Yonga v. State

446 Md. 183

130 A.3d 486

Sam YONGA

v.STATE of Maryland.

No. 30, Sept. Term, 2015.

Court of Appeals of Maryland.

Jan. 27, 2016.

William M. Ferris (Krause & Ferris, Annapolis, MD), on brief, for Petitioner.

Carrie J. Williams, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Matthew W.S. Estes, Esquire, Donald P. Salzman, Esquire, Washington, DC, for

Amicus Curiae Brief of the Mid–Atlantic Innocence Project and the University of Baltimore Innocence Project Clinic.

ARGUED BEFORE: BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, GLENN T. HARRELL, JR., (Retired, Specially Assigned) and JOHN F. McAULIFFE, (Retired, Specially Assigned), JJ.

BATTAGLIA, J.

According to the statement of facts presented by the State during the guilty plea proceeding involving Petitioner, Sam Yonga, it was late in 2006 when Yonga, then a 25 year-old immigrant from Sierra Leone, traveled from Prince George's County to an apartment in Baltimore County to meet with T.R.,¹ a 13 year old girl who lived there with her mother. He had become acquainted with T.R. over a phone chat line some weeks earlier, during which conversation Yonga told T.R. that his name was Mohammad.

Yonga and T.R. decided to meet on a day that T.R. would pretend to be ill, in order to stay home from school. After they met at the apartment, the two began kissing, and Yonga, at times, touched T.R.'s breasts. Eventually, the pair moved to T.R.'s mother's bedroom; T.R. removed her clothing while Yonga took off his pants and underwear. After Yonga and T.R. moved to the bed, they began to have sexual intercourse when they were interrupted by the unexpected return of T.R.'s mother.

Yonga quickly left the apartment, and dropped his cell phone, which was retrieved by T.R.'s mother, who called police and reported the incident, after having learned Yonga's name and address from his mother whose phone number was in the cell phone. T.R.'s mother then took her daughter to a local clinic for an examination and for a shot of Depo–Provera, a birth control implant.²

Yonga initially denied knowing T.R. and denied having initiated sexual intercourse, but admitted to "kissing and touching" her on a porch outside the apartment.

Yonga was arrested and charged with second degree rape³ and a third degree sexual offense.⁴ He pled guilty to the third degree sexual offense during a colloquy conducted by Judge Dana Levitz, then an active judge of the Circuit Court for Baltimore County. During the colloquy, Judge Levitz assured that Yonga's plea was given freely, voluntarily and knowingly and that Yonga understood that the plea had been negotiated as one binding upon the Judge in terms of sentencing:⁵

THE COURT: Now, I'm going to ask you a series of questions. My purpose in asking you the questions is not to get you to do anything. I'm not trying to get you to enter a guilty plea or not, but the law says I can't let you enter a guilty plea unless you're doing it freely, voluntarily, knowingly and intelligently. I'm asking you the questions to satisfy myself that you are entering it under these conditions, so if I ask anything you don't understand, stop me. Say, Judge, I don't understand what you're asking me, and I'll try to explain it to you.

YONGA: Yes, sir.

THE COURT: Now, the State's Attorney and your lawyer have told me that you're entering a guilty plea in Case Number 07–K–324 to the third count which—excuse me, the second count, which charges you with third-degree sex offense which occurred on or about November the 3rd, 2006, and the third-degree sex offense was upon [T.R.].

In exchange for your plea to that charge the State will dismiss the more serious second-degree sex offense. In addition, the State and the Defense have agreed that the sentence that I will impose is 364 days. I'm going to suspend all but six months of the sentence and that six months will be served at the Baltimore County Detention Center. They've agreed that the sentencing will happen on the June the 4th.

That's what I understand to be the total plea agreement in this case. Is that your understanding of it?

YONGA: Yes, sir.

THE COURT: Has anyone made you any other promises, threats, inducements to get you to enter this plea?

YONGA: No.

* * *

THE COURT: How far did you go in school?

YONGA: Um, college level, university level.

THE COURT: All right. Are you now under the influence of alcohol, drugs or any other substance that's affecting your thinking?

YONGA: No, sir.

THE COURT: Have you ever been treated for a mental disease or a mental disorder?

YONGA: No, sir.

THE COURT: Are you now on probation or parole?

YONGA: No, sir.

THE COURT: As I understand it, you are a, um, a citizen of—is it Sierra Leone?

YONGA: Yes, sir.

Judge Levitz also advised Yonga of possible implications of the guilty plea on his immigration status:⁶

THE COURT: Okay, You understand that this guilty plea could have immigration consequences and if you are concerned about that then I urge you to talk to an immigration lawyer because I can't advise you about that. I have nothing to do with that. Do you understand that?

YONGA: Yes, sir.

