Krauser, C.J., Kehoe, Zarnoch, Robert A., (Senior Judge,
Specially Assigned), JJ.
the second time appellant Lionel Holloway has asked for
judicial relief from the collateral consequences of his
previous guilty pleas; and this is the second time he has
appealed to this Court. In the first appeal, he successfully
challenged a procedural error, but was denied relief on the
merits. On this occasion, he is again correct that the
circuit court committed a procedural error, but we again deny
him relief because his second action is barred by the law of
frames the following question for our review:
Did the court below err in finding that Holloway waived his
right to file a coram nobis petition?
State essentially asks:
Should the circuit court have denied Holloway's second
petition as barred by the law of the case?
view, there is a significant underlying question that we must
Can a party raise the defense of law of the case for the
first time on appeal?
following reasons set forth below, we answer yes to all three
questions and affirm the judgment of the circuit court.
March 24, 2000, Holloway pleaded guilty in the Circuit Court
for Baltimore City to two counts of possession with intent to
distribute heroin. On April 17, 2000, the court sentenced
Holloway to two concurrent twenty-year terms of imprisonment,
with all but five years suspended, followed by three years of
October 2, 2009, Holloway was convicted of possession of a
firearm b y a convicted felon in the United States District
Court for the District of Maryland. Due to his prior state
drug convictions, Holloway was subjected to a mandatory
minimum sentence of fifteen years on the firearm charge.
December 3, 2009, Holloway filed a petition for writ of error
coram nobis ("First Petition") in the circuit
court, in an effort to vacate his underlying drug
convictions. In his First Petition, Holloway argued that the
trial court had committed error during his guilty plea,
because it did not apprise him of the nature of his charges
as required by Maryland Rule 4-242(c). On August 17, 2010,
the circuit court denied the First Petition on the basis that
Holloway had waived his right to seek coram nobis by failing
to file an application for leave to appeal. Additionally, the
circuit court reasoned that the trial court had also complied
with Rule 4-242(c) when it took his guilty plea.
appealed the denial of the First Petition to this Court. In
an unreported opinion, Holloway v. State, September
Term 2010, No. 1765 (filed May 5, 2014), a panel of this
Court acknowledged that the old rule was that "failure
to file an application for leave to appeal barred a
petitioner from coram nobis relief." See Holmes v.
State, 401 Md. 429 (2007). However, as a result of a
change to the law in 2012, Section 8-401 of the Criminal
Procedure Article now provides that "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." Md. Code (2001, 2008 Repl. Vol., 2016 Supp.),
Criminal Procedure Article ("CP"), § 8-401.
Moreover, in Graves v. State, 215 Md.App. 339, 352
(2013), we held that Section 8-401 should be applied
retroactively. Accordingly, the panel held that
Holloway's failure to file an application for leave to
appeal did not preclude him from filing a coram nobis
the State conceded error in the trial court's failure to
apprise Holloway of the nature of the charges against him,
the panel went on to examine the totality of the
circumstances surrounding the plea colloquy as dictated under
State v. Daughtry, 419 Md. 35, 71 (2011), and
observed the following:
To begin with, the nature of the charge in the present case
is not complex. Possession with intent to distribute consists
of two elements: possession of a controlled dangerous
substance and the intent to distribute that substance. Md.
Code, Crim. Law Art. (C.L.), § 5-602(2) (formerly Art.
27 § 286(a)(1)). Moreover, the ...