MOTION FOR RECONSIDERATION
Berger, Nazarian, Alves, Krystal Q. (Specially Assigned), JJ.
Rich pled guilty in the Circuit Court for Baltimore City to
possession with intent to distribute a controlled substance
in 1993, possession with intent to distribute and conspiracy
to distribute a controlled substance in 2001, and
second-degree assault in 2002. In April 2009, he pled guilty
in the United States District Court for the District of
Maryland to conspiracy to distribute cocaine, and was given
an enhanced sentence as a career offender. Shortly
thereafter, he filed three separate petitions for writ of
error coram nobis in the Circuit Court for Baltimore
City, challenging the validity of his 1993, 2001, and 2002
guilty pleas on the basis that his pleas were not voluntary
and that counsel had rendered ineffective assistance. The
circuit court denied his petitions in three separate orders
entered in 2010, and Mr. Rich appealed.
stayed this case pending the Court of Appeals's decision
in State v. Smith, 443 Md. 572 (2015). With the
benefit of Smith, a case fundamentally similar to
this one, we hold that Mr. Rich did not waive his right to
seek coram nobis relief, and we address the merits.
On the merits, we affirm the court's decisions with
respect to the 1993 and 2002 petitions, but vacate the
court's decision as to his 2001 plea to conspiracy to
distribute marijuana because we are unable to see in the
transcript of that plea hearing where Mr. Rich was advised
about the nature of the conspiracy charge, and we remand for
January 2009, Mr. Rich pled guilty in the United States
District Court for the District of Maryland to a charge of
conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 846. As a result of his previous convictions in the
Circuit Court for Baltimore City, he was given an enhanced
sentence of 188 months as a "Career
Offender." In April 2009, Mr. Rich filed three
separate petitions for writ of error coram nobis,
each challenging the validity of a guilty plea he entered in
a previous prosecution in the Circuit Court for Baltimore
in 1993, Mr. Rich pled guilty to possession with intent to
distribute a controlled substance. He was sentenced to a term
of five years' imprisonment with five years suspended,
and placed on probation for a year and six months. No
transcripts of this plea hearing are in the record, so we do
not know the facts and circumstances surrounding
We do know, however, that before Mr. Rich's term of
probation ended, the circuit court determined that Mr. Rich
had violated probation, and in 1995 he was sentenced to serve
three years and six months. It appears as well that Mr. Rich
filed a motion for modification of his sentence on January 4,
1994, but did not seek leave to appeal the guilty plea. He
since has completed his sentence.
on October 23, 2001, Mr. Rich pled guilty to possession with
intent to distribute marijuana and conspiracy to distribute
marijuana. The statement of facts placed on the record at the
plea hearing indicated that a reliable source tipped off
police that three men were selling marijuana on the steps of
a row house in the 800 block of Collington Avenue, and
storing marijuana in a vacant home on the same street. Based
on this tip, police at the scene observed three men, later
identified as Kenneth Cook, Calvin Armistead, and Mr. Rich,
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.
* * *
Officer John, along with Officer Norline, responded to the
vacant house at 825 North Collington Avenue. Upon looking in
the front window, on the floor approximately one foot beneath
the window was a large, open plastic bag that contained 43
small ziplock bags that contained a plant-like substance,
suspected marijuana. Next to that bag was a large ziplock bag
containing five smaller sandwich baggies each containing
approximately one ounce of suspected marijuana, for a total
of five ounces. Next to that bag was a blue Gap bag that
contained a brown paper bag that contained 67 small ziplock
baggies of suspected marijuana.
possession count, Mr. Rich was sentenced to three years, all
suspended, and placed on three years of supervised probation.
On the conspiracy count, he was sentenced concurrently to
three years, all suspended, and three years of supervised
probation. Again, Mr. Rich did not move for leave to appeal
the conviction, and he has completed this sentence.
on April 19, 2002, Mr. Rich pled guilty to second-degree
assault and was sentenced to ten months of incarceration. The
circumstances surrounding this charge, as placed on the
record during the plea hearing, indicate that:
. . . On November 2nd, 2001, at 2100 Guilford Avenue, which
is Parole and Probation, officers attempted to serve a parole
retake warrant on the defendant standing to the left of
defense counsel. The defendant became hostile, pushed and
punched both Officer Teal and Sergeant Freeman, causing cuts
and bruises. The defendant then escaped from the officers and
jumped out a window. The defendant was arrested at a later
date . . . .
Rich was sentenced to ten months' imprisonment, which he
served without seeking leave to appeal.
April 2009 coram nobis petitions, Mr. Rich argued
that he was entitled to relief because trial counsel had
rendered ineffective assistance at all three plea hearings.