Judge Levitz then explained to Yonga that, by pleading guilty, he was waiving various rights to which he would have been entitled during a trial and his right to appeal:

THE COURT: Okay. All right, so by proceeding in this way we don't have a trial where witnesses are called. You're giving up the right to have your lawyer cross examine the witnesses. You're giving up the right to produce witnesses on your own behalf. You're giving up the right to testify or remain silent.

If this were a trial you could sit next to Mr. Fatemi and you wouldn't have to say a word. You could just sit next to him. Nobody could make you get on the stand and admit you did anything.

You're giving up the right to appeal by proceeding in this way, you're giving up the right to complain that anything the police may have done that you think violated your rights.

Judge Levitz then reinforced his commitment to be bound by the disposition agreed upon by the State and Yonga's counsel:

THE COURT: The sentence that the law would allow for this crime is ten years in prison but I've already told you the sentence that I'm going to impose in this case, so while that's what the law would allow I've already made you a promise that the sentence is going to be 364 days, suspend all but six months. Do you understand that?

YONGA: Yes, sir.

THE COURT: Do you understand everything that I've said so far?

YONGA: Yes, sir. Yes, sir.

Judge Levitz also inquired whether Yonga had "any additions, corrections or modifications to those facts?" to which Yonga's counsel replied:

MR. FATEMI: Uh, I think Madame State has, uh, properly went over, uh, what hap—allegedly happened, just the fact that he never went in the house and in the statement he stated that he did not have sex.

Judge Levitz accepted Yonga's guilty plea:

THE COURT: Okay. All right. I've had occasion to speak with the Defendant and based on my opportunity I'm convinced that his plea is free, voluntary, knowing, informed and with factual basis, and accordingly I accept his guilty plea to third-degree sex offense.

During the sentencing hearing approximately one month later, at which Yonga's family allocuted regarding Yonga's mistake, Yonga expressed his remorse to the court:

Yes, sir. I'm very sorry. Really, really, really sorry. I made a mistake and I've learned a lot from it. I'm really, really, really—I'm so, I'm so deeply, really sorry. It bothers me every day but, um, it's a mistake I made. I'm going through it, you know, I'm very, very, very sorry.

Pursuant to the plea agreement, Judge Levitz sentenced Yonga to 364 days in the Baltimore County Detention Center, with all but six months suspended. Yonga also was required to register as a sex offender.

Six years later, in 2013, after allegedly reconnecting with T.R. through social media, Yonga petitioned for a Writ of Actual Innocence, under Section 8–301 of the Criminal Procedure Article of the Maryland Code,⁷ in which he alleged that

T.R.

"recanted" her original statements given to police. Judge Sherrie Bailey of the Circuit Court for Baltimore County denied Yonga's petition on the merits, after a hearing.

Yonga appealed the denial, arguing that Judge Bailey, in finding Yonga did not sufficiently establish newly discovered evidence as required under Section 8–301, erred. The State countered that the Writ of Actual Innocence was not applicable to a person who had pled guilty and, in the alternative, that the Circuit Court's denial on the merits was correct.

Our intermediate appellate court affirmed in a reported opinion. Yonga v. State, 221 Md.App. 45, 108 A.3d 448 (2015). Judge Charles E. Moylan, writing for the Court of Special Appeals, explained the history of Section 8–301 and its affinity to the motion for a new trial under Rule 4–331, determining, primarily, that "a non-reversed guilty plea is invulnerable to a Writ of Actual Innocence." Id. at 77, 108 A.3d at 467. The Court of Special Appeals also determined that Judge Bailey did not clearly err in her credibility determinations, and, therefore, did not abuse her discretion in denying Yonga's petition, although it emphasized that, "First and foremost is our primary holding that the Writ of Actual Innocence does not apply to a guilty plea." Id. at 99, 108 A.3d at 480.

We granted Yonga's petition for a writ of certiorari, Yonga v. State, 442 Md. 515, 113 A.3d 624 (2015), which presented the following questions:

I. DOES THE STATUTORY WRIT OF ACTUAL INNOCENCE UNDER § 8–301 OF THE [CRIMINAL PROCEDURE] ARTICLE OF THE ANNOTATED CODE OF MARYLAND APPLY TO GUILTY PLEA CASES?^[8]

II. IF SO, IS IT CLEAR ERROR AND/OR AN ABUSE OF DISCRETION FOR A TRIAL JUDGE TO DENY A REQUEST FOR A NEW TRIAL BY THE PETITIONING PARTY WHERE THE ALLEGED VICTIM AND THE ONLY WITNESS DESCRIBED IN THE STATEMENT OF FACTS BOTH TESTIFIED THAT THE ALLEGED EVENTS NEVER HAPPENED WHEN THE TRIAL JUDGE HAD HEARD TESTIMONY AT A HEARING UNDER § 8–301 ? ^[9

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