Gross v. State
| Decision Date | 11 June 2009 |
| Docket Number | No. 1180, September Term, 2008.,1180, September Term, 2008. |
| Citation | 973 A.2d 895,186 Md. App. 320 |
| Parties | Charles GROSS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Daniel H. Ginsburg, Greenbelt, for appellant.
Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.
Panel: SALMON, ZARNOCH and RAYMOND G. THIEME, JR. (Ret. Specially Assigned), JJ.
On July 12, 2000, Charles Gross ("Gross") entered an ABA plea1 to the charge of possession with intent to distribute 50 grams or more of cocaine. In exchange for his plea, the State entered a nolle prosequi to the charges of possession of PCP with intent to distribute, possession of a firearm for use in drug trafficking, and other lesser crimes. The Circuit Court for Prince George's County accepted the plea and, pursuant to the plea agreement, sentenced Gross, on November 20, 2000, to five years imprisonment. No period of probation was imposed.
Gross did not file a petition for leave to appeal to this Court. Instead, he waited more than six years to take any action concerning his conviction. On February 7, 2008, he filed a petition seeking a writ of error coram nobis in the Circuit Court for Prince George's County. He alleged, inter alia, that he was denied due process of law because the record failed to show that his plea was entered knowingly and intelligently.
Gross also alleged in his petition that he had recently been convicted in federal court of "conspiracy to distribute and possession with intent to distribute 50 grams or more of crack cocaine" and was awaiting sentencing. This presented a problem because if his "improper" conviction in Prince George's County were allowed to stand he would be "scored as a career offender" under federal sentencing guidelines, which meant that the range of his sentences would be between 262-327 months. According to Gross, if his conviction in the subject case were set aside, the guidelines range "would fall dramatically to 140-175 months."
Following a hearing, the circuit court denied Gross's coram nobis petition. Gross noted this appeal in which he argues that the circuit court erred in denying his petition because his guilty plea in the underlying criminal case was not knowingly and voluntarily entered. He based that contention on the fact, that prior to the acceptance of the guilty plea, the plea judge did not explain to him the elements of the offense to which he was pleading guilty, nor was there a statement on the record by Gross's counsel that he had explained the elements of the offense to his client. Appellant also contends that his guilty plea was invalid because, prior to accepting the plea, the court failed to advise him that if he had gone to trial he would have been able to invoke his right against self-incrimination.
The State asks us to affirm the circuit court's denial of the coram nobis petition for three independent reasons. First, the State contends that Gross waived his right to coram nobis relief by failing to file, within 30 days of the date his sentence was imposed, a petition for leave to appeal to this Court. Second, the State argues that, regardless of the merits of Gross's complaint about the advice he was given prior to the court's acceptance of the ABA plea, Gross failed to prove entitlement to relief because, at the coram nobis hearing, he put on no evidence demonstrating that he incurred any collateral consequences as a result of his Prince George's County conviction. Third, according to the State, the record demonstrates that Gross's guilty plea was made knowingly, intelligently, and voluntarily.
A. The Coram Nobis Hearing
Gross's counsel introduced into evidence three exhibits, viz: 1) the transcript of the July 12, 2000 proceedings at which Gross's plea of guilty was accepted; 2) the transcript of the sentencing hearing of November 20, 2000; and 3) an affidavit, signed by Gross.
Gross's affidavit read as follows:
During my guilty plea proceeding of July 12, 2000, neither the trial judge nor my lawyer advised me of the elements of the charge to which I pled guilty. Also, neither the trial judge nor my attorney told me that, if I went to trial, I could testify or refuse to testify.
My trial attorney never advised me of the above constitutional defects in my guilty plea hearing. Trial counsel also did not: (1) consult with me about my option of seeking permission to appeal; or (2) file an Application [for] Leave to Appeal in order to challenge the knowing and intelligent nature of my guilty plea. Furthermore, at the end of my sentencing hearing on November 20, 2000, the trial judge told me that I could appeal my sentence within 30 days; the judge did not, however, inform me that I could request permission to appeal from my guilty plea itself. Therefore, I did not understand that I could apply for leave to appeal from my guilty plea. If I had known that I could challenge, via an Application for Leave to Appeal, the knowing and intelligent nature of my guilty plea, then I would have raised the above claims in an Application.2
The transcript of the hearing at which the ABA plea was accepted shows that appellant was represented by Richard Collins, Esquire, the law partner of Joseph Vallario, Jr., the attorney who had negotiated the ABA plea. The plea was accepted by the Honorable Sheila R. Tillerson-Adams. Questioning by the judge revealed that at the time of sentencing Gross was 26 years old and was a high school graduate who could read, write and understand the English language. At the time the plea was accepted, Gross was taking no medication and was in good health both physically and mentally, and was not under the influence of any drugs or alcohol. During the court's questioning of Gross, the following exchange occurred:
(Emphasis added.)
