Argued: November 2, 2018
Circuit Court for Anne Arundel County Case No. 02-K-00-001866
Barbera, C.J., Greene McDonald Watts Hotten Getty, Adkins,
Sally D. (Senior Judge, Specially Assigned), JJ.
case before us has its origins in Petitioner Gerald
Hyman's conviction on a plea of guilty to the crime of
third degree sexual offense. For that crime, Petitioner
received a three-year sentence, fully suspended, with three
years of supervised probation. As a result of the conviction,
Petitioner was required to register as a sex offender.
then, Petitioner has engaged in several efforts to obtain
relief from registration. None have proved successful. In
this matter, his most recent effort, Petitioner has filed his
second petition for a writ of coram nobis. He presents two
claims in support: he was deprived of the effective
assistance of counsel before and at the combined plea and
sentencing proceeding, and his guilty plea was involuntary.
Both claims concern his asserted ignorance of the duration of
his sex offender registration.
Circuit Court for Anne Arundel County, finding
Petitioner's claims to be without merit, denied him coram
nobis relief. The Court of Special Appeals affirmed, holding,
upon reaching the merits of those claims, that the coram
nobis court had correctly denied the petition. We affirm the
judgment of the intermediate appellate court, but on a
different ground. We hold, for the reasons that follow, that
Petitioner waived the grounds underlying both claims and,
therefore, we have no cause to address the merits of those
and Procedural History
plea and sentencing for third degree sexual offense
2000, Petitioner was charged in Anne Arundel County with one
count of third degree sexual offense, one count of second
degree assault, and one count of fourth degree sexual
offense. All charges stemmed from events taking place on July
14 of that year, when Petitioner, then thirty years old,
engaged in purportedly consensual sexual intercourse with a
combined plea and sentencing proceeding took place on January
23, 2001, in the Circuit Court for Anne Arundel County.
Appearing on behalf of Petitioner was attorney Shawn
Gaither. At that time, Petitioner entered a plea of
guilty to third degree sexual offense in exchange for the
State's agreement to enter a nolle prosequi of the
remaining charges and to recommend to the court that
Petitioner be sentenced "within the guidelines,"
which in Petitioner's case was a fully suspended sentence
and three years of supervised probation.
response to the court's questioning, Petitioner said he
was thirty years old, married, and employed as an
electrician. Petitioner further responded that he understood
he had a right to a jury trial at which the State would have
to prove his guilt beyond a reasonable doubt; that he was not
currently under the effects of alcohol, narcotics or
medications; and that he suffered no mental disability that
impaired his "understanding [of] what [he was] doing
now" in going forward with the plea. At that point, the
court found Petitioner to have "affirmatively, knowingly
and intelligently waived his right to a trial by jury."
court then reviewed with Petitioner the pending charges and
confirmed that he was aware that his counsel had discussed
the proposed plea agreement with the State; the agreement
contemplated Petitioner's plea of guilty to third degree
sexual offense; and the State would enter a nolle prosequi as
to the remaining charges.
court, after noting that "the maximum penalty in this
case is 10 years imprisonment," restated the terms of
the proposed plea agreement, including the State's
recommendation that the court impose a sentence of
"probation and that [Petitioner] register as a child sex
offender" and comply with other conditions. In response
to Petitioner's concerns, the court clarified that the
condition prohibiting "unsupervised visitation with any
minor children" would not limit his access to his own
children. The court asked Petitioner if he understood the
terms of the plea agreement and the consequences of it. He
responded "yes." In response to the court's
further questioning, Petitioner denied that he had received
any promises or inducements to plead guilty, again said that
he had been provided ample time to speak with counsel, and
declared once again that he understood that by pleading
guilty he was giving up the right to a trial by jury.
court accepted Petitioner's plea of guilty to third
degree sexual offense and then proceeded directly to
sentencing. The court heard from the victim's mother,
Petitioner's step-father, and Petitioner. Following that,
the court sentenced Petitioner to three years'
incarceration, all suspended in favor of three years'
supervised probation with conditions. The court added:
As a part of that probation, sir, you are to register as a
child sex offender. You are to give blood to the DNA [sic]
under Article 88, Section 12(a). You are to have no contact
with [T.H.] or any member of her family, and you are to have
no illegal contact with minor children. And you are to pay
the costs of these proceedings.
time Petitioner was sentenced, a person convicted of third
degree sexual offense was required to register as a sex
offender for life. Pertinent to the matter before us, no
mention was made on the record of the plea and sentencing
proceeding of the duration of that registration period.
close of the proceeding, the court instructed Petitioner to
complete an order of probation form. The court pointed out
that the order contained, "[i]n addition to the terms
and conditions I have told you about, . . . other terms you
have to live by." The court added, "If you
don't understand any of them, ask me before you leave
here today. Otherwise, the Court will assume you
probation order reads, in part, "[A]ll probation is
subject to the following conditions." The order lists
several generic conditions, has boxes the court may choose to
check, and has blank lines at the bottom. On those blank
lines, the court wrote, "Special Conditions: (1)
Register as a Child Sex offender (2) Give blood for DNA
testing under Art 88 § 12A (3) No contact w/victim
[T.H.] or her family (4) No illegal contact with minor
children." Petitioner signed the order.
