McElroy v. State

• Decision Date: 01 September 1992
• Docket Number: Nos. 17,18,s. 17
• Citation: 617 A.2d 1068,329 Md. 136
• Parties: John Harold McELROY v. STATE of Maryland, Edward JEFFERSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 136

329 Md. 136

617 A.2d 1068

John Harold McELROY v. STATE of Maryland, Edward JEFFERSON v. STATE of Maryland.

Nos. 17, 18, Sept. Term, 1992.

Court of Appeals of Maryland.

Jan. 19, 1993.

McElroy Motion for Reconsideration

Denied March 9, 1993.

Gary S. Offutt, Norman Handwerger, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

In each of these cases we are concerned with whether the petitioner, who had been convicted upon a guilty plea, waived his right to post conviction relief under our Post Conviction Procedure Act (PCPA), Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 645A-J, by failing to raise the alleged error which resulted in his conviction by application for leave to appeal that conviction and the sentence thereon to the Court of Special Appeals.

I.

Article 27, § 645A provides in pertinent part:

"(a) Right to institute proceeding to set aside or correct sentence; time of filing initial proceeding.--(1) Subject to the provisions of paragraphs (2) and (3) of this subsection, any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation, including any person confined or on parole or probation as a result of a proceeding before the District Court who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy, may institute a proceeding under this subtitle in the circuit court for the county to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction.

. . . . .

"(c) When allegation of error deemed to have been waived.--(1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.

"(2) When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation."

We construed these provisions governing waiver in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). In that case, we held that the legislature employed the concept of an intelligent and knowing waiver in Art. 27, § 645A(c) in the narrow sense employed by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Johnson v. Zerbst, the Supreme Court stated:

"It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466 (footnotes omitted).

We reasoned that the legislature did not require intelligent and knowing waiver in the case of all errors, but only with respect to errors which deprived a petitioner of fundamental constitutional rights. ¹ As to those fundamental rights, intelligent and knowing waiver requires that the petitioner's knowledge of the right and the petitioner's personal waiver of the right be reflected on the record. As to lesser or non-fundamental rights, the petitioner will be deemed to have waived any claim of error if petitioner or petitioner's counsel failed to exercise a prior opportunity to raise it notwithstanding a lack of personal knowledge of the right of which petitioner was deprived ², except when the failure to allege the error is excused by special circumstances.

When an allegation of error affecting fundamental constitutional rights could have been made by petitioner in a prior proceeding, Art. 27, § 645A(c)(2) provides that "there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation." The burden of producing evidence to rebut the presumption of waiver is placed upon the petitioner. Curtis, 284 Md. at 139, 395 A.2d at 469.

II.

A.

On January 9, 1989, John Harold McElroy appeared with counsel for trial in the Circuit Court for Baltimore County on indictments charging him inter alia with distribution of Phencyclidine (PCP). When McElroy's case was called, the Assistant State's Attorney advised the court:

"There have been plea negotiations between myself and counsel. The pleas would be in 5347, distribution of PCP, Your Honor, a guilty plea that the State anticipates will result in a sentence within the guidelines of four years to eight years. And in return, nol pros the balance of 88-5347 and all the counts in 5347. The defense, of course, is free to argue for less."

Thereafter, the court questioned McElroy and determined that he was 30 years of age, possessed a tenth grade education, and could read and write the English language. The court's inquiries also established that McElroy had never been a patient in a mental institution and that he was not then under the influence of alcohol or any drugs. The colloquy continued:

"THE COURT: By pleading guilty in this case, you subject yourself to 20 years and $25,000 fine on the first count, which charges that you did distribute PCP and will be requesting a possible presentence, since the guidelines recommend a guideline of four years to eight years. Your attorney is free to argue for anything less than that and, of course, the Court is not bound by any sentence, frankly, up from probation to the maximum sentence.

"You understand everything about the plea agreement?

"THE DEFENDANT: Yes."

The court continued its inquiry of McElroy assuring itself that he understood the nature of the several rights he was giving up by pleading guilty. The court then concluded its questioning:

"THE COURT: And lastly, your guilty plea limits yourself on appeal. You still have a right to the Court of Special Appeals to review it, but to do so it would be limited to four grounds. The first is the jurisdiction of this Court; the second is whether or not I gave an illegal sentence; the third is whether or not you are freely and voluntarily entering this plea and I am sure being represented by Mr. Shaw, do you have any questions you want to ask of him or the Court prior to proceeding?

"THE DEFENDANT: No, sir.

"THE COURT: All right. The Court is satisfied that the plea is freely, voluntarily and intelligently given and will accept the plea of guilty on the first count. Let's hear the basis for the plea. You may have a seat."

After hearing the statement of facts, the court accepted the guilty plea and found McElroy guilty of distribution of PCP.

At the request of McElroy's attorney, the trial court ordered a pre-sentence investigation which revealed that Mr. McElroy had an extensive criminal record. Nevertheless, at the sentencing hearing the prosecutor complied with his part of the plea bargain and recommended a sentence of four to eight years, although in light of the pre-sentence report the defendant was subject to a twelve to twenty year term under the sentencing guidelines.

On March 30, 1989, McElroy was sentenced to fifteen years imprisonment, commencing October 26, 1988, and was advised he had thirty days within which to apply for leave to appeal to the Court of Special Appeals. Motions for modification or reduction of sentence were filed and denied, but no application for leave to appeal from the conviction and sentence on his guilty plea was filed.

On August 14, 1990, McElroy filed a petition for post conviction relief. He asserted that his guilty plea was not entered knowingly and intelligently because the trial judge had failed to comply with Maryland Rule 4-243 ³ which governs plea bargains. Specifically, he alleged that that trial judge had not advised him that the court was not bound by the prosecutor's recommendation as to sentence and that, if the court imposed a sentence more severe than the one recommended, McElroy had no right to withdraw his plea. Md.Rule 4-243(b)...