Before accepting the plea, Judge Tillerson-Adams also told Gross about various rights that he was giving up by pleading guilty. She told Gross, inter alia, that he had a right to a trial before a jury made up of twelve jurors, that if he had elected a jury trial he would have had a right to help pick the jury, and that the jury could not find him guilty unless all twelve jurors unanimously concluded, beyond a reasonable doubt, that he was guilty. The court also advised appellant that if he elected to do so, he had a right to a trial before a judge who could not find him guilty unless the evidence showed that he was guilty beyond a reasonable doubt. Gross said that he understood that he was giving up all those rights.
In advising Gross of the rights just mentioned, and several others, Judge Tillerson-Adams did not tell Gross that if he had gone to trial he would have been able to invoke his right against self-incrimination.
Gross then told the judge that he was pleading guilty because he was guilty. Prior to accepting the guilty plea, the prosecutor read into the record the factual predicate for the plea, saying:
Your Honor, had this matter gone to trial, witnesses would have testified to the following. There was an investigation that involved both 8506 Grand Haven Avenue and 8508 Grand Haven Avenue, two townhouses next to each other, Upper Marlboro, Prince George's County, Maryland.
As a result of the investigation, search warrant was executed simultaneously on 8506 and 8508. Mr. Charles Gross was the owner and/or renter is more appropriate of 8508 Grand Haven Avenue. Seized within the house and specifically within the bedroom of Charles Gross was approximately 390 grams of cocaine spread within the bedroom, the closet, etc. There was also PCP found in the refrigerator. There were three other residents, four other residents of the house.
One hundred and fourteen point three milligrams of PCP plus an additional 11.58 grams of PCP was found in the refrigerator.
Also found was $21,339, again in various parts of the house in different safes. There was a loaded gun found in Mr. Gross's bedroom in his dresser drawer portion, pages, pagers, I'm sorry, and three scales were found in the house, two in the kitchen and one in the garage. Various documents tying Mr. Gross to the house.
The various drugs were analyzed by a certified chemist of the Prince George's County Police, I'm sorry, a certified chemist of the Prince George's County Police Laboratory and the amounts were found to be in fact cocaine a Schedule II substance, and PCP a Schedule II substance, and also marijuana a Schedule I substance.
All events occurred in Prince George's County, Maryland and that would be what the witnesses would have testified to.
After hearing the proffer the following transpired:
To continue reading
Request your trial
-
Lindsey v. State
...judge, the defendant, and the prosecutor as to what the maximum sentence will be if the plea is accepted.” Gross v. State, 186 Md.App. 320, 322 n. 1, 973 A.2d 895 (2009). 4. Pursuant to section 11–104(c), within ten days of the filing of the indictment against Griffin, the State was require......
-
State v. Demetrius Daughtry.
...of any of the charged crimes or describes their nature....” Miller, 185 Md.App. at 310, 970 A.2d at 342.Gross In Gross v. State, 186 Md.App. 320, 973 A.2d 895 (2009), Gross, represented by counsel, entered an ABA plea 15 to the charge of possession with the intent to distribute fifty grams ......
-
Graves v. State
...he or she is ‘suffering or facing significant collateral consequences from the conviction’ from which he seeks relief.” Gross v. State, 186 Md.App. 320, 332, 973 A.2d 895,cert. denied,410 Md. 560, 979 A.2d 708 (2009). The collateral consequences must be actual, not merely theoretical. See P......
-
Griffin v. State
..., 441 Md. 61, 105 A.3d 489 (2014) ; State v. Castellon-Gutierrez , 198 Md. App. 633, 637, 18 A.3d 968 (2011) ; Gross v. State , 186 Md. App. 320, 323, 973 A.2d 895, cert. denied , 410 Md. 560, 979 A.2d 708 (2009) ; Abrams v. State , 176 Md. App. 600, 606, 933 A.2d 887 (2007) ; Parker v. Sta......