April 2001, several months after the plea hearing, Petitioner
completed his initial sex offender registration form. The
form includes boxes for the registration terms, labeled
either "10 year" or "lifetime." The
"10 year" box on Petitioner's registration form
was marked, indicating, incorrectly, that he was required to
register annually for ten years. In May 2002, Petitioner
completed a registration form; again, the box for a "10
year" registration term was marked. In June 2003,
Petitioner again completed a registration form; on that
occasion, the box for a "10 year" registration term
was marked and crossed out, and the box for
"lifetime" was marked with Petitioner's
initials next to it.
2006 coram nobis proceedings
24, 2004, Petitioner was convicted in federal court of an
unrelated drug offense and was sentenced to seventy-eight
months' imprisonment. Petitioner was told of the Federal
Bureau of Prisons' Residential Drug Abuse Program
("RDAP"). One feature of the program was the
incentive of early release from incarceration. Petitioner
learned that as a convicted sex offender, he was not eligible
for the early release incentive. That information evidently
prompted Petitioner to file, on October 6, 2006, his first
coram nobis petition. The petition was not prepared by
counsel or Petitioner himself, but rather by a so-called
advanced two claims in the petition: (1) he received
ineffective assistance of counsel before and during the plea
and sentencing proceeding, and (2) his plea of guilty to
third degree sexual offense was involuntary. Petitioner
argued, in particular, that counsel did not prepare
adequately for trial, did not afford him a meaningful
opportunity to consult prior to pleading guilty, and coerced
him to plead guilty. Petitioner asserted that as a collateral
consequence of the coerced guilty plea, he was foreclosed
from obtaining early release. Petitioner sought the relief of
vacatur of the 2001 sexual offense conviction. Among other
arguments, he asserted that he was unaware that the victim
was below the age of eighteen and that she consented to the
sexual activity. Petitioner did not directly complain about
the duration of his sex offender registration period. He
merely conveyed his understanding at the time of the plea
that his sex offender registration was "part of [his]
circuit court denied the coram nobis petition without a
hearing on May 14, 2007, having found no "evidence
[that] Defendant did not clearly understand what he was doing
and he entered his plea willingly." The court added
that, contrary to Petitioner's complaint, the
"statutory sexual offense" of which he was
convicted "has no mens rea requirement."
noted an appeal of the coram nobis court's decision on
June 14, 2007. On March 10, 2008, while his appeal was
pending in the Court of Special Appeals, Petitioner was
released early from federal prison apparently as a result of
changes in the Federal Sentencing Guidelines. Upon learning of
Petitioner's release, the Court of Special Appeals
dismissed the appeal as moot. The court reasoned that
"the sole basis" of Petitioner's coram nobis
claim was "that his Maryland conviction of third degree
sexual offense [made] him ineligible to participate in the
RDAP, and that completion of the RDAP would [have made] him
eligible for early release from federal incarceration."
The intermediate appellate court further reasoned that
Petitioner had already obtained the remedy he sought, i.e.
early release, and that no exceptions to the mootness
doctrine applied. Petitioner did not seek certiorari review
of the Court of Special Appeals' decision.
2008, Petitioner received from the Department of Public
Safety and Corrections a "Notice of Sexual Offender
Registration Requirements." The notice stated that
Petitioner was required to register every six months for
life. Petitioner signed the notice.
2010, the Maryland Sex Offender Registration Act
("MSORA") was amended. As a result,
Petitioner's period of registration was reduced from
"lifetime" to twenty-five years. See Md.
Code (2001, 2018 Repl. Vol.), § 11-707(a)(4)(ii) of the
Criminal Procedure Article ("CP").
2013 declaratory judgment proceedings
March 29, 2013, Petitioner, through counsel, filed a
"Complaint for Declaratory Judgment and for a Temporary
Restraining Order and Preliminary and Permanent Injunctive
Relief" in the Circuit Court for Anne Arundel County.
Evidently relying on the forms he signed in 2001 and 2002
reflecting registration for ten years, Petitioner claimed,
for the first time, that "due to the retroactive
application of the sex offender law, [Petitioner] is now
required to register for life." Elsewhere, he described the
MSORA as applied to him ex post facto. He asked for
a judgment that would: (1) declare that MSORA was
unconstitutional as applied to him and, consequently, he
should be removed from the registry; and (2) enjoin the State
from continuing to require him to register and publish his
private information online.
various amended complaints, motions for summary judgment, and
a hearing, the circuit court denied Petitioner's motion
for declaratory judgment and injunctive relief. The court
opined that Petitioner could seek a writ of coram nobis, but
declaratory judgment was an inappropriate civil remedy in
this circumstance. Calling sex offender registration a
"conviction-based obligation," the court ...