like a pen—or constructive possession, meaning that's in the vicinity of where you are, and you are exercising dominion, meaning ownership, and control over it, meaning that if somebody tried to take it, you could stop them, such as my briefcase over on one of the chairs. I'm not touching it in any way, but I'm in constructive possession of that.

Possessing it with the intent to distribute it means you're having the intent to transfer that possession from you to somebody else. That could be giving it away, it could be selling it, as long as the possession transfers. There doesn't have to be any money involved. A gift is a transfer of possession. So that's the possessing it with the intent to give it to somebody else, as opposed to use it all for yourself.

* * *

And, Mr. Rich, you understand you're charged with marijuana and that's another one of those substances that the Legislature says you can't have?

MR. RICH: Yes.

MR. KANE: Is there anything about the charge of possessing it with the intent to distribute it that you don't understand?

MR. RICH: No.

Neither Mr. Kane nor Mr. Denholm explained to Mr. Rich, at the plea hearing, the nature of the charge of conspiracy to distribute marijuana.

After the circuit court found that Mr. Rich's guilty plea was knowing and voluntary, the prosecutor read into the record the statement of facts supporting his plea:

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.

During the course of those observations, Mr. Armistead was observed to be standing with both Mr. Cook and Mr. Rich, and was observed to approach a late-model black Ford pickup truck, who pulled to the side of the street. . . .

Through the information that was received, the observations made, and the actions of Mr. Cook, Mr. Rich, and Mr. Armistead, the officers believed that all three were working together to sell narcotics in the block and were keeping the narcotics in the vacant house at 825 North Collington Avenue.

Based on this statement of facts, the circuit court found Mr. Rich guilty of possession with intent to distribute marijuana and conspiracy to distribute marijuana. The court sentenced Mr. Rich to three years of incarceration, all suspended, and three years of supervised probation.

On April 19, 2002, Mr. Rich pleaded guilty in the Circuit Court for Baltimore City to second-degree assault. The circuit court sentenced Mr. Rich to ten months of incarceration.

On January 9, 2009, Mr. Rich pleaded guilty in the United States District Court for the District of Maryland to conspiracy to distribute cocaine and possession of cocaine with intent to distribute. As part of his plea agreement, Mr. Rich "agreed" that he was a "career offender pursuant to U.S.S.G. §4B1.1."² The federal court sentenced...