He contends that his counsel failed to ensure that his guilty
pleas were knowing and voluntary, failed to ensure that the
court engaged in a full plea colloquy, and failed to seek
leave to appeal or ask for a modification of sentence
following all three convictions, even though Mr. Rich says he
asked counsel to do so. As for the "significant
collateral consequence" required to qualify for
coram nobis relief, Mr. Rich argued that he received
an enhanced federal sentence in 2009 as a result of the three
guilty pleas. Without holding a hearing on the matter, the
circuit court denied all three petitions, and Mr. Rich filed
a timely appeal.
case was originally docketed in our September 2010 term. On
October 27, 2014, though, we issued a stay pending the Court
of Appeals's decision in Graves v. State, which
presented the question of whether the failure to seek appeal
in a criminal case may be construed as a waiver of the right
to file a petition for coram nobis relief. 215
Md.App. 339, 343 (2013), cert. granted, 437 Md. 637
(2014). In December 2014, the Court of Appeals dismissed
Graves as moot, but the stay in Mr. Rich's case
remained in place because, in the interim, the Court granted
certiorari in State v. Smith to address the
same issue. 439 Md. 327 (2014). After the Court decided
Smith in July 2015, we lifted the stay and scheduled
the case for argument in March 2016.
the circuit court, we have the benefit of significant
legislative and judicial developments in the governing law
that post-date the orders at issue. So although we are, of
course, reviewing the circuit court's denial of Mr.
Rich's three petitions for coram nobis relief,
is important for us to recognize the evolution, indeed the
broadening, of coram nobis relief in the intervening
six-and-a-half years, at least for certain categories of
petitioners. Coram nobis remains an
"extraordinary remedy" that allows a convicted
defendant to "show that a criminal conviction was
invalid under circumstances where no other remedy is
presently available and where there were sound reasons for
the failure to seek relief earlier." State v.
Smith, 443 Md. 572, 597 (2015) (quoting Skok v.
State, 361 Md. 52, 72-73 (2000)). This relief is
available to aid defendants who, facing a relatively light
sanction, "forego an appeal even if errors of a
constitutional or fundamental nature may have occurred"
and "[t]hen, when the defendant later learns of a
substantial collateral consequence of the conviction, it may
be too late to appeal, and, if the defendant is not
incarcerated or on parole or probation . . ., " find it
is too late to seek post-conviction relief. Skok,
361 Md. at 77 (citing United States v. Morgan, 346
U.S. 502 (1954)). Skok recognized enhanced
sentencing as one such collateral consequence. Id.
Rich claims (and the circuit court assumed as to all three
guilty pleas) that he suffered collateral consequences in the
form of an enhanced federal sentence. That all said, he is
eligible for coram nobis relief only if: (1) he is
challenging his convictions based on constitutional,
jurisdictional, or fundamental grounds, whether factual or
legal; (2) he can rebut the presumption of regularity that
attaches to each criminal case; (3) he faces significant
collateral consequences from the convictions; (4) the alleged
error has not been waived or finally litigated in a prior
proceeding, absent intervening changes in the applicable law;
and (5) he is not entitled to another statutory or common law
remedy. Jones v. State, 445 Md. 324, 338 (2015).
State's brief, filed before the case was stayed and thus
before Smith, argues primarily that Mr. Rich waived
his coram nobis claims and, if not, that they are
barred by the equitable doctrine of laches. Those arguments
were stronger before Smith, but in light of
Smith, we disagree that the claims are barred. From
there, we reach the merits, and we find that Mr. Rich has met
most of his threshold burdens as to one of his guilty pleas,
and one needs further exploration.
Rich Has Not Waived His Coram Nobis Claims.
State argues first that Mr. Rich was not entitled to
coram nobis relief because he waived any challenge
to his guilty pleas by not seeking leave to appeal them or
filing a petition for post-conviction relief. The Court of
Appeals's most recent treatment of waiver in this
context, however, compels us to reject these contentions.
Skok v. State, the leading case on waiver at the
time of the circuit court rulings and the parties'
briefs, the Court of Appeals held that "the same body of
law concerning waiver and final litigation of an issue, which
is applicable under the Maryland Post Conviction Procedure
Act . . . shall be applicable in a coram nobis
proceeding." 361 Md. at 79. But the General Assembly
changed the law effective October 1, 2012, Md. Code (2001,
2008 Repl. Vol., 2015 Supp.), and § 8-401 of the
Criminal Procedure Article ("CP") now provides that
"the failure to seek an appeal in a criminal case may
not be construed as a waiver of the right to file a
petition for writ of error coram nobis." (emphasis
added). Then, in Smith, the Court of Appeals held
that § 8-401 applied retroactively to all coram
nobis cases pending in court on the day the statute
became effective. 443 Md. at 591. This timing works for Mr.
Rich: he filed his coram nobis petitions in April
2009, the circuit court issued orders denying all three in
February 2010, his appeal from those orders was timely, and,
because of the stay, they remained pending on October 1,
2012. Therefore, his claims are not waived despite his
failure to appeal from the judgments entered as a result of
his guilty pleas.
disagree as well that Mr. Rich waived his coram
nobis claims by failing to withdraw his guilty plea or
seek post-conviction relief. Although the Maryland Post
Conviction Procedure Act would seem to support the
State's contention,  it is enough under Smith that
the record is silent as to whether Mr. Rich actually knew
post-conviction relief was available, and thus was able to
decline intelligently to pursue it:
We would eviscerate the beneficent purpose of [CP §
8-401] if we were to hold that a person, suddenly faced with
the serious collateral consequence of removal from this
country, and with sound reasons for the failure to seek
relief earlier, is foreclosed even from seeking the
extraordinary relief afforded by the common law remedy of
coram nobis simply by having failed to pursue an
earlier-available avenue of relief, the opportunity for which
closed before the reason for seeking such relief became
443 Md. at 609 (internal citations omitted).
Mr. Rich's Claims Are ...