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Hyman v. State

Court of Appeals of Maryland

May 20, 2019


          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.


          BARBERA, C.J.

         The 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.

         Since 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.

         The 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 claims.


         Facts and Procedural History

         The plea and sentencing for third degree sexual offense

         In 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 fourteen-year-old female.

         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.[1] 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.

         In 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."

         The 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.

         The 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.

         The 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.

         At the 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.

         At the 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 understand."

         Petitioner's 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.

         In 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.

         The 2006 coram nobis proceedings

         On June 24, 2004, Petitioner was convicted in federal court of an unrelated drug offense and was sentenced to seventy-eight months' imprisonment.[2] 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 "jailhouse lawyer."

         Petitioner 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] probation package."

         The 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."

         Petitioner 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.[3] 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.

         Subsequent intervening events

         In 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.

         In 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").

         The 2013 declaratory judgment proceedings

         On 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."[4] 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.

         After 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 ...

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