Bereska v. State
| Decision Date | 17 September 2010 |
| Docket Number | No. 742, Sept. Term, 2009.,742, Sept. Term, 2009. |
| Parties | George John BERESKA, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Byron L. Warnken (Michael P. Lytle, Warnken, LLC, on the brief) Towson, MD, for Appellant.
Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for Appellee.
Panel: JAMES R. EYLER, WOODWARD, IRMA S. RAKER (Retired, specially assigned), JJ.
This case is an appeal from the denial of appellant's "Motion to Revise Judgment based on Mistake or Irregularity, or in the Alternative, Petition for Writ of Error Coram Nobis," filed in the Circuit Court for Calvert County on January 22, 2009. Appellant raises a single issue for our review, which he articulates as follows:
"Whether the Maryland General Assembly violated the Ex Post facto Clauses of the Maryland and United States Constitutions when it enacted a sentencing law, and applied it retroactively to conduct committed prior to enactment, with the new, more onerous law, prohibiting probation before judgment, whereas the former law authorized probation before judgment?"
After briefing, oral argument, and supplemental briefing, we perceive that this case can be resolved by answering a single dispositive question:
"Did the Circuit Court for Calvert County have any authority or jurisdiction on August 9, 2004 to permit appellant to withdraw his guilty plea entered on March 14, 1996, and then to permit him to enter a guilty plea to a reduced charge?"
Appellant George John Bereska, Jr. entered a guilty plea in the Circuit Court for Calvert County on March 14, 1996, to the offense of third-degree sexual assault, based on his conduct in June and July of 1995. The court sentenced appellant to six years of incarceration with all but thirty days suspended, and five years of supervised probation. In October, 1995, the General Assembly amended Md.Code, Article27 (1974, 1995 Cum. Supp.), § 641,1 precluding the grant of probation before judgment (hereinafter "PBJ") for the offense of third-degree sexual assault. Appellant nonetheless filed a timely motion to modify his sentence, requesting PBJ pursuant to Art. 27, § 641. The circuit court held this matter sub curia until 2004, by which time appellant had completed serving his term of incarceration and probationary period.
Pursuant to an agreement between appellant and the State, on August 9, 2004, the circuit court permitted appellant to withdraw his guilty plea, permitted the State to amend the charging document and permitted appellant to enter a guilty plea to the offense of child abuse, in violation of Art. 27, § 35C, a lesser offense for which PBJ remains available. The State had all along opposed PBJ, but agreed now not tooppose PBJ so long as appellant waived the right to seek expungement of the court record, and appellant did so.
On November 30, 2007, appellant filed a motion "[t]o revise judgment based on fraud, mistake or irregularity, or in the alternative, petition for writ of error coram nobis." Appellant argued that the 1995 statutory amendment, effective October 1, 1995, eliminating the possibility of PBJ for third-degree sexual offenses violated his rights under the Ex Post Facto Clause of the United States Constitution,2 and the parallel clause in the Maryland Declaration of Rights.3 His coram nobis petition was based on the argument that he had received ineffective assistance of counsel, in that his attorney failed to recognize this ex post facto issue at the 2004 hearing. The court denied appellant's motion. Appellant was allowed to file a substantially similar motion in 2009, and the court again denied the motion.
Before this Court, appellant argues that the ex post facto law doctrine precludes any retroactive effect of the revised Art. 27, § 641, and that the expungement waiver in the new plea agreement was invalid, because the plea to a lesser count was not necessary to obtain PBJ under the ex post facto clauses of the Maryland and federal constitutions. Ultimately, what appellant sought in this appeal is a restored right to seek expungement of his court record relating to his 1995 conduct.
Following briefing and oral argument, this Court ordered the parties to file supplemental briefs addressing the question of the circuit court's jurisdiction, in 2004, to allow appellant to withdraw his original 1996 guilty plea and enter a new plea to a different offense.
In response to the Court's request to brief the jurisdictional basis for the circuitcourt's actions, appellant states that the circuit court had no jurisdiction to permit appellant to withdraw his 1996 guilty plea because the motion to withdraw the plea was untimely and there were no grounds advanced that would have supported withdrawal of the plea. He prays that this Court rule that applying the PBJ prohibition to appellant's sexual offense conviction would violate the Ex Post Facto Clause of the Maryland and United States constitutions, and "remand the case to the circuit court with instructions to enter a probation before judgment without the condition that Mr. Bereska waive his right to expungement of the charges."
We shall hold that the Circuit Court for Calvert County lacked the jurisdiction to vacate the guilty plea and judgment of conviction entered on March 14, 1996, and that appellant's ex post facto argument is not before the Court at this time.
On December 5, 1995, appellant George John Bereska, Jr. was indicted by the Grand Jury for Calvert County for second-degree sexual assault in violation of Art. 27, § 464A, in connection with his conduct with a twelve year-old boy in June and July of 1995. On March 14, 1996, appellant pled guilty in the Circuit Court for Calvert County to a third-degree sexual offense under Art. 27, § 464B. At his May 17 sentencing hearing, the court sentenced appellant to a term of incarceration of six years, with all but thirty days suspended, and five years of supervised probation.
At the time appellant committed the criminal acts underlying his guilty plea, PBJ was available for a third-degree sexual offense, under Art. 27, § 641. Effective October 1, 1995, however, the General Assembly amended the Maryland Codeto eliminate the possibility of PBJ for third-degree sexual offenses.4 This change went unnoticed by appellant, the circuit court, and the assistant State's attorney at the May, 1996 sentencing.
On August 14, 1996, appellant filed a motion under Rule 4-345, seeking modification or reduction of sentence. Among other requests, appellant's August, 1996 motion for modification sought PBJ. The court declined to grant PBJ at that time, but agreed to hold appellant's motion sub curia. In November of 1998, having completed 1,000 hours of community service, appellant requested a hearing on his motion for modification. The court declined to grant a hearing, but indicated that it might consider PBJ when appellant completed his five years of probation.
In 2001, appellant completed his term of probation,5 and on May 21, 2002, he requested a hearing on his motion for modification, held sub curia in the circuit court. The State filed a memorandum in opposition to appellant's request for PBJ.
The State's 2002 opposition memorandum raised for the first time the issue that PBJ, now governed by Md.Code (2001,2006 Cum. Supp.), Crim. Proc. Art., § 6-220, was unavailable for the charge to which appellant had pled guilty in 1996, third-degree sexual assault. At the time, defense counsel conceded this point. The court agreed that PBJ was unavailable in cases of third-degree sexual assault. All partiesinvolved were in agreement that PBJ could not be applied to appellant's third-degree sexual assault conviction. In 2002, no one raised the notion that applying the revised statute to appellant might create ex post facto issues.
Appellant and the State apparently reached an agreement that appellant should have the benefit of PBJ, and they contrived a plan involving the withdrawal of the 1996 guilty plea and the entry of a guilty plea to an amended, lesser charge, which they believed would avoid the 1995 change in the law and allow appellant the benefit of PBJ. In exchange for agreeing to this plea revision, the State required that appellant agree not to seek expungement of the court record.
On August 9, 2004, the circuit court held a hearing and permitted appellant to withdraw his March 14, 1996 guilty plea to third-degree sexual assault, and to enter a new plea to child abuse. The court granted PBJ and, pursuant to the agreement of the parties, ordered that appellant not seek expungement of his criminal record as provided under Md.Code, Crim. Proc. Art. (2001, 2006 Cum. Supp.), § 10-105, Expungement of record after charge is filed. The following significant discussion took place in the courtroom:
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